A Job for the District

Wednesday, October 14, 2009

THREE DECADES ago, a federal judge concluded that the District had violated the constitutional rights "to be free from harm" of some 1,050 mentally disabled people committed to the Forest Haven facility. The city's notorious asylum -- where residents languished on urine-soaked mattresses, were beaten by staff members and lacked basic medical care -- has long since closed. Many of the residents have died, but the rest are in community-based living arrangements that reflect how the District is trying to transform the care of these vulnerable people. Nonetheless, the litigation persists, with the District remaining under federal court supervision.

Whether this is still appropriate is the fundamental question of D.C. Attorney General Peter Nickles as he launches an aggressive campaign to reassert local control. His efforts are not limited to the District's treatment of those with developmental disabilities. Mr. Nickles wants the courts to end their involvement in a host of other services -- from how the District educates those with special needs to how it ensures the welfare of children to how it treats those with mental illness. No doubt the plaintiffs in each of these cases are correct that problems persist, but Mr. Nickles is right to raise important issues of local autonomy, separation of powers and the efficacy of court supervision.

Mr. Nickles has seized on a recent U.S. Supreme Court decision to argue that continued court supervision is not only "unnecessary, but improper" when circumstances have changed. In Horne v. Flores, the court ruled that new factors in how Arizona taught its English-language learners needed to be taken into account in deciding whether court decrees should be followed. Mr. Nickles contends that the District's current social services operations bear no resemblance to those that existed when litigation began many years ago. Indeed, he says that if the lawsuits were brought today, no constitutional violation would be found.

He offers testimony about the human and financial cost incurred as the years of litigation have dragged on. "The services of the Court Monitor and Special Masters have cost more than $10 million from fiscal year 2000 until the present, with no end in sight," the city argues in the Forest Haven case.

There's some irony in this argument being advanced by Mr. Nickles, who as an attorney in private practice rightly championed the need for social change, no matter what the cost in dollars. And advocates for foster children and special-education students and those with mental disabilities are right in saying that the city is too often not up to the task. Who, for instance, can forget how the Banita Jacks case (in which four little girls died) revealed the failings of the child welfare system just as the city was trumpeting its supposed accomplishments?

Yet if court supervision continues until all problems have been resolved, it's safe to say the judges will be in charge forever. Mr. Nickles's arguments merit a fair hearing. If he succeeds in freeing the city from court supervision, there is no guarantee that progress will be advanced or even sustained. That, though, is always the risk when you invest power in local elected officials. So the question for the courts is: Is it one that's worth taking?


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