The Potential Risks of Relying on Title Ii's Integration Mandate to Close Segregated Institutions
| Publication year | 2010 |
Georgia State University Law Review
Issue 3 Spring 2010
3-21-2012
The Potential Risks of Relying on Title II's Integration Mandate to Close Segregated Institutions
Steven Schwartz
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Recommended Citation
Schwartz, Steven (2009) "The Potential Risks of Relying on Title II's Integration Mandate to Close Segregated Institutions," Georgia State University Law Review: Vol. 26: Iss. 3, Article 11. Available at: http://digitalarchive.gsu.edu/gsulr/vol26/iss3/11
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THE POTENTIAL AND RISKS OF RELYING ON TITLE II'S INTEGRATION MANDATE TO CLOSE SEGREGATED INSTITUTIONS
Steven Schwartz*
Introduction
When President George Bush signed the Americans with Disabilities Act on July 26, 1990, some believed that it would mandate the end of segregated institutions for persons with disabilities. But only nine years later, when the Supreme Court interpreted the integration mandate of the ADA, it crushed those hopes with language explicitly recognizing an appropriate role for such institutions in a publicly-funded service system.1 A reactionary voice seized this statement and attempted to interpret it as a mandate to maintain all existing institutions. This parabolic evolution has left advocates from each end of the spectrum with a rather unconvincing claim that the integration mandate is relevant at all to the closure or maintenance of segregated facilities.
But a more nuanced argument may be crafted from the history, language, and pragmatic application of Title II's integration mandate. That argument depends on either an incremental approach to closure, or a skillful blend of administrative, legislative, and media advocacy to forge a determination to enforce the fundamental promise of the ADA.
* Executive Director, Center for Public Representation, with grateful assistance from LeElle Krompass, J.D., Harvard Law School.
1. See Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581,604-05 (1999).
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I. The Misperceived Promise of Title IPs Integration Mandate2
Scholars claimed and advocates hoped that Title IPs integration mandate would end the sordid history of segregation, and particularly its most visible vestige, institutions for persons with psychiatric, intellectual, and developmental disabilities. That claim was grounded in the legislative history and Congressional Findings of the ADA.
During the late 19th century and early 20th century, discrimination against persons with mental disabilities was the norm. Society accepted the pseudoscientific literature on the topic and, in conjunction with the new "science" of eugenics and the emergence of Social Darwinism, believed that the "feeble minded" were a "menace to society and civilization ... responsible for many, if not all, of our social problems."3 Segregation of such individuals was justified on the grounds that it was beneficial for both the community and the persons with mental disabilities themselves.4 Virtually every state institutionalized persons with disabilities, especially children, claiming that they were unsuitable for companionship, a blight on mankind, and whose mingling with society was a most baneful evil.5 Justice Marshall lamented that:
A regime of state-mandated segregation and degradation soon emerged that in its virulence and bigotry rivaled, and indeed paralleled, the worst excesses of Jim Crow. Massive custodial institutions were built to warehouse the retarded for life; the aim was to halt reproduction of the retarded and nearly extinguish their race. Retarded children were categorically excluded from
2. Much of this history, the import of the Findings, and the chronicle of segregation that animated the ADA is drawn from the many amici briefs filed in support of the Respondents in Olmstead.
3. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 461-^2 (1985) (Marshall, J., concurring in part and dissenting in part) (footnotes omitted).
4. See, e.g., C.S. Yoakum, Care of the Feeble-minded in Insane in Texas, bull. U. tex. 83 (Nov. 5, 1914) (describing the institutionalization and segregation of persons with disabilities as "consistent with a deep and abiding charity [that]... permits all to live under those circumstances best suited to make each useful and happy").
5. Timothy M. Cook, The Americans with Disabilities Act: The Move to Integration, 64 temple L. Rev. 393,400-01 (1991) (footnotes omitted) (quotation marks omitted).
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public schools, based on the false stereotype that all were ineducable and on the purported need to protect nonretarded children from them. State laws deemed the retarded unfit for citizenship.6
A radical change occurred in the decades that followed the end of racial segregation, a form of segregation that also was justified on the theory that the practice was beneficial for everyone involved. Rather than segregate persons with disabilities, professionals argued that "normalization"—living as part of a community, not outside it—was more respectful, more dignified, and more integrated for individuals with disabilities.7 Congress affirmed the shift of opinion among the professional community by passing the ADA, an attempt to officially erase the effects of the country's history of segregation and to chart a new, more humane course:
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 .... [T]he Nation's proper goals regarding individuals with disabilities [should include] assuring .. . independent living ... for such individuals.8
The legislative history of the ADA makes it unmistakably clear that Congress intended to end the segregation of persons with disabilities.9 Upon introducing the bill, the House Committee on
6. City of Cleburne, 413 U.S. at 462 (Marshall, J., concurring in part and dissenting in part) (citations omitted) (quotation marks omitted).
7. See, e.g., Bengt Nirje, The Normalization Principle and Its Human Management Implications, in President's Committee on Mental Retardation, Changing Patterns in Residential Services for the Mentally Retarded 179,186-87 (R. Kugel & W. Wolfensberger eds., 1969).
8. 42 U.S.C. § 12101(a)(2H8) (2006).
9. See H.R. Rep. No. 101-485(11]) (Judiciary Comm.), at 26 (1990) ("The Americans with Disabilities Act completes the circle begun in 1973 with respect to persons with disabilities by extending to them the same civil rights protections provided to women and minorities beginning in 1964. This year, 1990, is an historic one in the evolution of this nation's public policy towards persons with
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Education and Labor found that "[t]here is a compelling need to provide a clear and comprehensive national mandate for the elimination of discrimination and for the integration of persons with disabilities into the economic and social mainstream of American life."10 The Senate report accompanying the ADA relied heavily on a 1983 report by the United States Commission on Civil Rights entitled Accommodating the Spectrum of Individual Abilities}1 which noted that "segregation singles out handicapped people and separates them from the rest of society, frequently as a condition for receiving some service or benefit," and that "mental health and mental retardation institutions that house residents in almost complete isolation from the non-handicapped community are perhaps archetypal examples of segregation." Further, Senator Harkin, floor manager of the Senate debates and prime sponsor of the legislation, remarked as he closed debate in the Senate that:
Today, Congress opens the door to all Americans with disabilities .... [T]oday we say no to fear .... [W]e say no to ignorance, and ... we say no to prejudice. The ADA is, indeed, the 20th century Emancipation Proclamation for all persons with disabilities. Today, the U.S. Senate will say to all Americans that the days of segregation and inequality are over.13
The ADA directs the Attorney General to promulgate regulations to enforce the Act.14 Section 12182(b)(1)(B), entitled "Integrated Settings," requires that "[gjoods, services, facilities, privileges, advantages, and accommodations shall be afforded to an individual with a disability in the most integrated setting appropriate to the
disabilities. The ADA is a comprehensive piece of civil rights legislation which promises a new future; a future of inclusion and integration, and the end of exclusion and segregation.").
10. H.R. Rep. no. 101-485(11) (Educ. & Labor Comm.), at 50. (1990).
11. S. Rep. No. 116, 101st Cong., 1st Sess., at 6 (Aug. 30, 1989) ("[H]istorically, individuals with disabilities have been isolated and subjected to discrimination and such isolation and discrimination is still pervasive in our society.").
12. S. Comm. on Civil Rights, 98th Cong., accommodating the Spectrum of Individual Abilities 41 (Comm. Print 1983).
13. 136 cong. Rec. S9684-03, at 9688 (Jul. 13,1990).
14. 42U.S.C. § 12134(2006).
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needs of the individual."15 The Act defines "discrimination" as "segregating... in a way that adversely affects the opportunities or status of [a person] because of... disability."16
The Attorney General's Title II "integration regulation" provides that "a public entity shall administer services, programs and activities in the most integrated setting appropriate to the needs of qualified individuals...
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