There's No Place Like Home: The Right to Live in the Community for People with Disabilities, Under International Law and the Domestic Laws of the United States and Israel

Israel Law Review 45(2), pp. 181-233, 2012

53 Pages Posted: 17 Jul 2012

See all articles by Arlene S. Kanter

Arlene S. Kanter

Syracuse University - College of Law

Date Written: June 2012

Abstract

This article explores the developing ‘right to live in the community’ for people with disabilities under international law and the domestic laws of two countries: the United States and Israel. In 2006, the United Nations adopted the Convention on the Rights of People with Disabilities (CRPD). This Convention embraces a human rights approach to disability, based on the principles of equality, dignity, freedom and inclusion. Based on these principles, Article 19 of the CRPD includes a specific right of all people with disabilities ‘to live in the community, with choices equal to others.’ The author argues that the mandate of community living in Article 19 supports an explicit legal right of all people with disabilities not only to live in the community, but to choose where to live and with whom, and with supports, as needed. This new international legal right to live in one’s own home in the community also advances the goals and principles of the domestic laws of the US and Israel. In the US, the Americans with Disabilities Act (ADA) protects the right of people with disabilities to receive services in ‘the most integrated’ setting. Relying on this ‘integration mandate,’ the US Supreme Court, in 1999, upheld a limited right of people with disabilities to live in the community in Olmstead v LC and EW. In Israel, the Parliament (Knesset) enacted a law similar to the ADA in 1998. This law, the Equal Rights of Persons with Disabilities Law (‘Equal Rights Law’) includes a general right of people with disabilities to equality and non-discrimination. Although the current version of the Equal Rights Law does not include a specific section on the right to live in the community, the basis for such a right may be found in other sections of the law as well as in other Israeli laws. In the recent case of Lior Levy et al., however, the Israeli High Court of Justice recognized a limited right to live in the community, but failed to invalidate as discriminatory the Israeli government’s policy of placing people with disabilities in large institution-like hostels rather than in homes in the community. The author concludes the article with a discussion of the scope and meaning of community living and the extent to which institutions as well as group homes and other community housing that functions just like an institution should be prohibited under the CRPD as well as US and Israeli law.

Keywords: Disability, Americans with Disabilities Act (ADA), Israeli Equal Rights of People with Disabilities Act, right to live in the community, Olmstead, Convention on the Rights of People with Disabilities (CRPD)

JEL Classification: J71

Suggested Citation

Kanter, Arlene S., There's No Place Like Home: The Right to Live in the Community for People with Disabilities, Under International Law and the Domestic Laws of the United States and Israel (June 2012). Israel Law Review 45(2), pp. 181-233, 2012. Available at SSRN: https://ssrn.com/abstract=2109795

Arlene S. Kanter (Contact Author)

Syracuse University - College of Law ( email )

Syracuse, NY 13244-1030
United States

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