INTEREST OF AMICI

Amici are grass-roots organizations of Americans with developmental disabilities, their families, friends, and professionals in the disability field.⁽¹⁾ 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.

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 Cleburne v. Cleburne Living Center, 473 U.S. 432, 457 (1985), to strike down a discriminatory zoning ordinance.

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.

A. For Over a Century, the States Have Unconstitutionally Segregated and Isolated People with Disabilities.

For over one hundred years, every State acted purposefully and deliberately to segregate and isolate people with disabilities from community and family, in violation of the Fourteenth Amendment. This regime of state mandated, unconstitutional discrimination arose from irrational prejudice, fear and stereotype and has been described by five members of the U.S. Supreme Court as "grotesque." Cleburne, 473 U.S. at 454, 461. By force of law and official action, the States rendered the guarantee of equal citizenship a dead letter for people with disabilities. When set against this stark background, the Americans with Disabilities Act is a measured and appropriate remedy for these widespread, systematic constitutional transgressions.⁽²⁾

Beginning in the 1870s, state legislatures enacted numerous laws to remove "imbeciles," "idiots," and "the feeble-minded" from society. These efforts were not benign. State officials branded people with disabilities as "the underlying source of nearly all social problems," including "pauperism, degeneracy and crime," and constructed massive public institutions to segregate people with disabilities from society. U.S. Comm'n on Civil Rights, Accommodating the Spectrum of Abilities 19-20 (1983). Such discrimination was not limited to severe disabilities. "To isolate handicapped people, some professionals advocated institutionalization for even minor disabling conditions." Id. The breadth of such state-enforced exclusion is astonishing:

Whether young or old; whether borderline or profoundly retarded; whether physically handicapped or physically sound; whether deaf or blind; whether rural or urban; whether from the local town or from 500 miles away; whether well-behaved or ill-behaved[,][w]e took them all, by the thousands, 5,000 to 6,000 in some institutions.
Id. at 20-21 (quoting W. Wolfensberger, The Origins of Our Institutional Models, in President's Comm. on Mental Retardation, Changing Patterns in Residential Servs. for the Mentally Retarded 143 (1969)).

Every state enacted laws forcing the lifetime institutionalization of people with disabilities.⁽³⁾ In 1919, Alabama established "The Alabama Home" for "[a]ll persons of whatever age who are deficient or inferior, … idiots, imbeciles, feeble-minded or morons, and ... epileptics ..." 1919 Ala. Acts 738, No. 568, § 2, 7-8. A brochure touting the institution warned of the "feeble-minded":

They do not work. They are immoral. They commit crimes. They multiply like rabbits, and their children are feeble-minded. This institutional care and training of the feeble-minded (1) Purifies human stock, and (2) reduces taxes.
An Institution for the Feeble-Minded of Alabama (1918), in E. Larson, Sex, Race and Science: Eugenics in the Deep South 81 (1995).⁽⁴⁾

Such actions were not confined to Alabama, or even the South. The segregation, and outright elimination of people with disabilities was a national phenomenon.⁽⁵⁾ In 1887 California became the first state to provide for the segregation "for life" of "imbecile or feeble-minded" people. 1887 Cal. Stats. 69 ch. 57 (1887). Massachusetts State Superintendent Dr. Walter Fernald reported in 1908 that "there is an urgent need for the commitment and permanent detention of the higher grade cases of deficit [that are the] most undesirable and troublesome members of society." Report of the Trustees of the Mass. Sch. for the Feeble-Minded at Waltham for the Year Ending Nov. 30, 1908 22-23 (1909).⁽⁶⁾

Driving the states' efforts to ensure that people with disabilities lived "shunted aside, hidden, and ignored," Alexander v. Choate, 469 U.S. 287, 296 (1985), was the rise of the eugenics movement in the late 19th and early 20th centuries. Eugenicists believed that heredity "was of single importance in predicting human performance and it must play a key role in policies and programs for human betterment." S. Selden, Inheriting Shame: The Story of Racism and Eugenics in America xiv (1999).

