Chapter 5: Right to Education Heard in Federal Court

LS: Ok, um, I'm going to go back and ask you about a couple of things related to PARC. The case was heard in Federal rather than state court, and it was heard, maybe unusually?, by a three judge court.

TG: Yes, it was heard in Federal Court and by a three judge court because, um, the statutes of the United States require that any assertion that the law of a state may be unconstitutional must be heard by three judges, not just one judge. It's a part of taking due care when addressing the states, but taking care to address the states. And our three judges were Tom Masterman, no, Masterson - Masterman is Pennsylvania's greatest school, finest school, it happens to be a public school in Philadelphia. The judge's name was Tom Masterson, he had been a member of the school board of Philadelphia. Uh, the next judge on board was, uh, Raymond J. Broderick, who had been Lt. Governor of Pennsylvania who during his unsuccessful campaign for Governor had twice helicoptered into Pennhurst onto the grounds, who had a long time talking relationship with the Philadelphia ARC, and whose daughter at Pennsylvania State University was dating a young man who in one of those first 21 million dollar community living arrangements worked there, and he had accompanied him and the retarded people who lived there and his daughter to basketball games at Penn State. He later went on to be the single federal judge who decided the Pennhurst cases. The third judge was Arlen Adams, a very distinguished court of appeals judge. The other two were district court, typically - trial judges. The court of appeals is the next level up before the United States Supreme Court. Arlen Adams widely regarded as among the most distinguished court of appeals judges in the Country. He had been, uh, one morning in about 1969, thereabouts, maybe it was in fact '73, after these cases had been tried and decided, uh, he had the appointment to the united States Supreme Court, uh, he had got the Majority Leader of the United State Senate, the Republican Majority Leader in those days, had called him in the morning to tell him so, and had to call him back later that afternoon to say, "I'm sorry, Arlen, it's gone to uh, to uh, Rehnquist". In any event, Arlen had been a Chancellor of the Philadelphia Bar Association, and had been by appointment o Governor Bill Scranton, Secretary of Public Welfare, of the Commonwealth of Pennsylvania, and so each one of the three judges, and it was at that time characteristic of Federal Court judges, had such an experience of life that they understood how laws and complex institutions interacted with each other, and were able to hear and see on a trial record what was going on, and were able to make judgments about what in the context of complex institutions a law should mean if it was to be real, and were able to make judgments about what orders could as a practical matter in such contexts actually achieve. The values which the Constitution or the laws of the United States had put before them and under our Constitution essentially said to judges, these are to be made real.

17:37:34:04 - 17:40:17:15 LS: Earlier on you were talking about sections of Pennsylvania's Education code that use words like uneducable, untrainable. While you were researching this case did you come across any explanations or reasons that schools might have given for not teaching children?

TG: Oh sure! The regime was all of a cut. It, It... these folks couldn't learn, they were, and all of us, doomed to very criminal and unproductive lives that would interfere extensively across society. Um, um, they were a burden to the race was a familiar phrase from those days. Um, that's, you know, it was deep-seated - nearly universal in our world, around the world prejudice. It was a set of conditions which in the late 19th century got such attention that our society resolved that people with disabilities like slaves before the, should be accepted from the fundamental American Constitutional commitment to equality. Um, it was a given, it was a given. Not many people were troubled by it for the first fifty years of this regime, right through the '60s and into the '70s. And it was in many ways the other equality movements, of blacks, of women, of poor people that characterized the 1950' and the 1960's in these United States that prepared the way, if you will, for the equality movement of people with disabilities and their families and friends.

17:40:18:00 - 17:50:00:16 LS: One of the people who was troubled by these conditions was Gunnar Dybwad...

TG: Yes

LS: in preparing the PARC case you had access to really some of the progressive minds in this movement. And I wondered if you could speak to Gunnar's contribution and perhaps others who made contributions?

