# Amicus Curiae Brief — Board of Trustees of Univ. of Ala. v. Garrett > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_0922%3A17 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2001 - **Citation:** 531 U.S. 356 ## Text 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 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_0922%3A17. Public record. Not legal advice.