DISABILITIES, RIGHTS OF PERSONS WITH

When Justice oliver wendell holmes, jr. , declared in buck v. bell (1927) that the state's police power authorized involuntary sterilization of individuals thought to be mentally impaired, he asserted, "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 is enough." His statement embodied three assumptions about people with disabilities that have since provoked repeated and partially successful constitutional challenges. The first assumption was that people with disabilities do not enjoy the same basic rights as anyone else, such as the rights to procreate or to be free from involuntary medical treatment. The second assumption was that people with disabilities have no special rights should their conditions leave them vulnerable to legal, social, or physical jeopardy. The third assumption was that society's interests always outweigh the interests of people who have or who are perceived to have disabilities.

Inspired by the civil rights movements for blacks and for women, in the 1950s and 1960s, advocates for people with disabilities drew on changing medical knowledge about mental and physical disabilities. During the same years, increased federal funds for research and services reached those with mental disabilities and helped to support a movement for their rights. Advocates attacked the segregation produced by institutional settings. They also challenged the deprivation of voting rights; rights to have sexual relations; rights to marry; rights to have children; rights of access to jobs, housing, and transportation; and rights to treatment and services. The disability rights movement attained periodic success in constitutional adjudication in the lower federal courts, which in turn supported federal legislation backed by congressional findings of constitutional rights and also provided the backdrop for landmark Supreme Court due process, and equal protection decisions.

Initial lawsuits maintained that people with disabilities retained the same rights held by others. On this theory, confinement of persons on grounds of mental illness or mental retardation should not deprive them of other liberties, and the confinement itself should be justified by provision of services or treatment. The court of appeals so reasoned in Donaldson v. O'Connor (1974) and then built on this judgment with Wyatt v. Aderholt (1974), which declared on procedural due process grounds a right to treatment for persons civilly committed to state mental institutions. It was this right to treatment that Congress incorporated in the developmentally disabled assistance and bill of rights act (1975).

Although the Supreme Court refrained from endorsing the right to treatment at that time, it reinforced the disability rights movement by unanimously announcing in O' connor v. donaldson (1975) that "a State cannot constitutionally confine without more [justification] a nondangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends." The Court also reasoned that mere public intolerance could not justify the deprivation of physical liberty.

Elaborating the fourteenth amendment due process theory of liberty, advocates argued that the right to treatment included a right to be treated in the least restrictive setting possible, which meant the setting least confined and removed from the rest of the community. A series of lawsuits challenging the conditions and absence of treatment at a large institution in Pennsylvania produced the disappointing decision in pennhurst state school v. halderman (1981) that the Developmental Disability Act did not confer any substantive right to appropriate treatment in the least restrictive environment. This Supreme Court conclusion occurred after years of litigation had already propelled the states to move people from institutions to community-based facilities.

Then the Supreme Court took the occasion of one more lawsuit arising from the same Pennsylvania institution to announce a constitutional right to treatment for people with disabilities confined in state institutions. In Youngberg v. Romeo (1982) the Court declared that the due-process clause of the Fourteenth Amendment assures (1) safe conditions of confinement; (2) freedom from bodily restraints; and (3) training or "habilitation," meaning a duty to provide at least "such training as an appropriate professional would consider reasonable to ensure the individual's safety and to facilitate his ability to function free from bodily restraints."

The emerging right to treatment also spawned arguments for a right to refuse treatment. Lower federal courts in cases such as Rennie v. Klein (1978) recognized a constitutional privacy right of involuntary mental patients to refuse medication. In washington v. harper (1990) the Supreme Court announced that forced administration of antipsychotic drugs violates a constitutional liberty interest, but that due process can be satisfied by administrative processes less formal than a court hearing. During the same term, the Court acknowledged in Cruzan v. Missouri Department of Health (1990) that a constitutionally protected liberty interest in refusing unwanted medical treatment may be inferred from its prior decisions. In Cruzan, the first Supreme Court decision addressing the right to die, the Court acknowledged that incompetent as well as competent persons have a constitutionally protected liberty interest in consenting to or refusing treatment. Yet this interest did not forbid a state from requiring clear and convincing evidence that the patient herself would want to terminate life-sustaining treatment. Having spoken on this issue, the Court, like many state courts, may start to hear right-to-die and treatment cases affecting severely disabled adults, infants, and children.

Implicit in the due process liberty cases is the theme of equal protection, which has also inspired an independent line of opinions articulating rights of persons with disabilities. Adcocates achieved early constitiutional sucess by linking claims about disablilities to arguments against racial segregation. Thus in Hobson v. Hansen (1967), affirmed in Smuck v. Hobson (1969), the district court ruled public-school ability-tracking unconstitutional in light of its racially segregative impact. In Larry P. v. Riles (1979) the district court found unconstittutional I.Q. tests for placing students in classes for the "educable mentally retarded" because of a foreseeable racial impact.

Charges of racial discrimination trigger strict scrutiny under the equal-protection clause. Yet the Supreme Court has resisted claims that strict scrutiny should also apply to charges of discrimination on the basis of disability. In cleburne v. cleburne living center, inc. (1985) the Court expressly rejected the assertion that persons with disabilities are members of a suspect or semisuspect classification.

