Important Recent Department of Justice Olmstead Brief

Last week, the U.S. Department of Justice filed a brief opposing a motion for preliminary injunction in Illinois League of Advocates for the Developmentally Disabled v. Quinn, a case in which the plaintiffs argue that Olmstead forbids the State of Illinois from closing institutions for people with developmental disabilities.  The DOJ brief takes the position that the plaintiffs are seeking to turn Olmstead on its head:

The State of Illinois currently plans to close two State Operated Developmental Centers (Jacksonville Developmental Center and the Murray Developmental Center) in fiscal year 2013 and shift resources towards expanding community based care. The Plaintiffs, who are the guardians of individuals residing in these institutions, are opposed to the closure of State Operated Developmental Centers (SODCs). The Plaintiffs argue that the ADA, an integration statute enacted to end the pervasive segregation of persons with disabilities, conveys a right to remain in a segregated institution, as opposed to a right to live in the community. See Plaintiffs’ Memorandum of Law in Support of their Motion for Preliminary Injunction, p. 19 (“Pls. Memorandum”). Nothing in the ADA or its regulations, the Supreme Court’s decision in Olmstead, or any other case law supports this interpretation of the ADA and its integration mandate. Rather, the inverse is true.

In Olmstead, the Supreme Court concluded that the unjustified institutionalization and isolation of persons with mental disabilities violates the ADA. 527 U.S. 581, 597 (1999). The Supreme Court reached this conclusion based upon two “evident judgments.” Id. at 600. First, the Court observed that “institutional 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.” Id. at 600. Second, the Court noted that “confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment.” Id. at 601.

Plaintiffs make much of Olmstead’s statement that there is no “federal requirement that community-based services be imposed upon those who do not desire them.” 527 U.S. at 602. However, to read that sentence in Olmstead as creating a right to institutionalization would turn the ADA and its integration mandate on its head and impermissibly create a new right under the ADA that was never intended by Congress. Gonzaga Univ. v. Doe, 536 U.S. 273, 283 (2002) (Congress must “unambiguously confer a right” to support a cause of action under §1983 or an implied right of action.) The ADA does not confer a right to remain in any given institution.