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The Justice Department’s Special Litigation
Eric Holder’s “apolitical” crusade.

U.S. District Judge J. Leon Holmes

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Hans A. von Spakovsky

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.

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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 and a former lawyer in the Civil Rights Division of the Justice Department. Travis LaCouter is a member of Heritage’s Young Leaders Program.



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