AMERICA AND KANSAS HAVE A LONG AND CRUEL HISTORY OF
DISCRIMINATION AGAINST PEOPLE WITH DISABILITIES.
To understand the disability rights movement and the positive recent developments to protect the rights of people with disabilities, you must appreciate the history of discrimination and isolation thrust upon them. For much of our nation’s history, Americans who happen to have disabilities were considered as people without any real value to society, a drain on the government’s resources, and a population without any real political or economic power. Some in our society still feel this way today.
Discrimination is the making of distinctions in the way a person or class of persons is treated based on a particular characteristic or set of characteristics of that individual(s). In this case, that characteristic is a disability. Examples of discriminatory acts range from a one-inch step into a building to forced institutionalization, and to the most heinous examples of abuse and neglect. The history of discrimination, forced institutionalization, forced sterilization, denial of education, being hidden away from society, etc., has been well documented by Congress and by the Courts.
Below are excerpts from a court case, Tennessee v. Lane, U.S. Supreme Court brief, November 12, 2003. The following are quotes from the court briefs. Reading these passages provides an excellent summary of the historic discrimination faced by people with disabilities in our nation.
“After decades of study, Congress determined that persons with disabilities had suffered from a virulent history of official governmental discrimination, isolation, and segregation. Congress found, moreover, that such discrimination and segregation, like race and gender discrimination, have repercussions that have persisted over the years and that continue to be manifested in decision making by state and local officials across the span of governmental operations. That official discrimination results not just in the denial of the equal protection of the laws and equal access to governmental benefits, but also in the deprivation of fundamental rights, such as the rights of access to the courts, to vote, to substantive and procedural due process, to petition government officials, and to other protections of the First, Fourth, Fifth, Sixth, and Eighth Amendments.”
While referring to the Americans with Disabilities act of 1990 it states, “In Title II, Congress formulated a statute that, much like federal laws combating racial and gender discrimination, is carefully designed to root out present instances of unconstitutional discrimination, to undo the effects of past discrimination, and to prevent future unconstitutional treatment by prohibiting discrimination and promoting integration where reasonable. . . . The statute is thus carefully tailored to prohibit state conduct that presents a substantial risk of violating the Constitution or that unreasonably perpetuates the exclusionary effects of prior unconstitutional treatment and exclusion.”
“Persons with disabilities reported "denials of educational opportunities, lack of access to public buildings and public bathrooms, [and] the absence of accessible transportation.” Congress also learned of an “alarming rate of poverty,” a dramatic educational gap, and a life of social “isolat[ion]” for persons with disabilities.’
“Twenty percent of persons with disabilities--more than twice the percentage of the general population--lived below the poverty line, and 15% of disabled persons had incomes of $15,000 or less. Threshold 13-14. Forty percent of persons with disabilities--triple the rate for the general population--did not finish high school. Only 29% of persons with disabilities had some college education, compared with 48% for the general population. Two-thirds of all working-age persons with disabilities were unemployed; only one in four worked full-time. Two- thirds of persons with disabilities had not attended a movie or sporting event in the past year; three-fourths had not seen live theater or music performances; persons with disabilities were three times more likely not to eat in restaurants, and 13% of persons with disabilities never went to grocery stores.”
Historic Discrimination: The “propriety of any 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, 640 (1999) (quoting Flores, 521 U.S. at 525). While petitioner and its seven amici States ignore it, Congress and this Court have long acknowledged the Nation's “history of unfair and often grotesque mistreatment” of persons with disabilities. Cleburne, 473 U.S. at 454 (Stevens, J., concurring); see also Olmstead v. L.C., 527 U.S. 581, 608 (1999) (Kennedy, J., concurring) (“[O]f course, persons with mental disabilities have been subject to historic mistreatment, indifference, and hostility.”); Cleburne, 473 U.S. at 446 (“Doubtless, there have been and there will continue to be instances of discrimination against the retarded that are in fact invidious.”); Alexander v. Choate, 469 U.S. 287, 295 n.12 (1985) (“well- cataloged instances of invidious discrimination against the handicapped do exist”).
