Correspondence from Gilhool to Chambers; City of Cleburne, TX v. Cleburne Living Center Motion and Brief Amici Curiae

    THOMAS K. GiLHOOL 
CHVBF COUNSEL

JEROME SALTER 
MICHAEL CHURCHILL 
FRANK J ,  LASK!

DAVID <3. DAVIS 
ADMINISTRATIVE OFFICER

STANLEY R. WOLFE EDWIN D. WOLF
CHAIRMAN OF THE BOARD EXECUTIVE DIRECTOR

1974-1976

February 4, 1985

Julius Chambers, Esquire 
NAACP Legal Defense Fund 
99 Hudson Street, 16th Fl.
New York, NY 10013
Dear Julius:

I enclose the brief we filed amicus on behalf of 

the retardation organizations. It is, as you will see, 

primarily an historical essay. When you have had an oppor­
tunity to read it I'd very much like, for the future, to 

think some things through together.

Best wishes.
Very truly yours,

/*VvL

THOMAS K. GILHOOL

TKG:ecr 
enclosure

AFFILIATED WITH LAWYERS COMMITTEE FOR CIVIL RIGHTS UNDER LAW



No. 84-468

IN T H E

SUPREME COURT OF THE UNITED STATES
October Term, 1984

City oe^Cl e b u r n e , T exa s, et al.
Petitioners,

v.
C lebu rn e  L iving C e n t e r , et a l.,

R esp on d en ts .

ON W RIT O F C ERTIO RA RI TO TH E U N ITED  
STATES COURT O F APPEALS FO R  TH E 

F IF T H  C IRC U IT

MOTION AND B R IE F  AMICI CCRIAE OF
Association  fo r  Reta rd ed  C itizen s/USA 
Association  fo r  Reta rd ed  C itizen s/Texas 
National D own Syn drom e Con gress 
Pe o p l e  F irst  International and Pe o p l e  F irst  

Organizations o f  Iowa, Louisiana , Michigan , 
Nebra ska , Oregon  and Washington 

Un ited  To g eth er  
S.T .A .N .D . T o g eth er  
Speaking  fo r  Ou rselv es
Co n su m er  Advocacy Board o f  th e  Massachusetts
Association  fo r  Reta rd ed  C itizens
T exas Advocates
W iscon sin  Advocates
Capitol Pe o pl e  F irst
Se l f -Advocates o f  Central Ne w  York

Thomas K. Gilhool*
Frank J. Laski 
Michael Churchill 
Judith A. Gran 
Timothy M. Cook
Pu blic  In terest  Law Cen ter  

o f  Ph ila delph ia  
1315 Walnut St. Rm. 1632 
Philadelphia, Pa. 19107 
(215) 735-7200

* C ounsel o f  R ecord  C ounsel f o r  Am ici C u riae
PACKARD PRESS / LEGAL DIVISION, 10th & SPRING GARDEN STREETS, PHILA.,  PA. 13123 (21 5)  23 6-2 000



MOTION FOR LEAVE TO FILE  B R IEF AMICI 
CURIAE FOR THE ASSOCIATION FOR 

RETARDED CITIZENS/USA, et al.

Amici respectfully move this Court for an order grant­
ing leave to file the attached brief amici curiae on behalf of 
respondents. Amici are organizations of retarded people and 
their families and, as such, have a substantial stake in the 
outcome of this case, i .e ., whether they are to be accorded 
the fullest reach of the Equal Protection Clause. Respond­
ents have consented to the filing of this brief. Amici have 
requested that petitioners consent, but they have refused 
to do so.

1. The Association for Retarded Citizens of the United 
States (ARC/USA) is a national voluntary organization of 
parents, families and friends of retarded people, as well as 
of people who are retarded, directed and led since its found­
ing in 1950 by active volunteer parents. The Association is 
organized into 1,360 local and 48 state-wide chapters, in 
addition to chapters in United States territories and mili­
tary installations abroad. The ARC/USA is the national vol­
untary organization devoted solely to the interests of all 
adults and children who are retarded whatever their race, 
creed, national origin, residence, etiology or severity of 
handicap. ARC/USA, which in 1974 changed its name from 
“Retarded Children” to “Retarded Citizens,” was created 
and exists today “to promote the general welfare of the m en­
tally retarded of all ages everywhere, to encourage the for­
mation of [state and local] associations for Retarded C iti­
zens, [and] to advise and aid parents in the solution of their 
problems. . . . ” (ARC/USA Constitution, § 5). A leading 
problem that led to the formation of the ARC/USA was to 
overcome the historical discrimination and prejudice against 
people who are retarded and to secure a rightful place for 
them in society. Since its inception, the ARC/USA has vig­
orously challenged attitudes and public policy, based on 
false stereotypes, that have authorized or encouraged seg­
regation and abuse of children and adults who are retarded,

1



2

in virtually all areas of life. It is the experience ol ARC/USA 
that retarded persons have the capability to enjoy and con­
tribute to the life of the community. To achieve the goal of 
community living, the ARC/USA has adopted the following 
official position:

"Persons with mental retardation of all functioning lev­
els . . . should have access to community residence and 
services.

"Residential homes should be like others in the neigh­
borhood in terms of size and appearance. They should 
be dispersed throughout the community, rather than 
congregated in one neighborhood.

In the experience of the Association, the segregation of per­
sons who are retarded continues to be widely practiced and 
vigorously defended. The continuing work of the ARC/USA 
is based upon the reality that, as its official position states: 
"The fundamental rights of people who are mentally re­
tarded are not yet fully acknowledged or secured, despite 
the vigorous efforts of advocates to help them achieve the 
same basic human and constitutional rights as other human 
beings.”

2. The Association for Retarded Citizens of Texas 
(ARC/Texas) is composed of fifty-five local chapters through­
out the state. A non-profit association founded by parents in 
1950, like ARC/USA, ARC/Texas has among its official pur­
poses “[t]o insure that persons with retardation are ac­
cepted by the public as fully participating members of so­
ciety and live in conditions most conducive to their opti­
mum developm ent.”
The opinions expressed in the record before the City Coun­
cil of Cleburne and its excluding actions, in the experience 
of ARC/Texas, arise commonly across Texas. Combatting 
these exclusionary actions so that retarded people may have 
a decent and respected place in Texas’ communities, con­
stitutes the most substantial and pressing part of the work 
of ARC/Texas.



3

3. The National Down Syndrome Congress is a voluntary 
organization of parents and families of people with Down 
syndrome. Established as a national organization in 1974, 
the National Down Syndrome Congress is a network of more 
than 600 parent groups serving the needs of families in their 
local communities. Among its official purposes are “[t]o ad­
vocate for the realization of the full spectrum of human and 
civil rights for persons with Down syndrome” and“[t]o ad­
dress the social policies and conditions that limit the full 
growth and potential of children and adults with Down 
syndrome.”
People with Down syndrome evoke a quintessential ster­
eotype of retardation, provoking and sustaining a sense of 
their differentness and danger. The label “mongoloid” was 
a response to their “facial” difference and supported their 
official exclusion from common society, which denied their 
humanity and the reality of their capabilities. C om p are  the 
view that the “mongoloid” is an atavistic regression to a 
more backward race, expressed in John Langdon Down, 
O bservation s on an E thn ic C lassification  o f  Id iots, LON­
DON Hospita l  C lin ical  L e c tu r es  and Repo rts 209 
(1866), an d  in F. G. CROOKSHANK, T h e  MONGOL IN OUR 
MIDST (1924) —  a view whose legacy in public opinion and 
official action amicus seeks to overcome —  ivith, e .g ., S. M. 
Pe u s c h e l , D own Sy n d r o m e : Grow ing  and L earn­
ing (1978), a view amicus seeks to bring to popular and 
official understanding and action.

4. People First International; United Together;
5 . T .A .N .D . Together; Speaking for Ourselves; People First 
of Iowa, Louisiana, Michigan, Nebraska, Oregon and Wash­
ington; the Consumer Advisory Board of the Massachusetts 
Association for Retarded Citizens; Texas Advocates; W is­
consin Advocates; Capitol People First; and Self-Advocates 
of Central New York are each established and led by per­
sons with retardation. All share a common purpose: to sup­
port their m em bers’ right to speak for themselves rather



4

than let others speak for them, to make their own decisions, 
and to know and exercise their rights as citizens, including 
the right to live in the community.

People First International was formed in 1974 by former 
residents of Fairview Training Center who met in Salem, 
Oregon to discuss forming their own organization. Conver­
sation turned to the selection of a name and someone said, 
“Why not call ourselves People First, because we want to 
be known as people before we’re known for our handicap.” 
People First International provides support services and 
advocacy for persons who are retarded and are moving from 
institutions into the community. People First International 
members serve on Boards of Directors of other national and 
state-wide organizations concerned with developmental dis­
abilities, and have testified at a variety of state and local 
legislative bodies concerning zoning, sterilization, guardi­
anship and other issues.

United Together, a nationwide network of disabled self­
advocates, was formed in 1980 at a national conference in 
Kansas City, Missouri. At that meeting, people with retar­
dation met and talked about the issues they  considered im­
portant: housing, transportation, employment, health care 
and basic human rights. A group of representatives was 
elected, one from each of the ten federal regions. Since 
then the group has organized a national conference that was 
totally planned and run by people with disabilities and has 
conducted workshops for professionals, parents, and gov­
ernm ent agencies.

People First of Iowa, Louisiana, Michigan, Nebraska, 
Oregon and Washington are each state-wide organizations, 
formed in 1982, 1983, 1980, 1978, 1983 and 1974, respec­
tively. S .T .A .N .D . together of Maryland, Speaking for Our­
selves in Pennsylvania, the Consumer Advisory Board of 
the Massachusetts Association for Retarded Citizens, Texas 
Advocates, and Wisconsin Advocates, are each state-wide 
self-advocacy organizations. Capitol People First is a self- 
advocacy organization for persons with retardation in cen­
tral California. Self-Advocates of Central New York was



5

formed in 1984; most members are former residents of New 
York State institutions for retarded people now living in the 
community.

All these organizations have members who have lived 
in institutions and now live in group homes in the commu­
nity, and members who still live in institutions but wish to 
live in the community. Many have suffered from efforts to 
exclude their group homes from neighborhoods. Policy 
statements by these organizations on discriminatory zoning 
legislation and statements by their members on the impor­
tance of the right to live in the community are contained in 
Appendix C to the attached brief.
5. The ordinance at issue in this case is part of a pattern of 
historic, state-imposed segregation. Overcoming this pat­
tern of discrimination is amici’s common goal. Amici are 
intimately familiar with the prejudice at issue in this case, 
and provide what they believe to be an importan t and unique 
perspective not elsewhere presented, that strict and search­
ing scrutiny should be applied to the ordinance at issue in 
this case.

For these reasons, this Motion for Leave to File a Brief 
as Amici Curiae should be granted.

Respectfully submitted,

Thomas K. Gilhool*
Frank J. Laski 
Michael Churchill 
Judith A. Gran 
Timothy M. Cook

PU BLIC  IN TER EST  LAW C EN TER  
O F PH ILA D ELPH IA  

1315 Walnut Street, Suite 1632 
Philadelphia, PA 19107 
(215) 735-7200

February, 1985 C ounsel f o r  Am ici C uriae

Counsel o f record.



TABLE OF CONTENTS

Page

IN T E R E ST  O F A M IC I ........................................................ 1

SUMMARY O F A R G U M E N T .......................................... 2

A R G U M E N T ............................................................................. 3

I. TH E C L EBU R N E ORDINANCE IS PART O F 
A PATTERN O F STA TE-IM PO SED  L IF E ­
LONG SEG REG A TIO N  O F R ETA RD ED  
P E O P L E , THAT IN ANIMUS AND PU R PO SE­
FU L  UNEQUAL TREA TM EN T IS PARALLEL 
TO TH E TREA TM EN T O F BLACK P E R ­
SO N S.................................................................................  5

II. C LA SSIFIC A TIO N S BA SED  UPON
RETARDATION THAT E X C L U D E  AND 
SEG R E G A TE R ETA RD ED  PERSON S ARE 
SU SPEC T  AND SH O U LD  BE GIVEN 
STRICT AND SEARCH ING SCRUTIN Y.......... 21

A. A History of Purposeful Unequal Treatment
Imposed by the State Triggers the Standard 
for Strict Scrutiny of Legislative Classifica­
tions.............................................................................  21

B. Retardation Is an Immutable Characteristic
That Has Been Subject to Invidious Glassifi­
cation............................................    22

C. Utilization of a Suspect Standard for Dis­
advantaging Classifications Will Not Be Fatal 
to Classifications that Benefit Retarded 
P e o p le ........................................................................ 24

TA BLE O F A U T H O R IT IE S ..............................................  iii



Page
D. Cleburne’s Exclusion of Retarded People 

from the Community Is Perverse: It Cannot 
Be Justified on the Basis of any Characteris­
tic or Need of Retarded P e o p le .....................  25

III. T H E  C O N TIN U ED  V IR U LEN C E O F 
C LA SSIFIC A TIO N S EX C L U D IN G  AND 
SEG R EG A TIN G  ON TH E BASIS O F 
RETA RD A TION  R E Q U IR E S TH EY BE 
G IVEN  STRIC T AND SEARCH IN G

T A BLE O F CO N TEN TS— (Continued)

SC RU TIN Y....................................................................... 27

C O N C L U SIO N ......................................................................... 30

Appendix A. Compendium of Purposeful State Ac­
tion For the Segregation and Exclusion 
of Retarded Persons in the Fifty States 
and the District of Columbia

Appendix B. Texts of the 1947 Zoning Ordinance of 
the City of Cleburne And the 1929 Zon­
ing Ordinance of the City of Dallas

Appendix C. Statements of Amici Self-Advocacy 
Organizations

Appendix D. Bibliographical Note on Historical 
Sources: Eugenics, Race, Retardation, 
Immigration

ii



TABLE OF AUTHORITIES

C ases: Page
A m bach  v. N orw ich , 441 U.S. 68 (1 9 7 9 ).......................  23

B ell v. M aryland, 378 U.S. 226 (1964)..............................  4

B erea  C ollege v. K entucky, 211 U.S. 45 (1 9 0 8 ) .........  19

B o a rd  o f  Edu cation  o f  H en drick  H udson S chool D is­
trict v. R ow ley, 458 U .S. 176 (1 9 8 2 ).........  14, 24, 28

B o a rd  o f  R egents o f  th e  U niversity o f  C aliforn ia  v.
B akke , 438 U.S. 265 ( 1 9 7 8 ) ................  3, 24, 28

B u channan  v. W orley , 214 U.S. 60 (1 9 1 6 )..............  25, 26

C a b e ll v. C havez-S alido, 454 U.S. 432 (1982)..................  23

C olum bus B o a rd  o f  E ducation  v. Penich, 443 U.S. 449
(1 9 7 9 )....................................................................................  27

C raig  v. B oren , 429 U.S. 190 (1 9 7 6 ) ..............................  25

Exam ining B o a rd  o f  Engineers, A rchitects an d  
Surveyors v. F lores  d e  O tero, 426 U.S. 572 
(1976)'........................................................................  4, 23, 25

F oley  v. C onn elie, 435 U.S. 291 (1 9 7 8 ).......................... 23

Fullilove v. K lutznick, 448 U.S. 448 (1980)......... .. 24

G rah am  v. R ichardson , 403 U.S. 365 (1970)................  23

In graham  v. W right, 430 U.S. 651 (1977)..................... 4

Loving v. V irginia, 388 U.S. 1 (1967)..............................  24

M assachusetts B o a rd  o f  R etirem ent v. M urgia, 427
U .S. 307 (1 9 7 6 )................................................. .. 21, 22, 25

M atthew s v. D iaz, 426 U.S. 67 (1976 )............................ 23

P alm ore v. Sidoti, 104 S.Ct. 1879 (1 9 8 4 ).........  22, 26, 28

P arham  v . J .R . ,  422 U.S. 584 (1 9 7 9 ) ..............................  22

iii



T A BLE O F A U TH O R ITIES— (Continued)
C ases: Page
Pennhurst State S chool <b H ospital v. H alderm an , 104

S.C t. 900 (1 9 8 4 )...............................................................  26

Pennhurst State S chool <b H ospital v. H ald erm an , 451
U.S. 1 (1 9 8 1 )......................................................................  29

Pennsylvania A ss’n o f  R eta rd ed  C hildren  v. Pennsyl­
v an ia , 343 F.Supp. 279 (E .D . Pa. 1 9 7 2 ).........  14, 28

Plessy v. F erguson , 163 U.S. 537 (1 8 9 6 ) .......................  19

Plyler v. D oe, 457  U .S. 202 (1982)................  4, 22, 23, 27

R o n c k erv . W alter, 700 F.2d 1058 (6th Cir. 1983), cert.
den ied , 104 S.C t. 196 (1984)........................................ 24

San A ntonio In d ep en d en t S chool D istrict v . R odriguez,
411 U.S. 1 (1 9 7 3 )............................................................  21

Scluveiker v. W ilson, 450 U.S. 221 (1981).......................  21

Traux v. R aich , 239 U.S. 33 (1 9 1 5 ) ................................  3

T rim ble v. G ordon , 430 U.S. 762 (1977).......................  23

W ashington v. D avis, 426 U.S. 229 (1 9 7 6 ) ................... 21

Tick W o v. H opkins, 118 U.S. 356 (1886).....................  3

Y oungberg  v. R om eo, 457 U .S. 307 (1982).............. 26, 29

State Session Law s:

1917 Ark. Acts 942, § 1 1 ........................................................ 3

1907 Tex. Gen. Laws 5 8 ........................................................ 6

1915 Tex. Gen. Laws 143, eh, 9 0 .....................................  6

1913 Pa. Laws 494, No. 328, § 1 .......................................  9

1919 Fla. Laws 231, §§1, 8 ................................................. 10

i v



TABLE OF AUTHORITIES— (C ontinued)

State Session Law s: Page
1929 Utah Laws 102, eh. 75, §§1, 2 9 ............................. 10

1920 Miss. Laws 288 ............................................................. 21

U nited States Law s:

20 U .S.C. § 1 4 0 1 ...................................................................  24

Texas M unicipal C odes:

Am arillo  Co d e , ehs. 26-8, 2 6 - l l(4 3 a ) ......................  20

B eaum ont Co d e , §42-15(A)(l)......................................  20

Carollton  C o d e , art. X V (14)......................................  20

Copperas Cove Co d e , §5(4)(m)....................................  20

D uncanville Co d e , art. 111(14).................................  20

E d in bu rg  Co d e , art. IV, §4-2(3).................................. 20

Kil l e e n  Co d e , eh. 9, art. 2, §8-1(1)........................... 20

M idla n d  Co d e , §11-1-10(A)..........................................  20

New  Bra u n fels Co d e , § 6 C .l -6 .................................  20

Port Ne c h es  Co d e , §24 -6 ............................................. 20

San An gelo  Co d e , §33-2-14(b).................................... 20

Su lph ur  Springs Co d e , art. 6 (a ) ............................... 20

C on gression al R eports an d  H earings

S. r e p . NO. 94-160, 94th Cong., 1st sess. (1975)---- 29

S. REP. NO. 94-168, 94th Cong., 1st sess. (1975)___  14

Institu tional C are  an d  Services f o r  R etard ed  Citizens: 
H earing  B e fo re  the S u hcom m , on the H an d icapped  
o f  the C om m , on L a b o r  an d  Human R esources,
98th Cong., 1st sess. (1983 )......................................  29

v



O th er A u thorities: Page
T. J. Arch d ea c o n , B eco m in g  Am erica n : An E th ­

nic H istory  (1983)...................................................... 16

Baker, O utcom e E quality  o r  E quality  o f  R espect, 131
U. Pa . L. Re v . 933 (1983).......... .'..........................  4

Barr, T he Im becile  an d  E p ilep tic  Versus the T axpayer  
an d  the Com m unity, 29 PROC. NAT’L CONF. 
C h arities & Correctio n s 163 (1902)................ 18

Barr, State C a re  o f  the F eeb lem in ded , 76 N.Y. MED.
J. 1159 (1903 ).................................................................  17

Bellamy, e ta l . ,  H abilitation  o f  Severely  an d  P rofoundly  
R etard ed : Illustrations o f  C om peten ce, 10 EDUC.
& T raining Mentally  Reta rd ed  174 (1975). 26

B. B latt & F. Kaplan , C hristmas in Purgatory;
A Photographic  E ssay on Mental Retarda­
tion  ...................................................................................  29

Brown, et a l T o w a r d  the R ealization  o f  In teg rated  
E du cation a l E nvironm ents f o r  Severely  H andi­
ca p p ed  Students, 2 REV. AM. ASSN. EDUC. SE­
VERELY & Pro fo un dly  Handicapped  195 
(1977)................................................................................. 26

T h e  B urden  o f  F e e b l e -M in d e d n e ss  (1912) . . . .  10

Burt, C onstitutional Law  an d  the T eaching o f  P ara­
b les, 93 YALE L .J. 455 (1984).....................................  4

Christensen, “N ot My B lock” R eactions G reet G roup
H om es, Dayton Daily News, Mar. 18, 1984 . . . .  29

Dallas Morning News, Jan. 7, 1985, at 17A, col. 1 . . 6

T A BLE O F A U TH O RITIES— (Continued)

vi



O ther A uthorities: Page
D efective B a b e  D ies As D ecreed : Physician, Refusing  

Saving O p era tion , D efends C ourse as W isest f o r  
C ou n try ’s G o o d , W atches as Im becile  C h ild ’s L ife  
W anes, N.Y. Times, Nov. 18, 1915, at 1,
col. 3 ......................................................................................  14

T he F e e b l e -M in d e d , o r , th e  Hub to Our W h e e l  
o f  Vic e  (1913).................................................................  10

Finley, A rson  H its H ouse P lanned f o r  R etarded , D e­
troit News, Apr. 30, 1 9 8 2 ............................................  29

F irst  Annual Repo rt  o f  th e  State Board o f 
Control to  th e  Governor  and th e  L e g is­
lature o f  th e  State o f  T exas (1 9 2 1 )..............6, 7

Ford, 2 d  H om e f o r  R eta rd ed  is Set A blaze, Detroit
Free Press, Dec. 5, 1980 ............................................  29

J. H. F ranklin , F rom Slavery to F r e e d o m : A H is­
tory o f  Neg ro  Am ericans (5th ed. 1980) . . . .  17

G. M. F r e d e r ic k so n , T he B lack I mage in th e
W h ite  Mind  (1 9 7 1 ) .....................................................  17

Goddard, F ou r H u n dred  F eeb le-M in ded  C hildren  
C lassified  by  th e  B inet M ethod, 15 J. PSYCHO- 
ASTHENICS 13 (1910)...................................................... 5

H. H. Go d d a rd , T he Kallikak  Fa m ily .- A Study
in th e  He r e d it y  o f  F e e b l e m in d e d n e ss  
(1912)................................................................................. 15

Goddard, M ental Testing an d  the Im m igrants, 2 J. DE­
LINQUENCY 243 (1917 )...............................................  16

G. Gu n th er , Constitutional Law : Ca ses and 
xMaterials (1 9 8 0 ) ..........................................................  24

T A BLE O F A U TH O RITIES— (Continued)

vii



O th er A u thorities: Page
J. S. Ha l l e r , Outcasts from  E vo lu tio n : Sc ie n ­

t if ic  ATTITUDES OF RACIAL INFERIORITY, 
1859-1900 (1971)............................................................. 16

M. H. Haller, EUGENICS: HEREDITARIAN ATTITUDES
in American  T hought (1963)...............................  15

O. Ha n d lin , T he Upro o ted  (2d ed. 1973).............  16

A. B. Hart, T he Southern  South (1910)................ 17

Hentoff, T he A w ful Privacy o f  B aby  D oe, ATLANTIC,
Jan., 1985 .................... ............... . .................................  29

J. H igh a m , Strangers in th e  Land : Patterns o f  
American  Nativism  1860-1925 (1 9 7 8 )................ 16

Horner & Bellamy, S tructured  Em ploym ent: P rodu c­
tivity an d  P roductive C apacity , in VOCATIONAL 
Ha bilitation  fo r  Se v e r el y  Han dicapped  
Perso n s (1979)...............................................................  26

L. Kam in , T he Sc ien c e  and Po litic s  o f  I.Q.
(1974).................................................................................  15

Johnson, R ep ort o f  th e C om m ittee on C olon ies f o r  Seg­
regation  o f  D efectives, 30 PROC. Nat’L CONF. 
C h a rities & Co rrectio n s (1 9 0 3 )....................... 18

Karst, T he Suprem e C ourt, 1976 Term  —  F orw ard : 
E q u a l C itizenship  U nder the F ou rteen th  A m end­
m ent, 91 Harv. L. REV. 1 (1977)...........................  4

Keating, T he W ar A gainst the M entally R etard ed , N.Y.
MAG., Sept. 17, 1979, at 8 7 ......................................  29

Kevles, A nnals o f  Eugenics, NEW YORKER, Oct. 8,
1984, Oct. 15, 1984, Oct. 22, 1984 ......................... 15

R. Kl u g e r , Sim p l e  J u stic e  (1975 ).........  17, 18, 19, 20

T A BLE O F A U TH O R ITIES— (Continued)

viii



O ther A uthorities: Page
Kuhlman, D egree o f  M ental D eficiency in C hildren  As 

E xp ressed  by the Relation o f  A ge to M ental A ge ,
17 J. P S Y C H O -A S T H E N IC S  132 (1913)....................  5

Linn & Bowers, The H istorical F allacies  B eh in d  Legal 
P roh ib ition s o f  M arriages Involving M entally  
R eta rd ed  Persons, 13 GO N ZAGA L. REV. 625 
(1978)................................................................................. 29

K. M. L u d m e r e r , Gen etic s  and American  So c i­
e ty ; A H istorical  Appraisal (1972)..................  15

T he Menace o f t h e F e e r l e -M in d e d  in Con nect­
ic u t  (1915)..........................................................  10, 16, 17

T he Menace o f t h e  F e e b l e -M in d e d  in Pen n syl­
vania (1913)...................................................................  10

“T he Neg ro  a B ea st”: or “I n th e  I mage o f  Go d ” 
(1900)...................................................................   17

The Ne g r o : A Menace to  American  C ivilization  
(1907)................................................................................. 17

Alien D efectives, N.Y. Times, Jan. 13, 1913, at 10 . . 16

I. A. Ne w b y , J im Cro w ’s D e f e n s e : Anti-Negro  
T h ough t in Am erica  (1 9 6 5 )...................................  17

Osborn, The Evolution  o f  H um an R aces, 26 Nat. HIST.
5 (1 9 2 6 )....................  17

R. Pe r s k e , Ne w  L if e  in th e  Neig h bo rh o o d  
(1980)................................................................................. 27

Pr e sid e n t ’s Co m m ittee  on Mental Retarda­
tio n , T he L eadin g  E d g e , Serv ic e  Programs 
THAT WORK: REPORT TO THE PRESIDENT
(1978)............................................................................  27

TA BLE O F A U TH O RITIES— (Continued)

IX



T A BLE O F A U TH O R ITIES— (C ontinued)

O th er  A u thorities: Page
P R E S ID E N T ’S C O M M IT T E E  ON M E N T A L  R E T A R D A ­

T IO N , Mental Retardation , Past and 
Pr e se n t  (1 9 7 7 )............................................................. 30

Pr e s id e n t ’s C o m m ittee  on Mental Retarda­
tio n , T he Mentally  Reta rd ed  Wo r k e r , An 
E con om ic  D isc o v e r y : Repo rt  to  th e  Pr e s i­
d en t  (1 9 8 3 ) .................................................................... 26

Pr o c e e d in g s  o f  th e  T exas Co n fe r e n c e  on 
C h a rities and C o rrectio n s (1912 )..................  7

Pr o c e e d in g s  o f  th e  Texas Co n fe r e n c e  on 
C h a rities and Co rrectio n s (1914 )..................  18

D. & S. Rothman , T he W illo w bro o k  Wars 
(1984)........................................................ . ......................  29

S. B. Sarason & J. D o r is , E ducational Handi­
cap, Pu bl ic  Po licy  and Social H istory 
(1979) .................................................................................. 15

S. B. Sarason & J. Do r is , Psych ological  Pro b­
l em s  in Mental D e fic ie n c y  (4th rev. ed. 
1969).................................................................................... 15

R. E. Sm ith , C h ristianity  and th e  Race Pro b­
lem  (1922)........................................................................  20

K. M. Sta m pp, E ra o f  Recon struction  (1965)... 16

A. H. St o n e , St u d ie s  in th e  American  Race Pro b­
l em  (1908)........................................................................  20

P. Tyo r , Segreg a tio n  or Su rg ery : T he Men ­
tally  Re ta r d ed  in Am erica , 1850-1920 (diss.
Nw. Univ. 1972), p u b lish ed  in P. TYOR&L. BELL, 
Caring fo r  th e  Re ta r d ed  in Am eric a : A His ­
tory  (1984).................................................................  15, 18

X



O ther A u thorities: Page
Wald, B asic  P erson al an d  Civil Rights, in  P R E S ID E N T ’S 

C o m m itte e  on Mental  Retarda tion , T he 
Men tally  Re ta r d ed  C itizen  and th e  Law 
(M. Kindred, et a l. eds. 1 9 7 6 )...................................  14

W oestendiek, T he D einstitutionalization  o f  N icholas
R om eo, Phila. Inquirer Mag., May 27, 1984 . . . .  27

C. V. W o o d w a rd , T h e Strange Ca r eer  o f  Tim
C r o w  (3d rev. ed. 1974)............................  6, 17, 18, 19

C. S. Yoakum , Care o f  th e  F e e b l e m in d e d  and 
Insane in T exa s, B u lletin  o f  th e  Un iv er­
sity o f  T e x a s , NO. 369 (Humanistic Ser. No. 16,
Nov. 5, 1 9 1 4 ) .................................................................. 7, 19

T A BLE O F A U TH O R ITIES— (Continued)

xi



No. 84-468

IN THE
SUPREME COURT OF THE UNITED STATES

October Term, 1984

City of Cleburne, Texas, et al.,

V.
Petitioners,

Cleburne Living Center, et al.,
Respondents.

ON WRIT OF CERTIORARI TO THE UNITED 
STATES COURT OF APPEALS FOR THE 

FIFTH CIRCUIT

B R IE F  FOR THE ASSOCIATION FOR  
R ETA R D E D  C ITIZEV S/l SA. et a l . ,

AS AM ICI CURIAE

IN TEREST OF AMICI
Amici are eighteen national, state and local organizations of 

retarded people and their families interested in disestablishing 
the regime of state-imposed exclusion of retarded people from 
the communities of this nation.

Amici know the history of purposeful unequal treatment im­
posed upon retarded people by the states and know, as well, that 
the ordinance at issue here is part of that terrible history. Amici 
have a direct, personal interest in securing for retarded persons 
the full measure of equal protection. Thus, amici present this 
brief on behalf of respondents not only to argue that the Cleburne 
ordinance must fall, but also to present the history that compels

1



2

the view that the Court should apply strict and searching scru­
tiny to the ordinance and other disadvantaging classifications that 
exclude and segregate retarded people.1

SUMMARY OF ARGUMENT

This case concerns the deju re  exclusion of thirteen retarded 
citizens from the community of Cleburne because they hap­
pened to be retarded. This quite invidious exclusion has been 
visited upon these citizens and others like them as a direct result 
of a pattern of official action, historically, of each of the state 
governments.

Texas, along with every other state, adopted a policy of seg­
regating and isolating “feeble-minded people for life, prevent­
ing their remaining “at large” in the community. The states forth­
rightly and systematically sought to “purge society” of their re­
tarded citizens and by law declared them “unfit for citizenship. ”

The Cleburne ordinance, modeled on a 1929 Dallas ordi­
nance, has its origin in this period and—along with at least twelve 
similar ordinances in Texas alone—is rooted in the invidious dis­
crimination of that time.

The compelled segregation and isolation of—and pure ani­
mus toward— retarded people, clothed in the full weight, 
strength, and authority of the government, dictates the strictest, 
most searching scrutiny of official action excluding those citizens. 
Onlv by invoking strict scrutiny can the stereotypes (such as those 
in evidence here) be separated from the facts, thereby enabling 
the Court to determine whether the classification directed solely 
at retarded persons is a fair one.

The classification we seek to have held suspect is not “in­
telligence,” but that of “being retarded,” for it is that immutable 
trait that is at the root of the “history of purposeful unequal treat­
ment.” Strict scrutiny will not foreclose classifications of retarded 
persons for proper purposes or that properly recognize their 
differences. _____________________________ ____________

1. The interest of each amicus is fully set forth in the accompanying mo­
tion .



3

ARGUMENT
The ordinance of the City of Cleburne excluding “homes 

. . . for the feebleminded”2 from the mid-Texas town of 20,000 
people has its roots in the most xenophobic era of our history, 
1896 to 1930, when both Jim Crow statutes segregating people 
by race and state statutes imposing life-long segregation upon 
“the feebleminded” were formulated and systematically enacted 
by the states. Unlike the legacy of race discrimination in this 
country, however, compare, e.g., Board, o f  Regents o f  the Uni­
versity o f  California v. Bakke, 438 U.S. 265, 387-94 & n .l (1978) 
(Marshall, J.), the history of discrimination on the basis of re­
tardation is not widely known. Yet the Court cannot decide this 
case without a full appreciation of that history. Amici’s major 
reason for filing this brief is to place the history before the Court 
and to argue that that history is dispositive of this case.

This case poses the question of the respect required by the 
Equal Protection Clause to be accorded retarded people: what 
degree of scrutiny and justification is required of official classi­
fication that excludes, segregates, degrades and isolates retarded 
people. Amici submit that in light of the extraordinary history of 
purposeful unequal treatment, the proper standard to be ex­
tended under the Equal Protection Clause to retarded people is 
that heretofore accorded people who are black.

