Bill Burke Olmstead Presentation
Olmstead v. L.C. ("Olmstead") is a case which will live as long as the Americans With Disabilities Act ("ADA") survives, and perhaps longer. It is a fair measure of the rights of disabled Americans.
As with any landmark case, there is the holding of the Supreme Court, and the way governmental administrators have chosen to interpret it. While the Supreme Court has spoken, the issue is far from closed.
A Statutory Construction
While plaintiffs did allege Fourteenth Amendment due process violations below, no court decided them. Both the District Court and the Court of Appeals decided the case on ADA grounds alone. The Supreme Court's review was thereby limited to statutory issues.
Justice Ginsburg put it perfectly, speaking for the entire Court on this issue:
"This case, as it comes to us, presents no constitutional question...[I]t is a statute we are construing...".
But a statute may only be construed within the facts of a case. The Olmstead facts are surprising.
I. TWO DISABLED AMERICANS
In May, 1992, a disabled woman sought help from her state government. Suffering from mental retardation, she voluntarily entered the Georgia Regional Hospital at Atlanta. Diagnosed with schizophrenia, she was confined to the psychiatric ward for treatment.
Institutional care succeeded. In 1993, a medical diagnosis indicated that her psychiatric condition had stabilized. A "treatment team" at the hospital, including nonmedical personnel, recommended a community-based placement in Georgia. The state took no action for two more years. As of May, 1995, this is the story of lead plaintiff "L.C."
Another woman now appears. Also suffering from mental retardation, "E.W." was voluntarily admitted to the same hospital in February, 1995. Also diagnosed with a personality disorder, E.W. was confined to a psychiatric unit, as was L.C. E.W. was in the Georgia Regional Hospital in May, 1995.
At that time, the two women were in contrasting positions. Each had a dual diagnosis, of mental and physical disability. One, however, had a further diagnosis of stabilization, and a "treatment team" recommendation for community placement. The other had not been stabilized, and had no such recommendation. The litigation began, with L.C. as the sole plaintiff.
II. PROCEEDINGS BELOW
1. At the District Court
Because all courts did so, we focus only on L.C.'s ADA claims. She framed the ADA issue simply and starkly:
"...that [Georgia's] failure to place her in a community-based program, once her treating professionals determined that such placement was appropriate, violated... Title II of the ADA."
Her remedy was equally precise:
"...that [Georgia] place her in a community care residential program, and that she receive treatment with the ultimate goal of integrating her into the mainstream of society."
A few months after L.C. began the action, Georgia placed L.C. "in a community-based treatment program", as she had requested. Nevertheless, the litigation continued. The District Court ultimately ruled that Georgia's placement decision could always change, and concluded that the action was not moot.
E.W. monitored the L.C. litigation. At some point in 1996, her treating psychiatrist diagnosed "that she could [now] be treated appropriately in a community-based setting." E.W. waited, apparently confident that she was now in the same position as L.C. -- a diagnosis of mental retardation; a further current diagnosis of a personality disorder, and a recommended community placement.
Georgia faced a defense problem. As L.C. was now in a community placement, in accordance with the medical evidence to date, other grounds of defense had to be found. Georgia pleaded three:
(a) there was no discrimination by virtue of disability, within the meaning of the ADA (the "Nondiscrimination Defense");
(b) the true cause of L.C.'s retention in an institutional placement was inadequate, but excusable, governmental funding (the "Funding Defense");
(c) community placement of L.C. would constitute a "fundamental alteration" of Georgia's placement policy (the "Fundamental Alteration Defense").
We defer discussion of these defenses until their disposition at the Supreme Court. We simply note here that the District Court rejected all three, and granted partial summary judgment to L.C.
Nothing succeeds like success. After L.C. prevailed, E.W. now moved to intervene as a plaintiff under FRCP 24 seeking the same relief, correctly noting that she now had the same medical diagnosis and placement recommendation as L.C. She succeeded. She was also placed in a community-based program.
Throughout the rest of this litigation, each plaintiff continued the suit, even through each had received the relief requested in her complaint.
3. At the Court of Appeals
The District Court was substantially affirmed. Appellate dicta oscillated between flat condemnation of institutional placement and recognition of its propriety under a different factual pattern.
Given Georgia's placement concession, it was undisputed that a prima facie case of an ADA violation had been made out. Community placement had been recommended by treating professionals, and had not been provided. The burden fell on Georgia's affirmative defenses.
