Amicus Curiae Brief — Cleburne v. Cleburne Living Center, Inc.

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ROTION FILED |

ceg- 2 BS UI

No. 84-468 LU

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1984

CITY OF CLEBURNE, TEXAS, et al.,

Petitioners,

CLEBURNE LIVING CENTER, et al..

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

MOTION AND BRIEF AMICI CURIAE OF

ASSOCIATION FOR RETARDED CITIZENS/USA

ASSOCIATION FOR RETARDED CITIZENS/TEXAS

NATIONAL DOWN SYNDROME CONGRESS

PEOPLE FIRST INTERNATIONAL AND PEOPLE FIRST

ORGANIZATIONS OF LOWA, LOUISIANA, MICHIGAN,

NEBRASKA, OREGON AND WASHINGTON

UNITED TOGETHER

S.T.A.N.D. TOGETHER

SPEAKING FOR OURSELVES

CONSUMER ADVOCACY BOARD OF THE MASSACHUSETTS

ASSOCIATION FOR RETARDED CITIZENS

TEXAS ADVOCATES

WISCONSIN ADVOCATES

CAPITOL PEOPLE FIRST

SELF-ADVOCATES OF CENTRAL NEW YORK

Thomas K. Gilhool*

Frank J. Laski

Michael Churchill

Judith A. Gran

Timothy M. Cook

PUBLIC INTEREST LAW CENTER

OF PHILADELPHIA

1315 Walnut St. Rm. 1632

Philadelphia, Pa. 19107

(215) 735-7200

“Counsel of Record Counsel for Amici Curiae

PACKARD PRESS / LEGAL DIVISION, 10th & SPRING GARDEN STREETS, PHILA., PA. 19123 (215) 236-2000

MOTION FOR LEAVE TO FILE BRIEF AMICI

CURIAE FOR THE ASSOCIATION FOR

RETARDED CITIZENS/USA, et ail.

Amici respectfully move this Court for an order grant-

ing leave to file the attached brief amici curiae on behalf of

respondents. Amici are organizations of retarded people and

their families and, as such, have a substantial stake in the

outcome of this case, i.e., whether they are to be accorded

the fullest reach of the Equal Protection Clause. Respond-

ents have consented to the filing of this brief. Amici have

requested that petitioners consent, but they have refused

to do so.

1. The Association for Retarded Citizens of the United

States (ARC/USA) is a national voluntary organization of

parents, families and friends of retarded people, as well as

of people who are retarded, directed and led since its found-

ing in 1950 by active volunteer parents. The Association is

organized into 1,360 local and 48 state-wide chapters, in

addition to chapters in United States territories and mili-

tary installations abroad. The ARC/USA is the national vol-

untary organization devoted solely to the interests of all

adults and children who are retarded whatever their race,

creed, national origin, residence, etiology or severity of

handicap. ARC/USA, which in 1974 changed its name from

“Retarded Children” to “Retarded Citizens,” was created

and exists today “to promote the general welfare of the men-

tally retarded of all ages everywhere, to encourage the for-

mation of [state and local] associations for Retarded Citi-

zens, [and] to advise and aid parents in the solution of their

problems. . . .” (ARC/USA Constitution, § 5). A leading

problem that led to the formation of the ARC/USA was to

overcome the historical discrimination and prejudice against

people who are retarded and to secure a rightful place for

them in society. Since its inception, the ARC/USA has vig-

orously challenged attitudes and public policy, based on

false stereotypes, that have authorized or encouraged seg-

regation and abuse of children and adults who are retarded,

in virtually all areas of life. It is the experience of ARC/USA

that retarded persons have the capability to enjoy and con-

tribute to the life of the community. To achieve the goal of

community living, the ARC/USA has adopted the following

official position:

“Persons with mental retardation of all functioning lev-

els. . . should have access to community residence and

services.

“Residential homes should be like others in the neigh-

borhood in terms of size and appearance. They should

be dispersed throughout the community, rather than

congregated in one neighborhood.”

In the experience of the Association, the segregation of per-

sons who are retarded continues to be widely practiced and

vigorously defended. The continuing work of the ARC/USA

is based upon the reality that, as its official position states:

“The fundamental rights of people who are mentally re-

tarded are not vet fully acknowledged or secured, despite

the vigorous efforts of advocates to help them achieve the

same basic human and constitutional rights as other human

beings.”

2. The Association for Retarded Citizens of Texas

(ARC/Texas) is composed of fifty-five local chapters through-

out the state. A non-profit association founded by parents in

1950, like ARC/USA, ARC/Texas has among its official pur-

poses “[t]o insure that persons with retardation are ac-

cepted by the public as fully participating members of so-

ciety and live in conditions most conducive to their opti-

mum development. ”

The opinions expressed in the record before the City Coun-

cil of Cleburne and its excluding actions, in the experience

of ARC/Texas, arise commonly across Texas. Combatting

these exclusionary actions so that retarded people may have

a decent and respected place in Texas’ communities, con-

stitutes the most substantial and pressing part of the work

of ARC/Texas.

3. The National Down Syndrome Congress is a voluntary

organization of parents and families of people with Down

syndrome. Established as a national organization in 1974,

the National Down Syndrome Congress is a network of more

than 600 parent groups serving the needs of families in their

local communities. Among its official purposes are “[t]o ad-

vocate for the realization of the full spectrum of human and

civil rights for persons with Down syndrome” and“[t]o ad-

dress the social policies and conditions that limit the full

growth and potential of children and adults with Down

syndrome.”

People with Down syndrome evoke a quintessential ster-

eotype of retardation, provoking and sustaining a sense of

their differentness and danger. The label “mongoloid” was

a response to their “facial” difference and supported their

official exclusion from common society, which denied their

humanity and the reality of their capabilities. Compare the

view that the “mongoloid” is an atavistic regression to a

more backward race, expressed in John Langdon Down,

Observations on an Ethnic Classification of Idiots, LON-

DON HOSPITAL CLINICAL LECTURES AND REPORTS 209

(1866), and in F. G. CROOKSHANK, THE MONGOL IN OUR

MIDsT (1924) — a view whose legacy in public opinion and

official action amicus seeks to overcome — with, e.g., S. M.

PEUSCHEL, DOWN SYNDROME: GROWING AND LEARN-

ING (1978), a view amicus seeks to bring to popular and

official understanding and action.

4. People First International; United Together;

S.T.A.N.D. Together; Speaking for Ourselves; People First

of lowa, Louisiana, Michigan, Nebraska, Oregon and Wash-

ington; the Consumer Advisory Board of the Massachusetts

Association for Retarded Citizens; Texas Advocates; Wis-

consin Advocates; Capitol People First; and Self-Advocates

of Central New York are each established and led by per-

sons with retardation. All share a common purpose: to sup-

port their members’ right to speak for themselves rather

than let others speak for them, to make their own decisions,

and to know and exercise their rights as citizens, including

the right to live in the community.

People First International was formed in 1974 by former

residents of Fairview Training Center who met in Salem,

Oregon to discuss forming their own organization. Conver-

sation turned to the selection of a name and someone said,

“Why not call ourselves People First, because we want to

be known as people before we re known for our handicap. ”

People First International provides support services and

advocacy for persons who are retarded and are moving from

institutions into the community. People First International

members serve on Boards of Directors of other national and

state-wide organizations concerned with developmental dis-

abilities, and have testified at a variety of state and local

legislative bodies concerning zoning. sterilization, guardi-

anship and other issues.

United Together, a nationwide network of disabled self-

advocates, was formed in 1980 at a national conference in

Kansas City, Missouri. At that meeting, people with retar-

dation met and talked about the issues they considered im-

portant: housing, transportation, employment, health care

and basic human rights. A group of representatives was

elected, one from each of the ten federal regions. Since

then the group has organized a national conference that was

totally planned and run by people with disabilities and has

conducted workshops for professionals, parents, and gov-

ernment agencies.

People First of lowa, Louisiana, Michigan, Nebraska,

Oregon and Washington are each state-wide organizations,

formed in 1982, 1983, 1980, 1978, 1983 and 1974, respec-

tively. S.T.A.N.D. together of Maryland, Speaking for Our-

selves in Pennsylvania, the Consumer Advisory Board of

the Massachusetts Association for Retarded Citizens, Texas

Advocates, and Wisconsin Advocates, are each state-wide

self-advocacy organizations. Capitol People First is a self-

advocacy organization for persons with retardation in cen-

tral California. Self-Advocates of Central New York was

er =

formed in 1984: most members are former residents of New

York State institutions for retarded people now living in the

community.

All these organizations have members who have lived

in institutions and now live in group homes in the commu-

nity, and members who still live in institutions but wish to

live in the community. Many have suffered from efforts to

exclude their group homes from neighborhoods. Policy

statements by these organizations on discriminatory zoning

legislation and statements by their members on the impor-

tance of the right to live in the community are contained in

Appendix C to the attached brief.

5. The ordinance at issue in this case is part of a pattern of

historic, state-imposed segregation. Overcoming this pat-

tern of discrimination is amici's common goal. Amici are

intimately familiar with the prejudice at issue in this case,

and provide what they believe to be an important and unique

perspective not elsewhere presented, that strict and search-

ing scrutiny should be applied to the ordinance at issue in

this case.

For these reasons, this Motion for Leave to File a Brief

as Amici Curiae should be granted.

Respectfully submitted,

Thomas K. Gilhool*

Frank J. Laski

Michael Churchill

Judith A. Gran

Timothy M. Cook

PUBLIC INTEREST LAW CENTER

OF PHILADELPHIA

1315 Walnut Street, Suite 1632

Philadelphia, PA 19107

(215) 735-7200

February, 1985 Counsel for Amici Curiae

*Counsel of record.

TABLE OF CONTENTS

TABLE OF AUTHORITIES.....................

Sopp 8 ee & re

SUMMARY OF ARGUMENT ...................

ee ee

Il.

THE CLEBURNE ORDINANCE IS PART OF

A PATTERN OF STATE-IMPOSED LIFE-

LONG SEGREGATION OF RETARDED

PEOPLE, THATIN ANIMUS AND PURPOSE-

FUL UNEQUAL TREATMENTIS PARALLEL

TO THE TREATMENT OF BLACK PER-

CLASSIFICATIONS BASED UPON

RETARDATION THAT EXCLUDE AND

SEGREGATE RETARDED PERSONS ARE

SUSPECT AND SHOULD BE GIVEN

STRICT AND SEARCHING SCRUTINY. ....

A. A History of Purposeful Unequal Treatment

\ Imposed by the State Triggers the Standard

for Strict Scrutiny of Legislative Classifica-

Py ee cce esc se rene bere deviateveuenees

B. Retardation Is an Immutable Characteristic

That Has Been Subject to Invidious Classifi-

6 sn a en 6 6 Pee Aeon 6b aban

C. Utilization of a Suspect Standard for Dis-

advantaging Classifications Will Not Be Fatal

to Classifications that Benefit Retarded

PN 54h od woicbos a cokutauhseeenn buns

TABLE OF CONTENTS— Continued)

Page

D. Cleburne’s Exclusion of Retarded People

from the Community Is Perverse: It Cannot

Be Justified on the Basis of any Characteris-

tic or Need of Retarded People .......... 25

Ill. THE CONTINUED VIRULENCE OF

CLASSIFICATIONS EXCLUDING AND

SEGREGATING ON THE BASIS OF

RETARDATION REQUIRES THEY BE

GIVEN STRICT AND SEARCHING

Er ey re ey ee re ee ee 27

CAPO 50 ase Reese ecinddcssreveeresess 30

Appendix A. Compendium of Purposeful State Ac-

tion For the Segregation and Exclusion

of Retarded Persons in the Fifty States

and the District of Columbia

Appendix B. Texts of the 1947 Zoning Ordinance of

the City of Cleburne And the 1929 Zon-

ing Ordinance of the City of Dallas

Appendix C. Statements of Amici Self-Advocacy

Organizations

Appendix D. Bibliographical Note on Historical

Sources: Eugenics, Race, Retardation,

Immigration

TABLE OF AUTHORITIES

Cases: Page

Ambach v. Norwick, 441 U.S. 68 (1979) ........... 23

Bell v. Maryland, 378 U.S. 226 (1964)............. 4

Berea College v. Kentucky, 211 U.S. 45 (1908) .... 19

Board of Education of Hendrick Hudson School Dis-

trict v. Rowley, 458 U.S. 176 (1982) ..... 14, 24, 28

Board of Regents of the University of California v.

Bakke, 438 U.S. 265 (1978).............. 3, 24, 28

Buchannan v. Worley, 214 U.S. 60 (1916)....... 25, 26

Cabell v. Chavez-Salido, 454 U.S. 432 (1982)....... 23

Columbus Board of Education vt. Penich, 443 U.S. 449

wee ee eee eee Oe ee ie cwcnas 27

Craig v. Boren, 429 U.S. 190 (1976) .............. 25

Examining Board of Engineers, Architects and

Surveyors v. Flores de Otero, 426 U.S. 572

Pn 4 oe hehe ee rs eae Gen E ate see a oes 4, 23, 25

Foley v. Connelie, 435 U.S. 291 (1978) ............ 23

Fullilove v. Klutznick, 448 U.S. 448 (1980)......... 24

Graham v. Richardson, 403 U.S. 365 (1970). ....... 23

Ingraham cv. Wright, 430 U.S. 651 (1977).......... 4

Loving v. Virginia, 388 U.S. 1 (1967).............. 24

Massachusetts Board of Retirement vt. Murgia, 427

- e SE 6 hbo v 6b 00d cb b6ceenceses 21, 22, 25

Matthews v. Diaz, 426 U.S. 67 (1976)............. 23

Palmore v. Sidoti, 104 S.Ct. 1879 (1984) ..... 22, 26, 28

Parham wv. ].R., 422 U.S. 584 (1979) .............. 22

TABLE OF AUTHORITIES— Continued )

Cases: Page

Pennhurst State School & Hospital v. Halderman, 104

fe Re ARPT TCT TTT CEC Ce TT eT 26

Pennhurst State School & Hospital v. Halderman, 451

5 hy err ere re ee rt ots oo 29

Pennsylvania Ass'n of Retarded Children v. Pennsyl-

vania, 343 F.Supp. 279 (E.D. Pa. 1972)..... 14, 28

Plessy v. Ferguson, 163 U.S. 537 (1896) ........... 19

Plyler v. Doe, 457 U.S. 202 (1982)........ 4, 22, 23, 27

Roncker vc. Walter, 700 F.2d 1058 (6th Cir. 1983), cert.

denied, 104 S.Ct. 196 (1984)...............6.. 24

San Antonio Independent School District v . Rodriguez,

eS RS _- ere re ey eee ee ee Pee 21

Schweiker v. Wilson, 450 U.S. 221 (1981).......... 21

Traux ct. Raich, 239 U.S. 33 (1915) ..............-. 3

Trimble vu. Gordon, 430 U.S. 762 (1977)........... 23

Washington v. Davis, 426 U.S. 229 (1976) ......... 21

Yick Wo v. Hopkins, 118 U.S. 356 (1886) .......... 3

Youngberg v. Romeo, 457 U.S. 307 (1982)....... 26, 29

State Session Laws:

SOT ee, ee GI DOE eo nbc ccc cecescenciesncces 3

ee DE TT EVUPET ELUTE TELE 6

1015 Ten. Gon. Laws 143, om. GB... 0.2 cccisccuccs 6

DOES Wn. Rae GG, Phe. BR. BS oc cc ccc ciccceees i)

1030 Pin. Laws SO). GO1. ©... ccc csc e cee cnees 10

TABLE OF AUTHORITIES~ Continued)

State Session Laws: Page

1929 Utah Laws 102, ch. 75, $81, 29.............. 10

cubes bene eewnccas 21

United States Laws:

I a i TE a 24

Texas Municipal Codes:

AMARILLO CODE, chs. 26-8, 26-11(43a) ........... 20

BEAUMONT CODE, §42-15(A)(1) .........0....000... 20

CAROLLTON CODE, art. XV(14) ... 2.2.5... ...0005. 20

COPPERAS COVE CODE, §5(4)(m)................. 20

DUNCANVILLE CODE, art. III(14) ................ 20

EDINBURG CODE, art. IV, §4-2(3)........0....... 20

KILLEEN CODE, ch. 9, art. 2, §8-1(f) ............. 20

MIDLAND CODE, §11-1-10(A).................... 20

NEW BRAUNFELS CODE, §6C.1-6................ 20

PORT NECHES CODE, $B6-6 ... 0... ccc ccc cece 20

SAN ANGELO CODE, §$33-2-14(b) ................. 20

SULPHUR SPRINGS CODE, art. 6(a) ............... 20

Congressional Reports and Hearings

S. REP. NO. 94-160, 94th Cong., Ist sess. (1975).... 29

S. REP. NO. 94-168, 94th Cong., Ist sess. (1975).... 14

Institutional Care and Services for Retarded Citizens:

Hearing Before the Subcomm.on the Handicapped

of the Comm. on Labor and Human Resources,

98th Cong.. Ist sess. (1983) .......020.00.0.2..... 29

TABLE OF AUTHORITIES—(Conti: ved)

Other Authorities:

T. J. ARCHDEACON, BECOMING AMERICAN: AN ETH-

Fe Ce OE 6.66.6 heKs vada edeenvemades’s

Baker, Outcome Equality or Equality of Respect, 131

a SS se |) eee eee

Barr, The Imbecile and Epileptic Versus the Taxpayer

and the Community, 29 PROC. NATL CONF.

CHARITIES & CORRECTIONS 163 a

Barr, State Care of the Feebleminded, 76 N.Y. MED.

“eran

Bellamy, et al., Habilitation of Severely and Profoundly

Retarded: Illustrations of Competence, 10 EDUC.

& TRAINING MENTALLY RETARDED 174 (1975) .

B. BLATT & F. KAPLAN, CHRISTMAS IN PURGATORY;

A PHOTOGRAPHIC ESSAY ON MENTAL RETARDA-

CORD 6 CNS OERKS 005 40.0 0E 8 OHS 60948 Ce eKeee

Brown, et al., Toward the Realization of Integrated

Educational Environments for Severely Handi-

capped Students, 2 REV. AM. ASSN. EDUC. SE-

VERELY & PROFOUNDLY HANDICAPPED 195

SE 4A Wid bbe ONS One eee bekdnaee es eheRea

THE BURDEN OF FEEBLE-MINDEDNESS (1912) ....

Burt, Constitutional Law and the Teaching of Para-

bles, 93 YALE L.J. 455 (1984). ...............0.

Christensen, “Not My Block” Reactions Greet Group

Homes, Dayton Daily News, Mar. 18, 1984 ....

Dallas Morning News, Jan. 7, 1985, at 17A, col. 1 ..