The classification here—part of the historical pattern of state 
action to eliminate retarded people altogether from common so­
ciety and to disassociate “them” from “us”— offends the Equal 
Protection Clause at what the Court’s opinions3 from the begin­

2. “Feebleminded” was the encompassing term pervasively used in the 
early decades of this century to designate retarded people as such, including 
the “moron” (mildly retarded people), the “imbecile” (moderately retarded 
people) and the “idiot” (severely or profoundly retarded people). See, e.g ., 
1917 Ark. Acts 942, §11.

3. E.g., Tick W ov . Hopkins, 118 U.S. 356, 370 (1886) (“the very idea that 
one man may be compelled to hold his life, or the means of living, or any 
material right essential to the enjoyment of life, at the mere will of another, 
seems to be intolerable in any country where freedom prevails, as being the 
essence of slavery itself’); Traux v. Raich, 239 U.S. 33, 41 (1915) (“right to work 
for a li ving in the common occupations of the community is of the very essence 
of the personal freedom and opportunity that it is the purpose of the [Four­



4

ning to now show to be its core:

“The principle of equal citizenship presumptively insists that 
the organized society treat each individual as a person, one 
who is worthy of respect, one who ‘belongs.’ Stated nega­
tively, the principle presumptively forbids the organized so­
ciety to treat an individual either as a member of an inferior 
or dependent caste or as a non-participant.”4

Classifications that explicitly single out retarded people and 
have exclusive impact on them should be considered suspect and 
given strict and searching scrutiny in view of the terrible history 
of such classification.5

teenth] Amendment to secure”); Bell v. Maryland, 378 U.S. 226, 317 (1964) 
(concurring opinion) ("constitutional right of all Americans to be treated as equal 
members of the community with respect to public accommodations . . . ‘is too 
important in our free society to be stripped of judicial protection’ ”); Examining, 
B oard  o f  Engineers, Architects and Surveyors v. Flores de Otero, 426 U.S. 
572, 604 (1976); Ingraham  v. Wright, 430 U.S. 651, 670 (1977); cf. Plyler v. 
D oe, 457 U.S. 202, 223 (1982) (“. . . the ability to live within the structure of 
our civic institutions, and . . . contribute . . .  to the progress of our Nation”).

4. Karst, The Supreme Court, 1976 Term  —  Forw ard: E qual Citizenship 
Under the Fourteenth Amendment, 91 Harv. L. Rev. 1, 6 (1977); accord, Baker, 
Outcome Equality o r  Equality o f  Respect, 131 U. Pa. L. Rev . 933 (1983);Burt, 
Constitutional Law and the Teaching o f  Parables, 93 Yale L. J. 455, 490-500 
(1984).

5. The dissent from the denial of rehearing en banc below thought “the 
retarded” to have “minds at or below third-grader level in the bodies of oth­
erwise healthy adults” (J.A. 141). This manifestly incorrect statement of what 
being retarded is repeats a persistent part of the stereotype that evoked the 
official state undertaking to segregate retarded people: the myth of “mental 
age,” that retarded people are eternal children, innocent but fitful, erratic, 
unreachable, fearsome, forever possessed of a “mental age” of eight (or, five, 
or three), condemned to wander the world only with what an eight-year old 
would have learned. Correctly understood, mental age describes not a ceiling 
on how much a person can learn or the skills he has command of, but a rate of 
learning.

Thus, for example, retarded people chronologically aged forty-five who 
are said to have a mental age of eight will —  if the opportunities to learn are 
decently at hand, have mastered much more during the thirty-seven additional 
years they have been learning at the eight-vear-old "rate” than someone who 
was eight only for a year. Indeed, H. H. Goddard, who in 1910 “validated the 
concept of “mental age” and introduced this “measurement into American



5

I. THE CLEBURNE ORDINANCE IS PART OF A PATTERN 
OF STATE-IMPOSED, LIFE-LONG SEGREGATION OF 
RETARDED PEOPLE THAT IN ANIMUS AND PUR­
POSEFUL UNEQUAL TREATMENT IS PARALLEL TO 
THE TREATMENT OF BLACK PERSONS.

The decades at the turn into this century imposed a stark 
legacy upon the country. The xenophobic hysteria of the era, 
fueled by the new scientism of the eugenics movement, pos­
sessed by severe Darwinian strictures and doubts, assaulted by 
the unprecedented flow of new immigration and the uncertain­
ties of a new industrial age, took on all the force of state power 
and focused it pervasively against black people and against re­
tarded people and visited upon them the most severe disquali­
fications imaginable among citizens.

discourse met “this very difficulty at the outset”:
“We soon realized that having in one of these groups that test to the men­
tality of say an eight-year-old normal child, we were facing a very inter­
esting problem, as to what was the difference between children who had 
lived in the world twelve years, and those who had lived twenty years 
. . . .  In other words, a child who tests according to the Binet test, ten years 
of age, but is actually fifty years old, may be expected to do a great many 
things which will quite surprise us because we never have happened to 
know of a ten-year-old child that could do those things . . . .”

Goddard’s solution to the measurement difficulty?
“[I]n order to get some accurate idea as to what mental age meant . . . .  
we had to cut out all those who were beyond the training period [i.e., those 
over twenty years].”

Thus Goddard “validated” —  and the Era installed and perpetuated in the 
common prejudice — a measure that does not measure. Goddard, Four Hun­
dred Feeble-M inded Children Classified By the Binet Method, 15 J. Psycho- 
ASTHENICS 13 (1910). Others made the point, for example, Kuhlman, Degree 
o f  Mental Deficiency In Children As Expressed By The Relation o f  Age To 
Mental Age, 17 J. PSYCHO-ASTHENICS 132 (1913):

“Feeble-mindedness is a retarded rate of mental development. The term 
‘arrested development’ or ‘mental arrest’ is a misnomer, for it implies that 
development has ceased. It is a common observation that feeble-minded 
children do develop mentally. We also find that their mental ages as meas­
ured by the Binet-Simon tests increase as they grow older. ”

But it is the “ceiling” idea of “mental age” that was codified into invidious



6

The Jim Crow system segregating people by race was not a 
19th century invention, but a creation of this era. C. V. 
Woodward, The Strange Career of J im Crow (3d rev. ed. 
1974). Similarly, large, isolated institutions that separate retarded 
people from the wider society for life are an invention of this era. 
Like Jim Crow, these institutions were created by state law in­
tentionally to segregate retarded people. Thus a regime of state- 
imposed life-long segregation of retarded people was commis­
sioned, and public, as well as private, attitudes and action that 
would reinforce it were legitimated and evoked.6 This case will 
determine whether it shall be disestablished.

In Texas, Jim Crow was enacted and in force in the first 
decade of this century.7 8 Texas created its first institution “for the 
feeble-minded” of the State by Act of March 22, 1915.6 Section 
2 of the Act declared as its purpose to end “the heavy economic 
and moral losses arising from the existence at large of these un­
fortunate persons.” The Superintendent of the State Colony for 
the Feeble-Minded reiterated its purposes in his Third Annual 
Report:

“[T]heir segregation and control, through life, is the rem­
edy. This can be obtained only by legally committing them 
to an institution where they can be kept permanently.”9

stereotype, to wit: The January 7, 1985 Dallas Morning News (17A, col. 1) 
opened a six-column feature story with lead paragraphs saying:

"Sarah is three years old —  forever.

“She was horn 26 years ago, but something went wrong, and her mind
stopped growing at the mental age of three.”
6. The exclusion in the Cleburne ordinance at issue here did not first 

appear in the Cleburne zoning ordinance in 1965 as petitioners have incorrectly 
asserted throughout. The exclusion of "feeble-minded patients” appeared first 
in the Cleburne ordinances in 1947. It was taken verbatim from the September 
11, 1929 ordinance of the City of Dallas. The relevant portions of both ordi­
nances are reproduced at Appendix B.

7. Sec, c .g .. 1907 Tex. Gen. Laws 58.
8. "An Act to Provide for the Establishment and Maintenance of a State 

Farm Colony for the Feeble-Minded and to Make Appropriations Therefore, 
and to Declare an Emergency. 1915 Tex. Gen. Laws 143, eh. 90.

9. Superintendent's Report (August 31, 1920) in FIRST ANNUAL RKPORTOF 
thk  SI vi i Board o f  C ontrol  T o tiik  G ovkrnor and T uk L kgislatcrk o f



/

The animus of the Act creating the State Colony to segregate 
retarded people is set forth in a 1914 pamphlet of the Texas State 
Conference on Charities and Corrections.10The pamphlet opens: 

“Every state, to maintain the highest efficiency in its gov­
ernmental and social functions, must consider the nature of 
its citizens. We are in the habit of dividing citizens into two 
classes based on their value to society or their amenableness 
to social custom and law — desirable and undesirable citi­
zens. The latter class comes in conflict with law and is gen­
erally considered a menace to good government.” Id. at 11.

It continues:
“The general public has already been educated to the belief 
that it is a good thing to segregate the idiot or the distinct 
imbecile, but they have not, as yet, been quite so fully con­
vinced as to the proper treatment of this brighter and more 
dangerous class, the defective delinquent. From a financial 
standpoint, segregation of the defective delinquent would 
be a great economy, to say nothing about the more salient 
feature, that of stopping them from producing their kind. If 
we could segregate these defectives when they are young 
and keep them confined during their natural lives, it would

THE State OF T exas 147 (1921) (Docs. Coll. Tex. St. Archives).
10. C.S. Yoakum, Care of the F eeblem in ded  and Insane in Texas, 

Bulletin of the University of T exas, No . 369 (Humanistic Ser. No. 16, 
Nov. 5, 1914) (on file in Pamph. Coll., Tex. St. Archives, Austin, Tex.). The 
pamphlet originated as a committee report of the State Conference on Charities 
and Corrections, which, like conferences in other states and the National Con­
ference on Charities and Corrections, was composed of leading citizens, most 
often drawn from the leading families —  professors, journalists and public of­
ficials, including mayors and legislators —  and was the active progenitor of the 
Act of March 22, 1915, as it had been of the juvenile court law, the suspended 
sentence law and other Progressive Era legislation.

"It aims to bring together for a free exchange of views and experiences for 
united action all persons and all organizations and institutions, public and 
private, engaged or interested in work of a charitable or philanthropic 
character, or in administering our penal and correctional institutions and 
agencies.”

Proceedings of the State Conference on C harities and Corrections 
11-12 (1912) [hereinafter cited as PROCEEDINGS].



8

obviate the expense of having them committed repeatedly 
to our penitentiaries when they grow older. . . .
“ ‘Some may say, “Why it is a pity to confine these children 
in an institution all their lives”; but that is where they are 
greatly mistaken, as for instance, in Ohio, I can say to you 
that we have a community of over 1600 of the happiest chil­
dren in the State in our institution.’ . ” Id. at 46.

The pamphlet goes on to warn:
‘To discharge, unsterilized, the defective child, after hav­

ing taught him habits of neatness and a few tricks that make 
his mental deficiency less noticeable, is worse than never to 
have put him in an institution. ’ In other words, the defective 
is a person who, for the good of society, must end his line 
of descent with himself. We have indicated in other places 
that he is personally a menace to society while alive.
“The only safe procedure is custodial care and institutional 
care throughout life for the great majority. Some authorities 
believe that a small percentage of those who are trainable 
may after a time be returned to society. Even these are usu­
ally far better off in an institution where they can earn a 
living under watchful care. In the paragraphs that follow, we 
shall describe the type of institution that is best suited to 
such lifelong protection of these derelicts in society.” Id. at 
66 .

The pamphlet concludes:
“A clean-limbed, pure-minded, sane thinking people is an 
ideal alone commensurate with the ideals of this State and 
this nation. What shall we do to attain, to eliminate this 
great and ever-increasing source of ignorance, poverty, and 
crime? ‘One of the most shocking and easily cured evils is 
the increase of the feeble-minded, the begetters of numer­
ous degenerate children. The remedy is their segregation 
by the State . . .’ The answer comes with no uncertain ring.
“This problem of racial betterment is called in modern 
phrase, eugenics. Our purpose in this discussion has been 
limited. We have, therefore, discussed the single phase of



9

the general problem — the elimination of the defective 
strains. Many answers and solutions have been offered, 
among them segregation has appealed to society’s feelings of 
humanity and fair play with greatest force. Restrictive mar­
riage laws and customs are important, and educative, but 
fail to reach the irresponsible and degenerate till too late.
. . . Laissez-faire or natural selection, euthanasia, neo- 
malthusianism, and polygamy are either impossible under 
the protective forces of modern social conditions or are ideas 
repugnant to present-day ideals of religion and humanity. 
Of all the solutions suggested, the two most advocated are 
sterilization and segregation. Both of these ideas were em­
bodied in bills submitted to the last Legislature in Texas.
“The evidence so far collected points toward segregation as 
the most feasible, most easily put into force, and least sub­
versive of constitutional prerogative. . . . ” Id. at 81-83 
(pamphlet’s emphasis).11
This Texas undertaking by force of law of the life-long seg­

regation of retarded persons was universal among the states.12 
Each of the states resolved, de jure, as did Pennsylvania:

“that the Eastern Pennsylvania State Institution for the 
Feeble-Minded and Epileptic shall be devoted to segrega­
tion, care, maintenance, treatment, training and education 
of epileptic, idiotic, imbecile or feeble-minded persons,”

1913 Pa. Laws 494, No. 328, § 1; and as did Florida:
“that there is hereby established . . .  a Florida Farm Colony 
for Epileptic and Feeble-Minded . . . for the segregation 
and employment of the epileptic and feeble-minded . . .  to 
the end that these unfortunates may be prevented from re- 
producing their kind, and the various communities and the

11. A second, separate section of the Texas pamphlet, addressing care of 
“the insane” (id. at 84-145), reflects confusion of the two (109-128), but no­
where calls for, but rather rejects (100, 136-37) permanent, life-long segrega­
tion of mentally ill people.

12. See Appendix A, Compendium of Purposeful State Action for the Seg­
regation and Exclusion of Retarded People in the Fifty States and the District 
of Columbia [references to App. A hereinafter cited as “A-____ ”].



10

State at Large relieved from the heavy economic and moral 
losses arising by reason of their existence,”

1919 Fla. Laws 231, §§ 1, 8; and as did Utah, in the same year 
the predecessor to the Cleburne ordinance was enacted, 1929 
Utah Laws 102, eh. 75, §§ 1, 29 (App. A-71.).

The animus of each was everywhere the same. A sampling 
from Appendix A of the very titles recurrent among the many 
pamphlets advancing institutional segregation describes vividly 
that ill-will: The Menace o f  the Feeble-M inded in Pennsylvania 
(1913); The Menace o f  the Feeble-M inded in Connecticut (1915); 
The Burden o f  Feeble-M indedness (1912) (Mass.); The Feeble­
m inded , Or, The Hub to Our W heel o f  Vice (1913) (Ohio).

The policy of exclusion of retarded people, implemented 
through state action, is epitomized by a Mississippi law creating 
a “Colony for the Feebleminded” for the segregation of “all cases” 
deemed “unfit fo r  citizenship.”13 That law, and the others like it, 
present as starkly as imaginable the essence of an equal protec­
tion violation, exclusion of a particular people from the very “cit­
izenship” of the land. Government officials in every state estab­
lished formal policies in inexorable fashion: Retarded people were 
“entirely unfit to go into general society,”14 a “menace to the 
happiness . . .  of the community,”15 “unfitted for companion­
ship with other children,”16 a “blight on mankind”17 whose very 
“presence”18 in the community was “detrimental to normal” peo­
ple, 19 and whose “mingling . . . with society” was “a most bane­
ful evil.”20

Official policy was to “prevent this class of persons from com­
ing in contact with the populace,”21 to “purge society”22 of these

13. A-47 (emphasis provided); see also A-19 (Pa.).
14. A-43 (Wis.); see  A-24 (Ind.) (“unfit to be out in the

world”).
13. A-44 (Ala.).
16. A-74 (Wash.).
17. A-21 (Vt.).
18. A-21 (R.I).
19. A-63 (Cal.).
20. A-70 (Ore.).
21. A-67 (Colo.).



11

“anti-social beings,”22 23 to “segregate [them] from the world,”24 25 so 
that they “not . . .  be returned to society”23 since “[m]ental de­
fect . . . wounds our citizens a thousand times more than any 
plague.”26 “Nothing” would better “promot[e] our best citizen­
ship, than to segregate the feeble-minded.”27

To that end, the enactments of nine state legislatures spec­
ified “segregation” in the body of their laws28 and the official 
documents of practically each other state and of the United States 
for the District of Columbia specified the same object.29

Institutions, as a matter of law, were houses of “detention”30 
where retarded “inmates” were “kept”31 and “held”32 “for 
life.”33 As the official reports indicate, detention would be “per­
manent,”34 in the nature of “an indeterminate sentence”33 to the 
“institutional community where he’ll always live,”36 since “a de­
fective child will be a defective adult, and will die a defective. 
There is not a philosopher’s stone to turn the base metals of de­
fect into gold. ”37 They could never be let “loose in the world, ”38

22. A-43 (Wis.).
23. A-19, 20 (Pa.).
24. A-23 (Ind.).
25. A-34 (Neb.).
26. A-73 (Utah).
27. A-21-22 (Vt.).
28. A-45 (Fla.); A-29 (Ky.); A-47 (Miss.) (“isolation and segregation”); A-35 

(Neb.) (“to segregate them from society”); A-9 (N.H.); A-19 (Pa.); A-38 (S. Dak.); 
A-57, 59 (Va.); A-74 (Wash.).

29. E .g., A-66 (Cal.); A-67 (Colo.); A-2 (Conn.); A-27 (Kan.); A-23 (Ind.); 
A-8 (Mass.); A-31 (Mich.); A-10 (N.J.); A-18 (N.Y.); A-49 (N.Car.); A-37 (Ohio); 
A-50-51 (S.Car.); A-56 (Tex.); A-73 (Utah); A-22 (Vt.); A-43 (Wis.) (“separating 
them from society”); A-77-78 (U.S.).

30. E .g., A-22 (111.); A-69 (Mont.); A-34 (Neb.); A-37 (Ohio): A-71 (Ore.);
A-20 (PaL.).

31. A -ll (N.J.)
32. A-62 (Ariz.)1
33. A-62 (Cal.); see A-l (Conn.); A-35 (N. Dak.)
34. A-8 (Mass .); A-33 (Mo.); A-10 (N.J.); A-19 (Pa.); A-56 (Tex.); A-77

(U.S.).
35. A-59 (Va.);:see A-67 (Colo.) (to be “kept in an institution indefinitely );

A-71 (Ore.) “indeterminate detention”).
36. A-43 (Wis.).
37. A-46 (Ga.).



12

and it was felt especially important to keep them “away from 
thickly settled communities,”38 39 “remote from the centers of pop­
ulation for reasons that are obvious.”40 Retarded persons simply 
did not have the “rights and liberties of normal people.”41 The 
Executive Secretary of the District of Columbia Board of Charity 
urged a congressional committee to authorize the erection of an 
institution since retarded people are “not much above the ani­
mal. 42 State officials elsewhere also sought to remove retarded 
people from the realm of humanity, referring to them as “not far 
removed from the brute. 43 They were not quite persons, but 
“by-products of unfinished humanity.”44

Retarded people were segregated for being a “nuisance to 
the community,”45 or a “menace to the happiness . . .  of others 
in the community,”46 or a “menace to society,”47 or “for the wel­
fare of the community”48 or “of society,”49 or so that “the state at 
large [may be] relieved from the heavy economic and moral losses 
arising by reason of their existence.”50 It was important to find a 
way of getting rid of these kinds of cases.”51

Official reports labeled retarded people “a parasitic, pred­
atory class,”52 a “danger to the race,”53 “a blight and a misfortune 
both to themselves and to the public,”54 whose role “in discount­

38. A-67 (Colo.).
39. A-79 (U.S.).
40. A-2 (Conn.).
41. A-41 (S.Dak.).
42. A-80.
43. A-58 (Va.).
44. A-53 (Tex.).
45. A-22 (Ind.).
46. A-44 (Ala.); A-46 (Ga.); A-47 (Miss.); A-51 (Tenn.); A-60-61 (VV.Va.).
47. A-68-69 (Idaho); A-43 (Wis.); A-72 (Utah) (“a social menace”).
48. A-62 (Ariz,); A-22 (111.); A-47 (La.); A-70 (N.Mex.); A-80-81 (U.S )
49. A-35 (Neb.).
50. A-45 (Fla.); accord, A-55-56 (Tex.).
51. A-3 (Conn.); see A-68 (Hawaii) (“a place to get the feeble-minded out 

of the community”).
52. A-8 (Mass.); A-21 (Vt.).
53. A-43 (Wis.).
54. A-27 (Kan.).



13

ing social progress is by far the most potent influence for evil 
under which society is struggling today.”35

The states actively inculcated fear of retarded persons, di­
rected their identification and removal from the community, and 
enlisted assistance of the public to do so. Government officials 
undertook major outreach efforts.56 Physicians, teachers, and so­
cial workers were required by law' in some states to report to the 
government all persons “believed by them to be feeble 
minded.”57 Other states made it “one of the special duties of 
every health officer and of every public health nurse to institute 
proceedings to secure the proper segregation and custody of fee­
bleminded persons.”58 Those states with no formal reporting or 
registration requirement at least officially encouraged health, wel­
fare, and social workers to be “constantly on the lookout”59 for 
potential cases to be institutionalized, and authorized a wide va­
riety of public and private persons60 —or sometimes simply “any 
reputable citizen”61— to institutionalize a person if a parent or 
relative “either neglect[ed] or refus[ed]” to do so.62 Washington 
state legislators dispensed with that procedure and simply made 
it a criminal offense, punishable by a $200 fine, for any parents 
refusing to perform their “duty” to segregate in the state insti­
tution their “feebleminded” son or daughter.63 Some states even 
permitted detention temporarily with no procedural rights for 
those who were “suspected of being feebleminded or idiotic.”64 
Once parents placed their child in an institution, some states 
required them to “waive all right to remove such inmate there- 55 56 57 58 59 60 61 62 63 64

55. A-24 (Ind.).
56. E .g., A-62-63, 65-66 (Cal.); A-25 (Ind.); A-56 (Tex.).
57. A-40 (S.Dak.); see also A-71 (Ore.).
58. A-29 (Ky.); accord, A-52 (Tenn.).
59. A-28 (Kan.).
60. E .g., A-66 (Cal.) (“any peace officer”); A-49(N. Car.) (“ministers, teach­

ers, or physicians); A-50 (Okla.) (“trustees of any township”); A-21 (Vt.) (the
selectman of [any] town”); A-75 (Wyo.) (the county prosecutor).

61. A-5 (Del.); A-22 (111.); A-46 (La.); A-51 (Tenn.); A-61 (W.Va.).
62. A-47-48 (Miss.); A-51 (Tenn.); A-61 (W.Va.); see A-44 (Ala.) (“notwith­

standing the family or relatives may object thereto”); A-50 (Okla.).
63. A-74.
64. E .g., A-36 (N.Dak.).



14

after either permanently or for a limited time.”63 All of these 
steps, and others, were thought necessary to segregate those 
whose parents or guardians are averse to such actions.”66 Gov­

ernment officials made the judgment that “the presence of the 
unfortunate child in the home”67 was “more tragic than any known 
disease,”66 and a “menace to . . . the family.”69

The regime of segregation reached to and was reinforced by 
systematic exclusion from public schooling,70 forced steril­
ization,'1 peonage,72 bans upon marriage and exercise of the 
franchise,'3 and even reached to the death of “defective” 
babies.74

Where did it all come from? Previously, in the mid-19th 
century, Dr. Samuel GricUey Howe and others had established 
residential schools for retarded people, all small, in or near the 
towns, with the purpose that retarded children should attend, 
learn, and return after a little while to their homes to live and to 
work. Howe insisted that the schools should not become custo- 
dial and warned against life-long segregation.75 By the turn into

65. A-30 (Mich.); A -ll (N.J.); accord, A-69 (Mont.); A-36 (N.Dak.).
66. A-66 (Cal.); accord, A-.34 (Neb.) (need for retarded people to be “de­

tained in the institution against the desire of the parent”).
67. A-21 (R.I.).
68. A-73 (Utah).
69. A-6.3 (Cal.); A-6 (Md.).
70. The history of exclusion from the schools is noted in Pennsylvania 

Ass’n f o r  R etarded Children v. Pennsylvania, 343 F.Supp. 279, 294-95 (E.D. 
Pa. 1972); B oard  o f  Education o f  H endrick Hudson School District v . Rowley, 
458 U.S. 176, 191(1982); and committee reports on the Education of All Hand­
icapped Children’s Act, e.g ., S. Rep . No. 94-168, 94th Cong., 1st sess. 9 (1975).

71. E .g ., A-63-64 (Cal.); A-26 (Iowa); A-5 (Me.); A-59-60 (Va.).
72. E .g., A-3,4 (Conn.); A-81 (D.C.). Indiana required by law that “the 

labor in constructing” all of the institution's “buildings, improvements, and 
facilities shall be supplied as far as possible by the persons committed to the 
institution.” A-24.

73. See Brief of Amici AAMD, e ta l.;  Wald, Basic Personal and Civil Rights 
in Presidents Committee on Mental Retardation, The Mentally Re ­
tarded Citizen and the Law 3, 7-9, 25 (M. Kindred, et a l ,  eds. 1976).

74. Defective B abe Dies As D ecreed: Physician, Refusing Saving O pera­
tion, D efends Course as Wisest f o r  Country’s Good, W atches as Im becile C hild’s 
Life Wanes, N.Y. Times, Nov. 18, 1915, at 1, col. 3.

75. For Howe’s position, see pp. A-6-7.



the new century, however, the times had changed. In 1903 Walter 
Fernald, a Massachusetts official and a leading figure in the As­
sociation of Medical Officers of American Institutions for Idiotic 
and Feeble-Minded Persons, dismissed Howe’s view, saying:

“[T]he Doctor wrote before the tide of immigration had set 
so strongly to our shores. . . . What is to be done with the 
feeble-minded progeny of the foreign hordes that have set­
tled and are settling among us?”76

A solution equal to the severity and the magnitude of the 
problem was imperative. In 1913-14, at the request of the United 
States Public Health Service, Henry H. Goddard —  the ac­
claimed author of The Kallihak Family 77 —  administered Binet’s 
IQ test to the southern and eastern European immigrants arriv­
ing in steerage at Ellis Island. “[G]iv[ing] the immigrant the

76. P. T yor, S egregatio n  or S u rg ery : T he M entally R eta rd ed  in 
Am erica , 1850-1920, at 160 (Diss. Nw. Univ. 1972), published in P. T yor & 
L. B e l l , C aring for th e  R eta rd ed  in Am erica : A H istory (1984). The stand­
ard historical works on America’s treatment of retarded people include P. T yor , 
supra- S. B. Sarason & J. D o ris , Psychological Pro blem s in M ental D e ­
fic ien c y , chs. 12-16 (4th rev. ed. 1969), and E ducational Handicap, Pu blic  
Policy and S ocial H istory (1979); see also Appendix D to this Brief.

77. The Kallikak F amily (MacMillan, 1912). Asking “What is to be 
done? ’ The Kallikak Family concludes:

. . . For the low-grade idiot, the loathsome unfortunate that may be seen 
in some of our institutions, some have proposed the lethal chambers. But 
humanity is steadily tending away from the possibility of that method. . .
We cannot successfully cope . . . until we recognize feeble-mindedness 

and its hereditary nature, recognize it early, and take care of it.

[Segregation through colonization seems in the present state of our knowl­
edge to be the ideal and perfectly satisfactory method.”

Id. at 101, 116-117. The leading standard historical works describing the per­
vasive place of eugenics in the era and its decisive role in action against im­
migrants, blacks and retarded people include M. H. Haller, EUGENICS: 
Heriditarian Attitudes in American Thought (1963); K. M. Ludmerer, 
Genetics and American Society: A Historical Appraisal (1972); L. Kamin , 
The Science and Politics o f  I.Q. (1974); Kevles, Annals o f  Eugenics, New 
Yorker. Oct. 8, 1984, at 99-115; id. Oct. 15, 1984, at 99-125; id. Oct. 22, 1984, 
at 92, 93.



16

benefit of every doubt, he found that 79% of the Italians, 80% 
of the Hungarians, 83% of the Jews and 87% of the Russians were 
feeble-minded.78

This was — as Kenneth M. Stampp writes in his historio­
graphical analysis of this early 20th Century era — “a time when 
xenophobia had become almost a national disease. It was a time 
“when Negroes and immigrants were being lumped together in 
the category of unassimilable aliens. During the first decades of 
the century,

“the new immigrant groups had become the victims of cruel 
racial stereotypes. Taken collectively it would appear that 
they were, among other things, innately inferior to the Anglo- 
Saxons in their intellectual and physical traits, dirty and im­
moral in their habits, inclined toward criminality, receptive 
to dangerous political beliefs and shiftless and irresponsible. 
In due time, those who repeated these stereotypes awoke to 
the realization that what they were saying was not really 
very original — that, as a matter of fact, these generaliza­
tions were precisely the ones southern men had been mak­
ing about Negroes for years.”79

And the solution for the now apprehended “common problem” 
was, in the new decades of a new century, precisely similar: state- 
imposed segregation alike of “the Negro” and of retarded people.

The animus that supported segregation of “the 
feeble-minded” bore unmistakable similarity to the animus that 
evoked Jim Crow. Compare titles like The Menace o f  the Fee-

78. Goddard, Mental Testing and the Immigrants, 2 J. D elin quency  243, 
249, 252 (1917). Additional “findings” were extensively reported, e.g ., N.Y. 
Times, Jan. 13, 1913, at 10 (“Alien Defectives”); see A-12-16, 64-65.

79. K. M. Stampp, The Tragic Legend o f  Reconstruction, the introduction 
in E ra o f Reconstruction  19-20 (1965) (Stampp’s emphasis).

The standard historical works on the response of the era to immigration, 
describing its crucial contribution to the adoption of Jim Crow and its identi­
fication of new immigrants as so fearfully subhuman as to require state action, 
include T. J. ARCHDEACON, BECOMING AMERICAN: AN ETHNIC HISTORY 158-172 
(1983); J. H icham , Strangers in th e  L and: Patterns of  American Nativism 
1860-1925, at 131-175 (1978); O. H andlin , T he U prooted  247-267 (2d ed. 
1973); see also J. S. Ha l ler , O utcasts from  E volution : Sc ien tific  At ti­
tu d es o f  Racial Inferiority ', 1859-1900, at 170-175 (1971).



17

bleminded in Connecticut (1915) with such popular southern 
works advancing Jim Crow as “The Negro a Beast”: Or “In the 
Image o f  G od” (1900); The Negro: A Menace to American Civi­
lization (1907). They were, alike, “a part of the then current lit­
erature of the ‘Yellow Peril’ school and the flourishing cult of 
Nordicism.”80

Champions of life-long segregation for retarded people ex­
plicitly invoked the then-exploding prejudice against black peo­
ple. For example, in 1903, Martin W. Barr, President of the 
American Association of Medical Officers for Institutions for Id­
iotic and Feeble-Minded Persons, addressed the virtues of “life­
long custodial service” in retardation institutions in these terms:

“[Tjhey partake of the industrial and manual training given 
in the antebellum days on the plantation, which were in fact 
— as the world is fast acknowledging — training schools for 
a backward race, many of whom were feeble-minded. ”81

The recitations of the arguments supporting life-long institu­
tional segregation of retarded people matched the recitations on 
behalf of Jim Crow: “the shibboleths of . . . the Negro's innate 
inferiority, shiftlessness, and hopeless unfitness for full partici­
pation in the white man’s civilization”; invocation of “the su­

80. C. V. Woodward, T he Strange C areer  o f  J im Crow 94 (3d rev. 
ed. 1974). Other standard historical works on Jim Crow include J. H. FRANKLIN, 
F rom Slavery to F reedo m : A History o f  Neg ro  Americans (5th ed. 1980); 
R. Kluger, S imple J ustice (1975); I. A. Newby. J im Crows D e f e n s e : Anti- 
Negro T hought in America 1900-1930(1965); G. M. F rederickson , T he 
Black Image I n the W hite Mind (1971).

81. Barr, State C are o f  the Feeblem inded, 76 N.Y. M e d . J. 1159 (1903). 
Com pare the 1900 address of the President of the Southern Education Asso­
ciation on behalf of Jim Crow, quoted in C. V. W oodw ard , supra note 80, at
95.

Champions of Jim Crow invoked the sterotypes of feeble­
mindedness against black people. For example, Henry Fairfield Osborn, lead­
ing paleontologist and President of the American Museum of Natural History 
from 1908 to 1933, wrote that the intelligence of "the Negro” rarely exceeded 

that of the eleven-vear-old youth of the species Homo sapiens ; A. B. Hart 
wrote, “the Negro mind ceases to develop after adolescence. Osborn, The 
Evolution o f  Human R aces, 26 Nat. Hist. 5 (1926); A. B. Hart, T he Southern 
South 104 (1910).



