The Executive Director, John P. Dziennik has governor's appointments to
the Oregon State Rehabilitation Council and to the State Independent Living
Council and was elected vice chair of that organization in late summer 2002. At
the national level, he is treasurer of Disability Funders Network, which is
committed to disability advocacy and rights. It has been the personal experience
of the Foundation's staff, board, and grantees that use of the Americans with
Disabilities Act (" ADA") fosters physical and financial independence for those
previously excluded or marginalized due to discrimination on the basis of their
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disability. The Foundation supports the position of Mr. Lane, Ms. Jones, and the
United States Solicitor General in this matter.
SUMMARY OF ARGUMENT
In Board of Trustees of the Univ. of Ala. v. Garrett, 531 U. S. 356 (2001)
(" Garrett"), this Court noted that the record before it at that time failed to show a
history of invidious discrimination against the disabled. The purpose of the
Blanche Fisher Foundation in submitting this brief is to assist in fleshing out the
record before this Court as to the existence of state support for discrimination
against the disabled in the years prior to passing of the ADA. Same shows that
the record absent in Garret, supra, does in fact exist, and in abundance.
There is a long and sordid history of discrimination against the disabled in
this country. Action by governmental entities to discriminate against the
disabled is apparent from decades of case law and continues through both subtle
and vulgarly open means. To find for the state of Tennessee in this matter would
necessitate a finding that Congress desired to permit this conduct to continue
unabated. But the findings of Congress preceding the adoption of the ADA as
reflected in its record on the ADA and prior statutes designed to remedy
1 No counsel for any party authored this brief in whole or in part and no person
or entity other than amici, their members, and their counsel have made monetary
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discrimination against the disabled show a far, far different intent. It is the
purpose of this brief to highlight the record of discrimination existing at the time
Congress passed the ADA, which it recognized was one of the most significant
pieces of civil rights legislation in the history of this country.
ARGUMENT
1. BIPARTISAN RECOGNITION OF HISTORICAL DISCRIMINATION
AND THE EXTRAORDINARY NATURE OF THE ADA
In passing the ADA, Congress specifically found that "historically, society
has tended to isolate and segregate individuals with disabilities . . . ,"
"individuals with disabilities continually encounter various forms of
discrimination, including outright intentional exclusion . . ." (emphasis added),
"[ I] ndividuals with disabilities are a discrete and insular minority who have been
faced with restrictions and limitations, subjected to a history of purposeful
unequal treatment . . ." 42 U. S. C. § 12101. Such findings are amply supported by
instances cited below, showing of exclusion of the disabled from the courtroom,
or restrictions on their appearance therein. Such exclusions are sadly common as
dirt in the history of this country.
contributions to the preparation or submission of this brief.
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2. EXCLUSION OF THE DISABLED FROM THE COURTROOM
The idea that even viewing a disabled person might be too much for some
is the usual ground for exclusion of disabled persons from their own trials, and
such exclusion occurs in state and federal courts. California has ignored the
ADA and still permits its courts to bar the disabled from their own trials where
their appearance might be unpleasant to a jury. In Province v. Center for Women's
Health and Family Birth, 20 Cal. App. 4th 1673; 25 Cal. Rptr. 2d 667 (Cal. 1993)
rev. denied (1994 Cal. LEXIS 1190), the Court held that a "physically disfigured"
plaintiff was properly barred from entering the courtroom for her own trial
because disability might upset jury members. Accord Whitfield v. Roth 10 Cal. 3d
874, 896; 112 Cal. Rptr. 540 (Cal. 1974), footnote 27 -upholding bar of paralyzed
plaintiff from jury's presence for more than ten minutes merely because plaintiff
was in a wheelchair.
In Carlisle v. County of Nassau, 64 A. D. 2d 15; 505 N. E. 2d 64 (N. Y. 1978) a
trial court barred a paralyzed plaintiff on the same basis, although the Court of
Appeal reversed. In Dickson v. Bober, 269 Minn. 334, 130 N. W. 2d 526 (Minn.
