# Appendix — Cohen v. Clark > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_2530%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1986 - **Citation:** 479 U.S. 962 ## Text (2) — | a S6-486 [5 Y f upreme Court, U.S, = ¢ FILE D IN THE SUPREME COURTYQF THE JOSEPH F. UNITED STATES SPANIQ 7 tee L, UR. OCTOBER TERM, 1986 NO ~~ ” Wb -~'ap WALTER S. COHEN, et al., Petitioners Vv. CAROLYN CLARK, Respondent PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT APPENDIX Le ROY S. ZIMMERMAN Attorney General BY: *JOHN G. KNORR, III Senior Deputy Attorney General ANDREW S. GORDON Chief Deputy Attorney General ALLEN C. WARSHAW Executive Deputy Attorney General Office of Attorney General 15th Fl., Strawberry Square Harrisburg, PA 17120 (717) 783-1471 -la- VO ee Oe eg ee ee ee seer p= rire y; 2. rt? oa TABLE OF CONTENTS PAGE OPINION OF THE COURT Ba OF Pigg OLS errs ee Te ee ee OPINION AND ORDER OF Gg THE DISTRICT COURT...... eaves /2 AGREED STIPULATION OF ET -2a- UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT NO. 85-1452 CAROLYN CLARK Vv. WALTER S. COHEN, Individually and in his official capacity as Secretary of the Department of Public Welfare, Commonwealth of Pennsylvania, JENNIFER L. HOWSE, Individually and in her official capacity as Deputy Secretary for Mental Retardation of the Pennsylvania Department of Public Welfare, Commonwealth of Pennsylvania, RUSSELL G. RICE, JR., Individually and in his official Capacity as Commissioner of Mental Retardation, Southeast Region, Department of Public Welfare, Commonwealth of Pennsylvania, S. REEVES POWER, Individually and in his official capacity as Superintendent of Laurelton Center, RICHARD C. SURLES, Individually and in his official capacity as the Mental Health and Mental Retardation Administrator of Philadelphia County, C. EVERETT CORNMAN, CENTRALIZED COMPREHENSIVE HUMAN SERVICES, INC., JAMES F. WOOD, in his official capacity as the Acting Director of the JFK Community Mental Health/ Mental Retardation Program, SCOTT McBRIDE and FLORENCE KIRSHHEIRMER Walter S. Cohen, Jennifer L. Howse, Russell Rice and S. Reeves Power, Appellants -3a- (D.C. Civil NO. 84-3383) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA Argued: March 3, 1986 Before: GIBBONS, SLOVITER an BECKER, Circuit Judges (Opinion Filed: June 26, 1986) LeROY S. ZIMMERMAN Attorney General JOHN G. KNORR, III (ARGUED) Senior Deputy Attorney General ANDREW S. GORDON Chief Deputy Attorney General ALLEN C. WARSHAW Executive Deputy Attorney General Office of Attorney General 15th Fl., Strawberry Square Harrisburg, PA 17120 Attorneys for Appellants -4a- STEPHEN F. GOLD, ESQUIRE (Argued) 1315 Walnut St. Suite 1632 Philadelphia, PA 19107 ILENE W. SHANE, ESQUIRE. CARYL ANDREW OBERMAN, ESQUIRE 2100 Lewis Tower Building Philadelphia, PA 19102 Attorneys for Appellee THOMAS K. GILHOOL, ESQUIRE JUDITH A. GRAN, ESQUIRE TIMOTHY A. COOK, ESQUIRE PUBLIC INTEREST LAW CENTER OF PHILADELPHIA 1315 Walnut Street, Suite 1632 Philadelphia, PA 19107 Attorneys for Amicus Curiae ~~ OPINION OF THE COURT GIBBONS, Circuit Judge: Walter S. Cohen, Secretary of the Department of Public Welfare of Pennsylvania, Jennifer L. Howse, Deputy Secretary for Mental Retardation of that Department, Russell G. Rice, Jr., Com- missioner of Mental Retardation, South- east Region of that Department, and S. Reeves Power, Superintendent of Laurel- ton Center (the Commonwealth defendants ) appeal from an injunction entered by the district court on June 21, 1985, di- recting that they release the plaintiff, Carolyn Clark, from Laurelton Center and pay for a program of services for Clark outside that state institution. The injunction resolves Clark's claims’ for -6a- injunctive relief, but not her claims for money damages. We have jurisdiction under 28 U.S.C. § 1292(a)(1)(1982). We affirm. I. Clark is a forty-five year old woman who was confined at Laurelton Center, a state run institution, for care of the mentally retarded from the time she was fifteen years old until she was released as a result of the order appealed from. In July of 1984. she filed a complaint against the Common- wealth defendants, and several officials of and contractors for the County of Philadelphia (County defendants), al- leging that her confinement at Laurelton violated her first and fourteenth amend- ment rights and her rights under several — federal and state statutes. The com- plaint as amended sought declaratory, injunctive, and monetary relief. Clark contended that she should not have been confined at Laurelton, and that as a result of her long confinement she could not immediately function in a completely unstructured environment. Thus she sought short-term placement in a community living arrangement (CLA) 1 supervised by the County defendants. After extensive discovery, the parties filed a 183-pargragraph stipu- lation as to the truth, but not neces- sarily the relevancy, of certain facts. lthe relationship between the counties and the Commonwealth with re- spect to community living arrangements is described in detail in Halderman v. Pennhurst State School & Hosp., 612 F.2d 84, 92-93 (3d Cir. 1979)(en banc), rev'd and remanded on other grounds, 451 U.S. 1 (1981). -8a- Prior to any hearing the County defen- dants and Clark reached a_ settlement under which they agreed to place her in a CLA within 120 days, provided the Com- monwealth defendants paid the cost of such placement. The County defendants also agreed to develop’. for Clark a community placement best suited to her needs, and to have expert witnesses testify on her behalf as to the appro- priateness of the proposed community placement and the necessity for. such placement. On May 28, 1985 the district court commenced a hearing on Clark's application for preliminary injunctive relief. Her counsel represented to the court that he would present, in addition =9a= to the stipulated facts, the testimony of several witnesses, but that the stip- ulation and those witnesses would com- prise Clark's entire case on injunctive relief. The court therefore treated the hearing as an application for a perma- nent injunction. Clark presented her own testimony, the testimony of her caseworker at Laurelton, of the Super- intendent of Laurelton, of the Director of Social and Rehabilitative Services at Laurelton, of the Director of the Bureau of Planning and Resource Allocation of the Department of Public Welfare, and of several expert witnesses. The stipu- lation of facts executed by the parties was admitted into evidence, together with fifty-six exhibits. The exhibits included the Laurelton records with respect to Clark's stay there. The attorney for the Commonwealth cross- -10a- examined the witnesses offered on Clark's behalf, but introduced no evidence in opposition to the appli- cation for injunctive relief. On June 21, 1985 the trial court filed detailed findings of fact and conclusions of law. Noting that the parties had entered into a comprehensive stipulation of facts, the trial court wrote that his narrative statement "to- gether with the stipulation constitutes my findings of fact." Clark v. Cohen, 613 F. Supp. 684, 686 (E.D. Pa. 1985). Thus in reviewing the trial court's findings of fact we must look both to the narrative statement and to the stip- ulation. Reference to those _ findings will be made hereafter as relevant to the Commonwealth defendants' legal con- tentions. -lla- The trial court held that Clark had been didi of liberty without procedural due process of law and of substantive liberty interests guaranteed by the fourteenth amendment. The court, therefore, determined that she was en- titled to injunctive relief. The court entered an order directing the County defendants to take those steps on Clark's behalf which they had agreed to take in the settlement; namely devel- oping a program of community services for her which would permit her to live in a CLA. The court further instructed the Commonwealth defendants to "“immedi- ately commit to Philadelphia Mental Health Mental Retardation those _ funds necessary to pay for the program of community services" and to "arrange for -12a- the transfer of plaintiff to this program." Joint Appendix at 50. This appeal by the Commonwealth defendants followed. Ii. Because the injunction was not stayed, the County defendants proceeded to develop a plan for Clark's placement in a CLA, and she was released from Laurelton. On February 2, 1986 reports in the press disclosed that the Common- wealth defendants no longer opposed her release, and would not seek her return if they prevailed on appeal.” This court requested counsel to comment on the possible mootness of the appeal in 2The Philadelphia Inquirer, February 2, 1986, §$ I, at 1, col. l. -l3a- light of the fact that the Commonwealth defendants no longer sought to have Clark returned to Laurelton. Both parties contend, and we agree, that the appeal is not moot. A mootness voxiin would require that the underlying order be vacated. See United States v. Munsingwear, 340 U.S. 36, 39- 40 (1950). That might result in the withdrawal of community services now being furnished by the County defen- dants, since Clark's settlement with them is contingent upon funding by the Commonwealth. The Commonwealth, while it has no intention of seeking her return to Laurelton, is unwilling to continue such funding if it can obtain relief from the funding provision in the injunction. While a vacation of the injunction would accomplish all the relief the Commonwealth now seexs, ‘t -l4a- would deprive Clark of a = significant protection. Thus we must address the merits of the Commonwealth defendants' appeal. III. The appeal presents two inde- pendent contentions. The Commonwealth defendants first urge that, assuming they violated Clark's substantive and procedural rights, the eleventh amend- ment bars any relief other than an order releasing her from their custody. They contend, alternatively, that no relief waS proper because no violations of Clark's constitutional rights ever occurred. A. The Eleventh Amendment Contention -l5a- The diffrict court found that the violation of Clark's constitutional rights by her long, illegal confinement at Laurelton without proper treatment caused a deterioration in her ability to function at the present time in an un- structured environment. "But for the then well-intentioned intervention of the state," the court observed, "Ms. Clark could most likely have lived an average life." 613 F. Supp. at. 707. The Commonwealth stipulated that "[iJn the opinion of [James] Pelter and Eliza- beth Kaster, [two members’ of the] Laurelton Center social service staff, Carolyn Clark's need for support ser- vices stems primarily from her insti- tutionalization since age 15." Joint Appendix at 376. No evidence - con- flicting with that opinion was offered -l6a- by the Commonwealth defendants. They Stipulated further that "CsJince at least 1976, it has been the recom- mendation of the team at Laurelton Center that Carolyn Clark be placed in a community living arrangement." Joint Appendix at 377. It was stipulated that as long ago as 1976 her Laurelton case worker recommended "that she would be most appropriate for a supervised foster home or group placement." Joint Appendix at 378. It was also stipulated that it was the opinion of Laurelton case worker James Pelter, who was’7 familiar with Clark's case, "that her major difficul- ties were in the behavioral area and that these difficulties were largely due to being institutionalized since age SP Joint Appendix at 383. Having Stipulated that their own professional staff members attributed Clark's present need for supervision to her long insti- tutionalization, and having offered no contrary evidence, the Commonwealth de- fendants are in no position to question the trial court's finding that the violations .of her rights caused_ such deterioration of her ability to cope in society that she needs some form of supervised remediation if she is ever to be able to do so. Indeed the Commonwealth defen- dants do not seriously dispute that Clark's need for present remediation is the result of her long confinement. In their initial brief, they argue that she sought and the trial court recognized a constitutional right to treatment out- side an institution unrelated to any prior violation of her rights. Appel- lants' Brief at 17-19. Clark's brief points out, quite correctly, however, -18a- that the trial court did nothing of the kind; rather, it ordered a remedy for the past constitutional violations which it found. Appellee's Brief at 37-38. Subsequently, the Commonwealth defendants brought forth the argument we now address; namely that the supervised community living arrangement which has been ordered, being a form of remedia- tion or compensation for past injuries, is barred by the eleventh amendment, even in a suit against state officers seeking equitable relief. Appellants' Reply Brief at 3-9. The Commonwealth defendants note, correctly, that the equitable relief which the trial court ordered--the development and imple- mentation of a plan for Clark's place- ment in a CLA until she can function in society without supervision--involves the expenditure of Commonwealth funds. -19a- They rely on Edelman v. Jordan, 415 U.S. 651 (1974), as authority for the proposition that equitable relief re- quiring the expenditure of state funds © to remedy past wrongs is never permis- sible. The precise contention made by the Commonwealth defendants has_ been rejected by the Supreme Court. In Milliken v. Bradley, 433 U.S. 267 (1977) (Milliken II), the governor and other state officials of Michigan, who had been found to have participated in the maintenance of an unconstitutionally segregated school eten in Detroit, were ordered to fund one-half of the remedial educational programs ordered for the purpose of undoing the harm done to black pupils by prior’ segregated schooling. Id. at 275-77. Relying on Edelman, the state officials argued that -20a- the eleventh amendment barred such "com- pensatory" relief. The Court resound- ingly, and in this respect unanimously, rejected that contention, writing: The decree to share the future costs of edu- cational components in this case fits squarely within the prospective- compliance exception re- affirmed by That exception, had its genesis Edelman. which in Ex parte Young, 209 U.S. 123 (1908), permits fed- eral courts to enjoin state officials to con- form their conduct’ to requirements of federal law, notwithstanding a direct and substantial impact on the State treasury. 4i3. U.8 at 667. The order’ chal- lenged here does no more than that. The decree requires state offi- Ccials, held responsible for unconstitutional conduct, in findings which are not chal- lenged, to eliminate a de jure segregated school - system. More precisely, the burden of state officials is that set forth in Swann ([v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971)J--to take the necessary steps "to eliminate from the public schools all vestiges of state-imposed segrega- tion.” 2 U.