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tv   The Constitution Persons with Disabilities  CSPAN  November 23, 2018 1:15pm-2:46pm EST

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the american disabilities act. tom harkin discusses laws that have affected those with disabilities. the bird center for congressional history and education hosted this 90 minute event. >> welcome, ladies and gentlemen. my name is jay wyatt, i'm the director of the byrd center. i want to thank you for joining us today as we celebrate constitution day with the 14th annual tommy moses memorial lecture on the u.s. constitution. so before we get started, i want to gently remind everyone to please silence your cell phones. thank you. it is very exciting to see a packed house today with so many
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special guests. first and foremost, i want to thank this year's constitution day speaker, senator tom harkin and his wife, ruth, for taking their time out of their schedules to be with us. i want to recognize shepherd university president mary hendricks for her ongoing support. i want to thank marty martin, president of drake university and joseph jones, the director of the harkin institute and the rest of the institute staff that made the trip to be with us here today from des moines. there are several members of the byrd center's board of grovernos i would like to thank. thank you for supporting us throughout the year and today. i would be remiss if i didn't tell you about the man that this
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is named after. mr. moses was a devoted civil libertarian. he spent much of his life defending american civil liberties and the u.s. constitution. mr. moses worked on fair housing and civil rights issues in baltimore and cleveland. and while living in ohio he started the first welfare rights organization in the united states. he was a longtime resident of jefferson county. he founded the eastern panhandle branch of the american civil liberties union of west virginia. he was recognized for his contributions to the community. mr. moses was named by then governor jay rockefeller to the board of the potomac center for individuals with disabilities. i want to recognize tom moses' family, particulthey have carri forward his legacy of activism and have helped us make the mis
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signature annual event. we have brought legal scholars, historians, politician and policy experts to the campus of shepherd university to discuss historical contemporary and constitutional issues. we at the byrd center sincerely thank you for your continuing support. all of this is to say that constitution day has become a tradition here at the byrd center. i stumbled on a speech from 15 years ago. as you might imagine, the speech was a little lengthy. so i'm only going to share a few quick quotes from it. on that day, senator byrd described the constitution as our manual of governance.
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our handbook of government and the tech manual for our national operating system. it was a digital analogy. senator byrd went on to say that unlike many tech manuals the constitution is easy to read and understand. most importantly, senator byrd framed the constitution that day as the strongest piece of armor protecting the rights and freedoms of each and every citizen. with emphasis to the latter part of that season. it's the each and every citizen that's relevant for senator harkin's talk today, which is titled the constitution and persons with disabilities. in our society, the voices of persons with disabilities have all too frequently not been adequately heard. as a five term congressman representing iowa's fifth
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district from 1974 to '84 and as a senator representing iowa, he worked to insure that the civil rights of millions of americans with physical and mental disabilities were recognized and protected. he was tapped by senator ted kennedy to craft legislation to prohibit discrimination against those with disabilities. the end result of these efforts was the americans with disabilities act. one of the most important pieces of legislation passed in the last 50 years, if not longer. the ada has been called the emancipation proclamation for people with disabilities. i think it's important to recognize the magnitude of what that label really does mean. the a.d.a. has done nothing less than rescadesign the landscape
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america. in 2008, senator harkin introduced the a.d.a. amendments act. the strengthened the a.d.a. that act, like the first, was passed with wide support, bipartisan support, and signed into law by president george w. bush. in 2009, senator harkin became chair of the labor and pensions committee. ladies and gentlemen, senator harkin and senator byrd were colleagued for 25 years in the senate. there are few americans better suited to talk to us today about the constitution's role as the strongest piece of armor we have protecting the rights and freedoms of each and every citizen. please help me welcome our very esteemed guest, the honorable retired senator from iowa, mr. tom harkin. [ applause ]
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>> thank you very much. jay, thank you very much for that kind, generous introduction. i want to recognize a longtime friend, a fellow worker and all of the efforts over the last 20 years i guess or so of making sure that we had enough funding and support for research in america, especially through the national institutes of health. that's the president of shepherd university, mary hendricks. who also graced the state of iowa at the university of iowa, too. again, we worked together on so many issues in regard to biomedical research in the past. so i thank you again for having me here. jay, of course, your director,
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ray smock, your former director who was here at the beginning at the dawn of all of this. and also worked in the senate, your archivist? back here, your archivist. i want to thank the president of drake university, marty martin, who is here. the harkin institute is at drake university in des moines. the director you mentioned, joseph jones, the director of the harkin institute is here. and our archivist is here. i always pay homage to archivists. i don't know how they do it and keep all this stuff straight. it's amazing how they know how to do that kind of stuff. we have other people here, amy bentley, who is our policy director of the institute and emily shetler who is our communications director. my wife, ruth harkin, we just celebrated our 50th wedding anniversary this summer.
