The Evolution of Disability Rights Litigation (and some stories)
David Ferleger, Esq.
Two Undecided Questions
There are a couple of questions undecided in any final way in the courts around community placement, community services and people's rights under the Constitution and under the Americans with Disabilities Act, and I think they deserve some highlighting.
One is- does the right to community services protect people who are not institutionalized, or are not yet institutionalized? And the second is, how does the right to community services protect people, if at all, who were voluntarily institutionalized, as opposed to being committed by a court? So, both these questions come to people's minds and to the court cases because the decisions around the rights of people with disabilities have come in the past through cases brought by people who are already in institutions, or are committed there.
States argue that if you are already living in the community, how can you say I have a right to community services? And there are courts which have held that the U.S. Constitution protects people when they're confined, and not just people who are living at home, let's say, or out in the community. And, I think that the way in which this will get resolved, and it's not yet resolved, is a recognition, and some courts have begun to say this – that if you are at risk of institutionalization, if you are essentially on the way there because of a lack of community services, then you then have a right equal to that of somebody who is leaving the institution.
On the second question, the voluntariness issue, the Supreme Court and other courts have generally said that your rights to various protections are triggered when you are confined against your will. These days, fewer people are committed by courts in many situations and there are people who sign-in to institutions, mental health or developmental disabilities, because they have no other choice. There's no alternative in the community, or the institution won't take a court commitment, so these folks who were involuntary care, so to speak, there's a question of whether they have Constitutional rights or maybe even rights under the ADA, and the answer to that, I think, will come, not definitive yet, by courts ruling that when you essentially are a person with no choice, you don't have a choice to go where you want to go, that that is the same as being involuntarily held, even if you formally signed a paper committing yourself voluntarily.