Trump administration wages a cruel and sustained assault on disability rights [column]

Today we are on the edge of a revolution that will undermine the rights and freedoms afforded to millions of American citizens regardless of their ability or social circumstances — not the least of which are the right to choose where to live and the ability to access the services essential to maintaining a stable existence.

What is most distressing to me is that most citizens are unaware of this transformation, and too many politicians seem indifferent to its consequences.

In a well-designed sequence of initiatives, the administration of President Donald Trump has moved deliberately to undermine the well-being of people with a disability — including military veterans, people with permanent life-altering medical diagnoses, those born with physical and behavioral conditions, and people with intellectual and/or developmental disabilities.

One need look no further than the reorganization of Medicare and Medicaid, the Supplemental Nutrition Assistance Program, veteran and labor benefits, and the reshuffling of programs in the departments of Justice, Education and Health and Human Services.

According to an analysis by the Institute on Community Integration, out of 1.4 million citizens with an intellectual and/or developmental disability who are receiving long-term services and supports from state agencies, 66% live with a family member or foster family; 15% live in group homes with six or fewer residents; 8% live in larger facilities; and 11% live in their own homes.

For school-age students and adults, the ongoing government reorganization has the effect of denying services and protections, not enhancing the well-being of at-risk people.

The Trump administration is conducting a frontal attack on the 1990 Americans with Disabilities Act, Section 504 of the Rehabilitation Act of 1973 and the U.S. Supreme Court’s landmark 1999 decision in Olmstead v. L.C.

Section 504 prohibits discrimination against people with disabilities by any entity (including schools) that receives federal money.

The Americans with Disabilities Act grants people with disabilities equal access and opportunity in employment, public services and public accommodations.

Originating in Georgia, Olmstead relied on groundbreaking precedents such as Pennsylvania’s Pennhurst State School and Hospital v. Halderman.

In writing the majority opinion in Olmstead, Supreme Court Justice Ruth Bader Ginsburg invoked the antidiscrimination provisions of the Americans with Disabilities Act and declared it was illegal to compel someone without their consent to be confined to an institution.

If able, the nation’s highest court ruled, individuals had the affirmative right to live in a community or neighborhood setting and receive social services. Simply put, the court held unjustified segregation to be unlawful discrimination.

In his 1977 ruling in the Pennhurst case, U.S. District Court Judge Raymond Broderick ruled that Pennhurst, an institution in Chester County, had violated the statutory and constitutional rights of those confined against their will there (Roland Johnson was among those who suffered horrific abuse in Pennhurst.) Broderick’s ruling redefined jurisprudence and legal scholarship, to say nothing of improving people’s lives.

As people moved back into their communities, large-scale congregate-care institutions began to close in most states. Pennhurst closed in 1987 after more than a decade of litigation. The facility was called “the shame of Pennsylvania” following revelations of the harrowing experiences residents such as Johnson had to endure. One visitor called it “Dachau without the ovens.”

Thirty-nine years after Pennhurst’s closure, the Trump administration thinks it knows better than the advocates who fought heroically against indiscriminate institutionalization.

The administration is dismissing established precedents and federal law and redefining the scope of citizens’ rights as established in Olmstead and the Americans with Disabilities Act.

Since last summer, the administration has made no secret of its desire to dismantle statutory requirements that compel state and federal agencies to provide “reasonable accommodations” in the “least restrictive” environments.

These developments go hand in hand with repurposing or eliminating the role of federal inspectors general and the civil rights division in targeted enforcement agencies. Simultaneously, the Department of Labor rescinded a 2013 regulation requiring federal contractors to work toward hiring workers with disabilities.

Last June, the Department of Justice released a memo indicating its intention to upend or end care for people with a disability living at home or in community living facilities (that is, group homes).

Responding to a White House inquiry, the DOJ’s Office of Legal Counsel explicitly rejected Olmstead and dismissed the so-called “integration mandate,” claiming it was not Congress’ intent to impose such a mandate in Section 504 of the Rehabilitation Act and the Americans with Disabilities Act.

Sloppily, the memo mischaracterized the majority vote in Olmstead, claiming the decision rested on the “narrowest possible margin.” Six justices voted in the affirmative; three dissented.