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all right. of course the board members, all long time personal friends. joe stewart and pat and andy griffin, of course, and eric fatimei, who is senator byrd's grandson. he ran the help committee, the appropriations subcommittee for long, long time, how many years, eric? >> 12. >> 12 years a long time. we worked together on so many things in the past. all dear friends. board members here of the byrd institute. dan ripley, who wasn't introduced, a friend of mine. actually, he's really a pretty smart guy. he made one big support in his life. he supported me when i ran for president. that's probably the only political mistake he made.
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and a thank you to senator byrd for bringing us together today. as jay said i was privileged to work with senator byrd for 25 years on the appropriations committee during some really interesting times and interesting periods in our national history. i got to thinking about this -- about the constitution. there was no one that i have met in my lifetime who had more fealty to the constitution and perhaps knew it better than robert byrd. i thought about this earlier. you know, if you sat robert byrd down with a blank tablet and a pen and said write out the constitution without any assistance, he would probably come pretty darn close to writing it out. he remembered all that stuff. he might not got every word
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correct, but he knew it and he knew it that way. it's an honor to be here to talk about the constitution, especially as it pertains to people in our country that have been so isolated and segregated for so long in our society. i will get to that in a minute. first of all, anytime i give lectures on the constitution, i always like to give a pop quiz. what month, day, and year was the constitution signed? anybody? what day? september 17th, that's today. that's right. 1787. who was the oldest person and how old was he that signed the constitution? anybody? benjamin franklin. 81. the youngest person, you've never heard of this guy. jonathan dayden, he was 26 years old. it was ratified in 1788.
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two future presidents signed the constitution, who were they? adams? who? jefferson. who else? huh? adams. no. you're both wrong. i hate to say that. two future presidents signed the constitution. george washington and james madison. why didn't thomas jefferson sign it? huh? he was in paris. why didn't john adams sign it? he was in london. so a lot of people think -- of course you're thinking of the declaration of independence when you're talking about thomas jefferson. interesting little tidbits there. as you all know, the bill of rights were not included as it
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was signed by those delegates and promulgated in 1788. it went out to the states, the ten amendments for ratification and they were ratified in 1791. three years after the constitution, the bill of rights was added. another interesting tidbit here, there were not originally ten amendments, there were 12 amendments. but they went out for ratification. the requisite number of states, three quarters of the states ratified ten of them. there was an 11th amendment b, was an interesting amendment. it said that no member of congress' pay could be increased
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until there was an intervening election. makes sense, doesn't it? yeah. but it never made it. 1982 a young sophomore at the university of texas by the name of gregory watson was doing a term paper, a history term paper. his subject was the bill of rights. he came across the fact there was this 11th amendment that had been ratified by some, but never made it. he found out another interesting fact, the 11th amendment did not have a time limit on it. so he argued in his term paper that it was still alive. it could still be ratified. well, as the story goes, his professor gave him a c on the paper. he appealed this to the dean of the school and the dean upheld
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the professor. this made mr. watson very angry. he was a sophomore. he went on a big writing campaign writing letters to senators, congresswoman saying there was no time limit. you can still adopt this. the first state to ratify it was maine in 1982 because senator bill cohen. you remember him, joe. senator bill cohen. and after that, other states started jumping on it. by 1992, 38 states, the requisite number, had ratified it 203 years later. it became the 27th amendment to the constitution and the last amendment ever adopted to the constitution. interesting little story there. now you can't raise your pay until there's an intervening election. that happened in 1992. the other thing i like to talk about when i talk about the
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constitution is this issue of how does the supreme court get the power to declare an act of congress unconstitutional? i'll do like robert byrd. the constitution. he had that wherever he went. the constitution. where in the constitution does it say that the supreme court can declare an act of congress unconstitutional? look through article iii, you won't find it. it's not in here. how did this happen? well, john marshall becomes chief justice. a case reaches his court february 24th, 1803. washington is now starting his second term. the case reaches him -- i'm sorry. jefferson is now in his first term, not washington. jefferson is in his first term as president. 1803. he's elected in 1800.