There is no better description of the derivation of state policy from eugenics than Justice Thurgood Marshall's concurring opinion in Cleburne. Describing the "lengthy and tragic history that can only be called grotesque," Justice Marshall wrote:

Fueled by the rising tide of Social Darwinism, the "science" of eugenics, and the extreme xenophobia of those years, leading medical authorities and others began to portray the "feeble-minded" as "a menace to society and civilization ... responsible in a large degree for many, if not all, of our social problems. A regime of state-mandated segregation and degradation soon emerged that in its virulence and bigotry rivaled, and indeed paralleled, the worst excesses of Jim Crow. Massive custodial institutions were built to warehouse the retarded for life; the aim was to halt reproduction of the retarded and "nearly extinguish their race."
473 U.S. at 461-62 (footnotes omitted)(emphasis added)

Inexorably linked with institutionalization and degraded citizenship is the state-mandated segregation and exclusion of children with disabilities from public schools. Cf. Plyler v. Doe, 457 U.S. 202, 222-23 (1982). The "wide-spread practice of relegating handicapped children to ... institutions or warehousing them in special classes," School Comm. of Burlington v. Mass. Dept. of Educ., 471 U.S. 359, 373 (1985), was by force of state law.⁽⁷⁾ School superintendents urged that children with disabilities were "ineducable" and would never "fit in" to American society.⁽⁸⁾ States relegated these children into isolated "state schools" that were euphemisms for institutions. Many children would spend their entire lives in such facilities. Children with retardation were excluded categorically, in violation of the Fourteenth Amendment. See Pennsylvania Ass'n for Retarded Children v. Pennsylvania, 334 F. Supp.1257 (E.D. Pa. 1971), 343 F. Supp. 279 (E.D. Pa. 1972); Mills v. Board of Educ., 348 F. Supp. 866 (D.D.C. 1972). By 1975, Congress estimated that "one million of the handicapped children in the United States are excluded entirely from the public school system". Education for All Handicapped Children Act, 20 U.S.C. fmr. § 1400(b)(4).

States acted by law to stop the procreation of people with retardation and other disabilities, with an eye toward their eventual elimination. The Court embraced, endorsed and propelled such invidious attitudes in Buck v. Bell, 274 U.S. 200 (1927), when it upheld the involuntary sterilization of Carrie Buck, an institutionalized Virginia woman with retardation:

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 ... Three generations of imbeciles are enough.⁽⁹⁾
Id. State laws also prohibited people with disabilities from entering the state⁽¹⁰⁾ and criminalized marriage of "idiots", the "insane", and the "feeble-minded." Many such laws were in effect until recently, and many remain in effect today.⁽¹¹⁾

B. The Regime of State-Mandated Discrimination Continues to Deny Equal Citizenship to People with Disabilities.

Petitioners assert that because of changed attitudes, people with disabilities no longer face significant discrimination or barriers to their full involvement in society. The sheer weight of the historical record of discrimination alone betrays the falsity of this argument. While attitudes toward disability, like race and gender, have improved in recent years, the effects of a century of invidious discrimination, propelled by the power of every State, still figure significantly in state policy and actions toward people with disabilities. The state-mandated segregation that caused the near-total lack of access of people with disabilities in society cannot be dismissed as a relic of the past.⁽¹²⁾

The discriminatory infrastructure of separate institutions and schools the states created is still present in America and spawns a vicious circle of exclusion from other facets of life, including work, education, and transportation. As sponsoring Representative Tony Coehlo noted in a joint Congressional hearing on the Act:

When housing is inaccessible and unavailable, the disabled have to stay at home, under the care of their families, or live in nursing homes and other institutions, rather than establishing and controlling their own households next door to you and me. When regular transportation is inaccessible, and transit services for the disabled are segregated, you won't see them on your bus or commuter train. When prejudice dictates that the handicapped can be productively employed only in separate sheltered workshops, you won't see too many of them in your workplace. ... We must stop the cycle of separateness which hides people with disabilities, and creates prejudice, which creates more separateness.
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).

