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I apologize for the lack of formatting. This is a law review article, and this pasted-in version came in without the footnotes, or spacing. Email me david@ferleger.com for a PDF version.
FYI, in case it has any interest to you or others you know, I am attaching galleys of my most recent law review article --- about to be issued in May 2010, 26 Ga. St. U. L. Rev __ (2010), a symposium issue on 10th Anniversary of the US Sup Ct decision in Olmstead v. JL.
In addition, it is a thorough review of constitutional Due Process and Equal Protection issues and background, right to treatment, right to community services, and existing commentary and critique of Olmstead, positive and negative.
THE CONSTITUTIONAL RIGHT TO
COMMUNITY SERVICES
David Ferleger∗
INTRODUCTION
“[I]nstitutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life.”
“Pennhurst provides confinement and isolation, the antithesis of habilitation.”
“Institutions, by their very structure a closed and segregated society founded on obsolete custodial models[,] can rarely normalize and habilitate the mentally retarded citizen to the extent of community programs created and modeled upon the normalization and developmental approach components of habilitation.”
Twenty-one years before the Supreme Court in Olmstead v. L.C. (Olmstead) held that unjustified institutionalization is discrimination forbidden by the Americans with Disabilities Act, a court issued the landmark decision that all institutionalization of people with mental retardation violates the United States Constitution and that states have an obligation to provide community services to the institutionalized. The first quotation above is from Olmstead in 1999 and the second two are from Halderman v. Pennhurst State School and Hospital (Pennhurst) in 1978.
United States District Judge Raymond J. Broderick, author of Pennhurst, was a conservative Republican jurist and former Lieutenant Governor of Pennsylvania. He was not a judicial activist. Those words did not come easily but after thoughtful consideration. He was stirred in Pennhurst by the same considerations which shaped Congress’ findings in the Americans with Disabilities Act of 1990 on segregation and discrimination against people with disabilities. Pennhurst foreshadowed the Supreme Court’s identification in Olmstead v. L.C., of the profound negative impact of institutions on those confined and its holding that the ADA proscribes “[u]njustified isolation of individuals with disabilities.”
With a satisfied grin, whether in public or private, Judge Broderick often observed that his decision recognizing the constitutional right to community services was never reversed. Indeed, while the 1978 decision precipitated two Supreme Court decisions on other grounds, and a myriad of rulings on related issues, the constitutional holdings were not questioned on appeal or certiorari. The commitment to alternatives to institutions, premised on constitutional rights, espoused in Pennhurst was the groundwork for much other litigation, became support for various states’ policies, and a rallying point for institutional residents, professionals in the field, and advocates.
It was not until Olmstead, however, that the Supreme Court weighed in on the institutionalization issue and this time, unlike Pennhurst, there was a federal statutory ground for the decision. The emergence of the “integration mandate” of the ADA, and the Supreme Court’s emphatic recognition in Olmstead of the benefits of community services for people who are institutionalized has diminished discussion of the constitutional inquiries which are the focus of this article.
This is a moment for a “necessary and overdue” return to constitutional principles as a means both to support the integration mandate and to surmount some of the weaknesses of a purely ADA and Olmstead approach.
I propose that involuntary institutionalization of people with intellectual disabilities is unconstitutional on due process and equal protection grounds. Due process precludes needless curtailment of personal liberty. Equal protection forbids discrimination against such individuals unless necessitated by a compelling state interest, an interest absent in non-criminal institutionalization. On groundwork language in Olmstead, I suggest that the narrow class of involuntarily institutionalized individuals with intellectual disabilities is a suspect or quasi-suspect class under the Equal Protection Clause.
Restoration of constitutional rights to the conversation cures some of the deficits in the Olmstead statutory construct. In addition, the judicial armamentarium available to enforce constitutional rights makes techniques available to enforce a broader and more powerful responsibility on the part of the state to eliminate unnecessary institutionalization through the expansion of quality community services.
In this article, I briefly outline the Olmstead decision and then discuss its limitations. I assume some familiarity with the history of institutional and community care, and the litigation which preceded Olmstead.
I. THE AMERICANS WITH DISABILITIES ACT
A. Olmstead: A “Qualified Yes” to Community Services
In Olmstead v. L.C., the United States Supreme Court held that Title II of the Americans with Disabilities Act of 1990 (ADA) requires the placement of persons with mental disabilities in community settings, rather than in institutions, when: (1) the state’s treatment professionals determine that such a placement is appropriate, (2) the transfer is not opposed by the individual, and (3) the placement can be reasonably accommodated given the resources available to the state and its obligation to provide for the needs of others with mental disabilities. A five justice majority held that a failure to provide care for individuals with mental disabilities in the most integrated setting appropriate to their needs may be viewed as discrimination, in violation of the ADA, unless the state or other public entity can demonstrate an inability to provide less restrictive care without “fundamentally alter[ing]” the nature of its programs.
