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I am sending as an attachment to this message a copy of my article in
Disability & Society (1994) which can serve as the beginning of the brief.
I shall be glad to furnish any further help you might need....David
Pfeiffer
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David Pfeiffer, Ph.D.
Resident Scholar
Center on Disability Studies
University of Hawai`i at Manoa
[log in to unmask]
+++++++++++++++++++++++++++++++++++++++++++++++++++
Center on Disability Studies....maximizing individual
potential by encouraging independence, self-determination,
and full participation in the community.
+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
On Mon, 17 Jan 2000 [log in to unmask] wrote:
> Challenges to the constitutionality of the ADA are fast approaching the
> United States Supreme Court. Legally, one thing we have to show is the
> history of de jure and de facto discrimination against PWDs. (Yes, it seems
> obvious to us, but this is the Supreme Court we're talking about.) If there
> is such a history, then we have a better chance of coming under heightened
> scrutiny under the 14th Amendment, which means that Congress had power to
> enact the ADA.
>
> So, we are looking for legal and disability historians to draft (with
> assistance if desired) and organize an amicus brief for academics to sign on
> to. Who should I contact to be part of this team?
>
> Claudia
>
[published in Disability & Society, 9(4), 1994, pages 481-99.]
Eugenics and Disability Discrimination
David Pfeiffer, Ph.D.
Department of Public Management
School of Management
Suffolk University
Boston, MA 02108-2770
USA
NOW AT:
Center on Disability Studies
University of Hawai`i at Manoa
1776 University Ave UA 4-6
Honolulu, HI 96815 USA
Eugenics and Disability Discrimination
Abstract
Testimony presented during the passage of the Americans with
Disabilities Act (P.L. 101-336) indicated the continued existence of
discrimination based upon a disability. Many persons, including
academics, do not believe that such discrimination exists nor do they
believe that some of the most threatening discrimination in the
United States is based in state law. This paper details these state
laws (past and present) in the area of domestic relations and
presents the historical cause for the enactment of the discriminatory
laws. The Eugenics Movement using (somewhat wrongly) Darwin's
evolutionary theory was and continues to be the force behind them.
Policy implications are presented in the conclusion.
Eugenics and Disability Discrimination
At the weekly luncheon of a service club in Massachusetts two
men - one a local federal official who is well known for his civil
rights work and who is black, the other an advocate for disabled
people and who is disabled and the author of this piece - were
invited to give short presentations about civil rights. The federal
official made the comment that blacks were the only group whose civil
rights had been limited by statute. When the disability advocate
demurred, the federal official became very incensed. Like many
persons the official was unaware of the many statutory ways in which
the civil rights of disabled people were and still are violated
through state and local government laws in the United States.
This same misconception is wide spread in the academic
community. Recently an anonymous reviewer wrote, as a reason for
rejecting an article similar to the present piece, that
"developmentally disabled persons were always treated differently."
It is not known what definition of developmental disabilities the
reviewer held, but the point of the article was that all people with
disabilities were either treated as developmentally disabled persons
who were not legally competent or else lived with the real
possibility that they would be treated in such a way. That is, there
was a real possibility that a person with a disability would be
institutionalized, sterilized, and be denied all parental rights.
Seemingly, for the anonymous reviewer, it was all right to treat
developmentally disabled persons that way, but other persons with a
disability would never be so treated.
The purpose of this piece is to present evidence that both the
federal official and the reviewer were wrong. People with
disabilities, any disability, had their rights limited in the
immediate past in the United States and still do so today by existing
state statutes and the courts' incorrect interpretation of other
statutes. They are constantly faced with the possibility of being
deprived of fundamental rights that non-disabled persons enjoy. The
great interest today in discovering which genes cause inherited
impairments only accentuates the problem. As Rothstein (1992) points
out, the Americans with Disabilities Act is only a first step toward
fundamental changes necessary to avoid widespread discrimination
based upon genetic testing.
The view of many scholars is represented in a law review article
by Robert and Marcia Burgdorf entitled "The Wicked Witch Is Almost
Dead." (Burgdorf & Burgdorf, 1977) It discussed the problems of
U.S. Supreme Court Justice Oliver Wendell Holmes' opinion in Buck v.
Bell, 274 U.S. 200 (1927), in which a woman labelled feebleminded was
sterilized against her will. Calling Holmes' opinion embarrassing,
the authors (on page 1033) concluded:
...the decision was incorrect on its facts, was based on now
discredited scientific theories, relied upon inaccurate
analogies, applied inappropriate constitutional standards, and
was in conflict with many philosophical principles of the
American governmental system.
The Burgdorfs called for an end to compulsory sterilization laws in
this country and concluded their article with the sentence: "Fifty
years of Buck v. Bell is enough." This ending was a reference to
Holmes' infamous phrase in the end of his opinion: "Three
generations of imbeciles are enough." Nevertheless, contrary to what
many persons believe, it was never overruled and is still the law of
the land in the United States.
Domestic Relations
The right to have children, to marry, and to raise one's
children are taken for granted by most U.S. citizens. These rights
are not automatic for disabled persons. As will be recounted below,
the Eugenics Movement greatly influenced public laws regarding
domestic relations in this country over the last century.
Sterilization. During the nineteenth century and into the
twentieth century sterilization was a common remedy for
"feeblemindedness," as most disabilities were called. Before 1900
castration by removal of ovaries or testicles was the only method
available for sterilization. During the third quarter of the
nineteenth century the superintendent of the Winfield Kansas State
Home for the Feebleminded castrated forty four boys and fourteen
girls before being forced to stop for medical (not legal) reasons.
