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David Ferleger chapter 2




chapters

Chapter 1: Background and Early Career
Chapter 2: Pennhurst Conditions and Litigation (you are here)
Chapter 3: Pennhurst Implementation
Chapter 4: Effects of Pennhurst Legislation

transcript - entire interview

David Ferleger Interview (Word)


transcript - current chapter

Chapter 2: Pennhurst Conditions and Litigation

08:11:05:02

Q. David, I wanted to ask you about the first time you visited Pennhurst and maybe some of the similarities or differences you saw between Haverford and Pennhurst.

A. Sure. I'll be happy to talk about that. Uh. Well, at Haverford State Hospital I remember pretty vividly imagining that perhaps this could be a good institution. Haverford was perhaps the newest institution for people with mental health issues in the state, uh, mostly one story buildings, beautiful hills and paths and, uh, on large tall building with, with more security but I thought this could be a great place if they provided proper treatment. Since then, of course, the State has closed Haverford, uh, and reduced tremendously the use of mental health institutions. Pennhurst is a different story. Uh, Pennhurst, uh, the buildings were very old already, uh, back to the very early 1900s and the newest building was just as oppressive as the old buildings. Uh, but what, what I remember most is, uh, noise and people who live there, uh, sitting, mostly laying on floors, uh, a lot of the rocking, so called stereotypical behavior, which I'll say something about in a moment and, uh, a very, a very sad lack of interaction between staff and clients. I mean, one didn't get a sense that the staff were there to serve the clients and it sounds bizarre to say that, uh, but unlike, let's say, a medical setting where nurses are there interacting with patients, coming in checking on patients, uh, the staff were more there as keepers rather than helpers. And it didn't seem strange exactly because it's just the way it was, uh, so a lot of noise and because bathrooms were setup with no stalls, no dividers between toilets, uh, often sort of excrement on toilets or on the floor, puddles all over the bathrooms so there was also a smell that accompanied visiting Pennhurst units.

So we had noise, smell and people who were really being house rather than receiving treatment. The, the rocking back and forth sort of typifies life in that kind of institution. That kind of rocking back and forth, uh, one of our experts, Phil Ruse, uh, explained, maybe it was Gunner Dybwad, I think it was Phil Ruse, is what you see actually today in an airport where a flight is delayed and people start fidgeting with things, uh, rocking back and forth, you know, just moving back and forth because it gets so boring with no activity that your body needs to do something. So that's one thing that you could see, something that was present that you couldn't see, uh, is why it was that very few people were talking, a few people meaning the clients. And, uh, one reason is if you talk and nobody answers you pretty quickly stop talking. Linda Glenn, one of our experts and a friend, former Head of Retardation, the term at the time in Massachusetts, she pointed out to me in another institution that a client who was walking back and forth in a large crib cage, I'm gonna call it, that that client would soon stop walking because if she couldn't get anywhere at some point she would just stop bothering to try. Uh, it was perhaps at Willowbrook or another place that it was pointed out that, uh, people in institutions who are young stop crying because the crying doesn't get them anything, it doesn't get them the attention that it normally would. So Pennhurst was, was a shock, I think, to anybody who visited for the first time.

08:17:19:01

Q. Did you think more money would help solve some of the issues that you saw at Pennhurst?

A. I didn't think more money could solve the problems that one saw at Pennhurst. The Assistant Superintendent at the time had written a book called "Dehumanization and the Institutional Career," I think was the title, uh, and the, the challenge of Pennhurst could not have been solved with simply more money. First, one would have to redo and recreate the entire place, uh, and they did that partly with the newest building, which I mentioned, the, uh, New Horizons building was the name but what they did was create a large structure in which people were equally ignored and equally not attended too.

08:18:12:16

Q. You had mentioned while you were at Haverford State Hospital you saw people, um, forced into labor, unpaid labor. Did you see anything similar at Pennhurst?