Page

TABLE OF AUTHORITIES— Continued)

Other Authorities: Page

Defective Babe Dies As Decreed: Physician, Refusing

Saving Operation, Defends Course as Wisest for

Country's Good, Watches as Imbecile Child's Life

Wanes, N.Y. Times, Nov. 18, 1915, at 1,

TA ERA needa ey ne RN panne Cr Slee A te Pee 14

THE FEEBLE-MINDED, OR, THE HUB TO QUR WHEEL

4G ee eer er ee ree se 10

Finley, Arson Hits House Planned for Retarded, De-

Opeth Dame, BOs Gy THs occ e se deccevecdeess 29

FIRST ANNUAL REPORT OF THE STATE BOARD OF

CONTROL TO THE GOVERNOR AND THE LEGIS-

LATURE OF THE STATE OF TEXAS (1921) ite ieee 6, 7

Ford, 2d Home for Retarded is Set Ablaze, Detroit

Pee Dee. Te, Gi Be 6 0 sh wictéeeecceesaews 29

J. H. FRANKLIN, FROM SLAVERY TO FREEDOM: A HIS-

TORY OF NEGRO AMERICANS (5th ed. 1980).... 17

G. M. FREDERICKSON, THE BLACK IMAGE IN THE

... § 2, Re eae 17

Goddard, Four Hundred Feeble-Minded Children

Classified by the Binet Method, 15 J. PSYCHO-

Pe BO ee oe 5

H. H. GODDARD, THE KALLIKAK FAMILY: A STUDY

IN THE HEREDITY OF FEEBLEMINDEDNESS

has Seek k baie cs Ue eA we ehe ONS ies eae 15

Goddard, Mental Testing and the Immigrants, 2 J]. DE-

eo By: 16

G. GUNTHER, CONSTITUTIONAL LAW: CASES AND

I vou sec tuckeebiee sate neesu 24

Vii

TABLE OF AUTHORITIES— Continued )

Other Authorities: Page

J. S. HALLER, OUTCASTS FROM EVOLUTION: SCIEN-

TIFIC ATTITUDES OF RACIAL INFERIORITY,

i ST .) | ae er rer res eet ee 16

M. H. Haller, EUGENICS: HEREDITARIAN ATTITUDES

IN AMERICAN THOUGHT (1963). .............. 15

O. HANDLIN, THE UPROOTED (2d ed. 1973)....... 16

A. B. HART, THE SOUTHERN SOUTH (1910)........ 17

Hentoff, The Awful Privacy of Baby Doe, ATLANTIC,

Dame. TID vc cv taswedepvccansesesesession sees 29

J]. HIGHAM, STRANGERS IN THE LAND: PATTERNS OF

AMERICAN NATIVISM 1860-1925 (1978) ........ 16

Horner & Bellamy, Structured Employment: Produc-

tivity and Productive Capacity, in VOCATIONAL

HABILITATION FOR SEVERELY HANDICAPPED

PROIINED CITED cc ccc ccc ccweseersccecsccerne. 26

L. KAMIN, THE SCIENCE AND POLITICS OF I1.Q.

i PPPOE TTerTTrErPea rer ry ret thee 15

Johnson, Report of the Committee on Colonies for Seg-

regation of Defectives, 30 PROC. NATL CONF.

CHARITIES & CORRECTIONS (1903) ........... 18

Karst, The Supreme Court, 1976 Term — Forward:

Equal Citizenship Under the Fourteenth Amend-

ment, 91 HARV. L. REV. 1 (1977) ............-. 4

Keating, The War Against the Mentally Retarded, N.Y.

MAG., Sept. 17, 1979, at 87............0 000s. 29

Kevles, Annals of Eugenics, NEW YORKER, Oct. 8,

1984, Oct. 15, 1984, Oct. 22, 1984............ 15

R. KLUGER, SIMPLE JUSTICE (Ose) ...-- 17, 18, 19, 20

Viii

-_ Eee ee

TABLE OF AUTHORITIES— Continued)

Other Authorities: Page

Kuhlman, Degree of Mental Deficiency in Children As

Expressed by the Relation of Age to Mental Age.

17 J. PSYCHO-ASTHENICS 132 (1913) .......... 5

Linn & Bowers, The Historical Fallacies Behind Legal

Prohibitions of Marriages Involving Mentally

Retarded Persons, 13 GONZAGA L. REV. 625

FR ener er oem are mee ee 2-5). SUR 29

K. M. LUDMERER, GENETICS AND AMERICAN SOCI-

ETY; A HISTORICAL APPRAISAL (1972) ......... 15

THE MENACE OF THE FEEBLE-MINDEDIN CONNECT-

Se Ge 60k 6 Views dwastinnne wine 10, 16, 17

THE MENACE OF THE FEEBLE-MINDED IN PENNSYL-

ED 6'os 6s anc Uk waawesitctenuee 10

“THE NEGRO A BEAST”: OR “IN THE IMAGE OF GOD”

05% 46s 4 he 8s heen weed ts 17

THE NEGRO: A MENACE TO AMERICAN CIVILIZATION

Es 5 5 5S 4-8 ne a Minnie ented be oa eee ey 17

Alien Defectives, N.Y. Times, Jan. 13, 1913, at 10... 16

I. A. NEWBY, JIM CROW’S DEFENSE: ANTI-NEGRO

THOUGHT IN AMERICA (1965) ................ 17

Osborn, The Evolution of Human Races, 26 NAT. HIST.

OP GE + kane dnea cob sacs os kedan eae tac 17

R. PERSKE, NEW LIFE IN THE NEIGHBORHOOD

Es Sa dures ctiknee oh caeidek bikes Recll eae wl 27

PRESIDENTS COMMITTEE ON MENTAL RETARDA-

TION, THE LEADING EDGE, SERVICE PROGRAMS

THAT WORK: REPORT TO THE PRESIDENT

GE 8 esi a Ces en knketcnsenhendeecamueiees 27

TABLE OF AUTHORITIES— Continued)

Other Authorities:

PRESIDENTS COMMITTEE ON MENTAL RETARDA-

TION, MENTAL RETARDATION, PAST AND

ee ee easeceuses

PRESIDENTS COMMITTEE ON MENTAL RETARDA-

TION, THE MENTALLY RETARDED WORKER, AN

ECONOMIC DISCOVERY: REPORT TO THE PRESI-

EE RESIS ed ERE SS a

PROCEEDINGS OF THE TEXAS CONFERENCE ON

CHARITIES AND CORRECTIONS (1912) .........

PROCEEDINGS OF THE TEXAS CONFERENCE ON

CHARITIES AND CORRECTIONS (1914) .........

D. & S. ROTHMAN, THE WILLOWBROOK WARS

a ET ee

S. B. SARASON & J. DORIS, EDUCATIONAL HANDI-

CAP, PUBLIC POLICY AND SOCIAL HISTORY

Se ke eens encees

S. B. SARASON & J. DORIS, PSYCHOLOGICAL PROB-

LEMS IN MENTAL DEFICIENCY (4th rev. ed.

R. E. SMITH, CHRISTIANITY AND THE RACE PROB-

RS hAcnes ees 0b6¢u ee endsenedsseeces

K. M. STAMPP, ERA OF RECONSTRUCTION (1965). . .

A. H. STONE, STUDIES IN THE AMERICAN RACE PROB-

EE ee ere

P. TYOR, SEGREGATION OR SURGERY: THE MEN-

TALLY RETARDED IN AMERICA, 1850-1920 (diss.

Nw. Univ. 1972), published in P. TYOR & L. BELL,

CARING FOR THE RETARDED IN AMERICA: A HIS-

th rn 15,

Page

TABLE OF AUTHORITIES— Continued )

Other Authorities: Page

Wald, Basic Personal and Civil Rights, in PRESIDENT'S

COMMITTEE ON MENTAL RETARDATION, THE

MENTALLY RETARDED CITIZEN AND THE LAW

(M. Kindred, et al. eds. 1976)................ 14

Woestendiek, The Deinstitutionalization of Nicholas

Romeo, Phila. Inquirer Mag., May 27, 1984.... 27

C. V. WOODWARD, THE STRANGE CAREER OF JIM

oe Se et 6, 17, 18, 19

C. S. YOAKUM, CARE OF THE FEEBLEMINDED AND

INSANE IN TEXAS, BULLETIN OF THE UNIVER-

SITY OF TEXAS, NO. 369 (Humanistic Ser. No. 16,

ie ike cee eeeee ees 7, 19

do ee as ey ee

rh tat lio. =

a) Kets 7

4 we this ie ; ;

No. 84-468

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1984

CITY OF CLEBURNE, TEXAS, et al.,

Petitioners,

CLEBURNE LIVING CENTER, et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

BRIEF FOR THE ASSOCIATION FOR

RETARDED CITIZENS/USA, et al.,

AS AMICI CURIAE

INTEREST OF AMICI

Amici are eighteen national, state and local organizations of

retarded people and their families interested in disestablishing

the regime of state-imposed exclusion of retarded people from

the communities of this nation.

Amici know the history of purposeful unequal treatment im-

posed upon retarded people by the states and know, as well, that

the ordinance at issue here is part of that terrible history. Amici

have a direct, personal interest in securing for retarded persons

the full measure of equal protection. Thus, amici present this

brief on behalf of respondents not only to argue that the Cleburne

ordinance must fall, but also to present the history that compels

the view that the Court should apply strict and searching sc. u-

tiny to the ordinance and other disadvantaging classifications that

exclude and segregate retarded people. !

SUMMARY OF ARGUMENT

This case concerns the de jure exclusion of thirteen retarded

citizens from the community of Cleburne because they hap-

pened to be retardec. This quite invidious exclusion has been

visited upon these citizens and others like them as a direct result

of a pattern of official action, historically, of each of the state

governments.

Texas, along with every other state, adopted a policy of seg-

iegating and isolating “feeble-minded” people for life, prevent-

ing their remaining “at large” in the community. The states forth-

rightly and systematically sought to “purge society” of their re-

tarded citizens and by law declared them “unfit for citizenship.”

The Cleburne ordinance, modeled on a 1929 Dallas ordi-

nance, has its origin in this period and—along with at least twelve

similar ordinances in Texas alone—is rooted in the invidious dis-

crimination of that time.

The compelled segregation and isolation of—and pure ani-

mus toward—retarded people, clothed in the full weight,

strength, and authority of the government, dictates the strictest,

most searching scrutiny of official action excluding those citizens.

Only by invoking strict scrutiny can the stereotypes (such as those

in evidence here) be separated from the facts, thereby enabling

the Court to determine whether the classification directed solely

at retarded persons is a fair one.

The classification we seek to have held suspect is not “in-

telligence,” but that of “being retarded,” for it is that immutable

trait that is at the root of the “history of purposeful unequal treat-

ment.” Strict scrutiny will not foreclose classifications of retarded

persons for proper purposes or that properly recognize their

differences.

1. The interest of each amicus is fully set forth in the accompanying mo-

tion.

cI i a

ARGUMENT

The ordinance of the City of Cleburne excluding “homes

.. . for the feebleminded”? from the mid-Texas town of 20,000

people has its roots in the most xenophobic era of our history,

1896 to 1930, when both Jim Crow statutes segregating people

by race and state statutes imposing life-long segregation upon

“the feebleminded” were formulated and systematically enacted

by the states. Unlike the legacy of race discrimination in this

country, however, compare, e.g., Board of Regents of the Uni-

versity of California v. Bakke, 438 U.S. 265, 387-94 & n.1 (1978)

(Marshall, J.), the history of discrimination on the basis of re-

tardation is not widely known. Yet the Court cannot decide this

case without a full appreciation of that history. Amici’s major

reason for filing this brief is to place the history before the Court

and to argue that that history is dispositive of this case.

This case poses the question of the respect required by the

Equal Protection Clause to be accorded retarded people: what

degree of scrutiny and justification is required of official classi-

fication that excludes, segregates, degrades and isolates retarded

people. Amici submit that in light of the extraordinary history of

purposeful unequal treatment, the proper standard to be ex-

tended under the Equal Protection Clause to retarded people is

that heretofore accorded people who are black.

The classification here—part of the historical pattern of state

action to eliminate retarded people altogether from common so-

ciety and to disassociate “them” from “us”—offends the Equal

Protection Clause at what the Court’s opinions? from the begin-

2. “Feebleminded” was the encompassing term pervasively used in the

early decades of this century to designate retarded people as such, including

the “moron” (mildly retarded people), the “imbecile” (moderately retarded

people) and the “idiot” (severely or profoundly retarded people). See, e¢.g..

1917 Ark. Acts 942, §11.

3. E.g., Yick Wo cv. Hopkins, 118 U.S. 356, 370 (1886) (“the very idea that

one man may be compelled to hold his life, or the means of living. or any

material right essential to the enjoyment of life, at the mere will of another,

seems to be intolerable in any country where freedom prevails, as being the

essence of slavery itself’); Traux vc. Raich, 239 U.S. 33, 41 (1915) (right to work

for a living in the common occupations of the community is of the very essence

of the personal freedom and opportunity that it is the purpose of the {Four-

ning to now show to be its core:

“The principle of equal citizenship presumptively insists that

the organized society treat each individual as a person, one

who is worthy of respect, one who ‘belongs.’ Stated nega-

tively, the principle presumptively forbids the organized so-

ciety to treat an individual either as a member of an inferior

or dependent caste or as a non-participant. 4

Classifications that explicitly single out retarded people and

have exclusive impact on them should be considered suspect and

given strict and searching scrutiny in view of the terrible history

of such classification.®

teenth] Amendment to secure”); Bell v. Maryland, 378 U.S. 226, 3i7 (1964)

(concurring opinion) (“constitutional right of all Americans to be treated as equal

members of the community with respect to public accommodations . . . ‘is too

important in our free society to be stripped of judicial protection’ ~), Examining

Board of Engineers, Architects and Surveyors v. Flores de Otero, 426 U.S.

572, 604 (1976); Ingraham v. Wright, 430 U.S. 651, 670 (1977); cf. Plyler v.

Doe, 457 U.S. 202, 223 (1982) (". . . the ability to live within the structure of

our civic institutions, and . . . contribute . . . to the progress of our Nation’).

4. Karst, The Supreme Court, 1976 Term — Forward: Equal Citizenship

Under the Fourteenth Amendment, 91 Harv. L. REV. 1, 6 (1977); accord, Baker,

Outcome Equality or Equality of Respect, 131 U. Pa. L. Rev. 933 (1983); Burt,

Constitutional Law and the Teaching of Parables, 93 YALE L. J. 455, 490-500

(1984).

5. The dissent from the denial of rehearing en banc below thought “the

retarded” to have “minds at or below third-grader level in the bodies of oth-

erwise healthy adults” (J.A. 141). This manifestly incorrect statement of what

being retarded is repeats a persistent part of the stereotype that evoked the

official state undertaking to segregate retarded people: the myth of “mental

age,” that retarded people are eternal children, innocent but fitful, erratic,

unreachable, fearsome, forever possessed of a “meatal age” of eight (or, five,

or three), condemned to wander the world only with what an eight-year old

would have learned. Correctly understood, mental age describes not a ceiling

on how much a person can learn or the skills he has command of, but a rate of

learning.

Thus, for example, retarded people chronologically aged forty-five who

are said to have a mental age of eight will — if the opportunities to learn are

decently at hand, have mastered much more during the thirty-seven additional

years they have been learning at the eight-year-old “rate” than someone who

was cight only for a year. Indeed, H. H. Goddard, who in 1910 “validated” the

concept of “mental age” and introduced this “measurement” into American

I. THE CLEBURNE ORDINANCE IS PART OF A PATTERN

OF STATE-IMPOSED, LIFE-LONG SEGREGATION OF

RETARDED PEOPLE THAT IN ANIMUS AND PUR-

POSEFUL UNEQUAL TREATMENT IS PARALLEL TO

THE TREATMENT OF BLACK PERSONS.

The decades at the turn into this century impose a stark

legacy upon the country. The xenophobic hysteria of the era,

fueled by the new scientism of the eugenics movement, pos-

sessed by severe Darwinian strictures and doubts, assaulted by

the unprecedented flow of new immigration and the uncertain-

ties of a new industrial age, took on all the force of state power

and focused it pervasively against black people and against re-

tarded people and visited upon them the :aost severe disquali-

fications imaginable among citizens.

discourse met “this very difficulty at the outset”:

“We soon realized that having in one of these groups thet test to the men-

tality of say an eighi-year-old normal child, we were facing a very inter-

esting problem, as to what was the difference between children who had

lived in the world twelve years, and those who had lived twenty years

.. Inother words, a child who tests according to the Binet test, ten vears

of age, but is actually fifty years old, may be expecied to do a great many

things which will quite surprise us because we never have happene “d to

know of a ten-year-old child that could do those things .

Goddard's solution to the measurement difficulty?

“[I]n order to get some accurate idea as to what mental age meant...

we had to cut out all those who were beyond the training period [i.e ., those

over twenty years].”

Thus Goddard “validated” — and the Era installed and perpetuated in the

common prejudice — a measure that does not measure. Goddard, Four Hun-

dred Feeble-Minded Children Classified By the Binet Method, 15 J. Psycuo-

ASTHENICS 13 (1910). Others made the point, for example, Kuhlman, Degree

of Mental Deficiency In Children As Expressed By The Relation of Age Tu

Mental Age, 17 J. PSYCHO-ASTHENICS 132 (1913):

“Feeble-mindedness is a retarded rate of mental development. The term

‘arrested developmeni or ‘mental arrest’ is a misnomer, for it implies that

development has ceased. It is a common observation that feeble-minded

children do develop mentally. We also find that their mental ages as meas-

ured by the Binet-Simon tests increase as they grow older.”

But it is the “ceiling” idea of “mental age” that was codified into invidious

The Jim Crow system segregating people by race was not a

19th century invention, but a creation of this era. C. V.

WOODWARD, THE STRANGE CAREER OF JIM CROW (3d rev. ed.

1974). Similarly, large, isolated institutions that separate retarded

people from the wider society for life are an invention of this era.

Like Jim Crow, these institutions were created by state law in-

tentionally to segregate retarded people. Thus a regime of state-

imposed life-long segregation of retarded people was commis-

sioned, and public, as well as private, attitudes and action that

would reinforce it were legitimated and evoked.® This case will

determine whether it shall be disestablished.

In Texas, Jim Crow was enacted and in force in the first

decade of this century.* Texas created its first institution “for the

feeble-minded” of the State by Act of March 22, 1915. Section

2 of the Act declared as its purpose to end “the heavy economic

and moral losses arising from the existence at large of these un-

fortunate persons.” The Superintendent of the State Colony for

the Feeble-Minded reiterated its purposes in his Third Annual

Report:

“|T)heir segregation and control, through life, is the rem-

edy. This can be obtained only by legally committing them

to an institution where they can be kept permanently.’

stereotype. to wit: The January 7, 1985 Dallas Morning News (17A, col. 1)

opened a six-column feature story with lead paragraphs saving:

“Sarah is three years old — forever.

