BY HARRIET MCBRYDE JOHNSON AND BRIAN EAST

On June 22, 1999, the disability community won a major Supreme Court victory against state oppression. In Olmstead v. L.C., the court ruled that states violate civil rights when they segregate people with disabilities into isolated institutions as a condition of receiving services that could be provided in freedom. The case upheld the "integration mandate" of the Americans with Disabilities Act (ADA).

The Olmstead decision received far less attention than three unfavorable ADA decisions on employment discrimination issued the same day. But its importance is well understood within the disability rights movement.

Historically, public policy has pushed people with disabilities from communities into various types of disability ghettos. Separate schools, workshops and institutions have been the norm, regardless of the individual's desires, needs or potential.

According to David Pfeiffer with the Center on Disability Studies of the University of Hawaii at Manoa, states began dedicating massive amounts of capital to disability institutions around 1900. In those days, the trend was openly connected to the same eugenic ideology that inspired fascism world-wide.

The idea was to protect society from contamination by the "feeble-minded" and "unfit." It is no accident that the rise of institutions coincided with a panoply of state laws restricting rights to vote, serve on juries, work, marry and procreate.

In contemporary discourse, the justifications for separating people with disabilities sound more benign. Segregation is said to be in the individual's best interest, a way to serve special needs or ensure safety. However, the eugenic underpinnings have remained in practice. Forced sterilization, associated with institutionalization from the beginning, continued in many states well into the 1970s.

"Olmstead is our Brown v. Topeka," says Bob Kafka, an organizer for ADAPT, a national organization that uses civil disobedience and direct action to push government to redirect money from institutions and nursing homes to bring services where people choose to live. "We want to live in our homes, not nursing homes. It's a matter of civil rights."

Within the disability community, the Olmstead civil rights mandate has taken on powerful life. Olmstead-inspired lawsuits are challenging a variety of devices by which states create disability ghettos, including maintaining unreasonable waiting lists for community services and supporting "sheltered" workshops where disabled workers may be forced to toil for pennies an hour. In other arenas, organizers are pushing for new public priorities.

In South Carolina, a number of advocacy organizations across disability lines have come together to form the SC Disability Policy Consortium to realize the promise of the Olmstead decision.

For decades, advocates have been arguing that in-home services are more cost effective as well as more humane. These days they have federal law behind them. But in April, the Supreme Court agreed to consider University of Alabama Board of Trustees v. Garrett, a case involving the ADA's employment discrimination provisions as applied to the states.

The disability rights community is worried that Garrett may follow a recent line of cases which hold that the 11th Amendment not only makes states immune from certain damages suits in federal court, but also places states beyond Congress' power to legislate in the public interest. The current majority's version of the 11th Amendment incorporates the common law doctrine of sovereign immunity — "The King can do no wrong."

The court's previous rulings recognized that the 11th Amendment is trumped by section 5 of the 14th Amendment, which authorizes Congress to make laws to enforce the Constitutional guarantee of equal protection. It was therefore widely assumed that job discrimination laws would be upheld. But the court recently ruled that Congress exceeded its authority in applying the Age Discrimination in Employment Act (ADEA) to the states. The court found that the ADEA was not a valid exercise of section 5 authority in part because Congress acted without any record showing that states had discriminated in employing people over age 40.

Disability advocates quickly note that the ADA is supported by a strong legislative record of pervasive, invidious disability discrimination by the states. However, a number of states deny the history — and they are armed with Supreme Court precedent. In City of Cleburne v. Cleburne Living Center, Inc., the court, holding that disability is not a suspect classification under the 14th Amendment, accepted the dominant view that disability policy has been aimed at helping and not oppressing.

While the ADA sought to correct Cleburne by expressly incorporating equal protection terms, two circuits have recently held that it failed, citing a Supreme Court ruling that it is for the Supreme Court, not Congress, to decide which groups qualify for heightened scrutiny under the 14th Amendment. This view nearly writes section 5 out of the 14th Amendment, to say Congress may legislate only when the Supreme Court has legislated first.

There remains reason to hope the court will uphold Congress' authority to provide federal remedies for disability discrimination by the states. Much disability discrimination is so patently irrational that it is unconstitutional even without strict scrutiny.

Moreover, the powerful historical record that led to the ADA might now be used to get the court to reconsider whether disability is a suspect classification under the 14th Amendment. Success depends on making the court see that disability oppression is pervasive in our political history.

In fact, it is the very pervasiveness of this oppression that makes it invisible. People across the political spectrum think that people with disabilities need "special" schools, workshops and institutions. That is, if they think about disability at all. One profound result of disability segregation is to make people with disabilities themselves invisible. When it comes to public policy, we know: Out of sight is out of mind.

Harriet McBryde Johnson is a lawyer in solo practice in Charleston and a member of the S.C. Disability Policy Consortium. Brian East is an attorney with Advocacy, Inc., in Austin, Tx. Both are active in the National Lawyer's Guild Disability Rights Committee.

A version of this article was originally published online at www.CanDo.com, and is reprinted here with permission.