Amicus Curiae Brief — Board of Trustees of Univ. of Ala. v. Garrett

Aue } | 2

No. 99-1240 009

In The

Supreme Court of the United States

4

UNIVERSITY OF ALABAMA AT BIRMINGHAM

BOARD OF TRUSTEES, et al.,

Petitioners,

Vv.

PATRICIA GARRETT, et al.,

Respondents.

*

On Writ Of Certiorari To The

United States Court Of Appeals

For The Eleventh Circuit

4

BRIEF OF MORTON HORWITZ, MARTHA FIELD, MARTHA

MINOW AND OVER 100 OTHER HISTORIANS AND

SCHOLARS, AMICI CURIAE IN SUPPORT OF RESPONDENTS

4

KENNETH W. BROTHERS* CLAUDIA CENTER

ELIZABETH B. MCCALLUM SARAH COLBY

KATHRYN R. COLBURN EMPLOYMENT LAW CENTER

MELISSA R. HANDRIGAN 1663 Mission Street

HOWREY SIMON ARNOLD & Suite 400

WHITE, LLP San Francisco, CA 94103

1299 Pennsylvania Ave., NW (415) 864-8898

Washington, DC 20004

(202) 783-0800

*COUNSEL OF RECORD

BEST AVAILABLE COPY

GUY WALLACE LEE A. PERSELAY

SCHNEDDER, MCCORMAC DISABILITY RIGHTS

& WALLACE CENTER, INC.-

1700 California Street 18 Low Avenue

Suite 340 P.O. Box 3660

San Francisco, CA 94109 Concord, NH 03302

BRIAN EAST

ADVOCACY, INC.

7800 Shoal Creek Blvd. #171-E

Austin, TX 78757-1024

Counsel for Historians and Scholars Amici Curiae

TABLE OF CONTENTS

IDENTIFICATION OF AMICI CURIAE............c0scscsscceseeeess iv

ee Cr EE EM inictneinseninisceninsintsssanssrenasnssnsid XVil

BOUT Eemere h OR TERS AOMICT CURIA oseccscncsncencocsercarscsesesten ]

NE, Ga silsatas aii idieadiaiiedsiesiansiesaslieuhinsanibiaadeicsnsianliiinaaeibie ]

I. STATE EMPLOYERS HAVE DISCRIMINATED

AGAINST PERSONS WITH DISABILITIES................. ]

A. When The ADA Was Enacted, State

Employment Discrimination Against Persons

With Disabilities Was Pervasive. .......... plcoalnibeacepniaatea 1

B. The Congressional Record Is Filled With

Evidence Of State Employment

Ee ae a ea ee 3

C. Case Law Establishing State-Sponsored

Employment Discrimination ..................s:ccscesseseseseees 6

D. Statistical Data Show State Employment

I tlre daira dreds elsheinddaaniminiieimononinl 7

II. STATES HAVE HISTORICALLY DENIED

PERSONS WITH DISABILITIES THE RIGHT

BAD LA VE BN FERS COMMIIUINI Y osccessssconsesccecsessensensecnss 8

A. The Shameful History Of State-Sponsored

ESSEC oe ee eR 8

1. The State-Mandated Regime of

EL REPO ae CoE ceo ae eee 8

2. Ongoing State-Sponsored Discrirnination.......... 11

B. Discrimination In Zoning And Public Housing ....... 12

_

III. STATES INTERFERE WITH THE RIGHT OF

PERSONS WITH DISABILITIES TO FORM

Fa asichcnsesievni sued etalaianadeah ihe beasaaniabaiiiniiciicitin 15

uuneetne*tane ee

A. States Have Forcibly Sterilized Persons With

TE LO TIO RT I A AITO TED 15

SINE sicckiskctashaeiundeniccncindrcatlaiachatiadicalasiaiaten aucaenies 17

C. States Discrimination Against Parents With

I ctnndiiasausitialstsciabictiablapnididanicielaadiinthecieaubbasiches 18

IV. STATES HAVE HISTORICALLY

INTERFERED WITH THE RIGHTS OF

DISABLED PERSONS TO VOTE ............c..ccscceccsoscessese 19

A. State-Sponsored Exclusion Of Voters With

SI sic pstesceneisccsrepiereciscamcalbassiesticdnabiconbadlipenannoceteen 20

B. State Discrimination Against Persons With

Disabilities On Election Day..................ccsscccssscosscess 21

V. STATES HAVE DENIED PERSONS WITH

DISABILITIES EQUAL ACCESS TO THE

Sea TE bonieisttiichiiaienieicchonamedealisinataa dda thalansaababtendidaitoemaas 22

A. Until the ADA Was Enacted, States Routinely

Escctuded Diseled FUIOTS ..0cccccsscecscecessccsveseosesscneees 22

B. States Have Also Excluded Disabled Litigants

PPCM ACOGRIING THD COWIE sinsiieccscosicesocensedicseveiecrens 24

VI. STATES HAVE DENIED PERSONS WITH

DISABILITIES THE RIGHT TO TRAVEL ................. 25

VII. STATES HAVE DISCRIMINATED AGAINST

CHILDREN WITH DISABILITIES .............0...:00c.c0000 26

SPAT sissinesshecccicacietdiilebntiesintashitadalasasateetnbadabliabsiidasi 29

ii

IDENTIFICATION OF AMICI CURIAE

PROFESSORS OF LAW

George J. Alexander

Elizabeth H. and John A. Sutro Professor of Law

Director, Institute of International and Comparative Law

Santa Clara University

Samuel Bagenstos

Assistant Professor of Law

Harvard Law School

Andrew I. Batavia

Associate Professor

School of Policy and Management

College of Health and Urban A ffairs

Florida International University

Derrick Bell

Visiting Professor

NYU Law School

Nathaniel Berman

Professor of Law

Northeastern University School of Law

Antonia Bernhard

Lecturer in Law

School of Law, University of California, Davis

Peter D. Blanck

Professor of Law

Director, Law, Health Policy & Disability Center

University of Iowa

Judith Olans Brown

Professor Emerita

Northeastern University School of Law

ili

i

Ruth Colker

Heck-Faust Memorial Chair in Constitutional Law

The Ohio State University College of Law

Mary Coombs

Professor of Law

University of Miami School of Law

Mary L. Dudziak

Professor of Law

University of Southern California Law School

David M. Engel

Professor and Vice Dean

School of Law

State University of New York at Buffalo

Peter Enrich

Professor and Assistant Dean

School of Law

Northeastern University

Martha A. Field

Langdell Professor of Law

Harvard University —

Katherine Franke

Professor of Law

Columbia Law School

Lawrence O. Gostin

Professor of Law and Public Health

Director, Georgetown/Johns Hopkins Program

on Law and Public Health

Georpetown University

Tre Sohns Hopkins University

Angela Harris

Professor

Boalt Hall School of Law

University of California, Berkeley

Morton Horwitz

Professor of Law

Harvard Law School

Peter Jaszi

Professor of Law

Washington College of Law

American University

Kevin Johnson

. Associate Dean for Academic Affairs

Professor of Law

University of California, Davis

Mark Kelman

William Nelson Cromwell Professor of Law

Academic Associate Dean

Stanford Law School

Karl Klare

Professor of Law

Northeastern University School of Law

Sylvia Law

Elizabeth K. Kollard Professor of Law

Medicine and Psychiatry

New York University Law School

Mari J. Matsuda

Professor of Law

Georgetown Law Center

Martha Minow

Professor of Law

Harvard Law School

John Monahan

Doherty Professor of Law

University of Virginia School of Law

Frank Munger

Professor of Law

School of Law

State University of New York, Buffalo

Douglas L. Parker

Professor of Law

Director of the Institute for Public Representation

Georgetown University Law Center

Wendy E. Parmet

Professor of Law

Northeastern University School of Law

H. Jefferson Powell

Professor of Law

Duke Law School

Marjorie M. Shultz

Professor of Law

Boalt Hall School of Law

University of California, Berkeley

Michael Stein

Assistant Professor of Law

College of William & Mary School of Law

Bonnie Tucker

Professor of Law

Arizona State University

Stephanie M. Wildman

Director, Center for Social Justice

Visiting Professor of Law

Boalt Hall School of Law

University of California, Berkeley

vi

_ — ame - -

a

Lucy A. Williams

Professor of Law

Northeastern University School of Law

Tobias Barrington Wolff

Professor of Law

University of California, Davis

OTHER HISTORIANS AND SCHOLARS

Ron Amundson

Professor

Department of Philosophy

University of Hawaii at Hilo

Adrienne Asch

Henry R. Luce Professor of Biology,

Ethics, and the Politics of Human Reproduction

Wellesley College

Andrew I. Batavia

Associate Professor

School of Policy and Management

College of Health and Urban A ffairs

Florida International University

Douglas C. Baynton

Assistant Professor

Department of History

University of Iowa

Ken Betsalel

Associate Professor of Political Science

University of North Carolina, Asheville

Douglas Biklen

Professor of Education

Syracuse University

Vii

Arthur Blaser

Professor of Political Science

Chapman University

Tom Bucaro

Professor and Director, Social Work Program

College of Staten Island

City University of New York

Susan Burch

Assistant Professor

Department of History

Gallaudet University

Janice A. Brockley

Doctoral Candidate

Department of History

Rutgers, State University of New Jersey

Sharon E. Brown

Research Assistant Professor

Educational Leadership and Policy Studies

College of Education

University of Washington

Brenda Jo Brueggemann

Associate Professor, English

The Ohio State University

Bob Buchanan

Director, Individualized BA\MA Program

Goddard College

Susan Burch

Assistant Professor

Department of History

Gallaudet University

Viii

Licia Carlson

Assistant Professor

Department of Philosophy

Seattle University

James L. Cherney

Associate Instructor

Department of Communication and Culture

Indiana University

Sumi Elaine Colligan

Department of Sociology, Anthropology & Social Work

Massachusetts College of Liberal Arts (formerly North

Adams State College)

G. Thomas Couser

Professor of English

Hofstra University

David E. Creasey

Adjunct Associate Professor of Rehabiliation Counseling

Sargent College of Health and Rehabilitation Sciences at

Boston University

Clinical Instructor in Psychiatry

Harvard Medical School

Lennard J. Davis

Professor and Head

Department of English

Professor, Department of Disability Studies

University of Illinois at Chicago

Tanis Doe

Evaluator and Research Consultant

DO-IT Disabilities, Opportunities, Internetworking and

Technology

University of Washington

ix

Rebecca A.R. Edwards

Assistant Professor of History

Rochester Institute of Technology :

Philip M. Ferguson

Associate Professor

Department of Special Education and Community Resources -

University of Oregon

James Ferris

Associate Faculty Associate

Department of Communication Arts

University of Wisconsin

Stephen D. Fox

Associate Professor

Department of English

Gallaudet University

Susan Gabel

Assistant Professor

College of Education

Cleveland State University |

Carol J. Gill

Assistant Professor of Human Development

Department of Disability and Human Development

University of Illinois at Chicago

Ryken Grattet

Assistant Professor of Sociology

Department of Sociology

University of California, Davis

o << — ee . —

Kim Q. Hall

Assistant Professor

Philosophy and Religion Department

Appalachian State University

Katharina Heyer

Doctoral Candidate

Department of History

University of Hawai'i

Diane Price Herndl

Director of Women's Studies

Associate Professor of English

New Mexico State University

Jerrold Hirsch

Division of Social Science

Truman State University

Martha Stoddard Holmes

Assistant Professor

Literature and Writing Studies

California State University

Ronald B. House

Former Director (ret.)

