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“Forwards, Not Backwards”: How the U.S. Supreme Court May Save the Plight of Individuals with Mental Disabilities

Published online by Cambridge University Press:  12 February 2024

Angela Dixon
Angela Dixon*
Affiliation:
Mississippi College, Jackson, MS, USA
*
Email: angeladixon325@yahoo.com
Rights & Permissions [Opens in a new window]

Extract

When federal district court Judge Carlton Reeves penned his opinion in U.S. v. Mississippi,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.”2

Information

Type
Articles
Information
American Journal of Law & Medicine , Volume 49 , Issue 2-3 , July 2023 , pp. 234 - 249
Copyright
© 2024 The Author(s)

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.

References

1 United States v. Mississippi, 400 F. Supp. 3d 546 (S.D. Miss. 2019).

2 Id. at 548.

3 Id. at 549.

4 Id. at 555-64.

5 Id. at 575-76, 578-79.

6 Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999).

7 Id. at 582, 600.

8 See Mississippi, 400 F. Supp. at 550 n.3 (referencing Ariana Cernius, Enforcing the Americans with Disabilities Act for the “Invisibly Disabled”: Not a Handout, Just a Hand, 25 Geo. J. Poverty L. & Pol’y 35, 50 (2017) (citations omitted).

Not only are persons with disabilities ‘entitled to reasonable accommodations to a public entity’s services, programs, and activities, … it is discriminatory when an entity fails to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services.’

Id. (quotation marks and citations omitted).

9 See Brief of Defendant-Appellant, U.S. v. Mississippi, No. 3:16-CV-622-CWR-FKB (5th Cir. Jan. 10, 2022).

10 See Isabelle Taft, Federal Judges Appear Ready to End Court Oversight of Mississippi Mental Health Services, Miss. Today (Oct. 5, 2022), [perma.cc/FVX3-S3E7].

11 See Mississippi, 400 F. Supp. 3d at 551-52 (referencing Letter from Thomas E. Perez, Assistant Att’y Gen., U.S. Dep’t of Just. to Governor Haley R. Barbour, State of Miss. (Dec. 22, 2011), https://www.justice.gov/sites/default/files/crt/legacy/2012/01/26/miss_findletter_12-22-11.pdf [perma.cc/ZY79-3SCQ].

12 See id. at 551 n.4 (“Olmstead is noteworthy for its broad recognition of the rights of people institutionalized in congregate facilities to live and receive needed services and supports in the community. Critically, Olmstead endorsed the congressional finding in the ADA that institutionalization constituted discrimination.” (quoting Robert D. Dinerstein & Shira Wakschlag, Using the ADA’s “Integration Mandate” to Disrupt Mass Incarceration, 96 Denv. L. Rev. 917, 926 (2019)); see also Letter from Thomas E. Perez, Assistant Att’y Gen., U.S. Dep’t of Just. to Governor Haley R. Barbour, State of Miss. (Dec. 22, 2011).

13 Letter from Thomas E. Perez, Assistant Att’y Gen., U.S. Dep’t of Just. to Governor Haley R. Barbour, State of Miss. (Dec. 22, 2011), https://www.justice.gov/sites/default/files/crt/legacy/2012/01/26/miss_findletter_12-22-11.pdf [perma.cc/ZY79-3SCQ].

14 See Taft, supra note 10.

15 Id.

16 Id.

17 Id.

18 Id.

19 Id.

20 Letter from the U.S. Ct. of Appeals, Fifth Cir., to the U.S. Dep’t of Just., C.R. Div., Appellate Section, and the Miss. Att’y Gen.’s Off., USA v. Mississippi, No. 21-60772, USDC No. 3:16-cv-622 (Sept. 23, 2022) (referencing United States v. Florida, 938 F. 3d 1221 (11th Cir. 2019); United States v. Sec’y Fla. Agency for Healthcare Admin., 21 F. 4th 750 (11th Cir. 2011) (en banc)); see also Alexander v. Sandoval, 532 U.S. 276, 286 (2011).

21 See Taft, supra note 10.

22 Id.

23 Id.

24 Paul Lombardo et al., Reflecting on Olmstead: Representing Lois Curtis and Elaine Wilson, 40 J. Legal Med. 27, 35 (2020).

25 See Taft, supra note 10.

26 Id.

27 Id.

28 Martin Luther King, Jr., Quotable Quotes, Goodreads (last accessed Dec. 13, 2022), https://www.goodreads.com/author/quotes/23924.Martin_Luther_King_Jr_[perma.cc/ZGP2-GTJJ] (emphasis added).

