The Case That Ended Forced Institutionalization (Mostly)

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:00 Clip: Thank you.

0:00:03 Thomas: Whole bunch of Republicans just turned down free healthcare money because racism. That's a thing that happened in our country. But

0:00:18 Jenessa: Nonetheless remained institutionalized until a few months after the district court issued its judgment in this case in 97. So a year in in a locked ward that her treating professionals agree is not necessary.

0:00:38 Thomas: And welcome to Opening Arguments. This is episode 1238. Thomas Smith. That over there is Jenessa. How you doing?

0:00:44 Jenessa: I'm doing pretty good. I

0:00:46 Thomas: Better than my voice sounds?

0:00:48 Jenessa: Oh my god, yeah. Well, I got my own sick going on over here. I just sweating to death with not a fever, so we'll see.

0:00:56 Thomas: Huh. That sounds like it's just hot. Too warm over there.

0:00:59 Jenessa: But then I I but get like cold but still sweaty which is like the not good thing know but like I don't have any other like I dont have a cough or a sore throat so like what the hell is this I dont know between the two of us we make one healthy person

0:01:03 Thomas: That's weird. I don't have a fever huh in for the next game what is jenessa dying of yeah who knows we'll in next week for the answer we'll get the morgue to uh send in the uh autopsy report find out what did jenessa die of and then we'll have a theme song what did I can't even do it

0:01:29 Jenessa: I actually think we might have an interview planned for next week so when I'm not here please dont assume I'm dead today

0:01:37 Thomas: Well hey what are we going to be talking about today all

0:01:39 Jenessa: I have a classic disability case for you out of the supreme court in the 90s and just a really solid decision that made a lot of people's lives better and there's some nitty -gritty in here that's like cool stuff about the law there's Some Annoying Textualism there's um interesting stuff about who signs on to what parts of an opinion and how that affects things uh yeah we get a lot in here

0:02:08 Thomas: While I'm exciting let's take our second break and we'll see you next time first break which you can avoid at patreon.com/law and you can also get that Law'd Awful Movies which was a lot of fun make sure you check that out if you haven't already and avoid the ad so after this break I'm gonna let jenessa talk so I don't have to you. Famous Famous last words. I'll try to do my best. Okay. Just go ahead.

0:02:32 Thomas: I can listen and die. I can multitask.

0:02:38 Jenessa: Yeah totally um we've got in this case uh the first thing I'll say is if you go to read it or listen to the oral arguments um the the terminology in the 90s was not the most sensitive um

0:02:50 Thomas: Not the preferred nomenclature, dude.

0:02:53 Jenessa: No we're still just casually the r-word all the way throughout that was like normal um if you want to hazard a guess when the federal department uh using that and started using intellectual disability? Well, with this government, yeah.

0:03:09 Thomas: 2030 we're hoping yeah yeah

0:03:15 Jenessa: We've returned.

0:03:17 Thomas: I still it's still called like indian law so I think who knows it might be one of those things where they just decide nah all the laws written that way so we're never changing it all

0:03:26 Jenessa: Was a change in the Federal Register in 2013, in Obama term two, we finally were like, yeah, we should probably stop saying that.

0:03:36 Thomas: There Thanks, Thanks, Obama.

0:03:38 Jenessa: Yeah, so if you go listen into the oral arguments or um ginsburg reads the decision from the bench we don't often get that or she reads a summary um if you read the paper decision yeah it just all throughout you're gonna have the r word you're gonna have um we would often say like person with a disability and instead you're going to see like handicapped very frequently that's very much not preferred heard.

0:04:00 Thomas: My gosh. Oh, yeah. I remember growing up in the 90s. Handicapped was the thing.

0:04:04 Jenessa: That was, like, the term.

0:04:06 Thomas: So funny because, like, like these were the, like. Politically correct terms. Like, the nineties, there were things that were offensive that the progressives then were like, this is a good thing to say instead of the other thing. So just like, it doesn't necessarily mean someone was like horribly bigoted or something. That's all I'm saying. Because I remember with handicap, that specifically was like a more liberal thing to say that was kinder like than just freaking arseler, you just for context, again, I'm not defending, you Know, the words should be, I I'm all for evolution of language to wherever that community prefers for sure. But just as context, that isn't a sign that someone was like necessarily. Necessarily.

0:04:39 Jenessa: Yeah I would fully read this decision with that in mind that, like this was medical terminology and common social terminology and, we have more of the, like nothing about us without us, like having people with disabilities tell us the the terminology they like um

0:04:49 Thomas: Well, that's a novel idea. Weird. Have some say in in what people call you. That's What? Bizarre.

0:04:56 Jenessa: Imagine that right um I think it's it's really important because like we do often have that sort of um what do they call it like the pc treadmill or whatever like we just keep picking a new word and it's like well yeah because people took the word and made it into an insult but if this is the word you call yourself that's a lot harder for that to be you know it's helping to I think address that instead of like well -meaning supposedly liberal people are like say this instead and it's like did you ask if they like that better um

0:05:30 Thomas: Yeah. It is a treadmill if it's like another word that they didn't choose, but one way to get off the treadmill is like, Hey, maybe listen to the group you're talking about. Yeah. That's that'll probably stop it.

0:05:38 Jenessa: Tell me like culturally deaf community will tell you like please call me deaf not hearing impaired like hearing impaired is what hearing decided deaf was a bad word and made up a new word. And it's like, no, I call myself deaf. It's fine. So I'm gonna do my best as I quote this to substitute some language here, but you may come across it, especially as we play some of the oral arguments. Um, yeah.

