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

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Supreme Court, U.S

6 a) FILED

No. 99-1240 | AUG 1 1 onnn

In THE CLERK

Supreme Court of the Unite States

THE BOARD OF TRUSTEES OF THE UNIVERSITY OF ALABAMA

AND THE ALABAMA DEPARTMENT OF YOUTH SERVICES,

Petitioners,

PATRICIA GARRETT AND MILTON ASH,

Respondents.

On Writ of Certiorari to the United States Court of Appeals

for the Eleventh Circuit

BRIEF OF AMICI CURIAE SELF-ADVOCATES BECOMING

EMPOWERED, PEOPLE FIRST OF ALABAMA, PEOPLE FIRST

OF CONNECTICUT, PEOPLE FIRST OF GEORGIA, MASS.

ADVOCATES STANDING STRONG, PEOPLE FIRST OF OHIO,

SPEAKING FOR OURSELVES OF PA., PEOPLE FIRST OF

TENNESSEE, PEOPLE FIRST OF DANE COUNTY AND

WISCONSIN, THE AUTISM NATIONAL COMMITTEE, THE

CENTER FOR LAW AND EDUCATION AND TASH, IN SUPPORT

OF RESPONDENTS

Thomas K. Gilhool

Counsel of Record

Michael Churchill

Judith Gran

Barbara Ransom

Max

PUBLIC INTEREST LAW CENTER

OF PHILADELPHIA

125 South Ninth Street, Suite 700

Philadelphia, PA 19107

August 11, 2000. Tel.: (215) 627-7100

BEST AVA

TABLE OF CONTENTS

INTEREST OF AMICI ...........-- cece eee eceeee l

SUMMARY OF ARGUMENT .........-.-----+-++: 2

po: |; Serra ira ee eas ee iy ak ek 3

I. TITLE II OF THE AMERICANS

WITH DISABILITIES ACT IS A REMEDIAL

MEASURE THAT IS CONGRUENT AND

PROPORTIONAL TO THE LONG, TRAGIC,

AND ONGOING HISTORY OF

UNCONSTITUTIONAL, STATE-SPONSORED

DISCRIMINATION AGAINST PEOPLE

WITH DISABILITIES .........-------eeee: 3

A. For Over a Century, the States Have

Unconstitutionally Segregated

and Isolated People with Disabilities. ..... 3

B. The Regime of State-Mandated

Discrimination Continues to Deny

Equal Citizenship to People

Se 11

C. Through the Act, Congress Sought

to Remedy and Deter Equal Protection

Violations Against People

CS, oo kin ke sa eee ees 16

The Act is Proportional and

Congruent to the History of

Unconstitutional, State-Sponsored

Discrimination Against People

errr eee 20

THE COURT SHOULD AFFIRM

THAT DISABILITY-BASED

CLASSIFICATIONS ARE SUBJECT TO

HIRIGHIENED SCRUEINY. .5 5-2 eee ees 23

A Holding that the Act is Unenforceable

Against States Would Render Invalid the

Cleburne’s Court’s Analysis and its

Protections for People with Disabilities. .. 23

The Court Has Not Set

“Minimal Scrutiny” as the Level of

Scrutiny for Disability-Based

CRN ote ie oe 26

The History of Invidious Discrimination

Against People with Disabilities Justifies

Peigmtenes Sevwty 2... eee 27

Oe re ey eee te 30

=e eee

TABLE OF AUTHORITIES

FEDERAL CASES

Alexander v. Choate, 469 U.S. 287 (1985) ............ 7

Allen v. Wright, 468 U.S. 737 (1984) ............... 11

Arc of New Jersey v. New Jersey, ;

Soe. eee. G7 Ceres. 1996) ..... 2.20. 15

Bangerter v. Orem City Corp.,

O67 .36 1491 (10th Ce. 1995) .................. 15

Bragdon v. Abbott, 524 U.S. 624 (1998) ............. 22

Brown v. Bd. of Educ., 347 U.S. 483 (1952) ......... 30

Be HP, 2D. BOP CTTET) we eens 9

Chinese Exclusion Cases, 130 U.S. 581 (1889) ....... 28

City of Boerne v. Flores, 521 U.S. 507 (1997) ..... 20, 22

City of Cleburne v. Cleburne Living Center,

Be RE Sg) es Seer ". , passim

Clark v. Cohen, 794 F.2d 79 (3rd Cir.),

cert. denied, 479 U.S. 962 (1986) ............... 13

Edwards v. California, 314 U.S. 160 (1941) .......... 28

Florida Prepaid Postsecondary Educ. Exp. Bd.

v. College Sav. Bank, 527 U.S. 627 (1999) ....... 20

Helier v. Doe, $09 U.S. 312 (1993) ...........56.-. 27

Hunter v. Underwood, 471 U.S. 222 (1985) .......... 13

Jackson v. Fort Stanton Hosp. & Training Sch.,

757 F. Supp. 1243 (D.N.M. 1990),

' rev'd in part on other grounds,

OGG Poe pee cree Ge. B9Pe) ww www eee 14

Kimel v. Florida Bd. of Regents,

_- US. __, 208. Ce G31 GOO) ................- 3

Korematsu v. United States, 323 U.S. 214 (1944) ...... 29

Lelsz v. Kavanagh,

673 F. Supp. 828 (N.D. Tex. 1987) ........... 14, 15

Loving v. Virginia, 388 U.S. 1 (1967) .............. 29

Marbrunak v. City of Stow, 974 F.3d 43 (6th Cir. 1992) . 15

McLaren v. Fleischer, 256 U.S. 477 (1921) .......... 27

Metropolitan Stevedore v. Rambo, 515 U.S. 291 (1995) . 27

Meyer v. Nebraska, 262 U.S. 390 (1923) ........... 4, 13

Mills v. Bd. of Educ., 348 F. Supp. 866 (D.D.C. 1972) .. 9

Mississippi Univ. for Women v. Hogan,

SS os a vo ees ke oe 24

New York State Ass'n for Retarded Children v. Carey,

351 ©. OU. PUGS GLEN. DT. PGS ww eens 14

New York State Ass'n for Retarded Children v. Carey,

eg B® fo ote Ce Al). ne 7

O’Connor v. Donaldson, 422 U.S. 563 (1975) ......... 4

Olmstead v. L.C., 527 U.S. 581 (1999) ......... 2, 42, 23

Pennsylvania Ass'n for Retarded Children v. Pennsylvania,

PR Bey 8 Oe, os re 8

Pennsylvania Ass'n for Retarded Children v. Pennsylvania,

43 ©. Game. 27e UGE. PO. PETE). ws oc ei ee os 9

Plessy v. Ferguson, 163 U.S. 537 (1896) ............ 29

Foter v. Doe, 437 U.B. Ha RS) nn cc ewes. 8, 28

S.H. v. Edwards, 886 F.2d 292 (11th Cir. 1989) ....... 13

San Antonio Indep. Sch. Dist. v. Rodriguez,

RN kb oo Gwe tee pine 27

Savidge v. Fincannon, 836 F.2d 898 (Sth Cir. 1988) .... 13

School Bd. of Nassau County v. Arline,

ok Be i ena t weer ere ae

School Comm. of Burlington v. Mass. Dep’t of Educ.,

ae Gy IE, hid cS oS ese ck> Cewduee xs 8

Schweiker v. Wilson, 450 U.S. 221 (1981) ........... 26

Southeastern Community College v. Davis,

ee ee OE: ko cee tkas eco OR ea es 21

Thomas S. v. Flaherty, 699 F. Supp. 1178 (W.D.N.C. 1988),

aff'd, 902 F.2d 250 (4th Cir.),

cert. denied, 498 U.S. 951 (1990) ............... 13

me oR? acts

United States ex rel. Fink v. Todd,

1 F.2d 246 (2d Cir. 1924),

rev'd on other grounds, 267 U.S. 571 (1925) ....... 28

Wyatt v. Poundstone,

892 F. Supp. 1410 (M.D.Ala. 1995) ............ 5,13

Wyatt v. Rogers,

985 F. Supp. 1356 (M.D. Ala. 1997) ........... 6, 13

Wyatt v. Stickney, 334 F. Supp. 1341 (M.D. Ala. 1971) .. 5

Youngberg v. Romeo, 457 U.S. 307 (1982) ............ 3

STATE CASES

State ex rel. Beattie v. Bd. of Educ., 169 Wis. 231 (1919) 8

Watson v. City of Cambridge, 157 Mass. 561 (1893) .... 9

FEDERAL STATUTES

Education of All Handicapped Children Act,

USL. te. SM © bs asks Oe 9

STATE STATUTES

44 Ala. Code §§ 19-20(1940) .................... 10

oie, ©. ef oS 8 > Sere 5

OOD FR: BS Te ee oie ood vas cae weenie 9

Did. CO Se GO i vn doe ese awesk eure aceseen 10

SOT Cok Bek. Gi. SONG, FOGG vn oc os ks oes 8

i ogg ey tf) rrr sre rs 10

Cal. Ce, Cn Sa 6 bo eee 10

1963 Colo. Sess. Laws ch. 243, 864 ................. 8

1888 Coan. Pub. Acts tt. 139409 ......... 0c ccuee 8

Conn. Gem. Beet. GAG-BUISIE) 2 wo wo ccc ces sence 10

D.C. Code Ann. § 30-103(1)(2000) ................ 10

Fla. Comp. Gen. Laws § 8003 (1927) ...........-.-- 10

Ga. Code Ann. § 23-2005 (1935) ...............--. 10

DP ee Ge. UD RAE ESE ook incre sce sseureva 7

af Be a 10

Se. RAED BoB P CISD on ok heave ences bees 10

ee FF BS mene 10

Kan. Stats. Ann. § 39-339 (Corrick 1935) ............ 10

am. Stat. Amn. § Z5-EZOCIGTT) 2... we ees 10

Ky. Rev. Stat. Ann. § 402.020(1)(1971) ............. 10

33 Me. Rev. Stats. §43 ....... id ay Ee eS 10

Me. Rev. Stat. Ann. tit. 19, § 32 (1964) ............. 10

paeen: Diet. Ame. § 25.6099) 2... eines 10

Minn. Stats. §§ 3163, 3173 (Mason's 1927) ........... 10

Miss. Code Ann. § 93-1-S(f)(2000) ................ 10

fae. SO AR. SSTIDCIGe) sok ees 10

ao. Mav. Gemt.-6 S51 CIO CISES) ow we ees 10

Neb. Rev. Stat. § 42-103 (1974) ................... 10

ow me Oe ei. * : eran 8

Nev. Comp. Laws § 5147 (Hillyer 1927) ............ 10

fe ee Be Ll. ee errene ann trees 10

ST Oe: ec I ow sb ees oa eR 8

ge aR ee re ee er 8

muA. SEM: DOME, S SEIS CUSOSD jon ee viene ce> 10

Sr ee: I Oe os vos chaos Feed ee 8

N.D. Cent. Code § 14-03-17 (1971) ................ 10

Ohio Rev. Code Ann. § 3101.06 (1975) ............. 10

rrr rr rrr er 8

2 Pe. Sik. Amm. § 1SUGMIGGT) nw wk eee 10

mi. Gem. Lowe § IS-1-S (ISM) ww eee cs 10

ee, RD CUO oo co cab bwancceswaes 10

Tenn. Code Ann. § 36-3-109 (1999) ................ 10

15 Vt. Pub. Laws ch. 160, § 3949 (1933) ............ 10

ee Reels errr eee 10

V.I. Code Ann. tit. 16, § 2(1)(2000) ................ 10

Va. Code Ann. § 20-46(4)(1985) .................. 10

wii baer ae

Ab RAS RIN BEI AD e pti WNBA ais lie nd aa ah,

Wash. Rev. Code Ann. § 26.04.030 (1976) ........... 10

Wyo. Stat. Ann. §§29-1206a, 29-1205b (Courtright 1931) 10

Wyo. Stat. Ann. § 20-32 (1959) ......--------++>- 11

LEGISLATIVE MATERIALS

Oversight Hearing on H.R. 4498, Americans with

Disabilities Act of 1988, Before the Subcomm. on Select

Educ., House Educ. and Labor Comm.,

100th Cong., 2d Sess. 10 (1988) .........-..---- 19

Hearings Before the Subcomm. on the Handicapped, Sen.

Labor and Human Resources Comm., and the

Subcomm. on Select Educ., House Educ. and Labor

Comm., 100th Cong., 2nd Sess. 15 (1988) .......-. 11

Hearings on H.R. 2273 Before the House Subcomm. on

Select Educ. of the Educ. and Labor Comm.,

101st Cong., Ist Sess. 10(1989) .........-.----- 19

Hearings on S. 933 Before the Comm. on Labor

and Human Resources and the Subcomm. on the

Handicapped, 101st Cong., Ist Sess. 215 (1989) .... 19

Hearings on H.R. 2273 Before the Subcomm.

on Civil and Constitutional Rights of the

Judiciary Comm.,

101st Cong., Ist Sess. 418 (1989) .........--.--- 19

H.R. Rep. No. 101-485(II1),

101st Cong., 2d Sess. (1990) ........-------+--- 22

S. Rep. No. 116, 101st Cong., Ist Sess. 8 (1989) ...... 16

135 Cong. Rec. $4986 (May 9, 1989) .........------ 16

136 Cong. Rec. H2449 (May 17, 1990) ........------ 16

MISCELLANEOUS

2 Recall 1949 Radiation Tests on Them,

N.Y. Times at Al4 (Jan. 14, 1994) ..........----. 6

Baller et al., Mid-Life Attainment of the Mentally Retarded:

A Longitudinal Study, 75 Genetic Psychol. Monographs

oo : : Re warren genre irae Brees har 15

D. Braddock et al., Zhe State of the States in Developmental

- Disabilities: 2000 Study Summary (2000) .......... 13

A. Chase, The Legacy of Malthus (1980) .......... 10, 29

J. Conroy et al.,

The Pennhurst Longitudinal Study (1985) ......... 15

C. Davenport, Heredity in Relation to Eugenics (1911) . . 29

C. Davenport, State Laws Limiting Marriage

Selection in Light of Eugenics (1913) ............ 29

H. Goddard, Mental Testing and the Immigrants,

2 J. Delinquency 243 (1917) .........- eee eees 28

S. Gould, The Mismeasure of Man (1995) ........... 29

S. Gould, Carrie Buck’s Daughter, in Flamingo’s Smile:

Reflections in Natural History (1985) ........... 10

Government Used 16,000 in Radiation Tests,

i eS ee ee eer ee ST ree 7

Gutshall et al., An Exploratory Study of the Interrelations

Among Driving Ability, Driving Exposure and Socio-

economic Status of Low, Average and High

Intelligence Males,

35 Exceptional Children 43 (1968) .............. 15

S. Harlan et al., Disability in Work Organizations:

Barriers to Employment Opportunity,

Univ. at Albany, State Univ. of New York (1995) .. 15

H. Hart, Social Problems in Alabama (1918) .......... 6

Karst, The Supreme Court, 1976 Term -- Forward: Equal

Citizenship under the Fourteenth Amendment,

ee ee ae ee a 2

J. Landau, Out of the Mainstream: Education

of Disabled Youth in Massachusetts (1987) ...... 14

J. E. Larson, Sex, Race and Science:

Eugenics in the Deep South (1995) ............--. 5

viii

ONS eo ta ts

ee ee Te eT

National Counsel on the Handicapped,

Toward Independence (1986) .....------++++++: 17

National Counsel on the Handicapped,

On the Threshold of Independence (1988) ...... 17, 18

S. Noll, Feeble-Minded in Our Midst 90 (er 29

Note, A Sterilization Law for Kentucky,

23 Ky. L.J. 168 (1934) ......-- eee eee eee 10

Notes: The Right of the Mentally Disabled to Marry:

A Statutory Evaluation, 15 J. Fam. L. 463 (1976-77) 10

S. Selden, Inheriting Shame: The Story of Racism

and Eugenics (1999) .....----02-+00e 00 7, 13, 29

K. Stampp, The Tragic Legend of Reconstruction,

in Era of Reconstruction (1965) ......---++-+++- 28

The Menace of the Feebleminded in Connecticut (1915) 29

The Negro: A Menace to American Civilization (1907) . 29

J. Trent, Inventing the Feeble Mind (1994) .......... 28

Trustees of the Mass. Sch. for the Fi eeble-Minded at

Waltham, Report of the Trustees of the

Mass. Sch. for the Feeble-Minded at

Waltham for the Year Ending Nov. 30, 1908 (1909) .. 6

U.S. Comm’n on Civil Rights,

Accommodating the Spectrum

of Abilities (1983) ........-----+++eeeee> 4,17, 18

U.S. Dept. of Educ.,

Twenty-First Annual Report to the Congress on the

Implementation of the Individuals with Disabilities

Education Act (IDEA) (1999) ......---++-+- <5 ae

US. Dept. of Energy,

Report of the Advisory Comm. on Human Radiation

Experiments (1995) ......-----++eseerrtteee: 6

N. Vogel, Retarded, Autistic Home Failed

to Prevent Death, L.A. Times (July 17, 2000) ......- 14

L. Weicker, Jr., Historical Backgrounds of the

Americans with Disabilities Act,

64 Temple L. Rev. 387(1991) .............4-. 18

2s PRR EOI EE EEL DLL ONS DIO EEE ESOS

INTEREST OF AMICI

Amici are grass-roots organizations of Americans with

developmental disabilities, their families, friends, and

professionals in the disability field.! Amici Self-Advocates

Becoming Empowered and its affiliate “People First”

organizations are directed by people with disabilities, many

of whom were once segregated in large state institutions.

Because of the Americans with Disabilities Act, many now

live in integrated community settings. People First claim

more than 900 chapters in 46 states, with 20,000 active

members. Amici the Autism National Committee, the

Center for Law and Education and TASH -- Disability

Advocacy Worldwide also share a commitment to the

principle that public services, supports and special

education must allow people with disabilities to be

independent and self-sufficient. For amici, the Americans

with Disabilities Act has been a doorway to freedom,

opportunity, and equal protection and citizenship under law.

Amici have participated in numerous Cases that have

raised substantive claims of constitutional violations, many

of which were subsequently decided on statutory grounds.

Amici are therefore aware of how important Congressional

enactments have been to vindicating their constitutional

rights. They respectfully submit this brief to share with the

Court the history of state-sponsored discrimination they

have experienced as well as the importance of national anti-

discrimination laws in protecting their constitutional rights.

| The parties have consented to the filing of this brief. No

counsel for a party has authored this-brief, in whole or in part, and no

other than amici and their counsel has made any monetary

contribution for its preparation.

SUMMARY OF ARGUMENT

Congress enacted the Americans with Disabilities Act

to remedy a century of state-sponsored, invidious, and

unconstitutional discrimination against people with

disabilities. For a century, every state acted to segregate,

isolate, and eliminate people with disabilities from the

community. State laws and policies segregated people with

disabilities in institutions, barred them from public schools,

prohibited them from marrying and mandated their

sterilization. This pervasive state action denied and

continues to deny people with disabilities equal protection

and citizenship by excluding them from “everyday life

activities, including family relations, social contacts, work

options, economic independence, educational advancement,

and cultural enrichment.” Olmstead v. L.C., 527 U.S.

581, 600 (1999).

The Americans with Disabilities Act is a measured and

proportionate national remedy for this historical regime of

state-mandated discrimination. The Act upholds and

enforces “the principle of equal citizenship ... [that]

presumptively forbids the organized society to treat an

individual either as a member of an inferior or dependent

caste or as a non-participant.” Karst, The Supreme Court,

1976 Term - Forward: Equal Citizenship under the

Fourteenth Amendment, 91 Harv. L. Rev. 1, 6 (1977).

Amici further submit that this Court should affirm that

disability-based classifications are subject to heightened

scrutiny review. Such review is justified by the purposeful

unequal treatment people with disabilities have faced at the

hands of the states, treatment that parallels race, gender and

ethnic-based discrimination, and would clarify and fulfill

the “searching review” the Court employed in City of

SS a Ss aa

ee Sees

Cleburne v. Cleburne Living Center, 473 U.S. 432, 457

(1985), to strike down a discriminatory zoning ordinance.

ARGUMENT

I. TITLE If OF THE AMERICANS WITH

DISABILITIES ACT IS A REMEDIAL MEASURE

THAT IS CONGRUENT AND PROPORTIONAL

TO THE LONG, TRAGIC, AND ONGOING

HISTORY OF UNCONSTITUTIONAL, STATE-

Sponsored Discrimination Against People

with Disabilities.

To determine whether a statute is a valid enforcement

measure, courts must “first identify the Fourteenth

Amendment ‘evil’ or ‘wrong’ that Congress intended to

remedy, guided by the principle that the propriety of any §5

legislation ‘must be judged with reference to the historical

experience ... it reflects.” Florida Prepaid Postsecondary

Educ. Expense Bd. v. College Sav. Bank, 527 U.S. 627,

639-40 (1999)(quoting City of Boerne v. Flores, 521 U.S.

507, 525 (1997)).

In Cleburne, the Court scrutinized the six proffered

grounds for the zoning ordinance and rejected all because

they furthered no governmental interest. Three of the six

grounds were based on “vague, undifferentiated fears”

(neighbors’ negative attitudes; the fears of elderly residents;

the possibility of harassment); two on irrational assumptions

about the risks the home’s location posed to the residents or

others; the last on an irrational assumption that the home’s

size would constitute a burden. While recognizing that the

retarded “suffer a disability not shared by others”, the

constitutional question was “why this difference warrants a

. regulation that others need not observe”. 473 U.S. at

experienced a segregation which shuts away the humanity ... We have

been institutionalized, we have been sheltered, we have had our choices

limited ... This legislation sets many people free who challenge the best

of our society to respect the dignity and integrity of the individual.” ).

449-50. The Court concluded “that requiring the permit in

this case appears to us to rest on an irrational prejudice

against the mentally retarded,” and accordingly struck

down the ordinance. Id. at 450.

This Court has similarly concluded that this conduct

is exactly what the Act and its antecedent statute, Section

504 of the Rehabilitation Act, 29 U.S.C. § 794, address. In

the first case reviewing Section 504, the Court held the

statute prohibits an employer from “exclud{ing] from

participation in a federally funded program ‘solely by reason

of his handicap,’ indicating only that mere possession of a

handicap is not a permissible ground for assuming an

inability to function in a particular context.” Southeastern

Community College v. Davis, 442 U.S. 397, 406 (1979).

Subsequently, this Court held the statute is “carefully

structured to replace such reflexive reactions to actual and

perceived handicaps with actions based upon reasoned and . .

‘sound judgments.” School Bd. of Nassau County v. Arline,

480 US. 273, 284 (1985\emphasis added).

“[D]iscrimination on the basis of mythology [is] precisely

the type of injury Congress sought to prevent.” /d. at 285.

In Olmstead, this Court held the Act prohibits state

conduct such as unnecessary institutionalization, that is

based on or “perpetuates unwarranted assumptions that

persons [with disabilities]. . .are incapable or unworthy of

participating in community life” or that “severely diminish

the everyday life activities of individuals, including family

relations, social contacts, work options, economic

independence, educational advancement, and cultural

enrichment.” Olmstead, 527 U.S. at 600-01. Thus, if

including a person with a disability in the community is

reasonable and does not fundamentally alter the state’s

disability services program, the state’s exclusion of the

person from the community is irrational and would withstand

neither the Act nor the Fourteenth Amendment. See

Olmstead, 527 U.S. at 602.76

The Act is proportional because it imposes no duty

except with regard to qualified persons with disability.

Under Title 1, undue burden and fundamental alternation

modify the duty; under the public services provisions of

Title II, only fundamental alteration obtains. H.R. Rep.

101-4851), 101st Cong., 2nd Sess. 50 (1990). Just as

Justice White did in Cleburne, the only way to be sure

whether state action is prohibited under the Act is

thoughtfully to consider whether the reasons given are

factually correct and not based on myth, stereotype or

ignorance. In short, the question required by the Act is

whether upon analysis, the reasons dissolve to prejudice.

See Bragdon v. Abbott, 524 U.S. 624, 650 (1998)(decisions

covered by the Act must be based on “objective

evidence” ); see also Olmstead, 527 U.S. at 602.

Considering the Act’s coverage and defenses, the

constitutional violations that Title II prohibits are

proportional if not identical to those forbidden unanimously

by the Court in Cleburne. Petitioners dismiss Cleburne on

“level of scrutiny” grounds while deliberately avoiding the

content of the Court’s opinion. Under Cleburne, it is not

true that “any excuse” will suffice; rather, conduct “whose

relationship to an asserted goal is so attenuated ... render[s]

the distinction arbitrary or irrational.” 473 U.S. at 446

(citations omitted). The Act is no different: it prohibits

conduct that differentiates on the basis of, or discriminates

against, disability when, after careful consideration of the

remedies constitutional violations can fall within the sweep of Congress’

enforcement power even if in the process it prohibits conduct which is

not itself unconstitutional and intrudes into ‘legislative spheres of

automony previously reserved to the States.’” City of Boerne, 521

U.S. at 518 (quoting Fitzpatrick v. Bitzer, 427 U.S. 445, 455 (1976)).

Act’s defenses, no rational justification for the conduct

exists.

ll. THE COURT SHOULD AFFIRM _ THAT

DISABILITY-BASED CLASSIFICATIONS ARE

SUBJECT TO HEIGHTENED SCRUTINY.

Amici submit that the Court should acknowledge and

affirm the heightened scrutiny review for disability-based

classifications that the Court actually applied in Cleburne,

with five Justices saying so and all nine doing so. Certainly,

this Court has never applied the “minimal scrutiny”

Petitioners seek here. Moreover, if Petitioners’ arguments

are accepted, the Court’s analysis in Cleburne would be

invalid and stood on its head.

A. A Holding that the Act is Unenforceable

Against States Would Render Invalid the

Cleburne Court’s Analysis and its Protections

for People with Disabilities.

In unanimously striking down the Texas ordinance, the

Cleburne Court acknowledged the long and invidious state-

sponsored discrimination against people with disabilities,

calling it “grotesque.” 473 U.S. at 454, 461. As stated

above, the Court conducted a “searching review” of each

of the six reasons offered to justify the exclusionary statute

and rejected each as bearing no relation to a legitimate

governmental concern. /d. at 457. In so doing, the Court

applied a test which Justice White called “rational basis”

but which is in fact identical to heightened scrutiny review.

Indeed, five Justices so found. Justice Marshall, joined by

Justices Brennan and Blackmun, explicitly found the Court

used “precisely that sort of probing inquiry associated with

heightened scrutiny.” Id. at 458.

Justice Stevens rejected Justice White’s categorization

of the Cleburne test as “minimal” and explicitly eschewed

categories of scrutiny. Instead of the talismanic application

of rigid levels of review, Justice Stevens recognized that

“classifications based on ... mental retardation{] do not fit

well into sharply defined classifications,” id. at 451, and

applied a simple syllogism. When the “class ... harmed by

the legislation” has been “subjected to a ‘tradition of

disfavor’ by our laws”, Id. at 453, the Court must carefully

scrutinize the proffered justification for the state action.

Justice Stevens found that his standards apply to disability

because persons with retarded “‘have been subject to a

history of unfair and often grotesque mistreatment.’” Jd. at

454 (citation omitted). Thus, although not using the words

“heightened scrutiny,” Justice Stevens and Chief Justice

Burger, as well as three other Justices, rejected “minimal

scrutiny” and required a review identical to heightened

scrutiny for the Cleburne zoning ordinance.

Cleburne held that disability-based classifications fall

when based on “mere negative attitudes or fear” or “[p]ri-

vate biases,” 473 U.S. at 448, exactly like gender-based

classifications, which the Court has long held “must be

applied free of fixed notions concerning the roles and

abilities of males and females.” Mississippi Univ. for

Women v. Hogan, 458 U.S. 718, 724 (1982). Under

heightened scrutiny, a statutory classification fails if it

“reflects archaic and stereotypic notions.” Jd. Yet if, as

Petitioners urge, the congruence of these tests is ignored,

“rational basis” threatens to do what the Cleburne Court

warned should not happen: it would leave people with

disabilities “unprotected from invidious discrimination.”

473 U.S. at 446.”” Amici submit that the semantic game of

"Tn finding that Justice White refused to name a higher level

of scrutiny but applied one in practice, Justice Marshall warned that the

seems Ersgesesh=raimilic'= “Sint TIS OIE ECB PRESS eR SERENE SA (I iC

words should be ended: The Court must affirm that people

with disabilities are a quasi-suspect class and that disability-

based classifications must be reviewed with heightened

scrutiny.

In recommending what he called “rational basis”

review, Justice White relied significantly on existing anti-

discrimination laws. He reasoned that such laws meant that

persons with disabilities are not “politically powerless in

the sense that they have no ability to attract the attention of

the lawmakers” and exemplified a lack of “continuing

antipathy or prejudice and a corresponding need for more

intrusive oversight by the judiciary.” Jd. at 445-46. The

Disabilities Act would presumably rank among the laws

evincing a changed attitude toward disability as well as the

influence of disability organizations. Thus the inherent

paradox presented here: a lower level of scrutiny threatens

to render unenforceable the very laws that justified

lowering the level of scrutiny.

Ignoring the analysis of all three opinions, and

ignoring that nine justices were unanimous in what the

Court actually did, Petitioners wield “rational basis” as a

sword with which they urge this Court to cut down the laws

and protections whose existence Justice White used as the

very grounds for finding only a limited review necessary.