1964), a Minnesota Court of Appeal upheld complete exclusion of the disabled
plaintiff from the court during trial. In Gage v. Bozarth, 505 N. E. 2d 64 (Ind. 1987)
exclusion of the disabled plaintiff during the liability phase of trial was upheld
because the sight of disability might influence the jury. This case was overruled
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in Jordan v. Deery, 778 N. E. 2d 1264 (Ind. 2002), which recognized that exclusion of
the disabled from the courtroom was questionable after the ADA's passage, but
ultimately relying on Indiana's constitutional right to be present at trial. Oregon,
a state which regards emotional trauma as a grounds for sterilization (see below),
continued to allow its courts to exclude the disabled from the courtroom at
certain stages of trial, even after the ADA passed. Bremner v. Charles, 312 Ore.
274; 821 P. 2d 1080 (Ore. 1991).
Federal courts also practice discrimination against allowing the disabled
to be in court prior to the passage of the ADA. See In re Richardson-Merrell, Inc.
Bendectin Products, 624 F. Supp. 1212 (S. D. Ohio 1985) – sight of the disabled
might so upset a jury the members would lose ability for rational thought.
Accord Helminski v. Ayerst Laboratories, 766 F. 2d 208 (6th Cir. 1985), relied upon
by the overruled Gage v. Bozarth court, supra.
Such discrimination was cited by members of Congress on the record
when adopting the ADA: "[ F] amilies with a member who is mentally retarded
have been refused service in a restaurant because the owner fears that other
customers might be offended or uncomfortable eating near that family. Yet, such
a practice is not only common, it is perfectly legal." 136 Cong Rec S9684, S9692
(daily ed. July 13, 1990) (statement by Mr. Chafee).
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The idea that the disabled were distasteful or frightful to view, and should
hide themselves away to make life more pleasant for "normal" people was one of
the ideas that Congress wanted to smash by passing the ADA. Exclusion of the
disabled from jobs and even courtrooms was seen as a cause of discrimination in
and of itself. A society that was used to seeing the disabled going about their
business, at work, at courts, or at play, was far more likely to find their inclusion
in trials and on juries as part of the normal course of life.
Exclusion of Mr. Lane and Ms. Jones from the second floor of the
Tennessee courthouse, unless subjected to the humiliation of being carried like a
sack of potatoes, continues this dreadful legacy. Unless the disabled can go
about their business as usual, and avoid being arrested merely because they
demand a modicum of dignity, Congress' intent that the ADA foster the
realization that the disabled were perfectly "normal" will be thwarted. It is the
attitude that the disabled are somehow fundamentally "different" and therefore
unworthy of inclusion, or to be forced into outright exclusion, that characterizes
much case law in the past century. Such judicial opinion reflects the attitudes
that Congress was insistent be corrected, as well as the strength with which
prejudice against the disabled has held sway over our national conscience, even
in the halls of justice.
3. JUDICIALLY-APPROVED GOVERNMENTAL
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DISCRIMINATION AGAINST THE DISABLED.
The disabled in the United States have been subjected to horrifying
instances of the most vile discrimination by private and public entities.
Discrimination against the disabled has also been approved even by the judiciary
in days past. In Regents v. Bakke, 438 U. S. 265, 327 (1978), four of the Court's
justices cited Buck and Plessy v. Ferguson, 163 U. S. 537 (1896), as showing the
difficulty the judicial system has had in enforcing the Fourteenth Amendment
where it collides with socially acceptable forms of discrimination against those
perceived to be "others" "unlike us."
The Court is no doubt aware of the unfortunate history of the eugenics
movement in the United States. Persons with disabilities have been so reviled
that their right to exist or to have children, and consequently the right of those
children to exist themselves, have not only been put into question by public
debate, but actual sterilization forced upon them by government itself. See Buck
v. Bell, 274 U. S. 200, 207 (1927), upholding state law coercing sterilization of
epileptics and other "undesirable" Americans with disabilities, as a constitutional
means of improving the population of our country. This is part and parcel of the
"blatant and sometimes barbaric discrimination against individuals with
disabilities" found by Congress to exist and persist at the time the ADA was
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adopted. 136 Cong Rec S9684, S9690 (daily ed. July 13, 1990) (statement by Mr.