0:06:05 Thomas: Who is hearing impaired and not deaf I think that having that is difference probably pretty good because if I someone called me deaf I'd be like I'm not deaf though I my hearing is impaired but I'm not deaf right

0:06:18 Jenessa: And like, certainly from the capital D cultural perspective, like it is a linguistic minority that has shared cultural values, which is obviously if you grew up hearing or hard of hearing or hearing impaired in a a hearing family yeah you didn't really get exposed to that so world um but I think a better one for sure um this is olmstead o-l-m-s-t-e-a-d I can't say that word terribly clearly I feel like it's like marbles in my mouth um v vlc so we've anonymized the uh now uh respondents in this complaint and also ew so a lot of times the um citation will just have like the first defendant the first plaintiff here um so olmstead is the commissioner of the georgia department of human resources lc and ew are two women who have intellectual disabilities one had been diagnosed also with schizophrenia. Another also had a personality disorder. So they've got a couple of things going on. Here's what happens. So Elsie, in May of 1992, voluntarily admitted to the Georgia Regional Hospital at Atlanta, where she was confined to treatment in the psychiatric unit. Is going to come up in the oral arguments as a bit of a dispute that you'll hear back and forth about well use a locked room in your analogies because this was all voluntary and the um for the two women will speak up and say well actually the fact that one of them left once is not evidence that this is not a locked room she tried to go out on a little day trip and um police brought her back And

0:08:01 Jenessa: That was totally legal under Georgia law. You have voluntarily committed yourself. You could, with 72 hours notice, voluntarily uncommit yourself and get no services. Could not just come and go as you please. We should think of this as a locked ward, essentially. Eventually. 1992, voluntarily admitted, gets psychiatric treatment. May 1993, her condition is stabilized. And her treatment team at the Georgia Regional Hospital, so important to note these are state officials, they agree her needs could be appropriately met in a community -based program. So think like a group home or something like that, maybe having a one -on -one aid. You you don't need to be in a locked ward. You be in the community. She remained institutionalized until February of 1996, so like two and a half years have gone by, when the state placed her in a community -based treatment program, finally. The time they first brought lawsuit, she was still institutionalized. By the time it makes it to the Supreme Court, she's, know, it's been years now um very similar story voluntarily admitted same hospital february of 1995 confined for treatment in the psychiatric unit in march the next month they tried to discharge her to a homeless shelter but her attorney intervened and was like either she needs mental health help or she doesn't

0:09:31 Jenessa: Like homeless shelter is not no this is not residential

0:09:31 Thomas: Doesn't make any sense it's like aren't you people all the same or something I don't even know what he'd why would that even come up like what That's okay.

0:09:43 Jenessa: I guess like if they want to kick her out and she doesn't have a home that's can't discharge you to the sidewalk so they're going to discharge you to a shelter they got to put an address on the form I don't know um her attorney will successfully stop that with an administrative complaint. Yeah.

0:10:00 Thomas: That's good.

0:10:01 Jenessa: By 1996, so this is, you know, a little less than a year later, the treating psychiatrist concluded she could be treated appropriately in a community -based setting. She nonetheless remained institutionalized until a few months after the district court issued its judgment in this case in 97. So a year in in a locked ward that her treating professionals agree is not necessary. Are going to bring a lawsuit and say, initially they're going to bring a 14th Amendment constitutional claim. I'm not getting equal protection under the law. That, fully tell here whether that was like dropped or if it was just that the lower courts, essentially the lower court said we can decide this completely on the basis of the ADA and we don't have to get into that. Like if I was the plaintiff and I wanted to not drop that, like would still want to push for give me an answer on that one. But, you know, sometimes

0:11:00 Thomas: Because you would think that an interpretation based on the constitution would be more robust and last longer potentially than someone interpreting a law especially given our court and where it's gone.

0:11:12 Jenessa: Entirely possible. There's pros and cons to that. I know, they brought as part of that constitutional claim a Section 1983 lawsuit for constitutional violations. And I could totally imagine this court getting so wrapped up in some qualified immunity thing that you're just like, what if we focus on getting this answer about the ADA? And maybe that's fine. That we can spend our entire oral argument on that. You know, we only have an hour. Basically, we're going to be focused on the interpretation of the Americans with Disabilities Act. And a couple of important points in here with the ADA. Know how much we've talked about the idea of like congressional findings in a statute that yeah. But like the whereas preamble kind of thing. So it's not inherently the text of the law insofar as like it doesn't tell anyone what to do. Right. It's not like this is a crime. This is a civil offense. This is what the state has to do, but it does say like, why are we doing this? And give you a lot of context. That's important. Of the things that will be a big basis of dispute here. You consider this like, can this give a definition? And the majority will say yes, and I would agree. So the things Congress said in its findings,

0:11:54 Thomas: It's come up for sure yeah.

0:12:31 Jenessa: Society has tended to isolate and segregate individuals with disabilities and kind of discrimination continues to be serious and pervasive in society. Society against individuals with disabilities persists in such critical areas as institutionalization and with disabilities are continuing to encounter discrimination including outright intentional exclusion failure to make modifications to existing facilities and practices and segregation so majority is going to say this is a definition of discrimination. Like, I know it didn't say part 1A definitions, A1 discrimination is, and then tell us under this statute, this is discrimination. I mean, it kind of does, because it's going to say this is a historical form of discrimination, it is serious and pervasive to this day, institutionalization and segregation are the first examples given of discrimination that's happening. Of feels like later in the statute when they use the word discrimination, that's what they mean. They say it's illegal to discriminate on the basis of disability, what is discrimination? Well, we've given you a very clear example. Example, institutionalization and segregation can be discriminatory. Majority is going to treat it like a definition in the law, that those congressional findings are very persuasive. Essentially, it's persuasive in that it tells us when Congress said you can't discriminate, what did they mean? Well, they meant this. This is one of the things they meant.

0:14:09 Thomas: So they didn't just go ahead and define discrimination anywhere else?

