Olmstead Anniversary

Olmstead's Anniversary and Disability Civil Rights.
Information Bulletin #287 (6/09).

June 22, 2009, marks the 10th anniversary of the Supreme Court's Olmstead ruling for disability civil rights. Some people have made an analogy between the Olmstead decision and the Brown v. Board of Education decision in 1954. Let's compare them.

Nearly ten years after the black civil rights movement's victory in Brown, incremental, albeit not overwhelming, progress had occurred. Nonetheless, some people thought the black civil rights struggle had stalled.

Nearly ten years after the disability civil rights movement's victory in the Olmstead decision, incremental progress has occurred as well.

But still, more than 313,000 people with disabilities in nursing homes (23% of the total) want to live in the community, and yet are denied their civil right to integration, primarily because of Medicaid's historical bias in favor of segregation. Many of them are on "waiting lists" for their civil rights. Can you imagine a "waiting list" for black civil rights?

While the black civil rights movement achieved its share of victories, it took the March on Washington for Congress to enact both the Civil Rights Act of 1964 and the Voting Rights Act of 1965. And even then, it took the U.S. Department of Justice to take the right actions and really enforce these civil rights.

Remember that Title VI of the 1964 Civil Rights Act prohibited federal subsidies for racially segregated institutions.

So why not similarly rectify segregation for people with disabilities? Does not the Olmstead decision, together with the ADA/Section 504, already provide the necessary handles to prohibit federal subsidies to States that limit services only to segregated institutions, thus denying real choices that would enable 313,000 people to reside in the community.

Some say the disability civil rights issue of ending unnecessary segregation must wait. But as Dr. King wrote, "For years now I have heard the word 'Wait.' It rings in the ear of every Negro [person with a disability who is unnecessarily institutionalized] with piercing familiarity. This 'Wait' has almost always meant 'Never'."

Last year when some disability advocates wanted an explicit reference to ending unnecessary segregation included in the ADA Restoration Act, they were politely told that other issues were the focus: "wait."

This year when people with disabilities with the lowest incomes, who are entirely dependent on Medicaid, have demanded to end unnecessary segregation by having the Community Choice Act included in any health reform legislation, they have been told that the CCA is not the focus of health reformb"Wait."

The "Wait" to end unnecessary segregation of people with disabilities in institutions may soon turn into a "Never" for civil rights.

How hard is it to understand and accept that, but for the denial of civil rights, many institutionalized people with disabilities would live in the community with adequate programs and supports, especially since its cheaper for the federal government and states to provide such programs and supports in the community?

How hard would it be to enact a Disability Civil Rights Act in 2009 to end unnecessary segregation just as Congress did with the Civil Rights Acts in the 1960s? A Disability Civil Rights Act in 2009 to end segregation could not be as inflammatory as enacting the Voting Rights Act of 1964.

Will U.S. Attorney General Holder look to how U.S. Attorney General Robert Kennedy addressed ending discrimination in the 1960s? General Holder could start by looking at the 313,000 people with disabilities living in nursing facilities who have said they do not want to be unnecessarily institutionalized. He could inform states that Olmstead and the ADA/504 require providing real choice for people with disabilities who are segregated and want to live in the community.

What do we have to do to create the atmosphere of the 1960s for the disability civil rights struggle in 2009?

Steve Gold, The Disability Odyssey continues