Introduction
When federal district court Judge Carlton Reeves penned his opinion in U.S. v. Mississippi,Footnote 1 the case that seemed poised to overhaul Mississippi’s suffering mental health system, he began with the story of Ms. Melanie Worsham, a mental health patient, also a certified peer support specialist. Ms. Worsham works to help those like herself who suffer with lifelong serious mental illness (SMI) to “overcome the obstacles that might be getting in their way of living the life they want to live.” She also assists those with SMI by aiding in “navigating the system, to find resources, and then just being moral support.”Footnote 2
Explicitly, Judge Reeves’ Order portrayed Mississippi’s mental health system as one that looks good “[o]n paper,” but in reality “is hospital-centered and has major gaps in its community care.”Footnote 3 Unavailability of community resources for reintegration risks higher rates of re-institutionalization.Footnote 4 In his ruling, Judge Reeves found that Mississippi’s repeated practice of not integrating adults with SMI fully into the community violates the Americans with Disabilities Act (ADA).Footnote 5
Reeves’ ruling aligned with the spirit of Olmstead v. L.C. ex rel. Zimring,Footnote 6 the landmark case that classifies segregation of people with disabilities as discrimination.Footnote 7 Underlying this line of thinking is the proposition that with “reasonable accommodations,” people with disabilities can experience and enjoy normal community life.Footnote 8 Subsequently, Mississippi appealed to the Fifth Circuit Court of Appeals.Footnote 9 The Fifth Circuit heard oral arguments on the matter on October 5, 2022. Observers indicate the very conservative Fifth Circuit seems prepared to end federal judicial oversight of Mississippi’s mental health system.Footnote 10
Originally, the matter stemmed from a report issued by the United States Department of Justice (DOJ) in 2011Footnote 11 finding that Mississippi institutionalizes persons with mental disabilities unnecessarily, in violation of the ADA’s mandate for community integration.Footnote 12 The 2011 report resulted from years of investigation.Footnote 13 Following several years of failed negotiations, the DOJ filed suit against Mississippi in 2016. At the time Judge Reeves issued the ruling in 2019, the Fifth Circuit had not visited the issue. so he relied on authority from other jurisdictions. Ultimately, Judge Reeves approved a remedial order aimed at expanding access to community-based services and appointed a special monitor for oversight compliance.Footnote 14
Solicitor General for Mississippi, Mr. Scott Stewart, argued the DOJ overreached its authority.Footnote 15 He contended ADA suits could be brought only on behalf of individuals alleging discrimination based on mental disability, not by the Attorney General.Footnote 16 Title II of the ADA does not state expressly that the Attorney General can bring suits against local governments.Footnote 17 Yet, the DOJ has done so since effectuation of the ADA in 1992. Footnote 18 While the DOJ argued that Congress intended that the Attorney General be able to do so, neither party raised the argument in their initial briefs.Footnote 19 The Fifth Circuit made a special request that both sides respond to the question.Footnote 20
If the Fifth Circuit sides with Mississippi, it would create a circuit split, because the Eleventh Circuit Court of Appeals rejected that very same argument when brought by the State of Florida.Footnote 21 When Florida appealed the matter to the U.S. Supreme Court, it denied certiorari.Footnote 22 If confronted with a circuit split, the Court might be more inclined to address the issue.Footnote 23
Ironically, years ago, the Olmstead attorneys recognized the high Court’s propensity to resolve circuit splits but wanted to avoid that path, if possible. They believed having to argue against law established in a different circuit would complicate their chances of victory. Olmstead Attorney Teresa Wynn Roseborough said, “One of the things the Supreme Court likes to do is to have questions, particularly statutory questions, percolate in the courts of appeals so that, when it is deciding an issue, it can resolve a conflict, or at least have the benefit of many decisions and many points of view on similar questions to look at in making sure that it gets the law right.”Footnote 24
Here again, disability rights advocates find themselves again likely on the side of desiring avoidance of a circuit split. If the Supreme Court were to find that the Justice Department could not sue under Title II for a class of individuals with disabilities, it would be destructive for disability rights to include people with mental disabilities.Footnote 25 A clinical review of 154 Mississippians found that they could have avoided institutionalization or minimized their stay had they had “reasonable community-based resources.”Footnote 26 The DOJ’s enforcement mechanisms aim to ensure that they, as well as others with those needs, get those resources.Footnote 27
In examining this issue, this Article highlights the failure in Mississippi’s mental health system and how the use of the courts can be instrumental in expanding community-based access to services. Part I provides background on the Olmstead case and links it to the pending Mississippi litigation that aims to transform mental health services for Mississippians. Part II traces the statutory construction of the DOJ’s enforcement mechanism for Title II of the ADA. Part III tackles federalism concerns raised as an obstacle in accomplishing the DOJ’s objectives. Finally, Part IV speaks to how DOJ litigation aids in accomplishing the objectives of Olmstead’s vision. In other words, this piece will provide a roadmap of how the U.S. Supreme Court can possibly resolve a budding circuit split in a lawful manner that champions people with mental disabilities.
