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March 26, 2012

The Justice Department’s Special Litigation

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The ideologues in the Civil Rights Division of the Holder Justice Department are proving themselves to be not only blindly partisan, but legally incompetent. In the process, they are hurting disabled individuals and their families, while costing the American taxpayer big bucks. Americans simply cannot afford the price of this incompetence and ideological zealotry.

Case in point: the persecution of the Conway Human Development Center, an institution for developmentally disabled individuals operated by the state of Arkansas.

In early 2009, the Special Litigation Section of the Civil Rights Division filed a complaint against Conway. Its claim: that Conway had “egregiously and flagrantly” engaged in “patterns and practices . . . that violate the constitutional rights of its residents.” Alleging a “substantial departure from accepted professional standards,” the government claimed that Conway had failed to protect residents’ personal safety “by failing to provide the level of habilitation and training necessary to protect the residents’ liberty interests” and that it had substantially departed from “generally accepted standards of care,” refused to provide residents the “most integrated, least restrictive” environment, and “violated the rights of children” by failing to provide them “free appropriate public education.” By “integrated” and “least restrictive,” DOJ meant allowing interaction “with nondisabled persons to the fullest extent possible.”  

This, despite the lack of a single concrete or general complaint on the part of any resident of the center or any resident’s family members or guardian!

In a painstakingly detailed 85-page opinion, U.S. District Judge J. Leon Holmes concluded that the Civil Rights Division’s claims were almost all baseless. The Conway Center’s practices and procedures, he found, were not only “permitted” but well “within the bounds of generally accepted practice.”

Judge Holmes assailed both the caliber of the government’s witnesses — calling them “unpersuasive . . . [and] not qualified” — and the Justice Department’s rationale for pursuing the complaint in the first place. “Most lawsuits are brought by persons who believe that their rights have been violated,” he wrote. “Not this one.”

Indeed, the concerned parents and guardians of the Conway patients opposed the division’s claims. Many parents went so far as to take the witness stand to defend Conway: “We’re happy that he’s in an environment where we know he’s safe and he’s going to get good sound medical care,” testified Michael Black about his teenage son. “I can rely on them,” said another parent.

All the testimony by those actually connected with the Conway Center revealed a “genuine love and care for the residents,” according to Judge Holmes. “Thus,” he added, “the United States is in the odd position of asserting that certain persons’ rights have been and are being violated while those persons . . . disagree.”

The DOJ’s charges also were inconsistent with the government’s own evaluation of the center. As an authorized recipient of Medicaid funds, the Conway Center met all the standards set by the Department of Health and Human Services for proper and humane care. Yet this seemed of no import to the ideologues in the Special Litigation Section, who blithely credited the judgment of agenda-driven DOJ bureaucrats over that of medical professionals and health-care experts at HHS.

The Conway case was “dismissed with prejudice.” That’s quite a statement about the failure of the staff in the Special Litigation Section and the political appointees in the Civil Rights Division who supervise them. Take Jonathan Smith, who, before being appointed the chief of the litigation section, spent nearly ten years directing the liberal non-profit Legal Aid Society of the District of Columbia. He had previously spent another nine years at the D.C. Prisoners’ Legal Services Project. With such ideologues leading the suit against Conway, it is little surprise that the case was so long on politics and so short on law.

During the Clinton administration, the Civil Rights Division was sanctioned in eleven different lawsuits, paying out more than $4.1 million in attorneys’ fees and costs for filing frivolous and unwarranted lawsuits. By comparison, the much (and unfairly) criticized Bush Civil Rights Division had not a single such case.

Judge Holmes has already awarded $150,000 to Arkansas over this lawsuit. The Obama administration seems determined to match the Clinton administration’s embarrassing record. Yet this waste of taxpayer funds hasn’t stopped Eric Holder from requesting even more money for the Civil Rights Division.

Interestingly, five of the same DOJ lawyers who prosecuted Conway brought identical charges against the state of Arkansas’s entire mental-health system in mid-2010. Displaying either great incompetence or even greater hubris, these ace lawyers simply ignored the necessary procedural requirements in the case, prompting a motion by Arkansas asking the federal court to dismiss the complaint. The division’s attorneys, by their own admission, had “not complied with the statutory prerequisites to suit,” but amazingly claimed that they had “the authority to enforce the [Americans with Disabilities Act] without going through” the procedures required by the applicable statute. This case was quickly dismissed by Judge Holmes in early 2011 because of DOJ’s failure to comply with federal law.

The big question, of course, is: Why? Why waste time and money haranguing institutions that by all reasonable standards provide a valuable and worthwhile service? Part of the explanation, as is so often the case in the Civil Rights Division, is that the attorneys populating the Special Litigation Section are captive to radical advocacy organizations. Many of them served as attorneys for these organizations before Eric Holder recruited them into government service with his laughable “apolitical” crusade to “reinvigorate” the Civil Rights Division, which he claimed had “suffered” during the Bush administration. In this case, the DOJ attorneys are targeting traditional Medicaid mental-health institutions in an attempt to get more patients into the Medicaid waiver program, which allows mental-health services to be provided in home and community settings rather than institutions. The Obama administration hails this program as “providing an alternative to institutionalization.”

The Civil Rights Division apparently believes that small, private or state-run mental-health institutions are the wrong way to treat the disabled. So it is using litigation to spearhead a national deinstitutionalization effort. This is part of a long-term project that many have by now characterized as a failed experiment in closing down mental-health facilities in favor of so-called “community care” at home or in other non-institutional settings.

This liberal policy has led to the huge increase of homeless people living on the streets or being incarcerated in jails and prison or placed in other facilities, like shelters, that are usually worse than the hospitals that had been closed. DOJ’s enthusiasm for waiver programs is a public-policy judgment, not a legal issue. The Special Litigation Section lawyers seem unable to distinguish between enforcing existing law and abusing the law to force changes in health-care options with which they happen to disagree.

As Judge Holmes pithily observed in his opinion in the Conway case, “It is a mistake to assume that every disabled person” is better served in waiver programs. Clearly the parents of those at such centers as Conway believe a caring institution is the best treatment option for their children.

What the Conway case ultimately reveals is that the Civil Rights Division’s accusations are often not motivated by the facts or grounded in the applicable legal standards. Instead, the division’s actions reflect a militant campaign to foist a one-size-fits-all approach to mental health on the country.

The real tragedy is that, in advancing their particular ideological viewpoint, the not-so-benevolent bureaucrats in the Civil Rights Division are more than willing to run roughshod over good sense, parental rights, the best interests of patients, and basic legal procedures and requirements. But unless more states act like Arkansas and fight back, the division may well get away with it.

Hans von Spakovsky is a senior legal fellow at the Heritage Foundation.

First appeared in National Review Online

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