18

preme law of self preservation”; and the necessity of “the stronger 
and cleverer race, free to impose its will upon new caught, sullen 
peoples.”82 William Graham Sumners’ 1907 Folkways was seized 
upon to establish “the irremedial backwardness of the negro and 
the futility of efforts to improve him.”83

Asserted dangerousness was crucial to the arguments for per­
manent segregation. For Jim Crow, “a sensational press played 
up and headlined current stories of Negro crime . . . .  a daily 
barrage of Negro atrocity stories.”84 For life-long segregation of 
retarded people, the fiction of their dangerousness was also sys­
tematically invented and perpetuated. In Texas, for example, in 
1914, the State Conference on Charities and Corrections was 
told by one of its leaders:

“The refusal of Texas to make provision for its feeble-minded 
for the simple reason that from them they fear no personal 
bodily violence is an increasing menace to the mental and 
spiritual life of our State, in contrast to which the fancied 
physical safety is negligible. I have used the phrase fancied 
physical safety, advisedly, for security from bodily ills is not 
gained through segregation of the insane and promiscuous 
freedom of the feeble-minded. . . .Not only are the feeble­
minded a menace as regards actual criminal proclivities but 
they are equally a menace as regards public health. 85

The Jim Crow movement proceeded in “mounting stages of 
aggression” until, by 1911 “ ‘[i]ts spirit is that of an all-absorbing 
autocracy of race, an animus of aggrandizement which makes, in 
the imagination of the white man, an absolute identification of

82. C. V. W oodw ard , supra note 80, at 70, 72-73.
83. R. Klu g e r , supra note 80, at 86.
84. C. V. WOODWARD, supra note 80, at 86.
85. PROCEEDINGS (1914), supra note 10, at 63. The General Secretary of 

the National. Conference on Charities and Corrections had in 1899 set the Na­
tional Conference on a campaign to persuade the public that “the feeble­
minded” were dangerous. Johnson, Report o f  the Committee on Colonies fo r  
Segregation o f  Defectives, 30 Proc . Nat'l  C o n f . C harities & C orrections 
248-49 (1903), quoted in P. Tyor, supra note 76, at 184; see also Barr, The 
Im becile and Epileptic Versus the Taxpayer and the Community, 29 Pro c . 
Nat'l C o n f . C harities & C orrections 163 (1902).



19

the stronger race with the very being of the state. ’ ”86 As Richard 
Kluger has written:

“Keeping blacks separate, everyone understood, would pre­
vent contamination of white blood by the defective genes of 
colored people, whose unfortunate traits stemmed from their 
tribal origins in densest Africa and were incurably fixed upon 
the face from generation to generation. , . . [T]heir very 
blackness bespoke their low and brutish nature. All litera­
ture, folklore, and custom of the English-speaking peoples 
reinforced the notion that the African’s tawny hide was a 
primal stain.”87

The apotheosis of the demands of racial purity was. as the State 
of Kentucky represented to this Court in its brief in Berea Col­
lege v. Kentucky, 211 U.S. 45 (1908):

“If the progress, advancement and civilization of the twen­
tieth century is to go forward, then it must be left not only 
to the unadulterated blood of the Anglo-Saxon-Caucasian 
race, but to the highest types and geniuses of that 
race. . . .”88

The demands of “racial betterment” required the very most 
severe measures within their grasp. Solutions beyond segrega­
tion were examined but had to be discarded. The Texas pam­
phlet was illustrative: “. . . euthanasia, neo-malthusianism, and 
polygamy are either impossible under the protective forces of 
modern social conditions or are ideas repugnant to present day 
ideas of religion and humanity.” Segregation “has appealed to 
society’s feelings of humanity and fair play with greatest force.” 
Segregation is “the most feasible, most easily put into force, and 
least subversive o f  constitutional prerogative”89 — a plain state­
ment of the impact on the Era of Plessy v. Ferguson, 163 U.S. 
537, 544-52 (1896). Without Plessy’s permission, no state in con­
templation of the Fourteenth Amendment could have dared to 
impose life-long segregation upon any citizen.

86. C. V. W oodw ard , supra note 80, at 108.
87. R. KLUGER, supra note 80, at 305.
88. Id . at 87.
89. C. S. YOAKUM, supra note 10, at 82 (emphasis supplied).



2 0

State-imposed segregation was justified as benign and even 
beneficial to its victims according to the near constant profes­
sions of those who established it. Segregation of “the feeble­
minded,” the Texas rationale went, consistent with a “deep and 
abiding charity,” “permits all to live under those circumstances 
best suited to make each useful and happy.”90 As to segregation 
by race, a Texan wrote, “both races believe that a separate social 
life is most desirable and most practical.”91 Jim Crow in Texas 
was not “petty persecution of the Negro, attributed to a desire to 
humiliate, stigmatise, and degrade him, [it is] the embodiment 
of enlightened public policy, and is the surest guarantee of a 
minimum of friction between the races.”92 Separation, President 
Woodrow Wilson said, was “not humiliating, but a benefit . . . 
‘rendering them more safe in their possession of office and less 
likely to be discriminated against.’ ”93

The Cleburne ordinance excluding “homes for the . . . fee­
bleminded” is thus not an isolated enactment but the perpetu­
ation of a pattern of invidious inflictions.94 Indeed, the legislation 
from which Cleburne’s exclusionary provision is copied — Dal­
las’ ordinance of 192995 — was formulated in the era that estab­
lished the state regime for the life-long segregation of retarded 
people.

This case will determine whether that regime of segregation 
will be disestablished and whether a decent respect will be ex­

90. I d . at 83.
91. R. E. S m ith , C hristianity and th e  Race Problem  10 (1922).
92. A. H. Stone, Studies in the American Race Problem 64 (1908).
9.3. R. Kluger , s u p ra  note 80, at 91.
94. Amici had available to them, in the library of the University of Texas 

at Austin, current zoning ordinances of sixty Texas cities. Of these, the codes 
of twelve cities explicitly exclude homes for persons with retardation from neigh­
borhoods where comparable dwellings for noil-retarded persons are permitted. 
They are Amarillo Co d e , chs. 26-8, 26-ll(43a); Beaumont Co d e , 
§42-15(A)(l); Carollton Co d e , art. XY(14); Copperas Cove Co d e , §5(4)(m); 
D uncanville Co d e , art. 111(14); E dinburg Co d e , art. IV, §4-2(3): Killeen 
Co d e , eh. 9, art. 2, §8-l(fk Midland Co d e , S11 -1 - 10(A); New B raunfels 
Co d e , S6C.1-6; Port Neches Co d e , §24-6; San Angelo  Co d e , §33-2-14(6); 
Sulphur Springs Co d e , art.6(a).

95. The ordinances are set out in App. B.



2 1

tended to retarded people. Disestablishing that regime requires 
the full measure of equal protection lest retarded people be again 
treated as “unfit for citizenship.”96 97

II. CLASSIFICATIONS BASED UPON RETARDATION 
THAT EXCLUDE AND SEGREGATE RETARDED PER­
SONS ARE SUSPECT AND SHOULD BE GIVEN STRICT 
AND SEARCHING SCRUTINY.

A. A History of Purposeful Unequal Treatment Imposed By 
the State Triggers the Standard for Strict Scrutiny of Leg­
islative Classifications.

This terrible, purposeful life-long segregation of retarded 
people undertaken by the states to separate “them” out entirely 
from the rest of “us” constitutes the extraordinary “history of 
purposeful unequal treatment” that is the predicate of strict and 
searching scrutiny of legislative classifications. San Antonio In­
dependent School District v. Rodriguez, 411 U.S. 1, 28 (1973).

Retarded people as such97 “have . . . experienced a history 
of purposeful unequal treatment [and] been subjected to unique 
disabilities on the basis of stereotyped characteristics not truly 
indicative of their abilities.” Massachusetts Board o f  Retirement

96. 1920 Miss. Laws 288, set out at p. A-47.
97. The basis of classification that amici urge be held suspect is not the use 

of “intelligence” across the spectrum of capabilities, but rather the specific 
targeting of the lowest end of the spectrum, as such. The suspect criterion is 
not intelligence but the status of “being retarded. Thus fine points of state 
college admissions requirements or civil service examinations, for example, 
may rest upon rational bases. No people in this country ever have been forcibly 
sterilized or chained to the walls of an institutional back ward because they 
failed to gain admission to Harvard. The evil here is the targeting of retarded 
people as such. To be sure, college admissions based on SAT scores do dis­
criminate against retarded people, and retarded people (among others of us) are 
barred from Harvard (or Berkeley, if state action is wanted). But such discrim­
ination based upon intelligence under the Equal Protection Clause should be 
viewed as “indirect deprivation” as in Schweiker v . Wilson, 450 U.S. 221, 234 
(1981) or as “unintentional” or “incidental as in Washington v. Davis, 426 U.S. 
229, 238-48 (1976).



2 2

«• Murgia, 427 U.S. 307, 313 (1976). «* The disqualifications im­
posed by the regime of segregation are the most severe imagi­
nable among citizens: retarded people as such are “not only de­
prived of their physical liberty, [but] also deprived of friends, 
family and community. ” Parham v .J  .R., 442U.S. 584, 626(1979) 
(concurring & dissenting opinion).

Legislative classifications that segregate, exclude or isolate 
retarded people, precisely because they are based in this history 
of purposeful unequal treatment are thus “more likely than oth ­
ers to reflect deepseated prejudice,” Palmore v. Sidoti, 104 S. 
Ct. 1879, 1882 (1984); Plyler v. Doe, 457 U.S. 202, 216 n.14 
(1982), and to embody — as the ordinance here plainly does — 
exactly the kind of “class or caste” treatment that the Equal Pro­
tection Clause was designed to abolish. Such legislative classi­
fications should, therefore, be treated as presumptively invidious.

B. Retardation Is an Immutable Characteristic That Has 
Been Subject to Invidious Classification.

The characteristics of racial status that betoken a special vul­
nerability to historically provoked invidious classification, and 
that have thus caused the Court to apply a constant, searching 
scrutiny to disadvantaging racial classifications, are present also 
in the status of being retarded. That status is observable and 
immutable; retardation is present from birth or early thereafter 
through all of life, and is present through no fault of the retarded 
person, nor any reason within the person’s control.

In these characteristics, the status of being retarded is more 
like racial status than is illegitimacy, alienage or national origin, 
each of which the Court has variously said are suspect bases for 
classification. 98

98. Neither the aged, the mentally ill, alcoholics, drug addicts nor 'vic­
tims of cancer . . . , the unemployed, or bankrupts, " Brief for the United States 
as Amicus Curiae at 9, has ever been subjected to such a regime of state- 
imposed, life-long segregation.



23

The Court has regarded illegitimacy in many respects as 
analogous to the characteristics of a racial classification." Trimble 
v. Gordon, 430 U.S. 762, 767 (1977). Because of the mutability 
of illegitimacy and its essential social invisibility, even apart from 
the limited disqualification that status has historically imposed, 
the Court has declined to apply “strictest scrutiny” to illegiti­
macy. Id. In terms of suspect characteristics, illegitimacy resem­
bles a racial status less than does the status of being retarded. 
Retardation or skin color, unlike illegitimacy, cannot be elimi­
nated by the child’s parents subsequently marrying or filing a 
court paper acknowledging their responsibility for their child.

Although classifications based on alienage have been held to 
be “inherently suspect,”99 100 the Court has been willing to ap­
prove discrimination involving alienage on occasion because of 
the relative mutability of the status, its relative invisibility, and 
the absence of gross and pervasive hardships imposed on aliens 
as such.101 The classifications held offensive,the Court empha­
sized in Foley v. Connelie, 435 U.S. 291, 295 (1978), were “ex­
clusions” that “struck at the non-citizens’ ability to exist in the 
community.’’ On those occasions that it has permitted alienage 
classifications, the Court has noted that alien status is alterable 
by the individual persons who “in effect [choose] to classify them­
selves.” Ambach v. Norwick, 441 U.S. 68, 80 (1979); see Cabell 
v. Chavez-Salido, 454 U.S. 432 (1982). Moreover, in Plyler v. 
Doe, 457 U.S. at 220, the school exclusion imposed on alien chil­
dren was overturned precisely because the children were help­
less in changing their alien status (this would depend upon their 
parents) and because of the pervasive hardship worked on the 
children by their exclusion from education.

99. “ 'Visiting this condemnation on the head of an infant is illogical and 
unjust.’ . . . [Illegitimate children can affect neither their parents’ conduct nor 
their own status.” Trim ble v. G ordon , 430 U.S. 762, 769-70 (1977).

100. Graham v. Richardson, 403 U.S. 365, 372 (1970); Examining Board  
v. Flores de Otero. 426 U.S. 572, 602 (1976).

101. E .g ., Matthews v.Diaz, 426 U.S. 67(1976).



24

C. Utilization of a Suspect Standard for Disadvantaging Class­
ifications Will Not Be Fatal to Classifications That Benefit 
Retarded People.

Suspect class status does not mean that the classification can 
never be used for any purpose. Scrutiny of a classification based 
upon race must be “strict” and “searching” but it is not auto­
matically “fatal in fact.” G . GUNTHER, CONSTITUTIONAL LAW: 
CASES AND M a t e r ia l s  752 (1980). As to race itself, the Court 
has ordinarily applied strict scrutiny only to “disadvantaging ra­
cial classifications,” id. at 745-52, in particular to classifications 
that exclude or segregate (or are a part of the exclusionary re­
gime), e.g., Loving v. Virginia, 388 U.S. 1, 9-12 (1967). Fur­
thermore, this Court has upheld racial classifications under strict 
scrutiny so long as there is a sufficient showing that the classi­
fication in fact benefits the suspect class, overcoming past dis­
crimination or its virulent effects. Bakke, 438 U.S. at 355-62 
(Brennan, White, Marshall, Blackmun, JJ.); Fullilove v. 
Klutznick, 448 U.S. 448, 472 (Burger,C.J., White, Powell, JJ.); 
id. at 495, 496 & n. 1. (Powell, J.); id. at 517-19 (Marshall, Bren­
nan, Blackmun, JJ.); id. at 532, 548 (Stevens, J.) (1980).

Accordingly, special education programs for retarded chil­
dren would not fall. Thus, applying the Education for All Hand­
icapped Children Act of 1975, 20 U.S.C. §1401, the Court has 
held that the standard for “appropriate” educational programs 
provided for under the Act is that they be “reasonably calculated 
to yield educational benefit, ” akin to a minimum rationality stand­
ard. Board o f  Education o f  Hendrick Hudson School District v. 
Rowley, 458 U.S. at 203, 207 nn. 25, 28. But, under that Act, any 
exclusionary or isolating form of special education is justified only 
if a segregated program in fact benefits the child and its segre­
gation is demonstratedly necessary to that benefit, akin to a strict 
and searching standard. Roncker v . Walter, 700 F.2d 1058, 1063 
(6th Cir. 1983), cert, denied, 104 S.Ct. 196 (1984).i<* 102

102. The R oncker court correctly articulated the statutory test as “whether 
the services which make [the segregated] placement superior could feasibly be 
provided in a non-segregated setting. If they could, the placement in the seg­
regated school would be inappropriate under the Act.” This standard would



25

Thus, familiar classifications including retarded people in 
governmental assistance programs and in programs for special 
assistance (which the United States unaccountably raises as trou­
blesome103) are, like other welfare classifications, subject only to 
minimum scrutiny. Any classification in such a program, how­
ever, that segregates or excludes retarded people would trigger 
searching scrutiny and would be sustained only if the segregation 
in fact benefits retarded people and is necessary to secure that 
benefit.

D. Cleburne’s Exclusion of Retarded People from the Com­
munity Is Perverse: It Cannot be Justified on the Basis of 
Any Characteristic or Need of Retarded People.

The excluding legislative classification at issue here subjects 
retarded people “to unique disabilities on the basis of stereo­
typed characteristics not truly indicative of their abilities.” 
Murgia, 427 U.S. at 313. Indeed, “to the extent it reflects any 
[real] difference between [retarded people and non-retarded], it 
is actually perverse.” Craig v. Boren, 429 U.S. 190, 212-13(1976) 
(Stevens, J., concurring).

Separating retarded people is perverse. Plainly so when 
measured against any profession of benign purpose as to retarded 
people; less evidently, perhaps, because of the stereotype, but 
no less plainly when measured against any legitimate104 purpose

govern the continued provision of programs for retarded persons in institu­
tional settings, allowing those that demonstrated!) benefit retarded persons 
and that could not be provided elsewhere in a non-segregated setting.

103. If the problem is thought to be that special programs for retarded 
people exclude non-retarded people, the answer is that non-retardation can in 
no way be thought to be a basis for suspectness. If the problem is that special 
programs isolate retarded people, and hence trigger searching scrutiny, the 
practical answer is that special programs for retarded people need not isolate 
them, but that if they do truly isolate retarded people then, because of the risk 
that deep-seated prejudice and not any real benefit has prompted the isolation, 
the necessity of such isolation to benefit should  be searchinglv scrutinized.

104. The Court has rejected summarily argument that discrimination may 
be justified by a desire to discriminate as “unpersuasive on its face. E.g., 
Examining B oard v. Flores de Otero, 426 U.S. at 605; Buchannan v. Worley, 
214 U.S. 60 (1916).

“The Constitution cannot control such prejudices but neither can it tol-



2 6

concerning the quality of life and community for the rest of “us. ” 
Learning (and much else) by retarded people requires the 

example of other non-retarded people and in real-world envi­
ronments where what is learned is done.105 As for all people, but 
relatively more so for retarded people (it is one of their “differ­
ences”), learning by retarded people during all of life proceeds 
in significant part by imitation and example and in the concrete, 
rather than by generalization from one context into another. 
Learning by retarded people flourishes in properly structured 
and integrated environments; in isolation it is destroyed,106 

As members of the community, retarded people of all ranges 
of ability can and do maintain not only steady but productive 
jobs.107 Retarded people can and do significantly care for them­
selves, keep clean and even pleasing rooms, and respect the rights 
of others, for in the community you never know when a friend 
whose respect you wish to keep may drop in.108 Retarded people 
do make good neighbors, to their own benefit and their neigh­

erate them. Private biases may be outside the reach of the law, but the law
cannot, directly or indirectly, give them effect. ”

Patmore v. Sidoti, 104 S.Ct. at 1882.
105. See, e .g ,, Brown, et at., Toward the Realization o f  Integrated E d­

ucational Environments f o r  Severely H andicapped Students, 2 Rev.Am.Assn. 
E duc. Severely & Profoundly Handicapped 195 (1977); R. Horner & G. 
B ellamy, Structured Employment: Productivity and Productive Capacity, in 
Vocational Habilitation for Severely Handicapped Persons (G. Bellamy, 
et a l ., eds. 1979).

106. Thus, the loss in institutions of skills achieved by retarded people 
before  institutionalization, and the terrible explosion of aberrant behavior and 
injury in institutions, arise because the segregated retarded people have only 
their custodians and themselves to imitate. Youngberg v . Romeo, 457 U. S. 307, 
327 (1982) (concurring opinion); Pennhurst State School It Hospital v. Haider- 
man, 104 S.Ct. 900, 904 (1984).

107. Pr esid en t ’s C om m ittee  on M ental Retardation , T he Mentally 
R eta rd ed  W o rk er , An E conomic D isco very : Report  to th e  Presid en t  
(1983); Bellamy, et al., Habilitation o f  Severely and Profoundly R etarded: Il­
lustrations o f  Com petence, 10 E d . & T rng. M en t . Retard ed  174 (1975).

108. E .g., Pr esid en t 's C om m ittee  on M ental Retardation , T he L ead­
ing E d g e , S erv ice  Programs T hat W o rk : Report  to th e  Presid en t  (1978).



27

bors’.109 The abysmally ignorant stereotypes to the contrary do 
not withstand the facts or a correct understanding of what dif­
ference being retarded makes. Retarded people need assistance, 
as do all persons, often relatively more, but that means not ex­
clusion from the community but participation in it.110

The City of Cleburne’s excluding ordinance and the regime 
of segregation of which it is a part would create an “underclass of 
. . . citizens,” a permanent caste, perverse from the standpoint 
of any state purpose legitimate under the Equal Protection 
Clause. Plyler, 457 U.S. at 239 (concurring opinion). “We can’t 
ignore the significant social costs borne by our Nation when se­
lect groups are denied the means to absorb the values and skills 
upon which our social order rests.” Plyler, 457 U.S. at 221.

III. THE CONTINUED VIRULENCE OF CLASSIFICA­
TIONS EXCLUDING AND SEGREGATING ON THE 
BASIS OF RETARDATION REQUIRES THEY BE 
GIVEN STRICT AND SEARCHING SCRUTINY.
Observing the destructiveness of life-long segregation upon 

retarded people, Fernald and others later changed their minds 
and withdrew from their positions. But the power of the state 
had already been engaged and no personal apology could have 
dissolved its terrible force, nor did it. Once established the pur­
poseful regime of segregation and the deep-seated prejudices it 
legitimated are not so easily disestablished.

The extraordinary undertakings of the states, all of them, in 
that segregating Era “put the weight of government behind . . .

109. E .g., R. P e r sk e , New  L if e  in T he Neigh bo rh ood  (1980); cf. Co­
lumbus Board o f  Educ. v. Penich, 443 U.S. 449, 485 n.5 (1979) (Powell, J., 
dissenting) (“integration’ furthers the “essential” end that “diverse peoples of 
our country learn to live in harmony and mutual respect”).

110. The power of the stereotype is sometimes irresistible even by the 
most caring persons. In Romeo, for example, the Court observed that

[Respondent, in light of the severe character of his retardation, concedes that 
no amount of training will make possible his release.” 457 U.S. at 317. Yet ten 
months after the Court’s decision, Nicholas Romeo moved to a group home in 
Philadelphia and since April, 1983, has successfully lived in the community, 
working in a community workshop. Woestendiek, The Deinstitutionalization o f  
Nicholas Romeo, Phila. Inquirer Mag., May 27, 1984, at 18.



2 8

hatred and separatism” as virulent as racial hatred and separa­
tism. Bakke, 438 U.S. at 357-58 (Brennan, White, Marshall, 
Blackman, JJ.). "It would ignore reality to suggest that preju­
dices so like “racial and ethnic prejudices do not exist or that all 
manifestations of these prejudices have been eliminated.” 
Palmore v. Sidoti, 104 S.Ct. at 1882.

Substantial political victories in such enactments as the fed­
eral Education for All Handicapped Children Act, and the visible 
organization of the Associations for Retarded Citizens, National 
Down Syndrome Congress and People First organizations them­
selves do not differentiate retarded from black people; they show 
yet another direct parallel. The federal Education for All Hand­
icapped Children Act was as much a response to initial judicial 
“discovery” (and invalidation) of the gross discrimination by the 
States against retarded people111 as were the Civil Rights Acts of 
1964, 1965 and 1968 a response to Brown. In both instances, 
moreover, the legislation was belated recognition of past abuse 
and an expression of resolve to remedy this abuse. The Court has 
not read this belated political success” of blacks to mean that 
racial classifications by states are no longer suspect. Palmore v. 
Sidoti, 104 S.Ct. at 1882.112

Retarded people continue to be under the pains of the re­
gime of purposeful discrimination. Invidious statutes and ordi­
nances —  like the Cleburne ordinance — are still on the books 
and routinely applied to disadvantage retarded people.113 The 
continued virulence of classifications excluding people with re­

111. In its opinion in Rowley, 458 U.S. at 192-93, the Court recognized 
the origin of the Education Act in the judicial decision in Pennsylvania Asso­
ciation for R etarded Children v .Pennsylvania, 343F  .Supp. 245(E.D. Pa. 1972).

112. The enforceability against states of the congressional enactments, and 
even whether they have any meaning or not, may depend upon whether a 
Fourteenth Amendment right underlies them. Pennhurst State School ir Hos­
pital v. H alderm an, 451 U.S. 1, 16-18 (1981).

113. See, e.g ., zoning ordinances cited supra note 94; for state laws pro­
hibiting retarded persons from marrying, see Linn & Bowers, The Historical 
Fallacies Behind Legal Prohibitions o f  Marriages Involving Mentally R etarded  
Persons, 13 GONZAGA L. Rev. 625, 677-689 (1978).



29

tardation is plainly evident and is painfully experienced by re­
tarded people and their families. The practice of denying cor­
rective surgery to retarded children is longstanding.114

Notwithstanding the congressional realization that “the vast 
majority”115 of retarded persons institutionalized should not be 
in those institutions, and the continuing congressional concern 
and attention to the unending reports of abuse, neglect and de­
terioration of retarded persons in those institutions, thousands of 
retarded persons remain in segregated institutions subject to their 
acknowledged, decried, but ultimately condoned brutality.116 Re­
tarded people seeking to reenter the society from which they 
have been excluded face rejection, antipathy and hostility from 
organized society.117

Daily, the amici organizations have cause to try to assert 
against continuing prejudice and invidious official action the 
claims of retarded people to a decent respect. As the President’s 
Committee on Mental Retardation has reported:

“So much has happened in the past 25 years to reverse social 
policies, to change public attitudes, to open the way to re­
ducing the occurrence of mental retardation and to improve 
the quality of life for mentally retarded persons that we are

114. For evidence of the social acceptability of withholding treatment from 
retarded infants, see Hentoff, The Awful Privacy o f  Baby Doe, ATLANTIC, Jan., 
1985, at 54. For the persistence of the practice see note 74 supra.

115. S. R e p . No. 94-160, 94th Cong., 1st sess. 32 (1975).
116. C om pare Institutional C are and Services f o r  Retarded C itizens: H ear­

ing B efore the Subcomm. on the H andicapped o f  the Comm, on L abor and 
Human Resources, 98th Cong., 1st sess. 63-104, 224-30 (1983); with B. B latt 
& F. Kaplan, C hristmas in Purgatory: A Photographic E ssay on M ental 
Retardation (1974); see Youngberg v. Romeo, 457 U.S. at 310; Pennhurst 
State School & Hospital v. Halderman, 451 U.S. at 7.

117. See, e.g ., Keating, The W ar Against the Mentally Retarded, N.Y. 
Mag., Sept. 17, 1979, at 87; Finley, Arson Hits House Planned f o r  Retarded, 
Detroit News, Apr. 30, 1982; Ford, 2d Home fo r  Retarded Is Set Ablaze, De­
troit Free Press, Dec. 5, 1980; Christensen, “Not My Block” Reactions Greet 
Group Homes, Dayton Daily News, Mar. 18, 1984; see also D. & S. Rothman, 
T he W illow brook  W ars 180-99 (1984).



3 0

tempted to think the problem is essentially solved, that we 
can coast in on the momentum of these achievements. Noth­
ing could be fu rth er from the truth .118
By invoking the full measure of respect that the Equal Pro­

tection Clause requires be extended, this Court can assure that 
retarded people are not further treated as “unfit for citizenship” 
and disestablish the invidious regime. The country is beginning 
to recognize past error; states are beginning to return retarded 
citizens to their communities. The Court must not allow the 
Cleburne ordinance enacting the spirit of the segregating past to 
be utilized now to reverse a new beginning. To do so would be 
to officially sanction the regime of segregation again.

CONCLUSION
For the foregoing reasons, the Court should hold that re­

tarded people are a suspect class. On that basis, the judgment of 
the Court of Appeals should be affirmed.

Respectfully submitted,

Thomas K. Gilhool*
Frank J. Laski 
Michael Churchill 
Judith A. Gran 
Timothy M. Cook

Public Interest Law Center 
of Philadelphia 

1315 Walnut St., Suite 1632 
Philadelphia, PA 19107 
(215) 735-7200

Counsel f o r  amici curiae

Date: February 2, 1985

* Counsel o f  record.

118. PRESIDENT’S COMMITTEE ON MENTAL RETARDATION, MENTAL RETAR­
DATION, Past and Pr ese n t  259 (1977)(emphasis provided). In its report to the 
President the Committee went on to warn:

In truth we have only a beginning. Social policies have been only partially 
turned around, and could swing back again to repressive, restrictive, de­
humanizing methods of control.” Id.



A P P E N D I C E S



APPEN DIX A

COMPENDIUM OF PU RPO SEFU L STATE ACTION 
FOR THE SEGREGATION AND EXCLUSION OF 
RETARDED PERSONS IN THE F IF T Y  STATES 

AND THE DISTRICT OF COLUMBIA

This Appendix presents the official actions of the 
states promoting and requiring by statute the segrega­
tion of retarded people.* Amici have included a sampling 
of state reports of agencies, officials, committees and 
boards that constitute the legislative history and the post- 
enactment history of the laws that were adopted.** All 
italics have been added by amici.

CONTENTS

Northeastern States

Connecticut

Delaware.............

M ain e .................
M aryland...........
Massachusetts. .

Page 
A-l 

A-l 
A-4 

A-5 
A-5 

A-6

New Hampshire..........................................................A-9

New Je rs e y ..................... ........................................ A-10
New York...................................................................  A-12
Pennsylvania...........................................................  A-18
*In addition to the 50 states, the federal law enacted by the 

United States Congress to segregate retarded people found in the 
District of Columbia is set out at A-76-81.

**For a sampling of state actions affecting retarded people in 
other areas, e.g., restrictions on marriage, voting, and education, see 
Appendix B to the Amici Brief of the American Association of iMental 
Deficiency, et al.

A - i



C O N T E N T S— (C on tinued)

Rhode Island..............................................................A-20

Vermont...................................................................... A-21
Midwestern S ta te s ..................................................   A-22

Illinois...................  A-22

Indiana........................................................................ A-22
Io w a .............................................................................A-25

K an sas........................................................................ A-26
Kentucky.................................................................... A-29
M ichigan.................................................................... A-29

M innesota..................................................................A-32
Missouri...................................................................... A-32
N ebraska.................................................................... A-33
North D akota............................................................A-35

O h io ............................................................................ A-36
South D akota............................................................A-37

W isconsin ..................................................................A-42
Southern States................................................................A-44

Alabama...................................................................... A-44

Arkansas...................................................................... A-45
Florid a........................................................................ A-45
Georgia............................................     A-45

Louisiana.................................................................... A-46

Mississippi..................................................................A-47
North Carolina......................................................... A-48

Page

A-ii



C O N T E N T S— (C on tinued )

Page
Oklahoma..................................................................  A-49

South Carolina.......................................................  A-50

T en n essee........................................ ....................... A-51
T e x a s ........................................................................... A-52

Virginia.........................................................................A-57

West V irginia............................................................A-60

Western States.................................................................. A-61
Alaska........................................................................... A-61

Arizona.........................................................................A-61
California.....................................................................A-62

Colorado.......................................................................A-67

H aw aii.........................................................................A-68
Idaho............................................................................. A-68

Montana.....................   A-69

Nevada......................................................................  A-70
New M exico .............................................................. A-70

Oregon......................................................................  A-70

U ta h .................................. •.......................................A-72
Washington................................................................ A-73
W yoming.....................................................................A-75

District of Colum bia ...................................................  A-76

A-iii



Northeastern States

Connecticut. The first recorded provision of a spe­
cialized facility for retarded people in this country oc­
curred in Connecticut when the American Asylum for 
the Deaf and Dumb, located in Hartford, in 1818 counted 
among its students a few “idiot children.” REPORT OF 
the Com m ission ers on Idiocy to th e  General As ­
sembly OF CONNECTICUT 62 (1856). Later, the Con­
necticut legislature provided some funding for a private 
school in Lakeville. After the turn of the century, though, 
that facility began receiving a sharply increased number 
of residents, and it soon became a custodial institution. 
In 1906 the Director was already reporting that “remov­
als are almost unknown.” REPORT OF THE DIRECTORS 
and Su perin ten d en t  of the Connecticut School 
for Im bec iles  6 (1906).

Ry 1908 the operators of the facility claimed they had 
“a wide knowledge of the imperative need of providing 
permanent custodial care for the safeguarding of girls 
and women of feeble mind, and a growing appreciation 
of the preventive value of equal custodial care for the 
male of evil tendencies. Backed by effective legislation 
the care of the defective has resolved itself into a com­
paratively simply matter. . . . ” REPORT OF THE DIREC­
TORS and S u perin ten d en t  of the Connecticut 
School for  Im bec iles  12 (1908). “[T]he surest, most 
humane and most economical solution of the problem of 
prevention lies in providing custodial care for the feeble 
minded of every condition and/or a lifetime.” Id. at 13.

In 1911, the General Assembly enacted a statute pro­
viding that “imbecile[sj” could be admitted to the 
Lakeville facility by application of the “selectmen” of any 
town. 1911 Conn. Pub. Acts 1493, ch. 211. In 1913 the 
state formally took control of the institution by enact­
ment of a statute specifying that its “object” would hence­
forth be the “custody” of any “imbeciles resident of this 
state.” 1913 Conn. Pub. Acts 1765, ch. 160, §1.

A-l



A-2/C o n n ec ticu t

The following year, state officials reported that they 
were “of the opinion that the problem of the feeble­
minded in the State of Connecticut urgently demands a 
much more adequate provision for these unfortunate in­
dividuals than is now supplied. It has been estimated that 
there m ust be at least three thousand feeble-m inded in 
the State, and at the present time, provision is m ade fo r  
only three hundred.  It is a now recognized fact that feeble­
mindedness is to a much greater extent than insanity an 
inheritable condition and it is known that this class is 
particularly prolific. The criminal, the alcoholic, and the 
prostitute are all recruited from the ranks of the feeble­
minded. The only practicable way to restrict the growth 
of the feeble-mindedness in the state is to segregate  the 
feeble minded and particularly feeble-minded women 
during the child bearing-period. The question to be de­
cided is really this: Shall we of this generation accept the 
burden of this care, or shall we hand on to the next gen­
eration a much larger share? Undoubtedly failure to now  
segregate  the feeble-minded will result in an increasing 
prevalence of the condition as time goes on.” STATE OF 
Co n n ecticu t , B iennial Report  of Con necticut 
School for  Im b e c il e s , Lakeville , Conn., F or Two 
Years E nded  Septem ber  30, 1913-14, at 8 (Pub. Doc. 
No. 15, 1915). The report also recommended that the 
“institution should not be situated in the midst of a pop­
ulous village. While it should be convenient to railroad 
communication, it should be somewhat rem ote from  the 
centers o f  population fo r  reasons that are obvious.” Id. at 
7.

In order to gain public support for the new facility, 
Superintendent Charles T. LaMoure and the Board of 
Trustees of the School for Imbeciles published and dis­
tributed widely a pamphlet in which they claimed an ur­
gent need to “[s]top the supply of the vicious, the weak, 
the no-willed people who cannot support themselves in 
the community — of the criminals and prostitutes and 
paupers, by cutting off the supply at its source, namely



The N ortheast/A -3

— by providing adequate custodial care fo r  the feeb le­
minded o f  the S t a t e THE CONN. SCHOOL FOR IMBE­
CILES, T he Menace of the F e e b l e -Minded  in Con­
n ecticut  9 (1915). These “feeble-minded” people, 
“though really children, are allowed to go about through 
the community as though they were adults. They have 
an impaired sense of right and wrong, weak will power 
and no power of realizing the future. . . .

