IN THE UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF MARYLAND
WILLIAMS, et al.,               )
                                )
        v.                      ) Civil No. CCB-94-880
                                )
WASSERMAN, et al.,              )
                                )
                                )
HUNT, et al.,                   )
                                )
        v.                      ) Civil No. CCB-91-2564
                                )
EBBERTS, et al.,                )
                                )
                                )
HATTIE J.                       )
                                )
        v.                      ) Civil No. CCB-94-1107
                                )
WASSERMAN, et al.,              )
                                )
                                )
UNITED STATES OF AMERICA,       )
        Amicus Curiae.          )
                                )
                                )
        MEMORANDUM OF THE UNITED STATES IN SUPPORT OF PLAINTIFFS'
          MOTION FOR PARTIAL SUMMARY JUDGMENT ON ADA CLAIM AND
        IN OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT,
       OR IN THE ALTERNATIVE, MOTION FOR PARTIAL SUMMARY JUDGMENT
01-05690
                        TABLE OF CONTENTS
                                                             Page
Table of Authorities .......................................... i
Preliminary Statement ..........................................1
Argument .......................................................5
        I.  The Unnecessary Segregation of Individuals with
            Disabilities in Institutions Is a Form of
            Discrimination Prohibited by the ADA and Its
            Implementing Regulations ............................5
            A.   Ending the discrimination of segregation and
                 isolation through unnecessary
                 institutionalization is a specific purpose
                 of the ADA .....................................6
            B.   ADA's legislative history affirms that one
                 of its major purposes is to remove the
                 barriers of unnecessary segregation ...........10
            C.   ADA regulations require states to provide
                 services in the most integrated setting
                 appropriate to the needs of people with
                 disabilities ..................................12
        II.  The Developing Caselaw on the Integration
             Regulation Affirms that States Are Obligated
             to Provide Services in the Most Integrated
             Setting ...........................................18
        III. Section 504 Cases Decided Prior to Enactment
             of the ADA Are Not Relevant To Interpreting
             Title II's Integration Requirement ................21
        IV.  Defendants' Failure To Provide Community
             Services To Individuals Identified as
             Unnecessarily Institutionalized Is Unjustified ....23
        V.   Defendants Seek to Evade Their Constitutional
             Responsibilities Under Youngberg v. Romeo .........25
Conclusion .................................................... 35
01-05691
                        TABLE OF AUTHORITIES                                   
                                
                                                           Page(s)
CASES:
Alexander v. Choate, 469 U.S. 287 (1985) .......................6
Buffington v. Baltimore County, 913 F.2d 113
        (4th Cir. 1990) .......................................31
Cammarano v. United States, 358 U.S. 498 (1959) ...............20
Chrysler Corp. v. Brown, 441 U.S. 281 (1979) ..................13
City of Cleburne v. Cleburne Living Center,
        473 U.S. 432 (1985) ...................................16
Clark v. Cohen, 613 F. Supp. 684 (E.D. Pa. 1985),
        aff'd, 794 F.2d 79 (3d Cir.),
        cert. denied, 479 U.S. 962 (1986) .....................22
Clark v. Cohen, 794 F.2d 79 (3d Cir.),
        cert. denied, 479 U.S. 962 (1986) ..............21-22, 29
Concerned Parents to Save Dreher Park Center
        v. West Palm Beach, 846 F. Supp. 986
        (S.D. Fla. 1994) ......................................13
Conner v. Branstad, 839 F. Supp. 1346
        (S.D. Iowa 1993) ......................................19
DeGidio v. Pung, 920 F.2d 525 (8th Cir. 1990) .................34
DeShaney v. Winnebago County DSS, 489 U.S. 189 (1989) .........31
General Electric Co. v. Gilbert, 429 U.S. 125 (1976) ..........13
Helen L. v. DiDario, 46 F.3d 325 (3d Cir.), cert.
        denied,   U.S.  , 116 S. Ct. 64 (1995) ........... passim
Kentucky Ass'n for Retarded Citizens, Inc. v.
        Conn, 674 F.2d 582 (6th Cir.), cert. denied,                    
        459 U.S. 1041 (1982) ..............................22, 24
Mackey v. Lanier Collection Agency & Service, Inc.,
        486 U.S. 825 (1988) ...................................20
Metro Broadcasting, Inc. v. FCC, 497 U.S. 547 (1990) ..........10
Messier v. Southbury Training School,
        916 F. Supp. 133 (D. Conn. 1996) ..................13, 28
                                - i -
01-05692
Phillips v. Thompson, 715 F.2d 365 (7th Cir. 1983) ............22
CASES (cont'd):
Plummer v. Branstad, 731 F.2d 574 (8th Cir. 1984) .............23
Ramos v. Lamm, 639 F.2d 559 (10th Cir. 1980),
        cert. denied, 450 U.S. 1041 (1981) ....................34
Rogers v. Evans, 792 F.2d 1052 (11th Cir. 1986) ...............34
Thomas Jefferson University v. Shalala,
        U.S.  , 114 S. Ct. 2381 (1994) ........................14
Thomas S. v. Flaherty, 699 F. Supp. 1178
        (W.D.N.C. 1988), aff'd, 902 F.2d 250
        (4th Cir.), cert. denied, 498 U.S. 951 (1990) .........30
Thomas S. v. Flaherty, 902 F.2d 250 (4th Cir.),
        cert. denied, 498 U.S. 951 (1990) .................26, 31
Thomas S. v. Morrow, 601 F. Supp. 1055
        (W.D.N.C. 1984), aff'd, 781 F.2d 367
        (4th Cir. 1986) .......................................30
Thomas S. v. Morrow, 781 F.2d 367 (4th Cir. 1986) .........passim
Todaro v. Ward, 565 F.2d 48 (2d Cir. 1977) ....................34
Torcasio v. Murray, 57 F.3d 1340 (4th Cir. 1995),
        cert. denied,   U.S.  , 116 S. Ct. 772 (1996) .........17
Traynor v. Turnage, 485 U.S. 535 (1988) .......................20
United States v. Pennsylvania, 902 F. Supp. 565
        (W.D. Pa. 1995) .......................................33
Wellman v. Faulkner, 715 F.2d 269 (7th Cir. 1983),
        cert. denied, 468 U.S. 1217 (1984) ....................34
Williams v. Secretary of Executive Office of
Human Services, 609 N.E.2d 447 (Mass. 1993) ................19-21
White v. Napoleon, 897 F.2d 103 (3d Cir. 1990) ................34
Wyatt v. King, 773 F. Supp. 1508 (M.D. Ala. 1991) ..............3
Youngberg v. Romeo, 457 U.S. 307 (1982) ....................25-27
                                - ii -
01-05693
CONSTITUTION AND STATUTES:
Due Process Clause (Fourteenth Amendment) .................passim
Americans with Disabilities Act of 1990 (ADA):
        42 U.S.C. S 12101(a)(2) (title I) ......................7
        42 U.S.C. S 12101(a)(3) ................................7
        42 U.S.C. S 12101(a)(5) ................................7
        42 U.S.C. S 12131-12134 (title II) ................passim
        42 U.S.C. S 12131(2) ...................................8
        42 U.S.C. S 12132 ...................................7, 8
        42 U.S.C. S 12134 ..................................8, 12
        42 U.S.C. S 12134(b) ...................................9
Rehabilitation Act of 1973, Section 504,
        29 U.S.C. S 794 ..............................6, 9, 21-23
REGULATIONS AND RULES:
28 C.F.R. pt. 35 (1994) ...................................passim
        Section 35.130(b)(1)(v) ...............................19
        Section 35.130(d) .................................passim
        App. A ............................................15, 16
28 C.F.R. pt. 41 (1994) ........................................9
        Section 41.51(d) ...................................9, 13
45 C.F.R. S 84.4(b)(2) (1994) .................................22
LEGISLATIVE MATERIALS:
ADA: Hearing Before the Senate Comm. on Labor
        and Human Resources and the Subcomm.
        on the Handicapped, 101st Cong., lst Sess. (1989) ..11-12
H.R. Rep. No. 485 (II), 101st Cong.,
        2d Sess. (1990), reprinted in
        1990 U.S.C.C.A.N. 303 ..........................7, 10, 12
H.R. Rep. No. 485 (III), 101 Cong.,
        2d Sess. (1990), reprinted in
        1990 U.S.C.C.A.N. 445 .......................6, 8, 11, 15
S. Rep. No. 116, 101st Cong.,
        1st Sess. (1989) ............................6, 7, 10, 12
135 Cong. Rec. 19801 (1989) ...................................10
135 Cong. Rec. S4993 (daily ed. May 9, 1989) ..................12
136 Cong. Rec. H2447 (daily ed. May 17, 1990) .................12
                                - iii -
01-05694
                        PRELIMINARY STATEMENT

        The United States appears before this Court as amicus curiae
to urge this Court to grant Plaintiffs' Motion for Partial
Summary Judgment on their claim brought under the Americans with
Disabilities Act of 1990 (ADA) (Plaintiffs' Motion) in Williams
and to deny Defendants' Motion for Summary Judgment on
Plaintiffs' claims under the Fourteenth Amendment and the ADA
(Defendants' Motion).1/

        With respect to the arguments concerning the ADA raised in
the Williams case, there are no genuine issues of material
fact.2/ Specifically, the Court has before it a substantial
accumulation of years of admissions by Defendants and their own
treating professionals, charged with the responsibility of
______________________
1/Because the law pursuant to the ADA and the Fourteenth
Amendment is the same for mentally disabled individuals
unnecessarily segregated in any state-run institution, the United
States' brief addresses issues presented in all three cases.

2/Plaintiffs have moved for summary judgment in Williams on
behalf of a sub-class of Williams plaintiffs -- individuals for
whom State treating professionals have determined that the most
integrated setting appropriate to the needs of these individuals
is the community rather than an institution. Plaintiffs have not
moved for summary judgment on behalf of the individual plaintiff
in the Hattie J. case, nor have they moved for summary judgment
on behalf of any of the plaintiffs with mental retardation in the
Hunt case. Defendants have moved for summary judgment on the ADA
claims in all three cases. Defendants' motion for summary
judgment should be denied in all three cases. In Williams, where
the facts are not in dispute, summary judgment should be issued
in favor of Plaintiffs. In Hunt and Hattie J., Defendants'
motion should be denied because the facts belie Defendants'
contentions that they are meeting their legal responsibilities
under the ADA. See, e.g., Defendants' Mem. at 57, 59 (treating
professionals have determined that Hunt Plaintiffs should be
served in the community, and as of June 30, 1996, all but two
Hunt plaintiffs will be served in the community); Defendants'
App. at 12, 25 (treating professionals and Plaintiffs' expert
determined that Hattie J. should be served in the community).
01-05695
                                - 2 -
determining the services necessary to meet the needs of
individuals the State has undertaken to serve, that individuals
with disabilities are currently inappropriately institutionalized
in Maryland's public institutions and would be better served in
integrated community programs.3/ For instance, State
professionals described Mr. Trail's need for community services
as "very urgent, in crisis."4/ In defiance of the long-standing
community placement recommendations of the State's own treating
professionals, Defendants have unnecessarily segregated the
individuals at issue in the motion in institutions and away from
society and have failed to provide care in the most integrated
setting appropriate to their needs -- in this case, community-
based programs. As the United States argues below, this
unnecessary segregation is a form of discrimination prohibited by
the ADA and its implementing regulations. 28 C.F.R. S 35.130(d)
(ADA integration regulation); Helen L. v. DiDario, 46 F.3d 325
(3d Cir.), cert. denied,  U.S.  , 116 S. Ct. 64 (1995).
______________________

3/ Gary Williams' List of Undisputed Material Facts in Support
of Motion for Summary Judgment on his ADA Claim (Williams Facts)
(filed with Plaintiffs' Motion) at PP 6-9, 13, 23-24, 27, 29, 40-
41; Marie Lentz's List of Undisputed Material Facts in Support of
Plaintiffs' Motion for Summary Judgment on her ADA Claim (Lentz
Facts) (filed with Plaintiffs' Motion) at PP 10-13, 19-20, 23,
53; Ronald Cullen's List of Undisputed Material Facts in Support
of Plaintiffs' Motion for Summary Judgment on his ADA Claim
(Cullen Facts) (filed with Plaintiffs Motion) at PP 14-20, 23,
41; John Trail's List of Undisputed Material Facts in Support of
Motion for Summary Judgment on his ADA Claim (Trail Facts) (filed
with Plaintiffs' Motion) at PP 8, 16-17, 20-23, 25-26, 28, 38-44.

4/ Trail Facts at P 22.
01-05696                                - 3 -
        Community-based programs are integrated services both
because they are physically located in the mainstream of society
and because they provide opportunities for people with mental
disabilities to interact with their non-disabled peers in all
facets of life. An institutional setting, on the other hand, is
a segregated environment because individuals living in such
facilities are separated from the community and walled off from
the mainstream of society, isolated and apart from the natural
community where all of us live, work, and engage in life's many
activities. See, e.g., Wyatt v. King, 773 F. Supp. 1508, 1512
(M.D. Ala. 1991).

        Given these undisputed facts, the Court is presented with a
purely legal question: Does Defendants' unnecessary segregation
of individuals with disabilities constitute discrimination under
title II of the ADA? This case is thus appropriate for summary
judgment.

        The State's defense of its discrimination is without merit.
Defendants have misinterpreted the prohibition in title II of the
ADA against unnecessary segregation and relied on irrelevant
caselaw. And far from being unable to end unnecessary
segregation of the individuals at issue in Plaintiffs' Motion,
the State admits that it presently operates a dual system for
providing residential care, treatment, and training to its
citizens with mental disabilities.5/ Besides operating
_____________________

5/ Williams Facts at PP 44-46; Lentz Facts at PP 56-63; Cullen
Facts at PP 45-54; Trail Facts at PP 58-66.
01-05697                                - 4 -
institutions for people with mental disabilities, the State funds
an array of community-based programs for people with mental
disabilities.6/ In fact, Defendants admit that they can and will
fund the recommended community-based services for each of the
individuals at issue in Plaintiffs' Motion.7/ In spite of this
admission, however, these individuals have not been discharged
from State hospitals.8/

        As for Defendants' Motion concerning the Fourteenth
Amendment, there, too, the State's legal arguments are in error.
Defendants have misstated the protections that the Fourteenth
Amendment affords to people with mental disabilities
institutionalized by a State; confounded the liability standard
for assertion of a due process claim under the Fourteenth
Amendment; and urged that this Court abdicate its responsibility
to ensure that the rights of institutionalized persons with
disabilities are respected by the states.
_____________________________

6/ Ibid.

7/ Williams Facts at P 22; Cullen Facts at P 22; Lentz Facts at
P 12; Trail Facts at P 27. Defendants have been promising to
move these individuals into community programs for a long time
but have not fulfilled these promises. See, e.g., Williams Facts
at PP 10-12 (Defendants have been promising to discharge Mr.
Williams to an appropriate community program for six years).

8/ Williams Facts at P 5; Lentz Facts at P 1, 9; Cullen Facts at
P 22; Trail Facts at P 1.
01-05698                                - 5 -
                                ARGUMENT
I.      The Unnecessary Segregation of Individuals with
        Disabilities in Institutions Is a Form of Discrimination
        Prohibited by the ADA and Its Implementing Regulations.

        As Plaintiffs have demonstrated in pleadings in support of
their summary judgment motion, this Court already has before it a
substantial amount of evidence that individuals with disabilities
have long been inappropriately institutionalized in Maryland's
public institutions and would be better served in integrated
community programs. Plaintiffs' Mem. at 3-11 and accompanying
Undisputed Material Facts. Despite the fact that Defendants
claim to have a significant array of integrated, community-based
services in place and, indeed, have the funds to provide
community services to each of the individuals at issue in
Plaintiffs' Motion who remain inappropriately institutionalized,
Defendants have failed to transfer these individuals to community
programs. Plaintiffs' Mem. at 34-36 and accompanying Undisputed
Material Facts. By failing to serve qualified mentally disabled
individuals in the most integrated setting appropriate to their
needs, Defendants are violating the ADA's prohibition of
disability-based discrimination. Helen L. v. DiDario, 46 F.3d
325 (3d Cir.), cert. denied,  U.S.  , 116 S. Ct. 64 (1995).
For the sub-class of individuals in the Williams case before this
Court on Plaintiffs' Motion, as in Helen L., Defendants' own
professionals' judgments indicate that community placement is the
only professionally justifiable course of action. The relief
that Plaintiffs are seeking under the ADA merely requires the
01-05699
                                - 6 -
State of Maryland to fulfill its own judgments and deliver
services to people with disabilities in the most integrated
setting appropriate to their needs.