However, around 1900 Dr. Harry Sharpe of the Indiana State
Reformatory developed the procedure of vasectomy which is simple and
cheap. About the same time in Europe the procedure of salpingectomy
for women was developed. Sterilization on a large scale was then
begun even though there was no legal basis for it. Dr. Sharpe alone
sterilized six to seven hundred boys in the Indiana State
Reformatory. (Burgdorf, 1980: 860)
In Indiana in 1907 the first involuntary sterilization law in
the country was enacted. By 1911 Washington, California,
Connecticut, and New Jersey enacted involuntary sterilization laws.
By 1930 a total of thirty three states had enacted such laws although
in three states - New Jersey in 1913, New York in 1918, and Indiana
in 1921 - the laws were struck down as unconstitutional. In Michigan
a law was enacted, but struck down in 1918. Seven years later a
version of the Michigan statute was accepted by the courts as
constitutionally valid. The U.S. Supreme Court then upheld
involuntary sterilization laws in 1927 in Buck v. Bell, 274 U.S. 200.
Even though Buck v. Bell has never been overruled by the U.S.
Supreme Court, some scholars (Burgdorf, 1980: 857) say that the
reasoning used by Holmes was rejected in Skinner v. Oklahoma, 316
U.S. 535 (1942), and is therefore no longer governing. In the case
of Skinner v. Oklahoma a person who was convicted of larceny,
stealing a chicken, was sentenced, as the law provided, to be
sterilized because of prior convictions. The involuntary
sterilization law would not have been applied if the crime had been
another crime such as embezzlement. The Supreme Court struck down
the Oklahoma law on the basis of equal protection. The Court said
that the difference between the two crimes of theft and embezzlement
could not be supported. As the Court wrote (Skinner v. Oklahoma, 316
U.S. 535 at 542):
Oklahoma makes no attempt to say that he who commits larceny by
trespass [the chicken thief] or trick or fraud has biologically
inheritable traits which he who commits embezzlement lacks. . .
. We have not the slightest basis for inferring...that the
inheritability of criminal traits follows the neat legal
distinctions which the law has marked between those two
offenses.
The U.S. Supreme Court in the Skinner Case found that the contention
of inheritable criminal traits was sound. The law was struck down
because it violated the principle of equal protection. This
principle guaranteed to the chicken thief equal treatment which other
criminals committing similar crimes would receive. Since an
embezzler would not face the same punishment of forced sterilization,
the Supreme Court struck down the law. Buck v. Bell remained the law
of the land.
It is also widely argued that in Roe v. Wade, 410 U.S. 113
(1973), the U.S. Supreme Court established a fundamental right of
privacy which would prevent compulsory sterilization. The Roe Case,
however, was decided by a 5-4 vote. There is considerable sentiment
in the Courts, in the legal profession, and in public opinion that
Roe should be overturned. If it were to be overturned, this
protection against compulsory sterilization would vanish. Even if it
is not overturned, the right of privacy is limited in the U.S.
Supreme Court's June 1986 decision in Bowers v. Hardwick. In the
Bowers Case the Supreme Court upheld the right of a state, in this
case Georgia, to invade the privacy of the bedroom to observe if
sodomy was being performed. The right of privacy is not a sufficient
shield.
Another argument that Buck v. Bell is no longer the law of the
land is the fact that in it the Court relied upon the police power of
the state to uphold Virginia's compulsory sterilization law. The
police power gives the state the right to act to protect the public
health, safety, and welfare. While it is probably true that an
argument based solely upon the police power would not be accepted by
the Court, it is by no means certain. And in many cases the Supreme
Court has agreed that the police power along with other powers of the
state can be used to uphold a law or an action.
Nevertheless, there are more persuasive arguments today for the
legality of involuntary sterilization than the ones used by Holmes.
In upholding the Virginia statute Holmes used the "rational basis"
test. This test provides that if a rational basis for a statute can
be established and that there are no other problems, the courts
should not invalidate the act. The Court found a rational basis and
therefore did not strike down the law. Scholars today (Murdock,
1974) contend that more than a rational basis would be needed to
uphold a compulsory sterilization law for disabled people. While
their argument may be correct, it is not relevant. The defense of
involuntary sterilizations today is based upon the doctrine of parens
patriae which means, in a loose way, "father power." That is,
fathers - both biological and legal - know what is in the best
interest of the "child" and can force the "child" to comply even if
the "child" is an adult who happens to have a disability.
A 1975 North Carolina statute (General Statutes 35-50) which
provided for the sterilization of mentally defective persons was
successfully defended under the doctrine of parens patriae. The
statute gives the following definition of a mentally defective person
(General Statutes 35-1.1):
A "mental defective" shall mean a person who is not mentally
ill, but whose mental development is so retarded that he has not
acquired enough self-control, judgment, and discretion to manage
himself and his affairs, and for whose own welfare or that of
others, supervision, guidance, care, or control is necessary or
advisable. The term shall be construed to include
"feeble-minded," "idiot," and "imbecile."
All that is necessary for sterilization of such a person is for the
superintendent of an institution or a county director of social
services to obtain a court order for it. In fact, it is the duty of
the superintendent or county director to initiate such proceedings
whenever the official feels it is in the person's best interest or
the public's interest. If a superintendent or county director can
convince a judge that a person with a disability can not manage day-
to-day affairs, needs guidance, and would "benefit" from the
sterilization, then the judge can order that it be done.