“Moreover, the feeble-minded are unusually prolific. 
Therefore the longer the State of Connecticut delays in 
making adequate provision for the feeble-minded, the 
greater the burden of feeble-mindedness she will have to 
bear in future [sic].” Id. at 3. But they proposed a solu­
tion: “The State has the opportunity of buying for this 
institution a large tract of forest and arable land — be­
tween six and seven hundred acres. . . . This property is 
in the central part of the State, remote from  centres o f  
population . . . and there is room for the institution to 
grow indefinitely.” Id. at 13. For this purpose, “[t]he trus­
tees of the Connecticut School for Imbeciles are asking 
the General Assembly for authority to sell the present 
plant, and to use the proceeds and $200,000 to be ap­
propriated by the State in the purchase of this property, 
and in equipping it for the needs of the institution. This 
would provide, aside from the necessary alterations to 
buildings, etc., sufficient cattle and farming implements, 
so that the institution could produce its own milk and 
vegetables, using fo r  the most part the labor o f  its high 
grade patien ts.” Id. at 14.

On February 25, 1915, a hearing was held before the 
state legislature’s Committee on Humane Institutions. 
One witness testified that “hardly a week goes by but 
what we have a case of a feeble-minded girl or boy called 
to our attention. We have no way of getting rid o f  these 
kinds of cases.” Connecticut School fo r  Imbeciles: H ear­
ings on H. B. No. 644 Before the Jo in t Standing Com­
mittee on Humane Institutions  20 (typed transcript, Feb. 
25, 1915) (statement of Mr. Kerner of Waterbury). An­



A-4/C o n n ec ticu t

other thought it necessary for “every feeble-minded child 
in the school [to be] eliminated or placed in a special 
class.” Id. (statement of Miss Wright of Stanford). Su­
perintendent Alexander Johnson of New jersey’s insti­
tution at Vineland brought to the Committee’s attention 
“this book called, 'The Menace of the Feeble-Minded in 
Connecticut,’ which was gotten up by the Board of Trus­
tees for the School of Imbeciles, and I would recommend 
anyone who has any doubt as to the proper care of that 
class to read this book very carefully.” Id. at 2 (statement 
of Dr. Johnson).

On May 20, 1915, the Connecticut legislature fol­
lowed the recommendations of the state officials and the 
witnesses at the hearing and appropriated the $200,000 
requested for an ambitious construction project on state- 
owned land at Mansfield Depot, an isolated railway stop 
sixty miles northeast of Hartford.

By the time he wrote his 1916 Biennial Report, Su­
perintendent LaMoure thought that “[t]he dangers as­
sociated with allowing the feeble-m inded to rem ain at 
large  among the general population have been so fre­
quently discussed that it is not necessary to do more than 
refer to them.” STATE OF CONNECTICUT, BIENNIAL RE­
PORT of th e  Co n n ecticut  T raining School for 
F e e b l e -Min d ed , Lakeville , Conn ., F or th e  Two 
Years E nded  Se pt em be r  30, 1915-16, at 7 (Pub. Doc. 
No. 15, 1917). He looked forward to the completion of 
the new institution, where, he noted, “[mjany of the male 
inm ates . . . are capable of doing a considerable am ount 
o f  satisfactory  fa rm  w ork  under supervision, and, with a 
proper farm we should be in a position to improve the 
quality of our food and save the State a considerable 
amount of money by raising vegetables, producing our 
own milk and eggs, and using rather than wasting our 
garbage by the keeping of pigs.” Id.

Delaware. On March 21, 1917, the Delaware Gen­
eral Assembly established the state’s first home for “the 
feeble-minded.” 1917 Del. Laws 597, ch. 172. The in­



The N ortheast/A - 5

stitutionalization of such persons could be sought by “any 
reputable citizen of the State,” which was to be ordered 
by the county judge “when by reason of such mental 
condition, or o f  existing social conditions , it would he 
detrim ental to any community o f  this State to allow such 
■person to remain at large.” Id. §9.

The legislature also adopted “AN ACT to provide for 
the sterilization of certain mental defectives,” 1923 Del. 
Laws, ch. 62, authorizing the surgery for those at the 
state home for whom a “physician, alienist and superin­
tendent unanimously determine that procreation is 
unadvisable.” Id.

Maine. In 1907, the Legislature of Maine established 
the “Maine School for Feeble Minded.” 1907 Me. Acts 
42, ch. 44. A special committee chaired by Governor Wil­
liam T. Cobb “[a]fter careful consideration,” located the 
institution “on an area of farmland. . . . The plan called 
for a large tract of land, which should be removed from 
any large town. . . . ” Hood, Vineland Observer, in 
PINELANDS, 60 YEARS: 1908-1968 (L. Moore, ed. 1968).

In 1921, the lawmakers extended those eligible for 
commitment to “idiotic and feeble-minded males, be­
tween the ages of six years and forty years, and females, 
between the ages of six years and forty-five years.” 1921 
Me. Acts 65, ch. 60. Four years later, the legislature au­
thorized sterilization for all those for whom that surgery 
“may be indicated for the prevention of the reproduction 
of further feeble-mindedness.” 1925 Me. Acts 198, ch. 
208.

Maryland. On March 31, 1888, the General Assem­
bly of Maryland passed “AN ACT to establish an asylum 
and training school for the feeble minded of the State of 
Maryland.” 1888 Md. Laws 268, ch. 183. In 1906, the 
lawmakers mandated that the institution “receive, care 
lor and educate, free of charge, all idiotic, imbecile and 
feeble-minded persons in this state” approved by the 
board of visitors of the facility. 1906 Md. Laws 653, ch. 
362. The law required that “all such persons shall re­



main in the care, custody and control  of the visitors of 
said institution, and the visitors of said institution are 
hereby authorized to retain all such persons  in their care, 
custody and control  at said institution, until such time as 
in the judgment of said visitors, or a majority of them, the 
welfare of such persons and the public interest  shall ju s­
tify or call for their release. . . . ” Id. at 653-54.

The Board of Visitors campaigned vigorously for in­
creased admissions. These reports revealed the 
institution’s segregating purposes: “One of the sad fea­
tures which hangs as a black cloud over the work, is the 
fact that some hundreds of children, many of whom are 
a burden to the fam ily  and a m enace to the community 
in which they live, are continuously knocking at our doors 
for admission, but only a small number of these can be 
received solely for want of funds to maintain them, though 
we have empty beds awaiting their reception.” TWENTY- 
FOURTH Report  of th e  Board of Visito rs of th e  
Rosew ood  State T raining School, Owings Mil l s , 
Baltim ore County 5 (1936).

Massachusetts. As a result of a legislatively com­
missioned report authored by Dr. Samuel Gridley Howe 
of the Harvard Medical School, S. G. HOWE, FIRST COM­
PLETE Report  Made to th e  Legislature Of  Mass­
ach usetts UPON IDIOCY 16, 30-55 (Mass. Sen. Doc. No. 
51, 1848), the Massachusetts legislature, on May 8, 1848 
appropriated $2,500 for an experimental school for idi­
otic children to be located in a wing of the Perkins In­
stitute for the Blind in Boston. Howe was named direc­
tor, and ten indigent “idiots” were selected as pupils. 
T hird and F inal Report on the Experim ental 
School for  T eaching and Training Idiotic Chil­
dren  305 (1852).

With perhaps a premonition of the evils that lurked 
in his creation, Howe stated in his final report: “Now the 
danger of misdirection in this pious and benevolent work 
is, that two false principles may be incorporated with the 
projected institutions which will be as rotten piles in the

A-6/M aryland



The N ortheast/A -7

foundations and make the future establishments deplor­
ably defective and mischievous. These are, first, close 
congregation; and, second, the life-long association of a 
large number of idiots; whereas, the true, sound princi­
ples are: separation of idiots from each other; and then 
diffusion among the normal population. . . . For these and 
other reasons it is unwise to organize establishments for 
teaching and training idiotic children, upon such prin­
ciples as will tend to make them become asylums for life.
. . . Even idiots have 7'ights which should be carefully 
considered! At any rate let us try for something which 
shall not imply segregating the wards in classes, remov­
ing them from our sight and knowledge, ridding our­
selves of our responsibility as neighbors, and leaving the 
wards closely packed in establishments where the spirit 
of pauperism is surely engendered, and the morbid pe­
culiarities of each are intensified by constant and close 
association of others of his class.” S. G. HOWE, REPORT 
of th e  S u perin ten d en t  to the T r u st ee s  of the 
Massach usetts School for Idiotic Children  
(1874).

Howe’s advice was forgotten and, by 1886, the Mas­
sachusetts legislature had established “a custodial de­
partment” for “custody of feeble-minded persons beyond 
the school age or not capable of being benefited by school 
instruction.” 1886 Mass. Acts & Resolves, ch. 298, §1. 
After the turn of the century, commitment procedures 
were modified to permit any  person, not just relatives, to 
seek the commitment of “feeble-minded” persons to the 
institution. See  1904 Mass. Acts & Resolves, ch. 459, §5; 
1906 Mass. Acts & Resolves, ch. 508, §12.

The superintendent of Massachusetts’ institution, 
Dr. Walter E. Fernald, reported in 1908 that “[t]he ex­
istence of this large institution is largely due to the de­
mands of parents, physicians, clergymen, court officers, 
social workers, and thoughtful people generally, that 
feeble-minded women should be perm anently removed 
from  the com m unity . In this State there is an urgent de­



A-8 /M a ssa ch u se tts

mand for the commitment and perm anent detention  of 
the higher grade cases of defect, where the social inca­
pacity and the moral weakness are more obvious than 
the mental backwardness. These cases cannot support 
themselves, and are most undesirable and troublesome 
members o f  society . ”  SlXTY-FlRST ANNUAL REPORT OF
th e  T r u st e e s  of th e  Massachusetts School for 
th e  F e e b l e -minded  at Waltham, for the Year end­
ing Novem ber  30, 1908, at 22-23 (1909).

On June 12, 1912, Superintendent Fernald deliv­
ered an influential speech as the Annual Discourse be­
fore the Massachusetts Medical Society, printed and 
widely distributed in pamphlet form by the Massachu­
setts Society for Mental Hygiene: “The past few years 
have witnessed a striking awakening of professional and 
popular consciousness of the widespread prevalence of 
feeble-mindedness and its influence as a source of 
wretchedness to the patient himself and to his family, 
and as a causative factor in the production of crime, pros­
titution, pauperism, illegitimacy, intemperance and other 
complex social diseases. . . . The social and economic 
burdens of uncomplicated feeble-mindedness are only too 
well known. The feeble-minded are a parasitic, preda­
tory  class, never capable of self-support or of managing 
their own affairs. The great majority ultimately become 
public charges in some form. They cause unutterable sor­
row at home and are a m enace and danger to the com ­
munity. Feeble-minded women are almost invariably im­
moral, and if at large usually become carriers of venereal 
disease or give birth to children who are as defective as 
themselves. The feeble-minded woman who marries is 
twice as prolific as the normal woman. . . . [SJegregation 
carried out thoroughly for a generation would largely re­
duce the amount of feeble-mindedness. The high-grade 
female imbecile group is the most dangerous class. They 
are not capable of becoming desirable or safe members of 
the community. They are never able to support them­
selves. They are certain to become sexual offenders and



The N ortheast/A-9

to spread venereal disease or to give birth to degenerate 
children. Their numerous progeny usually become pub­
lic charges as diseased or neglected children, imbeciles, 
epileptics, juvenile delinquents or later on as adult pau­
pers or criminals. The segregation of this class should be 
rapidly extended until all not adequately guarded at home 
are placed under strict sexual quarantine. Hundreds of 
known cases of this sort are now at large because the 
institutions are overcrowded. Only 2000 feeble-minded 
persons are now cared for in institutions in this State, 
and over 1000 applicants are awaiting admission to the 
institutions. There is an urgent dem and fo r  greatly in­
creased institutional provision  for this class. . . . ” W. 
F ernald , T he B urden  o f F e e b l e -Min d ed n ess 3, 7, 
10 (1912).

New Hampshire. On March 22, 1901, the New 
Hampshire General Court enacted legislative to “estab­
lish and maintain” the “New Hampshire School for the 
Feeble-minded Children.” 1901 N.H. Laws 597, ch. 102, 
§1. Although that law limited admissions to “the idiotic 
and feeble-minded, between three and twenty-one years 
of age,” id., amendments added four years later made 
provision for others “after they reach the age of twenty- 
one, if in the judgment of the board of trustees their seg­
regation seems to be fo r  the best interests o f  the commu­
nity. . . . ” 1905 N.H. Laws 413, ch. 23, § 1, first for women, 
id., and later for men as well, 1917 N.H. Laws 645, ch, 
141, §1. Later, in 1917, the General Court adopted “AN 
ACT PERMITTING STERILIZING OPERATIONS” for 
those for whom that surgery “may be indicated for the 
prevention of the reproduction of further feeble­
mindedness.” 1917 N.H. Laws 704, ch. 181, §2. In 1929, 
the law was extended to permit the superintendent of the 
institution, if “of opinion that it is for the best interests of 
the inmate and o f  society” to authorize the surgery with­
out the consent of the “feeble-minded” resident, if after 
a hearing the governing board of the institution finds that 
the resident “is the probable potential parent of socially



inadequate offspring likew ise afflicted .” 1929 N.H. Laws 
162, 164, ch. 138, § § 1, 6.

New Jersey . The New Jersey General Assembly in 
1888 established the first New Jersey “home” for the 
“feeble-minded” at Vineland. 1888 N.J. Laws. 267, ch. 
208.

By 1906, state officials were calling for permanent 
segregation: “It is a fact that the Institutions in New Jer­
sey for the care and training of the feeble-minded do not 
begin in any way to cover the number of those who should 
be in the Institutions, and it seems that the Governor, the 
Legislature and the Commissioner of Charities in their 
wisdom might hold a conference with the Boards of the 
Feeble-Minded Institutions, looking towards the segre­
gation o f  all the feeble-m inded who are now at large. The 
feeble-minded belong to that class of defectives of either 
hereditary degenerates or whose condition is of such a 
character as should be treated like them, and for whom 
the time has come fo r  complete and perm anent control.” 
Annual Report  of the State HoiME for the Care 
and T raining of F e e b l e -Minded  Women at 
VINELAND, 1906, at 6 (1907). The report indicated that 
“[t]he most celebrated authorities on the care and seg­
regation of the feeble-minded and other defectives are 
very much in favor of the colonization o f  all defectives 
where the development of its members could be properly 
classified.” Id. at 7.

The legislature began its response in 1911, by pass­
ing “An Act to authorize and provide for the sterilization 
of feeble-minded (including idiots, imbeciles and mo­
rons).” 1911 N.J. Laws 353, ch. 190. That law created a 
“Board of Examiners of Feeble-minded,” which, upon a 
“findfing] that procreation is inadvisable and that there is 
no probability that the condition of such inmate so ex­
amined will improve to such an extent as to render pro­
creation by such inmate advisable,” was authorized “to

A-10/N ew  H am psh ire



The N ortheast/A -l 1

perform such operation for the prevention of procreation 
as shall be decided by said board of examiners to be most 
effective. . . . ” Id. §§ 1, 3.

Two years after its enactment, the New Jersey Su­
preme Court ruled that New Jersey’s law violated the right 
to equal protection of the laws. Smith v. Board o f  Exam ­
iners o f  Feeble-Minded, 85 N.J.L. 46, 88 A. 963 (1913). 
The court noted that “the feeble-minded and epileptics 
are not the only persons in the community whose elim­
ination as undesirable citizens would, or might in the 
judgment of the legislature, be a distinct benefit to so­
ciety. . . . Racial differences, for instance, [also] might af­
ford a basis for such an opinion in communities where 
that question is unfortunately a permanent and para­
mount issue.” 88 A. at 965. The court concluded that “it 
is clear that the order with which we have to deal threat­
ens possibly the life, and certainly the liberty, of the 
prosecutrix in a manner forbidden by both the state and 
federal Constitutions, unless such order is a valid exer­
cise of the police power. . . . The general limitation of such 
power to which the prosecutrix must appeal is that under 
our system of government the artificial enhancement of 
the public welfare by the forceable suppression of the 
constitutional rights of the individual is inadmissible.” 
Id. at 965.

In 1915, the legislature provided for more pervasive 
segregation of retarded people through the admission to 
Vineland of “mentally defective men, women and chil­
dren, o f  all ages and grades. . . .” 1915 N.J. Laws 278, 
ch. 151, § 2. By 1918, the lawmakers had authorized “the 
location of additional colonies upon forest reserve or other 
lands owned by the State.” 1918 N.J. Laws 410, ch. 147, 
art. 6 § 636. It was in these institutions that the “in­
mates” were to be “kept.” Id. at 409, 410, §§ 631, 635. In 
1919, the legislature required relatives “to waive all right 
to remove either perm anently or fo r  a lim ited tim e” their 
kin from any institution. 1919 N.J. Laws 508, ch. 217, §



A-12/New York

New York. On July 10, 1851, the Legislature of New 
York adopted “AN ACT to establish an asylum for idiots.” 
1851 N.Y. Laws 941, ch. 502.

It was not until 1894 that the New York legislature 
established an institution in Oneida County purely for 
the “custody  of unteachable idiots,” designated as “the 
Rome State Custodial Asylum.” 1894 N.Y. Laws 806, ch. 
382.

The movement to segregate began most earnestly at 
the same time as the citizenry began to express concern 
about the “rising tide” of immigration. In 1905, for ex­
ample, an article in the New York Times  typical of those 
appearing during this period discussed the urgent need 
for “remedying the evils which have too long been tol­
erated in the ‘dumping’ of undesirable immigrants into 
this country.” Undesirable Im m igration,  N.Y. Times, 
Feb. 10, 1905, at 6, col. 3.

In 1911, the first of many studies purporting to link 
“feeblemindedness” with the new immigration was pub­
lished under the auspices of the State Charities Aid As­
sociation. The survey found that all but 40 of 317 “men­
tally defective” children selected “at random” from thirty- 
two ungraded classes in the New York public schools 
were either foreign-born or the children of foreign par­
ents. A. Mo o re , T he F e e b l e -Minded  in New  Yo rk : A 
Repo rt  Prepared  for  the Public  E ducation Asso ­
ciation of New  York, N.Y. (1911).

By 1912, the New York Times  was reporting a defi­
nite link between immigration and “feeble-mindedness.” 
An article appearing on February 18, 1912 quoted “[a]n 
important report of the special committee appointed by 
the New York Society for the Prevention of Cruelty to 
Children to investigate the subject of abnormal and 
feeble-minded children. . . . ” Feeble-M inded Scholars 
M ake Up 1 Per Cent o f  the School Population, Investi­
gators Report,  N.Y. Times, Feb. 18, 1912, at 8, col. 4. 
The report stated that there were in New York City 
“ 10,000 mental or moral defectives who now roam at large



The Northeast/A-13

in the community without any proper parental supervi­
sion or medical care. Recent census statistics show that 
80 per cent of the feeble-minded children in the general 
population of the United States are the progeny of aliens 
or naturalized citizens. We may safely assume, there­
fore, that at least 8,000 of the 10,000 feeble-minded chil­
dren in the city today were brought here by or are the 
offspring of the 9,000,000 aliens who have passed 
through Ellis Island during the past ten years.” Quoted 
in id. at cols. 4-5.

Three weeks later, the New York Times  featured an 
article on Henry H. Goddard, who was a state adminis­
trator for New Jersey’s retardation institution at Vineland. 
The report began: “From the army of 300,000 feeble­
minded persons in the United States come the recruits 
that swell the ranks of the drunkards, criminals, pau­
pers, and other social outcasts. Twenty-five per cent of 
the girls and boys in our reformatories are lacking in men­
tal fibre and are unable to discern the difference between 
right and wrong or are too weak in character to do right 
whenever there is any inducement to do wrong. Sixty- 
five per cent of the feeble-minded children have a mother 
or a father, or both, who are feeble-minded. This country 
has so far taken no steps to segregate these irresponsible 
parents, so the number of them is constantly increasing. 
These facts, and many more equally startling, are set forth 
in an article written for The Survey by Dr. Henry H. 
Stoddard, [sic] director of the department of research of 
the training school at Vineland, N.J. ‘Our Government 
spends hundreds of thousands of dollars examining im­
migrants to see that none who are feeble-minded are ad­
mitted,’ writes Dr. Stoddard [sic]; ‘but here is a group 
already in our country who are breeding a race of feeble­
minded people more dangerous than many barred by the 
Immigration Inspectors.’ ” W eak-Minded Fill R anks o f  
Criminals: Dr. Henry Stoddard [sic] Says Social Prob­
lems Can Be Solved By Segregating Them, N.Y. Times, 
Mar. 10, 1912, at 6, col. 3. Goddard urged, in language



A -14/New York

later quoted in some state statutes, “permanent care 
where they will be happy and harmless,” for all those 
“unable to compete with their fellows on equal terms. . . . 
This army furnishes the recruits for the ranks of the crim­
inals, paupers, drunkards, the ne-er-do-wells, and others 
who are social misfits.” Quoted in id. “[W]hat then is to 
be done?” he asked. Dr. Goddard answered his own ques­
tion by proposing that “[a]fter these cases have been dis­
covered they must be removed from the environment in 
which it has been proved they are incapable o f  living 
norm al lives in accordance w ith the conventions o f  so­
ciety. They must be colonized in groups where they may 
be perfectly happy and somewhat useful. Only one lim­
itation needs be placed upon them in these places, and 
that is they must never become parents.” Quoted in id. 
Goddard concluded by emphasizing that “[w]e are dis­
cussing a possible State policy . . . many parents are ei­
ther normal or of such a high grade of defectiveness that 
they never get into court and yet have feeble-minded chil­
dren. We cannot touch these adults. We must somehow 
get hold of their children. . . . We may reasonably hope 
that a policy of segregation, carefully followed, will in a 
generation or two largely reduce our feeble-minded pop­
ulation and thereby solve our problems of criminals, dis­
ease, drunkenness, and crime.” Quoted in id. at cols. 3-4.

On April 16, 1912, the legislature created a new state 
board and empowered it to authorize the sterilization “by 
such operation for the prevention of procreation as shall 
be decided by said board to be most effective,” “any” in­
stitutionalized person who, in the judgment of the board, 
“would produce children with an inherited tendency” to 
“feeble-mindedness, idiocy or imbecility.” 1912 N.Y. 
Laws 924, 925, ch. 445, §351.

New York’s special treatment of its “alien defectives” 
during this period is evidenced by the response state of­
ficials gave to a survey form sent to each state on June 
20, 1912 by a Pennsylvania commission gathering infor­
mation to assist the latter state in expanding its own in­



The N ortheas t/A-15

stitutions. New York’s response indicated that the state 
already had nearly 6,000 citizens segregated, noting spe­
cially that it “contributes towards the support of the alien  
poor patients in these institutions. ” REPORT OF THE COM­
MISSION on th e  Segregation , Care and T reatm ent 
of F e e b l e -Min ded  and E pileptic  Perso n s in th e  
Commonwealth of Pennsylvania 28, 31 (1913). No 
other group was singled out by New York officials for 
special support.

It was also about this time that the newly reknowned 
Henry Goddard was invited by the United States Public 
Health Service to administer Binet’s I.Q. test to the south­
ern and eastern European immigrants arriving in steer­
age at Ellis Island. “[G]iv[ing] the immigrant the benefit 
of every doubt,” he found that 79% of the Italians, 80% 
of the Hungarians, 83% of the Jews, and 87% of the Rus­
sians he tested were “feeble-minded.” Goddard, Mental 
Testing and the Im m igrants, 2 J. DELINQUENCY 243, 
249, 252 (1917).

The New York Times  reported in an article entitled 
Alien Defectives  appearing on January 13, 1913 that since 
“three-tenths of feeble-minded children are of alien or 
naturalized parents, the problem of detecting defective 
immigrants is very grave.” N.Y. Times, Jan. 13, 1913, at 
10. The account cited a recommendation by Assistant 
Surgeon C. P. Knight of the United States Public Health 
Service at Ellis Island, writing in the January 11 issue of 
the Am erican M edical Association Journal,  for “control­
ling the procreation of the mentally defective by segre­
gating them.” Alien Defectives, supra.  As Dr. Knight had 
stated, “[t]here is scarcely a ship coming into the Port of 
New York which does not carry among its passengers a 
mental defective of some degree.” Id., quoting  Knight, 
The Detection o f  the Mentally Defective Among Im m i­
grants, 60 A.M.A.J. 106 (1913).

In the A.M.A. Jou rn al  article, Dr. Knight explained 
that he had “becom[e] familiar with different races” so 
he could “tell at a glance the abnormal from the normal.”



A-16 /N ew  York

Id. at 107. “In studying the physical characteristics of 
mental defectives, the various ethnologic types are easily 
discerned: the dark skin, the curly hair and thick lips of 
the Ethiopian, the prominent and high cheekbones and 
deep orbits of the American Indian and the straight coarse 
hair and peculiar cast of countenance of the Mongolian.” 
Id. Even “more important in the determination of the 
mental status of the alien,” according to Dr. Knight, was 
“close application to the study of the race.” Thus, exam­
iners “should interpret the mental reaction of the alien 
only after having full knowledge of the different racial 
characteristics, for that which is a defect in an individual 
of a race o f  high m ental attainm ent  may be a normal 
condition in the existence of other people who have not 
atta in ed  the sam e grade o f  development. It is perfectly 
normal for the southern Italian to show emotion on the 
slightest provocation but should he show the stolidity and 
indifference of the Pole or Russian, we would look on 
him with suspicion and perhaps hold him for a detailed 
examination.” Id. By the use of such techniques, Knight 
hoped to “reduc[e] to a minimum the entrance into this 
country of the mentally and morally low type of alien. 
Immigration largely contributes to the high percentage 
of this class in the United States.” Id. at 106.

By 1914, the “defectives” were being expelled from 
the public schools. As the New York Times  editorialized: 
“If the policy recommended by the Board of Education’s 
committee on ungraded classes had been sensibly 
adopted in the beginning a good deal of money might 
have been saved for teaching sound-minded children that 
has been wasted on mental defectives who could not be 
helped. The report says: ‘Most imbeciles and all idiots 
can in no way derive any lasting benefits from atten­
dance at the public schools. Their mental condition can­
not be improved either by the course of study or disci­
pline. The only practical and humane solution is insti­
tutional care.’ ” The Feeble-Minded in Schools, N.Y. 
Times, Mar. 13, 1914, at 8, col. 4.



The N ortheast/A-17

That same year, as a result of the public demand for 
action, the legislature created a special State Commis­
sion to study the problem, as urged by the New York 
Times. 1914 N.Y. Laws 772, ch. 272.

The Commission believed that “we are now in a po­
sition where it is both a duty and a privilege to adopt a 
complete system  o f  public provision  that will in a very 
large measure elim inate the burden o f  feeble-m indedness 
from  the c o m m u n ity Id .  at 18.

Sterilization, according to the Commission, was no 
panacea, since surgery prevented only parenthood, and 
did not eliminate the other social menaces stemming from 
permitting “defectives” to be at large. Moreover, such a 
law might lead to “withdrawfl] from the influence o f  our 
institutions  large numbers of feeble-minded who other­
wise might be amenable to whatever advantages and 
w hatever custodial provision was m ade.” Id. at 19. STATE 
of New  York , Report  of th e  State Commission  to 
Investigate Provision for th e  Mentally De f i­
cien t  19 (1915).

The major problem, according to state officials, was 
that thousands of “mental defectives are at liberty in the 
community today . . . without restraint or public con­
trol.” Id. at 34. “To attempt reformation is a gross waste 
of time and of money. The average cost per inmate in a 
specially organized institution for defectives is half of the 
average cost in our reformatory institutions.” Id. at 35. 
The solution was to expand the institutions and to bring 
more of the “defectives” under control.

Accordingly, the legislature enacted on May 14, 1919 
“AN ACT in relation to mental defectives. . . .” 1919 N.Y. 
Laws 1683, ch. 633. The law defined “mental defective” 
to mean “any person afflicted with mental defectiveness 
from birth or from an early age to such an extent that he 
is incapable of managing himself and his affairs, who for 
his own welfare or the welfare of others or o f  the com­
munity  requires supervision, control or care, and who is 
not insane or of unsound mind. ”/d. at 1684, art. 1, § 2(5).



A-18/New York

The legislation established a procedure for certifying that 
one’s mental defect was “of such a nature as to require 
his supervision, control  and care for his own welfare and 
for the welfare of others or fo r  the w elfare o f  the com ­
m unity.” Id. at 1697, art. 4, § 26. This determination was 
to be made by “qualified examiners.” Id. § 25.

As a result of this law, state officials were soon over­
whelmed with retarded people to segregate. The State 
Commission for Mental Defectives indicated in 1926 that 
although it was “gratifying to report progress during the 
year in additional housing for mental defectives[, t]he 
need of more beds is so great that it outweighs other con­
siderations.” State of New  York, E ighth Annual Re ­
port of th e  State Com m ission  for  Mental De f e c ­
t iv e s , J uly 1, 1925 to J une 30, 1926, at 7 (Leg. Doc. 
No. 92, 1927). The scope of the physical expansion ne­
cessitated by the 1919 law was noted in the agency’s An­
nual Report: “Defectives who are detrimental to society 
cannot be segregated  until institution bed capacity is in­
creased. Those of too low grade intelligence to be cared 
for in the public schools are often neglected at home and 
a source of economic disaster to the family. The segre­
gation  o f  these in institutions  awaits erection of new 
buildings.” Id. Thousands of beds were planned and pro­
vided throughout the state. Id.

Pennsylvania. In 1893 the Pennsylvania General As­
sembly authorized the construction of a large institution 
in western Pennsylvania with a capacity for at least “eight 
hundred inmates,” to include a “custodial or asylum de­
partment.” 1893 Pa. Laws 289, 290, No. 256, § 7. The 
facility was to be for the “reception” and “detention” of 
“idiotic and feeble-minded children,” id. at 291, § 10, the 
sole restriction being that they be “under the age of twenty 
years,” id. § 11. By 1903, a second institution similarly 
organized was authorized to be built in the eastern part 
of the state. 1903 Pa. Laws 446, No. 424.

In 1911, the Pennsylvania Conference of Charities 
and Corrections argued to the legislature that it had a



The Northeast!A - 19

large problem on its hands. The legislature decided that 
a comprehensive study was necessary, and so adopted a 
joint resolution to establish a special commission, “the 
duty of which Commission shall be to take into consid­
eration the number and status of feeble-minded and ep­
ileptic persons in the Commonwealth and the increase of 
such persons, and to report to the General Assembly at its 
next session a plan or plans for the segrega tion, care, and 
treatment of such defectives. . . . ” 1911 Pa. Laws 927, 
§ 1. The resolution was enacted because the legislature 
felt that “[a] proper regard for the public welfare requires 
that some action be taken looking to the segregation of 
such feeble-minded and epileptic persons.” Id. (pream­
ble).

On April 21, 1913, the Commission reported to the 
legislature that “[w]here the mental disability is of a de­
gree which renders the afflicted individuals unfit for cit­
izenship, or a menace to the peace, they are regarded and 
treated as anti-social beings, and may be permanently 
segregated in institutions especially constructed for their 
reception and care. The condition of mind in amentia is 
irremediablef;] the segregation as the rule should there­
fore be permanent.” REPORT OF THE COMMISSION ON 
the Segregation , Care and T reatment of F e e b l e - 
Minded  and E pileptic  Perso n s in the Common­
wealth of Pennsylvania 43 (1913).

The Commission considered retarded people “such 
an unpleasant burden, that parents usually are more than 
willing to part with them,” id. at 38, but “[legislation” 
was “needed to compel the segregation of feeble-minded 
and epileptic persons,” id. at 40. Who was to be incar­
cerated? “[A] type of mind must be established as a nor­
mal standard for the age, race and social status of each 
individual, and he who falls below this to a recognizable 
degree is ipso facto feeble-minded.” Id. at 42.

Six weeks later, the legislature enacted comprehen­
sive legislation, creating a new official purpose for the 
state’s institution: “segregation” of all “idiotic, imbecile



A-20/P en n sy lvan ia

or feeble-minded persons,” 1913 Pa. Laws 494, No. 328, 
§ 1, and the removal of all age restrictions on admissions, 
id. at 496, § 3. The lawmakers also established a new 
“Village for Feeble-Minded Women” to be “entirely and 
specially devoted to the reception, segregation [and] de­
tention” of “feeble-minded women of child-bearing 
age. . . .” 1913 Pa. Laws 1319, No. 817. By 1922, the 
Superintendent of the Eastern Pennsylvania State Insti­
tution for the Feeble-Minded was reporting that “the gen­
eral public [is] now convinced more than ever that it is a 
good thing to segregate the idiot and the imbecile.” R. 
Sm ilovitz , a Br ie f  History  of Pen n h urst  
1908-1926, Com piled  from  S u perin ten d en t ’s Doc­
um en ts (1974).

Rhode Island. The General Assembly of Rhode Is­
land enacted in 1907 “AN ACT FOR THE ESTABLISH­
MENT, MAINTENANCE, MANAGEMENT, AND 
CONTROL OF THE RHODE ISLAND SCHOOL FOR 
THE FEEBLE-M IN DED.” 1907 R.I. Pub. Laws 89, ch. 
1470. Within the institution there was created a special 
“custodial department for the care and custody of feeble­
minded persons beyond school age, or who are not ca­
pable of being benefited by school instruction.” Id. at 90, 
§ 3. Institutionalization could be sought by filing a “com­
plaint in writing” alleging that "any person within the 
district wherein such court is established is 
feeble-minded, so as to require restraint for his own wel­
fare or for the welfare of the public.” Id. at 91, § 6.