29 See Olmstead, 527 U.S. at 581.

30 Id. at 593. The Court recognized that Wilson and Curtis experienced cyclical reinstitutionalization and that institutionalized treatment might be needed from time to time. The Court said: “Some individuals, like L.C. and E.W. in prior years, may need institutional care from time to time to stabilize acute psychiatric symptoms.” Id. at 584.

31 See Still Waiting…The Unfulfilled Promise of Olmsted: A Call to Action by the Bazelon Center for Mental Health Law on the 10th Anniversary of the Supreme Court’s Decision, Bazelon Ctr. for Mental Health L. (June 24, 2009), https://d252ac.a2cdn1.secureserver.net/wp-content/uploads/2017/01/Still-Waiting…The-Unfulfilled-Promise-of-Olmstead.pdf [perma.cc/69VB-J9FL].

32 According to Attorney Charlie Bliss, Georgia kept the issue “live-looking” so as to avoid mootness. Lombardo et al., supra note 24, at 43. Georgia opposed the litigants at every step. Id. Also, the women were “susceptible” to reinstitutionalization, keeping the issue relevant. Id.; see Olmstead, 527 U.S. at 593-94.

33 See generally Bazelon Ctr. for Mental Health L., supra note 31. Both women made the trip to Washington, D.C. to hear oral arguments. Ms. Wilson lived supervised in an apartment until her passing at age 53 in 2004. See id. For many years, Ms. Curtis lived at home, with supervision, in Metro Atlanta. She worked as a thriving artist and served as a disability rights advocate until her passing in November of 2022. See id.; Sam Roberts, Lois Curtis, Whose Lawsuit Secured Disability Rights, Dies at 55, N.Y. Times (Nov. 10, 2022), https://www.nytimes.com/2022/11/10/us/lois-curtis-dead.html#:~:text=Curtis%20died%20on%20Nov.,her%20aunt%20Shirley%20Traylor%20said. [perma.cc/LC2G-5YV8].

34 Olmstead, 527 U.S. at 583, 600.

35 Id. at 597.

36 Id. at 600-01.

37 Bazelon Ctr. for Mental Health L., supra note 31; Stacie Kershner & Susan Walker Goico, Olmstead at Twenty: The Past and Future of Community Integration: A Letter from the Guest Editors, 40 J. Legal Med. 1, 1 (2020); Samuel R. Bagenstos, Taking Choice Seriously in Olmstead Jurisprudence, 40 J. Legal Med. 5, 5-6 (2020).

38 See Laura L. Rovner, Disability, Equality, and Identity, 55 Ala. L. Rev. 1043, 1054-58 (2004) (discussing both similarities and dissimilarities between the disability rights movement and the Civil Rights Movement).

39 See Bazelon Ctr. for Mental Health L., supra note 31. Not unlike the Civil Rights Movement which delivered Brown, the disability rights movement for mental health has been a rocky road, both pre- and post-Olmstead. Coinciding with the height of the Civil Rights Movement, President John F. Kennedy urged a new approach nationally for mental health in 1963, signing the Community Mental Health Centers Act three weeks before his assassination. This Act “envisioned a nationwide network of innovative community programs to supplant the custodial isolation of state hospitals.” See id. at 4. While inpatient hospitalization fell from its height of 550,000 in 1955, overinvestment in late-stage crisis intervention in lieu of evidence-based approaches contributed to poor outcomes. Instead of continuing the path of innovation, a repeated cycle of “institutionalized segregation, recurrent hospitalizations, arrests, court involvement and homelessness[]—became routine for people with serious mental illnesses.” Id. Likewise, people living with mental illness may be transported to “unprepared families” or “transinstitutionalized” to other group settings such as nursing homes or homeless shelters—places where they may be subject to abuse. Id. Bright spots did emerge during the Carter Administration with President Carter’s commitment to advancing the cause of mental health, an issue championed by his wife, Rosalyn. President Carter created the 1978 President’s Commission on Mental Health. The Commission resulted in the codification of The Mental Health Systems Act of 1980. The law created a comprehensive relationship between the federal and state governments as it relates to approaching mental health services. Regressing, in 1981, Congress repealed the Act under the Reagan Administration. At that time the federal government placed mental health services under a block grant. A bright spot emerged again when President George H.W. Bush signed the ADA in 1990. Title II of the ADA prohibits discrimination on the basis of disability by public service programs. Olmstead was brought under Title II of the ADA. Initially, 26 states signed briefs arguing against federal court intervention in states’ operation of their mental health systems. By the end of the litigation, 19 states had withdrawn their signatures. The ruling in Olmstead represented a huge victory for the disability rights movement. Yet, implementation of Olmstead has been challenging. The same pattern of progressing forward, and seeming to move backwards, has persisted since the Court’s landmark ruling. See id. at 5-6.