Justice Marshall wrote in Cleburne that "[p]rejudice, once let loose, is not easily cabined." 473 U.S. at 464. He continued, "[M]ost important, lengthy and continuing isolation of the retarded has perpetuated the ignorance, irrational fears, and stereotyping that long have plagued them." Id. Last term, the Court heard arguments on whether a state had the right to segregate two women with retardation even when the women could live and were living in the community. The Court held that the unnecessary segregation of people with disabilities "who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life." Olmstead v. L.C., 527 U.S. 581, 600 (1999)(emphasis added).⁽¹³⁾

Yet many of the institutions created to segregate the "feeble-minded" operate today.⁽¹⁴⁾ See Hunter v. Underwood, 471 U.S. 222, 232-33 (1985)(official policy, originally motivated by discrimination, continues to have discriminatory effect regardless of current official attitudes). As of 1998, states housed nearly 125,000 Americans with developmental disabilities in such facilities. D. Braddock et al., The State of the States in Developmental Disabilities: 2000 Study Summary (2000). These state institutions have been found to segregate unnecessarily thousands of people with disabilities, in violation of the Fourteenth Amendment. Thomas S. v. Flaherty, 699 F. Supp. 1178, 1191 (W.D.N.C. 1988), aff'd, 902 F.2d 250 (4th Cir.), cert. denied, 498 U.S. 951 (1990); Clark v. Cohen, 794 F.2d 79, 83 (3rd Cir.), cert. denied, 479 U.S. 962 (1986); Savidge v. Fincannon, 836 F.2d 898, 906 (5th Cir. 1988); cf. S.H. v. Edwards, 886 F.2d 292, 293 (11th Cir. 1989).⁽¹⁵⁾ These institutions have also been found to lack treatment or habilitation and are often squalid and dangerous, as Alabama's example starkly shows. See supra note 4.⁽¹⁶⁾

States continue to exclude students with disabilities from regular classes and schools. In 1996-97, over twenty years after the passage of the Education for All Handicapped Children Act, 89.5 percent of American children with retardation are excluded from regular classrooms for over 80 percent of the school day; in Alabama, the figure is 96.31 percent. For children classified as having solely orthopedic impairments -- not cognitive disabilities, but physical disabilities -- 58.46 percent remain excluded from regular class nationwide; in Alabama one in two were so excluded.⁽¹⁷⁾ U.S. Dep't of Educ., Twenty-First Annual Report to Congress on the Implementation of the Individuals with Disabilities Education Act (IDEA)(1999).⁽¹⁸⁾ State-sponsored discrimination additionally remains in employment⁽¹⁹⁾ and zoning.⁽²⁰⁾ The historical regime of state-mandated discrimination has not been dismantled and remains an ever-present barrier to equal citizenship for Americans with disabilities.⁽²¹⁾

C. Through the Act, Congress Sought to Remedy and Deter Equal Protection Violations and Enforce the Guarantee of Equal Citizenship.

When Congress enacted the Americans with Disabilities Act, it clearly and unambiguously sought to reverse the century of irrational, unconstitutional discrimination established and enforced by authority of every state. A bipartisan Congressional majority recognized the legacy of irrational prejudice and fear that has forced Americans with disabilities to live under discriminatory conditions,⁽²²⁾ and set forth to make the guarantees of the Equal Protection and Equal Citizenship Clauses a reality for people with disabilities.

The movement to enact a civil rights statute for people with disabilities began in 1982 with President Reagan's call to free people with disabilities from official discrimination and exclusion:

Our Nation's commitment to equal protection of the laws will have little meaning if we deny such protection to those who have not been blessed with the same physical or mental gifts we too often take for granted. I support Federal laws prohibiting discrimination against the handicapped, and remain determined that such laws be vigorously enforced.
National Council on the Handicapped, On the Threshold of Independence 19 (1988)(emphasis added). Responding to the President's declaration, the United States Civil Rights Commission in 1983 issued Accommodating the Spectrum of Individual Abilities. The report, which Congress adopted into the record of the Disabilities Act, documented the equal protection violations people with disabilities suffered, including the state-sponsored discrimination arising from the "eugenics" movement.⁽²³⁾ Following the Commission's report, the National Council on the Handicapped in 1986 issued Toward Independence, which found that "[b]illions of public dollars are currently spent on maintaining millions of disabled Americans in situations of unproductive dependency, which impose artificial limits on disabled individuals' potential to become contributing members of society." Toward Independence at G-1 (emphasis added). The report recommended a comprehensive civil rights statute for people with disabilities.