The purpose of the institution, according to the first 
annual report to the legislature, was to “not only protect 
the [feeble-minded] children themselves, but at the same 
time to guard society against the children.” REPORT OF
th e  Rhode Island School for th e  F e e b l e -Minded  
IN EXETER 20 (1910). State officials strongly encouraged 
parents to commit their children voluntarily to the facil­
ity: “Society is made up of families and when the family 
suffers society suffers. Talk with any one who has had 
the opportunity to know intimately the history of families



The N ortheast/A-21

in which there have been feeble-minded children, and 
let him tell of the cases of fathers driven to drink, whole 
families plunged into poverty and pauperism, and of 
mothers made insane or even done to death by the pres­
ence  of the unfortunate child in the home.” Id. at 21.

Vermont. In 1913, the General Assembly of Ver­
mont created the “Vermont State School for 
Feeble-minded Children.” 1913 Vt. Acts 96, No. 81, § 1. 
Proceedings to place a retarded person in the institution 
could be initiated by, in addition to a parent or guardian, 
any “selectman of the town . . .  in which such child re­
sides.” Id. at 98, § 13.

In 1916, state officials “report[ed] that the people in 
Vermont are beginning to take a marked interest in the 
study of feeble-mindedness, and its baneful and increas­
ing effects on the population  of the State, and that with 
a better understanding of the conditions which exist, 
there will be a tendency to view the handling of the ques­
tion in a more practical and common sense manner. The 
burden of feeble-mindedness is felt by the entire public, 
and every intelligent person who has carefully consid­
ered the subject realizes that this blight on m ankind  is 
increasing at a rapid rate, and that unless radical meas­
ures are adopted to curb the influences which tend to 
promote its growth it will only be a matter of time before 
the resulting pauperism and criminality will be a burden 
too heavy for any country or people to bear. The feeb le­
minded are a parasitic, predatory class, never capable of 
self-support or of managing their own affairs, and the 
majority of them ultimately become public charges.” RE- 
po rtof th e  Verm ont State School for th e  F e e b l e - 
Minded  Children  for the Period  E nding Septem ­
ber 30, 1916, at 17-18 (1916).

As a result of the actions of the state, “[t]he public is 
now fully aware of the danger the defective is at large  and 
realizes the importance of instituting means for their con­
trol. There is nothing that can be done more effectively 
toward the prevention of feeble-mindedness, crime and



A.-22/V erm ont

poverty and toward the prom otion o f  our best citizen­
ship, than to segregate the feeble-m inded  and properly 
care for them.” Id. at 18.

Midwestern States
Illinois. On June 24, 1915, the Illinois General As­

sembly passed a bill establishing a facility as an institu­
tion for the “detention  of feeble-minded persons.” 1915 
111. Laws 245. Such “detention” was mandated not only 
for the retarded person’s “own welfare,” but also “for the 
welfare of others, or fo r  the welfare o f  the community 
so long as the person was “not classifiable as an ‘insane 
person.’ ” Id. at 245-46, §1. “[A]ny reputable citizen of 
the county in which such supposed feeble-minded per­
son resides or is found could seek the institutionalization 
of such a person by filing a petition stating that it was 
detrimental “to the w elfare o f  the community, fo r  him to 
be at large.” Id. at 246, §3. The “guiding and controlling 
thought of the court” at these proceedings was to be not 
only “the welfare of the feeble-minded person” but also 
“the w elfare o f  the com m unity.” Id. at 249, § 9.

Indiana. In 1914, Indiana officials reported to the 
Governor that there were still “at the most conservative 
estimate that can be made, at least four thousand feeble­
minded in Indiana” requiring institutionalization, and 
that “[these] people are at large, a nuisance to the com­
munity  in which they live; nearly all of them paupers; 
many of them petty criminals; the women filling the 
houses of prostitution; all of them poor, improvident, lazy 
— in short, incompetents. These people are increasing 
rapidly, and unless cared for will, in the next hundred 
years, bring an unbearable burden on our grandchildren 
and great-grandchildren. Shall we leave them such an 
inheritance, or shall we do something now to stop it? 
Were we to put all these four thousand defectives now at 
large into institutional care today, this institution could 
provide for practically all needing the care of an institu­



The M idwest/A-23

tion at the end of the next fifty years. No provision is 
made for adult male feeble-minded in this State, and these 
men should be segregated from  the world  in some place 
where they could be made in a measure self-supporting.” 
Thirty-S ixth  Annual Report of the Indiana 
School for  F e e b l e -Minded  Youth for th e  F iscal 
Year E nding Septem ber  30, 1914, at 14 (1914).

In 1915, the Board of State Charities of Indiana 
adopted a resolution that read: “Whereas, The problem 
of the mental defective is one of our greatest social as 
well as financial burdens and is increasing in importance 
and weight every year, and Whereas, Mental defective­
ness is believed to be one of the most important if not the 
most important cause of pauperism, degeneracy and 
crime,” resolved that a committee be established to make 
recommendations concerning this problem. Governor 
Ralston acted favorably on this resolution and appointed 
a Committee on Mental Defectives.

The work of the Committee and its first report, on 
November 10, 1916, was used to convince the governor 
and the legislature that it was “imperative that the State 
must very soon take cognizance of the large number of 
dependent defectives at large in the State, a menace to 
society, increasing at a rapid rate, and take steps to seg­
regate them from  the public, and thus check their repro­
duction not alone as a matter of philanthropy, but as an 
economic measure.” THIRTY-EIGHTH ANNUAL REPORT 
OF THE INDIANA SCHOOL FOR FEEBLE-MINDED YOUTH,
Fort Wayne, Indiana, F or the F iscal Year E nding 
Septem ber  30, 1916, at 14 (1917). The Indiana officials 
were also “pleased to note that ‘The Committee on Men­
tal Defectives’ appointed by you to study the problem of 
Mental Defectiveness in Indiana, recently urgently rec­
ommended the enactment of such a law, and we wish to 
strongly endorse their recommendation and urge that this 
remedial legislation be had at the coming session of the 
Legislature. We have deeply felt the need of this law in 
several cases in recent years, where we found ourselves



A -24 /Ind iana

utterly helpless to prevent the withdrawal of girls by par­
ents or relatives while we knew that were unfit to be out 
in the world. . . . ”  Id. at 15. They also recommended “the 
establishment of a new and separate institution to house 
them from the danger o f  contact with the public.” Id.

The Committee on Mental Defectives was reap­
pointed by newly elected Governor James P. Goodrich. 
The Committee’s second report was published March 6, 
1919.

One week later, the General Assembly passed as 
“emergency” legislation “AN ACT to provide for the es­
tablishment and government of an Indiana farm colony 
for feeble-minded” which incorporated practically all of 
the recommendations of the Committee on Mental Defec­
tives. 1919 Ind. Acts 480, ch. 94. The lawmakers created 
a commission and ordered it to “select a suitable site for 
the farm colony” and to “purchase not less than 1,000 
acres of land in a body” for it. Id. § 2. The law specified 
that “the buildings to be constructed for its use shall be 
plain and inexpensive in character,” id. at 482, § 6, and 
required that “the labor in constructing such buildings, 
improvements and facilities shall be supplied as far as 
applicable by the persons committed to the institution,” 
id.

The Committee on Mental Defectives, while express­
ing gratitude for this legislation, “recommend[ed] in­
creased provision at the Farm Colony for Feeble-Minded” 
in order for the state “to provide adequately for such cases 
as cannot, without m enace to the community, be pro­
vided for in the home or the public school.” M E N T A L  
Defe c t iv es  in Indiana: T hird Report of th e  Indi­
ana Com m ittee  on Mental Defec tiv es  8 (1922).

The exact nature of the menace was described by 
the Governor’s Committee as follows: “The uncared-for 
insane, epileptic and feebleminded constitute a social 
menace, but the part played by the feeblem inded in dis­
counting social progress is by fa r  the most potent influ­
ence fo r  evil under which society is struggling today. . . .



The M idwest/A-25

Modern theory grants that the rights of the individual 
must not interfere with the welfare of the community. 
From the latter standpoint, the mental defective must be 
considered as a possible financial burden to the commu­
nity, a potential menace through the commission of 
crime, and an increasing detriment to the race through 
the propagation of his kind. . . . What subject is more 
vital than this to the people of our state? The menace of 
the mental defective is a real and pressing one. All indi­
viduals and organizations interested in human welfare 
are urged to cooperate in a state-wide program for in­
forming the citizens o f  our state concerning the dangers 
that threaten,  and awakening them to the disastrous con­
sequences if this important matter is neglected. This 
should result in such united action as will lessen the bur­
den of pauperism, degeneracy, disease and crime, and 
decrease the cost to the taxpayers.” Id. at 6.

In addition to appropriating the increased funds re­
quested for segregation, the legislature, on March 3, 
1931, passed “AN ACT providing for the sexual sterili­
zation of feeble minded persons.” 1931 Ind. Acts 116, ch. 
50. Indiana has been the first state in the country to en­
act a sterilization law. 1907 Ind. Acts 877, ch. 215. The 
new law provided that, at the point at which com m it­
ment o f  any mentally retarded person was sought, “it 
shall be the duty of each of the examining physicians 
appointed by the court” to “certify to the court whether, 
in his opinion, such person is the probable potential par­
ent of mentally incompetent or socially inadequate  off­
spring likewise afflicted.” Id. § 1. Upon a finding by the 
court that “the welfare of society and of such feeble­
minded person will be promoted by his or her steriliza­
tion,” the superintendent “may have performed upon 
such feeble-minded person” sterilization surgery “at such 
time as he may deem expedient.” Id. § 3.

Iowa. On March 17, 1876, the General Assembly of 
Iowa enacted legislation “FOR THE ESTABLISHMENT 
OF AN ASYLUM FOR FEEBLE MINDED CHIL-



A-26 /Iowa

DREN.” 1876 Iowa Acts 145, ch. 152. Admission was 
originally limited to “children between the ages of seven 
and eighteen.” Id. at 148, § 15. After the turn of the cen­
tury, the state authorized the segregation of increased 
numbers of retarded people. The first to be confined, by 
enactment of April 7, 1902, were “all feeble-minded 
women under forty-six years of age.” 1902 Iowa Acts 73, 
ch. 118. The next were “all feeble minded men under 46 
years of age.” 1909 Iowa Acts 171, ch. 173. In 1921, all 
age restrictions were repealed. 1921 Iowa Acts 126, ch. 
129. State officials continually campaigned for the ex­
pansion of facilities for segregation, see, e.g., TWENTY- 
F ourth  B iennial Report  of th e  S uperin ten d en t  
of th e  Iowa Institution  for  the F eeblem in d ed  7-8 
(1922).

On April 13, 1929, the General Assembly enacted 
legislation “to create a state board of eugenics, to define 
the powers and duties of said board, [and] to fix the pro­
cedure in the sexual sterilization of persons.” 1929 Iowa 
Acts 106, ch. 66. The members of the Board of Eugenics, 
which consisted of not only the superintendents of state 
institutions, but also the commissioner of public health, 
were ordered to “report to the state board of eugenics the 
names of all persons, male or female, living in this state, 
of whom he or she may have knowledge, who are feeble­
minded . . . and who are a menace to society.” Id. § 2.

Kansas. In 1881, the Legislature of Kansas estab­
lished “the Kansas state asylum for idiotic and imbecile 
youth.” 1881 Kan. Sess. Laws 74, ch. 35. Admission was 
limited to those “not over fifteen years of age.” Id. at 75, 
§ 6 .

The superintendent of the institution, I.W. Clark, in 
1906 urged the adoption of a law to enlarge the institu­
tion and to accomplish the segregation of feeble-minded 
persons of all ages. THIRTEENTH BIENNIAL REPORT OF
th e  Kansas School for F e e b l e -Minded  Youth , 
W in fie l d , Kansas, for  th e  Two Years ending J une 
30, 1906, at 6 (1906). According to Superintendent Clark:



The M idw est/A-27

“Legislative attention to a more extended provision for 
the idiotic and feeble-minded is an imperative demand 
upon the state. For a score of years the opinions of phi­
lanthropists and of those interested in sociologic work 
have been steadily advancing in a certain direction, until 
now they are unanimously convinced that as a m atter o f  
public policy all the feeble-m inded class shoidd be segre­
gated and provided fo r  by the state. Various are the rea­
sons which have led up to this conviction, and to most 
persons they are easily obvious. In this state to-day there 
are in the county-houses, and in the communities at large, 
a large num ber o f  this class who are a  menace, a blight 
and a  m isfortune both to themselves and to the public.” 
Id. at 12. Therefore, the superintendent recommended 
that “[t]he age limit of fifteen years should be removed, 
and the capacity of the home be enlarged so as to receive 
all persons who are feeble-m inded, regardless of age." Id. 
at 6.

On March 12, 1909, the legislature acted. The name 
of the institution was “hereby changed to the State Home 
for Feeble-minded,” and “[a]ll inmates admitted to said 
institution” were placed “under the custody and control 
of the superintendent of said institution, and the super­
intendent may restrain any such inmate when he deems 
it necessary for the welfare of such inmate and the proper 
conduct of the institution.” 1909 Kan. Sess. Laws 560-61, 
ch. 233, §§ 1, 2.

In 1917, the legislature enacted a law providing that, 
if the Superintendent of the State Home for Feeble­
minded “shall certify in writing” to the institution’s gov­
erning board “that he or she believes that the mental or 
physical condition of any inmate would be improved 
thereby or that procreation by such inmate would be likely 
to result in defective or feeble-minded children with crim­
inal tendencies, and that the condition of such inmate is 
not likely to improve so as to make procreation by such 
person desirable or beneficial to the state,  [then] it shall 
be lawful to perform a surgical operation for the sterili­



A-28 /Kansas

zation of such inmate.” 1917 Kan. Sess. Laws 443 ch 
299, § 1.

State officials applauded this legislation, and pre­
dicted a marked decrease in the number of feeble-minded 
persons. However, they reported that “the decrease will 
be nothing like so great as it should be unless our im ­
m igration laws are so changed as to greatly reduce the 
number o f  undesirables from  Europe entering this coun­
try. . . . We shall be disappointed further that the de­
crease is no greater on account of the ease with which 
feeble-minded persons may obtain a marriage certificate, 
enter the marriage state and rear a family like unto them­
selves. . . . Asexualization will be condemned by some as 
being too harsh a measure, but it becomes incumbent on 
those who would discourage it to offer something better, 
for the future will compel us to act. If society by her phil­
anthropic efforts annuls the law of the survival of the 
fittest, then self-interest will compel her to adopt meas­
ures which will prevent the multiplication of those who 
at best can only add degeneracy to the race.” TWENTI­
ETH B iennial Report  of th e  State T raining School 
F or th e  Two Years E nding J une 30, 1920 at 7-8 
(1920).

Two years later, the superintendent reported “that 
the population of the institution has grown steadily,” and 
noted “the increased activity of welfare and Red Cross 
associations over the state that are constantly on the look­
out  for unfortunate people, both young and old” to be 
institutionalized. TWENTY-FIRST BIENNIAL REPORT OF 
th e  State T raining School F or the Two Years 
ENDING J une 30, 1922, at 3 (1922). As a result of the 
state’s policies, people were persuaded to place their re­
tarded relatives in the institution. The Superintendent 
noted that ‘as a consequence our ward buildings are be­
coming crowded, some wards housing twenty per cent 
more than the estimated capacity. Additional ward room 
is a necessity.” Id. at 11.



The M idw est/A-29

Kentucky . The General Assembly of the Common­
wealth of Kentucky first chartered the “Kentucky Insti­
tution for Feeble-minded Children” as a corporate entity 
in 1894, although the facility apparently had been in ex­
istence previous to that date. See 1894 Ky. Acts 96, ch. 
48, art. I, § 1. Admission to the institution at that time 
was limited to persons aged six through eighteen “whose 
mental condition is such that, in the judgment of the 
superintendent, they may be taught to read and write, or 
can be educated or trained to do work.” Id. at 115, art. Ill, 
§5 .

In 1918, the General Assembly enacted more ma­
levolent legislation, entitled “AN ACT to provide for the 
commitment, care, treatment, training, segregation  and 
custody” of “feeble-minded” persons. 1918 Ky. Acts 156, 
ch. 54. The law defined “feeble-minded person” as one 
who “requires supervision, care, training, control or cus­
tody for his own welfare or for the welfare of others or the 
com m unity . ”  Id. § 1. It also established and authorized 
“The Farm Colony for the Feeble-Minded,” including an 
ambitious plan for new construction on a 500-acre site. 
Id. at 156-57, 159-60, §§ 1, 9, 10. Proceedings to confine 
a person in the institution could be instituted against any 
person in the county who appears to be . . .
feeble-minded.” Id. at 161, § 16. The same law made it 
“one of the special duties of every health officer and o f  
every public health nurse to institute proceedings to se­
cure the proper segregation and custody offeeble-m inded  
persons, likely to become fathers or mothers of other 
feeble-minded persons,” id., at 171, § 30, and made it a 
crime “to aid or abet the marriage of any feeble-minded 
person, and any person found guilty of aiding or abetting 
such marriage shall be fined not less than fifty dollars, 
nor more than five hundred dollars,"id. § 32.

Michigan. In 1893, the Michigan Legislature estab­
lished the “Home for the Feeble-Minded and Epileptic.” 
1893 Mich. Pub. Acts 412, No. 209. The institution was 
available to “[a]ll feeble-minded and epileptic persons be­



tween the ages of six and twenty-one.” Id. at 416, §§ 20, 
21.

In 1905, to insure long-term segregation, the legis­
lature required thatparents and guardians admitting their 
children to the home “waive all right to remove  such 
inmate thereafter either permanently or for a limited 
time.” 1905 Mich. Pub. Acts 169-70, No. 121.

A more comprehensive revision of the law took place 
four years later, 1909 Mich. Pub. Acts 189, No. 101, elim­
inating age restrictions, id. at 192, § 13, providing for 
roving physicians “empowered to go where such feeble­
minded and epileptic person may be and make such per­
sonal examination of him as to enable them to offer an 
opinion as to his mental condition” in order to certify them 
as “feeble-minded,” id. § 14.

If, following a hearing, “such person shall be found 
and adjudged to be feeble-minded or epileptic the court 
shall immediately issue an order for his admission to the 
home for the feeble-minded.” Id. at 194.

State officials described the value of the new law in 
maintaining life-long segregation and control in their re­
port to Governor Woodbridge Ferris: “Prior to the enact­
ment of the law of 1909, patients were admitted to this 
institution by direct application either by parents, guard­
ians, or certain public officials. The matter of the status 
of these patients was constantly before the Board of Con­
trol. The Board found it impossible to hold certain  cases 
where, in their opinion, the welfare o f  the State would 
dictate their being held. We therefore went to the Leg­
islature, requesting the passage of an act bringing all 
these cases, where the patient had not had his day in 
court, before the Probate Courts of the several counties 
for review and legal commitment. We now have no pa­
tients not committed by the Probate Court.” TENTH BI­
ENNIAL Report  of th e  Board of Control of the 
Michigan Hoime and T raining School at Lapeer for 
the B iennial Period  E nding J une 30, 1914 (1914).

A-30/M ichigan



The M idw est/A-31

As John N. McCormick, Chairman of the State Board 
of Corrections and Charities later stated in official, pub­
lished instructions to Dr. H. A. Haynes, Superintendent 
of the Michigan home: “The members of this Board con­
sider it imperative that ample provision be made for the 
segregation  and proper care of feeble-minded persons. A 
recent survey of Michigan removes any doubt as to the 
plain duty o f  the State regarding feeble-m indedness,  not 
only from a sociological but an economical standpoint as 
well. From our discussion of the situation with you at the 
meeting of this Board held at your institution, we are of 
the opinion that the items stated in your estimate of ap­
propriations for the next two years are needed, and the 
same are hereby approved.” ELEVENTH BIENNIAL RE­
PORT of th e  Board of Control of th e  Michigan 
Home and T raining School at Lapeer for th e  B i­
ennial Perio d  E nding J une 30, 1916, at 7 (1916).

On May 25, 1923, the Michigan legislature adopted 
“AN ACT to authorize the sterilization of mentally de­
fective persons,” which class was “deemed to include id­
iots, imbeciles and the feeble-minded, but not insane per­
sons.” 1923 Mich. Pub. Acts 453, No. 285, § 1. “When­
ever a person is adjudged defective,” the court was au­
thorized to “order such treatment by x-rays or operation 
of vasectomy or salpingectomy. . . . ” Id. at 454, § 2.

In a 1929 amendment, the legislature “hereby de­
clared [it] to be the policy of the state to prevent the pro­
creation and increase in number of feeble-minded, in­
sane and epileptic persons, idiots, imbeciles, moral de­
generates, and sexual perverts, likely to become a m en­
ace to society  or wards of the state. The provisions o f  this 
act are to be liberally construed to accom plish this pur­
pose.” 1929 Mich. Pub. Acts 689-90, No. 281, § 1. The 
law made it “the duty” of state officials operating the 
Home for Feeble-minded “to bring to the attention of the 
governing board or body of such institution and to the 
state welfare commission” any “mentally defective per­
son who would be likely to procreate children unless



closely confined or rendered incapable of procreation” for 
whom they were “of the opinion” that it would be “for the 
best interest of such person and o f  society  that such men­
tally defective person should be sexually sterilized.” Id. 
at 690, § 4. The law made it “the duty,” in turn, of “the 
governing board or body of such institution and the state 
welfare commission to cause an investigation, and ex­
amination to be made to determine whether such men­
tally defective person would be likely, i f  allowed to min­
gle in society,  to procreate children having an inherited 
tendency to feeble-mindedness, insanity, idiocy, imbe­
cility, epilepsy, or sexual degeneracy, and who would be 
likely to become a social menace  or a ward of the state, 
and whether there is no probability that the condition of 
such person would improve to such an extent as to avoid 
such consequences.” Id. at 690-91.

Minnesota. In 1909, the legislature of Minnesota en­
acted a law “providing a department for incurables” for 
“all idiotic and epileptic persons resident of the state. . . ” 
1909 Minn. Laws 72, ch. 80. A decade later, because the 
institution, located at Faribault, had filled beyond capac­
ity, the legislature authorized the state board of control 
“to select from the public lands of this state, the title to 
which is vested in the state, not to exceed two (2) sec­
tions of land to be used as a location for a colony for feeble­
minded persons. . . . ” 1919 Minn. Laws 475, ch. 407, 
§ 1. In 1925, the legislature authorized residents of its 
institutions “to be sterilized by the operation of vasec­
tomy or tubectomy.” 1925 Minn. Laws 140, ch. 154.

Missouri. In 1899, the “Missouri Colony for the 
Feeble-minded” was established. 1899 Mo. Laws 1821, 
ch. 118, art. 10. As the institution’s population grew, the 
“board of managers of said colony” was “empowered to 
establish other colonies in temporary or permanent 
camps.” 1919 Mo. Laws 183-84, § 2.

State officials continually requested increased ap­
propriations for expansion. In one annual report to the 
legislature, for example. Dr. E. E. Brunner, superintend­

A-32 /M ichigan



The Midivest/A-33

ent of the institution, stated: “We need another building 
to care for the custodial type of idiot patients as that build­
ing is entirely overcrowded.” SIXTH BIENNIAL REPORT 
of the Board of Managers of the State E leem o s­
ynary In stitu tio n s to th e  F ifty -Seventh General 
Assem bly  of th e  State of Misso u ri for the Two 
F iscal Years Beginning J anuary 1, 1931, and E nd­
ing De c em ber  31, 1932, at 291 (1933). According to 
Superintendent Brunner, “[t]he number of applications 
is not an indication that the number of feeble-minded is 
on the increase in the State, but to the education of the 
people of the State as to the significance o f  
feeble-m indedness and the need o f  perm anent custodial 
care. . . Id. at 288.

Nebraska. On March 5, 1885, the Legislature of Ne­
braska passed “AN ACT to establish and endow an Asy­
lum Home for feeble-minded children and adults at or 
near the city of Beatrice, Nebraska, and making appro­
priation and levy therefor.” 1885 Neb. Laws 255, ch. 52.

By 1914, Silas A. Holcomb, chairman of the newly 
established state Board of Commissioners, was writing in 
his first report to the governor and legislature that “[t]he 
population of the institution has increased to the point 
where its capacity is taxed to the limit. The demand for 
additional admissions is steady and will continue.” The 
Board recommended an ambitious expansion program, 
“[w]ith a view of relieving the congested condition and 
making suitable provisions for future admissions. F IR ST  
Biennial Report of the Board of Com m issioners 
of State In stitutions to the Governor and Leg­
islature of th e  State of Nebraska for the B ien ­
nium E nding November 30, 1914, at 9 (1915).

Expanded institutions would be necessary partially 
as a result of projected population increases for the state. 
See id. They would also be the necessary result, however, 
of a comprehensive program “submitted] for the serious 
consideration of the Governor and the legislature” of test­
ing and registration which “would unquestionably re-



veal others who are feeble-minded and who ought not to 
be returned to society .” Id. at 10.

Observing that “[t]he only effective m easures  to meet 
these conditions are segregation and sterilization ,” the 
Board criticized the then current law: “but in our state 
neither of these may be applied except as a voluntary 
proceeding on the part of the legal guardian of the feeble- 
mindedperson. . . . Itisnotaproceedingby whichafeeble- 
minded person may be committed to nor detained in the 
institution against the desire  of the parent or guardian.” 
Id. at 11. By amending the law, “the community is en­
abled to seclude those who cannot safety  be allowed to 
mingle freely  w ith their fellow s.  We, therefore, recom­
mend that a statute, similar to those above mentioned, be 
enacted by this state to provide that admission to the in­
stitution for feeble-minded be by order of commitment 
entered by the county court of the proper county, after 
due hearing and finding upon a petition filed by the hus­
band, wife, parent, guardian or other person standing in 
loco parentis to the alleged feeble-minded person, or  by 
the superintendents, managers or trustees of any insti­
tution having such person in charge, or by the county 
commissioners, county attorney, superintendent or prin­
cipal of schools, or a probation officer of the county in 
which such alleged feeble-minded person shall reside.” 
Id. at 11-12.

The legislature responded, enacting an amendment 
on April 14, 1915, extending the list of people eligible to 
initiate commitment proceedings to include “the county 
commissioners, county attorney, any poor law official, any 
superintendent or principal of schools, or any probation 
or parole officer of the county of which such idiotic, im­
becile or feeble-minded person is a bona fide resident,
. . . and the superintendent or managing officer of any 
public or charitable institution having in charge any id­
iotic, imbecile or feeble-minded person.” 1915 Neb. Laws 
294, ch. 131. “[Detention” was mandated if “it shall ap­
pear that the person named in the application is an idiot,

A-34 /N ebraska



The M idwest/A - 3 5

an imbecile or a feeble-minded person and that the best 
interests of such person or the welfare o f  society  require 
that he be committed to said institution for the feeble­
minded.” Id. at 295. “It shall be the duty of said institu­
tion to receive all such idiotic, imbecile and feeble­
minded persons duly committed thereto and to detain 
them therein, and to arrest and return any who may es­
cape therefrom.” Id.

Shortly thereafter, the lawmakers passed “AN ACT 
to authorize the sterilization of feeble-minded,” whose 
“children would probably become a social menace” and 
“would be harmful to society.” 1915 Neb. Laws 554-55, 
ch. 237. The act was not approved by the governor, but 
became operative without his signature.

In 1921, the legislature changed the name of the in­
stitution from the “Nebraska Institution for 
Feeble-minded Youth” to simply the “Nebraska Institu­
tion for the Feeble-minded,” in recognition of the aban­
donment of all age restrictions. 1921 Neb. Laws 843, ch. 
241, § 1. “The objects of the institution shall be to pro­
vide custodial care  and humane treatment for those who 
are feeble-minded, to segregate them from  society, to 
study to improve their condition, [and] to classify them.” 
Id.

North Dakota. The Legislative Assembly of North 
Dakota in 1903 adopted “AN ACT to Establish an Insti­
tution for the Feeble Minded,” to be “permanently main­
tained at or near the city of Grafton” for “all idiotic and 
epileptic persons residents of this state.” 1903 N.D. Sess. 
Laws 142, 143, ch. 108, §§ 1, 6. State Superintendent L.
B. Baldwin reported that it was “advisable that they be 
placed in institutions of this character fo r  life. A rela­
tionship exists between the forms of degeneracy, namely, 
the criminal, the inebriate, the prostitute and the feeble 
minded.” The view of state officials was that “to protect 
posterity,” it was necessary to undertake “the gathering 
of this great number of defectives into institutions and 
colonies.” F ir st  BIENNIAL REPORT OF THE NORTH DA­



A -36 /N orth  D akota

kota In stitu tio n s for F e e b l e  Minded  at Grafton 
fo r  th e  Perio d  E nding J une 30, 1904 to th e  Gov­
ern o r  of North Dakota 9-10 (1904).

In 1909, the Legislative Assembly promoted the per­
manent segregation of those committed by providing that 
“any inmate of such institution shall not be removed 
therefrom,” except by written application, and “said re­
quest must receive the approval of the superintendent 
before such inmate can be removed.” 1909 N.D. Sess. 
Laws 317-18, ch. 213, § 1.

In 1913, the legislature provided that “any feeble 
minded person who is offensive to the -public peace or to 
good morals, and who is a proper subject for classifica­
tion and discipline in the institution, may be commit­
ted” without consent. 1913 N.D. Sess. Laws 222, ch. 166, 
§ 1. This provision was enacted as an emergency meas­
ure in view of “the fact that there is now no law for com­
pulsory commitment of feeble-minded persons obnox­
ious to the peace and good morals of the public.” Id. § 3.

The Legislative Assembly authorized the superin­
tendent to “admit to the institution temporarily, without 
commitment, under such rules and regulations as the 
Board of Administration may prescribe, for purposes of 
observation, such children or adults as are suspected of 
being feeble minded or idiotic, to ascertain whether or 
not such person is actually mentally defective and a proper 
case for care, treatment and training in an institution for 
the feeble-minded.” 1921 N.D. Sess. Laws 123, ch. 64.

It was also made “the duty of the superintendent” to 
“report quarterly to the Board of Examiners herein pro­
vided for, all feeble-minded” who were considered as hav­
ing “potential to producing off-spring, who, because of 
inheritance of inferior or antisocial traits, would probably 
become a social menace. . . . ” 1927 N.D. Sess. Laws 433, 
ch. 263, § 1. The Board would, following a hearing, “make 
an order requiring such person to be sterilized.” Id. at 
434, § 3. The purpose of the law was to “protect society 
from the menace of procreation by said inmate.” Id. § 5.



The M idw est/A-37

Ohio. As early as 1857, the General Assembly of Ohio 
established the “Ohio State Asylum for Idiots. ” 1857 Ohio 
Laws 190, 191.

In 1898, Ohio lawmakers established “a custodial de­
partment” for the “detention” of “idiotic and 
feeble-minded children and adults,” 1898 Ohio Laws 
209, § 1, and established an involuntary commitment pro­
cedure, id. at 211, § 6.

In 1912, Superintendent E. J. Emerick called for in­
creased facilities. “If we could segregate  these defectives 
when they are young and keep them confined during their 
natural lives, it would obviate the expense of having them 
committed repeatedly to our penitentiaries when they 
grow older. Under our present plan they are sent to our 
penal institutions for a short term after committing some 
crime, allowed to go out again, scatter their progeny, and 
commit other crimes and depredations, only to be recom­
mitted time after time. . . .  If we take these children into 
our institution, brighten them up as best we can, and 
turn them loose on the public, it has not only been a 
waste of time, money, and energy, but we have done the 
world an irreparable injury.” Emerick, The Segregation  
o f the Defective  in PROCEEDINGS OF THE NATIONAL 
Education Association , 1912, at 1291-92 (1912). 
Emerick and others continued the same theme for the 
next several years. See  E. J. EMERICK, THE PROBLEM OF 
the F eeblem in d ed  (1913); J uvenile Protective As­
sociation of Cincinnati, T he F eeblem in d ed , or . 
The Hub to our Wh eel  of Vice (1915); M. Se ssio n s , 
The F eeblem in d ed  in Ohio (1918).

In 1919, the legislature established “an additional in­
stitution in the state for the custody, supervision, con­
trol, care, m aintenance , and training of feeble-minded 
persons,” to receive “feeble-minded persons committed 
to its custody and care from  any county in the state.” 
1919 Ohio Laws 430, § 1.

South Dakota. South Dakota’s first facility for the 
segregation of retarded people was a department of the



A-38 /South  D akota

Northern Hospital for the Insane established as early as 
1893. 1893 S.D. Sess. Laws 169, ch. 101. In 1917, the 
legislature enacted the state’s first sterilization law, mak­
ing it “the duty” of the State Board of Charities and Cor­
rections to order the sterilization of “any  of said inmates 
[who] would produce children with a tendency  to dis­
ease, feeble-mindedness, idiocy or imbecility. . . .” 1917 
S.D. Sess. Laws 378-379, ch. 236, § 2.

In 1921, the legislature passed an act “RELATING 
TO THE SEGREGATION OF FEEBLE MINDED.” 
1921 S.D. Sess. Laws 344, ch. 235. The law created the 
State Commission for the Control of the Feeble Minded 
and empowered it “to make all necessary7 rules and reg­
ulations pertaining to the segregation,  care and control 
of feeble minded persons. . . . ” Id. §§ 1, 3. It was “the 
purpose of this act to provide that all feeble minded per­
sons resident within this state shall become the wards o f  
the state and shall be kept segregated.” Id. § 2. In order 
to enforce this mandate, the “state commission shall make 
a survey of all state institutions and o f  the state generally 
to ascertain the persons whom they believe to be feeble­
minded in order that said state commission may make 
necessary complaints to the county commission.” Id. at 
344-45, § 5. Additionally, “[a]ll teachers” were required 
to “report all feeble-m inded childi'en coming to their a t­
tention  to the state board.” Id. at 345. This system of 
outreach efforts to systematically segregate retarded peo­
ple became known nationwide as the “South Dakota 
Plan,” and became a model for similar efforts in other 
states. The legislation was deemed by the Commission to 
“constitute a substantially laid foundation upon which to 
erect the super-structure of a wise social and economic 
administration of the feeble-minded problem.” STATE OF 
South Dakota, Second B iennial Report of the 
Com mission  for Segregation and Control of the 
F e e b l e -minded for the Period  E nding J une 30, 
1928 To th e  Governor 2 (1928).



