The Garrett History Brief

Disability Rights Mandates: Federal and State Compliance with Employment Protections and Architectural Barrier Removal (Apr. 1989). See also Sharon L. Harlan & Pamela M. Robert , Disability in Work Organizations: Barriers to Employment Opportunity, Final Report ( Univ. of Albany & State U.N.Y. Nov. 1995 ) (reporting on 1990 data) (state employees "confront disabilities with stereotypes, ignorance, misinformation, fear, and pity that impede progress toward equal opportunity"): Barbara Hoffman, Employment Discrimination Based on Cancer History: The Need for Federal Legislation , 59 TEMPLE L.Q. 1, 2-9 (1986) (describing reasons and types of public employment discrimination against persons with cancer).

Employment Discrimination Against Cancer Victims and the Handicapped: Hearings on H.R. 370 and H.R. 1294 Before the Subcomm. on Employment Opportunities of the House Comm. on Education and Labor, 99th Cong. 57 (June 6, 1985) (statement of Ivan Barofsky, Institute of Social Oncology ).

Dong W. Cho , Cerebral Palsy Research Found. of Kansas, Inc. , Problem Solving with Rehabilitation Engineering: Labor Market Activities of Disabled Persons: Analysis ofa National Survey of Disabled Persons, iii (Spring 1982).

Americans with Disabilities Act of 1989: Hearing on H.R. 2273 Before the Subcomm. on Employment Opportunities and the Subcomm. on Select Education of the House Comm. on Education and Labor, 101st Cong . 19-20 (Sept. 13, 1989) (statement of Evan J. Kemp, Jr., Commissioner EEOC).

Americans with Disabilities Act of 1988: Oversight Hearing on H.R. 4498 Before the Subcomm. on Select Education of the House Comm. on Education and Labor, 100th Cong. 144-45 (Oct. 24, 1988) (statement of Susan Downie, Director, Traumatic Brain Injury Services, Rehabilitation Center, Hartford).

Id. at 195 (statement of Denise Karuth, Mass. Coalition of Citizens with Disabilities).

Americans with Disabilities Act of 1989: Hearing on S. 933 Before the Subcomm. on the Handicapped of the Senate Comm. on Labor and Human Resources, 101st Cong. 404 (May 9, 1989) (statement of National Organizations Responding to AIDS).

Hearings, supra note 5, at 41 (statement of Donald Levine, President PARI Independent Living Program).

Id. at 173 (statement of Lelia Batten, Portland Coalition for Psychiatrically Labeled).

Implementation of Section 504, Rehabilitation Act of 1973: Hearings Before the Subcomm. on Select Education of the House Comm. on Education and Labor, 95th Cong, 290-368 (Sept. 16, 1977) (statement of David Tatel, Director, Office for Civil Rights, Dep't of Health, Education and Welfare).

Rehabilitation Act of 1973: Oversight Hearings Before the Subcomm. on Select Education of the House Comm. on Education and Labor, 95th Cong. 336, 368 (Apr. 7, 1978) ("During the 15 months ending September 30, 1976, handicapped men and women made up only 4%—81,000—of all persons enrolled in Title I programs and less than 3% of those in public service jobs under Titles II and IV") (statement of T. P. Hipkens, Director, Ass'n of Rehabilitation Facilities).

133 Cong. Rec. H6996 (daily ed. Aug. 4, 1987). There were also numerous news articles about state employment discrimination against persons with disabilities. See, e.g., Report Finds Legal Discrimination Against Women State Job Holders, UPI, Cal., Jan. 8, 1989 ( 1988 Personnel Board report showed significant underrepresentation of workers with disabilities in state jobs); Latinos Still Lag in State Hiring, Lawmakers Told, L.A. TIMES, Apr. 15, 1988 (1987 Personnel Board report showed workers with disabilities second-most underrepresented group in state jobs); When Illness Leaves Social Side Effects, U.S. NEWS & WORLD REPORT (Aug. 13, 1984) (noting conflicting state court decisions regarding disability discrimination).

Civil Rights Restoration Act of 1987: Hearings on S. 557 Before the Senate Comm. on Labor and Human Resources, 100th Cong . (Mar. 19, 1987).

S. Rep. No. 101-485(II), at 38 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 320.

Hoffman, supra note 1, at 20.

See Conroy v. Aniskoff, 507 U.S. 511, 516 & n.10 (1993) (Court presumes Congress is aware of the relevant case law).

Cho, supra note 3, at iii.

