¹ United States v. Mississippi, 400 F. Supp. 3d 546 (S.D. Miss. 2019).

² Id. at 548.

³ Id. at 549.

⁴ Id. at 555-64.

⁵ Id. at 575-76, 578-79.

⁶ Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999).

⁷ Id. at 582, 600.

⁸ See Mississippi, 400 F. Supp. at 550 n.3 (referencing Ariana Cernius, Enforcing the Americans with Disabilities Act for the “Invisibly Disabled”: Not a Handout, Just a Hand, 25 Geo. J. Poverty L. & Pol’y 35, 50 (2017) (citations omitted).

Not only are persons with disabilities ‘entitled to reasonable accommodations to a public entity’s services, programs, and activities, … it is discriminatory when an entity fails to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services.’

Id. (quotation marks and citations omitted).

⁹ See Brief of Defendant-Appellant, U.S. v. Mississippi, No. 3:16-CV-622-CWR-FKB (5th Cir. Jan. 10, 2022).

¹⁰ See Isabelle Taft, Federal Judges Appear Ready to End Court Oversight of Mississippi Mental Health Services, Miss. Today (Oct. 5, 2022), [perma.cc/FVX3-S3E7].

¹¹ See Mississippi, 400 F. Supp. 3d at 551-52 (referencing Letter from Thomas E. Perez, Assistant Att’y Gen., U.S. Dep’t of Just. to Governor Haley R. Barbour, State of Miss. (Dec. 22, 2011), https://www.justice.gov/sites/default/files/crt/legacy/2012/01/26/miss_findletter_12-22-11.pdf [perma.cc/ZY79-3SCQ].

¹² See id. at 551 n.4 (“Olmstead is noteworthy for its broad recognition of the rights of people institutionalized in congregate facilities to live and receive needed services and supports in the community. Critically, Olmstead endorsed the congressional finding in the ADA that institutionalization constituted discrimination.” (quoting Robert D. Dinerstein & Shira Wakschlag, Using the ADA’s “Integration Mandate” to Disrupt Mass Incarceration, 96 Denv. L. Rev. 917, 926 (2019)); see also Letter from Thomas E. Perez, Assistant Att’y Gen., U.S. Dep’t of Just. to Governor Haley R. Barbour, State of Miss. (Dec. 22, 2011).

¹³ Letter from Thomas E. Perez, Assistant Att’y Gen., U.S. Dep’t of Just. to Governor Haley R. Barbour, State of Miss. (Dec. 22, 2011), https://www.justice.gov/sites/default/files/crt/legacy/2012/01/26/miss_findletter_12-22-11.pdf [perma.cc/ZY79-3SCQ].

¹⁴ See Taft, supra note 10.

¹⁵ Id.

¹⁶ Id.

¹⁷ Id.

¹⁸ Id.

¹⁹ Id.

²⁰ Letter from the U.S. Ct. of Appeals, Fifth Cir., to the U.S. Dep’t of Just., C.R. Div., Appellate Section, and the Miss. Att’y Gen.’s Off., USA v. Mississippi, No. 21-60772, USDC No. 3:16-cv-622 (Sept. 23, 2022) (referencing United States v. Florida, 938 F. 3d 1221 (11th Cir. 2019); United States v. Sec’y Fla. Agency for Healthcare Admin., 21 F. 4^th 750 (11th Cir. 2011) (en banc)); see also Alexander v. Sandoval, 532 U.S. 276, 286 (2011).

²¹ See Taft, supra note 10.

²² Id.

²³ Id.

²⁴ Paul Lombardo et al., Reflecting on Olmstead: Representing Lois Curtis and Elaine Wilson, 40 J. Legal Med. 27, 35 (2020).

²⁵ See Taft, supra note 10.

²⁶ Id.

²⁷ Id.

²⁸ Martin Luther King, Jr., Quotable Quotes, Goodreads (last accessed Dec. 13, 2022), https://www.goodreads.com/author/quotes/23924.Martin_Luther_King_Jr_[perma.cc/ZGP2-GTJJ] (emphasis added).

²⁹ See Olmstead, 527 U.S. at 581.

³⁰ Id. at 593. The Court recognized that Wilson and Curtis experienced cyclical reinstitutionalization and that institutionalized treatment might be needed from time to time. The Court said: “Some individuals, like L.C. and E.W. in prior years, may need institutional care from time to time to stabilize acute psychiatric symptoms.” Id. at 584.

³¹ See Still Waiting…The Unfulfilled Promise of Olmsted: A Call to Action by the Bazelon Center for Mental Health Law on the 10^th Anniversary of the Supreme Court’s Decision, Bazelon Ctr. for Mental Health L. (June 24, 2009), https://d252ac.a2cdn1.secureserver.net/wp-content/uploads/2017/01/Still-Waiting…The-Unfulfilled-Promise-of-Olmstead.pdf [perma.cc/69VB-J9FL].