Toward Independence and its 1988 successor, On the Threshold of Independence, also became a part of the Congressional record and served as the forerunner to the Act itself. Lowell P. Weicker, Jr., Historical Background of the Americans with Disabilities Act, 64 Temple L. Rev. 387, 391 (1991).⁽²⁴⁾ Building on these three comprehensive reports, Congress developed over two years hearings and testimony documenting the history of equal protection violations against people with disabilities. Former sponsor Senator Weicker described the state-mandated discrimination that the Act was designed to remedy:

For years, this country has maintained a public policy of protectionism toward people with disabilities. We have created monoliths of isolated care in institutions and in segregated educational settings. It is that isolation and segregation that has become the basis of the discrimination faced by many disabled people today. Separate is not equal. It was not for black; it is not for disabled.
Hearings on S. 933 Before the Comm. on Labor and Human Resources and the Subcomm. on the Handicapped, 101st Cong., 1st Sess. 215 (1989)(emphasis added). James Ellis, the President of the American Association on Mental Retardation, testified similarly:

People with disabilities have been subjected to invidious discrimination throughout history. In the case of individuals who have mental retardation, the history of discrimination has been described by five members of the Supreme Court of the United States as "grotesque." City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 454, 461 (1985). This discrimination has been pervasive and has reached almost every aspect of the lives of people with disabilities and has denied them the most basic and fundamental rights of American citizenship.
Hearings on H.R. 2273 Before the Subcomm. on Civil and Constitutional Rights of the Judiciary Comm., 101st Cong., 1st Sess. 418 (1989).⁽²⁵⁾ Congress intended Title II as a remedial measure that would guarantee equal access to public services and that such services not act as the catalyst for unconstitutional segregation.

D. The Act is Proportional and Congruent to the 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 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 U.S. 273, 284 (1985)(emphasis added). "[D]iscrimination on the basis of mythology [is] precisely the type of injury Congress sought to prevent." Id. 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.⁽²⁶⁾

The Act is proportional because it imposes no duty except with regard to qualified persons with disability. Under Title I, undue burden and fundamental alternation modify the duty; under the public services provisions of Title II, only fundamental alteration obtains. H.R. Rep. 101-485(III), 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 Act's defenses, no rational justification for the conduct exists.

II. 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. Id. 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.'" Id. 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]rivate 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." Id. 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.⁽²⁷⁾ Amici submit that the semantic game of 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." Id. 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 Court is now being asked to find unenforceable.⁽²⁸⁾ 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 we conclude that this statute does not classify directly on the basis of mental health." Id. 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).⁽²⁹⁾ 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-Americans tested as "morons" used to justify racial segregation in schools).⁽³⁰⁾

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

1. 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 person other than amici and their counsel has made any monetary contribution for its preparation.

2. Unlike age-based classifications addressed in Kimel v. Florida Bd. of Regents,___ U.S.___, 120 S.Ct. 631, 646-47 (2000), which the Court has never found unconstitutional, the Court has repeatedly found that states have violated the constitutional rights of people with disabilities. Cleburne, supra; Youngberg v. Romeo, 457 U.S. 307 (1982); O'Connor v. Donaldson, 422 U.S. 563 (1975); cf. Meyer v. Nebraska, 262 U.S. 390 (1923).

3. A "Compendium of Purposeful State Action" is attached as Appendix A to this brief and was submitted by Amici in Cleburne.

