Institution-closing litigation: who speaks for the disabled?

by Walter Olson on June 12, 2012

Institutional-reform litigation, of the sort that since the 1960s has reshaped public school, prison, and foster-care systems, commonly proceeds on the basis of a fiction that the “public-interest” lawyers bringing suit speak for whole classes of students, prisoners, or foster children, even if few in the represented class actually chose to retain them. Even more than in consumer or antitrust class actions over money, the assumption that all the members of the represented class have the same interests or preferences often turns out to be a heroic one. Consider the successful wave of litigation against states in which advocates seek closure of large residential facilities for retarded persons in favor of the alternative now considered most modern, services provided “in the community” in group houses, families or other settings. This litigation has been fueled by a 1999 Supreme Court decision (Olmstead v. L.C.) accepting the idea that providing institutionalized persons with the wrong services, or not enough of them, constitutes a form of unlawful discrimination under the Americans with Disabilities Act. The U.S. Department of Justice has gotten into the act, too, and is arm-twisting states into “Olmstead settlements.”

Trouble is, some families of persons resident in institutions strongly believe that they are doing well at the particular institutions they are at, where they may have access to (for example) loved caretakers and friends or knowledgeable specialists who would become unavailable on transfer to a community setting. Unfortunately for them, when the disabled-movement or legal-services attorneys and the state governments agree to settle the Olmstead lawsuits, among the terms of the agreement is often a commitment to close the existing large residential facilities. The families who value those facilities are typically not present in the negotiating room.

So now we are beginning to see litigation around the country in which families plead for their children’s placements to continue as they are, even though these placements have already been ruled (in litigation to which they were at most a notional party) to violate their children’s ADA “rights.” Naturally, courts are reluctant to reopen issues that the parties to litigation deem settled, nor is it always even clear that the parents have legal standing to challenge the closures. [William Choslovsky, Chicago Tribune; WaPo, WRIC, and Richmond Times-Dispatch on Virginia situation; New Jersey, Bagenstos and more on legal background; Alkon]