I. The Road from Olmstead to Mississippi: Legal Efforts to Revitalize Mississippi’s Crumbling Mental Health System
“If you can’t fly then run, if you can’t run then walk, if you can’t walk then crawl, but whatever you do you have to keep moving forward.” -Dr. Martin Luther King, Jr.Footnote 28
A. Civil Rights Victory of Monumental Proportion: A Review of the Landmark Olmstead Decision
So many advancements in the mental health movement seem to have evolved by way of a crawl, including the litigation that would broaden the path to community integration. The Atlanta Legal Aid Society brought the Olmstead case in 1995 on behalf of Ms. Elaine Wilson and Ms. Lois Curtis. Hospital staff said the status of both women warranted transfer to supportive community programs, but the women remained institutionalized for an extended period.Footnote 29 Both women’s histories revealed a pattern of multiple readmissions,Footnote 30 an indicator of weak community support services.
As the case remained in litigation, both Ms. Wilson and Ms. Clark secured community housing and began to thrive.Footnote 31 Still, the case continued as the larger issue remained viable.Footnote 32 After the court held the Georgia Department of Human Resources (DHR) violated the ADA’s integration mandate by segregating the women from the community long after professionals recommended release for community care, the DHR appealed to the nation’s highest court. Footnote 33 Upon examination, the Supreme Court found long-term continued confinement of the women to be discriminatory. Extended confinement perpetuated “unwarranted assumptions” about the inability of people with mental illness to participate fully in community life.Footnote 34 Writing for the majority, Justice Ruth Bader Ginsburg said, “[u]njustified isolation” equates with “discrimination based on disability.”Footnote 35
In making its decision, the Court considered the diminished quality of life longtime institutionalization perpetuates: truncating social life, inhibiting continued nurturing of familial bonds, stifling educational and professional growth, prohibiting economic advancement, and suffocating cultural enrichmentFootnote 36 . Experts labeled Olmstead the Brown v. Board of Education for people with disabilities.Footnote 37 Indeed, many mental health advocates modeled the movement for mental health disability rights on the civil rights movementFootnote 38 for racial equality.Footnote 39
B. A Closer Look at the Case at Issue: U.S. v. Mississippi
Given the impact that Brown aimed to have on states like Mississippi,Footnote 40 it seems appropriate that Mississippi would be a breeding ground for the push towards true community integration. In U.S. v. Mississippi, after an extended process, presiding Judge Reeves appointed a special master, Dr. Michael Hogan,Footnote 41 to assist the district court and the parties in reaching a satisfactory remedy.Footnote 42
After the parties failed to reach an agreement, the district court issued a remedial order in September of 2021 and appointed a monitor.Footnote 43 Likewise, it issued a partial stay pending appeal without objection from the DOJ.Footnote 44 Ultimately, the court aimed to facilitate a process that would make the state ADA compliant, which means it would make those offerings it had “on paper” a reality for those individuals needing the services.Footnote 45 The DMH offers community-based mental health services primarily through fourteen regional health centers the court found to be largely unavailable.Footnote 46 In addition to Programs of Assertive Community Training (PACT), some of the services the court emphasized included mobile crisis teams,Footnote 47 community support services,Footnote 48 peer support services,Footnote 49 supported employment,Footnote 50 and permanent supported housing.Footnote 51