³² According to Attorney Charlie Bliss, Georgia kept the issue “live-looking” so as to avoid mootness. Lombardo et al., supra note 24, at 43. Georgia opposed the litigants at every step. Id. Also, the women were “susceptible” to reinstitutionalization, keeping the issue relevant. Id.; see Olmstead, 527 U.S. at 593-94.

³³ See generally Bazelon Ctr. for Mental Health L., supra note 31. Both women made the trip to Washington, D.C. to hear oral arguments. Ms. Wilson lived supervised in an apartment until her passing at age 53 in 2004. See id. For many years, Ms. Curtis lived at home, with supervision, in Metro Atlanta. She worked as a thriving artist and served as a disability rights advocate until her passing in November of 2022. See id.; Sam Roberts, Lois Curtis, Whose Lawsuit Secured Disability Rights, Dies at 55, N.Y. Times (Nov. 10, 2022), https://www.nytimes.com/2022/11/10/us/lois-curtis-dead.html#:~:text=Curtis%20died%20on%20Nov.,her%20aunt%20Shirley%20Traylor%20said. [perma.cc/LC2G-5YV8].

³⁴ Olmstead, 527 U.S. at 583, 600.

³⁵ Id. at 597.

³⁶ Id. at 600-01.

³⁷ Bazelon Ctr. for Mental Health L., supra note 31; Stacie Kershner & Susan Walker Goico, Olmstead at Twenty: The Past and Future of Community Integration: A Letter from the Guest Editors, 40 J. Legal Med. 1, 1 (2020); Samuel R. Bagenstos, Taking Choice Seriously in Olmstead Jurisprudence, 40 J. Legal Med. 5, 5-6 (2020).

³⁸ See Laura L. Rovner, Disability, Equality, and Identity, 55 Ala. L. Rev. 1043, 1054-58 (2004) (discussing both similarities and dissimilarities between the disability rights movement and the Civil Rights Movement).

³⁹ See Bazelon Ctr. for Mental Health L., supra note 31. Not unlike the Civil Rights Movement which delivered Brown, the disability rights movement for mental health has been a rocky road, both pre- and post-Olmstead. Coinciding with the height of the Civil Rights Movement, President John F. Kennedy urged a new approach nationally for mental health in 1963, signing the Community Mental Health Centers Act three weeks before his assassination. This Act “envisioned a nationwide network of innovative community programs to supplant the custodial isolation of state hospitals.” See id. at 4. While inpatient hospitalization fell from its height of 550,000 in 1955, overinvestment in late-stage crisis intervention in lieu of evidence-based approaches contributed to poor outcomes. Instead of continuing the path of innovation, a repeated cycle of “institutionalized segregation, recurrent hospitalizations, arrests, court involvement and homelessness[]—became routine for people with serious mental illnesses.” Id. Likewise, people living with mental illness may be transported to “unprepared families” or “transinstitutionalized” to other group settings such as nursing homes or homeless shelters—places where they may be subject to abuse. Id. Bright spots did emerge during the Carter Administration with President Carter’s commitment to advancing the cause of mental health, an issue championed by his wife, Rosalyn. President Carter created the 1978 President’s Commission on Mental Health. The Commission resulted in the codification of The Mental Health Systems Act of 1980. The law created a comprehensive relationship between the federal and state governments as it relates to approaching mental health services. Regressing, in 1981, Congress repealed the Act under the Reagan Administration. At that time the federal government placed mental health services under a block grant. A bright spot emerged again when President George H.W. Bush signed the ADA in 1990. Title II of the ADA prohibits discrimination on the basis of disability by public service programs. Olmstead was brought under Title II of the ADA. Initially, 26 states signed briefs arguing against federal court intervention in states’ operation of their mental health systems. By the end of the litigation, 19 states had withdrawn their signatures. The ruling in Olmstead represented a huge victory for the disability rights movement. Yet, implementation of Olmstead has been challenging. The same pattern of progressing forward, and seeming to move backwards, has persisted since the Court’s landmark ruling. See id. at 5-6.

⁴⁰ On May 17, 1954, the decision in Brown overruled, effectively, the “separate but equal,” doctrine formalized in Plessy v. Ferguson. The Brown decision found racial segregation in schools to be unconstitutional in violation of the Equal Protection Clause of the Fourteenth Amendment. The ruling impacted twenty-one states with racially segregated schools directly, including a then very racially segregated Mississippi. See Jean Van Delinder, Brown v. Board of Education of Topeka: A Landmark Case Unresolved Fifty Years Later, Nat’l Archives: Prologue (Spring 2004), https://www.archives.gov/publications/prologue/2004/spring/brown-v-board-1.html#:~:text=On%20May%2017%2C%201954%2C%20the,schools%20in%20twenty%2Done%20states [perma.cc/EK8P-W3G2]; Charles C. Bolton, Mississippi’s School Equalization Program, 1945-1954: “A Last Gasp to Try to Maintain a Segregated Educational System,” 66 J.S. Hist. 781, 793 (2000).