Metzenbaum). Strong words, but cruelly true words.
As of 1972, thirty-five states in the U. S. had statutes promoting
sterilization of those with disabilities. Pennsylvania Ass'n for Retarded Children v.
Pennsylvania, 343 F. Supp. 279, 295 (E. D. Penn. 1972). Eighteen years before the
ADA was adopted, an Oregon Court of Appeals found there existed a
permissible rational government interest in forced sterilization to prevent the
birth of perfectly normal children just because they might require state assistance
due to parental difficulties arising from disability. Cook v. State, 9 Ore. App. 224
(Or. 1972). The person to be sterilized there was a seventeen year old girl who
suffered emotional problems due to a history of physical and sexual abuse, and
was to be sterilized solely because of that abuse and its effect on her.
See also In re Sterilization of Moore, 289 N. C. 95, 103 (1976), finding that the
state's interest in limiting money for foster care and the like is sufficient
justification to make a child a 'wrongful life' merely due potential state savings
by avoiding its birth: "The people of North Carolina also have a right to prevent
the procreation of children who will become a burden on the State." Disability
discrimination as a mere cost savings measure was alive and well when the ADA
was passed.
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Unfortunately, the belief that we can and should "breed" a "better"
American and that the disabled are better off dead or never born in the first place
is supported by surprising segments of our population. The use of government
power, personnel, and public funds to foster this view is a far from uncommon
circumstance today. For example, there is an organization in California affiliated
with British eugenicist Christopher Brand 2 that advocates, and will pay a
"reward" to, any current or recovered drug or alcohol addict who agrees to be
sterilized, as "" We don't allow dogs to breed. We spay them. We neuter them."
Celia M. Vega, "Sterilization Offer to Addicts Reopens Ethics Issue," New York
Times, January 3, 2003. This group (going by the acronym "CRACK") happily
refers to assistance it receives from state government entities to further its
eugenics program, such as parole officers, government-funded treatment
programs, social workers, foster parent agencies, and hospitals. (Id.)
If successful, CRACK would have prevented two of our last four
Presidents from being born, and regards our current President and other highly
prominent Americans as "manifestly unfit to continue their kind" (Buck, supra,
274 U. S. at 207) due solely to the fact of their disability. Eugenicists fail to
recognize the truth in the state motto of ADA-author and Kansan Robert Dole,
"Ad Astra Per Aspera," Latin for "To the stars through Adversity." As a disabled
2 Mr. Brand is the author of The G Factor, a book that espouses the eugenics
cause and describes persons whose ancestry is more recently from the African
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veteran, Senator Dole is a prominent personal example of how disability can
actually foster excellence, rather than hinder it.
Case law recognizes that those recovering from alcohol and drug
problems are persons with disabilities under the ADA. But there is at least one
law review article referring favorably to Chief Justice Holmes' words in Buck to
support eugenics for the disabled. The article urges judicial enforcement of
contracts for sterilization of the disabled, apparently through judicial orders of
specific performance, as a cheaper method of dealing with disabilities than
providing assistance to live a productive life. See Jennifer Mott Johnson,
Reproductive Ability for Sale, Do I Hear $200?" 43 Ariz. L. Rev. 205 (Spring,
2001). One hopes that public policy against such things as organ selling, baby
selling, or contracts in restraint of marriage also displays a public policy against
contracts for sterilization and will prevent Ms. Johnson's vision of eugenic
contract enforcement from becoming law.
But the fact remains that state employees continue to cooperate in
coercing the disabled to undergo sterilization merely because future children
might experience a possibility of disability or merely of disadvantageous
parenting. See Vaughn v. Ruoff, 253 F. 3d 1124 (8th Cir. 2001). That case denied
immunity to the state employee involved: "The fundamental right involved
continent as possessing the lowest IQs.