40 On May 17, 1954, the decision in Brown overruled, effectively, the “separate but equal,” doctrine formalized in Plessy v. Ferguson. The Brown decision found racial segregation in schools to be unconstitutional in violation of the Equal Protection Clause of the Fourteenth Amendment. The ruling impacted twenty-one states with racially segregated schools directly, including a then very racially segregated Mississippi. See Jean Van Delinder, Brown v. Board of Education of Topeka: A Landmark Case Unresolved Fifty Years Later, Nat’l Archives: Prologue (Spring 2004), https://www.archives.gov/publications/prologue/2004/spring/brown-v-board-1.html#:~:text=On%20May%2017%2C%201954%2C%20the,schools%20in%20twenty%2Done%20states [perma.cc/EK8P-W3G2]; Charles C. Bolton, Mississippi’s School Equalization Program, 1945-1954: “A Last Gasp to Try to Maintain a Segregated Educational System,” 66 J.S. Hist. 781, 793 (2000).

41 Dr. Michael Hogan served as special master. Dr. Hogan had more than forty years of experience in mental health having led statewide mental health systems in New York, Connecticut, and Ohio. In 2002, President George W. Bush appointed Dr. Hogan chairperson of his Presidential Commission on Mental Health. In the instant matter, largely, Dr. Hogan adopted the state’s proposed framework for mental health services. Both Mississippi and the United States submitted their own proposed plans to Dr. Hogan. Dr. Hogan reconciled the two and submitted a remedial plan. Basically, Dr. Hogan accepted the state’s proposal as it related to services for delivery and adopted the United States’ proposal as to how to monitor those services. From there, the district court adopted Dr. Hogan’s proposed recommendations in full. Brief for the United States as Plaintiff-Appellee at 22-23, United States v. Mississippi, No. 21-60772 (5th Cir. Apr. 6, 2022).

42 Mississippi, No. 3:16-CV-622-CWR-FKB, at 60.

43 Brief for the Plaintiff-Appellee at 7, 22-23 United States v. Mississippi, No. 21-60772 (5th Cir. Apr. 6, 2022). In April of 2021, Mississippi submitted its report and claimed the case warranted no additional relief. Mississippi said it substantially complied with Title II having addressed the alleged violations or having committed to addressing any remaining violations. Its new DMH Executive Director, Ms. Wendy Bailey, submitted a three-and-a-half page declaration from the Department detailing improvements made since the initial opinion. The DOJ submitted its proposed remedial plan at or about the same time. See id. at 22-23.

44 Id. at 7.

45 Mississippi, No. 3:16-CV-622-CWR-FKB, at 2-3, 59-60.

46 Id. at 2, 16, 19-28, 51. Services offered by the DMH “on paper” include Programs of Assertive Community Training (PACT), which consists of teams comprised of either a community or peer support specialist, nurses, specialists on housing and employment, program coordinators, and therapists. Id. at 2, 17. According to the district court, the state did not make PACT widely available. PACT services were offered by eight teams that covered only fourteen of eighty-two counties. Id. 17-23.

47 The court said access to mobile crisis teams was quite “illusory” in many parts of the state, which lacked true access in part because of geographical distance. Id. at 23-24.

48 Community support services, or mobile support services, that include medication management and in-home supports were not provided sufficiently. Id. at 18, 25.

49 Peer support services, which were provided by certified specialists who had lived experience with mental illness, were “shockingly” low. Id. at 18, 25.

50 Supported employment, which helps with wage earning and integration maintenance, was “quite low” with approximately 257 individuals having received supported employment in 2018. Id. At 18, 25.

51 Permanent supportive housing to include locating affordable housing and providing negotiations with landlords was found to be “grossly underutilized” with only 400 individuals having benefited from the CHOICE housing program, with 2500 units needed. Id. at 26-27.

52 Id. at 5. Pursuant to 28 C.F.R. § 35.130(b)(7), public entities must “make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.” Id. The Attorney General drafted the regulations for the ADA. Id. Congress possessed the constitutional authority to grant the Attorney General to “promulgate the regulations under the ADA, and the Attorney General’s regulations [are] themselves within the strictures that Congress had laid down in passing the ADA[.]” Lombardo et al., supra note 24, at 35.

53 Olmstead, 527 U.S. at 581 (citing 42 U.S.C. § 12134(a)).

54 Id. at 581.

55 Id.

56 Id. at 597.

57 See id. at 605 (“To maintain a range of facilities and to administer services with an even hand, the State must have more leeway than the courts below understood the fundamental-alteration defense to allow.”).