Correspondence from Richard Watkins, MIS Dept., California State Personnel Bd., to Suzan Kern, Advocacy, Inc., Austin, Tex. (June 7, 2000) (A-278).

Letter from Mary L. Pollock , Employment Relations Bd. Appeals Officer (former State Equal Employment Opportunity Coordinator), Dep't of Civil Service, State of Mich., to Suzan Kern, Advocacy, Inc., Austin, Tex. (June 19, 2000) (A-279).

E-mail correspondence from Dorsey Seldon, Affirmative Action Specialist, Dep't of Administrative Services, Personnel Department, State of Neb., to Suzan Kern, Advocacy, Inc., Austin, Tex. (June 21 & 22, 2000) (A-285).

Correspondence from John H. TenPas, Disability Consultant, Division of Persons with Disabilities, Iowa Dep't of Human Rights, to Brian East, Advocacy, Inc., Austin, Tex. (June 22, 2000) (A-287).

Board of Trustees of the Utah State Training School, Biennial Rep. 3 (1938).

Baldwin , The Causes, Prevention, and Care of Feeble-minded Children in Proceedings of the Texas Conference of Charities and Corrections, Second Annual Meeting 87 (1912).

Report of Vermont State School for Feeble-minded Children 17-18 (1916).

Oregon Bd. of Bldg. Comm'rs Report to the Twenty-fourth Legis . Assembly, Regular Sess, 22-23 (1906).

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

1915 TEX. GEN. LAWS ch. 90 § 1, 2 (App. 243). Similar statutes from other states are collected in the Appendix.

See, e.g., 1921 S.D. SESS. LAWS 344, ch. 235 (teachers); 1917 OR. LAWS 740, § 5 (superintendents); 1918 KY. ACTS 171, § 30 (nurses); 1904 MASS. ACTS & RESOLVES, ch. 459, § 5 & 1906 MASS. ACTS & RESOLVES, ch. 508, § 12 (any person).

See, e.g., 1920 Miss. LAWS 294, ch. 210, § 17; 1921 W.VA. ACTS 480, ch. 131, § 4(a); 1909 OKLA. SESS. LAWS 538, ch. 34, art. 2 § 8.

See, e.g., 1905 MICH. PUB. ACTS 169-70, No. 121; 1919 N.J. LAWS 508, ch. 217, §3. See generally David J. Rothman , The Discovery of the Asylum: Social Order and Disorder in the New Republic 221 ( Little, Brown & Co. 1971).

See, e.g., Cleburne, 473 U.S. at 450 (holding that a city ordinance requiring the operator of a group home for the mentally retarded to obtain a special use permit violates the equal protection clause); J. W. v. City of Tacoma, 720 F.2d 1126, 1127 (9th Cir. 1983) (holding that the city's refusal to issue a special use permit to the operator of housing for the mentally disabled violated the due process clause of the Fourteenth Amendment); Burstyn v. City of Miami Beach, 663 F. Supp. 528, 537 (S.D. Fla. 1987) (declaring unconstitutional several provisions of a city ordinance regulating disabled housing); Stoner v. Miller, 377 F. Supp. 177, 180 (E.D.N.Y. 1974) (finding unconstitutional a city ordinance that prohibited mentally ill persons from registering in hotels and boarding houses).

See, e.g., ARC, Inc. v. New Jersey, 950 F. Supp. 637, 639-41 (D.N.J. 1996) (invalidating discriminatory zoning law), later proceeding at 986 F. Supp. 261 (D.N.J. 1997); Association for Advancement of the Mentally Handicapped, Inc. v. City of Elizabeth, 876 F. Supp. 614, 617 (D.N.J. 1994) (same). See also Sunrise Dev., Inc. v. Town of Huntington, 62 F. Supp. 2d 762, 774-75 (E.D.N.Y 1999) (granting injunction against zoning law); Assisted Living Assoc., L.L.C. v. Moorestown Township, 996 F. Supp. 409, 414 (D.N.J. 1998) (same).

See, e.g., City of Edmonds v. Oxford House, 514 U.S. 725, 728 (1995); Smith & Lee Assocs. v. City of Taylor, 102 F.3d 781, 786 (6th Cir. 1996); Stewart B. McKinney Found., Inc. v. Town Planning & Zoning Comm'n, 790 F. Supp. 1197, 1207 (D. Conn. 1992); United States v. Schuylkill Township, No. 90-2165, 1990 U.S. Dist. LEXIS 15555, at *6-*7 (E.D. Pa. Nov. 16, 1990).