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a case reaches him, marshall. here's what he said. a law repugnant to the constitution is void. he found that the judiciary act of 1789 was inconsistent with article iii of the constitution. this is very interesting. always keep in mind that not every case that makes it to the supreme court has a human father, but most cases of any import that make it to the supreme court have some human factors to it. i'll get to some of those in a few minutes. that was the case here. and an interesting note, all the present hassle we've seen in the last few years over merrick, garland, and gorsuch. do you think that's just happening today? that happened in 1800. here's what i mean. here's the story, thomas
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jefferson is elected in 1800, as you know, very close election, right? and the federalists -- the president was elected in november, sworn in in march of 1801. during that period of time, the federalists, adams, had been president, decided to create a whole bunch of new judgeships. both circuit judges and justices of the peace. and to fill them with members of the federalist party because they wanted to keep control of the judiciary. so this happens, they start filling all these judgeships. there were a bunch, about a dozen that were promulgated right before jefferson was sworn in, called the midnight appointments. these had to go to adams to have him sign it to deliver so these people could take their offices. but they didn't get to adams before thomas jefferson was
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sworn in, and jefferson instructed james madison, now his secretary of state, don't deliver these. m marberry was a resident of maryland, a functionary sort of a political person, a federalist. he had been appointed to a justice of the peace, four year term, and he was one of those midnight appointees. and the story goes that the person who had this group to deliver to the white house got w w way layed in alexandria and a public and couldn't make it out of bed the next day. never made it to washington. jefferson is sworn in. he then gets these and jefferson says to madison, forget about it. don't appoint these people. well, marberry brought this course and said i got appointed by adams. you've got to carry that out.
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you've got to do that. and so this case made it up to the supreme court. john marshall is the chief justice. marshall was worried. jefferson is president. he is worried that if he tells jefferson that he's got to do this, that jefferson and the republican democrats, as they were called, might do something to harm the judiciary. marshall wanted to protect the court. but on the other hand, he didn't want to make the federalists mad because they might be back in power again soon, too. he figured out a way to split the hairs. marshall said there are three questions before us. first, he said did marberry have a right to the commission? he said yes, he did. he said if his right had been violated, did the law provide a remedy? he said yes.
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third question. if so, was the proper remedy a writ of mandamus from the supreme court? that's what he brought, a writ of mandamus to madison, carry this out. to that, he said no. and what he said was, he said if you read it -- one thing robert byrd said to me one time -- and he was citing harry truman. he said anytime you read the constitution, put it down and read it sometime later and you'll find something new. no matter how often i have read this constitution in my life, you find something new. when you look over marberry versus madison in this decision and marshall says yeah, the first two, but he filed a writ of mandamus. he red article iii, section ii. the judicial power shall extend to all cases in law and equity
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arising out of this constitution. then in the cases affecting public ministers and counsels and those in which a state shall be a party, the supreme court shall have original jurisdiction in all other cases before mentioned the supreme court shall have appellate jurisdiction both as to law and fact. under such regulations as the congress shall make. it didn't say both as to law and fact and constitutionality. it didn't say that. it said law and fact. well, marshall looked at that and said hmm, doesn't say in there that we have writ of mandamus, there is mno writ of mandamus forcing us to do something. the judiciary act of 1789 is unconstitutional. which authorized a writ of mandamus. he says it's not in the
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constitution. he said it's unconstitutional. jefferson later said he thought marshall was unconstitutional. he was saying this. but jefferson kind of won. they didn't have to appoint these people and the federalists, they were kind of happy, too. everybody sort of walked away saying maybe we ought to let it alone. to this day, to this day there still is nothing in the constitution that gives the supreme court the right to declare a law of congress unconstitutional. it just made sense. it just makes commonsense. so the power of judicial review was established. there are those that go into -- you hear all this about a
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readerea readist. i read what the words say and that's it. but i say that by the very -- that those who claim they're originale origin originalists are faced by a conundrum. by the very act of deciding a case on constitutional grounds, they are not following the original text of article iii, section ii. how can you be an originalists and yet decide something on constitutional grounds? it doesn't give you the power to do that. so say what are you doing being a judge? you can't do anything. so much for that. let me move on to the main subject of my talk and that's the constitution and disability -- i like to talk about marberry versus madison. it has all the human factors in it. the politics packing the courts, all the things you hear about