“[T]orture, imprisonment, and execution of handicapped people throughout history are not uncommon.” The United States Civil Rights Comm'n, Accommodating the Spectrum of Individual Abilities 18 n.5 (1983) (Spectrum). More often, “societal practices of isolation and segregation have been the rule.” From the 1920s to the 1960s, the eugenics movement labeled persons with mental and physical disabilities as “sub-human creatures” and “waste products” responsible for poverty and crime. Every single State, by law, provided for the segregation of persons with mental disabilities and, frequently, epilepsy, and excluded them from public schools and other state services and privileges of citizenship. States also fueled the fear and isolation of persons with disabilities by requiring public officials and parents to report and segregate into institutions the “feebleminded.”
“Almost every State accompanied forced segregation with compulsory sterilization and prohibitions on marriage. See Buck v. Bell, 274 U.S. 200, 207 (1927) ("It is better for all the world, if . . . society can prevent those who are manifestly unfit from continuing their kind. . . . Three generations of imbeciles are enough."); 3 Leg. Hist. 2242; M. Burgdorf & R. Burgdorf, A History of Unequal Treatment (Unequal Treatment), 15 Santa Clara Lawyer 855, 887-888
(1975). Children with mental disabilities “were excluded completely from any form of public education.” Board of Educ. v. Rowley, 458 U.S. 176, 191 (1982). The numerous States also restricted the rights of the physically disabled to enter into contracts, Spectrum 40, while a number of large cities enacted “ugly laws,” which prohibited the physically disabled from appearing in public. Chicago's law provided:
“No person who is diseased, maimed, mutilated or in any way deformed so as to be an unsightly or disgusting object or improper person to be allowed in or on the public ways or other public places in this city, shall therein or thereon expose himself to public view, under a penalty of not less than one dollar nor more than fifty dollars for each offense. Unequal Treatment 863 (quoting ordinance). Such laws were enforced as recently as 1974.”
“See also State v. Board of Educ., 172 N.W. 153, 153 (Wis. 1919) (approving exclusion of a boy with cerebral palsy from public school because he “produces a depressing and nauseating effect upon the teachers and school children.”) (noted at 2 Leg. Hist. 2243); see generally T. Cook, The Americans with Disabilities Act: The Move to Integration, 64 Temple L. Rev. 393, 399-407 (1991).”
Enduring Unconstitutional Treatment: “Prejudice, once let loose, is not easily cabined.” Cleburne, 473 U.S. at 464 (Marshall, J., concurring); see Hibbs, 123 S. Ct. at 1979 (noting the “persistence” of gender discrimination and the “firmly rooted” stereotypes that accompany it). Indeed, Congress found that “our society is still infected by the ancient, now almost subconscious assumption that people with disabilities are less than fully human and therefore are not fully eligible for the opportunities, services, and support systems which are available to other people as a matter of right,” and “[t]he result is massive, society-wide discrimination.” S. Rep. No. 116, supra, at 8-9.
Another section reads, “That is because a concerted process of changing discriminatory laws, policies, practices, and stereotypical conceptions and prejudices did not even begin until the 1970s and 1980s. Cf. Hibbs, 123 S. Ct. at 1978. Even then, “out-dated statutes [were] still on the books, and irrational fears or ignorance, traceable to the prolonged social and cultural isolation” of those with disabilities “continue to stymie recognition of the[ir] dignity and individuality.” Cleburne, 473 U.S. at 467 (Marshall, J., concurring) (emphasis added). The involuntary sterilization of the disabled is not distant history; it continued into the 1970s, and occasionally even into the 1980s-- well within the lifetime of many current governmental decision makers. P. Reilly, The Surgical Solution 2, 148 (1991); Look Back at Oregon's History of Sterilizing Residents of State Institutions (National Pub. Radio broadcast Dec. 2, 2002). As recently as 1983, fifteen States continued to have compulsory sterilization laws on the books. Spectrum 37; see Stump v. Sparkman, 435 U.S. 349, 351 (1978) (state judge ordered the sterilization of a “somewhat retarded” 15-year-old girl); Reilly, supra, at 148-160; contrast Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) (strict scrutiny governs sterilization classifications). Until the late 1970s, “peonage was a common practice in [Oregon] institutions.” Governor J. Kitzhaber, Proclamation of Human Rights Day, and Apology for Oregon's Forced Sterilization of Institutionalized Persons, Speech at Salem, Or. (Dec. 2, 2002). As of 1979, “most States still categorically disqualified ‘idiots’ from voting, without regard to individual capacity and with discretion to exclude left in the hands of low-level election officials." Cleburne, 473 U.S. at 464 (Marshall, J., concurring).