Community Rehabilitation Management Training Programs

Cornell University

Lisa I. Iezzoni

Professor of Medicine

Harvard Medical School

Encarnacion Juarez

Assistant Professor of Spanish

Department of Romances and Literatures

University of Notre Dame

Heidi Kelley

Associate Professor of Anthropology

University of North Carolina, Asheville

Lori Duin Kelly

Professor of English

Director of Women's Studies

Carroll College

Corinne Kirchner

Director of Policy Research & Program Evaluation

American Foundation for the Blind

Adjunct Lecturer

Sociomedical Sciences Division

Columbia University School of Public Health

Natasha Kirsten Kraus

Assistant Professor

Department of Sociology

State University of New York at Buffalo

Christopher Krentz

Assistant Professor

Department of English

University of Virginia

Catherine Kudlick

Professor of History

University of California, Davis

Cindy LaCom

Associate Professor

English Department

Slippery Rock University

Harlan Lane

University Distinguished Professor

Northeastern University

Cynthia Lewiecki-Wilson

Associate Professor

Department of English

Affiliate Women's Studies Program

Miami University Middletown

xii

Timothy Lillie

Assistant Professor

Department of Counseling and Special Education

The University of Akron

L. Scott Lissner

ADA Coordinator

The Ohio State University

Paul K. Longmore

Professor of History

San Francisco State University

Ian F. Haney Lopez

Assistant Professor of Law

Boalt Hall School of Law

University of California, Berkeley

Nancy R. Mudrick

Professor

School of Social Work

Syracuse University

Kim Nielsen

Assistant Professor

Social Change & Development/Women's Studies

University of Wisconsin

Katherine Ott

Curator, National Museum of American History

Smithsonian Institution

Adele Patrick

Public Service Associate

University of Georgia

David Pfeiffer

Resident Scholar

Center on Disability Studies

University of Hawaii at Manoa

xill

Penny L. Richards

Research Scholar

Center for the Study of Women

University of California, Los Angeles

William Roth

Professor, Social Welfare and Public Policy

State University of New York at Albany

Marta Russell

Author, Beyond Ramps

Donna F. Ryan

Professor of History

Gallaudet University

Carrie Sandahl

Assistant Professor

School of Theatre

Florida State University

Kay Schriner

Research Professor

Department of Political Science

Research Fellow

Fulbright Institute of International Relations

University of Arkansas

Susan Schweik

Associate Professor of English

University of California, Berkeley

Richard H. Scotch

Professor of Sociology & Political Economy

School of Social Sciences

University of Texas at Dallas

Sandy Sufian

Postdoctoral Fellow

Oregon Health Sciences University

XiV

AL, cc MT SIS TR ne I

Steven J. Taylor

Professor, Cultural Foundations of Education

Coordinator, Disability Studies

Director, Center on Human Policy

Syracuse University

Rosemarie Garland-Thomson

Associate Professor of English

Howard University

Tim Thompson

Assistant Professor of English

Pacific University

James W. Trent

Professor

Department of Social Work

Southern Illinois University at Edwardsville

Lauri Umansky

Assistant Professor of History

Suffolk University

John Vickrey Van Cleve

Professor of History

Gallaudet University

Executive Director

Gallaudet University Press

Linda Ware

Assistant Professor

Warner Graduate School

University of Rochester

Joanna K. Weinberg

Associate Adjunct Professor of Social and Behavioral

Sciences

Institute for Health and Aging

University of California, San Francisco

John Williams-Searle

Graduate Instructor

Department of History

University of Iowa

Deborah A. Stone

Research Professor of Government

Department of Government

Dartmouth College

Daniel J. Wilson

Professor of History

Muhlenberg College

James C. Wilson

Associate Professor

Department of English and Comparative Literature

University of Cincinnati

XVi

TABLE OF AUTHORITIES

CASES

In re Absentee Ballots Cast By Five Residents

of Trenton Psychiatric Hospital,

750 A.2d 790 (N.J. Super. Ct. App.

PO SE shicidintonacatainnateecee co al ie 20

Adapt v. Philadelphia Housing Authority, No. 98-

4609, 2000 U.S. Dist. LEXIS 5380 (E.D. Pa.

cols cc ee TE 15

Adoption of Richardson, 59 Cal. Rptr. 323

See WU SI raaimicieie son 19

ARC, Inc. v. New Jersey, 950 F. Supp. 637 (D.N.J.

1996), later proceeding at 986 F. Supp. 261

GORA HTD sinctestisiiemtiatiet Babiana 13

Arline v. School Board,

692 F. Supp. 1286 (M.D. Fla. eile 6

Assisted Living Associates, L.L.C. v. Moorestown

Township, 996 F. Supp. 409 (D.N.J. | 13

Association for Advancement of the Mentally

Handicapped, Inc. v. City of Elizabeth, 876 F.

Supp. 614 (D.N.J. 1994) woo ccccccccceccssecesseceseseee... 13

Batson v. Kentucky, 476 U.S. 79 ROUEN vices etienaie 22

Bednarski v. Bednarski, 366 N.W.2d 69 (Mich. Ct.

Me lacs NAT Aa NEI 19

Boyd v. Board of Registrars of Voters, 334 N.E.2d

ccc esc EE eee TS 20

Brown v. Board of Education, 347 U.S. 483

Sas sosniipvisiisinclechceiiedaimeiaeaialia eliguasbalibaiaminaanedadaaisds 27

gg BO Me Ge | Sy: ee ere 16

Burstyn v. City of Miami Beach, 663 F. Supp. 528

ETI WET: sisnsuhaaininchsttcdiesciniabehiaeiealidg biabebiniscaammibits 13

Carter v. Jury Commission, 396 U.S. 320 (1970) ....... 22

Cason v. Rochester Housing Authority, 748 F.

I. Fe CF APN. NSP OD sissicssciniersresscotensinasiin 14

Chalk v. United States District Court, 832 F.2d

PI ls PUMIIED: ciccnsidnuinisnnubdshictenonennshdisibiainbseopiaet 6

City of Cleburne v. Cleburne Living Center, Inc.,

Fe ee IE CLE? viniinnassncesnciasmassisrviiancsteh 9,11, 13

City of Edmonds v. Oxford House, 514 U.S. 725

SINEINEEED ‘siiinincssieniacucleisieyides eceahdasliibealaddpihediebadlistaianiamabnans 14

Clark v. Clark, 725 N.E.2d 100

EE, MK MENT: cisavsisundossunispeuispiecindsebsonsianeanieiaes 19

Conroy v. Aniskoff, 507 U.S. 511 (1993) ou... eeeeeeeeeee 6

Cruzan v. Director, Missouri Department of Health,

SP Ee AEE LOUD snssswnsiacccnssidasdbnionadiensalnbinaalolion 15

DeLong v. Brumbaugh,

703 F. Supp. 399 (W.D. Pa. 1989) ..............sccseree 23

Doe v. Belleville Public School Dist. No. 118,

672 F. Supp. 342 (S.D. Ill. 1987) ................ssccsseses 29

Duran v. City of Tampa,

451 F. Supp. 954 (M.D. Fla. 1978) oo... eee eee 6

XVili

Eckstein v. Kirby,

452 F. Supp. 1235 (E.D. Ark. ee Pe 23

Eisenstadt v. Baird,

De Ais ANIA vsinecssvsncsvsersemsasssstemneavcnienser ses, 15

Epicenter, Inc. v. City of Steubenville,

924 F. Supp. 845 (S.D. Ohio PUP sith uedsesatetidestee 13

Galloway v. Superior Court,

816 F. Supp. 12 (D.D.C. 1993) ooceeccccccccccccccccoceees 23

In the Interest of H.,

218 N.W.2d 441 (N.D. 1974) coocccccccccccccccccccsceeeeeees 29

Hairston v. Drosick,

423 F. Supp. 180 (S.D. W.Va. I eee ene 29

Hill v. Shelby County,

599 F. Supp. 303 (N.D. Ala. ee ane 23, 24

H.J.B. v. P.W.,

628 So. 2d 753 (Ala. Civ. PM. TIFF? sinttiiesrsiiooninns 18

Hunter v. Trenton Housing Authority,

698 A.2d 25 (N.J. Super. Ct. App. Div. tj) 15

J.W. v. City of Tacoma,

720 F.2d 1126 (9th Cir. 1983) o....eeececccsssoee. bans 13

Jackanin v. Carey,

Jones v. New York City Transit Authority,

483 N.Y.S.2d 623 (Civ. Ct. 1984) voocccccccccscsccsssosees 23

Kentucky Association for Retarded Citizens y.

Conn, 510 F. Supp. 1233 (W.D. Ky. 1980),

xix

affd, 674 F.2d 582 (6th Cir. 1982),

supplemental op., 718 F.2d 182 (6th Cir. 1983) .... 12

Kroll v. St. Charles County,

766 F. Supp. 744 (E.D. Mo. 1991) ..... ce eeeeeeeeeee 24

Layton v. Elder,

143 F.3d 469 (8th Cir. 1998) .............cccsescsssresesees 24

Lewinson v. Crews,

282 N.Y.S.2d 83 (App. Div. 1967), aff'd, 236

Pee Fe SII Neciccatsressaniipnsecncusionaavmnentincsinn 22

Majors v. Housing Authority,

ae ee te RE: FIED tettensissenrcenciernintcininrem 15

In re Marriage of Carney, P

ee fT 8, |. een 19

In re Marriage of Levin,

162 Cal. Rptr. 757 (Ct. App. 1980) .0.... ee eeeeeee 19

In re Marriage of R.R.,

575 S.W.2d 766 (Mo. Ct. App. 1978) .......... eee 19

Martinez v. School Board,

ie Be Ee TE) gl Se | cnn 29

Matthews v. Jefferson,

29 F. Supp. 2d 525 (W.D. Ark. 1998) .0....... eee 24

Meyer v. Nebraska,

i SE ED. bekitstinndiciteitimsavinianiamanniviinninonl 17

Moye v. Moye,

Br ae Fe I CE sicicssnciiataentirerentsairnins 19

New York v. County of Delaware,

82 F. Supp. 2d 12 (N.D.N.Y. 2000) ............eeeeeeee 22

XX

New York v. County of Schoharie,

82 F. Supp. 2d 19 (N.D.N.Y., 2000) ooo. eeececcccscsseee 22

Olmstead v. L.C. ex rel. Zimring,

FEE As EE COPD ietersitiscnensnbicniceseintiienisvaulsigseins 1]

People v. Guzman,

IDS N.E2d 259 (ALY. 1990) ...ccsccccoccocsesvescsoreeosese. 23

In re Petition of Worcester Children's Friend

Society, 402 N.E.2d 1116 (Mass. App. Ct.

SPITE sikidainsidsinuiabaiidialadalicbepsiniiabpameta eel ge 18

Planned Parenthood v. Casey,

PUD UB. G33 (UGGZ) cecccrenncccereeverceneeersvecnssesceneresene 15

Ray v. School District,

666 F. Supp. 1524 (M.D. Fla. 1987) ooeeeecceccssseee. 29

Reynolds v. Sims,

ides | ER 20

Robertson v. Granite City Community Unit School

District No. 9, 684 F. Supp. 1002 (S.D. Ill.