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today happened in 1800. well, let me talk about the constitution and disability rights. there is no distinction in the sn constitution. the constitution makes no mention whatsoever of any person with a disability. the constitution doesn't mention race, three fifth of african-americans counted as persons. you know that indians are counted as zero? you think three fifths is bad, indians has zero. unless they're taxed. someone in the drafting of the constitution said we have indians that own some property in our state and they pay property taxes. oh, well, they can be counted. we'll put that word in there if they're taxed they can be counted. if they're not taxed, they're zero. so that -- the word she is never
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used. only the word he is ever used in the constitution. there's flanot even the slighte hint of including or excluding persons with disabilities. it was left to the states. it was left to the states and local communities on what to do, what to do about persons with disabilities. most just ignored it. they left it to families. your family had to deal with it. and what grew up in the 19th century then were systems of isolation, segregation, and institutionalization springing up. some were good. the first was 1817, shortly after this, the first school for the deaf in connecticut. it was the first school for children with disabilities in the western atmosphere. that was followed in 1829 by the perkins school in massachusetts, the first school for blind children anywhere in the world. that was followed in 1864 when the u.s. congress authorized the
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columbia institution for the deaf and dumb and blind signed by president lincoln. the first president of that institution was a man by edward golledette university. the 1800s saw the emergence of the ugly laws -- have you ever heard of the ugly laws in america? well, they sprang up in towns and communities, states, which basically made it illegal for persons with visible disabilities to merely appear in public. it's true. you could be taken up and incarcerated if you were, say, missing a limb, if you were epileptic or if you were using a wheelchair. you could be pulled up under the ugly laws. interesting note, the last city
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to expunge their ugly laws were chicago, 1974. none of these laws were ever held unconstitutional. just never got up, just never got to the supreme court. the 1800s saw things like insane asylums. institutions for the feeble minded. homes for the lame and crippled. now, the problem with these were, aside from the cruel and inhumane treatment, many people were committed who were perfectly fine. maybe ill educated, maybe poor, maybe the families wanted to get rid of you so they committed you to one of these institutions. you're going to see this in the case i'm going to talk about in a little bit called the carrie buck case in virginia. in 1887 a book was written
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called ten days in a madhouse. nelly bly -- yes, the same stephen foster name, nelly bly went to work for the new york herald. it was called the women's lunatic asylum on what is now roosevelt island in new york. she went undercover. faked being mentally ill. was diagnosed by several doctors as being irreparably a mental deficient. sent to this women's iasylum an spent ten days there. mr. pulitzer got her out of there and she wrote a book called ten days in a madhouse. it's still relevant. if you want to hear about how
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people were treated -- these were all women. some were perfectly fine, but they were incarcerated against their will in this madhouse. the bad thing -- the only thing that happened because of this report was that they got an increase in money for more supervisors and better medical evaluation. it wasn't shut down. we had positive things, education for certain classes, deaf and blind. but the negative prevailed. segregation, asylums. in iowa we had county homes. infamous places, the county homes. and in there you had elderly poor, you had young people who had down's syndrome. you had other people, maybe, with cerebral palsy. all crammed in these county homes. all right. so that's the 19th century. we come now to the 20th century and in the beginning of the
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1900s we have what's called the eugenics movement. how many people have heard -- oh, smart crowd. well read. most people have never heard of it. i always like to say most americans have heard or read about the darkest chapters of our history like slavery and the genocide of the -- our native indians, the atrocities in war. but few have ever learned about the eugenics movement and the harm it brought to thousands of people with disabilities. the person who coined the phrase was a cousin of charles darwin, he lived in britain, his name was francis dalton. and he advocated selective human breeding. charles davenport was an american biologist. he started a facility at cold harbor springs, mary, on long island. it was called the eugenics recording office at cold harbor
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springs. its purpose was to improve the mental and physical qualities of the human family to eliminate negative traits like pauperism, promise sk promiscuity and visible impairments. the first state to enact a sterilization law was indiana and then california. virginia passed its sterilization law in 1924. the proponents of eugenics believed the state had not only the right, but the social obligation to forcibly surgically sterilize without their consent those individuals who the state found, quote, incompetent or, quote, mental defective. it's interesting when you read the history about who some of the supporters of the eugenics movement were.
