Chapter 3: Right to Education Case

17:13:39:15 - 17:28:10:01 LS: So, the Right to Education Case, the PARC Class was a class action suit. Can you tell us for people who may not be as familiar with the case, who the class members were and how they were selected?

TG: Well, they were, it was actually a class action suit in two ways - there were two classes in the case, one of which is quite familiar, and that is the class of plaintiffs. The individual, uh, families who sued on behalf of their child, uh,uh, sued also on behalf of all children in Pennsylvania who were similarly situated, that is to say children with retardation who had been excluded from the schools, school district by school district, among the couple of hundred that there were then, and under state law. So that was one class, the class of plaintiffs. The point of doing that is because at the end of a class action, or sometimes along the way, if you are successful, the defendants have an obligation to reach out to all the members of the class and inform them of the new law that has been found by the Court and the orders which are intended to benefit their children so that nobody gets lost. Uh, then some very special things happened at the hands of the orders of the court and the ARC's actions to be sure that no one was overlooked or lost. It was also uh, framed as a defendant class action. The kids and their families were the class of plaintiffs but the class of defendants were, um, forgive me, seven or eight school districts, the school districts of the families, whom we sued. And of course we sued the Commonwealth of Pennsylvania and the Education Department and all of those who were responsible on a statewide basis for the administration of the laws. Um, but we sued the class of all school districts in Pennsylvania as represented by these eight individual school district defendants. And the reason for that, will immediately appear to everyone who is listening. It's one thing to conduct a piece of litigation - its one thing even to win the litigation- but none of it avails anything unless the orders of the court are carried out. And one of the benefits of a defendant class action is that you thereby have in front of the court every school district in Pennsylvania. This resulted after the initial orders of the court in a way that is customary in class actions of notice to the individual plaintiffs, the families all over the State, but also notice to every school district of the initial preliminary orders, and, and, they were all informed, defendants and plaintiffs alike of their opportunity to come before the court and object, if they wished to. (17:17:23:22) Several school districts did and that, in fact, was very helpful to the ultimate outcomes in the real world. Because several sets of school districts did come in with counsel and presented witnesses and made their objections, and we had the opportunity to talk with the three (17:17:48:04) judges, this was a federal, three-judge court, about it, and that conversation resulted in another opinion from the court. And all of this happened very much in the public light, and those conversations were spread fairly far by the media of those days, uh, and having those conversations, and each school district having had the opportunity to object, sort of bound them I more tightly, to actually doing it, uh, or being persuaded and, uh, to do it after the orders came. Uh, so it was a class action, it was a class action in both ways, but the subject matter, unless you want to go somewhere else, of the case, was really a set of laws of the state of Pennsylvania from the earlier part of the twentieth century. Uh, Pennsylvania, like every, without exception, every state in the United States had, at the turn-in to the twentieth century, driven by the hysteria, its - the word fits- at, or what was then the largest immigration to the United States. It was the immigration of Italians and Eastern Europeans and Jews - the Irish had come earlier- and the immigration of the 1990's and the 2000's is still a bit larger, but that was the largest immigration ever, and it was met, as all immigrations have been in the United States (laughs ironically), uh, hardly anyone was welcome, we managed - it's the greatness of the country that we managed to overcome that anguish and, and, become a society of enormous strength because of our diversity. But that immigration and that alarm arose at the time when some false social scientists - maybe they considered themselves biological scientists - invented something, really invented something I regret to say, in the United States - eugenics, that is to say the sense that all of human behavior and human capabilities was formed by inheritance, genes, and all the rest. And this had, it was the eugenics movement that had given rise to these institutions, that every state but Nevada had, and Nevada borrowed California's , uh had created to segregate these 'defective' and criminal alarming people, the large number of them children of immigrants who were the 'feeble minded'. Every state in the country had a pamphlet or a couple of pamphlets because at the turn in to the twentieth century, we're still, still a lot like Thomas Paine, and conducted a lot of our public discussion before radio, before television, in pamphlets. And the Pennsylvania pamphlet in 1912 was 'The Menace of the Feeble Minded in Pennsylvania'. Uh, the pamphlet in Ohio in 1915 was 'The Feeble Minded: The Hub to our Wheel of Vice'. And so it went all around the country and the first product were the laws establishing the institutions to segregate. But momentarily, in every state, uh, the institutional segregation laws, um were followed by laws which, uh, required school districts to identify and exclude the 'uneducable' and the 'unattainable', those who had mental age less than five, and those of you who still know how to calculate those things will understand that a very many, great many children had mental ages of less than five, particularly when they were five and first applied to schools, uh, and surprisingly enough in the middle of that biological silliness, there was actually some sense, uh I say this because the concept of mental age is still very much used against people with developmental disabilities, but it's used in a way that is a thorough misrepresentation of it, the people, including the people whom by their own misguided lights were responsible for a lot of these laws, uh, it was understood that, that mental age did not mean that you would forever be five, if that was your mental age, it meant that you learned at the rate of five year olds, very different, very different point. Of course, all of us who have known five year olds very well know what curious people they are (laughs) and, and how quickly they learn when they are focused and supported. So Pennsylvania had a series of statutes which excluded kids form the schools. They did require that the Superintendants of Schools everywhere, as they were excluding the children, should see to it that they were brought to the attention of the institutions so that they could be segregated, and they did provide that after they were taken from their families to the institutions that families should not, and were prohibited from visiting for the first six months, sometimes a year, sometimes two years depending upon the state, so that the ties could be broken. Thurgood Marshall who was the lawyer for the plaintiffs in Brown v. The Board of Education, uh, uh, and was a Supreme Court Justice from 1965 until the late '80's into the '90s, in a very important case from Texas, the city of Clivern Texas v. the Clevern Living Center, had the occasion, informed, I'm happy to say by a brief that was done at the Public Interest Law Center of Philadelphia, by all of my colleagues there, and myself, to, uh, over three pages write for all of history, and for the knowledge of those who were not alive at the turn in to the twentieth century or in the time when these developments were so reshaping the world for families and disabled people. Uh, he memorialized in ways which I hope each of you will read, that time (reaches down for paper). Let me just read a little bit from his opinion. Um, he wrote, "the mentally retarded have been subject to a lengthy and tragic history of segregation and discrimination that can only be called grotesque, fueled by the rising tide of social Darwinism, the 'science'of eugenics, the xenophobia of those years. Leading medical authorities and others began to portray the feebleminded as a menace to society and civilization responsible in large degree for many if not all of our social problems. A regime of state mandated segregation and degradation soon emerged that in its virulent and bigotry rivaled, and indeed paralleled the worst excesses of Jim Crow. Massive custodial institutions were built to warehouse the retarded for life. The aim was to halt reproduction of the retarded and nearly extinguish their race. Retarded children were categorically excluded from public schools based on the false stereotype that all were uneducable, and on the purported need to protect non-retarded children from them. State laws deemed the retarded unfit for citizenship". Well, it is this regime which the disability movement, the parents movement in the disability movement largely in the first days, and then increasingly the movement of people with disabilities themselves, it is this regime of state mandated segregation and degradation which starting with the PARC case, starting with the extraordinary courage of the Pennsylvania Association for Retarded Children, challenged, and overturned.