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II. Depriving An Individual Of The Important Benefits Of Community

Integration, Unless Such A Setting Is Inappropriate For The Individual

According To Reasonable Professional Judgment, Is Discrimination Under

The ADA.

The Attorney General’s presumptive integration mandate rests on a simple proposition. A State’s deprivation of the benefits of community living, imposed as a condition for a person with a disability to receive a service from the public entity, when not justified by the needs of that individual, is prohibited discrimination (whenever, as will virtually always be the case, other individuals without [page 19] a disability who are receiving other government services are not subject to the same deprivation as a condition of receiving government services). As long as that principle is applied with the recognition that institutional settings are appropriate for some individuals, and with reliance on professional judgment in making the appropriateness determination, it is an unimpeachable implementation of the ADA.

A. The principle at issue is amply supported in the statute. Congress made express findings recognizing that isolation from community settings may be a "form[] of discrimination." § 12101(a)(2). It included "segregation, and relegation to lesser services, programs, activities, benefits, jobs, or other opportunities" in a list of "various forms of discrimination." § 12101(a)(5). It declared that "the Nation’s proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living, and economic self-sufficiency for such individuals" (§ 12101(a)(8)) and that "unfair and unnecessary discrimination and prejudice denies . . . the opportunity to compete on an equal basis and to pursue those opportunities for which our free society is justifiably famous" (§ 12101(a)(9)). Living in a community setting is for most people essential to pursuit of a full range of life opportunities and to "full participation, independent living, and economic self-sufficiency." These findings, applicable to the ADA as a whole, properly inform the construction and implementation of the simple, general bar on discrimination in Title II (§ 12132) and support the Attorney General’s presumptive integration mandate.

So, too, do the indications of what constitutes discrimination found elsewhere in the ADA, which, indeed, the Attorney General is guided to respect in promulgating regulations (§ 12134(b)). Title I, governing employment, [page 20] treats as discrimination practices that "segregat[e] . . . in a way that adversely affects the opportunities or status of . . . [an] employee because of the disability." § 12112(b)(1). Title III, governing public accommodations, presumes discrimination when a service "is different or separate from that provided to other individuals, unless such action is necessary" to ensure comparable "effective[ness]" (§ 12182(b)(1)(A)) and specifies that goods, services, etc. "shall be afforded to an individual with a disability in the most integrated setting appropriate to the needs of the individual" (§ 12182(b)(1)(B)). See also § 12182(b)(1)(C) (even if separate program justified, opportunity to participate in the program that is "not separate or different" may not be denied). Those congressional declarations of policy elsewhere in the Act reinforce the reasonableness of the presumptive integration mandate adopted by the Attorney General under Title II.

B. These statutory indications reflect the familiar history of State-operated institutions for the care and treatment of persons with mental illness or retardation. Institutions in their origins were often noble in aim and design. See, e.g., Pet. Br. 3-5. But by the time Congress enacted the ADA in 1990, it had plainly come to favor the provision of mental-health and mental-retardation services in settings as integrated as possible, given the needs of the individuals involved.

The congressional determination reflects at least two important judgments about the price involved in institutional settings for individuals who can handle and benefit from community settings. One is the judgment, familiar in the context of racial segregation, that a powerful stigma often attaches to those who are separated from society–even when the separation is "only" the price of receiving services that, for the individual, are practicably unavoidable. See H.R. Rep. 485, Part II, at 41-43; H.R. Rep. [page 21] 485, Part III, at 26. The other is the common-sense judgment that isolation from community settings can have far-reaching effects in curtailing the life opportunities of individuals–including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment. For individuals able to manage the process, the ability to choose exposure to the world of opportunities that depend on community integration is invaluable. Indeed, in mental-health terms, the enhancement of such manageable opportunities is near the core of what treatment and "habilitation" are fundamentally designed to achieve.

These judgments are reflected in the strong national consensus and trend over the last two decades to provide services for persons with mental illness or retardation increasingly in community settings and decreasingly in institutional settings. See, e.g., Pet. Br. 6-8; Amicus Br. for National Conf. Of State Legislatures 3-4, 10-11.5 Medically, the advent of new psychiatric medications beginning in the 1950s contributed centrally to making possible this dramatic change. See P. Appelbaum, Almost A Revolution: Mental Health Law and the Limits of Change 50 (1994). Financial and governmental commitment to providing the needed community services lagged behind, contributing often to neglect and homelessness. See P. Appelbaum, supra, at 51; E.F. Torrey, Nowhere to Go: [page 22] The Tragic Odyssey of the Homeless Mentally Ill (1988); R.J. Isaac & V.C. Armat, Madness in the Streets: How Psychiatry and the Law Abandoned the Mentally Ill (1990). But in recent years, various changes in federal as well as state policies have increasingly supported community-based services. See Pet. App. 26a; Pet. Br. 30-31. Today, the widespread recognition of the importance of community integration, both in avoiding stigma that is often attached to separation and in providing the fullest possible range of life opportunities and experiences, is undeniable.