The Nondiscrimination Defense was clearly rejected by the Court of Appeals. The Funding Defense and the Fundamental Alternation Defense were blurred into one, and were partially accepted. As the Court of Appeals viewed Georgia's position, its duty to provide community placement was "not absolute", and was subject to a undue expense analysis as part of the ADA's "fundamental alteration" defense. A remand was ordered for proof of this defense (the "ADA Defense").
Rehearing en banc was denied by the Court of Appeals. The case then proceeded on two fronts: at the Supreme Court, in search of a writ of certiorari, and before the District Court, on remand under the ADA Defense.
4. Back at the District Court
The ADA Defense failed of proof before the District Court, which concluded that the annual cost of providing community placements for the two plaintiffs was not unreasonable when measured against Georgia's total mental health budget. Contending that the proper comparison under the ADA Defense should have been to all Georgia citizens desiring community care, rather than to the two plaintiffs alone, Georgia again appealed.
III. AT THE SUPREME COURT
1. Procedural paths not taken
Two procedural questions arose at this point. The Supreme Court is miserly in its grants of certiorari. Why was the writ granted when (a) the second appeal of the ADA Defense was pending at the Court of Appeals, or (b) Georgia had conceded that L.C. and E.W. had received community placement, the very relief they had requested?
We may never know. In his partial concurrence, Justice Stevens articulated the orthodox appellate practice rule: affirm the order directing further proceedings, and await the result of those proceedings. However, as he ruefully noted, "[T]here are not five votes for that disposition."
In a footnote, the opinion of the Court addressed the mootness issue. It endorsed the reasoning of both lower courts: that the placement problem could recur as to each plaintiff. As the opinions of the Court later revealed, some justices wished to address the scope of the ADA Defense; others wished to discuss the viability of Nondiscrimination Defense, and others, the propriety of institutional and community placements under the ADA.
What does matter is that at least four Justices wanted to hear the case, for whatever reason. Certiorari was granted:
"in view of the importance of the question presented to the States and affected individuals."
2. The Thomas dissent
Writing for three members of the Court, Justice Thomas voted to reverse the Court of Appeals upon Georgia's Nondiscrimination Defense. If discrimination occurred, he reasoned, it was not because of plaintiffs' disability. He also concluded:
"Temporary exclusion from community placement does not amount to ?discrimination', in the traditional sense of the word...".
As will be seen, a majority of the Court rejected this view of the ADA. They concluded that there must be some economic justification supporting "exclusion from community placement", even if "temporary".
3. Part II of the Kennedy concurrence
Justice Kennedy wrote a two-part concurrence in the judgment. We treat the second part here, in which Justice Kennedy wrote for himself alone.
Justice Kennedy wanted a broader record created. He sided with Justice Thomas on the concept of the Nondiscrimination Defense, but concluded that plaintiffs could possibly overcome the defense upon a more detailed record. At the same time, he also sympathized with Georgia's separate cost defense. In Part II of his concurrence, Justice Kennedy agreed strongly with both sides.
4. Outline of the remaining opinions
Because the remaining votes varied by segments of opinions, it will be helpful to break them down.
Justice Ginsburg wrote a four-part opinion. Three carried at least five votes, rendering them the opinion of the Court. Two are noncontroversial: Part I, describing plaintiffs' allegations and pertinent statutory and regulatory provisions, and Part II, summarizing prior proceedings. Parts III(A) and III(B), preceded by an introduction, and containing a reprise, will be separately discussed, below.
As previously noted, Justice Stevens preferred a simple affirmance to await the decision of the Court of Appeals upon remand. With no support for that view, he joined Parts I, II, and III(A) of Justice Ginsburg's opinion, concluding that "unjustified disparate treatment" constituted discrimination under the ADA, but permitting a "fundamental alteration" affirmative defense. Because this was Justice Ginsburg's view at Part III(A) of her opinion, that section became the opinion of the Court.
This brings us to Part I of Justice Kennedy's concurrence. Reflecting his passionate comments at oral argument, he wrote:
"It would be unreasonable, it would be a tragic event, then, were the [ADA] to be interpreted so that States had some incentive, for fear of litigation, to drive those in need of medical care and treatment out of appropriate [institutional] care and into [community] settings with too little assistance and supervision."
While recognizing the theoretical viability of Georgia's defenses, Justice Kennedy cautioned:
"...States may be pressured into attempting compliance on the cheap, placing marginal patents into integrated settings devoid of the services and attention necessary for their condition."
Justice Kennedy provided a talisman: medical judgment. Who better to decide where an individual should be properly placed? He reasoned:
"The opinion of a responsible treating physician in determining the appropriate conditions for treatment ought to be given the greatest of deference.
* * *
It is careful, and quite correct, to say that it is not ?the ADA's mission to drive States to move institutionalized patients into an inappropriate setting, such as a homeless shelter'...
