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Part One: Olmstead 15 Years Later: A Behind-the-Scenes Account from Olmstead Pioneer Jonathan Zimring

One of the most historic legal decisions affecting the civil rights of people with disabilities celebrated its 15th anniversary on June 22.  In 1999, the U.S. Supreme Court rendered the landmark decision in the Olmstead v. L.C. case, requiring states to eliminate the segregation of people with disabilities and ensure people with disabilities receive services in the most integrated setting appropriate to their needs.

The groundbreaking decision has not only helped thousands of people with disabilities leave institutions and live in the community, but also continues to be applied beyond community living to employment services and supports.

The LEAD Center’s Policy Team Lead Michael Morris, who is Executive Director of National Disability Institute, sat down with Jonathan Zimring, an Atlanta, Ga.-based civil rights and education attorney for people with disabilities and their families. Zimring served as the court-appointed guardian (guardian ad litem) to represent the interests of the two women in the case.  He was one of the pioneers in bringing to court this landmark case that became a major milestone in the disability civil rights movement.

Part one of this three-part series shares an insider’s view on the history of the case, the people involved and how and why it was brought to trial. Part two explores the impact of the Olmstead decision on the two women who brought the case and on people with disabilities nationwide. Part three highlights the legacy of Olmstead and what still needs to be done to fulfill its promise.

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Michael Morris (MM):  As a civil rights attorney who represented many people with disabilities and families, tell us a little bit about your work and, specifically, how you became involved in the Olmstead case?

Jonathan Zimring (JZ):  I’ve always practiced disability-related law, beginning in law school. Right out of law school, in the early to mid 1970s, [services were] more institutionally based.  As part of that, I was a special counsel at a regional hospital in North Carolina. I came to Georgia under a grant from the ABA (American Bar Association) Commission on Mental Disabilities to set up 10 sites of trial-funded legal services for persons with disabilities. That evolved into doing work in education with Georgia Legal Services.

The Olmstead case was really encouraged by a woman named Sue Jamieson (the lead attorney on the Olmstead case) at the Atlanta Legal Aid Society. I was initially with Georgia Legal Services as their in-house expert, so to speak, on education and disability law. [Sue and I] worked pretty closely together.  [We] just got tired of a number of problems with getting the state to allow people to leave the regional institutions. We had people in all of the eight regional hospitals in Georgia that had nowhere to go but didn’t need to be there. [Sue] was increasingly frustrated. The hospital staff would actually state that the individuals could live in the community but there [were no opportunities] to be found. That was particularly true in the Georgia regional facility in South Atlanta. [Sue] walked the halls once a week to meet people and to bring release and commitment proceedings…[We] lost several, not because they didn’t need to be there but because the administrative judges didn’t send anybody out of the facility.  That’s where she met Lois (Curtis), [for whom] the case was initially brought. Lois had bounced in and out of institutions since she was a very young little girl. She had multiple diagnoses, most of them not particularly effective or accurate.

We ultimately sat down and talked it through and decided that we could bring a case under the ADA (Americans with Disabilities Act) under the integration mandate. The case was filed on Lois’ behalf and later joined by Elaine Wilson. The state started to then find places for them, and it was intended that it would moot the claim. So that was really the birth of the case.

My involvement was as guardian ad litem. The judge here in Atlanta didn't really know I was involved in the initial parts of the case that were filed by Sue and another lawyer named Steve Caley. [The judge] called me up and said he had this case and he wants to get to the merits of it; the state wants to dismiss it because of the alleged competency or incompetency of the plaintiffs. He asked me to be guardian ad litem (court-appointed guardian) and I consented. So I functioned throughout the case as a quasi-attorney but not a litigating attorney, as guardian ad litem of Lois and Elaine.

MM:  Was the choice made not to make this a class action case?

JZ:  We elected not to bring it as a class action intentionally, and that was the push. We thought the integration mandate was clear and clean. We had all had experiences with some of these issues being finessed and not reached because of the class action aspect of it. We thought if we could get the statutes interpreted cleanly, we would be better served than spending a year litigating over class certification and running into the inherent problems we thought the women would have, which is what you see in prisons and jails sometimes.  If they were released, would they remain appropriate class representatives. That was attempted by the state here in early parts of the case. [They moved] to dismiss once the case had generated placements, particularly for Lois and then for Elaine.  We didn't really think it was necessary. It also had to do with some of the flux in the class action standard in the court at the time.

MM: Were you surprised that this case went on appeal to the Supreme Court?

JZ:  We were surprised it went to the Supreme Court after the 11th Circuit, but the case was brought to really generate getting Lois and Elaine out of the institution, which it accomplished. But then they were both in the same unit that had a couple of dozen people, about 30 or 40 percent, in the same situation. Even the hospital doctors and social workers had said they should and could live in the community if there were placements available. We always had that in mind. We were not surprised to win in the district court. That opinion is pretty straightforward on the integration mandate of the statute. We thought we had a risk of losing in the 11th Circuit Court of Appeals. We all have different recollections of how the oral argument went, but we anticipated that if we won, the state might petition for cert (certiorari - a petition to have the U.S. Supreme Court review a lower court’s ruling). We were surprised when cert was actually taken because there really wasn’t a split in the circuits that was graphic which would be the major standard for taking certiorari at that point, so we were really surprised.  

The whole world changes when you have a case like that that goes to the Supreme Court. It required a lot more mobilization of the disability community to support what we were doing to make it successful.  [The mobilization] was done very well, I think, by the people who managed that. People from all over the country filed briefs. I don’t remember how many dozens of different briefs there were. I do remember the disability community deciding to try to have a bonfire the night before the oral arguments at the Supreme Court. And I remember the court not knowing what to do with the several dozen [service] dogs that were brought by [people with visual disabilities] into the court, and not wanting to embarrass themselves, I think. We were surprised by what it became. 

When the Equal Employment Opportunity Commission (EEOC) issued its final regulations for the ADA Amendments Act of 2008, its guidance listed several examples of flexible workplace policies that an employer could consider when choosing a reasonable accommodation that enables an employee with a disability to be maximally productive. EEOC cites telework, job reassignment, flexible start and end times and working from home.

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