A. I don't remember seeing it although the history of Pennhurst included, like all institutions in the state, that case I mentioned about slavery, peonage, covered every institution in Pennsylvania it wasn't just Haverford State Hospital but Pennhurst's history is that as a rural institution patients were used for labor. Uh, the farms for example raised the food for clients living at Pennhurst, historically.

08:18:56:16

Q. Apart from some of the other abuses and neglect that you noted we've often heard stories about medical testing, sterilization, etcetera, um, is that something that you also knew to be true at Pennhurst?

A. Uh, I hesitated because a particular case and I can't remember if he was at Pennhurst or not and Celia Feinstein was involved in, in this, in this case so I'm not gonna try to mention the clients name but there was a client during the, I'll call it Pennhurst era who had a, an unusual behavior, maybe to get attention, maybe it was a medical problem, I don't know, of being able to extrude his rectum voluntarily, a very strange kind of behavior that could be medically dangerous and he was being experimented on with electric shock to try to stop this behavior. I'm sure Celia remembers a lot more of the detail than, then I do and I became involved in that case.

08:20:26:03

Q. In the early '70s the federal government, um, I guess under CRIPA (Civil Rights for Institutionalized Persons Act) was also investigating Pennhurst, um, can you tell me a little bit, if you know, um, what they found and what they did with those findings?

A. Well, I filed the lawsuit, uh, Halderman vs. Pennhurst, May 30th, I believe it was, 1974 and pretty soon after that the US Government intervened in the case to join the case, uh, and put their work and their talent and their, uh, their wisdom sort of next to ours and we litigated the case together. Soon after the US Government joined the case, uh, the Pennsylvania Association for Retarded Citizens, the old terminology, joined the case as well. Uh, the US Government did a tremendous amount work once they were involved in the case. They brought in a FBI agent to do photography, they paid for thousands of dollars of depositions of staff at the institution, they had, you know, some of their best lawyers involved and it was one of the most, one of the earliest cases that the Justice Department was involved in.

08:21:51:18

Q. Actually, I remember when we had spoken earlier you did mention the particular reaction the FBI photographer had to one of his visits to Pennhurst. I wonder if you could recount that for us.

A. Sure. Uh, I wish I could speak to it, it would be interesting to have a history of the reactions of many to their first visits to Pennhurst so I'll tell you about two. Uh, the FBI agent assigned to come and photograph Pennhurst, uh, was a fairly young guy, carried a gun, had a camera and after his visit during which he said very little but took a lot of amazing photographs, he told me that he had a child with disabilities and that after seeing Pennhurst he knew he would never allow his child to be in any institution. The lawyer representing the State of Pennsylvania, uh, Norman Watkins, he visited Pennhurst, of course, as part of his trial preparation and, uh, he threw up from what he saw. Uh, and later in his final statement to the court at the end of the trial I believe he began by saying to Judge Broderick we are not here to defend Pennhurst, so I think he was very affected by what he saw.

08:23:56:11

08:24:11:25

Q. David, can you tell me about, um, Winnie and Terri Halderman? Who they were and, and how it is that Terri came to live at Pennhurst?

A. Uh, sure. Uh, at the time parents could place people into institutions without any real process and, uh, Winnie Halderman, like many parents, fairly typical, uh, could no longer take care of her daughter at home and had her admitted to Pennhurst. Now, uh, that process for many parents was very difficult and I know from the literature but from what I saw how and from testimony that we had at the trial that, for parents, it was often the most difficult day of their lives the way they described it. It was very heart breaking for people who'd worked so hard to care for a child with disabilities at home to put them in a place, sometimes far away, and it was true for Winnie Halderman and her daughter. Uh, her daughter's experience, which is what Winnie Halderman came to me with, was awful at Pennhurst. Uh, how did I come to know them? This is a very important part of the story and although I wrote about it in an article (indiscernible) very sort of unknown and really significant, I think, in the whole development of this lawsuit and other lawsuits. Uh, Winnie Halderman called me one day on the phone and told me that she had a daughter at Pennhurst and wanted me to file a lawsuit against Pennhurst. Why, how did she come to call me? Uh, Robert [Spilavitz], the Assistant Superintendent at Pennhurst, she had first gone to him to say help, my daughter has broken bones, unexplained injuries, uh, is really, uh, in harm's way, what shall I do. Can you help? And he told her call David Ferleger and sue me, uh, which she did. Uh, and a good piece of the initial paper filed in court, I can like visualize it as I talk to you, is a list that went on for several pages of all the injuries that Terri Lee Halderman had suffered, broken bones, bruises, uh, other sorts of injuries.