        A.      Ending the discrimination of segregation and isolation
                through unnecessary institutionalization is a specific
                purpose of the ADA.

        Nearly twenty years before enacting the ADA, Congress
recognized that society historically has discriminated against
people with disabilities by unnecessarily segregating them from
their family and community, and in response, enacted Section 504
of the Rehabilitation Act of 1973, 29 U.S.C. S 794. The sponsors
of that legislation condemned the "invisibility of the
handicapped in America," and introduced bills responding to the
country's "shameful oversights" that caused individuals with
disabilities to live among society "shunted aside, hidden, and
ignored." Alexander v. Choate, 469 U.S. 287, 296 (1985)
(internal quotation marks omitted). Almost twenty years later,
Congress acknowledged that the Rehabilitation Act had not
fulfilled the "compelling need * * * for the integration of
persons with disabilities into the economic and social mainstream
of American life," S. Rep. No. 116, 101st Cong. at 20 (1989). It
was the purpose of the ADA to "continue to break down barriers to
the integrated participation of people with disabilities in all
aspects of community life." H.R. Rep. No. 485 (III) at 49-50
(1990), reprinted in 1990 U.S.C.C.A.N. at 472-473.

        The ADA begins with congressional findings and purposes that
detail the reasons the statute was necessary. Congress
01-05700
                                - 7 -
specifically found that "institutionalization" is one of the
"critical areas" in which discrimination against individuals with
disabilities persists. 42 U.S.C. S 12101(a)(3). It further
found that "historically, society has tended to isolate and
segregate individuals with disabilities, and, despite some
improvements, such forms of discrimination against individuals
with disabilities continue to be a serious and pervasive social
problem." 42 U.S.C. S 12101(a)(2). These discriminatory
practices continue today through "outright intentional exclusion"
and "segregation." 42 U.S.C. S 12101(a)(5). Congress therefore
recognized that the isolation, segregation, and exclusion
represented by unjustifiable institutionalization constitute
disability-based discrimination. The ADA is the congressional
response to the

        compelling need to provide a clear and comprehensive
        national mandate for the elimination of discrimination
        against individuals with disabilities and for the
        integration of persons with disabilities into the
        economic and social mainstream of American life.
        Further, there is a need to provide clear, strong,
        consistent, enforceable standards addressing
        discrimination against individuals with disabilities.

S. Rep. No. 116, 101st Cong., 1st Sess. 20 (1989); H.R. Rep. No.
485 (II), 101st Cong. 2d Sess. at 50 (1990), reprinted in 1990
U.S.C.C.A.N. at 332.

        Consistent with the goal of comprehensive integration, the
ADA prohibits public entities from discriminating by reason of
disability. 42 U.S.C. S 12132. Title II of the ADA forbids
state and local governments to discriminate against people with
disabilities, and is divided into two parts. Part A, 42 U.S.C.
01-05701
                                - 8 -
SS 12131-12134, contains the general prohibition against
disability-based discrimination by public entities and other
generally applicable provisions. (Part B applies to public
transportation and is, therefore, not applicable to this case.)
Part A of title II mandates that "no qualified individual with a
disability9/ shall, by reason of such disability, be excluded
from participation in or be denied the benefits of the services,
programs, or activities of a public entity, or be subjected to
discrimination by any such entity." 42 U.S.C. S 12132.
In 42 U.S.C. S 12134, Congress directed the Attorney General to
promulgate regulations implementing this general mandate. See
H.R. Rep. No. 485 (III), 101 Cong., 2d Sess. at 52 (1990),
reprinted in 1990 U.S.C.C.A.N. at 475 ("Unlike the other titles
in this Act, title II does not list all of the forms of
discrimination that the title is intended to prohibit. Thus, the
purpose of this section is to direct the Attorney General to
issue regulations setting forth the forms of discrimination
prohibited.")
____________________

9/ A "qualified individual with a disability" is:
an individual with a disability who, with or
without reasonable modifications to rules,
policies, or practices, the removal of
architectural, communication, or transportation
barriers, or the provision of auxiliary aids and
services, meets the essential eligibility
requirements for the receipt of services or the
participation in programs or activities provided
by a public entity.
42 U.S.C. S 12131(2).
01-05702
                                - 9 -
        However, Congress did specify that (except with regard to
program accessibility and communications issues) the Attorney
General's title II ADA regulations "shall be consistent with [the
ADA] and with the coordination regulations under part 41 of title
28, Code of Federal Regulations * * * applicable to recipients of
Federal financial assistance under section 794 of Title 29
[Section 504 of the Rehabilitation Act of 1973]." 42 U.S.C. S
12134(b). This citation refers to the Section 504 coordination
regulations of the former Department of Health, Education, and
Welfare (HEW).10/ Most pertinent here, the specified coordination
regulations contain an express, stand-alone, integration
requirement which mandates that "[r]ecipients [of federal
financial assistance] shall administer programs and activities in
the most integrated setting appropriate to the needs of qualified
handicapped persons." 28 C.F.R. S 41.51(d) (1994).11/
______________________

10/ HEW was originally the agency designated to coordinate
Section 504 regulations promulgated by the various federal
agencies. It promulgated such coordination regulations on
January 13, 1978. Pursuant to an Executive Order on August 11,
1981, responsibility for these coordination regulations was
transferred to the Department of Justice, which adopted the
regulations in toto and transferred them to 28 C.F.R. pt. 41.
The regulations remain there today, despite the fact that other
Section 504 regulations, including regulations for the Department
of Health and Human Services, are found in other parts of the
Code of Federal Regulations. For a more detailed description and
history of various Section 504 regulations, see Helen L., 46 F.3d
at 330-31.

11/ The congressional choice made in title II of the ADA to
ratify the Section 504 coordination regulations, not any other
specific set of Section 504 regulations, is important; other
Section 504 regulations did not contain a stand-alone integration
requirement. See Metro Broadcasting, Inc. v. FCC, 497 U.S. 547,
563 (1990) ("overriding significance" must be attached to the
(continued...)
01-05703
                                - 10 -
        B.      ADA's legislative history affirms that one of its major
                purposes is to remove the barriers of unnecessary
                segregation.

        The ADA's legislative history confirms that Congress
intended the ADA to end the unnecessary segregation of people
with disabilities from the community because "[o]ne of the most
debilitating forms of discrimination is segregation imposed by
others." S. Rep. No. 116, 101st Cong., 1st Sess. 6 (1989). In
introducing the legislation, Senator Harkin declared that "[f]or
too long, individuals with disabilities have been excluded,
segregated, and otherwise denied equal, effective, and meaningful
opportunity to participate in the economic and social mainstream
of American life. It is time we eliminate these injustices."
135 Cong. Rec. 19801 (1989). The House and Senate Reports
emphasize that the purpose of the Act is to end the isolation,
exclusion and segregation of individuals with disabilities, and
the discrimination that "persists in such critical areas as * * *
institutionalization." S. Rep. No. 116 at 8 (citing findings of
the U.S. Commission on Civil Rights). See also id. at 20
("compelling need" for the "integration of persons with
disabilities into the economic and social mainstream of American
life"); H.R. Rep. No. 485 (II), 101st Cong., 2d Sess. at 22
(1990), reprinted in 1990 U.S.C.C.A.N. 304 (purpose of the ADA is
_______________________________

11/ (...continued)
congressional ratification of administrative regulations).
Unlike the stand-alone integration requirement in the Section 504
coordination regulations, the integration requirement in other
Section 504 regulations is specifically linked to differences in
services provided to individuals with disabilities and those
without disabilities.
01-05704
                                - 11 -
to "bring persons with disabilities into the economic and social
mainstream of American life"); id. at 28, reprinted in 1990
U.S.C.C.A.N. at 310 (noting the historic "isolation" of
individuals with disabilities); H.R. Rep. No. 485 (III) at 26,
reprinted in 1990 U.S.C.C.A.N. at 448-449 (finding that
"segregation for persons with disabilities 'may affect their
hearts and minds in a way unlikely ever to be undone,'" quoting
Brown v. Board of Education, 347 U.S. 483, 494 (1954)); H.R. Rep.
No. 485 (III) at 49-50, reprinted in 1990 U.S.C.C.A.N. at 472-473
("purpose of title II is to continue to break down barriers to
the integrated participation of people with disabilities in all
aspects of community life").

        Unnecessary and unjustifiable institutionalization was also
specifically identified in congressional testimony by a number of
sponsors and supporters of the ADA as one of the forms of
segregation and discrimination that the ADA was intended to
eliminate. For example, former Senator Lowell Weicker, an
original sponsor of the ADA, testified about the need for the ADA
to eliminate the unnecessary isolation and segregation that
institutionalization represents:

        For years, this country has maintained a public policy
        of protectionism toward people with disabilities. We
        have created monoliths of isolated care in institutions
        and in segregated educational settings. It is that
        isolation and segregation that has become the basis of
        the discrimination faced by many disabled people today.
        Separate is not equal. It was not for blacks; it is
        not for the disabled.

ADA: Hearing Before the Senate Comm. on Labor and Human
Resources and the Subcomm. on the Handicapped, 101st Cong., 1st
01-05705
                                - 12 -
Sess. 215 (1989). See also 135 Cong. Rec. S4993 (daily ed. May
9, 1989) (Senator Kennedy testifying that the ADA "will roll back
the unthinking and unacceptable practices by which disabled
Americans today are segregated, excluded, and fenced off from
fair participation in our society by mindless biased attitudes
and senseless physical barriers."); 136 Cong. Rec. H2447 (daily
ed. May 17, 1990) (Rep. Miller attesting that "[s]ociety has made
them [people with disabilities] invisible by shutting them away
in segregated facilities.").

        As summed up by then-Attorney General Richard Thornburgh,
"many persons with disabilities in this Nation still lead their
lives in an intolerable state of isolation and dependence."
S. Rep. No. 116, 101st Cong., 1st Sess. 7 (1989); H.R. Rep. No.
485 (II) at 32 (1990), reprinted in 1990 U.S.C.C.A.N. at 313,
Nowhere is the state of isolation and dependence more intolerable
than when it occurs, as in this case, because of unnecessary and
unjustified segregation in institutions.

        C.      ADA regulations require states to provide services in
                the most integrated setting appropriate to the needs of
                people with disabilities.

        The regulations issued by the Attorney General to comply
with Congress's mandate in 42 U.S.C. S 12134, promulgated
pursuant to congressional delegation only after public comment,
particularize Congress's broad language. Following Congress's
explicit directions, the title II provision relevant here, known
as the "integration regulation," adopts the precise language of
the Section 504 coordination regulation on integration, requiring
01-05706
                                - 13 -
states to "administer services, programs, and activities in the
most integrated setting appropriate to the needs of qualified
individuals with disabilities." Compare 28 C.F.R. S 35.130(d)
(ADA title II integration provision) with 28 C.F.R. S 41.51(d)
(Section 504 coordination regulation).

        It is established in federal court jurisprudence and
administrative law theory that such "legislative regulations"
have the mandatory force and effect of federal law. See, e.g.,
General Electric Co. v. Gilbert, 429 U.S. 125, 141 (1976);
Chrysler Corp. v. Brown, 441 U.S. 281, 301-3 (1979); Helen L., 46
F.3d at 331-32 (because title II was enacted with broad language
and directed the Attorney General to promulgate regulations, the
Justice Department regulations are "entitled to substantial
deference") (citing Blum v. Bacon, 457 U.S. 132, 141 (1982) and
Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837, 844 (1984)); Concerned Parents to Save Dreher Park
Center v. West Palm Beach, 846 F. Supp. 986, 989, n.9 (S.D. Fla.
1994) (ADA regulations "'must be given legislative and hence
controlling weight unless they are arbitrary, capricious, or
clearly contrary to the statute.' United States v. Morton, 467
U.S. 822, 834 (1984)"); Messier v. Southbury Training School, 916
F. Supp. 133, 141 (D. Conn. 1996) (same).

        Moreover, substantial deference is owed the Justice
Department's interpretation of this, its own regulation. See
Thomas Jefferson University v. Shalala,  U.S. , 114 S. Ct.
2381, 2386 (1994). It is not this Court's "task . . . to decide
01-05707
                                - 14 -
which among several competing interpretations best serves the
regulatory purpose. Rather, the agency's interpretation must be
given controlling weight unless it is plainly erroneous or
inconsistent with the regulation." Id. (internal quotation marks
omitted). The Department of Justice has taken the consistent
position that title II's "integration regulation" means that
where professionals (with appropriate input) have determined that
community-based services are appropriate for disabled
individuals, states must end unnecessary segregation in state-
operated institutions and provide community-based services for
those individuals. See United States' briefs filed in Helen L.
(regarding a state-run nursing home) (attached to Plaintiffs'
Motion), Wyatt v. Poundstone (regarding all Alabama institutions
for people with mental illness and mental retardation) (attached
as Attachment A), and United States v. Connecticut (regarding
Southbury Training School, a state-run institution for people
with mental retardation) (relevant pages attached as Attachment
B). This position is consistent with -- indeed compelled by --
the purpose of the statute and the language of the regulation,
and is accordingly entitled to substantial deference.

        With the "integration regulation," the Attorney General
established that a state's provision of services in an
unnecessarily segregated setting constitutes unlawful disability-
based discrimination. See Helen L., 46 F.3d at 333.
The Attorney General has explained that "the most integrated
setting appropriate to the needs of qualified individuals with
01-05708
                                - 15 -
disabilities" means "in a setting that enables individuals with
disabilities to interact with nondisabled persons to the fullest
extent possible . . . ." 28 C.F.R. pt. 35, app. A at 452
(Preamble to Regulation on Nondiscrimination on the Basis of
Disability in State and Local Government Services) (1994).
People with disabilities who are segregated behind institutional
walls are not integrated within society at large and are unable
to interact with nondisabled persons to the fullest extent
possible.

        In the preamble to the title II regulations outlining
general prohibitions against disability-based discrimination, the
Attorney General appreciates that integration is the antidote to
segregation: "Integration is fundamental to the purposes of the
Americans with Disabilities Act. Provision of segregated
accommodations and services relegates persons with disabilities
to second-class status." 28 C.F.R. pt. 35, app. A at 449-50;
accord H.R. Rep. No. 485 (III) at 56, reprinted in 1990
U.S.C.C.A.N. at 479. Particularly where, as here, a state has
admitted that an integrated, community setting is more
appropriate than a segregated, institutional one, the ADA's
mandate against unnecessary segregation should be given full
effect.

        The Attorney General has underscored the fact that the
overarching intent behind selecting the various forms of
discrimination delineated in the regulations is to forbid
practices that exclude and unnecessarily segregate. Moreover,
01-05709
                                - 16 -
the Attorney General has emphasized that it is individual need
that must drive the decisions of State agencies, not stereotypic
and erroneous presumptions about classes of disabilities:

        Taken together, these provisions are intended to
        prohibit exclusion and segregation of individuals with
        disabilities and the denial of equal opportunities
        enjoyed by others, based on, among other things,
        presumptions, patronizing attitudes, fears, and
        stereotypes about individuals with disabilities.
        Consistent with these standards, public entities are
        required to ensure that their actions are based on
        facts applicable to individuals and not on presumptions
        as to what a class of individuals with disabilities can
        or cannot do.

28 C.F.R. pt. 35, app. A at 449.

        Accordingly, based on the record in this case that the
individuals at issue in Plaintiffs' Motion require placement in
integrated community programs, continued segregation is
unjustifiable. Such continued segregation constitutes unlawful
disability-based discrimination under the ADA and must be
remedied.

        The title II integration regulation accords with the ADA's
statutory framework, congressional findings, legislative history,
and Congress's directives. It recognizes that in the case of
individuals with disabilities, discrimination takes many
different forms, including programs that perpetuate the false
assumption that people with disabilities must be segregated from
the rest of society in institutions. See City of Cleburne v.
Cleburne Living Center, 473 U.S. 432 (1985). The Attorney
General's integration regulation reflects Congress's
determination that to achieve the Act's purposes, services must
01-05710
                                - 17 -
be provided in the most integrated setting appropriate to each
individual's needs. Surely where, as here, the State itself has
determined that a segregated setting is inappropriate, an
integrated setting is mandated.