MANURE Rete - ane an oO en 29

Saenz v. Roe,

AE Aa OP IID csceicvictnmstinesisnernsinnisinns seseess cs, 25

Schmidt v. City of Chicago,

No. 86 C 8031, 1988 U.S. Dist. LEXIS 12893

PEP, Ts WI By TID cecesistnisiidevetsisdasorssacenriticetns 6

School Board v. Arline,

ar ne EE iain 6

Skinner v. Oklahoma,

Fs +: BS eran ae ae 17

Smith & Lee Associates v. City of Taylor,

OD F398 TEE COR Cie, UDI) cascesenscreccssensexsesecnscnsss 14

Society for Good Will to Retarded Children v.

Cuomo, 745 F. Supp. 879 (E.D.N.Y. 1990) .......... 12

Stanley v. Illinois,

BE UES. GAS CEG TR sevatcseersstnienentsnssnninisnnsntsitnnnasaini 18

State v. Spivey, |

FOO BW i BAZ CRO, UID) anescrcncseresercrsrsscerrescesess 23

State ex rel. Beattie v. Board of Education,

872. W.. TSS CO. FTG ciccsserinsnssrasasescatonennenssinns 28

Stewart v. Stewart,

521 N.E.2d 956 (Ind. Ct. App. 1988) «0.0... 19

Stewart B. McKinney Foundation, Inc. v. Town

Planning & Zoning Commission,

790 F. Supp. 1197 (D. Conn. 1992) ........eeseeeeees 14

Stoner v. Miller,

377 F. Supp. 177 (E.D.N.Y. 1974) ......ccseseeseeneeees 13

Sunrise Development, Inc. v. Town of Huntington,

62 F. Supp. 2d 762 (E.D.N.Y. 1999) ........scsceseeees 13

T.E.P. v. Leavitt,

840 F. Supp. 110 (D. Utah 1993)... ee eeeeeneeee 18

Thomas ex rel. Thomas v. Davidson Academy,

846 F. Supp. 611 (M.D. Tenn. 1994) 0.0.0... 29

United States v. Guest,

BS ELT. PES CIID once secesiccterntctincncesccionneivaniocainns 25

XXil

United States v. Schulykill Township,

No. 90-2165, 1990 U.S. Dist. LEXIS 15555

RE SN WR RINNE vaiistssicintecnscbersbeitnnsnseannicken 14

Watson v. City of Cambridge,

Pee Pes Be CI, FRO OD ite taninseiinsciiinstsennminnbanins 28

Wisconsin v. Yoder,

Fs SEED sitesiiteinierierichiedianiinlaintntninsanconteaiiices 18

Wyatt ex rel. Rawlins v. Rogers,

985 F. Supp. 1356 (M.D. Ala. 1997) 000... 11

Yick Wo v. Hopkins,

Pe IID sestirinheanicesastnimasteunsbsctieniestuabbaiats 19

Youngberg v. Romeo,

EF Ie PF ITED eirtstinsnecnsieniniiteneceieiisinions 8,11

STATUTES

20 U.S.C. § 1400(b) (Supp. TV 1980) ........ 28

RE Sis EB itp diicininatinnsciinisactintsnininimwicinanse 25

ARIZ. REV. STAT. § 36-582 (1999) ...........ccccscssccscsescses i4

ARK. CODE ANN. § 20-48-606 (Michie 1999) ............. 14

CONN. GEN. STAT. § 8-3f (1999) 00... .eeeessessseesseseeees 14

Rr IO, PTT NG iecsntsceaiciecsiniaiitdssivnsnonenaianaiaaiiiibeii 17

SO ees, ON Oe OO UW cactnced acini ssatsaahnucinidinont ected: 27

Pe ee SCE Eg Ue soiicssicsscdincsnanocciabhcarndaensaaaaniaendiiia 10

1904 Mass. Acts & RESOLVES, ch. 459, § 5...........000. 10

XXiil

1906 Mass. ACTS & RESOLVES, ch. 508, § 12............. 10

MICH. Comp. LAWS § 5.2961(16a) (1999) ...........0000.. 14

1905 MICH. PUB. ACTS 169-70, No. 121. v.esecsssssssessee 10

I: SUNT, OR. 7g Be OS wesiinknsateniipcstnelaiiiiiaanmoaane 27

1920 Miss. LAWS 294, ch. 210, § 17 ue. eeeeeeeseeeee 10

1906 Miss. LAws 1011 et seaseenlenlinlaniaiaad 25

Pe BO SAG Ce enrsesstvniniinnisiiacininieihesammmnialaaenae 25

N.J. REV. STAT. § 40:55d-66.1 (1995) .o.cceeceeeeeeeeeeee 14

SPUD Dead. RWS SG B87, BD — siciccvssrssssenenssisinansercte 10

N.M. CONST. art. XII § PRUIEED intnodisacénchahinasemmmien 28

BEAL, COUN. BEAT. © GGBAE CEI iccccssinscsscncesinibiinncues 14

PO e CT, BR Be FG ctcknticensnivineicatalaniene 27

1909 OKLA. SEss. LAws 538, ch. 34, art. 2 § 8 .......... 10

Bn FM MeN FE © sitencsiecinnitnnenanietemaatenatees 10

1921 S.D. SESS. LAWS 344, ch. 235 ........ccccsccssssssssseees 10

BOERS BU. GU. EWG ie, GG vsesincessscecisecosiiensarioens 10

UTAH CODE ANN. § 17-5-252 (1999) (repealed

Oh FOOD crisnitintsicscnesivincctntiiaimninddaaaliaal 26

UTAH CODE ANN. § 30-1-2(1) (1987) ........:.cccssceeeseeeees 17

ESOS ‘WAG. LAWS 135, CB. TO, OF: csccccscceccosssorssnsssence 10

XXiV

1921 W. VA. ACTS 480, ch. 131, § 4(a) cecccsssssssssssssese 10

WIS. STAT. § 60.63 (1999) ..o..eccceccsssscsssscseseseesoeeeceeccsn. 14

1913 Wis. LAWS, 963, ch. 689, § 1 ooocccccccccccscccccoccoeees... 9

CHICAGO MUN. CODE § 36-34 Tessas, 14

COLUMBUS GEN. OFFENSE CODE 2387.04 i) in i4

OMAHA MUN. CODE 251 (1967) ....-.ccceccccccsseoceeceseceeen.. 14

_ LEGISLATIVE MATERIALS

S. Rep. No. 101-485 (II) (1990), reprinted in

Be Ore 6

Americans with Disabilities Act of 1989: Hearing

on H.R. 2273 Before the Subcommittee on

Employment Opportunities and the

Subcommittee on Select Education of the House

Committee on Education and Labor, 101" Cong.

a 3

135 Cong. Rec. $10793 (daily ed. Sept. 7, 1989) ........ 21

135 Cong. Rec. $10753 (daily ed. Sept. 7, 1989) ........ 21

S. Rep. 101-116 (1989) ooo. eeecccessssscssssceeeees 14, 28, 30

Americans with Disabilities Act of 1989: Hearing

on S. 933 Before the Subcommittee on the

Handicapped of the Senate ~ Committee

on Labor and Human Resources, 101" Cong.

ee 4,28

American with Disabilities Act of 1988: Oversighi

Hearing on H.R. 4498 Before the Subcommittee

on Select Education of the House Committee on

Education and Labor 100" Cong. (Oct. 24,

133 Cong. Rec. H6996 (daily ed. Aug. 4, 1987)............ 5

Civil Rights Restoration Act of 1987: Hearings on

S. 557 Before the Senate Committee on Labor

and Human Resources 100° Cong. (Mar. 19,

Employment Discrimination Against Cancer

Victims and the Handicapped: Hearings on H.R.

370 and H.R. 1294 Before the Subcommittee on

Employment Opportunities of the House

Committee on Education and Labor, 99" Cong.

CFG, SID ct sinsnis te dentpnstiieaibliinldiastalaasbsipainaiate 2

Rehabilitation Act of 1973: Oversight Hearings

Before the Subcommittee on Select Education of

the House Committee on Education and Labor,

OS™ Comm. (Ratt. FR siccinicitecenieceameed. 5

Implementation of Section 504, Rehabilitation Act

of 1973: Hearings Before the Subcommittee on

Select Education of the House Committee on

Education and Labor, 95" Cong. (Sept. 16,

MISCELLANEOUS

Debra Auspitz, Disabled Votes, PHILADELPHIA CITY

PDO, DG: Fe, Bee ceciassecinnivnsneshcedesnadtapbentunenane 21

XXVi

Baldwin, The Causes, Prevention and Care of

Feeble-minded Children in Proceedings of

Texas Conference of Charities and Corrections,

Second Annual Meeting (1912) ..............eeseessseeeees 9

Board of Trustees of Utah State Training School,

TE TE CDP cieniiscsaiataiincininsiviitasansinictrenians 9

Burgdorf, A History of Unequal Treatment, 15

SANTA CLARA LAWYER 855 (1975) .........ssseceseeeees 27

California State Board of Charities and Corrections,

Eighth Biennial Report (1918) ..........:.sscsssceeeeeeeees 26

Dong W. Cho, Cerebral Palsy Research Foundation

of Kansas, Inc., Problem Solving with

Rehabilitation Engineering: Labor Market

Activities of Disabled Persons: Analysis of a

National Survey of Disabled Persons

I I isicsesscndananssbsscebniccnadcsincbeleiiabsndabanaitias y ay

Coalition for Accessible Political Elections, Report

of National Voter Independence Project (Feb.

Timothy M. Cook, The Americans with Disabilities

Act: The Move to Integration, 64 TEMP. L. REV.

DEED iid iecidiinlssiehalagatianessciadtdaiiaapaliasidissigaiaabes 27

Disability Rights Mandates: Federal and State

Compliance with Employment Protections and

Architectural Barrier Removal (Apr. 1989) ............ 2

General Accounting Office, Medicaid - Oversight of

Institutions for the Mentally Retarded Should

be Strengthened (Sept. 6, 1996) .0.......:ccseeeeeeeeeees 12

| XXVii

Sharon L. Harlan & Pamela M. Robert, Disability in

Work Organizations: Barriers to Employment

Opportunity, Final Report, (Univ. of Albany &

ene UN. Y. “Peper. BGG D siccsscsscticesanebetesae Oe

Barbara Hoffman, Employment Discrimination

Based on Cancer History: The Need for Federal

Legislation, 59 TEMPLE L.Q. 1 (1986) .0.............. 2,6

Arlene S. Kanter, A Home of One's Own: The Fair

Housing Amendments Act of 1988 and Housing

Discrimination Against People with Mental

Disabilities, 43 AM. U. L. REV. 925 (1994) .......... 14

Latinos Still Lag in State Hiring, Lawmakers Told,

LA. TOMO, Ape: 15, PB sneiniccilansanetananae sec 5

Harry H. Laughlin, Eugenical Sterilization in the

United States (American Eugenics Society,

SFP enscssaisatiniesiiatiicheiiaaliiedindiadaaeana ae ane eatane 16

M. Lazerson, The Origins of Special Education

CRG RF) cxnnssios cocinssviipiniopipiiaidabuacdasiagienmaieca Aime neamaas 27

Paul A. Lombardo, Three Generations, No

Imbeciles: New Light on Buck v. Bell, 60

N.Y.U. L. REV. 30 (Apr. 1985) .0..........ccccscocoosesese 16

Meyer & Putnam, Social Integration, in HANDBOOK

OF DEVELOPMENTAL AND PHYSICAL

DISABILITIES 107 (V. B. Van Hasselt, P. Strain

& Di. PRON, OU. TIT vssikcccctisincmne 28

Gerald L. Neuman, The Lost Century of American

Immigration Law (1776-1875), 93 COLUM. L.