Pursuant to DOJ-promulgated regulations, the state would be requiredo make reasonable accommodations unless doing so would “fundamentally alter” the state’s mental health system.Footnote 52 Congress directed the U.S. Attorney General to draft said regulations when it enacted the ADA.Footnote 53 The regulations require that public entities “‘make reasonable modifications’ to avoid ‘discrimination on the basis of disability.’”Footnote 54 Albeit, said alterations do not have to be made if they would “fundamentally alter” the nature of the entity’s programs.Footnote 55 The Olmstead Court provided some guidance as to what is meant by having a fundamental alteration that might constitute a defense to a discrimination claim: “In evaluating a State’s fundamental-alteration defense, the District Court must consider, in view of the resources available to the State, not only the cost of providing community-based care to the litigants, but also the range of services the State provides others with mental disabilities, and the State’s obligation to mete out those services equitably.”Footnote 56
Courts look at not only the cost of providing community-based care, in light of the resources available to a state, but also the spectrum of services provided to other individuals in the state with mental disabilities. A requested modification that impedes the objectives of a state’s programs fundamentally alters that program.Footnote 57 In the face of a fundamental alteration, a state would not have to make the modification requested.
According to the district court, the DOJ’s experts proved that Mississippi could reasonably accommodate community-based mental health services within the state’s existing mental health system.Footnote 58 The state needed only to address the identified deficiencies.Footnote 59 Therefore, the district court rejected Mississippi’s defense that making the changes would fundamentally alter the state’s mental health system.Footnote 60
C. On Defense: Arguments of the State of Mississippi
On appeal, Mississippi made three arguments. First, Mississippi contended the district court extended the protections of Olmstead erroneously, arguing Olmstead contemplated individual claims, not systemic claims. Mississippi’s argument did not account for the many individualized interviews conducted by clinical review experts that supported the aggregate data. Clinical experts gathered firsthand accounts of the experiences of individual mental health patients to include their number of hospitalizations and any experiences with community-based services.Footnote 61 Only then did they combine cumulative data.
Unfortunately, the data revealed stunning deficiencies. For example, discharge procedures on the whole proved to be woefully inadequate.Footnote 62 Hospitals consistently released patients without follow-up to connect them to local community services. Hospitals used failed discharge plans repeatedly.Footnote 63 In other words, they released the patient with a discharge plan that failed; then, they readmitted the patient and released them again with the very same discharge plan that failed them in the first place.
Second, Mississippi argued Olmstead claims must involve findings by the state’s own treatment professionals.Footnote 64 In Olmstead, it just so happened that the State of Georgia’s facilities held the two patients long after their own experts recommended them for community care.Footnote 65 That fact speaks to the particular circumstances of Olmstead but does not limit Olmstead’s broader holding, which denounces unjustified segregation of individuals with disabilities and provides a cause of action for such segregation.Footnote 66
Notwithstanding the state’s position, the text of Title II does not support its contention.Footnote 67 Olmstead did not say a state’s own mental health professionals could be the only ones to assess readiness for community care. Further, this argument may not be the strongest inasmuch as it would give the state the power to review its own decisions. The United States argued Mississippi wanted, inappropriately, “to make its own employees the sole, and unreviewable, judges of the State’s compliance with Title II’s integration mandate.”Footnote 68 Doing so may make a Title II challenge extremely difficult to bring as internal reviews might be biased.
