Chapter 2: Early Career and Association with PARC

16:54:42:00 - 17:09:19:14 LS: Can you describe that first meeting with Jim Wilson and Dennis Haggerty, what it was they asked you to do and I think also, I'm curious, was it their stated goal at that time to close Pennhurst?

TG: Well, that's a very nice question that I have pondered a lot, and I think there are different senses of how playing and how still developing their ultimate objectives were. I can describe the scene, right? I was a young associate, two years, maybe two and a half years into practice, having graduated from Law School in 1964, at Dillworth, Paxon and [Kaliesh?], Cohen and Dilkes, the Philadelphia Law firm of Philadelphia's great reform Mayor of the 1950's. Uh,it was a long narrow office, um, and , uh, with one window looking out on South Philadelphia, um, and uh, Jim Wilson, the President of the Pennsylvania Association of Retarded Children, as it was then called, and Dennis Haggerty who had chaired the Residential Services Committee, and, and the then recent, the most recent, because there had been many since the late '40's, when this ARC, like most in the country, was first founded, of Pennsylvania's flagship institution, which had been commissioned by the legislature in 1913 explicitly to segregate people - they didn't say people with disabilities, or people with developmental disabilities, or anything like that. It was to segregate the 'idiots', 'imbeciles', uh, and 'feeble minded' - the 'feeble-minded' word was all over the legislation, and as well the 'epileptics' and the 'palsied' , uh to segregate, explicitly, its objective the institution was created. Uh, and they had just completed their most recent, uh, investigation, of, uh, Pennhurst, and had found conditions there still nasty, brutish, and of short life,um,um,and they had resolved to borrow a leaf from the Civil Rights Movement of Black people, uh, and, uh, to think seriously about how they might use the courts to advance the life situation and the life chances of people with retardation. Um, and they came to me because I had come back to the Dillworth Office from practice for three years at Community Legal Services, the War on Poverty Legal Services Program, and had represented the Welfare Rights Organization ad Public Housing Tenants' Organizations in many undertakings in the courts and litigation and Governor's offices and in negotiations, and in the media and in the public media and so on. And it was that willingness to suspend disbelief and pursue what might be, might be gained from the Law that uh, bought them to me. Uh, Uh, Dennis I had known; I had actually succeeded him as the Chair of the Public Services Committee of the Philadelphia Bar Association a couple of years before when Community Legal Services as just being formulated. Jim was, uh, a new and now longstanding friend. Uh, and they asked if I would look at their report and advise them on what cases might uh, arise to alter the situation. The conversations over the next year, year and a half, as I explored with them the possibilities, with them and with Gunnar Dybwad, their long time advisor a man who had been the Executive Director of the National Association for Retarded Children in the 1950's and who was now a professor at Brandeis University. The Pennsylvania Association was his favorite Association because Harrisburg had a greasy spoon on the Main Street that he couldn't resist (laughs), and so he was always coming back. Um, um, as we explored the possibilities, it became very clear that the purpose of the ARC was to get rid of the institutions, um, they concluded form their experience in trying to improve them that that was not possible. Um, and later, they proved that by Frank Laski and Ned Stutman's and Carla Morgans and Nancy Zollers, and Eleanor Elkins and my hand in the Pennhurst case. But the first thing we noticed as we were talking and exploring was the data that showed that nearly everybody in the segregated and remote dreadful public institutions had gone there when they were in their early teens. Well that's the time when children as everyone with experience with children knows, begin to reach out to try to take control of their world, and shape it themselves, and most children, of course, and their families, had, schools also (laughs) as well as families, but retarded children and other disabled children did not have schools, and, um, indeed, there was nothing of much use to families in the community. The ARCs, the county chapters of the State ARCs that existed in pretty much every state in the country, um, we doing their best to create schools, but not all on the scale, um, that could serve. So, um, I, we put together a list of four or five undertakings in the court that might advance the ARCs objectives. One of them was what became too traditional for a little while, Right to Treatment suits addressed the institutional conditions, which were intended to improve the institutional conditions, that was not an approach that commended itself to the ARC given their intimate and long experience with the Pennhurst Institution and other among the institutions in Pennsylvania. There was some thought about litigation which was later brought, and successfully, to require that states pay the people who lived at the institutions who, in largest number, worked there, in the farms, in the kitchens, on the grounds and so on. That was a [Peonance?] lawsuit that came directly from the 13th Amendment to the United States Constitution, the Civil War Amendment that abolished slavery and forbad [peonage], uncompensated labor. Um,uh, and the theory of that case would have been, well if we get then paid, then they can buy their own way out of the institution, and into the community. And there came to be many such suits and they were almost all successful, and it had a couple of effects (laughs), one, it did cause a significant number of people to be paid, and t o be able to lay some money aside and undoubtedly helped ease their way into the community when it happened, but mostly it raised the price of the institutions, the cost of the institutions, and it became increasingly attractive therefore, to the states perhaps, to think about stepping out of those institutions. There was a third lawsuit that, uh, ultimately the ARC's political action took the place of. It would have been a lawsuit in state court. The Pennsylvania Legislature in the late 1960's, probably '69, '70 had appropriated 21 million dollars to fix Pennhurst up. And this lawsuit would have, in state court whether that was not irrational and hence a denial of substantive due process since spending that 21 million dollars to quote 'improve the institution' would not have any significant effect. Um, we did not bring that lawsuit as it happened, but uh, the Pennsylvania Association for Retarded Children, still, engaged the Governor and the Lieutenant Governor in conversation asking them to take that 21 million dollars and spend it instead on community services. And they engaged a brilliant former Texas institutional superintendant, longtime Delaware educator named Floyd McDowell, to create a typology of community residences, uh, for people with disabilities, uh, particularly for retarded people. And that, um, undertaking was very important when in the late 1970's the Pennhurst suit was filed to replace it directly with community services because this typology and that 21 million dollars had allowed many people to leave Pennhurst. The Pennhurst population at the time of the ARC's investigation was in the two thousands, somewhere, by the time of the late '70's trial, it was 1100 people. And the other had all gone to one or two person, uh, community living arrangements in Pennsylvania. And so the Institute on Disability, Jim Conroy and the wonderful graduate students who were around then put together what we call the Twin Study, matching every one of the 1100 people at Pennhurst with at least one and sometimes two and three people who were functional twins, a similar configuration of disabilities, a similar number of years at the institution, uh, and so on, in order to show that everyone in the institution could make it in the community given proper community services and supports. So that third piece of litigation, which was considered, had been brought home and had considerable yield for advancing the movement that PARC was eager to and did initiate. But we focused particularly on the schools because everyone in the room at the ARC had had the experience of being unwelcome in schools. And nearly everyone had had the experience of their own children or brothers and sisters being dismissed, uh, excluded, uh, there for play school and nothing more and that in a very limited number of hours, and had had the experience that when the children began to reach out and in the nature of things became troublesome to the rest of their family and the rest, and the families had no other ways to del with their newfound interest in the world, had led to so many institutionalizations. So, we settled upon addressing access to the schools, as the action of choice.

