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Opinion | Frederick M. Misilo

The new threat against the Americans with Disabilities Act

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This week, we honor the 29th anniversary of the Americans with Disabilities Act. People with intellectual and developmental disabilities and their families have been engaged in a long fight to secure federal civil rights protections against discrimination. The cornerstone of this effort is the ADA, a law designed to create a clear and comprehensive national mandate for the elimination of discrimination against people with disabilities. But there is a new threat against the way the US Department of Justice enforces the law to protect thousands of people with disabilities in Massachusetts.

The ADA and the disability community’s advocacy have transformed our nation, resulting in concrete changes in our communities and workplaces. Integral to this progress is the Supreme Court’s Olmstead decision, holding that “unjustified institutional isolation of persons with disabilities is a form of discrimination” under the ADA. Segregating individuals with disabilities in institutions deprives them of the chance to participate in their communities and the opportunity to live their lives like individuals without disabilities.


One powerful player in ADA implementation and enforcement has been the Justice Department. Its protection of disability rights has been essential in fighting discrimination and ensuring the full promise of community integration. The department’s consent decrees and court-enforced settlement agreements are fundamental tools for enforcing civil rights and achieving systemic changes within state and local governments. These tools have resulted in more options for community living and employment, among other important advances.

But we face a troubling roadblock. A shift in Justice Department policy — in a memorandum by former Attorney General Jeff Sessions — weakens and limits the use of these key enforcement tools. Two aspects of the memorandum are particularly harmful to the department’s ability to enforce the ADA and other federal civil rights laws.

First, the imposition of sunset provisions of less than three years undermines these mechanisms by requiring termination before objectives have been achieved. Meaningful change reversing decades of discriminatory practices and transforming systems is complex and requires a thoughtful, gradual effort. Justice Department decrees and agreements have previously acknowledged this reality with longer terms and extensions where needed.


Second, the provision that court monitors and independent reviewers be changed every two years imposes a mandatory revolving door that is inefficient and costly. The use of court monitors and independent reviewers with necessary, relevant expertise in complicated subject matter has proved to be an effective mechanism to ensure durable compliance.

Even before the ADA, The Arc, which advocates for people with disabilities, participated in cases that demonstrated the value of court oversight to ensure the fair and humane treatment of people with intellectual and developmental disabilities. For example, in Ricci v. Okin in 1972, The Arc of Massachusetts filed a class action lawsuit against five state schools and institutions, asserting that conditions violated residents’ rights. The lawsuit resulted in a consent decree that initially served to improve the quality of life for residents and led to the closure of several of the facilities and the establishment of an independent Office of Quality Assurance and the Massachusetts Governor’s Commission on Intellectual Disability. When the judge ultimately closed the case in 1993, he noted that, as a result of court oversight: “Massachusetts now has a system of care and habilitation probably second to none anywhere in the world. For the past two decades, literally thousands of hours have been devoted to fashioning a comprehensive remedial program. . . . The result is that . . . we have created an environment for persons with [intellectual and developmental disabilities] that is now characterized by human dignity and opportunity for growth.” This case and efforts like it served as a precursor to the robust protections of the ADA.


Since the passage of the ADA, much progress has been made. Yet we still face the unacceptable reality that many people with intellectual and developmental disabilities live in institutions, receive segregated and inferior education, and experience discrimination in the workforce and other aspects of community life. Our journey is not over, and enforcement of the ADA and other laws prohibiting discrimination is a critical responsibility of the Justice Department. Let’s remove this roadblock and live up to the full promise of the ADA.

Frederick M. Misilo is president of The Arc’s board of directors.