With some procedural modifications, the statute was upheld in
NCARC v. North Carolina, 420 F.Supp. 451 (1976). In twenty two
states a similar law exists including Arizona (Revised Statutes
36-532 ff.), California (Penal Code 2670), Connecticut (General Laws
17-19), Delaware (16 Code 5701 ff.), Indiana (Statutes 1973,
16-13-13-1 ff.), Maine (Revised Statutes 34-2461 ff.), Michigan
(Statutes 14.381 ff.), Minnesota (Statutes 252A.13), New Hampshire
(Revised Statutes 174:1 ff.), South Carolina (Code 44-47-10 ff.), and
Virginia (Code 37.1-156-71). Involuntary sterilization is
specifically authorized in fourteen states: Arkansas, Colorado,
Connecticut, Delaware, Maine, Minnesota, Mississippi, North Carolina,
New Jersey, Oklahoma, Oregon, South Carolina, Utah, Virginia, and
West Virginia. (Brakel, Parry, and Weiner, 1985: 523-24) Epilepsy is
still included as a permissible reason for compulsory sterilization
in Delaware, Mississippi, and South Carolina. Most states base the
action on the person's or society's "best" interest, but nine states
still base it on an eugenic argument. Even in the absence of a law
authorizing sterilization, courts can and do compel persons with
disabilities to undergo compulsory sterilization with no regard of
the disabled person's view of his or her "best" interest. It is a
threat to all disabled persons in the United States. (Macklin and
Gaylin, 1981; Brantlinger, 1992; Elkins and Anderson, 1992; Ferguson
and Ferguson, 1992; Fredericks, 1992; Kaeser, 1992)
Marriage. The right to marry is an important one which most
people take for granted. This right is subject to regulation by the
states because, in part, it establishes a contract and governs
inheritance and ownership of real property. State legislation which
appears to limit this right receives close examination by the U.S.
Supreme Court in the context of the Fourteenth Amendment as a result
of Meyer v. Nebraska, 262 U.S. 390 (1923). In the Meyer case the
Court declared the right to marry to be a fundamental right under the
U.S. Constitution. Any limitation of this right must respect the
principles of equal protection and due process. The Court struck
down a state statute which prohibited interracial marriage as a
violation of these principles in Loving v. Virginia, 388 U.S. 1
(1967). However, the Court never struck down a state statute which
limited marriage by or to a disabled person even when equal
protection was clearly violated.
For example, Connecticut had a statute which prohibited any man
who was "...epileptic, imbecile, or feeble-minded" from marrying a
woman under forty five years of age, the presumed limit of
child-bearing. A woman under forty five years of age who was
"...epileptic, imbecile, or feeble-minded" could not marry regardless
of the man's age. In Gould v. Gould, 61 A. 604 (1905), this statute
was upheld by the Connecticut courts. While acknowledging that under
the Connecticut constitution marriage is a fundamental right, the
court refused to strike down the statute. It said that the
legislature also had constitutionally set a minimum age to marry and
had prohibited persons related by blood from marrying. One of the
persons in this case had epilepsy and the court wrote:
That epilepsy is a disease of a peculiarly serious and revolting
character, tending to weaken mental force, and often descending
from parent to child, or entailing upon the offspring of the
sufferer some other grave form of nervous malady, is a matter of
common knowledge, of which courts will take judicial notice. . .
. One mode of guarding against the perpetuation of epilepsy
obviously is to forbid sexual intercourse with those afflicted
by it, and to preclude such opportunities for sexual intercourse
as marriage furnishes. To impose such a restriction...is no
invasion of the equality of all men before the law, if it
applies equally to all...who belong to a certain class of
persons....
The class of persons included all those with epilepsy so, the
Connecticut court reasoned, there was no denial of equal protection
or any other right. Members of the class of people with epilepsy, by
implication, do not share the equal rights of the class of U.S.
citizens. Similar laws also existed, at that time, in Michigan,
Minnesota, Kansas, and Ohio. The Connecticut act was not repealed
until 1969.
A 1953 statute in Pennsylvania (48 Statutes 1-1 ff.) prohibits a
marriage certificate from being issued to a person who has epilepsy,
is "weakminded, insane, or...of unsound mind" except under a court
order. In Washington (26 Revised Code 26.04.030) marriage is
prohibited if either party:
...is a common drunkard, habitual criminal, imbecile,
feeble-minded person, idiot or insane person, or person who has
theretofore been afflicted with hereditary insanity, ...unless
it is established that procreation is not possible by the couple
intending to marry.
The Massachusetts prohibition (General Laws 207, section 5) reads:
An insane person, an idiot, or a feeble-minded person under
commitment to an institution for the feeble-minded, to the
custody or supervision of the department of mental health, or to
an institution for medical defectives, shall be incapable of
contracting marriage.
Thirty eight states and the District of Columbia either ban or
closely restrict the right of a mentally retarded person to marry.
(Wells, 1983) This basic right is not guaranteed to disabled people.
Parenting. The right to parent, to raise your biological
children, is also recognized as a fundamental right by the U.S.
Supreme Court. However, it can be overridden on the grounds of the
health or safety of the child. (Sackett, 1991; Bernstein, 1991)
Even though it has little relationship to these grounds, the common
basis for removing children from disabled parents is parental IQ.
