Amicus Curiae Brief — Olmstead v. LC
Supreme Court brief1999
Ask Donna
What actually matters in this document.
Text
eth U.S.
"A a E D
) : "Ar id iy¥9
pe
OE OF DR Ge
98-536 3 — ~ , See
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1998
TOMMY OLMSTEAD, Commissioner of the
Department of Human Resources of the State of Georgia,
et al.,
Petitioners,
v.
L. C. and E.W., each by JONATHAN ZIMRING, as
guardian ad litem and next friend,
Respondents.
On Writ of Certiorari to the United States Court of Appeals
for the Eleventh Circuit
BRIEF OF AMICI CURIAE PEOPLE FIRST OF
GEORGIA, SELF-ADVOCATES BECOMING
EMPOWERED AND ITS CONSTITUENT PEOPLE
FIRST AND SPEAKING FOR OURSELVES
ORGANIZATIONS IN THE SEVERAL STATES,
AUTISM NATIONAL COMMITTEE, NATIONAL
DOWN SYNDROME CONGRESS AND
VISION FOR EQUALITY, INC.
IN SUPPORT OF RESPONDENTS
Thomas K. Gilhool*
Judith A. Gran
Max Lapertosa
Public Interest Law Center
of Philadelphia
125 S. 9th Street, Suite 700
Philadelphia, PA 19107
*Counsel of Record (215) 627-7100
March 15, 1999 Counsel for Amici Curiae
BEST AVAILABLE COPY
CONSTITUENT STATE ORGANIZATIONS
JOINING AS AMICI
PEOPLE FIRST OF ALABAMA
PEOPLE FIRST OF ALASKA
PEOPLE FIRST OF ARIZONA
PEOPLE FIRST OF CALIFORNIA
PEOPLE FIRST OF COLORADO
PEOPLE FIRST OF CONNECTICUT
PEOPLE FIRST OF DENVER
PEOPLE FIRST OF ILLINOIS
SELF-ADVOCATES OF INDIANA
PEO: LE FIRST OF LOUISIANA
MA" \CHUSETTS ADVOCATES STANDING STRONG
AD — *ATING CHANGE TOGETHER IN MINNESOTA
PEOPLE FIRST OF MISSOURI
PEOPLE First OF NEW HAMPSHIRE
PEOPLE FIRST OF ALBUQUERQUE (NEW MEXICO)
THE SELF-ADVOCACY ASSOCIATION OF NEW YORK, INC.
PEOPLE FIRST OF OHIO
PEOPLE FIRST OF OKLAHOMA
SPEAKING FOR OURSELVES (PENNSYLVANIA)
ADVOCATES IN ACTION {RHODE ISLAND)
PEOPLE FIRST OF TENNESSEE
TEXAS ADVOCATES
PEOPLE FIRST OF SALT LAKE CITY/PEOPLE FIRST OF
OGDEN/PEOPLE First OF CASH VALLEY (UTAH)
VERMONT PEER SUPPORT NETWORK
PEOPLE FIRST OF WASHINGTON
PEOPLE FIRST OF DANE COUNTY (MADISON, WISCONSIN )
PEOPLE FIRST OF WYOMING
oo
li
EDITOR'S NOTE
THE FOLLOWING PAGES WERE POOR HARD COPY
AT THE TIME OF FILMING. IF AND WHEN A
BETTER COPY CAN BE OBTAINED, A NEW FICHE
WILL BE ISSUED.
TABLE OF CONTENTS
__B. The Act Prohibits the Arbitrary Quality
I ee 7
C. The Act Seeks to Disestablish the Regime
of State-Imposed Segregation and Isolation
and to Remedy Its Effects ............. 11
Il. Petitioners Mistake the Purport of the Act and
Its Effects, Misstate Its Language, Ignore
Judicial Application of Section 504 to Remedy
Unnecessary Segregation and Overlook Availability
of Title XIX Funds to Provide Services in
Most Integrated Settings. .................. 15
A. The Act Establishes No Per Se Duty,
But Prohibits Only Unnecessary Segregation. 15
B. “Handicap Services” Are Not Peculiar or
Unique, But in the Main Are Services
Commonly Provided by Governments to
Non-Disabled Citizens. ................. 19
C. Section 504 Had Been Held by Courts to
Prohibit Unnecessary Segregation. ....... 21
D. The Medical Assistance Statute Is in No
Way Contrary to the Act, but Itself Contains
a Parallel Prohibition on Unnecessary
Utilization of Institutions and Nursing Homes
and Provides Substantial Federal Funds
Ill. For Amici, the Act Has Been a Doorway to
Freedom, Citizenship, and Productive,
Participating and Contributing New Lives. .... . 28
CONCLUSION
APPENDIX A Conpendium of Purposeful State Action
for the Segregation and Exclusion of
Retarded Persons in the Fifty States and
the District of Columbia
APPENDIX B_ The Cleburne Ordinance is Part of a
Pattern of State-Imposed, Life-Long
Segregation of Purposeful Unequal
Treatment and is Parallel to the
Treatment of Black Persons.
APPENDIX C Compendium of Materials and Statements
of Amici People First and Speaking for
Ourselves
BD 2 eg Oe PO ae —* ~~ a
APPENDIX E
APPENDIX F
TABLE OF AUTHORITIES
FEDERAL CASES
Alexander v. Choate, 469 U.S. 287 Raa 7, 18,21
(8th Cir. 1991)
942 F.2d 1235
C.A.No. Al-80-141 (D.N.D. Apr. 29, 1992)
Bogard v. Duffy, C.A. No. 88-C-2424(N.D.IIL) .... 21. 26
Bogard v._ Kustra, C.A. No. 88-C-2414(N.DII)..___. 24
Bragdon v. Abbott, 524 U.S. 624 Ba eo S
Buck v. Bell, 274U.S.200(1927)....s—t™ 7
473 US. 432(1985) 2, 6,9, 10, 11, 12.18
Garrity v. Gallen, $22 F. Supp. 171 (D.N.H. 1981) _. 21. 22
Garrity v_ Gallen, 697 F.2d 452 (Ist Cir. 1983)... 22
610F. Supp. 1221(1985) 21
612 F.2d84(3dCir.1979) ...... 22
446 F. Supp. 129S(E.D.Pa. 1978)...” 2)
iv
784 F. Supp. 215 (E.D. Pa. 1992), aff'd,
oN ES EE eee 22
21, 22
Helen L. v. DiDario, 46 F.3d 325 (1995), cert.den. sub nom.,
Pennsylvania Sec. of Pub. Welfare v_ Idell S.
Hobson v. Hansen, 269 F. Supp. 401 (D.D.C. 1967) ... II
Homeward Bound vy. Hissom Mem. Center,
1987 WL 27104 (N.D.Okla.) ................ 21, 22, 26
Homeward Bound vy. Hissom Mem. Center,
CA. No. 85-C-437-E (May 20, 1988) .............. 23
757 F. Supp. 1243 (D.N.M. 1988)
rev'd in part on other grounds,
964 F.2d 980 (10th Cir. 1992) .... 6... eee 21, 23, 26
lack Fort § Hospital and Training Schoo!
No. 87-839 (Oct. 5, 1988) . 2... 66. eee 26
510 F.Supp. 1233 (W.D.Ky. 1980)
aff'd 674 F 2d 582 (6th Cir. 1982)
cort, den. 459 U8. 1041 (1982) ..............-55- 24
L.C. and E.W. v. Olmstead,
1997 US. Dist. LEXIS 3540 (N.D.Ga. March 25, 1997) 28
Liovd v. Transit Authori
$48 F.2d 1277 (7th Cir. 1976) .... 2... eee 22
Lynch v. Maher, 507 F. Supp. 1268 (D.Conn. 1981) . 21, 22
916 F. Supp. 133 (D.Conn. 1996)
= a 26
Meyer v. Nebraska, 262 U.S. 390(1923) ............. 7
$51 F. Supp. 1165(EDNY.1982)........ soa
p lvania Ass'n for Retarded Child
Commonwealth of Pennsylvania,
343 F. Supp. 279 (E.D. Pa. 1972) ................. 12
118 S.Ct. 1952, $24 U.S. 206(1998) .............. 5
Pennsylvania Sec. of Public Welfare y. Idell S,
FO Das SONNE i ove dade ath otk kk ies. 21
Richard C.v. White
C.A. No. 89-2038 (W.D.Pa) ................ 21, 24, 26
ok | RR ars rere ane 8,9
School Comm. of Burlington v_
Mass. Dept. of Educ., 471 U.S. 359(1985) 12
Traynor v. Turnage, 485 U.S. 535(1998) ss 23
LEGISLATIVE MATERIALS
113 Cong. Res. 19417 (1967) .................. 25, 26
137 Comp. Ree. QSRGR CISPED wg oo ccc 7
117 Cong. Rec. 45974-75 (1971) .................. 8
117 Cong, Rec. 42293-94005... e seer reese eee 8
118 Cong, Rec. 525 (1972) ...-..-+.0see reese eee 8
118 Cong, Rec. 9495 (1972)... 2... 00eese cere 8
118 Cong, Rec, 9495-9501 (1972) ..... 06.2.0 seee 8
135 Cong, Rec, $4984 (May 9, 1989) 6.6... 5
135 Cong, Rec. $4986 (May 9, 1989) 0.6.00... 24
136 Cong, Rec. $9688 (Jul. 13,1990) 0... 5
HLR. Rep. 101-485 (II), (111),
Some TY a Ge 17, 20, 25, 28
S. Rep. No. 744, 90th Cong., 2nd Sess.,
os area uiin es dhe hs bas) 26
FEDERAL STATUTES
20 U.S.C. §1412(aNS) .. 2... c eee eee ees 12
28 CFR. §5.130(d\ 1991) 00. 6
PO CPR GBSAIE) occ cece cece e beeen ee eees 16
28 CFR. Pt. 35 App. A(I991) 0.0.0... 6
28 CFR. §35.130(b\IMfiv.) oes 23
RR cer ivcescsseseveceeene’ 25
42 U.S.C. §12101 ef 969. 66... eee eee 4,5
42 U.S.C. §1396a (a)(30)(A) et seq. ............... 25
GE UEC Se io kb 8 oo od ccs be aauewos 6, 18
GR EG th thin bal a ihaed as ie As ook Rc cee 5
Te Ui. SE SU eb webs hie pda es 5, 18
eae EE ie als, oe, Paani ples oases 6, 21
Ge es EN Kak shes ee eck oo Hed Oackees 19
42 USC§1751 AOR UE BARN SRR ie ep er es 19
F a TE NOEL © yoni OTA Chee ees 19
Title XIX, 42 U.S.C. §§1396 et seq. .......... 19, 20, 26
STATE STATUTES
SORT GG RII x oe ons dev £ 04K aed eas 14
S.J. Res.44, 1918 Ga.Gen. Assembly Ann. Sess.,
OGG Gk, BIOS © hiv o's vv elnienesausaeen ve tena. 13
ook: BY} SP ee, ne eae 13
BOOKS AND ARTICLES
American Academy of Pediatrics,
MEDICAID STATE REPORTS -- FY 1996 (1998) ......... 27
AMMO ok SN eaten Hes ee 30
vill
DAVID BRADDOCK et al.,
THE STATE OF THE STATES
IN DEVELOPMENTAL DISABILITIES (1998) ...... 18, 27, 29
EDWARD J. LARSON, SEX, RACE AND SCIENCE:
EUGENICS IN THE DEEP SOUTH (1995) ........ 14, 14n.14
H.H. GODDARD, THE KALIKAK FAMILY:
A STUDY IN THE HEREDITY
OF THE FEEBLEMINDED (1912) ..................--. 14
PY oS 80 G OV i o-5 vec CRS wae Cave Es 30
Karst, Zhe Supreme Court, 1976 Term --
Forward: EqualCitizenship Under the
Fourteenth Amendment, 91 HARV. L. REV.1,6(1977) .. 3
NATIONAL ASS’N OF STATE DIRECTORS
OF DEVELOPMENTAL DISABILITIES SERVICES,
THE HCB WAIVER AND CSLA PROGRAMS:
AN UPDATE ON MEDICAID'SROLE ................. 28
STEVEN NOLL, FEEBLE-MINDED IN OUR MIDST (1995) . 14
UNITED STATES CIVIL RIGHTS COMMISSION, ACCOMMODATING
THE SPECTRUM OF INDIVIDUAL ABILITIES (1983) ...... 15
ee eel ae .
