Looking Back at the Dissent in Olmstead

With the passing of Justice Antonin Scalia, I decided to take a look back the Olmstead case and where he stood on that landmark decision. Olmstead v. L.C., of course, is the case affirming the “integration mandate” of the ADA, finding that a patient who wants to leave a state hospital and is clinically appropriate for discharge, has a right to transition to less-restrictive services.

In Olmstead, Justice Scalia joined Justices Thomas and Chief Justice Rehnquist in dissent. The dissent contended that the ADA definition of “discrimination” should not include “institutional isolation of persons with disabilities” even though the ADA specifically says so in its “Congressional Findings” section. The dissent also said that unnecessary institutionalization should not be considered discrimination. Doing so, it said, is really a requirement that a person “receive the treatment he wishes to receive.” This sets a “standard of care” requirement which is, to the dissenters, federal overreach into state decision-making.

Reading this opinion today, it’s pretty clear that Justice Scalia and his two colleagues did not agree with the Congressional finding that unnecessary segregation constitutes discrimination, at least for individuals with disabilities. To my mind, an equivalent conclusion would be that it is not sex discrimination for a state Medicaid authority to require all pregnant women to live in isolated camps in order to receive medical care related to their pregnancy.

For those who follow Justice Scalia’s legal philosophy, his normally strict adherence to the wording of statutes seems to have been set aside in this case. The ADA clearly states that “institutional isolation of persons with disabilities” is discrimination, but the Justice did not take that at face value.

So what was really going on? I propose two main things. First, these three Justices didn’t like the federal government telling states what to do or not do. Oregon doesn’t like it either. In the recent Lane v. Brown case, Plaintiffs asked the District Court to apply the Olmstead finding to employment services. The state argued that doing this would set a “standard of care” for employment services rather protecting a civil right not to be segregated. Advocates for the state contended that the federal government was trying to take over its policy-making authority. The state did not win that argument, but Justice Scalia would have viewed it favorably.

Second, the dissent seems to say that if people with disabilities are too poor to buy their own services, they should take what they are given and, well, shut up. Here’s a quote from the opinion that says as much:

“Continued institutional treatment of persons who, though now deemed treatable in a community placement, must wait their turn for placement, does not establish that the denial of community placement occurred “by reason of” their disability. Rather, it establishes no more than the fact that petitioners have limited resources.”

While we mourn the passing of the colorful and influential Justice Scalia, we also hope for better ADA decisions from his successor.

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