A new memo from the Department of Justice questions long-held protections for the disabled and is drawing concern from Virginia’s disability advocates.
“I think that’s the fear, right? It’s just a memo, but that’s how they start stuff,” said Tonya Milling with the disability advocacy group Arc of Virginia. Milling was speaking about a mid-June memo from the Department of Justice which says the agency no longer backs court precedent that protects the developmentally and physically disabled from being kept in segregated facilities.
Almost 15 years ago, Virginia and the Department of Justice worked together to close state-run training centers used to house people with severe intellectual and developmental disabilities. Known as a consent decree, the deal aimed to replace isolated, institutionalized treatment with integrated community living for some of the Commonwealth's most vulnerable. But a new memo from the DOJ says the federal government no longer supports these protections.
The court precedent behind this integration, and the consent decree, is a 1999 case called Olmstead.
Back then Georgia residents Lois Curtis and Elaine Wilson were diagnosed with schizophrenia among other developmental disabilities and kept in an institution despite being better suited for treatment in a community-based setting. They sued and the U.S. Supreme Court, using the recently passed Americans with Disabilities Act, called it discrimination when treatment for the disabled does not include the most community-integrated setting possible.
“People have fought for years for the right to live in community,” Milling said. “Olmstead isn’t just a legal case; it reflects a simple American value that people with disabilities have the same rights as everybody else.”
But the DOJ memo released last month questions that idea and calls it a burden on states. “...Stating that institutional isolation can be discriminatory does not equate to saying that it is discriminatory under specific circumstances,” wrote DOJ attorney Lanora Pettit.
White House adviser Stephen Miller is reportedly leading the charge on the policy change, with Bloomberg reporting the powerful Trump advisor has argued continued reliance on Olmstead's “would increase homelessness” and did not adhere to a July presidential executive order which pushed cities and states to use treatment centers to house the homeless. DOJ denied Miller’s link with the memo to the national outlet.
Shira Wakschlag, an attorney with The Arc of the U.S., called the memo, “incredibly worrisome.”
Wakschlag said the DOJ has long been the primary enforcer of Olmstead, including in Virginia. And if they abandon that role, it leaves it up to private individuals to defend their rights instead.
“That’s a very different kind of enforcement than when you have the federal government coming in and ensuring that systems within states are complying with federal law,” Wakschlag told Radio IQ.
She also noted while the memo hasn’t changed federal law, it has started to show up in other court fights relying on Olmstead. States arguably do not want to be beholden to the consent decrees Olmstead has created; federal intervention can be heavy handed and costly.
And while no mention of the new memo has shown up in the Virginia consent decree court docket yet, it is in other federal disputes.
Colleen Miller, executive director of the Disability Law Center of Virginia, thinks the state will continue its support for the mentally and physically disabled.
“I believe Virginia is committed to serving people in the community and ending unnecessary isolation,” Miller, whose group has acted as a third-party watchdog for the court in the long-running consent decree.
Attorney General Jay Jones, whose office is charged with advising state agencies impacted by the consent decree, said in a statement sent to Radio IQ he believes "people with disabilities deserve to live as fully integrated members of their communities."
"The OAG will never stop fighting for the civil rights of all Virginians," he added.
Advocates pointed to about $170 million in new funding in the state budget as evidence of that support. The funds aim to expand services for those protected by the decree and beyond.
“It’s critical to ensure that we meet an important priority of serving individuals in their communities, close to their loved ones, in an environment that provides them the maximum amount of comfort, freedom and level of care they require,” said Virginia’s Joint Commission on Healthcare Chair and Arlington County Democratic Senator Barabara Favola.
Perhaps belying concerns, Wakschlag said the posture of Virginia’s agreement with DOJ—once a consent decree, now a permanent injunction— is admittedly more advanced and may not be subject to changes, but considering the goals of the memo, she still took the June missive as a warning.
“There’s been a multipronged attack on the right to live in the community for people with disabilities," she said. “It’s important to be vigilant in emphasizing how important this is.”
Senator Tim Kaine, a civil rights attorney by trade, said Olmstead has always been the right ruling, but harder to practically enforce. Still, he hopes Virginia continues to protect its most vulnerable.
“There will be some for whom [integration] is not the solution, but for the overwhelming majority it is,” he told Radio IQ on a recent visit to Farmville. “I don’t want to see leadership back up on that. We should be striving for community integration in every way we can.”
And Milling and the people she represents are still concerned.
“For families and people with disabilities, knowing the law hasn’t changed isn’t enough,” she said. “The confidence in enforcement has.”