“She was bern 26 vears ago, but something went wrong, and her mind

stopped growing at the mental age of three.”

6. The exclusion in the Cleburne ordinance at issue here did not first

appear in the Cleburne zoning ordinance in 1965 as petitioners have incorrectly

asserted throughout. The exclusion of “feeble-minded patients” appeared first

in the Cleburne ordinances in 1947. It was taken verbatim from the September

11, 1929 ordinance of the City of Dalus. The relevant portions of both ordi-

nances are reproduced at Appendix B.

7. See. e.g. 1907 Tex. Gen. Laws 55.

S. “An Act to Provide for the Establishment and Maintenance of a State

Farm Colony for the Feeble-Minded and to Make Appropriations Therefore,

and to Declare an Emergency.” 1915 Tex. Gen. Laws 143, ch. 90.

9. Superintendent's Report (August 31, 1920) in FiksT ANNUAL REPORT OF

rik STATE Boakp OF CONTROL TO THE GOVERNOK AND THE LEGISLATURE OF

The animus of the Act creating the State Colony to segregate

retarded people is set forth in a 1914 pamphlet of the Texas State

Conference on Charities and Corrections. !° The pamphlet opens:

“Every state, to maintain the highest efficiency in its gov-

ernmental and social functions, must consider the nature of

its citizens. We are in the habit of dividing citizens into two

classes based on their value to society or their amenableness

to social custom and law — desirable and undesirable citi-

zens. The latter class comes in conflict with law and is gen-

erally considered a menace to good government.” Id. at 11.

It continues:

“The general public has already been educated to the belief

that it is a good thing to segregate the idiot or the distinct

imbecile, but they have not, as vet, been quite so fully con-

vinced as to the proper treatment of this brighter and more

dangerous class, the defective delinquent. From a financial!

standpoint, segregation of the defective delinquent would

be a great economy, to say nothing about the more salient

feature, that of stopping them from producing their kind. If

we could segregate these defectives when they are voung

and keep them confined during their natural lives, it would

THE STATE OF TEXAS 147 (1921) (Docs. Coll. Tex. St. Archives).

10. C.S. YOAKUM, CARE OF THE FEEBLEMINDED AND INSANE IN TEXAS,

BULLETIN OF THE UNIVERSITY OF TEXAS, NO. 369 (Humanistic Ser. No. 16,

Nov. 5, 1914) (on file in Pamph. Coll., Tex. St. Archives, Austin, Tex.). The

pamphlet originated as a committee report of the State Conference on Charities

and Corrections, which, like conferences in other states and the National Con-

ference on Charities and Corrections, was composed of leading citizens, most

often drawn from the leading families — professors, journalists and public of-

ficials, including mayors and legislators — and was the active progenitor of the

Act of March 22, 1915, as it had been of the juvenile court law, the suspended

sentence law and other Progressive Era legislation.

“It aims to bring together for a free exchange of views and experiences for

united action all persons and all organizations and institutions, public and

private, engaged or interested in work of a charitable or philanthropic

character, or in administering our penal and correctional institutions and

agencies.”

PROCEEDINGS OF THE STATE CONFERENCE ON CHARITIES AND CORRECTIONS

11-12 (1912) [hereinafter cited as PROCEEDINGS}.

The

obviate the expense of having them committed repeatedly

to our penitentiaries when they grow older. . . .

“ ‘Some may say, “Why it is a pity to confine these children

in an institution all their lives”; but that is where they are

greatly mistaken, as for instance, in Ohio, I can say to you

that we have a community of over 1600 of the happiest chil-

dren in the State in our institution.’. . . . ” Id. at 46.

pamphlet goes on to warn:

“ ‘To discharge, unsterilized, the defective child, after hav-

ing taught him habits of neatness and a few tricks that make

his mental deficiency less noticeable, is worse than never to

have put him in an institution.’ In other words, the defective

is a person who, for the good of society, must end his line

of descent with himself. We have indicated in other places

that he is personally a menace to society while alive.

“The only safe procedure is custodial care and institutional

care throughout life for the great majority. Some authorities

believe that a small percentage of those who are trainable

may after a time be returned to society. Even these are usu-

ally far better off in an institution where they can earn a

living under watchful care. In the paragraphs that follow, we

shall describe the type of institution that is best suited to

such lifelong protection of these derelicts in society.” Id. at

66.

pamphlet concludes:

“A clean-limbed, pure-minded, sane thinking people is an

ideal alone commensurate with the ideals of this State and

this nation. What shall we do to attain, to eliminate this

great and ever-increasing source of ignorance, poverty, and

crime? ‘One of the most shocking and easily cured evils is

the increase of the feeble-minded, the begetters of numer-

ous degenerate children. The remedy is their segregation

by the State. . .. The answer comes with no uncertain ring.

“This problem of racial betterment is called in modern

phrase, eugenics. Our purpose in this discussion has been

limited. We have, therefore, discussed the single phase of

the general problem — the elimination of the defective

strains. Many answers and solutions have been offered,

among them segregation has appealed to society's feelings of

humanity and fair play with greatest force. Restrictive mar-

riage laws and customs are important, and educative, but

fail to reach the irresponsible and degenerate till too late.

Laissez-faire or natural selection, euthanasia, neo-

malthusianism, and polygamy are either impossible under

the protective forces of modern social conditions or are ideas

repugnant to present-day ideals of religion and humanity.

Of all the solutions suggested, the two most advocated are

sterilization and segregation. Both of these ideas were em-

bodied in bills submitted to the last Legislature in Texas.

“The evidence so far collected points toward segregation as

the most feasible, most easily put into force, and least sub-

versive of constitutional prerogative. ...” Id. at 81-83

(pamphlet’s emphasis). !!

This Texas undertaking by force of law of the life-long seg-

regation of retarded persons was universal among the states. !2

Each of the states resolved, de jure, as did Pennsylvania:

“that the Eastern Pennsylvania State Institution for the

Feeble-Minded and Epileptic shall be devoted to segrega-

tion, care, maintenance, treatment, training and education

of epileptic, idiotic, imbecile or feeble-minded persons,”

1913 Pa. Laws 494, No. 328, § 1; and as did Florida:

“that there is hereby established . . . a Florida Farm Colony

for Epileptic and Feeble-Minded . . . for the segregation

and employment of the epileptic and feeble-minded . . . to

the end that these unfortunates may be prevented from re-

producing their kind, and the various communities and the

11. A second, separate section of the Texas pamphlet, addressing care of

“the insane” (id. at 84-145), reflects confusion of the two (109-128), but no-

where calls for, but rather rejects (100, 136-37) permanent, life-long segrega-

tion of mentally ill people.

12. See Appendix A, Compendium of Purposeful State Action for the Seg-

regation and Exclusion of Retarded People in the Fifty States and the District

of Columbia [references to App. A hereinafter cited as “A- =

State at Large relieved from the heavy economic and moral

losses arising by reason of their existence,”

1919 Fla. Laws 231, §§ 1, 8; and as did Utah, in the same year

the predecessor to the Cleburne ordinance was enacted, 1929

Utah Laws 102, ch. 75, §§ 1, 29 (App. A-71.).

The animus of each was everywhere the same. A sampling

from Appendix A of the very titles recurrent among the many

pamphlets advancing institutional segregation describes vividly

that ill-will: The Menace of the Feeble-Minded in Pennsylvania

(1913); The Menace of the Feeble-Minded in Connecticut (1915);

The Burden of Feeble-Mindedness (1912) (Mass.); The Feeble-

minded, Or, The Hub to Our Wheel of Vice (1913) (Ohio).

The policy of exclusion of retarded people, implemented

through state action, is epitomized by a Mississippi law creating

a Colony for the Feebleminded” for the segregation of “all cases”

deemed “unfit for citizenship.” That law, and the others like it,

present as starkly as imaginable the essence of an equal protec-

tion violation, exclusion of a particular people from the very “cit-

izenship” of the land. Government off cials in every state estab-

lished formal policies in inexorable fashion: Retarded people were

“entirely unfit to go into general society,”!4 a “menace to the

happiness ... of the community,” “unfitted for companion-

ship with other children,”'® a “blight on mankind”? whose very

“presence ’!* in the community was “detrimental to normal” peo-

ple,'* and whose “mingling . . . with society” was “a most bane-

ful evil. "2°

Official policy was to “prevent this class of persons from com-

ing in contact with the populace,”2! to “purge society 22 of these

13. A-47 (emphasis provided), see also A-19 (Pa.).

14. A-43. (Wis.); see A-24 (Ind.) (unfit to be out in the

world’).

15. A-44 (Ala.).

16. A-74 (Wash.).

17. A-21 (Vt.).

18. A-21] (R.1).

19. A-63 (Cal.).

20. A-70 (Ore.).

21. A-67 (Colo.).

“anti-social beings, "2° to “segregate [them] from the world,”4 so

that they “not. . . be returned to society’ since “{[m]Jental de-

fect . . . wounds our citizens a thousand times more than any

plague. "26 “Nothing” would better “promot{e] our best citizen-

ship, than to segregate the feeble-minded.’?*

To that end, the enactments of nine state legislatures spec-

ified “segregation” in the body of their laws? and the official

documents of practically each other state and of the United States

for the District of Columbia specified the same object.?°

Institutions, as a matter of law, were houses of “detention”

where retarded “inmates” were “kept”! and “held” “for

life.""33 As the official reports indicate, detention would be “per-

manent, * in the nature of “an indeterminate sentence’ to the

“institutional community where he'll alwavs live,” since “a de-

fective child will be a defective adult, and will die a defective.

There is not a philosopher's stone to turn the base metals of de-

fect into gold.”* They could never be let “loose in the world,”*

A-43 (Wis.).

A-19, 20 (Pa.).

A-23 (Ind.).

A-34 (Neb.).

A-73 (Utah).

A-21-22 (Vt.).

A-45 (Fla. ); A-29 (Ky.); A-47 (Miss. ) (“isolation and segregation’); A-35

(Neb.) ( ‘to segregate them from society ); A-9 (N.H.); A-19 (Pa.); A-38 (S. Dak. );

A-57, 59 (Va.); A-74 (Wash. ).

29. E.g., A-66 (Cal.); A-67 (Colo.); A-2 (Conn. ); A-27 (Kan.); A-23 (Ind. ):

A-8 (Mass.); A-31 (Mich.); A-10 (N.J.); A-18 (N.Y.); A-49 (N.Car.); A-37 (Ohio);

A-50-51 (S.Car.); A-56 (Tex.); A-73 (Utah); A-22 (Vt.); A-43 (Wis.) (“separating

them from society”); A-77-78 (U.S.).

30. E.g., A-22 (Ill.); A-69 (Mont.); A-34 (Neb.); A-37 (Ohio); A-71 (Ore. );

A-20 (Pa.).

31. A-ll (N.J.)

32. A-62 (Ariz.)

33. A-62 (Cal.); see A-1 (Conn.); A-35 (N. Dak.)

34. A-8 (Mass.); A-33 (Mo.); A-10 (N.J.); A-19 (Pa.); A-56 (Tex.); A-77

(U.S.).

35. A-59(Va.); see A-67 (Colo.) (to be “kept in an institution indefin‘tely”);

A-71 (Ore.) “indeterminate detention’).

36. A-43 (Wis.).

37. A-46 (Ga.).

= BARRSSE

and it was felt especially important to keep them “away from

thickly settled communities, “** “remote from the centers of pop-

ulation for reasons that are obvious.”*” Retarded persons simply

did not have the “rights and liberties of normal people.”*! The

Executive Secretary of the District of Columbia Board of Charity

urged a congressional committee to authorize the erection of an

institution since retarded people are “not much above the ani-

mal.”42 State officials elsewhere also sought to remove retarded

people from the realm of humanity, referring to them as “not far

removed from the brute.”* They were not quite persons, but

“by-products of unfinished humanity."

Retarded people were segregated for being a “nuisance to

the community,” or a “menace to the happiness . . . of others

in the community, * or a “menace to society, 4’ or “for the wel-

fare of the community * or “of society,”** or so that “the state at

large [may be] relieved from the heavy economic and moral losses

arising by reason of their existence.” It was important to find a

“way of getting rid of these kinds of cases.’>!

Official reports labeled retarded people “a parasitic, pred-

atory class, ”">2 a “danger to the race,” “a blight and a misfortune

both to themselves and to the public,” whose role “in discount-

A-67 (Colo.).

A-79 (U.S.).

A-2 (Conn. ).

A-41 (S. Dak.).

A-80.

A-58 (Va.).

A-53 (Tex.).

A-22 (Ind.).

4-44 (Ala.),; A-46 (Ga.); A-47 (Miss.); A-51 (Tenn.); A-60-61 (W.Va.).

A-68-69 (Idaho), A-43 (Wis.); A-72 (Utah) (“a social menace ’).

A-62 (Ariz.); A-22 (IIl.); A-47 (La.); A-70 (N.Mex.); A-80-81 (U.S.).

A-35 (Neb.).

A-45 (Fla.); accord, A-55-56 (Tex.).

51. A-3 (Conn.); see A-68 (Hawaii) (“a place to get the feeble-minded out

of the community”).

52. A-8 (Mass.); A-21 (Vt.).

53. A-43 (Wis.).

54. A-27 (Kan.).

SSEASRESRESSE

ing social progress is by far the most potent influence for evil

under which society is struggling today.”

The states actively inculcated fear of retarded persons, di-

rected their identification and removal from the community, and

enlisted assistance of the public to do so. Government officials

undertook major outreach efforts. Physicians, teachers, and so-

cial workers were required by law in some states to report to the

government all persons “believed by them to be feeble

minded.”>? Other states made it “one of the special duties of

every health officer and of every public health nurse to institute

proceedings to secure the proper segregation and custody of fee-

bleminded persons.” Those states with no formal reporting or

registration requirementat least officially encouraged health, wel-

fare, and social workers to be “constantly on the lookout’ for

potential cases to be institutionalized, and authorized a wide va-

riety of public and private persons® —or sometimes simply “any

reputable citizen”®'—to institutionalize a person if a parent or

relative “either neglect/ed] or refus{ed]” to do so.62 Washington

state legislators dispensed with that procedure and simply made

it a criminal offense, punishable by a $200 fine, for any parents

refusing to perform their “duty” to segregate in the state insti-

tution their “feebleminded” son or daughter.™ Some states even

permitted detention temporarily with no procedural rights for

those who were “suspected of being feebleminded or idiotic."

Once parents placed their child in an institution, some states

required them to “waive all right to remove such inmate there-

55. A-24 (Ind.).

56. E.g., A-62-63, 65-66 (Cal.); A-25 (Ind.); A-56 (Tex.).

57. A-40 (S.Dak.); see also A-71 (Ore.).

58. A-29 (Ky.); accord, A-52 (Tenn.).

59. A-28 (Kan.).

60. E.g., A-66(Cal.) (“any peace officer”); A-49(N. Car.) (“ministers, teach-

ers, or physicians); A-50 (Okla.) (“trustees of any township”); A-21 (Vt.) (the

“selectman of [any] town”); A-75 (Wyo.) (the county prosecutor).

61. A-5 (Del.); A-22 (Ill.); A-46 (La.); A-51 (Tenn.); A-61 (W.Va.).

62. A-47-48 (Miss.); A-51 (Tenn.); A-61 (W.Va.); see A-44 (Ala. ) (“notwith-

standing the family or relatives may object thereto”); A-50 (Okla.).

63. A-74.

64. E.g., A-36 (N. Dak.).

after either permanently or for a limited time.”® All of these

steps, and others, were thought necessary to segregate those

“whose parents or guardians are averse to such actions.“ Gov-

ernment officials made the judgment that “the presence of the

unfortunate child in the home’ was “more tragic than any known

disease,” and a “menace to . . . the family."®

The regime of segregation reached to and was reinforced by

systematic exclusion from public schooling,” forced steril-

ization,”! peonage,*? bans upon marriage and exercise of the

franchise,73 and even reached to the death of “defective”

babies.“

Where did it all come from? Previously, in the mid-19th

century, Dr. Samuel Gridley Howe and others had established

residential schools for retarded people, all small, in or near the

towns, with the purpose that retarded children should attend,

learn, and return after a little while to their homes to live and to

work. Howe insisted that the schools should not become custo-

dial and warned against life-long segregation.*> By the turn into

65. A-30 (Mich.); A-11 (N.J.); accord, A-69 (Mont.); A-36 (N.Dak.).

66. A-66 (Cal.); accord, A-34 (Neb.) (need for retarded people to be “de-

tained in the institution against the desire of the parent’).

67. A-21 (R.1.).

68. A-73 (Utah).

69. A-63 (Cal.); A-6 (Md.).

70. The history of exclusion from the schools is noted in Pennsylvania

Ass'n for Retarded Children v. Pennsylvania, 343 F.Supp. 279, 294-95 (E.D.

Pa. 1972); Board of Education of Hendrick Hudson School District v. Rowley.

458 U.S. 176, 191(1982); and committee reports on the Education of All Hand-

icapped Children’s Act, e.g., S. REP. NO. 94-168, 94th Cong. Ist sess. 9 (1975).

71. E.g., A-63-64 (Cal.); A-26 (lowa), A-5 (Me.); A-59-60 (Va.).

72. E.g., A-3,4 (Conn.); A-81 (D.C.). Indiana required by law that “the

labor in constructing” all of the institution's “buildings, improvements, and

facilities shall be supplied as far as possible by the persons committed to the

institution. A-24.

73. See Briefof Amici AAMD, et al.; Wald, Basic Personal and Civil Rights

in PRESIDENTS COMMITTEE ON MENTAL RETARDATION, THE MENTALLY RE-

TARDED CITIZEN AND THE Law 3, 7-9, 25 (M. Kindred, et al., eds. 1976).

74. Defective Babe Dies As Decreed: Physician, Refusing Saving Opera-

tion, Defends Course as Wisest for Country's Good, Watches as Imbecile Child's

Life Wanes, N.Y. Times, Nov. 18, 1915, at 1, col. 3.