58 See Brief for the United States as Plaintiff-Appellee at 46, United States v. Mississippi, No. 21-60772 (5th Cir. Apr. 6, 2022). The district court analyzed three modifications and determined they did not constitute fundamental alteration. The United States requested the following modifications: a statewide expansion of existing community mental health services, a system connecting individuals with SMI with those community-based services, and appropriate discharge planning to reduce readmissions. Id. Based on the testimony of a senior DMH official, the district court found the DMH had no Olmstead plan in place. Id. at 47. Ultimately, the court determined making the modifications would not be too costly. Id. at 47-49. On appeal, Mississippi dropped the cost-inequity argument. Id. at 49.

59 The United States argued that since the district court accepted Mississippi’s own plan, Mississippi should not be able to succeed on a “fundamentally alters” defense. Id. Additionally, Mississippi included PACT and crisis stabilization services in its Medicaid plan statewide, which the DOJ said should prevent Mississippi from availing on a “fundamentally alters” defense. Id.

60 Among other things, Mississippi argued financial costs would be too high, but its own witnesses disputed this contention. Id. at 52-53.

61 Mississippi, 400 F. Supp. 3d at 568-72.

62 For example, providers failed to give patients their medications when discharged leading to reinstitutionalization. Id. at 566.

63 Id. at 566.

64 Brief for United States as Plaintiff-Appellee at 35, Mississippi, No. 21-60772.

65 Id.

66 See Olmstead, 527 U.S. at 597.

67 See Title II, 42 U.S.C. § 12132.

68 Brief for United States as Plaintiff-Appellee at 37, Mississippi, No. 21-60772.

69 Id. at 31.

70 See Sahar Takshi, Home Sweet Home: The Problem with Cost-Neutrality for Older Americans Seeking Home- and Community-Based Services, 5 Admin. L. Rev. Accord 25, 35-36 (2019) (stating claimants do not have to be institutionalized currently to bring a Title II claim).

71 The United States pointed to several cases indicating the contrary. See Brief for United States as Plaintiff-Appellee at 37-38, Mississippi, No. 21-60772 (citing Davis v. Shah, 821 F.3d 231, 263 (2d Cir. 2016); Pashby v. Delia, 709 F.3d 307, 321-22 (4th Cir. 2013); Waskul v. Washtenaw City Cnty. Mental Health, 979 F. 3d 426, 460-61 (6th Cir. 2020); M.R. v. Dreyfus, 663 F.3d 1100, 1116-17 (9th Cir. 2011), amended by 697 F.3d 706 (9th Cir 2012); Fisher v. Oklahoma Health Care Auth., 335 F.3d 1175, 1181 (10th Cir. 2003)).

72 Olmstead, 527 U.S. at 607.

73 Mississippi, 400 F. Supp. 3d at 575-76.

74 Brief for United States as Plaintiff-Appellee at 41-42, Mississippi, No. 21-60772 (quoting U.S. Dep’t of Just., Statement of the Department of Justice on Enforcement of the Integration Mandate of Title II of the Americans with Disabilities Act and Olmstead, L.C. (2011), https://archive.ada.gov/olmstead/q&a_olmstead.htm [perma.cc/K8YC-JCVK] (last updated Feb. 25, 2020).

75 The 10th Circuit said that “protections of the integration mandate ‘would be meaningless if plaintiffs were required to segregate themselves by entering an [individual] institution before they could challenge an allegedly discriminatory law or policy that threatens to force them into segregated isolation.’” Brief for United States as Plaintiff-Appellee at 41, Mississippi, No. 21-60772 (quoting Fisher, 335 F.3d at 1181). “Nothing in the Olmstead decision supports a conclusion that institutionalization is a prerequisite to enforcement of the ADA integration requirements.” Id.

76 See Letter from the U.S. Ct. of Appeals, Fifth Cir., supra note 20.

77 See id.

78 John Wooden, AZQuotes, https://www.azquotes.com/quote/578071 [perma.cc/3ZJQ-8G2S] (last visited Dec. 13, 2022) (emphasis added).

79 See generally Kristi Bleyer, The Americans with Disabilities Act: Enforcement Mechanisms, 16 Mental & Physical Disability L. Rep. 347, 348 (1992) (describing the enforcement mechanisms available to the Department of Justice under Title II, shortly after the passage of the ADA and the corresponding rules in the CFR).