0:14:13 Jenessa: They do in other parts, like in Title I of the ADA, that's all related to employment, And they say, here's here is our exact definition of what discrimination means. Title II is all about what the states have to do. Title III is all abut what private individuals like businesses, places of public accommodation. In Title II, they don't give a definition of discrimination. It is illegal to discriminate on the basis of disability. It in certain ways so for example no qualified individual with a disability shall by reason of such disability be excluded from participation in or be denied the benefits of the services programs or activities of such a public entity or be subject to discrimination by any such entity public entity is defined just in case we weren't sure state and local local government, departments, agencies, blah, blah. Qualified individual is an individual with a disability who, with or without reasonable modifications, that's really important to say with or with out, because that's telling us even you have to make reasonable modifications. Even if you accommodate, they're still qualified. They don't have to be able to access this completely independently.

0:15:28 Thomas: So like theoretically if someone had a disability and like they have accommodations you couldn't be like oh they're not disabled now because they like get to you know basically function like a non -disabled person is

0:15:41 Jenessa: Yeah, this definition of a qualified individual who is therefore covered under this and this and This and This, you have a disability and with or without reasonable modification to rules, policies or practices, the removal of architectural communication or transportation barriers or the provision of auxiliary aids and services meets the essential eligibility requirement for the receipt of services or the participation in programs or activities provided by the public entity. So even if we need to do, put in a ramp, we need to provide, you know, transportation, we need to provide whatever, that doesn't make you not a qualified person with a disability. If like, oh, if we don't put in a ramp you can't access the service, if you do put in a ramp I otherwise qualify to participate in this program. So I qualify for the protections as well. Essentially when they say that, okay, you're a qualified individual with a Disability, you shall shall not, by reason of your disability, be excluded from participation or subject to discrimination. Majority is going to say, Congress told us one of the many things that is discrimination is segregation and institutionalization. So without even talking about the 14th Amendment and equal protection and all of that, we can just say, this person who did not need to be institutionalized was institutionalized, they were segregated from from society. They were kept away from everybody else. Us that's discrimination. And the attorney general issued regulations as required by the statute and said, public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities. So is going going to get us that most integrated setting, or they'll call call the least restrictive setting, and need to be institutionalized, all right, well, then that's the least restricted setting, right? If you don't, a community -based thing like a group home might be the least restrictive thing for your needs. Or maybe it's just a one -on -one aid who comes to your house sometimes. Maybe they don't have to be there all day. Maybe They Do, whatever. To make sure we distinguish, in the Individuals with Disabilities Education Act, if anybody's familiar with that, you'll have heard the least restrictive environment as a statutory requirement for classrooms.

0:18:04 Jenessa: Essentially what's going on there is codifying very similar to Olmstead. Hey, if your kid can be mainstreamed, the school can't require them to go to the special ed classroom. If they can learn in the special Ed classroom, the school cannot require them go to a -on -one type of classroom. A very similar thing, but restrictive least setting least restrictive environment they're slightly different but you might have heard that second term

0:18:34 Thomas: Could also imagine you wouldn't want it to be like if if somebody has to do accommodations oh well we have this thing available it's super extreme it's like like you know forced hospitalization and someone's like well I just have add and you're like yeah we have an accommodation it's like no you would can't be a way of minimizing just your effort and putting everybody in this same bucket right is it something like that

0:18:56 Jenessa: Exactly right and that's exactly what the majority is going to say is are less restrictive environments this person can be in making them wait for three years is not reasonable um are going to get into a weird sort of, oh, we have to remand this because you assessed it wrong. You have to use a different standard, blah, blah. So they're not going to say flat out, this this exact circumstance, that's officially too long or set a timeline for us. But what case will do going forward, essentially it sets up a rule for us that institutionalization is segregation, is discrimination, sometimes that's appropriate, but if you're treating medical professionals, especially state professionals, are saying you don't need this, then you don'T need this. And within reason taking into account the state's resources blah blah blah no you do have to provide community -based settings um be a key part of this debate is lawyer for the women will say hey if you provide a service which is these this training on how to live more independently, that kind of thing, then you have to provide less restrictive environments. You have to allow for community -based. I guess in theory, the state could provide no mental health treatment for literally anyone, in case there would be neither institutionalization nor community - based care.

0:20:37 Jenessa: But if you provide any mental health treatment, this clearly requires that you not only, exactly like you were saying, institutionalization is not the only option. It's, oh, you either institutionalize yourself and you can't leave. You have to give, if you give 72 hours notice, you can leave and get no treatment or you can go sleep on the street. Well, no, that's, not an option. You you have to have these other options.

0:20:37 Thomas: Huh why did it have to be structured in that way that it was dependent on whether or not they were doing some amount of training because wouldn't that just incentivize people to be like oh okay we'll just not help anyone why

0:21:13 Jenessa: Do raise that concern at one point, like, are we going to accidentally incentivize, just close all the institutions because we don't want to get sued? Pretty clearly, that's just an empty threat. I

0:21:25 Thomas: Guess my question is why does it need to be structured that way like something about the law means you have to like there isn't any other way to get them to okay yeah good oh

0:21:36 Jenessa: Have federal courts here and specifically a federal law, the Americans with Disabilities Act, that we can't make states do things. But like if you contingent upon receiving our funding, then all of a sudden we can regulate you is a classic way to do it. But

0:21:55 Thomas: And the thing they're receiving funding for is providing some sort of like health mental health care thing right

0:22:00 Jenessa: Yeah, almost always Social Security disability will pay for these individuals' housing, whether they're institutionalized or in their own home or a group home. And

0:22:09 Thomas: Gotcha so they couldn't just give up serving these people without losing a whole bunch of funding That makes sense. Gotcha.