⁴¹ Dr. Michael Hogan served as special master. Dr. Hogan had more than forty years of experience in mental health having led statewide mental health systems in New York, Connecticut, and Ohio. In 2002, President George W. Bush appointed Dr. Hogan chairperson of his Presidential Commission on Mental Health. In the instant matter, largely, Dr. Hogan adopted the state’s proposed framework for mental health services. Both Mississippi and the United States submitted their own proposed plans to Dr. Hogan. Dr. Hogan reconciled the two and submitted a remedial plan. Basically, Dr. Hogan accepted the state’s proposal as it related to services for delivery and adopted the United States’ proposal as to how to monitor those services. From there, the district court adopted Dr. Hogan’s proposed recommendations in full. Brief for the United States as Plaintiff-Appellee at 22-23, United States v. Mississippi, No. 21-60772 (5th Cir. Apr. 6, 2022).

⁴² Mississippi, No. 3:16-CV-622-CWR-FKB, at 60.

⁴³ Brief for the Plaintiff-Appellee at 7, 22-23 United States v. Mississippi, No. 21-60772 (5th Cir. Apr. 6, 2022). In April of 2021, Mississippi submitted its report and claimed the case warranted no additional relief. Mississippi said it substantially complied with Title II having addressed the alleged violations or having committed to addressing any remaining violations. Its new DMH Executive Director, Ms. Wendy Bailey, submitted a three-and-a-half page declaration from the Department detailing improvements made since the initial opinion. The DOJ submitted its proposed remedial plan at or about the same time. See id. at 22-23.

⁴⁴ Id. at 7.

⁴⁵ Mississippi, No. 3:16-CV-622-CWR-FKB, at 2-3, 59-60.

⁴⁶ Id. at 2, 16, 19-28, 51. Services offered by the DMH “on paper” include Programs of Assertive Community Training (PACT), which consists of teams comprised of either a community or peer support specialist, nurses, specialists on housing and employment, program coordinators, and therapists. Id. at 2, 17. According to the district court, the state did not make PACT widely available. PACT services were offered by eight teams that covered only fourteen of eighty-two counties. Id. 17-23.

⁴⁷ The court said access to mobile crisis teams was quite “illusory” in many parts of the state, which lacked true access in part because of geographical distance. Id. at 23-24.

⁴⁸ Community support services, or mobile support services, that include medication management and in-home supports were not provided sufficiently. Id. at 18, 25.

⁴⁹ Peer support services, which were provided by certified specialists who had lived experience with mental illness, were “shockingly” low. Id. at 18, 25.

⁵⁰ Supported employment, which helps with wage earning and integration maintenance, was “quite low” with approximately 257 individuals having received supported employment in 2018. Id. At 18, 25.

⁵¹ Permanent supportive housing to include locating affordable housing and providing negotiations with landlords was found to be “grossly underutilized” with only 400 individuals having benefited from the CHOICE housing program, with 2500 units needed. Id. at 26-27.

⁵² Id. at 5. Pursuant to 28 C.F.R. § 35.130(b)(7), public entities must “make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.” Id. The Attorney General drafted the regulations for the ADA. Id. Congress possessed the constitutional authority to grant the Attorney General to “promulgate the regulations under the ADA, and the Attorney General’s regulations [are] themselves within the strictures that Congress had laid down in passing the ADA[.]” Lombardo et al., supra note 24, at 35.

⁵³ Olmstead, 527 U.S. at 581 (citing 42 U.S.C. § 12134(a)).

⁵⁴ Id. at 581.

⁵⁵ Id.

⁵⁶ Id. at 597.

⁵⁷ See id. at 605 (“To maintain a range of facilities and to administer services with an even hand, the State must have more leeway than the courts below understood the fundamental-alteration defense to allow.”).

⁵⁸ See Brief for the United States as Plaintiff-Appellee at 46, United States v. Mississippi, No. 21-60772 (5th Cir. Apr. 6, 2022). The district court analyzed three modifications and determined they did not constitute fundamental alteration. The United States requested the following modifications: a statewide expansion of existing community mental health services, a system connecting individuals with SMI with those community-based services, and appropriate discharge planning to reduce readmissions. Id. Based on the testimony of a senior DMH official, the district court found the DMH had no Olmstead plan in place. Id. at 47. Ultimately, the court determined making the modifications would not be too costly. Id. at 47-49. On appeal, Mississippi dropped the cost-inequity argument. Id. at 49.