People with disabilities therefore would be deprived of the

heightened constitutional protection of their rights because

they were able to obtain the statutory protection which this

“searching inquiry” of the Cleburne majority would be ignored by

future litigants and courts. “[TJhe Court provides no principled

foundation for determining when more searching inquiry is to be

invoked.” 473 U.S. at 460. Fifteen years later, Justice Marshall's

fears have been realized as Petitioners use Cleburne to argue for near-

total deference to states in setting classifications affecting people with

disabilities.

Court is now being asked to find unenforceable.”

Conversely, people with disabilities would be deprived of

the statutory protections Congress found necessary to

prevent state-sponsored constitutional deprivations because

they had the power to obtain that protection from Congress.

This is a classic Catch-22. The authors of Cleburne could

neither have intended nor foreseen such perverse irony.

Had Justice Stevens known that his refusal to apply the

rigid three-tier construct would be used to cut down one of

the most important civil rights laws for people with

disabilities, Amici submit that he would have agreed to label

his review as “heightened scrutiny,” given his rejection of

irrational, prejudicial state conduct.

B. The Court Has Not Set “Minimal

Scrutiny” as the Level of Scrutiny for

Disability-Based Classifications.

Petitioners also misstate the Supreme Court’s previous

constitutional holdings on disability-based classifications.

The cases Petitioners cite did not reach the question of,

much less decide, the level of scrutiny to apply.

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

Court did not reach the question of what level of scrutiny to

apply because, it explicitly held, the challenged statute was

not a disability-based classification. The Court ruled it had

“no occasion to reach this issue [level of scrutiny] because

* Also ironic is Justice White’s finding that “rational basis”

review would facilitate remedial legislation for people with disabilities.

473 U.S. at 444 (“[MJerely requiring the legislature to justify its efforts

... May lead it to refrain from acting at all.”) Yet Petitioners here use

this analysis to argue for the unenforceability of perhaps the most

prominent remedial measure any legislature has enacted for people with

disabilities.

we conclude that this statute does not classify directly on

the basis of mental health.” Jd. at 231.

As to Heller v. Doe, 509 U.S. 312 (1993), the Court

again explicitly declined to determine the level of scrutiny

applicable to disability-based classifications. In Heller, the

Court held that the respondents were estopped from arguing

for heightened scrutiny because they had failed to do so

below. Id. at 318-19; see also id. at 334 (O’Connor,

J.)(finding state’s classification irrational and agreeing that

“I would not reach the question whether heightened equal

protection scrutiny should be applied” ).

And in Cleburne, Justice White’s statement is in any

event classic dicta because the question of level of scrutiny

is unnecessary to the Court’s ultimate holding. The Court

held unanimously that the Texas ordinance could not

withstand any constitutional standard of review, including

rational basis. 473 U.S. at 448-49. Justice White’s

statement is also on behalf of only four Justices. Thus,

Justice White’s articulated choice of level of scrutiny is not

binding as precedent. Metropolitan Stevedore v. Rambo,

515 U.S. 291, 300 (1995)(Kennedy, J.)(“Breath spent

repeating dicta does not infuse it with life”); McLaren v.

Fleischer, 256 U.S. 477, 482 (1921).

C. The History of Invidious Discrimination

Against People with Disabilities Justifies

Heightened Scrutiny.

Moreover, the states’ history of purposeful unequal

treatment, see San Antonio Indep. Sch. Dist. v. Rodriguez,

411 U.S. 1, 28 (1973), against people with disabilities

justifies the Court’s “searching analysis” of disability-based

classifications. | State-sponsored discrimination against

people with disabilities strongly parallels discrimination on

the basis of race, national origin, and gender. In Cleburne,

Justice Marshall recognized that state-sponsored

discrimination against the disabled “in its virulence and

bigotry rivaled, and indeed paralleled, the worst excesses of

Jim Crow.” Id. at 461. Indeed, states often excluded

people with disabilities from public services and programs

to the same extent as racial and ethnic minorities and

women, sometimes more so. Cf. Plyler v. Doe, 457 U.S.

202 (1982)(school exclusion). Just as the United States

restricted certain ethnic minorities from immigrating, see

Chinese Exclusion Cases, 130 U.S. 581 (1889), similar

restrictions applied to people with disabilities. United

States ex rel. Fink v. Todd, 1 F.2d 246, 249 (2d Cir.

1924)(barring Polish immigrant who was deaf and

“feebleminded”), rev’d on other grounds, 267 U.S. 571

(1925). | Likewise, states barred or criminalized the

migration of people who were “lunatics,” “infirm,”

“maimed, “deaf,” or “dumb.” See supra note 11 (listing

state statutes); cf: Edwards v. California, 314 U.S. 160

(1941).

During the: early twentieth century, “a time when

xenophobia had become almost a national disease,” states

repeatedly linked disability to any ethnic group considered

“inferior.” K. Stampp, The Tragic Legend of

Reconstruction, in Era of Reconstruction 19 (1965). Henry

H. Goddard, a leading proponent of state policies to

segregate or eliminate the disabled, tested the I.Q. of

immigrants at Ellis Island in 1917 and found that 79 percent

of Italians, 80 percent of Hungarians, 83 percent of Jews,

and 87 percent of Russians were “feeble-minded.” H.

Goddard, Mental Testing and the Immigrants, 2 J.

Delinquency 243, 249, 252 (1917). Superintendents of state

institutions urged the U.S. Congress to bar certain

nationalities from entry due to their “propensity for

defectiveness.” J. Trent, Inventing the Feeble Mind 168-69

(1994).

Policies asserting the “inferiority” of people with

disabilities also mimicked discriminatory laws, policies and

attitudes against African-Americans. Publications such as

The. Menace of the Feebleminded in Connecticut (1915)

differed little from such Jim Crow texts as The Negro: A

Menace to American Civilization (1907). “Southern

treatment of feeble-minded individuals closely mirrored

white attitudes toward blacks in the early years of the

twentieth century.” S. Noll, Feeble-Minded in Our Midst

90 (1995). Many leading eugenicists were avowed white

supremacists. Charles Davenport, who authored Heredity in

Relation to Eugenics (1911) and State Laws Limiting

Marriage Selection in Light of Eugenics (1913), argued for

marriage restrictions on and sterilization for both the

“mentally deficient” and African-Americans. As with

people with disabilities, Davenport prescribed that African-

Americans “shall not be given a license to marry a white

person without a certificate from the State Eugenics

Board.” Inheriting Shame at 49-53; cf. Loving v. Virginia,

388 U.S. 1, 12 (1967).

The state-mandated segregation and exclusion of

people with disabilities followed the Court’s ruling in

Plessy v. Ferguson, 163 U.S. 537, 544-52 (1896).”” Plessy

held that the Fourteenth Amendment was no barrier to

segregation, and its example legitimized the states’

segregation of people with disabilities in institutions and

schools. See S. Gould, The Mismeasure of Man 231

(1995)(1922 U.S. Army finding that 89 percent of African-

2 The call to segregate disabled Americans also parallels the

internment of Japanese-Americans during World War Il. Cf.

Korematsu v. United States, 323 U.S. 214 (1944).

Americans tested as “morons” used to justify racial

segregation in schools).”°

CONCLUSION

For the foregoing reasons, Amici respectfully urge the

Court to affirm the decision below and that disability-based

classifications are subject to heightened scrutiny review.

Respectfully submitted,

Thomas K. Gilhool

Counsel of Record

Michael Churchill

Judith A. Gran

Barbara E. Ransom

Max Lapertosa

PUBLIC INTEREST LAW CENTER

OF PHILADELPHIA

125 South Ninth Street, Suite 700

Philadelphia, PA 19107

August 11, 2000. Counsel for amici curiae

children with disabilities was explicit in the final defense of racially-

segregated schools. In his oral argument to the Court in Brown v.

Board of Educ. , 347 U.S. 483 (1952), John W. Davis, who argued the

case for South Carolina, opened his argument with the following

warming:

May it please the Court, I think if the appellants’ construction of

the Fourteenth Amendment should prevail here ... I am unable to

see why a state would have any further right to segregate ... on

the ground of mental capacity.

L. Freedman et. al, Argument 51 (1989)(quoting Oral Arg. in Brown v.

Bd. of Educ.).

—

APPENDICES

z ,

s ; ~ :

: en ats ieee Cpl a Loans

APPENDIX A

—_-

EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR HARD COPY

AT THE TIME OF FILMING. = If AND WHEN A

BETTER COPY CAN BE OBTAINED, A NEW FICHE

WILL BE ISSUED.

APPENDIX A

COMPENDIUM OF PURPOSEFUL STATE ACTION

FOR THE SEGREGATION AND EXCLUSION OF

RETARDED PERSONS IN THE FIFTY STATES

AND THE DISTRICT OF COLUMBIA

This Appendix presents the official actions of the

states promoting and requiring by statute the segrega-

tion of retarded people.* Amici have included a sampling

of state reports of agencies, officials, committees and

boards that constitute the legislative history and the post-

enactment history of the laws that were adopted. ** All

italics have been added by amici.

CONTENTS

Page

Northeastern States.........------ eee ee eres A-1l

Cees os ins os ha ee toe ee A-1

I Te he 5 wie ee eR eS A-4

ee ea aus heed ee eee aewek See A-5

Maryland ..... Cuveliels cesar eon ees A-5

EE) i en en na say so A-6

New Hampshire ..........-------:+2s+eeee> A-9

SP, rer rr rrr rt rere rk A-10

ide a ook cbc che ee rae ees A-12

Pennsylvania.........---++-+++-+++s+eeett: A-18

*In addition to the 50 states. the federal law enacted by the

United States Congress to segregate retarded people found in the

District of Columbia is set out at A-76-81

**For a sampling of state actions affecting retarded people in

other areas. ¢.g.. restrictions on marriage. voung,. and education. see

Appendix B to the Amici Brief of the American Association of Mental

Deficiency. et al.

A-i

CONTENTS—( Continued )

Page

Rhode Island.............-:seceeceeeeeees A-20

Vermont... 1... ec ccc ener eee ee eeees A-21

Midwestern States ............-.. 05s serene A-22

BUMANGAR. gcc cc cece ese eens ere eenenente A-22

ee ee ere ee A-22

NG cack neh tka Koen eee a ds eeeeeet ere Ews A-25

ee re ee er rie A-26

Kentucky ...... 0.65 cee cc cece ence cree ens A-29

Michigan ............0-eecee cece n eee neee A-29

Minnesota ...........--00 00 eee eee eects A-32

rr are ore A-32

ey ee i a A-33

North Dakota .. 0... cc ccc erence nsans A-35

CR ica v eager nts sth esd Seer OWEET EDM A-36

Sonsths Dakota .. oo ccc cence cen sennewee A-37

So ee Pr rt oe A-42

Southern States............2- ccc cece e een eee A-44

ee EE ee eT eee ree A-44

NE ek ced eke RR Re A-45

PEPE Treo eerie ee re A-45

es rene barre. ei ee a A-45

y ee er EE Ere in sy eee oe a Le A-46

i eg ad bene edun wes A-48

? I ni tink xn cr cees Coan Pere eaees A-47

CONTENTS— Continued )

Page

0 ae Are eee kn ee. A-49

: eats COS ng ccs ee ee eee sn anenew ss A-50

ee os Vaca 08 os Cee ek ee nen A-51

koe aula ds Kee ee Re A-52

eS ESSERE Pere erie Terres Poa. ca, A-57

West Virgie .. . «6c eect tere cre nrees A-60

Western States..........----- ccc e cere eee A-61

SEO OLE PELE SUE EE EE ee A-61

NU ia ue w on wk ewe emer A-61

So ey ba wey an ote wee Kee A-62

Ly ce toaeened ee eeeerere ees A-67

re ve cane beers sean rere A-68

Se ee pay Ck egw hn ee Ram eae a .. A-68

EF EE ENE AE EET ee 4-69

Nn os oa eelob he ke ae 6 kee A-70

re So as cos cme emia ster end A-70

I ais ae ne tes tekst nde e esins 4-70

i gas ap eee eee eee rowke A-72

Washington...........------- essere eee 4-73

ee ee A-75

District of Columbia.............. 4-76

Northeastern States

Connecticut. The first recorded provision of a spe-

cialized facility for retarded people in this country oc-

curred in Connecticut when the American Asylum for

the Deaf and Dumb, located in Hartford, in 1818 counted

among its students a few “idiot children.” REPORT OF

THE COMMISSIONERS ON IDIOCY TO THE GENERAL AS-

SEMBLY OF CONNECTICUT 62 (1856). Later, the Con-

necticut legislature provided some funding for a private

school in Lakeville. After the turn of the century, though.

that facility began receiving a sharply increased number

of residents. and it soon became a custodial institution.

In 1906 the Director was already reporting that “remov-

als are almost unknown.” REPORT OF THE DIRECTORS

AND SUPERINTENDENT OF THE CONNECTICUT SCHOOL

FOR IMBECILES 6 (1906).

By 1908 the operators of the facility claimed they had

“a wide knowledge of the imperative need of providing

permanent custodial care for the safeguarding of girls

and women of feeble mind, and a growing appreciation

of the preventive value of equal custodial care for the

male of evil tendencies. Backed by effective legislation

the care of the defective has resolved itself into a com-

paratively simply matter... .” REPORT OF THE DIREC-

TORS AND SUPERINTENDENT OF THE CONNECTICUT

SCHOOL FOR IMBECILES 12 (1908). “(T]he surest, most

humane and most economical solution of the problem of

prevention lies in providing custodial care for the feeble

minded of every condition and for a lifetime.” Id. at 13.

In 1911, the General Assembly enacted a statute pro-

viding that “imbecile(s]” could be admitted to the

Lakeville facility by application of the “selectmen” of any

town. 1911 Conn. Pub. Acts 1493. ch. 211. In 1913 the

state formally took control of the institution by enact-

ment of a statute specifying that its “object” would hence-

forth be the “custody” of any “imbeciles resident of this

state.” 1913 Conn. Pub. Acts 1765, ch. 160, §1.

A-1

A-2/Connecticut

The following year, state officials reported that they

were “of the opinion that the problem of the feeble-

minded in the State of Connecticut urgently demands a

much more adequate provision for these unfortunate in-

dividuals than is now supplied. It has been estimated that

there must be at least three thousand feeble-minded in

_the State, and at the present time, provision is made for

only three hundred. It is anow recognized fact that feeble-

mindedness is to a much greater extent than insanity an

inheritable condition and it is known that this class is

particularly prolific. The criminal, the alcoholic, and the

prostitute are all recruited from the ranks of the feeble-

minded. The only practicable way to restrict the growth

of the feeble-mindedness in the state is to segregate the

feeble minded and particularly feeble-minded women

during the child bearing-period. The question to be de-

cided is really this: Shall we of this generation accept the

burden of this care, or shall we hand on to the next gen-

eration a much larger share? Undoubtedly failure to now

segregate the feeble-minded will result in an increasing

prevalence of the condition as time goes on.” STATE OF

CONNECTICUT, BIENNIAL REPORT OF CONNECTICUT

SCHOOL FOR IMBECILES. LAKEVILLE. CONN... FOR Two

YEARS ENDED SEPTEMBER 30, 1913-14, at 8 (Pub. Doc.