@. at i135. The educational compo - nents, which the District Court ordered into effect prospectively, are plain- ly designed to wipe out continuing conditions of inequality produced by the inherently unequal dual school system long maintained by Detroit. These programs were not, and as a practical Matter could not be, in- tended to wipe the slate clean by one bold stroke, as could a_ retroactive award of money in Edel- man. Rather, by the nature of the antecedent violation, which on this record caused signifi- cant deficiencies in communications skills-- reading’ and speaking-- the victims of Detroit's de jure segregated sys- tem will continue to experience the effects of segregation until such future time as the remedial programs can -22a- help dissipate the con- tinuing effects of past misconduct. Reading and speech deficiencies can- not be eliminated by judicial fiat; they will require time, patience, and the skills of spe- cially trained teach- ers. That the programs are also "compensatory" in nature does not change the fact that they are part of a plan that op- erates prospectively to bring about the delayed benefits of a unitary school system. We there- fore hold that such prospective relief is not barred by the Elev- enth Amendment. Id. at 289-09 (footnotes omitted). Milliken II is therefore controlling unless, as the Commonwealth urges, it has since been overruled. Somewhat obliquely the Commonwealth suggest that Milliken II was overruled in Pennhurst State School & Hospital v. Halderman, 465 U.S. 89 (1984). To the contrary, that case reconfirmed that "the federal -23a- court may award an injunction that governs the official's futur conduct, but not one that awards retroactive monetary relief." Id. 102-03 (emphasis supplied). No monetary relief has thus far been awarded to Clark. Given the square holding in Milliken II that a federal court may order state officials to fund from the state treasury remedial measures found | necessary to undo the harmful effects of ie) past constitutional violations, we ho that the Commonwealth defendants elev- enth amendment argument is meritless. B. The Violations Having rejected their eleventh amendment contention, we must iddress the Commonwealth je fendants' "ontention that Clark's constitutional riahts were -24a- not vislete.* The trial court held that she had been confined at Laurelton 3Clark suggests that the relief afforded to her was required by section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §794 (1984). The trial court rejected this contention. See 613 F. Supp. at 690-96. Section 504 prohibits discrimination against the handicapped in federally funded programs. It im- poses no affirmative obligations on the states to furnish services. See South- eastern Community College v. Davis, 442 U.S. 397, 411 (1979); Kentucky Ass'n for Retarded Citizens v. Conn., 674 F.2d 982, 32955 (6th Cir. 1982), aff'g, 510 F. Supp. 1233, 1243-44 (W.D.Ky. 1980) ; Halderman v. Pennhurst State School & Hosp., 612 F.2d 84, 120-21 (3d Cir. 1979)(en bwbanc)(Seitz, Jr., dissenting), rev'd and remanded on other grounds, 451 U.S. 1 (1981); Sabo v. O'Bannon, 586 F. Supp. 1132, List (Beus Pa. 1984); Manecke Vv. School Bd. of Pinellas County, Fla., 553 F. Supp. 787, 790 n. 4 (M.D. Fla. 1982); Garrity v. Gallen, 522 F. Supp. 171, 209 (D.N.H. I981). The district court found that Clark failed to prove that she was’ discriminated agalnst On the basis of her handicap. That finding is not clearly erroneous. Thus section 504 does not provide a statutory ground for affirmance which would avoid the necessity of reaching the constitutional law issues on which she prevailed. -25a- in violation of substantive liberty in- terests and procedural due process rights. In 1956 Clark, a fifteen-year old Philadelphia resident, was involun- tarily and indefinitely committed to Laurelton as a result of a petition filed pursuant to section 326 of the Mental Health Act of 1951. See Pa. Stat. Ann. tit. 50, § #1201 #£=(Purdon 1952), repealed by Mental Health and Mental Retardation Act of 1966, 1966 Pa. Laws 96 (codified at Pa. Stat. Ann. tit. 50, §§ 4101-4704 (Purdon 1969). The petition was filed on November 8. 1956 and approved by a state court the next day. Clark received no notice of the petition, and no hearing was held on it. On November 11, 1956 she was trans- ported to Laurelton, in Union County, -26a- Pennsylvania, at least four, hours away from her Philadelphia home. Laurelton is an institution housing severely mentally retarded persons. Although the petition which resulted in her incar- Ceration described her as "severely defective, “ tests administered at Laurelton shortly after her arrival revealed that she was in the mild range of mental retardation with an IQ of roughly 60. Her IQ tests have re- Mained fairly constant since. Her IQ is much higher than the overwhelming number of Laurelton residents, and she has always functioned at a higher level than most of the other Laurelton inmates. The 1956 test and all subsequent tests differ significantly from the "severely defective" diagnosis in the petition which resulted in her commitment. -27a- The trial court found that soon after Clark was sent to Laurelton she expressed to the officials in charge of her custody her displeasure at being committed there against her will. The court found that she continued to pro- test her detention up to the time of the hearing, a period of over twenty-eight years. Despite her continuing protests, the court found, she never en a hearing regarding the propriety of ei- ther her initial commitment or her con- tinued detention. In 1962, when she had been held at Laurelton for six years, Clark reached the age of majority. Her commitment was not reviewed at that time. In 1966 the statute under which she had been committed was’ repealed. Her commitment was not reviewed under -28a- the provisions of the new statute. In 1976, when Clark had been detained at Laurelton for twenty years, the commitment provisions of the 1966 statute were held to be unconstitu- tionally vague. See Goldy v. Beal, 492 F. Supp. 640 (M.D. Pa. 1976) (three- judge court). The Goldy court issued an order establishing new- and stricter standards for involuntary commitments. Id. at 649-50. Clark's commitment was not reviewed under these court-ordered standards. Neither the Commonwealth defendants nor the County defendants have any established procedure for initiating judicial review of indef- inite, involuntary commitment, either when the committed person requests such review, Or when members of institutional -29a- staffs conclude that the person 0»no longer needs institutionalization. Both Clark and members of the institutional staff periodically requested judicial review of her commitment, but such review never occurred. The professional | staff at Laurelton, including Clark's Ledetenne team, has agreed, at least since 1976, that Clark did not belong there, but should have been transferred to a com- munity residential facility where_- she could learn to live independently. The stipulation of facts details the various steps that have been taken since 1976 by staff members to convince the Common- wealth defendants to place Clark in a less restrictive environment than Laurelton and to obtain a hearing on her commitment. All of those efforts were in vain. The trial court found, -30a- Although all the avail- able professional opin- ion strongly favors a CLA for plaintiff, and has for the last nine years, plaintiff remains at Laurelton. The pri- mary forces which have kept her there appear to be bureaucratic inepti- tude and insufficient allocations of funds to community residence pro- grams. 613 F. Supp. at 689. Thus we are dealing with a plaintiff who was committed without notice or a hearing as the result of a petition containing an incorrect diag- nosis, and who was retained against her will without a hearing for over twenty- eight years. Moreover we are dealing with a plaintiff who repeatedly request- ed that the persons in charge of her de- tention arrange for such a hearing, re- quests which were endorsed by the pro- fessional staff of the institution. -3la- Finally, we are dealing with a plaintiff as to whom the professional staff of the institution recommended against the kind of treatment to which she was_) sub- jected. The trial court concluded that Clark's continued commitment at Laurel- ton violated procedural due process in that she never received an adequate hearing as to the propriety of her con- tinued confinement. See 613 F. Supp. at 701. The trial court also concluded that Clark's substantive rights not to be unnecessarily institutionalized and to receive the minimally adequate train- ing which was the onty purpose for her commitment were violated. Id. at 705. (1) Procedural Due Process Clark contends that her initial commitment in 1956 violated due _ pro- cess. The trial court did not rely on -32a- any process deficiency in the original commitment. See 613 F. Supp. at 698. The court concluded, however, and we agree, that due process required period- ic reviews of her continuing need for institutionalization. Id. at 698-701. Periodic reviews are required because if the basis for a commitment ceases to exist, continued confinement violates the substantive liberty interest in freedom from unnecessary restraint. See O'Connor v. Donaldson, 422 U.S. 563, 574-75 (1975). As the Supreme Court has declared, "due process reguires that the nature and duration ed commitment bear some reasonable relation to the purpose for which the individual is committed." Jackson v. Indiana, 406 U.S. 715, 738 (1972). See also McNeil v. Director, Patuxent Institution, 407 U.S. 245, 249- 50 (1972); Rennie v. Klein, 653 F.2d -33a- 636, 845: (34 Cir. 1981), vacated on other grounds, 458 U.S. 1119 (1982) on remand, 720 F.2d 266 (3d Cir. 1983). In Parham Vv. ‘a 442 U.S. 584, 607 (1979), the Court confirmed that the need for commitment must be reviewed periodically by a neutral factfinder. The Commonwealth conceded in the district court that Clark was en- titled to periodic review of her com- mitment. See 613 F. Supp. at 700. It contended, however, that the review process afforded to Clark within the walls of Laurelton satisfied due pro- cess. That process conaiated of medical and psychological reviews. As the trial court found, however, since at least 1976 those reviews have consistently recommended that Clark be released from Laurelton, but the reviewers lacked the authority to implement their recommenda- tions. The hearing required by the due -34a- process clause is not a moot court exer- cise. The hearing tribunal must have the authority to afford relief. See Parham, 442 U.S. at 607. Thus the trial court did not err in holding that Clark has been de- prived of her liberty to be free from commitment without procedural due pro- cess. Over the course of more _ than twenty-eight years she was never afford- ed a hearing before any decisionmaker with authority to resolve her dispute with those who were confining her. (2) petiiniiklc ti Due Process The trial court also held that Clark‘s confinement at Laurelton since at least 1976 in the face of unanimous professional opinion that she should be placed in a far less restrictive envi- ronment violated her substantive liberty -35a- right to appropriate treatment. See 613 F.Supp. at 706. This holding is consis- tent with Youngberg v. Romeo, 457 U.S. 307, 321 (1982), which sets forth "the proper balance between the interests of the State and the rights of the involun- tarily committed to reasonable condi- tions of safety and freedom from unrea- sonable restraints." Romeo requires that restraints be imposed only to the extent required by the judgment of profession- als in charge of the involuntarily com- mitted, and that the involuntarily com- mitted receive minimally adequate train- ing. Id. at 321-25. See also Thomas S. v Morrow, 781 F.2d 367 (4th Cir. 1986). The stipulated facts establish that Clark was confined at Laurelton rather than released to a CLA, and was deprived of the training for community living which’ she could have received at -36a- lai elaeeeanelll a CLA, despite professional judgment, unanimous since 1976, that she should be released from Laurelton and receive such training. Based on these findings, we agree with the district court and hold that her substantive liberty right to appropriate treatment under Romeo was violated. IV. This appeal is not moot. The eleventh amendment does not bar the re- lief which was- ordered. The trial court's findings of fact amply support the legal conclusion that Clark's procedural and substantive due process rights were violated. The judgment appealed from will therefore be affirmed. -3/a- BECKER, Circuit Judge, concurring: I agree with the majority that this case is not moot; hence, I join in part II of its opinion. I also agree that 29 U.S.C. § 794 (1984) does not afford Ms. Clark the relief she seeks. See Maj. Op. 13-14 n. 3 (29 U.S.C. § 794). I believe, however, that the majority's eleventh amendment analysis, Maj. Op. at 8-13, is incorrect, and that the eleventh amendment '- prevents Ms. Clark from receiving compensation for alleged violations of her constitu- tional rights occurring during her 29- year confinement at Laurelton center.