        Moreover, Congress's (and the Attorney General's) specific
attention to the issue of institutionalization renders inapposite
Defendants' reliance on Torcasio v. Murray, 57 F.3d 1340, 1344-45
(4th Cir. 1995), cert. denied,   U.S.  , 116 S. Ct. 772
(1996), in which the court held that prison officials sued
personally for damages were entitled to qualified immunity
because neither Congress nor the applicable regulations clearly
manifested an intent to apply the ADA to state prisons.12/ Here,
there is no issue of qualified immunity and, as illustrated
supra, Congress's intent to cover the types of institutions at
issue in this case and to forbid unnecessary segregation of
disabled persons, and the Attorney General's implementation of
these guiding principles, are clear.

        II.     The Developing Caselaw on the Integration Regulation Affirms
                that States Are Obligated to Provide Services in the Most
                Integrated Setting Appropriate to the Individual's Needs.

        Ruling specifically on the integration regulation of
title II of the ADA, the Third Circuit has confirmed that "the
ADA and its attendant regulations clearly define unnecessary
12/ Indeed, the Torcasio court found that the terms of the ADA
were "ill-fitting" to the governing of prisons, primarily because
prisons do not provide "services, programs, or activities."
Torcasio, 57 F.3d at 1347. Although the United States disagrees
with this interpretation, there is no such purported "ill-fit"
here, where State "services" and "programs" are precisely at
issue.
01-05711
                                - 18 -
segregation as a form of illegal discrimination against the
disabled." Helen L., 46 F.3d at 333. In Helen L., the Third
Circuit found that the Pennsylvania Department of Public Welfare
was violating the ADA when it required the appellant to remain in
the segregated setting of a nursing home instead of providing her
with needed home-based services.13/ Relying on title II's
integration regulation, the unanimous three judge panel
underscored that the "ADA is intended to insure that qualified
individuals receive services in a manner consistent with basic
human dignity rather than a manner which shunts them aside,
hides, and ignores them." Id. at 335. The Third Circuit,
finding no genuine issues of material fact in the case, reversed
the district court and ordered it to enter summary judgment in
favor of the appellant. Id. at 339.14/

        The Third Circuit found that the district court in Helen L.
had relied inappropriately on Williams v. Secretary of Executive
13/ Defendants in that case stipulated to the fact that "[t]he
setting for the provision of attendant care services appropriate
to the needs of Idell S. [the appellant] is in the community."
Id. at 329, n.6.
____________________________

14/ This is the only decision to date addressing the title II
integration regulation where the court had the benefit of the
United States Department of Justice's views on the regulation it
promulgated. The Department did not participate in the
proceedings before the district court in Helen L. However, on
appeal, the Court of Appeals for the Third Circuit requested the
views of the Justice Department. The United States submitted an
amicus brief and participated in the oral argument, where it
argued that the district court's interpretation of the
integration regulation of title II of the ADA ignored the
fundamental purpose of the ADA and its regulations -- to end the
exclusion and unnecessary segregation of individuals with
disabilities.
01-05712
                                - 19 -
Office of Human Services, 609 N.E.2d 447 (Mass. 1993), which was
flawed in its basic analysis of the title II integration
regulation because it drew upon inapplicable Section 504
caselaw.15/ Helen L., 46 F.3d at 334. Williams held,
incorrectly, that there can be no "discrimination" under title II
if the service at issue is provided only to individuals with
disabilities. The Third Circuit dismissed this interpretation as
facially and structurally insupportable:

        The 504 coordination regulations, and the ADA "make
        clear that the unnecessary segregation of individuals
        with disabilities in the provision of public services
        is itself a form of discrimination within the meaning
        of these statutes, independent of the discrimination
        that arises when individuals with disabilities receive
        different services than those provided to individuals
        without disabilities."

Helen L., 46 F.3d at 335, citing Brief of Amicus, the United
States, at 7. The Third Circuit also noted that "[i]f Congress
were only concerned about disparate treatment of the disabled as
compared to their nondisabled counterparts," then the ADA's
reference to the persistence of discrimination in
institutionalization would constitute a "non sequitur." Id. at
336.16/ This Court, like the Helen L. court, should reject
__________________________

15/ Another case addressing the integration regulation of title
II, Conner v. Branstad, 839 F. Supp. 1346 (S.D. Iowa 1993),
relied upon by Defendants (Defendants' Mem. at 71), made the same
mistake.

16/ In addition, the structure of the rest of the title II
regulations supports this reading. If 28 C.F.R. S 35.130 (d)
applied only to programs and services offered to both disabled
and nondisabled people, then 28 C.F.R. S 35.130 (b) (1) (iv), which
prohibits a public entity from providing services to people with
disabilities separate from those provided to others, would be
(continued...)
01-05713
                                - 20 -
Defendants' misinterpretation that the ADA only applies to
discrimination "towards the disabled vis-a-vis the non-disabled."
Defendants' Mem. at 63-64.17/

        The Helen L. court also noted that the Massachusetts state
case was factually distinguishable in significant aspects, as it
is here. In particular, unlike the Plaintiffs in this case and
the plaintiff in Helen L., the plaintiffs in Williams presented
absolutely no evidence that "any particular client's placement
was inappropriate, or that they themselves were inappropriately
placed in a segregated setting after the ADA's effective date."
Helen L., 46 F.3d at 334, citing Williams, 609 N.E.2d at 453.
Instead, the Massachusetts plaintiffs offered global statistical
information about the percentage of people with disabilities in
publicly operated residential programs who live with other people
with disabilities. Helen L., 46 F.3d at 334. Absent any proof
that individuals with disabilities were not already being served
in the most integrated settings appropriate to their needs, the
Massachusetts court held that the ADA does not require a specific
proportion of the mental health service's housing placements to
__________________________

16 (...continued)
redundant. Courts are to avoid such a result. See, e.g., Mackey
v. Lanier Collection Agency & Service, Inc., 486 U.S. 825, 837
(1988); Cammarano v. United States, 358 U.S. 498, 505 (1959)
(rejecting a reading of regulations that rendered part "pure
surplusage").

17 Helen L. specifically distinguished Traynor v. Turnage, 485
U.S. 535 (1988), relied upon by Defendants (Defendants' Mem. at
64), stating that "the [Traynor] court was not concerned with the
application of the integration mandate or anything analogous to
it, and the holding is not germane to our analysis." Helen L.,
46 F.3d at 336.
01-05714
                                - 21 -
be in integrated housing. Williams, 609 N.E.2d at 452. The
evidentiary record in the Massachusetts case stands in sharp
distinction to this case, where Plaintiffs have presented
Defendants' admissions that the individuals at issue in
Plaintiffs' Motion are unnecessarily segregated in institutions
operated by the State. Accordingly, this Court should grant
summary judgment in favor of Plaintiffs.

III.    Section 504 Cases Decided Prior to Enactment of the ADA Are
        Not Relevant To Interpreting Title II's Integration
        Requirement.

        Defendants urge this Court to repeat the mistake made in
Williams but corrected in Helen L. They argue that the
integration mandate of the ADA is "nothing new" and tell the
Court to rely on Section 504 cases to find that Plaintiffs have
no right to be free from unnecessary segregation in institutions.
Defendants' Mem. at 69-70.

        But the Section 504 caselaw on which Defendants rely is
simply inapposite, because it never considered the stand-alone
integration requirement of the Section 504 coordination
regulations or of title II's regulations. For example, in Clark
v. Cohen, 794 F.2d 79, 84 n.3 (3d Cir.), cert. denied, 479 U.S.
962 (1986), cited by Defendants (Defendants' Mem. at 70), the
court held that the Department of Health and Human Services'
[HHS] Section 504 regulations, 45 C.F.R. S 84.4(b) (2), do not
require a public entity to provide services in an integrated
setting without proof of unequal treatment. But unlike the
Section 504 coordination regulations to which Congress directed
01-05715
                                - 22 -
the Attorney General to conform title II's regulations, see supra
at 10, the HHS Section 504 regulations do not contain a stand-
alone integration requirement. They mandate integration only in
the context of providing opportunities for people with
disabilities that are equal to those available to individuals
without disabilities. 45 C.F.R. Section 84.4(b) (2) (1994). 18/
Another case cited by Defendants (Defendants' Mem. at 70),
Phillips v. Thompson, 715 F.2d 365, 368 (7th Cir. 1983),
similarly did not address a stand-alone integration regulation
like that at issue here. And the remaining two cases on which
Defendants rely acknowledge that the Rehabilitation Act may
require public entities to provide services to individuals with
disabilities in integrated settings. In Kentucky Ass'n for
Retarded Citizens, Inc. v. Conn, 674 F.2d 582, 585 (6th Cir.),
cert. denied, 459 U.S. 1041 (1982), the court did not dispute
that Section 504 required services in the least restrictive
setting. Rather, it found that the district court had not
clearly erred as a factual matter in concluding that
institutionalization of some individuals may be appropriate under
Section 504. Similarly, in Plummer v. Branstad, 731 F.2d 574,
579 (8th Cir. 1984), the court assumed that Section 504 requires
states to provide services to individuals in "integrated settings
appropriate to their particular needs" -- a determination that
___________________________

18/ The district court in Clark did find, however, that the
plaintiff's continued confinement in an institution violated the
Due Process Clause of the Fourteenth Amendment, Clark, 613 F.
Supp. at 696-705, a finding affirmed on appeal. Clark, 794 F.2d
at 87.
01-05716
                                - 23 -
must be made by the trier of fact. In short, none of the Section
504 cases cited by Defendants support their interpretation of the
ADA and its implementing regulations.

IV.     Defendants' Failure To Provide Community Services To
        Individuals Identified as Unnecessarily Institutionalized
        Is Unjustified.

        Defendants also argue that even if title II and its
implementing regulations require public entities to provide
services to individuals with disabilities in the most integrated
setting appropriate to their needs, Maryland is excused from that
obligation because compliance would impose an undue burden by
requiring it to make a fundamental change in its program.
Defendants' Mem. at 61-62, 71-72. Defendants state that "[i] f
[Plaintiffs] have been "denied" services in the community at all,
it is either because of clinical treatment decisions, or because
the community placements do not exist." Defendants' Mem. at 62.
But the Plaintiffs have shown that they are not being denied
services in the community due to "clinical treatment decisions."
The individuals at issue in Plaintiffs' Motion remain
unnecessarily segregated in institutions in spite of the
unanimous decisions of their respective treating professionals
that services in the community would be more appropriate.19/
Defendants' entire argument thus boils down to the claim that, at
present, services in the community are a "scarce resource."
___________________________

19/ See pp. 1-2 & nn. 3-4, supra.
01-05717
                                - 24 -
Defendants' Mem. at 63.20/ The State's position simply cannot be
squared with its admission that it can and will fund the
recommended community-based services for each of the individuals
at issue in Plaintiffs' Motion. Williams Facts at P 22; Cullen
Facts at P 22; Lentz Facts at P 12; Trail Facts at P 27.

        Similarly, Defendants' suggestion that ending the
unnecessary segregation of the individuals at issue in
Plaintiffs' Motion will "alter traditional federal/state
relations and allow federal courts to supervise a State's mental
health delivery system" (Defendants' Mem. at 66-67) is also
without merit. Unlike the plaintiffs in Kentucky Ass'n for
Retarded Citizens, Inc., 674 F.2d at 582, for example, Plaintiffs
have not claimed that institutionalization is improper as a
matter of law under the ADA. Rather, Plaintiffs claim that the
ADA accords an individual the right to treatment in an integrated
setting appropriate to the individual's needs. And the record
shows that in this case, Defendants already operate the type of
community programs appropriate for the individuals at issue in
Plaintiffs' Motion.
________________________

20/ Under similar circumstances, the Third Circuit in Helen L.
found no justification for continued segregation which violates
the ADA, as should the Court here. The Third Circuit stressed:

        The fact that it is more convenient, either
        administratively or fiscally, to provide services in a
        segregated manner, does not constitute a valid
        justification for separate or different services under
        Section 504 of the Rehabilitation Act, or under this
        title [title II of the ADA].

Helen L., 46 F.3d at 338, quoting H.R. Rep. No. 485 (III), 101st
Cong.2d Sess. 50, reprinted in 1990 U.S.C.C.A.N. at 473 (emphasis
omitted).
01-05718
                                - 25 -
V.      Defendants Seek to Evade Their Constitutional
        Responsibilities Under Youngberg v. Romeo.

        Defendants have also moved for summary judgment on
Plaintiffs' substantive due process claims in all three cases
consolidated before this Court. Defendants' motion on these
claims should be denied as well. In the view of the United
States, the record before the Court in each case contains
evidence more than sufficient to create a genuine issue of
material fact regarding the State's violation of Plaintiffs' due
process rights. Moreover, Defendants have not demonstrated that
they are entitled to judgment as a matter of law. They have made
arguments that are contrary to Supreme Court precedent and
controlling law in the Fourth Circuit. Overall, Defendants'
arguments expose the extent to which the State is attempting to
absolve itself of responsibility for the care it provides to
individuals in its institutions and to escape the accountability
of judicial scrutiny as to whether it is violating such
individuals' rights.

        Defendants concede that Youngberg v. Romeo, 457 U.S. 307
(1982), defines the constitutional rights at issue in these cases
Defendants' Mem. at 28. In Youngberg, the Supreme Court
addressed the substantive due process rights of individuals with
mental disabilities institutionalized in state facilities, and
held that such individuals retain a number of constitutional
rights. The Court found that the Due Process Clause guarantees
individuals entrusted to a state's care in an institution
adequate food, shelter, clothing, medical care, reasonably safe
01-05719
                                - 26 -
conditions of confinement, freedom from unreasonable restraints,
and a right to such training and skill development as is
necessary to protect these constitutional guarantees. Youngberg,
457 U.S. at 315-19, 324. The Court noted that while, "[a]s a
general matter, a State is under no constitutional duty to
provide substantive services for those within its border," 457
U.S. at 317, the situation is different for those in state
institutions. Because institutionalized persons are "wholly
dependent on the State," the state owes them "a duty to provide
certain services and care." Ibid.

        According to Youngberg, courts must judge whether states
have carried out this duty by applying the "professional
judgment" standard. Youngberg, 457 U.S. at 321. The standard
has two interlocking components -- both of which must be met for
a state to avoid liability. First, institutionalized persons
have a right to decisions about their care and services made by
"qualified professionals" and to have such decisions implemented.
Id. at 322, 323; see also Thomas S. v. Morrow, 781 F.2d 367,
374-6 (4th Cir. 1986); Thomas S. v. Flaherty, 902 F.2d 250, 252
(4th Cir.), cert. denied, 498 U.S. 951 (1990). Second,
institutionalized persons have a right to substantively adequate
treatment. States violate the Due Process Clause when "the
decision by the professional is such a substantial departure from
accepted professional judgment, practice, or standards as to
01-05720
                                -27-
demonstrate that the person responsible actually did not base the
decision on such a judgment." Youngberg, 457 U.S. at 323.21/

        Youngberg itself recognized that its holding was necessarily
limited to the facts presented. Youngberg, 457 U.S. at 319 and
n.25. For instance, in Youngberg, Nicholas Romeo did not
challenge his continued institutionalization, id. at 317, so that
the Court had no occasion to address the substantive due process
rights of an institutionalized individual for whom
institutionalization is no longer appropriate. But since
Youngberg, courts grappling with differing facts have interpreted
the rights and the professional judgment standard enunciated
there by the Court. In particular, the Fourth Circuit has
applied the Youngberg professional judgment standard to
constitutional claims based on state failure to provide community
placement to institutionalized persons for whom
institutionalization is no longer appropriate. Faced with facts
and circumstances similar to those in the instant cases, in
Thomas S. v. Morrow, 781 F.2d at 375, the Fourth Circuit affirmed
the district court's finding that Thomas's treating professionals
had recommended discharge to community placement and that a
state's failure to implement these recommendations, resulting in
Thomas's continued institutionalization, violated Thomas's
liberty interests under Youngberg. See also Messier v. Southbury
______________________

21/ Thus, courts owe deference to professional decisions but may
reject these decisions where they constitute such a substantial
departure. Youngberg, 457 U.S. at 322-3; see also Thomas S. v.
Morrow, 781 F.2d at 375.
01-05721
                                - 28 -
Training School, 916 F. Supp. 133, 140 (D. Conn. 1996). Relying
on Youngberg, the Fourth Circuit held that there is a
"presumption of validity accorded the professionals' decision
about appropriate treatment," and that the state had failed to
rebut that presumption. Thomas S. v. Morrow, 781 F.2d at 375.
Under these circumstances, the court found that "the district
court was required to accept the recommendations of the qualified
professionals." Ibid.