⁵⁹ The United States argued that since the district court accepted Mississippi’s own plan, Mississippi should not be able to succeed on a “fundamentally alters” defense. Id. Additionally, Mississippi included PACT and crisis stabilization services in its Medicaid plan statewide, which the DOJ said should prevent Mississippi from availing on a “fundamentally alters” defense. Id.

⁶⁰ Among other things, Mississippi argued financial costs would be too high, but its own witnesses disputed this contention. Id. at 52-53.

⁶¹ Mississippi, 400 F. Supp. 3d at 568-72.

⁶² For example, providers failed to give patients their medications when discharged leading to reinstitutionalization. Id. at 566.

⁶³ Id. at 566.

⁶⁴ Brief for United States as Plaintiff-Appellee at 35, Mississippi, No. 21-60772.

⁶⁵ Id.

⁶⁶ See Olmstead, 527 U.S. at 597.

⁶⁷ See Title II, 42 U.S.C. § 12132.

⁶⁸ Brief for United States as Plaintiff-Appellee at 37, Mississippi, No. 21-60772.

⁶⁹ Id. at 31.

⁷⁰ See Sahar Takshi, Home Sweet Home: The Problem with Cost-Neutrality for Older Americans Seeking Home- and Community-Based Services, 5 Admin. L. Rev. Accord 25, 35-36 (2019) (stating claimants do not have to be institutionalized currently to bring a Title II claim).

⁷¹ The United States pointed to several cases indicating the contrary. See Brief for United States as Plaintiff-Appellee at 37-38, Mississippi, No. 21-60772 (citing Davis v. Shah, 821 F.3d 231, 263 (2d Cir. 2016); Pashby v. Delia, 709 F.3d 307, 321-22 (4th Cir. 2013); Waskul v. Washtenaw City Cnty. Mental Health, 979 F. 3d 426, 460-61 (6th Cir. 2020); M.R. v. Dreyfus, 663 F.3d 1100, 1116-17 (9th Cir. 2011), amended by 697 F.3d 706 (9th Cir 2012); Fisher v. Oklahoma Health Care Auth., 335 F.3d 1175, 1181 (10th Cir. 2003)).

⁷² Olmstead, 527 U.S. at 607.

⁷³ Mississippi, 400 F. Supp. 3d at 575-76.

⁷⁴ Brief for United States as Plaintiff-Appellee at 41-42, Mississippi, No. 21-60772 (quoting U.S. Dep’t of Just., Statement of the Department of Justice on Enforcement of the Integration Mandate of Title II of the Americans with Disabilities Act and Olmstead, L.C. (2011), https://archive.ada.gov/olmstead/q&a_olmstead.htm [perma.cc/K8YC-JCVK] (last updated Feb. 25, 2020).

⁷⁵ The 10th Circuit said that “protections of the integration mandate ‘would be meaningless if plaintiffs were required to segregate themselves by entering an [individual] institution before they could challenge an allegedly discriminatory law or policy that threatens to force them into segregated isolation.’” Brief for United States as Plaintiff-Appellee at 41, Mississippi, No. 21-60772 (quoting Fisher, 335 F.3d at 1181). “Nothing in the Olmstead decision supports a conclusion that institutionalization is a prerequisite to enforcement of the ADA integration requirements.” Id.

⁷⁶ See Letter from the U.S. Ct. of Appeals, Fifth Cir., supra note 20.

⁷⁷ See id.

⁷⁸ John Wooden, AZQuotes, https://www.azquotes.com/quote/578071 [perma.cc/3ZJQ-8G2S] (last visited Dec. 13, 2022) (emphasis added).

⁷⁹ See generally Kristi Bleyer, The Americans with Disabilities Act: Enforcement Mechanisms, 16 Mental & Physical Disability L. Rep. 347, 348 (1992) (describing the enforcement mechanisms available to the Department of Justice under Title II, shortly after the passage of the ADA and the corresponding rules in the CFR).

⁸⁰ See United States v. Florida, 938 F.3d 1221, 1225 (11th Cir. 2019).

⁸¹ See id. at 1224.

⁸² See id. Title II provides that: “[n]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefit of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” Americans with Disabilities Act, 42 U.S.C. § 12132. The term “public entity” encapsulates “any State or local government,” to include “department[s], agenc[ies], or other instrumentalit[ies] of government.” Americans with Disabilities Act, 42 U.S.C. § 1213(1)(A)- (B).

⁸³ See Florida, 938 F.3d at 1225.

⁸⁴ See id. In 2013, the Department of Justice’s suit was consolidated with a class action complaint by a group of children who had similar claims. Id.

⁸⁵ See id.

⁸⁶ See id.