4. In stating that "Alabama has a long history of providing support, rehabilitation and protection for individuals with disabilities," Pet. Br. at 7, Petitioners ignore the conditions imposed on people with disabilities in Alabama's state institutions. In Wyatt v. Stickney, 334 F. Supp. 1341 (M.D. Ala. 1971), the district court described such conditions at Alabama's Bryce Hospital:

[T]he dormitories are barn-like structures with no privacy for the patients. For most patients there is not even a space provided where he can think of as his own. The toilets in restrooms seldom have partitions between them. These are dehumanizing factors which degenerate the patients' self-esteem. Also contributing to the poor psychological environment are the shoddy wearing apparel furnished the patients, the non-therapeutic work assigned to patients (mostly compulsory, uncompensated housekeeping chores), and the degrading and humiliating admissions procedure which creates in the patient an impression of the hospital as a prison or a "crazy house" ... Only fifty cents per patient per day is spent for food ...

Id. at 1343. Alabama's institutions continue to impose unconstitutional conditions on people with disabilities. In 1995, a federal court found that Alabama's Eufaula Adolescent Center, an institution for children with disabilities, was so substandard, dangerous, and lacking in treatment that it "was essentially a penal institution." Wyatt v. Poundstone, 892 F. Supp. 1410, 1413 (M.D.Ala. 1995). Additionally, "most of the children did not belong in the Center's restrictive environment." Id; see also Wyatt v. Rogers, 985 F. Supp. 1356, 1404 (M.D. Ala. 1997)(finding "significant violations of individual liberties remain" in other state institutions).

5. A 1918 Alabama survey called people with disabilities "her most worthless and hopeless citizens," and Governor Charles Henderson declared to Alabama citizens that the institutions were "to protect you from the evils of vice, crime, disease and pauperism." Social Problems in Alabama 8, 10 (1918).

6. As late as the 1970s, with the full authority and cooperation of the states, America's most prestigious universities and scientists used institutionalized children and adults with disabilities as subjects in harmful experiments. In one infamous example, conducted between 1946 and the early 1950s, Massachusetts' Fernald State School fed radioactive isotopes to children with retardation as part of Massachusetts Institute of Technology studies on the effects of radiation in humans. The institution mixed the isotopes with the children's breakfast oatmeal. In studies in the early 1960s, radioactive iodine was fed to children at Fernald and the Wrentham State School, another Massachusetts institution. U.S. Dep't of Energy, Report of the Advisory Comm. on Human Radiation Experiments ch. 7 (1995). The federal researcher overseeing the experiments warned that they could be compared to Nazi experiments on concentration camp prisoners. 2 Recall 1949 Radiation Tests on Them, N.Y. Times at A14 (Jan. 14, 1994). In the early 1960s, the Arkansas Children's Colony injected children with retardation as young as 13 with iodine-131 as part of a thyroid study. Government Used 16,000 in Radiation Tests, AP (Aug. 18, 1995). Another case involved the hepatitis studies of Dr. Saul Krugman of New York University. From 1956 to 1972, the Willowbrook State School in New York allowed Dr. Krugman's staff to "systematically infect[] newly arrived children with strains of the [hepatitis B] virus." Advisory Comm. Report ch. 7.

These experiments had discriminatory effects on their human subjects with disabilities lasting well beyond the study period. In 1978 and 1979, the New York City public schools ordered the exclusion of Willowbrook children from public school due to their exposure to hepatitis. New York State Ass'n for Retarded Children v. Carey, 612 F.2d 644, 647 (2d Cir. 1979)(holding that no rational basis existed for excluding such children from public school). The Department of Energy concluded in 1995 that "there are still no federal regulations protecting institutionalized children from unfair treatment in research involving human subjects." Advisory Comm. Report ch. 7.

7. See e.g. 1976 Cal. Stat. ch. 1010, 3561 (excluding children whose "physical or mental disability" is "inimical to the welfare of other pupils"); 1963 Colo. Sess. Laws ch. 243, 864 (same); 1888 Conn. Pub. Acts tit. 13 § 489 (committing "indigent imbecile children" to "School for Imbeciles at Lakeville"); Nev. Rev. Laws § 1702 (1912)(authorizing education of "deaf and dumb and the blind" only in California and Utah institutions); 1928 N.Y. Laws § 23-624 ( "feebleminded" who are "unable to benefit from instruction, shall not be permitted to attend"); 1919 N.Y. Laws ch. 382 (establishing Rome asylum for "unteachable idiots"); 1903 N.D. Laws § 84-759 ("any ... feeble minded child" must attend "institution at Grafton"); 24 Pa. Stat. Ann. § 13-375 (1971)(excluding "children who are found to be uneducable and untrainable").