        Applying the law set out in Youngberg and Thomas S. v.
Morrow, this Court should deny Defendants' motion for summary
judgment in all three cases here before it. In Williams and
Hunt, the professional judgment of the State's own treating teams
is that community placements are appropriate.22/ This clearly
________________________

22/ For Williams, see Williams Facts at PP 6-9, 13, 23-24, 27,
29, 40-41; Lentz Facts at PP 10-13, 19-20, 23, 53; Cullen Facts
at PP 14-20, 23, 41; Trail Facts at PP 8, 16-17, 20-23, 25-26,
28, 38-44. For Hunt, see Defendants' Mem. at 57, 59. In an
astonishing attempt to distance themselves from the clinical
recommendations of their employees, Defendants suggest that the
decisions made by the treating professionals charged with the
responsibility of determining the services necessary to meet the
needs of individuals the State has undertaken to serve are merely
"goals to strive for," Defendants' Mem. at 38, or, alternatively,
"wish lists." Id. at 55. However, the actual determinations by
State treatment teams and State administrators -- including State
psychiatrists, psychologists, social workers, unit directors,
occupational therapists, and, in two cases, Defendant Silver, a
State administrator -- of the need for community-based services
rather than continuing confinement in institutions reveal
concrete determinations, based upon individual needs and
abilities and intended for implementation. Courts have found that
the failure to implement such recommendations of treating
professionals violates due process. Thomas S. v. Morrow, 781 F.2d
at 375; Clark v. Cohen, 794 F.2d 79, 85 (3d Cir.), cert. denied,
479 U.S. 962 (1986).

        Moreover, Defendants do not contest the validity of their
treating professionals' recommendations. In fact, they state
                                                        (continued...)
01-05722
                                - 29 -
raises an issue of material fact as to application of the
professional judgment standard. In Hattie J., the evidence that
Plaintiff's placement in a nursing home subverts her right to
care that comports with professional judgment, see, e.g.,
Defendants' App. at 12, 25, similarly raises an issue of material
fact.

        Moreover, the Complaints and supporting evidence show that
there is a genuine issue of material fact as to whether the State
has violated Plaintiffs' constitutional right to reasonable
safety. See Youngberg, 457 U.S. at 315. In the Williams case,
for example, there is evidence that the Plaintiffs have suffered
great harm while being unnecessarily segregated in Defendants'
institutions. To point to just a few examples: Ms. Lentz has
been repeatedly assaulted and injured at Spring Grove, on various
occasions being banged in the head several times with a metal
chair, suffering lacerations requiring sutures, and being pushed
down, causing a hip fracture requiring surgery and leaving her
unable to walk without a walker and needing to be transported in
a wheelchair for distances longer than a hallway.23/ Mr. Cullen
faces such serious threats from other patients to his personal
safety that he is assigned a full-time staff person to accompany
him at all times. This severe restriction on Mr. Cullen's
privacy was prompted by the repeated assaults endured by Mr.
______________________________

22/ (...continued)
that they intend to implement those recommendations. Defendants'
Mem. at 57-59.

23/ Lentz Facts at PP 26-44.
01-05723
                                - 30 -
Cullen, such as the time that he was discovered in the bathroom
at one o'clock in the morning, blood dripping down his face due
to an assault by another patient. Staff protection is not
necessary when Mr. Cullen is at home or in the community. In the
words of Mr. Cullen's psychiatrist, Mr. Cullen only needs staff
protection at the institution due "to the risks of the hospital
environment."24/ Summary judgment on Plaintiffs' Fourteenth
Amendment claims is inappropriate where facts such as these
concerning the adequacy of Defendants' provision of reasonable
safety are in dispute.

        To get around the genuine issues of material fact raised by
Plaintiffs, Defendants offer four legal arguments that fly in the
face of the principles established in Youngberg and discussed in
this circuit's Thomas S. cases. See Thomas S. v. Morrow, 601 F.
Supp. 1055 (W.D.N.C. 1984), aff'd, 781 F.2d 367 (4th Cir. 1986);
Thomas S. v. Flaherty, 699 F. Supp. 1178 (W.D.N.C. 1988), aff'd,
902 F.2d 250 (4th Cir.), cert. denied, 498 U.S. 951 (1990).

        First, Defendants argue that only brutal and inhumane abuses
of power that shock the conscience are actionable under the
Fourteenth Amendment. Defendants' Mem. at 21-22. It is clear
however (and Defendants appear later in their brief to recognize)
that Youngberg defines the standard for determining liability:
an institutionalized person's substantive due process rights are
violated when a court finds that a state fails to "make certain
_________________________

24/ Cullen Facts at PP 30-39.
01-05724
                                - 31 -
that professional judgment in fact was exercised." Youngberg,
457 U.S. at 321.

        Second, Defendants suggest that because Plaintiffs in the
three cases were unable to care for themselves at the time they
were institutionalized and because their families were and are
unable to provide necessary care, institutionalization has made
Plaintiffs no worse off. Accordingly, Defendants argue, the
State has no affirmative constitutional duties. Defendants' Mem.
at 22-23. But the Fourth Circuit has held that it is the "fact
of state custody," and not the reasons for that custody, that
imposes affirmative duties on the State. Buffington v. Baltimore
County, 913 F.2d 113, 119 (4th Cir. 1990); see also Thomas S. v.
Flaherty, 902 F.2d at 254 (Youngberg duties apply to legally
incompetent adult who is ward of state with no choice regarding
his living arrangements.) Indeed, Youngberg itself involved an
individual who could not care for himself outside the
institution.25/

        Third, Defendants suggest that their duties to plaintiffs
are limited to providing the "basic necessities of life."
Defendants' Mem. at 24. Again, Youngberg authoritatively
__________________________

25/ Contra Defendants' Mem. at 22, nothing in DeShaney v.
Winnebago County DSS, 489 U.S. 189 (1989), alters this Youngberg
holding. In fact, DeShaney affirms Youngberg's principle that
the state's affirmative act of institutionalizing a person
triggers the protections of the Constitution. DeShaney, 489 U.S.
at 199 ("In the substantive due process analysis, it is the
State's affirmative act of restraining the individual's freedom
to act on his own behalf - through incarceration,
institutionalization, or other similar restraint of personal
liberty - which is the 'deprivation of liberty' triggering the
protections of the Due Process Clause . . . . ") (emphasis added).
01-05725
                                - 32 -
rejected the position that a state's duties to people in state
custody are so limited. To the contrary, the Court held that
Pennsylvania owed Romeo a wide range of affirmative duties,
including the duty to provide reasonable training consistent with
professional judgment. Maryland is similarly bound.

        Fourth, Defendants take the extraordinary position that
merely because the State has found experts willing to testify
that the care provided to Plaintiffs was substantively within the
range of professionally acceptable treatment, Maryland has
satisfied the professional judgment standard set forth in
Youngberg.26/ Defendants' bizarre legal theory confounds the
Youngberg holding, which avoids judicial second-guessing of the
merits of professional decisionmaking by according a presumption
of constitutionality only to treatment decisions actually made by
treating professionals and implemented by the state. See
Youngberg, 457 U.S. at 323; Thomas S. v. Morrow, 781 F.2d at 375.
In this way, Youngberg respected state prerogatives while still
providing meaningful protection for the rights of
institutionalized persons. Thus, expert opinion is relevant only
to inform the court about the professional standards it should
apply; experts cannot determine whether professional judgment was
actually exercised, the ultimate conclusion is for the Court.
________________________

26/ Defendants sum up their position that this Court has no
discretion but to grant their summary judgment motion as follows:
"the mere existence of the defendants' expert opinions
demonstrates conclusively that the State is exercising
professional judgment . . . ." Defendants' Mem. at 43-45
(emphasis in original).
01-05726
                                - 33 -
Youngberg, 457 U.S. at 321; see also Thomas S. v. Morrow, 781
F.2d at 375.

        Defendants' recommendation that this Court grant
authoritative status to its experts' post hoc rationalizations of
treatment decisions made by others is particularly inappropriate
where, as in Williams, the State has declined to implement the
considered judgments of the professionals it hired to make the
relevant decisions. Moreover, the Court should not allow
Defendants to undermine the trier of fact's credibility-assessing
function. The triers of fact in these cases may find the
defendants' experts wholly incredible. Because Plaintiffs have
satisfied their burden on this summary judgment motion by
pointing to experts of their own and (in most cases) to the
decisions actually made by the State's own treating
professionals, the Court should allow credibility issues to be
adjudicated at trial, with the aid of cross-examination and
demonstrations of possible bias or lack of qualification.

        Finally, Defendants argue that the facts put in issue by
Plaintiffs at most reflect merely negligent conduct, not a
failure to satisfy the professional judgment standard.
Defendants' Mem. at 30-32, 34. Defendants cite United States v.
Pennsylvania, 902 F. Supp. 565, 585 (W.D. Pa. 1995), appeal
pending, for its finding that proof of mere negligence is
insufficient to establish the absence of professional judgment.
But the facts Plaintiffs have placed at issue in the three cases
before the Court involve more than mere negligence. Taking the
01-05727
                                - 34 -
record in the light most favorable to the Plaintiffs, and as
discussed supra, the State's failure to implement the decisions
of its own professionals regarding community placement is a
direct violation of the professional judgment requirement.
Moreover, with regard to the State's obligation to ensure the
Plaintiffs' reasonable safety, even if a particular instance of
negligence does not establish a violation of the professional
judgment standard, a pattern of negligent care is a different
matter. Where negligence is widespread throughout an
institution, its frequency and severity provide strong evidence
that the institution as a whole substantially departs from
accepted professional standards. The logic of this position has
frequently been acknowledged in the context of prison-related
institutional reform cases, in which courts have found that a
pattern of negligent conduct bespeaks deliberate indifference to
the constitutional rights of those affected and therefore
violates the Eighth Amendment's Cruel and Unusual Punishment
Clause. See, e.g., DeGidio v. Pung, 920 F.2d 525, 532-33 (8th
Cir. 1990); White v. Napoleon, 897 F.2d 103, 109 (3d Cir. 1990);
Rogers v. Evans, 792 F.2d 1052, 1058-59 (11th Cir. 1986); Wellman
v. Faulkner, 715 F.2d 269, 272 (7th Cir. 1983), cert. denied, 468
U.S. 1217 (1984); Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir.
1980), cert. denied, 450 U.S. 1041 (1981); Todaro v. Ward, 565
F.2d 48, 52 (2d Cir. 1977). If a pattern of negligent acts is
sufficient to establish Eighth Amendment deliberate indifference,
surely it is more than sufficient to surmount the lesser burden
01-05728
                                - 35 -
under the Due Process Clause of demonstrating an institutional
failure to satisfy the professional judgment standard.27/ Nothing
in Pennsylvania says otherwise.

                            CONCLUSION              

        For the reasons stated above, this Court should grant
Plaintiffs' Motion for Partial Summary Judgment on their ADA
claim and deny Defendants' Motion for Summary Judgment on
Plaintiffs' claims under the Fourteenth Amendment and the ADA.
Defendants' unjustifiable and unnecessary segregation of
individuals with disabilities constitutes discrimination under
title II of the ADA. Moreover, Plaintiffs have raised a genuine
27/ As the Youngberg Court recognized, people with mental
disabilities who are institutionalized through no fault of their
own are due more considerate treatment and conditions of
confinement than prisoners. Youngberg, 457 U.S. at 322.
01-05729
                                - 36 -
issue of material fact regarding their due process rights, and
Defendants' attempt to circumvent the State's constitutional
responsibilities after Youngberg should be rebuffed.
                                        Respectfully submitted,
                                        DEVAL L. PATRICK
                                        Assistant Attorney General
                                        Civil Rights Division

                                        ARTHUR E. PEABODY
                                        Chief
                                        Special Litigation Section

                                        ROBINSUE FROHBOESE
                                        Deputy Chief
                                        Special Litigation Section


                                        JUDITH C. PRESTON (Bar #04992)
                                        MARGO J. SCHLANGER
                                        Trial Attorneys
                                        U.S. Department of Justice
                                        Civil Rights Division
                                        P.O. Box 66400
                                        Washington, D.C. 20035-6400
                                        (202) 514-6258
01-05730
                        CERTIFICATE OF SERVICE
        I hereby certify that on this 22nd day of April, 1996, a
copy of the Memorandum of the United States' in Support of
Plaintiffs' Motion for Partial Summary Judgment on ADA Claim and
in Opposition to Defendants' Motion for Summary Judgment was
mailed by first-class mail, postage prepaid, to:

Attorneys for Plaintiffs:

        Andrew S. Penn
        Maryland Disability Law Center
        1400 Mercantile Lane
        Suite 242
        Largo, MD 20774

        Nathaniel Fick
        Fick & Petty
        1426 East Joppa Road
        Towson, MD 21286-5982

        Gilbert Abramson
        Hogan & Hartson
        Legg Mason Tower
        111 S. Calvert St.
        Baltimore, MD 21202

Attorneys for Defendants:

        Maureen M. Dove
        Assistant Attorney General
        Office of the Attorney General
        Department of Health and Mental Hygiene
        Suite 302
        300 West Preston Street
        Baltimore, MD 21201