⁸⁷ C.V. v. Dudek, 209 F.Supp.3d. 1279, 1284 (S.D. Fla. 2016), overruled by United States v. Florida, 938 F.3d 1221 (11th Cir. 2019). In dismissing the Department of Justice as a party to the case, the court reasoned that the Attorney General lacked standing to sue an entity under Title II. See C.V. v. Dudek, 209 F.Supp.3d at 1282. Eventually, the district court dismissed the children’s case as well. See Florida, 938 F.3d at 1225. The appeal to the Eleventh Circuit followed. Id.

⁸⁸ See Florida, 938 F.3d at 1250. The Eleventh Circuit concluded that both the legislative history as well as the statute itself supported the position that the Attorney General could bring suit under Title II. The court said: “At the time Congress enacted the ADA, there had been a number of decisions from the Supreme Court and the circuits regarding the availability of an implied private right of action under Title VI and the Rehabilitation Act. If Congress only intended to create a private right of action under Title II, then its decision to cross-reference to § 505 of the Rehabilitation Act, which expressly incorporates Title VI, including its administrative enforcement scheme in § 602, would be mystifying, especially because it had directed the Attorney General to develop regulations that were to be consistent with Rehabilitation Act enforcement procedures that included Title VI enforcement. See 42 U.S.C. § 12134.” Id. at 1242.

⁸⁹ See 28 C.F.R. § 35.170 (2021).

⁹⁰ See 28 C.F.R. §§ 35.172 - 35.173 (2021).

⁹¹ See 28 C.F.R. § 35.174 (2021).

⁹² See Americans with Disabilities: Practice & Compliance Manual § 2:181 (last updated Feb. 2023), which reads in relevant part: The “Attorney General [has] standing to sue state[s] for violations of Title II []; Congress designated ‘remedies, procedures, and rights’ in [the] Rehabilitation Act, which in turn adopted Title VI of [the] Civil Rights Act, as enforcement provision for Title II, Title II used [the] remedial structure based on investigation of complaints, compliance reviews, negotiation to achieve voluntary compliance, and ultimately enforcement through ‘any other means authorized by law’ in event of noncompliance, and Congress was aware when it enacted [the] ADA that [the] Department of Justice had filed suit in federal court to enforce Title VI and Rehabilitation Act.” (referencing United States v. Florida, 938 F.3d 1221 (11th Cir. 2019).

⁹³ See 42 U.S.C. §12133; Florida, 938 F.3d at 1227, 1248.

⁹⁴ See id. at 1239. When cross-referencing the applicable statutes, the Attorney General may bring a lawsuit under Title II for a qualifying complainant. Title VI of the Civil Rights Act, 42 U.S.C. Section 12133, provides any person alleging discrimination with “the remedies, procedures, and rights” set out in the Rehabilitation Act and Title VI and includes the ability to file an administrative complaint that may result, when unresolved, in a suit brought by the Attorney General. See id.

⁹⁵ Florida did not allege that the appeals court’s decision conflicted with any decision of another appeals court. In fact, the DOJ argued that no Court of Appeals had ever addressed the issue. Other than the district court below, which the Court of Appeals reversed, no other district court had made such a ruling. District courts that considered the question found that the Attorney General is authorized to bring suit to enforce Title II. See, e.g., United States v. Mississippi, No. 16-CV-622, 2019 WL 2092569, at *2-3 (S.D. Miss. May 13, 2019), appeal on other grounds pending, No. 21-60772 (5th Cir. filed Oct. 6, 2021); United States v. Harris County, No. 16-CV-2331, 2017 WL 7692396, at *1 (S.D. Tex. Apr. 26, 2017); United States v. Virginia, No. 12-CV-59, 2012 WL 13034148, at *3 (E.D. Va. June 5, 2012); Smith v. City of Philadelphia, 345 F. Supp. 2d 482, 489-90 (E.D. Pa. 2004); United States v. City & Cnty. of Denver, 927 F. Supp. 1396, 1399-400 (D. Colo. 1996); see also Pet. App. 52a-55a (citing cases); see also On Petition for a Writ of Certiorari to the United States Court of Appeals for the Eleventh Circuit, Brief for United States in Opposition at 20, Florida v. United States, 143 S. Ct. 89 (2022) (No. 21-1384), 2022 WL 3587764.

⁹⁶ See Brief for United States in Opposition, supra note 95, at 23.

⁹⁷ See id. at 9. The DOJ noted as well that even if Florida’s contentions were true, this case would not be an appropriate vehicle under which to bring suit as the complainant received Medicaid funds. Because the Medicaid program uses federal funds, the complainant would be able to bring suit under “materially identical substantive provisions of the Rehabilitation Act.” Even Florida conceded the latter point. Id.

⁹⁸ Id. at 4-5 (citing Guidelines for the Enforcement of Title VI, Civil Rights Act of 1964, 31 Fed. Reg. 5277, 5292 (Apr. 2, 1966) (28 C.F.R. § 50.3(c)(I)(B)(1)) (emphasis omitted).