(State ex rel. Paul v. Department of Public Welfare, 170 So.2d 549
(1965), Louisiana Court of Appeals; In re McDonald, 201 N.W.2d 447
(1972), Iowa Supreme Court; Sexton v. J.E.H., 355 N.W.2d 828 (1984),
North Dakota Supreme Court; and In re G.C.P., 680 S.W. 2d 429 (1984),
Missouri Court of Appeals) Research shows that IQ tests are biased
and limited (Sternberg and Gardner, 1984; McCall, 1984) a fact
recognized by the courts in education cases. (Larry P. v. Riles, 495
F.Supp. 926 (1979), N.D. California; PASE v. Hannon, 506 F.Supp. 831
(1980), N.D. Illinois) Nevertheless, disabled parents must prove
their ability to parent to a degree beyond that of non-disabled
parents. A couple in California who were hearing and speech
impaired, but quite capable of parenting, were prevented from
adopting a child in Adoption of Richardson, 59 Cal. Rptr. 323 (1967).
Recent cases may indicate a new trend. A California trial court
judge had removed two children from a father's custody because he was
a quadriplegic. The trial court judge had concluded that the father
could never be a "good" parent because he could not, for example,
play catch with his son. The California Supreme Court, In re
Marriage of Carney, 598 P.2d 36 (1979), sharply rebuked the trial
judge and overturned his decision. A district court judge in Idaho
had refused a mother custody of her two children because she had
epilepsy. The Idaho Supreme Court reversed the decision in Moye v.
Moye, 627 P.2d 799 (1981). In Michigan the Michigan Court of
Appeals, in Department of Social Services v. McDuel, 369 N.W.2d 912
(1985), overturned a lower court decision because it had improperly
interpreted "mental illness" to be the same as "physical illness."
And in Johnson v. J.K.C., Sr., 841 S.W. 2d 198 (Mo. Ct. App. 1992),
the Missouri Court of Appeals reinstated the parental rights of a
"mildly mentally retarded" couple in regard to their nine year old
son because there was a bonding between son and father and because
the child's advanced age meant that the parents could provide for his
care. However, it upheld the termination of parental rights in
regard to a five year old daughter because of her age and the fact
that she had never lived with her parents.
From the viewpoint of the child, California (Civil Code 227b) is
the only state in the union which allows a parent to petition to have
an adoption decree annulled on the basis of a disability in the
child. The statute provides that if within five years of the final
decree the child gives evidence of a developmental disability which
is so severe that the child would be considered not adoptable, that
the disability was the result of pre-adoption conditions, and that
the parents did not know of the condition, then the adoptive parents
can ask the court to annul the adoption. (The Legal Rights of
Persons with Epilepsy, 1985: 107) That occurred in Christopher C. v.
Kay C., 278 Cal. Rptr. 907, when the California Court of Appeals
affirmed a lower court decision to grant a petition to set aside an
adoption because the child had an undisclosed mental illness.
Perhaps the courts are changing their view of persons with
disabilities who are parents. At the same time they seem to be
making it easier for involuntary sterilization to occur. Once
sterilized a person with a disability no longer has the chance to
have biological children and so the problem involving parenting will
not arise since it is also all but impossible for them to adopt a
child.
Stereotypes and Disability
These laws and court cases are based upon common stereotypes of
disability and disabled persons. They are based upon several
inaccurate assumptions about disabled people. (Wright, 1985; Bogdan
and Biklen, 1977; Dearing, 1981; Longmore, 1985; Bogdan & Taylor,
1987 and 1989) The first one is the assumption of general
maladjustment of disabled persons.
There are numerous studies which purport to show that disabled
people are maladjusted, but the studies suffer from grave
methodological problems involving the instruments used. Just as bias
exists in IQ tests, there are biases in instruments used to gauge
adjustment. In addition, if the researcher expects maladjustment in
disabled persons, that is what will be found, a self-fulfilling
prophecy. Furthermore, there is a strong tendency in these studies
to attribute any deviation from the norm to the existence of a
disability: if a person is disabled, then the person must be
maladjusted. The truth is that the assumption of general
maladjustment is a gross over simplification of the facts conditioned
by prejudice as careful analysis of these studies show.
The second assumption is that of tragedy. Non-disabled persons
can not imagine how disabled persons can bear their lives. The
existence of a disability appears to them to be an overwhelming
tragedy, a life filled with suffering and frustration. It is true
that disabled persons suffer and become frustrated, but so do
non-disabled persons. There are many carefully done studies which
show that things like divorce or death cause more pain, suffering,
and tragedy in the lives of disabled persons than the existence of a
disability.
The next assumption is closely related to the first two and that
is the assumption of excessive frustration. It is simply not correct
that disabled people experience more frustration than other people.
Perhaps disabled persons are more aware of frustrating, unnecessary
barriers placed before them, but non-disabled persons also experience
excessive frustration. If a researcher expects to find excessive
frustration, it will be found just like general maladjustment will be
found. But the way to overcome frustration for both disabled and
non-disabled persons is to remove the frustrating barriers, not to
counsel more adjustment.
These assumptions are all based upon yet another incorrect
assumption: the assumption of disability as a personal attribute. A
disability is a central part of the life and identity of a disabled
person, but it is not simply a personal attribute. It is rooted
firmly in the environment. In certain environments particular
disabilities are not noticed while in other environments they are
very noticeable. A disability is often a limitation because of an
environmental barrier which is unnecessary, unneeded, largely
unwanted, but there because of someone's unthinking.
The final assumption is the myth of sin. That is, the cause of
a disability must be someone's sin or wrong doing: the disabled
person, the parents, the physician, the drunk-driver, and so on.