Congress learned that irrational prejudices, fears, and animus still operate to deny persons with disabilities an equal opportunity for public education. As recently as 1975, approximately 1 million disabled students were “excluded entirely from the public school system.” 42 U.S.C. 1400(c)(2)(C). A quadriplegic woman with cerebral palsy and a high intellect was branded “retarded” by educators, denied placement in a regular school setting, and placed with emotionally disturbed children, where she was told she was “not college material.” VT 1635. Other school districts also simply labeled as mentally retarded a blind child and a child with cerebral palsy. NB 1031; AK 38 (child with cerebral palsy subsequently obtained a Master’s Degree). “When I was 5,” another witness testified, “my mother proudly pushed my wheelchair to our local public school, where I was promptly refused admission because the principal ruled that I was a fire hazard.”
See also California. Attorney General, Commission on Disability: Final Report 17, 81 (Dec. 1989) (Cal. Report) (“A bright child with cerebral palsy is assigned to a class with mentally retarded and other developmentally disabled children solely because of her physical disability”; in one town, all children with disabilities are grouped into a single classroom regardless of individual ability.); 136 Cong. Rec. 10,913 (1990) (Rep. McDermott) (school board excluded Ryan White, who had AIDS, not because the board “thought Ryan would infect the others” but because “some parents were afraid he would”); NY 1123 (three elementary schools locked mentally disabled children in a box for punishment); Education for All Handicapped Children, 1975-1974: Hearings Before the Subcomm. on the Handicapped of the Senate Comm. on Labor & Pub. Welfare, 93d Cong., 1st Sess., Pt. 2, at 793 (1973) (Christine Griffith) (first-grade student “was spanked every day” because her deafness prevented her from following instructions); id., Pt. 1, at 400 (Mrs. R. Walbridge) (student with spina bifida barred from the school library “because her braces and crutches made too much noise”); id.at 384; 2 Leg. Hist. 989; Spectrum 28, 29; UT 1556; PA 1432; NM 1090; OR 1375; AL 32; SD 1481; MO 1014; NC 1144; Garrett, 531 U.S. at 391-424 (Breyer, J., dissenting).
There is a long and unfortunate history of people with disabilities being denied access to government services and programs. A few examples: A paraplegic Vietnam veteran was forbidden to use a public pool; the park commissioner explained that “[i] it's not my fault you went to Vietnam and got crippled.” 3 Leg. Hist. 1872 (Peter Addesso); see also id. at 1995 (Rev. Scott Allen) (woman with AIDS and her children denied entry to a public swimming pool); 2 Leg. Hist. 1100, 1078, 1116; WS 1752 (deaf child denied swimming lessons); NC 1156 (mentally retarded child not allowed in pool); CA 166; MS 855; May 1989 Hearings 76 (Ill. Att'y Gen. Hartigan) (visually impaired children with guide dogs “cannot participate in park district programs when the park has a ‘no dogs’ rule”); NC 1155; PA 1391 (limiting library cards for “those having physical as well as mental disabilities”); CA 216 (wheelchair users not allowed in homeless shelter); CA 223 (same); DE 322 (same for mentally ill); KS 713 (discrimination in state job training program); IL 533 (female disability workshop participants advised to get sterilized); IA 664; AK 72, 145; OH 1218; AZ 116; AZ 127; HI 456; ID 541; see generally Spectrum App. An (identifying 20 broad categories of state-provided or
supported services and programs in which discrimination against persons with disabilities arises).
The examples above are used to provide context to the history of discrimination against people with disabilities because it provides a snapshot of just how pervasive the abuse, neglect, segregation, isolation, institutionalization and other severe forms of discrimination really are. In fact, actions and attitudes of discrimination against people with disabilities were, and are, so pervasive that after several years of hearings and study, even Congress figured out that something needed to change.
Creation of the Protection and Advocacy (P&A) System
The protection and advocacy system was founded in 1975 because of the sudden public acknowledgment of the horrific abuses that people with developmental disabilities were experiencing in institutions all around the country. Unfortunately, by mid-1970,s thousands upon thousands of individuals with disabilities had been forced to live in institutions and as a result had been brutally abused, tortured and denied any chance at the life that other Americans enjoyed. In Kansas, the Disability Rights Center of Kansas is the Protection and Advocacy System, having been founded in 1977.
