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DOJ memo stokes fear among disability advocates of a return to institutionalization

The exterior of the Robert F. Kennedy Department of Justice building is pictured on May 4, 2021, in Washington, D.C. Patrick Semansky/AP hide caption The Justice Department released a memo this week that quietly calls into question decades of civil rights protections for Americans with disabilities and stirred fear and anger among advocates and families. The memo, an opinion from the Office of Legal Counsel, argues that states do not have to provide in-home or community-based care to people with disabilities who need support. These services allow many disabled Americans to continue to live, learn and work at home or in their own communities, among family and friends. "It is now the position of the United States government that people with disabilities don't have a right to be part of their communities," says Alison Barkoff, a health law and policy professor at George Washington University who led disability law and policy efforts during both the Obama and Biden administrations. What's more, the memo argues, the Supreme Court's Olmstead decision "held only that a state cannot institutionalize such patients without justification." But, the memo adds: "What counts as adequate justification remains an open question." At one point, Pettit acknowledges the novelty of this reading: "We recognize that this view of Olmstead 's import is out of step with the common understanding of that decision within the federal courts." "The United States government since 1977 has taken the position that [federal law] includes an integration mandate that requires services to be provided in the most integrated setting appropriate," says professor Barkoff, who worked in the Obama Justice Department leading its Olmstead enforcement efforts. The courts and Congress decided institutionalization should be a last resort because people's personal liberty is at stake, says Jennifer Mathis of the Bazelon Center for Mental Health Law: "Who you can see, when you can go out, when you eat, what you eat. Congress makes laws, not agencies. The Justice Department memo appears to be the latest salvo in a broader effort that began on July 24, 2025, when President Trump issued an executive order intended to make it easier for state and local governments to police homelessness.