Perhaps the disability can be traced to a specific event, but the
reason for that event is certainly not sin on the part of someone who
ends up with a disability. Frequently, people in society attempt to
locate the blame or reason for everything perceived as "bad." When
nothing else can be blamed, sin is the obvious alternative
explanation.
The stereotypes resulting from these false assumptions are
influential and this influence is magnified by language. The power
of language to shape policy and influence views of reality is great.
(Edelman, 1985) The terms "nigger" and "chick" are evocative as is
the term "cripple." While the first two terms are rarely used today
in the media, the third term is commonly used as a verb (to cripple),
as an adjective (crippled), and as an adverb (crippling). (Zola,
1985; Longmore, 1985) It is not surprising that the stereotypes are
deeply influential upon public policy in this society. (Hahn, 1985a;
Higgins, 1980; Crispell & Gomez, 1988; Handberg, 1989) These
stereotypes influence friendships (Kleck & DeJong, 1983), govern
success (Bordieri, Sotolongo, & Wilson, 1983; Beuf, 1990), and
determine how disabled people are viewed by the professionals who
seek to help them. (Nixon, 1985; Owen, 1985; Westbrook & Nordholm,
1986; Barnett, 1986; Scott, 1981) They are widely found today and
throughout history.
In the United States disabled persons were stereotyped from
colonial times as defective and thus not being able to participate as
citizens. Not until the nineteenth century did disabled people
attempt in any numbers to participate in civic matters. When they
tried to do so, they were usually barred. The 1872 civil procedure
code of the County of Los Angeles prevented persons who were deaf,
blind, and physically handicapped from serving on juries. The reason
was that such persons were considered, according to the code, to be
"decrepit and lacking in all their natural faculties." When the Los
Angeles County Supervisors were considering a measure to repeal this
provision in 1976, it was opposed by two county judges because
"...the blind would have difficulty in determining the credibility of
witnesses since they could not observe witnesses' demeanor." (Los
Angeles to Decide..., 1976) Such stereotypes about blind persons are
common (Chevigny, 1946; Criddle, 1953; Scott, 1981) as they are about
disabled persons in general.
The legal impact of these stereotypes upon the lives of people
with disabilities did not happen by accident. It was the result of
an identifiable social movement whose purpose was to make society
better in all ways.
The Eugenics Movement
The reason for the impact of the stereotypes and the resulting
discriminatory laws can be found in the values and prejudices of
people in society. (Weiss, 1987; Proctor, 1988; Brown, 1988;
Weindling, 1989; Caplan, 1989) One of the primary sources of these
prejudicial attitudes which led to the laws is the Eugenics Movement
which has its roots in nineteenth century biology, especially the
work of Charles Darwin. (Mazumdar, 1992; Stepan, 1992) The
evolutionary ideas of Darwin are not necessarily supportive of the
goals of the Eugenics Movement, but they led to the work in genetics
which gave rise to the movement.
It is not accidental that a certain pessimism can be read into
Darwin because he took his central idea from Thomas Malthus' work
Essay on Population, first published in 1798. (Dampier, 1952:
chapter 7) Malthus wrote that the human race would always grow in
numbers until it has insufficient means for survival. Then war,
famine, or disease would trim back the number of people. Unnecessary
individuals would die. This pessimistic view of history influenced
Darwin. As he wrote (quoted in Dampier, 1952: 276):
In October 1838 I happened to read for amusement Malthus on
Population, and being well prepared to appreciate the struggle
for existence which everywhere goes on from long continued
observation of the habits of animals and plants, it at once
struck me that under these circumstances favourable variations
would tend to be preserved, and unfavourable ones to be
destroyed. The result of this would be the formation of new
species. Here then I had a theory by which to work.
For the next twenty years Darwin collected data and conducted
experiments. In November 1859 his Origin of Species was published.
Ideas of evolution were not unknown during the nineteenth and
previous centuries. Toward the end of his life Charles Darwin
acknowledged the influence that his grandfather, Erasmus Darwin, had
on his ideas. Erasmus Darwin was one of a number of writers who had
advanced the idea of evolution, but in a different form. (Colp,
1986) Unlike earlier works, Charles Darwin's Origin of Species
established evolution on a firm basis because it was accompanied by
extensive facts based on his observations and experiments. Thomas
Huxley, the chief expositor of Darwin's theory, describes it as a
flash of lightning in the dark. (Dampier, 1952: 279-80) It was not
a flash appreciated by all persons because there was intense
opposition to Darwin's theory over the next twenty years. Only
toward the end of his life did the opposition began to subside.
Out of the controversy generated by The Origin of Species came
the field known today as genetics. Unlike most fields, genetics can
be said to have a birth month, although not exactly a birth day. In
April 1900 three different plant breeders rediscovered and/or
republished what Gregory Mendel had published in 1866. Mendel's
ideas encompassed a statistical rule by which plant characteristics
could be predicted from one generation to another. (Waddington,
1972) Such a statistical approach was championed in Great Britain by
W.F.R. Weldon, Karl Pearson, and Francis Galton. Pearson, the
statistician who developed the product moment correlation coefficient
as well as other statistical tools, founded the journal Biometrika
with Weldon. Galton, who had turned his attention to the genetic
improvement of people, coined the term eugenics for his work.
Another contributor to this movement was the statistician G. Udny
Yule who developed the definition of statistical independence used
today with the Chi Square statistic. Finally, there was the
statistician Ronald Fisher, known for his work with statistical tests
of significance, who reconciled early objections raised by Weldon and
Pearson to the Mendel approach.
