LOST DISABILITY HISTORY of the ‘NEW FEDERALISM’

LOST DISABILITY HISTORY of the ‘NEW FEDERALISM’

“As scholars continue to think through the relationship between federalism, inter-branch dynamics, and the elusive promise of equality, I hope that the concepts of ability and disability infuse that work — alongside such better-recognized concepts as race, gender, sexuality, national origin, and economic status.”

KAREN M. TANI L’07, GR’11, Seaman Family University Professor

In “ The Pennhurst Doctrines and the Lost Disability History of the ‘New Federalism,’” published in the California Law Review, Tani reveals the complicated and intertwined history of disability law and contemporary federalism doctrine. At the center of the article is a famous lawsuit over the conditions at Pennsylvania’s Pennhurst State School and Hospital (Pennhurst), an institution where individuals with disabilities endured abuse, neglect, and, according to lawyers, an alienation of their legal rights. Tani notes that although the Pennhurst litigation is well known among people interested in disability rights deinstitutionalization, there is less appreciation for the case’s immense effects on the balance of power between the U.S. Congress and the states. Similarly, although many legal scholars have heard of the Supreme Court’s pronouncements about the Pennhurst litigation, few have appreciated the significance of disability to the important legal doctrines that the case enabled the Court to develop.

In Tani’s words, the effect of Pennhurst and its progeny was to create a role for federal courts “that was at once more assertive and more modest” than their previous role.

“The decisions impelled courts to become more assertive in their oversight of Congress, which critics perceived as making extravagant equality guarantees without pausing to count the costs,” but more modest in their dealings with state governments, “particularly when it came to enforcing rights in ways that spent and allocated state resources.”

The Road to Halderman v. Pennhurst State School & Hospital

Pennhurst was founded about 30 miles outside of Philadelphia in 1908. Over the course of several decades, as Pennhurst’s resident population grew, it became apparent that all was not well inside the institution. Suspicious deaths sometimes made it into the local newspaper, as did accounts of serious injuries and illnesses.

As better-off families began to have more relatives in Pennhurst and similar institutions, advocacy networks grew, but conditions for

residents seemed to only get worse. By the mid-1960s, Pennhurst was often the subject of local newspaper stories, which detailed overcrowding, understaffing, mistreatment of residents, and “living nightmare” conditions. Advocacy groups such as the Pennsylvania Association for Retarded Children (PARC) eventually began to strategize as to how to bring about state and federal intervention.

In 1972, with assistance from the well-known public interest attorney Thomas Gilhool, PARC secured a landmark settlement guaranteeing the rights of children with disabilities in Pennsylvania to equal access to education. This provided a partial escape route for children languishing in Pennhurst and similar institutions. But the lawsuit that is most associated with the Pennhurst name began two years later, when attorney David Ferleger filed a complaint in federal court on behalf of Pennhurst resident Terri Lee Halderman and others. Shocking in its detail, the complaint alleged a litany of abusive and neglectful practices, resulting in not only horrific injuries but also lost opportunities for rehabilitation and education. PARC joined the lawsuit shortly thereafter, and in 1976, Ferleger and Gilhool filed an Amended Complaint asking the court to order Pennhurst’s closure.

The resulting trial court decision is still remembered as a great victory for disability rights. The Honorable Raymond Broderick held that the plaintiffs’ constitutional and statutory rights had been violated by the inhumane conditions at Pennhurst. Further, he found that the plaintiffs’ “right to habilitation” simply could not be met “in an institution such as Pennhurst.” He ordered the state to “provide suitable community living arrangements” for the approximately 1,200 persons residing at Pennhurst, as well for as all those on the waiting list.

Pennhurst Meets the “New Federalism”

On appeal, the Pennhurst case took on new meanings. Unusually, this litigation made it to the Supreme Court twice, in 1981 and 1984, and on both occasions produced important pronouncements about the allocation of power in a federalist system.

