Home | Business News | Browse by Publication | Y | Yale Law Journal

Olmstead v. L.C. and the Voluntary Cessation Doctrine: toward a more holistic analysis of the "effectively working plan".

Article Excerpt
Disability advocates have heralded Olmstead v. L.C. (1) as "the Brown v. Board of Education for the law of disability discrimination." (2) Olmstead concerned a pair of women with mental illnesses institutionalized at a state psychiatric hospital. State medical employees agreed that both women could be treated in a community-based program. However, the state refused to grant their requests for placement in such a program. (3) The two women filed suit, asserting a protected interest in receiving state-provided treatment services in an integrated setting rather than an institutional one. (4) Finding in their favor, the Supreme Court held that unnecessary segregation of individuals with disabilities constitutes discrimination under Title II of the Americans with Disabilities Act. (5)

Ten years after the Court's decision, comparisons with Brown have proved apt if inauspicious. In Olmstead, the Court reasoned that institutional placement of individuals capable of living in the community "perpetuates unwarranted assumptions" about such individuals and "severely diminishes" their quality of life. (6) In so doing, it echoed the mantra in Brown: separate is inherently unequal. (7) Yet a plurality of the Court tempered Olmstead's integration mandate by recognizing an affirmative "fundamental alteration" defense. (8) The plurality indicated that a state would meet this defense if it has a "comprehensive, effectively working plan for placing qualified persons with mental disabilities in less restrictive settings." (9) This vague deference to state plans has occasioned a struggle for enforcement comparable to the struggle that followed Brown. (10)

This Comment argues that the federal courts have embarked on a path of judicial interpretation that threatens to render the "working plan" provision in Olmstead a "get out of jail free" card for states otherwise in violation of the decision's integration mandate. Courts have split between a pair of problematic approaches in assessing plans: a retrospective approach and a prospective approach. The retrospective approach gives undue weight to past state actions; the prospective approach relies uncritically on state promises to take future action. To ensure that states cannot successfully invoke the "working plan" provision in the absence of a genuine commitment to integration and deinstitutionalization, this Comment urges courts to analyze plans under the voluntary cessation doctrine. This approach would examine both past conduct and present assurances to assess the likelihood of future compliance.

The argument progresses as follows. Part I discusses the present split in the federal courts of appeals between the prospective and retrospective approaches to assessing state working plans. Part II explains the voluntary cessation doctrine and argues that it can be applied to state working plans. Finally, Part III applies the voluntary cessation doctrine to state working plans and demonstrates how this approach will provide the relief that Olmstead mandates.

I. OLMSTEAD WORKING PLANS AND THE COURTS

The plurality in Olmstead provided scant guidance concerning the necessary conditions for a state working plan to be "comprehensive" and "effectively working." (11) In its most favorable light, this may reflect "recognition of the limited capacity of courts to shoulder the burden of significant social change on their own." (12) In its least favorable light, however, the indeterminate language may allow states to proceed with merely symbolic changes. (13) The federal courts have split between a retrospective approach to analyzing working plans and a prospective approach....

View this article FREE - Now for a Limited Time, try Goliath Business News
Free for 3 Days!