TOMMY OLMSTEAD, COMMISSIONER,
GEORGIA DEPARTMENT OF HUMAN RESOURES, et al.
v. L. C.,
by zimring, guardian
ad litem and next
friend, et al.
certiorari to the
No.
98-536. Argued
In the Americans with Disabilities
Act of 1990 (
Respondents
L. C. and E. W. are mentally retarded women; L. C. has also been
diagnosed with schizophrenia, and E. W., with a personality disorder. Both
women were voluntarily admitted to
Held: The judgment is affirmed in part and vacated in part, and the case is remanded.
138 F. 3d 893, affirmed in part, vacated in part, and remanded.
Justice Ginsburg delivered the opinion of the Court with respect to Parts I, II, and III-A, concluding that, under Title II of the ADA, States are required to place persons with mental disabilities in community settings rather than in institutions when the State's treatment professionals have determined that community placement is appropriate, the transfer from institutional care to a less restrictive setting is not opposed by the affected individual, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities. Pp. 11-18.
(a)
The integration and reasonable-modifications regulations issued by the Attorney
General rest on two key determinations: (1) Unjustified placement or retention
of persons in institutions severely limits their exposure to the outside
community, and therefore constitutes a form of discrimination based on
disability prohibited by Title II, and (2) qualifying their obligation to avoid
unjustified isolation of individuals with disabilities, States can resist
modifications that would fundamentally alter the nature of their services and
programs. The Eleventh Circuit essentially upheld the Attorney General's
construction of the
(b)
Undue institutionalization qualifies as discrimination "by reason of ...
disability." The Department of Justice has consistently advocated that it
does. Because the Department is the agency directed by Congress to issue Title
II regulations, its views warrant respect. This Court need not inquire whether
the degree of deference described in Chevron
U. S. A. Inc. v. Natural
Resources Defense Council, Inc., 467
U. S. 837, 844 , is in order; the well-reasoned views of the agencies
implementing a statute constitute a body of experience and informed judgment to
which courts and litigants may properly resort for guidance. E.g., Bragdon v. Abbott, 524
U. S. 624, 642 . According to the State,
L. C. and E. W. encountered no discrimination "by reason
of" their disabilities because they were not denied community placement on
account of those disabilities, nor were they subjected to
"discrimination," for they identified no comparison class of
similarly situated individuals given preferential treatment. In rejecting these
positions, the Court recognizes that Congress had a more comprehensive view of
the concept of discrimination advanced in the
Justice Ginsburg, joined by Justice O’Connor, Justice Souter, and Justice Breyer , concluded in Part III-B
that the State's responsibility, once it provides community-based treatment to
qualified persons with disabilities, is not boundless. The
reasonable-modifications regulation speaks of "reasonable
modifications" to avoid discrimination, and allows States to resist modifications
that entail a "fundamenta[l] alter[ation]"
of the States' services and programs. If, as the Eleventh Circuit indicated,
the expense entailed in placing one or two people in a community-based
treatment program is properly measured for reasonableness against the State's
entire mental health budget, it is unlikely that a
State, relying on the fundamental-alteration defense, could ever prevail.
Sensibly construed, the fundamental-alteration component of the
reasonable-modifications regulation would allow the State to show that, in the
allocation of available resources, immediate relief for the plaintiffs would be
inequitable, given the responsibility the State has undertaken for the care and
treatment of a large and diverse population of persons with mental disabilities.
The
Justice Stevens would affirm the judgment of the Court of Appeals, but because there are not five votes for that disposition, joined Justice Ginsburg 's judgment and Parts I, II, and III-A of her opinion. Pp. 1-2.
Justice Kennedy concluded that the case must be remanded for a determination of the questions the Court poses and for a determination whether respondents can show a violation of 42 U. S. C. §12132's ban on discrimination based on the summary judgment materials on file or any further pleadings and materials properly allowed. On the ordinary interpretation and meaning of the term, one who alleges discrimination must show that she received differential treatment vis-à-vis members of a different group on the basis of a statutorily described characteristic. Thus, respondents could demonstrate discrimination by showing that Georgia (i) provides treatment to individuals suffering from medical problems of comparable seriousness, (ii) as a general matter, does so in the most integrated setting appropriate for the treatment of those problems (taking medical and other practical considerations into account), but (iii) without adequate justification, fails to do so for a group of mentally disabled persons (treating them instead in separate, locked institutional facilities). This inquiry would not be simple. Comparisons of different medical conditions and the corresponding treatment regimens might be difficult, as would be assessments of the degree of integration of various settings in which medical treatment is offered. Thus far, respondents have identified no class of similarly situated individuals, let alone shown them to have been given preferential treatment. Without additional information, the Court cannot address the issue in the way the statute demands. As a consequence, the partial summary judgment granted respondents ought not to be sustained. In addition, it was error in the earlier proceedings to restrict the relevance and force of the State's evidence regarding the comparative costs of treatment. The State is entitled to wide discretion in adopting its own systems of cost analysis, and, if it chooses, to allocate health care resources based on fixed and overhead costs for whole institutions and programs. The lower courts should determine in the first instance whether a statutory violation is sufficiently alleged and supported in respondents' summary judgment materials and, if not, whether they should be given leave to replead and to introduce evidence and argument along the lines suggested. Pp. 1-10.