                                Judith C. Preston
                                Trial Attorney
                                Special Litigation Section
                                Civil Rights Division
                                Department of Justice
01-05731
                                                        ATTACHMENT A
                        IN THE UNITED STATES DISTRICT COURT
                        FOR THE MIDDLE DISTRICT OF ALABAMA
                                NORTHERN DIVISION
RICKY WYATT, by and through             )
  his aunt and legal guardian,          )
  MRS. W.C. RAWLINS, JR., et al.,       )
        Plaintiffs,                     )
                                        )
DIANE MARTIN, et al.,                   )
                                        )
Plaintiff-Intervenors,                  )
                                        )
UNITED STATES OF AMERICA,               )
                                        )
Amicus Curiae,                          ) Civil Action No. 3195-N
v.                                      )
                                        )
RICHARD E. HANAN, as                    )
  Commissioner of Mental Health         )
  and Mental Retardation and the        )
  State of Alabama Mental Health        )
  Officer, et al.,                      )
                                        )
        Defendants.                     )
                                        )
                        UNITED STATES' RESPONSE TO
           DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS
             AND PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
                        ON PLAINTIFFS' CLAIMS UNDER
             THE AMERICANS WITH DISABILITIES ACT OF 1990
01-05732
                                TABLE OF CONTENTS
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . i
PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . .1
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
        I.  Judgment on the Pleadings Against Plaintiffs'
            ADA Claim is Inappropriate . . . . . . . . . . . . 3
        II. The Unnecessary Segregation of Individuals
            With Disabilities in Institutions is a Form of
            Discrimination Prohibited By the ADA and Its
            Implementing Regulations . . . . . . . . . . . . . 3
            A.  Ending the discrimination of segregation
                and isolation through unnecessary
                institutionalization is a specific
                purpose of the ADA . . . . . . . . . . . . . . 5
            B.  ADA regulations require states to provide
                services in the most integrated setting
                appropriate to the needs of people with
                disabilities . . . . . . . . . . . . . . . . . 8
            C.  ADA's legislative history affirms that one
                of its major purposes is to remove the
                barriers of unnecessary segregation . . . . .  12
        III. The Developing Caselaw on the Integration
             Regulation Affirms That States Are Obligated
             to Provide Services in the Most Integrated
             Setting . . . . . . . . . . . . . . . . . . . . . 14
        IV.  Prior Section 504 Cases Are Not Relevant to
             Interpreting Title II's Integration Requirement . 18
        V.   Defendants' Failure to Provide Community Services
             to Individuals Identified as Unnecessarily
             Institutionalized is Unjustified . . . . . . . . .21
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 23
01-05733
                        TABLE OF AUTHORITIES        
CASES:                                                       PAGE
  Alexander v. Choate, 469 U.S. 287 (1985) . . . . . . . . . . 18
  American Trucking Ass'n v. United States, 688 F.2d
        1337 (11th Cir. 1982), rev'd on other grounds,
        467 U.S. 454 (1984) . . . . . . . . . . . . . . . . . .11
  Blum v. Bacon, 457 U.S. 132 (1982) . . . . . . . . . . . . . .7
  Brown v. Board of Education, 347 U.S. 483 (1954) . . . . . . 13
  Chevron U.S.A., Inc. v. Natural Resources Defense
        Council, 467 U.S. 837 (1984) . . . . . . . . . . . . .  7
  Chrysler Corp. v. Brown, 441 U.S. 281 (1979) . . . . . . . . 11
  City of Cleburne v. Cleburne Living Center,
        473 U.S. 432 (1985) . . . . . . . . . . . . . . . . . . 11
  Clark v. Cohen, 794 F.2d 79 (3d Cir.), cert. denied,
        479 U.S. 962 (1986) . . . . . . . . . . . . . . . . . . 20
  Clark v. Cohen, 613 F. Supp. 684 (E.D. Pa. 1985) . . . . . .  20
  Conley v. Gibson, 355 U.S. 41 (1957) . . . . . . . . . . . . . 3
  Conner v. Branstad, 839 F. Supp. 1346 (S.D. Iowa 1993) . . . .16
  General Electric Co. v. Gilbert, 429 U.S. 125 (1976) . . . . .11
  Helen L. v. Didario, _ F.3d _, 1995 WL 34200
        (3d Cir. Jan. 31, 1995) . . . . . . . . . . . . . . passim
  Kentucky Ass'n for Retarded Citizens, Inc. v. Conn,
        674 F.2d 582 (6th Cir.), cert. denied, 459 U.S.
        1041 (1982) . . . . . . . . . . . . . . . . . . . . . . 21
  Kinney v. Yerusalim, 812 F. Supp. 647 (E.D. Pa.),
        aff'd 9 F.3d 1067 (3d Cir. 1993), cert. denied,
        114 S. Ct. 1545 (1994) . . . . . . . . . . . . . .  18, 22
  Metro Broadcasting, Inc. v. FCC, 497 U.S.
        547 (1990) . . . . . . . . . . . . . . . . . . . . . . .19
  P.C. v. McLaughlin, 913 F.2d 1033 (2d Cir. 1990) . . . . . .  20
                                - i -
01-05734
CASES (cont'd):                                               PAGE
  Plummer v. Branstad, 731 F.2d 574 (8th Cir. 1984) . . . . . . 21
  Phillips v. Thompson, 715 F.2d 365 (7th Cir. 1983) . . . . .  20
  SEC v. ESM Group, Inc., 835 F.2d 270 (11th Cir.),
        cert. denied, 486 U.S. 1055 (1988) . . . . . . . . . . . 3
  Tcherepin v. Knight, 389 U.S. 332 (1967) . . . . . . . . . .  18
  Williams v. Secretary of Executive Office of
        Human Services, 609 N.E.2d 447 (Mass. 1993) . . . . 15, 17
  Wyatt v. Stickney, 344 F. Supp. 373 (M.D. Ala. 1972)
        aff'd in relevant part, 503 F. 2d 1305
        (5th Cir. 1974)  . . . . . . . . . . . . . . . . . 4, 5, 22
  Wyatt v. Stickney, 344 F. Supp. 387 (M.D. Ala. 1972)
        aff'd in relevant part, 503 F. 2d 1305
        (5th Cir. 1974) .  . . . . . . . . . . . . . . . . 4, 5, 22
  Wyatt v. King, 773 F. Supp. 1508 (M.D. Ala. 1991) . . . . . . . 2
STATUTES:
  Americans With Disabilities Act (ADA):
        42 U.S.C. 12101(a)(2) (Title I) . . . . . . . . . . . . . 5
        42 U.S.C. 12101(a)(3) . . . . . . . . . . . . . . . . . . 5
        42 U.S.C. 12101(a)(5) . . . . . . . . . . . . . . . . . . 5
        42 U.S.C. 12131 et seq. (Title II) . . . . . . . . . passim
        42 U.S.C. 12131(2) . . . . . . . . . . . . . . . . . . . .7
        42 U.S.C. 12132 . .  . . . . . . . . . . . . . . . . . 6, 7
        42 U.S.C. 12134 . . . . . . . . . . . . . . . . . . . . . 7
        42 U.S.C. 12134(b) . . . . . . . . . . . . . . . . . . . 10
  Rehabilitation Act of 1973, Section 504,
        29 U.S.C. 794 .  . . . . . . . . . . . . . . . . . . passim
  REGULATIONS AND RULES:
  28 C.F.R. pt. 35 (1994). . . . . . . . . . . . . . . . . 8, 9, 10
        Section 35.130(b)(1)(iv) . . . . . . . . . . . . . . . . 17
        Section 35.130(d) . . . . . . . . . . . . . . . . .  passim
        App. A . . . . . . . . . . . . . . . . . . . . . . . . 8, 9
  28 C.F.R. pt. 41 (1994) .. . . . . . . . . . . . . . . . . 10, 20
        Section 41.51(d) . . . . . . . . . . . . . . . . . . . . 10
                                - ii -
01-05735
  REGULATIONS AND RULES:                                       PAGE
  45 C.F.R. 84.4(b)(2) (1994) . .. . . . . . . . . . . . . . . . 20
LEGISLATIVE MATERIALS:
  ADA: Hearing Before the Senate Comm. on Labor
        and Human Resources and the Subcomm. on the
        Handicapped, 101st Cong., 1st Sess. 215 (1989) . . . . . 13
  H.R. Rep. No. 485 (II), 101st Cong.,
        2d Sess. (1990), reprinted in
        1990 U.S.C.C.A.N. 303 . . . . . . . . . . . . . . 6, 12, 14
  H.R. Rep. No. 485 (III), 101st Cong.,
        2d Sess. (1990), reprinted in
        1990 U.S.C.C.A.N. 445  . . . . . . . . . . 7, 9, 13, 19, 22
  S. Rep. No. 116, 101st Cong.,
        lst Sess. (1989)  . . . . . . . . . . . . . . 6, 12, 14, 19
  135 Cong. Rec. 19801 (1989) . . . . . . . . . . . . . . . . . .12
  135 Cong. Rec. S4993 (daily ed. May 9, 1989) . . . . . . . . . 13
  136 Cong. Rec. H2447 (daily ed. May 17, 1990) . . . . . . . . .14
MISCELLANEOUS:
  5A Wright & Miller, Federal Practice and Procedure
        S 1368 (1990) . . . . . . . . . . . . . . . . . . . . . . 3
                                - iii -
01-05736
                        PRELIMINARY STATEMENT
        Defendants' Motion for Judgment on the Pleadings on
Plaintiffs' Claims under the Americans with Disabilities Act of
1990 [ADA] must be denied. Defendants have failed to meet their
burden of proof to sustain a judgment on the pleadings;
misinterpreted the prohibition in Title II of the ADA against
unnecessary segregation; and relied on caselaw that is not
relevant to interpreting this prohibition in Title II.

        Plaintiffs' Motion for Summary Judgment on their ADA claim
should be granted. Defendants admit that hundreds of individuals
with disabilities in Alabama's institutions are unnecessarily
segregated from society and their care should be provided in the
integrated setting of community programs. This unnecessary
segregation is a form of discrimination prohibited by the ADA and
its implementing regulations.

        Alabama presently operates a dual system for providing
residential care, treatment, and training to its citizens with
mental disabilities. The State operates five institutions for
people with developmental disabilities and mental retardation and
six psychiatric institutions for people with mental illness. In
addition, the State contracts to provide what defendants claim to
be an array of community-based programs for both people with
developmental disabilities/mental retardation and mental illness
across the State of Alabama.1
______________________________

1/ See, e.g., Defendants' Memorandum in Support of Motion for a
Finding that Defendants Have Met Their Obligations Under the
September 2, 1986 Consent Decree and for an Order Terminating
This Lawsuit [Def. Mem. to Terminate] at 9-10 and attached
affidavits of Brian McManus and J. Michael Horsley.
01-05737
        Community-based programs represent integrated services both
because they are physically located in the mainstream of society
and because they provide opportunities for people with mental
disabilities to interact with their non-disabled peers in all
facets of life. Confinement in Alabama's institutions for people
with mental disabilities constitutes segregation because
individuals living in such facilities are separated from the
community and walled off from the mainstream of society, isolated
and apart from the natural community where all of us live, work,
and engage in life's many activities. Wyatt v. King, 773 F.
Supp. 1508, 1512 (M.D. Ala. 1991).

        In Alabama, State professionals charged with the
responsibility of determining the services necessary to meet the
needs of individuals the State has undertaken to serve, have
determined that many individuals with mental disabilities
currently institutionalized in Alabama's public facilities are
improperly placed there and should instead be served in
appropriate community programs throughout the State.2/
Given these undisputed facts, the Court is presented with a
purely legal question: does defendants' unnecessary segregation
of individuals with disabilities constitute discrimination under
Title II of the ADA? This case is thus appropriate for summary
judgment.
_____________________________

2/ See, e.g., Plaintiffs' Memorandum of Points and Authorities
in Support of Motion for Summary Judgment [Plaintiffs' Mem.] at
10-16, 24, 51-52.
                                - 2 -
01-05738
                                ARGUMENT
I.      Judgment on the Pleadings Against Plaintiffs' ADA Claim
        Is Inappropriate.

        Defendants have not sustained their required burden to
obtain a judgment on the pleadings. Federal district courts have
applied a "fairly restrictive standard in ruling on motions for
judgment on the pleadings." 5A Wright & Miller, Federal Practice
and Procedure S 1368 (1990). This Court can issue a judgment on
the pleadings in defendants' favor only if it is beyond doubt
that plaintiffs have plead no facts that would support their
claim for relief under the ADA. SEC v. ESM Group, Inc., 835 F.2d
270, 272 (11th Cir.), cert. denied, 486 U.S. 1055 (1988) (citing
Conley v. Gibson, 355 U.S. 41, 45-46 (1957), where the Supreme
Court stated that a complaint should not be dismissed for failure
to state a claim unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his or her
claim which would entitle plaintiff to relief).

        As the discussion below makes clear, in this case,
plaintiffs have alleged facts in support of their claim under the
ADA and the ADA provides a legal basis entitling them to relief.
Thus, defendants' motion should be denied.

II.     The Unnecessary Segregation of Individuals with
        Disabilities in Institutions Is a Form of Discrimination
        Prohibited by the ADA and Its Implementing Regulations.

        As the plaintiffs have demonstrated in pleadings in support
of their summary judgment motion, this Court already has before
it an accumulation of years of substantial admissions by
defendants that hundreds of individuals with disabilities are
                                - 3 -
01-05739
currently inappropriately institutionalized in Alabama's public
institutions and would be better served in integrated community
programs. Plaintiffs' Mem. at 10-16, 24, 51-52. Despite the
fact that defendants claim to have a significant array of
integrated, community-based services in place and a system to
identify individuals who remain inappropriately institu-
tionalized, defendants have failed to transfer them to community
programs. Compare Defendants' Mem. to Terminate at 9-10 and
accompanying affidavits with Plaintiffs' Mem. at 12-16, 24, 42,
54-55. By failing to serve qualified mentally disabled
individuals in the most integrated setting appropriate to their
needs, defendants are violating the ADA's prohibition of
disability-based discrimination. Helen L. v. Didario,   F.3d  ,
1995 WL 34200 at *6 (3d Cir. January 31, 1995). Here,
defendants' own judgments indicate that community placement is
the only professionally justifiable course of action. The relief
that plaintiffs are seeking under the ADA merely requires the
State of Alabama to fulfill its own goals to deliver services to
people with disabilities in the most appropriate integrated
setting and the obligations the State has had under this Court's
orders for the past twenty-three years. Wyatt v. Stickney, 344
F. Supp. 373 (M.D. Ala. 1972), aff'd in relevant part, 503 F.2d
1305 (5th Cir. 1974); ; Wyatt v. Stickney, 344 F. Supp. 387 (M.D.
                                - 4 -
01-05740
Ala. 1972), aff'd in relevant part, 503 F.2d 1305 (5th Cir.
1974).3/

        A.      Ending the discrimination of segregation and isolation
                through unnecessary institutionalization is a specific
                purpose of the ADA.

        The ADA begins with congressional findings and purposes that
detail the reasons for enacting this statute to end disability-
based discrimination. Congress specifically found that
"institutionalization" is one of the "critical areas" in which
discrimination against individuals with disabilities persists.
42 U.S.C. S 12101(a) (3). The need to eradicate this type of
discrimination is supported by congressional findings that
"historically, society has tended to isolate and segregate
individuals with disabilities, and, despite some improvements,
such forms of discrimination against individuals with
disabilities continue to be a serious and pervasive social
problem." 42 U.S.C. S 12101(a) (2). These discriminatory
practices continue today through "outright intentional exclusion"
and "segregation." 42 U.S.C. S 12101(a) (5). Congress therefore
_____________________

3/ For example, the Court found as far back as 1972 that people
in mental retardation institutions "have a right to the least
restrictive conditions necessary to achieve the purposes of
habilitation." In order to effectuate this right, Alabama's
institutions were required to make every effort to move residents
from: "(1) more to less structured living; (2) larger to smaller
facilities; (3) larger to smaller living units; (4) group to
individual residence; (5) segregated from the community to
integrated into the community living; (6) dependent to
independent living." Wyatt, 344 F. Supp. at 396. Alabama has a
similar obligation under the Wyatt standards to provide services
in the "least restrictive conditions" for people who are mentally
ill and to provide "adequate transitional treatment and care for
all patients released after a period of involuntary commitment."
Wyatt v. Stickney, 344 F. Supp. 373, 384, 386 (M.D. Ala. 1972).
                                - 5 -
01-05741
recognized that the isolation, segregation, and exclusion
represented by unjustifiable institutionalization constitute
disability-based discrimination. The ADA is the congressional
response to the

        compelling need to provide a clear and comprehensive
        national mandate for the elimination of discrimination
        against individuals with disabilities and for the
        integration of persons with disabilities into the
        economic and social mainstream of American life.
        Further, there is a need to provide clear, strong,
        consistent, enforceable standards addressing
        discrimination against individuals with disabilities.

S. Rep. No. 116, 101st Cong., 1st Sess. 20 (1989); H.R. Rep. No.
485 (II), 101st Cong. 2d Sess. at 50 (1990), reprinted in 1990
U.S.C.C.A.N. at 332.

        Consistent with the goal of integration, the ADA prohibits
public entities from discriminating by reason of disability.
42 U.S.C. S 12132. Title II of the ADA prohibits discrimination
against people with disabilities by state and local governments
and is divided into two parts. Part A, 42 U.S.C. SS 12131-12134,
contains the general prohibition against disability-based
discrimination by public entities and other generally applicable
provisions, while Part B applies to public transportation (and
is, therefore, not applicable to this case). Part A mandates
that "no qualified individual with a disability4/ shall, by
________________________

4/ A "qualified individual with a disability" is:
an individual with a disability who, with or
without reasonable modifications to rules,
policies, or practices, the removal of
architectural, communication, or transportation
barriers, or the provision of auxiliary aids and
(continued...)
                                - 6 -
01-05742
reason of such disability, be excluded from participation in or
be denied the benefits of the services, programs, or activities
of a public entity, or be subjected to discrimination by any such
entity." 42 U.S.C. S 12132.

        In 42 U.S.C. S 12134, Congress directed the Attorney General
to promulgate regulations implementing this general mandate. It
noted that "[u]nlike the other titles in this Act, title II does
not list all of the forms of discrimination that the title is
intended to prohibit. Thus, the purpose of this section is to
direct the Attorney General to issue regulations setting forth
the forms of discrimination prohibited." H.R. Rep. No. 485
(III), 101 Cong., 2d Sess. at 52 (1990), reprinted in 1990
U.S.C.C.A.N. at 475. As recently noted by the Third Circuit,
because Title II was enacted with broad language and directed the
Attorney General to promulgate regulations, the Justice
Department regulations are "entitled to substantial deference."
Helen L., 1995 WL 34200 at *5, citing Blum v. Bacon, 457 U.S.
132, 141 (1982) and Chevron U.S.A., Inc. v. Natural Resources
Defense Council, 467 U.S. 837, 842-848 (1984) (discussing
deference to agency interpretation).
____________________

4/ (...continued)
        services, meets the essential eligibility
        requirements for the receipt of services or the
        participation in programs or activities provided
        by a public entity.
42 U.S.C. S 12131(2).
                                - 7 -
01-05743
        B.      ADA regulations require states to provide services in
                the most integrated setting appropriate to the needs of
                people with disabilities.

        In the regulations required by the ADA, the Attorney General
determined that a state's provision of services in an
unnecessarily segregated setting constitutes an unlawful
disability-based discrimination. Helen L., 1995 WL 34200 at *6.
This provision, known as the "integration regulation," requires
states to "administer services, programs, and activities in the
most integrated setting appropriate to the needs of qualified
individuals with disabilities." 28 C.F.R. S 35.130(d). The
Attorney General has explained that this means "in a setting that
enables individuals with disabilities to interact with
nondisabled persons to the fullest extent possible . . . ." 28
C.F.R. pt. 35, app. A at 452 (Preamble to Regulation on
Nondiscrimination on the Basis of Disability in State and Local
Government Services) (1994). People with disabilities who are
segregated behind institutional walls are not integrated within
society at large and are unable to interact with nondisabled
persons to the fullest extent possible.