Congress passed the Americans with Disabilities Act in 1990 42 U.S.C. §§ 12101–12213. Designed as a comprehensive statutory scheme, the ADA seeks to eliminate disability discrimination on three fronts: employment (Title I, 42 U.S.C. §§ 12111–12117); public services offered by public agencies (Title II, 42 U.S.C. §§ 12131–12165); and public services and accommodations offered by private entities (Title III, 42 U.S.C. §§ 12161–12189).
Prior to the ADA, Section 504 of the Rehabilitation Act of 1973 was the major statutory ground for challenge to discrimination against people with disabilities. Section 504 provides relief when a program or service receives federal funds and, thus, affects residents of virtually all public institutions. Section 504 had been on the books for years but it had proven of limited utility in affecting deinstitutionalization, despite a regulatory integration requirement.
The ADA differs from the Rehabilitation Act and other earlier statutes in that it explicitly recognizes “institutionalization” and “segregation” as forms of discrimination against disabled individuals. Also, the ADA required adoption of implementing regulations. There are two regulations most relevant to the Olmstead decision; together they comprise the “integration mandate” of the ADA. The first is the integration regulation, which states: “A public entity shall administer services, programs and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” The second is the reasonable modifications regulation, which provides: “A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate conclusively that making the modifications would fundamentally alter the nature of the service, program, or activity.”
Delivering the Court’s Olmstead decision, Justice Ginsburg framed the issue as “whether the [ADA’s] proscription of discrimination may require placement of persons with mental disabilities in community settings rather then in institutions.” She expressed the Court’s answer conspicuously as “a qualified yes.”
While the majority concluded that unnecessary institutionalization violated the ADA, Justice Ginsburg spoke for a plurality of four. Justices O’Connor, Souter and Breyer joined her opinion as to the fundamental alteration defense. Justice Stevens would have affirmed the judgment of the court of appeals. Justice Kennedy, concurring separately, was concerned that the decision might pressure the states into “attempting compliance on the cheap, placing marginal patients into integrated settings devoid of the services and attention necessary for their condition.”
The Court based its decision that unnecessary institutionalization is a form of discrimination on two rationales. First, placing people with disabilities who are capable of living in the community in institutions perpetuates the stereotypes that such individuals are unworthy or incapable of participating in community life. Second, confinement in an institution deprives the individual of participation in a broad spectrum of important activities, such as “family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment.” The Court recognized that institutionalization implies discrimination: “[T]o receive needed medical services, persons with mental disabilities must, because of those disabilities, relinquish participation in community life they could enjoy given reasonable accommodations, while persons without mental disabilities can receive the medical services they need without similar sacrifice.”
Olmstead was heralded as a potentially “revolutionary” advance for people with disabilities. Although other courts had previously found the same protections in the ADA, Olmstead’s conclusion that Title II of the ADA forbids “[u]njustified isolation” of people with disabilities was a defining moment.
B. Olmstead’s Shortcomings
Legal advocates and scholars are perhaps prone to overstate the impact of particular cases on the world generally, as well as on the law. That has been Olmstead’s fortune. While one might have expected that the Olmstead decision would have accelerated community placement, this has not been the case. In addition, the decision is fraught with deficiencies which thwart achievement of the right articulated by the Court, that is, to the right to be free from unjustified isolation.
1. Movement from Institutions Has Slowed
Since the Olmstead decision, there has been a slowing of the movement of residents from both public and private institutions, according to an analysis marking the case’s tenth anniversary. Between June 30, 1990 and June 30, 1999, public institution populations decreased by about 30,300 residents or 38.2%. Private institution residents decreased by about 13,700 persons or about 28.6%. These numerical and rate decreases were actually greater for public institutions than those that followed Olmstead, which was decided at the end of this ten year period. “Between June 30, 1999 and June 30, 2008, public institution populations decreased by about 14,100 people, or 28.6%, and private institution populations decreased by about 10,400 people, or 30.5%.” “Although there was a modestly increased rate of private institution depopulation following Olmstead, among public and private institutions combined, the rates of depopulation were slightly lower after [Olmstead] than before (36.9% and 29.4%, respectively).”
Why did this occur? Statistically, it was “because of the slowing rate within public institutions” “driven by low rates of deinstitutionalization in relatively few states.” The states slowest in community movement are increasing the proportion of public institution residents which they house. In 1990, the 10 slowest states had 34% of the total public institution residents. At the time of the Olmstead decision, they had 43%, and by 2008, they had 52%. Since Olmstead, these 10 states decreased their total public institution populations by about 15% as compared with a 42% reduction in the other states.
While these numbers cannot demonstrate an Olmstead cause-and-effect, the researchers did find it “[more] evident . . . that the effects of Olmstead in the future, if any, will depend on the internal or external motivation of a relatively small number of states to operate in more consistent compliance with it.” This raises the question of whether Olmstead alone is sufficient to provide a significant piece of that motivation.
