Judge Todd Markle
Next year marks the
15th anniversary of a landmark U.S. Supreme Court opinion on civil rights. The
Olmstead decision is often compared to Brown v. Board of Education in its
significance yet it remains largely unknown to the public, its mandate perhaps
“more honored in the breach than the observance.”
Odds are, most of us
will be touched by the reach of Olmstead in the years ahead so its requirements
are worth note. Its proscriptions against discrimination of persons with
disabilities are worth celebrating.
The story of Olmstead
dates back to 1990 when the senior President Bush signed the Americans with
Disabilities Act. In announcing that it was time for “the shameful walls of
exclusion” to come tumbling down, President Bush observed that “every man,
woman and child with a disability can now pass through once-closed doors into a
bright new era of equality, independence and freedom.”
Just as with
implementation of Brown, however, the thick walls of discrimination against the
disabled were slow to fall.
The Olmstead case
itself originated in the Atlanta courtroom of Judge Marvin Shoob as an effort
to enforce the ADA’s integration mandate requiring provision of government
services in the most integrated setting consistent with individual need. The
Atlanta Legal Aid Society brought the suit on behalf of two Georgia women who
were being unlawfully segregated when they were confined to institutions in
order to receive medical services. The case ultimately reached the highest
court in the land.
In its 1999 decision,
the Olmstead Court held that individuals with disabilities have a right to
receive services in their homes and communities. The Court aptly noted
Congress’ concern when it passed the ADA that segregation of individuals with
disabilities is a serious and pervasive form of discrimination. After Olmstead,
there can be no doubt that men and women who currently live in nursing homes
and institutions have the right to return to their homes and communities. Many
have done so while others have avoided institutionalization altogether.
Nevertheless,
implementation of the Olmstead mandate around the country has been slow and
uneven. Citing the lack of financial resources, some states have resisted
voluntary compliance with the Olmstead directives. Others have bowed to political
pressure from special interests and continued to invest in outdated and
obsolete institutions. To meet its obligations, Georgia has a full-time
Olmstead coordinator who is charged with the responsibility of implementing
Georgia’s obligations arising from the decision.
Although change is
often difficult and no doubt involves front-loaded expense to cash-strapped
state governments, full compliance with Olmstead will ultimately prove
cost-effective. Studies demonstrate what should otherwise be obvious: The cost
of community care is a fraction as that of institutional treatment. Moreover,
the outcomes from community care are far better than traditional segregation
through institutionalization. It is worth noting that many of the
evidence-based research findings that helped drive the Criminal Justice Reform
Council’s recommendations are equally relevant on the issue of treatment and
care of the disabled. Regardless, Olmstead is the law of the land and
compliance is not optional.
As the Olmstead
anniversary approaches, we should celebrate the end of yet another distasteful
chapter of discrimination in our collective history. Under Olmstead, each of us
now has a right to receive disability services in our homes and communities
rather than in dehumanizing institutions. Olmstead has given new life to
thousands of Americans with disabilities. As Brown brought the end of
segregated public education, Olmstead brought the end of segregated disability
services.
Future generations
undoubtedly will ask, what took so long?
Markle is a judge on the Superior Court of Fulton County and
will be the judge of the new Fulton Veterans Court. Prior to his appointment to
the bench, he served as executive counsel to Gov. Nathan Deal. Judge Markle
chaired the Criminal Justice Reform Council in 2011 and remains a member by the
designation of Gov. Deal.
