The Olmstead Decision: the Road to Dignity and Freedom

• Publication year: 2010

Georgia State University Law Review

Volume 26 j 4

Issue 3 Spring 2010

3-21-2012

The Olmstead Decision: The Road to Dignity and Freedom

Sylvia B. Caley

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Recommended Citation

Caley, Sylvia B. (2009) "The Olmstead Decision: The Road to Dignity and Freedom," Georgia State University Law Review: Vol. 26: Iss. 3, Article 4.

Available at: http://digitalarchive.gsu.edu/gsulr/vol26/iss3/4

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THE OLMSTEAD DECISION: THE ROAD TO DIGNITY AND FREEDOM

Sylvia B. Caley* and Steven D. Caley¹

Introduction

The history of discrimination in Georgia against persons with mental disabilities is long and tragic. As early as 1845, the Georgia legislature established the first institution for segregation of the mentally disabled. It was described as the "Lunatic Asylum" for "lunatics" and "idiots," who could be discharged only upon having "recovered [their] senses."¹ The Georgia legislature passed additional legislation in 1868 in which it found that persons with mental disabilities were "either lunatics, idiots, epileptics, or demented inebriates" who should be segregated as "inmates" in a "lunatic asylum" as if they were common criminals.² Society's pernicious attitudes towards those with mental disabilities continued unabated in Georgia at the turn of the twentieth century when the Georgia legislature established the "Training School for Mental Defectives" for the segregation and confinement of those who "constitute[s] a menace to the happiness of himself or of others in the community" because they were mentally defective at birth or became "mentally defective" due to injury or accident.³ Not surprisingly, given the attitudes at the time, the state termed such segregated treatment of the mentally disabled as the state's "noblest charity."⁴

* Assistant Clinical Professor, Co-Associate Director, HeLP Legal Services Clinic, Georgia State University College of Law.

X Partner, Weissman, Nowack, Curry & Wilco, PC, lead counsel in Olmstead.

1. Lunatics Asylum, 1845 Ga. Laws 200, § 5,204 ("No lunatic or epileptic, who shall have recovered his senses so as to go abroad without offence or terror to others, shall be discharged from the asylum without suitable clothing....").

2. The Admission, Management and Discharge of Patients, 1868 Ga. Laws 268, § 1374, 268, 270 ("Persons who may become inmates of said Asylum are either lunatics, idiots, epileptics, or demented inebriates.").

3. Act Establishing Training School for Mental Defectives, 1919 Ga. Laws 377, § 3, at 379.

4. Journal of the House of Representatives of the State of Georgia, Oct. 23,1902, Gen. Assem., Reg. Sess., at 47 (1902).

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In 1985, Justice Marshall aptly described such legislation as a "regime of state-mandated segregation and degradation . . . that in its virulence and bigotry rivaled, and indeed paralleled, the worst excesses of Jim Crow."⁵ As noted by Justice Marshall, blatant discrimination and segregation against persons with mental disabilities continued throughout the United States during the 1900s. In 1973, the U. S. Congress passed the Rehabilitation Act⁶ in order to address this discrimination. As noted by the Congress during the passage of the Americans with Disabilities Act of 1990 (ADA),⁷ however, the Rehabilitation Act and other legislation constituted a "patchwork quilt in need of repair" with "holes in the fabric" and "serious gaps in coverage that leave persons with disabilities without adequate civil rights protections."⁸ The sad result was that persons with disabilities were "still too often shut out of the economic and social mainstream of American life."⁹ As Senator Lowell Weicker, the original sponsor of the ADA, stated during consideration of the ADA's passage: "Separate is not equal. It was not for blacks; it is not for the disabled."¹⁰ Senator Edward Kennedy likened segregation of persons with disabilities to an "American apartheid,"¹¹ and the Congress repeatedly invoked Brown v. Board of Education as a

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basis for prohibiting segregation based upon disability.

Deplorable Conditions Continue in Georgia

Shortly after Justice Marshall's opinion in the Cleburne case, in 1986, attorneys at the Atlanta Legal Aid Society established a mental

5. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 462 (1985) (Marshal, J., concurring and dissenting in part).

6. 29 U.S.C. § 794 (2000).

7. Americans with Disabilities Act of 1990, Pub. L. No. 101-336, 104 Stat. 327.

8. S. Rep. No. 101-116, at 19 (1989); H.R. Rep. No. 101-485, at 48 (1990), reprinted in 1990 U.S.C.C.A.N. 303,330.

9. Americans with Disabilities Act: Hearing Before the Subcomm. on the Handicapped of the S. Comm. on Labor and Human Resources, 101st Cong. 195 (1989) (statement of Richard L. Thornburgh, Att'y Gen. of the United States).

10. Id. at 215.

11. 135 CONG. REC. S4993, at 8514 (daily ed. May 9, 1989) (statement of Sen. Edward Kennedy).

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

13. H.R. Rep. NO. 101^t85, at 26 (1990), reprinted in 1990 U.S.C.C.A.N. 445,448-49.

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health law unit to address the systematic state-sponsored segregation and discrimination against persons with mental disabilities in Georgia. Susan C. Jamieson, the founder of that unit has described eloquently the deplorable conditions in Georgia's state-run institutions:

State psychiatric facilities are shocking places. After twenty years of visiting Georgia facilities, I am still shocked. I have...