TRV. TEES Gite. SOP) sacicsinscotsnsnenstan oe 25

mY. Ss, Pek 06 POR ee 26

Oregon Board of Building Commissioners Report to

Twenty-fourth Legislative Assembly, Regular

RN OF I sennnssscesscesconsstsonsnssisisosasecosovsnecseesnece 9

Phillip R. Reilly, The Surgical Solution: A History

of Involuntary Sterilization in the United States

UE. skcinshesexskisnincaneciecscncsncsosstrncoseunsnesennennensees 16, 26

Report Card on Inclusion in Education of Children

with Mental Retardation (The Arc 1995)............... 29

Report Finds Legal Discrimination Against Women

State Job Holders, UPI, Cal., Jan. 8, 1989............... 5

Report of Vermont State School for Feeble-minded

I EOD vicicicsesnssecsnssconcessseincszovenoscconseanseasonton 9

David J. Rothman, The Discovery of the Asylum:

Social Order and Disorder in the New Republic

(Little, Brown & Co. 1971)........scsscescescssesseseeseneees 10

Bruce Dennis Sales et al., Disabled Persons and the

Law: State Legislative Issues (Plenum Press

TIN sihicciacadanicanphiinioinchniciasiinbainininaesannineseéunesansenesees 17, 18

S. Sarason & L. Doris, EDUCATIONAL HANDICAP,

SOCIAL POLICY AND SOCIAL HISTORY (1979)........ 27

Stevenson Smith et al., 4 Summary of the Laws of

the Several States Governing (1) Marriage and

Divorce of the Feebleminded, the Epileptic and

the Insane, (II) Asexualization, (III) Institutional

Commitment and _ Discharge of _ the

Feebleminded and the Epileptic,

82 BULL. U. WASH. 5 (May 1914) ...........:eessseeeeee 17

XXix

Summary of Survey and Public Hearing Reports of

the Access for Persons with Disabilities

Subcommittee of the California Judicial

Council’s Access and Fairness Advisory

eg RU aera PR ae

20/20: Breeding Better Citizens; Forced

Sterilization of Americans Believed to Have

Some Mental Defect (ABC television broadcast

RI Si cect itieeiscscjcntheatiedaea i eect a

Voting Rights Primary Access Committee,

Exercising My Right to Vote: The Accessibility

of New Hampshire Polling Places

to Citizens with Disabilities (Apr. 1996)............4...

Weintraub & Abeson, Appropriate Education for

All Handicapped Children: A Growing Issue, 23

SYRACUSE L. REV. 1037 (1972) ....ececesecececccsssesceees

When Illness Leaves Social Side Effects, U.S. NEws

& WORLD REPORT (Aug. 13, 1984) o...ceccceccssscceesees 5

C.S. Yoakum, Care of the Feebleminded and

Insane in Texas, BULL. U. TEx. No. 369

(Humanistic Ser. No. 16 Nov. 5, 1914) .......eccccesse-.

XXX

INTEREST OF THE AMICI CURIAE

Amici curiae are over 100 historians and scholars who

want to ensure that the well-documented evidence of

widespread state discrimination against persons with

disabilities is not forgotten by this Court.*

ARGUMENT

Persons with a broad range of disabilities — cognitive,

motor, sensory and psychiatric — have been victims of

intentional and irrational state-sponsored discrimination and

exclusion from the basic rights and citizenship in every

aspect of public and private life, including employment,

housing, the judicial system, marriage, parenting, and

education. Congress was aware of the centuries of

discrimination by state and local governments against

persons with disabilities when it enacted the ADA. This

brief summarizes the states’ history of official discrimination.

The appendix contains hundreds of examples of state

constitutions and laws that discriminate against these

citizens.

I. STATE EMPLOYERS HAVE DISCRIMINATED

AGAINST PERSONS WITH DISABILITIES

A. When The ADA Was Enacted, State

Employment Discrimination Against

Persons With Disabilities Was Pervasive

For decades, state employers have engaged in

intentional widespread discrimination against people with

disabilities. Congress documented this rampant

discrimination when it adopted the ADA. According to a

1989 report of the Advisory Commission on

Intergovernmental Relations — issued during the deliberations

* — Petitioners, Respondents and the United States have consented to the

filing of this brief.

on the ADA —- 82 percent of state officials believed that

negative attitudes towards persons with disabilities played a

part in their employment decisions.!_ Congress knew that

discrimination against persons with disabilities was “more

prevalent in the public sector.”2 Although Alabama claims

(at p. 7) that it “has a long history or providing support,

rehabilitation and protection for individuals with

disabilities,” a comprehensive 1980s study found that (except

for persons with speech impairments), the percentage of

persons with disabilities working for the government was

actually /ower than in the private sector.3 This state-

sponsored employment discrimination is not only irrational,

but has pervasively reinforced broader employment

discrimination against persons with disabilities. If the states

were “teaching by their example” (Pet. Br. 4), then the lesson

was that official job discrimination was pervasive.

I Disability Rights Mandates: Federal and State Compliance with

Employment Protections and Architectural Barrier Removal (Apr. 1989).

See also Sharon L. Harlan & Pamela M. Robert, Disability in Work

Organizations: Barriers to Employment Opportunity, Final Report,

(Univ. of Albany & State U.N.Y. Nov. 1995) (reporting on 1990 data)

(state employees “confront disabilities with stereotypes, ignorance,

misinformation, fear, and pity that impede progress toward equal

opportunity”); Barbara Hoffman, Employment Discrimination Based on

Cancer History: The Need for Federal Legislation, 59 TEMPLE L.Q. 1, 2-

9 (1986) (describing reasons and types of public employment

discrimination against persons with cancer).

- Employment Discrimination Against Cancer Victims and the

Handicapped: Hearings on H.R. 370 and H.R. 1294 Before the Subcomm.

on Employment Opportunities of the House Comm. on Education and

Labor, 99th Cong. 57 (June 6, 1985) (statement of Ivan Barofsky,

Institute of Social Oncology).

3 Dong W. Cho, Cerebral Palsy Research Found. of Kansas, Inc.,

Problem Solving with Rehabilitation Engineering: Labor Market

Activities of Disabled Persons: Analysis of a National Survey of

Disabled Persons, iii (Spring 1982).

inseam Seunaanneeaaeeneennael

rr a OL —E

B. The Congressional Record Is Filled

With Evidence Of State Employment

Discrimination

| The legislative history of the ADA shows that

Congress was aware of widespread intentional and irrational

employment discrimination by the states. For example,

Congress was aware that most government agencies in

California routinely refused to hire cancer survivors.4 The

Congressional testimony of individual witnesses in hearings

on the ADA also reflected employment discrimination by

states. For example:

e Susan Downie testified that she was denied a job at a

large state mental retardation facility because of her

mobility impairment.°

e Denise Karuth testified that the New York State

Commission for the Blind would not sponsor her for a

masters degree in rehabilitation counseling because

“the State would not hire blind rehabilitation

counselors.””6

4 Americans with Disabilities Act of 1989: Hearing on H.R. 2273

Before the Subcomm. on Employment Opportunities and the Subcomm.

on Select Education of the House Comm. on Education and Labor, 101*

Cong. 19-20 (Sept. 13, 1989) (statement of Evan J. Kemp, Jr.,

Commissioner EEOC).

5 Americans with Disabilities Act of 1988: Oversight Hearing on

H.R. 4498 Before the Subcomm. on Select Education of the House Comm.

on Education and Labor, 100" Cong. 144-45 (Oct. 24, 1988) (statement

of Susan Downie, Director, Traumatic Brain Injury Services,

Rehabilitation Center, Hartford).

6 Jd. at 195 (statement of Denise Karuth, Mass. Coalition of Citizens

with Disabilities).

Poe NT ae On ee ee

TT w<c

e A professor of veterinary medicine at a state

university was fired because he had AIDS.7

Congress also found that state vocational

rehabilitation agencies excluded adults with long-term

disability. Congress knew, for example, that Rhode Island’s

State vocational rehabilitation agency refused to provide a

quadraplegic with further education because “they did not see

any reason” for him to get off the SSI public benefits rolls.8

A witness from Maine recounted how a vocational client

with a Ph.D. in chemistry “was sent to Goodwill to sort socks

as a part of his training and testing.”9

Congress had been aware of state-sponsored

employment discrimination against persons with disabilities

for years. For example, in 1977, Congress was informed of

the growth of violations of Section 504 of the Rehabilitation

Act by colleges and universities, school districts, and

government agencies.!9 In 1978, Congress learned that

persons with disabilities were under-represented in the CETA

program, in which federal funds were given, principally to

7 Americans with Disabilities Act of 1989: Hearing on S. 933 Before

the Subcomm. on the Handicapped of the Senate Comm. on Labor and

Human Resources, 101" Cong. 404 (May 9, 1989) (statement of National

Organizations Responding to AIDS).

8 Hearings, supra note 5, at 41 (statement of Donald Levine,

President PARI Independent Living Program).

9 Id. at 173 (statement of Lelia Batten, Portland Coalition for

Psychiatrically Labeled).

10 Implementation of Section 504, Rehabilitation Act of 1973:

Hearings Before the Subcomm. on Select Education of the House Comm.

on Education and Labor, 95" Cong., 290-368 (Sept. 16, 1977) (statement

of David Tatel, Director, Office for Civil Rights, Dep’t of Health,

Education and Welfare).

states and counties, for job training and employment.!! In

1987, Congress found that “public and private employers

tend to be unaware of the capability of persons with

developmental disabilities to be engaged in competitive work

in integrated settings.”!2 Also in 1987, Congress knew that

none of the twenty-three state or local jurisdictions surveyed

was willing to hire blind applicants; many excluded

applicants with a history of cancer; and amputees faced

widespread official discrimination. !3

Alabama claims (at pp. 38-39) that in the ADA’s

legislation history, the “only real evidence . . . was of states

over protecting the constitutional rights of the disabled, not

undermining them.” To the contrary, Congress knew that the

Governor’s Committees of all fifty states, responsible for

increasing the employment of persons with disabilities

11 Rehabilitation Act of 1973: Oversight Hearings Before the

Subcomm. on Select Education of the House Comm. on Education and

Labor, 95" Cong. 336, 368 (Apr. 7, 1978) (“During the 15 months ending

September 30, 1976, handicapped men and women made up only 4% -

81,000 - of all persons enrolled in title 1 programs and less than 3% of

those in public service jobs under titles II and IV.”) (statement of T.P.

Hipkens, Director, Ass’n of Rehabilitation Facilities).