No. 15, 1915). The report also recommended that the

“institution should not be situated in the midst of a pop-

ulous village. While it should be convenient to railroad

communication, it should be somewhat remote from the

centers of population for reasons that are obvious.” Id. at

2 7

In order to gain public support for the new facility.

Superintendent Charles T. LaMoure and the Board of

Trustees of the School for Imbeciles published and dis-

tributed widely a pamphlet in which they claimed an ur-

gent need to “[s]top the supply of the vicious, the weak.

the no-willed people who cannot support themselves in

the community — of the criminals and prostitutes and

paupers, by cutting off the supply at its source. namely

The Northeast/A-3

— by providing adequate custodial care for the feeble-

minded of the State.” THE CONN. SCHOOL FOR IMBE-

CILES, THE MENACE OF THE FEEBLE-MINDED IN CON-

NECTICUT 9 (1915). These “feeble-minded” people,

“though really children, are allowed to go about through

the community as though they were adults. They have

an impaired sense of right and wrong, weak will power

and no power of realizing the future... .

“Moreover, the feeble-minded are unusually prolific.

Therefore the longer the State of Connecticut delays in

making adequate provision for the feeble-minded, the

greater the burden of feeble-mindedness she will have to

bear in future /sic].” Id. at 3. But they proposed a solu-

tion: “The State has the opportunity of buying for this

institution a large tract of forest and arable land — be-

tween six and seven hundred acres. . . . This property is

in the central part of the State, remote from centres of

population ... and there is room for the institution to

grow indefinitely.” Id. at 13. For this purpose, “({t|he trus-

tees of the Connecticut School for Imbeciles are asking

the General Assembly for authority to sell the present

plant, and to use the proceeds and $200,000 to be ap-

propriated by the State in the purchase of this property,

and in equipping it for the needs of the institution. This

would provide, aside from the necessary alterations to

buildings, etc., sufficient cattle and farming implements.

so that the institution could produce its own milk and

vegetables, using for the most part the labor of its high

grade patients.” Id. at 14.

On February 25, 1915, a hearing was held before the

state legislature’s Committee on Humane Institutions.

One witness testified that “hardly a week goes by but

what we have a case of a feeble-minded girl or boy called

to our attention. We have no way of getting rid of these

kinds of cases.” Connecticut School for Imbeciles: Hear-

ings on H. B. No. 644 Before the Joint Standing Com-

mittee on Humane Institutions 20 (typed transcript. Feb.

25, 1915) (statement of Mr. Kerner of Waterburv). An-

A-4/Con necticut

other thought it necessary for “every teeble-minded child

in the school |to be] eliminated or placed in a special

class.” Id. (statement of Miss Wright of Stanford). Su-

perintendent Alexander Johnson of New Jersey's insu-

tution at Vineland brought to the Committee's attention

“this book called. ‘The Menace of the Feeble-Minded in

Connecticut,’ which was gotten up by the Board of Trus-

tees for the School of Imbeciles, and | would recommend

anyone who has any doubt as to the proper care of that

class to read this book verv carefully.” Ja. at 2 (statement

of Dr. Johnson).

On May 20, 1915. the Connecticut legislature fol-

lowed the recommendations of the state officials and the

witnesses at the hearing 2nd appropriated the $200,000

requested for an ambitious construcuon project on state-

owned land at Mansfield Depot, an isolated railway stop

sixty miles northeast of Hartford.

By the time he wrote his 1916 Biennial Report. Su-

perintendent LaMoure thought that “|t]he dangers as-

sociated with allowing the feeble-minded to remain at

large among the general population have been so tre-

quently discussed that it is not necessary to do more than

refer to them.” STATE OF CONNECTICUT. BIENNIAL RE-

PORT OF THE CONNECTICUT TRAINING SCHOOL FOR

FEEBLE-MINDED. LAKEVILLE. CONN.. FOR THE TWO

YEARS ENDED SEPTEMBER 30, 1915-16. at 7 (Pub. Doc.

No. 15, 1917). He looked forward to the compleuon ot

the new institution, where, he noted, “|m|anv of the male

inmates ... are capable of doing a considerable amount

of satisfactory farm work under supervision. and. with a

proper farm we should be in a position to improve the

quality of our tood and save the State a considerable

amount of money by raising vegetables, producing our

own milk and eggs. and using rather than wasting our

garbage by the keeping of pigs.” Id.

Delaware. On March 21, 1917. the Delaware Gen-

eral Assembly established the state's tirst home tor “the

teeble-minded.” 1917 Del. Laws 597. ch. 172. The in-

ree Te ee a Pe ee

The Northeast/A-5

stitutionalization of such persons could be sought by “anv

reputable citizen of the State,” which was to be ordered

by the county judge “when by reason of such mental

condition, or of existing social conditions, it would be

detrimental toany community of this State toallow such

person to remain at large.” Id. §9.

The legislature also adopted “AN ACT to provide for

the sterilization of certain mental detectives,” 1923 Del.

Laws, ch. 62, authorizing the surgery for those at the

state home for whom a “physician, alienist and superin-

tendent unanimously determine that procreation is

unadvisable.” Id.

Maine. |n 1907, the Legislature of Maine established

the “Maine School for Feeble Minded.” 1907 Me. Acts

42, ch. 44. A special committee chaired bv Governor Wil-

liam T. Cobb “[a|fter careful consideration,” located the

institution “on an area of farmland... . The plan called

for a large tract of land, which should be removed from

any large town....” Hood, Pinelund Observer, in

PINELANDS, 60 YEARS: 1908-19687L. Moore, ed. 1968).

In 1921, the lawmakers extended those eligible tor

commitment to “idiotic and feeble-minded males. be-

tween the ages of six years and forty vears. and females,

between the ages of six years and forty-five vears.” 1921

Me. Acts 65, ch. 60. Four vears later, the legislature au-

thorized sterilization for all those for whom that surgerv

“may be indicated for the prevention of the reproduction

of further teeble-mindedness.” 1925 Me. Acts 198. ch.

208.

Maryland. On March 31, 1888. the General Assem-

bly of Maryland passed “AN ACT to establish an asvlum.

and training school for the feeble minded of the State of

Maryland.” 1888 Md. Laws 268, ch. 183. In 1906, the

lawmakers mandated that the institution “receive. care

for and educate, free of charge, all idiotic, imbecile and

feeble-minded persons in this state” approved by the

board of visitors of the facilitv. 1906 Md. Laws 653. ch.

362. The law. required that “all such persons shall re-

A-6/Maryland

main in the care, custody and control of the visitors of

said institution, and the visitors of said institution are

hereby authorized to retain all such persons in their care,

custody and control at said institution, until such time as

in the judgment of said visitors, or a majority of them, the

welfare of such persons and the public interest shall jus-

tify or call for their release. .. .” Id. at 653-54.

The Board of Visitors campaigned vigorously for in-

creased admissions. These reports revealed the

institution’s segregating purposes: “One of the sad fea-

tures which hangs as a black cloud over the work, is the

fact that some hundreds of children, many of whom are

a burden to the family and a menace to the community

in which they live, are continuously knocking at our doors

for admission, but only a small number of these can be

received solely for want of funds to maintain them, though

we have empty beds awaiting their reception.” TWENTY-

FOURTH REPORT OF THE BOARD OF VISITORS OF THE

ROSEWOOD STATE TRAINING SCHOOL, OWINGS MILLS,

BALTIMORE COUNTY 5 (1936).

Massachusetts. As a result of a legislatively com-

missioned report authored by Dr. Samuel Gridley Howe

of the Harvard Medical School, S. G. HOWE, FIRST COM-

PLETE REPORT MADE TO THE LEGISLATURE OF MASS-

ACHUSETTS UPON IDIOCY 16, 30-55 (Mass. Sen. Doc. No.

51, 1848), the Massachusetts legislature. on May 8, 1848

appropriated $2,500 for an experimental school for idi-

otic children to be located in a wing of the Perkins In-

stitute for the Blind in Boston. Howe was named direc-

tor, and ten indigent “idiots” were selected as pupils.

THIRD AND FINAL REPORT ON THE EXPERIMENTAL

SCHOOL FOR TEACHING AND TRAINING IDIOTIC CHIL-

DREN 305 (1852).

With perhaps a premonition of the evils that lurked

in his creation, Howe stated in his final report: “Now the

danger of misdirection in this pious and benevolent work

is, that two false principles may be incorporated with the

projected institutions which will be as rotten piles in the

The Northeast/A-7

foundations and make the future establishments deplor-

ably defective and mischievous. These are, first, close

congregation; and, second, the life-long association of a

large number of idiots; whereas, the true, sound princi-

ples are: separation of idiots from each other; and then

diffusion among the normal population. . . . For these and

other reasons it is unwise to organize establishments for

teaching and training idiotic children, upon such prin-

ciples as will tend to make them become asylums for life.

... Even idiots have rights which should be carefully

considered! At any rate let us try for something which

shall not imply segregating the wards in classes, remov-

ing them from our sight and knowledge, ridding our-

selves of our responsibility as neighbors, and leaving the

wards closely packed in establishments where the spirit

of pauperism is surely engendered, and the morbid pe-

culiarities of each are intensified by constant and ciose

association of others of his class.” S. G. HOWE, REPORT

OF THE SUPERINTENDENT TO THE TRUSTEES OF THE

MASSACHUSETTS SCHOOL FOR IDIOTIC CHILDREN

(1874).

Howe's advice was forgotten and, by 1886, the Mas-

sachusetts legislature had established “a custodial de-

partment” for “custody of feeble-minded persons bevond

the school age or not capable of being benefited bv school

instruction.” 1886 Mass. Acts & Resolves. ch. 298, §1.

After the turn of the century, commitment procedures

were modified to permit any person. not just relatives. to

seek the commitment of “feeble-minded” persons to the

institution. See 1904 Mass. Acts & Resolves, ch. 459. §5;

1906 Mass. Acts & Resolves, ch. 508, §12.

The superintendent of Massachusetts’ institution,

Dr. Walter E. Fernald, reported in 1908 that “[t]he ex-

istence of this large institution is largely due to the de-

mands of parents, physicians, clergymen. court officers.

social workers, and thoughtful people generally, that

feeble-minded women should be permanently removed

from the community. In this State there is an urgent de-

A-8/Massachusetts

mand for the commitment and permanent detention ot

the higher grade cases of defect. where the social inca-

pacity and the moral weakness are more obvious than

the mental backwardness. These cases cannot support

themselves, and are most undesirable and troublesome

members of society.” SIXTY-FIRST ANNUAL REPORT OF

THE TRUSTEES OF THE MASSACHUSETTS SCHOOL FOR

THE FEEBLE-MINDED AT WALTHAM. FOR THE YEAR END-

ING NOVEMBER 30, 1908, at 22-23 (1909).

On June 12, 1912, Superintendent Fernald deliv-

ered an influential speech as the Annual Discourse be-

fore the Massachusetts Medical Society. printed and

widely distributed in pamphlet form bv the Massachu-

setts Society for Mental Hygiene: “The past few vears

have witnessed a striking awakening of professional and

popular consciousness of the widespread prevalence of

feeble-mindedness and its influence as a source of

wretchedness to the patient himself and to his family.

and as a Causative factor in the production of crime. pros-

titution, pauperism. illegitimacy, intemperance and other

complex social diseases. .. . The social and economic

burdens of uncomplicated feeble-mindedness are only too

well known. The feeble-minded are a parasitic, preda-

tory class, never capable of self-support or of managing

their own affairs. The great majority ultimately become

public charges in some form. They cause unutterable sor-

row at home and are a menace and danger to the com-

munity. Feeble-minded women are almost invariably im-

moral, and if at large usually become carriers of venereal

disease or give birth to children who are as defective as

themselves. The feeble-minded woman who marries is

twice as prolific as the normal woman. .. . [S/egregation

carried out thoroughly for a generation would largely re-

duce the amount of feeble-mindedness. The high-grade

female imbecile group is the most dangerous class. Thev

are not capable of becoming desirable or sate members of

the community. They are never able to support them-

selves. They are certain to become sexual offenders and

ee a ee ee a ae ee, *

The Northeast/A-9

to spread venereal disease or to give birth to degenerate

children. Their numerous progeny usually become pub-

lic charges as diseased or neglected children, imbeciles.

epileptics, juvenile delinquents or later on as adult pau-

pers or criminals. The segregation of this class should be

rapidly extended until all not adequately guarded at home

are placed under strict sexual quarantine. Hundreds of

known cases of this sort are now at large becausé the

institutions are overcrowded. Only 2000 feeble-minded

persons are now cared for in institutions in this State.

and over 1000 applicants are awaiting admission to the

institutions. There is an urgent demand for greatly in-

creased institutional provision for this class... .” W.

FERNALD, THE BURDEN OF FEEBLE-MINDEDNESS 3. 7,

10 (1912).

New Hampshire. On March 22. 1901, the New

Hampshire General Court enacted legislative to “estab-

lish and maintain” the “New Hampshire School for the

Feeble-minded Children.” 1901 N.H. Laws 597, ch. 102,

§1. Although that law limited admissions to “the idiotic

and feeble-minded, between three and twentv-one vears

of age,” id., amendments added four years later made

provision for others “after they reach the age of twentv-

one, if in the judgment of the board of trustees their seg-

regation seems to be for the best interests of the commu-

nity...." 1905 N.H. Laws 413, ch. 23, §1. first for women,

id., and later for men as well, 1917 N.H. Laws 645. ch.

141, §1. Later, in 1917, the General Court adopted “AN

ACT PERMITTING STERILIZING OPERATIONS” for

those for whom that surgery “may be indicated for the

prevention of the reproduction of further feeble-

mindedness.” 1917 N.H. Laws 704, ch. 181, §2. In 1929.

the law was extended to permit the superintendent of the

institution, if “of opinion that it is for the best interests of

the inmate and of society” to authorize the surgery with-

out the consent of the “feeble-minded” resident. if after

a hearing the governing board of the institution finds that

the resident “is the probable potential parent of socially

——eeeeeeeree

A-10/New Hampshire

inadequate offspring likewise afflicted.” 1929 N.H. Laws

162, 164, ch. 138, §§1, 6.

New Jersey. The New Jersey General Assembly in

1888 established the first New Jersey “home” for the

“feeble-minded” at Vineland. 1888 N.J. Laws. 267, ch.

208.