People with a wide range of disabilities were, and still are institutionalized. People were referred to as the “feeble-minded, epileptics, Mongolian idiots, imbeciles, and insane.” Numerous public policies and practices of publicly mandated, publicly funded and publicly accepted discrimination and abuse were instituted. Today, the institutions look different in size, color, location, furnishings, and appearance, but make no mistake, an institution is an institution is an institution. Regardless of how well-meaning the intent, any living situation where the “owner,” service provider, administration or other systems or persons control your lifestyle, your roommates, your money, your meals, your recreation and your movements, (and on and on), is an institution. Institutions by their very nature deny, withhold, violate and abuse the rights of the people that live there.
In response to the historic discrimination against people with disabilities, the Protection and Advocacy (P&As) System. Every state and most US Territories have a designated protection and advocacy system (again, in Kansas this is the Disability Rights Center). P&As provide legally-based advocacy, including free advocacy and legal services, to people with disabilities in order to protect, enforce and enhance their rights under the law. P&As also have special powers under the federal law to investigate abuse and neglect, along with the corresponding authority to hold abusers accountable through civil actions.
Pictures from the book Christmas in Purgatory
“During the eighteenth century, the plight of the mentally ill was shocking almost everywhere in Europe. ...flighty, troublesome or dangerous patients were restrained and kept in a small room or stall in a private house, in ‘lunatic boxes,’ in cages or in other places of confinement that seemed appropriate for isolating them and rendering them harmless...as a result of poor supervision, many committed suicide, perished through accidents or created serious disturbances. The tense and exasperating environment thus created and encouraged the establishment of the strictest preventative measures.” - Emil Kraepelin (Christmas In Purgatory)
Eugenics: the pseudo-science that was a tool for oppression and systematic abuse against people with disabilities
Among the most heinous of the systematic abuses of persons with disabilities was the eugenics movement.
In 1883 Sir Francis Galton in England coined the term eugenics to describe his pseudo-science of “improving the stock” of humanity. The eugenics movement, taken up by Americans, leads to a passage in the United States of laws to prevent people with disabilities from moving to this country, marrying, or having children. In many instances, it leads to the institutionalization and forced sterilization of disabled people, including children.
THE EUGENIC TREE. This emblem, showing the far-flung roots of eugenics, was part of a certificate awarded to ‘meritorious exhibits’ at the Second International Congress of Eugenics, held in 1921 at the American Museum of Natural History in New York. (Image courtesy of the American Philosophical Society, Philadelphia, USA)
In his article “Never Again” (February 2000), Ward Harkavy writes: “Eugenicists believed that bone structure held clues about character traits. A century ago, scientists from the top universities in America began to study people's pedigrees in the hopes of creating ‘perfect’ children. Instead, they spawned a monster: the pseudoscience of eugenics. We bury memories of those days under a mountain of shame; rarely does the full scope of our flirtation with race science come to light.”
But now more than 1200 images from the heyday of eugenics are about to be opened to wide public view, under a program funded by the Cold Spring Harbor Laboratory on Long Island.
The Image Archive on the American Eugenics Movement, http://vector.cshl.org/eugenics/, pieced together by a staff led by David Micklos of the lab's DNA Learning Center, contains explosive material on such topics as “race mixing” and “Mongolian idiocy.” Well-written essays accompany the images and put the times in perspective.
It's more than coincidence that the Cold Spring Harbor Lab hosts this project. It is, after all, home of the Human Genome Project to map DNA. A fairly straight line connects this project to the early eugenics movement, although the scientists of yesteryear took gene research down a darker road. Believing that single genes could determine whether someone would be ‘inferior,’ they hoped to build a better human by deciding who should or shouldn't make babies. Minority groups were most often the target of this plan.
In 1910, the Eugenics Record Office was set up at Cold Spring Harbor, making the lab the center of what became an international movement. In the United States, the results ranged from ‘Fitter Families’ contests, aimed at encouraging people of ‘good stock’ to breed, to laws restricting immigration of non-WASPs and ordering sterilization of the ‘feebleminded.’
Arguing for limiting immigration from southern and eastern Europe, Harry Laughlin, head of the ERO, told Congress in 1920, "We in this country have been so imbued with the idea of democracy or the equality of all men that we have left out of consideration the matter of blood or natural inborn hereditary mental and moral differences." Adolf Hitler, of course, took the same logic to pathological conclusions, using eugenics as a rationale for genocide.
