DRW et al Comments Regarding Opinion Docket No. 10-07-01
September 6, 2019
Solicitor General Division,
Office of the Attorney General
P.O. Box 40100
Olympia, Washington 98504-0100
Re: Whether anti-discrimination laws prohibit local entities from devising methods to prevent individuals who have received treatment for mental health disabilities from being discharged to certain communities – Opinion Docket No. 19-07-01
This comment is being submitted in response to a request to the Attorney General’s Office for an official determination regarding the legality of actions taken by jurisdictions to restrict people with disabilities from living in their communities. We, the undersigned, are confident that your office will undertake a thorough legal analysis and come to the correct and obvious conclusion: that such discriminatory actions violate long-established state and federal law and only serve to further stigmatize marginalized populations. However, we write to make clear that there is an army of advocates and allies ready to address this issue through public engagement, media advocacy, educating policy makers, and litigation if needed.
As you are aware, the United States Supreme Court has held that discriminatory housing decisions against a group of people with disabilities is irrational and would not survive even the most lenient of equal protection standards under the 14th Amendment to the U.S. Constitution. Moreover, multiple federal statutes protect against discrimination on the basis of disability in housing, public programs, federally funded services, and public and privately funded health care delivery. Attempting to prohibit someone with a mental health disability, who has received treatment and been found by both clinicians and the courts to be ready to return to their friends and family in the community, from accessing benefits and services in their community is nothing more than open discrimination based on that person’s history of disability, and in violation of both state and federal law.
In the seminal case directing that local governments cannot discriminate against people with disabilities by excluding them from their communities, the United States Supreme Court struck down efforts by a Texas town attempting to use zoning laws to prevent a group home for people with intellectual disabilities from being placed in their town, noting that such efforts reflect a “continuing antipathy or prejudice” towards people with cognitive disabilities. There, Justice Thurgood Marshall penned a concurrence urging the court to provide even stronger, clearer protections to people with disabilities in light of their history of oppression and stigmatization, writing “history makes clear that constitutional principles of equality, like constitutional principles of liberty, property, and due process, evolve over time; what once was a ‘natural’ and ‘self-evident’ ordering later comes to be seen as an artificial and invidious constraint on human potential and freedom.” Following those constitutional principles, the court struck down the town’s discriminatory zoning laws.
The court extended those principles in Olmstead v. L.C., 527 U.S. 581 (1999), when it found segregating people with disabilities in institutions violates the Americans with Disabilities Act and constitutes discrimination that “perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life.” Given the long and vicious history of antagonism towards people with disabilities, the court found that additional protections for this group were required and directed that people with disabilities be integrated into our communities. For decades this integration mandate has benefitted people with disabilities and our communities.
However, public misperceptions and hostility still exist. People with mental health disabilities are routinely scapegoated by the general public and people in positions of power. When the terms “mental illness” or “mental disability” are not used directly, “unstable,” “crazy,” and “troubled” are used as euphemisms that draw on stereotypes of mental health disabilities and evoke fear in the populous. With heightened media attention to violent crime, despite a nationwide and decades-long decrease in actual crime, the public has focused on an easy but false target to blame: people with mental disabilities. However, people with disabilities are more likely to be victims of violent crimes than perpetrators of it. Recent studies indicate that people with disabilities are more than twice as likely to be the victim of a violent crime as compared to people without disabilities, and people with cognitive disabilities had the highest rate of violent victimization among all disabilities. Despite sensationalized media reports, people with mental disabilities make up a very small percentage of crime perpetrators. Unfortunately, rather than addressing the thorny roots of crime – poverty, substance abuse, misogyny, racism, economic disparity, and hopelessness – lawmakers and local communities have instead focused on this marginalized group. When people with mental health needs are also people of color, LGBTQ, immigrants or refugees, or formerly incarcerated, this animosity is often only increased, with communities drawing stricter and stricter requirements around their existence. Recent efforts to prevent people with disabilities from living in affluent communities is simply an extension of this discriminatory and misguided thinking.
Despite this clear precedent and the many legislative and litigation successes of the disability community since then, state and local actors here in Washington continue their efforts to keep people with mental disabilities out of their communities. We, the undersigned, urge our law and policy makers to join our fight against the “artificial and invidious constraints on human potential and freedom” that these types of zoning laws and local ordinances place on our fellow Washingtonians with mental health disabilities. People who have received treatment in our state institutions and been declared ready for integration into our communities should be embraced, not punished. And instead of searching for legally defensible but pernicious ways to further stigmatize these people, we ask that the Attorney General’s Office continue its efforts towards integration and community based mental health treatment, and defend people with mental illness against these attacks.
We, the undersigned, are hopeful that this office will use its response to these questions to express its continued commitment to firmly opposing unconstitutional and discriminatory attacks against protected classes here in Washington. We urge you to provide clear guidance to the legislature that no legislative or local government actions that seek to exclude individuals with disabilities from our communities are legally or morally tenable.