Fisher was very concerned that previous civilizations had
collapsed because the "better" classes had failed to reproduce a
sufficient number of offspring. In 1912 he addressed the second
annual meeting of the Cambridge University Eugenics Society and
stressed the need for careful breeding among the "better" classes. A
year later in an address to the Eugenics Education Society he
repeated his concern and said (as quoted in Box, 1978: 32):
We do not dub ourselves knights of a new order. But
necessarily, inevitably, it might be unconsciously, we are the
agents of a new phase of evolution. Eugenists will on the whole
marry better than other people, [they will have] higher ability,
richer health, greater beauty. They will, on the whole, have
more children than other people.
Although Fisher might have repudiated much of what later happened in
the name of eugenics, by 1929 he was actively engaged in a campaign
to legalize sterilization. (Box, 1978: 196-203) His public position
was always that the sterilization must be voluntary and must be
viewed as a right. He firmly believed that if viewed in this way
sterilization would become widespread and would reduce the number of
"defectives" being born.
Fisher's views were not shared by all members of the Eugenics
Movement. During the nineteenth century and on into the twentieth
century there was considerable sentiment that certain racial or
ethnic groups were superior in terms of intelligence and moral
character. Such reasoning is the foundation for the doctrine of
Manifest Destiny in the United States which justified the genocide of
Native Americans and the conquest of Puerto Rico and the Philippines.
Within the American society, the argument went, the lower classes
were intellectually and morally inferior. In order to preserve
civilization and social order, the lower classes must be restrained.
Unionization of American industry was opposed on the grounds that the
common worker could not know what was best for him/herself much less
for the entire nation.
Like Fisher, many persons in the United States were concerned
that civilization was doomed unless "defective" persons were kept
from multiplying. Lothrop Stoddard wrote in 1922 (quoted in Smith,
1985: 3) that "the stern processes of natural selection" had kept
down the number of "defective" people in the past, but now "modern
society and philanthropy have protected them and thus favored their
rapid multiplication."
Arguments in the abortion debates often contain premises of the
Eugenics Movement. (Wertz & Fletcher, 1989; Hollander, 1989;
Heifetz, 1989; Wolfensberger, 1989; Merrick, 1989) Equating the
availability of abortion with the encouragement of promiscuity, David
Wilson (1986) states that mature, educated married couples who
"conscientiously practice contraception" sometimes conceive children.
The probability that unmarried teenage girls, he writes, will become
pregnant is close to certainty if abortion continues to be available.
The process is negatively self-selective. The most responsible,
educated, economically self-sufficient, genetically and
culturally endowed are the least likely in any age cohort
actually to produce offspring. What abortion is producing
instead...is male irresponsibility and a dysgenic reproductive
pattern in which those less prepared to cope with the
multitudinous challenges of advanced technocracies are
outbreeding those whose capacities may be expected to be
superior.
The "better" classes will obtain abortions while the "inferior"
classes will multiply. This concern is the same one voiced at the
beginning of the century by Fisher, but not only will the "better"
classes produce fewer children, the "inferior" classes will produce
"defective," i.e., disabled children.
In the nineteenth century due (in part) to the Eugenics
Movement, there was social policy implemented to deal with the
"defective" and disabled members of society. The earliest
institution for "defectives" and "feebleminded" persons in the United
States was established in Boston by Samuel Howe in 1849. It was
Howe's intent to educate the "defectives" so that they could return
to society. However, he was so successful in removing unwanted
persons from the streets and from public sight that families and
communities refused to have them back. Although he warned against
permanent segregation, no one listened. All that public leaders
could see was that persons whom they associated with poverty, crime,
insanity, prostitution, alcoholism, and general immorality were being
removed from society. As Massachusetts Governor Benjamin Butler said
in his 1883 address to the state legislature (Butler, 1883):
When the state shall have sufficiently educated every bright
child...it will be time enough to undertake the education of the
idiotic and feebleminded. I submit that this attempt to reverse
the irrevocable decree as to the survival of the fittest is not
even kindness to the poor creatures who are at this school.
...none of the pupils have become self-supporting. ...a well
cared-for idiot is a happy creature. An idiot awakened to his
condition is a miserable one.
Howe had been too successful.
A few years before Butler's address, R.L. Dugdale published his
famous study The Jukes in 1877. In his book Dugdale described what
he called the degeneracy of the Jukes family. His work stimulated
the publication of a large number of family histories. (Rafter,
1988) Although Dugdale said it was caused by the social environment,
an increasing number of these family histories, as a result of the
influence of the Eugenics Movement, ascribed the degeneracy to
hereditary factors. The most influential of all of these works
appeared in 1912 and was authored by Henry Goddard. (Goddard, 1912)
It was entitled The Kallikak Family: A Study in the Heredity of
Feeble-Mindedness.
Like Darwin's Origin of Species, Goddard's work was immediately
accepted as scientific proof of a theory. It was a theory which
ascribed almost all social ills to a particular class, the
feebleminded. Henry Goddard was, in all senses of the word, an
academic. He was well educated with a bachelor's and master's degree
from Haverford College. In between his two degrees from Haverford,
he taught for a year at the University of Southern California in
1888. For eight years he worked as a secondary school principal and
then entered Clark University to study psychology. He received his
Ph.D. from Clark in 1899 and went to teach at the Pennsylvania State
Normal School in West Chester. (Smith, 1985, p. 39) In 1906 he went
to the Training School for Feeble-Minded Boys and Girls in Vineland,
New Jersey, as director of research. As an empirically minded
scientist he wanted to do research into the causes and hopefully the
cure of one of society's major problems, as he saw it.
