No. 98-536

In the Supreme Court of the United States

October Term, 1998

_________________________

TOMMY OLMSTEAD, Commissioner of the
Department of Human Resources of the State of Georgia, et al.,

Petitioner,

v.

L.C., by Jonathan Zimring,
Guardian Ad Litem and Next Friend, et al.,

Respondents.

_________________________

On Writ of Certiorari to the
United States Court of Appeals
for the Eleventh Circuit

_________________________

BRIEF FOR RESPONDENTS

_________________________

COUNTER-STATEMENT OF THE QUESTION PRESENTED

Does a plaintiff establish a prima facie case of discrimination, violative of the Americans with Disabilities Act, by showing that (1) a public entity administers a unified program of services for persons with mental disability, including treatment both in mental institutions and in the community, (2) the public entity's professionals have determined that the plaintiff can appropriately be provided the services in the community, where the plaintiff would enjoy meaningful opportunity to interact with nondisabled persons and participate in the economic and social life of the community, but (3) the public entity will furnish plaintiff the services only if she lives in a mental institution, thereby segregated from the community?

[The court below held, first, that the answer to this question is yes, but, second, that a public entity enjoys a defense to this requirement upon a showing that compliance would require a fundamental alteration in its services, programs or activities. Petitioners have brought the first of these holdings to this Court for review, but not the second.]

TABLE OF CONTENTS

COUNTER-STATEMENT OF THE QUESTION PRESENTED .

TABLE OF AUTHORITIES

ADDITIONAL STATUTORY AND REGULATORY PROVISIONS

COUNTER-STATEMENT OF THE CASE

I. The History of Institutionalization of Persons with Mental Disabilities

II. The National Shift to Community-Based Services and Georgia's Resistance

III. The Respondents

A. L.C.

B. E.W.

IV. The Relative Access to the Community at Large of Those Who Are Institutionalized and Those Who Receive Services in the Community

V. Cost Is Not the Reason Respondents Were Denied Services in the Community

VI. The Rulings Below

VII. Sharpening and Narrowing the Issue Presented

INTRODUCTION AND SUMMARY OF ARGUMENT

ARGUMENT

I. APPLYING THE CUSTOMARY TOOLS OF STATUTORY CONSTRUCTION, THE ADA BANS ADMINISTRATION OF SERVICES, PROGRAMS, AND ACTIVITIES IN UNNECESSARILY SEGREGATIVE SETTINGS

A. The Text 17

1. "Discrimination"

2." By Reasson of Disability"

B. The Legislative History

1. The Hearings

2. The Committee Reports

3. The Floor Debates 30

C. The Lessons of the Text and Legislative History

D. Petitioners' Contrary Account 32

1. The Chafee Bill

2. The Attorney General's Section by Section Analysis

E. The Attorney General's Consistent Interpretation of the ADA

F. Petitioner's Invocation of Gregory v. Ashcroft

II. PETITIONERS' ARGUMENTS—THAT CONGRESS COULD NOT HAVE INTENDED WHAT THE STATUTE PLAINLY SAYS—ARE UNPERSUASIVE

A. "THE DOG THAT DIDN'T BARK:" The Contention That the History of Implementation of Section 504 of the Rehabilitation Act Shows That Congress Did Not Intend the "Most Integrated Setting" Command of the ADA to Apply to Disability-0nly Services

1. Petitioners' Account of the Enforcement of § 504 Is Wrong

2. Petitioners' Assumption That the Text of the ADA Is the Same as §504 Is Wrong

3. Petitioners' Assumption That the § 504 Coordination Regulations Were at Issue in the Pre-ADA Cases Is Wrong

B. "PENNHURST LITE:" The Contention That This Court's Decision in Pennhurst Controls the Disposition of This Case

C. "THE SKY IS FALLING:" The Contention That Congress Could Not Have Intended, Without Clearer Articulation, to Have Imposed on the States Massive Fiscal and Administrative Burdens

D. Avoiding Constitutional Questions

CONCLUSION

APPENDIX

TABLE OF AUTHORITIES

CASES:

ADAPT v. Skinner, 881 F.2d 1184 (3rd Cir. 1989) (en bane)

Alexander v. Choate, 469 U.S. 287 (1985)

Auer v. Robbins, 117 S. Ct. 905 (1997)

Bragdon v. Abbott, 118 S. Ct. 2196 (1998)

Cedar Rapids Community School District v. Garret, No. 96-1793, 1999 WL 104410 (U.S. Mar. 3, 1999)

Chevron U.S.A. v. National Resource Defense

Clark v. Cohen, 794 F.2d 69 (3d Cir. 1985), cert. denied, 479 U.S. 962 (1986)

City of Cleburne v. Cleburne Living Center, U.S. 432 (1985)

Connecticut v. Teal, 457 U.S. 440 (1982)

Dothard v. Rawlinson, 433 U.S. 321 (1977)

Etheridge v. Charter Peachford Hospital, 436 S.E.2d 669 (Ga. App. 1993)

Gregory v. Asheroft, 501 U.S. 452 (1991)

Griggs v. Duke Power Co., 401 U.S. 424 (1971)

Halderman v. Pennhurst State School & Hospital, 446 F. Supp. 1295 (E.D. Pa. 1977)

Halderman v. Pennhurst State School & Hospital, 612 F.2d 84 (3rd Cir. 1979)

Halderman v. Pennhurst State School & Hospital, 673 F.2d 647 (3rd Cir. 1982)

Helen L. v. DiDario, 46 F.3d 325 (3d Cir. 1995), cert. denied, 516 U.S. 813 (1995)

Homeward Bound, Inc. v. Hissom Memorial Center, No. 85-C-437-E, 1987 WL 27104 (N.D. Okla. July 24, 1987

Jackson v. Fort Stanton Hospital & Training School, 757 F. Supp. 1243 (D.N.M. 1990), rev'd on other grounds, 964 F.2d 980 (10th Cir. 1992)

Kentucky Asssoeiation for Retarded Citizens v.Conn., Civ. Ac. No. C-78-0157-L(A) (W.D. Ky. Filed June 18, 1979)

Lynch v. Maher, 507 F. Supp. 1268 (D. Conn. 1981)

Martin v. OSHA, 499 U.S. 144 (1991)

McNamara v. Dukakis, 1990 WL 235439 (D. Mass. 1990)

P.C.v. McLaughlin, 913 F.2d 1033 (2d Cir. 1990)

Pennhurst State School & Hospital v. Halderman, 451 U.S. I (1981)

Pennhurst State School & Hospital v. Halderman, 465 U.S. 89 (1984)

Pennsylvania Department of Corrections v. Yeskey, 118 S. Ct. 1952 (1998)

People First of Tennessee v. Arlington Developmental Center, 878 F. Supp. 97 (W.D. Tenn. 1992)

Rust v. Sullivan, 500 U.S. 173 (1991)

School Board of Nassau County v. Arline, 480 U.S. 273 (1987)

Sedima, SPRL v. Imrex Co., 473 U.S. 479 (1985)

S.H. and P.F.v. Edwards, 886 F.2d 292 (11th Cir. 1989)

Southeastern Community College v. Davis, 442 U.S. 397 (1979)

Thomas Jefferson University v. ShalaIa, 512 U.S. 504 (1994)

United States v. Alaska, 503 U.S. 569 (1992)

United States v. Board of Commissioners of Sheffield, Alabama, 435 U.S. 110 (1978)

Wyatt v. Hardin, Civ. Ac. No. 3195-N (N.D. Ala. 1979)

Wyatt v. Poundstone, 892 F. Supp. 1410 (M.D. Ala. 1995)