12 133 Cong. Rec. H6996 (daily ed. Aug. 4, 1987). There were also

numerous news articles about state employment discrimination against

persons with disabilities. See, e.g, Report Finds Legal Discrimination

Against Women State Job Holders,” UPI, Cal., Jan. 8, 1989 (1988

Personnel Board report showed significant underrepresentation of

workers with disabilities in state jobs); Latinos Still Lag in State Hiring,

Lawmakers Told, L.A. TIMES, Apr. 15, 1988 (1987 Personnel Board

report showed workers with disabilities second-most underrepresented

group in state jobs); When Illness Leaves Social Side Effects, U.S. NEWS

& WORLD REPORT (Aug. 13, 1984) (noting conflicting state court

decisions regarding disability discrimination).

13 Civil Rights Restoration Act of 1987: Hearings on S. 557 Before the

Senate Comm. on Labor and Human Resources, 100" Cong. (Mar. 19,

1987).

generally, had reported that state laws were inadequate to

counter discrimination faced by persons with disabilities,!4

At least half of the state laws that did exist provided no

protection against discrimination based on_ perceived

disabilities. !5

c. Case Law Establishing State-Sponsored

Employment Discrimination

Congress was also aware of the numerous cases

establishing intentional and irrational state-sponsored

disability discrimination in employment.!6 In School Board

v. Arline, 480 U.S. 273 (1987), the Court held actionable

state employment discrimination based upon irrational fears

of a disability. On remand, the trial court held that a school

district’s termination of a teacher with tuberculosis was

unreasonable. Arlene v. School Board, 692 F. Supp. 1286,

1292 (M.D. Fla. 1988). Similarly, in Chalk v. United States

District Court, 832 F.2d 1158 (9" Cir. 1987), a teacher was

demoted after being diagnosed with AIDS. In Duran v. City

of Tampa, 451 F. Supp. 954, 955 (M.D. Fla. 1978), a police

officer applicant with a childhood history of epilepsy was

rejected because of an irrational policy excluding those with

any history of epilepsy, despite medical evidence that the

applicant was able to serve as police officer. In Schmidt v.

City of Chicago, No. 86 C 8031, 1988 U.S. Dist. LEXIS

12893 (N.D. Ill. Nov. 9, 1988). a police officer who

underwent double mastectomy and breast reconstruction due

to cancer was told to resign because of her prosthetic breasts.

14S. Rep. No. 101-485(II), at 38 (1990), reprinted in 1990

U.S.C.C.A.N. 303, 320.

15 Hoffman, supra note 1, at 20.

16 See Conroy v. Aniskoff, 507 U.S. 511, 516 & n.10 (1993) (Court

presumes Congress is aware of the relevant case law).

D. Statistical Data Show State

Employment Discrimination

Petitioner claims (at p. 4) that “[nJo pattern and

practice of state equal-protection violations exist when it

comes to alleged employment or public-access discrimination

by state governments. Neither does any tenable threat of

future unconstitutional discrimination exist. . . . Congress did

not show, or even try to show, that the states have previously

violated the constitutional rights of the disabled.” To the

contrary, at the time the ADA was enacted, Congress had

access to statistical data showing that persons with

disabilities were under-represented in government

employment, and that discrimination was more prevalent in

the public than private sector.!7

In many states, the percentage of state employees

with disabilities remains well below the percentage of

working age Americans with disabilities, and in some states

things are getting worse. For instance, California reports that

the percentage of state employees with disabilities has

steadily decreased in the last decade, from 8.27 percent in

1990 to 7.64 percent in 2000.'8 In several other states, the

figures are also declining. Michigan’s employment of

disabled persons fell from 7.5 percent in 1990-91 to 5.7

percent in 1998-99.19 Nebraska’s figures were 4.3 percent in

17 Cho, supra note 3, at iii.

18 Correspondence from Richard Watkins, MIS Dept., California State

Personnel Bd., to Suzan Kern, Advocacy, Inc., Austin, Tex. (June 7,

2000) (A-278).

19 Letter from Mary L. Pollock, Employment Relations Bd. Appeals

Officer (former State Equal Employment Opportunity Coordinator),

Dep’t of Civil Service, State of Mich., to Suzan Kern, Advocacy, Inc.,

Austin, Tex. (June 19, 2000) (A-279).

1990, but had fallen to 3.2 percent as of March 30, 2000.20

lowa’s figures are also on the decline: from 5.8 percent in

1992 to 4.5 percent in 1998.2!

II. STATES HAVE HISTORICALLY DENIED

PERSONS WITH DISABILITIES THE

RIGHT TO LIVE IN THE COMMUNITY

A. The Shameful History Of State-

Sponsored Institutionalization

The right to make basic decisions about how to live,

as well as the right to be free from bodily restraints, have

long been recognized as core liberty interests protected by

the due process clause. See Youngberg v. Romeo, 457 U.S.

307, 316 (1982). Nevertheless, the states have historically

segregated and institutionalized persons with a wide range of

disabilities, trammeling their fundamental liberties and ware-

housing them in deplorable public facilities.

1. The State-Mandated Regime of

Segregation

The forced institutionalization of persons with

disabilities reached its peak in the twentieth century. It

continues today. “Fueled by- the rising tide of Social

Darwinism, the ‘science’ of eugenics, and the extreme

xenophobia of those years, leading medical authorities and

20 E-mail correspondence from Dorsey Seldon, Affirmative Action

Specialist, Dep’t of Administrative Services, Personnel Department, State

of Neb., to Suzan Kern, Advocacy, Inc., Austin, Tex. (June 21 & 22,

2000) (A-285).

21 Correspondence from John H. TenPas, Disability Consultant,

Division of Persons with Disabilities, lowa Dep’t of Human Rights, to

Brian East, Advocacy, Inc., Austin, Tex. (June 22, 2000) (A-287).

9

others began to portray the ‘feebleminded’ as a ‘menace to

society and civilization . . . responsible in large degree for

many if not all, of our social problems.’” City of Cleburne v.

Cleburne Living Center, Inc., 473 U.S. 432, 461-62 (1985)

(Marshall, J., concurring in part and dissenting in part). In

1914, one authority declared, “One of the most shocking and

easily cured evils is the increase of the feeble-minded, the

begetters of numerous degenerate children.” C.S. Yoakum,

Care of the Feebleminded and Insane in Texas, BULL. U.

TEX., No. 369 (Humanistic Ser. No. 16 Nov. 5, 1914).

Official reports referred to people with disabilities as

“defect[s] . . . [that] wounds our citizenry a thousand times

more than any plague,”22 as “by-products of unfinished

humanity,”2> and as a “blight on mankind”24 whose mingling

with society was “a most baneful evil.”25

Spurred by the eugenics movement, every state in the

country passed laws that singled out people with mental or

physical disabilities for institutionalization. (Many of those

laws are reproduced in the Appendix.) Often, these laws

made it clear that the state’s purpose was not to benefit

disabled people but to segregate them from “normal” society.

Thus, statutes noted that the disabled were segregated and

institutionalized for being a “menace to society,”2° so that

22 Board of Trustees of the Utah State Training School, Biennial Rep.

3 (1938).

23 Baldwin, The Causes, Prevention, and Care of Feeble-minded

Children in Proceedings of the Texas Conference of Charities and

Corrections, Second Annual Meeting 87 (1912).

24 Report of Vermont State School for Feeble-minded Children 17-18

(1916).

25 Oregon Bd. of Bldg. Comm'rs Report to the Twenty-fourth Legis.

Assembly, Regular Sess., 22-23 (1906).

26 1913 WIS. LAWS 963, ch. 689, § 1 (App. 272).

10

“society [may be] relieved from the heavy economic and

moral losses arising from the existence at large of these

unfortunate persons.”27

The state-sponsored mission to remove persons with

disabilities from society was so pervasive that many state

governments even required their citizenry to assist them in

locating and segregating these citizens. Physicians, teachers,

and social workers, and even the general public were to

report to the government all persons “believed by them to be

feeble minded.”28 Some statutes authorized the removal of

children with disabilities from their homes, even against the

parents’ wishes.2? The state of Washington made it a crime

for a parent to refuse state-ordered institutionalization. See

1905 WASH. LAws 135, ch. 70, § 9 (App. 263). Once

children were institutionalized, many state laws required

parents to waive all custody rights.3°

These state laws mandating institutionalization were

“A regime of state-mandated segregation and degradation . . .

that in its virulence and bigotry rivaled, and indeed

paralleled, the worst excesses of Jim Crow. Massive

27 1915 TEX. GEN. LAWS ch. 90 § 1, 2 (App. 243). Similar statutes

from other states are collected in the Appendix.

28 See, e.g, 1921 S.D. SESS. LAWS 344, ch. 235 (teachers); 1917 OR.

LAWS 740, § 5 (superintendents); 1918 Ky. ACTS 171, § 30 (nurses);

1904 MASS. ACTS & RESOLVES, ch. 459, § 5 & 1906 MASS. ACTS &

RESOLVES, ch. 508, §12 (any person).

29 See, e.g., 1920 MISS. LAWS 294, ch. 210, § 17; 1921 W.VA. ACTS

480, ch. 131, § 4(a); 1909 OKLA. SEss. LAWS 538, ch. 34, art. 2 § 8.

30 See, e.g, 1905 MICH. PUB. ACTS 169-70, No. 121; 1919 N.J. LAWS

508, ch. 217, §3. See generally David J. Rothman, The Discovery of the

Asylum: Social Order and Disorder in the New Republic 221 (Little,

Brown & Co. 1971).

aon neste

11

custodial institutions were built to warehouse the retarded for

life; the aim was to halt reproduction and ‘nearly extinguish

their race.” Cleburne, 473 U.S. at 462 (Marshall, J.,

concurring in part and dissenting in part) (citations omitted).

2. Ongoing State-Sponsored

Discrimination

In Olmstead v. L.C. ex rel. Zimring, six justices

recognized that singling out persons with disabilities for .

unnecessary institutionalization is a form of discrimination.

527 U.S. 581, 600 (1999), id. at 613-14 (Kennedy, J.,

concurring). This kind of state discrimination frequently

violates the due process rights recognized in Youngberg v.

Romeo, 457 U.S. 307 (1982).

Many state-run institutions continue to deprive

disabled persons of liberty and dignity, while exposing

residents to dangerous conditions. For example, in Wyatt ex

rel. Rawlins v. Rogers, 985 F. Supp. 1356, 1362 (M.D. Ala.

1997), a federal judge described Alabama’s state-run

institutions as “essentially warehousing patients in an

inhumane environment.” Petitioner’s state hospital lacked “a

humane psychological and physical environment, qualified

staff in numbers sufficient to administer adequate treatment,

and individualized treatment plans.” Jd. at 1361. Even

though Alabama entered into a consent decree to improve the

state’s record on institutionalization, a court-appointed expert

concluded in 1991 that “there remain{ ] significant problems

and noncompliance . . . most significantly, unnecessary

institutionalization.” Id. Wyatt squarely contradicts

Petitioner’s claim (at p. 7) that “Alabama has a long history

of providing support, rehabilitation and protection for

individuals with disabilities.”

12

New York’s Long Island Development Center was

dismally described by a federal judge: “[V]isits by the court

to the Center revealed a deplorable situation. Clients lay half-

naked and unattended in their own urine and feces on cold

floors in dismal surroundings while untrained attendants

watched television. The facility’s inadequate professional

personnel failed to provide suitable training or educational

programs for residents. Entry into the institution often led to

swift physical and emotional deterioration and loss of skills.

