Forward to Fundamental Alteration: Addressing ADA Title II Integration Lawsuits After Olmstead v. L.C.

77 Pages Posted: 12 Apr 2005 Last revised: 23 Oct 2015

See all articles by Jefferson Smith

Jefferson Smith

Harvard University

Steve Calandrillo

University of Washington - School of Law

Date Written: 2001


In 1999, the Supreme Court reviewed the case of Olmstead v. L.C. by Zimring, which has been called the Brown v. Board of Education for the law of disability discrimination. The Court ultimately agreed with the Department of Justice ("DOJ") and held that the Americans with Disabilities Act ("ADA"), along with its supplementary Integration Regulation, requires a State that offers treatment to persons with disabilities to provide such treatment in a community setting where such a placement would not be an unreasonable change or a fundamental alteration in the State's program. Advocates of community care have long argued that such care is superior to institutionalized care in cost, treatment success, and equity. The ADA is the latest in a long line of legal avenues whereby advocates of disability rights have attempted to fashion some right to community care for developmentally disabled and mentally ill people. Opponents argue that the application of the Integration Regulation adopted by courts and the Department of Justice is beyond the reach of the ADA, which is limited to situations of uneven treatment as between disabled and non-disabled individuals. Left open by the current debate, and by the opinions interpreting the relevant provisions of the ADA, is what measures might constitute "unreasonable modifications" or "fundamental alterations" such that the ADA would not require them.

This paper argues initially that (1) legislative history, (2) traditional deference for implementing regulations, (3) the weight of the pre-L.C. case law in the lower courts, and (4) public choice limitations on state power centers all suggest that the Supreme Court correctly held that the Integration Regulation does indeed apply to unnecessarily institutionalized individuals. However, state actors, advocates, and judges are still left without a well-developed list of arguments for whether and to what extent a proposed modification might be deemed unreasonable or a fundamental alteration such that the ADA Title II would not require it. The Supreme Court expressly called for limits to the application of the Integration Regulation and ADA Title II, and well articulated limits have yet to be developed. Thus, the bulk of the paper addresses and puts within an intellectual framework the arguments available to advocates and decision-makers attempting to keep ADA Title II within manageable bounds. The paper first addresses program integrity arguments in the context of each of three "ideal types," i.e., three general categories of cases. Then the paper addresses magnitude arguments that could apply to all three types of cases.

Keywords: ADA, Olmstead, fundamental alteration, Title II, integration, Americans with Disabilities Act, mental disability

JEL Classification: A10, I10, I1, I18, G38, D7, D78, H50, H5, L50, L5

Suggested Citation

Smith, Jefferson and Calandrillo, Steve, Forward to Fundamental Alteration: Addressing ADA Title II Integration Lawsuits After Olmstead v. L.C. (2001). Harvard Journal of Law & Public Policy, Vol. 24, No. 3, pp. 695-770 (2001), Available at SSRN:

Jefferson Smith

Harvard University ( email )

Cambridge, MA 02138
United States

Steve Calandrillo (Contact Author)

University of Washington - School of Law ( email )

William H. Gates Hall
Box 353020
Seattle, WA 98195-3020
United States
206-685-2403 (Phone)


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