2. Olmstead Suffers from Internal Deficiencies
Apart from its lack of constitutional teeth, Olmstead suffers from several internal deficiencies which weaken the force of its integration mandate. These include a government-friendly fundamental alteration defense, an effectively non-accountable “working plan” option to demonstrate compliance.
a. “Fundamental Alteration”
The obligation of public entities to make reasonable modifications of their policies, practices and procedures to avoid the discrimination of unjustified segregation is limited by the “fundamental alteration” defense. The entity is relieved of its obligation if “the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.” Courts must consider whether “in the allocation of available resources, immediate relief for the plaintiffs would be inequitable, given the responsibility the State has undertaken for the care and treatment of a large and diverse population of persons with . . . disabilities.” Additional cost, however, alone does not constitute a fundamental alteration. The analysis is not limited to comparing institutional to community cost; if that were the case, plaintiffs would generally always prevail.
The fundamental alteration defense may result in bizarre acceptance of discrimination to the detriment of individuals deeply in need. In Townsend v. Quasim, it was contended that the state’s use of community-based nursing services to provide essential long term care to some disabled Medicaid recipients but not others violates Title II of the ADA. The plaintiff, a man in his eighties with medical and physical disabilities, was told by the Washington State’s Department of Social and Health Services that, based on new definitions of services, he would have to move to a nursing home or lose Medicaid benefits which provided him with community care. The Ninth Circuit agreed that the state’s action was discriminatory but declined to provide relief, remanding because providing community services “would fundamentally alter” the State’s Medicaid programs.
A fundamental alteration might involve program integrity (modification of the fundamental nature of the program, for example) or magnitude (changes in the extent or cost of the system). “No clear statutory limits give guidance, and in the end any limits, however vague, may have to come from courts.” Olmstead’s impact is “diluted by the Court’s failure to provide meaningful parameters for the defense” of fundamental alteration.
b. “Effectively Working Plan”
Justice Ginsburg’s plurality gives states “leeway” to adopt a plan, apparently in the context of a fundamental alteration defense:
To maintain a range of facilities and to administer services with an even hand, the State must have more leeway than the courts below understood the fundamental-alteration defense to allow. If, for example, the State were to demonstrate that it had a comprehensive, effectively working plan for placing qualified persons with mental disabilities in less restrictive settings, and a waiting list that moved at a reasonable pace not controlled by the State’s endeavors to keep its institutions fully populated, the reasonable-modifications standard would be met.
Each piece of this operational test—a “comprehensive, effectively working plan,” a waiting list moving “at a reasonable pace not controlled” by a State’s effort to keep institutions filled —raises difficult interpretive questions. It is a challenge to put meaning into these terms. “The standards established under the majority decision for measuring when statutory violations under the ADA occur in the context of health services for persons with disabilities are, in fact, quite murky; furthermore, the powers granted to States to determine the scope of their own obligations, as well as the affirmative defenses they are accorded, are extensive.”
Of course, any test of compliance would raise definitional and interpretive questions. Here, however, where the State’s “leeway” allows it to put its thumb on the scale, one is hard put to expect courts to require meaty and prompt implementation of Olmstead plans.
All changes to complex systems, when done well, necessitate careful planning. Planning will typically include analysis, development of a mission, goals and objectives, expected outcomes, tasks and timelines, deadlines, identification of persons responsible, quality assurance and accountability mechanisms, and evaluation. Consequently, a self-adjusting system will be in place, with sufficient feedback and flexibility to adapt to changing conditions. A plan for movement from institutions would be expected to encompass these elements.
Enforcement of civil rights, especially class-wide enforcement often requires a change of complex systems. Courts, however, look to results. Judicial orders require compliance. An unimplemented plan is insufficient to satisfy the court that its involvement must come to an end.
The plurality opinion in Olmstead invites a “plan” which itself would satisfy the integration mandate announced in the decision. Devoid of mention of compliance or enforcement, the Olmstead plan has such scant required content that it has been characterized as a “get out of jail free” card for states otherwise in violation of the decision’s integration mandate.”
Some courts have held that a mere history of deinstitutionalization, even absent stated goals or guidelines, satisfies Olmstead, while others have accepted as satisfactory mere confirmation that a plan exists. Even a “successful record” and a plan “to continue and increase” unspecific programs were held sufficient.
Courts are certainly limited in ability and resources to shepherd all the details of compliance, but they are competent to ensure compliance, even in the most complex situations. A case in point is United States v. State of Connecticut in which Senior U.S. District Judge Ellen Bree Burns found the state in contempt of a consent decree intended to reform a large mental retardation institution, Southbury Training School (STS). The court found deficiencies in such areas as medical care, psychiatric services, psychological programs, physical therapy, injuries, and protection from harm, concluding that “STS’s systemic flaws have caused many residents to suffer grave harm, and, in several instances, death.” The court appointed a special master to review “all aspects” of STS’s care, “determine the changes needed,” “formulate specific methods to implement the required changes,” and help “effectuate those changes.” The special master actively oversaw a detailed remedial plan, holding hearings where necessary, and after nine years, the state achieved compliance at the institution and was purged of contempt.