The huge population of some fifteen hundred clients made

effective management and control impossible.” Society for

Good Will to Retarded Children vy. Cuomo, 745 F. Supp. 879,

879 (E.D.N.Y. 1990). Kentucky’s Outwood Institution has

been described as “atrocious.” Kentucky Ass’n for Retarded

Citizens v. Conn, 510 F. Supp. 1233, 1237 (W.D. Ky. 1980),

aff'd, 674 F.2d 582 (6" Cir. 1982), supplemental op., 718

F.2d 182 (6" Cir. 1983).

Congress knows that this state-sponsored

discrimination has not stopped. The General Accounting

Office revealed “serious quality-of-care deficiencies” in our

nation’s large public institutions for the mentally retarded.

The most prevalent problems are “insufficient staffing, lack

of active treatment, and deficient medical and psychiatric

care.” These problems have at times led to serious harm to

residents, “including injury, illness, physical degeneration,

and even death.” General Accounting Office, Medicaid —

Oversight of Institutions for the Mentally Retarded Should be

Strengthened (Sept. 6, 1996).

B. Discrimination In Zoning And Public

Housing

Outside state-run institutions, the states have

excluded persons with disabilities from the community

through discriminatory zoning laws and restrictions on public

I gt te

13

housing. In 1996, a federal court bluntly concluded that

“[c]ities . . . reacted to the deinstitutionalization movement in

a manner similar to that of the postbellum Southern state

governments that passed Jim Crow laws; they enacted

restrictive zoning ordinances that precluded assimilation by

the handicapped.” Epicenter, Inc. v. City of Steubenville, 924

F. Supp. 845, 849 (S.D. Ohio 1996). At the time of the

enactment of the ADA, this form of discrimination was

extensive.3!

Zoning discrimination continues today through

several methods. Some subdivisions of the states have

deliberately amended zoning laws to halt the establishment of

group homes for the disabled.32 Others have enacted zoning

ordinances restricting the number of unrelated persons who

31 See, e.g., Cleburne, 473 U.S. at 450 (holding that a city ordinance

requiring the operator of a group home for the mentally retarded to obtain

a special use permit violates the equal protection clause); J.W. v. City of

Tacoma, 720 F.2d 1126, 1127 (9th Cir. 1983) (holding that the city’s

refusal to issue a special use permit to the operator of housing for the

mentally disabled violated the due process clause of the Fourteenth

Amendment); Burstyn v. City of Miami Beach, 663 F. Supp. 528, 537

(S.D. Fla. 1987) (declaring unconstitutional several provisions of a city

ordinance regulating disabled housing); Stoner v. Miller, 377 F. Supp.

177, 180 (E.D.N.Y. 1974) (finding unconstitutional a city ordinance that

prohibited mentally ill persons from registering in hotels and boarding

houses).

32 See, e.g, ARC, Inc. v. New Jersey, 950 F. Supp. 637, 639-41 (D.N.J.

1996) (invalidating discriminatory zoning law), later proceeding at 986

F. Supp. 261 (D.N.J. 1997); Association for Advancement of the Mentally

Handicapped, Inc. v. City of Elizabeth, 876 F. Supp. 614, 617 (D.N.J.

1994) (same). See also Sunrise Dev., Inc. v. Town of Huntington, 62 F.

Supp. 2d 762, 774-75 (E.D.N.Y. 1999) (granting injunction against

zoning law); Assisted Living Assoc., L.L.C. v. Moorestown Township, 996

F. Supp. 409, 414 (D.N.J. 1998) (same).

14

can reside in certain communities.53 Still others have

enacted dispersal and density laws limiting the establishment

of group homes.*4 Another example of state-sponsored

discrimination against persons with disabilities is “ugly

laws,” local ordinances that forbid people with “unsightly” or

“disgusting” physical conditions from appearing in public.35

These laws were part of the Congressional Record when the

ADA was enacted.36

A review of judicial opinions shows that state and

local public housing authorities have refused to rent to

persons with physical and mental disabilities. For example,

in Cason v. Rochester Housing Authority, 748 F. Supp. 1002,

1005 (W.D.N.Y. 1990), the Rochester Housing Authority

33 See, e.g., City of Edmonds v. Oxford House, 514 U.S. 725, 728

(1995); Smith & Lee Assocs. v. City of Taylor, 102 F.3d 781, 786 (6th

Cir. 1996); Stewart B. McKinney Found. Inc. v. Town Planning &

Zoning Comm'n, 790 F. Supp. 1197, 1207 (D. Conn. 1992); United States

v. Schulykill Township, No. 90-2165, 1990 U.S. Dist. LEXIS 15555, at

*6-*7 (E.D. Pa. Nov. 16, 1990).

34 These statutes are set forth in the Appendix. See, e.g., ARIZ. REV.

STAT. § 36-582 (1999) (requiring 1,200 feet between homes for the

disabled) (App. 16); ARK. CODE ANN. § 20-48-606 (Michie 1999) (3,000

feet) (App. 23); CONN. GEN. STAT. § 8-3f (1999) (1,000 feet) (App. 45);

MICH. COMP. LAWS § 5.2961(16a) (1999) (1,500-3,000 feet) (App. 142);

N.J. REV. STAT. § 40:55d-66.1 (1995) (1,500 feet) (App. 180); N.C.

GEN. STAT. § 168-22 (1999) (half-mile) (App. 195); Wis. STAT. § 60.63

(1999) (2,500 feet) (App. 269). One commentator has described density

limits as “among the most irrational legislative reactions to the

establishment of homes for people with mental disabilities.” Arlene S.

Kanter, A Home of One's Own: The Fair Housing Amendments Act of

1988 and Housing Discrimination Against People with Mental

Disabilities, 43 AM. U. L. REV. 925, 977 n. 313 (1994).

35 See, e.g., CHICAGO MUN. CODE § 36-34 (1966); COLUMBUS GEN.

OFFENSE CODE 2387.04 (1972); OMAHA MUN. CODE 25 (1967).

36S. Rep. No. 101-116, at 7 (1989).

15

denied an applicant housing because she had a “need for a

wheelchair” and was “incontinent.” In Hunter v. Trenton

Housing Authority, 698 A.2d 25, 26 (N.J. Super. Ct. App.

Div. 1997), a physically disabled man was denied permission

by the Trenton Housing Authority to build (at his own

expense) a wheelchair ramp to enter his apartment.>”

Ill. STATES INTERFERE WITH THE RIGHT OF

PERSONS WITH DISABILITIES TO FORM

FAMILIES

A. States Have Forcibly Sterilized Persons

With Disabilities

The Court has repeatedly recognized that the right to

_control one’s ability to procreate, “to be free from

unwarranted governmental intrusion into matters so

fundamentally affecting a person as the decision whether to

bear or beget a child,” is fundamental. Eisenstadt v. Baird,

405 U.S. 438, 453 (1972); accord Planned Parenthood v.

Casey, 505 U.S. 833, 851 (1992). The Court has also

recognized a fundamental right to bodily integrity under the

due process clause. Cruzan v. Director, Missouri Dep't of

Health, 497 U.S. 261, 269 (1990).

The states share a long and shameful history of

depriving persons with disabilities of the right and ability to

procreate. By the early 1930s, more than thirty states had

enacted sterilization laws permitting the involuntary

sterilization of persons in state institutions, including “the

37 See also, e.g., Majors v. Housing Auth., 652 F.2d 454, 454 (Sth Cir.

1981) (public housing operator refused to waive its no pet policy to

accommodate a disabled tenant); Adapt v. Philadelphia Hous. Auth., No.

98-4609, 2000 U.S. Dist. LEXIS 5380, at * 1 (E.D. Pa. Apr. 14, 2000)

(city public housing authority failed to provide enough handicapped

accessible public housing units).

16

feeble-minded, “epileptics,” “idiots,” “morons,” “mental

defectives,” “socially inadequate,” “the diseased,”

“alcoholics,” “manic-depressives,” “schizophrenics,” and

“mentally enfeebled paralytics.”38 Between 1907 through

1963, those laws were used by the states to sterilize at least

60,000 persons.39 In its infamous decision of Buck v. Bell,

274 U.S. 200, 205-07 (1927), the Court explicitly endorsed

the involuntary sterilization of a seventeen-year old girl.4°

The states’ reasons for legalizing and carrying out

sterilizations of persons with disabilities were to eradicate a

group of persons who allegedly “burdened” society. The

eugenics-motivated state actions have never had a valid

justification.4! Far from leading the people into

enlightenment, as Petitioner and its amici would lead this

Court to believe,42 the states have been responsible for some

38 Many examples of these statutes are set forth in the Appendix. See

generally Phillip R. Reilly, The Surgical Solution: A History of

Involuntary Sterilization in the United States 45-55 (1991); Harry H.

Laughlin, Eugenical Sterilization in the United States (American

Eugenics Soc’y 1926).

39 Reilly, supra note 38, at 94.

40 See Paul A. Lombardo, Three Generations, No Imbeciles: New Light

on Buck v. Bell, 60 N.Y.U. L. REV. 30, 31 (Apr. 1985).

41 In Michigan, Ted Aslin and his brother, Fred, were involuntarily

sterilized at the age of 18 by the state of Michigan in 1944 because they

were “feeble-minded morons.” After their release, Fred and Ted went on

to raise adopted sons. For more than a decade, Ted Aslin has acted as a

licensed foster parent to approximately 100 children. 20/20: Breeding

Better Citizens: Forced Sterilization of Americans Believed to Have Some

Mental Defect (ABC television broadcast Mar. 22, 2000).

42 See Pet. Br. at 38-39 (states have been “overprotecting the

constitutional rights of the disabled”); Brief of Amicus Curiae of Hawaii,

et al., at 10 (states “are generally held up as positive examples”).

17

of the most horrible discrimination against persons with

disabilities.

B. State Discrimination Regarding The

Right to Marry

The right to marry has long been considered

fundamental. Meyer v. Nebraska, 262 U.S. 390, 399 (1923).

Marriage is one of the “basic civil rights of man.” Skinner v.

Oklahoma, 316 U.S. 535, 541 (1942). Nevertheless, persons

with disabilities have faced state-imposed restrictions upon

their right to marry. For example, Connecticut law provided

that, “No man or woman, either or whom is epileptic,

imbecile, or feeble-minded, shall intermarry, or live together

as husband and wife, when the woman is under forty-five

years of age.” 1895 CONN. PuB. ACTS 667. By 1914, thirty-

seven states and the District of Columbia had laws restricting

marriage for persons who were “epileptic,” “diseased,”

“insane,” “lunatics,” “imbeciles,” “alcoholics,” or “feeble-

minded.”43

The vast majority of states maintained such statutes

into the present era.44 For example, in 1987, Utah declared

that marriage with “a person afflicted with acquired immune

deficiency syndrome” is “prohibited and. . . void.” UTAH

CopE ANN. § 30-1-2(1) (1987). Relying on the ADA, a

43 Stevenson Smith et al., A Summary of the Laws of the Several States

Governing (1) Marriage and Divorce of the Feebleminded, the Epileptic

and the Insane, (Il) Asexualization, (III) Institutional Commitment and

Discharge of the Feebleminded and the Epileptic, 82 BULL. U. WASH. 5-

15 (May 1914).