        In the preamble to the Title II regulations outlining
general prohibitions against disability-based discrimination, the
Attorney General appreciates that integration is the antidote to
segregation: "Integration is fundamental to the purposes of the
Americans with Disabilities Act. Provision of segregated
accommodations and services relegates persons with disabilities
to second-class status." 28 C.F.R. pt. 35, app. A at 449-50;
                                - 8 -
01-05744
accord H.R. Rep. No. 485 (III) at 56, reprinted in 1990
U.S.C.C.A.N. at 479. Particularly where, as here, the State has
admitted that an integrated setting is a more appropriate setting
than segregation, it can not argue that this intent of the ADA
should be limited.

        The Attorney General has underscored the fact that the
overarching intent behind selecting the various forms of
discrimination delineated in the regulations is to forbid
practices that exclude and unnecessarily segregate. Moreover,
the Attorney General has emphasized that individual need must
drive the decisions of state agencies, as opposed to stereotypic
and erroneous presumptions about classes of disabilities:

        Taken together, these provisions are intended to
        prohibit exclusion and segregation of individuals with
        disabilities and the denial of equal opportunities
        enjoyed by others, based on, among other things,
        presumptions, patronizing attitudes, fears, and
        stereotypes about individuals with disabilities.
        Consistent with these standards, public entities are
        required to ensure that their actions are based on
        facts applicable to individuals and not on presumptions
        as to what a class of individuals with disabilities can
        or cannot do.

28 C.F.R. pt. 35, app. A at 449.

        Accordingly, based on the record in this case that
individuals require placement in integrated community programs,
continued segregation cannot be justified. Such continued
segregation constitutes unlawful disability-based discrimination
under the ADA and must be remedied.

        The Title II integration regulation is in accordance with
the ADA's statutory framework, congressional findings,
                                - 9 -
01-05745
legislative history, and Congress' directives. Congress
specified that, except with regard to program accessibility and
communications issues, the Attorney General's Title II ADA
regulations "shall be consistent with [the ADA] and with the
coordination regulations under part 41 of title 28, Code of
Federal Regulations * * * applicable to recipients of Federal
financial assistance under section 794 of Title 29 [Section 504
of the Rehabilitation Act of 1973]." 42 U.S.C. S 12134(b). This
citation to Section 504 refers exclusively to the coordination
regulations of the former Department of Health, Education, and
Welfare (HEW).5/

        The HEW coordination regulations implementing Section 504 of
the Rehabilitation Act, 28 C.F.R. pt. 41 (1994), contain a
specific integration requirement which mandates that
"[r]ecipients [of federal financial assistance] shall administer
programs and activities in the most integrated setting
appropriate to the needs of qualified handicapped persons."
___________________________

5/ HEW was originally the agency designated to coordinate
Section 504 regulations promulgated by the various federal
agencies. It promulgated such coordination regulations on
January 13, 1978. Pursuant to an Executive Order on August 11,
1981, responsibility for these coordination regulations was
transferred to the Department of Justice, which adopted the
regulations in toto and transferred them to 28 C.F.R. pt. 41.
The regulations remain there today, despite the fact that other
Section 504 regulations, including regulations for the Department
of Health and Human Services, are found in other parts of the
Code of Federal Regulations. For a more detailed description and
history of various Section 504 regulations, see Helen L., 1995 WL
34200 at *3-4.
                                - 10 -
01-05746
28 C.F.R. S 41.51(d). The Attorney General, following Congress'
mandate, used this precise language in the integration
requirement found in S 35.130(d) of the Title II ADA regulations.

        In sum, the Attorney General's Title II ADA regulations
recognize, consistent with the statute, that in the case of
individuals with disabilities, discrimination takes many
different forms, including programs that perpetuate the false
assumption that people with disabilities must be segregated from
the rest of society in institutions. See City of Cleburne v.
Cleburne Living Center, 473 U.S. 432 (1985). The Attorney
General's regulations thus reflect Congress' determination that
services must be provided in appropriate integrated settings to
achieve the Act's purposes. Surely where, as here, the State
itself has determined that a segregated setting is inappropriate,
an integrated setting is mandated.

        Because Congress specifically required the Attorney General
to promulgate Title II ADA regulations defining disability-based
discrimination by public entities, these regulations, which are
carefully tailored to conform to Congress' directives, constitute
legal mandates. Helen L., 1995 WL 34200 at *5. It is deeply
established in federal court jurisprudence and in administrative
law theory that regulations issued by an agency pursuant to
statutory authority (legislative regulations) have the force and
effect of law. See, e.g., General Electric Co. v. Gilbert, 429
U.S. 125, 141 (1976); Chrysler Corp. v. Brown, 441 U.S. 281, 301-
3 (1979); Helen L., 1995 WL 34200 at *5; American Trucking Ass'n
                                - 11 -
01-05747
v. United States, 688 F.2d 1337, 1341 (11th Cir. 1982), rev'd on
other grounds, 467 U.S. 454 (1984).

        C.      ADA's legislative history affirms that one of its major
                purposes is to remove the barriers of unnecessary
                segregation.

        The ADA's legislative history confirms that Congress
intended the ADA to end the unnecessary segregation of people
with disabilities from the community because "[o]ne of the most
debilitating forms of discrimination is segregation imposed by
others." S. Rep. No. 116, 101st Cong., 1st Sess. 6 (1989). In
introducing the legislation, Senator Harkin declared that "[f]or
too long, individuals with disabilities have been excluded,
segregated, and otherwise denied equal, effective, and meaningful
opportunity to participate in the economic and social mainstream
of American life. It is time we eliminate these injustices."
135 Cong. Rec. 19801 (1989). The House and Senate Reports
emphasize that the purpose of the Act is to end the isolation,
exclusion and segregation of individuals with disabilities, and
the discrimination that "persists in such critical areas as * * *
institutionalization." S. Rep. No. 116 at 8 (citing findings of
the U.S. Commission on Civil Rights). See also id. at 20
("compelling need" for the "integration of persons with
disabilities into the economic and social mainstream of American
life"); H.R. Rep. No. 485 (II), 101st Cong., 2d Sess. at 22
(1990), reprinted in 1990 U.S.C.C.A.N. 304 (purpose of the ADA is
to "bring persons with disabilities into the economic and social
mainstream of American life"); id. at 28, reprinted in 1990
                                - 12 -
01-05748
U.S.C.C.A.N. at 310 (noting the historic "isolation" of
individuals with disabilities); H.R. Rep. No. 485 (III) at 26,
reprinted in 1990 U.S.C.C.A.N. at 448-449 (finding that
"segregation for persons with disabilities 'may affect their
hearts and minds in a way unlikely ever to be undone,'" quoting
Brown v. Board of Education, 347 U.S. 483, 494 (1954)); H.R. Rep.
No. 485 (III) at 49-50, reprinted in 1990 U.S.C.C.A.N. at 472-473
("purpose of Title II is to continue to break down barriers to
the integrated participation of people with disabilities in all
aspects of community life").

        Unnecessary and unjustifiable institutionalization is also
specifically identified in congressional testimony by a number of
sponsors and supporters of the ADA as one of the forms of
segregation and discrimination that the ADA is intended to
eliminate. For example, former Senator Lowell Weicker, an
original sponsor of the ADA, testified as follows about the need
for the ADA to eliminate the unnecessary isolation and
segregation that institutionalization represents:

        For years, this country has maintained a public policy
        of protectionism toward people with disabilities. We
        have created monoliths of isolated care in institutions
        and in segregated educational settings. It is that
        isolation and segregation that has become the basis of
        the discrimination faced by many disabled people today.
        Separate is not equal. It was not for blacks; it is
        not for the disabled.

ADA: Hearing Before the Senate Comm. on Labor and Human
Resources and the Subcomm. on the Handicapped, 101st Cong., 1st
Sess. 215 (1989). See also 135 Cong. Rec. S4993 (daily ed. May
9, 1989) (Senator Kennedy testifying that the ADA "will roll back
                                - 13 -
01-05749
the unthinking and unacceptable practices by which disabled
Americans today are segregated, excluded, and fenced off from
fair participation in our society by mindless biased attitudes
and senseless physical barriers."); 136 Cong. Rec. H2447 (daily
ed. May 17, 1990) (Rep. Miller attesting that "[s]ociety has made
them [people with disabilities] invisible by shutting them away
in segregated facilities.").

        As summed up by then-Attorney General Richard Thornburgh,
"many persons with disabilities in this Nation still lead their
lives in an intolerable state of isolation and dependence."
S. Rep. No. 116, 101st Cong., 1st Sess. 7 (1989); H.R. Rep. No.
485 (II) at 32 (1990), reprinted in 1990 U.S.C.C.A.N. at 313.
Nowhere is the state of isolation and dependence more intolerable
than when it occurs as a result of unnecessary and unjustified
segregation in institutions.

III.    The Developing Caselaw on the Integration Regulation Affirms
        that States Are Obligated to Provide Services in the Most
        Integrated Setting.

        The only appellate court to specifically address the
integration regulation of Title II of the ADA has confirmed that
"the ADA and its attendant regulations clearly define unnecessary
segregation as a form of illegal discrimination against the
disabled." Helen L., 1995 WL 34200 at *6. In its decision
entered on January 31, 1995, the Third Circuit found that the
Pennsylvania Department of Public Welfare was violating the ADA
where it required the appellant to remain in the segregated
setting of a nursing home instead of providing her with needed
                                - 14 -
01-05750
home-based services.6/ Relying on the integration regulation,
the unanimous three judge panel underscored that the "ADA is
intended to insure that qualified individuals receive services in
a manner consistent with basic human dignity rather than a manner
which shunts them aside, hides, and ignores them." Id. at *8.
The Third Circuit therefore reversed the district court and
ordered it to enter summary judgment in favor of the appellant.
Id. at *12.7/

        The Third Circuit found that the district court in Helen L.
inappropriately relied on Williams v. Secretary of Executive
Office of Human Services, 609 N.E.2d 447 (Mass. 1993), which was
flawed in its basic analysis of the Title II integration
regulation because it drew upon inapplicable Section 504
caselaw.8/ Helen L. 1995 WL 34200 at *6-7. Like the Williams
6/ Defendants in that case stipulated to the fact that "[t]he
setting for the provision of attendant care services appropriate
to the needs of Idell S. [the appellant] is in the community."
Id. at *13, n.6.
__________________________

7/ This is the only decision to date addressing the Title II
integration regulation where the court had the benefit of the
United States Department of Justice's views on the regulation it
promulgated. The Department did not participate in the
proceedings before the district court in Helen L. However, on
appeal, the Court of Appeals for the Third Circuit requested the
views of the Justice Department. The United States submitted an
amicus brief and participated in the oral argument, where it
argued that the district court's interpretation of the
integration regulation of Title II of the ADA ignored the
fundamental purpose of the ADA and its regulations -- to end the
exclusion and segregation of individuals with disabilities.
8/ In Williams, which was the first case to interpret the
integration regulation of Title II, the Massachusetts Supreme
Judicial Court overruled the lower court's denial of defendants'
summary judgment motion on plaintiffs' claims that the Department
                                                        (continued...)
                                - 15 -
01-05751
court, the district court in Helen L. failed to recognize the
importance of Congress' specific mandate to refer only to HEW's
Section 504 coordination regulations in promulgating Title II
regulations. Both courts thus incorrectly found that there can
be no "discrimination" under Title II if the service at issue is
provided only to individuals with disabilities. The Third
Circuit dismissed this interpretation as facially and
structurally insupportable:

        The 504 coordination regulations, and the ADA "make
        clear that the unnecessary segregation of individuals
        with disabilities in the provision of public services
        is itself a form of discrimination within the meaning
        of these statutes, independent of the discrimination
        that arises when individuals with disabilities receive
        different services than those provided to individuals
        without disabilities."

Helen L. 1995 WL 34200 at *8, citing Brief of Amicus, the United
States, at 7.9/
______________________________

8/ (...continued)
of Mental Health's policies and practices violated the ADA. 609
N.E.2d at 451.

        In the only other existing case to date that has
specifically addressed and discussed the integration regulation
of Title II, Conner v. Branstad, 839 F. Supp. 1346 (S.D. Iowa
1993), the court also misinterpreted the relationship between
prior interpretations of Section 504 and the integration
requirements of Title II of the ADA. In Conner, the court
inappropriately concluded that all Section 504 caselaw is
relevant to interpreting Title II ADA requirements, id. at 1357,
and thus incorrectly relied on prior Section 504 cases having
nothing to do with the HEW coordination regulations.

9/ As the United States further explained in its amicus brief,
like the integration requirement in the HEW coordination
regulations, the ADA's integration regulation does not require
disparate treatment of persons with disabilities and those
without disabilities in order to find discrimination since on its
face, the regulation applies to all services administered by a
(continued...)
                                - 16 -
01-05752
        The Helen L. court also noted that Williams was factually
distinguishable in significant aspects, as it is here. In
particular, unlike the plaintiffs in this case, the plaintiffs in
Williams presented absolutely no evidence that "any particular
client's placement was inappropriate, or that they themselves
were inappropriately placed in a segregated setting after the
ADA's effective date." Williams, 609 N.E.2d at 453. Instead,
the Williams plaintiffs offered global statistical information
about the percentage of people with disabilities in publicly
operated residential programs who live with other people with
disabilities. Id. Absent any proof that individuals with
disabilities were not already being served in the most integrated
setting, the court held that the ADA does not require a specific
proportion of the mental health service's housing placements to
be in integrated housing. Id. at 452. The evidentiary record in
Williams stands in sharp distinction to this case, where
plaintiffs have presented defendants' admissions that hundreds of
citizens of Alabama are unnecessarily segregated in institutions
operated by the State. Accordingly, this Court should grant
summary judgment in favor of plaintiffs.
_____________________________

9/ (...continued)
public entity. The ADA integration regulation is thus not
restricted to services that also are provided to people without
disabilities. The structure of the rest of the Title II
regulations supports this reading. If 28 C.F.R. S 35.130(d)
applied only to programs and services offered to everyone, then
28 C.F.R. S 35.130(b)(1)(iv), which prohibits a public entity
from providing separate services to people with disabilities than
are provided to others, would be redundant.
                                - 17 -
01-05753
IV.     Prior Section 504 Cases Are Not Relevant To
        Interpreting Title II's Integration Requirement.

        Defendants argue that Congress intended Title II "to act
just as S 504 had acted: in a limited fashion." Defendants'
Motion for Judgment on the Pleadings on Plaintiffs' Claims Under
the Americans with Disabilities Act of 1990 [Defendants' Motion]
at 5. Defendants' interpretation of the construction of the ADA
-- a landmark piece of civil rights legislation -- is clearly
contrary to the principles of construction of a remedial statute.
As the court in Kinney v. Yerusalim, 812 F. Supp. 547 (E.D. Pa.),
aff'd, 9 F.3d 1067 (3d Cir. 1993), cert. denied, U.S.,
114 S. Ct. 1545 (1994), pointed out, "[t]he ADA is a remedial
statute, designed to eliminate discrimination in all facets of
society. As a remedial statute, it must be broadly construed to
effectuate its purposes." 812 F. Supp. at 551, citing Tcherepin
v. Knight, 389 U.S. 332 (1967).

        In enacting Section 504 of the Rehabilitation Act of 1973,
29 U.S.C. S 794, Congress recognized that society historically
has discriminated against people with disabilities by
unnecessarily segregating them from their family and community.
The sponsors of that legislation condemned the "invisibility of
the handicapped in America," and introduced bills responding to
the country's "shameful oversights" that caused individuals with
disabilities to live among society "shunted aside, hidden, and
ignored." Alexander v. Choate, 469 U.S. 287, 296 (1985)
(internal quotations omitted). Almost twenty years later,
Congress recognized that the Rehabilitation Act had not fulfilled
                                - 18 -
01-05754
the "compelling need * * * for the integration of persons with
disabilities into the economic and social mainstream of American
life," S. Rep. No. 116, 101st Cong. at 20 (1989), and enacted the
ADA "to continue to break down barriers to the integrated
participation of people with disabilities in all aspects of
community life." H.R. Rep. No. 485 (III) at 49-50 (1990),
reprinted in 1990 U.S.C.C.A.N. at 472-473.