The Olmstead “working plan” option is problematic. It does not describe the minimum elements of such a plan and does not require timely outcomes and compliance. Most importantly, its emphasis on states’ “leeway” discourages the lower courts from mandating and enforcing full-bodied plans, and ensuring that desired outcomes are achieved before the court bows out of involvement.
c. Absence of Guidance on Standard of Care
The Olmstead Court stated in footnote 14, “We do not in this opinion hold that the ADA imposes on the States a ‘standard of care’ for whatever medical services they render, or that the ADA requires States to ‘provide a certain level of benefits to individuals with disabilities.” Justice Kennedy’s concurrence is stronger. He concluded that, given states’ need to weigh their priorities, “[i]t follows that a State may not be forced to create a community-treatment program where none exists.” He did not, however, explain how one distinguishes between “creation” and “expansion” of community programs.
The multiplicity of opinions and the weak language cited above opens the possibility that Olmstead’s reach may be cut short in future rulings. The language does not appear to support even the minimally adequate level of habilitation which Youngberg v. Romeo held is required.
d. Silence on the Respective Roles of the Legislature and Courts
Constrained perhaps by internal divisions, the Court was muted in its endorsement of vigorous efforts to move to a fully community-oriented system. Institutional settings may be “terminated” but not for people “unable to handle or benefit” thereby. Institutions may be “phased out” so long as this does not place “patients in need of close care at risk.” These qualifications meet the concerns expressed in Justice Kennedy’s opinion.
This limited closure mandate appears calculated to appeal both to those who disfavor institutions as well as to those concerned that some residents may not be well served in the community. While no one would intentionally adopt a “phase out” effort, or place even a single person into the community, if it would predictably cause harm, analysis of risk and benefit is a complex calculus in human services. Missing from the Court’s brief “yes, but . . . “ discussion is the nature of the balance in this sensitive arena between the legislative policy-setting role and the judicial role in the definition and enforcement of rights. Also missing is the question of what weight to give the constitutional liberty interests of the individual and his or her desires, or that of parents or guardians. One wishes for clearer guidance from the Court on these issues.
II. THE CONSTITUTION
A. The Parameters of a Constitutional Right to Community Services
As recently as 2000, a scholar in the field correctly characterized the constitutional dimensions of a right to community treatment as “a mostly-moribund body of law.” With the Olmstead statutory holding, constitutional analysis took a backseat to examination of the extent to which the ADA might afford relief to the institutionalized. As I explain below, a comprehensive legal theory embodying both constitutional and statutory rights is more likely to serve private and public needs than a theory including just one or the other.
I contend that institutionalization of individuals with intellectual disabilities, without their consent, violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the Constitution where the person could “handle and benefit from” an end to confinement and the provision of habilitation and supports in a community placement. In addition, long term confinement, without effective periodic review of the justification for that confinement, is a due process violation.
For these individuals, institutionalization, as lived out in our times, is often a lifetime proposition. Institutional populations are aging on account of very low admissions and deaths. The few admissions since adoption in the 1970s of right to education laws and expansion of community services since that time have resulted in skewing the institutional census toward higher age groups. The institutions’ age groupings “reflect the aging of the US population but in an exaggerated way. E.g., in 1977, 22% were 40 years and older; 1987=33.3%; 1998=57.1%; 2006=72.1%.” By comparison to the institutionalized 72.1%, 45% of the United States population in 2006 were 40 years and older. Residence in an institution for people with intellectual disabilities often lasts decades and can be commitment for the life of the individual.
The Supreme Court has long recognized that civil confinement entails a “massive curtailment of liberty.” The only permissible justifications for committing the mentally disabled are: (1) danger to the individual, (2) danger to others, and (3) need for treatment. The Court enunciated the following principle in Jackson v. Indiana, striking down a state law that permitted the state to confine indefinitely a mentally deficient deaf mute adjudged incompetent to stand trial: “At the least, due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed.”
Jackson’s “nature, duration and purpose” criteria have become the touchstone (often unacknowledged) for the development of procedural and substantive due process, and for equal protection safeguards of the rights of the institutionalized. It is to those rights that I now turn.
B. Due Process
1. Procedural Due Process
A procedural due process violation occurs when one is deprived of a significant interest protected under the Constitution without appropriate procedures to protect against unfairness and error. This interest can arise either from the Constitution itself or from state law. Post-Olmstead decisions have not generally required periodic review in a formal sense. The model has been to require the institution to review and to “consider” each resident for possible placement.
A person confined in an institution who protests that confinement is entitled to a meaningful hearing—a periodic review—on the person’s continuing need for institutionalization. The need for commitment must be reviewed periodically by a neutral fact finder. In concluding that a woman confined for decades at a state institution for people with mental retardation had a procedural due process right to such reviews, the Third Circuit noted, “[t]he hearing tribunal must have the authority to afford relief.” Other courts agree. The review must not be pro forma and must not be biased toward the status quo. It has been held that, while Due Process does not require a judicial fact finder for periodic review of commitment of persons with intellectual disabilities, Equal Protection requires judicial periodic review of continuing need for institutionalization if people with mental illness receive such review.
