Olmstead's Promise and Cohousing's Potential
| Publication year | 2010 |
Georgia State University Law Review
3-21-2012
Olmstead's Promise and Cohousing's Potential
Carrie Griffin Basas
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Recommended Citation
Basas, Carrie Griffin (2009) "Olmstead's Promise and Cohousing's Potential," Georgia State University Law Review: Vol. 26: Iss. 3, Article 2.
Available at: http://digitalarchive.gsu.edu/gsulr/vol26/iss3/2
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OLMSTEAD'S PROMISE AND COHOUSING'S POTENTIAL
Carrie Griffin Basas*
Introduction
The Supreme Court's decision in Olmstead v. L.C., 527 U.S. 581 (1999), called for the deinstitutionalization and integration of people with disabilities in their communities. The Court clarified that Title II of the Americans with Disabilities Act (ADA) required that people with disabilities, whenever feasible and appropriate, no longer be shut away in nursing homes, state hospitals, and segregated schools to live as outcasts and pariahs.1 In the ten years since Olmstead, legal and social changes have been slow to happen. People with disabilities continue to live in state institutions and struggle for integration in their communities. The Community Choice Act2 and the Inclusive Home Design Act3 (or some version of it) are reintroduced each year with little fanfare and progress. News headlines are littered with stories about the abuse of people with disabilities in these facilities,
* J.D. Harvard, B.A. Swarthmore. Carrie Griffin Basas, Esq., is a Post-Graduate Research Fellow at Harvard Law School (2009-2010) and a Visiting Assistant Professor of Law at the University of North Carolina-Carolina School of Law (2010-2011). She has taught at Perm State University-Dickinson School of Law and the University of Tulsa College of Law. She would like to thank the symposium organizers, editors, and participants, as well as her research assistants, Jane Harris and Kenna Whelpley. This work would not have been possible without the enthusiasm and candor of the cohousing residents who gave so generously of their time and insights. Special thanks to Eleanor Smith, the director of Concrete Change, and a member of East Lake Commons who was gracious enough to offer the symposium attendees a tour of the community in Decatur, Georgia.
1. See generally Aldred H. Neufeldt, Empirical Dimensions of Discrimination Against Disabled People, 1 health & hum. Rts. 174 (1995) (exploring the treatment of people with disabilities as pariahs); Geneva Richardson, Autonomy, Guardianship, and Mental Disorder: One Problem, Two Solutions, 65 Mod. L. rev. 702, 703-04 (2002).
2. H.R. 1670, 111th Cong. (2009). The Community Choice Act was reintroduced on March 24, 2009, but it has not yet been passed.
3. H.R. 1408, 111th Cong. (2009). The Inclusive Home Design Act would require that all newly-built, federally-funded, single-family homes and townhomes meet four requirements: (1) include one accessible entrance; (2) have doorways on the main floor with minimum 32" passageways; (3) include one wheelchair-accessible bathroom on the main floor; and (4) place electric and climate controls at wheelchair-accessible heights. See Posting to Justice for All blog, Inclusive Home Design Act Introduced, http://jfactivist.typepad.com/jfectivist/2009/03/m^
(last visited July 1,2009).
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including the most recent fight club stories from Texas, in which youth with developmental disabilities were pitted against one another by staff members at a state-run institution and school.4 After the first fight club story broke, several others followed. The stream of similar narratives confirmed people's suspicions that state services were continuing to fail people with disabilities in significant ways.5
While the Olmstead decision may have heralded the spirit of the ADA, it did not set forward a plan or series of ideas for integration.6 To be fair, expecting policy plans and community strategies from case law may be asking too much from the Court. The independent living movement within disability rights has much to offer to this problem, however, as does the cohousing movement of environmentalism.7
Cohousing is a participatory form of housing, where residents collaborate in the design and governance of their communities.8
4. See Terri Langford & Matt Stiles, Slate Schools Aren't Strangers to Complaints, houston Chron. Online, Mar. 11, 2009, http://www.chron.com/disp/story.mpl/metropolitan/6306442.html (describing the investigation into the fight club at the Corpus Christi school and allegations of abuse of students with disabilities at other state schools).