Third, Mississippi argued Title II protects only individuals institutionalized currently. Footnote 69 However, this argument is not consistent with the DOJ’s guidelinesFootnote 70 or findings of other appeals courts.Footnote 71 Olmstead required that the state provide community-based care for individuals with disabilities if: (1) the placement is appropriate; (2) the “affected” person does not oppose the treatment; and (3) “the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others” who have similar disabilities.Footnote 72
Determining that the United States satisfied each of these elements, the district court found that Mississippi violated Title II.Footnote 73 In 2011, the DOJ issued regulations making it clear that “[i]ndividuals need not wait until the harm of institutionalization or segregation occurs or is imminent to bring Title II claims.”Footnote 74 Case law supports these contentions as well.Footnote 75 The district court resolved these three issues in favor of the plaintiffs, but the court of appeals opened an entirely new door.
Without prompting, in a letter to both counsels dated September 23, 2022,Footnote 76 the Fifth Circuit requested that counsel address at oral argument whether Title II of the ADA allows the United Sates to sue a state directly.Footnote 77 As best as can tell, it is an issue raised only once before: in a Title II ADA case in Florida.
II. A Giant Step Forward: Following the Statutory Construction of Title II
“If we fail to adapt, we fail to move forward.” John WoodenFootnote 78
A. Charting New Territory: U.S. v. Florida Raises a New Question
Since the inception of the ADA, the United States has brought suit under Title II.Footnote 79 It seems that states would have adapted by now, but Florida, like Mississippi, exemplifies the fact that some states have not. In U.S. v. Florida, the State of Florida administered services for children dealing “with complex medical needs.”Footnote 80 Complainants alleged disability discrimination contending Florida institutionalized children unnecessarily.Footnote 81 The DOJ investigated and found that Florida violated Title II.Footnote 82 At first, the DOJ solicited Florida’s voluntary compliance.Footnote 83 Failing in those efforts, the DOJ filed suit.Footnote 84
When Florida moved for judgment on the pleadings, the court denied the motion.Footnote 85 After a couple of years, and following case reassignment to a new judge, the court recalibrated and dismissed the United States from the case.Footnote 86 In effect, the court found that the Attorney General did not meet the classification of a “person” entitled to bring suit for remedies under the statutory scheme.Footnote 87 On review, the appeals court reversed. It held that not being classified as a “person” under the statute did not render the Attorney General incapable of suing. The appeals court relied on the cross-references among relevant statutes to demonstrate that the text, context, and history of the enforcement mechanisms provided by Title VI of the Civil Rights Act and the Rehabilitation Act, allowed for the filing of administrative complaints that could lead to enforcement suits by the Attorney General.Footnote 88
To be clear, Title II regulations provide that an individual who alleges discrimination “may file a complaint with … the appropriate agency.”Footnote 89 At that point, the agency investigates and seeks to get “voluntary compliance.”Footnote 90 If efforts fail, “the agency shall refer the matter to the Attorney General with a recommendation for appropriate action.”Footnote 91 Said action may include a lawsuit.Footnote 92
Apparently, Florida interpreted the Court of Appeals to indicate that the Attorney General met the classification of a “person” under the statutory scheme. If so, Florida misinterpreted the appeals court’s decision. Consistent with the holding of the Eleventh Circuit, the Attorney General is not a person under 42 U.S.C. Section 12133.Footnote 93 However, the Attorney General may bring suit on behalf of persons having experienced Title II-qualifying discrimination.Footnote 94