By 1906, state officials were calling for permanent

segregation: “It is a fact that the Institutions in New Jer-

sey for the care and training of the feeble-minded do not

begin in any way to cover the number of those who should

be in the Institutions, and it seems that the Governor. the

_ Legislature and the Commissioner of Charities in their

wisdom might hold a conference with the Boards of the

Feeble-Minded Institutions, looking towards the segre-

gation of all the feeble-minded who are now at large. The

feeble-minded belong to that class of defectives of either

hereditary degenerates or whose condition is of such a

character as should be treated like them. and for whom

the time has come for complete and permanent control.”

ANNUAL REPORT OF THE STATE HOME FOR THE CARE

AND TRAINING OF FEEBLE-MINDED WOMEN AT

VINELAND, 1906, at 6 (1907). The report indicated that

“(t]he most celebrated authorities on the care and seg-

regation of the feeble-minded and other defectives are

very much in favor of the colonization of all defectives

where the development of its members could be properly

classified.” Id. at 7.

The legislature began its response in 1911, by pass-

ing “An Act to authorize and provide for the sterilization

of feeble-minded (including idiots, imbeciles and mo-

rons).” 1911 N.J. Laws 353, ch. 190. That law created a

“Board of Examiners of Feeble-minded,” which, upon a

“find|ing] that procreation is inadvisable and that there is

no probability that the condition of such inmate so ex-

amined will improve to such an extent as to render pro-

creation by such inmate advisable,” was authorized “to

The Northeast/A-11

perform such operation for the prevention of procreation

as shall be decided by said board of examiners to be most

effective... .” Id. §§ 1, 3.

Two years after its enactment, the New Jersey Su-

preme Court ruled that New Jersey's law violated the right

to equal protection of the laws. Smith v. Board of Exam-

iners of Feeble-Minded, 85 N.J.L. 46, 88 A. 963 (1913).

The court noted that “the feeble-minded and epileptics

are not the only persons in the community whose elim-

ination as undesirable citizens would, or might in the

judgment of the legislature, be a distinct benefit to so-

ciety. . . . Racial differences, for instance, [also] might af-

ford a basis for such an opinion in communities where

that question is unfortunately a permanent and para-

mount issue.” 88 A. at 965. The court concluded that “it

is clear that the order with which we have to deal threat-

ens possibly the life, and certainly the liberty, of the

prosecutrix in a manner forbidden by both the state and

federal Constitutions, unless such order is a valid exer-

cise of the police power. . . . The general limitation of such

power to which the prosecutrix must appeal is that under

our system of government the artificial enhancement of

the public welfare by the forceable suppression of the

constitutional rights of the individual is inadmissible.”

Id. at 965.

In 1915, the legislature provided for more pervasive

segregation of retarded people through the admission to

Vineland of “mentally defective men, women and chil-

dren, of all ages and grades... .” 1915 N.J. Laws 278,

ch. 151, § 2. By 1918, the lawmakers had authorized “the

location of additional colonies upon forest reserve or other

lands owned by the State.” 1918 N.J. Laws 410, ch. 147,

art. 6 § 636. It was in these institutions that the “in-

mates” were to be “kept.” Id. at 409, 410, §§ 631, 635. In.

1919, the legislature required relatives “to waive all right

to remove either permanently or for a limited time” their

kin from any institution. 1919 N.J. Laws 508, ch. 217, §

8 ON EER EAT

A-12/New York

New York. On July 10, 1851. the Legislature of New

York adopted “AN ACT to establish an asylum for idiots.”

1851 N.Y. Laws 941, ch. 502.

It was not until 1894 that the New York legislature

established an institution in Oneida County purely for

the “custody of unteachable idiots,” designated as “the

Rome State Custodial Asylum.” 1894 N.Y. Laws 806, ch.

382.

The movement to segregate began most earnestly at

the same time as the citizenry began to express concern

about the “rising tide” of immigration. In 1905. for ex-

ample, an article in the New York Times tvpical of those

appearing during this period discussed the urgent need

for “remedying the evils which have too long been tol-

erated in the ‘dumping’ of undesirable immigrants into

this country.” Undesirable Immigration, N.Y. Times,

Feb. 10, 1905, at 6, col. 3.

In 1911, the first of many studies purporting to link

“feeblemindedness” with the new immigration was pub-

lished under the auspices of the State Charities Aid As-

sociation. The survey found that all but 40 of 317 “men-

tally defective” children selected “at random” from thirty-

two ungraded classes in the New York public schools

were either foreign-born or the children of foreign par-

ents. A. MOORE, THE FEEBLE-MINDED IN NEW YORK: A

REPORT PREPARED FOR THE PUBLIC EDUCATION ASSO-

CIATION OF NEW YORK, N.Y. (1911).

By 1912, the New York Times was reporting a defi-

nite link between immigration and “feeble-mindedness. ”

An article appearing on February 18, 1912 quoted “{a|n

important report of the special committee appointed by

the New York Society for the Prevention of Cruelty to

Children to investigate the subject of abnormal and

feeble-minded children. ...” Feeble-Minded Scholars

Make Up 1 Per Cent of the School Population, Investi-

gators Report, N.Y. Times. Feb. 18. 1912. at 8. col. 4.

The report stated that there were in New York City

“10,000 mental or moral defectives who now roam at large

The Northeast/A-13

in the community without any proper parental supervi-

sion or medical care. Recent census statistics show that

80 per cent of the feeble-minded children in the general

population of the United States are the progeny of aliens

or naturalized citizens. We may safely assume, there-

fore, that at least 8,000 of the 10,000 feeble-minded chil-

dren in the city today were brought here by or are the

offspring of the 9,000,000 aliens who have passed

through Ellis Island during the past ten years.” Quoted

in id. at cols. 4-5.

Three weeks later, the New York Times featured an

article on Henry H. Goddard. who was a state adminis-

trator for New Jersey’s retardation institution at Vineland.

The report began: “From the army of 300.000 feeble-

minded persons in the United States come the recruits

that swell the ranks of the drunkards, criminals, pau-

pers, and other social outcasts. Twenty-five per cent of

the girls and boys in our reformatories are lacking in men-

tal fibre and are unable to discern the difference between

right and wrong or are too weak in character to do right

whenever there is any inducement to do wrong. Sixty-

five per cent of the feeble-minded children have a mother

or a father, or both, who are feeble-minded. This countrv

has so far taken no steps to segregate these irresponsible

parents, so the number of them is constantly increasing.

These facts, and many more equally startling, are set forth

in an article written for The Survey by Dr. Henrv H.

Stoddard. [sic] director of the department of research of

the training school at Vineland. N.J. ‘Our Government

spends hundreds of thousands of dollars examining im-

migrants to see that none who are feeble-minded are ad-

mitted,’ writes Dr. Stoddard [sic]; ‘but here is a group

already in our country who are breeding a race of feeble-

minded people more dangerous than many barred bv the

Immigration Inspectors.’ Weak-Minded Fill Ranks of

Criminals: Dr. Henry Stoddard [sic] Says Social Prob-

lems Can Be Solved By Segregating Them, N.Y. Times.

Mar. 10, 1912. at 6. col. 3. Goddard urged. in language

A-14/New York

later quoted in some state statutes, “permanent care

where they will be happy and harmless,” for all those

“unable to compete with their fellows on equal terms... .

This army furnishes the recruits for the ranks of the crim-

inals, paupers, drunkards, the ne-er-do-wells, and others

who are social misfits.” Quoted in id. “{W]hat then is to

be done?” he asked. Dr. Goddard answered his own ques-

tion by proposing that “[a]fter these cases have been dis-

covered they must be removed from the environment in

which it has been proved they are incapable of living

normal lives in accordance with the conventions of so-

ciety. They must be colonized in groups where thev may

be perfectly happy and somewhat useful. Only one lim-

itation needs be placed upon them in these places, and

that is they must never become parents.” Quoted in id.

Goddard concluded by emphasizing that “[wle are dis-

cussing a possible State policy .. . many parents are ei-

ther normal or of such a high grade of defectiveness that

they never get into court and yet have feeble-minded chil-

dren. We cannot touch these adults. We must somehow

get hold of their children. ... We may reasonably hope

that a policy of segregation. carefully followed, will in a

generation or two largely reduce our feeble-minded pop-

ulation and thereby solve our problems of criminals, dis-

ease, drunkenness, and crime.” Quoted in id. at cols. 3-4.

On April 16, 1912, the legislature created a new state

board and empowered it to authorize the sterilization “by

such operation for the prevention of procreation as shall

be decided by said board to be most effective,” “any” in-

stitutionalized person who, in the judgment of the board.

“would produce children with an inherited tendency” to

“feeble-mindedness, idiocy or imbecility.” 1912 N.Y.

Laws 924, 925, ch. 445, §351.

New York’s special treatment of its “alien defectives”

during this period is evidenced by the response state of-

ficials gave to a survey form sent to each state on June

20, 1912 by a Pennsylvania commission gathering infor-

mation to assist the latter state in expanding its own in-

The Northeast/A-15

stitutions. New York's response indicated that the state

already had nearly 6,000 citizens segregated, noting spe-

cially that it “contributes towards the support of the alien

poor patients in these institutions.” REPORT OF THE COM-

MISSION ON THE SEGREGATION, CARE AND TREATMENT

OF FEEBLE-MINDED AND EPILEPTIC PERSONS IN THE

COMMONWEALTH OF PENNSYLVANIA 28, 31 (1913). No

other group was singled out by New York officials for

special support.

It was also about this time that the newly reknowned

Henry Goddard was invited by the United States Public

Health Service to administer Binet’s I.Q. test to the south-

ern and eastern European immigrants arriving in steer-

age at Ellis Island. “(G]ivjing] the immigrant the benefit

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

of the Hungarians, 83% of the Jews, and 87% of the Rus-

sians he tested were “feeble-minded.” Goddard, Mental

Testing and the Immigrants, 2 J. DELINQUENCY 243,

249, 252 (1917).

The New York Times reported in an article entitled

Alien Defectives appearing on January 13, 1913 that since

“three-tenths of feeble-minded children are of alien or

naturalized parents, the problem of detecting defective

immigrants is very grave.” N.Y. Times, Jan. 13, 1913. at

10. The account cited a recommendation by Assistant

Surgeon C. P. Knight of the United States Public Health

Service at Ellis Island, writing in the January 11 issue of

the American Medical Association Journal, for “control-

ling the procreation of the mentally defective by segre-

gating them.” Alien Defectives, supra. As Dr. Knight had

stated, “[t]here is scarcely a ship coming into the Port of

New York which does not carry among its passengers a

mental defective of some degree.” Id., quoting Knight.

The Detection of the Mentally Defective Among Immi-

grants, 60 A.M.A.J. 106 (1913).

In the A.M.A. Journal article. Dr. Knight explained

that he had “becom[e] familiar with different races” so

he could “tell at a glance the abnormal from the normal.”

A-16/New York

Id. at 107. “In studving the phvsical characteristics of

menta! defectives, the various ethnologic types are easilv

discerned: the dark skin, the curly hair and thick lips of

the Ethiopian, the prominent and high cheekbones and

deep orbits of the American Indian and the straight coarse

hair and peculiar cast of countenance of the Mongolian.”

Id. Even “more important in the determination of the

mental status of the alien,” according to Dr. Knight, was

“close application to the study of the race.” Thus, exam-

iners “should interpret the mental reaction of the alien

only after having full knowledge of the different racial

characteristics, for that which is a detect in an individual

of a race of high mental attainment may be a normal

condition in the existence of other people who have not

attained the same grade of development. It is pertectly

normal for the southern Italian to show emotion on the

slightest provocation but should he show the stolidity and

indifference of the Pole or Russian. we would look on

him with suspicion and perhaps hold him for a detailed

examination.” Id. By the use of such techniques, Knight

hoped to “reduc/e] to a minimum the entrance into this

countrv of the mentally and morally low type of alien.

Immigration largely contributes to the high percentage

of this class in the United States.” Jd. at 106.

By 1914, the “defectives” were being expelled from

the public schools. As the New York Times editorialized:

“If the policy recommended by the Board of Education's

committee on ungraded classes had been sensibly

adopted in the beginning a good deal of money might

have been saved for teaching sound-minded children that

has been wasted on mental defectives who could not be

helped. The report says: ‘Most imbeciles and all idiots

can in no way derive any lasting benefits from atten-

dance at the public schools. Their mental condition can-

not be improved either by the course of study or disci-

pline. The only practical and humane solution is insti-

tutional care.'” The Feeble-Minded in Schools, N.Y.

Times, Mar. 13, 1914, at 8, col. 4.

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The Northeast/A-17

That same year, as a result of the public demand tor

action, the legislature created a special State Commis-

sion to study the problem, as urged by the New York

Times. 1914 N.Y. Laws 772, ch. 272.

The Commission believed that “we are now in a po-

sition where it is both a duty and a privilege to adopt a

complete system of public provision that will ina very

large measure eliminate the burden of feeble-mindedness

from the community.” Id. at 18.

Sterilization, according to the Commission, was no

panacea, since surgery prevented only parenthood, and

did not eliminate the other social menaces stemming trom

permitting “defectives” to be at large. Moreover. such a

law might lead to “withdraw(I| from the influence of our

institutions large numbers of feeble-minded who other-

wise might be amenable to whatever advantages and

_ whatever custodial provision was made.” [d. at 19. STATE

OF NEW YORK, REPORT OF THE STATE COMMISSION TO

INVESTIGATE PROVISION FOR THE MENTALLY DEFI-

CIENT 19 (1915).

The major problem, according to state officials. was

that thousands of “mental defectives are at libertv in the

community today ... without restraint or public con-

trol.” Id. at 34. “To attempt reformation is a gross waste

of time and of money. The average cost per inmate in a

specially organized institution for detectives is half of the

average cost in our reformatory institutions.” Id. at 35.

The solution was to expand the institutions and to bring

more of the “detectives” under control.

Accordingly. the legislature enacted on Mav 14. 1919

“AN ACT in relation to mental defectives. .. .” 1919 N.Y.

Laws 1683, ch. 633. The law detined “mental detective”

to mean “any person afflicted with mental defectiveness

from birth or from an early age to such an extent that he

is incapable of managing himself and his affairs. who tor

his own welfare or the welfare of others or of the com-

munity requires supervision, control or care. and who is

not insane or of unsound mind.” /d. at 1684. art. 1. § 2(5).

A-18/New York

The legislation established a procedure for certifying that

one’s mental defect was “of such a nature as to require

his supervision, control and care for his own welfare and

for the welfare of others or for the welfare of the com-

munity.” Id. at 1697, art. 4, § 26. This determination was

to be made by “qualified examiners.” Id. § 25.

As a result of this law, state officials were soon over-

whelmed with retarded people to segregate. The State

Commission for Mental Defectives indicated in 1926 that

although it was “gratifying to report progress during the

year in additional housing for mental defectives(. t]he

need of more beds is so great that it outweighs other con-

siderations.” STATE OF NEW YORK. EIGHTH ANNUAL RE-

PORT OF THE STATE COMMISSION FOR MENTAL DEFEC-

TIVES, JULY 1, 1925 TO JUNE 30, 1926, at 7 (Leg. Doc.