People with mental health disabilities should not need the plethora of legal protections that serve as a backstop guarding against being the targets of legislation that unfairly blames them for the ills of society. Unfortunately, despite decades of settled precedent that should protect our most marginalized citizens from being attacked by those in power, attempts to restrict and stigmatize people with mental health disabilities continue, and you can be sure that the undersigned allies and advocates stand ready to help this group exercise their rights and resist this form of NIMBY-based discrimination, if the need arises.
Mark Stroh, Executive Director
Disability Rights Washington
Michele Storms, Executive Director
ACLU of Washington
John Ficker, Executive Director
Adult Family Home Council of Washington State
Kimberly Meck, Executive Director
Alliance of People with Disabilities
Shawn E. Latham, President
Allies in Advocacy
Julie Ward, Senior Executive Officer for Public Policy
The Arc of the United States
Sue Elliot, Executive Director
The Arc of Washington
Julia Bascom, Executive Director
Autistic Self Advocacy Network
Andy Backlund, Esq.
Jennifer Mathis, Director of Policy and Legal Advocacy
Bazelon Center for Mental Health Law
Michelle Tinkler, Ombuds
Behavioral Health Ombuds of Pierce County
Breean Beggs, Esq.
Andrew Biviano, Esq.
Regina Kline, Partner
Brown, Goldstein & Levy
Erik J. Heipt, Partner
Budge & Heipt, PLLC
Christopher Carney, Partner
Carney Gillespie Issitt PLLP
Bruce Darling, Executive Director
Center for Disability Rights, Inc.
Patt Kosier, Executive Director
Center for Independence
Dainen Penta, Executive Director
Center for Justice
Von M. Elison, MPA, Executive Director,
Central Washington Disability Resources
Aimee Champion, Esq.
Derrick Belgarde, Deputy Director
Chief Seattle Club
Amy Robertson and Tim Fox, Co-Executive Directors
Civil Rights Education and Enforcement Center
Merf Ehman, Executive Director
Columbia Legal Services
Mark Leeper, Executive Director
Disability Action Center – Northwest
Rebecca Williford, Managing Attorney
Disability Rights Advocates
ChrisTiana ObeySumner, CEO
Epiphanies of Equity: Education and Consulting
Linda M. Dardarian, Partner
Goldstein, Borgen, Dardarian & Ho
Daniel Gross, Esq.
Eleonore Hamburger, Esq.
Kailey Fielder-Gohlke, CEO
HERO House NW
Regan Bailey, Litigation Director
Justice in Aging
Nate Bingham, Partner
Krutch Lindell Bingham Jones
Cliff Johnson, Director
MacArthur Justice Center
Jesse Wing, Partner
MacDonald Hoague & Bayless
Jerri Clark, Founder
MOMI – Mothers of the Mentally Ill
Muguette Guenneguez, Executive Director
Marilyn Roberts, Director of Operations
Lauren Simonds, Executive Director
Leecia Welch, Senior Director of Legal Advocacy & Child Welfare
National Center for Youth Law
Kelly Buckland, Executive Director
National Council on Independent Living (NCIL)
Curt Decker, Executive Director
National Disability Rights Network
Kimberly Lewis, Managing Attorney
National Health Law Program
Jorge L. Barón, Executive Director
Northwest Immigrant Rights Project
Marley Hochendoner, Executive Director
Northwest Fair Housing Alliance
Betty Schwieterman, State Developmental Disabilities Ombuds
Office of Developmental Disabilities Ombuds
Ginger Kwan, Executive Director
Open Doors for Multicultural Families
Eric Matthes, President
People First of King County
Krista Milhofer, Program Administrator
People First of Washington State
Michael W. Bien, Partner
Rosen Bien Galvan & Grunfeld LLP
Anthony Nash, President
Self-Advocates in Leadership
Karen Baynes-Dunning, Interim President
Southern Poverty Law Center
William D. Kane, Executive Director
Spokane Center for Independent Living
Kevin Martone, Executive Director
Technical Assistance Collaborative
Beverly Miller, Co-Founder
United Peers of Washington
Jonathan M. Smith, Executive Director
Washington Lawyers’ Committee for Civil Rights and Urban Affairs
John Stovall, Member Organizer
Washington Low Income Housing Alliance
Jeremy Norden-Paul, Executive Director
Washington State Developmental Disabilities Council
Chelene Whiteaker, Senior Vice President
Washington State Hospital Association
 “The State may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational.” City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 446 (1985).
 See, e.g., Fair Housing Act, 42 U.S.C. § 3601 et seq.; Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132 et seq.;Section 504 of the Rehabilitation Act, 29 U.S.C. § 794; Medicaid state plan requirements, 42 U.S.C. § 1396a; Section 1557 of the Affordable Care Act, 42 U.S.C. § 18116.
 Id, Washington Law Against Discrimination, RCW 49.60.010;U.S. Const. amend. XIV.
 Cleburne, 473 U.S. at 433.
 Id. at466.
 Olmstead v. L.C., 527 U.S. at 600-01.
 US Department of Justice, Bureau of Justice Statistics, Crime Against Persons with Disabilities, 2009-2015- Statistical Tables (May 2015).