Indeed, the decision of the Florida district court stood alone in its determination. No other court had ever rendered a decision indicating that the Attorney General could not bring suit on behalf of a Title II claimant.Footnote 95 If a state or local government believes the Attorney General lacks the legal grounds to sue under Title II, that entity could move to dismiss a filed complaint or seek interlocutory review, as appropriate. The fact that no other appeals court decision on this issue exists indicates that either public entities do not question the Attorney General’s right to bring suit under Title II or that courts have determined that there is no substantial ground for a dispute on this particular issue.Footnote 96
B. Historical Context: Unquestioned DOJ Standing
Since the 1990 passage of the ADA, the Attorney General has brought “dozens” of Title II lawsuits “against public entities” and has settled many more without alert or interference.Footnote 97 The DOJ’s “Guidelines for Enforcement of Title VI” provides that a “possibility of court enforcement should not be rejected without consulting the [DOJ]” first.Footnote 98 Consistently, the DOJ has used litigation to enforce Title VI.Footnote 99 The Rehabilitation Act relies on the same enforcement procedures.Footnote 100 Thus, the DOJ uses Title VI to bring enforcement suits under the Rehabilitation Act.Footnote 101 Just as Title VI and the Rehabilitation Act use identical remedial measures, those same “remedies, procedures, and rights” remain available to individuals who allege discrimination under Title II.Footnote 102
Typically, courts hold that when Congress incorporates sections of a preexisting law into a new law it can be presumed that the legislative body has knowledge of the preestablished interpretation of the incorporated law.Footnote 103 Therefore, it can be assumed that the incorporated provisions from the preexisting law will be effectuated in much the same manner as it relates to its incorporation into the new law. The Title VI administrative enforcement scheme existed and was well established at the time of the enactment of Title II of the ADA.Footnote 104 Commonly, courts acknowledged that the DOJ could pursue enforcement actions under both Title VI and the Rehabilitation Act.Footnote 105 It makes sense that courts would think the same of Title II as the same remedial provisions were incorporated into Title II by reference.
Not only Section 12133 of the ADA but also Section 12134 supports a reading that Title II incorporates Title VI’s administrative complaint process, which culminates in a potential enforcement suit being filed by the Attorney General.Footnote 106 According to Section 12134, the Attorney General must “promulgate regulations” under Title II “consistent with” “coordination regulations”Footnote 107 of the Rehabilitation Act. Under the Rehabilitation Act, an agency may use any option afforded to it by law to bring about sufficient resolution of a matter to include use of the federal courts.Footnote 108 Allowing the Attorney General to bring an action in a court of law is a logical extension of the statutory text. The express statutory text of Title II directs the Attorney General to establish an administrative enforcement scheme “consistent” with that of Title VI.Footnote 109
C. Avoiding Narrowing the Path: Multiple Methods for a Cause of Action
If Title II did not allow suits by the Attorney General, individuals with disabilities would have only one plausible right—that is, the right to bring a private cause of action before the court themselves.Footnote 110 This approach could be severely limiting as some individuals may not have the means and resources to maintain litigation. This statement may be particularly true of those individuals with disabilities who have a fixed or relatively low income. The other option under Title VI, as well as under the Rehabilitation Act, involves filing administrative complaints with the appropriate agency.Footnote 111 These administrative complaints may lead to two outcomes.