0:22:15 Jenessa: So realistically, nobody's going to stop providing all services. First of all, it'd be terrible for your state. You would give up a ton of funding.

0:22:23 Thomas: I the ACA would like to have a word, but this predates that. So maybe Republicans weren't that suicidal back then, but no, they just, a whole bunch of Republicans just turned down free healthcare money because racism. That's a thing that happened in our country. But I don't think back then things were quite that extreme so I think back then it might have been a different different framework well

0:22:43 Jenessa: Pretty much I and I think you'll hear that in lawyer for this is the state of georgia um is gonna have a really hard time towing the line on like um technically we think we we are not required to provide any of these services. But like one time he says it and gets her to say it for the third time and she has like a big sigh first. Like, yes, okay, fine. But the culture of the 90s, that was the last thing you wanted to say was like, yeah, we could hypothetically give nobody any mental health treatment and just make everyone homeless and not do anything.

0:23:23 Jenessa: But not the exact point we're arguing today. Day and Scalia's Alito's like but you could right it's like oh my god yeah

0:23:30 Thomas: I almost imagine that the point might be you do always have the option to turn this down or play by these rules is what it seems like you might be saying yeah

0:23:40 Jenessa: And one of the things he'll really harp on is this of like well but you're providing a service if you provide the institutionalization like you're still providing the treatment they just have to agree to be institutionalized what's the big deal and really nailing her down on, so do provide some community -based services in this case, but you just took forever to give it to these women. Hypothetically, you don t have to provide any community - based service, right? She s like, but And he s like but you don t have to, right, like he will nail her down this. It is the position of the state that they could provide no one any community -based service they could institutionalization could be the only option the majority is going to say absolutely not that can't be true um there's quite a few good examples in the oral arguments where the justices get into it um Kennedy has a really great example, I think, of how we tease apart what you are and aren't saying here?

0:24:46 Clip: Well, but their point was that if they left the hospital, then they, under your scheme, they couldn't get any treatment at all. Wasn't that their point? No, excuse me. Actually, in fact, she did leave, one of these patients left the Hospital during the day and then returned at night. No, I meant if she left the Hospital permanently. If she said, I don't want to stay in the Hospital at all? It's also, that's also untrue under the facts of this case, under the fact that this case... What we're trying to do is to test what your legal theory is, and it's still not quite clear to me. Suppose you have a classification of disabled people who are partially paralyzed and need catheterization during the day. They need some fairly constant care, but it is provided and can be provided in an integrated setting. Assume that. Then assume that the state says any blind person is ineligible for this integrated treatment and must remain in a hospital.

0:25:48 Clip: Is that a permissible judgment? It seems to me that you are saying that it is. No, we would not be saying that. If that would actually reach what we say would be covered by the ADA, which is that services that are available to one class of disabled cannot be excluded substituted by another class based on the disability itself. I thought that's what the respondents were saying. And if you say, well, there are reasons why they should be in the hospital because it's involuntary medication sometimes in some context, then that's quite different. I thought what you were saying, that the state has the capacity to decide what kind of treatment it will grant to discrete kinds of disabilities. And if hospital treatment is, in a sense, excessive treatment, so be it. The state can make that distinction disability by disability. That's the way I read your brief.

0:26:46 Clip: The state's position is that if a person were excluded from hospital treatment or community treatment by reason of a disability, for example, if the person had AIDS and were prohibited from going into the hospital or if were prohibited form going into community treatment because of that disability, That would violate the ADA, and that would violate it under the terms of the statute which require that a person not be excluded by reason of disability. I

0:27:10 Jenessa: Can see in that back and forth, one of the things they're trying to get at is is this issue of discrimination where have people with disabilities and people who do not have disabilities. It. The definition of discrimination? It's the old school. You have to find disparate impact. You have to a comparable as similarly situated group of people who don't get the same thing. And really focused on disability versus not disability, then can be a little tough, especially if you want to adhere to Thomas is going to write a dissent that says like discrimination means two similarly situated groups. He's going to pull the classic like, oh, you know, well, there's people who don't have disabilities, but they don't need the institutionalized care. So it's not that we provide it to people with disabilities and not people with not disabilities. It's just everybody could or could. And it's like, all right, people exactly the one of like, no, no no, it's interracial marriage isn't allowed for anybody, including not interracal couples.

0:28:04 Thomas: The old anybody's free to get straight married argument. Yeah. Yeah. Yeah. Yeah.

0:28:17 Jenessa: It's like, what the, all

0:28:17 Thomas: It's amazing how much that has come up. I thought that was original to the stupid gay marriage argument uh but nope it turns out that's their go -to okay right

0:28:21 Jenessa: The time. I'm aware of it is in the interracical marriage context where as humanly possible, of course the non -interracial couple does not request the interracial like the the service is marriage not interracital marriages and like normal marriages like the way they're trying to portray it the same thing comes up in gay marriage there was a successful argument of that that pregnancy discrimination is not inherently gender discrimination because like we it's not on the basis of gender it's on on the basis of pregnancy and it's like okay but probably

0:28:59 Thomas: Nowadays I think they could they could weaponize trans arguments against it to make that argument right because they'd be like hey you're you're the ones who are saying that uh can give birth too so I honestly that might be kind of the correct answer except except the key is know we on the left I feel like we tend to be like yeah but if the practical effect of something is is it uh kagan I want to say who say uh like a law against yarmulkes is is effectively a against jewish people and you don't get to say like hey no anybody anybody the same does isn't allowed to do you know something that's only associated with one group

0:29:34 Jenessa: Exactly exactly % like people are the ones who are experiencing pregnancy. So like, yeah, of course, pregnancy discrimination wildly disparately impacts one sex and one gender. Like, um and they were like no no it's different uh we have it now in federal statute so but technically the constitutional protection I don't know if that ever got overturned um argument has persisted forever and thomas will pull it again that that you can't identify a similarly situated group of non -disabled people and it's like yeah yeah, because they who goes for medical treatment has at least temporarily some form of who's perfectly healthy going. That's not a thing.