80 See United States v. Florida, 938 F.3d 1221, 1225 (11th Cir. 2019).

81 See id. at 1224.

82 See id. Title II provides that: “[n]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefit of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” Americans with Disabilities Act, 42 U.S.C. § 12132. The term “public entity” encapsulates “any State or local government,” to include “department[s], agenc[ies], or other instrumentalit[ies] of government.” Americans with Disabilities Act, 42 U.S.C. § 1213(1)(A)- (B).

83 See Florida, 938 F.3d at 1225.

84 See id. In 2013, the Department of Justice’s suit was consolidated with a class action complaint by a group of children who had similar claims. Id.

85 See id.

86 See id.

87 C.V. v. Dudek, 209 F.Supp.3d. 1279, 1284 (S.D. Fla. 2016), overruled by United States v. Florida, 938 F.3d 1221 (11th Cir. 2019). In dismissing the Department of Justice as a party to the case, the court reasoned that the Attorney General lacked standing to sue an entity under Title II. See C.V. v. Dudek, 209 F.Supp.3d at 1282. Eventually, the district court dismissed the children’s case as well. See Florida, 938 F.3d at 1225. The appeal to the Eleventh Circuit followed. Id.

88 See Florida, 938 F.3d at 1250. The Eleventh Circuit concluded that both the legislative history as well as the statute itself supported the position that the Attorney General could bring suit under Title II. The court said: “At the time Congress enacted the ADA, there had been a number of decisions from the Supreme Court and the circuits regarding the availability of an implied private right of action under Title VI and the Rehabilitation Act. If Congress only intended to create a private right of action under Title II, then its decision to cross-reference to § 505 of the Rehabilitation Act, which expressly incorporates Title VI, including its administrative enforcement scheme in § 602, would be mystifying, especially because it had directed the Attorney General to develop regulations that were to be consistent with Rehabilitation Act enforcement procedures that included Title VI enforcement. See 42 U.S.C. § 12134.” Id. at 1242.

89 See 28 C.F.R. § 35.170 (2021).

90 See 28 C.F.R. §§ 35.172 - 35.173 (2021).

91 See 28 C.F.R. § 35.174 (2021).

92 See Americans with Disabilities: Practice & Compliance Manual § 2:181 (last updated Feb. 2023), which reads in relevant part: The “Attorney General [has] standing to sue state[s] for violations of Title II []; Congress designated ‘remedies, procedures, and rights’ in [the] Rehabilitation Act, which in turn adopted Title VI of [the] Civil Rights Act, as enforcement provision for Title II, Title II used [the] remedial structure based on investigation of complaints, compliance reviews, negotiation to achieve voluntary compliance, and ultimately enforcement through ‘any other means authorized by law’ in event of noncompliance, and Congress was aware when it enacted [the] ADA that [the] Department of Justice had filed suit in federal court to enforce Title VI and Rehabilitation Act.” (referencing United States v. Florida, 938 F.3d 1221 (11th Cir. 2019).

93 See 42 U.S.C. §12133; Florida, 938 F.3d at 1227, 1248.

94 See id. at 1239. When cross-referencing the applicable statutes, the Attorney General may bring a lawsuit under Title II for a qualifying complainant. Title VI of the Civil Rights Act, 42 U.S.C. Section 12133, provides any person alleging discrimination with “the remedies, procedures, and rights” set out in the Rehabilitation Act and Title VI and includes the ability to file an administrative complaint that may result, when unresolved, in a suit brought by the Attorney General. See id.

95 Florida did not allege that the appeals court’s decision conflicted with any decision of another appeals court. In fact, the DOJ argued that no Court of Appeals had ever addressed the issue. Other than the district court below, which the Court of Appeals reversed, no other district court had made such a ruling. District courts that considered the question found that the Attorney General is authorized to bring suit to enforce Title II. See, e.g., United States v. Mississippi, No. 16-CV-622, 2019 WL 2092569, at *2-3 (S.D. Miss. May 13, 2019), appeal on other grounds pending, No. 21-60772 (5th Cir. filed Oct. 6, 2021); United States v. Harris County, No. 16-CV-2331, 2017 WL 7692396, at *1 (S.D. Tex. Apr. 26, 2017); United States v. Virginia, No. 12-CV-59, 2012 WL 13034148, at *3 (E.D. Va. June 5, 2012); Smith v. City of Philadelphia, 345 F. Supp. 2d 482, 489-90 (E.D. Pa. 2004); United States v. City & Cnty. of Denver, 927 F. Supp. 1396, 1399-400 (D. Colo. 1996); see also Pet. App. 52a-55a (citing cases); see also On Petition for a Writ of Certiorari to the United States Court of Appeals for the Eleventh Circuit, Brief for United States in Opposition at 20, Florida v. United States, 143 S. Ct. 89 (2022) (No. 21-1384), 2022 WL 3587764.