These statutes are set forth in the Appendix. See, e.g., ARIZ. REV. STAT. § 36-582 (1999) (requiring 1,200 feet between homes for the disabled) (App. 16); ARK. CODE ANN. § 20-48-606 (Michie 1999) (3,000 feet) (App. 23); CONN. GEN. STAT. § 8-3f (1999) (1,000 feet) (App. 45); MICH. COMP. LAWS § 5.2961(16a) (1999) (1,500-3,000 feet) (App. 142); N.J. REV. STAT. § 40:55d-66.1 (1995) (1,500 feet) (App. 180); N.C. GEN. STAT. § 168-22 (1999) (half-mile) (App. 195); WIS. STAT. § 60.63 (1999) (2,500 feet) (App. 269). One commentator has described density limits as "among the most irrational legislative reactions to the establishment of homes for people with mental disabilities." Arlene S. Kanter , A Home of One's Own: The Fair Housing Amendments Act of 1988 and Housing Discrimination Against People with Mental Disabilities, 43 AM. U. L. REV. 925, 977 n. 313 (1994).

See, e.g., CHICAGO MUN. CODE § 36-34 (1966); COLUMBUS GEN. OFFENSE CODE 2387.04 (1972); OMAHA MUN. CODE 25 (1967).

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

See also, e.g., Majors v. Housing Auth., 652 F.2d 454, 454 (5th Cir. 1981) (public housing operator refused to waive its no pet policy to accommodate a disabled tenant); Adapt v. Philadelphia Hous. Auth., No. 98-4609, 2000 U.S. Dist. LEXIS 5380, at * 1 (E.D. Pa. Apr. 14, 2000) (city public housing authority failed to provide enough handicapped accessible public housing units).

Many examples of these statutes are set forth in the Appendix. See generally Phillip R. Reilly, The Surgical Solution: A History of Involuntary Sterilization in the United States 45-55 (1991); Harry H. Laughlin , Eugenical Sterilization in the United States (American Eugenics Soc'y 1926).

Reilly, supra note 38, at 94.

See Paul A. Lombardo , Three Generations, No Imbeciles: New Light on Buck v. Bell, 60 N.Y.U. L. REV. 30, 31 (Apr. 1985).

In Michigan, Ted Aslin and his brother, Fred, were involuntarily sterilized at the age of 18 by the state of Michigan in 1944 because they were "feeble-minded morons." After their release, Fred and Ted went on to raise adopted sons. For more than a decade, Ted Aslin has acted as a licensed foster parent to approximately 100 children. 20/20: Breeding Better Citizens: Forced Sterilization of Americans Believed to Have Some Mental Defect (ABC television broadcast Mar. 22, 2000).

See Pet. Br. at 38-39 (states have been "overprotecting the constitutional rights of the disabled"); Brief of Amicus Curiae of Hawaii, et al., at 10 (states "are generally held up as positive examples").

Stevenson Smith et al., A Summary of the Laws of the Several States Governing (I) Marriage and Divorce of the Feebleminded, the Epileptic and the Insane, (II) Asexualization, (III) Institutional Commitment and Discharge of the Feebleminded and the Epileptic, 82 BULL. U. WASH. 5-15 (May 1914).

Bruce Dennis Sales , et al., Disabled Persons and the Law: State Legislative Issues 16-20 (Plenum Press 1980) (as of 1980, 42 states and the District of Columbia had statutes restricting marriage for persons with disabilities) .

Most states have laws permitting the termination of rights of disabled parents. See Sales, supra note 44, at 459-66 (analyzing and critiquing guardianship statutes from all 50 states).

See also In re Marriage of R.R., 575 S.W.2d 766, 768 (Mo. Ct. App. 1978) (multiple sclerosis); Moye v. Moye, 627 P.2d 799 (Idaho 1981) (epilepsy); Stewart v. Stewart, 521 N.E.2d 956 (Ind. Ct. App. 1988) (HIV); In re Marriage of Carney, 598 P.2d 36, 40 (Cal. 1979) (quadraplegic); In re Marriage of Levin, 162 Cal. Rptr. 757 (Ct. App. 1980) (stroke).

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

Voting Rights Primary Access Committee, Exercising My Right to Vote: The Accessibility of New Hampshire Polling Places to Citizens with Disabilities (Apr. 1996).

Coalition for Accessible Political Elections, Report of the National Voter Independence Project (Feb. 1999).

Debra Auspitz, Disabled Votes, PHILADELPHIA CITY PAPER, Mar. 9-16, 2000.

Examples of statutes barring service by jurors with disabilities are included in the Appendix (e.g., App. 1, 15, 22).