        As discussed in Part II, above, Congress instructed the
Attorney General to promulgate Title II regulations consistent
with other sections of the ADA and a very specific set of
regulations under Section 504 -- the HEW coordination
regulations. Because "overriding significance" must be attached
to the congressional ratification of administrative regulations,
see Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 563 (1990),
prior Rehabilitation Act cases that did not consider the type of
integration requirement that the HEW Section 504 coordination
regulations mandate are not relevant in interpreting the
requirements of Title II of the ADA. While Congress may have
envisioned Title II as incorporating Section 504 standards,
Congress specifically endorsed the interpretation of Section 504
reflected only in the HEW coordination regulations, rather than
the regulations issued by other agencies or any of the decisions
cited by defendants. Thus, although some courts of appeals have
considered whether Section 504 of the Rehabilitation Act
generally provides a right to community treatment, none have
                                - 19 -
01-05755
specifically considered the integration mandate in the HEW
coordination regulations.

        For example, in Clark v. Cohen, 794 F.2d 79, 84 n.3 (3d
Cir.), cert. denied, 479 U.S. 962 (1986), the court did not
consider the integration mandates in either the HEW coordination
regulations or the ADA Title II regulations. Helen L., 1995 WL
34200 at *7. It simply affirmed the lower court's finding that
the Rehabilitation Act and the Department of Health and Human
Services' [HHS] Section 504 regulations, 45 C.F.R. S 84.4(b)(2),
do not require a public entity to provide services in an
integrated setting without proof of unequal treatment.10/
See Clark v. Cohen, 613 F. Supp. 684, 691 (E.D. Pa. 1985).11/
Two other appellate cases cited by defendants (Defendants' Motion
at 6-7) additionally did not address the integration requirement
in the HEW coordination regulations that is at issue here,12/
________________________

10/ The HHS Section 504 regulations are different than the HEW
coordination regulations in 28 C.F.R. pt. 41 with which the
Congress required the ADA to conform. Unlike the HEW Section 504
coordination regulations, there is no independent integration
requirement in the HHS regulations. Instead, the HHS Section 504
regulations require integration only in the context of providing
opportunities for people with disabilities that are equal to
those available to individuals without disabilities. 45 C.F.R. S
84.4(b)(2)(1994).

11/ The district court did find, however, that the plaintiff's
continued confinement in an institution violated the Due Process
Clause of the Fourteenth Amendment. Clark v. Cohen, 613 F. Supp.
at 696-705.

12/ In Phillips v. Thompson, 715 F.2d 365, 368 (7th Cir. 1983),
the court summarily concluded (without reference to regulations)
that the Rehabilitation Act creates no affirmative duty "to
create less restrictive community residential settings." The
Second Circuit in P.C. v. McLaughlin, 913 F.2d 1033, 1041 (2d
                                                        (continued...)
                                - 20 -
01-05756
and the remaining two cases, while also not involving the HEW
coordination regulations, actually acknowledge that the
Rehabilitation Act may require public entities to provide
services to individuals with disabilities in integrated settings.
Thus, in Kentucky Ass'n for Retarded Citizens, Inc. v. Conn, 674
F.2d 582, 585 (6th Cir.), cert. denied, 459 U.S. 1041 (1982), the
court did not dispute that Section 504 required services in the
least restrictive setting. Rather, it found that the district
court had not clearly erred as a factual matter in concluding
that institutionalization of some individuals may be appropriate
under Section 504. Similarly, in Plummer v. Branstad, 731 F.2d
574, 579 (8th Cir. 1984), the court assumed that Section 504
requires states to provide services to individuals in "integrated
settings appropriate to their particular needs" -- a
determination that must be made by the trier of fact. In short,
none of the Rehabilitation Act cases defendants cite are Section
504 cases addressing the integration requirement of the HEW
coordination regulations of Section 504.

V.      Defendants' Failure To Provide Community Services To
        Individuals Identified as Unnecessarily Institutionalized
        Is Unjustified.

        Defendants also argue that even if Title II and its
implementing regulations require a public entity to provide
_____________________________

12/(... continued)
Cir. 1990), addressed Section 504 claims only in the context of
deciding defendants' claims of qualified immunity, finding that
the plaintiff had not shown discriminatory animus and that
Section 504 does not clearly establish an obligation to treat all
individuals with disabilities the same.
                                - 21 -
01-05757
services to individuals with disabilities in an integrated
setting, the state is excused from that obligation if it requires
the public entity to make a "fundamental" or "substantial" change
in its program. Defendants' Motion at 6. This Court need not
consider this argument 13/ because the State of Alabama is
already required to provide services in the least restrictive or
most integrated setting and claims to have an array of community-
based services already in place. Indeed, that obligation arises
from orders of this very Court entered some twenty-three years
ago. Wyatt v. Stickney, 344 F. Supp. 373 (M.D. Ala. 1972), 344
F. Supp. 387 (M.D. Ala. 1972), both aff'd in relevant part, 503
F.2d 1305 (5th Cir. 1974). Moreover, defendants admit that
community-based services are generally less costly than
institutional services. Plaintiffs' Mem. at 21. Under similar
circumstances, the Third Circuit in Helen L. found no
justification for continued segregation which violates the ADA,
as should the Court here. As the Third Circuit stressed:

                The fact that it is more convenient, either
        administratively or fiscally, to provide services in a
        segregated manner, does not constitute a valid
        justification for separate or different services under
        Section 504 of the Rehabilitation Act, or under this
        title [Title II of the ADA].

Helen L. 1995 WL 34200 at *12, quoting H.R. Rep. No. 485 (III),
at 50 (1990), reprinted in 1990 U.S.C.C.A.N. at 63 (emphasis
___________________________

13/ Cf. Kinney v. Yerusalim, 9 F.3d 1067, 1074 (3d Cir. 1993),
cert. denied, 114 S. Ct. 1545 (1994) (finding that in Title II,
Congress limited the available defenses to those cases in which
plaintiffs are challenging a public entity's failure to alter
existing facilities or communications systems).
                                - 22 -
01-05758
omitted). Defendants have no valid justification for failing to
integrate individuals whom they admit are inappropriately
institutionalized.

                         CONCLUSION

        For the reasons stated above, this Court should deny
Defendants' Motion for Judgment on the Pleadings and grant
Plaintiffs' Motion for Summary Judgment on Plaintiffs' Claims
under the Americans with Disabilities Act of 1990. Defendants'
unjustifiable segregation of individuals with disabilities
constitutes discrimination under Title II of the ADA.
]
                                        Respectfully submitted,

For the United States Attorney,         DEVAL L. PATRICK
        REDDING PITT                    Assistant Attorney General
                                        Civil Rights Division

                                        ARTHUR E. PEABODY
                                        Chief
                                        Special Litigation Section
By:
KENNETH E. VINES, First                 ROBINSUE FROHBOESE
Assistant United States Attorney        Deputy Chief
Middle District of Alabama              Special Litigation Section
P.O. Box. 197
Montgomery, AL 36101
(205) 223-7280


                                        JUDITH C. PRESTON
                                        TAWANA E. DAVIS
                                        Trial Attorneys
                                        U.S. Department of Justice
                                        Civil Rights Division
                                        P.O. Box 66400
                                        Washington, D.C. 20035-6400
                                        (202) 514-6258
                                - 23 -
01-05759
                           CERTIFICATE OF SERVICE

        I hereby certify that a copy of the United States' Response
to Defendants' Motion for Judgment on the Pleadings and
Plaintiffs' Motion for Summary Judgment on Plaintiffs' Claims
under the Americans with Disabilities Act of 1990 was sent this
6th day of February 1995 to the following counsel of record by
first class mail:

Counsel for Defendants:

G.R. "Rick" Trawick
Alabama Department of Mental Health
and Mental Retardation
200 Interstate Park Drive
P.O. Box 3710
Montgomery, AL 36193-5001

Greg D. Crosslin
Clifton E. Slaten
Sasser & Littleton
P.O. Box 388
1 Commerce Street
Montgomery, AL 36101

Counsel for Plaintiffs:

Ira A. Burnim
Claudia Schlosberg
Shelley R. Jackson
Andrew Bridge
Judge David L. Bazelon Center
for Mental Health Law
1101 15th Street, N.W., #1212
Washington, D.C. 20005

James Tucker
American Civil Liberties Union
of Alabama
P.O. Box 447
Montgomery, AL 36101

Fern Singer
American Civil Liberties Union
of Alabama
2007 Lancaster Road
Birmingham, AL 35209

Kathryn Sumrall
2420 Arlington Avenue
Birmingham, AL 35205
01-05760
Counsel for Plaintiff-Intervenors:

Drew P. Baker
Alabama Disabilities Advocacy Program
University of Alabama School of Law
P.O. Box 870395
Tuscaloosa, AL 35487-0395

David Ferleger
37 S. 20th Street, #601
Philadelphia, PA 19103


                                        Robinsue Frohboese
                                        U.S. Department of Justice
                                        Civil Rights Division
                                        Special Litigation Section
                                        P.O. Box 66400
                                        Washington, D.C. 20035-6400
                                        (202) 514-6258
01-05761
                                                        ATTACHMENT B
                        UNITED STATES DISTRICT COURT
                       FOR THE DISTRICT OF CONNECTICUT
UNITED STATES OF AMERICA,               )
                                        )
                        Plaintiff,      )
        v.                              )
                                        ) Civil Action No.
                                        ) N-86-252 (EBB)
STATE OF CONNECTICUT, et al.,           )
                                        )
                        Defendants.     )
                                        )
                UNITED STATES' MEMORANDUM OF LAW IN
            SUPPORT OF ITS APPLICATION FOR AN ORDER TO SHOW
        CAUSE WHY DEFENDANTS SHOULD NOT BE HELD IN CIVIL CONTEMPT
Christopher F. Droney                   Deval Patrick
United States Attorney                  Assistant Attorney General
                                        Civil Rights Division
John B. Hughes                          Mark Masling
Assistant United                        Iris Goldschmidt
  States Attorney                       Trial Attorneys
District of Connecticut                 Special Litigation Section
157 Church Street                       Civil Rights Division
New Haven, CT 06510                     U.S. Department of Justice
                                        P.O. Box 66400
                                        Washington, D.C. 20035
                                        (202) 514-6252
01-05762
                depopulations of institutional settings and
                expansion of family and community care.

R. Helms (Chairperson), Report to the Secretary from the Working
Group on Policies Affecting Persons with Mental Retardation and
Other Developmental Disabilities. Washington, D.C.: Department
of Health and Human Services (1988).

                b. An order requiring community placement
                   would be consistent with the Americans
                   with Disabilities Act of 1990.

        The United States suggests that in fashioning an appropriate
remedy to redress violations of the Remedial Orders, the Court
may look to relevant federal law and policy regarding the rights
of developmentally disabled persons. Although the Consent Decree
and Plan pre-dated the Americans with Disabilities Act of 1990,
42 U.S.C. SS 12101 et. seq. ("ADA"), that comprehensive
legislation speaks directly to the issues facing the Court and is
fully consistent with the United States' request for an order
requiring that each Southbury resident be evaluated by
independent professionals to assess whether it would be
beneficial to place the resident in a normal community
environment.

        The ADA's essential aim is the integration of persons with
disabilities into the mainstream of American life. Unnecessary,
harmful segregation of persons with mental retardation in
isolated, removed institutions violates the ADA. Therefore, an
order by this Court requiring integration into the community for
some Southbury residents would be consistent with, if not
required by, federal law.
                                -41-
01-05763
        The ADA begins with statements of congressional findings
which animated the ADA's enactment to end disability-based
discrimination. Congress specifically found that
"institutionalization" is one of the "critical areas" in which
discrimination against individuals with disabilities persists.
42 U.S.C. S 12101(a)(3). Ending such discrimination is supported
by additional congressional findings that "historically, society
has tended to isolate and segregate individuals with
disabilities, and, despite some improvements, such forms of
discrimination against individuals with disabilities continue to
be a serious and pervasive social problem." 42 U.S.C. S
12101(a)(2). These discriminatory practices continue today
through "outright intentional exclusion" and "segregation." 42
U.S.C. S 12101(a)(5). The ADA, therefore, prohibits isolation,
segregation, and exclusion represented by unjustifiable
institutionalization constituting disability-based
discrimination.

        Consistent with the goal of integrating disabled persons
into the American mainstream, the ADA prohibits public entities
from discriminating by reason of disability, and mandates that
"no qualified individual with a disability shall, by reason of
such disability, be excluded from participation in or be denied
the benefits of the services, programs, or activities of a public
entity, or be subjected to discrimination by any such entity."
42 U.S.C. S 12132.
                                -42-
01-05764
        In regulations promulgated pursuant to the ADA, the Attorney
General determined that a state's provision of services in an
unnecessarily segregated setting constitutes an unlawful
disability-based discrimination. This regulation, known as the
"integration regulation," requires states to "administer
services, programs, and activities in the most integrated setting
appropriate to the needs of qualified individuals with
disabilities." 28 C.F.R. S 35.130(d). The Attorney General has
explained that this requires integration "in a setting that
enables individuals with disabilities to interact with
nondisabled persons to the fullest extent possible . . . ." 28
C.F.R. pt. 35, app. A at 452 (Preamble to Regulation on
Nondiscrimination on the Basis of Disability in State and Local
Government Services) (1994). Southbury residents, who are
segregated behind institutional walls, are not integrated in
society and are unable to interact with nondisabled persons to
the fullest extent possible.

        The only appellate court to specifically address the
integration regulation has confirmed that, "the ADA and its
attendant regulations clearly define unnecessary segregation as a
form of illegal discrimination against the disabled." Helen L.
v. Didario, 46 F.3d 325, 333 (3d Cir. 1995). In Helen L. the
Third Circuit found that Pennsylvania violated the ADA by forcing
the plaintiff to remain in the segregated setting of a nursing
home instead of providing her with needed home-based services.
Relying on the integration regulation, the court underscored that
                                -43-
01-05765
the "ADA is intended to insure that qualified individuals receive
services in a manner consistent with basic human dignity rather
than a manner which shunts them aside, hides, and ignores them."
Id. at _. The Third Circuit therefore reversed the district
court and ordered it to enter summary judgment in favor of Helen
L., and ordered that she be removed from the nursing home and
provided services in a more integrated, less segregated setting.
The Third Circuit rejected Pennsylvania's fiscal arguments for
continued segregation, stressing:

                The fact that it is more convenient, either
        administratively or fiscally, to provide services in a
        segregated manner, does not constitute a valid
        justification for separate or different services under
        Section 504 of the Rehabilitation Act, or under this
        title [Title II of the ADA].

Helen L. at 338, quoting H.R. Rep. No. 485 (III), at 50 (1990),
reprinted in 1990 U.S.C.C.A.N. at 63 (emphasis omitted).

        By failing to serve some Southbury residents in the most
integrated setting appropriate to their needs, defendants are
violating the ADA's prohibition of disability-based
discrimination. The United States suggests that the Court may
take that fact into consideration when deciding on appropriate
sanctions for defendants' contempt of the Remedial Orders,
including placing Southbury residents into the community who in
the opinion of Southbury professionals would benefit from
relocation.
                                -44-
01-05766
                c. The Court has the power to order community
                   placement, even though that issue
                   was not addressed in the Remedial Orders.

        Defendants will no doubt argue that because the Remedial
Orders do not address community placement, this Court lacks power
to order such a remedy. It is clear, however, under Second
Circuit case law, that civil contempt remedies may exceed the
requirements of the court orders at issue, if those remedies are
required to alleviate the effects of the contempt of those
orders. In EEOC v. Local 580, 925 F.2d 588 (2d Cir. 1991), the
Second Circuit held that in the face of consent decree
violations, a federal district court has the power to remedy
those violations with relief which goes beyond that contained in
the original decree:

                [B]ecause a district court has a significant
                administrative interest in securing compliance with its
                orders, it 'may take such [remedial] steps as are
                appropriate given the resistance of the noncompliant
                party' .... judicial discretion in flexing [a court's]
                supervisory and enforcement muscles is broad. Where
                equitable remedies which exceed the confines of the
                consent judgement are reasonably imposed in order to
                secure compliance of the parties, the court has not
                overstepped its bounds, and its orders must be obeyed
                .... the court has inherent power to enforce consent
                judgments beyond the remedial 'contractual' terms
                agreed upon by the parties.