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must be safeguarded to assure that sterilization is not a subterfuge for
convenience and relief from the responsibility of supervision." (Id. at 1131).
In 1985, this Court held state action discriminating against the
developmentally disabled in zoning laws was permissible so long as there was a
rational government interest involved. The Court found that the disabled were
not entitled to "quasi-suspect classification" status requiring more rigorous
review of state action. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U. S. 432
(1985). The record in the trial court showed a long and sorry history of
discrimination: "Mental retardates have been segregated in remote, stigmatizing
institutions . . . and when permitted in society, they have often been subjected to
ridicule." Cleburne Living Ctr. v. Cleburne, 726 F. 2d 191 (1984). Only five years
later, Congress decided such discrimination was in fact so odious that it passed
the ADA.
Those disabled who were successfully put away from public view were
found to be subjected to unconstitutional discrimination in Halderman v.
Pennhurst State School & Hospital, 612 F. 2d 84 (3rd Cir. 1979). The Court relied on
governmental investigative reports showing that the functioning of the
developmentally disabled could be greatly improved in their condition by
treating them as normally as possible given their individual levels of disability,
citing B. Nirje, The Normalization Principle, Changing Patterns in Residential
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Services for the Mentally Retarded, President's Committee on Mental
Retardation, 231 (Rev. ed. 1976).
Rather than treating the disabled with the same level of regard as for
"normal" children, the state of Pennsylvania ensured that "the environment at
Pennhurst is not merely inconsistent with normalization principles, but is
actually hazardous to residents. Because of the inadequacies in programming
attributable to staff shortages, residents were found to have lost skills already
learned. Organized programs of appropriate education and training were found
to be inadequate or unavailable." (Id. at 93.) Again, the short term cost figures
were used as justification by the state, although the long-term cost of complete
institutionalization (to segregate the disabled from society's view) is far greater.
In reaching its decision that such treatment was unconstitutional, the
Court in Halderman was guided by Congress' findings of state discrimination and
ill treatment of the disabled when it enacted the Developmentally Disabled
Assistance and Bill of Rights Act in 1975, a full fifteen years before the ADA. 42
U. S. C. §§ 6001-6081. The legislative record for that Act notes that "Congress
should reaffirm its belief in equal rights for all citizens including the
developmentally disabled. Congress should provide the leadership to change
the tragic warehousing of human beings that has been the product of insensitive
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Federal support of facilities providing inhumane care and treatment of the
mentally retarded." (Halderman, supra, 612 F. 2d at 96.)
Further, "Over the past few years, the horrifying conditions which exist in
most of the public residential institutions for the mentally retarded and other
developmentally disabled persons have provided shocking testimony to the
inhuman way we care for such persons." (Id. 105.) The finding that Congress
intended to create substantive rights of action in favor of the disabled by the Act
was reversed by this Court in Pennhurst State Sch. & Hosp. v. Halderman, 451 U. S.
1 (1981). With the ADA, however, Congress specifically provided for such
remedies.
While disability is not a "suspect class," courts are not reluctant to find, in
the face of reality, the immutable fact of discrimination against the disabled:
"Although this court does not grant "suspect class" status to the plaintiffs, it is
acutely aware, from the evidence received at trial, of the extent to which the
mentally retarded still suffer from some discrimination that is not related to
actual disabilities." Association for Retarded Citizens v. Olson, 561 F. Supp. 473, 490
(D. N. D. 1982). Congress also so found, for all disabled persons, as shown below.
4. THE CONGRESSIONAL RECORD SHOWS KNOWLEDGE OF THE LEGACY
OF FEAR AND PREJUDICE-AND A RESOLVE TO STOP IT
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"Unfortunately, the findings that Congress made during the
extensive hearings held on this bill have not changed for
generations. People with disabilities have encountered various
forms of discrimination --from outright exclusion to overprotective
rules to attitudinal, architectural, transportation, and
communications barriers. People with disabilities have
experienced a history of unequal treatment and have formed
insular groups, segregated from the rest of society."