⁹⁹ See Letter Responding to Questions at Oral Argument Pursuant to Federal Rule of Appellate Procedure 28(j) at 1-2, U.S v. Mississippi, No. 21-60772 (5th Cir. Oct. 17, 2022).

¹⁰⁰ See Florida, 938 F.3d at 1221, 1228.

¹⁰¹ Id. at 1244.

¹⁰² Id. at 1244-45; see also 42 U.S.C. § 12133.

¹⁰³ Brief for United States in Opposition, supra note 95, at 12 (first citing Lorillard v. Pans, 494 U.S. 575, 581 (1978); then citing Bragdon v. Abbott, 524 U.S. 624, 644-45 (1993)).

¹⁰⁴ Id. at 11-12.

¹⁰⁵ Id. at 12.

¹⁰⁶ Id. at 12-13.

¹⁰⁷ Id. The coordination regulations can be found in “Part 41 of Title 28, Code of Federal Regulations.” Id.; 42 U.S.C. § 12134(a)-(b).

¹⁰⁸ Brief for United States in Opposition, supra note 95, at 12, n.3 (first citing United States v. Baylor Univ. Med. Ctr., 736 F.2d 1039, 1050 (5th Cir. 1984) (holding that with Rehabilitation Act, agency may use any legally authorized option, including use of federal courts), cert. denied, 469 U.S. 1189 (1985), then citing National Black Police Ass’n v. Velde, 712 F.2d 569, 575 (D.C. Cir. 1983) (holding that it is authorized by law for the Attorney General to bring an action against a recipient when a case is referred to the Attorney General under Title VI, 42 U.S.C. 2000d-1), cert denied, 466 U.S. 963 (1984)).

¹⁰⁹ See Alison Tanchyk, An Eleventh Amendment Victory: The Eleventh Amendment vs. Title II of the ADA, 75 Temp. L. Rev. 675, 680 (2002). At least some critics and supporters alike seem to recognize the basic scheme of Title II. That is, “Title II incorporates the remedial scheme of the Rehabilitation Act, which in turn incorporates the remedial scheme of Title VI of the Civil Rights Act of 1964.” Id. at 680.

¹¹⁰ See John J. Coleman, III & Marcel L. Debruge, A Practitioner’s Introduction to ADA Title II, 45 Ala. L. Rev. 55 (1993). Coleman and Debruge contend that an aggrieved party can file a lawsuit under Title II and a prevailing party, other than the United States, can receive attorney’s fees. Id. at 93-94. The fact that Coleman and Debruge acknowledge that the United States can be a party under Title II supports the DOJ’s contention of common acceptance of U.S. standing under Title II. Id.

¹¹¹ Florida, 938 F.3d at 1221, 1230.

¹¹² Brief for United States in Opposition, supra note 95, at 13.

¹¹³ Id.

¹¹⁴ Id.

¹¹⁵ Id.

¹¹⁶ Id. at 14 (citing H.R. Rep. No. 485, 101st Cong., 2d Sess. Pt. 2, at 98 (1990) and S. Rep. No. 116, 101st Cong., 1st Sess. 57-58 (1989)).

¹¹⁷ Petition for Writ of Certiorari at 17-18, Florida v. United States, 143 S. Ct. 89 (2022) (No. 21-1384).

¹¹⁸ Brief for U.S. in Opposition, supra note 95, at 15.

¹¹⁹ Id. (citing 42 U.S.C. § 12133).

¹²⁰ Id.

¹²¹ 42 U.S.C. § 12101(b)(3).

¹²² Brief for U.S. in Opposition, supra note 95, at 16.

¹²³ Id.

¹²⁴ Id.

¹²⁵ Id.

¹²⁶ Id.

¹²⁷ Id.

¹²⁸ For example, Florida argued that both Title I and Title III of the ADA mentioned the Attorney General specifically, but Title II did not. To counter, the DOJ contended that mentioning the Attorney General in Title II would have been redundant. By cross-referencing Title VI and the Rehabilitation Act, both of which authorize suits by the Attorney General, Title II makes its enforcement mechanism clear. Just as Florida conceded, section 505 of the Rehabilitation Act makes no mention of the Attorney General, but the Attorney General has the authority to bring suit under that statute, nonetheless. The same holds true for Title II. See id. at 17-18.

¹²⁹ See id.; Florida, 938 F.3d at 1221.

¹³⁰ See Taft, supra note 10.

¹³¹ Sam Waterson, QuoteFancy, https://quotefancy.com/quote/1683231/Sam-Waterston-If-you-re-not-moving-forward-you-re-falling-back [perma.cc/5RZC-68MN] (last visited Dec. 13, 2022) (emphasis added).

¹³² Matthew Weber et al., Courting Change, Reuters (Jan. 14, 2021), https://fingfx.thomsonreuters.com/gfx/rngs/TRUMP-EFFECT-COURTS/010080E30TG/index.html [perma.cc/QFT5-TQRP].

