The Evolution of Disability Rights Litigation (and some stories)
David Ferleger, Esq.
In the Supreme Court: The Constitutional Right to Community Services
Let's talk about what I call the Constitutional right to community services. Now I call it that, Judge Raymond Broderick in the 1970s called it that. The Supreme Court hasn't said that is a right. No courts have really said that there is such a constitutional right. I advocate that there is such a right, and it's important because the Olmstead vs. L.C. decision of the Supreme Court is based just on the ADA, the Americans with Disabilities Act. So a right that is based on a statute has certain limitations. The Olmstead decision itself has limitations. The Olmstead decision said that your right to be in the community is limited, perhaps by budgetary or institutional, state institutional considerations. Your right to be in the community is limited by whatever you can glean from the ADA, and of course a statutory right can be taken away anytime. So, it's important to begin to think about whether and how the Constitution protects one's right to be in the community. And, without making this a legal treatise, let's talk about a couple of the rights that might give rise to that constitutional level of protection for people with disabilities.
One is that the due process clause of the 14th Amendment to the Constitution has an element, called substantive due process, not just the procedures that you get when you're affected by state action, but the core, some basics of how one is treated, which require a fair treatment. So those Supreme Court decisions like Jackson vs. Indiana, which discuss the institutionalization, are an example of the application of substantive due process. So, under that kind of test, I think it is legitimate to argue that in this day and age, it is no longer fair or reasonable to confine someone with disabilities, intellectual disabilities, let's talk about that, to an institution, because it's not being done any longer for somebody's protection. We're not protecting society and it really no longer makes sense.
So, similarly, the equal protection clause of that same 14th Amendment, forbids the irrational treatment of people in our society by the government. So, similarly it is no longer a rational thing to do to say that you or me, or someone with intellectual disabilities needs an institution, as opposed to being able to live in the community. So, although the Supreme Court has held that the class of people with retardation or intellectual disabilities in the current terminology, that those folks are not a group that has special treatment under the protection clause if we confine the class under examination to people needlessly institutionalized, I think when that case gets to the Supreme Court, the court will hold that group is specially protected, and does have a right to live in the community.
Many decades ago, in the 1960s, a professor Jacobus ten Broek wrote an article about the right to be abroad in the land. That was his phrase. And he talked about the rights of people to be in the community. This was long before any Supreme Court decision on the topic, long before the ADA. And, he happens to be, at the time, probably the foremost scholar on the 14th Amendment. And, he was blind. He was a blind professor who was able almost to see into the future and say that the rights we talk about, the right to be abroad in the land, the right was so essential that he wrote that's what it means to live. So, I think we can go back to the inspiration of Professor ten Broek, and realize that the rights we're advocating for today, the Constitutional right to community services, now existing mainly in my mind, and in a laureate article, is a right that will be, and deservedly be recognized by the courts. So, we went from ancient history to the future.