Judge Markle's Fantastic Article on Olmstead from the Atlanta Business Chronicle April 19, 2013

A landmark case we should celebrate

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.