Disability Rights Nation Mar. 1-15

From Ragged Edge's D. R. Nation department Mar./Apr., 1999

Mayors, states support Georgia against integration NDY plans presence at March Kevorkian trial In the Supreme Court this spring Defending the ADA Integration Mandate Reporting by Jennifer Burnett Does the Americans with Disabilities Act require that states provide services in the community when "appropriate treatment and habilitation can also be provided to them in a State mental institution"? That is the question Georgia has asked the Supreme Court to consider in the appeal of a case known as Olmstead v. L. C. The Supreme Court will hear the case this spring. Its answer will have far-reaching implications for all people with disabilities, for it threatens the ADA integration rule. The lawsuit was brought by two Georgians several years ago, challenging their placement in a state psychiatric hospital. They said they should receive services in a community-based treatment program. In April 1998, "L.C." and "E.W." won their case in the Northern Georgia U. S. District Court against Tommy Olmstead, Georgia's Human Resources Commissioner. Georgia appealed; but again L.C. and E.W. won in the 11th Circuit. They're now living in the community because they won their cases--but Georgia in December was successful in getting the Supreme Court to hear an appeal of the 11th Circuit Court decision. Georgia is challenging what's known as the "integration mandate" of the ADA--its requirement that states "administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities." "This is the very core of the ADA; the foundation upon which the ADA is based. Without it, the ADA becomes a mere shell of what it is meant to be," says ADAPT. "For people locked away in nursing homes, state hospitals and other institutions, the integration mandate is perhaps their most potent claim to freedom." This is the first time the Supreme Court has agreed to hear a case on the integration mandate--but it's not the first time a state has appealed an ADA integration mandate decision to that body. A similar appeal occurred in the 1995 Helen L. v. DiDario. The Supreme Court, by declining to hear the case, let stand the lower court's decision in favor of Helen L. ADAPT believes the reason the Court took up the Olmstead case is that 22 states signed onto a "friend of the court" brief drafted by the Florida Attorney General supporting Georgia's petition to the Supreme Court (see following item). L.C. & E.W.'s lawsuit against Olmstead was based on the same argument that won Helen L. freedom in Pennsylvania. The Helen L. decision has been important in the effort to get states to offer services in the community. It's been cited more than 170 times in lawsuits across the nation. Now Helen L. could be overturned by the Supreme Court. "This could kill the integration mandate," said disability rights attorney Steve Gold, who argued the Helen L. lawsuit. He points out that this mandate does not assert a persons right to services. Instead, it claims that when a person qualifies for a state-administered program, the state's failure to provide those services in the most integrated setting appropriate to their needs violates the ADA. "This is not just about attendant services," said ADAPT's Bob Kafka, "This will affect integration in housing, transportation, employment. This decision will have a significant impact on our legal right to integration and independence." Court briefs filed Mayors, states support Georgia against integration The U.S. Conference of Mayors and the National League of Cities, along with a number of other state and local government associations, have filed a brief supporting Georgia in its case before the U.S. Supreme Court. This is the second friend-of-the-court brief to gain the attention of ADAPT activists, who have been working to get states to remove their names from a brief submitted to the Court a month earlier. The Mayors' brief is also signed by the National Conference of State Legislatures, the Council of State Governments, the National Governors' Association, the National Association of Counties, the International Municipal Lawyers Association and the International City/County Management Association. Pressure by activists in January caused a number of attorneys general to drop off a friend-of-the-court brief they had originally signed, which was submitted by Florida. Even Florida eventually dropped the brief; the lead role was assumed by Nevada, which remained on. As Ragged Edge went to press, Colorado, Hawaii, Indiana, Louisiana, Massachusetts, Minnesota, Mississippi, Montana, Nevada, South Carolina, Tennessee, Texas, Washington and Wyoming were still on the attorneys general brief. As we went to press, activists were concerned that in coming daysmore anti-rights amicus briefs would be filed. NDY plans presence at March Kevorkian trial "Only people with disabilities can stop Kevorkian now," says Not Dead Yet founder Diane Coleman as the group prepares its protest at Kevorkian's murder trial. As Ragged Edge went to press, the trial was scheduled to begin March 1, and NDY was working to raise funds to support travel and personal assistance expenses. The group said it was looking for activists from the Midwest "to be the voice of the national disability community at this critical trial." "NDY hopes to have a significant presence at the trial," says Coleman, "especially the first two or three days, and at the end, with some continuing presence throughout." NDY held a two-day sit-in at Oakland County (Michigan) Prosecutor David Gorcyca's office immediately following the Nov. 22 60 Minutes showing of the Kevorkian tape of the pathologist killing Thomas Youk. When the prosecutor charged Kevorkian with murder, NDY vowed to return for the trial. Says Coleman, "At the core of all these struggles is the question which society is asking itself: Would everyone else be better off without us? Since most others believe that the answer is a self-evident ƒyes,' that it would be better if we did not exist, then how can society justify allocating scarce resources to us?" "Most of Kevorkian's victims have been disabled, not terminal," says NDY. They say media doesn't report "the discrimination and oppression that drove each of them to despair." Kevorkian's last completed trial, in 1996, involved his assisted suicides of two disabled women--Marjorie Wantz, "with a type of pelvic pain for which no physical cause could be found," Coleman said, and Sherry Miller, who, said Coleman, "lost custody of her children when she got MS, whose husband left her, and who was ƒforced' to move in with her parents. "Neither was terminally ill, both were disabled, like about two-thirds of his victims¾¾people like us," says Coleman. "No careful exploration of alternatives and safeguards. No suicide intervention or support. No advocacy for child custody, provision of needed personal assistance services." "Our only chance to change this picture is that Not Dead Yet must be there again at the trial¾-in numbers too big to ignore," says Coleman "The whole world is watching what happens next." "We must be at the trial in numbers that cannot be ignored--the Wallace Spolars who fear being forced into a ƒrat-infested' nursing home, the Sherry Millers who lost a husband and custody of her children, the Roosevelt Dawsons, who never went home after their injuries. We must be there to tell the stories of his victims--our stories--and demand equal justice. In Kevorkian's previous trials we were absent, and jurors refused to convict. This is our Mississippi Burning, our Rodney King case." 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