136 Cong Rec E 1913, E1913 (ext. of remarks, June 13, 1990)
(statement by Rep. Hoyer.) 3
A national history of discrimination against the developmentally disabled,
and against those with cancer, based on irrational fears that such might be
"contagious" resulted in segregation and shunning of afflicted individuals. 136
Cong. Rec. S 7422, S7441 -S7442 (daily ed. June 6, 1990) (Letter from Affiliated
Leadership League of and for the Blind and nearly 80 other organizations).
3 Relying on Louis Harris & Associates, "The ICD Survey of Disabled
Americans: Bringing Disabled Americans into the Mainstream (1986): "Implications for Federal Policy for the 1986 Harris Survey of Americans with
Disabilities" (1988).
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Shortly after the ADA was adopted, then President Bush wrote to
Congress advising of his position on that act: "Discrimination, whether on the
basis of race, national origin, sex, religion, or disability, is worse than wrong. It is
a fundamental evil that tears at the fabric of our society, and one that all
Americans should and must oppose. That requires rigorous enforcement of
existing antidiscrimination laws. It also requires vigorously promoting new
measures such as this year's Americans with Disabilities Act, which for the first
time adequately protects person with disabilities against invidious
discrimination." 136 Cong. Rec. S16562, at S16562 (daily ed. Oct. 24, 1990) (Letter
from Pres. George W. Bush).
The President placed the ADA among past civil rights legislation which
abrogated 11th Amendment immunity, and stressed that such legislation had
always been the product of admirable and broad bi-partisan efforts in Congress:
"The Civil Rights Restoration Act, the Fair Housing Amendments Act, the
Americans with Disabilities Act --none would be law today if it were not for the
leadership of Republican as well as Democratic Senators." (Id. at S16563.)
The extraordinary rate of unemployment and discrimination against the
disabled was reviewed through outside studies when Congress decided on
means to implement the ADA. 136 Cong. Rec. S18123, S18127 (daily ed. Oct. 25,
1990) (statement of Sen. Simon). The existence of entrenched discriminatory
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attitudes, by private parties and by government entities, was recognized by
Congress as the primary reason the ADA was needed:
"For generations, society has viewed people with disabilities as
citizens in need of charity. Through ignorance, we tolerated
discrimination and succumbed to fear and prejudice. But our
paternalistic approach did no more to improve the lives of people
with disabilities than labor laws restricting women in the
workplace did to protect women. Today we are shedding these
condescending and suffocating attitudes --and widening the door
of opportunity for people with disabilities." . . . "{ E] qual justice
under the law" is not a privilege --but a fundamental birthright in
America."
136 Cong. Rec. S9680 at S9680 (daily ed. July 13, 1990) (ADA
Conference Report, statement of Sen. Kennedy).
House members were swayed by the pervasiveness of discrimination
against the disabled to vote in favor of the ADA. Representative Owens spoke
extensively and eloquently of studies showing discrimination against those with
HIV infections and sickle cell anemia, as well as the growing use of genetic
testing, as a basis for his vote in favor of the ADA: "This Legislation will enable
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us to begin to make significant inroads in the legacy of disability discrimination
in our country." 136 Cong Rec H 4614, H4622-H4623 (daily ed. July 12, 1990)
(statement by Rep. Owens.) One such study, "Epidemic of Fear," published in
1990 by the ACLU AIDS Project, was also cited by Rep. Edwards as showing the
need for a law barring discrimination against those disabled or perceived to be
medically or otherwise "unfit" when they were not. (Id. at H4624.) 4
Senator Kennedy noted the genesis of the ADA in President Reagan's
National Council on Disability and its 1988 report, "Towards Independence."
That report, in turn, specifically discussed the depth of discrimination faced by
the disabled, noting that that international studies showed the disabled were
faced with both the "physical barriers" to entry into public and business facilities
as well as "social barriers," disregard for their abilities or needs, as faced by Mr.