C. To say that the opportunity for community integration is generally an important personal and social good is not, of course, to say that it is the right result for everyone at all times. Some individuals, whether mentally retarded or mentally ill, are not prepared at particular times–perhaps in the short run, perhaps in the long run–for the risks and exposure of the less protective environment of community settings. See Amicus Br. of Voice of the Retarded 3-4, 7-8 ("This Court may safely assume that all disabled welcome the maximum liberty which their condition permits. The difference is medical: not all disabilities permit community placement."); City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 442 (1985) (footnote omitted) (noting wide variation in circumstances of mentally retarded). For such individuals, at such times, an institutional setting may be the best environment for care and treatment, often (though not always) for a temporary period leading to re-integration into community life. To be sure, advances in antipsychotic medications and in treatment programs have meant that most individuals who previously were institutionalized can be treated in community settings–as long, that is, as necessary services are in fact provided in that setting. For [page 23] others, however, institutional settings are needed and must remain available. 6

Accordingly, an extreme position in either direction can be cruel and harmful to the individuals whose interests are at stake. On one hand, isolation from the community, when not justified by the individual’s needs, is undoubtedly a serious deprivation for the individual–and also reinforces the very discrimination-promoting attitudes that Congress consciously undertook to combat in the ADA. On the other hand, relegation to the exposure of an insufficiently protective environment, when such protection is needed, may be dangerous and destructive for the individual, as well as for society, in turn undercutting the objectives of the ADA. Sweeping global pronouncements are out of place. It is individuals’ interests that are stake [page 24] (cf. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995) ("basic principle that the Fifth and Fourteenth Amendments to the Constitution protect persons, not groups")), and individuals’ interests and their circumstances vary.

As relevant in the present context, therefore, there is discrimination when an individual with a disability is deprived of a community setting unless such a setting would be contrary to the individual’s best interests. That judgment necessarily relies on the professional judgment of those able to assess the individual’s needs for care and treatment. There is, however, a natural asymmetry in this standard. If a community setting is one appropriate setting, then denial of that setting deprives the individual of vital benefits (without justification in the individual’s needs) and must be deemed discriminatory.

D. That standard is met in this case. There is no dispute that community settings are appropriate ones for L.C. and for E.W. That was the judgment of the State’s own professionals.

There is, therefore, no need in this case for the Court to confront questions about the degree to which courts, in applying the ADA standard, must scrutinize, evaluate, and if necessary reject an asserted judgment of a public entity’s own professionals when disputed by the plaintiff’s professionals. Prior to the fundamental policy choice made by Congress in the ADA, this Court both insisted that it was "professional judgment" that mattered and noted some reasons for deference. Youngberg v. Romeo, 457 U.S. 307, 322-23 (1982). More recently, under the ADA, this Court in Bragdon applied a standard of "objective reasonableness," based on objective scientific considerations, in reviewing a professional’s judgment of risk. 118 S. Ct. at 2210-11. The proper judicial approach to the issue of appropriateness under the ADA need not be [page 25] resolved in this case, because the State’s professionals did deem community placements appropriate, so that there was no occasion for judicial second-guessing of the judgment of the State’s professionals.

5 Since the mid-1950s, the total number of people with mental illnesses in state psychiatric hospitals throughout the United States has been reduced by 85 percent. According to E. Fuller Torrey, a prominent research psychiatrist, there were, in 1955, 558,239 patients with severe mental illnesses in the nation's public psychiatric hospitals. By 1994, this number had been reduced to 71,619 persons. When adjusted to the growth in total population of the United States during this period, the actual decrease in the numbers of people with severe mental illnesses in public psychiatric hospitals between 1955 and 1994 was 92 percent. E.F. Torrey, Out of the Shadows: Confronting America's Mental Illness Crisis 8-9 (1997).
6 See R. Munich & W. Sledge, "Treatment Settings: Providing a Continuum of Care for Patients with Schizophrenia or Related Disorders," in G. Gabbard, ed., 1 Treatments of Psychiatric Disorders 1075-90 (2d ed. 1995); M.A. Test, "Training in Community Living," in R.P. Lieberman, Handbook of Psychiatric Rehabilitation 153-70 (1992); R.J. Isaac & V.C. Armat, supra, at 316 ("hospitals play a necessary role in treating mental illnesses"; also reciting research conclusion that hospitals would always have to be available for homicidal, suicidal, or very psychotic patients, citing L. Stein & M.A. Test, "A State Hospital Initiated Community Program," in J. Talbott, ed., The Chronic Mentally Ill: Treatment, Programs, Systems 173 (1981)); Lehman, "The Quality of Life of Chronic Patients in a State Hospital and in Community Residences," 37 Hospital & Community Psychiatry 901 (1986); Braun et al., "Overview: Deinstitutionalization of Psychiatric Patients, a Critical Review of Outcome Studies," 138 Am. J. Psychiatry 736 (1981). We note that institutional settings may not be the only appropriate settings even for individuals needing intensive or 24-hour care. See Rothbard et al., "Unbundling of State Hospital Services in the Community: The Philadelphia State Hospital Story," 24 Administration and Policy in Mental Health 391 (1997); Fenton et al., "Randomized Trial of General Hospital and Residential Alternative Care for Patients with Severe and Persistent Mental Illness," 155 Am. J. Psychiatry 516 (1998).