)
)
j
INTERESTS OF AMICI
Amici are grass roots organizations of Americans with
disabilities, People First, whose initial chapters were
established in 1974, now number more than 900 with nearly
20,000 active members in 46 states and who in this decade
have joined together nationally as Self-Advocates Becoming
Empowered.’ Some three-quarters of the members were once
segregated into institutions and now are not.
To this network of citizens:
Self-advocacy is about independent groups of people with
disabilities working together for justice by helping each
other take charge of their lives and fight discrimination. ...
It teaches us about our rights, but along with learning
about our rights, we learn responsibilities. The way we
learn about advocating for ourselves is supporting each
other, and help each other gain confidence in themselves
to speak out for what they believe in.
Self-Advocates act together in friendship to extend
welcome, practical assistance and mutual support to people
coming from institutions into community, to teach teachers,
care-givers, bureaucrats, political leaders, family, friends, one
another, and the public to listen and to hear what people with
disabilities believe they need and to take the benefit of what
people with disabilities have learned. As next friends to still-
institutionalized persons and organizational plaintiffs, self-
advocates have directed the conduct of litigation As
monitors, as well as friends and supporters, self-advocates
have acted to assure that planned and ordered moves to
community are well done and that no one is lost.
Although professional opinion, research findings, and the
experience of people with disabilities consistently favor non-
institutional services, some institutionalized professionals,
policy makers and parents continue to support segregated
long-term care. For example, service providers continue to
' The parties have consented to the filing of this bref. No counsel for a
party has authored this brief in whole or in part, and no person other than
amici and its counsel made any monetary contribution for its preparation.
exercise a great deal of control over the lives of self-advocates,
some parents favor institutionalization, and many policy-
makers fiscally support large congregate care facilities.
Believing that individuals with disabilities can no longer wait
for others to change the long-term care system, self advocates
resolved to become more active in changing the system which
does not work for them: “We believe that all institutions, both
private and public, should be closed. All people regardless of
the severity of their disabilities should live in the community
with the support they need.” Materials from Self-Advocates
Becoming Empowered’s Close the Doors: Campaign for
Freedom are attached hereto in Appendix C.
People First of Georgia has more than 350 members in 14
chapters throughout the State engaged in the friendship and
work common everywhere to Self-Advocates. Its members
“were so happy when the 11th Circuit decided that L.C. and
E.W. had been discriminated against by being confined in a
state institution,” because “we believe that forcing people to
live in institutions instead of their own houses in their own
communities violates their human rights and is against the
principles of the Americans with Disabilities Act.”
Established in 1972 and 1974, respectively, as
organizations of families and professionals, the Autism
National Committee and National Down Syndrome Congress
are increasingly devoted to empowering people with Autism
and Down Syndrome, including as officers and directors and
fully as citizens. Vision for Equality is an organization of
people with disabilities, their families and friends, and rooted in
Philadelphia. It seeks to give another strand of meaning to the
Independence and Equal Citizenship annually celebrated at the
nation’s Independence Hall.
Many Amici here were amicus also in City of Cleburne,
Texas v. Cleburne Living Center, 473 U.S. 432, 461 (1985).
What is at stake for Amici here is what was there at stake:
“human freedom and fulfillment -- the ability to form bonds
and take part in the life of a community.” As the citizens they
are, Amici and many members participated in the formulation
and enactment, by a near unanimous Congress, of the statute
whose efficacy or not depends upon this Court’s decision in
this case.
Amici write to put before the Court desegregation as they
have experienced it, the weight of the invidious history as they
have suffered it, and a sense of the freedom and responsibility
of citizenship as they now live it.
SUMMARY OF ARGUMENT
The Act assures to Americans with disabilities the benefits
of “the principle of equal citizenship [that] presumptively
insists that the organized society treat each individual as a
person, one who is worthy of respect, one who ‘belongs.’
Stated negatively, the principle presumptively forbids the
organized society to treat an individual cither as a member of
an inferior or dependent caste or as a non-participant.””
The Act prohibits unnecessary segregation into institutions
and nursing homes. Whether segregation is unnecessary --
whether a person’s needs can be met in a more segregated
setting -- is to be determined thoughtfully, based in knowledge
and free of ignorance, prejudice or stereotypes.
The regime of state-imposed segregation and degradation
has continued its impositions into the lives of Respondents and
many other individuals with disabilities. The Act seeks and
requires its disestablishment.
The Attorney General’s regulation (1991) faithfully
implements the controlling Congressional direction to prohibit
unnecessary segregation, faithful alike to integration provisions
in both of the Act’s other titles and to the specified 1978 co-
ordinating regulation, and faithfully applying a standard no less
than that judicially applied under Section 504. Implementation
of the integration imperative, far from affronting the medical
assistance program (Title XIX of the Social Security Act)
*Karst, The Supreme Court, 1976 Term -- Forward: Equal Citizenship
Under the Fourteenth Amendment, 9\ HARV. L. REV. 1,6 (1977)
3
which contains its own independent prohibition of unnecessary
utilization of institutions and nursing homes, can be funded by
Title XIX, variously with a 50% to 82% federal financial
share, as far as a state chooses.
What Amici People First and Speaking for Ourselves
Organizations seek in this Case is nothing less than what one
of their first members sought after twenty years segregated
into a Massachusetts institutions on the eve of his move into
Massachusetts’ community: “I want to be a citizen. I want to
do what every citizen can do. Citizenship means voting.
Citizenship means working, it means helping others. It also
means that we are able to make important decisions for
ourselves. Our families and the people who work with us can
help us, but if citizenship is to mean anything we must make
the final decision.” CHERINGTON & DYBWAD, PRESIDENT’S
COMM. ON MENTAL RETARDATION, NEW NEIGHBORS: THE
RETARDED CITIZEN IN QUEST OF A HOME 198 (1974),
ARGUMENT
I. The Americans with Disabilities Act Unmistakably
Prohibits Unnecessary Segregation, Disestablishes a
Regime of State-Imposed Segregation and Isolation,
and Requires that State Actions with Respect to
People with Disabilities Be Based Not in Ignorance,
Prejudice and Stereotype, but in Knowledge and
Thoughtfulness.
A. With Unmistakable Clarity, the Act Prohibits
Unnecessary Segregation.
The Congress of the United States, subscribed by the
President, purposefully “invoke[d] the fullness of its powers
including the power to enforce the Fourteenth Amendment...
in order to address the major areas of discrimination faced day-
to-day by people with disabilities."’ Foremost among the
mee a ko cteetee? on be somedied. C pli
ranked the historical “isolat{ion] and segregat[ion) of
. vid Is with di biliti ™
ae eames Cateny tat of Op Agnemeens wee
Disabilities Act.” Pa_D Cc Yes! '
S.Ct. 1952, 1956 eer.
omulgate regulations and, respect to state
government services, directs that the regulations “shall be
consistent with this Chapter and with the co-ordination
> 42 USC. § 1210164).
* 422U SC §12101(aX2) - a cone Nara a
managet ime sponsor, closing debate in the Senate, said:
AToday Congres apane the ocr tool Americans with desbilsies
today we say no to fear, . we say no to ignorance, and .. ‘we say no to
prejudice. The ADA is, indeed, the 20th century Emancipation
Proclamaton for all persons with disabilities. Today, the US Senate will
say to all Americans that the days of segregation and inequality are over
136 Cong. Ree. $9688 (Jul. 13, 1990). At introduction of the bill, see 135
Cong. Rec. $4984 (May 9, 1989). H.R. Rep. 101-485(II1)(Educ. and Labor
Comm.) at 50, 1990 U.S.C_C_ALN. at 332, concluded
[T}here is a compelling need to provide a clear and comprehensive
national mandate for the elimination of discrumination and for the
mainstream of Amencan life
H.R. Rep. 101-485(1I1)Uudiciary Comm.) at 26, 1990
att ehites hat caniahenes tea dente tag in 1973
civil nights protections provided to women and minonties beginning in
1964. This year, 1990, 1s an histone one in the evolution of this nation's
public policy towards persons with disabilities The ADA is 4
comprehensive piece of civil nghts legislation which promises a new
future a future of inclusion and integration and the end of exclusion and
segregation
regulations”*..and that the Act shall not “be construed to
apply a lesser standard than the standards applied under Title
V of the Rehabilitation Act of 1973 or [its] regulations.”
The Attorney General promptly and faithfully complied
with what is under the Fourteenth Amendment “controlling
jonal direction.” City of Cle I Cel
Living Center, 473 U.S. 432, 439 (1985). His regulation, 28
C.F.R. §35.130(d)(1991)(emphasis supplied), requires with
unmistakable clarity that:
a public entity shall administer services, programs and
activities in the most integrated setting appropriate to the
needs of qualified individuals with disability.’
*42 U.S.C. §12134. The Act ~ “this chapter” -- at §302(b), 42 U.S.C
§12182(b)(1)(B), entitled “Integrated Settings,” requires: “Goods, services,
facilites, pnvileges, advantages, and accommodations shall be afforded to an
individual with a disability in the most integrated setting appropriate to the
needs of the individual.”
At §102(b), 42 U.S.C. §12112(6)(1), entitled “Discrimination” --
segregating in a way that adversely affects the opportunities or status of {a
person] because of... disability.”
As to these provisions, H.R. Rep. (II) at 84; 1990 U.S.C. CAN at 367
instructed: “The Committee intends . . . that the forms of discrimination
prohibited by section 202 be identical to those set out in the applicable
provisions of titles I and III of this litigation. Thus, for example, the
construction of “discnmination” set forth in section 102(b) and (c) and section
302(b) should be incorporated in the regulations implementing this title ”
The co-ordination regulation to which §12134 directs the Attorney
General, requires. “Recipients shall administer programs and activities in the
most integrated sctting appropriate to the needs of qualified handicapped
persons.
* 42 USC. §12201(a).
. Petitioner's attempt to insinuate that a per se requirement--no
segregation under any circumstances, ever-- is at issue in this case thus defies
the Acts’ plain language. It is “ummecessary segregation” which is
prohibited. This is Respondents’ position and was so below. It was the
holding of the Courts below, and also of the other courts which have enforced
the integration imperative under this Act and under 504. See Argument IL A,
6
a —— ~~.
Of this regulation, the Attorney General, at 28 C.F.R. Pt. 35,
App. A at 478 (1991) comments: y ’
and activities in the most integrated setting appropriate to
the needs of qualified individuals with disabilities, 1.¢. in a
setting that enables individuals with disabilities to interact
with non-disabled persons to the fullest extent possible.
B. The Act Prohibits the Arbitrary Quality of
Thoughtlessness.
disabilities’ has identified the values which Congress has
legislated consistently to achieve. These Congressionally
chosen and plainly legislated values determine the outcome of
Ue ain els He each ences Come
287, 300, 299 (1985). “{T]houghtlessness and indifference”
* The century, non-statutory cases include, at the poles, Meyer v.
eter EUS 390, 401-02 (1923) and Buck v. Bell, 274 U.S. 200
(1927).
* Both Sponsors had unnecessary institutional segregation in mind
Congressman Vanik’s full statement was:
7
In School Bd. of Nassau Co.. Florida v. Arline, 480 U.S.
273 (1985), the Court applied Congress’ legislated intention to
forbid “discriminatory practices .. which stemmed .. from
stereotypical attitudes and ignorance about the handicapped”
and to protect “the handicapped against discrimination
stemming not only from simple prejudice, but also from
‘archaic attitudes and laws’ and from ‘the fact that the
American people are .. unfamiliar with and insensitive to .
individuals with handicaps.”” Id. at 279 n.3, 279. Given the
many sources of harmful error about people with disabilities, a
central requirement, the Court writes in Bragdon v. Abbott.
118 S.Ct. 2196 (1998), is that decisions reached by the Act
must be based upon facts, upon “objective facts” and upon the
“objective reasonableness” of the “assessment of the objective
facts.” Id. at 2210.
“[T}he basic purpose of §504 is to ensure that
The masses of the handicapped live and struggle among us, often shunted
aside, hidden and ignored How have we as a nation treated these fellow
citizens? In this country we still have the snakepit mental institutions for
confinement without treatment, where brutality and unexplained deaths are
common. 117 Cong. Rec. 45945 (1971).
Senator Humphrey's:
I am calling for public attention to three-fourths of the Nation’s
institutionalized mentally retarded, who live in ... facilities .. more than
50 years old, functionally inadequate and designed simply to isolate these
persons from society _ These people have the night to live, to work to the
best of their ability -- to know the dignity to which every human being 1s
entitled _ But too often we keep children, whom we regard as ‘different’
or a ‘disturbing influence’ out of our schools and community activities
altogether ... Where is the cost-effectiveness in .. consigning them to
‘terminal’ care in an institution? 118 Cong. Rec. 525 (1972).
See also 118 Cong. Rec. 9495 (1972), (Senator Humphrey).
differential access by disabled to schooling, armed services training, Job
Corps, vocational training, family services), Jd at 42293-94 (schooling, job
traning, family services, foster care, recreation), 118 Cong. Rec. 9495-950]
(1972) (schooling, job training public employment services, pre-school
programs, group homes)
handicapped individuals are not denied jobs or other bene
[or otherwise discriminated against] because of the prejudiced
attitudes or the ignorance of others.” 480 U.S. at 284 (bracket
Congress sought to prevent.” Id. at 284-85. gt
By prescribing that any services, programs, or activities
which a state undertakes to provide to a disabled individual
must be provided in the most integrated setting appropriate to
the needs of qualified individuals with disabilities, the Act
ires two things: thoughtful judgment, free alike of
ith disabilities can be met in an integrated setting--i.c.,
wcarepation is unnecessary-- then itis in such a setting that the
individuals cannot be grouped together as
Sea aalanansauaed pamangtedly unfit to live in a
community.” Id. at 455. oe
All members of the Cleburne Court joined unanimously to
establish “the principle that mental retardation per se cannot be
a proxy for depriving people of their rights and interests
without regard to variations in individual ability. The Equal
Protection Clause requires attention to the capacities and
needs of retarded people as individuals.” Id at 455-56
Opinion of Marshall, J.). ries
’ At issue in Cleburne was the constitutionality of an
ordinance rooted in the early century which required an annual,
special use permit for homes for “the insane or feebleminded.”
Id at 436 n3. The Court accepted findings below that
“without group homes... the retarded could never hope to
integrate themselves into the community.” Jd. at 438, 439 n.6
(White , J.).
Although three Opinions differed in the Equal Protection
standard each said it was applying, each reached the same
conclusion. The Opinion of the Court per Justice White
concluded: “The short of it is that requiring the permit in this
case appears to us to rest on an irrational prejudice against the
mentally retarded...” Id. at 450."°
Five members of the Cleburne Court found that the
historical treatment of persons with disabilities entered into the
unconstitutional application, and adoption, of the City’s
ordinance. For Justice Stevens and the then Chief Justice, the
questions were: Has the class disfavored by the ordinance
“been subjected to a ‘tradition of disfavor’ by our laws? What
is the public purpose that is being served by the law? What is
a That Opimon analyzed and rejected six distinct grounds actually
profiered by the City, finding some to be “based on... vague undifferentiated
fears” and some to be “mere negative attitudes, or fear, unsubstantiated by
factors which are properly cognizable in a zoning proceeding, and [which] are
not permissible bases for treating a home for the mentally retarded differently
" |d. at 448, 449. “The question,” Justice White wrote ,“is whether it is
rational to treat the mentally retarded differently. It 1s true that they suffer
disability not shared by others, but why this difference warrants a density
regulation that others need not observe is not at all apparent .. At least this
record does not clarify how __ the characteristics of the intended occupants of
the Featherston home rationally justify denying to those occup ‘$s what would
be permuted to groups occupying the same site for different purposes.” Id at
449-50 (emphases added)
Although segregation in institutions presents the contra-positive of the
Cicbume situation (putting disabled people somewhere no one else 1s put ys
disallowing disabled people from residing where others reside), if it is
unnecessary segregation--1.¢, not justified by any difference arising from
retardation--then, it would appear, unnecessary segregation into institutions
would, on Justice White's analysis, also fall before the Equal Protection
Clause
10
the characteristic of the disadvantaged class that justifies the
disparate treatment?” Id. at 453. They found that “through
ignorance and prejudice the mentally retarded have been
to a history of unfair and often grotesque
mistreatment,” that the real purpose of the ordinance Is to
satisfy “the irrational fears of neighboring property owners,
rather than for the protection of mentally retarded persons...
and that justification for the disparate treatment 1s wholly
unconvincing.” Id. at 453-55.
The tied opinion in Clebume set out the “history of
unfair and grotesque mistreatment” to which Justice Stevens
adverted and the history of “irrational prejudice” found in
Justice White’s Opinion to be at the root of Cleburne’s
clusionary ordinance. Id. at 454, 450.
= The arbitrary quality of thoughtlessness,'' which the Act
C. The Act Seeks to Disestablish The Regime of State-
Imposed Segregation and Isolation and to Remedy Its
Effects.
Justice Marshall, joined by Justices Brennan and
Biackmun, described the “lengthy and tragic history of
segregation and discrimination that can only be called
grotesque” in part as follows: }
“During much of the 19th century, mental retardation was
viewed as neither curable nor dangerous and the retarded were
largely left to their own devices. By the latter part of the
century and during the first decades of the new one, however,
social views of the retarded underwent a radical
transformation. Fueled by the rising tide of Social Darwinism,
the ‘science’ of eugenics, and the extreme xenophobia of those
years, leading medical authorities and others began to portray
the ‘feeble-minded’ as a ‘menace to society and civilization ...
'! See Hobson v. Hansen, 269 F. Supp. 401, 497 (D.D.C. 1967) (Wnght,
CJ).
responsible in a large degree for many, if not all, of our social
problems.’
“A regime of state-mandated segregation and degradation
soon emerged that in its virulence and bigotry rivaled, and
indeed paralleled, the worst excesses of Jim Crow. Massive
custodial institutions were built to warehouse the retarded for
life; the aim was to halt reproduction of the retarded and
‘nearly extinguish their race.’ Retarded children were
categorically excluded from public schools, based on the false
stereotype that all were ineducable and on the purported need
to protect nonretarded c¢ ildren from them.’ State laws
deemed the retarded ‘unfit for citizenship."” 473 U.S. at 461-
463 (citations and footnotes omitted).
The regime of state-mandated segregation and
degradation extended throughout the States."’ The invidious
actions of the States not only established the pattern of
segregation which Respondents here have so recently escaped-
- thirty-three years ago, when she was 14 years old, E.W. was
sent to the very state institution which had been created by law
in 1919 as the “Georgia Training School for Mental
Defectives,” J.A. 106 -- but they constituted State
? The unanimous Opinion in School Comm. of Burlin gton v. Mass. Dept.
of Educ., 471 U.S. 359, 373 (1985), observed that in the Education of all
Handicapped Children Act of 1975, “Congress was concerned about the
apparently wide-spread practice of relegating handicapped children to ...
institutions or warehousing them in special classes.” See PARC v.
Commonwealth of Pennsylvania, 343 F. Supp. 279, 293-297 (E.D. Pa. 1972).
The Education Act contains an integration imperative parallel to that here. 20
U.S.C. §1412(a)(5).
" “A Compendium of Purposeful State Action for the Segregation and
Exclusion of Retarded Persons in the Fifty States and the District of Columbia”
which sets forth the enactments of the states and official materials surrounding
them is attached to this Brief as Appendix A. The Compendium was originally
submitted to the Court in the Cleburne Case in an Amici Curiae Brief filed
there by organizations who appear as Amici here. Secondary sources
concerning the pervasive state action and Amici’s analysis thereof, also drawn
from their Clebume Brief, are set forth here as Appendix B.
12
ee a ee ee —
confirmation and perpetuation of the very stereotypes,
prejudice and ignorance which had driven the States’ invidious
actions. As Justice Marshall wrote: “Prejudice, once let loose,
is not easily cabined... .[L]engthy and continuing isolation of
the retarded has perpetuated the ignorance, irrational fears,
and stereotyping that long have plagued them.” 473 U.S. at
404.
i ici in this regime of segregation. In
cineaeneaacomt found that: “there are many
persons in Georgia, minor and adults, who are feeble-minded
and as such are a menace to the schools and to the
communities in which they reside” and“More than three
fourths of the States in the United States make special
provision for the care, detention and training of the feeble-
minded and for the prevention of the evils resulting from their
neglect and their being allowed at large to marry and
perpetuate and increase the serious tendencies of their unhappy
Oe requested that before the next session the
Governor: “appoint a committee ... to investigate fully and ...
to make recommendations ... to relieve the State of the
menace of the uncared-for feeble-minded who are such a fertile
source of crime, poverty, prostitution and misery not only to
themselves, but to all with whom they are brought into
contact.” S.J. Res. 44, 1918 Ga. Gen. Assembly Ann. Sess.,
1918 Ga. Laws 921. On June 26, 1919, the Governor
transmitted the Report of the Commission on the Feeble-
minded to the legislature and urged that “steps be taken
immediately along the lines suggested.” Journal of the Ga.
House, June 30, 1919 at 205. a
In the ultimate sentence of tae yg Sager d yo
the Commission recommended enactment
meg the Commitment of the Feebleminded ... making so
visions for the protection, care, traiming
pce ni of mental defectives.” Journal of the Ga. House,
June 30, 1919, 205-264 at 264; Journal of the Ga. Senate, July
2, 1919, 142-201 at 201 (emphasis supplied).
13
Eight days after receiving the Report, the Georgia House
approved the bill “establishing ... an institution to be known as
the “Georgia Training School for Mental Defectives,’” by vote
of 149-19. Id at 630. The Senate followed suit, by vote of
36-0 on August 1, 1919. Journal of the Ga. Senate, 1919 at
833. The Act, 1919 Ga. Laws 377 required “thoroughly
scientific .. management,” the admission of “any person with
mental defectiveness ... so pronounced that he or she is unable
to ... manage his affairs with ordinary prudence, and ..
constitutes a menace to the happiness of himself or of others in
the community” and “preference in admission ... to children
and women of child-bearing age.”
Georgia's statute closely followed the national pattern.
The animus was everywhere the same. “Each of the new
institutions was expressly and exclusively created to segregate,
train, and care for a class of persons identified as feeble-
minded.” EDWARD J. LARSON, SEX, RACE AND SCIENCE:
EUGENICS IN THE DEEP SOUTH, 83, 40-84 (Johns Hopkins
Univ. Press, 1995), STEVEN NOLL, FEEBLE-MINDED IN OUR
MIDST: INSTITUTIONS FOR THE MENTALLY RETARDED IN THE
SOUTH, 1900-1940, 13-26 (Univ. of N.C. Press, 1995).
None of this was done quietly. H.H. GODDARD, THE
KALIKAK FAMILY: A STUDY IN THE HEREDITY OF THE
FEEBLEMINDED (1912) outsold the Bible in 1912 and, at least
as late as the 1950s, was taught in three grades in public and
* The Georgia statute, like others (see App. B. at 13), authorized health
officers, school officials and “any reputable person” to override family
resistance “when the relatives .. either neglect -- or refuse -- to place a said
person in the Georgia Training School for Mental Defectives.”
In 1957, three years after Brown, Georgia passed an Act “to establish a
facility for Negro children [at] the Georgia Training School for Mental
Defecuves at Gracewood |,} distinct and separate .. for Negro children only.”
1957 Ga. Laws 306. Until then, as in most southern states, institutions took
only whites. The Jum Crow segregation of African Americans “allowed” the
states to focus institutional segregation exclusively on “‘preserving’ the White
race “LARSON at 93, NOLL at 26, 39
14
private schools in most states. Through the medical journals
and doctors “knowledge” of “the menace of the feeble-
minded” was disseminated deeply into every community. Their
“dangerousness,” “incurability,” the “social and moral costs”
they imposed upon communities and the propriety, even
necessity, of segregation were prominently “reported” in
leading newspapers everywhere. In nearly every state,
pamphleteering, and “stumping” also, was widespread. One of
the champions of segregation, A.A. Johnson, for example,
lectured in 350 cities and towns -- 1,100 lectures between
1915 and 1918 to two hundred fifty thousand people in all
parts of the country, 95 lectures between 1913 and 1918 to
some twenty thousand university students in 72 cities in 28
states.”
It is this regime of segregation and isolation, ignorance
and thoughtlessness, established by force of state law, which
Congress formulated and enacted the Americans with
Disabilities Act to disestablish oe at
to remedy. See Appendix E. hereto
ne ghow mretaxnes tig the United States Civil Rights
Commission found (1983 Report at 20), and the enacting
“a momentum of their own.” From this encompassing
momentum, Amici wish to be -- and the Act provides that they
should be -- free.
Il. Petitioners Mistake the Purport of the Act and Its
Effects, Misstate Its Language, Ignore Judicial
Application of Section 504 to Remedy Unnecessary
Segregation and Overlook Availability of Title XIX
Funds to Provide Services in Most Integrated Settings.
A. The Act Establishes No Per Se Duty, But Prohibits
’ See the matenals collected in Appendices A and B, the histoncal works
cited above, and the works cited in the bibhographic note to Amic:’s Clebume
bnef.
1S
Only Unnecessary Segregation.
Petitioners throughout attribute to the Act duties which
are not there, ¢.g., a duty to integrate per se, every time,
everywhere, a per se prohibition on segregation; in their words
“an unyielding preference for one type of ... care over
another.” Br. at 30 (emphasis supplied).
The Act prohibits only unnecessary segregation, exactly
what the courts below held and exactly what Respondents
have sought, below and here. The duty is only “to administer
services, programs, and activ'ties in the most integrated setting
appropriate to the needs of qualified individuals with
disabilities.” 28 C.F.R. §35.130(d)."*
Once Petitioners’ misstatement of the duty is in focus, it
readily can be seen that their assertion that
“institutionalization” in the Congressional finding’ is
“discrimination-neutral,” Br. at 36-37, while correct, has
exactly the opposite implication from the one Petitioners
imply. Each of the critical areas is “discrimination-neutral.”
The prohibited discrimination with regard to
institutionalization arises where it is unnecessary
institutionalization: i.e., where institutional segregation is
unnecessary, i.e., the needs of the person with disabilities can
'© Petitioners’ statement of the question presented does not contest, but
takes it as a given, that decisions about whether needs can be met in particular
settings can be sensibly made. The district court found that the parties agreed
that the needs of Respondents can be met in a community setting, that the
institution was for Respondents, unnecessarily segregated, and that the settings
sought and ordered were the most integrated settings appropriate to the needs
of Respondent. 1997 U.S. Dist. LEXIS at *8, *15. Contrary to the assertion
in the statement of question here, namely, that Respondents’ needs can be met
in “a State Hospital,” there was no such finding below nor was such a fact
agreed to by the parties.
'” “The Congress finds that -- discrimination against individuals with
disabilities persists in such critical areas as employment, housing, public
accommodations, education, transportation, communication, recreation,
institutionalization, health services, voting, and access to public services.”
16
be met in a more integrated setting. i
Similarly, to see that the Act prohibits unnecessary
segregation dispels the inference Petitioners recurrently seek to
draw from such correct statements as, Br. at 26, “nothing ‘
require[s] States to provide [community services to disabled
people] simply because it [is] possible, appropiate, or even
better than institutional treatment (sic).” The “simply” makes
the statement true. There is in this Act no right to community
services per se, no right at all to community services as such
whether they be “possible,” “appropriate,” “better” or
whatever. The right secured by the Act is the right, whenever
a state should undertake to provide services to a disabled
person, that the services not be provided in unnecessarily
segregated settings but instead in the most integrated setting
where the needs of the person with disabilities can be met.
Petitioners invoke, Br. at 39, a paragraph of the House
Report which-- in the portion they omit by elision -- is telling:
The Committee intends ... that the forms of discrimination
prohibited by Section 202 be identical to those set out in
the applicable provisions of Titles I and III of this
a eae
In an apparent explanation of why Petitioners profess they have
unable to find clear meaning in the Act, Petitioners in their Bnef to the Court
thirty-three times use a phrase which appears nowhere in the Act, nor in its
regulation, nor in the Committee Reports commending the Act to the entire
Congress, nor at any time in the floor debate, and which also appears nowhere
in the claims made by plaintiffs below, in their argument there, or here, or in
either of the opinions of the courts below--namely, “least restrictive
In contrast -- and apparent acknowledgment of the unmistakable difficulty
of the actual statutory language to their position here -- Petitioners use the
word “segregation” just twice, Br. at 38, 41, and the phrase unnecessary
segregation” never at all, except in quoting the district court’s holding. Br. at
12. Four times Petitioners quote the entirety of the phrase which is in the
statute and in the regulation which determines this case, but never do they
analyze or address its meaning. Instead Petitioners repeatedly address a
concept which is not in this case, would be of dubious relevance if it were, and
would implicate a multidimensional inquiry (least restrictive of what?) with no
calculus for weighing dimensions. In contrast, integration or segregation has
but a single dimension: interaction.
17
Legislation. Thus, for example, the construction of
‘discrimination’ set forth in Section /02(b) and (c) and
Section 302(b) should be incorporated into the regulations
implementing this title.
H.R. Rep.(II) at 84; 1990 U.S.C.C_AN. at 367 (emphases
supplied). Section 302(b), which by this explicit direction is to
“be incorporated into the regulation implementing title [II],”
itself expressly construes the discrimination prohibited, at
§302(b)(1)(B), to include, and to be: “Goods, services
facilities, privileges, advantages and accommodations shall be
afforded to an individual with a disability in the most
integrated setting appropriate to be needs of the individual.”
42 USC. §12182(b)(1)(B)."” In Section 102(b)(1), the
discrimination that is prohibited is expressly construed to
include and to be: “ ... segregating ... in a way that adversely
affects the opportunities or status of [a person] because of ..
disability.” 42 U.S.C. §12112(b)(1).
Thus, with unmistakable clarity, the Act prohibits
unnecessary segregation, and only” unnecessary segregation.
In promulgating the integration regulation, the Attorney
General was following “controlling congressional direction.”
City of Cleburne, Texas v. Cleburne Living Center, 473 U.S.
'? The minority of States Amici supporting Petitioners here write in their
Bnef at 15 thatCongress knows very well how to enact an explicit integration
mandate .. and it did so in Title II] of the ADA. See 42 USC
§12182(6)(1)(B).” They thus concede the point, and the case.
» This is one of the particulars in which the Act differs from Title VI of
the Civil Rights Act of 1964 and disability discrimination, from race
discrimination. The difference reflects, and fulfills, Choate’s caution that “too
facile an assimilation” of the two “must be resisted.” 469 U.S. at 293 n.7. Just
such an assimilation plagues Petitioners’ position here. That the Act’s bar
upon segregation 1s Uius limited does not exclude the possibility that when a
State carnes out its duty thoughtfully to look to see whether a person’s needs
can be met in a more integrated setting, it may find that all of the persons .t has
segregated are unnecessarily segregated’ New Hampshire, Vermont, Rhode
Island, New Mexico and Michigan (but for at this date 362 persons) have so
found. BRADDOCK ET AL, at 27.
at 439 (1985) (Justice White’s Opin. for the Court).
B. Handicap Services” Are Not Peculiar or Unique, But
in the Main Are Services Commonly Provided by
Governments to Non-Disabled Citizens.
Petitioners seem to argue that the State is free, as once it
was (see Argument I.C. supra), whenever it provides services
“only” to “the handicapped,” to do to them and with them
whatever it may wish. That defies sense as well as the text and
history of the Act. |
Moreover, it is incorrect. By and large, the services
provided in institutions are a set of familiar generic services
provided in a setting that is for “handicapped” people only.
“Treatment” services or, as they sometimes are called for
people with developmental disabilities, “habilitation” services,
are, in their elements: teaching and learning services, job
training or retraining, recreation, companionship, sometimes
homemaker services; “case management,” housing and food
a Seana pe
services are regularly provided by government to --
albeit without exacting the isolation and surrender of freedoms
entailed by institutional segregation ”
* Nothing here is to suggest anything about the quality of institutionalized
“services” Amici’s experience and the findings of every tnal court (except
one) bei. whom a record of institutional life has been made during the last
three decades are that life there is nasty and brutish and “services”
problematical
” For example, respectively the public schools, adult education,
community colleges, job taming, retraining, employment development and job
referral services (see virtually all of Title 29, United States Code), municipal
recreation programs and parks, state parks, national parks, companionship and
homemaker services, ¢.g., under Title XIX of the Social Security Act, 42
U.S.C. §1396d(a)(7), or to elders under Medicare or the Area Agency on
Aging Act, Title 42 U.S.C. ch 35A, case management services under 1 itle
XIX, 42 U.S.C. §§1396d(a) & 1396n(g)(2), Section 8 housing, public
housing, housing vouchers, 42 U.S.C. ch 8, and food stamps, surplus food
19
Medical and dental services are provided alike to people
with disabilities and those without disabilities under Medicare
or Medical Assistance, including pharmaceuticals and
psychotropic medicines, mobility and communication devices,
the therapies, and rehabilitation services. See e.g. Title XIX,
42 USC. §1396d(a)(11)(12)(13). So are public utilities,
police and firefighting serv :es, and protective services for
people at risk of being hur: or harmed by others.
Unnecessary segregation into institutions excludes people
with disabilities from receiving these services -- different from
those received by non-disabled people only by a reasonable
accommodation and frequently requiring no accommodation at
all -- in the community as do all other citizens. The nature of
the services to people with disabilities themselves is not
mysterious, arcane, peculiar, or, in any meaningful use of the
word unique to disabled people. Like those non-disabled
people, the needs of people with disabilities can usually be met
with services deliverable, and delivered, in the community.
Wherever that is so and a state has undertaken to provide
those services, they must under the Act be provided in the
most integrated setting »
distnbutions, school breakfast, school lunch, and Summer food programs, 7
U.S.C. §§1431, 2011 et seg, 42 U.S.C. §1751. In federally funded community-
based services the person typically pays for “room and board,” either from SS!
payments, which are not available to persons in public institutions, or from
wages. See IID. infra
* In this Act “solely” was removed from the phrase “by reason of such
disability” not merely to “avoid unanticipated results,” Pet Br. at 29, but, as the
nee epoen Ses came gag, Oat Sn eiasnat nee Gen ates
_ decision does not immunize [it},” that “the fact that the covered entity
its o quer of totes fer Gattaaaniieatiod in addition to the disability
is not dispositive.” H.R Rep. 101-485 (Il) at 84,1990 US. CCAN. Thus,
state decisions unnecessary to segregate may not be insulted from the Act's
prohibition by asseruons of admunstrative or fiscal convenience or “tradition.”
Burden is not undue, the House Judiciary Committee instructs, if.
considering all “available,” resources it 1s “only a small part of the overall
budget of the state agency” and “slight compared to the societal conse-
quences.” H.R Rep. (II) at 51, 1990 US.C.C ALN at 474. See Argument
20
C. Section 504 Had Been Held by Courts to Prohibit
Unnecessary Segregation.
The Act explicitly requires that “nothing in [it] shall be
construed to apply a lesser standard than the standards applied
under Title V of the Rehabilitation Act ... or the regulations
issued [thereunder].” 42 U.S.C. §12201.
As to construction and application of Section 504 by
federal courts to prohibit unnecessary segregation in
institutions or nursing homes and to require that services be
provided in the most integrated setting consistent with the
needs of individuals with disabilities, Petitioners assert: “None
did.” Br. at 26. Petitioners are wrong.
First, they must reckon with the plain statement by the
na fein me wr ore aaron: Ae aiaghon
to be integrated into society.”
Second, many lower courts did so construe and apply Section
504. Not all did. Indeed, part of the Congressional
recognition in the late 1980's that then current laws were
“inadequate” to combat “the pervasive problems of
discrimination that people with disabilities are facing” was, as
the Third Circuit has noted, that Section 504 had been given
“erratic judicial interpretations.” Helen L. v. DiDario, 46 F.3d
325, 331 (1995), tinea” Pa. Sec. of Pub. Welfare
v. Idell S., 516 U.S. 813
Among the judicial decisions which have so construed and
applied Section 504 are: Lynch vy. Maher, 507 F.Supp. 1268,
1278-1280 (D.Conn. 1981)(nursing home), Garrity v. Gallen.
$22 F.Supp. 171 (DNH. 1981)(institution); Homeward
Bound v. Hissom Mem. Center, 1987 WL 27104 at *19
D.Okla)(institution); Jackson v. Fort Stanton Hosp. and
veisie Sch. 757? Suv. 1243, 1296-1299 (D.N.M. 1988)
(institution) rev'd in part on other grounds, 964 F.2d 980
(10th Cir. 1992), Bogard v. Duffy, C.A. No. 88-C-2424, Opin.
of May 4, 1990 (N.DIIl (nursing homes), Richard Cv.
ILD. infra.
21
White, C.A. No. 89-2038, Opin. of Oct. 3, 1991 (W.D.Pa.)
(institution).
In addition, in Halderman v. Pennhurst State School and
Hospital, the district court rested its initial decision in part in
Section 504, 446 F.Supp. 1295, 1321-24 (E.D.Pa. 1978),
approved a settlement based in part thereon, 610 F Supp.
1221, 1225 (1985), denied a Rule 60 Motion in part thereon,
784 F Supp. 215, 224 (1992) aff'd. 977 F.2d 568 (3d Cir.
1992). The court of appeals spoke to 504 also at 612 F.2d 84,
107-08 & n.30 (3d Cir. 1979). See also
$51 F.Supp. 1165, 1184-1185 (E.D.N.Y. 1982); Lloyd vy.
Transit Auth., 548 F.2d 1277, 1284 n.20 (7th Cir. 1976).
Lynch v. Maher, supra (1981) limns exactly the holding in
Helen L.., supra (1995). The Lynch « wrt denied a motion to
dismiss and for summary judgment and granted a preliminary
injunction requiring Connecticut to provide home care rather
than “care in an institution” for a 35-year old quadriplegic
man”
for retarded persons” the court held in Hissom Mem. Center,
1987 WL 27104 at **20-21, and ordered that services be
™* Gamnity v Gallen, 522 F Supp. 171, 213-218 (D NH. 1981) appealed
and aff'd on other grounds, 697 F 2d 452 (ist Cir. 1983) rejected an
argument that 504 requires deinstitutionalization per se and forbids
segregation per se, but held, at 214 that the State violated 504 because
Defendants have often made placements and disbursed services based not
on an individual assessment of the abilities and potentials of each resident
but on the generalized assumption that certain groups of people (c.g ,
profoundly retarded or non-ambulatory people) are unable to benefit from
certain activities and services. This kind of blanket discrimination against
the handicapped, and especially against the most severely handicapped,
is unfortunately firmly rooted in the history of our country, and more
particularly in the history of Laconia State School.
The court, at 215, further held:
As a final example of the discrimination practiced at LSS against the
severely retarded, we note that until recently only the mildly and
moderately retarded were considered for community placement, although
the evidence at tnal convinced the Court that severely and profoundly
retarded individuals are capable of benefitting from such placements.
22
provided in integrated community settings for all residents of
the Hissom Center whose needs could be met there. Before
any transfer of services and persons from “segregated settings”
to “more integrated settings” (at *21), the court required
“individual assessment ... of the appropriateness of the new
environment” (at *22), “The underdevelopment of a
community services system,” the Hissom court found (at *21),
“ constitutes a continuation of the original and continuing
discrimination practiced by the State against retarded people.”
Subsequently in an unpublished opinion (C.A. No. 85-C-437-
E, May 20, 1988) at 67-70, 72 the court denied a stay, and
at 1297, 1299, the court first acknowledged “that Section 504
does not afford .. an affirmative right to placement in a
residential, non-institutional facility” as such and “does not
prohibit the existence of separate services” as such (see
Argument II. A. above), but, to the point, held
that the law is violated when certain residents of [Fort
Stanton] are excluded from qualitatively different facilities
which are being provided to their less severely
community programs can be made, defendants ’ failure to
integrate severely handicapped residents into community
programs which presently serve less severely handicapped
residents violates §504. Id. at 1299. (emphases
supplied)”
* Traynor v. Tumage, 485 U.S. 535, 549 (1998), stands only for the
proposition that differentiation between “categones of handicapped
ey can Unjustified differentiation, however, falls, as
it did in Fort Stanton See regulation under Act prohibiting discrimination
between “any class of individuals with disabilities.” 28 CFR §
35.130(b)\(1 Kv). In Fort Stanton, since the needs of the particular residents
could be met in the community, the differentiation was unjustified, and
23
In a previous, unpublished opinion denying a motion to dismiss
(Civ. No. 87-0839 JP, October 5, 1988 at 6), the Fort Stanton
court had held:
while Section 504 does not affimatively mandate
deinstitutionalization for all mentally handicapped
residents of state institutions, Section 504 prohibits
placing [or keeping] mentally retarded persons in
institutions based on stereotypical general opinions about
the needs or abilities of that class of persons. ‘The
Rehabilitation Act forbids discrimination based on
stereotypes about a handicap, but it does not forbid
decisions based on the actual attributes of a handicap.’
In a phrase, Section 504 prevents unnecessary segregation.
In Bogard v. Kustra, C.A. No. 88-2414, May 4, 1990
(N.D. Ill.) at 26-29, the court sustained, against a motion to
dismiss, a 504 claim by developmentally disabled persons
whose needs could be met in community settings based upon
generalized assumptions about their handicaps. In Richard C.
y. White, C.A. No. 89-2038, October 3, 1991 (W.D. Pa.) at 3,
7 the court sustained against a motion to dismiss a 504 claim
challenging defendants’ “policies of segregation” which
included “failure to” provide community services “to
[institutionalized persons] not in need of institutionalization.”
In ARC v. Sinner, (D.N.D., C.A.No. Al-80-141, April
29, 1992, at 6-7) after the appeals court on authority of
Pennhurst II had set aside previous relief based in state law,
942 F.2d 1235 (8th Cir. 1991), the district court rested its
decision prohibiting unnecessary segregation on 504. In Ky.
ARC v. Conn, the district court similarly found Section 504 to
prohibit institutionalization when a person’s individual
treatment team decided segregation was unnecessary. 510 F.
Supp. 1233, 1249-50 (W.D.Ky 1980), aff'd, 674 F.2d 582
(6th Cir. 1982), cert. denied, 459 U.S. 1041 (1982).
Far from “none,” these court decisions, many of them well
known to the Congress, did construe and apply Section 504 to
defendants’ failure to integrate them was held to violate 504.
24
prohibit unnecessary segregation. However diverse other
courts may variously have construed or applied Section 504,
the Act was formulated in part to resolve such varying
construction. See 135 Cong. Rec. $4986 (May 9, 1989)
(Harkin) (“ensure once and for all that no Federal agency or
integrate people with disabilities into the mainstream”). By its
clear instruction, the Act Legislates a one-way ratchet:
“nothing in this [Act] shall be construed to apply a lesser
standard than the standards applied under Title V ... or [its]
regulations.” “Section 504,” the Judiciary Committee Report
found, “has served not only to open up public services and
programs to people with disabilities, but has also been used to
end segregation.” HRRep. 101-485(III) at 49, 1990
U.S.C.C.AN. at 472 (emphasis supplied).
D. The Medical Assistance Statute Is in No Way
Contrary to the Act, But Itself Contains a Parallel
Prohibition on Unnecessary Utilization of Instit: tions
and Nursing Homes and Provides Substantial Federal
Funds for Services Provided in Integrated,
Community Settings.
Petitioners write about Title XIX of the Social Security
Act (the medical assistance program) as if it were contrary to
the Americans with Disabilities Act. Br. at 30-32. It is not.
Rather, in independent provisions entirely consistent with the
Act, Title XIX itself prohibits “unnecessary utilization” of the
services thereunder 42 USC. §1396a(a)(30)A).
Furthermore, with pointed particularity, Title XIX also
requires that “admission[s] to a hospital, intermediate care
facility for the mentally retarded (ICF/MR) or hospital for
mental diseases” be independently reviewed and evaluated. /d
ai §1396a(a)(30(B), With an vege org sete ire
expressly requires, and uniquely as to “prior to
admission or authorization of benefits in such facility” and
“periodically,” state and independent “review [of each
25
person’s] meed for such services. §1396a(aX(31). The
regulation thereunder provides, for example, that for each
person “whose needs could be met by alternative services that
are currently unavailable, the facility must .. look for
alternative services.” 42 C.F.R. §456.371.
These provisions, enacted just two years into Title XIX
were intended to “provid[e] suitable alternatives to
institutional care.” 113 Cong.Rec. 11417 (1967). The chief
sponsor explained, “Federal medical assistance programs have
been criticized... for emphasizing institutional services to the
extent that a bias is produced tending to promote institutional
confinement.” Jd. at 1416. The Committee Report stressed
“assuring that patients are receiving appropriate care in an
appropriate setting -- frequently in a lower cost facility or
setting.” S.Rep. No. 744, 90th Cong., 2nd Sess. (1967), 1967
U.S.C.C.A.N. 2866, 3029.
This prohibition on unnecessary institutionalization has
been enforced in Homeward Bound v. Hissom Mem. Center,
1987 WL 27104 at *18-19 (N.D.Okla), as well as its Opinion
of May 1988, No. 85-CV-437-E, 67-70, and Jackson v. Fort
Stanton Hosp. and Training Sch., No. 87-839, Opin. of
October 5, 1988, commented on in final opinion, 757 F.Supp.
at 1299-1302, 1315-17 (D.N.M. 1990), Bogard v. Duffy,
N.D.Ill., No. 88-C-2424, Opin. of May 4, 1990; Richard C. v.
White, No. 89-2038, Opin. of October 3, 1991 (W.D. Pa.),
and Messier v. Southbury Training Sch., 916 F.Supp. 133,
142-146 (D.Conn. 1996).
When states in accordance with Title XIX “must look for
alternative services,” supra, they are not far to find. They are
right at hand in the very same Title XIX. For persons with
retardation or other developmental disabilities as well as for
persons with chronic mental illness or other disabilities, Title
XIX has provided since 1981 for home and community based
services. To wit, 42 U.S.C. §1396n(c):
The Secretary may by waiver provide that a State plan
approved under Title XIX ... may-include ... the cost of
home or community-based services (other than room and
26
board) ... which are provided pursuant to a written plan of
care to individuals [as] to whom there has been a
determination that but for the provision of such services
the individuals would require the level of care provided in
a hospital or a nursing facility or an intermediate care
facility for the mentally retarded the cost of which could
be reimbursed under the State plan.”
It is under this provision that Respondents are now being
served by Georgia in the most integrated setting appropriate to
their needs, rather than being unnecessarily segregated.”
Title XIX home and community based services must be
“cost-effective,” ie. the average per person cost of the
community-based services can not exceed the average cost of
institutional services for which the participants would be
*® Georgia's federal medical assistance percentage reimbursement rate is
61.9%. For Mississippi, it is 78.1%; Montana, 64.4%; Indiana, 64%; Texas,
62.3%, me tee Colorado, 52.4%; for, South Carolina 70.8%; and
Hawau, MEDICAID STATE REPORTS -- FY 1996 (American Academy
Pediatrics, 1998). .
77 In 1946, when this case was before the district court, Georgia had
approved but unused Title XIX authority for and home community based
services to 763 people with disabilities who were then segregated in Georgia’s
institutions. U.S. H.C.F.A., Ga. Compliance Review, Home and Community-
Based Waiver Program (June, 1996), in the district court record at R-79.
In 1996, Georgia’s per capita federal home and community-based
spending was less than half the national average. In 1996 Georgia ranked 50th
in the country, ahead of Mississippi, in the number of people with retardation
or other developmental disabilities served in community residential settings on
a per capita basis (per citizen in general population).
In 1996, Georgia was 9th highest in percentage of total residential
placements in congregate facilities. Its per capita nursing home utilization rate
for retarded and other developmentally disable people was nearly twice the
national average and 10th highest in the nation. Georgia was one of only 7
states spending more on institutional “services” than on services in the
community. BRADDOCK at 173-180 (Georgia) and passim (Sth Ed. 1998).
27
eligible* Nor is it necessary that a State “retire” an
institutional bed for each community place created, or even
that a state have any institutional beds. It is enough that the
average cost of the community services not exceed the average
cost of institutional “services,” if the state provided any. The
“cold bed” rule was eliminated in practice in 1991 and by
regulation in 1994. “With [its] elimination a state may self-
determine the number of individuals with disabilities it will
service in its home and community based services program.”
Under Title XIX, the federal government will approve
whatever number a state requests, and will provide federal
reimbursement therefor. NATIONAL ASS’N OF STATE
DIRECTORS OF DEVELOPMENTAL DISABILITIES SERVS., THE
HCB WAIVER AND CSLA PROGRAM at 83 & B-9 (1994).
In Georgia, the district court found, on average,
institution costs per person are twice community costs. 1997
U.S.Dist. LEXIS 3540, at *12 n.4 (N.D.Ga. March 25, 1997).
The cost ratio, similar in all states, is set forth in Appendix F.
Georgia can secure authorization and federal reimbursement at
61.9% of cost, for as many community-based placements as
they elect to provide persons like L.C. and E.W., whom
Georgia now unnecessarily segregates in violation of the Act.
Ill. For Amici, the Act Has Been a Doorway to Freedom,
Citizenship, and Productive, Participating, and
Contributing New Lives.
The results of formerly institutionalized people with
disabilities moving into integrated community settings have
been profoundly affirmative. Congress expected that “while
the integration of people with disabilities will sometimes
involve substantial short-term burdens, both financial and
28 Needing the “level of care” that an institutional facility provides does
not mean the person’s needs can only be met in the segregated institutional
setting or even that they will be met there. As the statute plainly affirms, a
needed level of care can be provided in home or community based settings.
28
administrative, the long-range effects of integration will benefit
society.” H.R. Rep. 101-336 (II) at 50.
Both the personal experience of former institution
residents” and meticulously documented, longitudinal studies
of the experience, before and after, of people who left
institutions and moved into communities show: there is
significant growth along every dimension of skill; the people
with the most severe disabilities gain the most; gainful
employment increases significantly, as does income; actual
To illustrate, an Oklahoma study of 382 former residents
of the Hissom Center concluded their “enhancements in life
style and quality have been dramatic” once in the community.
Conroy et al., THE HISSOM OUTCOMES STUDY: A REPORT ON
SIX YEARS OF MOVEMENT INTO SUPPORTED LIVING 64 (1995).
Similar longitudinal studies around the country, cited in
Appendix D, show respectively that moving into the
community significantly increased people’s involvement with
their families, development, and employment and educational
experiences.
Illustratively, in an article co-authored by Amici Self-
Advocates,” former institution residents from across the
country clearly articulated the inseverable bond between
community integration and Congress’ gc als in the Act:
Well, what is it like to live in the community? ... You
don’t feel like you’re an animal in a cage. You can go see
a play and movie and go to the shopping centers ... You
feel more independent, like you’re useful.
* In 1996, 199,890 people with developmental disabilities lived in | to
6 person homes and received Title XIX-funded services in integrated settings.
In 1996 59,726 lived segregated into public institutions (down from some
228,000 in 1969) and 38,438 in nursing homes. BRADDOCK at 24-27.
*° As to self-expressed, self-reported experiences of people with
disabilities, see Appendix C for a bibliography of speaking for ourselves
publications and see Appendix D for findings of people with disabilities.
29
Another person stated:
I enjoy working as a janitor five days a week. I enjoy
working [at one place] better because of pay and benefits.
I am now looking for a roommate to be friends with and
share the expenses.
STORIES FROM THE BELLY OF THE BEAST: TESTIMONY FROM
SURVIVORS OF INSTITUTIONALIZATION 18-22 (Sept. 23, 1996).
See also Impact (Vols. 1-12), a publication of the Center for
Community Integration. The pride with which former
institution residents describe seemingly mundane activities
most others take for granted betrays the harsh and debilitating
effects of unnecessary segregation. Perhaps the shortest
statement is also the most descriptive: one former institution
resident said simply, “I like my freedom.” Id. at 18.
CONCLUSION
John W. Davis, counsel to South Carolina, opened
Argument in Brown v. Board of Education, saying:
May it please the Court, I think if the appellants’
construction of the Fourteenth Amendment should prevail
here ... , I am unable to see why a state would have any
further right to segregate ... on the ground of sex or on
the ground of age or on the ground of mental caracity.
ARGUMENT 51 (1989). Rooted in the Equal Protection Clause
and a thoughtful understanding of disabilities and history, the
Congress has acted to prohibit the unnecessary segregation of
people with disabilities. For all of the above-stated reasons,
Amici respectfully request the Court affirm the judgment of the
11th Circuit in favor of Respondents.
Respectfully submitted,
Thomas K. Gilhool
Public Interest Law Center Judith A.Gran
of Philadelphia Max Lapertosa
125 S. 9th Street, Ste.700
Philadelphia, PA 19107 Counsel for amici curiae
30
APPENDIX A
ti lh othe ete en ee ee ~—
——s ee ee
“In addition to the 50 states. the federal law enacted bv 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. ¢.g.. restrictions on marriage. voting. and education. see
Appendix B to the Amici Brief of the American Association of Mental
Deficiency. et ail.
A-i
il ivet~ Sa
a
;
|
es
a
ee ee
* ee
Leck
il
CONTENTS— Continued )
Page
FE NE 0's nd ercbancan'ccwihbendccehan A-20
NG ad Bilas nine Vid de au doa 6 cA Wik 6 ance A-21
Midwestern States ..................00.0005.. A-22
SEG Bnckk ves hate didbederuun cen A-22
BID. 0.0 arden ete ph cdbadnviastebusnceaae A-22
SOE Kbwen sau vadudeswee ses CeReiwee A-25
BE §< cv ows ésstpeneeds taktdaruuee A-26
EE cos ou baud oéednapaa su eae eal A-29
PE 6 snc ews bons Vian ccuichucueen bau A-29
IE o u.o vce cucvchacdtanuh cuvenil uae A-32
PNG a4 5 0 bin ad dds eebee tae A-32
PD os + 0 00k dike HadRinas lee ene A-33
SOE NED 0 vn vinpvde cuba dabbeauecarunl A-35
Sees ates 6600s cbuccanden tune psnseneee A-36
DE CE 6 nc s icsvewdne ban Jico ridden A-37
WEEE 0 5.s.6 and. doee ae eanaa ee A-42
Southern States... 0.02000... eee cece ee, A-44
NS bbs ds 4s uncnccd bende cone A-44
PIED 6 ¥i0%. cb nes 003 has a ee A-45
PU Us5ede cation sbacdonuskoueeuameel A-45
i ak <xcp-nicns Sh ardne Aba eh eons A-45
ID vines Oadcnternidsdwecdiddvek cs A-46
MR iis es oe eee A-47
POOP UENO so s vasiuudciacceudspaecie A-48
A-ii
CONTENTS— Continued )
Page
To ci ae eeu nne ybeaee tes A-49
Bete CRM oo. 5 ois vols vise ss ce cdectecnens A-50
EI lc da age cuaecarstarereeet A-51
OY EE Ee eee eee eT eee ee eee A-52
CS ca cbddcceniccscducccscccesecsene A-57
WHERE VIRGIIED once ccc cccccecerevcccncns A-60
Western States... 6... A-61
CASTE re Perr rey A-61
Von ca Gs Sibeeeesvacenebescetcsese¥s A-61
RE en Pee re ry A-62
NY pls Ch aah RSCEN coe bee wdee Ui ews A-67
ec ik eh ease hank 09s c6be ehhehanen A-68
Re tartey Chew Md EUS 60d sesh ct dbs 8% A-68
it code. tbs wed bs eb supe ness hs abe A-69
Re Sink cal. UU ce kiedbabientecuke vst A-70
EE 0.000 bb vaucbu'na thnnnees dane vee A-70
I gain Sica a'e wo tp aus nOad ad CSely bom 4 6 ba0N A-70
MURS a. OSG s are eee oaks ceecetnee A-72
so dash octane ps haceny v6.05 08,0 A-73
gp PEARY PT eer er eit Terk ek A-75
District of Columbia ......................4.. A-7
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 OF 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-1
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. ‘he only practicable way to restrict the growth
of the feeble-mindedness in the state is to segregate the
feeble ‘ninded 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
“insutution 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.” Id. 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 (tvped 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 Biennial 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]jany of the male
inmates... are capable of doing a considerable amount
of satisfactory farm work under supervision. and. with a
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 vears. 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 facilitv. 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 of 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
insutution’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
a 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.
91, 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).
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).
‘ewes advice was forgotten and, by 1886. the Mas-
sachusetts legislature had established “a custodial de-
partment” for “custody of feeble-minded persons bevond
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, commitment 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 though’ful people generally. that
feeble-minded women shouu 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 vears
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-
utution, pauperism, illegitimacy, intemperance and other
complex social diseases. .. . The social and economic
burdens of uncomplicated feeble-mindedness are only too
well known. The feeble-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 teeble-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
for others “after they reach the age of twentv-
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
+» = he . Ss
a eS A eee a LG
A-10/New Hampshire
inadequate offspring likewise afflicted.” 1929 N
162, 164, ch. 138, §§1, 6. as be a
New Jersey. The New Jersey General Assemblv i
1888 established the first New Jersey “home” ae tis
aa aceinael at Vineland. 1888 N.J. Laws. 267. ch.
By 1906, state officials were calling for perm
segregation: “It is a fact that the Secrrase ta in| my 0
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 who 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-
Fregation of the feeble-minded and other-defectives are
very much in favor of the colonization of all defectives
where the development of its
— Cree its members could be properly
The legislature began its response in 1911. by -
ing “An Act to authorize and die for the Medinemton
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
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, §
3.
4 _—
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 thirtv-
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 | 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 C ity
“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 training 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 “[{wle 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 Apri! 16, 1912, the legislature created a new state
board and empowered it to authorize the sterilization “bv
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 children with an inherited tendency” to
“feeble-mindedness, idiocy or imbecility.” 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, 83% 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 mealth
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 them.” 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 grade of development. It is pertectly
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/ie] 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.” Id. 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 sensiblv
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 anv lasting benefits from atten-
dance at the public schcols. 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 © lg Parag tn ge
complete system of public provision that in a very
large saci 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(I] 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.” /d. at 35.
The solution was to expand the institutions and to bring
more of the “defectives” under control.
Accordingly, the legislature enacted on Mav 14. 1919
“AN ACT in relation to mental defectives. .. .” 1919 N.Y.
Laws 1683, ch. 633. The law defined “mental detective”
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.” Id. 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 cfficials were soon over-
whelmed with retarded peorie to segregate. The State
Commission for Mental Defectives indicated in 1926 that
although it was “g)-atifying 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. In 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 asvlum 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 twentv
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 commission, “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.” Jd. (pream-
ble).
“eis 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 beings, and may be permanently
segregated in institutions especially constructed for their
reception and care. The condition of mind in amentia is
irremediable|;] the segregation 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 “[ljegislation
was “needed to compel the.segregation of teeble-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
Superinter dent 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 ESTABLISH-
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
ume 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.” /d. 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 insutution
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. 3
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.
thieves will be s tendency to view the handling of the ques-
more practical and common sense manner.
undile 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). Se
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
Illinois. 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 resides 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 controlling
thought of the court” at these proceedings was to be not
only “the welfare of the feeble-minded person” but also
“the welfare of the community.” Id. at 249, § 9.
Indiana. |n 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:
many of them petty criminals; the women filling the
houses of prostitution; all 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
at the end of the next fifty years. No provision is
ceatiehacadncnichs teain-entndiadn 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-M!NDED YOUTH FOR THE FISCAL
YEAR ENDING SEPTEMBER 30, 1914, at 14 (1914).
In 1915, the Board of State Charities of Indiana
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 “imp~rative 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 ( oe Indiana —
were also to note that ommittee on Men-
Sioner ae 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 ae ee SP
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 1,000
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. . . .
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 will lessen the bur-
den of pauperism, degeneracy, disease and crime, and
decrease the cost to the taxpayers.” /d. at 6.
In addition to appropriating the increased aime “4
uested 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.
Iowa. On March 17, 1876, the General permet -
lowa enacted legislation “FOR THE ESTABL
OF AN ASYLUM FOR FEEBLE MINDED CHIL-
A-26/lowa
DREN.” 1876 lowa Acts 145, ch. 152. Admission was
originally limited to “children between the ages of seven
and eighteen.” /d. 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 lowa Acts 73,
ch. 118. The next were “all feeble minded men under 46
years of age.” 1909 lowa 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 *OR 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
To to those “not over fifteen years of age.” Id. at 75,
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 all 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:
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 “{a]ll 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 560-51,
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-
4-28/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 to 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 Inst-
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. 1, § 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.” Id. at 115, art. II],
§ 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 ..
feeble-minded.” Id. at 161. § 16. The same law made it
“one of the special duties of everv 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 anv 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 “{ajll feeble-minded and epileptic persons be-
A-30/M ichigan
tween the ages of six and twenty-one.” Id. at 416, §§ 20,
21. a
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.” /d. 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 biI-
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 *o 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. § 1. 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 defective 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 whether there is no probability that the condition of
such person would improve to such an extent as to avoid
such consequences.” Id. at 690-91.
Minnesota. In 1909, the legislature of Minnesota en-
acted a law “providing a department for incurables” for
“all idiotic and epileptic persons resident of the state. . . ”
1909 Minn. Laws 72. ch. 80. A decade later, because the
institution, located at Faribault. had filled bevond capac-
ity, the legislature authorized the state board of control
“to select from the public lands of this state, the title to
which is vested in the state, not to exceed two (2) sec-
tions of land to be used as a location for a colony for feeble-
minded persons. ...” 1919 Minn. Laws 475, ch. 407.
§ 1. In 1925, the legislature authorized residents of its
institutions “to be sterilized by the operation of vasec-
tomy or tubectomy.” 1925 Minn. Laws 140. ch. 154.
Missouri. In 1899. the “Missouri Colony for the
Feeble-minded” was established. 1899 Mo. Laws 1821,
ch. 118, art. 10. As the institution's population grew, the
“board of managers of said colony” was “empowered to
establish other colonies in temporary or permanent
camps.” 1919 Mo. Laws 183-84. § 2.
State officials continually requested increased ap-
propriations for expansion. In one annual report to the
legislature, for example. Dr. E. E. Brunner. superintend-
The Midwest/A-33
ent of the institution, stated: “We need another building
to care for the custodial type of idiot patients as that build-
ing is entirely overcrowded.” SIXTH BIENNIAL REPORT
OF THE BOARD OF MANAGERS OF THE STATE ELEEMOS-
YNARY INSTITUTIONS TO THE FIFTY-SEVENTH GENERAL
ASSEMBLY OF THE STATE OF MISSOURI FOR THE TWO
FISCAL YEARS BEGINNING JANUARY 1, 1931, AND END-
ING DECEMBER 31, 1932, at 291 (1933). According to
Superintendent Brunner, “[{t}he number of applications
is not an indication that the number of feeble-minded is
on the increase in the State. but to the education of the
people of the State as to the significance of
feeble-mindedness and the need of permanent custodial
care... .” Id. at 288.
Nebraska. On March 5, 1885, the Legislature of Ne-
braska passed “AN ACT te establish and endow an Asv-
lum Home for feeble-minded children and adults at or
near the city of Beatrice, Nebraska, and making appro-
priation and levy therefor.” 1885 Neb. Laws 255. ch. 52.
By 1914, Silas A. Holcomb, chairman of the newly
established state Board of Commissioners, was writing in
his first report to the governor and leyislature that “{t|he
population of the institution has increased to the point
where its capacity is taxed to the limit. The demand for
additional admissions is steady and will continue.” The
Board recommended an ambitious expansion program.
“[wjith a view of relieving the congested condition and
making suitable provisions for future admissions. FIRST
BIENNIAL REPORT OF THE BOARD OF COMMISSIONERS
OF STATE INSTITUTIONS TO THE GOVERNOR AND LEG-
ISLATURE OF THE STATE OF NEBRASKA FOR THE BIEN.
NIUM ENDING NOVEMBER 30, 1914. at 9 (1915).
Expanded institutions would be necessary partially
as a result of projected population increases for the state.
See id. They would also be the necessary result. however.
of a comprehensive program “submit|ted| for the serious
consideration of the Governor and the legislature” of test-
ing and registration which “would unquestionably re-
A-34/Nebraska
veal others who are feeble-minded and who ought not to
be returned to society.” Id. at 10.
Observing that “(t]he only effective measures to meet
these conditions are segregation and sterilization,” the
Board criticized the then current law: “but in our state
neither of these may be applied except as a voluntary
proceeding on the part of the legal guardian of the feeble-
minded person. . . . Itisnota proceeding by which afeeble-
minded person may be committed to nor detained in the
institution against the desire of the parent or guardian.”
Id. at 11. By amending the law, “the community is en-
abled to seclude those who cannot safety be allowed to
mingle freely with their fellows. We, therefore, recom-
mend that a statute, similar to those above mentioned, be
enacted by this state to provide that admission to the in-
stitution for feeble-minded be by order of commitment
entered by the county court of the proper county, after
due hearing and finding upon a petition filed by the hus-
band, wife, parent, guardian or other person standing in
loco parentis to the alleged feeble-minded person, or by
the superintendents, managers or trustees of any insti-
tution having such person in charge, or by the county
commissioners, county attorney, superintendent or prin-
cipal of schools, or a probation officer of the county in
which such alleged feeble-minded person shall reside.”
Id. at 11-12.
The legislature responded. enacting an amendment
on April 14, 1915, extending the list of people eligible to
initiate commitment proceedings to include “the county
commissioners, county attorney, any poor law official. any
superintendent or principal of schools, or any probation
or parole officer of the county of which such idiotic. im-
becile or feeble-minded person is a bona fide resident.
... and the superintendent or managing officer of anv
public or charitable institution having in charge any id-
iotic, imbecile or feeble-minded person.” 1915 Neb. Laws
294. ch. 131. “{[Djetention” was mandated if “it shall ap-
pear that the person named in the application is an idiot.
The Midwest/A-35
an imbecile or a feeble-minded person and that the best
interests of such person or the welfare of society require
that he be committed to said institution for the feeble-
minded.” Id. at 295.“It shall be the duty of said institu-
tion to receive all such idiotic, imbecile and feeble-
minded persons duly committed thereto and to detain
them therein, and to arrest and return any who may es-
cape therefrom.” /d.
Shortly thereafter, the lawmakers passed “AN ACT
to authorize the sterilization of feeble-minded.” whose
“children would probably become a social menace” and
“would be harmful to society.” 1915 Neb. Laws 554-55.
ch. 237. The act was not approved by the governor. but
became operative without his signature.
In 1921, the legislature changed the name of the in-
stitution from the “Nebraska _ Institution for
Feeble-minded Youth” to simply the “Nebraska Institu-
tion for the Feeble-minded,” in recognition of the aban-
donment of all age restrictions. 1921 Neb. Laws 843, ch.
241, § 1. “The objects of the institution shall be to pro-
vide custodial care and humane treatment for those who
are feeble-minded, to segregate them from society. to
ig to improve their condition, [and] to classify them.”
North Dakota. The Legislative Assembly of North
Dakota in 1903 adopted “AN ACT to Establish an Insti-
tution for the Feeble Minded.” to be “permanently main-
tained at or near the city of Grafton” for “all idiotic and
epileptic persons residents of this state.” 1903 N.D. Sess.
Laws 142, 143, ch. 108, §§ 1, 6. State Superintendent L.
B. Baldwin reported that it was “advisable that they be
placed in institutions of this character for life. A rela-
tionship exists between the forms of degeneracy. namely.
the criminal, the inebriate, the prostitute and the feeble
minded.” The view of state officials was that “to protect
posterity,” it was necessary to undertake “the gathering
of this great number of defectives into institutions and
colonies.” FIRST BIENNIAL REPORT OF THE NORTH Da.
A-36/North Dakota
KOTA INSTITUTIONS FOR FEEBLE MINDED AT GRAFTON
FOR THE PERIOD ENDING JUNE 30, 1904 TO THE GOV-
ERNOR OF NORTH DAKOTA 9-10 (1904).
In 1909, the Legislative Assembly promoted the per-
manent segregation of those committed by providing that
“any inmate of such institution shall not be removed
therefrom,” except by written application, and “said re-
quest must receive the approval of the superintendent
before such inmate can be removed.” 1909 N.D. Sess.
Laws 317-18, ch. 213, § 1.
In 1913, the legislature provided that “any feeble
minded person who is offensive to the public peace or to
good morals, and who is a proper subject for clussifica-
tion and discipline in the institution, may be commit-
ted” without consent. 1913 N.D. Sess. Laws 222. ch. 166,
§ 1. This provision was enacted as an emergency meas-
ure in view of “the fact that there is now no law for com-
pulsory commitment of feeble-minded persons obnox-
ious to the peace and good morals of the public.” Id. § 3.
The Legislative Assembly authorized the superin-
tendent to “admit to the institution temporarily. without
commitment, under such rules and regulations as the
Board of Administration may prescribe. for purposes of
observation, such children or adults as are suspected of
being feeble minded or idiotic. to ascertain whether or
not such person is actually mentally detective and a proper
case for care, treatment and training in an institudion tor
the feeble-minded.” 1921 N.D. Sess. Laws 123. ch. 64.
It was also made “the duty of the superintendent” to
“report quarterly to the Board of Examiners herein pro-
vided for. all feeble-minded” who were considered as hav -
ing “potential to producing off-spring. who. because of
inheritance of inferior or antisocial traits. would probably
become a social menace. . . .” 1927 N.D. Sess. Laws 433.
ch. 263, § 1. The Board would. following a hearing, “make
an order requiring such person to be sterilized.” Id. at
434. § 3. The purpose of the law was to “protect society
from the menace of procreation by said inmate.” Id. § 5.
The Midwest/A-37
Ohio. As early as 1857, the General Assembly of Ohio
established the “Ohio State Asylum for Idiots.” 1857 Ohio
Laws 190, 191.
In 1898, Ohio lawmakers established “a custodial de-
partment” for the “detention” of “idiotic and
ye yer So and adults,” 1898 Ohio Laws
.§1, an involuntary commitmen
cedure, id. at 211, § 6. iad —
In 1912, Superintendent E. J. Emerick called for in-
creased facilities. “If we could segregate these defectives
when they are young and keep them confined during their
natural lives, it would obviate the expense of having them
committed repeatedly to our penitentiaries when thev
grow older. Under our present plan they are sent to our
penal instituticas for a short term after committing some
crime, allowed to go out again, scatter their progeny. and
commit other crimes and depredations, only to be recom-
mitted time after time. . . . If we take these children into
our institution, brighten them up as best we can. and
turn them loose on the public, it has not only been a
<oad Ga tuienncbie bageny = Wea: Ther Sagreoeoinn
ury.” k, The tion
of the Defective in PROCEEDINGS OF ong yg
EDUCATION ASSOCIATION. 1912, at 1291-92 (1912).
Emerick and others continued the same theme for the
next several years. See E. J. EMERICK, THE PROBLEM OF
THE FEEBLEMINDED (1913); JUVENILE PROTECTIVE AS-
SOCIATION OF CINCINNATI, THE FEEBLEMINDED. OR.
THE HUB TO OUR WHEEL OF VICE (1915); M. SESSIONS.
THE FEEBLEMINDED IN OHIO (1918).
In 1919, the legislature established “an additional in-
stitution in the state for the custody, supervision. con-
trol, care, maintenance, and training of feeble-minded
opm to ——— “feeble-minded persons committed
custody care from any county i 4
1919 Ohio Laws 430. te ? Rae
South Dakota. South Dakota's first facility for the
segregation of retarded people was a department of the
A-38/South Dakota
rn Hospital for the Insane established as early as
1903. 1003 SD. Sess. Laws 169, ch. 101. In 1917, the
legislature enacted the state's first sterilization law, mak-
ing it “the duty” of the State Board of Charities and Cor-
rections to order the sterilization of “any of said inmates
[who] would produce children with a tendency to dis-
ease, feeble-mindedness, idiocy or imbecility. .. .” 1917
S.D. Sess. Laws 378-379, ch. 236, § 2. an
1921, the legislature passed an act “RELA y
TO THE SEGREGATION OF FEEBLE MINDED.
1921 S.D. Sess. Laws 344, ch. 235. The law created the
State Commission for the Control of the Feeble Minded
and empowered it “to make all necessary rules and reg-
ulations pertaining to the segregation, care and control
of feeble minded persons. ...” Id. §§ 1, 3. It was “the
purpose of this act to provide that all feeble minded per-
sons resident within this state shall become the wards of
the state and shall be kept segregated.” Id. § 2. In order
to enforce this mandate, the “state commission shall make
a survey of all state institutions and of the state generally
to ascertain the persons whom they believe to be feeble-
minded in order that said state commission may make
necessary complaints to the county commission. Id. at
344-45, § 5. Additionally. “[{ajll teachers were required
to “report all feeble-minded children coming to their at-
tention to the state board.” Id. at 345. This system of
outreach efforts to systematically segregate retarded peo-
ple became known nationwide as the “South Dakota
Plan.” and became a model for sirzular efforts in other
states. The legislation was decmed by the Commission to
“constitute a substantially laid foundation upon which to
erect the super-structure of a wise social and economic
administration of the feeble-minded problem.” STATE OF
SOUTH DAKOTA, SECOND BIENNIAL REPORT OF THE
COMMISSION FOR SEGREGATION AND CONTROL OF THE
FEEBLE-MINDED FOR THE PERIOD ENDING JUNE 30,
1928 To THE GOVERNOR 2 (1928).
The Midwest/A-39 -
The Commission proposed legislation to require the
“identification of all feeble-minded in the state and their
registration as a matter of record [,| ... a continuative
census |,] ... supervision and control by properly con-
stituted authorities [,]. . . [and] the operation of the ster-
ilization law and the anti-marriage law. In fact the law is
designed to give the defective the protection of the state.
and at the same time to protect the state against his so-
cial inadequacy.” STATE OF SOUTH DAKOTA, THIRD BI-
ENNIAL REPORT OF THE COMMISSION FOR SEGREGATION
AND CONTROL OF THE FEEBLE-MINDED FOR THE PE-
RIOD ENDING JUNE 30, 1930 TO THE GOVERNOR 3
(1930). The Commission warned that the proposed leg-
islation was necessary due to the large numbers of “feeble-
minded” who were “at large and uncontrolled by the
state.” Id. at 4.
On February 19, 1931, the comprehensive law re-
quested by the Commission was enacted. The term “fee-
ble minded” was broadly and vaguely defined to include
“all individuals, except the insane, who by reason of men-
tal deficiency are incapable of doing the work of the grades
in the public schools in a reasonable ratio to their years
of life; or who by reason of mental deficiency and other
associated defects are incapable of making the proper ad-
justments to life for one of their chronological age.” 1931
S.D. Sess. Laws 200. ch. 153. § 1. The Commission
drafted into the law its paramount “authority in all mat-
ters pertaining to the care, supervision..and control of all
feeble-minded persons in the State of South Dakota not
confined within the state school and home for the feeble
minded. Said commission shal] determine the conditions
under which such feeble minded persons shall be per-
mitted to remain outside of said institution: and when.
and under what conditions, commitment to such insti-
tution shall be required.” Jd. § 2. The Commission was
given “the duty” to “maintain a continuative census of
the feeble minded in the state. and all boards of educa-
tion, school principals. county superintendents of
A-40/South Dakota
schools, city school superintendents, and teachers, are
hereby specifically required to give said commission, or
its agents, such access as the commission, or its agents.
deem necessary to all school records, and to all children
within their control for purposes of examination. . . .” Id.
§ 3(a). Moreover, it was to “be the duty of all teachers,
city school superintendents and county superintendents
of schools” as well as “the duty of all doctors, nurses,
hospitals, penal and charitable institutions, county wel-
fare boards, public health officers, and public officers.
boards, or commissions within the State of South Da-
kota, to report to the state commission for the control of
the feeble minded the name. age. and residence of all
children believed by them to be feeble minded and also to
furnish whenever requested by the state commission for
control of the feeble minded any and all information
which they may have relative to the name, age, residence
and antecedents of any person believed to be feeble
minded.” Id. § 3(b), (c). “Sub-Commissions,” were es-
tablished in each county of the state “under the direct
authority of the state commission” with the “specific au-
thority” to “apprehend, examine, commit, establish
guardianships, transport, and maintain the custody of
any feeble minded person within their respective coun-
ties.” Id. at 200-01, § 4. “It shall also be the duty of each
sub-commission to declare to be feeble minded all of those
persons whom the sub-commission, or whom a majority
of the members of such sub-commission. find upon in-
vestigation and examination to be feeble minded; and
forthwith to commit such feeble minded to the supervi-
sion and control of the state commission. . . .” Id. at 201.
§ 6.
This legislation, according to the Commission.
“would serve the purpose of securing control and super-
vision of all the feeble-minded outside of institutions in
the State.” STATE OF SOUTH DAKOTA. FOURTH BIEN-
NIAL REPORT OF THE COMMISSION FOR SEGREGATION
AND CONTROL OF THE FEEBLE-MINDED FOR THE PE-
The Midwest/A-41
RIOD ENDING JUNE 30, 1932 To THE GOVERN
(1932). “[T]he Commission was thoroughly heal
that the great problem of feeble-mindedness lay in that
large group of feeble-minded outside of institutions,”
who were “scattered throughout the population” and “in
possession of all the rights and liberties of normal peo-
ple.” Id. The Commission found that most of “the feeble-
minded were at large and uncontrolled by the State,” id..
but that would change: “To have control there must be:
ist, Identification; 2nd, Examination; 3rd, Registration;
4th, Supervision; 5th, Prevention (of marriage): 6th, Ster-
ilization. The new law is designed
ments.” Id. signed to fulfill these require-
Commission personnel “were sent into the vario
counties and through contact with the schools. adiiean
boards, health officers, social agencies, physicians,
nurses, and public agencies of every kind, sought to lo-
cate every possible feeble-minded individual.” Id. at 9.
Two years later, the Commission reported “
; th
number who have been committed to the it esa
_ Sion, those who are segregated in the institution and those
who have been sterilized, are now all under State Con-
trol.” STATE OF SOUTH DAKOTA. FIFTH BIENNIAL RE-
PORT OF THE STATE COMMISSION FOR THE CONTROL OF
THE FEEBLE-MINDED For THE PERIOD ENDING JUNE
30, 1934 TO THE GOVERNOR 5 (1934). The Commission
complained, though, that the state’s sterilization law was
“much too complicated and achi
Mercy 7 cumbersome to achieve the
The legislature agreed, enacting legislation t
lowing February giving each Sicl>Countitintan. “reel
ing a hearing, “the power to make an order for the ster-
ilization of any feeble-minded person found within its re-
spective county. . . .” 1935 $.D. Sess. Laws 163. ch. 113
§ 1. A petition for sterilization could be “filed with the
Chairman of the Sub-Commission of the County in which
A-42/South Dakota
the person believed to be feeble-minded is found,” by
‘oun menadil of the County in which such person may
. oe
" Thebes th Dakota Plan” was in effect in similar form
at least through 1968. See STATE OF SOUTH DAKOTA.
TWENTY-SECOND BIENNIAL REPORT OF THE STATE
COMMISSION FOR THE MENTALLY RETARDED FOR THE
PERIOD ENDING JUNE 30, 1968 TO THE GOVERNOR
agg; Smee Public support in Wisconsin for segre-
gation of retarded people did not begin in earnest until
the 1890s. Among those lobbying for the establishment
of an institution, through a state-wide petition drive, were
the Board of Health, the Federation of Women’s Organ-
ization, and the State Teachers Association. One such
petition, signed by the léading citizens of Washburn
County in 1891, called for the building of an institution
“for the feeble-minded, who are a constant menace to the
good order of society, and to social and domestic safety
and tranquility. . . .” Quoted in A. RUGG. ONE HUNDRED
YEARS OF PUBLIC CARE FOR PEOPLE WITH MENTAL RE-
TARDATION IN WISCONSIN 8 (1983).
Dr. J. H. McBride, a member of the Wisconsin Con-
ference of Charities and Corrections, stated the popular
belief that retarded children should be removed from the
family: “That an idiot child is, with its repulsive appear-
ance and disorderly habits, a demoralizing association
for brothers and sisters, a thing that would seem to go
without saying. Daily experience with the course and
rude behavior of an idiot is an experience that must, of
necessity, be seriously injuring to young and tender na-
tures.” PROCEEDINGS OF THE WISCONSIN CONFERENCE
OF CHARITIES AND CORRECTIONS 118 (1890).
In 1895, the legislature established “The Wisconsin
Home for feeble-minded.” 1895 Wis. Laws 280. ch. 138.
§ 1. The facility was for “{ajll feeble-minded, epileptic
and idiotic persons, residents of the state.” Id. at 241. § 4.
The law was amended in 1897, to provide that “when-
The Midwest/A-43
ever it shall appear that any feeble-minded female of child-
bearing age is, by reason of her condition, a menace to
society, it is the duty of the supervisor to bring the person
before the county judge... .” 1897 Wis. Laws. ch. 360.
§ 1...
In his first biennial report, Superintendent Alfred W.
Wilmarth requested of the legislature increased appro-
priations for additional dormitories in order to “purge so-
ciety and obstruct the increase of feeble-mindedness.”
WISCONSIN BOARD OF CONTROL. BIENNIAL REPORT 321
(1898). What training that was provided focussed upon
“educating the child as a useful member of the institu:
tional community where he will always live.” WISCON.
SIN BOARD OF CONTROL, BIENNIAL REPORT 356 (1904).
Indeed, Superintendent Wilmarth complained in his re- :
port of the “annoyance ... created by friends of some
children who demand their release when they are en-
tirely unfit to go into general society.” Id. at 376.
By 1912, state officials were reporting that the work
of the institution basically “consist{ed] of separatin
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.