+ I would, nevertheless, grant Ms. Clark l Because of my position on the eleventh amendment, I do not reach the merits of Ms. Clark's allegations of unconstitutional deprivations while at Laurelton, discussed by the majority in part III.B of its opinion. -38a- the relief she seeks on a different ground: not as compensation for historical constitutional depri- vations, but on account of her present constitutional right to treatment. I therefore concur in the judgment affirm- ing the district court's order. In part I of this concurrence, I shall explain my difference with the majority's eleventh amendment analysis. In part II, I shall identify Ms. Clark's right to treatment, describe its extent and limits, and explain its relevance in this case. I. The majority holds that Ms. Clark is entitled to relief now because of violations of her rights to proce- dural due process over. the past 29 years, Maj. Op. at 17-19, and violations -39a- of her substantive due process rights since 1976, Maj. Op. at 19-20. I be- lieve that this analysis, which pre- dicates relief on historical violations of Ms. Clark's constitutional rights, is barred by the eleventh amendment. A. The Prospective-Retrospective Distinction in the Eleventh Amendment Jurisprudence Al though there is currently much scholarly debate about the origin and meaning of the eleventh amend- ment,“ the Supreme Court has_~ spoken clearly on the matter. Ever since Ex Parte Young, 209 U.S. 123 (1908), the rule has been that the.eleventh amendment 2See, e.g., Fletcher, A Historical Interpretation of the Eleventh Amend- ments: A Narrow Construction of an Affirmative Grant of Jurisdiction Rather (FOOTNOTE CONTINUED) -40a- does not permit federal courts to enter- tain suits against states in which the complainants seek compensation for historical violations of federal rights, but that the federal courts do have the (FOOTNOTE CONTINUED) than a Prohibition Against Jurisdiction, 35 Stan. L. Rev. 1033 (1983); Gibbons, The Eleventh Amendment and State Sover- eign Immunity: A _ Reinterpretation, 83 Colum. L. Rev. 1889 (1983) C. Jacobs, The Eleventh Amendment and Sovereign Immunity (1972); Field, The Eleventh Amendment and Other Immunity Doctrines, 126 U. Pa. L. Rev. 515, 1203 (1978); Nowak, The Scope of Congressional Power to Create Causes of Action Against State Governments and the History of _the Eleventh and Fourteenth Amendments, 75 Colum. L. Rev. 1413 (1975); Orth, The Interpretation of the Eleventh Amend- ment, 1798-1908: A Case Study of Judicial Power, 1983 U. Ill. L. Rev. 423; Shapiro, Wrong Turns: The Eleventh Amendment and the Pennhurst Case, 98 Harv. L. Rev. 61 (1984) ; Engdahl, Immunity and Accountability for Positive Governmental Wrongs, 44 JU. Colo. L. Rev. 1 (1972). -4la- power to protect against states > con- tinuing violations of federal rights. See, e.d., Green Vv. Mansour, iF ’ 106 S. ct. 423, 425-26 (1985); - Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 102-03 (1984); Quern v. Jordan, 440 U.S. 332, 337 (1979); Edelman v. Jordan, 415 U.S. 651, 668 (1974). The Supreme Court has summarized its interpretation by saying that prospective relief is permitted whereas retrospective relief is not. See Quern v. Jordan, 440 U.S. at 337. The distinction between pro- spective and retrospective relief "will not in many instances be that between 3youn insisted that the complainant sue the responsible state official rather than the state itself. We are unconcerned with that legal fiction here. -42a- night and day," Edelman v. Jordan, 415 U.S. at 667, and the Court has thus enunciated a standard for determining wh@iher relief is prospective or ret- rospective: it is retrospective, and hence barred by the eleventh amendment, if it is "measurable in terms of a monetary loss resulting from a past breach of a legal duty on the part of the defendant state officials." Id. at 668. Application of this standard to the majority's solution in the instant case raises two questions: (1) is the relief sought -- placement in the com- munity living arrangement (CLA) -- “measurable in terms of a monetary loss,"? and (2) does it (according to the majority's theory of the case)" result{] from a past breach of a legal duty" by the state? -43a- The answer to both questions is "yes." I do not see Ms. Clark's loss of liberty, albeit tragic and outrageous, as different in kind from any of the other losses of liberty for which courts regularly recompense victims. -In her demand for relief in this case, Ms. Clark seeks two million dollars to remedy the alleged violations of her substantive and procedural due process rights. Ms. Clark's desired remedy is thus "measurable in terms of a monetary loss." As to the second question, the Majority clearly holds that Ms. Clark must be placed in the CLA because her due process rights have, for the past 29 years, been violated by the officials at Laurelton. See Maj. Op. at 10. There is therefore no doubt that the remedy is on account of a past breach of the state's legal duty to Ms. Clark. Because the -44a- answer to both of these questions is in the affirmative, the majority's theory of the case is thus foreclosed by the eleventh amendment. This conclusion comports’ with the Eighth Circuit's decision in Miener v. Missouri, 673 F.2d 969 (8th Cir.), cert. denied, 459 U.S. 909 (1982), in which the plaintiff, a sufferer of "serious learning disabilities and behaviorial disorders," id. at 972, requested compensatory educational services from the state defendants on the ground that she had been unconsti- tutionally denied a free education on account of here condition. The court held the plaintiff's suit barred by the eleventh amendment. -45a- An award of tuition reimbursement would clearly be barred as an award of damages for past breach of legal duty under this test. Riley v. Ambach, 508 F. Supp. 1222, 1248 (E.D.8.Y. 1980). We view the request for compensatory services as practically indistin- guishable from a request for such reimbursement. Compensatory services, like the award of a money judgment, would be measurable against past educational deprivation. The expenditure of state monies to provide com- pensatory services would not, in other words, ensure “compl iance in the future with a substantive federal question determination." Edelman w. Jordan, supra, 415 U.S. at 668, 94 S. Ct. at 1358 (en- phasis added). We con- clude that the eleventh amendment bars the award of such compensatory re- lief as appellant has requested. [Citations omitted]. Miener v. Missouri, 673 F.2d at 982. See also Max M. v. Thompson, 566 F. Supp. 1330, 1336-37 (N.D. I11. 1983) -46a- | | (relying on Miener to deny claim for compensatory educational services). The Ninth Circuit has recently adopted the Miener analysis in Alexopulos v. Riles, 784 F.2d 1408, 1412 (9th Cir. 1986). I believe that the Miener analy- sis is correct and fully applicable in this case. B. The Meaning of Milliken II The majority relies on Milliken v. Bradley, 433 U.S. 267 (1977) (Milliken II) in finding that the Eleventh Amend- ment is not a bar to Ms. Clark's suit. Because Milliken II is’7 critical to the 4The district court later reversed itself on this point, explaining that it was constrained by dictum in Timms v. Metro. Sch. Dist. of Wabash County Ind., 722 F.2d 1310 (7th Cir. 1983), which had been decided after the first Max M. decision. See Max M. v. Thompson, 585 FP. Supp. 317, 324 (N.D. Ill. 1984). -47a- majority's position, and because’ the lessons to be drawn from it are not entirely clear, it is necessary to review that decision at some length. In Milliken II, the district court found that the City of Detroit had practiced de jure segregation for many years. The district court therefore ordered a busing program and a remedial education program, funded by the state defendants, for those children who had attended the worst schools in the sys- tem. The Supreme Court upheld the plan against an eleventh amendment challenge on the grounds that the remedial plan was necessary to "“‘eliminate from the public schools all vestiges of state- imposed segregation.'" Milliken II, 43 U.S. at 290 (quoting Swann v. Char- lotte-Mecklenburg Board of Education, 4602 U.8 i, 3235 €297i 33. The Court went ons: -48a- | [Bly the nature of the antecedent violation, which on this record caused significant defi- ciencies in communica- tion skills -- reading and speaking -- the vic- tims of Detroit's de jure segregated system. will continue to experience the effects of segre- gation until such future time as the remedial programs can help dis- sipate the continuing effects of past miscon- duct. Reading and speech deficiencies can- not be eliminated by judicial fiat; they will require time, patience, and skills of specially trained teachers. That the programs are also "compensatory" in nature does not change the fact that they are part of a plan that operates ro- spectively to bring about the delayed ben- efits of a unitary school system. Milliken II, 433 U.S. at 290. After reviewing Milliken II and quoting extensively from it, the major- ity asserts that Milliken II stands for the proposition that a federal court may -49a- |" order states to fund programs to remedy historical violations of federal rights so long as the measures are necessary to undo those harmful effects of the his- torical violations that continue into the future. Maj. Op. at 13. The major- ity thus reads Milliken II as imposing what I will call a “continuing effects" exception on the traditional prosective- retrospective eleventh amendment dichot- omy. The continuing effects exception works as-_ follows: regardless of when the constitutional violation at issue occurs, the state is liable for any effects of the violation that are felt after the time of the institution of the suit. Applying the continuing effects exception to the instant case, the majority has no difficulty concluding that Ms. Clark's placement in a CLA was -50a- intended to remedy the continuing effects of her improper detention at Laurelton, i.e., to prepare her to live in the general community with no, or minimal, assistance. Although a literal reading of Milliken II may support the continuing effects exception, I believe, for two reasons, that the exception is an unwarranted extension of the eleventh amendment jurisprudence. First, the exception would effectively obliterate Timms Vv. Metro. Sch. Dist. of Wabash County, Ind., 722 F.2d 1310, 1315-16 (7th Cir. 1983) raised, but did not unequivocally endorse or rely upon, an argument similar to the majority's in the case of a severely handicapped young woman seeking educational services. The Timms court decided the case on entirely separate grounds. See Id. at 1316. -5la- the prospective-retrospective distinc- tion: almost all wrongdoing has con- tinuing effects, and a continuing effects exception would thus virtually emasculate the current, prevailing interpretation of the eleventh amend- ment. Virtually anyone who has a colorable argument of wrongdoing by the state will assert consequential damages; even if the claims eventually fail, the plaintiffs will have forced the state to defend itself in court -- an often ex- pensive and risky undertaking. There is no indication in Milliken II itself that the Court intended to cut back so sub- stantially on the long-standing - pro- Spective-retrospective distinction, and, in the several Supreme Court cases following Milliken II that involved the prosepctive-retrospective distinction, the distinction has been continually re- asserted without extensive discussion of -52a- Milliken II or any mention of a contin- uing effects exception, see, e.g., Green V. Mansour, supra; Pennhurst State Hospital v. Haldeman, supra; Quern v. Jordan, supra. Without some stronger indication from the Supreme Court, I cannot believe that Milliken II cuts so broad a swath as the majority perceives in the Eleventh Amendment jurisprudence. Second, the exception is com- pletely at odds with the reasoning un- derlying the prospective-retrospective distinction, which is that it is a greater affront to the sovereignty of the states to force them to pay for prior illegal acts (the illegality of which the states were presumably unaware) than to enjoin them from doing certain acts in the future. See Scott v. Plante, 691 F.2d 634, 637 (3d Cir. 1982)(Gibbons, J.)("Obviously the problem of hindsight -53a- interference with decisions made by hard-pressed professional staff members of state mental institutions is a more serious one than that of assisting them in directing prospective injunctive relief against appropriate state officials."). The majority ignores this point, however for its continuing effects exception imposes’ potentially significant costs for’ states' prior acts. The incursion on state sover- eignty is the same whether the _ state pays for continuing effects or past effects, for in either case the state is forced to pay for its _ acts. The recent case of Green v. Mansour, supra, supports my position. In Green, recipients of federal funds (AFDC) sued the state official responsible for the administration of the funds, alleging violations of various federal statutes. -54a- Before the suit was decided, Congress amended the relevant federal statutes, and it was undisputed that the program was properly run from then on. Plain- tiffs nevertheless sought relief in the form of (1) a declaratory judgment stating that the official's conduct had violated federal law and (2) a notice sent by the state to all members of the class advising them that there were state administrative procedures avail- able to determine whether they were eligible for past benefits. The Supreme Court held that the requested relief eine barred by the eleventh. amendment. The Court began its analysis by restating and strongly re- affirming the prospective-retrospective distinction. Green Vv. Mansour, 106 S.Ct. at 426. Then, ‘the Court made clear -55a- i call that as a consequence of the dis- tinction the eleventh amendment barred all but the erevention of ongoing violations of federal laws: "Because ‘notice relief' is not the type of remedy designed to prevent ongoing violations of federal law, the Eleventh Amendment limitation on the Art. III power of federal courts prevents them from ordering it as an independent form of relief." Id. at 427. The Court's reliance on such well-entrenched eleventh amendment doctrine in a case where no more was sought by way of arguably eetrosgect ive relief than an order that the state provide notice is suggestive of the weakness of the major- ity's position here, for, as explained above, the majority's position severely limits and undermines the conceptual underpinnings of the doctrine. -56a- F ‘In addition, what the Green Court did not say may be as important as what it did. Cf.A. Doyle. The Silver Blaze (dog that did not bark provides > key to case), in The Complete Sherlock Holmes (1938). The Green dissent criti- cized the Court's reliance on the pro- spective-retrospective distinction in the eleventh amendment context, and in so doing adopted a position similar :to the majority's in this case. The Green dissent stated that "[{tJhe distinction is hardly so neat as the majority implies," 106 S.Ct. at 432 n. (Marshall J., dissenting), and _— supported its charge be quoting portions of Milliken I relied upon by the majority in this case. Compare id. with Maj. Op. at 11-12. The Green dissent may thus fairly be read as at least exploring a continuing effects exception derived -57a- from Milliken II. The fact that this line of argument was noted by the Green dissent and not answered by the majority implies that the majority was aware of it, but unpersuaded. We are left, then, with an anomaly in the Supreme Court's eleventh amendment jurisprudence. The majority deals with the anomaly by ignoring it. The mawtority simply focuses on Milliken II and does not consider it in context with the Supreme Court's other eleventh amendment cases. By refusing even to acknowledge the tension between Milliken II and those other cases, and by blindly following Milliken MII, the majority reaches a holding that effectively