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Prof. Sam Bagenstos

Sam Bagenstos paper: New era for disabled gains steam

By John Masson

A new working paper examining deinstitutionalization litigation, written by Michigan Law Prof. Samuel Bagenstos, finds that the future is likely brighter than the past when it comes to moving people with psychiatric or developmental disabilities into the community.

And for Bagenstos, the former number-two official in the Department of Justice's Civil Rights Division, that spells good news—probably. Because despite some of the acknowledged problems attendant with earlier deinstitutionalization movements, the overall impact of getting people out of large, expensive state-run institutions has been overwhelmingly good for people with disabilities. "There's very little doubt that, for people with either psychiatric or developmental disabilities, an institution—a large congregate facility—is not a place where a person can flourish," Bagenstos said. "We actually had substantial success with this (deinstitutionalization) policy, and that's a side of the story that has not been told adequately. What's important is to figure out why it succeeded when it succeeded, and why it failed when it failed."

Largely, the failures have been attributable to problems delivering the services people need once they're removed from a centralized setting. Nevertheless, a new round of deinstitutionalization is afoot, this time driven mainly by the Supreme Court's 1999 decision in Olmstead v. L.C., which held that unjustified institutionalization can violate the Americans with Disabilities Act. Another driver this time around is the Community Living Initiative, championed by President Barack Obama and the Justice Department.

A third variable this time involves the people driving the changes. The political coalition that helped force deinstitutionalization in the 1970s and 1980s—a strange-bedfellows combination of fiscal conservatives who saw how expensive public institutions are, along with advocates for the disabled who saw that those institutions weren't doing much good—no longer cooperates as well.

Read more about the issues in Bagenstos' working paper, which is available as a free download.



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