Nonetheless, the Court in Cleburne did give unusually sharp teeth to its low-level rational-relationship scrutiny. It found that a city requirement of a special-use permit for a proposed group home for persons with mental retardation violated the equal-protection clause. Locating group homes in residential neighborhoods would be essential to the goal of moving disabled people out of remote institutions and into the mainstream community. The city of Cleburne had created a special zoning permit requirement for the operation of a group home for mentally retarded persons. The majority of the Court found no rational basis for believing that the proposed group home would pose a special threat to the city's interests and rejected fear and negative attitudes by community members as inadequate bases for treating mentally retarded individuals differently from others. Justice thurgood marshall, joined by Justices william j. brennan and harry a. blackmun, maintained that the Court's majority had in effect applied heightened scrutiny and should explicitly accord such scrutiny given the history and continuing legacy of segregation of and discrimination against people with mental retardation.

A combination of equal protection and due process arguments produced the landmark decisions in Mills v. Board of Education (1973) and Pennsylvania Ass'n for Retarded Children v. Pennsylvania (1971), which decreed that children with disabilities have constitutional rights to equal educational opportunity, and exclusion from public schooling violates these rights. Congress expressly relied on the constitutional dimensions of these district court decisions in promulgating the education for all handicappedchildren act of 1975. Sometimes known as the "special education" statute, this act provides federal moneys to assist states in extending free appropriate public education to children with disabilities.

Drawing from procedural due-process doctrines, the act calls for individualized evaluations of each child's educational and health needs and an administrative process providing opportunities for parents to participate and raise objections to proposed placements. The act also echoes the right to treatment, but locates it within the context of compulsory schooling. The act introduces the desegregation concept of mainstreaming children with disabilities in regular classrooms to the extent possible. For students who still require instruction in separate classrooms or separate facilities, the act calls for selecting the placement that is the least restrictive—the one most approximating the mainsteam classroom. Finally, the statute calls for related medical services to ensure that students with special physical needs are not excluded from instruction due to medical needs.

Disability rights advocates have struggled to combine arguments for extending to people with disabilities the same liberty interests enjoyed by others with the use of arguments for special claims for treatment and even rights to refuse treatment that might not arise for others. The rehabilitation act of 1973 included section 504, a nondiscrimination provision modeled after the civil rights statutes drafted to guard against both racial discrimination and sex discrimination. A central idea developed in this context is that people entitled to protection against discrimination include those who are perceived to be disabled, whether or not they actually are disabled. On this basis, people who have had a disease or an illness or people who may be perceived to have an illness or a deformity have been extended statutory protections, as in School Board of Nassau County v. Arline (1987).

Antidiscrimination principles also animate the Fair Housing Act Amendments of 1988 that protect persons with disability and the americans with disability act (1990), heralded by many as the most important and extensive legislation ever adopted on behalf of persons with disability. Yet enduring questions about the meaning of equality and the degree of requisite accommodation will arise both as statutory questions and as constitutional questions concerning the scope of judicial power to order expenditures to accommodate previously excluded groups. Ending the exclusion of physically handicapped persons requires architectural renovation, new communication technologies, and other potentially costly changes. Ending the exclusion of persons with mental disabilities may require the creation of new kinds of institutions, like group homes, which involve money and trained personnel as well as changed community attitudes. Devising programs for persons with AIDS or at risk of AIDS would also involve large expenditures.

Federal courts implementing statutory and constitutional rights for persons with disabilities may confront claims of eleventh amendment immunity asserted by states against court-ordered expenditures. In analogous cases involving court-ordered remedies for school segregation and prison conditions, courts have ruled that inadequate resources can never be an adequate justification for a state to deprive persons of their constitutional rights.

Much has changed since Justice Holmes's 1927 opinion in Buck v. Bell; the law recognizes many of the same rights for persons with disabilities as for others. Courts and legislatures have articulated special rights to help disabled persons overcome legal, social, and physical jeopardy. Will the Constitution direct an answer to the question when societal interests outweigh the interests of persons with disabilities? Perhaps the future constitutional challenge is to locate within societal interests the interests of persons with disabilities so the very terms of the questions will change.

Martha Minow
(1992)

Bibliography

Burgdorf, Robert L. and Burgdorf, Marcia Pearce 1977 The Wicked Witch Is Almost Dead: Buck v. Bell and the Sterilization of Handicapped Persons. Temple Law Quarterly 50: 955–1034.

Minow, Martha 1990 Making All the Difference: Inclusion, Exclusion, and American Law. Ithaca, N.Y.: Cornell University Press.

Note 1973 Right to Treatment. Harvard Law Review 86: 1282–1306.

Student Authors 1974 Developments in the Law: Civil Commitment of the Mentally Ill. Harvard Law Review 87:1190–1406.

Tribe, Laurence 1988 American Constitutional Law, 2nd ed. Mineola, N.Y.: Foundation Press.