While traveling in Europe he met Alfred Binet and returned with
his intelligence test which was to become the cornerstone of
Goddard's research. The Binet test was to be used by Goddard and
future generations to detect mental defectives. As late as 1981, 92%
of the state vocational rehabilitation agencies in the United States
were using some form of an IQ test to diagnose mental retardation and
in 80% of the states no formal adaptive behavior assessment was used
to validate the conclusions based on the test results. (Sheldon,
1982) For example, Rhode Island (Gen. Laws, 40.1-22-3 (5)) defines a
mentally retarded person as one "with significant subaverage general
intellectual functioning two (2) standard deviations below the
normal...." Even though IQ tests give questionable results,
"experts" place great reliance upon them even today. (Snyderman &
Rothman, 1989)
After establishing (to his satisfaction) that feeblemindedness
was inherited, Goddard turned to the policy question of how to combat
the many social ills which the feebleminded brought to society. He
focused on the slums where, he said, most of the crime, poverty, and
immorality existed. As he wrote (quoted by Smith, 1985: 18):
If all of the slum districts of our cities were removed tomorrow
and model tenements built in their places, we would still have
slums in a week's time because we have these mentally defective
people who can never be taught to live otherwise than as they
have been living. Not until we take care of this class and see
to it that their lives are guided by intelligent people, shall
we remove these sores from our social life.
Of course, Goddard and others would be the "intelligent people" who
guided the "mentally defective people." How would he undertake to
remove the "sores"? Sterilization was advanced as a temporary
measure, but segregation into institutions was the final solution.
Again, as Goddard wrote (quoted by Smith, 1985, p. 19):
Such colonies [institutions] would save an annual loss in
property and life, due to the action of these irresponsible
people, sufficient to nearly, or quite, offset the expense of
the new plant. . . . Segregation through colonization seems in
the present state of our knowledge to be the ideal and perfectly
satisfactory method.
People with disabilities were to be segregated and sterilized for the
betterment of society.
Although Goddard's work was soundly criticized by some for its
abysmal methodology and its faulty genetics, it was widely praised by
others. Each criticism received a reply from either Goddard or from
a defender of Eugenics. (Meile, Shanks-Meile, & Spurgin, 1989)
Persons made their academic career by writing about this country's
moral degradation and proposals for ridding the country of this
scrouge of feeble mindedness.
But Goddard was not the only person who advocated sterilization
and segregation and who was heard. Havelock Ellis, a leader in the
struggle for human rights and especially women's rights, begins his
work The Task of Social Hygiene with attention to the problem of
feeblemindedness (to use his words). Citing the work of Goddard and
others, Ellis (1927: 35) writes:
The feeble-minded have no forethought and no self-restraint.
They are not adequately capable of resisting their own impulses
or the solicitations of others, and they are unable to
understand adequately the motives which guide the conduct of
ordinary people.
Not only are they presently a menace, wrote Ellis, but they are
"...the reservoir from which the predatory classes are recruited."
(Ellis, 1927: 38) They are "an evil that is unmitigated," a "poison
to the race," and their "very existence is itself an impediment" to
civilization. (Ellis, 1927: 43) But Ellis stopped short of
Goddard's methods of sterilization and segregation. Instead, Ellis
wanted the ideals of Eugenics to become part of the civic religion so
that civilization would work to rid itself of the "defectives" using
various public policies including statutory law.
Other persons in the Eugenics Movement were not as reticent as
Ellis to recommend Goddard's methods. Walter Fernald, a successor to
Howe, was quite blunt (Fernald, 1912: 92):
The feebleminded are a parasitic, predatory class, never capable
of self-support or of managing their own affairs. The great
majority ultimately become public charges in some form. . . .
It has been truly said that feeblemindedness is the mother of
crime, pauperism and degeneracy. . . . The most important point
is that feeblemindedness is highly hereditary. . . . No
feebleminded person should be allowed to marry or become a
parent. . . . Certain families should become extinct.
Parenthood is not for all.
The only question remaining was how to implement this policy.
Extermination was hinted, but not openly used. (Lusthaus, 1985)
Instead, segregation into institutions and sterilization was the
answer.
Goddard's influence spread. He was invited to Ellis Island to
help identify and thus exclude feebleminded immigrants. Using the
Binet test, Goddard found that 79% of all Italian immigrants, 80% of
all Hungarian immigrants, 83% of all Jewish immigrants (the only
group not listed by nationality), and 87% of all Russian immigrants
were feebleminded. (Smith, 1985: 119-20) Goddard concluded that if
the American people wanted feebleminded immigrants barred, then they
had better let Congress know. In 1924 Congress passed the
Immigration Restriction Act limiting the number of immigrants from
Southern and Eastern Europe.
During World War I army recruits were given the Binet test.
Goddard's interpretation of the results were that half the country
had the intelligence of a thirteen year old or less. His conclusions
(Smith, 1985: 128-30) were that it argued against democracy. No
society, he said, could exist with decisions being made by the
average, much less the lowest, in intelligence. About half of the
country should be disenfranchised so that the more intelligent
citizens could guide public policy makers.