¹³³ See Florida, 938 F.3d at 1249.

¹³⁴ Id. at 1249-50.

¹³⁵ Id. at 1250 (citing Alden v. Maine, 527 U.S. 706, 755 (1999)); see, e.g., United States v. Mississippi, 380 U.S. 128, 140 (1995) (stating no “provision of the Constitution prevents or has ever been seriously supposed to prevent” a State from being sued “by the United states”) See Brief for U.S. in Opposition, supra note 95, at 18-19 (stating that a “suit by the United States against a State ‘does no violence to the inherent nature of sovereignty’”) (quoting United States v. Texas, 143 U.S. 621, 645-46 (1892)).

¹³⁶ The Eleventh Circuit made its position clear when it examined the issue. It said that Congress made express inclusion of “any State or local government,” or “any department, agency, special purpose district, or other instrumentality of a State or States or local government …” in its definition of “public entities” under Title II. See 42 U.S.C. § 12131(1)(A)–(B). It noted that Florida has been a state since 1845 which means it fits the statutory characterization directly. The court said, “Florida may have valid complaints about this lawsuit, but whether it is amenable to suit by the United States is not one of them.” See Florida, 938 F.3d at 1250]

¹³⁷ Brief for U.S. in Opposition, supra note 95, at 19.

¹³⁸ These statutes include, but may not necessarily be limited to, Title VI and the Rehabilitation Act as well as Title VII, see 42 U.S.C. § 2000e-5(f)(1); also, it includes Title I of the ADA, 42 U.S.C. § 12112(a), 42 U.S.C. § 12117(a); see 42 U.S.C. § 12111(2), (5); and the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc-2(f). The Supreme Court has at no time indicated any of these statues are subject to a “clear-statement” rule. See Brief For U.S. in Opposition, supra note 95, at 19.

¹³⁹ Brief for U.S. in Opposition, supra note 95, at 21.

¹⁴⁰ Id.

¹⁴¹ Id.

¹⁴² Id.

¹⁴³ Id.

¹⁴⁴ Id.

¹⁴⁵ Florida argued that Title II suits brought by the Attorney General intrude on states’ sovereignty. To the contrary, as the case law permits, private individuals may bring suit either on their own or via class action lawsuits under Title II. Id. (referencing Olmstead v. L. C., 527 U. S. 587, 607; see also Fed. R. Civ. P. 23. See id.

¹⁴⁶ See Taft, supra note 10. See generally Roe v. Wade, 410 U.S. 113 (1973).

¹⁴⁷ Taft, supra note 10.

¹⁴⁸ See generally Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022).

¹⁴⁹ Roe, 410 U.S. at 153, 164-65.

¹⁵⁰ See generally U.S. v. Mississippi, 400 F. Supp. 3d 546 (S.D. Miss. 2019).

¹⁵¹ Jackson Women’s Health Org. v. Dobbs, 379 F. Supp. 3d 549, 553 (S.D. Miss. 2019).

¹⁵² Jackson Women’s Health Org. v. Dobbs, 945 F.3d 265, 266 (5th Cir. 2019).

¹⁵³ See Higginbotham, Patrick Errol, Fed. Jud. Ctr., https://www.fjc.gov/history/judges/higginbotham-patrick-errol [perma.cc/Z85J-KG3L] (last visited Feb. 28, 2023). President Ford nominated Judge Patrick E. Higginbotham to the federal District Court for the Northern District of Texas in 1975 and President Reagan nominated him to the Fifth Circuit Court of Appeals in 1982. Id. See Ho, James C., Fed. Jud. Ctr., https://www.fjc.gov/history/judges/ho-james-c [perma.cc/3485-RE9M] (last visited Feb. 28, 2023). President Trump nominated Judge James C. Ho to the Fifth Circuit in 2017 and he was commissioned in 2018. Id.

¹⁵⁴ See Dennis, James L., Fed. Jud. Ctr., https://www.fjc.gov/history/judges/dennis-james-l [perma.cc/Z9LP-RQWJ] (last visited Feb. 28, 2023). President Clinton nominated Judge James L. Dennis to the Fifth Circuit in 1995. Id.

¹⁵⁵ Nora Howe, Five Takeaways from Dobbs v. Jackson Oral Arguments, All. for Just. (Dec. 6, 2021), https://www.afj.org/article/five-takeaways-from-the-dobbs-v-jackson-oral-arguments/ [perma.cc/J94W-J7SF].

¹⁵⁶ Id.

¹⁵⁷ Howe, supra note 155; Nina Totenberg, Supreme Court’s New Supermajority: What It Means For Roe v. Wade, npr (Dec. 31, 2020, 10:42 AM), https://www.npr.org/2020/12/31/951620847/supreme-courts-new-supermajority-what-it-means-for-roe-v-wade [perma.cc/XB4A-TLA6].