First, an administrative complaint that leads to a finding of noncompliance might result in withdrawal of funding from an agency.Footnote 112 Second, an administrative complaint not resolved to the complainant’s satisfaction may be referred to the DOJ and be followed by suit brought by the Attorney General.Footnote 113 However, option one, which results in a withdrawal of federal funding, is not an option for public entities that do not receive federal funds.Footnote 114 In other words, if the entity does not receive federal funding to begin with, no federal funds can be taken away. As such, if the Attorney General cannot bring suit against those entities that do not receive federal funds, there would be no enforcement mechanism against those particular entities.Footnote 115 Having such a gap in its enforcement mechanism would defeat a significant purpose of Title II, which is to address noncompliance by these very entities. The committee reports from both the U.S. House of Representatives and the U.S. Senate suggest that Congress desires that the major enforcement mechanism for the federal government be a referral to the DOJ for the very purpose of the Attorney General being able to bring suit in federal district court.Footnote 116
Interestingly, Florida recognized that the Attorney General could bring suit under both Title VI and under the Rehabilitation Act but put forth arguments that the same could not be said of Title II. Florida turned its argument (that the United States is not a person) on the fact that the United States conceded to being the “only plaintiff” in the lawsuit.Footnote 117 The United States did not litigate the case on behalf of any individual plaintiff.Footnote 118 In response, the DOJ argued that, “[T]he fact that the persons whose administrative complaints instigated the process that culminated in this litigation are not plaintiffs does not mean that the suit will not ‘provide[]’ a ‘remed[y]’ for them.”Footnote 119 The DOJ’s complaint asked the court to require that the State of Florida cease discriminating against the victims.Footnote 120
If the DOJ obtains the desired result, the individuals who alleged discrimination would receive a remedy for the harm leveled against them. Further, they would do so without incurring the costs of litigation. In fact, the congressional record reflects the intent that the federal government should play a central role in enforcing the ADA on behalf of individuals with disabilities.Footnote 121 The DOJ analogized the situation to that of a Title VII complaint.Footnote 122 The enforcement scheme of Title VII allows individuals to file complaints of discrimination with the Equal Employment Opportunity Commission (EEOC).Footnote 123 Those complaints may result in lawsuits by the EEOC or the DOJ.Footnote 124 The EEOC, just as the Attorney General in this instance, can bring the suit in its own name.Footnote 125 It does not have to bring the suit in a representative capacity.Footnote 126 Still, the suits by the EEOC obtain appropriate relief for those individuals harmed by the discrimination.Footnote 127
If a person is denied the ability to have the Attorney General bring suit on his or her behalf, then that person loses access to the remedy guaranteed him or her by the text of the relevant statutes. Yet, Florida tried to make a series of arguments to suggest that no such authority exists under Title II.Footnote 128 The Eleventh Circuit rejected those arguments,Footnote 129 and later, the Supreme Court (properly) denied Florida’s petition for certiorari, declining to hear them further.Footnote 130 If the issue does ever arrive in front of the Supreme Court, it should reject these arguments as the Eleventh Circuit did.
III. Removing a Roadblock: Why Federalism is Not a Concern
“If you’re not moving forward, you’re falling back.” Sam WatersonFootnote 131
A. The Right to Sue: Why the Federal Government Can Sue a State
One interpretation of conservatism is being slower to change. Sometimes conservatism can be beneficial; at other times it can inhibit progress. Perhaps because the Eleventh Circuit is among the more conservative circuits,Footnote 132 just as the Fifth Circuit, it may not be surprising that Florida questioned how allowing the Attorney General to bring suit against a state impacts the constitutional balance between the national and state governments. These federalism concerns seem unmerited. Nonetheless, Florida argued that Congress needed to have made “a clear statement in Title II that it intended to ‘empower the federal executive to sue the States[]’ [and that such a presumption should not be made] without a clear statement because federal enforcement actions impose ‘considerable federalism costs,’ and such litigation is coercive.’”Footnote 133