Lewinson v. Crews, 282 N.Y.S.2d 83, 84-86 (App. Div. 1967) (excluding a blind college professor as a juror); id. at 87-88 (Hopkins, J., dissenting) (law in force since 1829), aff'd, 236 N.E.2d 853 (N.Y. 1968). New York courts continued to exclude blind persons from jury service until the 1980s. Jones v. New York City TransitAuth., 483 N.Y.S.2d 623, 625-26 (Civ. Ct. 1984); Jackanin v. Carey, 476 F. Supp. 420 (E.D.N.Y. 1979 (rejecting constitutional challenge to exclusion of blind juror), aff'd mem., 633 F.2d 204 (2d Cir. 1980). Only with the passage of the ADA did the New York state courts cease excluding disabled persons solely because of their status and without regard to their individual abilities. People v. Guzman, 555 N.E.2d 259, 261 (N.Y. 1990).

Even where the state legislature amended the law to remove statutory exclusions of disabled persons, some state courts continued to exclude all deaf persons from jury service. For example, in DeLong v. Brumbaugh, 703 F. Supp. 399, 406 (W.D. Pa. 1989), a judge serving on the superior court for the State of Pennsylvania testified that "he would disqualify a deaf person under all circumstances."

See also Matthews v. Jefferson, 29 F. Supp. 2d 525, 533-34, 540 (W.D. Ark. 1998)(Marion County courthouse inaccessible; county "has excluded mobility impaired individuals from participation in its services, programs, [and] activities").

Summary of Survey and Public HearingReports of the Access for Persons with Disabilities Subcommittee of the California Judicial Council's Access and Fairness Advisory Committee 8-10 (Jan. 1997).

"Recent census statistics show that 80 per cent of the feeble-minded children in the general population of the United States are the progeny of aliens or naturalized citizens" N.Y. TIMES, Feb. 18, 1912. See generally Reilly, supra note 38, at 66.

See, e.g., IND. CONST. art. 8, § 1 (public schools must be "equally open to all"); MISS. CONST. art. 7, § 201 (public education required for all children between the ages of 6 and 21); N.D. CONST. art. 8, § 147 ("all children"). See generally Burgdorf, A History of Unequal Treatment, 15 SANTA CLARA LAWYER 855, 868 (1975); S. Sarason & L. Doris, EDUCATIONAL HANDICAP, SOCIAL POLICY AND SOCIAL HISTORY (1979).

Georgia Training School for Mental Defectives, Annual Report, at 4 (1922) (quoted in Timothy M. Cook, The Americans with Disabilities Act: The Move to Integration, 64 TEMP. L. REV. 393, 403 (1991)). See also Weintraub & Abeson, Appropriate Education for All Handicapped Children: A Growing Issue, 23 SYRACUSE L. REV. 1037, 1057-58 (1972).

See, e.g., State ex rel. Beattie v. Board of Educ., 172 N.W. 153 (Wis. 1919) (excluding physically disabled child with normal mental functioning); Watson v. City of Cambridge, 32 N.E. 864, 864 (Mass. 1893) (student "was too weak-minded").

See, e.g., Thomas ex rel. Thomas v. Davidson Academy, 846 F. Supp. 611 (M.D. Tenn. 1994) (school illegally discriminated against expelled student because she had an autoimmune disease); Martinez v. School Bd., 861 F.2d 1502 (11th Cir. 1988) (school improperly segregated a mentally-retarded student with AIDS by building a glass wall between her and the classroom); Robertson v. Granite City Community Unit School District No. 9, 684 F. Supp. 1002 (S.D. Ill. 1988) (granting preliminary injunction against school district that isolated first-grader with AIDS); Doe v. Belleville Pub. Sch. Dist. No. 118, 672 F. Supp. 342 (S.D. Ill. 1987) (exclusion of first-grader because he had AIDS); Ray v. School Dist., 666 F. Supp. 1524 (M.D. Fla. 1987) (ordering school district to educate HIV-positive siblings to remain in school); Hairston v. Drosick, 423 F. Supp. 180 (S.D. W.Va. 1976) (exclusion of grade school child with spina bifida violated Rehabilitation Act of 1973, and due process clause of the Fourteenth Amendment); In the Interest of H, 218 N.W.2d 441, 445-46 (N.D. 1974) (although a "great many handicapped children in [North Dakota had received] no education at all, ... [h]andicapped children are certainly entitled to no less than unhandicapped children under the explicit provisions of the [state] Constitution")