¹⁵⁸ See Lou Kettering, US Chief Justice Roberts Defends Supreme Court’s Legitimacy in First Post-Dobbs Public Appearance, Jurist (Sept. 11, 2022, 1:52 PM), https://www.jurist.org/news/2022/09/us-chief-justice-roberts-defends-supreme-courts-legitimacy-in-first-post-dobbs-public-appearance/ [perma.cc/QU65-C4J3].

¹⁵⁹ See Natalie M. Chin, Group Homes as Sex Police and the Role of the Olmstead Integration Mandate, 42 N.Y.U. Rev. L. & Soc. Change 379, 389 (2018); see also Taft, supra note 10.

¹⁶⁰ See generally U.S. v. Florida, 938 F.3d 1221 (11^th Cir. 2019).

¹⁶¹ Georges St. Pierre, QuoteFancy, https://quotefancy.com/quote/1653104/Georges-St-Pierre-Set-your-goal-and-keep-moving-forward [perma.cc/CJ6V-SGTJ] (last visited Dec. 13, 2022) (emphasis added).

¹⁶² Stacie Kershner & Susan Walker Goico, Olmstead at Twenty: The Past and Future of Community Integration: A Letter from the Guest Editors, 40 J. Legal Med. 1, 1 (2020).

¹⁶³ Id. at 2.

¹⁶⁴ See Talley Wells, Lessons Learned from Georgia’s 2010 Olmstead Settlement: The Good, the Bad, and the Limitations of a Justice Department Olmstead Settlement, 40 J. Legal Med. 45, 48 (2020); Maddy Reinert et al., The State of Mental Health in America 19 (Mental Health Am. ed., 2020)) (referencing that among 50 states and the District of Columbia, Georgia ranked 50 out of 51 in 2020).

¹⁶⁵ Wells, supra note 164, at 45.

¹⁶⁶ See Joseph Shapiro, Justice Increases Efforts to Enforce Olmstead Ruling, NPR (Dec. 3, 2010, 3:39 PM), https://www.npr.org/2010/12/03/131789387/justice-increases-efforts-to-enforce-olmstead-ruling [perma.cc/G99B-Z9C2].

¹⁶⁷ Id. The $77 million settlement would transfer thousands to community settings. Id.

¹⁶⁸ Id.

¹⁶⁹ Id.

¹⁷⁰ Id.

¹⁷¹ Wells, supra note 164, at 45.

¹⁷² Id. at 46.

¹⁷³ Id. at 47.

¹⁷⁴ Id.

¹⁷⁵ See Lombardo et al., supra note 24, at 43 n.29.

¹⁷⁶ Judy Fitzgerald, Ga. Dep’t Behav. Health & Dev. Disabilities, Extension Agreement Overview (2016), https://dbhdd.georgia.gov/organization/be-informed/reports-performance/ada-settlement-agreement. [perma.cc/J6AD-N374].

¹⁷⁷ See Lombardo et al., supra note 24, at 43 n.29; see also Ga Advisory Comm. to U.S. Comm’n on Civ. Rts, Disability Rights and Civil Rights in Georgia 9 (2019), https://www.usccr.gov/pubs/2019/09-09-GA-Disability-Rights.pdf [perma.cc/ZG7Z-TF8A].

¹⁷⁸ Lombardo et al., supra note 24, at 43 n.29; see also Interim Report of the Independent Reviewer at 3, United States v. State of Georgia, No. 1:10-cv-249-CAP (N.D. Ga. Aug. 19, 2019), https://www.justice.gov/crt/case-document/file/1210601/download [perma.cc/3XJK-CG3M].

¹⁷⁹ Wells, supra note 164, at 52.

¹⁸⁰ Id.

¹⁸¹ Isabelle Taft, ‘A Screeching Halt’: Judges’ Question in Mental Health Lawsuit has Implications Beyond Mississippi, Miss. Today (Oct. 4, 2022), https://mississippitoday.org/2022/10/04/judges-question-in-mental-health-lawsuit-implications/ [perma.cc/3VVL-2WB6].

¹⁸² Id.

¹⁸³ Mississippi, 400 F. Sup. 3d 546, 578.

¹⁸⁴ Id. at 578-79.

¹⁸⁵ Id. at 579.

¹⁸⁶ Melody Worsham, Melody Worsham: Open Letter to Mississippi Attorney General Lynn Finch Regarding U.S. v. Mississippi, Families as Allies (Oct. 22, 2021), https://www.faams.org/melody-worsham-open-letter-to-mississippi-attorney-general-lynn-fitch-regarding-u-s-v-mississippi/ [perma.cc/25TY-N94F].

¹⁸⁷ Id.

¹⁸⁸ Id.

¹⁸⁹ Id.