I recorded the HBO special about Supreme Court Justice Thurgood Marshall (7/2/1908 – 1/24/1993) and just watched it. It was so moving it brought me to tears.
In 1896, the US Supreme Court, in Plessy v. Ferguson, 163 U.S. 537, upheld the constitutionality of racial segregation under the doctrine of “separate but equal.” “Separate but equal” remained the law until Brown v. Board of Education in 1954.
Opening the School House Doors
Thurgood Marshall was the lead attorney in Brown. Prior to Brown, Marshall used Plessy to open school house doors (such as the law school at the University of MD) to black students. Even though MD had created a separate law school for blacks, it was not equal.
I watched “Thurgood” and the use of Plessy as a sword. I couldn’t help but think of Tom Gilhool, attorney in the landmark PARC case. PARC was one of the two cases that caused Congress to decide that children with disabilities were to be provided with a “free appropriate public education.” (That law is now known as IDEA 2004.)
Claim an Adverse Decision as Your Theme
Tom Gilhool has always preached that when a big legal decision is issued that is adverse to your own pending case, claim it as yours. Argue that it supports your proposition, your theme of the case.
When I heard Laurence Fishburne (in the role of Thurgood Marshall) argue that Plessy advanced his cause, I had an immediate flashback to the first time I heard Tom argue that same proposition. I think it was at COPAA‘s first annual conference.
Change the exclusion issue from one of skin color to disability. As I watched “Thurgood,” I kept thinking about Brown being the case that started opening the school house doors – not just to black children, but also to children with disabilities.
It took another 20 years. So often the arguments advanced in support of exclusion are the same. Thurgood Marshall started the revolution that eventually impacted our children.
Remembering Tom Gilhool
As I watched “Thurgood” in its entirety this morning, my mind kept going back to Tom and PARC and the case law even before PARC.
In 1919, a decision was upheld that kept children with cerebral palsy out of school because “the very sight of a child with cerebral palsy . . . (could produce) ‘a depressing and nauseating effect’ upon others.” State ex rel. Beattie v. Board of Ed. of Antigo, 169 Wis. 231, 232, 172 N. W. 153 (1919).
In Pennsylvania in the early ’70’s, “the exclusion of ‘retarded children’ was based upon four State statutes :
(1) Sec. 13-1375 relieves the State Board of Education from any obligation to educate a child whom a public school psychologist certifies as uneducable and untrainable. The burden of caring for such a child then shifts to the Department of Welfare which has no obligation to provide any educational services for the child;
(2) Sec. 13-1304 which allows an indefinite postponement of admission to public school of any child who has not attained a mental age of five years;
(3) Sec, 13-1330 which appears to excuse any child from compulsory school attendance whom a psychologist finds unable to profit therefrom, and
(4) Sec. 13-1326 which defines compulsory school age as 8 to 17 years but has been used in practice to postpone admissions of retarded children until age 8 or to eliminate them from public schools at age 17.” Pennsylvania Association for Retarded Citizens v. Commonwealth of Pennsylvania, 333 F. Supp. 1257 (E.D. Pennsylvania 1971) and 343 F. Supp. 279 (E.D. Pennsylvania 1972)
Understanding Our Roots
State law in PA permitted exclusion of “mentally retarded” children, until the heroic work by Tom Gilhool in PARC.
Why am I sharing all of this? It is important that we, as advocates, understand our roots. It goes back to Thurgood Marshall and later, Tom Gilhool.
After PARC, Tom, along with COPAA’s Judith Gran, was involved in the landmark Pennhurst State School and Hospital case.
Pennhurst was originally known as the Eastern Pennsylvania State Institution for the Feeble-Minded and Epileptic. Through Tom and Judith’s work Pennhurst was eventually closed.
Education for All Handicapped Children
In a story about that case, it was reported that: “In the mid-1960’s people were entering Pennhurst in their teens.
A major reason for institutionalization was the lack of access to a public education and the support that provided to parents . . . PARC v Commonwealth of Pennsylvania was the first right to education case. It led to a consent decree that Congress ultimately codified as the Education for All Handicapped Children Act of 1975.
Thomas K. Gilhool of the Public Interest Law Center of Philadelphia was lead counsel in the case. He recalls that in 1970, 15,000 school aged children were going into institutions. By 1978 (the effective year of the 1975 legislation), that dropped to 1,500.”
“But the PARC decision to go to court did not come easily . . . some PARC leaders thought it untoward to sue the very state leaders upon whom individuals and families would depend for services. Some leaders, including a former president of the National ARC, resigned from PARC when it decided to sue. The debate was strong and bitter.”
“Tom Gilhool remembers that Judge Broderick always had pictures from Pennhurst on his office walls . . . Broderick told one story with joy and pride.
After people left Pennhurst, Broderick answered a late night phone call. There was silence on the other end, then a halting voice asked ‘Judge Broderick?’ Broderick said ‘yes’. The voice said, ‘I left Pennhurst. I’ve learned to use the phone. I wanted my first call to be to you to say thank you.'”
It is empowering and brings us back to our roots.