Ginsburg
, J., announced the judgment of the Court and delivered the opinion
of the Court with respect to Parts I, II, and III-A, in which Stevens, O'Connor, Souter, and
Breyer, JJ.,
joined, and an opinion with respect to Part III-B, in which O'Connor, Souter, and Breyer, JJ., joined. Stevens, J.,
filed an opinion concurring in part and concurring in the judgment. Kennedy ,
J., filed an opinion concurring in the judgment, in which Breyer, J., joined as to
TOMMY OLMSTEAD, COMMISSIONER,
GEORGIA DEPARTMENT OF HUMAN RESOURCES, et al.
, PETITIONERS v. L.
C., by JONATHAN
ZIMRING, guardian
ad litem and next friend , et al.
on writ of certiorari to the
[
Justice Ginsburg announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and III-A, and an opinion with respect to Part III-B, in which O'Connor, Souter, and Breyer, JJ., joined.
This case concerns the proper construction of the anti-discrimination provision contained in the public services portion (Title II) of the Americans with Disabilities Act of 1990, 104 Stat. 337, 42 U. S. C. §12132. Specifically, we confront the question whether the proscription of discrimination may require placement of persons with mental disabilities in community settings rather than in institutions. The answer, we hold, is a qualified yes. Such action is in order when the State's treatment professionals have determined that community placement is appropriate, the transfer from institutional care to a less restrictive setting is not opposed by the affected individual, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities. In so ruling, we affirm the decision of the Eleventh Circuit in substantial part. We remand the case, however, for further consideration of the appropriate relief, given the range of facilities the State maintains for the care and treatment of persons with diverse mental disabilities, and its obligation to administer services with an even hand.
I
This case, as it comes to us, presents no constitutional question. The complaints filed by plaintiffs-respondents L. C. and E. W. did include such an issue; L. C. and E. W. alleged that defendants-petitioners, Georgia health care officials, failed to afford them minimally adequate care and freedom from undue restraint, in violation of their rights under the Due Process Clause of the Fourteenth Amendment. See Complaint ¶ ;¶ ;87-91; Intervenor's Complaint ¶ ;¶ ;30-34. But neither the District Court nor the Court of Appeals reached those Fourteenth Amendment claims. See Civ. No. 1:95-cv-1210-MHS (ND Ga., Mar. 26, 1997), pp. 5-6, 11-13, App. to Pet. for Cert. 34a-35a, 40a-41a; 138 F. 3d 893, 895, and n. 3 (CA11 1998). Instead, the courts below resolved the case solely on statutory grounds. Our review is similarly confined. Cf. Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432, 450 (1985) (Texas city's requirement of special use permit for operation of group home for mentally retarded, when other care and multiple-dwelling facilities were freely permitted, lacked rational basis and therefore violated Equal Protection Clause of Fourteenth Amendment). Mindful that it is a statute we are construing, we set out first the legislative and regulatory prescriptions on which the case turns.
In
the opening provisions of the
"(2) Historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem;
"(3) discrimination against individuals with disabilities persists in such critical areas as . . . institutionalization . . . ;
. . . . .
"(5) individuals with disabilities continually encounter various forms of discrimination, including outright intentional exclusion, . . . failure to make modifications to existing facilities and practices, . . . [and] segregation . . . ." 42 U. S. C. §§12101(a)(2), (3), (5). 1
Congress then set forth prohibitions against discrimination in employment (Title I, §§12111-12117), public services furnished by governmental entities (Title II, §§12131-12165), and public accommodations provided by private entities (Title III, §§12181-12189). The statute as a whole is intended "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." §12101(b)(1). 2
This
case concerns Title II, the public services portion of the
"Subject to the provisions of this subchapter, 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 a public entity, or be subjected to discrimination by any such entity." §12132.
Title II's definition section states that "public entity" includes "any State or local government," and "any department, agency, [or] special purpose district." §§12131(1)(A), (B). The same section defines "qualified individual with a disability" as
"an individual with a disability who, with or without reasonable modifications 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 requirements for the receipt of services or the participation in programs or activities provided by a public entity." §12131(2).
On redress for violations of
§12132's discrimination prohibition, Congress referred to remedies available
under §505 of the Rehabilitation Act of 1973, 92 Stat. 2982, 29
Congress instructed the Attorney General to issue regulations implementing provisions of Title II, including §12132's discrimination proscription. See §12134(a) ("[T]he Attorney General shall promulgate regulations in an accessible format that implement this part."). 5 The Attorney General's regulations, Congress further directed, "shall be consistent with this chapter and with the coordination regulations . . . applicable to recipients of Federal financial assistance under [§504 of the Rehabilitation Act]." 42 U. S. C. §12134(b). One of the §504 regulations requires recipients of federal funds to "administer programs and activities in the most integrated setting appropriate to the needs of qualified handicapped persons." 28 CFR §41.51(d) (1998).
