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with mental disabilities.

During this academic year, I am a

Visiting Professor at the Washington College of Law of the American

University here in Washington, D.C.

I have had the privilege of

representing AAMR and a consortium of disability organizations in

the Supreme Court of the United States in sity of Cleburne Ve

Cleburne Living Center, Bowen y. American Hospital Association (the

so-called "Baby Doe" case), and, this last Term, Penry v. Lynaugh.

The American Association on Mental Retardation is the nation's

oldest and largest interdisciplinary organization of professionals

in the field of mental retardation.

Founded in 1876, AAMR has long

are

a

been interested in legal issues involving people with mental retardation. AAMR members

organized in number of professional

divisions, including psychology, education, administration, medicine, nursing, social work, community services, nutrition and dietetics, communication disorders, occupational and physical therapy, religion, vocational rehabilitation, and legal process and advocacy. Our members serve individuals with mental retardation in variety of residential and nonresidential settings.

The American Association

חס

Mental Retardation strongly

supports the passage of the Americans with Disabilities Act,

We

believe that our nation's civil rights laws must be extended to

reach discrimination on the basis of mental or physical disability.

People with disabilities have been subjected to invidious discrinination throughout history. In the case of individuals who have mental retardation, this history of discrimination has been described by five members of the Supreme Court of the United States as "grotesque." city of cieburne y. 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.

Because of their disability, people with mental retardation

have been denied the right to marry, the right to have children,

the right to vote, the right to attend public school, and the right

own

to live in their own community, with their families and friends. Through the discriminatory withholding of medical care and nutrition and hydration, they have even been deprived of the right to life itself, solely because of their disability.

on

The rationalizations for discriminating the basis of disability have been varied. Sometimes it is argued that the discrimination is necessary to "protect" the disabled persons themselves. But more careful scrutiny often reveals that the real purpose is very different. For example, early laws prohibiting people with mental retardation and other disabilities from marrying are sometimes thought to be designed to insure that unscrupulous nondisabled individuals do not take advantage of people with handicaps. But the real purpose in enacting these laws was eugenic

making it a crime to enter into such a marriage, even for the person with a disability. See Linn & Bowers, The Historical Fallacies Behind Legal Prohibitions of Marriages Involving Mentally Retarded Persons The Eternal Child Grows Up. 13 Gonzaga Law Review 625 (1978).

similarly, eugenic sterilization laws were not an attempt to address the problems of informed consent by persons with mental

disabilities, but rather were a part of a larger scheme to remove people with handicaps from society. As one proponent of such laws wrote at the time of their enactment,

"What shall we do with the feeble-minded and epileptic

already existing?

One school says vasectomy, another

castration, and still another segregation. None of these

is correct in whole but in part only.

To reach the

proper solution of this question both sterilization, in
some form or other, and segregation must be carried out,

or

as

castration vasectomy being used adjuncts to
segregation, and going hand in hand with it."

H. Carey, A Plea for the sterilization of Certain Defectives. Particularly the Feeble-minded and Epileptic 4-5 (1912).

The notion that nondisabled citizens should be spared from any contact with people with disabilities was also made explicit in rationalizing the exclusion of people with handicaps from public schools. For example, the Supreme Court of Wisconsin approved the exclusion of a boy with cerebral palsy because he "produces a depressing and nauseating effect upon the teachers and school children." State ex rel. Beattie v. Board of Education, 169 Wis. 231, 172 N.W. 153, 154 (1919).

Another

feature

of discrimination against people

with

disabilities is the denial that they are really citizens, or even that they are human. This has been true throughout our history. For example, the Mississippi statute.creating eugenic segregation gave chancery courts "jurisdiction in all cases of legal inquiry in regard to feeblemindedness, including idiocy, imbecility, and the higher grades and varieties of mental inferiority which renders the subjects unfit for citizenship." 1920 Miss. Laws 288, 294.

Particularly odious are references in modern policy debates to people with disabilities as subhuman. For example, it has been argued that there is

"no reason to feel guilty about putting a Down's Syndrome
baby away, whether it's 'put away' in the sense of hidden
in a sanitarium or in a more responsible lethal sense .

True guilt arises only from an offense against a

person, and a Down's is not a person."

Bard & Fletcher, The Right to Die, The Atlantic Monthly 59, 64

Another writer attempts to justify discrimination

(April 1968).

in this way:

"If we compare a severely defective human infant with a

nonhuman animal, a dog or a pig, for example, we will
often find the nonhuman to have superior capacities, both
actual and potential, for .. anything ... that can

plausibly be considered morally significant." singer, Sanctity of Life or quality of Life?, 72 Pediatrics 128, 129 (1983). Contemporary debate also contains frequent references

to people with disabilities, particularly mental disabilities, as

"vegetables." For eloquent criticism of this usage, see Hentoff, The Awful Privacy of Baby Doe, The Atlantic Monthly 54, 57 (January

1985).

The tone of these attempts to justify discrimination against citizens with disabilities is more offensive than anything

encountered by any group in American society since the days of

slavery.

The impact of this discrimination on the lives of people with

as

as

mental disabilities has been

devastating

has the discrimination encountered by racial minorities and women in our society. But unlike those other groups, people with disabilities have lacked legal protection against private and public

discrimination.

The piecemeal statutory laws now in place do not address the

problem adequately.

Section 504 of the Rehabilitation Act was an

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