8. In State ex rel. Beattie v. Board of Educ., 169 Wis. 231 (1919), the Wisconsin Supreme Court upheld the exclusion of a child with cerebral palsy from public school due to his "uncontrollable flow of saliva," his "physical condition and ailment [that] produces a depressing and nauseating effect upon the teachers and school children". Id. In Watson v. City of Cambridge, 157 Mass. 561 (1893), the Massachusetts Supreme Judicial Court upheld a child's exclusion because he made "uncouth noises" and was "unable to take the ordinary decent physical care of himself." Id.

9. See also 1919 Ala. Acts 739 § 13 (authorizing sterilization of Alabama Home "inmates"); S. Gould, Carrie Buck's Daughter, in Flamingo's Smile: Reflections in Natural History (1985). A 1934 Kentucky Law Review article proudly states that "[t]he United States was the pioneer in the movement for sterilization, and today is considered the foremost champion and advocate of that cause in the world." Note, A Sterilization Statute for Kentucky, 23 Ky. L.J. 168, 169 (1934)). Nazi sterilization laws were "taken almost in toto from ... [the] Model [State] Eugenical Sterilization Law." A. Chase, The Legacy of Malthus 133-35 (1980).

10. See e.g. 44 Ala. Code §§ 19-20 (1940); Fla. Comp. Gen. Laws § 8003 (1927); Ga. Code Ann. § 23-2005 (1935); Kan. Stats. Ann. § 39-339 (Corrick 1935)("person likely to become [public] charge"); 33 Me. Rev. Stats. § 43; Minn. Stats. §§ 3163, 3173 (Mason's 1927)("insane", "idiotic"); Miss. Code Ann. § 5715 (1930); Nev. Comp. Laws § 5147 (Hillyer 1927); S.D. Code § 50.0106 (1939)("person likely to become public charge"); 15 Vt. Pub. Laws ch. 160, § 3949 (1933)(same); Wyo. Stats. Ann. §§ 29-1206a, 29-1205b (Courtright 1931)("persons likely to become [a] charge for disability").

11. For example, it is currently a crime in Mississippi to issue a marriage license to anyone who is "insane or an imbecile." Miss. Code Ann. § 93-1-5(f)(2000). See e.g. Cal. Civ. Code § 4201 (1994); Conn. Gen. Stat. § 46-2 (1999); D.C. Code Ann. § 30-103(1)(2000); Haw. Rev. Stat. § 580-21 (1976); 89 Ill. Comp. Stat. § 6 (1976); Ind. Code § 31-1-1-2 (1973); Ia. Code Ann. § 595.3 (1976); Kan. Stat. Ann. § 23-120 (1977); Ky. Rev. Stat. Ann. § 402.020(1)(1971); Me. Rev. Stat. Ann. tit. 19, § 32 (1964); Mich. Stat. Ann. § 25.6 (1999); Mo. Rev. Stat. § 451.020 (1983); Neb. Rev. Stat. § 42-103 (1974); N.J. Stat. Ann. § 37:1-9 (1969); N.C. Gen. Stat. § 51-12 (1985)(sterilization required for marriage); N.D. Cent. Code § 14-03-17 (1971); N.Y. Dom. Rel. Law § 140(3)(2000); Ohio Rev. Code Ann. § 3101.06 (1975); 48 Pa. Stat. Ann. § 1-5(d)(1997); R.I. Gen. Laws § 15-1-5 (1970); Tenn. Code Ann. § 36-3-109 (1999); 15 Vt. Stat. Ann. § 512 (2000); V.I. Code Ann. tit. 16, § 2(1)(2000); Va. Code Ann. § 20-46(4)(1985); Wash. Rev. Code Ann. § 26.04.030 (1976); W. Va. Code Ann. § 48-2-2(a) (2000); Wyo. Stat. Ann. § 20-32 (1959). See also Notes: The Right of the Mentally Disabled to Marry: A Statutory Evaluation, 15 J. Fam. L. 463 (1976-77).