No. 92, 1927). The scope of the physical expansion ne-

cessitated by the 1919 law was noted in the agency’s An-

nual Report: “Defectives who are detrimental to society

cannot be segregated until institution bed capacity is in-

creased. Those of too low grade intelligence to be cared

for in the public schools are often neglected at home and

a source of economic disaster to the family. The segre-

gation of these in institutions awaits erection of new

buildings.” Id. Thousands of beds were planned and pro-

vided throughout the state. Id.

Pennsylvania. In 1893 the Pennsylvania General As-

sembly authorized the construction of a large institution

in western Pennsylvania witha capacity for at least “eight

hundred inmates,” to include a “custodial or asvlum de-

partment.” 1893 Pa. Laws 289, 290, No. 256, § 7. The

facility was to be for the “reception” and “detention” of

“idiotic and feeble-minded children,” id. at 291, § 10, the

sole restriction being that they be “under the age of twentv

years,” id. § 11. By 1903, a second institution similarly

organized was authorized to be built in the eastern part

of the state. 1903 Pa. Laws 446, No. 424.

In 1911, the Pennsylvania Conterence of Charities

and Corrections argued to the legislature that it had a

The Northeast/A-19

large problem on its hands. The legislature decided that

a comprehensive study was necessary, and so adopted a

joint resolution to establish a special commission, “the

duty of which Commission shall be to take into consid-

eration the number and status of feeble-minded and ep-

ileptic persons in the Commonwealth and the increase of

such persons, and to report to the General Assembly at its

next session a plan or plans for the segregation, care, and

treatment of such defectives... .” 1911 Pa. Laws 927,

§ 1. The resolution was enacted because the legislature

felt that “{a] proper regard for the public welfare requires

that some action be taken looking to the segregation of

such feeble-minded and epileptic persons.” Id. (pream-

ble).

On April 21, 1913, the Commission reported to the

legislature that “[w]here the mental disability is of a de-

gree which renders the afflicted individuals unfit for cit-

izenship, or a menace to the peace, they are regarded and

treated as anti-social beings, and may be permanently

segregated in institutions especially constructed for their

reception and care. The condition of mind in amentia is

irremediable[;] the segregation as the rule should there-

fore be permanent.” REPORT OF THE COMMISSION ON

THE SEGREGATION, CARE AND TREATMENT OF FEEBLE-

MINDED AND EPILEPTIC PERSONS IN THE-COMMON-

WEALTH OF PENNSYLVANIA 43 (1913).

The Commission considered retarded people “such

an unpleasant burden, that parents usuallv are more than

willing to part with them,” id. at 38. but “{ljegislation”

was “needed to compel the segregation of teeble-minded

and epileptic persons.” id. at 40. Who was to be incar-

cerated? “[A] type of mind must be established as a nor-

mal standard for the age. race and social status of each

individual, and he who falls below this to a recognizable

degree is ipso facto feeble-minded.” Id. at 42.

Six weeks later, the legislature enacted comprehen-

sive legislation, creating a new official purpose for the

state’s institution: “segregation” of all “idiotic. imbecile

A-20/Pennsylvania

or feeble-minded persons,” 1913 Pa. Laws 494, No. 328.

§ 1, and the removal of all age restrictions on admissions,

id. at 496, § 3. The lawmakers also established a new

“Village for Feeble-Minded Women” to be “entirely and

specially devoted to the reception, segregation [and] de-

tention” of “feeble-minded women of child-bearing

age....” 1913 Pa. Laws 1319, No. 817. By 1922, the

Superintendent of the Eastern Pennsylvania State Insti-

tution for the Feeble- Minded was reporting that “the gen-

eral public [is] now convinced more than ever that it is a

good thing to segregate the idiot and the imbecile.” R.

SMILOVITZ, A BRIEF HISTORY OF PENNHURST

1908-1926, COMPILED FROM SUPERINTENDENT'S Doc-

UMENTS (1974).

Rhode Island. The General Assembly of Rhode Is-

land enacted in 1907 “AN ACT FOR THE ESTABLISH-

MENT, MAINTENANCE, MANAGEMENT. AND

CONTROL OF THE RHODE ISLAND SCHOOL FOR

THE FEEBLE-MINDED.” 1907 R.I. Pub. Laws 89, ch.

1470. Within the institution there was created a special

“custodial department for the care and custodv of feeble-

minded persons bevond school age, or who are not ca-

pable of being benefited by school instruction.” Id. at 90.

§ 3. Institutionalization could be soughr by filing a “com-

plaint in writing” alleging that “any person within the

district wherein such court is established is

feeble-minded., so as to require restraint for his own wel-

fare or for the welfare of the public.” Id. at 91, § 6.

The purpose of the institution. according to the first

annual report to the legislature. was to “not only protect

the [feeble-minded] children themselves. but at the same

time to guard society against the children.” REPORT OF

THE RHODE ISLAND SCHOOL FOR THE FEEBLE-MINDED

IN EXETER 20 (1910). State officials strongly encouraged

parents to commit their children voluntarily to the facil-

‘ity: “Society is made up of families and when the family

suffers societv suffers. Talk with anv one who has had

the opportunity to know intimately the history of families

The Northeast/A-21

in which there have been feeble-minded children, and

let him tell of the cases of fathers driven to drink. whole

families plunged into poverty and pauperism, and of

mothers made insane or even done to death by the pres-

ence of the unfortunate child in the home.” Id. at 21.

Vermont. In 1913, the General Assembly of Ver-

mont created the “Vermont State School for

Feeble-minded Children.” 1913 Vt. Acts 96, No. 81, § 1.

Proceedings to place a retarded person in the institution

could be initiated by, in addition to a parent or guardian,

any “selectman of the town... in which such child re-

sides.” Id. at 98, § 13.

In 1916, state officials “report{ed]| that the people in

Vermont are beginning to take a marked interest in the

study of feeble-mindedness, and its baneful and increas-

ing effects on the population of the State, and that with

a better understanding of the conditions which exist.

there will be a tendency to view the handling of the ques-

tion in a more practical and common sense manner. The

burden of feeble-mindedness is felt by the entire public.

and every intelligent person who has carefully consid-

ered the subject realizes that this blight on mankind is

increasing at a rapid rate. and that unless radical meas-

ures are adopted to curb the influences which tend to

promote its growth it will only be a matter of time betore

the resulting pauperism and criminality will be a burden

too heavy tor any country or people to bear. The feeble-

minded are a parasitic, predatory class, never capable of

self-support or of managing their own affairs. and the

majority of them ultimately become public charges.” RE-

PORT OF THE VERMONT STATE SCHOOL FOR THE FEEBLE-

MINDED CHILDREN FOR THE PERIOD ENDING SEPTEM-

BER 30, 1916, at 17-18 (1916).

As a result of the actions of the state, “[t|he public is

now fully aware of the danger the defective is at large and

realizes the importance of instituting means for their con-

trol. There is nothing that can be done more effectively

toward the prevention of feeble-mindedness. crime and

A-22/Vermont

poverty and toward the promotion of our best citizen-

ship, than to segregate the feeble-minded and properly

care for them.” Id. at 18.

Midwestern States

Illinois. On June 24, 1915, the Illinois General As-

sembly passed a bill establishing a facility as an institu-

tion for the “detention of feeble-minded persons.” 1915

Ill. Laws 245. Such “detention” was mandated not only

for the retarded person's “own welfare,” but also “for the

welfare of others, or for the welfare of the community,”

so long as the person was “not classifiable as an ‘insane

person.’ ” Id. at 245-46, §1. “/AjJny reputable citizen of

the county in which such supposed feeble-minded per-

son resides or is found could seek the institutionalization

of such a person by filing a petition stating that it was

detrimental “to the welfare of the community, for him to

be at large.” Id. at 246, §3. The “guiding and controlling

thought of the court” at these proceedings was to be not

only “the welfare of the feeble-minded person” but also

“the welfare of the community.” Id. at 249, § 9.

Indiana. {n 1914, Indiana officials reported to the

Governor that there were still “at the most conservative

estimate that can be made, at least four thousand feeble-

minded in Indiana” requiring institutionalization. and

that “[these] people are at large, a nuisance to the com-

munity in which they live; nearly all of them paupers;

many of them petty criminals; the women filling the

houses of prostitution; all of them poor, improvident. lazv

— in short, incompetents. These people are increasing

rapidly, and unless cared for will, in the next hundred

years, bring an unbearable burden on our grandchildren

and great-grandchildren. Shall we leave them such an

inheritance, or shall we do something now to stop it?

Were we to put all these four thousand defectives now at

large into institutional care today, this institution could

provide for practically all needing the care of an institu-

The Midwest/A-23

tion at the end of the next fiftv years. No provision is

made for adult male feeble-minded in this State, and these

men should be segregated from the world in some place

where they could be made in a measure self-supporting.”

THIRTY-SIXTH ANNUAL REPORT OF THE INDIANA

SCHOOL FOR FEEBLE-MINDED YOUTH FOR THE FISCAL

YEAR ENDING SEPTEMBER 30, 1914, at 14 (1914).

In 1915, the Board of State Charities of Indiana

adopted a resolution that read: “Whereas, The problem

of the mental defective is one of our greatest social as

well as financial burdens and is increasing in importance

and weight every year, and Whereas, Mental defective-

ness is believed to be one of the most important if not the

most important cause of pauperism, degeneracy and

crime,” resolved that a committee be established to make

recommendations concerning this problem. Governor

Ralston acted favorably on this resolution and appointed

a Committee on Mental Defectives.

The work of the Committee and its first report, on

November 10, 1916, was used to convince the governor

and the legislature that it was “imperative that the State

must very soon take cognizance of the large number of

dependent defectives at large in the State. a menace to

society, increasing at a rapid rate, and take steps to seg-

regate them from the public, and thus check their repro-

duction not alone as a matter of philanthropy. but as an

economic measure.” THIRTY-EIGHTH ANNUAL REPORT

OF THE INDIANA SCHOOL FOR FEEBLE-MINDED YOUTH.

FORT WAYNE, INDIANA, FOR THE FISCAL YEAR ENDING

SEPTEMBER 30, 1916, at 14 (1917). The Indiana officials

were also “pleased to note that ‘The Committee on Men-

tal Defectives’ appointed by you to study the problem of

Mental Defectiveness in Indiana. recently urgently rec-

ommended the enactment of such a law, and we wish to

strongly endorse their recommendation and urge that this

remedial legislation be had at the coming session of the

Legislature. We have deeply felt the need of this law in

several cases in recent years. where we found ourselves

_— ——

A-24/Indiana

utterly helpless to prevent the withdrawal of girls by par-

ents or relatives while we knew that were unfit to be out

in the world... .” Id. at 15. They also recommended “the

establishment of a new and separate institution to house

them from the danger of contact with the public.” Id.

The Committee on Mental Defectives was reap-

pointed by newly elected Governor James P. Goodrich.

The Committee's second report was published March 6,

1919.

One week later. the General Assembly passed as

“emergency” legislation “AN ACT to provide for the es-

tablishment and government of an Indiana tarm colony

for feeble-minded” which incorporated practically all of

the recommendations of the Committee on Mental Defec-

tives. 1919 Ind. Acts 480, ch. 94. The lawmakers created

a commission and ordered it to “select a suitable site tor

the farm colony” and to “purchase not less than 1,00C

acres of land in a body” for it. Id. § 2. The law specitied

that “the buildings to be constructed for its use shall be

plain and inexpensive in character.” id. at 482. § 6. and

required that “the labor in constructing such buildings.

improvements and facilities shall be supplied as tar as

applicable by the persons committed to the institution,”

id.

The Committee on Mental Defectives. while express-

ing gratitude for this legislation, “recommend{edj in-

creased provision at the Farm Colony for Feeble-Minded”™

in order for the state “to provide adequately tor such cases

as Cannot, without menace to the community, be pro-

vided for in the home or the public school.” MENTAL

DEFECTIVES IN INDIANA: THIRD REPORT OF THE INDI-

ANA COMMITTEE ON MENTAL DEFECTIVES 8 (1922).

The exact nature of the menace was described bv

the Governor’s Committee as follows: “The uncared-for

insane, epileptic and feebleminded constitute a social

menace, but the part played by the feebleminded in dis-

counting social progress is by far the most potent influ-

ence for evil under which society is struggling today... .

The Midwest/A-25

Modern theory grants that the rights of the individual

must not interfere with the welfare of the community.

From the latter standpoint, the mental defective must be

considered as a possible financial burden to the commu-

nity, a potential menace through the commission of

crime, and an increasing detriment to the race through

the propagation of his kind. ... What subject is more

vital than this to the people of our state? The menace of

the mental defective is a real and pressing one. All indi-

viduals and organizations interested in human welfare

are urged to cooperate in a state-wide program for in-

forming the citizens of our state concerning the dangers

that threaten, and awakening them to the disastrous con-

sequences if this important matter is neglected. This

should result in such united action as will lessen the bur-

den of pauperism, degeneracy, disease and crime, and

decrease the cost to the taxpayers.” Id. at 6.

In addition to appropriating the increased funds re-

quested for segregation, the legislature, on March 3.

1931, passed “AN ACT providing for the sexual sterili-

zation of feeble minded persons.” 1931 Ind. Acts 116. ch.

50. Indiana has been the first state in the country to en-

act a sterilization law. 1907 Ind. Acts 877. ch. 215. The

new law provided that. at the point at which commit-

ment of any mentally retarded person was sought, “it

shall be the duty of each of the examining phvsicians

appointed by the court” to “certify to the court whether.

in his opinion, such person is the probable potential par-

ent of mentally incompetent or socially inadequate off-

spring likewise afflicted.” Id. § 1. Upon a finding by the

court that “the welfare of society and of such feeble-

minded person will be promoted by his or her steriliza-

tion,” the superintendent “may have performed upon

such feeble-minded person” sterilization surgery “at such

time as he may deem expedient.” Id. § 3.

Iowa. On March 17. 1876. the General Assembly of

lowa enacted legislation “FOR THE ESTABLISHMENT

OF AN ASYLUM FOR FEEBLE MINDED ‘HIL-

A-26/Iowa

DREN.” 1876 Iowa Acts 145, ch. 152. Admission was

originally limited to “children between the ages of seven

and eighteen.” Id. at 148, § 15. After the turn of the cen-

tury, the state authorized the segregation of increased

numbers of retarded people. The first to be confined, by

enactment of April 7, 1902, were “all feeble-minded

women under forty-six years of age.” 1902 Iowa Acts 73,

ch. 118. The next were “all feeble minded men under 46

years of age.” 1909 Iowa Acts 171, ch. 173. In 1921, all

age restrictions were repealed. 1921 Iowa Acts 126, ch.