Micklos, the site's editor, doesn't mince words about the American involvement in eugenics. In one essay, he describes the ERO's journal Eugenical News as the “dominant mouthpiece for the racist and anti-immigration agenda of eugenics research.”
The digital archive serves as a reminder that crackpot science isn't just the domain of Nazis and ignorant racists. Among the leaders of the American eugenics movement were Stanford president David Starr Jordan, Luther Burbank, and Alexander Graham Bell. Charles Darwin's son headed the Eugenics Society in England. The ERO itself was endowed by a grant from the widow of railroad magnate E.H. Harriman, and such population-control progressives as Margaret Sanger also believed in the cause.
Making the history public: apologies and promises of a better tomorrow
Just a few years ago, the Governor of Virginia publicly apologized for that state’s history of institutionalization, and more directly the forced sterilization of thousands of Virginians. Below is a Kansas City Star article that provides the Missouri connection to the Eugenics movement.
The 1927 U.S. Supreme Court, in Buck v. Bell, ruled that the forced sterilization of people with disabilities is not a violation of their constitutional rights. The decision removed the last restraints for eugenists; advocating that people with disabilities be prohibited from having children. By the 1970s, some 60,000 disabled people were sterilized without consent.
“We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world if, instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. . . . Three generations of imbeciles are enough. [p*208]” Justice Oliver Wendell Holmes, United States Supreme Court.
In his Kansas City Star article on the eugenics movement in the Midwest, Michael L. Wehmeyer states the following:
The effort to sterilize the unfit in Kansas began in 1894 with F. Hoyt Pilcher, then superintendent of Winfield's Kansas State Asylum for Idiotic and Imbecile Youth. By 1895, Pilcher had developed a reputation as a trailblazer. The Winfield Courier reported: “The unsexing of one hundred and fifty of these inmates—male and female—was an innovation that received the endorsement of the entire medical profession of the world, and the plaudits of right-thinking people everywhere.” On March 14, 1913, Kansas, well after Pilcher's reign, passed a law stating that forced sterilization was acceptable if “the mental or physical condition of any inmate would be improved . . . or that procreation by such inmates would be likely to result in defective or feeble-minded children.”
On October 6, 1928, the Supreme Court in Kansas held that a later version of the Kansas sterilization law (passed March 13, 1917) was constitutional. Landman (1932) observed that “The Buck v. Bell decision mandated May 2, 1927, has definitely altered the judicial opinion of this country in favor of this kind of legislation”. (Eugenics and Sterilization in the Heartland, 2002)
By the mid-1970s nearly 3,000 Kansans had undergone forced sterilization in the state-run “hospitals” for persons with mental illness and developmental disabilities. Kansas hosted the third most active eugenics program in the country just behind Virginia and California. For its population, Kansas probably subjected the highest percentage of its population to this crime. The State of Kansas continues to operate 4 large institutions for citizens with disabilities located in Larned, Osawatomie, Parsons, and Topeka.
“Cast upon this globe without physical strength or innate ideas, incapable in himself of obeying the fundamental laws of this nature which call him to the supreme place in the universe, it is only in the heart of a society that man can attain the pre-eminent position which is his natural destiny. Without the aid of civilization, he would be one of the feeblest and least intelligent of animals...”
Jean-Marc-Gaspard Itard
NEVER FORGET – NEVER AGAIN
Never Forget and Never Again are two slogans that have been used to help us remember what was, and what should be. The reader must remember that this is only a brief accounting of the long and varied history of the discrimination and abuse of people who have disabilities and the many attempts to make things better. The history serves to remind us that the job of ensuring justice and equality is not completed. DRC’s very purpose is to do everything in its power to make sure that never again will Kansans with disabilities experience the discrimination, abuse, torture, segregation, and denial of the most basic of human and civil rights that other Americans enjoy.
I
We think she would agree.
Note: Many of the facts and information printed in this document came from various sources. Many of the information came from the Bancroft Library, but some have unknown authors. Every attempt has been made to identify the publication and author where possible.
For more information please contact the Disability Rights Center of Kansas
877-776-1541 (toll-free voice)
877-335-3725 (toll-free TDD)