One example is that she was found one morning, it was probably in the morning, bleeding from the mouth and the staff person at Pennhurst, uh, looked in her mouth without getting any medical or nurse consultation, decided something that the staff person saw was a tooth and started pulling on the supposed tooth but it was actually her bone in jaw that was being tugged on and that fits that, like uh, unawareness or lack of attention to the pain of the person in front of you fits with the fact that at Pennhurst the dentist did not use pain killing medicine for tooth extractions. Uh, and I've had, thankfully it's a while ago but not so much a while ago, I've had an insurance adjuster tell me in the case involving someone with developmental disabilities that people don't suffer as much as the rest of us if they're disabled. I had a deposition this year involving the death of a man at a group home in Kentucky, the other lawyers asked one of the family members, a brother, did Roland feel pain, was he able to feel pain. This, Roland was a 21 year old guy with Autism who was not verbal and even today, 2012, 2013, there are people who doubt that people can feel pain when they have significant disabilities. Uh, so Terri Lee Halderman was in terrible shape and soon after Terri Lee Halderman's mom came to me other parents came to me, a parent association leader, Allen (Indiscernible), came to me and several other people joined the case.

A. Uh, there was a 32 day trial in the Pennhurst case, altogether 32 days, and during the trial the parents of every one of the named Plaintiffs testified, of course, uh, and I met with each parent, uh, sometimes a single mom, sometimes a husband and wife, before their testimony and every parent, when we talked about, uh, closing Pennhurst, replacing it with Community Services, every parent when I met with them said that if we had adequate Community Services they would want their child out of Pennhurst then, ______ would then be able to close because it would not be necessary. And every parent of a Plaintiff, including Winnie Halderman, testified that way in court. So Winnie Halderman told the court like every other parent did that Pennhurst could close because it wouldn't be needed if their kid got Community Services, which they would want for their kid. Uh, perhaps she didn't think she would win the case, I don't know, uh, but after the decision, after the development of a lot of activity against the ruling by a pro-institutional parent group, originally a parent and staff organization, Winnie Halderman said, some place or other I'm not quite sure where she first said it, that she didn't want Pennhurst to be closed.

08:32:07:02

Q. She actually did an interview - Winnie gave an interview to the Philadelphia Inquirer and said that if Terri was sent home she would kill her so obviously her feelings were running high. Do you have any idea why she would have done that? What did she think would be so terrible about home for her daughter?

A. I don't know. She never told me.

08:32:29:11

Q. Ok. Um, you did mention that there were both pro closure and against closure parent groups at Pennhurst. Um, I wondered if you could tell us, if you remember, a little bit about some of the parents involved and, um, why there was such, why there were such differing opinions?

08:34:25:02

A. Every parent, of course, had hope for Pennhurst and hope for their children at Pennhurst. Uh, nobody consciously put someone into the institution thinking that they would be harmed or abused or mistreated. So for many parents there was a disillusionment, if that's the right word, when they saw what happened. Terri Lee Halderman suffered tremendously, her mother was shocked and upset. Uh, Allen Taub probably the turning point for him was the day he came to visit his daughter, Linda, uh, who was mobile, she could walk, she could move around, uh, and he found her tied into a wheelchair sort of thing and the staff person said we put her there so we'd know where she was, we could keep track of her. And that very much shocked and upset him. Uh, Terri Lee Halderman could talk, could say some words before she went to Pennhurst and after some time there she stopped talking, uh, so there was not the progress parents expected but there was regression instead.