12. Cf. Allen v. Wright, 468 U.S. 737, 755 (1984)("There can be no doubt that [stigmatizing injury] is one of the most serious consequences of discriminatory government action.")

13. The statutes the seven state amici cite for Petitioners as proof that state-sponsored discrimination never existed or has been eradicated do not address, let alone rectify, the legacy of unnecessary segregation and institutionalization that Title II seeks to remedy. Indeed, Alabama continues to "perpetuate unwarranted assumptions" by having the second-highest rate of institutionalization in the nation. D. Braddock et al., The State of the States in Developmental Disabilities 93 (1998).

14. The continuing vitality of negative stereotypes toward disability, expressed inter alia in the continued operation of segregated institutions, reflects that the "eugenics message of selective breeding and racial betterment [became] an integral part of high school and college biology texts in the 1920s, 1930s, and 1940s" and "were ideas taught to young people in our schools and to the parents at state fairs and in popular magazines." S. Selden, Inheriting Shame: The Story of Eugenics and Racism in Ameica xi (1999). "[T]he dead hand of the past continue[s] to guide the practices of the present as well as of the future." Id. at vii.

15. See Meyer v. Nebraska, 262 U.S. 390, 401-02 (1923)(the historical practice of "'putting away ... the offspring of the inferior, or of the better when they chance to be deformed'" would "do ... violence to both the letter and spirit of the Constitution.")(quoting Plato's Ideal Commonwealth).

16. Alabama is not the only state that continues to impose unconstitutional conditions on institutionalized people with disabilities. See Jackson v. Fort Stanton Hosp. & Training Sch., 757 F. Supp. 1243 (D.N.M. 1990), rev'd in part on other grounds, 964 F.2d 980 (10th Cir. 1992); New York State Ass'n for Retarded Children v. Carey, 551 F. Supp. 1165, 1170-78 (E.D.N.Y. 1982)(describing filthy, unsanitary and unhealthy conditions, inadequate treatment, and understaffing at multiple New York state institutions); Lelsz v. Kavanagh, 673 F. Supp. 828, 860-61 (N.D. Tex. 1987)(inadequate medical care, lack of safety, misuse of restraints, and lack of habilitation services all violated constitutional rights of residents of Texas state institution); see also Nancy Vogel, Retarded, Autistic Home Failed to Prevent Death, L.A. Times (Jul. 17, 2000)(reporting egregious conditions at California's Sonoma institution, the nation's first and largest).

17. See also J. Landau, Out of the Mainstream: Education of Disabled Youth in Massachusetts (1987)(from 1974 to 1985, segregation of students with disabilities increased 243 percent).

18. Such segregation is emphatically not because children with retardation cannot be included in regular classes. In 1996-97, Vermont included 72.71 percent of its students with retardation and 87.1 percent of students with orthopedic disabilities in regular classes. Id.

19. A 1995 study of New York State employees in four agencies, including the Office of Mental Retardation and Developmental Disabilities, found that people with disabilities were systemically excluded from state employment. S. Harlan et al., Disability in Work Organizations: Barriers to Employment Opportunity, Univ. at Albany, State Univ. of New York (1995). Significantly, the study found little difference between the public and private sector. "The State is first and foremost a large employer that has much in common with other large businesses in its bureaucratic organization of the work force." Id. at 156.

20. State laws and official conduct that the Cleburne Court found unconstitutional persist today and require judicial remedies. Bangerter v. Orem City Corp., 46 F.3d 1491, 1500 (10th Cir. 1995)(reviewing Utah state law which "facially single[s] out the handicapped and appl[ies] different rules to them"); Marbrunak v. City of Stow, 974 F.3d 43, 47-8 (6th Cir. 1992)(striking differential safety requirements for home for retarded); Arc of New Jersey v. New Jersey, 950 F. Supp. 637, 645 (D.N.J. 1996)(striking down state law setting "permanent quotas on the number of developmentally disabled or mentally ill individuals who may live" in a community).