2. Substantive Due Process
Until its indirect evisceration in the Supreme Court’s decisions in Youngberg v. Romeo (on Due Process) and Pennhurst State School and Hospital v. Halderman (on the Developmentally Disabled Assistance and Bill of Rights Act), “the concept of the least restrictive alternative—the idea that restrictivity of confinement can and must be calibrated and evaluated—ha[s] remained one of the core staples of mental disability law.” Youngberg focused on institutional treatment rights, and Pennhurst rejected a statutory community services right. There followed a line of cases in the mid-to-late 1980s rejecting the “least restrictive” basis for community services.
What has survived the disfavor of the least restrictive analysis, however, is robust law on other grounds. Two conceptual strands form the basis for the substantive due process right to treatment for the institutionalized. Although they are intertwined, they each have been considered to provide independent support for the right. The quid pro quo approach considers that the massive curtailment of liberty occasioned by involuntary civil institutionalization, for which criminal justice procedural safeguards are absent, cannot be justified unless the state gives to the institutionalized person something in exchange for the loss of liberty. That “something” is habilitation. The parens patriae approach is that due process is violated when the state fails to provide treatment to a person dependent on the state. There is no need for detailed analysis here of whether the right to treatment arises under the quid pro quo or the parens patriae theory.
The quid pro quo position finds support in the Supreme Court’s ruling in O’Connor v. Donaldson that “a State cannot constitutionally confine without more a non-dangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends.” Absent treatment (or whatever the Court meant by “more”), the deprivation of liberty is unjustified. Courts have applied this rationale to confinement of people with retardation.
Partaking of the parens patriae interest is the holding of Youngberg v. Romeo, and its progeny, that due process requires that an institution provide its residents with a minimal level of training or “habilitation.” In Youngberg, the Supreme Court concluded, first, that “[t]he mere fact that Romeo has been committed under proper procedures does not deprive him of all substantive liberty interests under the Fourteenth Amendment.” There are additional liberty interests and they require the State to provide minimally adequate or reasonable training to ensure safety and freedom from undue restraint.” The treatment interests are not “absolute.” Whether the constitutional rights have been violated must be determined by “balancing his liberty interests against the relevant state interests.”
These constitutional requirements are satisfied when there has been a “professional judgment” in determining what services and care should be provided to residents of state-run institutions. A violation of the professional judgment requirement may be shown in at least two ways:
a. Where no professional judgment has been exercised (including situations where a facility administrator ignores recommendations of professionals), and
b. Where the judgment made by a qualified professional was “such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment.”
The issue is “not whether the optimal course of treatment as determined by some experts was being followed” but whether professional judgment was exercised. Where professional judgment establishes that provision of minimally adequate treatment requires community services, an institutionalized person’s substantive due process rights are violated. Youngberg did not address institutional judgments favoring placement.
Youngberg requires balancing an institutionalized person’s liberty interests against the “relevant state interests”, which the Court identified not as budgetary or administrative but rather as the state’s interest in ensuring the exercise of professional judgment.
For many individuals with intellectual disabilities in public institutions, the judgment exercised by the institution’s professionals themselves is that the confinement is not necessary and that community services would be beneficial. Therefore, not surprisingly, Youngberg has been extended to embrace a due process right to community services.
On the other hand, some courts (mostly before Olmstead) have declared that residents of state institutions for people with mental retardation “have no right to community placement.” Virtually in the same breath, however, “no-right” courts have acknowledged that state decisions which deprive individuals of liberty, which result in their institutionalization, are subject to scrutiny under Youngberg and due process principles; confinement must be “rational.” We see in these decisions a profound judicial disquiet with a constitutional fabric which would uphold use of governmental power to involuntarily confine people when it is acknowledged that confinement is not justified by considerations of adequate care and treatment. In considering the Youngberg balance between a person’s liberty interests and the state’s interests, Olmstead’s recognition that the ADA forbids unjustified institutionalization must be placed in the balance.
C. Equal Protection
1. Introduction
The Equal Protection Clause of the Fourteenth Amendment requires that similarly situated individuals should be treated similarly. When state law or practice do not employ suspect classifications or impinge on fundamental rights, they are upheld when they are rationally related to a legitimate public purpose.
When the government acts on the basis of a suspect classification or affecting a fundamental interest, the traditional rational basis standard is abandoned in favor of what has been called “strict scrutiny.” Strict scrutiny admits of little or no presumption of validity of the challenged state action.
An intermediate level of scrutiny is afforded classifications involving “quasi-suspect” classes such as gender and illegitimacy. To withstand constitutional challenge, a classification disfavoring a quasi-suspect class must “serve important governmental objectives and must be substantially related to achievement of those objectives.”