In the early 1980s, the Supreme Court was in the early years of what scholars would later call a federalism “revolution.” Most commonly associated with the leadership of Chief Justice William Rehnquist (1986-2005), the Court’s “new federalism” jurisprudence dialed back the power that previous Supreme Court decisions had accorded to Congress and reinvigorated doctrines that showed solicitude for the states. The Pennhurst case proved to be a crucial vehicle for advancing this vision.

The Supreme Court’s first decision in Pennhurst turned on whether an intermediate appellate court, the Third Circuit, had correctly interpreted the Developmentally Disabled Assistance and Bill of Rights Act of 1975 (DD Act). Like many federal statutes from this era, the DD Act essentially used the promise of federal funds to incentivize states to partner with Congress in pursuit of a shared goal, in this case caring for people with developmental disabilities. The DD Act also included a “bill of rights” outlining the treatment, services, and habilitation to which people with developmental disabilities were entitled. In affirming the district court’s opinion, the Third Circuit had chosen to base its decision on this statutory “bill of rights” rather than the U.S. Constitution.

The Supreme Court took issue with the notion that when Pennsylvania accepted federal funds under the DD Act, it exposed itself to the kind of liability that the lower courts had articulated. By a 5-4 vote, the Court ordered the Third Circuit to consider whether there was some alternative basis for upholding the district court’s decision. But even more important, the Court articulated a broader principle for how federal courts should interpret this type of statute. Writing for the majority, Justice Rehnquist declared that legislation enacted under the Spending Power was in the “nature of a contract”; if particular terms of the bargain were insufficiently clear to the states at the time they accepted federal money, it was not fair to hold the states to those terms down the line.

On remand, the Third Circuit once again affirmed the district court’s decision, but this time based its affirmance on an interpretation of Pennsylvania’s Mental Health and Mental Retardation Act. The defendants again sought Supreme Court review — this time with the support of 24 other states and jurisdictions — and in doing so gave the Court an opportunity to elaborate on another area of doctrine that was central to modern federalism: the Eleventh Amendment.

The resulting Supreme Court decision, in 1984, held that the Eleventh Amendment prohibited federal courts from entertaining state law claims against state defendants, even though federal courts had routinely entertained such claims before. The decision also tethered

the Eleventh Amendment even more closely to what Justice Powell called “the fundamental principle of sovereign immunity.” The change in direction was an “unprecedented about-face,” wrote Justice Stevens in dissent, but one that clearly appealed to the majority of the Court.

Legacies

The legacies of the two Pennhurst decisions are significant. The first Pennhurst decision articulated a rule of statutory interpretation now known simply as the “clear statement rule.” Courts have applied this rule to many statutes, ranging from important civil rights laws to the Affordable Care Act (ACA). It was the basis for the Supreme Court’s decision to strike down the “Medicaid expansion” provision of the ACA. And it is often raised by state defendants who contend that they should not be financially accountable for violations of Spending Clause statutes.

The second Pennhurst decision, meanwhile, proved to be an important building block in the Court’s state sovereign immunity jurisprudence. To conservative justices, this line of cases was vital to protecting the states’ role in the federal system and to placing some checks on aggressive uses of congressional power. To critics, it dramatically limited citizens’ ability to hold states accountable for violating their rights.

Restoring Disability Context

The Pennhurst litigation has lessons that go beyond doctrine, however. Through careful analyses of the language that the justices used when discussing the case, Tani identifies particular assumptions about disability and disability rights, such as the assumption that the rights of disabled citizens are necessarily costly and that their claims to equality are unreasonable or extreme. Citing other Supreme Court cases involving disabled plaintiffs, Tani asks whether the disability context allowed the justices to articulate views about states’ sovereignty and dignity that “might have felt unseemly or inappropriate in a different (non-disability) equality context.”

“[I]deas about certain disabilities and the difficulty of preventing or accommodating them may have eased the path,” Tani hypothesizes, “the path toward a vision of government that accepts powerful central-state intervention in some arenas but circumscribes the federal government’s ability to assure inclusion and protection in others. Neatly reversing the presumptions of the Reconstruction Amendments, those promise now often depend on states and their subsidiaries, for better or for worse.”