Yesterday, the U.S. Department of Justice’s Office of Legal Counsel (OLC) issued a deeply alarming opinion that takes direct aim at one of the most important disability civil rights principles in modern American law: the rights of people with disabilities to live, receive services, and participate in the community rather than being unnecessarily segregated in institutions.

For more than 25 years, the Supreme Court’s decision in Olmstead v. L.C. has stood for a basic promise: people with disabilities should not be forced into institutions when they can be safely and appropriately supported in the community. That promise has helped people leave state institutions, nursing facilities, and other segregated settings. It has helped people avoid institutionalization in the first place. It has shaped state systems, settlement agreements, budget decisions, and the daily lives of disabled people and families across the country.

The new OLC opinion attempts to weaken that promise. It claims that neither the Americans with Disabilities Act nor Section 504 of the Rehabilitation Act requires states to serve people with disabilities in the most integrated setting appropriate to their needs.

Specifically, the OLC opinion recasts Olmstead’s limited holding—that unjustified institutionalization can be discriminatory—into a framework under which institutionalization is lawful so long as the state can articulate a “nonarbitrary” justification. Its adoption of a “sole factor” causation standard, under which institutionalization is unlawful only if disability is the sole motivating factor, is in considerable tension with the statutory text.

If anything, the statutory text cuts the other way. Section 504 bars discrimination “solely by reason of” disability, but Title II left “solely” out, an omission courts have treated as deliberate. A law that dropped the word “solely” should, if anything, reach more discrimination, not less. OLC’s “sole factor” reading gets that backwards.

That interpretation is dangerous. It would turn back decades of civil rights enforcement. It would make it easier for governments to justify segregation based on cost, convenience, lack of planning, or failure to build adequate community supports. It would treat the right to live in the community not as a core civil rights protection, but as contingent on state justifications that courts will often be required to accept if deemed not arbitrary. It would tell disabled people that their right to live in the community is not a civil right, but a preference that governments may choose to honor or ignore.

We also want to be clear about what the OLC opinion does and does not do.

This opinion does not overrule Olmstead. It does not bind federal courts. It does not erase the ADA, Section 504, existing court orders, or the decades of case law recognizing that unjustified institutionalization is discrimination. It does not give California or any other state permission to warehouse people with disabilities in institutions or to abandon its responsibility to build and maintain community-based services.

But we also want to be clear about the threat. The opinion concludes that the integration mandate regulations exceed statutory authority and notes that agencies can rescind them. If the integration mandate is rescinded it would substantially weaken federal enforcement, shifting primary responsibility to private litigants. Even OLC acknowledges in its opinion that its analysis is out of step with prevailing federal circuit court authority.

OLC opinions generally control the legal position of the federal government. That means this opinion may change how the Department of Justice and other federal agencies enforce disability rights laws. This opinion may, therefore, reduce or discourage federal investigations, unwind existing enforcement efforts, and weaken federal oversight of state service systems. It may embolden states to resist community integration obligations. And it will almost certainly be cited by government defendants who want courts to narrow Olmstead and reduce their responsibility to serve disabled people in the community.

This threat is especially urgent in California because our state is already moving in the wrong direction on mental health policy by expanding the grounds for involuntary commitment and court-ordered treatment over the voluntary, community-based services people actually ask for. The OLC opinion would add federal cover to the same dangerous idea: that when public systems fail to provide housing, services, peer support, culturally responsive care, and voluntary treatment, the answer can be greater reliance on institutionalization, coercion and segregation. California should reject that path. These trends reinforce each other or risk reinforcing each other, and the people caught between them are the ones with the least power to push back.

Disability Rights California continues to closely review the OLC opinion to understand its immediate and longer-term impact on disabled people. But what we do know is that the right to live in the community is not abstract. It is the difference between going home and growing old in a facility. It is the difference between receiving support in your own apartment or a locked institution. It is the difference between a disabled child living with family and a family being told there is no other option. It is the difference between freedom and segregation.

Disabled people belong in their communities. That was true yesterday, it is true today, and we intend to keep it true tomorrow.

Media Contacts

Sam Mickens
Communications Director
Disability Rights California
sam.mickens@disabilityrightsca.org
(646) 945-0918

Disability Rights California (DRC) – Is the agency designated under federal law to protect and advocate for the rights of Californians with disabilities. The mission of DRC is to defend, advance, and strengthen the rights and opportunities of people with disabilities. For more information visit: https://www.disabilityrightsca.org.