* * *
It is of central importance, then, that courts apply today's decision with great deference to the medical decisions of the responsible, treating physicians...".
As will be seen, this is a sixth vote for Part III(A) and a fifth vote for Part III(B), of Justice Ginsburg's opinion. We turn now to that portion of her opinion.
IV. THE HOLDINGS OF THE COURT (PART III)
1. The Introduction
In a careful preface to Part III of her opinion, Justice Ginsburg framed its context: the proper scope of the rule-making effort of the Attorney General to implement Title II of the ADA. She traced two rules, with different effects. The first concluded that "unjustified placement or retention of persons in institutions" would not be permitted. The second permitted States to block changes which would "fundamentally alter" the structure of programs in place.
Justice Ginsburg announced an affirmance, "in substantial part", but on different routes:
"Unjustified isolation, we hold, is properly regarded as discrimination based on disability.
But we recognize, as well, the States' need to maintain a range of facilities for the care and treatment of persons with mental disabilities,
and the States' obligation to administer services with an even hand."
A "further holding" appears:
"[T]he Court of Appeals' remand instruction was unduly restrictive. In evaluating a State's fundamental alteration defense, the District Court must consider, in view of the resources available to the State, not only the cost of providing community-based care to the litigants, but also the range of services the State provides others with mental disabilities, and the State's obligation to mete out those services equitably."
Two issues were thus presented for further discussion, in the balance of Justice Ginsburg's opinion:
(A) "unjustified isolation" as a violation of the ADA;
(B) the proper scope of Georgia's "fundamental alteration" defense.
2. Isolation, justified and unjustified (Part III[A])
At Part III(A), the opinion of the Court emphatically rejected the dissent's view that no discrimination had occurred "by reason of" L.C.'s and E.W.'s disabilities, sharply noting: "The dissent is incorrect as a matter of precedent and logic." Deferring to the administrative expertise of the Department of Justice, the Court held that "undue" institutional placement violated the ADA. The following examples of "undue" were given:
(a) "no permissible reason";
(b) "without first making an individual[;] reasoned[;] professional judgment";
(c) "unnecessary segregation".
Reciting prior legislation, the Court found this consensus:
"[U]njustified institutional isolation of persons with disabilities is a form of discrimination...".
This consensus "reflects two evident judgments", concluded the Court. They were, paraphrased: (a) those "who can handle and benefit from community settings" should be placed there; (b) institutional placement "severely diminishes the everyday life activities of individuals".
The second "judgment" should be read in the light of the first. If a person cannot enjoy a community placement, the restrictions of an institution are medically necessary, as the Court carefully pointed out next:
"We emphasize that nothing in the ADA or its implementing regulations condones termination of institutional settings for persons unable to handle or benefit from community settings.
* * *
[T]he State generally may rely on the reasonable assessments of its own professionals in determining whether an individual meets the essential eligibility requirements for habilitation in a community-based program. Absent such qualification, it would be inappropriate to remove a plaintiff from the more restrictive setting."
The Court illustrated this conclusion with two citations: deference to "the reasonable medical judgments of public health officials", and this reminder:
"Nor is there any federal requirement that community-based treatment be imposed on patients who do not desire it."
Concluding this section of the opinion of the Court, Justice Ginsburg summarized the decisive facts under this analysis:
"...L.C. and E.W. [are] individuals ?qualified' for non-institutional care:
[a] The State's own professionals determined that community-based treatment would be appropriate for [them], and
[b] Neither woman opposed such treatment."
Conversely, with a medical judgment of institutional placement, or with consent to institutional placement, no community placement could be forced.
1. The authors participated in Olmstead at the Supreme Court, as counsel to the Voice of the Retarded ("VOR") as amicus curiae, together with 140 other organizations. One author attended the oral argument. VOR's brief was quoted at Point III(B) of the Court's opinion, 527 US at 605; 144 L. Ed. 2d at 561; 119 S. Ct. at 2189.
2. 527 US 581; 144 L. Ed. 2d 540; 119 S. Ct. 2176 (1999). Petitioner Tommy Olmstead was the Commissioner of Georgia's Department of Human Resources. Other Georgia health care officials were joined with Commissioner Olmstead as defendants in the Northern District of Georgia; as appellants before the United States Court of Appeals for the Eleventh Circuit, and as petitioners in the Supreme Court.
3. 42 USC ? 12131, et seq. Also involved were two regulations promulgated thereunder: the "reasonable modifications" provision, 28 CFR ? 35.130(b)(7), and the "integration regulation", 28 CFR ? 35.130(d).