The Burger Court and the Rights of the Handicapped: The Case for Starting All Over Again

Abstract

A S SOCIAL movements go, the disability movement is young.' It is rarely possible to date the beginning of any movement with precision, but if had to choose a year for this one, it could hardly be earlier than 1970, the year of a widely publicized job discrimination suit;2 or, perhaps better, 1972, the year in which Congress passed the first version of a rehabilitation and antidiscrimination law.3 These first ten years have borne out Alexis de Tocqueville's statement that There is hardly a political question in the United States which does not sooner or later turn into a judicial one (Tocqueville, 1969: 270). In this case, it happened sooner rather than later. Some of the first victories of the 1970s were won in court, in decisions which not only were favorable in themselves to the disability movement, but which gave impetus to the drive for legislation. In 1972, federal judges in Philadephia and Washington, D.C., ruled that excluding handicapped children from public schools was unconstitutional (Pennsylvania Association for Retarded Children v. Pennsylvania, 343 F. Supp. 279; Mills v. Board of Education, 348 F. Supp. 866). The same year, a federal court in Wyatt v. Stickney propounded a bill of rights for patients in Alabama's mental institutions (344 F. Supp. 373; 325 F. Supp. 781 [1971]). The Supreme Court ruled three years later in O'Connor v. Donaldson that a non-dangerous person could not be held in an institution against his will and without treatment (422 U.S. 563 [1975]). A 1976 district court decision ordered a school board to give a blind applicant for a teaching position an opportunity to prove her fitness for the job. (Gurmankin v. Costanzo, 411 F. Supp. 982 [E.D. Pa.]).