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The Evolution of Disability Rights Litigation (and some stories)

David Ferleger, Esq.

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The Arc of Disability Rights Litigation

There is an arc which we only see in retrospect, how disability rights we look at today have developed over time and I think it's worth looking at. The last century, just to start, the last couple hundred years was really the world in the beginning of the social reformers, Dorothea Dix and other social workers, who saw the plight of people with disabilities was part of the overall effort to try to help society move toward a level of humane treatment of people with disabilities.

In the '50s and '60s, the civil rights movement in the United States began to spawn other movements, prisoners' rights, women's rights and a number of communities and activists, former mental patient groups began to organize, to get legislation enacted and to bring public attention to what happens to people in institutions as they leave institutions, and to try to get more of a... an appreciation of the dignity of people with disabilities. In the mental health area, it was people doing things for themselves, mostly. In the developmental disabilities or intellectual disabilities area, it was the parents who began to organize the Association for Retarded Citizens and other groups began to push for protection of people with intellectual disabilities. That kind of community organizing phase, I'll call it, began to lead, and it was an eventual incremental development to interest, in the way I put it, is first, how people get into institutions, what happens when they're in institutions and then whether they should be in institutions at all.

So, the early legislation and litigation was about commitment procedures. Do you have a right to an attorney? Do you have a right to a hearing before being involuntarily committed? Do you have a right to put on your own evidence? Can one or two doctors sign people into an institution? So, there was a lot of litigation around those kinds of questions.

Among the questions that came up, were questions about children. When can parents sign a child into an institution? And, I brought one of the early cases of that to the Supreme Court a couple times. Bartley vs. Cremens was one incarnation. The other one was Institutionalized Juveniles vs. Secretary of Public Welfare. And there the question was, what kind of hearing, if any, does a child have before being committed? The Supreme Court there decided that a child does not have a right to a full hearing but a right to a some independent review of a need for commitment. So, that phase of institutional commitment procedures bled into concerns of what happens when people are in the institution.

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