I advance two arguments here. First, I propose that forcible and unnecessary institutionalization of people with intellectual disabilities is irrational and therefore unconstitutional under the traditional equal protection framework. Second, I conclude that a class definition for equal protection purposes narrower than all “the disabled” is subject to at least the intermediate degree of scrutiny. Rather than define the protected group as “the disabled” generically, one would focus on those among the disabled who are maximally deprived of liberty and who are a close fit to the “special condition” class described in footnote 4 of United States v. Carolene Products, and its “strict scrutiny” progeny. This approach would bring to bear the protections of the suspect or quasi-suspect class analysis on the discrimination inherent in institutionalization.
2. Needless Institutionalization Is Irrational
Freedom from segregation has long been recognized as an interest protected by the Equal Protection Clause. Where a state forcibly excludes, separates and segregates people with mental retardation from the rest of society, and where equivalent or superior care (and quality of life) is available in a non-segregated setting, a serious question arises whether such action is rationally related to a legitimate state interest.
Classifications impinging on fundamental rights have been invalidated as irrational. One of the rare instances in which the Supreme Court held that discrimination (not on the basis of gender or race) was irrational involved community living for individuals with retardation. Finding that a city’s zoning exclusion of a community home was irrational, the Court found a violation of equal protection. Similarly, it is not rational, or logical or humane, to compel institutional segregation where it is not necessary for the individual. One can demonstrate that, for each person in the institution, there is a “twin” living successfully in the community with equivalent disabilities. The institution for these individuals is definitively “separate but not equal.”
3. Institutionalized Individuals with Intellectual Disabilities Constitute a Quasi-suspect Class
The Supreme Court has not yet considered whether people with intellectual disabilities who are institutionalized constitute a suspect or quasi-suspect class under the Equal Protection Clause. Twice, the Court has dodged the issue; both occasions occurred after passage of the ADA. Perhaps the Court recognizes that post-ADA there is more to be said on the issue.
The majority opinion in Olmstead evidences a leaning toward the position I espouse here. Referencing the “unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life,” the Court cited two cases, one on racial classification and one on gender discrimination: Allen v. Wright and Los Angeles Dept. of Water and Power v. Manhart. Neither was an equal protection case; however, the comparison of the irrational stereotyping and stigmatization of institutionalized people with disabilities to treatment of race and gender discrimination is telling.
A number of commentators have argued with force that the ADA itself, with its Congressional findings echoing the well-known criteria in footnote four of United States v. Carolene Products, compels courts to employ a “strict scrutiny” or “compelling state interest” test. Such an argument would be reasonable. It is certainly within easy reach to find that, because “the mentally retarded still suffer from some discrimination that is not related to actual disabilities,” state action “must be reviewed under a level of scrutiny higher than the rational basis test.” For example, Michael Perlin in the immediate aftermath of Olmstead, urged that an ADA violation is per se a Fourteenth Amendment violation:
The law’s invocation of the full “sweep of congressional authority, including the power to enforce the Fourteenth Amendment” simply means that any violation of the ADA must be read in the same light as a violation of the Equal Protection Clause of the Constitution, guaranteeing, for the first time, that this core constitutional protection will finally be made available to persons with disabilities.
This view won wide support in the literature before the Supreme Court’s 2001 decision to the contrary in the Garrett case, discussed below.
There is no precedential obstacle to a conclusion that involuntarily institutionalized individuals with intellectual disabilities (a class narrower than simply “the disabled”) are a quasi-suspect class under the Equal Protection Clause, and that their confinement must be subject to heightened scrutiny. Where that confinement is unnecessary, and the person could benefit from community services, institutionalization – to use the test for analysis of quasi-suspect classifications – does not “serve important governmental objectives and [is not] substantially related to achievement of those objectives.”
In Board of Trustees of University of Alabama v. Garrett, a damages case by disabled state employees, the Court held that the Eleventh Amendment sovereign immunity protects the state from damages liability under Title 1 of the ADA. Relying on Cleburne v. Cleburne Living Center, Inc., the Court concluded that “the disabled” are not a quasi-suspect class under the Fourteenth Amendment. The petitioners in Garrett were a woman with breast cancer and a man with asthma. Cleburne’s rejection of a quasi-suspect class approach for “the large and amorphous class of the mentally retarded” was appealing to the Supreme Court in Garrett. The concern was that labeling the disabled a quasi-suspect class might support similar labeling of such generic groups as “the aging, the disabled, the mentally ill, and the infirm.” Garrett, 531 U.S. 356, 266, quoting Cleburne, 473 U.S. at 445–56.
Cleburne, however, did not simply reject the zoning rule at issue as if it were an irrational commercial regulation. The scrutiny was more intense than that under the traditional rational basis test. As Judge Posner in dissent observed in a case involving zoning regulation and churches, “But one has only to read a little further in the Cleburne opinion to realize that the Court was not treating the zoning discrimination at issue there as it would have treated a discrimination in the taxation of railroads or the zoning of bowling alleys.” Judge Posner wisely urges a deeper reading of the case:
We should follow what the Supreme Court does and not just what it says it is doing. The Court rejects a “sliding scale” approach to equal protection in words but occasionally accepts it in deeds. Cleburne instantiates though it does not articulate the proposition that discrimination against sensitive uses is to be given more careful, realistic, skeptical scrutiny by the courts than discrimination against purely commercial activities. Romer v. Evans, 517 U.S. 620, 634–35, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996); cf. Lawrence v. Texas, supra, 123 S.Ct. at 2482.