TG: Its, they're...they're beyond speech! I mean Gunnar (laughs) was the heart and soul of this case. As indeed was Eleanor Elkin, as indeed was Dennis and Jim and Pat Clapp, and the families of each of the individual plaintiffs. Ah, but Gunnar, uh, he came out of Nazi Europe. He came to the United States in the very late '30s, um and there's a certain parallelism there. The ARC as an organization came out of World War II. It was founded by returned veterans, many of whom had participated in the liberation of the European death camps. And many of them came to be parents of children with retardation, and many of them came to see these institutions and saw the parallels immediately and from the beginning were alert to how unfortunate that was. Gunnar, uh, when you write a complaint, you try to write it so that any judge who reads it will, uh, before he finished reading, kind of say to himself or herself, "I think I'm probably going to have to rule with the plaintiffs". And you try to write the complaint both in its statement of the law that governs, as in this case the equal protection clauses of United States Constitution, there in the fourteenth amendment, the equal citizenship clauses of the Fourteenth Amendment, and the facts. Gunnar and I worked it through and decided we would entitle 'Ed' if you will, the opening section of the complaint which described the plaintiffs, the non-education of so and so and so and so. And so each of the individual plaintiffs - that's what it said. The non-education of... And Gunnar, attune to, as all of us were, the stereotypes abroad in the land in the 1970's, was at pains to suggest that we not say "Suzanne Moskovitz has an IQ of 58, but should say instead "Suzanne Moskovitz has been assigned an IQ of 58". And that approach to preparing the testimony as well as the writings, whether complaint or briefs or what have you - that approach pervaded. And Gunnar, who was himself a European JD before the United State ever had JDs, uh, was a most delightful inventor on that front. It was our chief concern that is to say how the popular stereotypes might affect the three judges. Indeed, these considerations were very important when the Pennsylvania Association for Retarded Children chose to pursue the education suit, uh, because if we were to go after the institutions directly, we would have tow tasks. One would be to teach the court about retardation, and the second was to teach the court about institutions. But since Brown v the Board of Education, the courts had been significantly involved with the public schools, and so half of the job was done. But they didn't know about retardation, its history or the stereotypes which accompany it, many of which might actually be theirs. And so that was our major undertaking, was to pierce the stereotype and the history, and to demonstrate that retarded children had enormous capabilities and that these laws came out of ignorance and so were suspect to begin with, constitutionally, under the Constitutions of the United States, and particularly offended the equal citizenship provisions, which carry a special force because it was our first and most fundamental commitment as a nation to equality, the commitment which Jefferson formulated, here in Philadelphia so long ago. It's worth knowing that Jefferson had a retarded sister. We did not know this until a decade or two ago, we didn't know it until after the PARC case was decided, but a wonderful historian at UCLA , she died at an early age, but she wrote a wonderful biography of Thomas Jefferson, 'Jefferson: An Intimate Biography', it was the biography that discovered Sally Hemmings and was vindicated later by the science, she, he, she concluded from his daybook , his daily diary, and the provisions he made for his sister, and for her care that his sister was retarded. And we later discovered as well, we did not know, and neither Gunnar Dybwad, nor I, nor any of us, though Gunnar, just after Brown v. The Board of Education was decided by the United States Supreme Court, holding unconstitutional the segregation of people by race, wrote in the national ARC journal of which he was then the Executive Director, 'this case has enormous implications for family and children with disability. Um, lending truth to that insight, we discovered that John W. Davis, who had argued Brown for the defendant state of South Carolina, the greatest appellate advocate of his generation, three times asked to take a Supreme Court seat - three times declined it and the hands of three different presidents. He had been the Democratic candidate for President in 1924, nominated on the 124 ballot in New York. He was not young in 1952 and 53 when he argued Brown v. The board of Education He had been Woodrow Wilson's Solicitor General and a Congressman from West Virginia. He opened his argument to the court saying, "May it please the court, if the Court should find for the Negro children here, then I am unable to see how the schools of the states could anymore segregate on the basis of sex, or age, or mental deficiency. He was a person of his time, the time of the historic misunderstandings and oppression that gave rise to these statutes. He came to maturity and was in public life at that time. And so he thought, in Brown itself, to reach to mental deficiency, his prediction was right. He lost the case, but won the prediction. He lost Brown but he won our case.