overrules, or at least severely limits, the rest of the cases. -58a- As I have indicated above, I think that this takes Milliken II much too far. When one decision is so completely at odds with a whole body of law as Milliken II is with the rest of the eleventh amendment cases, the most appropriate reading is to limit that case to its facts perhaps more severely than we would otherwise be inclined to do. This interpretive rule is derived from our role as inferior judges in the federal system: we cannot overturn the decisions of the Supreme Court, but must always attempt to harmonize them. When the harmony is on the whole strong and clear, as I believe it is in the ele- venth amendment context, we should make Sure that any discordant notes are muted. -59a- The limitations must be princi- pled, not arbitrary: it must draw its essence from the historical context in which the case arose. In the case of Milliken II, the historical context is rich and significant. Milliken II was part of a long line of Supreme Court cases dealing with racial desegregation, and long before Milliken II the Supreme Court had made clear that racial segre- gation was a unique blight on our nation that would be combatted by extraordinary measures. See e.g. Swann v. Charlotte- Mecklenburg Board of Education, 402 U.S. 1 (1971); Brown v. Bd. of Ed. of Topeka, 347 U.S. 483 (1954). The pronouncements aan decisions that the Court made during the fight against school segregation should not automatically be applied to Other situations that may not share the same historical factors that went into -60a- the Court's desegregation decisions. The Court was aware when it was deciding the school desegregation cases that che history of Blacks in this country was unique, and subsequent courts cannot ignore that fact in interpreting those cases. In light of Milliken II's variance with the rest of the eleventh amendment jurisprudence, and in light of the striking historical factors under- lying Milliken II, I believe that Mil- liken II should be read as adopting a continuing effects exception applicable to racial desegregation cases only, or, even more narrowly, school desegregation cases. I admit that no such limitation is to be found on the face of Milliken II, but I believe that my reading is faithful to the spirit of the opinion -6la- and the context in which it was writ- ten. This is not to say, of course, that every judicial decision concerning racial matters cannot have precedential effect beyond the area of race, but merely, as stated above, that when one decision is completely at odds with a whole body of law, as Milliken II is with the rest of the eleventh amendment cases, a limited but principled reading of the case is to be preferred. Given this reading of Milliken II, it is clear that the continuing effects exception does not apply to this case. The main body ‘of the eleventh amendment jurisprudence controls, and, for the reasons stated above, mandates that Ms. Clark cannot’ predicate her claim for relief on the historical mis- treatment that she suffered while at Laurelton. -62a- Ei. Because I believe that the eleventh amendment bars Ms. Clark from receiving the injunctive relief - she seeks as a remedy for any historical violations of her due process rights, if Ms. Clark is entitled to such relief, it must be because she has a present con- stitutional entitlement to it, indepen- dent of any mistreatment she suffered in the past. I believe that the existence vel non of such a constitutional en- titlement, and the extent of such an entitlement i¢ it exists, are the central questions on this appeal. A. Historical Foundation for the Right to Habilitation The right to habilitation® of ©Technically, one refers to “training” or “habilitation" of the mentally retarded, and "treatment" of (FOOTNOTE CONTINUED ON NEXT PAGE) -63a- the involuntarily ’ Civilly committed (FOOTNOTE CONTINUED) the mentally ill. See Youngberg v. Romeo, 457 U.S. 307, 309 n. 1 (1982); Note, Beyond Youngberg: Protecting the Fundamental Rights of the Mentally Retarded, 51 Fordham L. Rev. 1064, 1074 n.53 (1983). Although the .terms are frequently used interchangeably, see, eg., Youngberg, I respect the distinc- tion and will limit my discussion here to the right to habilitation. 7Ms. Clark was involuntarily committed, and I therefore limit this discussion to the right of the involun- tarily committed. At least one court has stated that whether a person was voluntarily oor involuntarily committed may influence his or her right to treat- ment. Doe v. Public Health Trust of Dade County, 696 F.2d 901, 903 (ilth Cir. 1583) (per curiam). Others, however, noting the frequent significant mental deficiencies of the voluntarily civilly committed, have questioned whether their consent to confinement was informed, and therefore whether there is any basis for treating them differently from those in- voluntarily civilly committed. See Association for Retarded Citizens “of North Dakota _v. Olson, 561 F. Supp. 473, 484 (D.N.D. 1982); Note, The Constitutional Right to Treatment in Light of Youngberg v. Romeo, 72 Geo. L.J. 1785, 1791 (1984). -64a- has been the subject of numerous opin- ions and scholarly articles.° Although (FOOTNOTE CONTINUED) 8See, e.g., Society for Good Will to Retarded Children v. Cuomo, 737 F.2d 1239 (2d Cir. 1984); Phillips v. Thomp- son, 715 F.2d 365 (7th Cir. 1983); Doe v. Public Health Trust of Dade County, 696 F.2d 901 (11th Cir. 1983) (per curiam); Scott' v. Plante, 691 F.2d 634 (3d Cir. 1982); Donaldson v. O Connor, 493 F.2d 507 (5th Cir. 1974), vacated and remanded, 422 U.S. 563 £(1975); Association of Retarded Citizens of North Dakota v. Olson, 561 F. Supp. 473 (D.N.D. 1982); Evans v. Washington, 459 F. Supp. 483 (D.D.C. 1978); Gary v. State of Louisiana, 437 F. Supp. 1209 (E.D.La. 1976); Welsch v. Likins, 373 F. Supp. 487 (D.Minn. 1974); Stachulak v. Coughlin, 364 F. Supp 686, 687 (S.D. Ill. 1973); Davy v. Sullivan, 354 F. Supp. 1320, 1324-30 (M.D. Ala. 1973) (per curiam); Wyatt v. Stickney, 325 F. Supp. 781 (M.D. Ala. 1971), aff'd, remanded, and reversed in part sub. nom. Wyatt v. Aderhalt, 503 F.2d 1305 (5th Cir. 1974); Slovenko, The Past and Present of the Right to Treatment: A Slogan Gone Astray, 9 J. Psych. & Law 263 (1981); Spece, Preserving the Right to Treat- ment: A Critical Assessment and Con- structive Development of Constitutional Right to Treatment Theories, 20 Ariz. L. Rev. 1 (1978); Mason & Menolascino, The (FOOTNOTE CONTINUED ON NEXT PAGE) -65a- the cases and articles have not coa- lesced into a unanimous”~ position, a consensus has developed among the lower courts that the involuntarily civilly committed do have a right to habilita- tion. There are two principal theories concerning that right, the quid pro quo theory and the parents partrice theory.” I shall describe them both here. (FOOTNOTE CONTINUED) Right to Treatment for Mentally Retarded Citizens: An Evolving Legal and Scien- tific Interface, 10 Creighton L. Rev. 124 (1976); Birnbaum, The Right to Treatment, 46 A.B.A.J. 499 (1960); Note, 72 Geo. L.J. 1785; Note, 51 Fordham L. Rev. 1064; Note, Developments in the Law - Civil Commitment of the Mentally Ill, 87 Harv. L. Rev. 1190 (1974). See enerall 31 Stan. L. Rev. 541-825 11575) _ am on mental retardation and the law). °9There are two other theories of the right to habilitation that I do not consider here. First, the least re- strictive alternative theory, relied upon by the court in Rone v. Fireman, 473 (FOOTNOTE CONTINUED ON NEXT PAGE) -66a- (FOOTNOTED CONTINUED) F. Supp. 92, 125 (N.D. Ohio 1979) and endorsed in Spece, Justifying Invigorated Scrutiny and the Least Restrictive Alternative As a _ Superior Form of Intermediate Review: Civil Commitment and the Right to Treatment As a Case Study, 21 Ariz. L. Rev. 1049 (1979), requires treatment on the grounds that the involuntarily civilly committed have a right to live in the least restrictive setting possible and treatment is necessary to effectuate that goal. This argument has_ been effectively foreclosed by this court's decision in Rennie v. Klein, 720 F.2d 266 (1983)(en banc) in which six judges endorsed the view that Youngberg v. Romeo, 457 U.S. 307 (1982), made least alternative analysis inapplicable to the involuntarily civilly committed. I discuss Youngberg briefly infra at 23. Second, the incarceration due to status theory holds that, unless they are afforded treatment, the involun- tarily civilly committed would be indistinguishable from criminals incar- cerated for no crime; mental illness or impairment would be effectively status crimes, which violate the eighth amend- ment, see Robinson _v. California, 370 U.S. 660, 666-67 (1962). See Welsch v. Likins, 373 F. Supp. at 496 (endorsing this theory); Martarella v. Kelly, 349 (FOOTNOTE CONTINUED) -67a- 1. The Quid Pro Quo Theory -- At the outset, it is important to distinguish the two sowers pursuant to. which a state may involuntarily civilly commit a person. The state may commit someone to involuntary civil confinement using its police power or its power of parens patriae. See Herman, Barriers to Providing Effective Treatment: A Cri- tique of Revisions in Procedural, Sub- F. Supp. 575, 599 (S.D.N.Y. 1972) (same). The two problems with this theory are (1) it is -doubtful that the eighth amendment has any force outside of the criminal context, see Ingraham v. Wright, 430 U.S. 651, 664-71 (1977); Youngberg v. Romeo, 644 F.2d 147, 156 (3d. Cir. 1980)(en banc), vacated and remanded, 457 U.S. 307 (1982); and (2) even if the eighth amendment does extend beyond the’ criminal context, | eS doubtful that failure to treat is “pun- ishment" proscribed by that amendment. See Garvey, Freedom and Choice in Constitutional Law, 94 Harv. L. Rev. 1756, 1708-89 n.140 (1981). -68a- Stantive, and Dispositional Criteria in Involuntary Civil Commitment, 39 Vand. L. ow. 83, 85 (1986). Under the police power, the state may confine people who are dangerous to others. The parens patriae power, by contrast, allows the state to confine people who, although not dangerous to others, are in need of care or treatment. The quid pro quo theory applies to any involuntarily civilly committed person; the parens patriae theory applies, as its name would suggest, only when the_~= state involuntarily civilly commits someone pursuant to its parens patriae power. The premise of the quid pro quo theory is that any involuntary com- mitment, civil or criminal, entails a “massive curtailment of liberty." Humphrey v. Cady, 405 U.S. 504, 509 (1972). Although the infringement on -69a- = liberty is the same in criminal and civil commitment, the circumstances sur- rountins the two situations are quite different. When people are incarcerated for criminal acts, the curtailment of liberty is not unconstitutional because (1) the curtailment is attended by ex- tensive procedural safegaurds mandated by the Constitution, and (2) the cur- tailment is for a specific offense for which the incarcerated person was responsible; there is thus some sense in which he or she deserves, or has con- sented to, the curtailment of his or her liberty. | By contrast, those who are civilly committed have usually not been pro- tected by the panoply of procedural safeguards found in the criminal system, -70a- and they have not committed any acts that could justify their confinement. Civil involuntary commitment is there- fore constitutionally problematic, and to justify it the state must give the Civilly committed persons something in exchange for their loss of liberty. As explained by Judge Alvin B. Rubin in Gary W. v. State of Louisiana, 437 PF, Supp. 1209, 1216 (E.D. La. 1976), aff'd on other grounds, 601 F.2d 240 (Sth Cir, 1979): Long-term detention of an individual is ordi- narily a denial of due process except when he has been proved, in a proceeding subject to the rigorous constitu- tional limitations of the due process clause and the Bill of Rights, to have committed a Specific act defined as an offense against the state, and for which -7la- incarceration is per- mitted for a fixed term only. If an individual, adult or child, healthy or ill, is confined by the government for some reasons other than his commission of a criminal offense, the state must provide some _ benefit to the individual in return for the deprivation of his liberty. (emphasis added). According to the guid pro quo theory, due process dictates that the benefit to which the involuntarily civilly committed are entitled is habilitation to enable them to leave their commitment. Just as one confined for civil contempt of court must have the keys to- the jailhouse in his pocket," so those involuntarily civilly committed must be provided with the means to end their commitment, otherwise civil commitment would be equivalent to placement in “a penitentiary where one -72a- could be held indefinitely for no convicted offense." Ragsdale v. Over- holser, 281 F.2d 943, 950 (D.c. Cir. 1960) (Fahy, > concurring). Habil- itation is the constitutionally required guid pro quo for civil confinement, hence the name of the theory. See Note, 72 Geo.L.J. at 1790-93 (identifying and discussing the quid pro quo theory of right to treatment). )° 10 see also Donaldson v. O'Connor, 49 3 F.2d at 522: [W]hen the .. , limitations on the government's power to detain [that constrain the government in the criminal context] are absent, there must be a quid pro quo extended by the government to just- ify confinement. (FOOTNOTE CONTINUED ON NEXT PAGE) -73a- D ; & % * 3 ‘S iz < x — * : 2 + b 4 $ 2. The Parens Patriae Theory -- The derivation of the right under the parens patriae theory is quite straight-for-ward. Simply put, the argument is that it violates the tenets of fundamental fairness embodied in the due process clause for the state to deprive a person of her or his liberty for the stated purpose of training that person, and then to fail even to attempt to give training. As eloquently explained by Judge Frank M. Johnson, Jr.: "To deprive any citizen of his or her liberty upon the altruistic theory And the quid pro quoO most commonly recognized is the provision of rehabil- itative treatment, or, where rehabilita- tion is impossible, inimally adequate habilitation and care, beyond the subsistence level custodial care that would be provided in a penitentiary. (footnotes spetied). -74a- that the confinement is for humane therapeutic reasons and _ then fail to Provide adequate treatment violates the very fundamentals of due process," Wyatt v. Stickney, 325 F. Supp. at 785. Judge John Minor Wisdom made the same point in the first decision by a Court of Appeals to adopt the parens Patriae theory: [Where] the rationale for confinement is the “parens patriae" ration- ale that the patient is in need of treatment, the due process clause requires that minimally adequate treatment be in fact provided. This in turn requires that, at least for the nondan- gerous patient, consti- tutionally minimum stan- dards of treatment be established and enforced. Donaldson vy. O'Connor, 493 F.24 at Fei. See also Woe v. Cuomo, 729 F, 24a 96, 105 -75a- (9a. Cir.