Id. at 592-93, quoting Berger v. Heckler, 771 F.2d 1556, 1569 (2d
Cir. 1985). Thus, even though the Remedial Orders do not require
community placement of Southbury residents who would benefit from
integration in the community, the Court has the power to order
that relief to remedy persistent violations of the Remedial
Orders.
                                -45-
01-05767
        Moreover, while remedies for constitutional violations are
generally restricted in scope to those which are required to
correct the specific violation, a court may exceed that
restriction when "there is a record of past constitutional
violations and violations of past court orders." Hoptowit v.
Ray, 682 F.2d 1237, 1247 (9th Cir. 1982), citing Hutto v. Finney,
437 U.S. 678, 687 (1978). See also Kendrick v. Bland, 740 F.2d
432, 438 (6th Cir. 1984) (same). Thus, defendants' abysmal
record of failure to abide by the Remedial Orders allows this
Court to order relief which might arguably exceed that which is
required to remedy the underlying constitutional violations.

                d. This Court has the power to order community
                   placement notwithstanding the Second
                   Circuits's pronouncements on this issue.

        The United States is aware that in several decisions arising
from litigation over conditions of confinement of persons with
mental retardation in the Long Island Developmental Center, the
Second Circuit commented that institutionalized persons with
mental retardation have no constitutional right to placement in
the community. Society for Goodwill to Retarded Children, Inc.
v. Cuomo, 737 F.2d 1239 (2d Cir. 1984); Society for Goodwill to
Retarded Children, Inc. v. Cuomo, 902 F.2d 1085 (2d Cir. 1990).

        The relief the United States seeks to remedy defendants'
continuing violations of the Remedial Orders, however, is not
inconsistent with the Second Circuit's pronouncements in the
Society for Goodwill cases for several reasons. First, those
cases do not address the issue of community placement as a remedy
                                -46-
01-05768
for ongoing violations of extant court orders. The Society for
Goodwill cases said that ordering community placement as an
initial remedy for underlying constitutional deficiencies was
generally -- but not always -- inappropriate. The Second Circuit
has never held that district courts were barred from ordering
community placement as a remedy for ongoing violations of
previous orders.

        Second, the Second Circuit has explicitly said that under
certain circumstances district courts may in fact order community
placement even in the absence of a pattern of violating past
orders, "We further instruct the district court that community
placement may be ordered only as a remedy of last resort and only
when intra-institutional remedies are inadequate to cure the
'substantial departures' required by Youngberg." Society for
Goodwill to Retarded Children, Inc. v. Cuomo, 902 F.2d 1085, 1091
(2d Cir. 1990).

        Third, a line of cases directly supports the United States'
request for a remedy ordering community placement for some
Southbury residents. In Thomas S. v. Flaherty, 699 F. Supp. 1178
(W.D.N.C. 1988), aff'd 902 F.2d 250 (4th Cir. 1990), cert.
denied, 498 U.S. 951 (1990), and Clark v. Cohen, 794 F.2d 79 (3rd
Cir. 1986), cert. denied 479 U.S. 962 (1986), the courts ordered
community placement for the plaintiff in those cases, because in
the judgment of the professionals treating those plaintiffs, the
failure to place them in the community was a substantial
                                -47-
01-05769
departure from current accepted professional standards.12/
In ordering community placement, the Fourth Circuit explicitly
distinguished Society for Goodwill, commenting, "[Society for
Goodwill does] not apply to the facts in Thomas's case, in which
a discrete recommendation for treatment was made by qualified
professionals to meet the needs of an individual, as contemplated
by Youngberg." Thomas S. v. Morrow, 781 F.2d at 376.

        Thus, the United States' proposal to have each Southbury
resident evaluated by a team of professionals to determine
whether the resident would benefit from integration in the
community is consistent both with cases in the Third and Fourth
Circuits, and with the Society for Goodwill cases.
_____________________________

12/ 'Substantial departure from current accepted
professional standards' was the standard used in Youngberg v.
Romeo, 457 U.S. 307 (1982) to decide whether the constitutional
rights of Romeo, an institutionalized person with mental
retardation, had been violated.
                                -48-
01-05770
                        CONCLUSION

        For all of the foregoing reasons, the United States
respectfully requests that this Court find that defendants are in
contempt of the Remedial Orders, and that this Court sanction
defendants for their contempt as set forth above.

                                Respectfully submitted,

Christopher F. Droney           Deval Patrick
United States Attorney          Assistant Attorney General
                                Civil Rights Division


John B. Hughes                  Mark Masling
Assistant United                Iris Goldschmidt
  States Attorney               Trial Attorneys
District of Connecticut         Special Litigation Section
157 Church Street               Civil Rights Division
New Haven, CT 06510             U.S. Department of Justice
                                P.O. Box 66400
                                Washington, D.C. 20035
                                (202) 514-6252
                                -49-
01-05771
                                                        ATTACHMENT B
                        UNITED STATES DISTRICT COURT
                      FOR THE DISTRICT OF CONNECTICUT
UNITED STATES OF AMERICA,               )
                                        )
                Plaintiff,              )
                                        )
        v.                              )
                                        ) Civil Action No.
                                        ) N-86-252 (EBB)
STATE OF CONNECTICUT, et al.,           )
                                        )
                Defendants.             )
                                        )
                     UNITED STATES' MEMORANDUM OF LAW IN
                SUPPORT OF ITS APPLICATION FOR AN ORDER TO SHOW
           CAUSE WHY DEFENDANTS SHOULD NOT BE HELD IN CIVIL CONTEMPT
Christopher F. Droney                   Deval Patrick
United States Attorney                  Assistant Attorney General
                                        Civil Rights Division
John B. Hughes                          Mark Masling
Assistant United                        Iris Goldschmidt
  States Attorney                       Trial Attorneys
District of Connecticut                 Special Litigation Section
157 Church Street                       Civil Rights Division
New Haven, CT 06510                     U.S. Department of Justice
                                        P.O. Box 66400
                                        Washington, D.C. 20035
                                        (202) 514-6252
01-05772
                depopulations of institutional settings and
                expansion of family and community care.

R. Helms (Chairperson), Report to the Secretary from the Working
Group on Policies Affecting Persons with Mental Retardation and
other Developmental Disabilities. Washington, D.C.: Department
of Health and Human Services (1988).

                b. An order requiring community placement
                   would be consistent with the Americans
                   with Disabilities Act of 1990.

        The United States suggests that in fashioning an appropriate
remedy to redress violations of the Remedial Orders, the Court
may look to relevant federal law and policy regarding the rights
of developmentally disabled persons. Although the Consent Decree
and Plan pre-dated the Americans with Disabilities Act of 1990,
42 U.S.C. SS 12101 et. seq. ("ADA"), that comprehensive
legislation speaks directly to the issues facing the Court and is
fully consistent with the United States' request for an order
requiring that each Southbury resident be evaluated by
independent professionals to assess whether it would be
beneficial to place the resident in a normal community
environment.

        The ADA's essential aim is the integration of persons with
disabilities into the mainstream of American life. Unnecessary,
harmful segregation of persons with mental retardation in
isolated, removed institutions violates the ADA. Therefore, an
order by this Court requiring integration into the community for
some Southbury residents would be consistent with, if not
required by, federal law.
                                -41-
01-05773
        The ADA begins with statements of congressional findings
which animated the ADA's enactment to end disability-based
discrimination. Congress specifically found that
"institutionalization" is one of the "critical areas" in which
discrimination against individuals with disabilities persists.
42 U.S.C. S 12101(a) (3). Ending such discrimination is supported
by additional congressional findings that "historically, society
has tended to isolate and segregate individuals with
disabilities, and, despite some improvements, such forms of
discrimination against individuals with disabilities continue to
be a serious and pervasive social problem." 42 U.S.C. S
12101(a) (2). These discriminatory practices continue today
through "outright intentional exclusion" and "segregation." 42
U.S.C. S 12101 (a) (5). The ADA, therefore, prohibits isolation,
segregation, and exclusion represented by unjustifiable
institutionalization constituting disability-based
discrimination.

        Consistent with the goal of integrating disabled persons
into the American mainstream, the ADA prohibits public entities
from discriminating by reason of disability, and mandates that
"no qualified individual with a disability shall, by reason of
such disability, be excluded from participation in or be denied
the benefits of the services, programs, or activities of a public
entity, or be subjected to discrimination by any such entity."
42 U.S.C. S 12132.
                                -42-
01-05774
        In regulations promulgated pursuant to the ADA, the Attorney
General determined that a state's provision of services in an
unnecessarily segregated setting constitutes an unlawful
disability-based discrimination. This regulation, known as the
"integration regulation," requires states to "administer
services, programs, and activities in the most integrated setting
appropriate to the needs of qualified individuals with
disabilities." 28 C.F.R. S 35.130(d). The Attorney General has
explained that this requires integration "in a setting that
enables individuals with disabilities to interact with
nondisabled persons to the fullest extent possible . . . ." 28
C.F.R. pt. 35, app. A at 452 (Preamble to Regulation on
Nondiscrimination on the Basis of Disability in State and Local
Government Services) (1994). Southbury residents, who are
segregated behind institutional walls, are not integrated in
society and are unable to interact with nondisabled persons to
the fullest extent possible.

        The only appellate court to specifically address the
integration regulation has confirmed that, "the ADA and its
attendant regulations clearly define unnecessary segregation as a
form of illegal discrimination against the disabled." Helen L.
v. Didario, 46 F.3d 325, 333 (3d Cir. 1995). In Helen L. the
Third Circuit found that Pennsylvania violated the ADA by forcing
the plaintiff to remain in the segregated setting of a nursing
home instead of providing her with needed home-based services.
Relying on the integration regulation, the court underscored that
                                -43-
01-05775
the "ADA is intended to insure that qualified individuals receive
services in a manner consistent with basic human dignity rather
than a manner which shunts them aside, hides, and ignores them."
Id. at -. The Third Circuit therefore reversed the district
court and ordered it to enter summary judgment in favor of Helen
L., and ordered that she be removed from the nursing home and
provided services in a more integrated, less segregated setting.
The Third Circuit rejected Pennsylvania's fiscal arguments for
continued segregation, stressing:

                The fact that it is more convenient, either
        administratively or fiscally, to provide services in a
        segregated manner, does not constitute a valid
        justification for separate or different services under
        Section 504 of the Rehabilitation Act, or under this
        title (Title II of the ADA).

Helen L. at 338, quoting H.R. Rep. No. 485 (III), at 50 (1990),
reprinted in 1990 U.S.C.C.A.N. at 63 (emphasis omitted).

        By failing to serve some Southbury residents in the most
integrated setting appropriate to their needs, defendants are
violating the ADA's prohibition of disability-based
discrimination. The United States suggests that the Court may
take that fact into consideration when deciding on appropriate
sanctions for defendants' contempt of the Remedial Orders,
including placing Southbury residents into the community who in
the opinion of Southbury professionals would benefit from
relocation.
                                -44-
01-05776
                c. The Court has the power to order community
                   placement, even though that issue
                   was not addressed in the Remedial Orders.

        Defendants will no doubt argue that because the Remedial
Orders do not address community placement, this Court lacks power
to order such a remedy. It is clear, however, under Second
Circuit case law, that civil contempt remedies may exceed the
requirements of the court orders at issue, if those remedies are
required to alleviate the effects of the contempt of those
orders. In EEOC v. Local 580, 925 F.2d 588 (2d Cir. 1991), the
Second Circuit held that in the face of consent decree
violations, a federal district court has the power to remedy
those violations with relief which goes beyond that contained in
the original decree:

                (B)ecause a district court has a significant
                administrative interest in securing compliance with its
                orders, it 'may take such (remedial) steps as are
                appropriate given the resistance of the noncompliant
                party' .... judicial discretion in flexing (a court's)
                supervisory and enforcement muscles is broad. Where
                equitable remedies which exceed the confines of the
                consent judgement are reasonably imposed in order to
                secure compliance of the parties, the court has not
                overstepped its bounds, and its orders must be obeyed
                .... the court has inherent power to enforce consent
                judgments beyond the remedial 'contractual' terms
                agreed upon by the parties.

Id. at 592-93, quoting Berger v. Heckler, 771 F.2d 1556, 1569 (2d
Cir. 1985). Thus, even though the Remedial Orders do not require
community placement of Southbury residents who would benefit from
integration in the community, the Court has the power to order
that relief to remedy persistent violations of the Remedial
Orders.
                                -45-
01-05777
        Moreover, while remedies for constitutional violations are
generally restricted in scope to those which are required to
correct the specific violation, a court may exceed that
restriction when "there is a record of past constitutional
violations and violations of past court orders." Hoptowit v.
Ray, 682 F.2d 1237, 1247 (9th Cir. 1982), citing Hutto v. Finney,
437 U.S. 678, 687 (1978). See also Kendrick v. Bland, 740 F.2d
432, 438 (6th Cir. 1984) (same). Thus, defendants' abysmal
record of failure to abide by the Remedial Orders allows this
Court to order relief which might arguably exceed that which is
required to remedy the underlying constitutional violations.

                d. This Court has the power to order community
                   placement notwithstanding the Second
                   Circuits's pronouncements on this issue.

        The United States is aware that in several decisions arising
from litigation over conditions of confinement of persons with
mental retardation in the Long Island Developmental Center, the
Second Circuit commented that institutionalized persons with
mental retardation have no constitutional right to placement in
the community. Society for Goodwill to Retarded Children, Inc.
v. Cuomo, 737 F.2d 1239 (2d Cir. 1984); Society for Goodwill to
Retarded Children, Inc. v. Cuomo, 902 F.2d 1085 (2d Cir. 1990).

        The relief the United States seeks to remedy defendants'
continuing violations of the Remedial Orders, however, is not
inconsistent with the Second Circuit's pronouncements in the
Society for Goodwill cases for several reasons. First, those
cases do not address the issue of community placement as a remedy
                                -46-
01-05778
for ongoing violations of extant court orders. The Society for
Goodwill cases said that ordering community placement as an
initial remedy for underlying constitutional deficiencies was
generally -- but not always -- inappropriate. The Second Circuit
has never held that district courts were barred from ordering
community placement as a remedy for ongoing violations of
previous orders.

        Second, the Second Circuit has explicitly said that under
certain circumstances district courts may in fact order community
placement even in the absence of a pattern of violating past
orders, "We further instruct the district court that community
placement may be ordered only as a remedy of last resort and only
when intra-institutional remedies are inadequate to cure the
'substantial departures' required by Youngberg." Society for
Goodwill to Retarded Children, Inc. v. Cuomo, 902 F.2d 1085, 1091
(2d Cir. 1990).

        Third, a line of cases directly supports the United States'
request for a remedy ordering community placement for some
Southbury residents. In Thomas S. v. Flaherty, 699 F. Supp. 1178
(W.D.N.C. 1988), aff'd 902 F.2d 250 (4th Cir. 1990), cert.
denied, 498 U.S. 951 (1990), and Clark v. Cohen, 794 F.2d 79 (3rd
Cir. 1986), cert. denied 479 U.S. 962 (1986), the courts ordered
community placement for the plaintiff in those cases, because in
the judgment of the professionals treating those plaintiffs, the
failure to place them in the community was a substantial
                                -47-
01-05779
departure from current accepted professional standards. 12/
In ordering community placement, the Fourth Circuit explicitly
distinguished Society for Goodwill, commenting, "[Society for
Goodwill does] not apply to the facts in Thomas's case, in which
a discrete recommendation for treatment was made by qualified
professionals to meet the needs of an individual, as contemplated
by Youngberg." Thomas S. v. Morrow, 781 F.2d at 376.

        Thus, the United States' proposal to have each Southbury
resident evaluated by a team of professionals to determine
whether the resident would benefit from integration in the
community is consistent both with cases in the Third and Fourth
Circuits, and with the Society for Goodwill cases.
___________________________

        12/ 'Substantial departure from current accepted
professional standards' was the standard used in Youngberg v.
Romeo, 457 U.S. 307 (1982) to decide whether the constitutional
rights of Romeo, an institutionalized person with mental
retardation, had been violated.
                                -48-
01-05780
                        CONCLUSION

        For all of the foregoing reasons, the United States
respectfully requests that this Court find that defendants are in
contempt of the Remedial Orders, and that this Court sanction
defendants for their contempt as set forth above.

                                        Respectfully submitted,

Christopher F. Droney                   Deval Patrick
United States Attorney                  Assistant Attorney General
                                        Civil Rights Division


John B. Hughes                          Mark Masling
Assistant United                        Iris Goldschmidt
  States Attorney                       Trial Attorneys
District of Connecticut                 Special Litigation Section
157 Church Street                       Civil Rights Division
New Haven, CT 06510                     U.S. Department of Justice
                                        P.O. Box 66400
                                        Washington, D.C. 20035
                                        (202) 514-6252
                                -49-
01-05781