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1 Introduction May it please the Court, I think if the appellants’ construction of the Fourteenth Amendment should prevail here, there is no doubt in my mind that it would catch the Indian within its grasp just as much as the Negro. If it should prevail, I am unable to see why a state would have any further right to segregate its pupils on the ground of sex or on the ground of age or on the ground of mental capacity. If it may classify it for one purpose on the basis of admitted facts, it may, according to my contention, classify it for other.1 With these words attorney John W. Davis, arguing before the US Supreme Court in defense of racial segregation in Brown v. Board of Education, unwittingly drew what was to become the defining analogy of the American disability rights movement of the second half of the twentieth century. “I remember vividly the delight between Gunnar [Dybwad] and myself when we discovered this,” says Thomas K. Gilhool. Gilhool had been retained in 1969 by the Pennsylvania Association for Retarded Children (PARC) as the lead attorney in its landmark right-to-education case, PARC v. Pennsylvania. Gunnar Dybwad, as the former executive director of the national Association for Retarded Children and an activist for the rights of children with disabilities, had for years been urging parents to use the federal courts to force admission of their children to the public schools. Both of them saw the PARC case as the opening salvo in their fight to close down the massive state institutions in which tens of thousands of disabled children were confined. In this effort, they were relying on the same Fourteenth Amendment rights to due process and equal protection under the law that were at issue in Brown, and so finding that the analogy had already been drawn in argument before the Supreme Court was understandably 2 introduction gratifying.2 At the time, the Fourteenth Amendment was their only recourse in making the case that children with disabilities had the right to a public school education—since federal disability rights law, as we know it today, did not exist. What Davis had been trying to do, of course, was frighten the Court with the prospect that once segregation on the basis of race was found to be unconstitutional , segregation on the basis of gender and even disability—mental or otherwise—would likewise be called into question. Given the context (Davis made his argument in 1952), it was perhaps not such a bad strategy. If anyone ranked lower in American social status than southern “Negroes,” it would be those people labeled “mentally retarded.” Indeed, the “scientific” or “diagnostic ” terms still in use at the time to differentiate alleged levels of mental disability included “moron,” “imbecile,” and “idiot.” Give people with black skin the right to an integrated, public school education, Davis was, in effect, saying , and you might as well bestow the same right on “idiots,” “morons,” and “imbeciles.”3 There was, in fact, legal precedent for denying civil rights to people with disabilities —particularly mental disabilities. In 1927, the Court, in Buck v. Bell, had ruled that the forced sterilization of people with disabilities was not a violation of their constitutional rights. “It is better for all the world,” wrote Justice Oliver Wendell Holmes Jr. on behalf of the majority, “if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. . . . Three generations of imbeciles are enough.”4 As a result of this ruling, Carrie Buck, not yet twenty years old, was forcibly sterilized.5 Justice Holmes, in linking mental disability with crime and defining the alleged disability/criminality nexus as an inherited trait was echoing the beliefs of the eugenics movement, which had provided much of the “scientific” evidence presented in the case. In fact, Carrie Buck was not a criminal, indeed she may not even have had a mental disability. Her principal offense, aside from becoming pregnant after being raped in foster care, was to belong, as the author of the Virginia sterilization law, Harry L. Laughlin, put it, “to the shiftless, ignorant, and worthless class of anti-social whites in the South.”6 The Court’s decision in Buck v. Bell unleashed a torrent of forced sterilizations of people labeled mentally retarded and diagnosed as epileptic or mentally ill, and is generally considered a...


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