0:30:19 Thomas: I don't even think I follow that uh yeah what is he you trying to say what

0:30:23 Jenessa: So incredibly silly in this example that it truly is hard to make sense of it. Um, classic example would be for racial discrimination. You identify the similarly situated. You know, let's say it was a black person alleging this. Well, the white people at my job don't have to do this other thing or they did get this extra special training and I was just fired instead or whatever. It's similarly situated. It's another person trying to work at the same company.

0:30:52 Thomas: Is the function of this argument are who you has to do this for what argument

0:30:56 Jenessa: You accept the disability definition that the majority word he is going with here, this idea that they said, what does it mean to discriminate on the basis of disability? One of the things it means is to segregate, to institutionalize when it's not necessary. That is discrimination. If you say, no, the we've always used the word discrimination means you have to identify some other group of people who are the comparable, the similarly situated group who are getting treated better than you. Either you get treated worse or they get special treatment that you don't get.

0:31:33 Thomas: To be able to prove discrimination okay yeah

0:31:37 Jenessa: So if you treat the, you know, Thomas will say those congressional findings are like too vague and they're not really a definition. I don't know that it's vague at all. I mean, it says very explicit. Yeah, it's telling us institutionalization is one of the ways yeah that's what I think he's going to say like you can't identify a similarly situated group of non -disabled people like with disabilities do or don't get treatments and that's not discrimination they all do or don't need treatment so

0:31:47 Thomas: Sounds pretty specific you're vague you're vag clearance yeah yeah wow that is truly abstract I have an art like I'm trying to put that into like what that would even mean and And I think I might just stop trying, which is rare for me, but you know, for the sake of moving on.

0:32:18 Jenessa: I yeah, I would argue it makes like literally zero sense. And that's what quite a few of the liberal and moderate justices are trying to get ahead of that with this kind of example. So than we have to find some group of non -disabled people who are in the same position, what that mean? How could that exist? Exist. That like the not interracial couple trying to get interracially married. It doesn't make sense.

0:32:50 Thomas: That's nothing, dude.

0:32:51 Jenessa: Instead, let's look at different groups within disability who might get treated differently. Suitor at get into this starts

0:33:02 Clip: I ask you about that? Because it seems to me that your argument in this respect assumes that there is some kind of uniform and unvarying class of persons who are handicapped. And it seems to me that that is not so. There are all sorts of handicaps. There are handicaps of all sorts of degrees.

0:33:24 Clip: And recognizing the degree that is involved, let me put this question to you and ask you to explain your position in relation to it. Let's assume that there is a class of handicapped persons who, because of their handicaps, are simply unsuited to live outside of an institution. Assume, secondly, that there are a group of handicaped individuals who can perfectly well live outside the institution despite the handicap. And, of course, assume three, there's a general population of people who don't live in institutions. If the government treats the second group, those whose handicaps are irrelevant to institutionalization, the same way it treats the first group, those who have to live in institutions because of the handicap, isn't that, and they do so on the grounds that there is a handicap, even though it does not require institutionalization. In that case, isn't the government engaging in a discrimination on the basis of handicap in relation to the second group?

0:34:28 Clip: We would say no. Why not? The second group which you posited needs a certain level of treatment, that this level of treatement can be provided appropriately in the hospital and that the person can benefit from that treatment provided in the hospice. So you're saying that if hospitalization would provide some appropriate treatment, that in effect renders irrelevant the fact that an individual can live outside the institution and presumably get the treatment on a daycare basis or something of that sort. That's basically your argument. We wouldn't say that it renders it relevant. However, we would say that the mere fact that the person could also be treated in the community would not make hospital treatment discriminatory. In fact, the very structure of the Medicaid Act presumed that this was the case, and under the Medicaid act, Congress has always favored institutional treatment over community treatment. Well, do you accept the position, just as a matter of statutory interpretation, that I'll assume for my question that your answer gives one version of what might be regarded as discrimination? Discrimination. I'll accept your answer as a possible interpretation.

0:34:27 Thomas: You would think because we want to okay

0:35:47 Clip: Do you also take the position that your interpretation is the only possible way of construing discrimination within the statute? In other words, do you say that although your answer is a legitimate one, do you also say that in my hypothesis it simply would not be a legitimate interpretation of the the statute to say on my hypothesis that there was discrimination because the middle group was treated like the first, not the third? Is my interpretation impossible? Well, I believe that. Or unreasonable. Respectfully, I think that. I believe it is. Why is it unreasonable? It presumes that the person's disability is irrelevant to their hospitalization. Well, that's right. That's the hypothesis of the very question.

0:36:34 Jenessa: Can be helpful to hear her struggling and waffling with this, I think. What he's really trying to get at there is we kind of do. We have three groups, right? We have group one, who is a subset of people who really benefit the most from institutionalization. I always hesitate to say need. A group of people whose disability is not relevant to hospitalization. Like, there's no reason they should have to go to a hospital to get this treatment. They could get the treatment in a hundred other places, like outpatient, think of it that way. And then there's obviously the group of people who don't have disabilities, who don'T need any treatment. Shouldn't you treat group two like group three because their disability has does not require institutionalization why should you treat them like oh they have a disability put all the disability people in one group and if you do that I don't have a comparison group anymore I would have just all the people with disabilities and some of them get hospitalized and some OFM don't and like what can you do And, you know, some of them, if you want treatment, you have to come to the hospital. If recognize that disability is like 400 different things and all of them are on a spectrum, then you suddenly realize there's could break it into these three groups. And now the comparison becomes more logical.