129. State officials continually campaigned for the ex-

pansion of facilities for segregation, see, e.g., TWENTY-

FOURTH BIENNIAL REPORT OF THE SUPERINTENDENT

OF THE IOWA INSTITUTION FOR THE FEEBLEMINDED 7-8

(1922).

On April 13, 1929, the General Assembly enacted

legislation “to create a state board of eugenics, to define

the powers and duties of said board, [and] to fix the pro-

cedure in the sexual sterilization of persons.” 1929 lowa

Acts 106, ch. 66. The members of the Board of Eugenics,

which consisted of not only the superintendents of state

institutions, but also the commissioner of public health,

were ordered to “report to the state board of eugenics the

names of all persons, male or female, living in this state,

of whom he or she may have knowledge, who are feeble-

minded. . . and who are a menace to society.” Id. § 2.

Kansas. In 1881, the Legislature of Kansas estab-

lished “the Kansas state asylum for idiotic and imbecile

youth.” 1881 Kan. Sess. Laws 74, ch. 35. Admission was

limited to those “not over fifteen vears of age.” Id. at 75,

§ 6.

The superintendent of the institution, I.W. Clark, in

1906 urged the adoption of a law to enlarge the institu-

tion and to accomplish the segregation of feeble-minded

persons of all ages. THIRTEENTH BIENNIAL REPORT OF

THE KANSAS SCHOOL FOR FEEBLE-MINDED YOUTH.

WINFIELD, KANSAS, FOR THE TWO YEARS ENDING JUNE

30, 1906, at 6 (1906). According to Superintendent Clark:

The Midwest/A-27

“Legislative attention to a more extended provision for

the idiotic and feeble-minded is an imperative demand

upon the state. For a score of years the opinions of phi-

lanthropists and of those interested in sociologic work

have been steadily advancing in a certain direction, until

now they are unanimously convinced that as a matter of

public policy all the feeble-minded class should be segre-

gated and provided for by the state. Various are the rea-

sons which have led up to this conviction, and to most

persons they are easily obvious. In this state to-day there

are in the county-houses, and in the communities at large,

a large number of this class who are a menace, a blight

and a misfortune both to themselves and to the public.”

Id. at 12. Therefore, the superintendent recommended

that “[t]he age limit of fifteen years should be removed.

and the capacity of the home be enlarged so as to receive

all persons who are feeble-minded, regardless of age.” Id.

at 6.

On March 12, 1909, the legislature acted. The name

of the institution was “hereby changed to the State Home

for Feeble-minded,” and “{ajll inmates admitted to said

institution” were placed “under the custody and control

of the superintendent of said institution, and the super-

intendent may restrain any such inmate when he deems

it necessary for the welfare of such inmate and the proper

conduct of the institution.” 1909 Kan. Sess. Laws 560-61,

ch. 233, §§ 1, 2.

In 1917, the legislature enacted a law providing that,

if the Superintendent of the State Home for Feeble-

minded “shall certify in writing” to the institution's gov-

erning board “that he or she believes that the mental or

physical condition of any inmate would be improved

thereby or that procreation by such inmate would be likely

to result in defective or feeble-minded children with crim-

inal tendencies, and that the condition of such inmate is

not likely to improve so as to make procreation by such

person desirable or beneficial to the state, [then] it shall

be lawful to perform a surgical operation for the sterili-

A-28/Kansas

zation of such inmate.” 1917 Kan. Sess. Laws 443, ch.

299, § 1.

State officials applauded this legislation. and pre-

dicted a marked decrease in the number of feeble-minded

persons. However, they reported that “the decrease will

be nothing like so great as it should be unless our im-

migration laws are so changed as to greatly reduce the

number of undesirables from Europe entering this coun-

try. .. . We shall be disappointed further that the de-

crease is no greater on account of the ease with which

feeble-minded persons may obtain a marriage certificate,

enter the marriage state and rear a family like unto them-

selves... . Asexualization will be condemned by some as

being too harsh a measure, but it becomes incumbent on

those who would discourage it to offer something better,

for the future will compel us to act. If society by her phil-

anthropic efforts annuls the law of the survival of the

fittest, then self-interest will compel her to adopt meas-

ures which will prevent the multiplication of those who

at best can only add degeneracy to the race.” TWENTI-

ETH BIENNIAL REPORT OF THE STATE TRAINING SCHOOL

FOR THE TWO YEARS ENDING JUNE 30. 1920. at 7-8

(1920).

Two years later, the superintendent reported “that

the population of the institution has grown steadily.” and

noted “the increased activity of welfare and Red Cross

associations over the state that are constantly on the look-

out for unfortunate people. both young and old” to be

institutionalized. TWENTY-FIRST BIENNIAL REPORT OF

THE STATE TRAINING SCHOOL FOR THE TWO YEARS

ENDING JUNE 30, 1922, at 3 (1922). As a result of the

State’s policies, people were persuaded to place their re-

tarded relatives in the institution. The Superintendent

noted that “as a consequence our ward buildings are be-

coming crowded, some wards housing twenty per cent

more than the estimated capacity. Additional ward room

is a necessity.” Id. at 11.

The Midwest/A-29

Kentucky. The General Assembly of the Common-

wealth of Kentucky first chartered the “Kentucky Insti-

tution for Feeble-minded Children” as a corporate entity

in 1894, although the facility apparently had been in ex-

istence previous to that date. See 1894 Ky. Acts 96, ch.

48, art. 1, § 1. Admission to the institution at that time

was limited to persons aged six through eighteen “whose

mental condition is such that, in the judgment of the

superintendent, they may be taught to read and write, or

can be educated or trained to do work.” Id. at 115, art. III.

§ 5.

In 1918, the General Assemblv enacted more ma-

levolent legislation, entitled “AN ACT to provide for the

commitment, care, treatment, training, segregation and

custody” of “feeble-minded” persons. 1918 Ky. Acts 156,

ch. 54. The law defined “feeble-minded person” as one

who “requires supervision, care, training, control or cus-

tody for his own welfare or for the welfare of others or the

community.” Id. § 1. It also established and authorized

“The Farm Colony for the Feeble-Minded.” including an

ambitious plan for new construction on a 500-acre site.

Id. at 156-57, 159-60, §§ 1, 9, 10. Proceedings to confine

a person in the institution could be instituted against any

person in the county who appears to be . .

feeble- minded.” Id. at 161. § 16. The same law made it

“one of the special duties of every health officer and of

every public health nurse to institute proceedings to se-

cure the proper segregation and custody of feeble-minded

persons, likely to become fathers or mothers of other

feeble-minded persons.” id., at 171. § 30. and made it a

crime “to aid or abet the marriage of anv teeble-minded

person, and any person found guilty of aiding or abetting

such marriage shall be fined not less than fifty dollars.

nor more than five hundred dollars.”id. § 32.

Michigan. In 1893. the Michigan Legislature estab-

lished the “Home for the Feeble-Minded and Epileptic.”

1893 Mich. Pub. Acts 412. No. 209. The institution was

available to “{a|ll feeble-minded and epileptic persons be-

A-30/Michigan

tween the ages of six and twenty-one.” Id. at 416, §§ 20,

21.

In 1905, to insure long-term segregation, the legis-

lature required that parents and guardians admitting their

children to the home “waive all right to remove such

inmate thereafter either permanently or for a limited

time.” 1905 Mich. Pub. Acts 169-70, No. 121.

A more comprehensive revision of the law took place

four years later, 1909 Mich. Pub. Acts 189, No. 101, elim-

inating age restrictions, id. at 192, § 13, providing for

roving physicians “empowered to go where such feeble-

minded and epileptic person may be and make such per-

sonal examination of him as to enable them to offer an

opinion as to his mental condition” in order to certify them

as “feeble-minded,” id. § 14.

If, following a hearing, “such person shall be found

and adjudged to be feeble-minded or epileptic the court

shall immediately issue an order for his admission to the

home for the feeble-minded.” Id. at 194.

State officials described the value of the new law in

maintaining life-long segregation and control in their re-

port to Governor Woodbridge Ferris: “Prior to the enact-

ment of the law of 1909, patients were admitted to this

institution by direct application either by parents, guard-

ians, or certain public officials. The matter of the status

of these patients was constantly before the Board of Con-

trol. The Board found it impossible to hold certain cases

where, in their opinion, the welfare of the State would

dictate their being held. We therefore went to the Leg-

islature, requesting the passage of an act bringing all

these cases, where the patient had not had his day in

court, before the Probate Courts of the several counties

for review and legal commitment. We now have no pa-

tients not committed by the Probate Court.” TENTH BI-

ENNIAL REPORT OF THE BOARD OF CONTROL OF THE

MICHIGAN HOME AND TRAINING SCHOOL AT LAPEER FOR

THE BIENNIAL PERIOD ENDING JUNE 30, 1914 (1914).

The Midwest/A-31

As John N. McCormick, Chairman of the State Board

of Corrections and Charities later stated in official, pub-

lished instructions to Dr. H. A. Haynes, Superintendent

of the Michigan home: “The members of this Board con-

sider it imperative that ample provision be made for the

segregation and proper care of feeble-minded persons. A

recent survey of Michigan removes any doubt as to the

plain duty of the State regarding feeble-mindedness, not

only from a sociological but an economical standpoint as

well. From our discussion of the situation with you at the

meeting of this Board held at your institution, we are of

the opinion that the items stated in your estimate of ap-

propriations for the next two years are needed. and the

same are hereby approved.” ELEVENTH BIENNIAL RE-

PORT OF THE BOARD OF CONTROL OF THE MICHIGAN

HOME AND TRAINING SCHOOL AT LAPEER FOR THE BI-

ENNIAL PERIOD ENDING JUNE 30, 1916, at 7 (1916).

On May 25, 1923, the Michigan legislature adopted

“AN ACT to authorize the sterilization of mentally de-

fective persons,” which class was “deemed to include id-

iots, imbeciles and the feeble-minded, but not insane per-

sons.” 1923 Mich. Pub. Acts 453, No. 285, § 1. “When-

ever a person is adjudged defective.” the court was au-

thorized to “order such treatment by x-rays or operation

of vasectomy or salpingectomy. .. .” Id. at 454, § 2.

In a 1929 amendment, the legislature “hereby de-

clared [it] to be the policy of the state to prevent the pro-

creation and increase in number of feeble-minded. in-

sane and epileptic persons, idiots, imbeciles. moral de-

generates, and sexual perverts, likely to become a men-

ace to society or wards of the state. The provisions of this

act are to be liberally construed to accomplish this pur-

pose.” 1929 Mich. Pub. Acts 689-90, No. 281. § 1. The

law made it “the duty” of state officials operating the

Home for Feeble-minded “to bring to the attention of the

governing board or body of such institution and to the

state welfare commission” any “mentally defective per-

son who would be likely to procreate children unless

~A-32/Michiggn

closely contined or rendered incapable ot procreation’ for

whom they were “of the opinion” that it would bé “for the

best interest of such person and of society that such men-

tally defective person should be sexually sterilized.” Id.

at 690, § 4. The law made it “the duty,” in turn. of “the

governing board or body of such institution and the state

welfare commission to cause an investigation, and ex-

amination to be made to determine whether such men-

tally defective person would be likely. if allowed to min-

gle in society, to procreate children having an inherited

tendency to feeble-mindedness, insanity, idiocy, imbe-

cility, epilepsy. or sexual degeneracy. and who would be

likely to become a social menace or a ward ot the state,

and whether there is no probability that the condition of

such person would improve to such an extent as to avoid

such consequences.” Id. at 690-91.

Minnesota. In 1909, the legislature of Minnesota en-

acted a law “providing a department for incurables” tor

“all idiotic and epileptic persons resident of the state. . . ”

1909 Minn. Laws 72. ch. 80. A decade later, because the

institution, located at Faribault, had filled bevond capac-

itv, the legislature authorized the state board of control

“to select from the public lands of this state. the ttle to

which is vested in the state, not to exceed two (2) sec-

tions of land to be used as a location for a colony for teeble-

minded persons. ...” 1919 Minn. Laws 475, ch. 407.

§ 1. In 1925, the legislature authorized residents of its

institutions “to be sterilized by the operation of vasec-

tomy or tubectomy.” 1925 Minn. Laws 140. ch. 154.

Missouri. In 1899. the “Missouri Colony for the

Feeble-minded” was established. 1899 Mo. Laws 1821.

ch. 118. art. 10. As the institution's population grew, the

“board of managers of said colony” was “empowered to

establish other colonies in temporary or permanent

camps.” 1919 Mo. Laws 183-84, § 2.

State officials continually requested increased ap-

propriations for expansion. In one annual report to the

legislature, for example. Dr. E. E. Brunner, superintend-

The Midwest/A-33

ent of the institution. stated: “We need another building

to care for the custodial type of idiot patients as that build-

ing is entirely overcrowded.” SIXTH BIENNIAL REPORT

_ OF THE BOARD OF MANAGERS OF THE STATE ELEEMOS-

YNARY INSTITUTIONS TO THE FIFTY-SEVENTH GENERAL

ASSEMBLY OF THE STATE OF MISSOURI FOR THE TWO

FISCAL YEARS BEGINNING JANUARY 1, 1931, AND END-

ING DECEMBER 31, 1932, at’291 (1933). According to

Superintendent Brunner, “(t]he number of applications

is not an indication that the number of teeble-minded is

on the increase in the State, but to the education of the

people of the State as to the significance of

feeble-mindedness and the need of permanent custodial

care....” Id. at 288.

Nebraska. On March 5, 1885, the Legislature of Ne-

braska passed “AN ACT to establish and endow an Asv-

lum Home for feeble-minded children and adults at or

near the city of Beatrice, Nebraska, and making appro-

priation and levy therefor.” 1885 Neb. Laws 255. ch. 52.

By 1914, Silas A. Holcomb, chairman of the newly

established state Board of Commissioners. was writing in

his first report to the governor and legislature that “|(t|he

population of the institution has increased to the point

where its capacity is taxed to the limit. The demand for

additional admissions is steady and will continue.” The

Board recommended an ambitious expansion program.

“Iwlith a view of relieving the congested condition and

making suitable provisions tor future admissions. FIRST

BIENNIAL REPORT OF THE BOARD OF COMMISSIONERS

OF STATE INSTITUTIONS TO THE GOVERNOR AND LEG-

ISLATURE OF THE STATE OF NEBRASKA FOR THE BIEN-

NIUM ENDING NOVEMBER 30, 1914. at 9 (1915).

Expanded institutions would be necessary partially

as a result of projected population increases for the state.

See id. They would also be the necessary result. however.

of a comprehensive program “submit|ted] for the serious

consideration of the Governor and the legislature” of test-

ing and registration which “would unquestionably re-

A-34/Nebraska

veal others who are feeble-minded and who ought not to

be returned to society.” Id. at 10.