5. The abuse of people with disabilities in institutional settings is not limited to Texas. Other states, such as Michigan, New Jersey, Ohio, and Maryland, all share similar narratives. See David Milne, Mentally Disabled People Still Find No Welcome Mat, 39 psychiatric news 22 (2004) (detailing the Michigan abuse cases); Matthew Dolan, Disabled Center's Closure Debated, balt. sun, Feb. 2, 2007 (describing a Maryland state-run institution as an "abomination"); Spencer Hunt & Debra Jasper, Abuse, Neglect Go Unpunished: Caregivers Accused of Hurting the Mentally Retarded Are Rarely Prosecuted, Cincinnati Enquirer, http://www.enquirer.com/mrdd/abuse_neglect.html (exploring the injustices of abuse in Ohio, chiefly how abusers are paid to leave state employment rather than prosecuted) (last visited Aug. 29, 2009); Susan K. Livio, Disabled Rights Group Sues N.J. to Get Report About Disabled Man's Alleged Abuse, N.J. real time news, July 22, 2009, http://www.nj.com/news/ index.ssf/2009/07/disability_rights_group_sues_t.html (discussing the downplaying of abuse in New Jersey).
6. See Anita Silvers & Michael Ashley Stein, Review: Disability and the Social Contract, 74 U. Chi. L. Rev. 1615, 1638 (2007) ("In the post-Olmstead world, courts are forced to consider the impact on a state's budget created by competing demands on available resources," and "this is especially anguishing").
7. See Katharine B. Silbaugh, Women's Place: Urban Planning, Housing Design, and Work-Family Balance, 76 fordham L. REV. 1797, 1800 (2007) (arguing that the modern neighborhood creates "structural impediments to equal citizenship" and that cohousing may be a solution).
8. In the National Council on Disability's 2003 analysis of the federal and state implementation of Olmstead, it recognized that the most successful states had involved advocates with disabilities in identifying people who did not need to be institutionalized and had also defined the most integrated setting as one that promoted community access and inclusion. Press Release, National Council on Disability, National Council on Disability Says Community-Based Services Work: Some States Receive High Marks (Aug. 19,2003), http://www.ncd.gov/newsroom/news/2003/r03-433.htm.
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These intentional communities can lead to neighborhoods where diversity is sought after and integrated into the plan, perceived limitations are offset by the collective's talents, personal strengths are shared, and private home ownership is made more affordable for everyone.9 In addition to alleviating the environmental, economic, and community impacts of sprawl in today's housing developments, the cohousing movement is dismantling people's senses of psychological isolation.
In this article, I will explore what the "smart growth" and "new urbanism" trends in the cohousing movement10 have to offer to the realization of Olmstead's continuing promise of community integration. Cohousing may offer people with different kinds of disabilities—from cognitive to physical—an attractive alternative to institutional life or alternative group homes by making the promise of affordable, autonomous home ownership possible.11 It also provides for a residential setting in which people can perform some of the tasks at which they excel (e.g., cleaning, cooking, shopping, babysitting) and trade off the tasks which they may not be able to do (e.g., driving, heavy-lifting, gardening, home repair) because of physical, mental, or economic limitations. Cohousing's emphasis on equal, participatory citizenship within the community, and the intentional construction of shared living spaces and shared lives, may
9. See James A. Kushner, Car-Free Housing Developments: Toward Sustainable Smart Growth and Urban Regeneration Through Car-Free Zoning, Car-Free Redevelopment, Pedestrian Improvement Districts, and New Urbanism, 23 U.C.L.A. J. ENVTL. L. & POL'Y 1,10 (2005) (emphasizing the financial appeal of cohousing-style arrangements for low-income and elderly residents).
10. The six most often cited tenets of cohousing are "participatory process, neighborhood design, common facilities, resident management, non-hierarchical structure and decision-making, and no shared community economy." Cohousing.org, What Are the 6 Defining Characteristics of Cohousing?, http://www.cohousing.org/six_characteristics (last visited July 1, 2009); see also Kathryn McCamant & Charles Durrett, Cohousing: A Contemporary Approach to Housing Ourselves (1988).
11. See Haya El Nasser, Seniors at Home in Cohousing, USA TODAY, May 4, 2009, available at http://www.usatoday.com/money/economy/housing/2009-05-03-co-housing_N.htm (discussing cohousing as an alternative to institutions for seniors).
12. Cohousing can create "new" kinds of families as well. See Rebecca M. Ginzburg, Note, Altering "Family ": Another Look at the Supreme Court's Narrow Protection of Families in Belle Terre, 83 B.U. L. REV. 875, 889 (2003) (explaining cohousing's allure for...
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