Indeed, a separate opinion in Cleburne joined by three of the Justices points out that the majority in fact employs, at the least, a “second order rational basis review,” not the traditional deferential test:
The Court holds the ordinance invalid on rational-basis grounds and disclaims that anything special, in the form of heightened scrutiny, is taking place. Yet Cleburne’s ordinance surely would be valid under the traditional rational-basis test applicable to economic and commercial regulation. In my view, it is important to articulate, as the Court does not, the facts and principles that justify subjecting this zoning ordinance to the searching review-the heightened scrutiny-that actually leads to its invalidation.... [T]he Court does not label its handiwork heightened scrutiny, and perhaps the method employed must hereafter be called ‘second order’ rational-basis review rather than ‘heightened scrutiny.’ But however labeled, the rational-basis test invoked today is most assuredly not the rational-basis test of Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955), Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522, 79 S.Ct. 437, 3 L.Ed.2d 480 (1959), and their progeny.
A proper and Cleburne-Garrett consistent rule would define as a quasi-suspect (if not suspect) class those who are institutionalized. These are individuals deprived of liberty, excluded from the community, and recognized as deserving of special protection both under general due process principles and the ADA’s integration mandate. This cabined definition answers Cleburne’s slippery slope concern that those in the general populace like the aging and infirm might be swept into a tight equal protection standard.
Cleburne’s disquiet with designating the amorphous class of “the disabled” a quasi-suspect or suspect class is warranted. “Although it is often expressed in medical or functional terms, “disability” is a social construct and therefore is assigned different meanings in different contexts.” For example, the 2000 United States Census uses a variety of definitions of disability, including sensory disability, physical disability, mental disability, self-care disability, “going-outside-the-home disability,” and employment disability. The ADA, the Fair Housing Act, the Rehabilitation Act, and laws distributing public benefits also have sui generis definitions of disability.
San Antonio Independent School District v. Rodriguez, the school financing case, finding no fundamental right to education and no suspect class, does not negate a right to treatment in the community. The Supreme Court made it quite clear in Rodriguez that, had there been an absolute deprivation of education, or had the class been defined in more explicit terms, the result could have been different. My argument is that institutionalization is close enough to an absolute deprivation, especially where it is shown that there is no necessity for the confinement. The limitations of the class definition proposed here render the discrimination fit for intense Fourteenth Amendment scrutiny.
4. Institutionalization Must Be Justified by a Compelling State Interest
Discriminatory institutionalization is prohibited by the Equal Protection Clause’s separate strand which subjects to searching judicial review state systems which systematically deprive individuals of fundamental rights. The Supreme Court has held that “any classification which serves to penalize the exercise of [a fundamental] right, unless shown to be necessary to promote a compelling governmental interest, is unconstitutional.” There is no doubt that there is a constitutional right to be free from unjustified institutionalization.
In Tennessee v. Lane, holding that Title II of the ADA is a valid exercise under the Fourteenth Amendment as applied to cases implicating the fundamental right of access to the courts, the Supreme Court observed that Title II of the ADA was enacted “against a backdrop of pervasive unequal treatment in the administration of state services and programs, including systematic deprivations of fundamental rights” and found that Title II addresses the deprivation of certain “basic constitutional guarantees, infringements of which are subject to more searching judicial review. “ Among the examples cited are cases involving institutional deprivation of liberty. The Lane reasoning applies with equal force to institutionalization. It is not subject to question, therefore, that needless institutionalization of people with intellectual disabilities, as proscribed by Olmstead on statutory grounds, is an exercise of state power which constitutionally must be justified by a compelling state interest.
D. Subsidiary Questions
There are two subsidiary questions which are distinct from the thesis of this article but which are often enmeshed with community services litigation under the ADA and the Constitution. These questions are alive at the periphery of the central issues discussed above. They have substance. It is important to acknowledge them.
1. Does the Right to Community Services Protect People Not (Yet) Institutionalized?
This article highlights the constitutional rights of people in institutions. There are many other individuals who, living at home or elsewhere, are on the cusp of institutionalization. They may require services if institutionalization is to be avoided. Post-Olmstead, these individuals are protected by the statute and, I suggest, by the Constitution.
Courts have held that the integration mandate applies equally to individuals already institutionalized and “at risk” of institutionalization. One court reached this conclusion on account of the absence of language in the statute and regulations “suggest[ing] that a plaintiff must currently be institutionalized to bring a claim under the ADA or Rehabilitation Act.” The Tenth Circuit reasoned that the integration mandate “would be meaningless if plaintiffs were required to segregate themselves by entering an institution before they could challenge an allegedly discriminatory law or policy that threatens to force them into segregated isolation.” Olmstead’s proscription of “unjustified isolation” is consistent with this approach.