Observing that “[t]he only effective measures to meet

these conditions are segregation and sterilization,” the

Board criticized the then current law: “but in our state

neither of these may be applied except as a voluntary

proceeding on the part of the legal guardian of the feeble-

minded person. . . _Itisnota proceeding by which afeeble-

minded person may be committed to nor detained in the

institution against the desire of the parent or guardian.”

Id. at 11. By amending the law, “the community is en-

abled to seclude those who cannot safety be allowed to

mingle freely with their fellows. We, therefore, recom-

mend that a statute, similar to those above mentioned, be

enacted by this state to provide that admission to the in-

stitution for feeble-minded be by order of commitment

entered by the county court of the proper county, after

due hearing and finding upon a petition filed by the hus-

band, wife, parent, guardian or other person standing in

loco parentis to the alleged feeble-minded person, or by

the superintendents, managers or trustees of any insti-

tution having such person in charge, or by the countv

commissioners, county attorney, superintendent or prin-

cipal of schools, or a probation officer of the county in

which such alleged feeble-minded person shall reside.”

Id. at 11-12.

The legislature responded, enacting an amendment

on April 14, 1915, extending the list of people eligible to

initiate commitment proceedings to include “the county

commissioners, county attorney, any poor law official. any

superintendent or principal of schools, or any probation

or parole officer of the county of which such idiotic. im-

becile or feeble-minded person is a bona fide resident.

_ and the superintendent or managing officer of anv

public or charitable institution having in charge anv id-

iotic, imbecile or feeble-minded person.” 1915 Neb. Laws

294. ch. 131. “{Djetention” was mandated if “it shall ap-

pear that the person named in the application is an idiot.

The Midwest/A-35

an imbecile or a feeble-minded person and that the best

interests of such person or the welfare of society require

that he be committed to said institution for the feeble-

minded.” Id. at 295.“It shall be the duty of said institu-

tion to receive all such idiotic, imbecile and feeble-

minded persons duly committed thereto and to detain

them therein, and to arrest and return any who may es-

cape therefrom.” Id.

Shortly thereafter, the lawmakers passed “AN ACT

to authorize the sterilization of feeble-minded,” whose

“children would probably become a social menace” and

“would be harmful to society.” 1915 Neb. Laws 554-535.

ch. 237. The act was not approved by the governor, but

became operative without his signature.

In 1921, the legislature changed the name of the in-

stitution from the “Nebraska _ Institution for

Feeble-minded Youth” to simply the “Nebraska Institu-

tion for the Feeble-minded,” in recognition of the aban-

donment of all age restrictions. 1921 Neb. Laws 843. ch.

241, § 1. “The objects of the institution shall be to pro-

vide custodial care and humane treatment for those who

are feeble-minded, to segregate them from society. to

study to improve their condition, [and] to classify them.”

Id.

North Dakota. The Legislative Assembly of North

Dakota in 1903 adopted “AN ACT to Establish an Insti-

tution for the Feeble Minded,” to be “permanently main-

tained at or near the city of Grafton” for “all idiotic and

epileptic persons residents of this state.” 1903 N.D. Sess.

Laws 142, 143, ch. 108, §§ 1, 6. State Superintendent L.

B. Baldwin reported that it was “advisable that thev be

placed in institutions of this character for life. A rela-

tionship exists between the forms of degeneracy. namely.

the criminal, the inebriate, the prostitute and the feeble

minded.” The view of state officials was that “to protect

posterity,” it was necessary to undertake “the gathering

of this great number of defectives into institutions and

colonies.” FIRST BIENNIAL REPORT OF THE NORTH Da-

A-36/North Dakota

KOTA INSTITUTIONS FOR FEEBLE MINDED AT GRAFTON

FOR THE PERIOD ENDING JUNE 30. 1904 TO THE GOV-

ERNOR OF NORTH DAKOTA 9-10 (1904).

In 1909, the Legislative Assembly promoted the per-

manent segregation of those committed by providing that

“any inmate of such institution shall not be removed

therefrom,” except by written application, and “said re-

quest must receive the approval of the superintendent

before such inmate can be removed.” 1909 N.D. Sess.

Laws 317-18, ch. 213, § 1.

In 1913. the legislature provided that “any feeble

minded person who is offensive to the public peace or to

good morals, and who is a proper subject for classifica-

tion and discipline in the institution, may be commit-

ted” without consent. 1913 N.D. Sess. Laws 222. ch. 166,

§ 1. This provision was enacted as an emergency meas-

ure in view of “the fact that there is now no law tor com-

pulsory commitment of feeble-minded persons obnox-

ious to the peace and good morals of the public.” Id. § 3.

The Legislative Assembly authorized the superin-

tendent to “admit to the institution temporarily. without

commitment, under such rules and regulations as the

Board of Administration mav prescribe. for purposes of

observation, such children or adults as are suspected of

being feeble minded or idiotic. to ascertain whether or

not such person is actually mentally detective and a proper

case for care, treatment and training in an institution for

the feeble-minded.” 1921 N.D. Sess. Laws 123. ch. 64.

It was also made “the dutv of the superintendent” to

“report quarterly to the Board of Examiners herein pro-

vided for, all teeble-minded” who were considered as hav-

ing “potential to producing off-spring. who. because of

inheritance of inferior or antisocial traits. would probubly

become a social menuce. .. .” 1927 N.D. Sess. Laws 433.

ch. 263, § 1. The Board would. following a hearing. “make

an order requiring such person to be sterilized.” Id. at

434. § 3. The purpose of the law was to “protect society

from the menace of procreation by said inmate.” Id. § 5.

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Ohio. As early as 1857. the General Assembly of Ohio

established the “Ohio State Asylum for Idiots.” 1857 Ohio

Laws 190, 191.

In 1898, Ohio lawmakers established “a custodial de-

partment” for the “detention” of “idiotic and

feeble-minded children and adults,” 1898 Ohio Laws

209, § 1, and established an involuntary commitment pro-

cedure, id. at 211, § 6.

In 1912, Superintendent E. J. Emerick called for in-

creased facilities. “If we could segregate these detectives

when they are young and keep them confined during their

natural lives, it would obviate the expense of having them

committed repeatedly to our penitentiaries when thev

grow older. Under our present plan they are sent to our

penal institutions for a short term after committing some

crime, allowed to go out again, scatter their progeny, and

commit other crimes and depredations, only to be recom-

mitted time after time. . . . If we take these children into

our institution, brighten them up as best we can. and

turn them loose on the public, it has not onlv been a

waste of time, money, and energy. but we have done the

world an irreparable injury.” Emerick. The Segregation

of the Defective in PROCEEDINGS OF THE NATIONAL

EDUCATION ASSOCIATION. 1912, at 1291-92 (1912).

Emerick and others continued the same theme for the

next several years. See E. J. EMERICK, THE PROBLEM OF

THE FEEBLEMINDED( 1913); JUVENILE PROTECTIVE AS-

SOCIATION OF CINCINNATI, THE FEEBLEMINDED. OR.

THE HUB TOOUR WHEEL OF VICE( 1915); M. SESSIONS.

THE FEEBLEMINDED IN OHIO (1918).

In 1919. the legislature established “an additional in-

stitution in the state for the custody, supervision. con-

trol, care, maintenance, and training of feeble-minded

persons,” to receive “feeble-minded persons committed

to its custody and care from any county in the state.”

1919 Ohio Laws 430. § 1.

South Dakota. South Dakota's first tacilitv for the

segregation of retarded people was a department of the

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Northern Hospital for the Insane established as early as

1893. 1893 S.D. Sess. Laws 169, ch. 101. In 1917, the

legislature enacted the state’s first sterilization law, mak-

ing it “the duty” of the State Board of Charities and Cor-

rections to order the sterilization of “any of said inmates

(who] would produce children with a tendency to dis-

ease, feeble-mindedness, idiocy or imbecility. .. .” 1917

S.D. Sess. Laws 378-379, ch. 236, § 2.

In 1921, the legislature passed an act “RELATING

TO THE SEGREGATION OF FEEBLE MINDED.”

1921 S.D. Sess. Laws 344, ch. 235. The law created the

State Commission for the Control of the Feeble Minded

and empowered it “to make all necessary rules and reg-

ulations pertaining to the segregation, care and control

of feeble minded persons. .. .” Id. §§ 1, 3. It was “the

purpose of this act to provide that all feeble minded per-

sons resident within this state shall become the wards of

the state and shall be kept segregated.” Id. § 2. In order

to enforce this mandate, the “state commission shall make

a survey of all state institutions and of the state generally

to ascertain the persons whom they believe to be feeble-

minded in order that said state commission may make

necessary complaints to the county commission.” Id. at

344-45, § 5. Additionally, “[a]ll teachers” were required

to “report all feeble-minded children coming to their at-

tention to the state board.” Id. at 345. This system of

outreach efforts to systematically segregate retarded peo-

ple became known nationwide as the “South Dakota

Plan,” and became a model for similar efforts in other

states. The legislation was deemed by the Commission to

“constitute a substantially laid foundation upon which to

erect the super-structure of a wise social and economic

administration of the feeble-minded problem.” STATE OF

SOUTH DAKOTA, SECOND BIENNIAL REPORT OF THE

COMMISSION FOR SEGREGATION AND CONTROL OF THE

FEEBLE-MINDED FOR THE PERIOD ENDING JUNE 30.

1928 TO THE GOVERNOR 2 (1928).

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The Commission proposed legislation to require the

“identification of all feeble-minded in the state and their

registration as a matter of record [,] ... a continuative

census [,] ... supervision and control by properiy con-

stituted authorities [,] . . . [and] the operation of the ster-

ilization law and the anti-marriage law. In fact the law is

designed to give the defective the protection of the state,

and at the same time to protect the state against his so-

cial inadequacy.” STATE OF SOUTH DAKOTA, THIRD BI-

ENNIAL REPORT OF THE COMMISSION FOR SEGREGATION

AND CONTROL OF THE FEEBLE-MINDED FOR THE PE-

RIOD ENDING JUNE 30, 1930 TO THE GOVERNOR 3

(1930). The Commission warned that the proposed leg-

islation was necessary due to the large numbers of “feeble-

minded” who were “at large and uncontrolled by the

state.” Id. at 4.

On February 19, 1931, the comprehensive law re-

quested by the Commission was enacted. The term “fee-

ble minded” was broadly and vaguely defined to include

“all individuals, except the insane, who by reason of men-

tal deficiency are incapable of doing the work of the grades

in the public schools in a reasonable ratio to their years

of life; or who by reason of mental deficiency and other

associated defects are incapable of making the proper ad-

justments to life for one of their chronological age.” 1931

S.D. Sess. Laws 200, ch. 153. § 1. The Commission

drafted into the law its paramount “authority in all mat-

ters pertaining to the care, supervision. and control of all

feeble-minded persons in the State of South Dakota not

confined within the state school and home for the feeble

minded. Said commission shall determine the conditions

under which such feeble minded persons shall be per-

mitted to remain outside of said institution; and when.

and under what conditions, commitment to such insti-

tution shall be required.” Id. § 2. The Commission was

given “the duty” to “maintain a continuative census of

the feeble minded in the state. and all boards of educa-

tion, school principals. county superintendents of

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schools, city school superintendents. and teachers, are

hereby specifically required to give said commission, or

its agents, such access as the commission, or its agents.

deem necessary to all school records, and to all children

within their control for purposes of examination. . . .” Id.

§ 3(a). Moreover, it was to “be the duty of all teachers,

city school superintendents and county superintendents

of schools” as well as “the duty of all doctors, nurses,

hospitals, penal and charitable institutions. county wel-

fare boards, public health officers. and public officers.

boards, or commissions within the State of South Da-

kota, to report to the state commission for the control of

the feeble minded the name, age. and residence ‘of all

children believed by them to be feeble minded, and also to

furnish whenever requested by the state commission for

control of the feeble minded any and all information

which they may have relative to the name, age, residence

and antecedents of any person believed to be teeble

minded.” Id. § 3(b), (c). “Sub-Commissions,” were es-

tablished in each county of the state “under the direct

authority of the state commission” with the “specific au-

thority” to “apprehend, examine, commit, establish

guardianships, transport, and maintain the custody of

any feeble minded person within their respective coun-

ties.” Id. at 200-01, § 4. “It shall also be the dutv ot each

sub-commission to declare to be feeble minded all of those

persons whom the sub-commission, or whom a majority

of the members of such sub-commission., tind upon in-

vestigation and examination to be feeble minded: and

forthwith to commit such feeble minded to the supervi-

sion and control of the state commission. . . .” Id. at 201.

§ 6. :

This legislation, according to the Commission.

“would serve the purpose of securing control and super-

vision of all the feeble-minded outside of institutions in

the State.” STATE OF SOUTH DAKOTA. FOURTH BIEN-

NIAL REPORT OF THE COMMISSION FOR SEGREGATION

AND CONTROL OF THE FEEBLE-MINDED FOR THE PE-

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RIOD ENDING JUNE 30, 1932 TO THE GOVERNOR 3

(1932). “{T]he Commission was thoroughly convinced

that the great problem of feeble-mindedness lay in that

large group of feeble-minded outside of institutions.”

who were “scattered throughout the population” and “in

possession of all the rights and liberties of normal peo-

ple.” Id. The Commission found that most of “the feeble-

minded were at large and uncontrolled by the State,” id.,

but that would change: “To have control there must be:

Ist, Identification; 2nd, Examination; 3rd, Registration;

4th, Supervision; 5th, Prevention (of marriage): 6th. Ster-

ilization. The new law is designed to fulfill these require-

ments.” Id.

Commission personnel “were sent into the various

counties and through contact with the schools, welfare

boards, health officers, social agencies, physicians,

nurses, and public agencies of every kind. sought to lo-

cate every possible feeble-minded individual.” Id. at 9.

Two years later, the Commission reported “the

number who have been committed to the State Commis-

sion, those who are segregated in the institution and those

who have been sterilized, are now all under State Con-

trol.” STATE OF SOUTH DAKOTA. FIFTH BIENNIAL RE-

PORT OF THE STATE COMMISSION FOR THE CONTROL OF

THE FEEBLE-MINDED FOR THE PERIOD ENDING JUNE

30, 1934 TO THE GOVERNOR 5 (1934). The Commission

complained. though, that the state’s sterilization law was

“much too complicated and cumbersome to achieve the

best results.” Id.

The legislature agreed, enacting legislation the fol-

lowing February giving each Sub-Commission, follow-

ing a hearing, “the power to make an order for the ster-

ilization of any feeble-minded person found within its re-

spective county... .” 1935 S.D. Sess. Laws 163, ch. 113,

§ 1. A petition for sterilization could be “filed with the

Chairman of the Sub-Commission of the County in which

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the person believed to be feeble-minded is found,” by

“any resident of the County in which such person may

be found.” Id.

The “South Dakota Plan” was in effect in similar form

at least through 1968. See STATE OF SOUTH DAKOTA.

TWENTY-SECOND BIENNIAL REPORT OF THE STATE

COMMISSION FOR THE MENTALLY RETARDED

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