Applying Lessons from the Evolution of Brown v. Board of Education to Olmstead: Moving from Gradualism to Immediate, Effective, and Comprehensive Integration

Publication year2010

Georgia State University Law Review

Volume 26 j 3

Issue 3 Spring 2010


Applying Lessons from the Evolution of Brown v. Board ofEducation to Olmstead: Moving from Gradualism to Immediate, Effective, and Comprehensive Integration

Charles R. Bliss

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Recommended Citation

Bliss, Charles R. (2009) "Applying Lessons from the Evolution of Brown v. Board of Education to Olmstead: Moving from Gradualism to Immediate, Effective, and Comprehensive Integration," Georgia State University Law Review: Vol. 26: Iss. 3, Article 3. Available at:

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Charles R. Bliss and C. Talley Wells*


In 1999, the United States Supreme Court issued a landmark desegregation decision.1 The segregation at issue in the Olmstead v. L.C. decision involved individuals with disabilities confined in state institutions. The Court recognized that isolating individuals with disabilities without justification is discrimination.3 Such confinement "severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment."4 Thus, the Court held that men and women confined in institutions had a qualified right to be integrated.5 Unfortunately, ten years after Olmstead, many men and women with disabilities throughout the country remain confined in institutions.

Olmstead has frequently been compared to Brown v. Board of Education? Both cases required integration of individuals who had historically suffered discrimination. After sweeping denunciations of the practice of discriminatory segregation, the Court in both cases

* The authors of this paper, Charles R. Bliss and C. Talley Wells, are both attorneys at the Atlanta Legal Aid Society, Inc. Mr. Bliss is currently the Director of Advocacy. Mr. Wells is the Director of the Mental Health and Disability Rights Project. Mr. Wells and Mr. Bliss regularly work on cases involving the ADA and the Olmstead decision. The authors also wish to thank Peter Shelton for his assistance with the research for this paper and David Webster and Sue Jamieson for their helpful ideas in reviewing and editing the paper.

1. Olmstead v. L.C, 527 U.S. 581 (1999).

2. Mat587.

3. 7rfat600.

4. Id. at 601.

5. Mat607.

6. Brown v. Bd. of Educ, 347 U.S. 483 (1954).



confronted difficulties in devising a remedy. In both cases, the end point, desegregation, was stated, but the practical form of the remedy needed to most effectively produce that result was less clear. In both cases, the remedy of desegregation involved changing huge public systems that had evolved over many decades. Both involved public investments in infrastructure, redeployment of public employees, and confronting entrenched attitudes opposing the required changes. This paper will suggest that the remedy process for desegregation of individuals in state institutions in many ways parallels the school desegregation process and that several lessons are available from that process.

We begin by describing the similar issues involved in the Olmstead and Brown cases. We then provide an overview of how the remedies in the two cases evolved. We conclude by suggesting how lessons from Brown can be applied to Olmstead remedies. Specifically, we recommend that gradualism should end. Courts enforcing Olmstead should move from requiring the development of plans with discretionary benchmarks and waiting lists and instead require immediate, effective and comprehensive integration of institutionalized individuals with the supports and services they need.

I. Similarities Between School Desegregation and Desegregation of Institutionalized Persons

The similarities between desegregation of schools and desegregation of people in institutions are striking. The difficulties of these tasks reflect the existence of both financial and attitudinal problems that must be overcome.

Both desegregation processes require overcoming entrenched attitudes. In the case of school desegregation, the attitudes to be overcome included straightforward racism. There was an expressed belief that African-American children would not be able to compete with white children and thus needed to be in different schools. Prejudices also face people in institutions. Some people feel uncomfortable with or apprehensive of them. Others believe that people with disabilities can better or more safely be served in


institutions. Where people did not want African-American children in their schools, similarly people sometimes do not want people with disabilities living in their neighborhoods. While it may seem hard to equate current attitudes allowing segregation of people with disabilities to long rejected attitudes supporting racial segregation, it is important to remember that those attitudes were once widely held.

In addition to overcoming attitudinal barriers, effective desegregation requires a large shift of resources. In the school desegregation context, the resource requirements were huge. African-American children were frequently sent to substandard schools with insufficient instructional materials. Desegregation often required construction of new school buildings and investment in materials. In addition, teachers had to be shifted to different locations. Student transportation often had to be provided to effect desegregation. Furthermore, there were people and institutions with an economic interest in preserving the status quo of separate school systems.

Large amounts of resources must also be made available to integrate institutionalized persons. States have built large institutions to segregate individuals with mental health and developmental disabilities. There often is no plausible use for these buildings when the residents are shifted to community placements. The community placements must often be developed as well. Personnel must be shifted from providing institutional care to providing care in community settings. Jobs are lost and different jobs are created to serve people in more integrated settings. The change in required structure and jobs is probably greater for integration of institutionalized persons than it was for school desegregation. Because large state institutions are the source of jobs and economic activity in small communities, there is often a political lobby to retain those institutions unrelated to any concern for the residents of the institutions. However, the scale of school desegregation was so vast that the economic resources involved were certainly larger overall.

In both Brown and Olmstead, the courts faced complex, sometimes intractable, interests opposing significant change. The challenge of providing the material resources to implement the required changes, while dealing with entrenched attitudes often opposed to those


changes, made developing and monitoring the remedy following Brown and Olmstead a complicated process.

II. Evolution of the Remedy in School Desegregation Cases

This part of the paper will outline the evolution of remedy components mandated in school desegregation cases.7 The evolution of the remedy occurred at different rates in different places, depending to some extent on the willingness of local authorities to follow the law, but common patterns emerged as the remedy developed.

A. Brown and Brown II

Brown was decided in 1954. By a vote of 9-0 the Supreme Court outlawed racial segregation in public schools.8 While providing an inspiring rejection of segregation, the Court was uncertain about the appropriate remedy: "because of the wide applicability of this decision, and because of the great variety of local conditions, the formulation of decrees in these cases presents problems of considerable complexity."9 The Court therefore requested briefing on the elements of relief in the Brown decision.10

In 1955, the Court issued a second Brown decision {Brown II) in which it still failed to provide specific guidance for how desegregation of schools should occur.11 After discussing the difficulties that desegregation would entail, the Court stated: "[T]he cases are remanded to the District Courts to take such proceedings and enter such orders and decrees consistent with this opinion as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these

7. We have looked principally at Supreme Court and Fourth and Fifth Circuit cases because that is where the majority of cases occurred. There is a smattering of cases from other circuits.

8. Brown, 347 U.S. at 495.

9. Id.

10. Id. at 495-96.

11. Brown v. Bd. of Educ. (Brown II), 349 U.S. 294 (1955).


cases."12 The Court provided no timetables or requirements. The lack of specificity of the remedy meant that the Court relied on the good faith of the defendants and the district courts to remedy the problem of segregation. Over the next twenty years, people throughout the country would learn that this approach was not sufficient.

B. Courts' Attempt to Circumscribe the Scope of Relief

An initial response to the Brown decisions was an attempt by lower courts to limit their scope and therefore circumscribe the needed remedy. The most frequently...

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