As Congress instructed, the Attorney General issued Title II regulations, see 28 CFR pt. 35 (1998), including one modeled on the §504 regulation just quoted; called the "integration regulation," it reads:
"A public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities." 28 CFR §35.130(d) (1998).
The preamble to the Attorney General's Title II regulations defines "the most integrated setting appropriate to the needs of qualified individuals with disabilities" to mean "a setting that enables individuals with disabilities to interact with non-disabled persons to the fullest extent possible." 28 CFR pt. 35, App. A, p. 450 (1998). Another regulation requires public entities to "make reasonable modifications" to avoid "discrimination on the basis of disability," unless those modifications would entail a "fundamenta[l] alter[ation]"; called here the "reasonable-modifications regulation," it provides:
"A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity." 28 CFR §35.130(b)(7) (1998).
We recite these regulations with the caveat that we do not here determine their validity. While the parties differ on the proper construction and enforcement of the regulations, we do not understand petitioners to challenge the regulatory formulations themselves as outside the congressional authorization. See Brief for Petitioners 16-17, 36, 40-41; Reply Brief 15-16 (challenging the Attorney General's interpretation of the integration regulation).
II
With
the key legislative provisions in full view, we summarize the facts underlying
this dispute. Respondents L. C. and E. W. are mentally retarded women; L. C.
has also been diagnosed with schizophrenia, and E. W., with a personality
disorder. Both women have a history of treatment in institutional settings. In
May 1992, L. C. was voluntarily admitted to
E. W. was voluntarily admitted to GRH in February 1995; like L. C., E. W. was confined for treatment in a psychiatric unit. In March 1995, GRH sought to discharge E. W. to a homeless shelter, but abandoned that plan after her attorney filed an administrative complaint. By 1996, E. W.'s treating psychiatrist concluded that 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 1997.
In
May 1995, when she was still institutionalized at GRH, L. C. filed suit in the
United States District Court for the Northern District of Georgia,
challenging her continued confinement in a segregated environment. Her
complaint invoked 42 U. S. C. §1983 and provisions of the ADA,
§§12131-12134, and named as defendants, now petitioners, the Commissioner of the
Georgia Department of Human Resources, the Superintendent of GRH, and the
Executive Director of the Fulton County Regional Board (collectively, the
State). L. C. alleged that the State's failure to place her in a
community-based program, once her treating professionals determined that such
placement was appropriate, violated, inter
alia, Title II of the
The
District Court granted partial summary judgment in favor of L. C. and E. W. See
App. to Pet. for Cert. 31a-42a. The court held that the State's failure to
place L. C. and E. W. in an appropriate community-based treatment program
violated Title II of the
In
addition to contending that L. C. and E. W. had not shown discrimination
"by reason of [their] disabilit[ies]," the State resisted court
intervention on the ground that requiring immediate transfers in cases of this
order would "fundamentally alter" the State's activity. The State
reasserted that it was already using all available funds to provide services to
other persons with disabilities. See id.
, at 38a. Rejecting the State's
"fundamental alteration" defense, the court observed that existing
state programs provided community-based treatment of the kind for which L. C.
and E. W. qualified, and that the State could "provide services to plaintiffs
in the community at considerably less
cost than is required to maintain them in an institution."
The
Court of Appeals for the Eleventh Circuit affirmed the judgment of the District
Court, but remanded for reassessment of the State's cost-based defense. See 138
F. 3d, at 905. As the appeals court read the statute and regulations: When
"a disabled individual's treating professionals find that a
community-based placement is appropriate for that individual, the ADA imposes a
duty to provide treatment in a community setting--the most integrated setting
appropriate to that patient's needs"; "[w]here there is no such
finding [by the treating professionals], nothing in the ADA requires the
deinstitutionalization of th[e] patient."
The
Court of Appeals recognized that the State's duty to provide integrated
services "is not absolute"; under the Attorney General's Title II
regulation, "reasonable modifications" were required of the State,
but fundamental alterations were not demanded.
We granted certiorari in view of the importance of the question
presented to the States and affected individuals. See 525
III
Endeavoring
to carry out Congress' instruction to issue regulations implementing Title II,
the Attorney General, in the integration and reasonable-modifications
regulations, see supra
, at 5-7, made two key determinations. The first concerned
the scope of the
The
Court of Appeals essentially upheld the Attorney General's construction of the
We affirm the Court of Appeals' decision in substantial part. Unjustified isolation, we hold, is properly regarded as discrimination based on disability. But we recognize, as well, the States' need to maintain a range of facilities for the care and treatment of persons with diverse mental disabilities, and the States' obligation to administer services with an even hand. Accordingly, we further hold that the Court of Appeals' remand instruction was unduly restrictive. In evaluating a State's fundamental-alteration defense, the District Court must consider, in view of the resources available to the State, not only the cost of providing community-based care to the litigants, but also the range of services the State provides others with mental disabilities, and the State's obligation to mete out those services equitably.