Notwithstanding this argument, the DOJ asserted correctly that allowing the nation’s government to sue a state does no such altering.Footnote 134 Previously, the Supreme Court acknowledged that, “[I]n ratifying the Constitution the States consented to suits brought by…the Federal Government.”Footnote 135 No constitutional provision prevents the United States from suing an individual state.Footnote 136 “Statutes authorizing the United States to bring such suits are commonplace.”Footnote 137 In fact, several of the antidiscrimination statutes take this very approach.Footnote 138 Yet, Florida wanted the Supreme Court to review the issue in the absence of a circuit split.Footnote 139 Even though the Court has reviewed some issues addressing the division of power between states and the federal government, many of those cases involved the constitutionality of a federal statute.Footnote 140 Florida could not argue legitimately that the federal government could not sue a state.Footnote 141 It could put forth only an argument that the Attorney General cannot sue a state under Title II if it contends, as it did, that Title II must mention the Attorney General bringing suit expressly.Footnote 142 The DOJ called this question a “routine” one of “statutory interpretation.”Footnote 143 “[D]ecades long consensus in the lower courts” answered this question already.Footnote 144 Now, a potentially budding circuit split aims to erase this history.Footnote 145
B. Standing on Judicial Principles: Proper Adherence to the Law
Perhaps most particularly today’s Supreme Court is viewed as being “deeply skeptical of federal authority and willing to overturn long-standing precedents like Roe v. Wade.”Footnote 146 The Fifth Circuit, known also as “the most conservative appeals court in the country,”Footnote 147 is the path by which the Dobbs v. Jackson Women’s Health Center Footnote 148 case traveled to the U.S. Supreme Court. Dobbs is the case that overturned approximately fifty years of precedent by overruling Roe, the landmark case that used the right to privacy to grant women the right to elect an abortion up until the point of viability of the fetus.Footnote 149 Judge Reeves, the same judge who wrote the lower court’s decision in U.S. v. Mississippi,Footnote 150 wrote the lower court’s opinion in the Dobbs case, permanently enjoining the Mississippi law.Footnote 151 In that case, the Fifth Circuit did affirm the lower court unanimously.Footnote 152 The three-judge panel consisted of two RepublicanFootnote 153 appointees and one DemocraticFootnote 154 appointee.Footnote 155 Reportedly, the Dobbs attorneys sought initially to argue the case on the issue of viability but reverted subsequently to arguing that Roe should be overruled. “While the Court originally asked to hear Jackson Women’s Health arguments on a viability question, Mississippi changed course and argued … that Roe should be completely overturned, a change Justice Sotomayor lambasted during arguments.”Footnote 156 The change may have been in part as a result of the highest court’s then relatively new status with a 6-3 supermajority.Footnote 157 It is not necessarily uncommon for either conservatives or liberals to attempt to shape the law when they believe the composition of the court to be in their favor. It remains incumbent on the justices to ensure that they rule judiciously and in accordance with the principles of stare decisis and overrule in only those rare instances that warrant it. To be fair, the Dobbs Court contends that it acted in precisely such a manner and the courts cannot be subject to public whim.Footnote 158 However, in each and every case, the court must be sure to stand on solid footing in its legal analysis and reasoning. Otherwise, the public may lose confidence in its neutrality and it becomes another political wing of government.
From 2009 to 2016 alone, the DOJ brought forth at least 50 Title II cases, including the Mississippi suit.Footnote 159 The one appellate court that has examined the issue, the Eleventh Circuit Court of Appeals, ruled in the DOJ’s favor with seemingly concrete legal analysis.Footnote 160 If the Supreme Court were to decide differently, it would need to be sure that its reasoning is sound.
IV. Realizing the Vision: How Department of Justice Disability Litigation Advances Us Forward
“Set your goal and keep moving forward.” Georges St-PierreFootnote 161
In its essence, the community integration mandate is forward-looking, not backwards. Olmstead’s very clear goals envisioned a world of supports where people with disabilities live “full and meaningful lives in the community.”Footnote 162 Advocates believe “Olmstead’s promise is far from fully realized and requires robust enforcement efforts in order to achieve full implementation.”Footnote 163 Facilities may release patients but fail still to provide them with what they need to survive and thrive in the community. What method has been most successful in effectuating change? Litigation, specifically DOJ action under Title II.