So parents were disillusioned by what they saw and there were parents who, maybe having heard stories or out of their own fears or guilt, just didn't visit their children at the institution. And I have, you know, heard from families, I've, indirectly, about just not going to places like Pennhurst to visit a family member. Uh, at another institution that I monitored as a Special Master for a federal judge a sister of a guy who lived there said she would have dinner once a week with her bother, but she would drive up, the staff would bring the brother out, they'd go to dinner and she'd drop him off at the door and she never went into the institution and she was a lawyer representing a parent group that was defending that institution, uh, and she cried when she told this story to the federal judge.

So the dynamics psychologically, I'm not a psychologist, are, you know, very complex and difficult, uh, because of the guilt, because of the harm that people suffered and because of the interaction of all that with the lack of services in the community for people. Pennhurst had a waiting list, people couldn't just drive up and have somebody admitted so it was like a prize to be admitted to Pennhurst if you got to the top of that waiting list. So there were parents who formed this Parent's Association to try to help improve things at the institution and eventually decided to join this lawsuit that I filed. And then there was a Parent and Staff Association, uh, headed by Polly (Spare) and that group of staff and parents very much defended the institution but I think everyone was sincere in what they believed but there are some people who perhaps felt that things could get improved more easily and more quickly than other people who had given up.

08:38:13:15

Q. Thank you, David. Um, I wanted to, um, talk a little bit about the trial. Um, you did mention this before but just one more time, can you tell me when the trial began and how long it lasted?

08:39:00:11

A. The trial lasted 32 trial days, uh, spaced over a number of months depending on the court's schedule and, uh, I don't remember how many dozens of witnesses were presented by both sides but it was a very, very full record including paper, including photographs, including experts, parents, clients, uh, we really provided a pretty complete picture of life at Pennhurst.

Q. Can you tell me a little bit about who was in the courtroom? It would be interesting, um, to hear your memories of, of what the courtroom was like, um, what the atmosphere was like, the people who were present, etc.

08:40:09:08

A. Um, the courtroom was crowded, crowded with parents and family of residents, uh, also in the front row behind the defendants lawyers were state and county officials, at the top of the, uh, official hierarchy and on the plaintiff side we often had some of our experts or other people who supported the plaintiffs sitting right behind the lawyer's tables. The case involved not just the State of Pennsylvania which owned and run, ran Pennhurst but, uh, the five counties contiguous to Pennhurst because we had sued both the counties and the state. The counties being responsible for helping put people into the institution and needing to be responsible to help move people out. Uh, so the courtroom also had, uh, some courtroom artists cause no video was allowed in the courtroom so some of the photographs in my conference, not photographs, some of the drawings in my conference room are from the artist who drew for the TV stations. And, uh, it was a pretty active courtroom, people going back and forth, witnesses coming in and out, uh, the lawyers had small rooms outside the courtroom to confer with people and to keep a lot of records and, uh, the judge kept very good control of the courtroom. But it was, it was our home for many, many days.

08:41:55:00

Q. You mentioned the judge and of course you're, you're talking about Judge Raymond Broderick. Um, I wondered if you could tell me a little bit about him and perhaps what about the case spoke to him, do you think?