A
We examine first whether, as the Eleventh Circuit held, undue institutionalization qualifies as discrimination "by reason of . . . disability." The Department of Justice has consistently advocated that it does. 9 Because the Department is the agency directed by Congress to issue regulations implementing Title II, see supra , at 5-6, its views warrant respect. We need not inquire whether the degree of deference described in Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 844 (1984), is in order; "[i]t is enough to observe that the well-reasoned views of the agencies implementing a statute `constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.' " Bragdon v. Abbott, 524 U. S. 624, 642 (1998) (quoting Skidmore v. Swift & Co., 323 U. S. 134, 139-140 (1944)).
The
State argues that L. C. and E. W. encountered no discrimination "by reason
of" their disabilities because they were not denied community placement on
account of those disabilities. See Brief for Petitioners 20. Nor were they
subjected to "discrimination," the State contends, because
" `discrimination' necessarily requires uneven treatment of similarly
situated individuals," and L. C. and E. W. had identified no comparison
class, i.e. , no similarly situated individuals
given preferential treatment.
The
Recognition
that unjustified institutional isolation of persons with disabilities is a form
of discrimination reflects two evident judgments. First, institutional
placement of persons who can handle and benefit from community settings
perpetuates unwarranted assumptions that persons so isolated are incapable or
unworthy of participating in community life. Cf. Allen v. Wright,
468
U. S. 737, 755 (1984) ("There can be no doubt that [stigmatizing
injury often caused by racial discrimination] is one of the most serious
consequences of discriminatory government action."); Los Angeles Dept. of Water and Power v.
Manhart, 435
U. S. 702, 707 , n. 13 (1978) (" `In forbidding
employers to discriminate against individuals because of their sex, Congress
intended to strike at the entire spectrum of disparate treatment of men and
women resulting from sex stereotypes.' " (quoting
Sprogis v. United Air Lines, Inc. , 444
F. 2d 1194, 1198 (CA7 1971)). Second, confinement in an institution
severely diminishes the everyday life activities of individuals, including
family relations, social contacts, work options, economic independence,
educational advancement, and cultural enrichment. See Brief for American Psychiatric
Association et al. as Amici
Curiae 20-22. Dissimilar treatment correspondingly exists in this
key respect: In order to receive needed medical services, persons with mental
disabilities must, because of those disabilities, relinquish participation in
community life they could enjoy given reasonable accommodations, while persons
without mental disabilities can receive the medical services they need without
similar sacrifice. See Brief for
The
State urges that, whatever Congress may have stated as its findings in the
We
emphasize that nothing in the
Consistent
with these provisions, the State generally may rely on the reasonable
assessments of its own professionals in determining whether an individual
"meets the essential eligibility requirements" for habilitation in a
community-based program. Absent such qualification, it would be inappropriate
to remove a patient from the more restrictive setting. See 28 CFR §35.130(d)
(1998) (public entity shall administer services and programs in "the most
integrated setting appropriate
to the needs of qualified individuals with disabilities"
(emphasis added)); cf. School
Bd. of
B
The State's responsibility, once it provides community-based treatment to qualified persons with disabilities, is not boundless. The reasonable-modifications regulation speaks of "reasonable modifications" to avoid discrimination, and allows States to resist modifications that entail a "fundamenta[l] alter[ation]" of the States' services and programs. 28 CFR §35.130(b)(7) (1998). The Court of Appeals construed this regulation to permit a cost-based defense "only in the most limited of circumstances," 138 F. 3d, at 902, and remanded to the District Court to consider, among other things, "whether the additional expenditures necessary to treat L. C. and E. W. in community-based care would be unreasonable given the demands of the State's mental health budget," id. , at 905.
The Court of Appeals' construction of the reasonable-modifications regulation is unacceptable for it would leave the State virtually defenseless once it is shown that the plaintiff is qualified for the service or program she seeks. If the expense entailed in placing one or two people in a community-based treatment program is properly measured for reasonableness against the State's entire mental health budget, it is unlikely that a State, relying on the fundamental-alteration defense, could ever prevail. See Tr. of Oral Arg. 27 (State's attorney argues that Court of Appeals' understanding of the fundamental-alteration defense, as expressed in its order to the District Court, "will always preclude the State from a meaningful defense"); cf. Brief for Petitioners 37-38 (Court of Appeals' remand order "mistakenly asks the district court to examine [the fundamental-alteration] defense based on the cost of providing community care to just two individuals, not all Georgia citizens who desire community care"); 1:95-cv-1210-MHS (ND Ga., Oct. 20, 1998), p. 3, App. 177 (District Court, on remand, declares the impact of its decision beyond L. C. and E. W. "irrelevant"). Sensibly construed, the fundamental-alteration component of the reasonable-modifications regulation would allow the State to show that, in the allocation of available resources, immediate relief for the plaintiffs would be inequitable, given the responsibility the State has undertaken for the care and treatment of a large and diverse population of persons with mental disabilities.
