Not in my backyard!

 Developmentally Disabled People Don’t Belong in the Community

The U.S. Department of Justice has taken a new position advising that states have no legal obligation to serve people with disabilities in the community.  This position upends a 27-year old Olmstead Supreme Court decision on the rights of people with disabilities.  That decision found that “states are required to provide community-based treatment for persons with mental disabilities” provided that certain conditions are met.  Both Section 504 of the Rehabilitation Act and the Americans with Disabilities Act “require states to treat mentally disabled patients in the most integrated setting appropriate to their needs”

The new position of the Department of Justice does not and cannot alter the law.  But it will certainly alter the way the federal government enforces those laws.  This decision alters the way the federal government has interpreted these laws for the last 50 years.  This change in policy is consistent with the transfer of the Office Civil Rights under the Department of Education to be moved to the Department of Justice.  Both have the effect of reducing the enforcement of the rights of people with disabilities.  The expectation is that the Justice Department and Health and Human Services will amend their regulations for enforcement of Section 504 and ADA to align with this new interpretation of the law.  States will feel free to return to the old institutionalization of people who are disabled.  

The American Association of People with Disabilities has warned, “the Office of Legal Counsel is incorrect in its interpretation and its assumptions about what Congress intended.  But the fact that their conclusion is unjustified and incorrect doesn’t change the fact that they will seek to use said interpretation to hurt disabled people, lock us away, end our autonomy over our lives, and in many cases, end our lives together”.

The feds can’t change the law. This opinion will change the enforcement of the law. How good are laws that are not enforced?  States would be advised to continue to obey the law.  Folks with disabilities have been put on notice that if the states don’t obey the law, they can’t look to their federal government for redress.