Even in Georgia, the state of Olmstead’s origin, ADA violations required DOJ enforcement for compliance. Surprisingly, the state of Olmstead’s birth ranks fiftieth in access to care according to Mental Health America.Footnote 164 In early 2009, the Bush Administration DOJ and the State of Georgia entered into a settlement agreement designed to improve the state’s mental health system.Footnote 165 Then early in the Obama Administration, the DOJ committed to making Olmstead enforcement a “new priority.”Footnote 166 Shortly before the DOJ’s October 2010 settlement with Georgia, 14-year-old Sarah Crider, an institutionalized seventh grader, passed away from a detectible intestinal blockage.Footnote 167 The Atlanta Journal-Constitution featured Crider as one of 115 institutionalized mental health patients who passed under “questionable circumstances,” motivating DOJ involvement in Georgia as well as in six other states.Footnote 168
As advocates pushed, the DOJ joined them in asking the pertinent question: Who remained in institutions that could “thrive in a community-based setting?”Footnote 169 Then the DOJ filed briefs or joined lawsuits in approximately twenty states, but before settlement, litigation seemed inevitable.Footnote 170 “The hope was that litigation would transform Georgia’s nineteenth-century mental health system of confinement and segregation into a twenty-first-century community-based system of independence and opportunity for people with significant mental health disabilities.”Footnote 171 Critics said Georgia’s agreement to expend millions in psychiatric facilities propelled institutionalization and diverted funds from community mental health services.Footnote 172
Unexpectedly, Ms. Cynthia Wainscott, a mental health advocate, wrote a letter to a federal judge questioning the settlement.Footnote 173 The judge ordered briefing, withheld judicial approval of the settlement, and required that the parties meet with mental health advocates, and the litigation continued.Footnote 174 Extensive negotiations resulted in a second settlement consistent with Olmstead in which Georgia made an investment of more than $256 million for the expansion of crisis center.Footnote 175 The parties extended the agreement on May 18, 2016,Footnote 176 but failed compliance standards in 2018,Footnote 177 and in 2019.Footnote 178 Nevertheless, the settlement has been transformative despite its shortcomings. The improvements ushered by disability advocates demonstrated that Olmstead is most definitely more than litigation. Still, “[l]itigation has to be a key tool for carrying [the integration mandate] out. Without litigation, Georgia would not have invested hundreds of millions of new dollars in its mental health system, particularly during the recession.”Footnote 179 While litigation has limitations, “Olmstead litigation is essential to ensuring Americans with institution[al] … needs receive supports in the community.”Footnote 180 More specifically, the DOJ’s ability to bring suit under Title II is vital to fulfilling Olmstead’s vision. Clarence Sundram, a legal expert regarding community services and mental disabilities, said, “these lawsuits are time-consuming and expensive, and the Justice Department has the staff, expertise and resources to see them through.”Footnote 181 He said, “Many times private individuals will complain to the DOJ to invoke its assistance in these kinds of cases for precisely these reasons[.] So to rule that DOJ doesn’t have the authority could remove one very significant avenue of enforcing these laws.”Footnote 182
VI. Conclusion
When Judge Reeves wrote the opinion in U.S. v. Mississippi, he entitled its closing section “Moving Forward.”Footnote 183 He expressed a belief that the DMH had made good faith efforts that were, in some ways, “fruitless.”Footnote 184 He said, “Community-based services have only advanced alongside the United States’ integration and enforcement litigation.”Footnote 185 Because the statutory construction supports that the DOJ can file a Title II lawsuit, and no legitimate federalism issues arise, the DOJ should be able to continue to file suits legally under Title II. Doing so helps to advance the realization of Olmstead’s vision.
When Mississippi appealed the lower court’s ruling to the Fifth Circuit, peer support specialist Ms. Worsham wrote a letter to the Attorney General asking who exactly their attorneys represented.Footnote 186 “If our [R]epublic is predicated upon the notion that the government represents the People, it makes no sense to me that these attorneys are not representing the People whose lives are most impacted by the case.”Footnote 187 Worsham said that in some ways the state operated still as if it were in the days of the asylums.Footnote 188 Stated another way, it operates as if it is moving backwards. She suggested it would be more productive to act consistent with the DOJ’s enforcement efforts which would make positive changes while saving taxpayer dollars.Footnote 189 If so, it would be moving forward. Given the road map outlined in this discussion, what should the Supreme Court do if presented with the question of the Attorney General’s standing to file suit under Title II? Move forward.