75. For Howe's position, see pp. A-6-7.

the new century, however, the times had changed. In 1903 Walter

Fernald, a Massachusetts official and a leading figure in the As-

sociation of Medical Officers of American Institutions for Idiotic

and Feeble-Minded Persons, dismissed Howe's view, saying:

“[{T]he Doctor wrote before the tide of immigration had set

so strongly to our shores. . . . What is to be done with the

feeble-minded progeny of the foreign hordes that have set-

tled and are settling among us?””6

A solution equal to the severity and the magnitude of the

problem was imperative. In 1913-14, at the request of the United

States Public Health Service, Henry H. Goddard — the ac-

claimed author of The Kallikak Family “* — administered Binet's

IQ test to the southern and eastern European immigrants arriv-

ing in steerage at Ellis Island. “[G]iv{ing] the immigrant the

76. P. TYOR, SEGREGATION OR SURGERY: THE MENTALLY RETARDED IN

AMERICA, 1850-1920, at 160 (Diss. Nw. Univ. 1972), published in P. Tyor &

L. BELL, CARING FOR THE RETARDED IN AMERICA: A HISTORY (1984). The stand-

ard historical works on America’s treatment of retarded people include P. Tyor,

supra; S. B. SARASON & J. Doris, PSYCHOLOGICAL PROBLEMS IN MENTAL De-

FICIENCY, chs. 12-16 (4th rev. ed. 1969), and EDUCATIONAL HANDICAP, PUBLIC

POLICY AND SOCIAL History (1979); see also Appendix D to this Brief.

77. THE KALLIKAK FAMILY (MacMillan, 1912). Asking “What is to be

done?” The Kallikak Family concludes:

“.. . For the low-grade idiot, the loathsome unfortunate that may be seen

in some of our institutions, some have proposed the lethal chambers. But

humanity is steadily tending away from the possibility of that method. . .

“We cannot successfully cope . . . until we recognize feeble-mindedness

and its hereditary nature, recognize it early, and take care of it.

“[Sjegregation through colonization seems in the present state of our know!-

edge to be the ideal and perfectly satisfactory method.”

Id. at 101, 116-117. The leading standard historical works describing the per-

vasive place of eugenics in the era and its decisive role in action against im-

migrants, blacks and retarded people include M. H. HALLER, EUGENICS:

HERIDITARIAN ATTITUDES IN AMERICAN THOUGHT (1963); K. M. LUDMERER.

GENETICS AND AMERICAN SOCIETY: A HISTORICAL APPR \ISAL (1972): L. KAMIN.

THE SCIENCE AND POLITICS OF I.Q. (1974); Kevles, Annals of Eugenics, NEW

YORKER. Oct. 8, 1984, at 99-115; id. Oct. 15, 1984, at 99-125: id. Oct. 22. 1984.

at 92, 93.

benefit of every doubt,” he found that 79% of the Italians, 80%

of the Hungarians, 83% of the Jews and 87% of the Russians were

feeble-minded.”*

This was — as Kenneth M. Stampp writes in his historio-

graphical analysis of this early 20th Century era — “a time when

xenophobia had become almost a national disease.” It was a time

“when Negroes and immigrants were being lumped together in

the category of unassimilable aliens.” During the first decades of

the century,

“the new immigrant groups had become the victims of cruel

racial stereotypes. Taken collectively it would appear that

they were, among other things, innately inferior to the Anglo-

Saxons in their intellectual and physical traits, dirty and im-

moral in their habits, inclined toward criminality, receptive

to dangerous political beliefs and shiftless and irresponsible.

In due time, those who repeated these stereotypes awoke to

the realization that what they were saying was not really

very original — that, as a matter of fact, these generaliza-

tions were precisely the ones southern men had been mak-

ing about Negroes for years. 79

And the solution for the now apprehended “common problem”

was, in the new decades of a new century, precisely similar: state-

imposed segregation alike of “the Negro” and of retarded people.

The animus that supported segregation of “the

teeble-minded” bore unmistakable similarity to the animus that

evoked Jim Crow. Compare titles like The Menace of the Fee-

78. Goddard, Mental Testing and the Immigrants, 2]. DELINQUENCY 243,

249, 252 (1917). Additional “findings” were extensively reported, e.g., N.Y.

Times, Jan. 13, 1913, at 10 (“Alien Defectives”); see A-12-16, 64-65.

79. K. M. Stampp, The Tragic Legend of Reconstruction, the introduction

in ERA OF RECONSTRUCTION 19-20 (1965) (Stampp’s emphasis).

The standard historical works on the response of the era to immigration,

describing its crucial contribution to the adoption of Jim Crow and its identi-

fication of new immigrants as so fearfully subhuman as to require state action,

include T. J. ARCHDEACON, BECOMING AMERICAN: AN ETHNIC History 158-172

(1983); J. HIGHAM, STRANGERS IN THE LAND: PATTERNS OF AMERICAN NATIVISM

1860-1925, at 131-175 (1978); O. HANDLIN, THE UPROOTED 247-267 (2d ed.

1973); see also J. S. HALLER, OUTCASTS FROM EVOLUTION: SCIENTIFIC ATTI-

TUDES OF RACIAL INFERIORITY, 1859-1900, at 170-175 (1971).

bleminded in Connecticut (1915) with such popular southern

works advancing Jim Crow as “The Negro a Beast’: Or “In the

Image of God” (1900); The Negro: A Menace to American Civi-

lization (1907). They were, alike, “a part of the then current lit-

erature of the ‘Yellow Peril’ school and the flourishing cult of

Nordicism.*°

Champions of life-long segregation for retarded people ex-

plicitly invoked the then-exploding prejudice against black peo-

ple. For example, in 1903, Martin W. Barr, President of the

American Association of Medical Officers for Institutions for Id-

iotic and Feeble-Minded Persons, addressed the virtues of “life-

long custodial service” in retardation institutions in these terms:

“{T]hey partake of the industrial and manual training given

in the antebellum days on the plantation, which were in fact

— as the world is fast acknowledging — training schools for

a backward race, many of whom were feeble-minded.’*!

The recitations of the arguments supporting life-long institu-

tional segregation of retarded people matched the recitations on

behalf of Jim Crow: “the shibboieths of . . . the Negro’s innate

inferiority, shiftlessness, and hopeless unfitness for full partici-

pation in the white man’s civilization”; invocation of “the su-

80. C. V. WoopWarD, THE STRANGE CAREER OF JIM Crow 94 (3d rev.

ed. 1974). Other standard historical works on Jim Crow include J. H. FRANKLIN,

FROM SLAVERY TO FREEDOM: A HISTORY OF NEGRO AMERICANS (5th ed. 1980),

R. KLUGER, SIMPLE JUSTICE (1975); I. A. Newsy. Jim Crow's DEFENSE: ANTI-

NEGRO THOUGHT IN AMERICA 1900-1930(1965); G. M. FREDERICKSON, THE

BLACK IMAGE IN THE WHITE MIND (1971).

81. Barr, State Care of the Feebleminded, 76 N.Y. Meb. J. 1159 (1903).

Compare the 1900 address of the President of the Southern Education Asso-

ciation on behalf of Jim Crow, quoted in C. V. WoODWARD, supra note 30, at

95.

Champions of Jim Crow invoked the sterotypes of feeble-

mindedness against black people. For example, Henry Fairfield Osborn, lead-

ing paleontologist and President of the American Museum of Natural History

from 1908 to 1933, wrote that the intelligence of “the Negro” rarely exceeded

“that of the eleven-year-old youth of the species Homo sapiens’; A. B. Hart

wrote, “the Negro mind ceases to develop after adolescence.” Osborn. The

Evolution of Human Races, 26 Nav. Hist. 5(1926); A. B. Hart, THE SOUTHERN

SOUTH 104 (1910).

preme law of self preservation”; and the necessity of “the stronger

and cleverer race, free to impose its will upon new caught, sullen

peoples. ”*? William Graham Sumners’ 1907 Folkways was seized

upon to establish “the irremedial backwardness of the negro and

the futility of efforts to improve him.”

Asserted dangerousness was crucial to the arguments for per-

manent segregation. For Jim Crow, “a sensational press played

up and headlined current stories of Negro crime . . ., a daily

barrage of Negro atrocity stories."*+ For life-long segregation of

retarded people, the fiction of their dangerousness was also sys-

tematically invented and perpetuated. In Texas, for example, in

1914, the State Conference on Charities and Corrections was

told by one of its leaders:

“The refusal of Texas to make provision for its feeble-minded

for the simple reason that from them they fear no personal

bodily violence is an increasing menace to the mental and

spiritual life of our Stat», in contrast to which the fancied

physical safety is negligible. I have used the phrase fancied

physical safety, advisedly, for security from bodily ills is not

gained through segregation of the insane and promiscuous

freedom of the feeble-minded. . . . Not only are the feeble-

minded a menace as regards act 1al criminal proclivities but

they are equally a menace as regards public health. ©

The Jim Crow movement proceeded in “mounting stages of

aggression” until, by 1911 “ ‘[iJts spirit is that of an all-absorbing

autocracy of race, an animus of aggrandizement which makes, in

the imagination of the white man, an absolute identification of

82. C. V. WoopwarD, supra note 80, at 70, 72-73.

83. R. KLUGER, supra note 80, at 86.

84. C. V. WoopwarD, supra note 80, at 86.

$5. PROCEEDINGS (1914), supra note 10, at 63. The General Secre‘ary of

the National Conference on Charities and Corrections had in 1899 set the Na-

tional Conference on a campaign to persuade the public that “the feeble-

minded” were dangerous. Johnson, Report of the Committee on Colonies for

Segregation of Defectives, 30 Proc. NATL CONF. CHARITIES & CORRECTIONS

248-49 (1903), quoted in P. Tyor, supra note 76, at 184; see also Barr, The

Imbecile and Epileptic Versus the Taxpayer and the Community, 29 PROC.

NaTL CONF. CHARITIES & CORRECTIONS 163 (1902).

the stronger race with the very being of the state.’ "** As Richard

Kluger has written:

“Keeping blacks separate, everyone understood, would pre-

vent contamination of white blood by the defective genes of

colored people, whose unfortunate traits stemmed from their

tribal origins in densest Africa and were incurably fixed upon

the face from generation to generation. . . . [Their very

blackness bespoke their low and brutish nature. All litera-

ture, folklore, and custom of the English-speaking peoples

reinforced the notion that the African’s tawny hide was a

primal stain. "57

The apotheosis of the demands of racial purity was, as the State

of Kentucky represented to this Court in its brief in Berea Col-

lege v. Kentucky, 211 U.S. 45 (1908):

“If the progress, advancement and civilization of the twen-

tieth century is to go forward, then it must be left not only

to the unadulterated blood of the Anglo-Saxou-Caucasian

race, but to the highest types and geniuses of that

race... .™

The demands of “racial betterment” required the very most

severe measures within their grasp. Solutions beyond segrega-

tion were examined but had to be discarded. The Texas pam-

phlet was illustrative: “. . . euthanasia, neo-malthusianism, and

polygamy are either impossible under the protective forces of

modern social conditions or are ideas repugnant to present day

ideas of religion and humanity.” Segregation “has appealed to

society s feelings of humanity and fair play with greatest force.”

Segregation is “the most feasible, most easily put into force, and

least subversive of constitutional prerogative’*® — a plain state-

ment of the impact on the Era of Plessy v. Ferguson, 163 U.S.

537, 544-52 (1896). Without Plessy’s permission, no state in con-

templation of the Fourteenth Amendment could have dared to

impose life-long segregation upon any citizen.

86. C. V. WooODWARD, supra note 80, at 108.

87. R. KLUGER, supra note 80, at 305.

88. Id. at 87.

89. C. S. YOAKUM, supra note 10, at $2 (emphasis supplied).

State-imposed segregation was justified as benign anc even

beneficial to its victims according to the near constant profes-

sions of those who established it. Segregation of “the feeble-

minded,” the Texas rationale went, consistent with a “deep and

abiding charity,” “permits all to live under those circumstances

best suited to make each useful and happy.” As to segregation

by race, a Texan wrote, “both races believe that a separate social

life is most desirable and most practical.”%! Jim Crow in Texas

was not “petty persecution of the Negro, attributed to a desire to

humiliate, stigmatise, and degrade him, [it is] the embodiment

of enlightened public policy, and is the surest guarantee of a

minimum of friction between the races. *? Separation, President

Woodrow Wilson said, was “not humiliating, but a benefit . . .

‘rendering them more safe in their possession of office and less

likely to be discriminated against.’ “

The Cleburne ordinance excluding “homes for the . . . fee-

bleminded” is thus not an isolated enactment but the perpetu-

ation of a pattern of invidious inflictions.* Indeed, the legislation

from which Cleburne’s exclusionary provision is copied — Dal-

las’ ordinance of 192995 — was formulated in the era that estab-

lished the state regime for the life-long segregation of retarded

people.

This case will determine whether that regime of segregation

will be disestablished and whether a decent respect wili be ex-

90. Id. at 83.

91. R. E. SmMivH, CHRISTIANITY AND THE RACE PROBLEM 10 (1922).

92. A. H. STONE, STUDIES IN THE AMERICAN RACE PROBLEM 64 (1908).

93. R. KLUGER, supra note 80, at 91.

94. Amici had available to them, in the library of the University of Texas

at Austin, current zoning ordinances of sixty Texas cities. Of these, the codes

of twelve cities explicitly exclude homes for persons with retardation from neigh-

borhoods where comparable dwellings for non-retarded persons are permitted.

They are AMARILLO Cope, chs. 26-8, 26-11(43a); BEAUMONT CODE,

§42-15(A)(1); CAROLLTON Cove, art. XV(14); Copperas Cove Cope, §5(4)(m);

DUNCANVILLE wget art. I14); Epinpurc Cope, art. IV, §4-2(3); KILLEEN

Cope, ch. 9, art. 2, §8-1(f); Miptanp Cope, §11-1-10(A), NEW BRAUNFELS

Cope, §6C.1-6; Poxt NECHES Cope, §24-6; SAN ANGELO CODE, §33-2-14(6);

SULPHUR SPRINGS CODE, art.6(a).

95. The ordinances are set out in App. B.

OO OO

tended to retarded people. Disestablishing that regime requires

the full measure of equal protection lest retarded people be again

treated as “unfit for citizenship.”

II. CLASSIFICATIONS BASED UPON RETARDATION

THAT EXCLUDE AND SEGREGATE RETARDED PER-

SONS ARE SUSPECT AND SHOULD BE GIVEN STRICT

AND SEARCHING SCRUTINY.

A. A History of Purposeful Unequal Treatment Imposed By

the State Triggers the Standard for Strict Scrutiny of Leg-

islative Classifications.

This terrible, purposeful life-long segregation of retarded

people undertaken by the states to separate “them” out entirely

from the rest of “us” constitutes the extraordinary “history of

purposeful unequal treatment” that is the predicate of strict and

searching scrutiny of legislative classifications. San Antonio In-

dependent School District v. Rodriguez, 411 U.S. 1, 28 (1973).

Retarded people as such” “have . . . experienced a history

of purposeful unequal treatment [and] been subjected to unique

disabilities on the basis of stereotyped characteristics not truly

indicative of their abilities.” Massachusetts Board of Retirement

96. 1920 Miss. Laws 288, set out at p. A-47.

97. The basis of classification that amici urge be held suspect is not the use

of “intelligence” across the spectrum of capabilities, but rather the specific

targeting of the lowest end of the spectrum, as such. The suspect criterion is

not intelligence but the status of “being retarded.” Thus fine points of state

college admissions requirements or civil service examinations, for example,

may rest upon rational bases. No people in this country ever have been forcibly

sterilized or chained to the walls of an institutional back ward because they

failed to gain admission to Harvard. The evil here is the targeting of retarded

people as such. fo be sure, college admissions based on SAT scores do dis-

criminate against retarded people, and retarded people (among others of us) are

barred from Harvard (or Berkeley, if state action is wanted). But such discrim-

ination based upon intelligence under the Equal Protection Clause should be

viewed as “indirect deprivation” as in Schweiker v. Wilson, 450 U.S. 221, 234

(1981) or as “unintentional” or “incidental” as in Washington v. Davis, 426 U.S.

229, 238-48 (1976).

v. Murgia, 427 U.S. 307, 313 (1976).% The disqualifications im-

posed by the regime of segregation are the most severe imagi-

nable among citizens: retarded people as such are “not only de-

prived of their physical liberty, [but] also deprived of friends,

family and community.” Parham v.] .R., 442 U.S. 584, 626 (1979)

(concurring & dissenting opinion).

Legislative classifications that segregate, exclude or isolate

retarded people, precisely because they are based in this history

of purposeful unequal treatment are thus “more likely than oth-

ers to reflect deepseated prejudice,” Palmore v. Sidoti, 104 S.

Ct. 1879, 1882 (1984); Plyler v. Doe, 457 U.S. 202, 216 n.14

(1982), and to embody — as the ordinance here plainly does —

exactly the kind of “class or caste” treatment that the Equal Pro-

tection Clause was designed to abolish. Such legislative classi-

fications should, therefore, be treated as presumptively invidious.

B. Retardation Is an Immutable Characteristic That Has

Been Subject to Invidious Classification.

The characteristics of racial status that betoken a special vul-

nerability to historically provoked invidious classification, and

that have thus caused the Court to apply a constant, searching

scrutiny to disadvantaging racial classifications, are present also

in the status of being retarded. That status is observable and

immutable; retardation is present from birth or early thereafter

through all of life, and is present through no fault of the retarded

person, nor any reason within the person's control.

In these characteristics, the status of being retarded is more

like racial status than is illegitimacy, alienage or national origin,

each of which the Court has variously said are suspect bases for

classification.

98. Neither the aged, the mentally ill, alcoholics, drug addicts nor “vie-

tims of cancer . . . , the unemploved, or bankrupts,” Brief for the United States

as Amicus Curiae at 9, has ever been subjected to such a regime of state-

imposed, life-long segregation.

-_ Gaitetiin js —

The Court has regarded illegitimacy in many respects as

analogous to the characteristics of a racial classification.” Trimble

v. Gordon, 430 U.S. 762, 767 (1977). Because of the mutability

of illegitimacy and its essential social invisibility, even apart from

the limited disqualification that status has historically imposed,

the Court has declined to apply “strictest scrutiny” to illegiti-

macy. Id. In terms of suspect characteristics, illegitimacy resem-

bles a racial status less than does the status of being retarded.

Retardation or skin color, unlike illegitimacy, cannot be elimi-

nated by the child’s parents subsequently marrving or filing a

court paper acknowledging their responsibility for their child.

Although classifications based on alienage have been held to

be “inherently suspect,”' the Court has been willing to ap-

prove discrimination involving alienage on occasion because of

the relative mutability of the status, its relative invisibility, and

the absence of gross and pervasive hardships imposed on aliens

as such. The classifications held offensive,the Court empha-

sized in Foley v. Connelie, 435 U.S. 291, 295 (1978), were “ex-

clusions’ that “struck at the non-citizens’ ability to exist in the

community. On those occasions that it has permitted alienage

classifications, the Court has noted that alien status is alterable

by the individual persons who “in effect [choose] to classify them-

selves.” Ambach vt. Norwick, 441 U.S. 68, 80 (1979); see Cabell

vu. Chavez-Salido, 454 U.S. 432 (1982). Moreover, in Plyler cv.