When
it granted summary judgment for plaintiffs in this case, the District Court
compared the cost of caring for the plaintiffs in a community-based setting
with the cost of caring for them in an institution. That simple comparison
showed that community placements cost less than institutional confinements. See
App. to Pet. for Cert. 39a. As the United States recognizes, however, a
comparison so simple overlooks costs the State cannot avoid; most notably, a
"State . . . may experience increased overall expenses by funding
community placements without being able to take advantage of the savings
associated with the closure of institutions." Brief for
As
already observed, see supra
, at 17, the
recognizing that, on a case-by-case basis, that setting may be in an
institution."); Youngberg
v. Romeo, 457
U. S. 307, 327 (1982) (Blackmun, J., concurring) ("For many
mentally retarded people, the difference between the capacity to do things for
themselves within an institution and total dependence on the institution for
all of their needs is as much liberty as they ever will know.").
To maintain a range of facilities and to administer services with an even hand, the State must have more leeway than the courts below understood the fundamental-alteration defense to allow. If, for example, the State were to demonstrate that it had a comprehensive, effectively working plan for placing qualified persons with mental disabilities in less restrictive settings, and a waiting list that moved at a reasonable pace not controlled by the State's endeavors to keep its institutions fully populated, the reasonable-modifications standard would be met. See Tr. of Oral Arg. 5 (State's attorney urges that, "by asking [a] person to wait a short time until a community bed is available, Georgia does not exclude [that] person by reason of disability, neither does Georgia discriminate against her by reason of disability"); see also id. , at 25 ("[I]t is reasonable for the State to ask someone to wait until a community placement is available."). In such circumstances, a court would have no warrant effectively to order displacement of persons at the top of the community-based treatment waiting list by individuals lower down who commenced civil actions. 16
* * *
For the reasons stated, we conclude that, under Title II of the ADA, States are required to provide community-based treatment for persons with mental disabilities when the State's treatment professionals determine that such placement is appropriate, the affected persons do not oppose such treatment, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities. The judgment of the Eleventh Circuit is therefore affirmed in part and vacated in part, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
TOMMY OLMSTEAD, COMMISSIONER,
GEORGIA DEPARTMENT OF HUMAN RESOURCES, et al.
, PETITIONERS v. L.
C., by JONATHAN
ZIMRING, guardian
ad litem and next friend , et al.
on writ of certiorari to the
[
Justice Stevens , concurring in part and concurring in the judgment.
Unjustified
disparate treatment, in this case, "unjustified institutional
isolation," constitutes discrimination under the Americans with
Disabilities Act of 1990. See ante , at 15. If a plaintiff requests
relief that requires modification of a State's services or programs, the State
may assert, as an affirmative defense, that the requested modification would
cause a fundamental alteration of a State's services and programs. In this
case, the Court of Appeals appropriately remanded for consideration of the
State's affirmative defense. On remand, the District Court rejected the State's
"fundamental-alteration defense." See ante , at 10,
n. 7. If the District Court was wrong in concluding that costs unrelated
to the treatment of L. C. and E. W. do not support such a defense in
this case, that arguable error should be corrected either by the Court of
Appeals or by this Court in review of that decision. In my opinion, therefore,
we should simply affirm the judgment of the Court of Appeals. But because there
are not five votes for that disposition, I join Justice Ginsburg 's judgment and Parts I, II, and III-A of her
opinion. Cf. Bragdon v.
Abbott ,
524
U. S. 624, 655-656 (1998) ( Stevens
, J. concurring); Screws
v.
TOMMY OLMSTEAD, COMMISSIONER,
GEORGIA DEPARTMENT OF HUMAN RESOURCES, et al.
, PETITIONERS v. L.
C., by JONATHAN
ZIMRING, guardian
ad litem and next friend , et al.
on writ of certiorari to the
[
Justice Kennedy , with whom Justice Breyer joins as to Part I, concurring in the judgment.
I
Despite
remarkable advances and achievements by medical science, and agreement among
many professionals that even severe mental illness is often treatable, the
extent of public resources to devote to this cause remains controversial.
Knowledgeable professionals tell us that our society, and the governments which
reflect its attitudes and preferences, have yet to grasp the potential for
treating mental disorders, especially severe mental illness. As a result,
necessary resources for the endeavor often are not forthcoming. During the
course of a year, about 5.6 million Americans will suffer from severe mental
illness. E. Torrey, Out of the Shadows 4 (1997). Some 2.2 million of these
persons receive no treatment. Id ., at 6. Millions of other Americans
suffer from mental disabilities of less serious degree, such as mild
depression. These facts are part of the background against which this case
arises. In addition, of course, persons with mental disabilities have been
subject to historic mistreatment, indifference, and hostility. See, e.g .,
Despite these obstacles, the States have acknowledged that the care of the mentally disabled is their special obligation. They operate and support facilities and programs, sometimes elaborate ones, to provide care. It is a continuing challenge, though, to provide the care in an effective and humane way, particularly because societal attitudes and the responses of public authorities have changed from time to time.