0:37:30 Thomas: I see yeah

0:37:58 Jenessa: Was getting at that the same way of like what if you said oh here's this service but the blind people have to come get it in the hospital like that's obviously not okay right so so now what how are how are you gonna tell me you agree with me that that's not okay but you just told me you think yeah disability is disability if we provide the service like what what do we care? Essentially trying to set up, you can have discrimination within group, which we normally don't think about it that way. Like if you were to allege racial discrimination, you said, okay, I am a member of a protected class. I'm a racial minority, historically discriminated minority, whatever. Thomas will use this example in his dissent that cases have said this. If you were a Black person and you said, there's this training program available for people who are, you know, lacking a certain skill. And instead of doing that for me, they just fired me. And they have given it to other people. Then what you identify is they've given it two other white and Black people. It's goes to the white people and we can show it disparately doesn't go to the black people who work here if

0:39:12 Thomas: Might just be like they hate this particular guy and nothing to do with this race they would yeah

0:39:18 Jenessa: It's like it's not chill but it's Not Discrimination right um Thomas would like you to think of it that way that disability discrimination has to be it has to be between group there's disability and there's not disability and they're trying to set up with with all these hypotheticals, can't it be there's all these, like, this is not the same as like race, -based discrimination of like, they are, you don't require that they treat all races badly, right?

0:39:47 Thomas: That would be silly or

0:39:48 Jenessa: Could have a boss who's racist against black people and not Hispanic people or something.

0:39:53 Thomas: Like what if it's like a specific um of black person like from a particular like heritage you would be a very bad outcome if it was like oh yeah you can you people from you of the correct or something but because you're not discriminating against all black people it's totally fine right

0:40:09 Jenessa: That would obviously be ridiculous. What they're really trying to parse out here is like, actually, you can still make this make sense. So one we were just doing a 14th Amendment thing, if that's all you were relying on, yes, you have to compare groups. Congress told us it's discrimination to institutionalize when you don't have to. I don't Have to go find a disparate group. Like, get out of here. They will kind of mention it, which I think opens the door for concurrences and dissent to say, yeah, you seem to agree with us that you need to find disparate impacts somewhere. You need to fine some comparable groups somewhere. Think you just don't. I thin it's fine. Um we can parse this out you have people who need institutionalization and people who don't and you're treating them all the same which is discrimination I know treating people the same doesn't usually sound like discriminating but but like it is so a really nitpicky thing but it's trying to get out in front of what thomas is gonna write that like, nope, you can't find non -disabled people to compare. So the end. That's what discrimination means.

0:41:18 Thomas: Ridiculous yeah

0:41:18 Jenessa: Cite the dictionary in a couple of places. Different dictionaries for different things, which always drives me nuts. Shouldn't you be able to just rely on one dictionary if this is like this is what the word means?

0:41:30 Jenessa: Yeah, going to get the majority and the concurrences to get on board with this idea that really, no, we can have it be within the population of disability, you can still discriminate. Super helpful for everything going forward to

0:41:46 Thomas: It seems pretty freaking obvious I'm surprised that we I think one of the things that makes it confusing is it's such a dumb idea that you're like well surely that that can't be what they're arguing about because what if you just freaking hated blind people and but like you're super you're awesome with other forms of disability you can't believe it's fine because I I treat deaf people great. So therefore, if I'm like every single blind person, I'm like, fuck you, you're fired. Oh, sorry, I can't. Every single blind person like, screw you, you're hired. I think everyone would be like, that's not cool, man.

0:41:54 Jenessa: I know. Yeah, like that can't be and obviously qualify as disability discrimination oh

0:42:27 Thomas: Here's another thing. And feel free to tell me if I in my interpretation. There's no chance they give a crap about this argument when it comes to religion. They wouldn't be like oh, I am fine discriminating against Christians. That's great. But But I don't discriminate against all the other religions. So I'm not discriminating on the basis of religion. That the level of stupid argument?

0:42:31 Jenessa: My god never right they don't only compare religion and irreligion like

0:42:49 Thomas: Yeah. Am I crazy? Like, cause that seems like a very dumb argument.

0:42:53 Jenessa: I would agree completely I take a lot of pains to get themselves to five people because you will get the Chief Justice, Rehnquist, and Scalia all doing this dissent. Not discrimination. Don't know what you're talking about.

0:43:11 Thomas: Sort of heard the description of the facts before putting it into this framework. So the thing that's not discrimination is the fact that, and this is the dissent, mind mind you, but the thing that they're saying isn't discrimination is keeping someone institutionalized way longer than they need to be.

0:43:25 Jenessa: Them institutionalized at all. You can just say, to get this treatment, we offer it in an institution. Take it or leave it. I don't need institutionalization. Too bad.

0:43:36 Thomas: You're like, yeah, I just have dyslexia. They're like sorry.

0:43:40 Jenessa: Actually use dyslexia as an example in here. And a big back and forth about like what if we had a service that's only people with dyslexia can't do it like you have to agree that's wrong right and she's like totally and he's like okay so come with me here you you can't treat different disability groups different and can't tell if this person is not great at arguing or is is struggling with the fact that they're just obviously going to lose because this is silly.

0:44:11 Thomas: Have seen that in recent days, but, but I feel like back then it wasn't, you know, the Trump administration. So maybe they had a better argument, but but I don't know. Maybe not.

