Part Two: Olmstead 15 Years Later: A Behind-the-Scenes Account from Olmstead Pioneer Jonathan Zimring
Part Two of a Three-Part Series
by Jonathan Zimring & Michael Morris
As we continue to celebrate the 15th anniversary this year of the U.S. Supreme Court’s landmark decision in the Olmstead v. L.C. case, the LEAD Center’s Policy Team Lead Michael Morris, who is Executive Director of National Disability Institute, was honored to speak 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, which required 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.
In part two of the three-part series, Zimring shares 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. Miss part one on the history of the case, the people involved and how and why it was brought to trial? Read it here.
Michael Morris (MM): Did you have any sense at the time the court issued its opinion that this would grow, be embraced by both Democratic and Republican administrations, and transform the responsibilities of states in rebalancing their resources, in what has become known as applying the Olmstead community inclusion imperative?
Jonathan Zimring (JZ): Not really. We always hoped that our efforts would lead to that, but where that road would go before the court decided was very difficult [to predict]. The last five years have grown that initiative. It surprised me and many of us, as a third generation look[s] at what the standard means.
In fact, we were a little concerned. Even though it was a 6-3 opinion, some of the language in the majority opinion we felt was ambivalent about what the mandate would really mean at first. We were concerned whether we had won a clean mandate, or whether the mandate itself and the language of the act would be sufficient to permit enforcement. But history, recent history, has shown 1) that it is (sufficient), and 2) that it spawned something that you hope [for] but never anticipate in litigation. It spawned a movement of the right to integration across very many aspects of society. It allowed us to redefine, in its simplicity, what discrimination means. I think that’s the key, because I think that’s where the movement needs to focus itself – that [if] it’s not integrated, it’s discriminatory, because we certainly have the science to do otherwise.
MM: As guardian ad litem, you, of course, knew the two plaintiffs – both women in Olmstead. I wonder if there’s anything you can share about why these two women and how they felt about being the center of attention for a very long time?
JZ: They loved Sue Jamieson and rightfully so. Her caring for them was apparent to everybody. They kind of tolerated me, the lawyer who was around them. But they really loved her.
They were really interesting people in having a heartfelt basic view of the world, which [was], ‘I don’t want to be here.’ Lois just knew she’d been in and out of that place and two or three other places in her adult life, and it wasn’t necessary. Elaine was a little older and had health problems. They both had [experienced messages of] “you’re not healthy,” or “you’ll hurt yourself,” which is something I don’t think people with disabilities really react to. But others may on their behalf almost like a parenting impulse. But they knew there was a vehicle to build a life.
They moved into residences and then higher-class residences; they had support. They probably had more support than people in Georgia get over the course of time. Elaine had her health issues that led to her passing (in 2004). Lois understood intuitively some of it and, as you may know, took to painting. She has become fairly accomplished….She’s been successful in life and in building a life. She still gets some support, but I think she’s always understood that she could do this. She gravitated to it and grabbed onto it pretty successfully and pretty readily after [the] transition. They both had transition issues, as you’d expect. They both, [but] more Lois, had not been allowed to grow or grow up. That’s the tragedy of institutions and isolation of people. [Lois] now has done that. And I think understands her celebrity…has taken her places. It’s taken her to the Oval Office and other places; I think she understands that now.
MM: In terms of other people in Georgia and across the country, would you have thought, and this is always, I think, the dilemma of attorneys in these cases, that we would make more progress by now, 15 years later, or do you look at it as having made significant progress but more needs to be done?
JZ: No, I always think that we would have made more progress at this point. Putting aside that we were concerned with how much we’d actually won at first, but you kind of take a step back and understand… that Georgia Regional Hospital doesn’t exist anymore, which is good. . . . But, there’s not been an effective funding mechanism in Georgia, and I think in other places, to manage community resources. We’ve had thousands on Medicaid waiver waiting lists, and the politics of expanding Medicaid throughout the South are very difficult politics –so that has always disappointed me. No one has ever funded the community support services to any realistic degree. They’re doing a better job of it now, government-wise, but they really don’t have the resources. And the resources that didn’t exist aren’t being created; so we become a stepchild again, [with] slow progress. The sad part of it is the science is way ahead of the delivery of the profession. And you know, in Georgia, no one has started to think about the things that people are doing third generationally with Olmstead… like the sheltered workshops and integration of community opportunities. We’re still looking for places for people to live and support services so they can manage and survive in the community. So that’s been a concern for a number of years.
MM: Were you surprised at the recent developments of the last few years, moving the Olmstead focus on community inclusion and participation from community living to applying it to employment and day program segregation and sheltered workshops, broadening the meaning of discrimination?
JZ: No, not legally surprised. … Once the isolation of living in the services is the definition of discrimination, which is what we hoped to win and we actually did win, it’s not a great leap in other places. And it’s actually easier in non-living situations. People have to remember that the era was the institutionalization…Lois and Elaine had been stuck, irrespective of what we knew about institutions. And that was the hardest thing, and the court had been moving towards [it…we couldn’t really challenge the doctor as long as the doctor was acting in good faith, and then all of a sudden we had a whole different analysis. [That] is, at its core, what the ADA is all about. We really did win why there is an ADA in my view. That is, people need to be able to be integrated into society. I mean, wasn’t that the most serious evil?
So [on] reflection, to me, we actually did something that most civil rights lawyers or social change people don’t get an opportunity to do. We hit the issue on its core. That was fundamental to what our ultimate social objective was. We didn’t have an objective to integrate all society. We just needed to end people being kept in institutions – and then we would plan what to do next. That’s the strength of (U.S. Supreme Court) Justice (Ruth Bader) Ginsburg’s analysis, it’s plain and simple and discrimination.