The Justice Department further asserted that Olmstead was a misreading of constitutional norms, and the Department of Health and Human Services had no obligation to apply its mandate and the DOJ had no obligation to enforce it.

Apparently, people with disabilities are not worthy of due consideration over where they live and how they might receive services. This flies in the face of what constitutional law practitioners called the “anti-institutionalization” trend going back to the 1970s.

Disability advocacy groups denounced the Office of Legal Counsel’s memo, though they recognized it did not immediately change laws or court decisions. Instead, it signaled an intent to do so.

“You can’t change the law by fiat,” said Jennifer Lav of the National Health Law Program. “But I do think (this memo) signals a frontal attack on basic tenets of the disability rights movement.”

It is no coincidence the memo was issued within a year after significant cuts in Medicaid appropriations that support residential placement and school-age services. Some states already have begun cutting home care budgets, and group homes are closing around the country.

Resolutions in support of Olmstead have been introduced in both the U.S. House and the U.S. Senate, though both chambers are in recess until after the midterm elections. Pennsylvania U.S. Reps. Mary Gay Scanlon, a Democrat, and Brian Fitzpatrick, a Republican, are among the co-sponsors of the House resolution. Pennsylvania U.S. Sens. John Fetterman and Dave McCormick are conspicuously absent from the list of co-sponsors of the Senate resolution.

Additionally, Pennsylvania Gov. Josh Shapiro was among 18 governors who signed a letter last month to U.S. Attorney General Todd Blanche, decrying the DOJ memo and stating, in part: “We strongly oppose any federal actions that would weaken protections against unnecessary segregation or diminish the right of people with disabilities to receive services in the most integrated settings appropriate to meet their needs, consistent with established Olmstead precedent.”

Worryingly, however, established federal disabilities protections are now in jeopardy.

Just last month, a Trump-appointed federal judge in Texas approved an agreement between federal officials and five states to remove references to “most integrated setting” in a 2024 update to U.S. Department of Health and Human Services’ regulations related to Section 504 of the Rehabilitation Act.

Under the agreement, Health and Human Services Secretary Robert F. Kennedy Jr. pledged that other provisions of Section 504 regulations would be eliminated, too.

“The most frustrating thing is that this was not a legal loss,” Michelle Uzeta, executive director at the Disability Rights Education & Defense Fund, told the news site Disability Scoop. “It was a surrender.”

Civil rights attorney Eve Hill went further: “It demonstrates that the five state plaintiffs believe they are free to put people with disabilities into institutions.”

Hill added: “This will imperil the lives of people with disabilities, who will be forced to fight unnecessary institutionalization on their own.”

It is worth noting that confining an individual to an institution is much more expensive than supporting that person at home or in a community living arrangement.

I can attest from family experience that living in a group home or a congregate-care facility is not nirvana. These facilities have their own problems.

But as someone who has written extensively about disability rights, I can state categorically that institutions such as Pennhurst are not the solution for people with disabilities, who are often the most vulnerable and neglected citizens in our country. Overcrowding, violence and medical mistreatment and experimentation were frequently part of the institutional culture and everyday life. We need not repeat this failure of political will and social policy.

It is ironic that the late Robert F. Kennedy Sr. toured such institutions as a U.S. senator. Asked by a reporter of his impression after visiting the notorious Willowbrook State School on Staten Island in 1965, Kennedy said bluntly it was a “snake pit.” He described its residents “living in filth and dirt, their clothing in rags, in rooms less comfortable and cheerful than the cages in which we put animals in a zoo without adequate supervision or a bit of affection condemned to a life without hope.”

His son, the current Health and Human Services secretary, seems ignorant of his father’s experience.

Those who champion institutionalization are either cruel or deeply misguided in their pronouncements. They know little about history, or the constitutional principles this country was founded on. Either that, or they just don’t care and are content with a malevolent pursuit of power at the expense of their fellow citizens.

The movement away from segregated institutions and a return to community-based living was a transformative development in American history. Involuntary segregation for no reason other than an intellectual or developmental disability is cruel and unusual punishment. We should not repeat past injustices, especially those born of ignorance and prejudice.

Dennis B. Downey, Ph.D., is a professor of history emeritus at Millersville University. He is writing a biography of disability self-advocate Roland Johnson.…Read more by DENNIS B. DOWNEY | FOR LNP | LANCASTERONLINE