STATUTES, RULES AND REGULATIONS

Title VII of the Civil Rights Act of 1964

The Developmentally Disabled Assistance and Bill of Rights Act

Title I of the Americans with Disabilities Act

Title II of the Americans with Disabilities Act \

Title III of the Americans with Disabilities Act

29 U.S.C. § 794, Section 504 of the Rehabilitation Act of 1973

42 U.S.C. § 12101, Section 2 of the Americans with Disabilities Act

42 U.S.C. § 12132, Section 202 of the Americans with Disabilities Act

42 U.S.C. § 12134, Section 204 of the Americans with Disabilities Act

42 U.S.C. § 12202, Section 502 of the Americans with Disabilities Act

Section 302 (b) (1) (B) of the Americans with Disabilities Act

42 U.S.C. § 1396a (a) (10) (B)

42 U.S.C. § 1396d (a) (14), (16)

42 U.S.C. § 1396d (a) (27) (B)

42 U.S.C. § 1396n (c) (3)

Pub. L. No. 95-35, § 2176, 95 Stat. 357 (1981) (codified as amended at 42 U.S.C. § 1396n (c))

Pub. L. No. 99-509, § 9411, 100 Stat. 1874 (1986)

28 C.F.R. §
28 C.F.R. §
28 C.F.R. §
28 C.F.R. §
28 C.F.R. §
28 C.F.R.
28 C.F.R.
28 C.F.R.
42 C.F.R.

45 C.F.R. Part 84

45 C.F.R Part 85

45 C.F.R. § 84.4

56 Fed. Reg. 35705 (July 26, 1991)

O.C.G.A. § 37-2-5.1 (C) (3)

O.C.G.A. § 37-2-5.2 (A) (5)

O.C.G.A. § 37-3-22

1918 Ga. Laws 921

1919 Ga Laws 377

1937 Ga. Laws 414

1970 Ga. Laws 683

OTHER AUTHORITIES

135 Cong. Rec. 1960-71 (February 8, 1989)

135 Cong. Rec. S4986 (daily ed. May 9, 1989)

135 Cong. Rec. S4993 (daily ed. May 9, 1989)

135 Cong. Rec. 8518 (May 9, 1989)

135 Cong. Rec. 8519 (May 9, 1989)

135 Cong. Rec. S10713 (daily ed. Sept. 7, 1989)

135 Cong. Rec. 19835 (1989) 49

136 Cong. Rec. H2447 (daily ed. May 17, 1990)

30 S. Rep. No. 101-116, 101st Cong., 1st Sess. (1989)

H. Rep. No. 101-485, pt. 1, 101st Cong., 2d Sess.(1990)

H. Rep. No. 101-485, pt 2, 101st Cong., 2d Sess. (1990)

H. Rep. No. 101-485, pt. 3, 101st Cong., 2d Sess. (1990)

H. Rep. No. 101-485, pt. 4, 101st Cong., 2d Sess. (1990)

Americans with Dissabilities Act, Hearing Before the Senate Committee on Labor & Human Resources and the Sub-committee on the Handicapped, 101st Congress, 1st Session (1989)

National Council on Disability, Equality of Opportunity: The Making of the Americans with Disabilities Act (1997)

Oversight Hearing on H.R. 4498, Americans with Disabilities Act of 1988: Hearings Before the Subcommittee on Select Education of the House Committee on Education & Labor, 100th Cong., 2d Sess. (1988)

Staff of House Committee on Education & Labor, 101st Cong., 2d Sess., Report on P.L. 101-336, Legislative History of the Americans with Disabilities Act (Comm. Print 1990)

U.S. Commission on Civil Rights, Accommodating the Spectrum of Individual Abilities (1983)

United States Department of Health & Human Services, Health Care Financing Administration, Report to Congress, Medicaid and Institutions for Mental Diseases (Dec. 1992)

Ga. Op. Att'y Gen. No. U70-183 (1970)

Journal of the [Georgia]House (June 30, 1919)

S.J. Ress. 44, 1918 Ga. Gen. Assembly Ann. Sess., 1918 Ga. Laws 921

B.K. Hill, et al., The Quality of Life of Mentally Retarded People in Residential Care, Social Work, 29(3) (1984)

The Hissom Outcomes Study: A Report on Six Years of Movement into Supported Living (Conroy, 1995)

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