A. I love talking about Judge Broderick, uh, as you know. Raymond J. Broderick had been a Lieutenant Governor in Pennsylvania under Governor Shafer, both Republicans, both conservative and Judge Broderick was a conservative judge. He cared, as a Lieutenant Governor, about people with disabilities, he helped people get into the institution, he helped get people admitted when he was a politician to Pennhurst because there were no alternatives and he, I, probably felt proud of that at some level. He also, while he was Lieutenant Governor, had the insight, which many people even now might not have, that instead of a State Department of, uh, Retardation or Deputy Secretary which we had for so called mental retardation, that it was really an educational issue and he tried to push advocates in the government to cover developmental disability services under the Department of Education not under the Department associated with disabilities. So, we didn't know this at the time we filled, uh, but he was very concerned about the people we would be talking about during the trial. He was also one of a three judge panel in the case involving the rights of children that I had filed back, uh, months before and in that case he later, uh, dissented from a ruling in favor of the children because he felt, he said in his dissenting opinion, uh, later praised by the US Supreme Court, he felt that parents normally wanted what's best for their children and that one should respect the rights of parents to make decisions about the, uh, mental health or disability care of their children.

So he really came into the case as a conservative, not a civil rights activist, not a, somebody who, uh, was critical of parental decision making about care of their children and he changed during the trial. Uh, it was fascinating to see the change. Earlier in the trial, in an early point he questioned our main thrust which was we could replace Pennhurst with community services and he asked out loud during the trial, maybe we need at least one facility, one institution for this part of the state. And then he heard more and more testimony, more and more experts and then in the middle of the trial he said well, maybe we need, only need one institution for the entire state. Uh, and toward the end of the trial he finally said, from the bench, uh, maybe it's time to sound the death knell for institutions for the mentally retarded. Uh, at that point we knew we'd won the case. Uh, and in a similar kind of evolution, when we put into the FBI agent's photographs he ordered that little white stickers be put on the face of every one of the residents, uh, for their dignity and out of respect for them. And during the trial we didn't use the names of residents, again out of a privacy concern. Later on, after we'd won the case, and there were various appeals and other proceedings, at some point he said that nobody needs to be ashamed or embarrassed about having developmental disabilities, although he used the term retardation at the time, so that we would begin using peoples' names.

So he changed and he explained, uh, to me and, I think, other people, uh, long after the trial, something that affected his thinking, uh, which is that when one of the experts, a man from England Dr. Derrick (Lancaster-Gay), testified, uh, there was a break, Dr. (Lancaster-Gay) had to go to the bathroom, the judge offered him to come back through the judges private door to use the judges bathroom, uh, and during their little trip together, back to the judges office, Judge Broderick said to Dr. (Lancaster-Gay), do you really mean that nobody needs to be in an institution and the expert said to the judge, maybe there is somebody but the only way we would ever know is by trying it out and letting the live outside the institution. And, uh, and that was very memorable to the judge. I also know from, you know like, conversations after the trial, I also know from conversations after the trial, with the judge, he cared for his mother at home even when his mother was severely compromised in her old age, uh, and he rejected the idea of a nursing home for his own ma and he also often told the lawyers in the case that he had a neighbor who had a child with developmental disabilities who was not let out of the house and the family was so embarrassed that they kept this family member sort of our of public view and the judge really was affected and very sad by, by that. So he came with some, uh, some good baggage I would say, ready to hear the story we were telling.

08:49:05:14

A: I'll tell you a nonverbal story we told to Judge Broderick, tell you very briefly. People at Pennhurst were often held in restraints, mechanical restraints, uh, leather cuffs holding their hands together, sort of like putting your hands in like a, uh, thing to keep you from being cold but it was made out of leather and your hands were tied into it, people were tied down to beds, people were tied to chairs, it was a whole litany of mechanical restraints people were tied into. And Pennhurst kept records, there were restraint forms filled out for every one of those instances, hundreds and hundreds and hundreds. Uh, I had them all because they were produced for the trial so during the entire trial I kept in front of our plaintiffs table eight boxes all labeled restraint forms, uh, eight banker document boxes, two rows of four one on top of the other and they were empty. I mean, I had decided I wasn't going to bring to court, back and forth, all these thousands of sheets of paper but I kept them there as a reminder to the judge about what the experience was of people who lived at Pennhurst. So it was my visual aid for the trial.

