The Constitutional Right to Community Services

• Publication year: 2010

Georgia State University Law Review

Volume 26 . „

t •jc ■ Article ⁸

Issue 3 Spring 2010

3-21-2012

The Constitutional Right to Community Services

David Fergleger

Follow this and additional works at: http://digitalarchive.gsu.edu/gsulr Part of the Law Commons

Recommended Citation

Fergleger, David (2009) "The Constitutional Right to Community Services," Georgia State University Law Review: Vol. 26: Iss. 3, Article 8.

Available at: http://digitalarchive.gsu.edu/gsulr/vol26/iss3/8

This Article is brought to you for free and open access by the College of Law Publications at Digital Archive @ GSU. It has been accepted for inclusion in Georgia State University Law Review by an authorized administrator of Digital Archive @ GSU. For more information, please contact digitalarchive@gsu.edu.

THE CONSTITUTIONAL RIGHT TO COMMUNITY SERVICES

David Ferleger*

Introduction

"[TJnstitutional 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."¹

"Pennhurst provides confinement and isolation, the antithesis of habilitation."²

"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."³

Twenty-one years before the Supreme Court in Olmstead v. L.C. (Olmstead)⁴ 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

* University of Pennsylvania Law School, J.D., 1972. The author has a national litigation and consulting practice in disability law. He filed, litigated, and argued the Pennhurst case, discussed below. He was special master for a federal court for nine years in a case involving a state developmental disabilities institution, and was a court-appointed monitor in similar litigation.

1. Olmstead v. L.C., 527 U.S. 581, 600 (1999).

2. Halderman v. Pennhurst State Sch. & Hosp., 446 F. Supp. 1295, 1318 (E.D. Pa. 1978). For subsequent history, see infra note 5.

3. Halderman, 446 F. Supp. at 1318 (E.D. Pa. 1978).

4. Olmstead, 527 U.S. 581,587 (1999).

763

764 GEORGIA STATE UNIVERSITY LAW REVIEW [Vol. 26:3

institutionalized.⁵ 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.⁶ 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.⁷

5. Halderman, 446 F. Supp. at 1318 (E.D. Pa. 1978). The subsequent history of the case includes two Supreme Court decisions and numerous other rulings. See, e.g., Halderman v. Pennhurst State Sch. & Hosp., 465 U.S. 89 (1984); Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1 (1981); Halderman v. Pennhurst State Sch. & Hosp., 49 F.3d 939 (3rd Cir. 1995); Halderman v. Pennhurst State Sch. & Hosp., 901 F.2d 311 (3d Cir. 1990); Halderman v. Pennhurst State Sch. & Hosp., 707 F.2d 702 (3d Cir. 1983); Halderman v. Pennhurst State Sch. & Hosp., 673 F.2d 645 (3d Cir. 1982) (on remand); Halderman v. Pennhurst State Sch. & Hosp., 673 F.2d 628 (3d Cir. 1982); Halderman v. Pennhurst State Sch. & Hosp., 673 F.2d 647 (3d Cir. 1982); Halderman v. Pennhurst State Sch. & Hosp., 612 F.2d 84 (3d Cir. 1979); Halderman v. Pennhurst State Sch. & Hosp., 612 F.2d 84 (3d Cir. 1979) (affirmed in part and reversed in part); Halderman v. Pennhurst State Sch. & Hosp., 612 F.2d 131 (3d Cir. 1979); Halderman v. Pennhurst State Sch. & Hosp., 446 F. Supp. 1295 (E.D. Pa. 1977) (original trial court decision).

For first-hand analysis of the case, see generally David Ferleger & Patrice McGuire, Rights and Dignity: Congress, the Supreme Court, and People with Disabilities After Pennhurst, 5 W. NEW eng. L. rev. 327 (1983); David Ferleger, Anti-Institutionalization and the Supreme Court, 14 rutgers L. rev. 595 (1983); David Ferleger & Penelope A. Boyd, Anti-Institutionalization: The Promise of the Pennhurst Case, 31 stan. L. rev. 717 (1979); David Ferleger, The Right to Community Care for the Retarded, in Normalization, Social Integration and Community Services (Robert J. Flynn & Kathleen E. Nitsch, eds., 1980).

6. Judge Broderick interrogated witness after witness on the need for institutions: "Would you agree with the other witnesses I've heard that it is time to sound the death knell for institutions for the retarded?" Thus spoke United States District Judge Raymond J. Broderick in the sixth week of trial. These words—soon to be echoed emphatically in the court's unprecedented opinion—did not come easily. The judge had studied hard and learned well. He spent the early days of trial listening to and interrogating expert after expert to find out whether an institution was not in fact needed in the southeast corner of Pennsylvania to serve 400 people. The answer was no. For 350 people? No. One institution for the entire state? No. An institution for the most profoundly retarded with physical handicaps? Again, the answer was no. Even the superintendent of the institution told the court that there was no need to continue incarceration of the retarded at Pennhurst.

David Ferleger & Penelope A. Boyd, Anti-Institutionalization: The Promise of the Pennhurst Case, 31 Stan. L. Rev. 717, 718 (1979).

7. In adopting the ADA Congress recognized that "historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem," and that "individuals with disabilities continually encounter various forms of discrimination, including outright

2010] THE CONSTITUTIONAL RIGHT TO COMMUNITY SERVICES 765

Pennhurst foreshadowed the Supreme Court's identification in Olmstead v. L.C., of the profound negative impact of institutions on those confined⁸ and its holding that the ADA proscribes "[u]njustified isolation of individuals with disabilities."⁹

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.¹⁰ 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.¹¹ 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

13

Pennhurst, there was a federal statutory ground for the decision. The emergence of the "integration mandate" of the ADA, and the

intentional exclusion, . . . failure to make modifications to existing facilities and practices, . . . [and] segregation." 42 U.S.C. § 12101(a)(2), (5) (2006) (emphasis added).

8. The Court stated the following:

Recognition that unjustified institutional isolation of persons with disabilities is a form of discrimination reflects two evident judgments. First, 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, [citations omitted] Second, 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, [citation omitted] Dissimilar treatment correspondingly exists in this key respect: In order to 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, 527 U.S. at 600-01 (1999).

9. Olmstead, 527 U.S. at 582 (1999).

10. Judge Broderick made the comment to the author and in various speeches and interviews, always with the same confidence in the original constitutional grounding of his 1978 decision.

11. See supra note 5.

12. See E.g., martha MlNOW, making all the difference: inclusion, exclusion, and american Law 140-45 (1991); Samuel R. Bagenstos, Abolish the Integration Presumption? Not Yet, 156 U. Pa. L. Rev. 157 (2007).

13. See Olmstead, 527 U.S. 581 (1999). Contra Halderman v. Pennhurst State Sch. & Hosp., 446 F. Supp. 1295,1318 (E.D. Pa. 1978).

766 GEORGIA STATE UNIVERSITY LAW REVIEW [Vol. 26:3

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"¹⁴ 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...