Doe, 457 U.S. at 220, the school exclusion imposed on alien chil-

dren was overturned precisely because the children were help-

less in changing their alien status (this would depend upon their

parents) and because of the pervasive hardship worked on the

children by their exclusion from education.

99. ~ ‘Visiting this condemnation on the head of an infant is illogical and

unjust... . [Illegitimate children can affect neither their parents’ conduct nor

their own status.” Trimble ct. Gordon, 430 U.S. 762, 769-70 (1977).

100. Graham v. Richardson, 403 U.S. 365, 372 (1970); Examining Board

v. Flores de Otero, 426 U.S. 572, 602 (1976).

101. E.g.. Matthews cv .Diaz, 426 U.S. 67 (1976).

C. Utilization of a Suspect Standard for Disadvantaging Class-

ifications Will Not Be Fatal to Classifications That Benefit

Retarded People.

Suspect class status does not mean that the classification can

never be used for any purpose. Scrutiny of a cl4ssification based

upon race must be “strict” and “searching” but it is not auto-

matically “fatal in fact.” G. GUNTHER, CONSTITUTIONAL LAW:

CASES AND MATERIALS 752 (1980). As to race itself, the Court

has ordinarily applied strict scrutiny only to “disadvantaging ra-

cial classifications,” id. at 745-52, in particular to classifications

that exclude or segregate (or are a part of the exclusionary re-

gime), e.g., Loving v. Virginia, 388 U.S. 1, 9-12 (1967). Fur-

thermore, this Court has upheld racial classifications under strict

scrutiny so long as there is a sufficient showing that the classi-

fication in fact benefits the suspect class, overcoming past dis-

crimination or its virulent effects. Bakke, 438 U.S. at 355-62

(Brennan, White, Marshall, Blackmun, JJ.); Fullilove v.

Klutznick, 448 U.S. 448, 472 (Burger,C.J., White, Powell, JJ.);

id. at 495, 496 & n. 1. (Powell, J.); id. at 517-19 (Marshall, Bren-

nan, Blackmun, JJ.); id. at 532, 548 (Stevens, J.) (1980).

Accordingly, special education programs for retarded chil-

dren would noi fall. Thus, applying the Education for All Hand-

icapped Children Act of 1975, 20 U.S.C. §1401, the Court has

held that the standard for “appropriate” educational programs

provided for under the Act is that they be “reasonably calculated

to yield educational benefit,” akin to a minimum rationality stand-

ard. Board of Education of Hendrick Hudson School District v.

Rowley, 458 U.S. at 203, 207 nn. 25, 28. But, under that Act, any

exclusionary or isolating form of special education is justified only

if a segregated program in fact benefits the child and its segre-

gation is demonstratedly necessary to that benefit, akin to a strict

and searching standard. Roncker v. Walter, 700 F.2d 1058, 1063

(6th Cir. 1983), cert. denied, 104 S.Ct. 196 (1984). !°2

102. The Roncker court correctly articulated the statutory test as “whether

the services which make [the segregated] placement superior could feasibly be

provided in a non-segregated setting. If they could, the placement in the seg-

regated school would be inappropriate under the Act.” This standard would

Thus, familiar classifications including retarded people in

governmental assistance programs and in programs for special

assistance (which the United States unaccountably raises as trou-

blesome') are, like other welfare classifications, subject only to

minimum scrutiny. Any classification in such a program, how-

ever, that segregates or excludes retarded people weuld trigger

searching scrutiny and would be sustained only if the segregation

in fact benefits retarded people and is necessary to secure that

benefit.

D. Cleburne’s Exclusion of Retarded People from the Com-

munity Is Perverse: It Cannot be Justified on the Basis of

Any Characteristic or Need of Retarded People.

The excluding legislative classification at issue here subjects

retarded people “to unique disabilities on the basis of stereo-

typed characteristics not truly indicative of their abilities.”

Murgia, 427 U.S. at 313. Indeed, “to the extent it reflects any

[real] difference between [retarded people and non-retarded], it

is actually perverse.” Craig v. Boren, 429 U.S. 190, 212-13 (1976)

(Stevens, J., concurring).

Separating retarded people is perverse. Plainly so when

measured against any profession of benign purpose as to retarded

people; less evidently, perhaps, because of the stereotype, but

no less plainly when measured against any legitimate!™ purpose

govern the continued provision of programs for retarded persons in institu-

tional settings, allowing those that demonstratedly benefit retarded persons

and that could not be provided elsewhere in a non-segregated setting.

103. If the problem is thought to be that special programs for retarded

people exclude non-retarded people, the answer is that non-retardation can in

no way be thought to be a basis for suspectness. If the problem is that special

programs isolate retarded people, and hence trigger searching scrutiny, the

practical answer is that special progyams for retarded people need not isolate

them, but that if they do truly isolate retarded people then, because of the risk

that deep-seated prejudice and not any real benefit has prompted the isolation,

the necessity of such isolation to benefit should be searchingly scrutinized.

104. The Court has rejected summarily argument that “discrimination may

be justified by a desire to discriminate” as “unpersuasive on its face.” E.g.,

Examining Board v. Flores de Otero, 426 U.S. at 605; Buchannan v. Worley,

214 U.S. 60 (1916).

“The Constitution cannot control such prejudices but neither can it tol-

concerning the quality of life and community fer the rest of “us.”

Learning (and much else) by retarded people requires the

example of other non-retarded people and in real-world envi-

ronments where what is learned is done.'® As for all people, but

relatively more so for retarded people (it is one of their “differ-

ences’), learning by retarded people during all of life proceeds

in significant part by imitation and example and in the concrete,

rather than by generalization from one context into another.

Learning by retarded people flourishes in properly structured

and integrated environments; in isolation it is destroyed. !%

As members of the community, retarded people of all ranges

of ability can and do maintain not only steady but productive

jobs."°" Retarded people can and do significantly care for them-

selves, keep clean and even pleasing rooms, and respect the rights

of others, for in the community you never know when a friend

whose respect you wish to keep may drop in.'® Retarded people

do make good neighbors, to their own benefit and their neigh-

erate them. Private biases may be outside the reach of the law, but the law

cannot, directly or indirectly, give them effect.”

Palmore v. Sidoti, 104 $.Ct. at 1882.

105. See, e.g., Brown, et al.. Toward the Realization of Integrated Ed-

ucational Environments for Severely Handicapped Students, 2 REV.AM.ASSN.

EDUC. SEVERELY & PROFOUNDLY HANDICAPPED 195 (1977); R. HORNER & G.

BELLAMY, Structured Employment: Productivity and Productive Capacity, in

VOCATIONAL HABILITATION FOR SEVERELY HANDICAPPED PERSONS (G. Bellamy,

et al., eds. 1979).

106. Thus, the loss in institutions of skills achieved by retarded people

before institutionalization, and the terrible explosion of aberrant behavior and

injury in institutions, arise because the segregated retarded people have only

their custodians and themselves to imitate. Youngberg v. Romeo, 457 U.S. 307,

327 (1982) (concurring opinion); Pennhurst State School & Hospital v. Halder-

man, 104 S.Ct. 900, 904 (1984).

107. PRESIDENTS COMMITTEE ON MENTAL RETARDATION, THE MENTALLY

RETARDED WorKER,. AN ECONOMIC DisCOVERY: REPORT TO THE PRESIDENT

(1983); Bellamy, et al., Habilitation of Severely and Profoundly Retarded: II-

lustrations of Competence, 10 ED. & TRNG. MENT. RETARDED 174 (1975).

108. E.g., PRESIDENTS COMMITTEE ON MENTAL RETARDATION, THE LEAD-

ING EDGE, SERVICE PROGRAMS THAT WorK: REPORT TO THE PRESIDENT (1978).

bors .! The abysmally ignorant stereotypes to the contrary do

not withstand the facts or a correct understanding of what dif-

ference being retarded makes. Retarded people need assistance,

as do all persons, often relatively more, but that means not ex-

clusion from the community but participation in it.!!

The City of Cleburne’s excluding ordinance and the regime

of segregation of which it is a part would create an “underclass of

. . citizens,” a permanent caste, perverse from the standpoint

of any state purpose legitimate under the Equal Protection

Clause. Plyler, 457 U.S. at 239 (concurring opinion). “We can't

ignore the significant social costs borne by our Nation when se-

lect groups are denied the means to absorb the values and skills

upon which our social order rests.” Plyler, 457 U.S. at 221.

Il. THE CONTINUED VIRULENCE OF CLASSIFICA-

TIONS EXCLUDING AND SEGREGATING ON THE

BASIS OF RETARDATION REQUIRES THEY BE

GIVEN STRICT AND SEARCHING SCRUTINY.

Observing the destructiveness of life-long segregation upon

retarded people, Fernald and others later changed their minds

and withdrew from their positions. But the power of the state

had already been engaged and no personal apology could have

dissolved its terrible force, nor did it. Once established the pur-

poseful regime of segregation and the deep-seated prejudices it

legitimated are not so easily disestablished.

The extraordinary undertakings of the states, all of them, in

that segregating Era “put the weight of government behind. . .

109. E.g., R. PERSKE, NEW LIFE IN THE NEIGHBORHOOD (1980); cf. Co-

lumbus Board of Educ. v. Penich, 443 U.S. 449, 485 n.5 (1979) (Powell, &

dissenting) (“integration” furthers the “essential” end that “diverse peoples of

our country learn to live in harmony and mutual respect”).

110. The power of the stereotype is sometimes irresistible even by the

most caring persons. In Romeo, for example, the Court observed that

“[rlespondent, in light of the severe character of his retardation, concedes that

no amount of training will make possible his release.” 457 U.S. at 317. Yet ten

months after the Court's decision, Nicholas Romeo moved to a group home in

Philadelphia and since April, 1983, has successfully lived in the community,

working in a community workshop. Woestendiek, The Deinstitutionalization of

Nicholas Romeo, Phila. Inquirer Mag., May 27, 1984, at 18.

hatred and separatism” as virulent as racial hatred and separa-

tism. Bakke, 438 U.S. at 357-58 (Brennan, White, Marshall,

Blackman, JJ.). “It would ignore reality to suggest that preju-

dices” so like “racial and ethnic prejudices do not exist or that all

manifestations of these prejudices have been eliminated.”

Palmore v. Sidoti, 104 $.Ct. at 1882.

Substantial political victories in such enactments as the fed-

eral Education for All Handicapped Children Act, and the visible

organization of the Associations for Retarded Citizens, National

Down Syndrome Congress and People First organizations them-

selves do not differentiate retarded from black people; they show

vet another direct parallel. The federal Education for All Hand-

icapped Children Act was as much a response to initial judicial

“discovery” (and invalidation) of the gross discrimination by the

States against retarded people!!! as were the Civil Rights Acts of

1964, 1965 and 1968 a response to Brown. In both instances,

moreover, the legislation was belated recognition of past abuse

and an expression of resolve to remedy this abuse. The Court has

not read this belated political “success” of blacks to mean that

racial classifications by states are no longer suspect. Palmore v.

Sidoti, 104 S.Ct. at 1882.!!2

Retarded people continue to be under the pains of the re-

gime of purposeful discrimination. Invidious statutes and ordi-

nances — like the Cleburne ordinance — are still on the books

and routinely applied to disadvantage retarded people.!!* The

continued virulence of classifications excluding people with re-

111. In its opinion in Rowley, 458 U.S. at 192-93, the Court recognized

the origin of the Education Act in the judicial decision in Pennsylvania Asso-

ciation for Retarded Children v . Pennsylvania, 343 F.Supp. 245(E.D. Pa. 1972).

112. The enforceability against states of the congressional enactments, and

even whether they have any meaning or not, may depend upon whether a

Fourteenth Amendment right underlies them. Pennhurst State School & Hos-

pital v. Halderman, 451 U.S. 1, 16-18 (1981).

113. See, e.g., zoning ordinances cited supra note 94; for state laws pro-

hibiting retarded persons from marrying, see Linn & Bowers, The Historical

Fallacies Behind Legal Prohibitions of Marriages Involving Mentally Retarded

Persons, 13 GONZAGA L. REV. 625, 677-689 (1978).

tardation is plainly evident and is painfully experienced by re-

tarded people and their families. The practice of denying cor-

rective surgery to retarded children is longstanding. !!4

Notwithstanding the congressional realization that “the vast

majority '!5 of retarded persons institutionalized should not be

in those institutions, and the continuing congressional concern

and attention to the unending reports of abuse, neglect and de-

terioration of retarded persons in those institutions, thousands of

retarded persons remain in segregated institutions subject to their

acknowledged, decried, but ultimately condoned brutality. '!© Re-

tarded people seeking to reenter the society from which they

have been excluded face rejection, antipathy and hostility from

organized society.) !7

Daily, the amici organizations have cause to try to assert

against continuing prejudice and invidious official action the

claims of retarded people to a decent respect. As the President's

Committee on Mental Retardation has reported:

“So much nas happened in the past 25 years to reverse social

policies, to change public attitudes, to open the way to re-

ducing the occurrence of mental retardation and to improve

the quality of life for mentally retarded persons that we are

114. For evidence of the social acceptability of withholding treatment from

retarded infants, see Hentoff, The Awful Privacy of Baby Doe, ATLANTIC, Jan.,

1985, at 54. For the persistence of the practice see note 74 supra.

115. S. Rep. No. 94-160, 94th Cong., Ist sess. 32 (1975).

116. Compare Institutional Care and Services for Retarded Citizens: Hear-

ing Before the Subcomm. on the Handicapped of the Comm. on Labor and

Human Resources, 98th Cong., Ist sess. 63-104, 224-30 (1983); with B. BLATT

& F. KAPLAN, CHRISTMAS IN PURGATORY: A PHOTOGRAPHIC ESSAY ON MENTAL

RETARDATION (1974); see Youngberg v. Romeo, 457 U.S. at 310; Pennhurst

State School & Hospital v. Halderman, 451 U.S. at 7.

117. See, e.g., Keating, The War Against the Mentally Retarded, N.Y.

MaG., Sept. 17, 1979, at 87; Finley, Arson Hits House Planned for Retarded,

Detroit News, Apr. 30, 1982; Ford, 2d Home for Retarded Is Set Ablaze, De-

troit Free Press, Dec. 5, 1980; Christensen, “Not My Block” Reactions Greet

Group Homes, Dayton Daily News, Mar. 18, 1984; see also D. & S. ROTHMAN,

THE WILLOWBROOK Wars 180-99 (1984).

tempted to think the problem is essentially solved, that we

can coast in on the momentum of these achievements. Noth-

ing could be further from the truth .\'»

By invoking the full measure of respect that the Equal Pro-

tection Clause requires be extended, this Court can assure that

retarded people are not further treated as “unfit for citizenship”

and disestablish the invidious regime. The country is beginning

to recognize past error; states are beginning to return retarded

citizens to their communities. The Court must not allow the

Cleburne ordinance enacting the spirit of the segregating past to

be utilized now to reverse a new beginning. To do so would be

to officially sanction the regime of segregation again.

CONCLUSION

For the foregoing reasons, the Court should hold that re-

tarded people are a suspect class. On that basis, the judgment of

the Court of Appeals should be affirmed.

Respectfully submitted,

Thomas K. Gilhool*

Frank J. Laski

Michael Churchill

Judith A. Gran

Timothy M. Cook

Public Interest Law Center

of Philadelphia

1315 Walnut St., Suite 1632

Date: February 2, 1985 Philadelphia, PA 19107

(215) 735-7200

*Counsel of record. a ,

f Counsel for amici curiae

118. PRESIDENTS COMMITTEE ON MENTAL RETARDATION, MENTAL RETAR-

DATION, PAST AND PRESENT 259 (1977)(emphasis provided). In its report to the

President the Committee went on to warn:

“In truth we have only a beginning. Social policies have been only partially

turned around, and could swing back again to repressive, restrictive, de-

humanizing methods of control.” Id.

APPENDICES

APPENDIX A

COMPENDIUM OF PURPOSEFUL STATE ACTION

FOR THE SEGREGATION AND EXCLUSION OF

RETARDED PERSONS IN THE FIFTY STATES

AND THE DISTRICT OF COLUMBIA

This Appendix presents the official actions of the

states promoting and requiring by statute the segrega-

tion of retarded people.* Amici have included a sampling

of state reports of agencies, officials, committees and

boards that constitute the legislative history and the post-

enactment history of the laws that were adopted.** All

italics have been added by amici.

CONTENTS

Page

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“In addition to the 50 states, the federal law enacted by the

United States Congress to segregate retarded people found in the

District of Columbia is set out at A-76-81.

“*For a sampling of state actions affecting retarded people in

other areas, e.g., restrictions on marriage, voting, and education, see

Appendix B to the Amici Brief of the American Association of Mental

Deficiency, et al.

A-i

CONTENTS~— Continued )

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Northeastern States

Connecticut. The first recorded provision of a spe-

cialized facility for retarded people in this country oc-

curred in Connecticut when the American Asylum for

the Deaf and Dumb, located in Hartford, in 1818 counted

among its students a few “idiot children.” REPORT OF

THE COMMISSIONERS ON IDIOCY TO THE GENERAL AS-

SEMBLY OF CONNECTICUT 62 (1856). Later, the Con-

necticut legislature provided some funding for a private

school in Lakeville. After the turn of the century, though,

that facility began receiving a sharply increased number

of residents, and it soon became a custodial institution.

In 1906 the Director was already reporting that “remov-

als are almost unknown.” REPORT OF THE DIRECTORS

AND SUPERINTENDENT OF THE CONNECTICUT SCHOOL

FOR IMBECILES 6 (1906).

By 1908 the operators of the facility claimed they had

“a wide knowledge of the imperative need of providing

permanent custodial care for the safeguarding of girls

and women of feeble mind, and a growing appreciation

of the preventive value of equal custodial care for the

male of evil tendencies. Backed by effective legislation

the care of the defective has resolved itself into a com-

paratively simply matter... .” REPORT OF THE DIREC-

TORS AND SUPERINTENDENT CF THE CONNECTICUT

SCHOOL FOR IMBECILES 12 (1908). “|T|he surest, most

humane and most economical solution of the problem of

prevention lies in providing custodial care for the feeble

minded of every condition and for a lifetime.” Id. at 13.

In 1911, the General Assembly enacted a statute pro-

viding that “imbecile|s]” could be admitted to the

Lakeville facility by application of the “selectmen” of any

town. 1911 Conn. Pub. Acts 1493, ch. 211. In 1913 the

state formally took control of the institution by enact-

ment of a statute specifying that its “object” would hence-

forth be the “custody” of any “imbeciles resident of this

state.” 1913 Conn. Pub. Acts 1765, ch. 160, §1.

