WASHINGTON – Theo Braddy has been advocating for people with disabilities for decades. Being a C4 quadriplegic since he was 15, he understands that experience.
“Trying to live with a disability is like going through a maze,” said Braddy, executive director of the National Council on Independent Living.
The maze has gotten harder to navigate, he said, because of a push to make it easier for states to confine people with severe mental illness or mental disability in institutions.
The latest salvo in that fight came in a June 18 memo issued by the Department of Justice Office of Legal Counsel. The memo seeks to reinterpret a landmark 1999 Supreme Court ruling that compels states to provide community-based care when possible as an alternative to facility living.
That case, Olmstead v. L.C., involved two women with developmental disabilities and mental illness who were confined at a Georgia psychiatric hospital against their wishes and medical advice.
The ruling provided the foundation for a policy known as the integration mandate – a requirement that people with mental disabilities are housed in the “most integrated” setting possible.
The DOJ memo argues that is a misinterpretation of Olmstead, and that the Americans with Disabilities Act and other laws protecting the rights of people with disabilities don’t require states to move people with serious mental health problems out of institutions.
A group of six Republican-led states is arguing in federal court that the federal government lacks the authority to force states to avoid institutionalizing individuals with mental disabilities, and that the relevant provision, known as Section 504, is unconstitutional.
The DOJ memo largely mirrors the states‘ position. That’s a reversal from the Biden administration, which those states and others sued in 2022 over certain abortion regulations that hinged on Section 504.
Under the Trump administration’s stance, states would no longer be compelled to seek all possible alternatives to help those with mental disabilities live in the community rather than a care facility.
The backlash has been swift among disability rights advocates.
“Society has a long history of not wanting to see people with disabilities living in the community,” Braddy said. “Decisionmakers are taking us back to the ‘ugly laws’ … where it is better to institutionalize people with disabilities. Keep them out of sight, out of mind.”
The Civil Rights Act of 1964 banned discrimination on the basis of race, color, religion and national origin but made no mention of disabilities.
Until 1973, when President Richard Nixon signed the Rehabilitation Act of 1973, there was no comprehensive federal protection against discrimination on the basis of disability. Section 504 of that law changed all that.
“It was the first time we have … confirmation that people with disabilities actually have civil rights,” said Robyn Powell, a law professor at Stetson University who specializes in disability law.
For much of American history, it was seen as easier to institutionalize people with physical or mental disabilities than to allow them to live in the community with support, Braddy said. Americans with a wide range of disabilities were routinely confined to state-run institutions, including hospitals and almshouses.
Some cities had laws on the books forbidding people with physical disabilities and maladies from being seen in public, colloquially referred to as “ugly laws.”
The deinstitutionalization push dates to 1977, when advocates began a series of sit-ins over the government’s failure to enforce Section 504.
In K-12 education, 504 plans ensure extra time on tests or other accommodations for students with learning disabilities.
Section 504 states that regardless of a disability, a person cannot be “excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”
There’s no integration mandate. But that provision created the basis for many rights recognized by courts and the federal government.
After the sit-ins, the Carter administration issued long-overdue regulations regarding 504 implementation, and Congress amended the 1973 law to beef up enforcement.
All of those developments laid the groundwork for the Americans with Disabilities Act, which President George H.W. Bush signed in 1990.
The ADA codified protection against discrimination for disability and access to equal rights and opportunities.
In Olmstead, the court found that under Title II of the ADA, states can’t keep people like the two plaintiffs in institutions against their will, and that community-based services must be provided when appropriate “and the placement can be reasonably accommodated.”
“There is much that shows … that the integration mandate exists both in the ADA and also in the Rehabilitation Act,” Powell said.
In 2022, a group of 17 Republican states led by Texas sued the Biden administration, trying to chip away at Section 504. A number of states dropped out after the Trump administration reversed a Biden effort to add gender dysphoria to the list of disabilities covered by Section 504.
At last count, six states are still in court arguing that the federal government can’t force states to provide community-based services rather than institutionalization.
The litigation is pending in the Northern District of Texas.
Some disability advocates interpret the new DOJ memo as a move to give states more leeway, not to make institutionalization the norm.
“The DOJ letter, for lack of better terms, opens the door for states to reevaluate how they implement home and community-based services and what that looks like,” said Brandi Coon, executive director of the Arizona disability advocacy nonprofit Raising Voices Coalition.
Arizona has moved away from institutionalization for decades, she said. But given the patchwork of state laws, she added, the DOJ memo is a recognition that there is no one-size-fits-all solution.
She noted that institutionalization can cost four times more than services in a home or community-based setting, so states already have an incentive to avoid that when possible.
Nina Richtman, interim executive director of the Virginia-based nonprofit Treatment Advocacy Center, said the DOJ memo provides helpful guidance for states.
“In our view, the DOJ memo is a clarification of what Olmstead actually said and what it did not say,” she said by email.
She also said that there is a difference between justified and unjustified institutionalization that the memo helps to distinguish.
“The memo recognizes that there is an important difference between someone who can live in the community with support and someone whose severe mental illness requires hospital-level or other intensive treatment to stabilize before they can benefit from community-based care,” Richtman said.
The DOJ did not respond to interview requests.
Braddy called the memo “bad policy.”
“You cannot count on the Department of Justice anymore to fight these cases,” he said.
Many states – including many of those fighting the integration mandate in court – don’t have or don’t want to spend the money needed to provide ongoing support to disabled people, said Claudia Center, legal director at the California-based Disability Rights Education and Defense Fund.
“These states maybe didn’t have the structures in place to accommodate 504 as currently written, and so that’s why they’re pushing back,” Center said, though she called deinstitutionalization far more cost-effective.
“People are going to be integrated, participate in the community, which is what was intended by the ADA,” she said.
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