Olmstead Goes to School: The Americans with Disabilities Act in the Special Education Setting
On Nov. 4, the Center for Law, Health & Society featured a panel discussion to describe the historical background of the Americans with Disabilities Act, the current context of the Olmstead v. L.C. and E.W. decision, and the application of Olmstead in special education.
“Exploring these issues is critical both as we educate future lawyers and to ensure the rights of people with disabilities are recognized and followed,” said panel moderator and assistant clinical professor Emily Suski. She has extensive experience advocating for children and adolescents with disabilities and supervises students in the HeLP Legal Services Clinic in education cases.
Talley Wells, co-director of the Disability Law Project for the Institute on Human Developments and Disability at the University of Georgia, described the 1999 Olmstead decision and its significance for people with disabilities. The two women at the center of case, who had developmental disabilities and were mentally ill, had been hospitalized in Georgia, despite recommendations that they be placed in community settings.
The U.S. Supreme Court prohibited this kind of segregation of people with disabilities, making it “the Brown v. Board of Education for people with disabilities,” said Wells, and held that people with disabilities have a qualified right based on the ADA to receive state funded supports in the community rather than in institutions when it can be done with reasonable accommodation.
Making clear that the law has mandated since the 1970s that a child is to be educated in the “least restrictive environment” to the maximum extent appropriate was Patrick T. Andriano, associate with Reed Smith, who represents school boards in special education matters and previously worked for the Virginia Department of Education.
“The goal is not segregation; students should not be in separate classrooms unless all other options have been exhausted,” Andriano said. He emphasized that, while including students in the regular classroom as much as is practicable is a central goal of the law, schools must attempt to achieve that goal in light of the equally important objective of providing an education appropriately tailored to each student’s particular needs.
Jerri Katzerman, the advocacy director for Columbia Legal Services in Washington State, described a letter the U.S. Department of Justice issued to Georgia this summer stating that the Georgia Network for Educational and Therapeutic Support, the GNETS program, is in violation of the ADA by unlawfully segregating students in schools based on their disabilities. DOJ relied on the decision in Olmstead in its letter.
Katzerman asserted the basic principle at issue was human dignity. “Advocates argue that Olmstead applies to everyone, including children with severe mental and behavioral needs,” Katzerman said. Going forward, she contends that it is not just about de-institutionalizing, but also ensuring that individuals with disabilities have the support needed to remain in their community, including home, school, or work. Relying on Olmstead and the ADA provides the opportunity to address segregation of students with disabilities on a systemic level, rather than on the individual student-by-student process outlined in IDEA, Katzerman said.
“As a former special education teacher, it’s exciting to see Georgia State involved in the intersection of law and education, as these issues have huge lifelong consequences for students and parents,” comments Jenna Rubin (J.D. ’16). “The event was a great snapshot of just how much impact Olmstead has on the future landscape of disability law and just how much remains unresolved.”