A-1l

A-2/Connecticut

The following year, state officials reported that they

were “of the opinion that the problem of the feeble-

minded in the State of Connecticut urgently demands a

much more adequate provision for these unfortunate in-

dividuals than is now supplied. It has been estimated that

there must be at least three thousand feeble-minded in

the State, and at the present time, provision is made for

only three hundred. It is anow recognized fact that feeble-

mindedness is to a much greater extent than insanity an

inheritable condition and it is known that this class is

particularly prolific. The criminal, the alcoholic, and the

prostitute are all recruited from the ranks of the feeble-

minded. The only practicable way to restrict the growth

of the feeble-mindedness in the state is to segregate the

feeble minded and particularly feeble-minded women

during the child bearing-period. The question to be de-

cided is really this: Shall we of this generation accept the

burden of this care, or shall we hand on to the next gen-

eration a much larger share? Undoubtedly failure to now

segregate the feeble-minded will result in an increasing

prevalence of the condition as time goes on.” STATE OF

CONNECTICUT, BIENNIAL REPORT OF CONNECTICUT

SCHOOL FOR IMBECILES, LAKEVILLE, CONN., FOR TWO

YEARS ENDED SEPTEMBER 30, 1913-14, at 8 (Pub. Doc.

No. 15, 1915). The report also recommended that the

“institution should not be situated in the midst of a pop-

ulous village. While it should be convenient to railroad

communication, it should be somewhat remote from the

centers of population for reasons that are obvious.” Id. at

In order to gain public support for the new facility,

Superintendent Charles T. LaMoure and the Board of

Trustees of the School for Imbeciles published and dis-

tributed widely a pamphlet in which they claimed an ur-

gent need to “|s]top the supply of the vicious, the weak,

the no-willed people who cannot support themselves in

the community — of the criminals and prostitutes and

paupers, by cutting off the supply at its source, namely

The Northeast/A-3

— by providing adequate custodial care for the feeble-

minded of the State.” THE CONN. SCHOOL FOR IMBE-

CILES, THE MENACE OF THE FEEBLE-MINDED IN CON-

NECTICUT 9 (1915). These “feeble-minded” people,

“though really children, are allowed to go about through

the community as though they were adults. They have

an impaired sense of right and wrong, weak will power

and no power of realizing the future. . . .

“Moreover, the feeble-minded are unusually prolific.

Therefore the longer the State of Connecticut delays in

making adequate provision for the feeble-minded, the

greater the burden of feeble-mindedness she will have to

bear in future [sic].” Id. at 3. But they proposed a solu-

tion: “The State has the opportunity of buying for this

institution a large tract of forest and arable land — be-

tween six and seven hundred acres. . . . This property is

in the central part of the State, remote from centres of

population ... and there is room for the institution to

grow indefinitely.” Jd. at 13. For this purpose, “|t|he trus-

tees of the Connecticut School for Imbeciles are asking

the General Assembly for authority to sell the present

plant, and to use the proceeds and $200,000 to be ap-

propriated by the State in the purchase of this property,

and in equipping it for the needs of the institution. This

would provide, aside from the necessary alterations to

buildings, etc., sufficient cattle and farming implements,

so that the institution could produce its own milk and

vegetables, using for the most part the labor of its high

grade patients.” Id. at 14.

On February 25, 1915, a hearing was held before the

state legislature’s Committee on Humane Institutions.

One witness testified that “hardly a week goes by but

what we have a case of a feeble-minded girl or boy called

to our attention. We have no way of getting rid of these

kinds of cases.” Connecticut School for Imbeciles: Hear-

ings on H. B. No. 644 Before the Joint Standing Com-

mittee on Humane Institutions 20 (typed transcript, Feb.

25, 1915) (statement of Mr. Kerner of Waterbury). An-

A-4/Connecticut

other thought it necessary for “every feeble-minded child

in the school [to be] eliminated or placed in a special

class.” Id. (statement of Miss Wright of Stanford). Su-

perintendent Alexander Johnson of New Jersey’s insti-

tution at Vineland brought to the Committee’s attention

“this book called, ‘The Menace of the Feeble-Minded in

Connecticut,’ which was gotten up by the Board of Trus-

tees for the School of Imbeciles, and I would recommend

anyone who has any doubt as to the proper care of that

class to read this book very carefully.” Id. at 2 (statement

of Dr. Johnson).

On May 20, 1915, the Connecticut legislature fol-

lowed the recommendations of the state officials and the

witnesses at the hearing and appropriated the $200,000

requested for an ambitious construction project on state-

owned land at Mansfield Depot, an isolated railway stop

sixty miles northeast of Hartford.

By the time he wrote his 1916 Bienniai Report, Su-

perintendent LaMoure thought that “[t}he dangers as-

sociated with allowing the feeble-minded to remain at

large among the general population have been so fre-

quently discussed that it is not necessary to do more than

refer to them.” STATE OF CONNECTICUT, BIENNIAL RE-

PORT OF THE CONNECTICUT TRAINING SCHOOL FOR

FEEBLE-MINDED, LAKEVILLE, CONN., FOR THE Two

YEARS ENDED SEPTEMBER 30, 1915-16, at 7 (Pub. Doc.

No. 15, 1917). He looked forward to the completion of

the new institution, where, he noted, “[m]any of the male

inmates . . . are capable of doing a considerable amount

of satisfactory farm work under supervision, and, witha

proper farm we should be in a position to improve the

quality of our food and save the State a considerable

amount of money by raising vegetables, producing our

own milk and eggs, and using rather than wasting our

garbage by the keeping of pigs.” Id.

Delaware. On March 21, 1917, the Delaware Gen-

eral Assembly established the state’s first home for “the

feeble-minded.” 1917 Del. Laws 597, ch. 172. The in-

The Northeast/A-5

stitutionalization of such persons could be sought by “any

reputable citizen of the State,” which was to be ordered

by the county judge “when by reason of such mental

condition, or of existing social conditions, it would be

detrimental to any community of this State to allow such

person to remain at large.” Id. §9.

The legislature also adopted “AN ACT to provide for

the sterilization of certain mental defectives,” 1923 Del.

Laws, ch. 62, authorizing the surgery for those at the

state home for whom a “physician, alienist and superin-

tendent unanimously determine that procreation is

unadvisable.” Id.

Maine. In 1907, the Legislature of Maine established

the “Maine School for Feeble Minded.” 1907 Me. Acts

42, ch. 44. A special committee chaired by Governor Wil-

liam T. Cobb “|a]fter careful consideration.” located the

institution “on an area of farmland. ... The plan called

for a large tract of land, which should be removed from

any large town....” Hood, Pineland Observer, in

PINELANDS, 60 YEARS: 1908-1968 (L. Moore, ed. 1968).

In 1921, the lawmakers extended those eligible for

commitment to “idiotic and feeble-minded males, be-

tween the ages of six years and forty years, and females,

between the ages of six years and forty-five years.” 1921

Me. Acts 65, ch. 60. Four years later, the legislature au-

thorized sterilization for all those for whom that surgery

“may be indicated for the prevention of the reproduction

of further feeble-mindedness.” 1925 Me. Acts 198, ch.

208.

Maryland. On March 31, 1888, the General Assem-

bly of Maryland passed “AN ACT to establish an asylum

and training school for the feeble minded of the State of

Maryland.” 1888 Md. Laws 268, ch. 183. In 1906, the

lawmakers mandated that the institution “receive, care

for and educate, free of charge, all idiotic, imbecile and

feeble-minded persons in this state” approved by the

board of visitors of the facility. 1906 Md. Laws 653, ch.

362. The law required that “all such persons shall re-

A-6/Maryland

main in the care, custody and control of the visitors of

said institution, and the visitors of said institution are

hereby authorized to retain all such persons in their care,

custody and control at said institution, until such time as

in the judgment of said visitors, or a majority ot them, the

welfare of such persons and the public interest shall jus-

tify or call for their release. .. .” Id. at 653-54.

The Board of Visitors campaigned vigorously for in-

creased admissions. These reports revealed the

institution’s segregating purposes: “One of the sad fea-

tures which hangs as a black cloud over the work, is the

fact that some hundreds of children, many of whom are

o burden to the family and a menace to the community

in which they live, are continuously knocking at our doors

for admission, but only a small number of these can be

received solely for want of funds to maintain them, though

we have empty beds awaiting their reception.” TWENTY-

FOURTH REPORT OF THE BOARD OF VISITORS OF THE

ROSEWOOD STATE TRAINING SCHOOL, OWINGS MILLS,

BALTIMORE COUNTY 5 (1936).

Massachusetts. As a result of a legislatively com-

missioned report authored by Dr. Samuel Gridley Howe

of the Harvard Medical School, S. G. HOWE, FIRST COM-

PLETE REPORT MADE TO THE LEGISLATURE OF MASS-

ACHUSETTS UPON IDIOCY 16, 30-55 (Mass. Sen. Doc. No.

51, 1848), the Massachusetts legislature, on May 8, 1848

appropriated $2,500 for an experimental school for idi-

otic children to be located in a wing of the Perkins In-

stitute for the Blind in Boston. Howe was named direc-

tor, and ten indigent “idiots” were selected as pupils.

THIRD AND FINAL REPORT ON THE EXPERIMENTAL

SCHOOL FOR TEACHING AND TRAINING IDIOTIC CHIL-

DREN 305 (1852). ‘hy

With perhaps a premonition of the evils that lurked

in his creation, Howe stated in his final report: “Now the

danger of misdirection in this pious and benevolent work

is, that two false principles may be incorporated with the

projected institutions which will be as rotten piles in the

The Northeast/A-7

foundations and make the future establishments deplor-

ably defective and mischievous. These are, first, close

congregation; and, second, the life-long association of a

large number of idiots; whereas, the true, sound princi-

ples are: separation of idiots from each other; and then

diffusion among the normal population. . . . For these and

other reasons it is unwise to organize establishments for

teaching and training idiotic children, upon such prin-

ciples as will tend to make them become asylums for life.

... Even idiots have rights which should be carefully

considered! At any rate let us try for something which

shall not imply segregating the wards in classes, remov-

ing them from our sight and knowledge, ridding our-

selves of our responsibility as neighbors, and leaving the

wards closely packed in establishments where the spirit

of pauperism is surely engendered, and the morbid pe-

culiarities of each are intensified by constant and close

association of others of his class.” S. G. HOWE, REPORT

OF THE SUPERINTENDENT TO THE TRUSTEES OF THE

MASSACHUSETTS SCHOOL FOR IDIOTIC CHILDREN

(1874).

Howe’s advice was forgotten and, by 1886, the Mas-

sachusetts legislature had established “a custodial de-

partment” for “custody of feeble-minded persons beyond

the school age or not capable of being benefited by school

instruction.” 1886 Mass. Acts & Resolves, ch. 298, §1.

After the turn of the century, commitinent procedures

were modified to permit any person, not just relatives, to

seek the commitment of “feeble-minded” persons to the

institution. See 1904 Mass. Acts & Resolves, ch. 459, §5;

1906 Mass. Acts & Resolves, ch. 508, §12.

The superintendent of Massachusetts’ institution,

Dr. Walter E. Fernald, reported in 1908 that “/t]he ex-

istence of this large institution is largely due to the de-

mands of parents, physicians, clergymen, court officers,

social workers, and thoughtful people generally, that

feeble-minded women should be permanently removed

from the community. In this State there is an urgent de-

A-8/Massachusetts

mand for the commitment and permanent detention of

the higher grade cases of defect, where the social inca-

pacity and the moral weakness are more obvious than

the mental backwardness. These cases cannot support

themselves, and are most undesirable and troublesome

members of society.” SIXTY-FIRST ANNUAL REPORT OF

THE TRUSTEES OF THE MASSACHUSETTS SCHOOL FOR

THE FEEBLE-MINDED AT WALTHAM, FOR THE YEAR END-

ING NOVEMBER 30, 1908, at 22-23 (1909).

On June 12, 1912, Superintendent Fernald deliv-

ered an influential speech as the Annual Discourse be-

fore the Massachusetts Medical Society, printed and

widely distributed in pamphlet form by the Massachu-

setts Society for Mental Hygiene: “The past few years

have witnessed a striking awakening of professional and

popular consciousness of the widespread prevalence of

feeble-mindedness and its influence as a source of

wretchedness to the patient himself and to his family,

and as a causative factor in the production of crime, pros-

titution, pauperism, illegitimacy, intemperance and other

complex social diseases. . . . The social and economic

burdens of uncomplicated feeble-mindedness are only too

well known. The feeile-minded are a parasitic, preda-

tory class, never capable of self-support or of managing

their own affairs. The great majority ultimately become

public charges in some form. They cause unutterable sor-

row at home and are a menace and danger to the com-

munity. Feeble-minded women are almost invariably im-

moral, and if at large usually become carriers of venereal

disease or give birth to children who are as defective as

themselves. The feeble-minded woman who marries is

twice as prolific as the normal woman. . . . [S/egregation

carried out thoroughly for a generation would largely re-

duce the amount of feeble-mindedness. The high-grade

female imbecile group is the most dangerous class. They

are not capable of becoming desirable or safe members of

the community. They are never able to support them-

selves. They are certain to become sexual offenders and

The Northeast/A-9

to spread venereal disease or to give birth to degenerate

children. Their numerous progeny usually become pub-

lic charges as diseased or neglected children, imbeciles,

epileptics, juvenile delinquents or later on as adult pau-

pers or criminals. The segregation of this class should be

rapidly extended until all not adequately guarded at home

are placed under strict sexual quarantine. Hundreds of

known cases of this sort are now at large because the

institutions are overcrowded. Only 2000 feeble-minded

persons are now cared for in institutions in this State,

and over 1000 applicants are awaiting admission to the

institutions. There is an urgent demand for greatly in-

creased institutional provision for this class. . . .” W.

FERNALD, THE BURDEN OF FEEBLE-MINDEDNESS 3, 7,

10 (1912).

New Hampshire. On March 22, 1901, the New

Hampshire General Court enacted legislative to “estab-

lish and maintain” the “New Hampshire School for the

Feeble-minded Children.” 1901 N.H. Laws 597, ch. 102,

§1. Although that law limited admissions to “the idiotic

and feeble-minded, between three and twenty-one years

of age,” id., amendments added four years later made

provision for others “after they reach the age of twenty-

one, if in the judgment of the board of trustees their seg-

regation seems to be for the best interests of the commu-

nity....” 1905 N.H. Laws 413, ch. 23, §1, first for women,

id., and later for men as well, 1917 N.H. Laws 645, ch.

141, §1. Later, in 1917, the General Court adopted “AN

ACT PERMITTING STERILIZING OPERATIONS?” for

those for whom that surgery “may be indicated for the

prevention of the reproduction of further feeble-

mindedness.” 1917 N.H. Laws 704, ch. 181, §2. In 1929.

the law was extended to permit the superintendent of the

institution, if “of opinion that it is for the best interests of

the inmate and of society” to authorize the surgery with-

out the consent of the “feeble-minded” resident, if after

a hearing the governing board of the institution finds that

the resident “is the probable potential parent of socially

A-10/New Hampshire

inadequate offspring likewise afflicted.” 1929 N.H. Laws

162, 164, ch. 138, §§1, 6.

New Jersey. The New Jersey General Assembly in

1888 established the first New Jersey “home” for the

“feeble-minded” at Vineland. 1888 N.J. Laws. 267, ch.

208.

By 1906, state officials were calling for permanent

segregation: “It is a fact that the Institutions in New Jer-

sey for the care and training of the feeble-minded do not

begin in any way to cover the number of those who should

be in the Institutions, and it seems that the Governor, the

Legislature and the Commissioner of Charities in their

wisdom might hold a conference with the Boards of the

Feeble-Minded Institutions, looking towards the segre-

gation of all the feeble-minded whe are now at large. The

feeble-minded belong to that class of defectives of either

hereditary degenerates or whose condition is of such a

character as should be treated like them, and for whom

the time has come for complete and permanent control.”

ANNUAL REPORT OF THE STATE HOME FOR THE CARE

AND TRAINING OF FEEBLE-MINDED WOMEN AT

VINELAND, 1906, at 6 (1907). The report indicated that

“(t]he most celebrated authorities on the care and seg-

regation of the feeble-minded and other defectives are

very much in favor of the colonization of all defectives

where the development of its members could be properly

classified.” Id. at 7.

The legislature began its response in 1911, by pass-

ing “An Act to authorize and provide for the sterilization

of feeble-minded (including idiots, imbeciles and mo-

rons).” 1911 N.J. Laws 353, ch. 190. That law created a

“Board of Examiners of Feeble-minded,” which, upon a

“find|ing] that procreation is inadvisable and that there is

no probability that the condition of such inmate so ex-

amined will improve to such an extent as to render pro-

creation by such inmate advisable,” was authorized “to

The Northeast/A-11

perform such operation for the prevention of procreation

as shall be decided by said board of examiners to be most

effective. ...” Id. §§ 1, 3.

Two years after its enactment, the New Jersey Su-

preme Court ruled that New Jersey’s law violated the right

to equal protection of the laws. Smith v. Board of Exam-

iners of Feeble-Minded, 85 N.j.L. 46, 88 A. 963 (1913).

The court noted that “the feeble-minded and epileptics

are not the only persons in the community whose elim-

ination as undesirable citizens would, or might in the

judgment of the legislature, be a distinct benefit to so-

ciety. . . . Racial differences, for instance, [also] might af-

ford a basis for such an opinion in communities where

that question is unfortunately a permanent and para-

mount issue.” 88 A. at 965. The court concluded that “it

is clear that the order with which we have to deal threat-

ens possibly the life, and certainly the liberty, of the

prosecutrix in a manner forbidden by both the state and

federal Constitutions, unless such order is a valid exer-

cise of the police power. . . . The general limitation of such

power to which the prosecutrix must appeal is that under

our system of government the artificial enhancement of

the public welfare by the forceable suppression of the

constitutional rights of the individual is inadmissible.”

Id. at 965.

In 1915, the legislature provided for more pervasive

segregation of retarded people through the admission to

Vineland of “mentally defective men, women and chil-

dren, of all ages and grades... .” 1915 N.J. Laws 278,

ch. 151, § 2. By 1918, the lawmakers had authorized “the

location of additional colonies upon forest reserve or other

lands owned by the State.” 1918 N.J. Laws 410, ch. 147,

art. 6 § 636. It was in these institutions that the “in-

mates” were to be “kept.” Id. at 409, 410, §§ 631, 635. In

1919, the legislature required relatives “to waive all right

to remove either permanently or for a limited time” their

kin from any institution. 1919 N.J. Laws 508, ch. 217, §

A-12/New York

New York. On July 10, 1851, the Legislature of New

York adopted “AN ACT to establish an asylum for idiots.”

1851 N.Y. Laws 941, ch. 502.

It was not until 1894 that the New York legislature

established an institution in Oneida County purely for

the “custody of unteachable idiots,” designated as “the

Rome State Custodial Asylum.” 1894 N.Y. Laws 806, ch.