Numerous other studies appeared after Goddard's which found
"defectives" to be the source of most social evils. (Smith, 1985:
chapter 9) Similar policy recommendations were put forth by these
writers. One of the more zealous followers of Eugenics was Harry
Laughlin who drew up a model sterilization law in 1922. His model
law would require the sterilization of the following "defective"
classes (Laughlin, 1922:446-47):
...(1) feebleminded; (2) insane (including the psychopathic);
(3) criminalistic (including the delinquent and wayward); (4)
epileptic; (5) inebriate (including drug habitues); (6) diseased
(including the tuberculous, the syphilitic, the leprous, and
others with chronic, infectious, and legally segregable
diseases); (7) blind (including those with seriously impaired
vision); (8) deaf (including those with seriously impaired
hearing); (9) deformed (including the crippled); and (10)
dependent (including orphans, ne'er-do-wells, the homeless,
tramps, and paupers).
It is interesting to note (Smith, 1985: 138) that Laughlin himself
was a person with epilepsy. Although married, he had no children.
By 1938 thirty three states had a sterilization law and nation
wide over 27,000 compulsory operations were performed. (Smith, 1985:
139) The California law required the sterilization not only of the
"feebleminded" and anyone with "inherited mental diseases or diseases
of a syphilitic nature," but also anyone in a state hospital who
showed evidence of "perversion or marked departures from normal
mentality." (Berns, 1953: 770) By 1951 over 19,000 persons had been
sterilized under the California law. In Virginia, in the institution
where Carrie Buck had lived, over 4,000 had been sterilized. (Smith,
1985: 150) Even though the law under which she was sterilized was
repealed in 1968 (Burgdorf & Burgdorf, 1977), the practice in
Virginia was not stopped until 1972. According to Ferster (1966),
over 63,000 persons were involuntarily sterilized in the United
States for genetically related reasons from 1921 to 1964.
Conclusion
The laws discussed earlier were based on the hard science of the
day as well as the attitudes of the public toward disabled persons.
There was no small clique which secretly promulgated the
sterilization and segregation laws which were applied to disabled
persons and which still operate today. (Berns, 1953; Haller, 1963;
Wolfensberger, 1975, 1981; Bell, 1962; Forman & Hetznecker, 1982;
Hahn, 1982, 1983; Pfeiffer, 1985, 1987) It was (and is) public
opinion as articulated by public leaders and scientific opinion as
articulated by professionals which gave these laws impetus for their
passage and for their implementation. It is this public and
scientific opinion which still supports them today. (Gochros and
Gochros, 1977; Starr, 1982; Bock, 1983; Melnick, 1985; Gould, 1985;
Lusthaus, 1985; Barnett, 1986; Mehan, Hertweck, & Meihls, 1986; Bell,
1986; Holtzman, 1989; Sanderson, 1990; Miringoff, 1991; Bosk, 1992)
Although in 1985 the Governor of Texas signed legislation which
removed from Texas laws such terms as idiot, feeble-minded, crippled,
and deformed, the terms remain in the statutes of most states. The
prejudicial attitudes still exist in public law.
Physicians and hospital administrators routinely allow newly
born disabled infants to die. They disconnect the life sustaining
apparatus of elderly persons because their quality of life is too
meager. Parents who discover that the mother is carrying a
"defective" fetus are counselled to obtain an abortion. (Miringoff,
1989, 1991) Wolfensberger (cited in Herr, 1984: 8) estimates that
some 200,000 abortions a year are for this reason.
Disabled children who are allowed to live receive second-rate or
worse education in public schools. Some disabled children,
especially if the child has AIDS, receive no education at all.
Disabled people today are fired or not hired in the first place
because of their disability. Health care is denied to persons with
disabilities. Although many municipalities supply, at taxpayers'
expense, services such as parks and airports, personal assistants who
would allow disabled persons to work and be taxpayers are curtailed
for budget reasons. Many public transit systems, paid for and
subsidized by the tax moneys of disabled persons, can not be used by
persons with mobility and sensory disabilities.
In a number of states former residents in state schools and
hospitals are reinstitutionalized because there is not sufficient
funds appropriated for community centers. Public housing is
constructed to be not accessible and tenants who behave in a peculiar
way are evicted. Citizens with hearing and vision impairments are
denied access to public documents. Other disabled persons who are
judged not able to manage daily tasks are sterilized for their own
"benefit." They are also prohibited from marrying or from parenting
their own children.
Disabled persons are also the outcasts of academia. It was
public attitudes which allowed the oppressive laws to be promulgated
and implemented, but it was academia which gave justification for
those laws. (Hahn, 1985b; Allen, 1986; Weiss, 1987; Gelb, 1989;
Meile, Shanks-Meile, & Spurgin, 1989; Nelkin & Tancredi, 1989;
Weingart, 1989; Mazumdar, 1992; Blackford, 1993) To counter this
threat to the civil rights of people with disabilities, public and
private agencies (including academia) must mount an effective drive
to educate the public in regard to the facts about disabilities and
the legal rights of disabled persons.
The passage of the Americans with Disabilities Act (P.L. 101-
336) is a step toward dealing with the discriminatory state laws and
practices. It is time that even more be done. State laws which
discriminate against a person with a disability must be struck down.
Prior decisions which allow such discrimination must be overruled.
State and federal regulations implementing laws must be revised.
Persons with disabilities are capable of managing their affairs,
of being responsible, tax paying citizens, and of being lovers and
parents. If people with disabilities have the right to exist in this
society, then they have the right to ways to make that existence
meaningful and effective. Through education and political action
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