0:44:18 Jenessa: Definitely see a lot of places where the justices ask a pretty direct question, like, do you think it is disparate treatment or unjustified disparate treatment? And she starts defining unjustified, disparate treatment. He's like, that's not what I asked. Does unjustified disparate treat matter or is it only disparate treatment? Because like, that's my question. There's quite a few places where you'll see her scrambling, umming, uhhing, and then just not answering it. And it's, it's always tough to tell. Yeah. Are they not answering because they they know they don'T have a good answer or because she's just not really understanding the question and is kind of going back and forth there's a good example of this at is gonna pull us in you

0:45:05 Clip: Question presented in the petition for certiorari, whether the public services portion of the federal ADA compels the state to provide treatment and habilitation for mentally disabled persons in a community placement when appropriate treatment and habililation can also be provided to them in a state mental institution.

0:45:26 Clip: That's correct. Well, it's correct because that's the question you presented. It's

0:45:35 Jenessa: Hate to make fun of this person but there's everybody in the courtroom laughing about like yeah that's your question presented that's in in your brief. And she's like, yeah, that is my position.

0:45:47 Thomas: Yeah. She has a sentence here that might help. I

0:45:49 Jenessa: Yeah. Go ahead.

0:45:52 Clip: A community placement is available, that that does not constitute discrimination. It is a fundamental alteration of the state's services to require the state to close down institutions. Well, that issue is open on remand, I assume. We think that that goes to the issue

0:46:15 Jenessa: You can kind of hear it there, the back and forth of we were going to ask that question, we're going to do it on remand. We're not going to do, that wasn't your question. We just established what your question was two seconds ago and

0:46:27 Clip: Whether there's been discrimination in the first instance. Can you make that wait longer for the mentally ill than for other disabilities? No, no. If the person meets the qualifications for the services, then they can certainly access the services when they're available. And I would like to ask you about the financial, whatever it was,

0:46:50 Jenessa: That'll ultimately be what they remand on is like okay so 11th circuit remanded it back to the district court and said hey can't just declare it blanket oh it's discrimination in the end um do have to consider you is the financial cost of institutionalization versus community -based because wouldn't be the end of the discussion but it's relevant um it's like there's aren't beds available there's only so many beds available and this is our budget and oh my god we're strapped for cash like it'S NOT not an absolute violation, the end, that we will take kind financial situation into consideration. One of the things that's really interesting here. So You need to get a majority for the opinion to be binding. Usually there's nine justices, you're going to need at least five. Otherwise, if it was like four and then one concurrence and then four dissenting or some breakdown like that, the ruling would be binding on those parties. Like it would be a decision for you and me. But in the exact same scenario appeared again later, would we have this rule? And the answer would be like, technically, no, there's no rule here. Something that you'll will often see happen, a justice who wants to write a concurrence and has a little bit of a beef with it, but also wants to make sure that there is binding precedent out of this, the numbers won't always add up. So we have five for the majority. We have one concurrence, another concurrence. And then three on a dissent. And it's all over the place where on the second concurrence one of the people from the majority joined only the first part of that concurrence um you end up with is justice stevens is going to join to be number five on parts one two and three a of the decision so

0:47:59 Thomas: Interesting oh god everyone get out your spreadsheets okay

0:48:41 Jenessa: It's me a lot of diagramming um parts will be binding on everybody so the first part is just like reciting the facts of the case yeah of course we kind of agree with that right the second part is going to have um laws and like there can be some interpretation in there but mostly it's things we should all agree on this is the law every once in a while the dissent will be like no I don't like how you interpreted that that case, whatever. 3A, that's the one you still got five votes. They're going to say this is discrimination and hunt for another class is complicated, but Congress told us what discrimination is. So like, can we all just get comfortable with this? What Stevens won't join is 3B and therefore this part of the majority opinion is not technically binding it only got four votes is all about oh you can't just look at the cost of this these two versus the state's whole budget like that's always going to be negligible you got to look at this and this and these factors and whether the state would do a versus b versus c if they had to think about everybody um a little bit of things that are not so great. It's some good stuff where US government had written in amicus that said, what the state was considering reducing their institutions? Institutions so actually like even if it were more expensive to put this individual in community -based care it would be cheaper as a whole because they're trying to reduce their institutions and putting everybody in community based is better really community -base is almost always cheaper to have people in a group home or in their own home even a one -on -one aid who stays with the person 24 -7 is like cheaper than running a state -run hospital generally I

0:50:29 Thomas: That's hard to believe wow okay oh

0:50:31 Jenessa: Know yeah the the math works out on that. Many ways, a lot of it is because when people get out in the community, they contribute to the community. Huge. People are more likely to be employed. Obviously, if you're in a locked ward, you can't get employment.

0:50:46 Thomas: I didn't think about that if you're figuring this out for cost of the government you got to account for that like they will be be paying taxes if they're actually working I

0:50:53 Jenessa: There's so much to consider. Yeah? Know, obviously, I don't want to put somebody's dignity like a dollar amount on it, but we do often, unfortunately. Stevens won't join that. So that's technically the exact way you should figure out the costs here is not binding precedent. Stevens will write us a single paragraph where he's like, just remand it and let the district court figure that out. That's not my job and not my problem. And you didn't bring me the facts I wanted um writes a concurrence Breyer only joins the first part where the first part is like oh you know even if they did have to find a comparable group they could probably still prove discrimination um is discriminatory like this is hurting a lot of people and then the part two is more about like I do think you have to find a disparate group that's the part Breyer won't join that's why he's in the majority majority and then like we said the dissent with three of them so um important to do that math on like really read that caption carefully who joined what because you can end up with a majority opinion where a sliver of it is not in fact binding it only got four votes

0:52:02 Thomas: So I think I was confused at first because I was like well if no if if something didn't get the majority how's this decision but you're saying there's a majority on some grounds but like some other grounds if if it doesn't reach five or a majority I guess depending it could be different number of justices hypothetically doesn't a majority that means that basically next time this issue comes up that that component is could be exactly the same doesn't matter there's it's like fresh like