The M idw est/A-39

The Commission proposed legislation to require the 
“identification of all feeble-minded in the state and their 
registration as a matter of record [ , ] . . .  a confirmative 
census [,] . . .  supervision and control by properly con­
stituted authorities [ , ] . . .  [and] the operation of the ster­
ilization law and the anti-marriage law. In fact the law is 
designed to give the defective  the protection of the state, 
and at the same time to protect the state against his so­
cial i n a d e q u a c y STATE OF SOUTH DAKOTA, THIRD BI­
ENNIAL Report  of the Commission  for Segregation 
and Control of the F e e b l e -Minded F or the Pe ­
riod E nding J une 30, 1930 To the Governor 3 
(1930). The Commission warned that the proposed leg­
islation was necessary due to the large numbers of “feeble­
minded” who were “at large and uncontrolled by the 
state.” Id. at 4.

On February 19, 1931, the comprehensive law re­
quested by the Commission was enacted. The term “fee­
ble minded” was broadly and vaguely defined to include 
“all individuals , except the insane, who by reason of men­
tal deficiency are incapable of doing the work of the grades 
in the public schools in a reasonable ratio to their years 
o f  life ; or  who by reason of mental deficiency and other 
associated defects are incapable of making the proper ad ­
justm ents to life  for one of their chronological age.” 1931 
S.D. Sess. Laws 200, ch. 153, § 1. The Commission 
drafted into the law its paramount “authority in all mat­
ters pertaining to the care, supervision, and control of all 
feeble-minded persons in the State of South Dakota not 
confined within the state school and home for the feeble 
minded. Said commission shall determine the conditions 
under which such feeble minded persons shall be per­
mitted to remain outside of said institution; and when, 
and under what conditions, commitment to such insti­
tution shall be required.” Id. § 2. The Commission was 
given “the duty” to “maintain a continuative census of 
the feeble minded in the state, and all boards of educa­
tion, school principals, county superintendents of



A-40 /Sou th  D akota

schools, city school superintendents, and teachers, are 
hereby specifically required to give said commission, or 
its agents, such access as the commission, or its agents, 
deem necessary  to all school records, and to all children  
within their control for purposes of examination. . . . ” Id. 
§ 3(a). Moreover, it was to “be the duty of all teachers, 
city school superintendents and county superintendents 
of schools” as well as “the duty of all doctors, nurses, 
hospitals, penal and charitable institutions, county wel­
fare boards, public health officers, and public officers, 
boards, or commissions within the State of South Da­
kota, to report to the state commission for the control of 
the feeble minded the name, age, and residence of all 
children believed by them to be feeb le  minded, and also to 
furnish whenever requested by the state commission for 
control of the feeble minded any and all information  
which they may have relative to the name, age, residence 
and antecedents of any person believed to be feeble 
minded.” Id. § 3(b), (c). “Sub-Commissions,” were es­
tablished in each county of the state “under the direct 
authority of the state commission” with the “specific au­
thority” to “apprehend, exam ine, commit, establish  
guardian ships, transport, and m aintain  the custody  of 
any feeble m inded person  within their respective coun­
ties.” Id. at 200-01, § 4. “It shall also be the duty of each 
sub-commission to declare to be feeble minded all of those 
persons whom the sub-commission, or whom a majority 
of the members of such sub-commission, find upon in­
vestigation and examination to be feeble minded; and 
forthwith to commit such feeble minded to the supervi­
sion and control of the state commission. . . . ” Id. at 201, 
§ 6 .

This legislation, according to the Commission, 
“would serve the purpose of securing control and super­
vision o f  cdl the feeble-m inded outside o f  institutions in 
the State.” STATE OF SOUTH DAKOTA, FOURTH BIEN­
NIAL Report  of the Commission  for Segregation 
and Control of th e  F e e b l e -Minded F or th e  Pe ­



The M idw est/A-41

riod E nding J une 30, 1932 To the Governor 3 
(1932). “[T]he Commission was thoroughly convinced 
that the great problem o f  feeble-m indedness  lay in that 
large group of feeble-minded outside o f  institutions,” 
who were “scattered throughout the population” and “in 
possession o f  all the righ ts and liberties o f  normal peo­
ple.” Id. The Commission found that most of “the feeble­
minded were at large and uncontrolled by the State,” id., 
but that would change: “To have control there must be: 
1st, Identification; 2nd, Examination; 3rd, Registration; 
4th, Supervision; 5th, Prevention (of marriage); 6th, Ster­
ilization. The new law is designed to fulfill these require­
ments.” Id.

Commission personnel “were sent into the various 
counties and through contact with the schools, welfare 
boards, health officers, social agencies, physicians, 
nurses, and public agencies of every kind, sought to lo­
cate every possible feeble-m inded individual.” Id. at 9.

Two years later, the Commission reported “the 
number who have been committed to the State Commis­
sion, those who are segregated in the institution and those 
who have been sterilized, are now all under State Con­
trol.” State of South Dakota, F ifth  B iennial Re ­
port of the State Com mission  for th e  Control of 
the F e e b l e -Minded  F or the Period  E nding J une 
30, 1934 To THE GOVERNOR 5 (1934). The Commission 
complained, though, that the state’s sterilization law was 
“much too complicated and cumbersome to achieve the 
best results.” Id.

The legislature agreed, enacting legislation the fol­
lowing February giving each Sub-Commission, follow­
ing a hearing, “the power to make an order for the ster­
ilization of any feeble-minded person found within its re­
spective county. . . .” 1935 S.D. Sess. Laws 163, ch. 113, 
§ 1. A petition for sterilization could be “filed with the 
Chairman of the Sub-Commission of the County in which



A-42/Sou th  D akota

the person believed to be feeble-minded is found,” by 
“any resident  of the County in which such person may 
be found.” Id.

The “South Dakota Plan” was in effect in similar form 
at least through 1968. See STATE OF SOUTH DAKOTA, 
Tw en ty-Second B iennial Report  of th e  State 
Com m ission  for  th e  Mentally Retarded  F or the 
Period  E nding J une 30, 1968 To th e  Governor 
(1968).

Wisconsin. Public support in Wisconsin for segre­
gation of retarded people did not begin in earnest until 
the 1890s. Among those lobbying for the establishment 
of an institution, through a state-wide petition drive, were 
the Board of Health, the Federation of Women’s Organ­
ization, and the State Teachers Association. One such 
petition, signed by the leading citizens of Washburn 
County in 1891, called for the building of an institution 
“for the feeble-minded, who are a constant menace to the 
good order of society, and to social and domestic safety 
and tranquility. . . . ” Quoted in A. RUGG, ONE HUNDRED 
Years of Public  Care for People with Mental Re ­
tardation in W isconsin  8 (1983).

Dr. J. H. McBride, a member of the Wisconsin Con­
ference of Charities and Corrections, stated the popular 
belief that retarded children should be removed from the 
family: “That an idiot child is, with its repulsive appear­
ance  and disorderly habits, a demoralizing association  
fo r  brothers and sisters,  a thing that would seem to go 
without saying. Daily experience with the course and 
rude behavior of an idiot is an experience that must, of 
necessity, be seriously injuring to young and tender na­
tures.” Proceedings of th e  W isconsin  Co n feren c e  
of Ch arities and Correction s 118 (1890).

In 1895, the legislature established “The Wisconsin 
Home for feeble-minded.” 1895 Wis. Laws 280, ch. 138, 
§ 1. The facility was for “[a]ll feeble-minded, epileptic 
and idiotic persons, residents of the state.” Id. at 241, § 4. 
The law was amended in 1897, to provide that “when­



The M idwest/A-43

ever it shall appear that any feeble-minded female of child­
bearing age is, by reason of her condition, a menace to 
society, it is the duty of the supervisor to bring the person 
before the county judge. . . . ” 1897 Wis. Laws, ch. 360, 
§ 1 .

In his first biennial report. Superintendent Alfred W. 
Wihnarth requested of the legislature increased appro­
priations for additional dormitories in order to “purge so­
ciety  and obstruct the increase of feeble-mindedness.” 
Wisconsin  Board of Control, B iennial Report 321 
(1898). What training that was provided focussed upon 
“educating the child as a useful member of the institu­
tional community where he will always live.” WISCON­
SIN Board of Control, B iennial Report  356 (1904). 
Indeed, Superintendent Wilmarth complained in his re­
port of the “annoyance . . . created by friends of some 
children who demand their release when they are en­
tirely unfit to go into general society.” Id. at 376.

By 1912, state officials were reporting that the work 
of the institution basically “consisted] of separating them  
from  society, feeding, and clothing them.” WISCONSIN 
Board of Con trol, B iennial Report 20 (1912). That 
same year, “the Board of Control was directed not to con­
sider ‘paroling’ anyone who ‘might’ become a menace to 
the community.” Id.

A Visiting Committee of the legislature endorsed the 
continuation and extension of this approach and, in ad­
dition, urged the enactment of a sterilization law because 
of the “present danger to the race.” Report o f  the Legis­
lative Visiting Committee, SENATE JOURNAL 263 (48th 
Leg. Sess.). In 1913, the legislature authorized the ster­
ilization of residents of the institution for whom it was 
found “that procreation is inadvisable.” 1913 Wis. Laws 
972, ch. 693, § 3. The same day, the lawmakers made 
room for the incarceration of more “feeble-minded” by 
establishing a second institution. Id. at 963, ch. 689, § 1. 
It was needed since the population of the Home for the 
Feebleminded increased from 394 to 1060 in the period



A-44 /W isconsin

1900-1920. W isconsin  Board of Con trol, B iennial 
Report  290 (1920).

Southern States

Alabama. On September 29, 1919, the legislature of 
Alabama established “The Alabama Home” for “mental 
inferiors.” 1919 Ala. Acts 738, No. 568, § 2.

“[D]eclared to be mental inferiors or deficients, or 
feeble-minded” by the legislature for purposes of con­
finement at the Home were “[ajll persons of whatever 
age, who are deficient or inferior  to the extent of being 
classed in either of the following groups of the feeble­
minded: That is to say, idiots, imbeciles, feeble-minded 
or morons, and any of whom may be, or may not be ep­
ileptics, but not violent or insane.”

Id. at 739, § 7. The terms “feeble-minded” and “men­
tal inferior or deficient” were defined in the act to “in­
clude every person with such a degree of mental defec­
tiveness from birth, or from an early age that he is unable 
to care for himself and to manage his affairs with ordi­
nary prudence, or that he is a m enace to the happiness 
or safety of himself or o f  others in the community, and 
requires care, supervision, and control either for his own 
protection or fo r  the protection o f  o t h e r s I d .

The courts were given “the power and authority to 
commit such person to the Home notw ithstanding  the 
family or relatives may object thereto.” Id. at 740, § 9.

The same enactment also instructed the operators of 
the Alabama Home, that, if “they deem it advisable they 
are hereby authorized and empowered to sterilize any 
inmate.” Id. § 13.

The law provided that “[t]he Superintendent must 
not grant a parole to any inmate unless he is of the opin­
ion that it will not be detrimental to such inmate or to 
society,  and the Superintendent must recall said parole 
whenever he is satisfied that the welfare of such paroled



The Sou th /A-45

inmate, or o f  the com m unity to which said inm ate is p a ­
roled  requires it.” Id. § 14.

Arkansas. Arkansas’ institution “for the 
Feeble-Minded” was created by an act of the legislature 
on March 6, 1917. 1917 Ark. Acts 942.

The law broadly defined “feeble-minded” for the pur­
poses of confinement at the institution “to include all 
degrees o f  m ental defect  due to arrested or imperfect men­
tal development. Those feeble-minded persons possess­
ing approximate mental development not to exceed that 
of a normal child of three, shall be classed as ‘idiots;’ those 
approximately of the mentality of children from four to 
seven, inclusive, shall be known as ‘imbeciles;’ and those 
approximately with the mental development of normal 
children from eight to twelve, inclusive, shall be known 
as ‘morons.’ ” Id. § 11.

Florida. In 1919, the Florida Legislature, noting “an 
alarming state of facts” in a report submitted to it by a 
committee appointed by the governor (see  1915 Fla. Laws 
263, ch. 6920), and further noting “[f]rom the findings of 
the said Committee there can be no doubt that there 
should be established and created in this State an Insti­
tution for the care of Epileptic and Feeble-Minded, where 
they can be segregated,” established the “Florida Farm 
Colony for Epileptic and Feeble-Minded.” 1919 Fla. Laws 
231, ch. 7887, preamble & § 1,

The Colony was founded “to the end that these un­
fortunates may be prevented from reproducing their kind, 
and the various com m unities and the State at Large re­
lieved from  the heavy economic and moral losses arising  
by reason  o f  their existence.” Id. § 8. Its purpose was “for 
the segregation” of the “feeble-minded. ” Id.

Georgia. On August 19, 1919, the General Assembly 
of Georgia passed “An Act to establish in the State of 
Georgia an institution to be known as the ‘Georgia Train­
ing School for Mental Defectives.’ ” 1919 Ga. Laws 377, 
No. 373. The institution was ordered built “as soon as



possible” for all “defectives” who “constitute menaces  to 
themselves or the com m unity.” Id. § 1.

The statute mandated that “preference in admission 
shall be given to children and women of child-bearing 
age,” but the institution was open to any  “defective” who 
“constitutes a m enace to the happiness  of himself or o f  
others in the com m unity” who were “not insane or of 
unsound mind.” Id. at 379, § 3.

The institution opened in 1921. A year later, its first 
superintendent, George H. Preston, M.D., complained 
that the facility was “not large enough to fulfill the de­
mands made of it.” An n u a l  R e p o r t  o f  t h e  Ge o r g ia  
T r a in in g  S c h o o l  f o r  M e n t a l  D e f e c t i v e s , 
Gr a c e w o o d  GEORGIA 4 (1922). According to the Re­
port, “the fact of primary importance to remember is that 
a defective child will be a defective adult, and will die a 
defective. There is not a philosopher’s stone to turn the 
base metals of defect into gold.” Id.

The Georgia legislature enacted the state’s first ster­
ilization law, “for the protection of . . . future genera­
tions,” in 1937. 1937 Ga. Laws 414, No. 5.

Louisiana. The “State Colony and Training School” 
was established by the Louisiana legislature in 1918 as 
“an institution especially provided for the feeble-minded 
persons of the state of Louisiana.” 1918 La. Acts, No. 
141, § 1. A “ [f]eeble-minded” person was defined as “any 
person afflicted with mental defectiveness” who “requires 
supervision, control and care for his own welfare, or for 
the welfare of others, or fo r  the welfare o f  the commu­
nity, who is not classifiable as an insane person.” Id. § 2. 
“When any person residing in this state shall be sup­
posed to be feeble-minded,” and “it is unsafe and dan­
gerous to the welfare of the community for him to be at 
large without supervision, control, and care, any relative, 
guardian or conservator or any reputable citizen o f  the 
parish  in which such supposed feeble-minded person re­
sides” was authorized to seek that person’s commitment 
to the state colony. Id. § 11. The law required “the guid­

A-46/Georgia



The Sou th /A-47

ing and controlling thought of the court throughout the 
proceedings” to be not only “the welfare of the feeble­
minded person” but also “the welfare of the com m unity.” 
Id. § 15.

Mississippi. On April 3, 1920, the Mississippi Leg­
islature passed “AN ACT to provide for the establishment 
and maintenance of the Mississippi School and Colony 
for the Feebleminded . . . [and] to prevent the multipli­
cation of feebleminded criminals and paupers.” 1920 
Miss. Laws 288, ch. 210. The law included in its defi­
nition of “feebleminded” those who “constitute m enaces 
to the happiness  or safety of themselves or o f  other per­
sons in the com m unity, and require care, supervision and 
control either for their own protection or for the protec­
tion of others.” Id. §2. The enactment was based upon 
the legislative finding that “the greatest danger of the 
feebleminded to the community lies in the frequency of 
the passing on of mental deficiency from one generation 
to another, and in the consequent propagation of crim­
inals and paupers.” Id. at 289. “[A] sufficient acreage of 
the Rankin County state convict farm” was ordered se­
lected and improved “as soon as practicable” for the es­
tablishment of the Mississippi Colony, bearing in mind 
the desirability of a large tract of land to provide for the 
growing demands of said institution.” Id. at 290, §8. The 
“Plan of the Mississippi Colony” was to provide “the most 
economical production of shelter, with the necessary dis­
tribution of heat, light and food, at the same time secur­
ing the isolation  and segregation required.” Id. at 291, 
§9.

The chancery courts were given jurisdiction over “all 
cases of legal inquiry in regard to feeblemindedness, in­
cluding idiocy, imbecility, and the higher grades and va­
rieties of mental inferiority which render the subjects un­
fit  fo r  citizenship .” Id. at 294, §17. Application for com­
mitment could be made “[a]t any time” by “any relative” 
to the clerk of the court, “but if the relatives of any fee­
bleminded person shall neglect or refuse to make appli­



cation to the clerk of the chancery court to have him ad­
judged feebleminded, and shall perm it him to go at large, 
the clerk of the chancery court shall, on the application, 
in writing and under oath, of a citizen of the county in 
question, issue a summons to the sheriff to summon the 
alleged feebleminded person and his parent, guardian, or 
next friend to contest the application.” Id. An order of 
commitment was to issue if the court “shall be satisfied 
that the person is feebleminded, and that for the safety or 
happiness of the feebleminded himself, or fo r  the safety  
or happiness o f  other persons in the community, he 
should be committed to the Mississippi Colony.” Id. at 
297, §23.

The legislature later authorized “the operation of ster­
ilization” to be performed “whenever” the Mississippi 
Colony’s superintendent “shall be of the opinion that it is 
for the best interests of the patients and o f  society  that 
any inmate of the institution under his care should be 
sexually sterilized,” 1928 Miss. Laws, ch. 294, §1 (em­
phasis provided), and that the board of trustees of the 
Colony “shall find that the said inmate” is “feeble minded 
or epileptic, and by the laws of heredity is the probable 
potential parent of socially inadequate offsprings  like­
wise afflicted, that the said inmate may be sexually ster­
ilized without detriment to his or her general health, and 
that the welfare of the inmate and o f  society  will be pro­
moted by such sterilization.” Id. at 372, §2.

North Carolina. The General Assembly of North Car­
olina in 1911 established the “North Carolina School for 
the Feebleminded” for all persons “idiotic and feeble­
minded six years of age and upward.” 1911 N.C. Sess. 
Laws 256, ch. 87, §1. The clerk of the county court was 
authorized to order commitment “[w]henever it is made 
to appear” that “any person resident in said county” was 
“a fit subject” for institutionalization. Id. at 257, §4. By 
a 1915 amendment, the General Assembly authorized 
commitment proceedings for children to be brought by, 
in addition to a parent or guardian, “third, by a guardian

A-48 /Mississippi



The South/A-49

duly appointed; fourth, by the superintendent of any 
county home, or by the person having the management 
of any orphanage, association, charity, society, children’s 
home workers, ministers, teachers, or physicians, or other 
institutions where children are cared for. Under items 
third and fourth, consent o f  parents, i f  living, is not re­
q u ir ed ” 1915 N.C. Sess. Laws 337-38, ch. 266, §3.

According to state officials, “the aim of the institu­
tion” was “to segregate” all of “the state’s mental defec­
tives.” T h ir d  B ie n n ia l  R e p o r t  o f  t h e  Ca s t l e  T r a in ­
ing  S c h o o l , K in s t o n , N.C., F o r  T h e  Ye a r s  
1915-1916, at 13(1916). “[I]f for a period of two or three 
generations mentally defective men and women were pre­
vented by segregation or sterilization from propagating 
their kind, mental deficiency would be very materially 
decreased. . . Id. at 14.

By 1923, the General Assembly had authorized the 
commitment of “feeble-minded and mentally defective 
persons o f  any age  when in the judgment of the officer 
of public welfare and the board of directors of said insti­
tution it is deemed advisable.” 1923 N.C. Sess. Laws 223, 
ch. 34, §2.

Under 1929 legislation, the superintendent of the in­
stitution was “hereby authorized and directed to have the 
necessary operation for asexualization or sterilization per­
formed upon any  mentally defective or feeble-minded in­
mate or patient thereof, as may be considered best in the 
interest of the mental, moral, or physical improvement of 
the patient or inmate, or fo r  the public good.” 1929 N.C. 
Sess. Laws 28, ch. 34, §1.

Oklahoma. The Oklahoma legislature established 
the “Oklahoma Institution for the Feeble-minded” in 
1909, for “all  imbecile and idiotic persons of whatever 
state who are not insane.” 1909 Okla. Sess. Laws 534-35, 
536, ch. 34, art. 2, § § 1, 4. Application for a commitment 
could be made by the father or mother, or: “Third: By a 
guardian duly appointed. Fourth: By the supei’intendent 
of any county alms house. Fifth: By the persons having



A -50/O klahom a

the management of any institution or asylum where chil­
dren are cared for. Sixth: By the trustees of any township 
in Oklahoma. Under the items ‘Three,’ ‘Four,’ ‘Five,’ and 
‘Six’ above, the consent o f  parents is not required.’' Id. at 
538, §8.

In 1931, the legislature authorized the superintend­
ent of the institution to sterilize those “afflicted with” 
such conditions as “idiocy” or “imbecility.” 1931 Okla. 
Sess. Laws 80, ch. 26, art 3.

South Carolina. On February 12, 1918, the General 
Assembly of South Carolina passed “AN ACT to Estab­
lish the State Training School for the Feeble-minded, and 
to Provide for Its Government and Maintenance.” 1918 
S.C. Acts 729, No. 398. Once the facility was built, the 
“Board of Regents shall notify the Governor, who shall 
thereupon by proclamation, declare the said Training 
School for the Feeble-minded ready to receive patients.” 
Id. at 731, § 9.

The term “feeble-minded persons” was defined to 
mean “any moron, imbecile or idiotic person, of whatever 
grade, who is afflicted with mental defectiveness from 
birth or from an early age, so pronounced that he is in­
capable of competing on equal terms with his normal 
fellows or of managing himself or his affairs with ordi­
nary prudence, and who, therefore, required custodial 
care and training for his own protection and for the wel­
fare of others and o f  the Com m unity , but who is not in­
sane or of unsound mind. . . . ” Id. at 731-32, § 10.

Institutionalization proceedings could be initiated by 
“any reputable citizen of this State” by filing “a petition 
in writing, setting forth that the person therein named is 
feeble-minded” and that it was “unsafe or dangerous to 
the welfare of the community for such person to be at 
large. . . .” Id. at 733, § 13.

State officials reported candidly to the General As­
sembly that the name of the facility was a misnomer since 
they “continue to forego” the provision of any “training of 
mental defectives” but “devote our efforts m ainly to seg­



The South /A-51

regating  and giving physical care to as large a number as 
possible. . . . ” F ift h  Annual Re po r t  of t h e  State  
T raining  Sch ool  fo r  t h e  F e e b l e m in d e d , Clin to n , 
S.C., 1922, at 3 (1923).

As stated by Dr. B. O. Whitten, the Superintendent 
of the institution, “[i]n almost every instance the propa­
gation of this element of society results in grief and dis­
appointment to the persons in question and will scarcely 
ever operate in any way which can be expected to pro­
mote happiness or even Anglo Saxon liberty.” SIXTH AN­
NUAL R e p o r t  of  t h e  State  T raining S chool  fo r  t h e  
F e e b l e m in d e d , Cl in to n , S.C., 1923, at 12 (1924).

In 1935, the legislature authorized the “sterilization 
of mental defectives.” 1935 S.C. Acts 428, No. 304.

Tennessee. On April 14, 1919, the General Assem­
bly of Tennessee passed “An Act to provide for the pro­
tection, care, control, oversight, custody, m aintenance 
and training of feeble-minded persons; to define who are 
feeble-minded within the meaning of this Act; and for 
the establishment, construction and maintenance of the 
Tennessee Home and Training School for Feeble- 
Minded Persons.” 1919 Tenn. Pub. Acts 561, ch. 150. 
The Act applied to “any person with such a degree of 
mental defectiveness” as to be “a m enace to the happi­
ness  or safety of himself or o f  others in the community” 
who “comprise those commonly called idiots, imbeciles, 
and morons or high-grade feeble-minded persons” and 
who “may or may not be subject to epileptic seizures.” Id. 
§ 2 .

“Any relative of a feeble-minded person may make 
application to have the person so adjudged; but if the 
relatives and friends of any feeble-minded person shall 
neglect or refuse to place him or her in the Tennessee 
Home and Training School for Feeble-Minded Persons, 
or in a private institution for the feeble-minded, and shall 
permit him or her to go at large, then any reputable per­
son  being a resident of the county in which such feeble­
minded person is found may make application lor com­



A -52 /T ennessee

mitment in writing and under oath to any one of the courts 
of his county, as above mentioned and shall not be sub­
ject to exception or demurrer for defects of form.” Id. at 
564, § 4. It was “the special duty  of every county health 
officer and of every County Superintendent of Education 
in the State to file application for the commitment of 
feeble-minded persons whose parents or guardians ne­
glect such duty . . . whenever such officer shall have rea­
sonable cause to believe that such commitment is nec­
essary to secure the welfare of such feeble-minded per­
sons or o f  those persons with whom they come in con­
tact:” Id. § 5.

State officials acknowledged the legislation as a nec­
essary enactment since “[o]f course, all will agree that 
there are very many feeble-minded in the State of Ten­
nessee who have never gotten into one of the State in­
stitutions and are more or less a m enace and burden  to 
their respective communities.” 1 Q. Re p . St . INSTITU­
TIONS 30-31 (1919).

Texas. Texas became the first southern state to seg­
regate its retarded citizens when it opened in 1904 a spe­
cial unit of the State Epileptic Colony, for “idiotic, im- 
becilic, and feeble-minded epileptics.” Gaver, M ental Re­
tardation ,  in Menta l  Il l n e s s  and Menta l  Retarda­
t io n : T he  H isto ry  of  Sta te  Care  in T exas 20, 22 
(1976).

In 1912, the Texas Conference on Charities and Cor­
rections, which had been organized the previous year, 
presented in the last address of its annual conference a 
call by Professor Bird T. Baldwin of the University of Texas 
for an institution for the state’s “mental defectives, who 
are contam inating society by their presence,  absorbing 
time and thought that should be devoted to normal chil­
dren, and later filling the almshouses, charitable insti­
tutions, and prisons with illegitimate and irresponsible 
offspring.” Baldwin, The Causes, Prevention and Care o f  
Feeble-M inded Children, in PROCEEDINGS OF THE STATE 
Co n f e r e n c e  o f  Ch a r ities  and Co r r e c t io n s  at its



The Sou th /A-53

S e c o n d  An n u a l  M e e t in g  He l d  at W aco , Ap r il  
14-16, 1912, at 86 (1912). According to Professor 
Baldwin, these “mental defectives or feeble-minded, who 
are by-products o f  unfinished hum anity, belong in an 
institution  where they may be cared for, made happy, 
and to some extent useful. They should be segregated  
and not allowed to go to our schools with normal chil­
dren  and should not be permitted to have offspring.” Id. 
at 87-88.

The following year, the legislature heeded the call by 
enacting a bill establishing an institution for the “feeble­
minded,” but it was vetoed by the governor, apparently 
on budgetary grounds. This prompted a more concerted 
effort, again led by the State Conference on Charities 
and Corrections. Dr. C. S. Yoakum, Secretary of the State 
Conference, wrote a 156-page monograph calling for the 
enactment of this legislation. C. S. YOAKUM, CARE OF 
t h e  F e e b l e -m in ded  and Insane in T exa s , B u l l . U. 
T e x ., No . 369 (Humanistic Ser. No. 16, Nov. 5, 1914). 
The monograph called for the removal of “defectives” 
from the family since “[i]n a home where there is one 
feeble-minded child among a number of children, we 
have the definite effects of such communication. To be 
sure, we recognize the increase in sympathetic under­
standing that children and parents exercise toward such 
feeble-minded children; but these moral and social traits 
are infrequently developed and far overbalanced by the 
amount of time and energy required to care for such a 
child, especially if he be of the low grade imbecile or id­
iotic type. One writer states that we may figure without 
error that the time of one adult is needed for the care of 
every feeble-minded or low grade imbecile child or adult. 
In a custodial institution five of these defective children 
or adults may be cared for by a single attendant in a much 
better manner and with much better results than in the 
home. We are, then, by sending such children to insti­
tutions provided for their care, relieving four out of every 
five of the normal adults now busied in caring for such



A-54 /Texas

defectives, for the economic and business life of the nor­
mal community.” Id. at 44-45. Moreover, “[i]t is certain 
that the feeble-minded girl and boy are often the bearers 
of many of the social diseases, and it is especially true 
that feeble-minded girls are, in the large majority of cases, 
the inmates of our houses of prostitution.” Thus, “the 
effect upon the community of the single individual of this 
type is bad in the extreme in so far as the social, eco­
nomic, and moral ideals of that community are con­
cerned.” Id. at 45, 46.

According to Professor Yoakum, “[t]he only safe pro­
cedure is custodial and institutional care throughout life 
for the great majority. . . . Sterilization laws and other 
means of prevention must for years to come be secondary 
to this solution of the problem. Id. at 66.

The monograph set forth an extensive comparison of 
the various remedies to the “problem.” “Restrictive mar­
riage laws and customs are important, and educative, but 
fail to reach the irresponsible and degenerate till too late. 
The ‘socially inadequate’ are so named just because they 
are without the influence of law and order. Eugenic ed­
ucation, better environment, and systems of matings pur­
porting to remove defective traits do not affect the im­
pure blood and inheritable factors with the surety nec­
essary to eliminate defects. Laissez-faire or natural se­
lection, euthanasia, neo-malthusianism, and polygamy 
are either impossible under the protective forces of mod­
ern social conditions or are ideas repugnant to present- 
day ideals of religion and humanity.” Of all the solutions, 
“[t]he evidence so far collected points toward segregation 
[emphasis in the original] as the most feasible, most eas­
ily put into force, and least subversive of constitutional 
prerogative.” Id. at 82.

Yoakum quoted a report prepared by his parent or­
ganization to demonstrate the folly of the early approach 
taken by schools in the East: “A word to the West! . . . 
New States and communities should equip themselves 
properly to attack these problems, and should make their



The Sou th /A-55

plans on the basis of complete control. Had the States of 
the East followed this method during the last fifty years 
their burdens would be only a fraction as great as they 
now are.” Id. at 17, quoting  REPORT OF THE COMMITTEE 
on Public  S upervision  and Administration  to T he 
National Co n feren c e  of Charities and Co rrec­
tio n s, SEATTLE, 1913, at 194 (1913). The bulletin con­
cluded by stressing “the necessity for custodial care and 
oversight for all feeble-minded,” through the enactment 
of legislation to “open[] the door of the institution to all 
feeble-minded of the State. . . . ” Id. at 80, 83.

The State Conference meeting in San Antonio in No­
vember, 1914, presented additional papers. One con­
cluded that “idiots” have “no economic value, and their 
care can only remain so much of a dead load upon so­
ciety, whether cared for in a home or in an institution. 
They are, however, less expense in an institution than in 
the home, poor farm or asylum.” Kelley, The Colony Plan 
fo r  the Care o f  the Feeble-Minded, 2 BULL. TEX. St . CONF. 
Charities & Correction s 57, 48 (1915). Another con­
cluded that “[f]or the actual idiot there is, or should be, 
no question as to procedure. The disease indicates its 
own remedy. The next legislature should make an ap­
propriation for a permanent institution, in which these 
its most unfortunate citizens could be perm anently seg­
regated.” Smith, The Feeble-Minded Girls in the Virginia 
K. Johnson  H om e, in id. at 61, 62.

Four months later, state representatives Ice Berg 
Reeves and D. S. McMillan had no difficulty convincing 
the legislature to reenact their H. B. No. 73, “An Act to 
provide for the establishment and maintenance of a State 
Farm Colony for the feeble-minded.” 1915 Tex. Gen. 
Laws 143, ch. 90. With Governor Jim Ferguson’s signa­
ture on the bill on March 22, 1915, Texas provided for 
“custodial care” for all of “the feeble minded of the State” 
to the end that these unfortunates may be prevented from 
reproducing their kind and society relieved o f  the heavy 
economic and moral losses arising from  the existence at



A -56/T exas

large  of these unfortunate persons.” Id. § § 1,2. The col­
ony opened on October 31, 1917. Gaver, supra  at 24.

State officials, led by Superintendent J. W. Bradfield, 
urged the legislature to make it easier to populate the 
institution: “The female can, under the faulty labor con­
ditions of today, make a living for a while, but she is, as 
a rule, quite unmoral, and makes no effort to protect her­
self. Her children, usually illegitimate, must, as degen­
erates, criminals, or defectives, eventually become wards 
of the State. The male moron is also a potential criminal, 
and is the class from which inmates for our jails and re­
formatories are recruited. Their segregation and control, 
through life, is the remedy. This can be obtained only by 
legally committing them to an institution where they can 
he kept perm anently .” In order to resolve this “most se­
rious problem,” he “urge[d] the enactment of an ade­
quate commitment law.” Bradfield, Report o f  Superin­
tendent, State Colony fo r  Feebleminded, in FIRST AN­
NUAL Repo r to f  the State Board of Cgn trolto  T he 
Governor and th e  Legislature of T he State of 
T exas, F iscal Year E nding August 31, 1920, at 147 
(1921).