}{*if “tne justification for commitment rests, even in part, upon the need for care and treatment, .. . then a State which commits must also treat."), cert. denied, U.S. , 4105 SCE. 339 (1984); Johnson v. Solomon, 484 F. Supp. 278, 300 (D.Mad., 1979) ("The right to treatment, then, is but the corres- ponding obligation of the state in light of its right to exercise its parens patriae power over its citizens.") (footnote omitted); Welsch v. Likins, 373 F. Supp. at 499 ("civil commitment for reasons of mental retardation [must] be accompanied by minimally adequate treatment designed to give each committed person a realistic opportunity to be cured or to improve his or her mental condition’ Wyatt v. Stickney, supra, 325 F. Supp. at 784."). -76a- Although the Supreme Court has not had occasion Specifically to address this theory of a state's obligations tio those it commits Pursuant to its parens Ppatriae power, in Jackson v. Indiana, 406 U 715, 738 (1972), the Court enun- Clated a rule that gives strong support to the theory. In Striking down a state law that permitted the state to confined indefinitely a mentally deficient deaf mute adjudged incompetent to stand trial, the Court Said: "At the least, due process requires that the nature and duration of commitment bear some reason- able relation to the purpose for which the individual is committed." This logic Supports the parens patriae theory, for, as Judge Wisdom explained, "[{iJf the ‘purpose' of commitment is treatment, and treatment is not Provided, then the -77a- 'nature' of the commitment bears no reasonable relation’ to its ‘purpose, ' and the constitutional rule of Jackson tg violated." Donaldson, 493 F.2d at 521. See also Youngberg v. Romeo, 45/7 U.S. 307, 325-26 (1982)(Blackmun, J., concurring). 3. Ms. Clark's Right to Habil- itation -- Ms. Clark was involuntarily civilly committed, and the quid pro quo theory therefore applies to her case. In addition, as there is no indication in the record that Ms. Clark was, at the time of her initial ‘confinement or at any time thereafter, a threat or danger to anyone in society, the state must have been acting at all times under its parens patriae authority in detaining her. The parens patriae theory is therefore also applicable. I thus conclude that, at all times when she was -78a- or will be! involuntarily committed, Ms. Clark had and will continue to have a constitutional right to habilitation under both the guid pro quo and the Parens patriae theories. B. The Extent of the Right to Habilitation Like all constitutional rights, the right to habilitation of involuntar- ily Civilly committed persons is not absolute. The courts’ must therefore determine how strong a right it is. I shall not Propose a comprehensive answer llas f explain below, even though she is Currently at the CLA, Ms. Clark is still involuntarily committed. Because it is the mere fact of invol- untary civil commitment that creates the right to treatment, Ms. Clark has a right to habilitation whether she is at Laurelton or at a CLA. -79a- to that question here, for I believe that the answer will come about only as a result of case-by-case analysis and development. Rather, I shall propose and defend a limited right to treatment, based on Justice Blackmun's concurring opinion in Youngberg v. Romeo, 457 U.S. 307, 325 (1982), that is sufficient to decide the case at hand. Le Jus ice Blackmun's Con- currence: The Non- Deterioration Prin- ciple -- Before considering Justice Blackmun 's concurring opinion in Youngberg v. Romeo, supra, it would be best to summarize the majority's opinion in that case. In Youngberg, the Supreme Court held that a severely retarded, involuntarily civilly committed man had a due process right to such training or habilitation as was required in light of [his] liberty interests in safety and -80a- freedom from unreasonable restraints." 457 U.S. at 322. This is "such training aS an appropriate professional would consider reasonable to ensure [the patient's] safety and to facilitate his ability to function free from bodily restraints." Id. at. 324. Youngberg dealt exclusively with training related to physical restraints; the Court expressly stated that it was neither considering nor ruling on any broader right to habilitation. Id. at 316 & n. 19; id. at 318 & n.23. Justice Blackmun, in a concurrence joined by Justices Brennan and O'Connor, agreed that no broader right to habili- tation was before the Court. Id. at 326-27 (Blackmun, Jr., concurring). He suggested, however, that an involun- tarily civilly committed person might -8la- have a due process right to such train- ing as is necessary to preserve his or her self-care skills, i.e., to prevent them from deteriorating during the person's commitment. If a person could demon- strate that he entered a state institution with minimal self-care skills, but lost those skills after commitment because of the State's unreason- able refusal to provide him training, then, it seems to me, he has alleged a loss of liberty quite distinct from -- and as_ serious as -- the loss of safety and freedom from un- reasonable -restraints. For many mentally re- tarded people, the difference between the capacity to do things for themselves within an institution and total dependence on the insti- tution for all of their needs is as much liberty as they ever will know. -82a- Id, at 327 (Blackmun, J., concurring). I shall refer to this as the non-deteri- oration principle. Although Justice Blackmun merely suggested the non- — deterioration principle and did not definitively endorse it, id. ‘at 329 (Blackmun, J., concurring), other courts have endorsed the principle. See Society for Good Will to Retarded Children v. Cuomo, 737 F.2d 1239, 1250 (2d Cir. 1984); Lelsz v. Kavanaugh, (N.D. Tex. March 4, 1986) (No. 3-85-2462-H Civ.); Association for Retarded Citizens of North Dakota v. Olsen, 561 F. Supp. at 487. I, too, would endorse the non- deterioration principle. Liberty is more than merely the absence of physical -83a- ’ ‘ . BNE agit Clty bo , sg FRE, oe eat % FP ee aa Oa et ete & ee Yo ee weer f * + ‘4 » confinement; as the Supreme Court's privacy cases make clear, the right of liberty is a right to personal autonomy, see, e.g-, Carey V- Population Servs. tt'l, 431 U.S. 678, 693 n.15 (1977); Whalen v. Roe, 429 U.S. 589, 599-600 & n.26 (1977); Roe v. Wade, 410 U.S. 113, 153 (1973). See also Garvey, Freedom and Choice in Constitutional Law, 94 Harv. L. Rev. 1756, 1760 (1981). The mentally disabled cannot have meaningful autonomy, and hence meaningful liberty, without basic skills; therefore, for the State to allow disabled persons' skills to deteriorate is as sure a denial of their liberty as is their confinement to an institution. It is indeed a sad fact that for many mentally disabled people self-care skills are “as much liberty as -84a- they ever will know. " Youngberg y, Romeo, 457 U.S. at 327 (Blackmun, J., concurring). The right to habilitation would be a nullity if that right did not extend even to prevent the deterioration Of people's skills. Re The Modified Non-Deter ioration Principle -- I am concerned by a poten- tial limitation raised by one aspect of the non-deterioration Principle, and therefore I wish to set forth my under- Standing of the contours of the principle. Consider a patient who is committed at an early age, who remains in confinement for a Significant period of time, but whose self-care skills might have improved even if she had never been committed. (This example is not merely hypothetical; as will be seen below, it pertains to the case before us.) Under a -85a- restrictive interpretation of the non- deterioration principle, the state would be bound merely to assure that that person's skills did not deteriorate below the level at which they were when she or he entered the state insti- tution. It seems to me, however, that the state should be required to provide such a person with at least such train- ing as would match the improvement that she or he would have experienced if never committed. The reasoning behind this position is analogous to the reasoning supporting the non-dete- rioration principle: by committing people and preventing them from developing self-care skills, the state is effectively depriving them of the opportunity to develop and exercise their autonomy. This is a deprivation of their due process right to liberty. -86a- I thus endorse a modified non-deterio- ration principle: involuntarily civilly committed persons have a right to treatment sufficient to develop their self-care skills to at least the level at which they would be if the. persons had not been institutionalized. 3 Application of the Modified Non-Deterioration Principle -- As the majority notes, the district court found that "“[b]Jut for the then well-intention- ed intervention of the state, Ms. Clark would most likely have lived an average life," 613 F. Supp. at 707 (quoted in Maj. Op. at 8-9). That finding was not clearly erroneous. The majority also points to the stipulation that according to the very experts at the Laurelton Center, the barriers to Ms. Clark's entering society without supervision arose primarily on account of her long institutionalization. Maj. Op. at 9. -87a- ee The conclusion to be drawn from these observations is that if Ms. Clark had not been institutionalized, she would have developed into a functioning member of society who would need no, or minimal, supervision. Because her institutionalization has led to her debilitation, the modified non-deterio- ration principle requires the state to provide Ms. Clark, who remains involun- tarily committed, albeit to a CLA, see infra, with training and treatment sufficient tc put her in the position in which she would have been had she never been institutionalized. Because it appears from the numerous, uncontra- dicted doctors' reports in the record that placement in a CLA is the only or best way for Ms. Clark to receive the training that she is due, I believe that she has a right to placement in the CLA, until she had acquired the skills_ she -88a- would have had she never been institu- tionalizea, }? l2muy conclusion is at odds with that of the Seventh Circuit in Phillips Vv. Thompson, 715 F.2q 365, 367 (1983), Which held that involuntarily Civilly committed mentally disabled People had no due process right to live in a con- munity program, like the CLA at issue here. (Although only voluntarily Civilly committed persons were involved in Phillips, the court analyzed the case as 1f they had the same rights’ as involuntarily committed Persons.) The Phillips court based its conclusion on an incorrect reading of Youngberg vy. Romeo according to which Youngberg meant that involuntarily committed people had a right to treatment Only insofar as the treatment was necessary to support their freedom from Physical constraints. See 7U5 F.2d 367-68. as f[ pointed out, supra at » this position is simply incorrect; Youngberg expressly stated that it was not concerned with the to treatment. 457 U.S. at 316 ¢ n.19; id. at 318 & n.23. Also worthy of note Is Society for Good Will to Retarded Children _v. Cuomo, 737 F.2d 1239 (24 Cur s 1984), which adopted Justice Blackmun 's nondeterioration Principle, see supra at —_.. but vacated that part ( FOOTNOTE CONTINUED ON NEXT PAGE) -89a- 4 Ao a8 > Se % Because this is such a complicated area of law, I wish to make clear three questions I am not addressing in this opinion. First, I do not decide whether — the right to habilitation survives the release of the involuntarily committed. This issue is irrelevant to Me. Clark, for although the CLA is far less restrictive than Laurelton Center, it (FOOTNOTE CONTINUED) of the district court's order requiring the community placement of certain patients. 737 F.2d at 1251. That por- tion of Society for Good Will is dis- tinguishable from this case, for _ the Society for Good Will court expressly found that “Linstitution] residents are not unduly restrained by residing at [the institution]." Id. at 1251. Here, by contrast, the uncontradicted evidence is that Ms. Clark cannot reach the level she would have reached had she never been institutionalized -- that is, she cannot enjoy her full right to liberty -- without placement in the CLA. That crucial difference distinguishes Society for Good Will ‘from this case. To the extent that Society for Good Will is not distinguishable, I think it wrongly decided. -90a- appears from the record that Ms. Clark is still involuntarily committed even while at the CLA. The district court's order compelling the state to fund Ms. Clark's CLA placement made no change in her status as an involuntarily Civilly committed person. The ‘record reveals that Ms. Clark cannot leave the CLA permanently without permission, and that she is not free to enjoy all lawful activities. Ms. Clark has therefore not been released. It is not clear, how- ever, whether persons have rights to habilitation once they are released. The reasons they might not is seen from the justification for the right’ to habilitation: because’ the right to habilitation is derived from the liberty infringement caused by involuntary confinement, once a person is no longer in the state's custody, he or. she may -9la- ae FE have no more right to habilitation. Furthermore, the eleventh amendment would prevent him or her from suing in federal court to vindicate the right that he or she had before release, for that would be a suit for vindication of an historical violation of rights. See supra part I. Despite its apparent logic, this position may work a very unfair result. Were it to prevail, the state could release someone to whom it owed a grave obligation, and then hide behind its eleventh amendment shield to avoid that obligation. One sokneson may be to hold that although the right to habili- tation derives from the involuntarily committed person's deprivation of liberty, it survives the termination of * that deprivation. Thus, for example, one might argue that one has the right -92a- conferred by the modified non-deterio- ration principle until that right is satisfied, regardless of where the right-holder may be. I need not consider here the ultimate success of such an argument .