0:52:30 Jenessa: Question of how exactly to do all your budgeting budgeting that is open by the end of this case the

0:52:36 Thomas: You know hypothetically maybe more importantly correct me if I'm wrong not just like oh if this comes up against the supreme court again it's Like lower courts interpreting this don't look at that part

0:52:45 Jenessa: Yeah part would be persuasive four out of five on the majority endorsed this it's interesting

0:52:48 Thomas: Doing the four out of five dentist thing four out five dentists said this part of the decision was good right

0:53:00 Jenessa: And the critical part is that piece oh it only got four votes isn't that the a minority. No, because you've got one concurrence with one person and one concurrency where there's one person for both and one person for one part. And it's still a plurality. So it's still that part is still binding on these plaintiffs and defendants. But it's not necessarily binding on like lower courts don't have to follow this because we haven't set it in stone yet how you're going to do this kind of budget. It and by then it's going to settle and not go back up a billionth time right so once you've established this can absolutely be called discrimination without like trying to hunt down this group and you can be required to provide community -based settings um the quibble about is three years too long I mean yes it is right like she tries to say in her opening they they had to to be on a wait list for a short time. And I'm like, ma'am, years.

0:53:59 Thomas: You try being institutionalized against your will for that long well

0:54:05 Jenessa: Like, the only other option was for this person to wait 72 hours, discharge themselves, and get no treatment. Not an option. Just a really helpful decision. It persists to to this day, New York is updating its Olmstead plan right now, which is how are we doing on making sure we don't institutionalize people who don't need it? And what is our plan for somebody who's like in a nursing home and got rehabilitated and doesn't need to be there anymore? Like, oh, do we have enough group homes? Do we have another group home? Do you have enough outpatient? Do We have enough? We absolutely do not have enough home care aides to come into your house and help you out yeah you take everything into account it's I think it's juste because partly discrimination and presuppositions that people have and partly it just sounds like how could a one -on -one aid be less expensive but when you take everything into consideration the expense of like running a hospital bed is like through the roof in this country. On to it the contributions this person gets and then add on to it, I don't care what the dollar amount is. It's not right. Exist and it's a way to combat this, to say, I do not need to be institutionalized. Why am I here? And

0:54:45 Thomas: If you're saying it's it's expensive why the f not why so we're somehow already out of time. So just, this one was a little technical. I just want to make sure we understand when this was, this is something of a landmark decision, right? I mean, that's why we're talking about it. What's the landmark? Give me the, give me the cliff notes on that so that we make sure that we have the right takeaway here.

0:55:41 Jenessa: Your state is offering mental health, physical health, whatever, they're offering services to people with disabilities. They have to offer it in the least restrictive setting. You have to have group homes. It is not an option. Rather than like, oh, well, you offer a treatment option, good enough. If you're going to have institutions, you also have tohave group homes and halfway houses and me the least help possible. I institutionalized if I want to, but if I Want Less and I'm qualified for less, you have to give it to me. And that is huge to be able to say for a patient who's, for example, in a nursing home and does not need to be there, you're breaking the law. You have to have alternatives available, taking into account the state's budget and blah blah blah yeah it's a big help yeah

0:56:35 Thomas: That's kind of details. That does sound important. That sounds like it would make a massive difference. Yeah in the end though I mean it sounds like we had four at least four justices who were you pretty shitty on this like they they resisted this pretty hard

0:56:49 Jenessa: You got three who did the like really conservative like if you can't find non -disabled people experiencing not this discrimination somehow comparably situate oh too bad it's not not discrimination. We don't care about those congressional findings. Then you've got one who's going to argue, I do think you have to do that, but I think these plaintiffs could show that. Would have remanded and asked them to do this extensive finding. It's unfortunate. And I think Thomas, still on the court, continuing to bring that attitude about disability, which is really unfortunate.

0:57:28 Jenessa: The good news is he's remained in dissents every single time when he takes this really extreme view on disability. You know, yeah. And really disability crosses all political lines. It's coming for all of us. Like many people do you know who don't have any mental health condition, their back doesn't hurt, they're not taking any like everybody's taking a medication or something it's coming for all of us if it hasn't hit you already and I think that tends to make it less partisan that

0:57:27 Thomas: For now huh it's also good news that that he's closer to death than ever.

0:57:53 Thomas: I'm already at zero. I'm went down. Does it, you're the first question. Yeah.

0:58:09 Jenessa: With the older justices that staring down the barrel of it themselves and is them they're talking about their

0:58:15 Thomas: Clarence, you should be in a home. So surely, you know, you, you, you want to exactly.

0:58:20 Jenessa: You would want that to be as non -discriminatory and reasonable as possible, right?

0:58:24 Thomas: Yeah.

0:58:24 Jenessa: Because it's coming for you. Overall, just like a really solid, helpful decision. And law students, it's a good one to read to really parse out these are tricky, who signed on to what. It's a great way to get to know each other. A good learning experience, I think.

0:58:41 Thomas: All right. Well, Jenessa, thanks as always for the deep dive. Next time people hear me, my voice will be better. I'll be working on it, but appreciate you. And thanks listeners. We'll see you on Wednesday.

0:58:52 Jenessa: Talking to you.

0:58:56 Clip: This has been Opening Arguments, produced by Thomas and Lydia Smith, with editing help from Peter Baird. The intro is by Thomas Smith. This outro is by Matt Cameron. Support the show at patreon.com/law. Contact us through Patreon or openarguments@gmail.com. Make sure to follow our blue sky at OpenArgs. But most of all, please share the show. Thanks for listening.

0:59:28 Thomas: Vag clearance yeah

0:59:31 Jenessa: Not chill but it's Not Discrimination right um

0:59:35 Thomas: And die. I can multitask.