382.

The movement to segregate began most earnestly at

the same time as the citizenry began to express concern

about the “rising tide” of immigration. In 1905, for ex-

ample, an article in the New York Times typical of those

appearing during this period discussed the urgent need

for “remedying the evils which have too long been tol-

erated in the ‘dumping’ of undesirable immigrants into

this country.” Undesirable Immigration, N.Y. Times,

Feb. 10, 1905, at 6, col. 3.

In 1911. the first of many studies purporting to link

“feeblemindedness” with the new immigration was pub-

lished under the auspices of the State Charities Aid As-

sociation. The survey found that all but 40 of 317 “men-

tally defective” children selected “at random” from thirty-

two ungraded classes in the New York public schools

were either foreign-born or the children of foreign par-

ents. A. MOORE, THE FEEBLE-MINDED IN NEW YORK: A

REPORT PREPARED FOR THE PUBLIC EDUCATION ASSO-

CIATION OF NEW YORK, N.Y. (1911).

By 1912, the New York Times was reporting a defi-

nite link between immigration and “feeble-mindedness.”

An article appearing on February 18, 1912 quoted “|a]n

important report of the special committee appointed by

the New York Society for the Prevention of Cruelty to

Children to investigate the subject of abnormal and

feeble-minded children. ...” Feeble-Minded Scholars

Make Up 1 Per Cent of the School Population, Investi-

gators Report, N.Y. Times, Feb. 18, 1912, at 8, col. 4.

The report stated that there were in New York City

“10,000 mental or moral defectives who now roam at large

The Northeast/A-13

in the community without any proper parental supervi-

sion or medical care. Recent census statistics show that

80 per cent of the feeble-minded children in the general

population of the United States are the progeny of aliens

or naturalized citizens. We may safely assume. there-

fore, that at least 8,000 of the 10,000 feeble-minded chil-

dren in the city today were brought here by or are the

offspring of the 9,000,000 aliens who have passed

through Ellis Island during the past ten years.” Quoted

in id. at cols. 4-5.

Three weeks later, the New York Times featured an

article on Henry H. Goddard, who was a state adminis-

trator for New Jersey’s retardation institution at Vineland.

The report began: “From the army of 300,000 feeble-

minded persons in the United States come the recruits

that swell the ranks of the drunkards, criminals, pau-

pers, and other social outcasts. Twenty-five per cent of

the girls and boys in our reformatories are lacking in men-

tal fibre and are unable to discern the difference between

right and wrong or are too weak in character to do right

whenever there is any inducement to do wrong. Sixty-

five per cent of the feeble-minded children have a mother

or a father, or both, who are feeble-minded. This country

has so far taken no steps to segregate these irresponsible

parents, so the number of them is constantly increasing.

These facts, and many more equally startling, are set forth

in an article written for The Survey by Dr. Henry H.

Stoddard, [sic] director of the department of research of

the trainiag school at Vineland, N.J. ‘Our Government

spends hundreds of thousands of dollars examining im-

migrants to see that none who are feeble-minded are ad-

mitted,’ writes Dr. Stoddard [sic]; ‘but here is a group

already in our country who are breeding a race of feeble-

minded people more dangerous than many barred by the

Immigration Inspectors.’ ”” Weak-Minded Fill Ranks of

Criminals: Dr. Henry Stoddard [sic] Says Social Prob-

lems Can Be Solved By Segregating Them, N.Y. Times,

Mar. 10, 1912, at 6, col. 3. Goddard urged, in language

A-14/New York

later quoted in some state statutes, “permanent Care

where they will be happy and harmless,” for all those

“unable to compete with their fellows on equal terms. . . .

This army furnishes the recruits for the ranks of the crim-

inals, paupers, drunkards, the ne-er-do-wells, and others

who are social misfits.” Quoted in id. “[W)|hat then is to

be done?” he asked. Dr. Goddard answered his own ques-

tion by proposing that “[a]fter these cases have been dis-

covered they must be removed from the environment in

which it has been proved they are incapable of living

normal lives in accordance with the conventions of so-

ciety. They must be colonized in groups where they may

be perfectly happy and somewhat useful. Only one lim-

itation needs be placed upon them in these places, and

that is they must never become parents.” Quoted in id.

Goddard concluded by emphasizing that “[w]e are dis-

cussing a possible State policy . .. many parents are ei-

ther normal or of such a high grade of defectiveness that

they never get into court and yet have feeble-minded chil-

dren. We cannot touch these adults. We must somehow

get hold of their children. ... We may reasonably hope

that a policy of segregation, carefully followed, will in a

generation or two largely reduce our feeble-minded pop-

ulation and thereby solve our problems of criminals, dis-

ease, drunkenness, and crime.” Quoted in id. at cols. 3-4.

On April 16, 1912, the legis:ature created a new state

board and empowered it to authorize the sterilization “by

such operation for the prevention of procreation as shall

be decided by said board to be most effective,” “any” in-

stitutionalized person who, in the judgment of the board,

“would produce chiidren with an inherited tendency” to

“feeble-mindedness, idiocy or imbeciiity.” 1912 N.Y.

Laws 924, 925, ch. 445, §351.

New York’s special treatment of its “alien defectives”

during this period is evidenced by the response state of-

ficials gave to a survey form sent to each state on June

20, 1912 by a Pennsylvania commission gathering infor-

mation to assist the latter state in expanding its own in-

The Northeast/A-15

stitutions. New York’s response indicated that the state

already had nearly 6,000 citizens segregated, noting spe-

cially that it “contributes towards the support of the alien

poor patients in these institutions.” REPORT OF THE COM-

MISSION ON THE SEGREGATION, CARE AND TREATMENT

OF FEEBLE-MINDED AND EPILEPTIC PERSONS IN THE

COMMONWEALTH OF PENNSYLVANIA 28, 31 (1913). No

other group was singled out by New York officials for

special support.

It was also about this time that the newly reknowned

Henry Goddard was invited by the United States Public

Health Service to administer Binet’s I.Q. test to the south-

ern and eastern European immigrants arriving in steer-

age at Ellis Island. “[G]iv[ing] the immigrant the benefit

of every doubt,” he found that 79% of the Italians, 80%

of the Hungarians, 82% of the Jews, and 87% of the Rus-

sians he tested were “feeble-minded.” Goddard, Mental

Testing and the Immigrants, 2 J. DELINQUENCY 243,

249, 252 (1917).

The New York Times reported in an article entitled

Alien Defectives appearing on January 13, 1913 that since

“three-tenths of feeble-minded children are of alien or

naturalized parents, the problem of detecting defective

immigrants is very grave.” N.Y. Times, Jan. 13, 1913, at

10. The account cited a recommendation by Assistant

Surgeon C. P. Knight of the United States Public Health

Service at Ellis Island, writing in the January 11 issue of

the American Medical Association Journal, for “control-

ling the procreation of the mentally defective by segre-

gating thera.” Alien Defectives, supra. As Dr. Knight had

stated, “|t]|here is scarcely a ship coming into the Port of

New York which does not carry among its passengers a

mental defective of some degree.” Id., quoting Knight,

The Detection of the Mentally Defective Among Immi-

grants, 60 A.M.A.J. 106 (1913).

In the A.M.A. Journal article, Dr. Knight explained

that he had “becom|e] familiar with different races” so

he could “tell at a glance the abnormal from the normal.”

A-16/New York

Id. at 107. “In studying the physical characteristics of

mental defectives, the various ethnologic types are easily

discerned: the dark skin, the curly hair and thick lips of

the Ethiopian, the prominent and high cheekbones and

deep orbits of the American Indian and the straight coarse

hair and peculiar cast of countenance of the Mongolian.”

Id. Even “more important in the determination of the

mental status of the alien,” according to Dr. Knight, was

“close application to the study of the race.” Thus, exam-

iners “should interpret the mental reaction of the alien

only after having full knowledge of the different racial

characteristics, for that which is a defect in an individual

of a race of high mental attainment may be a normal

condition in the existence of other people who have not

attained the same qrade of development. It is perfectly

normal for the southern Italian to show emotion on the

slightest provocation but should he show the stolidity and

indifference of the Pole or Russian, we would look on

him with suspicion and perhaps hold him for a detailed

examination.” Id. By the use of such techniques, Knight

hoped to “reduc|e] to a minimum the entrance into this

country of the mentally and morally low type of alien.

Immigration largely contributes to the high percentage

of this class in the United States.” Jd. at 106.

By 1914, the “defectives” were being expelled from

the public schools. As the New York Times editorialized:

“If the policy recommended by the Board of Education’s

committee on ungraded classes had been sensibly

adopted in the beginning a good deal of money might

have been saved for teaching sound-minded children that

has been wasted on mental defectives who could not be

helped. The report says: ‘Most imbeciles and all idiots

can in no way derive any lasting benefits from atten-

dance at the public schools. Their mental condition can-

not be improved either by the course of study or disci-

pline. The only practical and humane solution is insti-

tutional care.’” The Feeble-Minded in Schools, N.Y.

Times, Mar. 13, 1914, at 8, col. 4.

The Northeast/A-17

That same year, as a result of the public demand for

action, the legislature created a special State Commis-

sion to study the problem, as urged by the New York

Times. 1914 N.Y. Laws 772, ch. 272.

The Commission believed that “we are now in a po-

sition where it is both a duty and a privilege to adopt a

complete system of public provision that will in a very

large measure eliminate the burden of feeble-mindedness

from the community.” Id. at 18.

Sterilization, according to the Commission, was no

panacea, since surgery prevented only parenthood, and

did not eliminate the other social menaces stemming from

permitting “defectives” to be at large. Moreover, such a

law might lead to “withdraw|[l] from the influence of our

institutions large numbers of feeble-minded who other-

wise might be amenable to whatever advantages and

whatever custodial provision was made.” Id. at 19. STATE

OF NEW YORK, REPORT OF THE STATE COMMISSION TO

INVESTIGATE PROVISION FOR THE MENTALLY DEFI-

CIENT 19 (1915).

The major problem, according to state officials, was

that thousands of “mental defectives are at liberty in the

community today ... without restraint or public con-

trol.” Id. at 34. “To attempt reformation is a gross waste

of time and of money. The average cost per inmate in a

specially organized institution for defectives is half of the

average cost in our reformatory institutions.” Id. at 25.

The solution was to expand the institutions and to bring

more of the “defectives” under control.

Accordingly, the legislature enacted on May 14, 1919

“AN ACT in relation to mental defectives. ...” 1919 N.Y.

Laws 1683, ch. 633. The law defined “mental defective”

to mean “any person afflicted with mental defectiveness

from birth or from an early age to such an extent that he

is incapable of managing himself and his affairs, who for

his own welfare or the welfare of others or of the com-

munity requires supervision, control or care, and who is

not insane or of unsound mind.” /d. at 1684, art. 1, § 2(5).

A-18/New York

The legislation established a procedure for certifying that

one’s mental defect was “of such a nature as to require

his supervision, control and care for his own welfare and

for the welfare of others or for the welfare of the com-

munity.” Id. at 1697, art. 4, § 26. This determination was

to be made by “qualified examiners.” Id. § 25.

As a result of this law, state officials were soon over-

whelmed with retarded people to segregate. The State

Commission for Mental Defectives indicated in 1926 that

although it was “gratifying to report progress during the

year in additional housing for mental defectives[, t]he

need of more beds is so great that it outweighs other con-

siderations.” STATE OF NEW YORK, EIGHTH ANNUAL RE-

PORT OF THE STATE COMMISSION FOR MENTAL DEFEC-

TIVES, JULY 1, 1925 TO JUNE 30, 1926, at 7 (Leg. Doc.

No. 92, 1927). The scope of the physical expansion ne-

cessitated by the 1919 law was noted in the agency’s An-

nual Report: “Defectives who are detrimental to society

cannot be segregated until institution bed capacity is in-

creased. Those of too low grade intelligence to be cared

for in the public schools are often neglected at home and

a source of economic disaster to the family. The segre-

gation of these in institutions awaits erection of new

buildings.” Id. Thousands of beds were planned and pro-

vided throughout the state. Id.

Pennsylvania. |n 1893 the Pennsylvania General As-

sembly authorized the construction of a large institution

in western Pennsylvania with a capacity for at least “eight

hundred inmates,” to include a “custodial or asylum de-

partment.” 1893 Pa. Laws 289, 290, No. 256, § 7. The

facility was to be for the “reception” and “detention” of

“idiotic and feeble-minded children,” id. at 291, § 10, the

sole restriction being that they be “under the age of twenty

years,” id. § 11. By 1903, a second institution similarly

organized was authorized to be built in the eastern part

of the state. 1903 Pa. Laws 446, No. 424.

In 1911, the Pennsylvania Conference of Charities

and Corrections argued to the legislature that it had a

The Northeast/A-19

large problem on its hands. The legislature decided that

a comprehensive study was necessary, and so adopted a

joint resolution to establish a special commissicn, “the

duty of which Commission shall be to take into consid-

eration the number and status of feeble-minded and ep-

ileptic persons in the Commonwealth and the increase of

such persons, and to report to the General Assembly at its

next session a plan or plans for the segregation, care, and

treatment of such defectives. ...” 1911 Pa. Laws 927,

§ 1. The resolution was enacted because the legislature

felt that “[a] proper regard for the public welfare requires

that some action be taken looking to the segregation of

such feeble-minded and epileptic persons.” Id. (pream-

ble).

On April 21, 1913, the Commission reported to the

legislature that “|w|here the mental disability is of a de-

gree which renders the afflicted individuals unfit for cit-

izenship, or a menace to the peace, they are regarded and

treated as anti-social %*«ings, and may be permanently

segregated in instituti>i s especially constructed for their

reception and care. Tne :ondition of mind in amentia is

irremediable|;| the segr2,ation as the rule should there-

fore be permanent.” REPORT OF THE COMMISSION ON

THE SEGREGATION, CARE AND TREATMENT OF FEEBLE-

MINDED AND EPILEPTIC PERSONS IN THE COMMON-

WEALTH OF PENNSYLVANIA 43 (1913).

The Commission considered retarded people “such

an unpleasant burden, that parents usually are more than

willing to part with them,” id. at 38, but “[ll]egisiation”

was “needed to compel the segregation of feeble-minded

and epileptic persons,” id. at 40. Who was to be incar-

cerated? “|A] type of mind must be established as a nor-

mal standard for the age, race and social status of each

individual, and he who falls below this to a recognizable

degree is ipso facto feeble-minded.” Id. at 42.

Six weeks later, the legislature enacted comprehen-

sive legislation, creating a new official purpose for the

state’s institution: “segregation” of all “idiotic, imbecile

A-20/Pennsylvania

or feeble-minded persons,” 1913 Pa. Laws 494, No. 328,

§ 1, and the removal of all age restrictions on admissions,

id. at 496, § 3. The lawmakers also established a new

“Village for Feeble-Minded Women” to be “entirely and

specially devoted to the reception, segregation |and] de-

tention” of “feeble-minded women of child-bearing

age....” 1913 Pa. Laws 1319, No. 817. By 1922, the

Superintendent of the Eastern Pennsylvania State Insti-

tution for the Feeble-Minded was reporting that “the gen-

eral public [is] now convinced more than ever that it is a

good thing to segregate the idiot and the imbecile.” R.

SMILOVITZ, A BRIEF HISTORY OF PENNHURST

1908-1926, COMPILED FROM SUPERINTENDENT'S DOc-

UMENTS (1974).

Rhode Island. The General Assembly of Rhode Is-

land enacted in 1907 “AN ACT FOR THE EST 4BLISH-

MENT, MAINTENANCE, MANAGEMENT, AND

CONTROL OF THE RHODE ISLAND SCHOOL FOR

THE FEEBLE-MINDED.” 1907 R.I. Pub. Laws 89, ch.

1470. Within the institution there was created a special

“custodial department for the care and custody of feeble-

minded persons beyond school age, or who are not ca-

pable of being benefited by school instruction.” Id. at 90,

§ 3. Institutionalization could be sought by filing a “com-

plaint in writing” alleging that “any person within the

district wherein such court is established is

feeble-minded, so as to require restraint for his own wel-

fare or for the welfare of the public.” Id. at 91, § 6.

The purpose of the institution, according to the first

annual report to the legislature, was to “not only protect

the |feeble-minded] children themselves, but at the same

time to guard society against the children.” REPORT OF

THE RHODE ISLAND SCHOOL FOR THE FEEBLE-MINDED

IN EXETER 20 (1910). State officials strongly encouraged

parents to commit their children voluntarily to the facil-

ity: “Society is made up of families and when the family

suffers society suffers. Talk with any one who has had

the opportunity to know intimately the history of families

The Northeast/A-21

in which there have been feeble-minded children, and

let him tell of the cases of fathers driven to drink, whole

families plunged into poverty and pauperism, and of

mothers made insane or even done to death by the pres-

ence of the unfortunate child in the home.” Id. at 21.

Vermont. In 1913, the General Assembly of Ver-

mont created the “Vermont State School for

Feeble-minded Children.” 1913 Vt. Acts 96, No. 81, § 1.

Proceedings to place a retarded person in the institution

could be initiated by, in addition to a parent or guardian,

any “selectman of the town... in which such child re-

sides.” Id. at 98, § 13.

In 1916, state officials “report|ed] that the people in

Vermont are beginning to take a marked interest in the

study of feeble-mindedness, and its baneful and increas-

ing effects on the population of the State, and that with

a better understanding of the conditions which exist,

there will be a tendency to view the handling of the ques-

tion in a more practical and common sense manner. The

burden of feeble-mindedness is felt by the entire public,

and every intelligent person who has carefully consid-

ered the subject realizes that this blight on mankind is

increasing at a rapid rate, and that unless radical meas-

ures are adopted to curb the influences which tend to

promote its growth it will only be a matter of time before

the resulting pauperism and criminality will be a burden

too heavy for any country or people to bear. The feeble-

minded are a parasitic, predatory class, never capable of

self-support or of managing their own affairs, and the

majority of them ultimately become public charges.” RE-

PORT OF THE VERMONT STATE SCHOOL FOR THE FEEBLE-

MINDED CHILDREN FOR THE PERIOD ENDING SEPTEM-

BER 30, 1916, at 17-18 (1916).

As a result of the actions of the state, “|t|he public is

now fully aware of the danger the defective is at large and

realizes the importance of instituting means for their con-

trol. There is nothing that can be done more effectively

toward the prevention of feeble-mindedness, crime and

A-22/Vermont

poverty and toward the promotion of our best citizen-

ship, than to segregate the feeble-minded and properly

care for them.” Id. at 18.