08:50:41:06

Q: So I'm quite sure that the State knew certain things such as the fact that Pennhurst was unsafe, um, that it was ultimately more costly to house people in institutions perhaps than in the community. Um, why do you think it fought so hard to, to keep Pennhurst open?

A: I think, as has happened in other cases around the country, that the State's position was more about the law and trying to achieve recognition of some state sovereignty type principal like Governor Wallace in the South decades before standing in the door of, uh, the college keeping out a black student. So it was more about state sovereignty than about the conditions of the institution, I think that's one important motivation that the State had and they kept arguing that for years after Judge Broderick's ruling. And the other is more, call it, acceptable reason, at least to me, which is that to make the change needed the, uh, experts who worked for the State needed a court order, they needed to be able to use the Judge as the bad guy and say we now need more money, more services, more opportunities to move people to the community.

08:52:16:18

Q. Did the concern of unions and the idea of, of loss and transfer of jobs from institutions in the community also play a role, do you think, in the State's sort of, um, need to keep the institutions open?

A. Yeah. The unions were and probably still are pretty powerful, uh, Pennsylvania and other states have dealt with that issue in terms of what kind of a auspices were created for community developments often reserving some jobs for union employees. Uh, but I think keeping employees, uh, sort of there and happy were, was one of the factors. I don't think it was that large a factor though.

08:53:05:25

Q. Um, the evidence and testimony that the State's used, did they share their records and their, um, reports willing with you and your, your partners?

A. Well, there's some records that the law requires be exchanged as part of trial preparation. Uh, there were a couple things that came up that turned out to be pretty important in the presentation of our case. In one instance I learned from an employee that records were being destroyed at Pennhurst that were relevant to the case and I ended up, in order to get a signed affidavit to present to the judge, meeting this employee out the expressway at some parking lot somewhere or other between Philadelphia and Pennhurst, uh, because we needed to get an order, which we did, that no records shall be destroyed at the institution. Uh, and that was pretty upsetting to learn that that could even happen.

08:54:30:04

The plaintiffs, our side presented many experts. It came time for the State, which we knew had hired a team of three experts to present their expert report and testimony. Uh, in a big surprise we were told in court that they were not going to present those experts. We asked for their report and the State said there was one copy, it was locked in a safe in the Attorney General's office and they wouldn't produce it. Now we felt we had a right under the rules to see that report even if the experts wouldn't testify and Judge Broderick, a very wise judge, uh, he said okay, State, you can keep the report quiet and locked up but you have the plaintiffs call as witnesses your experts, uh, so we did. And those experts, uh, I forget if we had one or all three testify or one for the three, uh, Valadia Walker, who'd been at Temple University, was one of the experts. Uh, the three experts hired by the State to defend Pennhurst concluded after their study that Pennhurst should be closed, that there was no legitimate use for the institution and that it should be replace. Uh, and now we knew why the State wanted their report kept secret but I think that had a big effect on the judge, obviously. Um, Judge Broderick ruled on the case ...

08:56:36:16

Q. he also required that each resident have an individual habilitation plan, um, and I'm curious about that, if that had never been done before and what he was looking for with that kind of plan in an effort to support people in the community?

A. Pennhurst was litigated around the same time as the Willowbrook case in New York and the Willowbrook orders, uh, like orders in, uh, Alabama, in the case called Wyatt, uh, in Alabama had a lot of conditions around, uh, what went on in the facility. For example there were, in the Wyatt Standards, rules about how many square feet you needed per resident, what the water temperature should be coming out of a spigot and the novelty, I'll call it, that's too mundane a word, the novelty of Judge Broderick's order was that for the first time in the country he held that folks have a constitutional right to live in the community and to not be confined in an institution. There was no Americans with Disabilities Act, there was no, uh, Olmstead decision from the Supreme Court, he based that on the constitution. So in order to create the kind of movement and, and quality service required by his opinion there was a need, of course, to look at everyone individually and to figure out what they needed and what kind of vision one might have of a life of folks in the community. Uh, Judge Broderick loved to say that his basic decisions there had never been and were never to be overturned by any higher court. With all the appeals we had to the Court of Appeals, back again to the Supreme Court, back again, back to the Supreme Court, uh, no court ever questioned or overruled his basic decision about the constitutional rights of the residents.