The legislature responded favorably, enacting, by a 
unanimous vote, an act establishing a special “court for 
the feeble-minded” in each county. 1923 Tex. Gen. Laws 
172, ch. 82, § 1. Authority was given to “[a]ny  person 
who is a resident of the county having knowledge of a 
person in his county who appears to be feebleminded” to 
petition to institutionalize that person. Id. § 2. “It shall be 
sufficient, if the affidavit shall be upon information and 
belief.” Id. at 173. A hearing would then be scheduled by 
the court’s issuance of an order “to show cause, if any, 
why such person should not be declared by said court to 
be feebleminded. . . . ” That order also was deemed to “be 
sufficient authority to the sheriff or any constable of the 
county to bring such feebleminded person before the 
court for such hearing.” Id. § 3. A jury could be de­
manded. Id. § 1. The finder of fact then “shall investigate



The Sou th /A-57

the facts and ascertain whether such alleged feeble­
minded person is such.” Id. § 4. “If it be found by the 
court or jury that the alleged feebleminded person is such, 
the court shall enter its order so adjudging him, and that 
he be committed to the custody of the State Coloney [sic] 
for the Feebleminded,” id. § 5, and “[a]ll persons here­
tofore or hereafter committed or admitted to such insti­
tution shall reviain in its custody as perm anent w ard o f  
the State  until released by the management thereof,” id. 
at 174, § 6.

As a result of the state’s encouragement, the “de­
mand for entrance into this institution . . . steadily 
continuefd] over our accommodations.” THIRD REPORT 
of th e  State Board of Control to th e  Governor 
and th e  Legislature  of T exas, Covering Period  
from  Septem ber  1, 1924, to August 31, 1926, at 9 
(1927). According to Superintendent Bradfield “[t]his pe­
riod has been marked by considerable growth of the in­
stitution, and we feel that we are now much better pre­
pared to be of real service to the State. . . . These addi­
tions represent a healthy growth and encourage us in the 
belief that proper provision for the feeble-minded of the 
State is now being recognized as an absolute necessity.” 
Bradfield, Superintendent’s Report, in id. at 137, 138. In 
the same report, the Board of Control reported candidly 
that “[t]his institution is, of course, purely custodial. . . . ” 
Id. at 9.

Virginia. On March 20, 1914, the General Assembly 
of Virginia enacted a law directing the State Board of 
Charities and Corrections to “investigat[e] . . . the ques­
tion of the weak-minded in the State, other than insane 
and epileptic, and to report to the General Assembly of 
nineteen hundred and sixteen a comprehensive, practi­
cal scheme for the training, segregation  and the preven­
tion of the procreation of mental defectives.” 1914 Va. 
Acts 242, ch. 147, § 1. Under the direction of its chair­
man, S. C. Hatcher, the Board published in 1915 a 128- 
page compilation of studies, recommendations, and pro­



posed legislation under the title of T he MENTAL DEFEC­
TIVES IN VIRGINIA: A SPECIAL REPORT OF THE STATE
Board of Charities and Correction s to th e  Gen ­
eral Assem bly  of Nin eteen  S ixteen  on W eak- 
Min d ed n ess in th e  State of Virginia T ogether  
with  a Plan for  T raining, Segregation and Pr e ­
vention  of the Procreation  of th e  F e e b l e ­
m in ded .

A letter of transmittal from Chairman Hatcher to Gov­
ernor Henry Carter Stuart accompanying the report 
stated that “the corrupt fruits of mental degeneracy in 
any community  will disappear in proportion to the re­
duction of feeble-mindedness in that community . . . the 
most urgent need  in the work of reducing degeneracy is 
the elimination of the feeble-minded.” Id. at 5. Quoting 
approvingly eugenicist C. B. Davenport, Chairman 
Hatcher recommended that “ ‘[i]f the State were to seg­
regate its feeble-m inded, were to exam ine fo r  m ental de­
fects all im m igrants settling in its borders, and were to 
deport those found to be defective, there will be a con­
stantly diminishing attendance at State institutions for 
the feeble-minded, and at the end of thirty years there 
would be practically no use for such institutions.’ ” Id.

The official report detailed numerous “case studies” 
to support its recommendations. For example, one such 
“feeble-minded” case “with certain facial lines make one 
feel that he is not fa r  removed from  the brute, and is 
perhaps cruel with the unconscious cruelty of an an i­
m al.” Id. at 20. Another case “ha[d] not even the glim­
merings of intelligence manifested by some of the lower 
forms of anim al life.” Id. at 41. Another had a wife who 
was already committed “in a suitable institution, but it 
seems a pity that the man, who is lower grade mentally 
than his wife, though not so much of a menace, cannot 
be segregated instead o f  being allowed to run at large. A 
larger and more adequate colony would remedy this.” 
Noting that “the civilized nations of the earth are awak­
ened to the menace of feeble-mindedness, and are taking

A -58/V irg in ia



The Sou th /A-59

steps for the elimination and prevention of this evil, the 
report stated “that the principal things to be sought are 
identification and control, with the object finally of elim­
ination; and so we will have to rely largely on segrega­
tion and education for the prevention of feeble­
mindedness.” Id. at 17. “[T]he main idea is to keep them 
healthy, happy, and out of mischief. [W]e must take our 
mental defectives back to the soil to get the best results.” 
The report recommended that “the State should have au­
thority to segregate and to detain mentally defective per­
sons under proper conditions and limitations. This is in 
the nature of an indeterminate sentence, and is at the 
basis of the law which provides that the superintendent 
of the Virginia Colony for the Feeble-minded shall have 
authority to hold mentally defective persons as long as 
he pleases, and discharge such persons when he 
pleases. . . .” Id. at 114. In terms of those “at large,” the 
State Board proposed that it “be empowered” to “have 
charge of the registration of the mentally defective per­
sons of the Commonwealth” and to “have supervision of 
the care of such persons pending admission to institu­
tions.” Id. Additionally, “whenever, in the opinion of the 
said Board and the Division Superintendent of Schools, 
a child has proven to be a mental defective, the said Board 
should have authority, in its discretion, to transfer such 
child to the State School for the Feeble-minded.” Id. at 
117.

The General Assembly responded positively to the 
report, enacting the following March “An ACT to define 
feeble-mindedness and to provide for the examination, 
legal commitment, and the custody and care of feeble­
minded persons, and their segregation in institutions.” 
1916 Va. Acts 662, ch. 388.

In 1924, the General Assembly passed “An ACT to 
provide for the sexual sterilization of inmates of State 
institutions.” 1924 Va. Acts 569, ch. 394. This law, the 
constitutionality of which was upheld by the Supreme 
Court in Buckv. Bell, 274 U.S. 200 (1927), provided that



“whenever the superintendent” of “the State Colony for 
Epileptics and Feeble-Minded, shall be of opinion that it 
is fo r  the best interests  of the patients and o f  society  that 
any  inmate of the institution under his care should be 
sexually sterilized, such superintendent is hereby au­
thorized to perform, or cause to be performed by some 
capable physician or surgeon, the operation of steriliza­
tion on any such patient confined in such institution af­
flicted with hereditary forms of insanity that are recur­
rent, idiocy, imbecility, feeble-mindedness or epilepsy.” 
1924 Va. Acts 569, § 1. The law was enacted, in part, for 
“the welfare o f  society.” Id. (preamble). The law pro­
vided for an appeal to a special board, but such appeal 
was to be dismissed if it be found that the “feeble-minded” 
resident was “the probable potential parent of socially 
inadequate offspring  likewise afflicted” and that “the 
welfare of the inmate and o f  society  will be promoted by 
such sterilization. . . . ” Id. at 570, § 2.

West Virginia. In 1917, Governor Henry D. Hatfield 
first called for the erection of “an institution” which would 
“provide for the detention  and care of many feebleminded 
persons now at large and would assist in solving the prob­
lem in this state in preventing the multiplication of such 
class.” Second Biennial Message o f  Governor H. D. 
H atfield to the Legislature  (1917) in STATE PAPERS AND 
Pu blic  Ad d r e s s e s  of  Hen ry  D. Ha t fie l d  77 (n.d.)

“If such an institution should be authorized by the 
legislature, lands should be purchased to the extent of 
500 acres upon which the institution should be erected. 
This would result in the institution becoming nearly self- 
supporting because of the fact that practically all of the 
inmates are able bodied and could perform any ordinary 
labor under competent supervision.” Id. at 76-77.

In 1921, the Legislature of West Virginia created for 
“mental defectives” a state institution to be known as the 
“West Virginia Training School,” for “any person” who 
“because of mental defect is a menace to the happiness 
and w elfare  of himself or herself or o f  others in the com-

A -60/V irg in ia



The W est!A-61

munity,  and therefore requires care, training or control 
for the protection of' himself or herself or of others, and 
yet who is not insane. This type of persons, commonly 
classed as feeble-minded, including idiots, imbeciles and 
morons, shall be known and designated as mental defec­
tives for the purposes of this act. Should the school at any­
time not be able to accommodate all persons of such class 
offered for admission, preference in admission shall be 
given to children and women of child-bearing age.” 1921
W. Va. Acts 479-80, ch. 131, §§ 1, 3. “Any relative of a 
person affected may make application, by complaint un­
der oath, to have the person adjudged a mental defective; 
but when the relatives o f  a mentally defective person ei­
ther neglect or refuse to place said person  in said school, 
or in some private institution of a like nature, and shall 
perm it him or her to go at large, then any reputable cit­
izen  of the county may, by complaint under oath, make 
application to the mental hygiene commission for such 
commitment. . . .” Id. at 480, § 4(a).

The same law empowered the “medical staff” at the 
institution “to administer such medical treatment and 
perform such surgical operations for the inmates therein 
as may be necessary and expedient for the cure and pre­
vention of mental defectiveness or disease.” Id. at 482, 
§ 5.

Western States

Alaska. Alaska’s population was insufficient to ju s­
tify a separate institution for retarded people in that state. 
In the territorial days, Congress authorized their com­
mitment temporarily to the detention hospitals at Nome 
and Fairbanks until they could be transferred perma­
nently to institutions in other states. See Pub. L. No. 216, 
§ 7, 35 Stat. 601 (1909); Pub. L. No. 306, ch. 424, § 1, 
36 Stat. 352 (1910).

Arizona. On April 20, 1927, the Legislature of Ari­
zona established an institution for “mentally defective



A-62/A rizona

children in the State of Arizona, which shall be known as 
the Arizona Children’s Colony.” 1927 Ariz. Sess. Laws 
367, ch. 96, § 1. Such “defectives,” the law mandated, “if 
not insane, shall be held  and be determined to be men­
tally deficient, and be entitled to enter said colony.” Id. at 
369, § 10. Included among the considerations for deter­
mining mental deficiency was that the resident “require 
supervision, control, care and education, for their own 
welfare, or for the welfare of others, or fo r  the welfare o f  
the com m unity.” Id. at 370, § 10(a).

California. On March 9, 1887, California became the 
first state to provide for the segregation, “for life,” of “im­
becile or feeble-minded” people. 1887 Cal. Stats. 69, ch. 
57. The original funding for the facility, located in Santa 
Clara, had been authorized two years earlier. 1885 Cal. 
States. 198, ch. 156.

Because the state promoted segregation, the Santa 
Clara home grew quickly. By 1889, the institution was 
admitting not only severely retarded people, but also 
“cases well calculated to deceive the most observing.” 
Sonoma State Hom e, T he Institution  B ulletin  
(1910). Larger accommodations were soon needed. 
Therefore, on March 6, 1889, the state legislature ap­
propriated $170,000 to purchase land and “to erect proper 
and substantial buildings . . . upon said site.” 1889 Cal. 
Stats. 69, ch. 75. The state purchased 1660 acres of land 
in a remote area near Eldridge in Sonoma County. By 
1891 buildings were constructed and on November 24 of 
that year the residents were moved from Santa Clara. 
State Board of Charities and Correctio n s, F irst  
B iennial Report  62 (1905).

State officials praised this development, noting that 
the “special province of the Home for the Feeble-Minded 
is to deal with the incipient aberration of the mental proc­
esses—striking at the cause. . . . This institution would 
remove from  society  the cause, so far as possible to do 
so.” California  Hom e  fo r  t h e  F e e b l e -Min d e d , 
S ixth  Annual Re p o r t  30-31 (1890). Indeed, there was



The W est/A-63

a felt need to track down the “very large class of those 
unfortunates for whom no application for admission into 
this institution has been made.” Id. at 29.

On March 31, 1897, a law was passed amending the 
1885 statute that had restricted admissions to those 
“feeble-minded children between the ages of 5 and 18 
years . . . who are incapable of receiving instruction in 
the common schools.” 1885 Cal. Stats. 198, ch. 156, § 8. 
Under the new law, the institution was “directed] to ad­
mit” not only “idiots” but also “epileptics and mentally 
enfeebled paralytics . . . irrespective o f  age, as the ac­
commodations of the home may permit, and as may, in 
the judgment of the management, appear suitable sub­
jects for such admission.” 1897 Cal. Stats. 251, ch. 188.

In its First B iennial Report, the newly created State 
Board of Charities and Corrections stated: “There are sev­
eral reasons why the feeble-minded should be cared for 
in Homes of this sort. Their presence in the community 
at large is apt to be very detrimental to normal children, 
and when they come to the adolescent age the danger of 
reproduction in kind is very great and should, if possible, 
be prevented.” FIRST BIENNIAL REPORT, supra  at 41.

By the time of its Third Biennial Report, the State 
Board was stating unequivocally that there were “now in 
county hospitals, in orphan asylums, and other institu­
tions, and even in homes, children who could be much 
better cared for in the State Home for the Feeble- 
Minded. Such a child is generally a m enace to the insti­
tution, the fa m ily , or the community in which he is. It is 
desirable in every way to accept into the Home these chil­
dren, as to keep those who are now there.” State Board 
of Ch arities and Co r rec tio n s, T hird B iennial Re ­
port 73 (1908).

In 1909, the California legislature became the sec­
ond in the nation to vote into law “an act to permit 
asexualization of inmates of . . . the California Home.” 
1909 Cal. Stats, ch. 720.



This law was progressively extended to cover more 
individuals by amendments of 1913 and 1917. The 1913 
measure specified that sterilization could be performed 
“with or without the consent of the patient.” 1913 Cal. 
Stats, ch. 363. The 1917 act extended the procedure to 
all persons deemed to suffer from “marked departures 
from normal mentality.” 1917 Cal. Stats, ch. 489.

State officials also kept constant pressure on the leg­
islature to provide increased appropriations to segregate 
more and more retarded persons, linking retardation with 
the immigration of “defectives.” In 1915, an act was 
passed authorizing a legislative committee to investigate 
the necessity for a second mental retardation institution 
in the state. 1915 Cal. Stats. 1139, ch. 729. That com­
mittee found: “So fundamental is this problem of the 
feeble-minded that one can assert without fear of suc­
cessful contradiction that if all the time, money and ef­
fort now devoted to the solution of all of our social prob­
lems were concentrated for the next ten years on the 
question of feeble-mindedness, there is not a social prob­
lem that would not be nearer its solution at the end of ten 
years than it will be under the present plan. The first step 
is to provide state colonies.” LEGISLATIVE COMMITTEE 
on Mental Defic ien c y , Report on Mental De f i­
ciency 22 (1917). The Committee further found, “[i]n 
considering the advantages of creating such an institu­
tion for the proper care of the mentally defective as un­
fortunate individuals, there is also to be remembered the 
benefit to society of thus being relieved of the menace of 
their unsocial conduct.” Id. at 65. The Committee also 
recommended legislation “creating a new institution for 
feeble-minded and epileptic persons, to be located in 
Southern California.” Id. at 63.

In the meantime, the State Board commissioned a 
series of “surveys in mental deviation” to bolster its case 
for another institution. Based upon the surveys it had 
commissioned, the Board reported a firm “relation be­
tween race and mental deficiency.” STATE BOARD OF

A-64/C alifornia



The W est/A-65

Charities and Correctio n s, E ighth B iennial Re ­
port 51 (1918). One of the surveys, focusing upon the 
Merced County public schools, found that 4.24% of the 
students were “feebleminded.” CALIFORNIA BOARD OF
Charities and Co rrectio n s, Report of the State 
J oint Co m m ittee  on Defec tiv es in California 27 
(1918). This high number was explained by the fact that 
the county surveyed “possess|ed] an exceptionally high 
proportion o f  foreign-born  in its population.” Id. Since 
“of those found feeble-minded, 75.7% had foreign born 
parents,” it was “evident, therefore, that m ost o f  the f e e ­
blem indedness in this country is due to the immigration  
o f  undesirable types.” Id. at 35. Referring specifically to 
greater retardation it found among Mexicans and Portu­
guese, the report expressed “no wonder that these na­
tionalities are present in the reform schools and state pris­
ons in far greater proportions than their numbers in the 
state would seem to warrant.” Id. at 35-36.

The survey found “the ratio o f  feeble-m indedness was 
fa r  higher among M exicans, Negroes, and recent immi­
grants from  Europe than among those o f  native Ameri­
can stock,” and concluded that “California has drawn a 
large proportion o f  immigrants o f  an undesirable type.” 
Id. at 13-14, 19.

Referring to the survey of the Merced schools, the 
report found that the “hopelessly feeble-minded should 
be removed from the public schools and placed under 
perm anent custodial care.” Id. at 45.

The report “estimated the annual cost of 
feeble-mindedness in the State of California at 
$5,000,000” including “relief for indigent and dependent 
defectives, expenditures for court proceedings and pro­
bation work for feeble-minded delinquents, depredations 
committed by defective delinquents, expense to the state 
of feeble-minded individuals in the prisons . . . and fi­
nally the money which is worse than wasted in the futile 
attempt to educate feeble-minded children. . . . We have 
not included in these estimates the losses accruing from



vocational unfitness, alcoholism, venereal disease, and 
prostitution among the defective population. It would not 
be surprising if these losses, although less tangible and 
altogether impossible to estimate accurately, were as 
great as all the other losses combined.” Id. at 42.

The report noted the state’s “awakening to the men­
ace of the feeble-minded” as one of the most noteworthy 
movements of present public thought,” id. at 5, and con­
cluded that “[a]ll of the findings of this study emphasize 
the necessity o f  bringing a larger proportion o f  our defec­
tives under social surveillance and r e s t r a i n t i d .  at 19. 
Lamenting the fact that “California has but one state in­
stitution for the care of the feeble-minded,” and arguing 
for the “perm anent segregation  of all feeble-minded in­
dividuals” and to “extinguish the defective strains which 
now encumber our prisons, reform schools, jails, courts, 
and public schools,” the report urged as the “first step in 
this direction” the appropriation of funds for “the estab­
lishment of an additional state home for the feeble­
minded.” Id. at 51, 43.

The legislature in 1919 appropriated $100,000, 1919 
Cal. Stats. 1214, ch. 562, and, in 1921, $120,000, 1921 
Cal. Stats, ch. 445, for the construction of buildings at 
the “Pacific Colony.” The facility opened on March 20, 
1921. F ir s t  B ien nia l  R e p o r t  of  t h e  De pa r t m e n t  of  
I n s t it u t io n s  o f  t h e  Sta te  o f  California  68 (1922).

In 1915, the legislature amended the law permitting 
the institutionalization of any “imbecile or feeble-minded 
person or any idiot” to the Sonoma State Home. The 
amendment added a proviso that, in addition to a parent 
or guardian, “any peace officer may petition said court 
for an order admitting such a person to such hospital.” 
1915 Cal. Stats. 1262, ch. 638.

State officials stated that the new law would “make 
it possible to secure the commitment of children who 
need institutional care but whose parents or guardians 
are averse to such action .” STATE BOARD OF CHARITIES 
an d  C o r r e c t i o n s , B ie n n ia l  R e p o r t  30 (1916).

A-G6I C aliforn ia



The W est!A-67

Colorado. On May 5, 1909, the General Assembly of 
Colorado established that state’s institution “for mental 
defectives.” 1909 Colo, Sess. Laws 180, ch. 71. The in­
stitution was opened on July 1, 1912, and its purpose 
from the outset was the “segregation, in an institution, 
for life,” of the “defectives.” FIRST BIENNIAL REPORT OF
the Board of Com m ission ers and Su perin ten d en t  
of th e  Colorado State Home and T raining School 
for  Mental De fe c t iv e s , 1911-1912, at 5 (1912).

The program instituted by Colorado officials to en­
force the state’s new law was summarized in its Second 
Biennial Report: “The law of Colorado requires the legal 
commitment of all inmates to the State Home and Train­
ing School for Mental Defectives. This gives the man­
agement the control regarding the question of removal or 
discharge, and, in a limited sense, enables the institution 
to prevent this class o f  persons from  coming in contact 
with the populace. It is impossible to restore 
feeble-minded persons to a normal condition, and by rea­
son of this fact they should he kept in an institution in­
definitely,  and not be permitted to marry and perpetuate 
their kind. In years gone by, institutions for this class of 
persons took some pride in graduating as many as pos­
sible, and would turn them loose in the world  to multiply; 
but this error is being corrected, as far as possible, by 
holding them indefinitely  in institutions provided for their 
care and training.” SECOND BIENNIAL REPORT OF THE
Board of Com m ission ers and S uperin ten d en t  of 
the Colorado State Home and T raining School 
for  Mental De fe c t iv e s , 1913-1914, at 4-5 (1914).

By then, a peonage system had been established. 
“Many of the boys work on the farm and in the garden, 
in the laundry and in the kitchen. Girls and boys alike 
assist in making beds, sweeping, scrubbing floors, wash­
ing dishes, setting tables, and doing all kinds of house­
work. Some are capable of driving teams and can handle 
the hay-stacker quite skillfully. As the institution grows 
older, and more buildings are provided, and the popula­



A -68 /Colorado

tion increases, there will be enough boys who will be­
come skilled by teaching and training to make the insti­
tution in a measure self-supporting.” SECOND BIENNIAL 
R epo rt  of th e  Board of Com m ission ers and S uper­
in ten d en t  of th e  Colorado State Home and T rain­
ing School for Mental De fe c t iv e s , 1913-1914 at 5 
(1914).

Hawaii. On April 19, 1919, the Legislature of the 
Territory of Hawaii passed “AN ACT Providing for the 
Establishment and Maintenance of a Home for Feeble- 
Minded Persons.” 1919 Haw. Sess. Laws 137, Act 102. 
The law specified custody, “said home [to be] conducted 
on the farm colony’ plan.” Id. § 2.The Home was open to 
all Hawaiians requiring institutionalization “for their own 
welfare, for the welfare of others, or fo r  the ivelfare o f  the 
com m unity . ”  Id. at 138, § 4.

The institution was “considered merely a place to get 
the feeble-minded out of the community. .-. .” DEPART­
MENT OF INSTITUTIONS, TERRITORY OF HAWAII, THE 
F ir st  T en  Years, 1939 through  1949, at 37 (1949).

Idaho. The “Idaho State Sanitarium” for “the feeble­
minded was established in 1911 by enactment of the 
Legislature of Idaho. 1911 Idaho Sess. Laws 86, ch. 41. 
Upon a finding that a person was “feeble-minded,” ac­
cording to the state, a judge “must issue and deliver to 
some peace officer for service a warrant directing that 
such person be arrested and taken before any Judge of a 
Court of record within the county for examination. ” Id  at 
94, § 33.

In 1921, it was explicitly mandated that the institu­
tion be used for confinement of those “mentally defective 
from birth and not insane, irrespective o f  age, who are 
legal residents of the state, and who are from  a social 
standpoint dangerous to he at large and a m enace to 
s o c i e t y 1921 Idaho Sess. Laws 326, ch. 139, § 1.

To assist in the elimination of this “menace,” the leg­
islature adopted “AN ACT TO CREATE A STATE 
BOARD OF EUGENICS; TO PROVIDE FOR THE



The W est!A-69

STERILIZATION OF ALL FEEBLE-M INDED . . . 
WHO ARE A MENACE TO SOCIETY.” 1925 Idaho Sess. 
Laws 358, ch. 194. The law “declared the duty” of the 
superintendent of the Idaho State Sanitarium to register 
with the new Board of Eugenics “all persons, male or 
female, who are feebleminded . . . who are, or in their 
opinion are likely to become, a menace to society.” Id. at 
359, § 2.“[I]f in the judgment of a majority of said Board 
procreation by such person would produce a child or chil­
dren having an inherited tendency to feeble-mindedness 
. . . or who would probably become a social menace or 
ward of the State, and there is no probability that the 
condition of such person so investigated and examined 
will improve to such an extent as to avoid such conse­
quences, then it shall be the duty of such Board to make 
an order embodying its conclusions with reference to 
such a person in said respects and specifying such a type 
of sterilization as may be deemed by said Board best suited 
to the condition of said person and most likely to produce 
the beneficial results in the respects specified in this sec­
tion.” Id. One of the “objects to be sought” by this chap­
ter was "to protect society from the acts of such person, 
or from the menace of procreation by such person.” Id.

Montana. On March 4, 1919, the Legislative Assem­
bly of Montana passed “An Act Relating to the Admis­
sion, Care and Retention of Feeble-Minded Per­
sons. ”1919 Mont. Laws 196, ch. 102. The law estab­
lished the “Montana Training School for Feeble-Minded 
Persons” for the “detention” of “feeble-minded minors 
and adults.” Id. § 1. The law also provided that “no in­
m ate m ay he removed from  said institution, perm anently  
or tem porarily , except upon a written order of the su­
perintendent or upon an order of any District Court of the 
state and the provisions of this Section shall apply to adults 
as well as to the minors therein. The costs of such court 
action to be borne by the party bringing the action.” Id. 
at 198, § 9.



A-70 /M on tana

Four years later, the lawmakers authorized surgery 
that would “surely and permanently nullify the power to 
procreate offspring, to achieve permanent sexual steril­
ity” of the “feebleminded,” 1923 Mont. Laws 535, ch. 
164, § 2(e), with the purpose of “protecting] society from 
the menace of procreation by said inmate,” id. at 537, 
§ 8 .

Nevada. Nevada, like Alaska, did not have sufficient 
population to support its own institution. For this reason, 
the legislature authorized state officials “to make arrange­
ments with the director of any institution for the feeble­
minded in California, or Utah, or other states” for 
Nevada’s “feeble-minded.” 1913 Nev. Stats. 576, ch. 287.

New Mexico. On March 20, 1925, the Legislature of 
New Mexico mandated that “[t]here shall be established 
and hereafter maintained by this State an institution to 
be known as The Home and Training School for Mental 
Defectives,” for “any person mentally underdeveloped or 
faultily developed” who “requires supervision, care and 
control for his own welfare, or for the welfare of others, 
or for the welfare of the community, and which mentally 
defective person is not classified as an insane person.” 
1925 N.M. Laws 254, ch. 133, §§ 1, 2. Commitment pro­
ceedings could be initiated by “[a]ny person over the age 
of twenty-one years” by alleging “the facts bringing each 
person within the provisions of this Act and shall state 
the name and place of residence of such person. . . . ” Id. 
at 255, § 5. “The superintendent, with the approval of the 
Board, may give preference to cases which constitute a 
special social menace.” Id.

Oregon. Before authorizing the establishment of a 
segregative institution, the Oregon Legislative Assembly 
ordered a formal study. The report that issued indicated 
that the reason “for custody of feeble-minded” that 
“outweigh[ed] all others in importance to the State” was 
that the “effect of the mingling of the feeble-minded with 
society is a most baneful evil.” REPORT OF THE BOARD OF 
B uilding Com m ission ers of th e  State of Oregon



The W est/A-71

Relative to th e  Location and E stablishm en t of 
an In stitution  for F e e b l e -Minded  and E pileptic  
Pe r so n s , to th e  Tw en ty-Fourth Legislative As­
sem bly , Regular Se ssio n , 1970, at 22, 23 (1906). 
“Once admitted, they remain at the institution fo r  life.” 
Id. at 37. The Legislative Assembly followed the recom­
mendation of the report when, on February 23, 1907, it 
passed “AN ACT Creating the State Institution for Feeble- 
Minded,” for the “care and custody of feeble-minded, id­
iotic, and epileptic persons.” 1907 Or. Laws 145, ch. 83, 
§ 1. The facility was for “all idiotic and epileptic persons” 
residing in the state for at least a year. Id. at 146, § 8.

In 1917, the Legislative Assembly enacted a more 
sweeping law: “The county judge of any county of this 
State shall, upon the application  o f  any citizen  in writ­
ing, setting forth that any person  over five years of age is 
feeble-m inded or  who, by reason of feeble mindedness, is 
criminally inclined, or is unsafe to be at large, or may 
procreate children, cause such person to be brought be­
fo re  him  at such time and place as he may direct . . . 
Such judge, if in his opinion said person is feebleminded, 
shall commit said person to the Institution for the Feeble­
minded of the state of Oregon for indeterm inate deten­
tion. . . .” 1917 Or. Laws 739, ch. 354, § 1. The same law 
required that “[a]ll county superintendents of schools 
shall make reports on the first of June and the first of 
December of each year to the county courts of their re­
spective counties which report shall contain the names 
and addresses of all scholars in the public schools and of 
all children  of school age in their respective counties who 
are mentally defective. . . . ” Id. at 740, § 5.

Soon thereafter, the lawmakers installed a “state 
board of eugenics,” and “declared the duty” of “the su­
perintendent of the state institution for feeble-minded” 
to “report,” on a quarterly basis to the board “all persons, 
male or female, who are feeble-minded that “are, or in 
his opinion are likely to become, a menace to society.” 
1923 Or. Laws 280, ch. 194, §§ 1,2.  The board’s “duty”



was to review the superintendent’s opinion and, if in 
agreement, order sterilization. Id. at 280-81, § 3. If the 
resident failed to consent to the surgery, “such operation 
shall thereupon be performed upon said person by or un­
der the direction of the superintendent of the institu­
tion.” Id. § 6.

Utah. The “Utah State Training School for Feeble­
minded” was established in 1929 for “all feeble-minded 
persons who are residents of the State, whose defects 
prevent them from properly taking care of themselves or 
who are a  social m enace.” 1929 Utah Laws 102, 108, ch. 
75, § 22.

Commitment proceedings could be initiated by “any 
person” by alleging that someone in the community “by 
reason of feeble-mindedness is a social m enace.” Id. at 
110, § 23(3). “Upon receipt of such application, dul\ 
signed and acknowledged, the clerk of the district court 
shall present the same at the earliest date, and the judge 
of the district court shall issue a warrant to the sheriff of 
the county to produce the person described in such ap­
plication before the court forthwith for examination.” Id. 
at 112. If the court “believes” that such person is, “by 
reason of feeble-mindedness, a social menace” then it 
“must make an order that such person be confined in the 
Utah State Training School.” Id. at 113, § 29.

The same legislation required that “any patien t” at 
the institution “should be sexually sterilized” by “the op­
eration of sterilization or asexualization .” Such surgery 
was to be performed “[w]henever the Superintendent and 
board of trustees of the Utah State Training School shall 
be of the opinion that it is for the best interests of the 
patients and o f  society ” Id. at 115, § 31.

The state institution was soon filled to capacity. By 
1938, the Board of Trustees was able to report to the leg­
islature and the Governor that “[t]he physical growth of 
the Utah State Training School and the scope of its serv­
ice to the State of Utah must be recognized as having 
removed all possible doubt or question as to the fu n d a­

A -72/Oregon



The W est/A-73

m ental necessity  of maintaining such an institution as a 
part of the broad program of education and social regu­
lation and control.” FOURTH BIENNIAL REPORT OF THE
Board of T r u st e e s  of th e  Utah State T raining 
School, American Fork , Utah, to th e  Governor 
and Legisla tu re  for  th e  B iennium  E nding J une 
30, 1938, at 3 (1938). “The many actual experiences of 
the board since the school was established has demon­
strated that the presence o f  a  feeblem inded child in a home 
is more depressing, expensive and tragic than any known 
disease. Mental defect vitiates the offspring, and wounds 
our citizenry a  thousand times m ore than any plague 
m an is heir to. Even though this grief is often veiled with 
a smile, it destroys, demoralizes and sets as naught the 
lives of too many of our people. The Board of Trustees 
has considered the so-called South Dakota plan by which 
responsibility is divided among the different community 
organizations and state agencies, but all with the ulti­
m ate purpose o f  segregating, supervising, and then ster­
ilizing  certain of the mentally deficient within the state.” 
Id. A major outreach effort was undertaken with the sup­
port of the state agency: “Under the welfare program as 
now operating, community welfare workers are cooper­
ating with the schools in the various communities and in 
this way many of the mentally deficient who have here­
tofore been overlooked and held as problems to their fa  m­
ilies and im m ediate neighbors only, are now detected  and 
the necessity recognized for some action to prevent their 
continuing as a menace. . . . When once they are detected  
and their status is known, proper protection to society  
requires that they be segregated and supervised, at least 
until they are sterilized.” Id. at 5.

Washington, In 1905, the Legislature of the state of 
Washington adopted as an emergency measure “AN ACT 
providing for the care of defective and feeble minded 
youth, establishing an institution therefor.” 1905 Wash. 
Laws 133, ch. 70. The law made it “the duty of the clerks 
of all school districts in the State of Washington at the



time of making the annual reports, to report to the school 
superintendent of their respective counties the names of 
all feeble-minded youth residing within their respective 
districts.” Id. at 135, § 7. The school superintendents, in 
turn, were required to annually “report to the State Board 
of Control” those names. Id. at 134, § 4.

The law stated, flatly: “It shall be the duty  of the 
parents or guardians of such defective youth to send them 
to the said institution for feeble-minded.” Id. at 135, § 9. 
Moreover, the legislature made it a crime  for the parents 
to fail to follow this “duty”: upon their failure to send 
their child to the state institution, the parents “shall he 
deem ed guilty o f  a m isdem eanor,  and upon conviction 
thereof, upon the complaint of any officer or citizen of 
the county or state, before any justice of the peace or 
superior court, shall be fin ed  in any sum not less than  
fifty  nor more than two hundred dollars  in the discretion 
of the court.” Id.