+3 Second, in enunciating the modified non-deterioration principle, I leave open the question whether’ the involuntarily Civilly committed have a right to even greater habilitation than the modi fied non-deterioration principle would allow. It might be argued, for example, under the theories discussed 13t also leave Open whether. the continuing right would Obtain pursuant to both the parens patriae and guid pro quo theories. Whereas’ the continuing right to habilitation is clearly com- patible with the parens patriae theory, it would appear that by its very nature the guid pro quo theory supports a right to habilitation Only during the time of actual civil involuntary commitment. -93a- ay here or some other theory of habili- tation, that the involuntarily civilly committed have a right to as much habilitation as their capacity will allow. Alternatively, one might argue that all involuntarily civilly committed persons are entitled to treatment up to an absolute level, regardless of their status upon entrance to the institu- tion. Because Ms. Clark was only slightly retarded, I need not consider these questions in her case. Third, and integrally related to the second question, is the question of cost. How much should the state be forced to pay on behalf of each person's habilitation? Must the state pay exor- bitant costs, even if they are greatly in excess of the value of any improve- ment? Such a requirement might create a significant burden on state treasuries. -94a- Once again, I need not address this issue, for one of the perversities of this eaee is the district court's non-clearly erroneous finding that it - would have cost the state less to put Ms. Clark in a CLA than to keep her at Laurelton. ete I believe that that eleventh amendment prevents Ms. Clark from receiving compensation for any alleged violations of her constitutional rights during her confinement at Laurelton Center, and that the ma jority therefore erred in finding to the contrary. I further believe that the due Process clause affords Ms. Clark a right, for as long as she is involuntarily committed, to at least as much treatment as is necessary to assure’ that her self-care -95a- q skills develop as well as_ they would. have if she had never been committed. This right mandates her placement in the CLA. I therefore concur in the judgment of the court. A True Copy: Teste: Clerk of the United States Court of Appeals for the Third Circuit -96a- IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA CAROLYN CLARK CIVIL ACTION vs. WALTER COHEN, et al. No. 84-3383 OPINION HUYETT, J. JUNE 20, 1985 Presently pending before me is Plaintiff's motion for equitable re- lief. For the reasons set forth in the following findings of fact, discussion, and conclusions of law, this motion will be granted. -97a- I. FINDINGS:OF FACT Because the parties have entered into a very comprehensive stipulation of the facts of this tragic case, I will provide only a brief summary of the relevant fact. The following narrative together with the stipulation constitute my findings of facts. Plaintiff is forty-four years old. She has spent her entire adult life at Laurelton Center ("Laurelton"), a state institution for the mentally retarded, after she whe committed there in 1956 at the age of fifteen. At the time of her commitment plaintiff had been taken from the custody of her family. There are suggestions in the record and among the documents from her -98a- file at Laurelton that Plaintiff's family life prior to her commitment was tempestous and disruptive to her devel- opment. A petition for plaintiff's commitment tnians to § 326 of the Mental Health Act of 1951, as amended, 70 6PLB. 6 6 6§ «(1071 et seg., repealed by Mental Health and Retardation Act of 1966, 1966 Pa. Laws 96 (codified at 50 Pa. Stat. Ann. $§ 4101-4704 (Purdon 1969)), was filed on November 8, 1956 and approved by the court the next day. Plaintiff did not have a hearing in connection with her commitment nor did she receive notice of — petition. On November 11, 1956 plaintiff was transported to Laurelton, a residen- tial institution located in Union County, Pennsylvania which houses approximately 350 mentally retarded persons. It is at least four hours from Philadelphia. At -99a- the time of her commitment, plaintiff was a resident of Philadelphia and still has family there. She has not seen them for approximately six years. Although plaintiff was de- scribed as "severely defective" in the commitment petition in 1956, tests administered to her soon after her admittance at Laurelton revealed that she is in the mild range of mental retardation with an IQ of roughly 60. Her IQ tests have remained fairly constant since that time. Her IQ is much higher than the vast number of Laurelton residents and plaintiff functions at a much higher level than most of her companions at Laurelton. Soon after she was’ sent to Laurelton, plaintiff expressed her displeasure with being committed there -100a- against her will. She has continued to protest her detention there up to the present time. Despite these protests, plaintiff never received a hearing © regarding the propriety of either her initial commitment or her’ continued residence at Laurelton. Her efforts, however, to obtain a hearing have been unstinting at least since 1981. Durind her almost thirty years at Laurelton, the law regarding the treatment and rights of mentally ill and mentally retarded people has changed dramatically. The statute under which plaintiff was ox tetaaie committed was repealed and replaced in 1966. Plain- tiff's commitment was then deemed by the Commonwealth to be equivalent to one under the new statute. In 1976, a three judge panel declared § 406 of the 1966 -10la- Act--the section dealing with involun- tary commitments--unconstitutional. In spite of these events and in spite of the fact that plaintiff reached maturity in 1962, plaintiff never received a hearing. It appears from the testimony of James Pelter that the Commonwealth's Department of Public Welfare ("DPW") has no formal procedure under which persons committed indefinitely are given hearings to review their commitments. An average hearing pursuant to § 406 of the 1966 Act held in Union County costs approximately $132. In April, 1984, Elizabeth Keister a Laurelton employee, prepared a petition requesting authority to detain plaintiff pursuant to § 406 of the 1966 Act. In that petition, Keister stated: -102a- “Carolyn was admitted to Laurelton Center on November 15., 1956, under section 326 of the MH/MR Act of 1951, as amended in 1954, This commitment has _ never been reviewed in Ms. Clark's 28 years at Laurelton Center. Ms. Clark is mildly retarded, possesses all self-care skill and basic academic skills. Ms . Clark is requesting placement in a com- munity residential facility or a review of her commitment. The least restric- tive environment for Ms. Clark would be a structured community living arrange- ment and day program. Due to her long institutionalization she could not live independently at this time." This petition was never filed. Although plaintiff has remained at Laurelton since her commitment in 1956, the staff at that facility, in- cluding piaintiff's treatment team, has -103a- Oe oN eee ee Ce ley) ee ee oe ee ee ee oY agreed, at least since 1976, that she should be placed in a community living arrangement ("CLA"). All of the _ pro- fessionals who testified at the hearing on this matter voiced this same opinion. The stipulation details the various steps that have been taken in order to convince those in power to place plain- tiff in a CLA. All of these efforts were to no avail. A CLA consists in most general terms of a small residential group composed of mentally retarded people who function at similar levels. These individuals live in a house within the community and receive intensive super- vision and training in ‘those behaviors and skills necessary to function inde- pendently within the community. A CLA 1s designed to allow a mentally retarded person to live in a setting which is as -104a- close to a "normal" one as possible. They are also designed to allow for more community interaction and interaction with nonretarded persons than is an isolated institution such as Laurelton. Plaintiff has continually sought places ment in some form of CLA since at least 1976. She continues to want such a placement very much. James McFall testified on be- half of plaintiff at the May 28, 1985 hearing. McFall is qualified as an expert in the field of psychology. Although he does not possess a doctoral degree in that field, he has completed all of his degree requirements. except for his dissertation. In addition, he has extensive work experience in the treatment of mentally retarded persons. -105a- In his opinion, there are no contradici- tions to a placement in a CLA for plain- tiff. He testified that in his expe- rience, plaintiff functions at a higher level than many of those currently plac- ed in CLAs in Philadelphia. He de- scribed plaintiff as at "the highest functioning levels of any of my clients." Dr. Paul Spangler also testi- fied on behalf of plaintiff. He holds a doctoral degree in psychology and has extensive experience in the treatment of the mentally retarded. I find him to be qualified as an expert in the field of psychology. Spangler opined that plain- tiff should be placed into a CLA as soon as possible. He noted that many people who function at a level below plain- tiff's are already either in a struc- tured CLA or in some other form of community residence. He stated that in -106a- 1985 it was unusual to see someone like plaintiff in a large institution like Laurelton. Spangler also described a CLA program that has been developed by de fendant County of Philadelphia. ! This program, known as a Teaching Family Home, would allow plaintiff to share a home with a small number of other men- tally retarded people and a husband and wife team of trained psychologists. fThis lBefore the hearing was held on this matter, plaintiff reached a set- tlement with those defendants employed by the County of Philadelphia and the private defendants concerning her motion for preliminary relief. Under this set- tlement, the County has planned and de- veloped a CLA placement for plaintiff which could be implemented within 120 days of the date of an order from this court if the Commonwealth provides funds. -107a- a team would be augmented by one or two other staff members from time to time, thus bringing the staff to patient ratio to approximately one to one. This is a much higher ratio than is available at Laurelton. Spangler stated that in his opinion, plaintiff would spend approx- imately two years in such a placement, then two years at a minimal supervision CLA, and then live independently with some backup support. The costs of this program would be $56,000 per year for the Teaching Family Home, $20,000 to $25,000 per year for the minimal super- vision CLA, and approximately $4,000 per year for the necessary backup support after that. By contrast, it costs the Commonwealth approximately $40,000 to $48,000 per year to maintain plaintiff at Laurelton. -108a- Spangler and McFall also testi- fied that the Opportunities for growth and training at a CLA far exceeded those avallable at Laurelton. Although some aspects of these opinions were disputed by witnesses for the defendants, I find that Spangler and McFall were credible expert witnesses’ and I credit their Opinions regarding the relative merits Of life at a CLA and Laurelton. It is unconiroverted that certain aspects of CLA life Simply cannot be duplicated at Laurelton. For example, because of its remote setting, the degree of community involvement at Laurelton will never be as great as that in a CLA. Neither will Plaintiff be able to practice the food Preparation she would be able to prac- tice in a CLA. -109a- GRRE, Indeed, many attributes of a CLA make it far superior in every way to institutionalization for someone 1ike plaintiff. At Laurelton, plaintiff shares a "room" with two other women. This room is actually a small part of a much larger room that has been divided into small bedroom areas with partitions that are three-quarters of the height of the ceiling. Plaintiff testified that there are no doors in her cottage at Laurelton, even on the bathroom. Plain- tiff has little ability to structure her sleeping time at Laurelton. She testi- fied that there was a "curfew" imposed with a strict eleven o'clock "lights out" policy. In addition, she testified that she would like to be able to shop for her own clothes in the community and -110a- ee to do her own food shopping and prepara- tion. Mr. McFall testified that plain- tiff cannot do any of these things while she remains at Laurelton. At the very least, she is unable to engage in the full range of these activities while at Laurelton. In addition, although work activities are available at Laurelton, it is obvious that they are not of the Same variety as those available to her in the community. Plaintiff stated her strong desire to work and earn money which she obviously enjoys spending. This motivation was considered a strong factor by both McFall and Spangler in their conclusions that Plaintiff would make a good candidate for a CLA. Plaintiff obviously desires to be placed in a CLA very much. Indeed, both McFall and Spangler testified that -llla- ¥ s es ie 4 a a Bi is * 2 5 a the failure to place her in such a pro- gram has made her so frustrated that her behavior has deteriorated. McFall testified that plaintiff's self-esteem has been adversely affected by her continued stay at Laurelton especially in light of the fact that many of her former friends who functioned at similar levels as she does have left for CLAs. There was additional testimony that plaintiff's behavior is in a "downward spiral" as a result of her continued frustration at remaining at Laurelton. This testimony was, however, strongly contested by staff members of Laurelton. The Superintendent of Laurelton, defendant S. Reeves Powers, testified that plaintiff's behavior has always been variable and that she frequently became more aggressive for periods of time. He stated that her -112a- behavior has not gotten consistently worse over the _ years. He admitted, however, that a continued stay at Laurelton would cause her emotional harm. © Kay Stewart, who is employed at Laurelton as a Psychological services associate, supported Powers's view of Plaintiff's behavior. Indeed, she testified that plaintiff's behavior has gotten better since 1981. I believe, however, that Stewart's testimony does not deserve much weight. She does not hold a degree in psychology per se and is not licensed in that field. She professed that she did not have deep background in the Psychological literature, Moreover, I found that her testimony was. often self-serving and that at times it Was not forthright. For example, she relied on Exhibit C-15 which is a bar graph showing Plaintiff's -~ll3a- EE EEE, “continued stay assessment" scores over time. This exhibit was admitted to show that plaintiff's scores did not decline over time. The 