There is authority that neither due process nor equal protection principles protect individuals living at home from government budget cuts resulting in reduction of their services. However, with an analysis informed by Olmstead, and a finely-tuned emphasis on the factual “at risk” question, the result of similar litigation has appropriately been different.
The rationale is straightforward and persuasive: restriction of the claim to those already institutionalized would force community plaintiffs to “choose between staying in the community without any services or entering an institution in order to receive services.” One need not be at the institution’s door to be at risk. The fragility of one’s situation in the community is sufficient.
2. Does the Right to Community Services Protect People Who Are “Voluntarily” Institutionalized?
There is support in the case law for the notion that voluntariness in the context of institutionalization of people with intellectual disabilities is an illusory concept, and that therefore there is no basis for treating them differently from those involuntarily civilly committed. Residents of state mental retardation facilities have generally not consented to their institutionalization. As one court explained:
First, the plaintiffs who are residents of the Grafton state school have not, in most cases, voluntarily consented to their confinement in any meaningful sense of the word “voluntary.” North Dakota Century Code, Chapter 25-04, allows for the admission of mentally deficient persons upon the application of a parent or guardian without the consent of the person involved. The statute in no way makes the consent of the person concerned a condition of admittance. Further, in the case of plaintiffs who are severely retarded, informed consent is not even possible. And even in the case of the plaintiffs who are capable of giving informed consent to admission, it may be questioned whether such consent is voluntary in light of pressures from family and the high cost and unavailability of alternative care.
Cases which superficially take the opposite position, that voluntary submission to state custody does not trigger constitutional protections, concur: “Indeed, even commitments formally labeled as “voluntary” may arguably amount to de facto deprivations of liberty from their inception.”
A reasonable framework is that adopted under the ADA in a recent decision. “The ADA’s preference for integrated settings is not consistent with a procedure in which remaining at STS is the default option for residents. The defendants cannot establish compliance with the integration mandate by showing that class members never requested community placement.”
Neither the lack of a request for placement, not nominal voluntary status, should be determinative of whether a person in an institution is eligible to be provided community services.
E. The Benefits of Recognition of the Constitutional Right to Community Services
Recognition of the constitutional right to community services described in this article would provide an “Olmstead Plus” footing for analysis of the rights of the institutionalized. There would be a reduction in reliance on other statutes. The force inherent in enforcement of civil rights under the Constitution would augment the attention to detail found in the ADA statute and regulations. Certain defenses would evaporate or be diminished.
States often assert some variation of 11th Amendment sovereign immunity in response to claims for expansion of community services under the ADA. Regardless of their validity, a constitutional basis for community services eviscerates the sovereign immunity defense. For legislation enacted under Congress’ spending power, the remedy for violation is generally not a private right of action, but an action by the federal government to terminate the funds provided to the state.
Internal deficiencies in Olmstead would be mitigated. The fundamental alteration defense would have less traction in the face of assertion of constitutional rights. An “effectively working plan” would need to satisfy standards for protection of fundamental constitutional rights, not simply statutory rights. The absence of guidance on standard of care in Olmstead is a gap which may now be filled by Youngberg-based integration case law supplemented by Olmstead’s “handle and benefit from” community services On another deficiency, the lack of guidance on the future of institutional care, one may look to recent case law which establishes that each resident must at least be considered for placement.
CONCLUSION
Challenges to institutionalization are high profile for understandable reasons including, for example, curtailment of liberty, high cost of services, deprivation of rights, a history of mistreatment and lack of care, and intensity of public and judicial scrutiny.
In Olmstead, the Supreme Court accepted the Nation’s conclusion that community services are superior to institutional services Institutional administrators generally agree that, with appropriate support, their residents could be well served in the community. This was the case for Pennhurst (decided in 1978) and for Southbury Training School (decided 30 years later in 2008). In many ways, this diminishing group is a “Moses generation.” Only a small proportion of people with intellectual disabilities live in institutions and the number has dropped significantly. Most of the residents entered the institution before the explosion of community services over the last several decades, and many have not, or will not, experience personally the fruition of that community service development.
This is a time to circle back to those constitutional principles on which the rights of people with disabilities were recognized decades ago. These principles both support the ADA’s integration mandate and mitigate the weaknesses of a purely ADA approach.
The involuntary institutionalization of people with intellectual disabilities is unconstitutional on due process and equal protection grounds where it is unjustified in the sense recognized in Olmstead, that is, when they can “handle and benefit from” community services based on professional assessment. Periodic review of each person’s need for institutionalization is required.
Restoration of the constitutional dimension to the conversation encourages reasoned discussion of both the opportunities and the deficits in the Olmstead statutory approach. Recognition of the constitutional right to community services is an opening to move further toward an end to unjustified institutionalization
Both the Constitution and the Americans with Disabilities Act advance the integration of people with disabilities in our society. The constitutional scholar Jacobus tenBroek urged “integrationalism.” He “called for the full and equal participation in society of persons with disabilities.” “Without that right, that policy, that world, it is not living.”
