Things begin to change…?

Sherrie BrownLSJ/CHID 434January 13, 2010

2

Status of legal rights of individuals with developmental disabilities historically

Institutional settings: Infringement on fundamental right to liberty

(travel, free association, privacy) Those “committed” often deprived of right

to medical treatment, to habilitation, education, autonomy, privacy, sexual expression and even protection from harm.

3

Status continued:

In community settings: Usually deprived of “normal” rights

including education, ability to contract, to marry, be licensed, buy insurance, to vote and to be free from discrimination in obtaining employment, housing.

In criminal justice system: Regardless of guilt, often confess, are prey

for others during incarceration, etc.

4

Federal court decisions in 1970s Mentally retarded persons involuntarily confined to

state institution had a constitutional right to habilitation. Wyatt v. Stickney (Alabama 1972)

Humane psychological and physical environment ordered. Individualized habilitation and training plan required. Qualified professional and paraprofessional staff in sufficient

numbers to deliver training required. Extensive protections ordered to ensure that individuals

were afforded basic needs—e.g., adequate food, LRE, transition, minimal physical standards, etc.

Court appointed a “Human Rights Committee” consisting of 7 members, including resident with mental retardation.

5

Judicial rulings continued:

People with mental retardation have a constitutional right to protection from harm. NY State Association for Retarded Children v. Carey (consent decree 1975)

Willowbrook forbidden from implementing seclusion, corporal punishment, medical experimentation and routine use of restraints.

Decree mandated individual plans for education, therapy, care and development of each child.

Establishment of a Consumer Advisory Committee of parents, community leaders, residents (current and former) to monitor.

6

Developmental Disabilities Assistance and Bill of Rights Act Signed by President Ford in 1975. Establishes that individuals have a right to

appropriate treatment, services, and habilitation. Public funds will not be spent on institutions that:

Fail to provide treatment, services and habilitation which are appropriate.

Fail to meet minimum standards of adequate food, sufficient medical and dental care.

Use physical restraints unless absolutely necessary, excessive use of chemical restraints, deny relatives right to visit at reasonable hours without prior notice, or fail to comply with adequate fire and safety standards.

Increased emphasis on deinstitutionalization.

7

Courts Reflect Changing Attitudes

Justice Marshall in Clebourne (1984) summarized the treatment of people with disabilities:

“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 and nearly extinguish their race. Many disabled children were categorically excluded from public schools, based on the false stereotypes that all were uneducable and on the purported need to protect nondisabled children from them. State laws deemed the retarded ‘unfit for citizenship.’”

He concluded that persons with developmental disabilities have been subject to a lengthy and tragic history of segregation and discrimination that can only be called “grotesque.”

8

Deinstitutionalization Movement

Those who support institutions, describe deinstitutionalization as primary cause of homelessness, decline in quality of urban life, and result in profound neglect of helpless/disturbed persons.

Proponents characterize it as end of a system of oppressive, dehumanizing confinement.

Began in mid-1950s and continues today.

9

In Washington State

10

Residential Habilitation Centers (RHCs) Five exist in Washington State. Less than 1,000 individuals live in RHCs. Legislature in 2003-5 biennium budget ordered Fircrest to

downsize. Heated debates over pro/con institutions. Legislature in 2005-7 biennium budget ordered a stop to the

downsizing. Residential Services Study Commission to advise Governor

Gregoire formed and disbanded in 2005/6. Efforts to close institutions in Washington State has been “put

on back burner” by advocates because of the political barriers—i.e., strong union.

Governor’s 2009-11 budget proposed closing Lakeland Village.

11

Major Legislation Urban Mass Transportation Act of 1964 Architectural Barriers Act of 1968 Rehabilitation Act of 1973 RCW 49.60--Washington State Law Against Discrimination Education for all Handicapped Children Act of 1975 Developmental Disabilities Assistance and Bill of Rights Act of

1975 (DD Act) Voting Accessibility for Elderly & Handicapped Act of 1986 Air Carrier Access Act of 1986 The Fair Housing Amendments of 1988 Americans with Disabilities Act (ADA) of 1990

12

Laws in a Nutshell Urban Mass Transportation Act of 1964 requires

systems accepting federal funds be accessible to the elderly and people with disabilities.

Architectural Barriers Act of 1968 requires that all buildings built with federal funds be accessible.

13

Laws continued… Rehabilitation Act of 1973: §501, §503, §504

protect persons with disabilities from discrimination in federal government, federally funded programs, by recipients of federal funds.

RCW 49.60 -- Washington State Law Against Discrimination (disability added 1973).

Education for all Handicapped Children Act of 1975 (renamed IDEA in 1990 and IDEIA in 2004) requires free appropriate public education (FAPE) for all qualified children.

14

Laws continued… Developmental Disabilities Assistance and Bill of

Rights Act of 1975 provides funding for services, state DD councils, P&A programs and Bill of Rights.

Voting Accessibility for the Elderly and Handicapped Act of 1986 requires all polling places in federal elections be accessible for elderly and people with disabilities.

Air Carrier Access Act of 1986 prohibits discrimination against any otherwise qualified individual with disability, by reason of such disability, in the provision of air transportation.

15

Laws continued… Fair Housing Amendment of 1988 provides protection in

housing. Americans with Disabilities Act (ADA) of 1990 protects

qualified people with disabilities from discrimination in the areas of employment, transportation, access to public services and facilities, and communication.

Discussion How are Coastal Center and Willowbrook

different? How are they similar? “The nondisabled world sees

powerlessness as the natural product of dependence and dependence as the natural product of our needs.”

What is the government’s responsibility—if any—for individuals like Harriet McBryde Johnson or Bernard Carabello?

16

17

Discussion from Degener reading What are the incentives that helped the

disability rights movement develop? What are the contexts in which one can

“find” disability rights laws? What kinds of equality laws does

Degener discuss?