ADA Complaint to the Supreme Court of Texas
Our attention was recently drawn to the adult guardianship system in Texas – a system that operates under the administrative supervision and control of the Supreme Court of Texas as the head of the judicial department of the State of Texas.
A complaint filed with the Supreme Court in March 2018 by Juliette Fairley alleged that the Bexar County Probate Court is processing guardianship cases and providing oversight and protection to wards in a manner that violates the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973. The complaint gave examples of how Ms. Fairley's own father's rights have been violated by his court-appointed guardian and his court-appointed attorney. A list of similar cases in Bexar county was attached to the complaint.
After reviewing that complaint and supporting documents, we decided to investigate the extent to which statewide policies and practices in Texas may be violating these federal nondiscrimination laws. We reviewed the Texas Constitution, state statutes, rules of court, and reports that have been published by government agencies documenting deficiencies in the adult guardianship system in Texas. We also searched the websites of the Texas Judicial Branch and the State Bar of Texas. We also reviewed statutes, regulations, and case law involving Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973.
Our review of these materials has caused us to conclude that the Supreme Court of Texas – a public entity within the meaning of Title II of the ADA and a recipient of federal funds under Section 504 – is allowing the adult guardianship system to operate in violation of the mandates of the ADA and Section 504. As a result, we have filed a complaint with the Supreme Court in order to protect individuals whose rights are being violated by this system and who are unable to file such a complaint with this Court due to the nature of their cognitive and communication disabilities: (1) adults who have been adjudicated wards and whose cases are active; and (2) adults whose cases are pending but have not yet been adjudicated as wards of the state.
"Access to justice" for people with disabilities is required by the ADA. The denial of such in Texas guardianship proceedings stems in large measure from two problems. First is the failure of the courts to appoint an attorney in about 10 percent of cases to represent respondents who have significant cognitive and communication disabilities, thereby precluding them from meaningful participation in their cases. The nature of their disabilities prevents them from advocating for or defending their rights. The second problem has been raised by some judges who report that even when attorneys are appointed, they are not prepared or qualified. They therefore do not provide effective representation (as required by the ADA). These ADA violations infect the entire case and call into question the fairness of the result as well as the process. Decision-making rights are sometimes surrendered or lost due to the failure of proper advocacy and defense. Less restrictive alternatives are sometimes not explored because an unprepared attorney does not make the system seriously consider such alternatives.
Our complaint asks the Supreme Court to make the necessary modifications in policies and practices to bring the state's adult guardianship system into compliance with the requirements of the ADA and Section 504. A copy of the complaint has been sent to various state agencies and organizations. An informational copy has also been sent to the Civil Rights Division of the United States Department of Justice.
Court statistics reveal that more than 54,000 adults are under an order of guardianship in Texas. Most of them are men and women with intellectual and developmental disabilities while many are seniors experiencing cognitive decline and others are adults of various ages whose cognitive functioning has been impaired by an injury or medical illness.
The population of seniors in Texas has increased by more than 19% since 2012 to nearly 3.4 million. The number of vulnerable adults with disabilities -- between the ages of 18 and 64 -- has risen more than 6% since 2012 to 1.7 million and will likely increase an additional 16% by 2025. Because such increases in both populations are predicted for future decades, it is expected that guardianship caseloads will also increase over time. The question is whether the judicial branch in Texas will provide access to justice for seniors and vulnerable adults who become ensnared in these proceedings. Our complaint calls the attention of the judiciary to documented deficiencies in the guardianship system -- deficiencies that place respondents at risk of abuse and neglect.
Throughout his 44 years as a civil rights attorney, Thomas F. Coleman has advocated for a variety of causes and minority populations, including cases and projects promoting justice and equal rights for people with intellectual and developmental disabilities.
As legal director of Spectrum Institute, Coleman has worked closely with Dr. Nora J. Baladerian on issues involving abuse and disability. He is the primary author of “The First Report: Victims and Their Families Speak Out” – an analysis of the 2012 Survey on Abuse of People with Disabilities, which is the largest national survey on abuse and disability ever conducted in the United States.
For the past few years, Coleman has directed the Disability and Guardianship Project of Spectrum Institute. Starting his focus in California, Coleman’s advocacy for guardianship reform has broadened to become a national cause.
Pursuit of Justice -- a film about
the guardianship reform advocacy of Coleman, Baladerian, and a growing
network of supporters and activists -- was released on March 1, 2018.
In the month since its release, the film has been viewed by nearly a
thousand people in all parts of the United States and abroad. For more
information about the film, and to view it online, go to: