# Amicus Curiae Brief — Olmstead v. LC > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0236%3A20 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1999 - **Citation:** 527 U.S. 581 ## 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 §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 separating them from society, feeding, and clothing them.” WISCONSIN BOARD OF CONTROL. BIENNIAL REPORT 20 (1912). That same year, “the Board of Control was directed not to con- sider ‘paroling’ anyone who ‘might’ become a menace to the community.” /d. A Visiting Committee of the legislature endorsed the continuation and extension of this approach and, in ad- dition, urged the enactment of a sterilization law because of the “present danger to the race.” Report of the Legis- lative Visiting Committee, SENATE JOURNAL 263 (48th Leg. Sess.). In 1913, the legislature authorized the ster- ilization of residents of the institution for whom it was found “that procreation is inadvisable.” 1913 Wis. Laws 972, ch. 693, § 3. The same day, the lawmakers made room for the incarceration of more “feeble-minded” by establishing a second institution. Id. at 963, ch. 689. § 1. It was needed since the population of the Home for the Feebleminded increased from 394 to 1060 in the period A-44/Wisconsin 1900-1920. WISCONSIN BOARD OF CONTROL. BIENNIAL REPORT 290 (1920). Southern States Alabama. On September 29, 1919, the legislature of Alabama established “The Alabama Home” for “mental inferiors.” 1919 Ala. Acts 738, No. 568, § 2. a. “{DJeclared to be menial inferiors or deficients, or feeble-minded” by the legislature for purposes of con- finement at the Home were “[aljll persons of whatever age, who are deficient or inferior to the extent of being classed in either of the following groups of the feeble- minded: That is to say, idiots, imbeciles, feeble-minded or morons, and any of whom may be, or may not be ep- ileptics, but not violent or insane.” Id. at 739, § 7. The terms “feeble-minded” and * men- tal inferior or deficient” were defined in the act to “in- clude every person with such a degree of mental defec- tiveness from birth, or from an early age that he is unable to care for himself and to manage his affairs with ordi- nary prudence, or that he is a menace to the happiness or safety of himself or of others in the community, and requires care, supervision, and control either for his own protection or for the protection of others.” Id. 3 The courts were given “the power and authority to commit such person to the Home notwithstanding the family or relatives may object thereto.” Id. at 740. § 9. The same enactment also instructed the operators of the Alabama Home, that. if “they-deem it advisable they are hereby authorized and empowered to sterilize any inmate.” Id. § 13. The law provided that “(t|}he Superintendent must not grant a parole to any inmate unless he is of the opin- ion that it will not be detrimental to such inmate or to society, and the Superintendent must recall said parole whenever he is satisfied that the welfare of such paroled The South/A-45 inmate, or of the community to which said inmate is pa- roled requires it.” Id. § 14. Arkansas. Arkansas’ institution “for the Feeble-Minded” was created by an act of the iegislature on March 6, 1917. 1917 Ark. Acts 942. The law broadly defined “feeble-minded” for the pur- poses of confinement at the institution “to include all degrees of mental defect due to arrested or imperfect men- tal development. Those feeble-minded persons possess- ing approximate mental development not to exceed that of a normal child of three, shall be classed as ‘idiots:’ those approximately of the mentality of children from four to seven, inclusive, shall be known as ‘imbeciles:’ and those approximately with the mental development of normal children from eight to twelve, inclusive, shall be known as ‘morons.’ Id. § 11. Florida. In 1919, the Florida Legislature, noting “an alarming state of facts” in a report submitted to it by a committee appointed by the governor (see 1915 Fla. Laws 263. ch. 6920). and further noting “(from the findings of the said Committee there can be no doubt that there should be established and created in this State an Insti- tution for the care of Epileptic and Feeble-Minded. where they can be segregated.” established the “Florida Farm Colony for Epileptic and Feeble-Minded.” 1919 Fla. Laws 231. ch. 7887, preamble & §. 1. The Colony was founded “to the end that these un- fortunates may be prevented from reproducing their kind. and the various communities and the State at Large re- lieved from the heavy economic and moral losses arising by reason of their existence.” Id. § 8. Its purpose was “tor the segregation” of the “feeble-minded.” [d. Georgia. On August 19, 1919, the General Assembly of Georgia passed “An Act to establish in the State of Georgia an institution to be known as the ‘Georgia Train- ing School for Mental Defectives."” 1919 Ga. Laws 377. No. 373. The institution was ordered built “as soon as A-46/Georgia possible” for all “defectives” who “constitute menaces to themselves or the community.” Id. § 1. The statute mandated that “preference in admission shall be given to children and women of child-bearing age,” but the institution was open to any “defective” who “constitutes a menace to the happiness of himself or of others in the community” who were “not insane or of unsound mind.” Id. at 379, § 3. The institution opened in 1921. A year later, its first superintendent, George H. Preston, M.D., complained that the facility was “not large enough to fulfill the de- mands made of it." ANNUAL REPORT OF THE GEORGIA TRAINING SCHOOL FOR MENTAL DEFECTIVES, GRACEWOOD GEORGIA 4 (1922). According to the Re- port, “the fact of primary importance to remember is that a defective child will be a defective adult, and will die a defective. There is not a philosopher's stone to turn the base m cls of defect into gold.” /d. The Jeorgia legislature enacted the state's first ster- ilization law, “for the protection of ... future genera- tions,” in 1937. 1937 Ga. Laws 414, No. 5. Louisiana. The “State Colony and Training School” was established by the Louisiana legislature in 1918 as “an institution especially provided for the feeble-minded persons of the state of Louisiana.” 1918 La. Acts, No. 141, § 1. A“ [fleeble-minded” person was defined as “any person afflicted with mental defectiveness” who “requires supervision, control and care for his own welfare, or for the welfare of others, or for the welfare of the commu- nity, who is not classifiable as an insane person.” /d. § 2. “When any person residing in this state shall be sup- posed to be feeble-minded,” and “it is unsafe and dan- gerous to the welfare of the community for him to be at large without supervision, control, and care, any relative, guardian or conservator or any reputable citizen of the parish in which such supposed feeble-minded person re- sides” was authorized to seek that person's commitment to the state colony. Id. § 11. The law required “the guid- The South/A-47 ing and controlling thought of the court throughout the proceedings” to be not only “the welfare of the feeble- minded person” but also “the welfare of the community.” Id. § 15. Mississippi. On April 3, 1920, the Mississippi Leg- islature passed “AN ACT to provide for the establishment and maintenance of the Mississippi School and Colony for the Feebleminded . . . [and] to prevent the multipli- cation of feebleminded criminals and paupers.” 1920 Miss. Laws 288, ch. 210. The law included in its defi- nition of “feebleminded” those who “constitute menaces to the happiness or safety of themselves or of other per- sons in the community, and require care, supervision and control either for their own protection or for the protec- tion of others.” Id. §2. The enactment was based upon the legislative finding that “the greatest danger of the feebleminded to the community lies in the frequency of the passing on of mental deficiency from one generation to another, and in the consequent propagation of crim- inals and paupers.” Id. at 289. “{A] sufficient acreage of the Rankin County state convict farm” was ordered se- lected and improved “as soon as practicable” for the es- tablishment of the Mississippi Colony, bearing in mind the desirability of a large tract of land to provide for the growing demands of said institution.” /d. at 290, §8. The “Plan of the Mississippi Colony” was to provide “the most economical production of shelter. with the necessary dis- tribution of heat, light and food, at the same time secur- ing the isolation and segregation required.” Id. at 291. §9. The chancery courts were given jurisdiction over “all cases of legal inquiry in regard to feeblemindedness. in- cluding idiocy, imbecility, and the higher grades and va- rieties of mental inferiority which render the subjects un- fit for citizenship.” Id. at 294, §17. Application for com- mitment could be made “|a]t any time” by “any relative” to the clerk of the court, “but if the relatives of anv fee- bleminded person shall neglect or refuse to make appli- A-48/Mississippi cation to the clerk of the chancery court to have him ad- judged feebleminded. and shall permit him to go at large. the clerk of the chancery court shall, on the application. in writing and under oath, of a citizen of the county in question, issue a summons to the sheriff to summon the alleged feebleminded person and his parent, guardian, or next friend to contest the application.” Id. An order of commitment was to issue if the court “shall be satisfied that the person is feebleminded, and that for the safety or happiness of the feebleminded himself. or for the safety or happiness of other persons in the community. he should be committed to the Mississippi Colony.” Id. at 297, §23. The legislature later authorized “the operation of ster- ilization” to be performed “whenever” the Mississippi Colony’s superintendent “shall be of the opinion that it is for the best interests of the patients and of society that any inmate of the institution under his care should be sexually sterilized,” 1928 Miss. Laws, ch. 294, §1 (em- phasis provided), and that the board of trustees of the Colony “shall find that the said inmate” is “feeble minded or epileptic, and by the laws of heredity is the probable potential parent of socially inadequate offsprings like- wise afflicted, that the said inmate may be sexually ster- ilized without detriment to his or her general health. and that the welfare of the inmate and of society will be pro- moted by such sterilization.” Id. at 372. §2. North Carolina. The General Assembly of North Car- olina in 1911 established the “North Carolina School for the Feebleminded” for all persons “idiotic and feeble- minded six vears of age and upward.” 1911 N.C. Sess. Laws 256, ch. 87, §1. The clerk of the county court was authorized to order commitment “|w|henever it is made to appear” that “any person resident in said countv” was “a fit subject” for institutionalization. Id. at 257. §4. By a 1915 amendment. the General Assembly authorized commitment proceedings for children to be brought by. in addition to a parent or guardian, “third. by a guardian The South/A-49 duly appointed; fourth, by the superintendent of any county home, or by the person having the management of any orphanage, association, charity, society, children’s home workers, ministers, teachers, or physicians. or other institutions where children are cared for. Under items third and fourth, consent of parents, if living, is not re- quired.” 1915 N.C. Sess. Laws 337-38. ch. 266, §3. According to state officials, “the aim of the institu- tion” was “to segregate” all of “the state's mental detec- tives.” THIRD BIENNIAL REPORT OF THE CASTLE TRAIN. ING SCHOOL, KINSTON. N.C.. FOR THE YEARS 1915-1916, at 13 (1916). * {If for a period of two or three generations mentally defective men and women were pre- vented by segregation or sterilization from propagating their kind, menta! deficiency would be very materially decreased... .” Id. at 14. By 1923, the General Assembly had authorized the commitment of “feeble-minded and mentally defective persons of any age when in the judgment of the officer of public welfare and the board of directors of said insu- tution it is deemed advisable.” 1923 N.C. Sess. Laws 223. ch. 34, §2. | Under 1929 legislation, the superintendent of the in- stitution was “hereby authorized and directed to have the necessary operation for asexualization or sterilization per- formed upon any mentally detective or teeble-minded 1n- mate or patient thereof. as may be considered best in the interest of the mental. moral. or physical improvement ot the patient or inmate. or for the public qoud.” 1929 N.C. Sess. Laws 28, ch. 34. §1. Oklahoma. The Oklahoma legislature established the “Oklahoma Institution for the Feeble-minded™ in 1909, for “all imbecile and idiotic persons of whatever state who are not insane.” 1909 Okla. Sess. Laws 534-35. 536, ch. 34, art. 2. §§1. 4. Application for a commitment could be made bv the father or mother. or: “Third: By a guardian duly appointed. Fourth: Bv the superintendent of any county alms house. Filth: By the persons having A-50/Oklahoma the management of any institution or asylum where chil- dren are cared for. Sixth: By the trustees of any township in Oklahoma. Under the items ‘Three,’ ‘Four,’ ‘Five,’ and ‘Six’ above, the consent of parents is not required.” Id. at 538, §8. In 1931, the legislature authorized the superintend- ent of the institution to sterilize those “afflicted with” such conditions as “idiocy” or “imbecility.” 1931 Okla. Sess. Laws 80, ch. 26, art 3. South Carolina. On February 12, 1918, the General Assembly of South Carolina passed “AN ACT to Estab- lish the State Training School for the Feeble-minded, and to Provide for Its Government and Maintenance.” 1918 S.C. Acts 729, No. 398. Once the facility was built, the “Board of Regents shall notify the Governor, who shall thereupon by proclamation, declare the said Training School for the Feeble-minded ready to receive patients.” Id. at 731, § 9. The term “feeble-minded persons” was defined to mean “any moron, imbecile or idiotic person, of whatever grade, who is afflicted with mental defectiveness from birth or from an early age, so pronounced that he is in- capable of competing on equal terms with his normal fellows or of managing himself or his affairs with ordi- nary prudence, and who, therefore, required custodial care and training for his own protection and for the wel- fare of others and of the Community, but who is not in- sane or of unsound mind. . . .” Jd. at 731-32, § 10. Institutionalization proceedings could be initiated by “any reputable citizen of this State” by filing “a petition in writing, setting forth that the person therein named is feeble-minded” and that it was “unsafe or dangerous to the welfare of the community for such person to be at large... .” Id. at 733, § 13. State officials reported candidly to the General As- sembly that the name of the facility was a misnomer since they “continue to forego” the provision of anv “training of mental defectives” but “devote our efforts mainly to seq- The South/A-31 regating and giving physical care to as large a number as possible... ." FIFTH ANNUAL REPORT OF THE STATE TRAINING SCHOOL FOR THE FEEBLEMINDED. CLINTON. S.C., 1922, at 3 (1923). As stated by Dr. B. O. Whitten, the Superintendent of the institution, “[i)m almost every instance the propa- gation of this element of society results in grief and dis- appointment to the persons in question and will scarcely ever operate in any way which can be expected to pro- mote happiness or even Anglo Saxon liberty.” SIXTH AN- NUAL REPORT OF THE STATE TRAINING SCHOOL FOR THE FEEBLEMINDED, CLINTON. S.C., 1923, at 12 (1924). In 1935, the legislature authorized the “sterilization of mental defectives.” 1935 S.C. Acts 428, No. 304. Tennessee. On April 14, 1919, the General Assem- bly of Tennessee passed “An Act to provide for the pro- tection, care, control, oversight, custody, maintenance and training of feeble-minded persons; to define who are feeble-minded within the meaning of this Act; and for the establishment, construction and maintenance of the Tennessee Home and Training School for Feeble- Minded Persons.” 1919 Tenn. Pub. Acts 561. ch. 150. The Act applied to “any person with such a degree of mental defectiveness” as to be “a menace to the happi- ness or safety of himself or of others in the community” who “comprise those commonly called idiots. imbeciles. and morons or high-grade feeble-minded persons” and who “may or may not be subject to epileptic seizures.” /d. § 2. “Any relative of a feeble-minded person may make application to have the person so adjudged: but if the relatives and friends of any feeble-minded person shall neglect or refuse to place him or her in the Tennessee Home and Training School for Feeble-Minded Persons. or in a private institution for the feeble-minded. and shall permit him or her to go at large, then any reputable per- son being a resident of the county in which such teeble- minded person is found may make application for com- A-52/Tennessee mitment in writing and under oath to any one of the courts of his county, as above mentioned and shall not be sub- ject to exception or demurrer for defects of form.” Id. at 564, § 4. It was “the special duty of every county health officer and of every County Superintendent of Education in the State to file application for the commitment of feeble-minded persons whose parents or guardians ne- glect such duty. . . whenever such officer shall have rea- sonable cause to believe that such commitment is nec- essary to secure the welfare of such feeble-minded per- sons or of those persons with whom they come in con- tact.” Id. § 5. State officials acknowledged the legislation as a nec- essary enactment since “|o}f course. all will agree that there are very many feeble-minded in the State of Ten- nessee who have never gotten into one of the State in- stitutions and are more or less a menace and burden to their respective communities.” 1 Q. REP. ST. INSTITU- TIONS 30-31 (1919). Texas. Texas became the first southern state to seg- regate its retarded citizens when it opened in 1904 a spe- cial unit of the State Epileptic Colony, for “idiotic. im- becilic, and feeble-minded epileptics.” Gaver, Mental Re- tardation, in MENTAL ILLNESS AND MENTAL RETARDA- TION: THE HISTORY OF STATE CARE IN TEXAS 20. 22 (1976). In 1912. the Texas Conference on Charities and Cor- rections, which had been organized the previous vear. presented in the last address of its annua! conference a. call by Professor Bird T. Baldwin of the University of Texas for an institution for the state's “mental detectives. who are contaminating society by their presence. absorbing time and thought that should be devoted to normal chil- dren. and later filling the almshouses. charitable insti- tutions, and prisons with illegitimate and irresponsible offspring.” Baldwin, The Causes. Prevention and Care of Feeble-Minded Children. in PROCEEDINGS OF THE STATE CONFERENCE OF CHARITIES AND CORRECTIONS AT ITS The South/A-53 SECOND ANNUAL MEETING HELD AT WACO. APRIL 14-16, 1912, at 86 (1912). According to Professor Baldwin, these “mental defectives or feeble-minded, who are by-products of unfinished humanity, belong in an institution where they may be cared for. made happy. and to some extent useful. They should be segregated and not allowed to go to our schools with normal chil- dren and should not be permitted to have offspring.” Id. at 87-88. The following year, the legislature heeded the call bv enacting a bill establishing an institution for the “feeble- minded,” but it was vetoed by the governor. apparently on budgetary grounds. This prompted a more concerted effort, again led by the State Conference on Charities and Corrections. Dr. C. S. Yoakum, Secretary of the State Conference, wrote a 156-page monograph calling for the enactment of this legislation. C. S. YOAKUM, CARE OF THE FEEBLE-MINDED AND INSANE IN TEXAS, BULL. U. TEX.. NO. 369 (Humanistic Ser. No. 16, Nov. 5. 1914). The monograph called for the removal of “defectives” from the family since “|i]n a home where there is one feeble-minded child among a number of children. we have the definite effects of such communication. To be sure, we recognize the increase in sympathetic under- standing that children and parents exercise toward such feeble-minded children; but these moral and social traits are infrequently developed and far overbalanced by the amount of time and energy required to care for such a child. especialiy if he be of the low grade imbecile or id- iotic type. One writer states that we mav figure without error that the time of one adult is needed for the care of every feeble-minded or low grade imbecile child or adult. In a custodial institution five of these defective children or adults may be cared for bv a single attendant in a much better manner and with much better results than in the home. We are. then. by sending such children to insti- tutions provided for their care. relieving four out of everv five of the normal adults now busied in caring for such A-54/Texas defectives, for the economic and business life of the nor- mal community.” Jd. at 44-45. Moreover, “|ijt is certain that the feeble-minded girl and boy are often the bearers of many of the social diseases, and it is especially true that feeble-minded girls are, in the large majority of cases, the inmates of our houses of prostitution.” Thus, “the effect upon the community of the single individual of this type is bad in the extreme in so far as the social, eco- nomic, and moral ideals of that community are con- cerned.” Id. at 45, 46. According to Professor Yoakum, “|t|}he only safe pro- cedure is custodial and institutional care throughout life for the great majority. ... Sterilization laws and other ’ means of prevention must for years to come be secondary to this solution of the problem. Id. at 66. The monograph set forth an extensive comparison of the various remedies to the “problem.” “Restrictive mar- riage laws and customs are important, and educative, but fail to reach the irresponsible and degenerate till too late. The ‘socially inadequate’ are so named just because they are without the influence of law and order. Eugenic ed- ucation, better environment, and systems of matings pur- porting to remove defective traits do not affect the im- pure blood and inheritable factors with the surety nec- essary to eliminate defects. Laissez-faire or natural se- lection, euthanasia, neo-malthusianism, and polygamy are either impossible under the protective forces of mod- ern social conditions or are ideas repugnant to present- day ideals of religion and humanity.” Of all the solutions. “(t]he evidence so far collected points toward segregation {emphasis in the original] as the most feasible. most eas- ily put into force, and least subversive of constitutional prerogative.” Id. at 82. Yoakum quoted a report prepared by his parent or- ganization to demonstrate the folly of the early approach taken by schools in the East: “A word to the West!.. . New States and communities should equip themselves properly to attack these problems, and should make their The South/A-55 plans on the basis of complete control. Had the States of the East followed this method during the last fifty vears their burdens would be only a fraction as great as they now are.” Id. at 17, quoting REPORT OF THE COMMITTEE ON PUBLIC SUPERVISION AND ADMINISTRATION TO THE NATIONAL CONFERENCE OF CHARITIES AND CORREC- TIONS, SEATTLE, 1913, at 194 (1913). The bulletin con- cluded by stressing “the necessity for custodial care and oversight for all feeble-minded,” through the enactment of legislation to “open|]| the door of the institution to all feeble-minded of the State... .” Id. at 80. 83. The State Conference meeting in San Antonio in No- vember, 1914, presented additional papers. One con- cluded that “idiots” have “no economic value, and their care can only remain so much of a dead load upon so- ciety, whether cared for in a home or in an institution. They are, however, less expense in an institution than in the home, poor farm or asylum.” Kelley, The Colony Plan for the Care of the Feeble-Minded, 2 BULL. TEX. ST. CONF. CHARITIES & CORRECTIONS 57, 48 (1915). Another con- cluded that “|flor the actual idiot there is. or should be. no question as to procedure. The disease indicates its own remedy. The next legislature should make an ap- propriation for a permanent institution, in which these its most unfortunate citizens could be permanently seg- regated.” Smith, The Feeble-Minded Girls in the Virginia K. Johnson Home, in id. at 61, 62. Four months later, state representatives Ice Berg Reeves and D. S. McMillan had no difficulty convincing the legislature to reenact their H. B. No. 73, “An Act to provide for the establishment and maintenance of a State Farm Colony for the feeble-minded.” 1915 Tex. Gen. Laws 143, ch. 90. With Governor Jim Ferguson's signa- ture on the bill on March 22. 1915, Texas provided for “custodial care” for all of “the feeble minded of the State” to the end that these unfortunates may be prevented from reproducing their kind and society relieved of the heavy economic and moral losses arising from the existence at A-56/Texas large of these unfortunate persons.” Id. §§ 1, 2. The col- ony opened on October 31, 1917. Gaver, supra at 24. State officials, led by Superintendent J. W. Bradfield. urged the legislature to make it easier to populate the institution: “The female can, under the faulty labor con- ditions of today, make a living for a while, but she is, as a rule, quite unmoral, and makes no effort to protect her- self. Her children, usually illegitimate, must, as degen- erates, criminals, or defectives, eventually become wards of the State. The male moron is also a potential criminal. and is the class from which inmates for our jails and re- formatories are recruited. Their segregation and control, through life, is the remedy. This can be obtained only by legally committing them to an institution where they can be kept permanently.” In order to resolve this “most se- rious problem,” he “urge[d] the enactment of an ade quate commitment law.” Bradfield, Report of Superin- tendent, State Colony for Feebleminded, in FIRST AN- NUAL REPORT OF THE STATE BOARDOF CONTROL TO THE GOVERNOR AND THE LEGISLATURE OF THE STATE OF TEXAS, FISCAL YEAR ENDING AUGUST 31, 1920, at 147 (1921). The legislature responded favorably. enacting, by a unanimous vote, an act establishing a special “court for the feeble-minded” in each county. 1923 Tex. Gen. Laws 172, ch. 82, § 1. Authority was given to “/a/ny person who is a resident of the county having knowledge of a person in his county who appears to be feebleminded”™ to petition to institutionalize that person. Id. § 2. “It shall be sufficient, if the affidavit shall be upon information and belief.” [d. at 173. A hearing would then be scheduled bv the court's issuance of an order “to show cause, if any, why such person should not be declared by said court to be feebleminded. . . .” That order also was deemed to “be sufficient authority to the sheriff or any constable of the county to bring such feebleminded person before the court for such hearing.” Id. § 3. A jury could be de- manded. Id. § 1. The finder of fact then “shall investigate The South/A-357 the facts and ascertain whether such alleged feeble- minded person is such.” Id. § 4. “If it be found bv the court or jury that the alleged feebleminded person is such. the court shall enter its order so adjudging him. and that he be committed to the custody of the State Coloney [sic| for the Feebleminded,” id. § 5, and “{ajll persons here- tofore or hereafter committed or admitted to such insti- tution shall remain in its custody as permanent ward of the State until released by the management thereof.” id. at 174, § 6. As a result of the state’s encouragement, the “de- mand for entrance into this institution... steadily continue|d] over our accommodations.” THIRD REPORT OF THE STATE BOARD OF CONTROL TO THE GOVERNOR AND THE LEGISLATURE OF TEXAS. COVERING PERIOD FROM SEPTEMBER 1, 1924, TO AUGUST 31, 1926. at 9 (1927). According to Superintendent Bradfield “|t|his pe- riod has been marked by considerable growth of the in- stitution, and we feel that we are now much better pre- pared to be of real service to the State. . . . These addi- tions represent a healthy growth and encourage us in the belief that proper provision for the feeble-minded of the State is now being recognized as an absolute necessity.” Bradfield, Superintendent's Report. in id. at 137, 138. In the same report, the Board of Control reported candidly ro gp gag institution is, of course, purelv custodial. . . .” . at 9. Virginia. On March 20, 1914, the General Assemblv of Virginia enacted a law directing the State Board of Charities and Corrections to “investigat({e] . . . the ques- tion of the weak-minded in the State, other than insane and epileptic, and to report to the General Assembly of nineteen hundred and sixteen a comprehensive. practi- cal scheme for the training, segregation and the preven- tion of the procreation of mental defectives.” 1914 Va. Acts 242, ch. 147, § 1. Under the direction of its chair- man, S. C. Hatcher, the Board published in 1915 a 128- page compilation of studies, recommendations, and pro- A-58/Virginia posed legislation under the title of THE MENTAL DEFEC- TIVES IN VIRGINIA: A SPECIAL REPORT OF THE STATE BOARD OF CHARITIES AND CORRECTIONS TO THE GEN- ERAL ASSEMBLY OF NINETEEN SIXTEEN ON WEAK- MINDEDNESS IN THE STATE OF VIRGINIA TOGETHER WITH A PLAN FOR TRAINING, SEGREGATION AND PRE- VENTION OF THE PROCREATION OF THE FEEBLE- MINDED. A letter of transmittal from Chairman Hatcher to Gov- ernor Henry Carter Stuart accompanying the report stated that “the corrupt fruits of mental degeneracy in any community wiil disappear in proportion to the re- duction of feeble-mindedness in that community .. . the most urgent need in the work of reducing degeneracy is the elimination of the feeble-minded.” Id. at 5. Quoting approvingly eugenicist C. B. Davenport, Chairman Hatcher recommended that “ ‘{i]f the State were to seg- regate its feeble-minded, were to examine for mental de- fects all immigrants settling in its borders, and were to deport those found to be defective, there will be a con- stantly diminishing attendance at State institutions for the feeble-minded, and at the end of thirty vears there would be practically no use for such institutions.’ ” Id. The official report detailed numerous “case studies” to support its recommendations. For example, one such “feeble-minded” case “with certain facial lines make one feel that he is not far removed+from the brute, and is perhaps cruel with the unconscious cruelty of an ani- mal.” Id. at 20. Another case “ha[d] not even the glim- merings of intelligence manifested by some of the lower forms of animal life.” Id. at 41. Another had a wife who was already committed “in a suitable institution, but it seems a pity that the man, who is lower grade mentally than his wife, though not so much of a menace cannot be segregated instead of being allowed to run at large. A larger and more adequate colony would remedy this.” Noting that “the civilized nations of the earth are awak- ened to the menace of feeble-mindedness, and are taking The South/A-59 steps for the elimination and prevention of this evil. the report stated “that the principal things to be sought are identification and control, with the object finally of elim- ination; and so we will have to rely largely on segrega- tion and education for the prevention of feeble- mindedness.” Jd. at 17. “[T]he main idea is to keep them healthy, happy, and out of mischief. [W]e must take our mental defectives back to the soil to get the best results.” The report recommended that “the State should have au- thority to segregate and to detain mentally defective per- sons under proper conditions and limitations. This is in the nature of an indeterminate sentence, and is at the basis of the law which provides that the superintendent of the Virginia Colony for the Feeble-minded shall have authority to hold mentally defective persons as long as he pleases, and discharge such persons when he pleases. .. .” Id. at 114. In terms of those “at large,” the State Board proposed that it “be empowered” to “have charge of the registration of the mentally defective per- sons of the Commonwealth” and to “have supervision of the care of such persons pending admission to institu- tions.” Id. Additionally, “whenever, in the opinion of the said Board and the Division Superintendent of Schools. a child has proven to be a mental defective, the said Board should have authority, in its discretion, to transfer such child to the State School for the Feeble-minded.” Jd. at 117. The General Assembly responded positivelv to the report, enacting the following March “An ACT to define feeble-mindedness and to provide for the examination. legal commitment, and the custody and care of feeble- minded persons, and their segregation in institutions.” 1916 Va. Acts 662, ch. 388. In 1924, the General Assembly passed “An ACT to provide for the sexual sterilization of inmates of State institutions.” 1924 Va. Acts 569, ch. 394. This law, the constitutionality of which was upheld by the Supreme Court in Buck v. Bell, 274 U.S. 200 (1927), provided that A-60/Virginia “whenever the superintendent” of “the State Colony for Epileptics and Feeble-Minded, shall be of opinion that it is for the best interests of the patients and of society that any inmate of the institution under his care should be sexually sterilized. such superintendent is hereby au- thorized to perform, or cause to be performed by some capable physician or surgeon, the operation of steriliza- tion on any such patient confined in such institution af- flicted with hereditary forms of insanity that are recur- rent, idiocy, imbecility. feeble-mindedness or epilepsy.” 1924 Va. Acts 569. § 1. The law was enacted. in part. for “the welfare of society.” Id. (preamble). The law pro- vided for an appeal to a special board. but such appeal was to be dismissed if it be found that the “feeble-minded” resident was “the probable potential parent of socially inadequate offspring likewise afflicted” and that “the welfare of the inmate and of society will be promoted by such sterilization. .. .” Id. at 570, § 2. West Virginia. In 1917, Governor Henrv D. Hatfield first called for the erection of “an institution” which would “provide for the detention and care of many feebleminded persons now at large and would assist in solving the prob- lem in this state in preventing the multiplication of such class.” Second Biennial Message of Governor H. D. Hatfield to the Legislature (1917) in STATE PAPERS AND PUBLIC ADDRESSES OF HENRY D. HATFIELD 77 (n.d.) “If such an institution should be authorized by the legislature, lands should be purchased to the extent of 500 acres upon which the institution should be erected. This would result in the institution becoming nearly self- supporting because of the fact that practicallv all of the inmates are able bodied and could perform anv ordinarv labor under competent supervision.” Id. at 76-77. In 1921, the Legislature of West Virginia created for “mental defectives” a state institution to be known as the “West Virginia Training School,” for “any person” who “because of mental defect is a menace to the happiness and welfare of himself or herself or of others in the com- The West/A-61 munity, and therefore requires care, training or control for the protection of himself or herself or of others, and yet who is not insane. This type of persons, commonly classed as feeble-minded, including idiots, imbeciles and morons, shall be known and designated as mental defec- tives for the purposes of this act. Should the school at any time not be able to accommodate all persons of such class offered for admission, preference in admission shall be given to children and women of child-bearing age.” 1921 W. Va. Acts 479-80, ch. 131, §§ 1, 3. “Any relative of a person affected may make application. by complaint un- der oath, to have the person adjudged a mental defective: but when the relatives of a mentally defective person ei- ther neglect or refuse to place said person in said school, or in some private institution of a like nature, and shall permit him or her to go at large, then any reputable cit- izen of the county may, by complaint under oath, make application to the mental hygiene commission for such commitment... .” Id. at 480. § 4(a). The same law empowered the “medical staff” at the institution “to administer such medical treatment and perform such surgical operations for the inmates therein as may be necessary and expedient for the cure and pre- vention of mental defectiveness or disease.” Id. at 482. § 5. : Western States Alaska. Alaska's population was insufficient to jus- tify a separate institution for retarded people in that state. In the territorial days, Congress authorized their com- mitment temporarily to the detention hospitals at Nome and Fairbanks until they could be transferred perma- nently to institutions in other states. See Pub. L. No. 216. § 7, 35 Stat. 601 (1909): Pub. L. No. 306. ch. 424. § 1. 36 Stat. 352 (1910). Arizona. On April 20. 1927. the Legislature of Ari- zona established an institution for “mentally detective A-62/Arizona children in the State of Arizona, which shall be known as the Arizona Children's Colony.” 1927 Ariz. Sess. Laws 367, ch. 96, § 1. Such “defectives,” the law mandated, “if not insane, shall be held and be determined to be men- tally deficient, and be entitled to enter said colony.” Id. at 369, § 10. Included among the considerations for deter- mining mental deficiency was that the resident “require supervision, control, care and education, for their own welfare, or for the welfare of others, or for the welfare of the community.” Id. at 370, § 10(a). California. On March 9, 1887, California became the first state to provide for the segregation, “for life,” of “im- becile or feeble-minded” people. 1887 Cal. Stats. 69, ch. 57. The original funding for the facility, located in Santa Clara, had been authorized two years earlier. 1885 Cal. States. 198, ch. 156. Because the state promoted segregation, the Santa Clara home grew quickly. By 1889, the institution was admitting not only severely retarded people, but also “cases well calculated to deceive the most observing.” SONOMA STATE HOME, THE INSTITUTION BULLETIN (1910). Larger accommodations were soon needed. Therefore, on March 6, 1889, the state legislature ap- propriated $170,000 to purchase land and “to erect proper and substantial buildings . . . upon said site.” 1889 Cal. Stats. 69, ch. 75. The state purchased 1660 acres of land in a remote area near Eldridge in Sonoma County. By 1891 buildings were constructed and on November 24 of that year the residents were moved from Santa Clara. STATE BOARD OF CHARITIES AND CORRECTIONS. FIRST BIENNIAL REPORT 62 (1905). ; State officials praised this development, noting that the “special province of the Home for the Feeble-Minded is to deal with the incipient aberration of the mental proc- esses—striking at the cause. ... This institution would remove from society the cause, so far as possible to do so.” CALIFORNIA HOME FOR THE FEEBLE-MINDED. SIXTH ANNUAL REPORT 30-31 (1890). Indeed, there was The West/A-63 a felt need to track down the “very large class of those unfortunates for whom no application for admission into this institution has been made.” /d. at 29. On March 31, 1897, a law was passed amendirig the 1885 statute that had restricted admissions to those “feeble-minded children between the ages of 5 and 18 years ... who are incapable of receiving instruction in the common schools.” 1885 Cal. Stats. 198, ch. 156, § 8. Under the new law, the institution was “direct{ed] to ad- mit” not only “idiots” but also “epileptics and mentally enfeebled paralytics ... irrespective of age, as the ac- commodations of the home may permit, and as may, in the judgment of the management, appear suitable sub- jects for such admission.” 1897 Cal. Stats. 251, ch. 188. In its First Biennial Report, the newly created State Board of Charities and Corrections stated: “There are sev- eral reasons why the feeble-minded should be cared for in Homes of this sort. Their presence in the community at large is apt to be very detrimental to normal children. and when they come to the adolescent age the danger of reproduction in kind is very great and should. if possible. be prevented.” FIRST BIENNIAL REPORT. supra at 41. By the time of its Third Biennial Report. the State Board was stating unequivocally that there were “now in county hospitals, in orphan asvlums. and other institu- tions, and even in homes, children who could be much better cared for in the State Home for the Feeble- Minded. Such a child is generally a menace to the insti- tution, the family, or the community in which he is. It is desirable in every way to accept into the Home these chil- dren, as to keep those who are now there.” STATE BOARD OF CHARITIES AND CORRECTIONS. THIRD BIENNIAL RE- PORT 73 (1908). In 1909, the California legislature became the sec- ond in the nation to vote into law “an act to permit asexualization of inmates of... the California Home.” 1909 Cal. Stats. ch. 720. A-64/California This law was progressively extended to cover more individuals by amendments of 1913 and 1917. The 1913 measure specified that sterilization could be performed “with or without the consent of the patient.” 1913 Cal. Stats. ch. 363. The 1917 act extended the procedure to all persons deemed to suffer from “marked departures from normal mentality.” 1917 Cal. Stats. ch. 489. State officials also kept constant pressure on the leg- islature to provide increased appropriations to segregate more and more retarded persons. linking retardation with the immigration of “defectives.” In 1915. an act was passed authorizing a legislative committee to investigate the necessity for a second mental retardation institution in the state. 1915 Cal. Stats. 1139, ch. 729. That com- mittee found: “So fundamental is this problem of the feeble-minded that one can assert without fear of suc- cessful contradiction that if all the time. money and ef- fort now devoted to the solution of all of our social prob- lems were concentrated for the next ten vears on the quesuon of feeble-mindedness. there is not a social prob- lem that would not be nearer its solution at the end of ten years than it will be under the present plan. The first step is to provide state colonies.” LEGISLATIVE COMMITTEE ON MENTAL DEFICIENCY. REPORT ON MENTAL DEFI- CIENCY 22 (1917). The Committee further found. “{i}n considering the advantages of creating such an institu- tion for the proper care of the mentally defective as un- fortunate individuals. there is also to be remembered the benefit to society of thus being relieved of the menace of their unsocial conduct.” Id. at 65. The Committee also recommended legislation “creating a new institution for feeble-minded and epileptic persons. to be located in Southern California.” Id. at 63. In the meantime, the State Board commissioned a series of “surveys in mental deviation” to bolster its case for another institution. Based upon the surveys it had commissioned, the Board reported a firm “relation be- tween race and mental deficiency.” STATE BOARD OF The West/A-65 CHARITIES AND CORRECTIONS, EIGHTH BIENNIAL RE. PORT 51 (1918). One of the surveys. focusing upon the Merced County public schools, found that 4.24% of the students were “feebleminded.” CALIFORNIA BOARD OF | CHARITIES AND CORRECTIONS. REPORT OF THE STATE JOINT COMMITTEE ON DEFECTIVES IN CALIFORNIA 27 (1918). This high number was explained by the fact that the county surveyed “possess|ed| an exceptionally high proportion of foreign-born in its population.” Id. Since “of those found feeble-minded. 75.7% had foreign born parents,” it was “evident, therefore, that most of the fee- blemindedness in this country is due to the immigration of undesirable types.” Id. at 35. Referring specifically to greater retardation it found among Mexicans and Portu- guese, the report expressed “no wonder that these na- tionalities are present in the reform schools and state pris- ons in far greater proportions than their numbers in the state would seem to warrant.” Id. at 35-36. The survey found “the ratio of feeble-mindedness was far higher among Mexicans, Negroes. and recent immi- grants from Europe than among those of native Ameri- can steck,” and concluded that “California has drawn a large proportion of immigrants of an undesirable type.~ Id. at 13-14, 19. Referring to the survey of the Merced schools. the report found that the “hopelessly feeble-minded should be removed from the public schools and placed under permanent custodial care.” Id. at 45. The report “estimated the annual cost ol feeble-mindedness in the State of California at $5,000,000” including “relief for indigent and dependent defectives. expenditures for court proceedings and pro- bation work for feeble-minded delinquents. depredations committed by detective delinquents. expense to the state of feeble-minded individuals in the prisons .. . and fi- nally the money which is worse than wasted in the futile attempt to educate feeble-minded children. ... We have not included in these estimates the losses accruing trom A-66/California vocational unfitness, alcoholism, venereal disease, and prostitution among the defective population. It would not be surprising if these losses, although less tangible and altogether impossible to estimate accurately, were as great as all the other losses combined.” Id. at 42. The report noted the state's “awakening to the men- ace of the feeble-minded” as one of the most noteworthy movements of present public thought,” id. at 5, and con- cluded that “[aJll of the findings of this study emphasize the necessity of bringing a larger proportion of our defec- tives under social surveillance and restraint,” id. at 19. Lamenting the fact that “California has but one state in- stitution for the care of the feeble-minded,” and arguing for the “permanent segregation of all feeble-minded in- dividuals” and to “extinguish the defective strains which now encumber our prisons, reform schools, jails, courts, and public schools,” the report urged as the “first step in this direction” the appropriation of funds for “the estab- lishment of an additional state home for the feeble- minded.” Id. at 51, 43. The legislature in 1919 appropriated $100.000, 1919 Cal. Stats. 1214, ch. 562, and, in 1921, $120,000, 1921 Cal. Stats. ch. 445, for the construction of buildings at the “Pacific Colony.” The facility opened on March 20. 1921. FIRST BIENNIAL REPORT OF THE DEPARTMENT OF INSTITUTIONS OF THE STATE OF CALIFORNIA 68 (1922). In 1915, the legislature amended the law permitting the institutionalization of any “imbecile or feeble-minded person or any idiot” to the Sonoma State Home. The amendment added a proviso that. in addition to a parent or guardian, “any peace officer may peti [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0236%3A20. Public record. Not legal advice.