The Limits of Negative Rights Claims in Social Change Litigation: A Disability Law Perspective on Grants Pass
Document Type
Article
Publication Date
2025
Abstract
This essay, prepared for a symposium on disability law, examines the Supreme Court's 2024 decision in City of Grants Pass v. Johnson through the lens of disability rights litigation. In particular, it draws parallels between the litigation that culminated in Grants Pass and the history of deinstitutionalization litigation.This essay, prepared for a symposium on disability law, examines the Supreme Court's 2024 decision in City of Grants Pass v. Johnson through the lens of disability rights litigation. In particular, it draws parallels between the litigation that culminated in Grants Pass and the history of deinstitutionalization litigation.
Grants Pass overturned the doctrine the Ninth Circuit established in Martin v. City of Boise and subsequent cases. The Martin cases had held that the Eighth Amendment's Cruel and Unusual Punishments Clause prohibited municipalities from criminalizing sleeping in public spaces when homeless individuals had no alternative shelter available. This essay argues that, even before the Supreme Court overturned it, the Martin doctrine had very serious limitations as a tool for addressing punitive approaches to homelessness. Those limitations stemmed from Martin's reliance on individual negative rights claims. In this way, Martin was similar to the early deinstitutionalization litigation of the 1960s and 1970s. Just as those early cases could prevent involuntary institutionalization but couldn't secure community-based services, the Martin doctrine could block certain punitive responses to homelessness but couldn't address underlying systemic causes or prevent cities from coercing homeless people into inappropriate facilities.
Drawing on the evolution of deinstitutionalization litigation, the essay suggests that advocates might more effectively address homelessness by employing the "integration mandate" established under the Americans with Disabilities Act and elaborated in the Supreme Court's decision in <.em>Olmstead v. L.C. (1999). The integration mandate, which requires states to administer services in the most integrated setting appropriate, has proven successful in securing community-based services for people with disabilities in many cases. Given the high proportion of homeless individuals who have disabilities, the integration mandate could provide leverage for expanding affordable housing and supportive services while avoiding the limitations of constitutional negative rights claims.
Grants Pass overturned the doctrine the Ninth Circuit established in Martin v. City of Boise and subsequent cases. The Martin cases had held that the Eighth Amendment's Cruel and Unusual Punishments Clause prohibited municipalities from criminalizing sleeping in public spaces when homeless individuals had no alternative shelter available. This essay argues that, even before the Supreme Court overturned it, the Martin doctrine had very serious limitations as a tool for addressing punitive approaches to homelessness. Those limitations stemmed from Martin's reliance on individual negative rights claims. In this way, Martin was similar to the early deinstitutionalization litigation of the 1960s and 1970s. Just as those early cases could prevent involuntary institutionalization but couldn't secure community-based services, the Martin doctrine could block certain punitive responses to homelessness but couldn't address underlying systemic causes or prevent cities from coercing homeless people into inappropriate facilities.
Drawing on the evolution of deinstitutionalization litigation, the essay suggests that advocates might more effectively address homelessness by employing the "integration mandate" established under the Americans with Disabilities Act and elaborated in the Supreme Court's decision in Olmstead v. L.C. (1999). The integration mandate, which requires states to administer services in the most integrated setting appropriate, has proven successful in securing community-based services for people with disabilities in many cases. Given the high proportion of homeless individuals who have disabilities, the integration mandate could provide leverage for expanding affordable housing and supportive services while avoiding the limitations of constitutional negative rights claims.
Recommended Citation
Bagenstos, Samuel R., "The Limits of Negative Rights Claims in Social Change Litigation: A Disability Law Perspective on Grants Pass" (2025). Public Law & Legal Theory Working Papers. 39.
https://repository.law.umich.edu/pub_law_archive/39