Beginning
in the 1950's, many victims of severe mental illness were moved out of
state-run hospitals, often with benign objectives. According to one estimate,
when adjusted for population growth, "the actual decrease in the numbers
of people with severe mental illnesses in public psychiatric hospitals between
1955 and 1995 was 92 percent." Brief for American Psychiatric Association
et al. as Amici Curiae 21,
n. 5 (citing Torrey, supra
, at 8-9). This was not without benefit or justification.
The so-called "deinstitutionalization" has permitted a substantial
number of mentally disabled persons to receive needed treatment with greater
freedom and dignity. It may be, moreover, that those who remain
institutionalized are indeed the most severe cases. With reference to this
case, as the Court points out, ante,
at 7-8, 17-18, it is undisputed that the State's own treating
professionals determined that community-based care was medically appropriate
for respondents. Nevertheless, the depopulation of state mental hospitals has
its dark side. According to one
expert:
"For a substantial minority.
. . deinstitutionalization has been a psychiatric Titanic . Their lives are virtually devoid of
`dignity' or `integrity of body, mind, and spirit.' `Self-determination' often
means merely that the person has a choice of soup kitchens. The
`least restrictive setting' frequently turns out to be a cardboard box, a jail
cell, or a terror-filled existence plagued by both real and imaginary
enemies." Torrey, supra
, at 11.
It must be remembered that for the person with severe mental illness who has no treatment the most dreaded of confinements can be the imprisonment inflicted by his own mind, which shuts reality out and subjects him to the torment of voices and images beyond our own powers to describe.
It
would be unreasonable, it would be a tragic event, then, were the Americans
with Disabilities Act of 1990 (ADA) to be interpreted so that States had some
incentive, for fear of litigation, to drive those in need of medical care and
treatment out of appropriate care and into settings with too little assistance
and supervision. The opinion of a responsible treating physician in determining
the appropriate conditions for treatment ought to be given the greatest of
deference. It is a common phenomenon that a patient functions well with
medication, yet, because of the mental illness itself, lacks the discipline or
capacity to follow the regime the medication requires. This is illustrative of
the factors a responsible physician will consider in recommending the appropriate
setting or facility for treatment. Justice
Ginsburg' s
opinion takes account of this background. It is careful, and quite correct, to
say that it is not "the
In light of these concerns, if the principle of liability announced by the Court is not applied with caution and circumspection, States may be pressured into attempting compliance on the cheap, placing marginal patients into integrated settings devoid of the services and attention necessary for their condition. This danger is in addition to the federalism costs inherent in referring state decisions regarding the administration of treatment programs and the allocation of resources to the reviewing authority of the federal courts. It is of central importance, then, that courts apply today's decision with great deference to the medical decisions of the responsible, treating physicians and, as the Court makes clear, with appropriate deference to the program funding decisions of state policymakers.
II
With these reservations made explicit, in my view we must remand the case for a determination of the questions the Court poses and for a determination whether respondents can show a violation of 42 U. S. C. §12132's ban on discrimination based on the summary judgment materials on file or any further pleadings and materials properly allowed.
At
the outset it should be noted there is no allegation that
Putting aside issues of animus or unfair stereotype, I agree with Justice Thomas that on the ordinary interpretation and meaning of the term, one who alleges discrimination must show that she "received differential treatment vis-à-vis members of a different group on the basis of a statutorily described characteristic." Post , at 1-2 (dissenting opinion). In my view, however, discrimination so defined might be shown here. Although the Court seems to reject Justice Thomas' definition of discrimination, ante, at 13, it asserts that unnecessary institutional care does lead to "[d]issimilar treatment," ante, at 16. According to the Court, "[i]n order to receive needed medical services, persons with mental disabilities must, because of those disabilities, relinquish participation in community life they could enjoy given reasonable accommodations, while persons without mental disabilities can receive the medical services they need without similar sacrifice." Ibid .
Although this point is not discussed at length by the Court, it does serve to suggest the theory under which respondents might be subject to discrimination in violation of §12132. If they could show that persons needing psychiatric or other medical services to treat a mental disability are subject to a more onerous condition than are persons eligible for other existing state medical services, and if removal of the condition would not be a fundamental alteration of a program or require the creation of a new one, then the beginnings of a discrimination case would be established. In terms more specific to this case, if respondents could show that Georgia (i) provides treatment to individuals suffering from medical problems of comparable seriousness, (ii) as a general matter, does so in the most integrated setting appropriate for the treatment of those problems (taking medical and other practical considerations into account), but (iii) without adequate justification, fails to do so for a group of mentally disabled persons (treating them instead in separate, locked institutional facilities), I believe it would demonstrate discrimination on the basis of mental disability.
Of
course, it is a quite different matter to say that a State without a program in
place is required to create one. No State has unlimited resources and each must
make hard decisions on how much to allocate to treatment of diseases and
disabilities. If, for example, funds for care and treatment of the mentally
ill, including the severely mentally ill, are reduced in order to support
programs directed to the treatment and care of other disabilities, the decision
may be unfortunate. The judgment, however, is a political one and not within
the reach of the statute. Grave constitutional concerns are raised when a
federal court is given the authority to review the State's choices in basic
matters such as establishing or declining to establish new programs. It is not
reasonable to read the
Discrimination,
of course, tends to be an expansive concept and, as legal category, it must be
applied with care and prudence. On any reasonable reading of the statute,
§12132 cannot cover all types of differential treatment of disabled and
nondisabled persons, no matter how minimal or innocuous. To establish
discrimination in the context of this case, and absent a showing of policies
motivated by improper animus or stereotypes, it would be necessary to show that
a comparable or similarly situated group received differential treatment.
Regulations are an important tool in identifying the kinds of contexts,
policies, and practices that raise concerns under the
Unlike Justice Thomas , I deem it relevant and instructive that Congress in express terms identified the "isolat[ion] and segregat[ion]" of disabled persons by society as a "for[m] of discrimination," §§12101(a)(2), (5), and noted that discrimination against the disabled "persists in such critical areas as . . . institutionalization," §12101(a)(3). These findings do not show that segregation and institutionalization are always discriminatory or that segregation or institutionalization are, by their nature, forms of prohibited discrimination. Nor do they necessitate a regime in which individual treatment plans are required, as distinguished from broad and reasonable classifications for the provision of health care services. Instead, they underscore Congress' concern that discrimination has been a frequent and pervasive problem in institutional settings and policies and its concern that segregating disabled persons from others can be discriminatory. Both of those concerns are consistent with the normal definition of discrimination--differential treatment of similarly situated groups. The findings inform application of that definition in specific cases, but absent guidance to the contrary, there is no reason to think they displace it. The issue whether respondents have been discriminated against under §12132 by institutionalized treatment cannot be decided in the abstract, divorced from the facts surrounding treatment programs in their State.
The
possibility therefore remains that, on the facts of this case, respondents
would be able to support a claim under §12132 by showing that they have been
subject to discrimination by
I would remand the case to the Court of Appeals or the District Court for it to determine in the first instance whether a statutory violation is sufficiently alleged and supported in respondents' summary judgment materials and, if not, whether they should be given leave to replead and to introduce evidence and argument along the lines suggested above.
For these reasons, I concur in the judgment of the Court.
TOMMY OLMSTEAD, COMMISSIONER,
GEORGIA DEPARTMENT OF HUMAN RESOURCES, et al.
, PETITIONERS v. L.
C., by JONATHAN
ZIMRING, guardian
ad litem and next friend , et al.
on writ of certiorari to the
[
Justice Thomas , with whom The Chief Justice and Justice Scalia join, dissenting.
Title
II of the Americans with Disabilities Act of 1990 (
"Subject to the provisions of this subchapter, 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 a public entity, or be subjected to discrimination by any such entity." (Emphasis added.)
The majority concludes that petitioners "discriminated" against respondents--as a matter of law--by continuing to treat them in an institutional setting after they became eligible for community placement. I disagree. Temporary exclusion from community placement does not amount to "discrimination" in the traditional sense of the word, nor have respondents shown that petitioners "discriminated" against them "by reason of" their disabilities.
Until today, this Court has never endorsed an interpretation of the term "discrimination" that encompassed disparate treatment among members of the same protected class. Discrimination, as typically understood, requires a showing that a claimant received differential treatment vis-à-vis members of a different group on the basis of a statutorily described characteristic. This interpretation comports with dictionary definitions of the term discrimination, which means to "distinguish," to "differentiate," or to make a "distinction in favor of or against, a person or thing based on the group, class, or category to which that person or thing belongs rather than on individual merit." Random House Dictionary 564 (2d ed. 1987); see also Webster's Third New International Dictionary 648 (1981) (defining "discrimination" as "the making or perceiving of a distinction or difference" or as "the act, practice, or an instance of discriminating categorically rather than individually").
Our
decisions construing various statutory prohibitions against
"discrimination" have not wavered from this path. The best place to
begin is with Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as
amended, the paradigmatic anti-discrimination law. 1 Title
VII makes it "an unlawful employment practice for an employer ... to discriminate against any
individual with respect to his compensation, terms, conditions, or privileges
of employment, because of such individual's race, color, religion, sex, or
national origin." 42
Under Title VII, a finding of discrimination requires a comparison of otherwise similarly situated persons who are in different groups by reason of certain characteristics provided by statute. See, e.g., Newport News Shipbuilding & Dry Dock Co. v. EEOC , 462 U. S. 669, 683 (1983) (explaining that Title VII discrimination occurs when an employee is treated " `in a manner which but for that person's sex would be different' ") (quoting Los Angeles Dept. of Water and Power v. Manhart , 435 U. S. 702, 711 (1978)). For this reason, we have described as "nonsensical" the comparison of the racial composition of different classes of job categories in determining whether there existed disparate impact discrimination with respect to a particular job category. Wards Cove Packing Co. v. Atonio , 490 U. S. 642, 651 (1989). 3 Courts interpreting Title VII have held that a plaintiff cannot prove "discrimination" by demonstrating that one member of a particular protected group has been favored over another member of that same group. See, e.g., Bush v. Commonwealth Edison Co. , 990 F. 2d 928, 931 (CA7 1993), cert. denied, 511 U. S. 1071 (1994) (explaining that under Title VII, a fired black employee "had to show that although he was not a good employee, equally bad employees were treated more leniently by [his employer] if they happened not to be black").