1985 score was, however, made on the basis of a new test and could not be compared with earlier scores. On cross-examinations, Stewart admitted that the inclusion of this score in C-15 and her reliance on it were "unfair". For these reasons, I find that Stewart's testimony should be given little weight. I do, however, believe that those with the closest ability to observe plaintiff over a long period of time have in best ability to assess any changes in her behavior. I therefore must conclude that there have not been any long term trends in her behavior as a result of her being denied a CLA. -114a- To understand fully the circumstances which have given rise to plaintiff's present Plight, it is necessary to sketch briefly the > complicated relationship between local and state authority and responsibility in the provision of services to mentally retarded citizens, Both areas of government have some responsibility in this area. The responsibilities of the state include: ensuring the availability Of adequate mental retardation services to all those who need then; making and enforcing regulations to implement the Mental Health/Mental Retardation Act; consulting with the various counties and assisting them in Carrying out their mental retardation functions; Operating State facilities, and Supervising mental -115a- FARES Se LS Ee ache a Ati dal aca Aa ee Bak 5 ee La retardation facilities, services, and programs. The counties (and with respect to this action, Philadelphia County) have the duty to cooperate with the state to ensure that services are available. In addition, defendant Surles, who is the Mental Health and Mental Retardation Administrator for the County of Philadelphia, is responsible for establishing an organizational unit or units consisting of multi-disciplinary professional staff capable of providing and planning appropriate services’ for mentally retarded persons in need of such services from the county. These organizational units are known as "Base Service Units" ("BSUs"). The County has contracted with several BSUs each of which serves individuals from a different -116a- LS et oo ean meme Senne eee ee area of the City of Philadelphia. De fendant Centralized Comprehensive Human Services, Inc. Operates the John F. Kennedy Community Mental Health and Mental Retardation Center ("JFK MH/MR") which is the BSU responsible for serving Plaintiff. The obligations of JFK MH/MR are described in some detail in the Stipulation of facts and I will not recite them here. It is unfortunate, but true, however, that although nominally responsible for the provision of services to plaintiff, JFK MH/MR apparently has no records in its pos- session concerning Plaintiff from the time of her commitment until 1976. Since 1976, however, plaintiff's BSU has been repeatedly advised by Laurelton staff that plaintiff should not be institutionalized and should be placed -1l17a- in a CLA. JFK MH/MR, in fact, attempted to have Philadelphia's mental health and mental retardation program arrange a CLA placement for plaintiff. Like all other attempts to transfer plaintiff from Laurelton, however, this never resulted in any change in plaintiff's treatment. Although all the available professional opinion strongly favors a CLA for plaintiff, and has for the last nine years, plaintiff remains at Laurelton. The primary forces’ which have kept her there appear to be bureaucratic ineptitude and insufficient allocations of funds to community residence programs. Mr. Paul Hindman testified at the May 29, 1985 hearing regarding the process by which mental retardation services are funded by the state. He is currently director of the DPW's Bureau of Planning and Resource -118a- a Allocation. He testified that DPW has allocated approximately $500 million for mental retardation services for the present fiscal year and that over one-half of this money goes to state institutions. Only 23% goes to community residential Programs. He also testified that each year some of the money allocated to the counties for community residential Programs is not spent. These “Carryover funds" are then reallocated during the next fiscal year to Other counties, DPW has the discretion to reallocate this Carryover, at least to some degree. In spite of the fact that Plaintiff's Plight has been known by those at Laurelton, JFK MH/MR, and the County for many years, Hindman testified that no money has ever -119a- en eens eee rarer Se fe ee Ba ee ep oe eee er o ee eee ee ae a ae a ee _ ‘ * -cateielecteataciens " DLE K, e AREOMEG A AREAS, TE ais PBN NBs ies eh i an i ip gE a an ital tala been sought or proposed to fund a CLA for plaintiff. Indeed, in the DPW budget for the 1985-1986 fiscal year, there was no increase for non-Pennhurst 2 community placements at all. II. DISCUSSION A. Introduction Plaintiff makes a number of specific contentions in support of her motion for injunctive relief. She claims that the actions of the defendants have violated § 504 of the 2Apparently the state and counties have been struggling with providing community placements for former residents of the Pennhurst State School. Defendant Jennifer Howse wrote to defendant Richard Surles on July 20, 1984, to inform him that the state would provide funding for 27 community placements for non-Pennhurst clients. Exhibit P-13. This money was never allocated to Philadelphia, however. -120a- Rehabilitation Act of 1973, 29 U.S.C. § 794(a). She also claims that she has been deprived of her liberty without due process- and that she has had her substantive rights under the due process clause violated. De fendants > deny that plaintiff has been the victim of actionable discrimination under the Rehabilitation Act and contend that no constitutional violations have occurred. In addition, they argue that the relief plaintiff seeks is inappropriate. SAlthough, defendants employed by the County of Philadelphia and _ those employed by JFK MH/MR have settled for the purposes of this motion, I will not limit the term defendant in this discussion solely to the Commonwealth's employees. -l2la- — a = deat ae oe ee ee At the hearing on this matter, plaintiff requested that her motion for preliminary relief be treated as one for a permanent '§ injunction. Although in most cases I would have given all parties advance notice of my intention to accelerate a hearing on a permanent injunction, defendants did not object to plaintiff's proposal either in court or in their post-hearing supplemental memoranda. I will therefore treat plaintiff's present motion as one for a permanent injunction. See Fed. R. Civ. P. 65(a). The power to grant a permanent injunction rests with the sound discretion of the trial court. Abbott Laboratories v. Cardner, 387 U.S. 136, 148 (1966). The court may grant a permanent injunction after a hearing if -122a- there are no material issues of fact and the issues of law have been correctly resolved. See Standard Oil Co. of Texas v. Lopeno Gas Co., 240 F.2d 504 (5th Cic. 1957). Plaintiff states claims on both statutory and constitutional grounds. The federal courts have long been. directed to decide whether causes of action can be supported on statutory grounds be fore they adjudicate constitutional law issues. See Hagans v. Lavine, 415 U.S. 528, 543 (1974); Silver v. Louisville & Nashville R.R. Co... 223 U8... 176. (Cigeei, I will therefore address plaintiff's Reha- bilitation Act argument first. -123a- B. Rehabilitation Act Plaintiff advances a claim under the Rehabilitation Act of 1973, 29 U.S.C. § 794 ("Act"). Introduced in the House of Representatives on December 9, 1971 and in the Senate on January 20, 1972, §$§ 504 of the Act was’ framed initially as an amendment to the Civil Rights Act of 1964, Although » ultimately became part of another act, its language and intent were patterned after other civil viet legislation, especially Title VI of the Civil Rights Act of 1964, 42 0U0.8.C. § 20004, and Title IX of the Education Amendments of 1972, 26 8.8.¢.. $166i(a). Section 504 states: No otherwise quali- fied handicapped individual in the United States, as defined in section 706(7) of this title, shall, sole- ly by reason of his -124a- handicap be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity re- ceiving federal finan- cial assistance. 29 U.S.C. § 794. Senator Humphrey, the primary Senate sponsor of the bill, said when introducing it: I introduce ... a bill ome to insure equal opportunities for the handicapped by prohi- biting needless discrim- ination in programs re- ceiving Federal finan- cial assistance ... The time has come when we can no longer tolerate the invisibility of the handicapped in America sas I am calling for public attention to three-fourths of the Nation's institution- alized mentally retard- ed, who live in public and private residential facilities which are more than 50 years old, functionally inadequate, -125a- 118 Cong. and designed simply to isolate these persons from society --.-These people have the right to live, to work to the best of their ability - to know the dignity to which every human being is entitled But too often we keep children, whom we regard as "different" or a "dis- turbing influence”™ out of our schools and com- munity activities al- together .... Where is the cost-effectiveness in consigning them to --- “terminal“” care _ in an institution? These are people who can and must be helped to help themselves. That this is their constitutional right is clearly affirm- ed in a number of recent decisions in various judicial jurisdictions. Rec 525 (1972). Unfortunately, Congress appar- ently assumed that § 504 would _ be en forced as had previous civil -126a- rights legislation and provided no- specific authorization for rule-making in the statute. This situation was remedied when President Ford signed Executive Order No. 11,914 on April 28, 1976 which required the secretary of the Department of Health, Education, and Welfare (now the department of Health and 4Human Services) to promulgate regulations for the enforcement of §$ 504. It was not until 1977, however, that such regula- tions were published. See Cherry v. Mathews, 419 F. Supp. 922 (D.D.C. 1976). At the Supreme Court has recognized, these ‘regulations are especially helpful in interpreting the congressional intent in passing § 504. This is true because the _ responsible congressional committees participated in -127a- their formation and both those - com- mittees and Congress as whole endorsed the final product. See Consolidated Rail Corp. v. Darrone, 104 S. Ct. 1248, 1254-55 & n.15 (1984). Plaintiff relies in particular on 45 C.F.R. §§ 84.4(b) (1) (i)-(iv) which state: (b) Discriminatory ac- tions prohibited. (1) A recipient, in providing any aid, benefit, or service, may not, di- rectly or through con- tractual, licensing, or other arrangements, on the basis of handicap: (i) Deny a qual- ified handicapped person the opportunity to par- ticipate in or benefit from the aid, benefit, or service; (ii) Afford a qualified handicapped person an opportunity to participate in or ben- efit from the aid, ben- efit, or service that is not equal to that af- forded others; -128a- (iii) Provide a qualified handicapped person with an aid, benefit, or service that is not as effective as that provided to others; (iv) Provide dif- ferent or separate aid, benefits, or services to handicapped persons- or to any class of handi- capped persons unless such action is necessary to provide qualified handicapped persons with aid, benefits, or serv- ices that are as effec- tive as those provided to others; The term “equally effective" is defined in the regulations as: (2) For purposes of this part, aids, benefits and services, to be equally effective, are not re- quired to produce the identical result or level of achievement for handicapped and non- handicapped persons, but must afford handicapped persons equal opportu- nity to obtain the same result, to gain the same -129a- benefit, or to reach the same level of achieve- ment, in the most inte- grated setting appro- priate to the person's needs. 45 cC.F.R. § 84.4(b)(2). These reg- ulations emphasize that, "although separate services must be required in some instances, the provision of unnecessarily separate or different services is discriminatory." 20 C.F.R. Part 84, Appendix A, 6. With these general consid- erations in mind, I will now turn to the specifics of plaintiff's Rehabilitation Act claim. Plaintiff alleges that the provision of services to her at Laurelton discriminates against her in -130a- violation of the act. She alleges that because other similarly situated people are provided services in more integrated settings such as in CLAs, her retention at Laurelton constitutes unnecessarily separate or different treatment which the regulations declare discriminatory. In order to state a claim under § 504,> plaintiffs must prove that 1) ‘ 4Plaintiff does not assert that § 504 requires deinstitutionalization as a general matter. I note that this claim has not been warmly received by the courts. See, e.g., Kentucky Ass'n for Retarded Citizens v. Conn, 510 F. Supp. 1233, 1243-44 (W.D. Ky. 1980), aff'd, 674 F.2d 582 (6th Cir.), cert. denied, 103 S. Ct. 457 (1982). SAlthough the Supreme Court has assidiously avoided this question, see, Consolidated Rail Corp. v. Darrone, 104 S. Ct. 1248, 1252 n.7 (1984), I believe that it is well established that Plaintiff possesses a private cause of action under § 504. Doe v. Coluatti. 