44 Bruce Dennis Sales, et al., Disabled Persons and the Law: State

Legislative Issues 16-20 (Plenum Press 1980) (as of 1980, 42 states and

the District of Columbia had statutes restricting marriage for persons with

disabilities).

18

federal court struck down the statute in 1993. TEP vy.

Leavitt, 840 F. Supp. 110 (D. Utah 1993).

c. States Discrimination Against Parents

With Disabilities

The right to raise one’s children is protected by the

Constitution. Stanley v. Illinois, 405 U.S. 645, 651 (1972).

Balanced against this right is the state’s interest in the

welfare of the child. Wisconsin v. Yoder, 406 U.S. 205, 233-

34 (1971). A review of state court decisions reflect a

pervasive presumption that parents with disabilities are

automatically unfit.45 For example, a state court in

Massachusetts approved an adoption against the will of the

child’s mother, who had been hospitalized several times for

depression following the deaths of her father and uncle. The

appellate court vacated the ruling, noting testimony that the

woman was loving and caring to her child. In re Petition of

Worcester Children’s Friend Soc’y, 402 N.E.2d 1116 (Mass.

App. Ct. 1980).

Courts have also applied the “best interests of the

child” standard to find that a parent with disabilities is unfit.

For example, in 1993, an Alabama court affirmed a father’s

loss of custody primarily because he was HIV-positive.

AJ.B. v. P.W., 628 So. 2d 753, 756 (Ala. Civ. App. 1993).

A California trial court refused to permit an adoption of a

child by a deaf couple, despite the uncontested supporting

testimony of thirteen witnesses. The appellate court reversed

the ruling, holding that “[t]here can be no doubt that the

judge was biased and prejudiced against appellants . . . solely

because they were deaf-mutes.” Adoption of Richardson, 59

45 Most states have laws permitting the termination of rights of disabled

parents. See Sales, supra note 44, at 459-66 (analyzing and critiquing

guardianship statutes from all 50 states).

19

Cal. Rptr. 323, 327-29 (Ct. App. 1967). A Michigan trial

court terminated a deaf woman’s custody of her “two normal

children,” citing her deafness, forcing the appellate court to

reverse. Bednarski v. Bednarski, 366 N.W.2d 69, 73 (Mich.

Ct. App. 1985).46 The stereotypes of state judges regarding

the abilities of persons with disabilities to raise their children

remain unchanged. Last year, a trial judge ordered that a

blind father — a successful CEO of a computer company —

must be accompanied at all times by a “responsible adult”

while caring for his daughter, simply because of his

disability. Clark v. Clark, 725 N.E.2d 100, 103 (Ind. Ct.

App. 2000) (reversing trial court).

The sordid story of state-sponsored sterilization, and

restrictions on marriage and parenting, is one of the most

shameful chapters in our national history. These facts firmly

refute the uninformed assertion by a handful of states that

“the legislative record fails to reflect evidence of

discriminatory — no less unconstitutional — conduct by states

concerning the disabled.”47

IV. STATES HAVE HISTORICALLY

INTERFERED WITH THE RIGHTS OF

DISABLED PERSONS TO VOTE

Voting is a fundamental political right, because it is

preservative of all rights. Yick Wo v. Hopkins, 118 U.S. 356,

370 (1886). “Undoubtedly, the right of suffrage is a

46 See also In re Marriage of RR., 575 S.W.2d 766, 768 (Mo. Ct. App.

1978) (multiple sclerosis); Moye v. Moye, 627 P.2d 799 (Idaho 1981)

(epilepsy); Stewart v. Stewart, 521 N.E.2d 956 (Ind. Ct. App. 1988)

(HIV); In re Marriage of Carney, 598 P.2d 36, 40 (Cal. 1979)

(quadraplegic); In re Marriage of Levin, 162 Cal. Rptr. 757 (Ct. App.

1980) (stroke).

47 Brief of Amicus Curiae of Hawaii, et. al., at 9.

20

fundamental matter in a free and democratic society.

Especially since the right to exercise the franchise in a free

and unimpaired manner is preservative of other basic civil

and political rights, any alleged infringement of the right of

citizens to vote must be carefully and _mieticulously

scrutinized.” Reynolds v. Sims, 377 U.S. 533, 561-62 (1964).

A. State-Sponsored Exclusion Of Voters

With Disabilities

At the time of the enactment of the ADA, virtually

every state had specific constitutional provisions, statutes, or

case law that prohibited individuals with cognitive or

emotional impairments from voting. (Many of these statutes

are set forth in the Appendix.) Although disenfranchisement

may be justified following a hearing on the issue, many

States, however, routinely deny persons in institutions with

lesser or temporary cognitive or emotional disabilities the

right to vote without a specific finding that such persons are

incompetent to do so.

For example, in Boyd v. Board of Registrars of

Voters, 334 N.E.2d 629, 632 (Mass. 1975), institutionalized

persons attempted to register to vote, but were refused

because of their disability. The Supreme Judicial Court

reversed. Similar discrimination persists to this day. In an

action enjoined by the court, in Jn re Absentee Ballots Cast

By Five Residents of Trenton Psychiatric Hospital, 750 A.2d

790, 793-94 (N.J. Super. Ct. App. Div. 2000), the Board of

Election made no individualized competence inquiry but

simply refused to credit the votes by residents of a mental

hospital.

21

B. State Discrimination Against Persons

With Disabilities On Election Day

On election day in virtually every state, many people

with disabilities have been, and continue to be, denied the

right to cast a ballot in their neighborhood polling place. The

legislative history of the ADA reflected state-sponsored

electoral discrimination. See, e.g., 135 Cong. Rec. $10793

(daily ed. Sept. 7, 1989) (statement of Sen. Biden, recounting

a constituent who had to crawl or hire an ambulance to vote);

id. at S10753 (statement of Sen. Gore, criticizing “the

tradition of blatant and subtle discrimination” of states to

accommodate persons with disabilities on election day).

Such discrimination is pervasive and ongoing. For

example, in 1996, fifty-nine percent of New Hampshire’s

polling places were physically inaccessible to people with

disabilities.48 A recent nationwide survey revealed that

forty-seven percent of the respondents’ polling places lacked

an accessible path to the voting area and that fifty-two

percent of the respondents’ polling places lacked an

appropriately sized booth for persons using wheelchairs.4° A

March 2000 survey found that only twenty-seven percent of

Philadelphia’s 1681 polling places were properly

accessible.59 Confronted with evidence that, in two New

York counties, all polling places but one were inaccessible to

persons with disabilities, a federal court ordered access to be

48 Voting Rights Primary Access Committee, Exercising My Right to

Vote: The Accessibility of New Hampshire Polling Places to Citizens with

Disabilities (Apr. 1996).

49 Coalition for Accessible Political Elections, Report of the National

Voter Independence Project (Feb. 1999).

50 Debra Auspitz, Disabled Votes, PHILADELPHIA CITY PAPER, Mar. 9-

16, 2000.

22

made pursuant to the ADA. New York v. County of

Schoharie, 82 F. Supp. 2d 19 (N.D.N.Y. 2000); New York v.

County of Delaware, 82 F. Supp. 2d 12 (N.D.N.Y. 2000).

Without the ADA and its attendant consequences for non-

compliance, many states would simply continue their

“tradition of blatant and subtle discrimination” against its

citizens with disabilities.

¥. STATES HAVE DENIED PERSONS WITH

DISABILITIES EQUAL ACCESS TO THE

COURTS

A. Until the ADA Was Enacted, States

Routinely Excluded Disabled Jurors

“Whether jury service be deemed a right, a privilege,

or a duty, the State may no more extend it to some citizens

and deny it to others . . . than it may discriminate in the

offering of the elective franchise.” Carter v. Jury

Commission, 396 U.S. 320, 330 (1970). “The harm from

discriminatory jury selection extends beyond that inflicted on

the defendant and the excluded juror to touch the entire

community.” Batson v. Kentucky, 476 U.S. 79, 87 (1986).

Nevertheless, when Congress passed the ADA, it was

commonplace for the states to exclude persons with physical

and mental disabilities from jury service without regard to

their individual ability to function effectively as jurors.5!

For instance, New York law excluded “infirm and

decrepit” jurors for more than 150 years.52 In 1984, an

51 Examples of statutes barring service by jurors with disabilities are

included in the Appendix (e.g., App. 1, 15, 22).

52 Lewinson v. Crews, 282 N.Y.S.2d 83, 84-86 (App. Div. 1967)

(excluding a blind college professor as a juror); id. at 87-88 (Hopkins, J.,

dissenting) (law in force since 1829), aff'd, 236 N.E.2d 853 (N.Y. 1968).

New York courts continued to exclude blind persons from jury service

23

Alabama county “conceded that Shelby County is not

equipped to accommodate jurors who have severe

disabilities, and that Shelby County courts routinely excuse

such persons from jury service, as do all of the State's

courts.” Hill v. Shelby County, 599 F. Supp. 303, 304 (N.D.

Ala. 1984) (emphasis added). In 1978, an Arkansas federal

judge found that “[i]mpairment of the senses, particularly the

senses of sight and hearing, vitiates a person’s ability to serve

effectively as a juror.” Eckstein v. Kirby, 452 F. Supp. 1235,

1243 (E.D. Ark. 1978). In 1985, the Missouri Supreme

Court held that the categorical exclusion of “deaf, mute,

deaf-mute, and blind persons from inclusion in the jury pool”

was constitutional. State v. Spivey, 700 S.W.2d 812, 813

(Mo. 1985) (“We doubt that deaf persons have a community

of attitudes or ideas.”). The District of Columbia Superior

Court continued to exclude all blind persons from jury

service through 1993. Galloway v. Superior Court, 816 F.

Supp. 12, 16 (D.D.C. 1993).*3

until the 1980s. Jones v. New York City Transit Auth., 483 N.Y.S.2d 623,

625-26 (Civ. Ct. 1984); Jackanin v. Carey, 476 F. Supp. 420 (E.D.N.Y.

1979 (rejecting constitutional challenge to exclusion of blind juror), aff'd

mem., 633 F.2d 204 (2d Cir. 1980). Only with the passage of the ADA

did the New York state courts cease excluding disabled persons solely

because of their status and without regard to their individual abilities.

People v. Guzman, 555 N.E.2d 259, 261 (N.Y. 1990).

53 Even where the state legislature amended the law to remove statutory

exclusions of disabled persons, some state courts continued to exclude all

deaf persons from jury service. For example, in DeLong v. Brumbaugh,

703 F. Supp. 399, 406 (W.D. Pa. 1989), a judge serving on the superior

court for the State of Pennsylvania testified that “he would disqualify a

deaf person under all circumstances.”

24

B. States Have Also Excluded Disabled

Litigants From Accessing The Courts

States have also historically denied persons with

disabilities an equal opportunity to use the state courts as

litigants in civil matters by failing to remove architectural

and communications barriers that effectively exclude persons

with mobility impairments or sensory impairments from

using the court system. For example, in Kroll v. St. Charles

County, 766 F. Supp. 744, 752 (E.D. Mo. 1991), the federal

court found that the county court facilities were inaccessible

to persons with disabilities, in violation of the ADA.

