The issue in the mental health case has implications beyond Miss.

A long-running Mississippi mental health lawsuit could shake up the way legal protections for people with disabilities are enforced, potentially reducing pressure on state and local governments to ensure Americans with disabilities have equal access to services.

The Justice Department sued Mississippi six years ago, alleging it violated the Americans with Disabilities Act (ADA) by institutionalizing people with mental illness instead of providing community-based services. A district judge sided with the federal government, approved a remedial order for the Department of Mental Health and appointed a special monitor to oversee the agency’s compliance. The state appealed that decision last year, arguing that the mental health system had already made improvements and that the district court had wrongly imposed “continuous federal supervision.”

But the three-judge panel of the U.S. Court of Appeals for the Fifth Circuit, which will hear oral arguments in the case on Wednesday, is concerned with a much more fundamental question: whether the Justice Department could have legally sued Mississippi at all.

If the justices decide the answer is no, it will lead to a split with another federal appeals court. Then the matter could end up before the US Supreme Court, which is deeply skeptical of federal power and eager to overturn longstanding precedents like Roe v. Wade.

For years, federal lawsuits like the one against Mississippi have been the primary means of pushing state and local governments to offer equal access and services to people with disabilities, which is required under Title II of the ADA.

The panel’s decision to ask a question that neither Mississippi nor the Justice Department raised in their own briefs suggests the justices are interested in changing that.

“The disability community is extremely concerned,” said Ira Burnim, legal director at the Bazelon Center for Mental Health Law.

Burnim has co-authored amicus briefs from several national advocacy organizations for people with disabilities or mental illness. The filing before the panel questioned whether the Justice Department should have been able to sue at all, arguing that Mississippi violated Title II and that oversight was necessary to ensure the state’s expanded community mental health services.

“The DOJ’s ability to bring lawsuits is critical to the enforcement of Title II,” he continued.

Accessibility in public buildings such as courthouses, hearing-impaired jury rooms, and wheelchair lifts on public buses are all areas where the Department of Justice can litigate under Title II.

The law also applies more broadly. In the 1999 case Olmstead v. LC, the Supreme Court held that “wrongful institutionalization” violates Title II because depriving people of the chance to live in their community constitutes discrimination. The Justice Department has relied on this precedent to compel states to provide community-based services for people with mental illness.

From 2009 to 2016, the department was involved in 50 similar cases, including the Mississippi case.

The judges assigned to hear the Mississippi case are Edith Jones, James Ho and Leslie Southwick, all Republican appointees to the nation’s most conservative appeals court.

The language of Title II does not expressly say that the Attorney General can sue state and local governments to enforce it, while other parts of the ADA do. But the Justice Department has brought lawsuits to enforce Title II since it took effect in 1992, and has argued that Congress clearly intended the attorney general to have the power to compel state and local governments to comply with the nondiscrimination law if don’t do it do it on a voluntary basis.

If the Fifth Circuit panel rules that the Justice Department could not sue Mississippi, that ruling would contradict a recent Eleventh Circuit decision in a Florida case.

Like the Mississippi case, this federal lawsuit alleges that Florida unnecessarily institutionalizes mentally ill or disabled people.

The Eleventh Circuit rejected Florida’s argument that the Justice Department could not sue it directly. Florida then appealed to the Supreme Court, arguing that federal Title II cases can affect “virtually all state and local activities and programs.”

“Through lawsuits brought against states under Title II, the United States has asserted broad authority to alter all kinds of state programs, shifting the balance of power to the federal states,” the state’s petition said.

The Supreme Court recently declined to hear the Florida case. But if the Fifth Circuit reaches a different conclusion than the Eleventh Circuit, the highest court could intervene.

“This is pure speculation, no one knows the reason for the Fifth Circuit’s action, but one possibility here is that if the Fifth Circuit finds that the Department of Justice does not have the authority to bring cases in federal court to enforce Title II, then there will the circuit splits, and that would make it more likely that the Supreme Court would accept a case that raises this issue,” Burnim said.

In addition to the mental health case, the Justice Department has taken legal action against Ocean Springs, Biloxi, Jackson and other cities and counties to enforce Title II compliance. In most cases, this action resulted in a settlement agreement rather than a lengthy lawsuit.

If the DOJ could not sue states directly, individuals or organizations representing a group of such individuals could still sue. But these lawsuits are time-consuming and expensive, and the Justice Department lacks the staff, expertise and resources to pursue them, said Clarence Sundram, an attorney and expert on institutions and community services for the mentally disabled.

“Many times private individuals will complain to the Department of Justice to seek its assistance in such cases for exactly these reasons,” Sundram said. “So ruling that the DOJ has no authority could eliminate a very important way to enforce these laws.”

Advocates for Mississippians with mental illness will also be watching the case closely.

Joy Hogg, executive director of the nonprofit Families As Allies, which advocates for children with behavioral health problems, said she has seen “really good things happen” in the state’s mental health system under the corrections order. But all of this is directly related to the legal process, she said. If the order is overturned — which the Fifth Circuit could do even if it doesn’t strike down the Justice Department’s authority to sue states under Title II — she’s not sure that progress will continue.

“I’m afraid everything might just stop,” she said.

The Fifth Circuit’s website says the court aims to issue opinions within 60 days of oral arguments.







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