592 F.2d 704, 708 n.8 (3d Cir. 1979). -l3la- they are handicapped within the meaning of the Act, 2) that they are "otherwise qualified" for the services sought, 3) that they were excluded from the services sought solely by reason of these handicaps, and 4) that the program in question receives federal financial assistance. Strathie v. Department of Transp., 716 F.2d 227, 230 (3d Cir. 1983); Doe v. New York University, 666 F.2d 761, 774-75 (2d Cir. 1981). It is beyond dispute that plaintiff is a handicapped person within the meaning of the Act. Doe v. Region 13 Mental Health Mental Retardation, 304 F.2d 1402 (5th Cir. 1983). I also believe that the parties do not dispute that plaintiff is "otherwise qualified” for the services she contends are being denied to her: a CLA. Indeed, given the record developed in this case, I -132a- would have no hesitancy finding plain- tiff to be so qualified even if I did believe that it was disputed. Defendants do contest, however, the other two requirements set forth above. Defendants argue that plaintiff has not been the victim of discrimina- tion solely on the basis of her handi- cap. They also argue that she had not made the necessary showing that’ the “federal funding" requirement of the Act has been wet.” 6 Defendants make two preliminary arguments regarding plaintiff's claim that they have violated the Rehabilita- tion Act. They argue that the Act does not reach discrimination among groups of handicapped persons. The only authority cited in support of this theory is dictum from Colin K. v. Schmidt, 715 F.2d 1, 9 (lst Cir. 1983). At least in this circuit, however, the cases have (FOOTNOTE CONTINUED) -133a- FOOTNOTE CONTINUED allowed claims under the Act involving assertions of discrimination between classes of handicapped persons. See Doe v. Coluatti, 592 F.2d 704 (3rd Cir. 1979) (challenging a Pennsylvania statute which discriminated against mentally handicapped persons’ vis-a-vis physically handicapped persons) see also 45 cC.F.R. § 84.4(b)(1) (iv) (discrimi- nation can be found in provision of unnecessarily different or separate services "to any class of handicapped persons."). Defendants also argue that the Rehabilitation Act does not require “affirmative actions" such-= as those sought by plaintiff. They rely on language to that effect in a number of Supreme Court cases construing the Act. See, e.g., Smith Vv. Robinson, 52 U.S.L.W. 5179, 5186 (July 5, 1984) (case involving reconciliation of 42 U.S.C. § 1983, § 504, and the Education of the Handicapped Act, 260 « 6U48.C. 5 415) : Southeastern Community College v. Davis, 442 U.S. 397, 411 °#£(1979). This reliance is misplaced. As the Court explained in Alexander v. Choate, 105 S. Ct. 712, 721 n.20 (1985) the Act requires elimination of existing obstacles to the participation of the FOOTNOTE CONTINU™D ON NEXT PAGE -134a- Defendants argue that the reason that plaintiff has been detained for twenty-nine years at Laurelton has nothing to do with her handicap, but is merely a result of inadequate funding. They argue that funds are simply not adequate to provide CLAs for all those who could benefit from them and that the available funds are disbursed in a nondiscriminatory fashion. I do not believe that defendant's argument is correct in all of its implications. I handicapped in federally funded programs. The Act does not, however, require "“'changes,' ‘adjustments,' or ‘modi fications’ to existing programs that would be ‘substantial’ ... or that would constitute ‘fundamental altera- tions in the nature of a program’ ... rather than ... those changes that would be reasonable accommodations." Plaintiff's requested relief in this case does not seek the widespread institutional changes or the dramatic changes in program organization that Alexander v. Choate held were beyond the scope of the Act. -135a- do believe, however, that plaintiff has failed to show that she has been discriminated against solely on the basis of her handicap as required by the Act. Plaintiff is mildly retarded. She lives at Laurelton with individuals of varying levels of retardation. There are also people with varying levels of retardation already placed in CLAs. I cannot explain the reason that plaintiff has not been given a CLA, and defendants could not offer any real explanation either, aside from a chronic lack of funds or bureaucratic misplacement of plaintiff over the years. Although I do not find these explanations satisfying, I cannot conclude that plaintiff has been detained at Laurelton solely because of her handicap as required by the Act. -136a- The Act prohibits discrim- ination against those who are _ hand- icapped based on that handicap where the person is otherwise qualified for the receipt of the funds or the services in question. The statute makes clear, however, that this discrimination must be based "solely" on the existence of a handicap. Plaintiff is alleging that she has been the victim of discrim- ination vis-a-vis other handicapped people. More precisely, she alleges that other mentally retarded people receive services for which she is also qualified and that she is harmed as a result. There is no allegation, how- ever, that plaintiff is denied a CLA because she is mildly retarded as opposed to severely or borderline retarded. If plaintiff had alleged and proved that she was denied a CLA because -137a- of her handicap and that the provision of services was operating to deny her e benefit on the basis of that handicap, she would have stated a claim under the Act. She has not, however, proved this theory. There are painfully few cases which address this issue. In Plummer v. Branstad, 731 F.2d 574 (8th Cir. 1984), plaintiffs challenged the state's deci- sion to shift them from a federally funded treatment program to ae state funded institutional program. The court concluded that the plaintiffs had not stated a claim under the Rehabilitation Act because they had not been excluded from services solely by reason of their handicap. The court stated "the cri- terion upon which the plaintiffs were -138a- excluded from Title xXx funding, [the federal program] ... on its face had nothing to do with their individual abilities, backgrounds, or circum- stances." Id. at 578. The court found that the basis of the transfer was that the plaintiffs received twenty-four hour a day treatment and care in a state run facility which provided substanti- ally the same services as those obtained from the federally funded agency. Id. The court concluded that the basis of the distinction drawn between plaintiffs and those who continued to receive’ the federally funded services was not the plaintiffs' handicaps per se, but rather their residence at a facility which provided essentially the same services to them at state expense. I recognize that Plummer rested on a magistrate's finding that the services available to -139a- plaintiffs were substantially the same as those available to them in_ the federally funded program. Indeed, the court went on to state that were it not for this fact, "[sJection 504 would prohibit a distinction based solely on ee. residence, given that persons live in [Linstitutions] only because of their handicapped status.” Id. at 579. Although this language would seem _ to Suggest that plaintiff in the instant case would be entitled to relief under the Act, a careful review of the facts of Plummer reveals that it is suffi- ciently different from the instant case to make this language inapposite here. Plaintiffs in Plummer were persons who were institutionalized in facilities known as an intermediate care -140a- ~ facilities ("ICFs"). These facilities were designed to provide twenty-four hour a day care for persons who required such care for medical reasons. The state also operated other facilities that did not house those in need of constant medical care. Thus the plaintiffs in Plummer who all lived in ICFs were housed in those facilities Only because of certain aspects of their handicaps. By contrast, plaintiff has been housed at Laurelton, not because of any particular aspect of her handicap, but simply because she is handicapped. There arc people at tewreiton who are more profoundly retarded than plaintiff and who function at lower intellectual and social levels. There may be in- dividuals there who function at a higher levels as well. Unlike the plaintiffs -14la- in Plummer, therefore, Laurelton resi- dents cannot be classified solely on the basis of their handicap’ relative to other mentally retarded people who are in CLAs. That is, the same general mix of mentally retarded people live in CLAs as live in Laurelton. Thus to say that plaintiff resides at Laurelton is not the same as saying that she has any particular form of handicap other that mental retardation and plaintiff only contends that she is discriminated against vis-a-vis other mentally retarded persons. See also Vickers v. Veterans Administration, 549 F. Supp. 85, 87, (W.D. Wash. 1982) (employee of Veterans Administration could not prove that he was a victim of discrimination at work solely by reason of his handicap where he had received good job reviews in spite of his complaints regarding the -142a- adverse health effects of his work); cf. Coates v. Illinois State Bd. of Educ., 559 F.2d 445, 449 (7th Cir. 1977) (plaintiffs had not stated a claim under Title VI, 42 U.S.C. § 2000d, where they had only alleged that a school district had provided equal services to racially imbalanced school population). I wish to emphasize that my decision here does not apply to a Situation in which a plaintift files suit under the Act alleging that she or he has been discriminated against vis-a-vis other handicapped persons and where that person omit point to some trait related to his or her handicap as defining the class of persons discriminated against. For example, if a plaintiff alleged that he or she was kept in an institution and denied a CLA -143a- because of the level of his or her handicap and that person were otherwise qualified for the CLA, my decision in this case would not control. I also wish to emphasize that I have not assumed that the Act reaches only to intentional discrimination. In Alexander v. Choate, 105 ‘S. Ct. 712 (1985), the Court held that not all actions under the Act required proof of intentional discrimination. In at least some circumstances, the court held that proof of disparate impact was all that was required. My decision here is not that the actions of the defendants do not violate the Act because they did not choose to keep plaintiff at Laurelton out of a conscious desire to discrim- inate against her on the basis of her handicap, but rather that the basis of -144a- the discrimination (whether intentional or unintentional) was not a factor related to the handicap plaintiff claims forms the basis or the discrimination. Plaintiff relies on a number of cases to support her clain that she has been the victim of prohibited discrimination. In Halderman Vs Pennhurst State School & Hospital, 446 F. Supp. 1295, 1323-1324 (E.D. Pa. 1977), aff'd on other grounds, 612 F.2d 84 (3d Cir. 1979) (en banc), rev'd, 451 U.S. 1 (1981); on remand 673 F.2d 647 (34 Cir. 1982) (en banc), rev'd, 104 S. Ct. 900 (1984) (The iliac portion of the original district opinion has not been addressed by the appellate decisions), Judge Broderick of this court. held that the segregation of the handicapped in an isolated institution -145a- such as Pennhurst without' minimally adequate habilitation constituted a violation of the Rehabilitation Act. He stated:, "Cwle hold... that under Section 504 unnecessarily separate and minimally inadequate services are discriminatory and unlawful." Id. at 1323-24. Pennhurst, of course, involved a broad challenge to the very existence of Pennhurst State School based on a variety of different legal theories. [In their Rehabilitation Act claims, plain- tiffs therein argued that the segrega- tion of mentally retarded persons into an institution like Pennhurst was actionable discrimination under the Act. In determining that defendants had violated the Rehabilitation Act, the Pennhurst court concluded that in enact- ing the Act, Congress had effectively codified the constitutional right to -146a- equal protection. Id. at 1323. Because the court had already determined that the segregation of mentally retarded persons at Pennhurst violated the equal protection clause, it concluded that the Rehabilitation Act had also been vio- lated. Id. Judge Broderick's conclu- sion was based on Pennsylvania Ass'n for Retarded Children v. Pennsylvania, 343 F. Supp. 279 (E.D. Pa. 1972). He held, in effect, that the equal protection clause prohibited the segregation of the mentally retarded in an isolated insti- tution where habilitation does not measure up to minimally adequate standards. Id. The court did not, however, detail this theory and did not state whether the basis of its decision was a finding that the mentally retarded -147a- were a suspect class or whether educa- tion was a fundamental right. There is also no discussion of the equal weotec= tion analysis used to evaluate these claims. Although other aspects of Pennhurst received large amounts of appellate discussion, this particular aspect of the district court decision was not reviewed because the Third Circuit felt compelled to rest its decision on statutory rather than constitutional grounds and therefore did not reach this holding. See 612 F.2d at 94. Three dissenting judges of the en banc court did, however, reach this holding. They concluded that the state had a rational basis for the classi- fication chosen. See id. at 130 (Seitz, Ch. J., Aldisert and Hunter JJ., dis- senting). -148a- Similarly, in Association for Retarded Citizens of N.D. v. Olson, 561 F. Supp. 473, 493 (D.N.D. 1982), aff'd on other grounds, 713 F.2d 1384 (8th Cir. 1983), the court held that the Act mandates that a state give the mentally retarded equal educational opportunity. Id. In Olson, plaintiffs challenged treatment and conditions at two state hospitals. They sought alternatives to treatment at those facilities. The court held that as between mentally retarded people and those who are not mentally retarded, the equal protection clause of the four teenth amendment required the state to justify its discrimination against the mentally retarded by at least showing that "disparities in educational opportunity which exist between the mentally re- tarded and other citizens’ substantially -149a- furthers important state interests." Id. at 490.’ The court also concluded that plaintiffs claims of discrimination among classes of mentally retarded people (those in institutions nae those who live in community placements) were best evaluated under a rational basis test. Id. The court's holding under the Act was expressly predicated upon a conclusion that the Act and the equal protection clause were essentially the same in terms of prohibiting certain forms of discrimination against the handicapped. Assuming that the court's /The decision that mentally retarded persons are a suspect class deserving of at least intermediate scrutiny appears to be inconsistent with the present law of this circuit. See Doe v. Coluatti, 592 F.2d 704, 710-11 (Jra Cir. i197F) « -150a- analysis of the plaintiffs' equal protection claims was correct, I believe that its conclusion that the rational basis test applies to claims of discrimination between classes of mentally retarded people effectively means that it would have had to find virtually all such discrimination permissable. I have read the Olson decision carefully and find no holding therein which suggests that the court invalidated, or meant to enjoin, any discrimination between those in institutions and those in community placements. Finally, plaintiffs relies on Garrity v. Gallen, 522 F. Supp. 171, 205-218 (D.N.H. 1981) a case similar to Pennhurst in which plaintiff challenged the conditions at a state school for the mentally retarded. The court rejected -15la- the conclusion reached by Judge Broderick in Pennhurst'- and concluded that the Act does [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_2530%3A2. Public record. Not legal advice.