In New Jersey, Disability Rights New Jersey is suing to demand that the state deinstitutionalise almost 2,000 people with developmental disabilities. The advocacy group is arguing the suit on the grounds that the Supreme Court has ruled in favour of deinstitutionalising people with disabilities and allowing us to live in ‘the most integrated setting’ possible; i.e., that we have a right to community-based care. This was established in Olmstead v. L.C., a landmark case for disability rights. In 2009, on the 10th anniversary of the decision, President Obama actually launched an initiative to more actively enforce Olmstead.
This seems like an especially timely matter this week as ADAPT protests in Washington, DC. These protests have gotten essentially no coverage in the media or anywhere else, despite the fact that they deal with some very critical issues. Forcible institutionalisation still happens, it’s a serious problem, and we continue to fight for the right to live in our communities, among our friends and family. Housing discrimination is another major obstacle we encounter; Mia Mingus is documenting her search for accessible housing in Berkeley, widely regarded as a very disability friendly city, on Twitter, and the results are frustrating:
“Well, I mean, it’s not that many stairs. My grandmother’s handicapped and she can do it.”
“Does she really need to be able to get her wheelchair into the bathroom?”
“You’re helping her? Ha. You look like you can barely walk yourself.”
I regularly encounter pushback when it comes to the idea that we belong in our communities, not in institutions. Appealing to basic humanity doesn’t seem to work, and neither does pointing out the economics. It’s cheaper to provide community-based care than it is to warehouse people in institutions. Saying that needless institutionalisation is against the law doesn’t seem to have much of an impact either.
A similar case recently came up in Florida, where Michele Haddad sued for the right to community-based care and won. Haddad was backed by the Department of Justice, which has been cracking down on enforcement of Olmstead and fighting for the rights of people with disabilities in the United States to live in our own communities. When we talk about unnecessary institutionalisation and forced institutionalisation, cases like hers come to my mind; she was effectively told she had to live in an institution if she wanted to get care. So, yeah, she could have ‘chosen’ to do so, but this clearly would have been a false choice, and it was also against her expressed wishes.
So, what’s happening in New Jersey?
New Jersey is too broke to move 1,850 people with developmental disabilities out of institutions in the next five years, so a lawsuit demanding it do so should be dismissed, an attorney representing the state said [yesterday].
Oh. The cost argument comes up a lot when it comes to disability rights. Everything costs too much, whether it’s making a business accessible or providing people with community based care, even when people are provided with evidence to the contrary, like a demonstration that meeting legal obligations (and doing the right thing) will actually be lower cost than the system currently in use. People say it ‘costs too much’ and ‘maybe later’ and we are expected to wait, and we do, until we realise the money’s never coming.
“Every state says ‘we don’t have the money now,’” said Samuel Bagenstos, a deputy attorney general from the U.S. Justice’s Department’s civil rights division.
According to the department, he said, “It’s $70,000 cheaper to serve a person in the community’’ than in an institution. “The state would save money because they could close a wing, a floor, a building.’’
The DOJ is on the case, which is good, because making a federal case (literally!) out of these things is difficult without either deep pockets, or the backing of the federal government. The Civil Rights Division is supposed to represent the government’s interests in civil rights cases and it’s very exciting to see it taking a more active role in disability rights cases.
The story in New Jersey gets better, though. You see, the ‘we can’t pay for it’ defense was actually the second defense presented by the state in an attempt to get the suit thrown out. What was the first? I’m glad you asked.
…that the state cannot be sued and the 20-year-old disabilities act violates states’ rights and should be declared invalid.
This defense was thrown out, which is a very good thing, because we do not want the Americans with Disabilities Act being deemed invalid on the grounds that it violates states’ rights. That would be very, very bad. The ADA is one of the primary mechanisms of enforcement for disability rights in the United States and numerous gains we’ve made legally and socially hinge on this piece of legislation. By making it clear that the sovereign immunity defense won’t fly in this case, the judge also laid the groundwork for throwing out this defense if people try to use it in other states in the future.
The case in New Jersey will proceed to trial, despite the best efforts of the state. The only logical verdict seems clear to me and hopefully it will seem clear to the judge as well.