Midwestern States

Iliinois. On June 24, 1915, the Illinois General As-

sembly passed a bill establishing a facility as an institu-

tion for the “detention of feeble-minded persons.” 1915

Ill. Laws 245. Such “detention” was mandated not only

for the retarded person’s “own welfare,” but also “for the

welfare of others, or for the welfare of the community,”

so long as the person was “not classifiable as an ‘insane

person.’ ” Id. at 245-46, §1. “/A]ny reputable citizen of

the county in which such supposed feeble-minded per-

son reside. or is found could seek the institutionalization

of such a person by filing a petition stating that it was

detrimental “to the welfare of the community, for him to

be at large.” Id. at 246, §3. The “guiding and ¢ontrolling

thought of the court” at these proceedings was‘to be not

only “the welfare of th » feeble-minded person” but also

“the welfare of the community.” Id. at 249, § 9.

Indiana. In 1914, Indiana officials reported to the

Governor that there were still “at the most conservative

estimate that can be made, at least four thousand feeble-

minded in Indiana” requiring institutionalization, and

that “|these] people are at large, a nuisance to the com-

munity in which they live; nearly all of them paupers;

inany of them petty criminals; the women filling the

houses of prostitution: ail of them poor, improvident, lazy

— in short, incompetents. These people are increasing

rapidly, and unless cared for will, in the next hundred

years, bring an unbearable burden on our grandchildren

and great-grandchildren. Shall we leave them such an

inheritance, or shall we do something now to stop it?

Were we to put all these four thousand defectives now at

large into institutional care today, this institution could

provide for practically all needing the care of an institu-

The Midwest/A-23

tion at the end of the next fifty years. No provision is

made for adult male feeble-minded in this State, and these

men should be segregated from the world in some place

where they could be made in a measure self-supporting.”

THIRTY-SIXTH ANNUAL REPORT OF THE INDIANA

SCHOOL FOR FEEBLE-MINDED YOUTH FOR THE FISCAL

YEAR ENDING SEPTEMBER 30, 1914, at 14 (1914).

In 1915, the Board of State Charities of Indiana

adopted a resolution that read: “Whereas, The problem

of the mental defective is one of our greatest social as

well as financial burdens and is increasing in importance

and weight every year, and Whereas, Mental defective-

ness is believed to be one of the most important if not the

most important cause of pauperism, degeneracy and

crime,” resolved that a committee be established to make

recommendations concerning this problem. Governor

Ralston acted favorably on this resolution and appointed

a Committee on Mental Defectives.

The work of the Committee and its first report, on

November 10, 1916, was used to convince the governor

and the legislature that it was “imperative that the State

must very soon take cognizance of the large number of

dependent defectives at large in the State, a menace to

society, increasing at a rapid rate, and take steps to seg-

regate them from the public, and thus check their repro-

duction not alone as a matter of philanthropy, but as an

economic measure.” THIRTY-EIGHTH ANNUAL REPORT

OF THE INDIANA SCHOOL FOR FEEBLE-MINDED YOUTH.

FORT WAYNE, INDIANA, FOR THE FISCAL YEAR ENDING

SEPTEMBER 30, 1916, at 14 (1917). The Indiana officials

were also “pleased to note that ‘The Committee on Men-

tal Defectives’ appointed by you to study the problem of

Mental Defectiveness in Indiana, recently urgently rec-

ommended the enactment of such a law, and we wish to

strongly endorse their recommendation and urge that this

remedial legislation be had at the coming session of the

Legislature. We have deeply felt the need of this law in

several cases in recent years, where we found ourselves

A-24/Indiana

utterly helpless to prevent the withdrawal of girls by par-

ents or relatives while we knew that were unfit to be out

in the world... .” Id. at 15. They also recommended “the

establishment of a new and separate institution to house

them from the danger of contact with the public.” Id.

The Committee on Mental Defectives was reap-

pointed by newly elected Governor James P. Goodrich.

The Committee’s second report was published March 6,

1919.

One week later, the General Assembly passed as

“emergency” legislation “AN ACT to provide for the es-

tablishment and government of an Indiana farm colony

for feeble-minded” which incorporated practically all of

the recommendations of the Committee on Mental Defec-

tives. 1919 Ind. Acts 480, ch. 94. The lawmakers created

a commission and ordered it to “select a suitable site for

the farm colony” and to “purchase not less than 1,00C

acres of land in a body” for it. Id. § 2. The law specified

that “the buildings to be constructed for its use shall be

plain and inexpensive in character,” id. at 482, § 6, and

required that “the labor in constructing such buildings,

improvements and facilities shall be supplied as far as

applicable by the persons committed to the institution,”

id.

The Committee on Mental Defectives, while express-

ing gratitude for this legislation, “recommend|ed] in-

creased provision at the Farm Colony for Feeble-Minded”

in order for the state “to provide adequately for such cases

as cannot, without menace to the community, be pro-

vided for in the home or the public school.” MENTAL

DEFECTIVES IN INDIANA: THIRD REPORT OF THE INDI-

ANA COMMITTEE ON MENTAL DEFECTIVES 8 (1922).

The exact nature of the menace was described by

the Governor’s Committee as follows: “The uncared-for

insane, epileptic and feebleminded constitute a social

menace, but the part played by the feebleminded in dis-

counting social progress is by far the most potent influ-

ence for evil under which society is struggling today. .. .

,' ~e@e¢

The Midwest/A-25

Modern theory grants that the rights of the individual

must not interfere with the welfare of the community.

From the latter standpoint, the mental defective must be

considered as a possible financial burden to the commu-

nity, a potential menace through the commission of

crime, and an increasing detriment to the race through

the propagation of his kind. ... What subject is more

vital than this to the people of our state? The menace of

the mental defective is a real and pressing one. All indi-

viduals and organizations interested in human welfare

are urged to cooperate in a state-wide program for in-

forming the citizens of our state concerning the dangers

that threaten, and awakening them to the disastrous con-

sequences if this important matter is neglected. This

should result in such united action as wil] lessen the bur-

den of pauperism, degeneracy, disease and crime, and

decrease the cost to the taxpayers.” Id. at 6.

In addition to appropriating the increased funds re-

quested for segregation, the legislature, on March 3.

1931, passed “AN ACT providing for the sexual sterili-

zation of feeble minded persons.” 1931 Ind. Acts 116, ch.

50. Indiana has been the first state in the country to en-

act a sterilization law. 1907 Ind. Acts 877, ch. 215. The

new law provided that, at the point at which commit-

ment of any mentally retarded person was sought, “it

shall be the duty of each of the examining physicians

appointed by the court” to “certify to the court whether,

in his opinion, such person is the probable potential par-

ent of mentally incompetent or socially inadequate off-

spring likewise afflicted.” Id. § 1. Upon a finding by the

court that “the welfare of society and of such feeble-

minded person will be promoted by his or her steriliza-

tion,” the superintendent “may have performed upon

such feeble-minded person” sterilization surgery “at such

time as he may deem expedient.” Id. § 3.

Towa. On March 17, 1876, the General Assembly of

lowa enacted legislation “FOR THE ESTABLISHMENT

OF AN ASYLUM FOR FEEBLE MINDED CHIL-

A-26/lowa

DREN.” 1876 Iowa Acts 145, ch. 152. Admission was

originally limited to “children between the ages of seven

and eighteen.” Id. at 148, § 15. After the turn of the cen-

tury, the state authorized the segregation of increased

numbers of retarded people. The first to be confined, by

enactment of April 7, 1902, were “all feeble-minded

women under forty-six years of age.” 1902 Iowa Acts 73,

ch. 118. The next were “all feeble minded men under 46

years of age.” 1909 Iowa Acts 171, ch. 173. In 1921, all

age restrictions were repealed. 1921 lowa Acts 126, ch.

129. State officials continually campaigned for the ex-

pansion of facilities for segregation, see, e.g., TWENTY-

FOURTH BIENNIAL REPORT OF THE SUPERINTENDENT

OF THE IOWA INSTITUTION FOR THE FEEBLEMINDED 7-8

(1922).

On April 13, 1929, the General Assembly enacted

legislation “to create a state board of eugenics, to define

the powers and duties of said board, [and] to fix the pro-

cedure in the sexual sterilization of persons.” 1929 lowa

Acts 106, ch. 66. The members of the Board of Eugenics,

which consisted of not only the superintendents of state

institutions, but also the commissioner of public health,

were ordered to “report to the state board of eugenics the

names of all persons, male or female, living in this state,

of whom he or she may have knowledge, who are feeble-

minded . . . and who are a menace to society.” Id. § 2.

Kansas. In 1881, the Legislature of Kansas estab-

lished “the Kansas state asylum for idiotic and imbecile

youth.” 1881 Kan. Sess. Laws 74, ch. 35. Admission was

limited to those “not over fifteen years of age.” Id. at 75,

§ 6.

The superintendent of the institution, I.W. Clark, in

1906 urged the adoption of a law to enlarge the institu-

tion and to accomplish the segregation of feeble-minded

persons of al! ages. THIRTEENTH BIENNIAL REPORT OF

THE KANSAS SCHOOL FOR FEEBLE-MINDED YOUTH,

WINFIELD, KANSAS, FOR THE TWO YEARS ENDING JUNE

30, 1906, at 6 (1906). According to Superintendent Clark:

ee FON

The Midwest/A-27

“Legislative attention to a more extended provision for

the idiotic and feeble-minded is an imperative demand

upon the state. For a score of years the opinions of phi-

lanthropists and of those interested in sociologic work

have been steadily advancing in a certain direction, until

now they are unanimously convinced that as a matter of

public policy all the feeble-minded class should be segre-

gated and provided for by the state. Various are the rea-

sons which have led up to this conviction, and to most

persons they are easily obvious. In this state to-day there

are in the county-houses, and in the communities at large,

a large number of this class who are a menace, a blight

and a misfortune both to themselves and to the public.”

Id. at 12. Therefore, the superintendent recommended

that “(t]he age limit of fifteen years should be removed,

and the capacity of the home be enlarged so as to receive

all persons who are feeble-minded, regardless of age.” Id.

at 6.

On March 12, 1909, the legislature acted. The name

of the institution was “hereby changed to the State Home

for Feeble-minded,” and “{ajll inmates admitted to said

institution” were placed “under the custody and control

of the superintendent of said institution, and the super-

intendent may restrain any such inmate when he deems

it necessary for the welfare of such inmate and the proper

conduct of the institution.” 1909 Kan. Sess. Laws 560-61,

ch. 233, §§ 1, 2.

In 1917, the legislature enacted a law providing that,

if the Superintendent of the State Home for Feeble-

minded “shall certify in writing” to the institution’s gov-

erning board “that he or she believes that the mental or

physical condition of any inmate would be improved

thereby or that procreation by such inmate would be likely

to result in defective or feeble-minded children with crim-

inal tendencies, and that the condition of such inmate is

not likely to improve so as to make procreation by such

person desirable or beneficial to the state, [then] it shall

be lawful to perform a surgical operation for the sterili-

A-28/Kansas

zation of such inmate.” 1917 Kan. Sess. Laws 443, ch.

299, § 1.

State officials applauded this legislation, and pre-

dicted a marked decrease in the number of feeble-minded

persons. However, they reported that “the decrease will

be nothing like so great as it should be unless our im-

migration laws are so changed as to greatly reduce the

number of undesirables from Europe entering this coun-

try. . . . We shall be disappointed further that the de-

crease is no greater on account of the ease with which

feeble-minded persons may obtain a marriage certificate,

enter the marriage state and rear a family like unto them-

selves. ... Asexualization will be condemned by some as

being too harsh a measure, but it becomes incumbent on

those who would discourage it to offer something better,

for the future will compel us to act. If society by her phil-

anthropic efforts annuls the law of the survival of the

fittest, then self-interest will compel her to adopt meas-

ures which will prevent the multiplication of those who

at best can only add degeneracy to the race.” TWENTI-

ETH BIENNIAL REPORT OF THE STATE TRAINING SCHOOL

FOR THE TWO YEARS ENDING JUNE 30, 1920, at 7-8

(1920).

Two years later, the superintendent reported “that

the population of the institution has grown steadily,” and

noted “the increased activity of welfare and Red Cross

associations over the state that are constantly on the look-

out for unfortunate people, both young and old” to be

institutionalized. TWENTY-FIRST BIENNIAL REPORT OF

THE STATE TRAINING SCHOOL FOR THE TWO YEARS

ENDING JUNE 30, 1922, at 3 (1922). As a result of the

state’s policies, people were persuaded io place their re-

tarded relatives in the institution. The Superintendent

noted that “as a consequence our ward buildings are be-

coming crowded, some wards housing twenty per cent

more than the estimated capacity. Additional ward room

is a necessity.” Id. at 11.

The Midwest/A-29

Kentucky. The General Assembly of the Common-

wealth of Kentucky first chartered the “Kentucky Insti-

tution for Feeble-minded Children” as a corporate entity

in 1894, although the facility apparently had been in ex-

istence previous to that date. See 1894 Ky. Acts 96, ch.

48, art. I, § 1. Admission to the institution at that time

was limited to persons aged six through eighteen “whose

mental condition is such that, in the judgment of the

superintendent, they may be taught to read and write, or

can be educated or trained to do work.” Jd. at 115, art. III,

§ 5.

In 1918, the General Assembly enacted more ma-

levolent legislation, entitled “AN ACT to provide for the

commitment, care, treatment, training, segregation and

custody” of “feeble-minded” persons. 1918 Ky. Acts 156,

ch. 54. The law defined “feeble-minded person” as one

who “requires supervision, care, training, control or cus-

tody for his own welfare or for the welfare of others or the

community.” Id. § 1. It also established and authorized

“The Farm Colony for the Feeble-Minded,” including an

ambitious plan for new construction on a 500-acre site.

Id. at 156-57, 159-60, §§ 1, 9, 10. Proceedings to confine

a person in the institution could be instituted against any

person in the county who appears to be intel

feeble-minded.” Id. at 161, § 16. The same law made it

“one of the special duties of every health officer and of

every public health nurse to institute proceedings to se-

cure the proper segregation and custody of feeble-minded

persons, likely to become fathers or mothers of other

feeble-minded persons,” id., at 171, § 30, and made it a

crime “to aid or abet the marriage of any feeble-minded

person, and any person found guilty of aiding or abetting

such marriage shall be fined not less than fifty dollars,

nor more than five hundred dollars,”id. § 32.

Michigan. |In 1893, the Michigan Legislature estab-

lished the “Home for the Feeble-Minded and Epileptic.”

1893 Mich. Pub. Acts 412, No. 209. The institution was

available to “|a|ll feeble-minded and epileptic persons be-

A-30/Michigan

tween the ages of six and twenty-one.” Id. at 416, §§ 20,

21.

In 1905, to insure long-term segregation, the legis-

lature required that parents and guardians admitting their

children to the home “waive all right to remove such

inmate thereafter either permanently or for a limited

time.” 1905 Mich. Pub. Acts 169-70, No. 121.

A more comprehensive revision of the law took place

four years later, 1909 Mich. Pub. Acts 189, No. 101, elim-

inating age restrictions, id. at 192, § 13, providing for

roving physicians “empowered to go where such feeble-

minded and epileptic person may be and make such per-

sonal examination of him as to enable them to offer an

opinion as to his mental condition” in order to certify them

as “feeble-minded,” id. § 14.

If, following a hearing, “such person shall be found

and adjudged to be feeble-minded or epileptic the court

shall immediately issue an order for his admission to the

home for the feeble-minded.” Id. at 194.

State officials described the value of the new law in

maintaining life-long segregation and control in their re-

port to Governor Woodbridge Ferris: “Prior to the enact-

ment of the law of 1909, patients were admitted to this

institution by direct application either by parents, guard-

ians, or certain public officials. The matter of the status

of these patients was constantly before the Board of Con-

trol. The Board found it impossible to hold certain cases

where, in their opinion, the welfare of the State would

dictate their being held. We therefore went to the Leg-

islature, requesting the passage of an act bringing all

these cases, where the patient had not had his day in

court, before the Probate Courts of the several counties

for review and legal commitment. We now have no pa-

tients not committed by the Probate Court.” TENTH BI-

ENNIAL REPORT OF THE BOARD OF CONTROL OF THE

MICHIGAN HOME AND TRAINING SCHOOL AT LAPEER FOR

THE BIENNIAL PERIOD ENDING JUNE 30, 1914 (1914).

}

;

‘

The Midwest/A-31

As John N. McCormick, Chairman of the State Board

of Corrections and Charities later stated in official, pub-

lished instructions to Dr. H. A. Haynes, Superintendent

of the Michigan home: “The members of this Board con-

sider it imperative that ample provision be made for the

segregation and proper care of feeble-minded persons. A

recent survey of Michigan removes any doubt as to the

plain duty of the State regarding feeble-mindedness, not

only from a sociological but an economical standpoint as

well. From our discussion of the situation with you at the

meeting of this Board held at your institution, we are of

the opinion that the items stated in your estimate of ap-

propriations for the next two years are needed, and the

same are hereby approved.” ELEVENTH BIENNIAL RE.

PORT OF THE BOARD OF CONTROL OF THE MICHIGAN

HOME AND TRAINING SCHOOL AT LAPEER FOR THE BI-

ENNIAL PERIOD ENDING JUNE 30, 1916, at 7 (1916).

On May 25, 1923, the Michigan legislature adopted

“AN ACT to authorize the sterilization of mentally de-

fective persons,” which class was “deemed to include id-

iots, imbeciles and the feeble-minded, but not insane per-

sons.” 1923 Mich. Pub. Acts 453, No. 285, § 1. “When-

ever a person is adjudged defective,” the court was au-

thorized to “order such treatment by x-rays or operation

of vasectomy or salpingectomy. .. .” Id. at 454, § 2.

In a 1929 amendment, the legislature “hereby de-

clared [it] to be the policy of the state to prevent the pro-

creation and increase in number of feeble-minded, in-

sane and epileptic persons, idiots, imbeciles, moral de-

generates, and sexual perverts, likely to become a men-

ace to society or wards of the state. The provisions of this

act are to be liberally construed to accomplish this pur-

pose.” 1929 Mich. Pub. Acts 689-90, No. 281, § i. The

law made it “the duty” of state officials operating the

Home for Feeble-minded “to bring to the attention of the

governing board or body of such institution and to the

state welfare commission” any “mentally ¢!efective per-

son who would be likely to procreate children unless

A-32/Michigan

closely confined or rendered incapable of procreation” for

whom they were “of the opinion” that it would be “for the

best interest of such person and of society that such men-

tally defective person should be sexually sterilized.” Id.

at 690, § 4. The law made it “the duty,” in turn, of “the

governing board or body of such institution and the state

welfare commission to cause an investigation, and ex-

amination to be made to determine whether such men-

tally defective person would be likely, if allowed to min-

gle in society, to procreate children having an inherited

tendency to feeble-mindedness, insanity, idiocy, imbe-

cility, epilepsy, or sexual degeneracy, and who would be

likely to become a social menace or a ward of the state,

and w

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