96 See Brief for United States in Opposition, supra note 95, at 23.

97 See id. at 9. The DOJ noted as well that even if Florida’s contentions were true, this case would not be an appropriate vehicle under which to bring suit as the complainant received Medicaid funds. Because the Medicaid program uses federal funds, the complainant would be able to bring suit under “materially identical substantive provisions of the Rehabilitation Act.” Even Florida conceded the latter point. Id.

98 Id. at 4-5 (citing Guidelines for the Enforcement of Title VI, Civil Rights Act of 1964, 31 Fed. Reg. 5277, 5292 (Apr. 2, 1966) (28 C.F.R. § 50.3(c)(I)(B)(1)) (emphasis omitted).

99 See Letter Responding to Questions at Oral Argument Pursuant to Federal Rule of Appellate Procedure 28(j) at 1-2, U.S v. Mississippi, No. 21-60772 (5th Cir. Oct. 17, 2022).

100 See Florida, 938 F.3d at 1221, 1228.

101 Id. at 1244.

102 Id. at 1244-45; see also 42 U.S.C. § 12133.

103 Brief for United States in Opposition, supra note 95, at 12 (first citing Lorillard v. Pans, 494 U.S. 575, 581 (1978); then citing Bragdon v. Abbott, 524 U.S. 624, 644-45 (1993)).

104 Id. at 11-12.

105 Id. at 12.

106 Id. at 12-13.

107 Id. The coordination regulations can be found in “Part 41 of Title 28, Code of Federal Regulations.” Id.; 42 U.S.C. § 12134(a)-(b).

108 Brief for United States in Opposition, supra note 95, at 12, n.3 (first citing United States v. Baylor Univ. Med. Ctr., 736 F.2d 1039, 1050 (5th Cir. 1984) (holding that with Rehabilitation Act, agency may use any legally authorized option, including use of federal courts), cert. denied, 469 U.S. 1189 (1985), then citing National Black Police Ass’n v. Velde, 712 F.2d 569, 575 (D.C. Cir. 1983) (holding that it is authorized by law for the Attorney General to bring an action against a recipient when a case is referred to the Attorney General under Title VI, 42 U.S.C. 2000d-1), cert denied, 466 U.S. 963 (1984)).

109 See Alison Tanchyk, An Eleventh Amendment Victory: The Eleventh Amendment vs. Title II of the ADA, 75 Temp. L. Rev. 675, 680 (2002). At least some critics and supporters alike seem to recognize the basic scheme of Title II. That is, “Title II incorporates the remedial scheme of the Rehabilitation Act, which in turn incorporates the remedial scheme of Title VI of the Civil Rights Act of 1964.” Id. at 680.

110 See John J. Coleman, III & Marcel L. Debruge, A Practitioner’s Introduction to ADA Title II, 45 Ala. L. Rev. 55 (1993). Coleman and Debruge contend that an aggrieved party can file a lawsuit under Title II and a prevailing party, other than the United States, can receive attorney’s fees. Id. at 93-94. The fact that Coleman and Debruge acknowledge that the United States can be a party under Title II supports the DOJ’s contention of common acceptance of U.S. standing under Title II. Id.

111 Florida, 938 F.3d at 1221, 1230.

112 Brief for United States in Opposition, supra note 95, at 13.

113 Id.

114 Id.

115 Id.

116 Id. at 14 (citing H.R. Rep. No. 485, 101st Cong., 2d Sess. Pt. 2, at 98 (1990) and S. Rep. No. 116, 101st Cong., 1st Sess. 57-58 (1989)).

117 Petition for Writ of Certiorari at 17-18, Florida v. United States, 143 S. Ct. 89 (2022) (No. 21-1384).

118 Brief for U.S. in Opposition, supra note 95, at 15.

119 Id. (citing 42 U.S.C. § 12133).

120 Id.

121 42 U.S.C. § 12101(b)(3).

122 Brief for U.S. in Opposition, supra note 95, at 16.

123 Id.

124 Id.

125 Id.

126 Id.

127 Id.

128 For example, Florida argued that both Title I and Title III of the ADA mentioned the Attorney General specifically, but Title II did not. To counter, the DOJ contended that mentioning the Attorney General in Title II would have been redundant. By cross-referencing Title VI and the Rehabilitation Act, both of which authorize suits by the Attorney General, Title II makes its enforcement mechanism clear. Just as Florida conceded, section 505 of the Rehabilitation Act makes no mention of the Attorney General, but the Attorney General has the authority to bring suit under that statute, nonetheless. The same holds true for Title II. See id. at 17-18.