Lane and Ms. Jones in this matter. (Id. at p. 8.) For this reason, the Council urged
that a broad anti-discrimination law be passed, which "should also include an
4 Astoundingly, a House member speaking just prior insisted that AIDS is
spread by food and voiced outrage that "homosexuals" or others with HIV infections were not omitted from the definition of "disabled." The Secretary of
Health and Human Services noted there was no such risk. See 136 Cong Rec S 9519, at S9519 -S9520. (Daily Op. July 11, 1990) (Letter from Louis Sullivan.) The
Congressman's comments are proof that prejudice continues to overcome science where disability is concerned. Other members of Congress pointed out such
problems as the very reason the ADA was needed: "it does much to deal with the mental concepts that have captured the minds of too many people in our
society. As a result of ignorance, such mindsets have brought about the kind of disability related discrimination that has limited people with disabilities in so
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obligation to remove architectural, transportation, and communication barriers . .
." for the disabled. (Id. at p. 19.) The ADA was the result.
"Based on testimony and comments from hundreds of people with
disabilities, parents, and others, the most pervasive and recurrent problem faced
by disabled persons appeared to be unfair and unnecessary discrimination." 135
Cong. Rec. S10765, S10792 (daily op. Sept. 7, 1989) (Statement by Sen. Biden.)
Further, "The severity and pervasiveness of discrimination against people with
disabilities is well-documented." 134 Cong. Rec. H2894, at H2894 (daily op. May
3, 1988) (statement by Rep. Owens.)
"Bringing Disabled Americans into the Mainstream," a nationwide poll
conducted in 1986 by Louis Harris and Associates, underscores the conclusion
that discrimination is a problem that people with disabilities frequently
experience. Persons polled identified a variety of types of discrimination they
had experienced, including workplace discrimination, denials of life and health
insurance, denials of educational opportunities, lack of access to public buildings
and public bathrooms, the absence of accessible transportation, and various
forms of social rejection (others shying away or feeling sorry for them). This
many ways and has prevented them from realizing their true potential. 136 Cong Rec S 9527, S9530 (Daily Op. July 11, 1990.) (Statement by Mr. Kennedy.)
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report was cited by Congress in deciding to adopt the ADA. 135 Cong. Rec.
S4984, S4985 (daily op. May 9, 1989) (statement by Sen. Harkin).
Senator Hatch pointed to the history of discrimination as justification for
the ADA: "For too long the valuable resources available to this Nation from
individuals with disabilities have been wasted needlessly. Why? Because of
senseless discrimination, intended or not, which subjected persons with
disabilities to isolation and robbed America of the minds, the spirit, and the
dedication we need to remain a competitive force in worldwide economy." 136
Cong. Rec. S9684, S9685 (daily ed. July 13, 1990) (statement by Sen. Hatch).
The historical and Congressional record demonstrates a lengthy history of
discrimination, and a Congress unified across party lines to bring to a complete
halt, where ever it might occur, including where it was perpetrated by a state
governmental entity.
5. CONCLUSION
The ADA is nothing more than Congress' continued and fully factually
supported findings over the course of decades that the disabled are the subject of
egregious discrimination by state entities. Its decision to afford private
individuals the substantive rights was made in the face of continuing
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discrimination despite its past findings and acts addressing specific groups of
disabled people.
Thus, the question in this case is not whether or not there exists a record
of discrimination against the disabled. Rather, the question is whether or not we
will honor Congress' desire that the disabled be given full civil rights and the
ability to enforce them against recalcitrant government entities that continue to
bar them from full participation in American life. For the reasons stated herein,
the Blanche Fischer Foundation submits that the decision of the United States
Court of Appeals for the Sixth Circuit should be affirmed.
Dated: November 11, 2003
Respectfully submitted,
Sherril Nell Babcock Counsel of Record
Sherril Nell Babcock Gianelli & Morris
880 West First Street, Suite 215 Los Angeles, California 90012
(213) 620-7272
Counsel for Amici Curiae Blanche Fischer Foundation
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