A 1909 amendment to the law provided that “chil­
dren who are idiotic, epileptic or afflicted in any partic­
ular that renders them unfitted fo r  com panionship with 
other children shall be segregated. . . . ” 1909 Wash. Laws 
260, tit. I., subch. 6, § 2.

In 1913, the legislature changed the name of the state 
institution to the “State School and Colony,” and pro­
vided that commitment proceedings could be initiated, 
without the consent of the parents, by the superinten­
dent of the institution and by county superintendents of 
schools, and by county commissioners. 1913 Wash. Laws 
598, ch. 173, §§ 1, 2. The law provided that “[c]ounty 
superintendents of schools shall cause to be filled out the 
prescribed blank applications for admission for such chil­
dren in their respective districts, who by reason of men­
tal or physical defects are incapable of receiving instruc­
tion in the common schools of this state, or whose habits 
are such as to render them unfit fo r  com panionship with 
norm al children.” Id. at 598-99, § 4. The law also elim­
inated a restriction in the prior law limiting admissions to

A -74 /W a sh in g to n



The W est/A - 7 5

those under twenty-one years of age. Id. at 599-600, § § 8, 
9. In accord with the real purpose of the facility, the name 
was changed once again, this time to “The State Custo­
dial School.” 1917 Wash. Laws 224-25, ch. 64.

In 1921, the lawmakers passed “AN ACT to prevent 
the procreation of feeble minded,” which “declared the 
duty” of the superintendent of the state institution” to 
report to the Board of Health “all feeble minded . . . who 
are persons potential to producing offspring who, be­
cause of inheritance of inferior or anti-social traits, would 
'probably become a  social menace  or wards of the State.” 
1921 Wash. Laws 162, ch. 53, § 1. The Board was given 
“the duty,” following an investigation and a hearing, to 
“make an order directing the superintendent of the in­
stitution in which such inmate is confined to perform or 
cause to be performed upon such inmate such a type of 
sterilization as may be deemed best by said Board,” with 
the only proviso being that “no person shall be emascu­
lated under the authority of this act except that such op­
eration shall be found to be necessary to improve the phys­
ical, mental, neural or psychic condition of the inmate.” 
Id. at 163-64, §§ 2, 3.

Wyoming. On February 18, 1907 the Legislature of 
Wyoming “established in this state an institution for the 
custody, care, education, proper treatment and d isci­
pline  of feeble-minded and epilpetic persons, under the 
name and style of the “Wyoming Home of the Feeble- 
Minded and Epileptic.” 1907 Wyo. Sess. Laws 188-89, 
ch. 104, § 1. The institution was created for “[a]ll feeble­
minded and epileptic persons over the age of six years, 
who are legal residents of the State of Wyoming.” Id. at 
190, § 9.

Four years later, the name was changed to the “Wy­
oming School for Defectives,” 1911 Wyo. Sess. Laws 
166-67, ch. 103, § 1, and an involuntary commitment 
procedure was established, id.

In 1929, the legislature expanded the law to permit 
the initiation of commitment proceedings by the “pros­



A -76 /W yom ing

ecuting attorney of the county in which hearing under 
this Act is proposed to be held, or by any  citizen of Wy­
oming,” 1929 Wyo. Sess. Laws 156, ch. 95, § 16, and the 
person to be committed was given the right to demand a 
jury trial, id. at 158, § 20.

District of Columbia
The segregation of retarded people in the District was 

encouraged and required by the executive and legislative 
branches of the United States in those days preceding 
District home rule. The earliest involvement of the United 
States occurred when, in the nineteenth century, “cer­
tain feeble-minded children were taken in charge from 
time to time by the Secretary of the Interior” and sent to 
the Pennsylvania Training School at Elwyn. CHARITA­
BLE and Reform atory In stitu tio n s in th e  Distric t  
of Colum bia : History  and Developm en t of the 
Public  Charitable and Reformatory In stitution s 
and Ag en cies in th e  Distric t  of Columbia , S. Doc. 
No. 207, 69th Cong., 2d sess. 326 (1927).

At the turn of the century the prevailing public sen­
timent had become one of intolerance. The District Board 
of Charities in its 1902 Annual Report first called for the 
establishment of an institution for the District. “Many of 
the class of children referred to remain children perma­
nently, regardless of their age, and it is important that 
they should be under custodial care, because of the great 
menace to the community involved. . . . ” S. DOC. No. 
207, supra  at 327. In 1907, the Board of Charities again 
stated that it could “not too strongly emphasize the im­
portance of the perm anent segregation  of this class.” Id. 
at 328. By 1913, the language of the Board’s recommen­
dation had become more urgent yet: “While institutions 
for the care of the feeble minded are usually designated 
as ‘schools,’ it must not be forgotten that many of this 
class should be segregated  and under supervision during 
their entire lives, and most of them should never be al~



D istr ic t o f  Colum bia!A -77

lowed at large. . . . We recommend, therefore, that steps 
be taken as soon as possible looking to the acquirement 
of a tract of land and the establishment thereon of a suit­
able institution for the care and training of the feeble­
minded and the perm anent segregation  therein of such 
of them as are unfit to be at large in the com m unity.” Id. 
at 329-30. The Monday Evening Club formed a commit­
tee to pursuade Congress of the need for “[segregation 
of the adult feeble-minded.” Urges Institution fo r  Feeble- 
Minded, Wash. Star, Nov. 18, 1913, at 9.

The United States Department of Labor, through its 
Bureau of Children’s Services, undertook a comprehen­
sive “study of the extent of the problem of mental defec­
tiveness in the District of Columbia,” as the Department 
explained in the introduction to its report, “at the request 
of a citizen committee . . . organized under the leader­
ship of the Monday Evening Club, [and] composed of 
representatives of various philanthropic and social agen­
cies and institutions of the District whose dealings with 
the problems of the community have made them realize 
the urgent need for securing an institution for the proper 
care and treatment of mental defectives.” U.S. DEPART­
MENT of Labor, Mental De fe c t iv es  in th e  Distric t  
of Colum bia : A Br ie f  Description  of Local Con­
ditions and th e  Need  for Custodial Care and 
TRAINING 7 (G.P.O. 1915). Federal employees at the De­
partment gathered data regarding “the danger to the 
whole com m unity  resulting from the lack of proper pro­
vision for those suffering from mental defect.” Id. at 8.

Under a chapter entitled “reasons for segregation,” 
the Department of Labor listed a number of considera­
tions it thought important. For example, “[a] mentally 
defective child in a family demands a large share of the 
energy of the mother and not only interferes with the 
training of the other children but exercises a dem oral­
izing influence on the fam ily  life.” Id. at 20. The “men­
tally defective” were also a “danger to society”: “The 
number of mental defectives among recidivists empha­



sizes the need of discovering mental defect early in the 
careers of delinquents and segregating them permanently  
for their own welfare and fo r  the protection o f  society.
. . Id. at 21. Only “ [b]y means of segregating mental 
defectives  it is possible to cut off at the source a large 
proportion of degeneracy, pauperism, and crime.” Id. In­
deed, the Department of Labor expressed concern that 
“[m]any children . . . now in the schools constitute a men­
ace to the other pupils.” Id. at 18. Thus, according to the 
federal agency, “[i]nstead of being regarded as an indi­
vidual misfortune, mental defect has come to be recog­
nized as a destructive social force.” Id. at 20.

The Department of Labor acknowledged that the es­
tablishment of the institution for the District of Columbia 
would create its own demand: “[T]he number of inmates 
will increase as the institution becomes better established 
and as the public becomes familiar with its purposes and 
the value of its work to those cared for and to society. It 
has been said that the presence in a community of any 
specified type of defectives becomes apparent only when 
accommodations are provided for the care of this partic­
ular class. Without question this will be found to be the 
situation in the case of mental defectives.” Id. at 19. But 
it would be “out of the question to provide separate in­
stitutions for the different types of mental defectives.” Id. 
at 24. Referring to the “various grades” of “idiot,” “im­
becile,” and “moron,” id. at 8, 24, the Department rec­
ommended that the facility “be large enough to provide 
the necessary room for all these classes, allowing for 
proper separation of white and colored, male and female,” 
id. at 24. The report of the United States Department of 
Labor concluded by quoting approvingly from an edito­
rial in Survey  magazine (March 2, 1912): “The greatest 
need of all is for more institutional care. When this has 
been brought about in every State  we shall witness a 
great gaol delivery. . . . Biology and economics unite in

A -78/D is tr ic t o f  Colum bia



D istric t o f  C olum bia/A-79

dem anding  that the strains of feeble-m indedness shall be 
elim inated  by the humane segregation o f  the mentally 
defective.” Id. at 28.

The Congress responded to the Department of 
Labor’s strong recommendations, when it “authorized 
and directed” the District Commissioners “to use a site 
for a home and school for feeble-minded persons, said 
site to be located in the District of Columbia. . . .” P.L. 
No. 67-256, 42 Stat. 39 (1922). The Board of Charities, 
while generally pleased that Congress had acted, noted 
that the proviso that the institution be located within the 
District was “a fatal error” in the enactment. REPORT OF 
th e  Board of Ch a rities of th e  Distr ic t  of Colum ­
bia 9 (1922). According to the Board, it would be far bet­
ter to locate the institution “away from thickly settled 
communities” since “[f]or these unfortunates, children 
in mind but many of them old in years, all that society 
can do is to provide humane and sympathetic care apart 
from  the excitem ent and com plexities o f  modern life." Id. 
at 10.

In 1923, the Executive Secretary of the Board of Char­
ities, George S. Wilson, accompanied by five other mem­
bers of the Board, appeared before the Senate Committee 
on the District of Columbia to express their concern over 
the specified location of the institution. Wilson testified 
that “there is a unanimity of opinion on the part of the 
people of the District of Columbia on this item, greater 
than we have ever seen exhibited in regard to any matter 
of great public interest. It is not only the medical and 
social, and the general welfare organizations, but it is the 
civic associations and the Board of Trade and other or­
gans of public opinion. At this moment the Board of Trade 
is circulating among its members a petition, and the Mon­
day Evening club and other bodies are circulating similar 
petitions, and we are all very much concerned about it.” 
District o f  Columbia A ppropriations Bill, Hearings Be­
fo re  the Comm, on A ppropriations,  67th Cong., 2d sess. 
94-98, 183-84 (Jan. 13, 15, 1923).



In response to questioning by the Senators, Wilson 
explained further “the difficulties that they have in all 
these other States. I have just come from a visit to the 
Michigan school. They have the low-grade idiot, which 
the Senator knows is not much above the animal. They 
have the imbeciles; that term is almost self-explanatory. 
They have the higher grade, the dangerous cases, the 
morons, the fellow s that set fir e  to buildings, and the 
women who have illegitim ate children. There are at least 
three classes that no persons having humane instincts 
would classify together. Those three, multiplied by two to 
separate the sexes, make six; and then we have to mul­
tiply by two to provide for the separate colors here, which 
makes a minimum of 12 groups of these dependent peo­
ple that we must provide for—helpless and dependent— 
and above everything else unable to associate safely with 
norm al people. Isolation is demanded, absolutely , and the 
only thing we can promise to put into their lives is hu­
mane segregation in the open a ir .” Id. at 96. Wilson con­
cluded his testimony by emphasizing that it was “the seg­
regation from society that is the best of things.” Id. at 
183. Senator Ball commented, “[i] f you are going to seg­
regate that class  of people to make them more content, 
you want a farm entirely separate.”

The following year, the Congress “authorized and di­
rected” the District Commissioners “to acquire a site for 
a home and school for feeble-minded persons, said site to 
be located in the District of Columbia or in the State 
o f  M aryland or in the State o f  Virginia, and to erect 
thereon suitable buildings at a total cost not exceeding 
$300,000___ ” P.L. No. 67-457, 42 Stat. 37 (1923).

On March 3, 1925, the Congress enacted “An Act to 
provide for commitments to, maintenance in, and dis­
charges from the District Training School. . . .” P.L. No. 
69-578, 43 Stat. 1135 (1925). The law defined “feeble­
minded persons” to include “any person afflicted with 
mental defectiveness from birth or from an early age, so 
pronounced that he is incapable of managing himself and

A-80/D is tr ic t o f  Colum bia



D istric t o f  Columbia/A-81

his affairs, or being taught to do so, and who requires 
supervision, control, and care for his own welfare, or for 
the welfare of others, or fo r  the w elfare o f  the commu­
nity, and is not insane or of unsound mind. . . . ” Id. § 2 . 

Congress gave “any reputable citizen  of the District of 
Columbia” the authority to initiate commitment proceed­
ings, id. § 7, and “if it shall be made to appear to the court 
by evidence given under oath that it is for the best in­
terest of the alleged feeble-minded person or o f  other per­
sons or o f  the community that such person be at once 
taken into custody . . . id. § 10, 43 Stat. at 1136.

A week later, on March 10, 1925, the institution, lo­
cated at Annapolis Junction, “midway between Baltimore 
and Washington” began operation when “10 boys were 
received,” housed in a “temporary building.” REPORT OF 
th e  Board of Charities of the Distric t  of Colum­
bia 2 (1925). They were immediately put to work: “The 
boys thus far have been engaged in clearing and grading 
for the location of buildings, repairing roads, digging 
trenches, etc., and in general farm work. A good garden 
was started in time to supply vegetables in abundance 
during the summer. An encouraging beginning has been 
made in actual farm work; 60 acres of corn were planted 
and a good yield will furnish sufficient grain and forage 
for the stock, chickens, hogs, etc., during the coming 
winter. Enough potatoes have been raised also to meet 
the institution needs until next spring.” Id.



A PPEN D IX B

TEXTS OF THE 1947 ZONING ORDINANCE 
OF THE CITY OF CLEBURNE  

AND THE 1929 ZONING ORDINANCE 
OF THE CITY OF DALLAS

The Ordinance of the City of Cleburne passed and 
approved the 26th day of September, 1947 provided:

“Sec. 5. Second Residential District. In a second 
residential district no building or premises shall be 
used, and no building shall be erected or structurally 
altered which is arranged or designed to be used for 
other than one or more of the following uses:

Any use permitted in First Residential 
District,

Advertising signs or symbols,
Tourist courts, ice delivery stations,
Battery shop, furniture store, meat market, 

hardware store.
Ladies and Mens Ready to Wear Store, lum­

ber yard and building supplies,
Florist shop, antique shop, barber shop, 

beauty shop,
Contractors office, Carpenter shop, electric 

shop, carpet cleaning shop,
Fruit stand, grocery' store, filling station with 

washing and greasing,
Mattress renovating, furniture repair, 

plumbing shop, drug stores,
Picture show, private club, sign shop, clean­

ing and pressing shop,
Hand laundry with not over 5 employees, 

washateria, cafe or drive-in,
Melon garden, playground or recreational 

park,
Funeral home, hospital or clinic, other than 

[for] tubercular, liquor, narcotic, insane, or fe e ­
ble minded patients,

B-l



B -2

Educational or philanthropic institutions, 
other than correctional or penal,

No installation or business will be permitted 
that cause smoke, dust, fumes, odors, gasses, 
noises, vibrations, or electric disturbances or 
static,

No power over 10 h.p. may be used or 
installed.”

The Ordinance of the City of Dallas, No. 2052, passed 
September 11, 1929 provided:

“SECTION 4. APARTMENT DISTRICT. In an 
apartment district no building or premises shall be 
used, and no building shall be erected or structurally 
altered which is arranged or designed to be used, for 
other than one or more of the following uses:

(1) A use permitted in a dwelling district.
(2) Apartment house. Hotel. Boarding or 

lodging house.

(3) H ospital or clinic other than fo r  tuber­
cular, liquor, narcotic, insane, or feeble-m inded  
patients.

(4) Institution of an educational or philan­
thropic nature, other than a penal or correctional 
institution.

(5) Private garage as an accessory use when 
located not less than 60 feet back from the front 
lot line and not less than 20 feet back from any 
other street line, or located in a compartment as 
an integral part of the main building.

(6) Accessory buildings and uses customar­
ily incident to any of the above uses when lo­
cated on the same lot and not involving the con­
duct of a business.”



A PPEN D IX C

STATEMENTS OF AMICI SELF-ADVOCACY 
ORGANIZATIONS ON DISCRIMINATORY 

ZONING LEGISLATION

Sta tem en t  o f Un ited  To g eth er
United Together, a nationwide network of disabled 

self-advocates, believes the Cleburne City law which pro­
hibits “homes for . . . the feebleminded . . .’’ is unreason­
able and unjust. Though the term “feebleminded” is old 
fashioned, the law performs the same job now as it did 
when written. The purpose of the law was and is to en­
force a local bias: “We don’t know anything about ‘those 
people’ so we don’t want them in our neighborhood.”

America was conceived on the principle that indi­
viduals have a right to aspire and to be all they can be. 
Some people need more help than others in reaching their 
potential, help from family and friends. No law or label — 
which is what an I.Q. score is — can predict what a per­
son can achieve.

Since under ordinary circumstances Americans have 
a right to live wherever they want to as long as they can 
pay for it, these zoning laws perform only one job: to take 
ordinary rights from people the lawmakers know nothing 
about except that they have been given a certain label.

Social behavior is influenced by family values, envi­
ronment, and affection. Educators and psychologists do 
not claim that I.Q. scores — which are the litmus tests 
for whether or not someone is labeled retarded — can be 
used to predict social behavior. The only thing I.Q. tests 
are supposed to measure is intelligence, and there is a 
great deal of controversy over how well they do that.

United Together believes that discriminatory zoning 
laws help no one.

C-l



C-2

Sta tem en t  b y  P e o p l e  F ir st  
of Nebra ska

People First of Nebraska is a statewide group com­
posed of persons who have a developmental disability 
(most of the members have mental retardation). The 
group was formed in 1978 and represents the approxi­
mately 48,000 persons in Nebraska who have develop­
mental disabilities. Membership is open to all persons 
who historically have not had the opportunity to speak 
out for themselves.

People First of Nebraska has as one of its major pur­
poses the education of its members on how to speak for 
themselves since for so long people spoke for us for many 
years. One of the ways we can speak for ourselves is to 
decide on issues concerning us, such as where we want 
to live, where we want to work, or have the same free­
doms that other people have. We should be looked upon 
as people first and decisions should not be made because 
of our disabilities alone.

There would be a big difference in people’s lives if 
they would be able to live and work where they wanted 
to. We feel very strongly that persons with mental retar­
dation should not be discriminated against.

Sta tem en t  o f P e o p l e  F ir st  
of Washington

People First of Washington strongly believes that all 
people with developmental disabilities have the right to 
live in neighborhoods in the community in the same way 
as any other citizen. People First believes that the zoning 
laws of the city of Cleburne, Texas, are discriminatory 
and illegal under the Constitution of the United States of 
America.

People First of Washington does not believe that just 
because a person has a developmental disability, they 
should have to obtain a “special zoning permit” to live in 
the neighborhood and community of their choice.



C-3

Here in Washington State, there are dozens of group 
homes and other residential programs for people with de­
velopmental disabilities. There is no evidence whatso­
ever, that people with developmental disabilities affect 
the quality of life in any neighborhood or should be re­
quired to obtain special permits to live in the same way 
as any other citizen. In fact, we would like to suggest that 
people with developmental disabilities living in the com­
munity improves a neighborhood.

In Washington State, there has been a successful 
“deinstitutionalization” of people with development dis­
abilities to community living programs similar to the 
Cleburne Living Center Program, which are highly suc­
cessful and improve the quality of life for all citizens.

Any law which discriminates against citizens with 
developmental disabilities must be challenged. The 
Cleburne zoning law which describes people as “feeble­
minded” and requires special zoning permits, is illegal, 
discriminatory, unconstitutional, and must be 
challenged.

Sta tem en t  of
The Consum er Ad v iso ry  B oard 

o f th e  Massa ch u setts Association 
fo r  R eta rd ed  C itizen s

The members of the CAB believe that everyone has 
the right to live in the community and to enjoy the rights, 
privileges and responsibilities of full citizenship. The CAB 
members believe that discrimination based upon the la­
bel of mental retardation is wrong and should be de­
clared unconstitutional.

Many CAB members had previously lived in large 
state institutions that denied them human dignity and 
control over their own lives. CAB members have become 
good neighbors and productive citizens since moving into 
group homes and apartments in the community.



C-4

The Consumer Advisory Board continues to work to 
guarantee the civil rights of people with disabilities. We 
consider the right to live in the community an essential 
part of our civil rights.

Sta tem en t  of W isconsin  Advocates

We, the Wisconsin Advocates, a division of the As­
sociation for Retarded Citizens in Wisconsin unani­
mously believe that, any law that treats people with men­
tal retardation differently from non-retarded people 
should be measured by the same standards as those deal­
ing with discrimination on the basis of race, national or­
igin, or gender.

Sta tem en t  b y  De b b ie  Va r n er ,
P r e sid e n t , Texa s Advocates

I am Debbie Varner - President of Texas Advocates. 
Texas Advocates is a state-wide organization of people 
who are mentally retarded. We have about 325 members 
in thirteen local units. Our job is to help people who are 
retarded to speak out for their rights. It is also important 
for our organization to speak out on problems that trou­
ble all people with mental retardation.

I just don’t think it’s right for cities to use strange 
laws to keep us from living in group homes if that’s what 
we need. We have as much right to live in regular neigh­
borhoods as anyone. Sometimes people think that if peo­
ple who are retarded move in that it will ruin their neigh­
borhood. That’s just not true. In fact, I think most people 
with mental retardation would make good neighbors. Af­
ter all, many of us right now live in regular neighbor­
hoods either on our own or with our families.

Many Texas Advocates members and others with re­
tardation would like to live in group homes. We want to 
be able to enjoy community life just like everyone else. 
But laws like the one in Cleburne keep us from living in 
regular neighborhoods and from enjoying community



C - 5

life. They violate our rights and show that city officials 
don’t respect us as citizens. That’s not right or fair. Texas 
Advocates want to do something about this problem.

The decision The Supreme Court makes in the 
Cleburne case could affect my life and my rights as well 
as those of many other people with mental retardation.

Sta tem en t  o f Speakin g  fo r  Ou r se l v e s

Speaking For Ourselves is an organization run by 
and for people labeled mentally retarded. We have over 
500 members living in group homes, institutions, at home 
with their parents and attending sheltered workshops 
throughout southeastern Pennsylvania. Many of our 
members are part of the plaintiff class in the Pennhurst 
case.

We know that people think that we are bad com­
pany. They think that we go around hurting people and 
that we don’t know how to do anything.

We know that many of our neighbors don’t want us 
to live nearby because we can’t talk straight . . . can’t 
walk straight. We’ve had neighbors call us names. We’ve 
had neighbors’ kids throw snowballs at us.

We are human beings, just like everyone else. God 
put us all here. We have a right to live in the community. 
Everyone is equal under the law. How would the neigh­
bors feel if they were their family members and no one 
would let them live there? The neighbors have no right 
to chase anyone out of their home just because they are 
handicapped. Nobody should have their home taken away 
simply because they are “retarded.” Where are they sup­
posed to live? Out in the street? In institutions?

The issue is that we have a right to live in the com­
munity and no one should be able to take that right away 
from us.



C - 6

Sta tem en t  o f S.T.A.N.D. To g eth er  o f Maryland

S.T.A.N.D. Together is the state board for the Mary­
land Self Advocacy Movement for adults with develop­
mental disabilities working together in spirit, teamwork, 
and new determination. We are fifteen elected represent­
atives who represent over 400 members of Self-Advocacy 
groups throughout Maryland, Our purpose is to advocate 
in a unified way on issues of concern to all persons with 
disabilities.

We feel very strongly about the Cleburne case. Peo­
ple with disabilities should have the same rights and guar­
antees of law as all citizens. We should not be discrim­
inated against nor segregated because we are mentally 
retarded or in a wheelchair. We worked for many years 
to free ourselves from inhumane institutional existence 
so that we could live in an integrated and free society. We 
are contributing citizens of society who strive to uphold 
the law and use our skills and capabilities in positive ways. 
Living in the community cannot be denied to us just be­
cause we are disabled. We strongly abhor any person or 
ordinance that wrongfully labels us “feebleminded”. That 
is a gross insult to our humanness and personal dignity. 
No citizen should have to prove their worth as a human 
being to be granted equal protection under the law.

Sta tem en ts b y
Me m b e r s  o f P e o p l e  F ir st  o f M ichigan

“You won’t learn very much in an institution. It’s 
best to be where you can work and see how things are 
done in the community.”

“You don’t get to go anywhere like movies, baseball 
games, or other things when you’re in an institution.”

“In institutions you are watched 24 hours a day. I 
live in a family home where I am treated like a member 
of the family. In most independent homes you get to do 
more. That’s why we prefer that we should have more 
group homes.”



C - 7

“I was in [an institution] for 16 years. It wasn’t very 
nice. A group home is better. That way you are not tied 
up in an institution. In the institution they used to stand 
people up in the corner and other things I can’t tell about. ”

“I’m in a group home where it’s safe. I can learn to 
go places like downtown, to church and home. I can learn 
what I can do or can’t do.”

“In group homes they’re not as strict on us as at (an 
institution). In a group home, if you act up, they can 
handle you in a more adult way rather than placing you 
in a straight jacket or in a lock up.”

“At the institution I came from, they were too strict.”
“When my father died, my mother thought about 

placing me in an institution, but she found a group home 
and that was really great.”

“People need a place to go like a group home when 
their family can no longer take care of them.”

“In the institution, they cut your hair, even when 
you don’t want it.”

“Giving you a choice —in the institution, they used 
to sterilize people without their permission.”

“In institutions they tied up Bruce D. (a friend of 
mine) in a chair all the time.”

“I knew a man [in an institution] who was strapped 
down in his bed.”

“I had a friend who was in an institution and they did 
a lot of things to him that were wrong. People should 
have a chance to prove what they are worth.”

“An institution is: looking at four walls: living in 
smelly rooms; and you have to do what they tell you to do. 
You can’t make your own decisions.”

“We are people first. We are adults and should be 
treated like adults.”

“Institutions are no place for human beings.”



C-8

S ta tem en ts b y  M ich a el  Ken n ed y  and 
P atricia  K il l in s , Coordinators of 

S e l f -Advocates o f Cen tra l  New  Y ork

We are self-advocacy coordinators for Self-Advocates 
of Central New York. We feel strongly about our right to 
live in the community. 1 (Michael) lived in 3 New York 
institutions for people called mentally retarded for 15 
years. I have cerebral palsy and use a wheelchair. Now 
I live in a Medicaid-supported apartment with 3 other 
people with severe disabilities. Anyone who says 1 can’t 
live in their neighborhood doesn’t know me.

1 (Patricia) lived in 2 state institutions for a total of 18 
years. I am blind, have cerebral palsy and use a wheel 
chair. Now I live in an apartment similar to Mike’s. When 
I lived in the institution, I helped other people get out. 
Then I thought I ’d better start looking out for myself. 
Some places didn’t even give me a chance because of my 
disabilities. Finally I got out.

More people could get out of the institution if there 
were more group homes and apartments like ours. Peo­
ple who don’t want us living in their neighborhoods 
shouldn’t be afraid of us because we’re disabled. They’re 
just reacting to silly labels like “retarded” or “handi­
capped.” We don’t like those labels. They should treat us 
like people with the same rights that they have.

Sta tem en t  of Ca pito l  
P e o p l e  F ir s t , Incorporated

Capitol People First, Inc. is a non-profit organization 
of adults with mental retardation who advocate for their 
own rights both as citizens and as persons with devel­
opmental disabilities, and who advocate for the rights of 
all other developmentally disabled people as well.

In 1984, members of Capitol People First wrote a 
report under contract to the California State Council on 
Developmental Disabilities entitled: Surviving in the Sys­
tem: Mental Retardation and the Retarding Environ-



C-9

merit. To our knowledge, that report was the first to use 
the phrase “the retarding environment.” The phrase can 
be very useful for describing what happens to people who 
are defined by the community as having mental retar­
dation.

Not only do people with mental retardation have to 
struggle with their biological impairments, but they also 
have to struggle both with service systems and with pub­
lic attitudes which all too often conspire to prevent growth 
and development for which there is a genuine potential. 
As we understand Cleburne, the issue is a local zoning 
ordinance which denies people diagnosed as having men­
tal retardation the same access to residential locations in 
that community that is available without question to peo­
ple who are not diagnosed as “feebleminded.” Many of us 
have been subjected to open or masked discrimination of 
this sort, and we know that it has contributed to keeping 
the social environment we live in a “retarding” one.



APPENDIX D
BIBLIOGRAPHICAL NOTE

ON HISTORICAL SOURCES:
EUGENICS, RACE, RETARDATION, IMMIGRATION

Amici ARC/USA, et al. offer this note on the leading 
scholarly historical works that describe the conditions 
during the period 1896-1930, particularly as they relate 
to eugenics, race, retardation and immigration. In that 
Era, blacks, immigrants and retarded persons all were 
singled out for exclusion from society, and similar ide­
ologies and stereotypes were developed to justify that ex­
clusion. The leading works on Jim Crow, on the move­
ment for racial restrictions on immigration, and on the 
movement to segregate retarded persons are most in­
structively read together because they describe different 
facets of a single social process and historical experience.

C. V. Woodward’s classic, The Strange Career o f  Jim  
Crow  (3d rev. ed. 1974), shows how the southern regime 
of de ju re  segregation arose, in the early decades of the 
20th century, and traces the forces in the North, includ­
ing the problems presented by immigration and imperial 
ventures abroad, that allowed this regime to emerge. 
Woodward, as well as R. Kluger, Simple Ju stice  (1975), 
and J. H. Franklin’s standard text, From Slavery to Free­
dom  (5th ed. 1980), which both document the pervasive 
racism directed against blacks in the North and the South 
during this Era, should therefore be read in conjunction 
with the standard works on immigrants in the United 
States. T. J. Archdeacon’s Becoming American  (1983), 
the most comprehensive work on the history of immi­
gration, contains an excellent account of the social im­
pact of the “new immigration” of the period 1890-1930. 
J. Higham’s Strangers in the Land  (2d ed. 1978) is a 
useful synthetic account of American nativism as a com­
mon set of attitudes underlying the treatment of blacks 
and immigrants in the North and in the South. Higham

D-l



D-2

also documents the transformation of inchoate nativist 
sentiments among Americans of “older stock” into a co­
herent racial ideology during this period.

The eugenics movement developed during this pe­
riod. Northerners and southerners alike were receptive 
to such ideas to explain crime, vice, and the variety of 
other intractable social problems created by industriali­
zation as the product of the innate genetic inferiority of 
those who differed from themselves. They were equally 
receptive to the solution offered by eugenics to those ills: 
segregating and excluding blacks, immigrants, and “the 
feeble-minded,” whom they held responsible. M. Haller’s 
classic Eugenics  (1963) is an excellent general account 
of the history of the eugenics movement of the Era and 
its translation into legislation. Haller documents the com­
mon origins of the campaign for the segregation of “the 
feeble-minded” and the campaign for restrictive immi­
gration laws, and shows how those movements drew on 
the Jim Crow laws in the South (which were thought to 
serve a eugenic purpose) to support their own similar 
goals. K. M. Ludmerer shows in Genetics and American 
Society  (1972), a good overview of the subject, that eu­
genics was a popular social and political movement rather 
than a scientific one and in fact was rejected by the lead­
ing geneticists of the Era. L. Kamin, The Science and  
Politics o f  IQ (1974), and S. J. Gould, The M ismeasure o f  
Man  (1981) are both excellent accounts of the transfor­
mation of intelligence testing during this period into a 
political tool to exclude those of “innately inferior” non- 
Nordic ethnic backgrounds and to segregate retarded per­
sons. D. Kevles, Annals o f  Eugenics, New Yorker, Octo­
ber 8, 15, 22, 29, 1984, also provides an overview of the 
eugenics movement and its impact on legislation and pol­
icy toward retarded people and toward immigrants.

Works that focus on the origins of segregated cus­
todial institutions in the early decades of the 20th cen­
tury show how the era’s general approach and remedy 
for social problems was applied specifically to retarded



D-3

persons. P. Tyor, Segregation or Surgery  (Diss. Nw. Univ. 
1972), 'published in P. Tyor and L. Bell, Caring fo r  the 
R etarded in America  (1972), is the most comprehensive 
history of the development of retardation institutions dur­
ing the period 1850-1920 and the transformation of in­
stitutions from short-term training programs to custodial 
facilities designed for life-long segregation. Both Tyor and 
W. Wolfensberger, The Origin and N ature o f  Our Insti­
tutional Models  (1975), another excellent source for the 
evolution of retardation institutions, analyze the relation­
ship between eugenist attitudes toward retarded people 
as a “menace” to society and the institutional models de­
veloped to implement those attitudes. That social reform­
ers interested in retarded persons shared the racial and 
hereditarian attitudes of the Era and its devaluation of 
non-whites and non-Nordics as well as retarded persons, 
is clear from these accounts and from Sarason and Doris, 
Educational H andicap, Public Policy, and Social H is­
tory  (1979), an analysis of the impact of industrialization 
and immigration on the social institutions of the period. 
Sarason and Doris focus on the experience of retarded 
persons segregated in or excluded from the public 
schools.

The hostility and stereotypes of the Era toward re­
tarded persons are well-documented in these works, par­
ticularly in Tyor and Wolfensberger. To make the com­
parison with the ideology of Jim Crow, they should be 
read in conjunction with R. Kluger, supra, I. A. Newby, 
Jim  Crow’s Defense  (1965), and G. M. Frederickson, The 
Black Image in the White Mind  (1971).

The legacy of the segregation of retarded persons is 
most recently documented in D. and S. Rothman, The 
W illowbrook Wars  (1984).