Our cases interpreting §504 of the Rehabilitation Act of 1973, 87 Stat. 394, as amended, which prohibits "discrimination" against certain individuals with disabilities, have applied this commonly understood meaning of discrimination. Section 504 provides:
"No otherwise qualified handicapped individual ... shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance."
In keeping with the traditional
paradigm, we have always limited the application of the term
"discrimination" in the Rehabilitation Act to a person who is a
member of a protected group and faces discrimination "by reason of his
handicap." Indeed, we previously rejected the argument that §504 requires
the type of "affirmative efforts to overcome the disabilities caused by
handicaps,"
Similarly,
in Alexander v. Choate , 469
U. S. 287, 302 (1985), we found no discrimination under §504 with
respect to a limit on inpatient hospital care that was "neutral on its
face" and did not "distinguish between those whose coverage will be
reduced and those whose coverage will not on the basis of any test, judgment,
or trait that the handicapped as a class are less capable of meeting or less
likely of having," id., at
302. We said that §504 does "not ... guarantee the handicapped equal
results from the provision of state Medicaid, even assuming some measure of
equality of health could be constructed."
Likewise,
in Traynor v. Turnage ,
485
U. S. 535, 548 (1988), we reiterated that the purpose of §504 is to
guarantee that individuals with disabilities receive "evenhanded
treatment" relative to those persons without
disabilities. In Traynor
, the Court upheld a Veterans' Administration regulation
that excluded "primary alcoholics" from a benefit that was extended
to persons disabled by alcoholism related to a mental disorder.
This same understanding of discrimination also informs this Court's constitutional interpretation of the term. See General Motors Corp. v. Tracy , 519 U. S. 278, 298 (1997) (noting with respect to interpreting the Commerce Clause, "[c]onceptually, of course, any notion of discrimination assumes a comparison of substantially similar entities"); Yick Wo v. Hopkins , 118 U. S 356 , 374 (1886) (condemning under the Fourteenth Amendment "illegal discriminations between persons in similar circumstances"); see also Adarand Constructors, Inc. v. Peña , 515 U. S. 200, 223-224 (1995); Richmond v. J. A. Croson Co. , 488 U. S. 469, 493-494 (1989) (plurality opinion).
Despite
this traditional understanding, the majority derives a more
"capacious" definition of "discrimination," as that term is
used in Title II of the
Elsewhere
in the
At bottom, the type of claim approved of by the majority does not concern a prohibition against certain conduct (the traditional understanding of discrimination), but rather imposition of a standard of care. 6 As such, the majority can offer no principle limiting this new species of "discrimination" claim apart from an affirmative defense because it looks merely to an individual in isolation, without comparing him to otherwise similarly situated persons, and determines that discrimination occurs merely because that individual does not receive the treatment he wishes to receive. By adopting such a broad view of discrimination, the majority drains the term of any meaning other than as a proxy for decisions disapproved of by this Court.
Further,
I fear that the majority's approach imposes significant federalism costs,
directing States how to make decisions about their delivery of public services.
We previously have recognized that constitutional principles of federalism
erect limits on the Federal Government's ability to direct state officers or to
interfere with the functions of state governments. See, e.g., Printz v.
The majority may remark that it actually does properly compare members of different groups. Indeed, the majority mentions in passing the "[d]issimilar treatment" of persons with and without disabilities. Ante , at 15. It does so in the context of supporting its conclusion that institutional isolation is a form of discrimination. It cites two cases as standing for the unremarkable proposition that discrimination leads to deleterious stereotyping, ante , at 15 (citing Allen v. Wright , 468 U. S. 737, 755 (1984); Manhart , 435 U. S., at 707 , n. 13)), and an amicus brief which indicates that confinement diminishes certain everyday life activities, ante , at 15 (citing Brief for American Psychiatric Association et al. 20-22). The majority then observes that persons without disabilities "can receive the services they need without" institutionalization and thereby avoid these twin deleterious effects. Ante , at 15. I do not quarrel with the two general propositions, but I fail to see how they assist in resolving the issue before the Court. Further, the majority neither specifies what services persons with disabilities might need, nor contends that persons without disabilities need the same services as those with disabilities, leading to the inference that the dissimilar treatment the majority observes results merely from the fact that different classes of persons receive different services--not from