08:58:55:03

Q. You just mentioned the fact that the case went back and forth in the Supreme Court, I know that's very complicated and lengthy process but what should we know about that. Why was it going back and forth so much?

A. I'm happy to tell you - not very interesting story but I'll tell you.

Q. That's okay.

A. Uh, the, Judge Broderick made his constitutional decision, we also claim that there was a state law of right to, uh, the kind of services we wanted. The Court of Appeals made a decision about the state law rights, said that should've been reached also or instead of, uh, the case went to the US Supreme Court, uh, which ruled that, uh, a federal court can't enforce state law rights in a federal case against the state, overturned 200 years of American in a five to four decision, that was the second decision of the Supreme Court. The earlier decision was about a federal law, the Developmentally Disabled Assistance and Bill of Rights Act and in that very, uh, unusual decision the US Supreme Court held, with Chief Justice Rehnquist writing, that even though there was a law, federal law, called Developmentally Disabled Assistance and Bill of Rights Act and even though there was a section of the law called Bill of Rights and even though there was a section of that section that talked about the rights of people with disabilities that that law could not be enforced and that it did not create any rights. In the Lawyer View article I wrote about that decision I had one of those old sentence diagrams that you do in like grade school analyzing the structure of the sentences that Chief Justice Rehnquist was interpreting. So, eventually, uh, and this is really the important piece, eventually we got back, again, to the Court of Appeals, after losing twice in the Supreme Court, after three arguments in the Supreme Court, we're back in the Court of Appeals and the Court of Appeals probably is tired of hearing this case over and over, as we were getting, the Court of Appeals appointed one, uh, member of the court, a retired member, an inactive judge as I recall, Judge Max Rosenn, to try to, uh, mediate and come up with a settlement of the Pennhurst case.

09:01:57:25

The Court of Appeals appointed Judge Max Rosenn of Scranton to be a mediator, to try to help the parties settle the case with no further, uh, appeals. Max Rosenn had been Secretary of the Department of Public Welfare in Pennsylvania so he knew what he was doing, he knew what we were doing and with help, uh, we worked out a settlement of Pennhurst that called for the closure of the institution and its replacement with community services.

A. As I remember it, it was before the case went to the Supreme Court for the first time, now after Judge Broderick's decision until the final settlement it took many years, maybe seven years at least, we decided to give the State and opportunity to end the case and close the institution as we wished and to somehow figure out what kind of deal we could reach that would protect the people at the institution, help them leave and fulfill the needs that both sides had cause we knew the higher state officials wanted an expansion of Community Services. Uh, so we met with Jennifer Howse, then Deputy Secretary for the department, and she was willing to close Pennhurst but wouldn't say so publically, she was not willing to agree to that out loud or on paper. She said it in the elevator, uh, as we went up to have these discussions, uh, she was willing to say she would reduce the institution to perhaps a hundred residents, uh, from many hundreds of residents, uh, and we, the lawyers in the case, myself, um, Tom Gilhool, Frank Laski, uh, you know other lawyers, uh, we were stubborn. I mean we wanted the principle that the institution should close, we wanted to uphold Judge Broderick's expansive ruling and we refused her, her offer. It was, looking back, a pretty good deal she was offering because no state would keep the institution, any institution open for such a small number of people. So that decision, as I look back on it, was one which, to be fair to the truth, resulted in hundreds of people remaining at Pennhurst for years longer than they probably otherwise would have.

09:05:03:04

Q. Teach you anything about compromise, do you feel?

A. Well in retrospect, you know, we probably should have taken that deal, uh, because it would've helped people to fulfill their lives much more quickly than ended up being the case.


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