21. The irrationality of these state actions is exemplified by the extensive empirical literature showing the competency of people with disabilities. See e.g. J. Conroy et al., The Pennhurst Longitudinal Study (1985)(success of formerly institutionalized people with disabilities in community); Baller et al., Mid-Life Attainment of the Mentally Retarded: A Longitudinal Study, 75 Genetic Psychol. Monographs 235, 255-65, 310 (1967)(marriage, voting); 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 43-7 (1968)(driving).

22. See S. Rep. No. 116, 101st Cong., 1st Sess. 8 (1989)("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."); see e.g. 136 Cong. Rec. H2449 (May 17, 1990)(statement of Rep. AuCoin)(persons with disabilities subjected to "myths, stereotypes and irrational fears"); 135 Cong. Rec. S4986 (May 9, 1989)(statement of Sen. Harkin)(people with disabilities subjected to "false presumptions, generalizations, misperceptions, patronizing attitudes, ignorance, irrational fears, and pernicious mythologies"); Hearings on H.R.. 2273 and S. 933 Before the Subcomm. on Transportation and Hazardous Materials of the Comm. on Energy and Commerce, 101st Cong., 1st Sess. 1 (1989)(statement of Rep. Luken)("Discrimination, whether produced by overt actions or thoughtless attitudes, produces segregation, exclusion, impoverishment, and denial of equal and meaningful opportunities.").

23. The Civil Rights Commission found:

The harshest side of institutionalization is the systematic placement of handicapped people in substandard residential facilities, where incidents of abuse by staff and other residents, dangerous physical conditions, gross understaffing, overuse of medication to control residents, medical experimentation, inadequate and unsanitary food, sexual abuses, use of solitary confinement and physical restraints, and other serious deficiencies and questionable practices have been reported. But even the better institutions suffer the ill effects of segregation:

Institutions serve two central purposes. First, they segregate disabled people from the community; and second, they provide convenience for administrators and instructional personnel because children with a given disability are concentrated together and readily accessible. As instruments of segregation, institutions are undeniably effective . ... As settings for individual growth and development, however, institutions may be the worst possible arrangement.
Accommodating the Spectrum of Abilities 33 (quoting F. Bowe, Handicapping America: Barriers to Disabled People 143-44 (1978)).

24. President Reagan responded, "I agree with the goals in Toward Independence -- equal opportunity and full social participation for all Americans". He added, "The road toward full independence will not be easy." Letter from President Ronald Reagan to the Hon. Sandra S. Perrino, Chairperson, National Council on the Handicapped (Jan. 29, 1986), in On the Threshold of Independence 5 (emphasis added).

25. See e.g. Oversight Hearing on H.R. 4498, Americans with Disabilities Act of 1988, Hearings Before the Subcomm. on Select Educ., House Educ. and Labor Comm., 100th Cong., 2nd Sess. (1988) at 10 (testimony of Justin Dart)("America cannot afford either the moral or economic costs of maintaining ever increasing millions of its potentially productive citizens in unjust and unwanted dependency."), 31 (testimony of Eric Griffen)("[F]orced segregation and dependency of millions of individuals with disabilities in this country constitutes a violation of their constitutional and basic human rights"), 62 (statement of Bill Knight)("[A] segregated society is created due to institutionalization."); Hearing on H.R. 2273 Before the House Subcomm. on Select Educ. of the Educ. and Labor Comm., 101st Cong., 1st Sess. (1989) at 10 (testimony of Joseph Reum)("We have 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.").

26. The Court has recognized that "[l]egislation which deters or 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)).

27. In finding that Justice White refused to name a higher level of scrutiny but applied one in practice, Justice Marshall warned that the "searching inquiry" of the Cleburne majority would be ignored by future litigants and courts. "[T]he 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.

28. Also ironic is Justice White's finding that "rational basis" review would facilitate remedial legislation for people with disabilities. 473 U.S. at 444 ("[M]erely 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.

29. The call to segregate disabled Americans also parallels the internment of Japanese-Americans during World War II. Cf. Korematsu v. United States, 323 U.S. 214 (1944).

30. The parallel between racial segregation and exclusion of 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 warning:

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.).