17:09:19:25 - 17:12:24:00 LS: So, despite the deficits in the education system for children with disabilities, despite the appalling conditions at Pennhurst, there were plenty of PARC members, and PARC membership was comprised entirely of families, parents..

TG: (nods) Yes.

LS: there was considerable fear about suing the Commonwealth...

TG: Oh, yes, yes.

LS: the PARC membership was much divided, as a sibling yourself, I'm sure that you could understand some concerns. I wonder if you could talk a little about what the members' concerns were?

TG: It had not been an easy decision in the ARC to consult a lawyer and resolve to use the law at all, and when the choices were posed among pieces of litigation, the edge was even more strongly on it, why? Well, litigation in the United States is frequently regarded as kind of a declaration of war on the uh, by one party on another. Uh, it's not that, it's not understood to be that, uh, in the world of commercial litigation, but in the public world it's often felt to be that. The situation of families with children with disabilities, uh, put a special point on it, because for the little solace and the few services that they gathered, they depended upon the, uh, the State Department of Education, and the School District, and upon the State Department of Public Welfare, and its instrumentalities, and uh, it was very hard for them to imagine that any good could come out of suing the very people upon whom they depended for services. And this was a wrenching decision for very many, and, uh, I remember particularly, and early, national president of the ARC, she had also been a Pennsylvania President [Eleanor ], who couldn't abide it, and thought it necessary, and so she did, resign from the ARC of Pennsylvania and nationally. It was a very difficult decision, uh, but it was taken with great care, and a great deal of courage and heart by the leadership and the state chapter, and the members of the ARC.

17: 13:03:27 - 17:13:39:03 LS: So Tom, when Jim Wilson and Dennis Haggerty approached you, did you have any reservations about becoming involved?

TG: (Shakes head) Not, not a one. I was delighted, and, and uh, very luck that they had come to me. It was just a wonderful experience to work with the people of the ARC, uh, and to have the opportunity to do together these very important things.