Similarly, in 1984, Alabama officials admitted that its

facilities were not properly accessible to litigants. Hill, 599

F. Supp. at 304.

The exclusion of persons with disabilities from court

proceedings because of inaccessible court facilities has

persisted since the passage of the ADA. In Layton v. Elder,

143 F.3d 469 (8 Cir. 1998), the Eighth Circuit concluded

that the state of Arkansas had failed to provide sufficient

accessibility to Montgomery County Courthouse, and that as

_ aresult, the quadriplegic plaintiff has been excluded from the

state court system. Jd. at 472.54 In its 1997 report regarding

the accessibility of the California court system to persons

with disabilities, the California Judicial Council concluded

that many California court buildings were not accessible to

persons with disabilities, and that attitudinal barriers among

54 See also Matthews v. Jefferson, 29 F. Supp. 2d 525, 533-34, 540

(W.D. Ark. 1998\Marion County courthouse inaccessible; county “has

excluded mobility impaired individuals from participation in its services,

programs, [and] activities”).

25

court personnel denied equal access to persons with

disabilities.>>

VI. STATES HAVE DENIED PERSONS WITH

DISABILITIES THE RIGHT TO TRAVEL

The Constitution protects every citizen’s right to

travel from state to state. See United States v. Guest, 383

U.S. 745, 757 (1966). An integral part of this protection is

the right of those moving to a new state to be treated equally

in the new state of residence. Saenz v. Roe, 526 U.S. 489,

504-05 (1999). Many states, however, have affirmatively

violated this constitutional right with regard to persons with

disabilities by either prohibiting outright, or imposing

substantial penalties upon, the entry of persons with

disabilities into the states.

Historically, Alabama and other states forbade or

restricted the entry of disabled persons. Alabama law banned

the immigration of “persons suffering with contagious and

communicable diseases, of cripples without means and

unable to perform mental or physical service, of idiots, of

lunatics, persons of bad character.” 1907 ALA. Laws 313

(App. 9). Missouri made it a crime to import or receive

children “having any contagious or incurable disease or being

of feeble mind or of vicious character” into the state. 1901

Mo. Laws 132 (App. 163). Mississippi provided that vessels

bringing in any “infant, lunatic, maimed, aged, or infirm”

person must post bond. 1906 Miss. LAws 1011 (App. 160).

Other states with similar requirements included California, -

(App. 35) Massachusetts (App. 192), and New York (App.

138). These laws are included in the Appendix. See

55 Summary of Survey and Public Hearing Reports of the Access for

Persons with Disabilities Subcommittee of the California Judicial

Council’s Access and Fairness Advisory Committee 8-10 (Jan. 1997).

26

generally Gerald L. Neuman, The Lost Century of American

Immigration Law (1776-1875), 93 COLUM. L. REV. 1833,

1836 (Dec. 1993).

State governmental officials worried publicly that lax

immigration policies were letting “defective” foreigners slip

into the country and contaminate our gene pool.°® A study

by California’s State Board of Charities and Corrections

reported a strong “relation between race and mental

deficiency.” California State Bd. of Charities & Corrections,

Eighth Biennial Report, 51 (1918). Noting that “the ratio of

feeble-mindedness was far higher among Mexicans, Negroes,

and recent immigrants from Europe than among those of

native American stock,” the Board concluded that “California

has drawn a large proportion of immigrants of an undesirable

type.” Id. at 13-14, 19.

These types of exclusionary statutes are not just relics

from the past. Until a few months ago, Utah authorized its

counties to restrict the travel rights “of any . . . idiotic or

insane persons not having a lawful settlement in such

county,” or “of persons afflicted with or who have recently

been exposed to any contagious disease.” UTAH CODE ANN.

§ 17-5-252 (1999) (repealed May 1, 2000).

Vil. STATES HAVE DISCRIMINATED AGAINST

CHILDREN WITH DISABILITIES

Education is a “principal instrument in awakening the

child to cultural values, in preparing him for later... .

training, and in helping him to adjust normally to his

56 “Recent census statistics show that 80 per cent of the feeble-minded

children in the general population of the United States are the progeny of

aliens or naturalized citizens.” N.Y. TIMES, Feb. 18, 1912. See generally

Reilly, supra note 38, at 66.

27

environment.” Brown v. Board of Educ., 347 U.S. 483, 493

(1954). As they have done with children of racial minorities,

states have historically excluded and segregated children

with disabilities from the public schools. Virtually every state

has excluded children with disabilities from public education,

even when state constitutions required all children to attend

school.57? As state officials in Georgia put it, “the fact of

primary importance to remember is that a defective child will

be a defective adult, and will die a defective. There is no

philosopher’s stone to turn the base metals of defect into

gold.”>8

States regularly refused to educate children with

disabilities, concluding that “[i]n the regular grades the

feeble-minded and subnormal represent, as it were, an

unassimilable accumulation of human clinkers, ballast,

driftwood, or derelicts which seriously retards the rate of

progress of the entire class and which often constitutes a

positive irritant to the teach and the other pupils.” J.E.W.

Wallin, The Education of Handicapped Children (Houghton

Mifflin, 1924) (quoted in M. Lazerson, The Origins of

Special Education (1983)). New Mexico’s constitution

specifically excluded children with disabilities from public

education: “Every child of school age and sufficient physical

and mental ability shall be required to attend a public

57 See, e.g., IND. CONST. art. 8, § 1 (public schools must be “equally

open to all”); Miss. CONST. art. 7, § 201 (public education required for all

children between the ages of 6 and 21); N.D. CONST. art. 8, § 147 (“all

children”). See generally Burgdorf, A History of Unequal Treatment, 15

SANTA CLARA LAWYER 855, 868 (1975); S. Sarason & L. Doris,

EDUCATIONAL HANDICAP, SOCIAL POLICY AND SOCIAL HISTORY (1979).

58 Georgia Training School for Mental Defectives, Annual Report, at 4

(1922) (quoted in Timothy M. Cook, The Americans with Disabilities

Act: The Move to Integration, 64 TEMP. L. REV. 393, 403 (1991)). See

also Weintraub & Abeson, Appropriate Education for All Handicapped

Children: A Growing Issue, 23 SYRACUSE L. REV. 1037, 1057-58 (1972).

28

school.” N.M. CONST. art. XII § 5 (2000) (App. 187). State

courts historically upheld the exclusion of these unfortunate

citizens.59

Congress has compiled an extensive record of state-

sponsored discrimination against children with disabilities.

In enacting the Education for All Handicapped Children Act

of 1975, Congress compiled an extensive record of such

discrimination. See 20 U.S.C. § 1400(b) (Supp. IV 1980).

_ When it enacted the ADA, Congress likewise compiled many

examples of invidious education-related discrimination

against children with disabilities. For example, Congress

was told of a child confined to a wheelchair who was refused

admission to public school “because the principal ruled that

[she] was a fire hazard.” S. Rep. No. 101-116, at 7. One

Senator testified that his deaf brother was told that his

schooling would be limited to preparing him for one of only

three occupations — cobbler, printer, or baker — and that this

educational limitation led to a life of frustration and missed

opportunities. Hearings, supra note 7, at 16 (statement of

Sen. Harkin).

State segregation of children with disabilities was

common in the 1980s and early 1990s. For example, a 1988

study showed that states prohibited between 10 percent to 55

percent of students with severe disabilities from attending

their neighborhood schools. Meyer & Putnam, Social

Integration in HANDBOOK OF DEVELOPMENTAL AND

PHYSICAL DISABILITIES 107, 114 (V. B. Van Hasselt, P.

Strain & M. Hersen, eds., 1988). A national organization on

mental retardation reported that in 1992-93, only 7.1 percent

59 See, e.g., State ex rel. Beattie v. Board of Educ., 172 N.W. 153 (Wis.

1919) (excluding physically disabled child with normal mental

functioning); Watson v. City of Cambridge, 32 N.E. 864, 864 (Mass.

1893) (student “was too weak-minded”).

29

of children with mental retardation received their education

in regular classroom settings, and 56.8 percent of children

with mental retardation were educated in separate

classrooms, with little opportunity to interact with peers who

did. not have disabilities. Report Card on Inclusion in

Education of Children with Mental Retardation (The Arc

1995). Even in the most recent years, states have continued

to discriminate against children with disabilities.

CONCLUSION

Alabama’s claim (at p. 18) that “in passing the ADA,

Congress did not identify any pattern or practice of

unconstitutional state action, or for that matter even cite a

single instance of such conduct,” is simply wrong. Congress

found that our society “is still infected by the ancient, now

almost subconscious assumption that people with disabilities

are less than fully human and therefore are not fully eligible

for the opportunities, services, and support systems which are

60 See, e. g., Thomas ex rel. Thomas v. Davidson Academy, 846 F. Supp.

611 (M.D. Tenn. 1994) (school illegally discriminated against expelled

student because she had an autoimmune disease); Martinez v. School Bd,

861 F.2d 1502 (11™ Cir. 1988) (school improperly segregated a mentally-

retarded student with AIDS by building a glass wall between her and the

classroom); Robertson v. Granite City Community Unit School District

No. 9, 684 F. Supp. 1002 (S.D. Ill. 1988) (granting preliminary injunction

against school district that isolated first-grader with AIDS); Doe v.

Belleville Pub. Sch. Dist. No. 118, 672 F. Supp. 342 (S.D. Ill. 1987)

(exclusion of first-grader because he had AIDS); Ray v. School Dist., 666

F. Supp. 1524 (M.D. Fla. 1987) (ordering school district to educate HIV-

positive siblings to remain in school); Hairston v. Drosick, 423 F. Supp.

180 (S.D. W.Va. 1976) (exclusion of grade school child with spina bifida

violated Rehabilitation Act of 1973, and due process clause of the

Fourteenth Amendment); In the Interest of H, 218 N.W.2d 441, 445-46

(N.D. 1974) (although a “great many handicapped children in [North

Dakota had received] no education at all, . . . [hJandicapped children are

certainly entitled to no less than unhandicapped children under the

explicit provisions of the [state] Constitution”)

30

available to other people as a matter of right. The result is

massive, society-wide discrimination.” S. Rep. No. 101-116,

at 106-07.

When it enacted the ADA, Congress had developed

an extensive record proving that this “massive, society-wide

discrimination” included widespread _ state-sponsored

discrimination against persons with disabilities. This record

amply supports the federal government’s remedial power to

ensure that “No State shall make or enforce any law which

shall abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person of life,

liberty or property, without due process of law; nor deny to

any person within its jurisdiction the equal protection of the

laws.”

31

Respectfully submitted.

CLAUDIA CENTER EELS

SARAH COLBY es B. MCCALLUM

EMPLOYMENT LAW CENTER KATHRYN R. COLBURN

1663 Mission Street MELISSA HANDRIGAN

Suite 400 HOwREY SIMON ARNOLD &

San Francisco, CA 94103 WHITE, LLP

(415) 864-8898 1299 Pennsylvania Ave., NW

Washington, DC 20004

(202) 783-0800

LEE A. PERSELAY GUY WALLACE

DISABILITY RIGHTS SCHNEDDER, MCCORMAC

CENTER, INC. & WALLACE

18 Low Avenue 1700 California Street

P.O. Box 3660 Suite 340

Concord, NH 03302 San Francisco, CA 94109

(415) 864-8898 (415) 440-3440

BRIAN EAST

ADVOCACY, INC.

7800 Shoal Creek Blvd. #171-E “

Austin, TX 78757-1024

(512) 454-4816

*COUNSEL OF RECORD

August 11, 2000