129 See id.; Florida, 938 F.3d at 1221.

130 See Taft, supra note 10.

131 Sam Waterson, QuoteFancy, https://quotefancy.com/quote/1683231/Sam-Waterston-If-you-re-not-moving-forward-you-re-falling-back [perma.cc/5RZC-68MN] (last visited Dec. 13, 2022) (emphasis added).

132 Matthew Weber et al., Courting Change, Reuters (Jan. 14, 2021), https://fingfx.thomsonreuters.com/gfx/rngs/TRUMP-EFFECT-COURTS/010080E30TG/index.html [perma.cc/QFT5-TQRP].

133 See Florida, 938 F.3d at 1249.

134 Id. at 1249-50.

135 Id. at 1250 (citing Alden v. Maine, 527 U.S. 706, 755 (1999)); see, e.g., United States v. Mississippi, 380 U.S. 128, 140 (1995) (stating no “provision of the Constitution prevents or has ever been seriously supposed to prevent” a State from being sued “by the United states”) See Brief for U.S. in Opposition, supra note 95, at 18-19 (stating that a “suit by the United States against a State ‘does no violence to the inherent nature of sovereignty’”) (quoting United States v. Texas, 143 U.S. 621, 645-46 (1892)).

136 The Eleventh Circuit made its position clear when it examined the issue. It said that Congress made express inclusion of “any State or local government,” or “any department, agency, special purpose district, or other instrumentality of a State or States or local government …” in its definition of “public entities” under Title II. See 42 U.S.C. § 12131(1)(A)–(B). It noted that Florida has been a state since 1845 which means it fits the statutory characterization directly. The court said, “Florida may have valid complaints about this lawsuit, but whether it is amenable to suit by the United States is not one of them.” See Florida, 938 F.3d at 1250]

137 Brief for U.S. in Opposition, supra note 95, at 19.

138 These statutes include, but may not necessarily be limited to, Title VI and the Rehabilitation Act as well as Title VII, see 42 U.S.C. § 2000e-5(f)(1); also, it includes Title I of the ADA, 42 U.S.C. § 12112(a), 42 U.S.C. § 12117(a); see 42 U.S.C. § 12111(2), (5); and the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc-2(f). The Supreme Court has at no time indicated any of these statues are subject to a “clear-statement” rule. See Brief For U.S. in Opposition, supra note 95, at 19.

139 Brief for U.S. in Opposition, supra note 95, at 21.

140 Id.

141 Id.

142 Id.

143 Id.

144 Id.

145 Florida argued that Title II suits brought by the Attorney General intrude on states’ sovereignty. To the contrary, as the case law permits, private individuals may bring suit either on their own or via class action lawsuits under Title II. Id. (referencing Olmstead v. L. C., 527 U. S. 587, 607; see also Fed. R. Civ. P. 23. See id.

146 See Taft, supra note 10. See generally Roe v. Wade, 410 U.S. 113 (1973).

147 Taft, supra note 10.

148 See generally Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022).

149 Roe, 410 U.S. at 153, 164-65.

150 See generally U.S. v. Mississippi, 400 F. Supp. 3d 546 (S.D. Miss. 2019).

151 Jackson Women’s Health Org. v. Dobbs, 379 F. Supp. 3d 549, 553 (S.D. Miss. 2019).

152 Jackson Women’s Health Org. v. Dobbs, 945 F.3d 265, 266 (5th Cir. 2019).

153 See Higginbotham, Patrick Errol, Fed. Jud. Ctr., https://www.fjc.gov/history/judges/higginbotham-patrick-errol [perma.cc/Z85J-KG3L] (last visited Feb. 28, 2023). President Ford nominated Judge Patrick E. Higginbotham to the federal District Court for the Northern District of Texas in 1975 and President Reagan nominated him to the Fifth Circuit Court of Appeals in 1982. Id. See Ho, James C., Fed. Jud. Ctr., https://www.fjc.gov/history/judges/ho-james-c [perma.cc/3485-RE9M] (last visited Feb. 28, 2023). President Trump nominated Judge James C. Ho to the Fifth Circuit in 2017 and he was commissioned in 2018. Id.

154 See Dennis, James L., Fed. Jud. Ctr., https://www.fjc.gov/history/judges/dennis-james-l [perma.cc/Z9LP-RQWJ] (last visited Feb. 28, 2023). President Clinton nominated Judge James L. Dennis to the Fifth Circuit in 1995. Id.

155 Nora Howe, Five Takeaways from Dobbs v. Jackson Oral Arguments, All. for Just. (Dec. 6, 2021), https://www.afj.org/article/five-takeaways-from-the-dobbs-v-jackson-oral-arguments/ [perma.cc/J94W-J7SF].

