LOST DISABILITY HISTORY of the
‘NEW FEDERALISM’
on research by
K A R E N M . TA N I L’07, G R ’11 Seaman Family University Professor
In “The Pennhurst Doctrines and the Lost Disability History of the ‘New Federalism,’” published in the California Law Review, Tani reveals the complicated and intertwined history of disability law and contemporary federalism doctrine. At the center of the article is a famous lawsuit over the conditions at Pennsylvania’s Pennhurst State School and Hospital (Pennhurst), an institution where individuals with disabilities endured abuse, neglect, and, according to lawyers, an alienation of their legal rights. Tani notes that although the Pennhurst litigation is well known among people interested in disability rights deinstitutionalization, there is less appreciation for the case’s immense effects on the balance of power between the U.S. Congress and the states. Similarly, although many legal scholars have heard of the Supreme Court’s pronouncements about the Pennhurst litigation, few have appreciated the significance of disability to the important legal doctrines that the case enabled the Court to develop. In Tani’s words, the effect of Pennhurst and its progeny was to create a role for federal courts “that was at once more assertive and more modest” than their previous role. “The decisions impelled courts to become more assertive in their oversight of Congress, which critics perceived as making extravagant equality guarantees without pausing to count the costs,” but more modest in their dealings with state governments, “particularly when it came to enforcing rights in ways that spent and allocated state resources.” The Road to Halderman v. Pennhurst State School & Hospital Pennhurst was founded about 30 miles outside of Philadelphia in 1908. Over the course of several decades, as Pennhurst’s resident population grew, it became apparent that all was not well inside the institution. Suspicious deaths sometimes made it into the local newspaper, as did accounts of serious injuries and illnesses. As better-off families began to have more relatives in Pennhurst and similar institutions, advocacy networks grew, but conditions for __ 34
residents seemed to only get worse. By the mid-1960s, Pennhurst was often the subject of local newspaper stories, which detailed overcrowding, understaffing, mistreatment of residents, and “living nightmare” conditions. Advocacy groups such as the Pennsylvania Association for Retarded Children (PARC) eventually began to strategize as to how to bring about state and federal intervention. In 1972, with assistance from the well-known public interest attorney Thomas Gilhool, PARC secured a landmark settlement guaranteeing the rights of children with disabilities in Pennsylvania to equal access to education. This provided a partial escape route for children languishing in Pennhurst and similar institutions. But the lawsuit that is most associated with the Pennhurst name began two years later, when attorney David Ferleger filed a complaint in federal court on behalf of Pennhurst resident Terri Lee Halderman and others. Shocking in its detail, the complaint alleged a litany of abusive and neglectful practices, resulting in not only horrific injuries but also lost opportunities for rehabilitation and education. PARC joined the lawsuit shortly thereafter, and in 1976, Ferleger and Gilhool filed an Amended Complaint asking the court to order Pennhurst’s closure. The resulting trial court decision is still remembered as a great victory for disability rights. The Honorable Raymond Broderick held that the plaintiffs’ constitutional and statutory rights had been violated by the inhumane conditions at Pennhurst. Further, he found that the plaintiffs’ “right to habilitation” simply could not be met “in an institution such as Pennhurst.” He ordered the state to “provide suitable community living arrangements” for the approximately 1,200 persons residing at Pennhurst, as well for as all those on the waiting list. Pennhurst Meets the “New Federalism” On appeal, the Pennhurst case took on new meanings. Unusually, this litigation made it to the Supreme Court twice, in 1981 and 1984, and on both occasions produced important pronouncements about the allocation of power in a federalist system.