156 Id.

157 Howe, supra note 155; Nina Totenberg, Supreme Court’s New Supermajority: What It Means For Roe v. Wade, npr (Dec. 31, 2020, 10:42 AM), https://www.npr.org/2020/12/31/951620847/supreme-courts-new-supermajority-what-it-means-for-roe-v-wade [perma.cc/XB4A-TLA6].

158 See Lou Kettering, US Chief Justice Roberts Defends Supreme Court’s Legitimacy in First Post-Dobbs Public Appearance, Jurist (Sept. 11, 2022, 1:52 PM), https://www.jurist.org/news/2022/09/us-chief-justice-roberts-defends-supreme-courts-legitimacy-in-first-post-dobbs-public-appearance/ [perma.cc/QU65-C4J3].

159 See Natalie M. Chin, Group Homes as Sex Police and the Role of the Olmstead Integration Mandate, 42 N.Y.U. Rev. L. & Soc. Change 379, 389 (2018); see also Taft, supra note 10.

160 See generally U.S. v. Florida, 938 F.3d 1221 (11th Cir. 2019).

161 Georges St. Pierre, QuoteFancy, https://quotefancy.com/quote/1653104/Georges-St-Pierre-Set-your-goal-and-keep-moving-forward [perma.cc/CJ6V-SGTJ] (last visited Dec. 13, 2022) (emphasis added).

162 Stacie Kershner & Susan Walker Goico, Olmstead at Twenty: The Past and Future of Community Integration: A Letter from the Guest Editors, 40 J. Legal Med. 1, 1 (2020).

163 Id. at 2.

164 See Talley Wells, Lessons Learned from Georgia’s 2010 Olmstead Settlement: The Good, the Bad, and the Limitations of a Justice Department Olmstead Settlement, 40 J. Legal Med. 45, 48 (2020); Maddy Reinert et al., The State of Mental Health in America 19 (Mental Health Am. ed., 2020)) (referencing that among 50 states and the District of Columbia, Georgia ranked 50 out of 51 in 2020).

165 Wells, supra note 164, at 45.

166 See Joseph Shapiro, Justice Increases Efforts to Enforce Olmstead Ruling, NPR (Dec. 3, 2010, 3:39 PM), https://www.npr.org/2010/12/03/131789387/justice-increases-efforts-to-enforce-olmstead-ruling [perma.cc/G99B-Z9C2].

167 Id. The $77 million settlement would transfer thousands to community settings. Id.

168 Id.

169 Id.

170 Id.

171 Wells, supra note 164, at 45.

172 Id. at 46.

173 Id. at 47.

174 Id.

175 See Lombardo et al., supra note 24, at 43 n.29.

176 Judy Fitzgerald, Ga. Dep’t Behav. Health & Dev. Disabilities, Extension Agreement Overview (2016), https://dbhdd.georgia.gov/organization/be-informed/reports-performance/ada-settlement-agreement. [perma.cc/J6AD-N374].

177 See Lombardo et al., supra note 24, at 43 n.29; see also Ga Advisory Comm. to U.S. Comm’n on Civ. Rts, Disability Rights and Civil Rights in Georgia 9 (2019), https://www.usccr.gov/pubs/2019/09-09-GA-Disability-Rights.pdf [perma.cc/ZG7Z-TF8A].

178 Lombardo et al., supra note 24, at 43 n.29; see also Interim Report of the Independent Reviewer at 3, United States v. State of Georgia, No. 1:10-cv-249-CAP (N.D. Ga. Aug. 19, 2019), https://www.justice.gov/crt/case-document/file/1210601/download [perma.cc/3XJK-CG3M].

179 Wells, supra note 164, at 52.

180 Id.

181 Isabelle Taft, ‘A Screeching Halt’: Judges’ Question in Mental Health Lawsuit has Implications Beyond Mississippi, Miss. Today (Oct. 4, 2022), https://mississippitoday.org/2022/10/04/judges-question-in-mental-health-lawsuit-implications/ [perma.cc/3VVL-2WB6].

182 Id.

183 Mississippi, 400 F. Sup. 3d 546, 578.

184 Id. at 578-79.

185 Id. at 579.

186 Melody Worsham, Melody Worsham: Open Letter to Mississippi Attorney General Lynn Finch Regarding U.S. v. Mississippi, Families as Allies (Oct. 22, 2021), https://www.faams.org/melody-worsham-open-letter-to-mississippi-attorney-general-lynn-fitch-regarding-u-s-v-mississippi/ [perma.cc/25TY-N94F].

187 Id.

188 Id.

189 Id.