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among them, winston churchill. theodore roosevelt. john maynard keanes. helen keller. h.g. wells. these were people that actually wrote about supporting the eugenics movement and what eugenics meant. helen keller of all people. so in 1927, we had this famous case called buck v. bell in virginia. the justice who wrote the opinion was oliver wendell holmes. famous, wounded three times in the civil war. he is now justice oliver wendell holmes. and let me -- here's what he said. he said, quote, it is better for all the world if society can prevent those who are manifestly
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unfit from continuing their kind three generations of imbeciles are enough. the imbeciles and the manifestly unfit he referred to was carrie buck, her infant daughter vivian, and carrie bucks, single mother. human factors. here's the story behind it. carrie buck was born to a single mother in poverty charlotteville, virginia. she had sparse education, if any. at some time around the age of 15 her mother farmed her out to a family to be a domestic. so carrie buck becomes a domestic for a family in charlott charlottesville. almost like a slave. a nephew of this family rapes carrie buck. on more than one occasion. she becomes pregnant and has a
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child at age 16. the family is sort of embarrassed by this. they're also fearing some kind of maybe legal ramifications. so they have carrie buck committed at feebleminded to the state institution. and then, a lawyer got her case, brought it up, made it all the way to the supreme court. justice holmes gives his statement and the state of virginia then went ahead and sterilized carrie buck. over 70,000 sterile vaguses following in the united states following buck v. bell. over 8,000 in the state of virginia alone. again, as a note in history, carrie buck is released from the institution. she gets married, gets divorced, gets married again for a long
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time. her second husband dies. she lives until 1983, and in her later years she was in a nursing home in virginia, and people around her, her friends, said one of her greatest joys every day was getting newspaper and working the cross word puzzle. manifestly unfit. manifestly unfit. imbecile. her daughter vivienne became an honor roll student in school and died shortly there after due to illness. in 2002 mark warner went to charlottesville be dedicated a road marker. you can go there today. it says buck v. bell. it's a marker that denotes the great injustice done to carrie buck and her family and to the
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thousands of others in virginia who had been sterilized in virginia without their consent and mark warner apologized on the behalf of virginia to those families. interestingly enough, after buck v. bell in '27 and during the '30s, guess who else picked up on the eugenics movement? someone calls the nazis and adolf hitler and they used california as one of their prime examples of the eugenics movement. hitler openly dragged their eugenics was modelled after what they were doing in the united states. then to think winston churchill was a supporter of that? the other thing to note is buck v. bell to this day has never been overturned. has never been overturned. if you're interested in
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following on the care, there was a great book written last year called "imbecilek". it will make you when you read it. by adam cohen. it will shake you when you read it. it's a wonderful book. there was no action on the supreme court about. but there were laws in the congress. i won't go into what they are, the day act, which says the federal government has to buy things from blind vendors. ssdi established in 1956678 then we had three cases, '56, '60, and '66. the first was was the conviction
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of a legally -- violates the due cause of the constitution. that was followed by dusky v. the u.s. in 1960. first one said the conviction violates the due process. in 1960, the court says wait a minute, the defendant has a right to a competency evaluation before proceeding to trial. this is a very short decision, by the way, very short decision. before they go trial, they have a right the a competency hearing. and then, peyton v. robinson in 1966 reaffirmed the dusky case and also reaffirmed the dusky rule, which still exists today in terms of the standards of what courts must follow, on whether a person is competent or
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not. two tests -- one, the defendant must understand the charges and secondly, the defendant must have the ability to aid his or her attorney in his own defense. so those two cases really moved us forward. this basically had to do with criminal trials. and then we had the famous case of jackson versus indiana in 1972. jackson was a person of, say -- not really knowing whether he was debate maybe he had an intellectual disability. little education. picked up for petty larsen si. he was shoplifting. and the court says he's incompetent and so they held him. they held him in an institution.
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they said, you're incompetent. held him in an institution. and finally, an attorney picked this up and said, wait a minute, you can't just keep him there. the supreme court held that the state of indiana violated the equal protection and due press by indefinitely holding a criminal defendant solely on the basis of his permanent incompetency to stand trial. they said the state must institute civil proceedings, not criminal proceedings for commitment using those standards or they got to release him immediately. he was released immediately. then there's another case here that was the o'conner versus donaldson case, 1975. donaldson was living in florida, 34 years old, married, had three kids. had an accident earlier on in his life in which he had some
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severe head trauma, and he had episodes of acting out. well, he worked at a defense plant for general electric, so he was a good employee, but he would have these episodes. finally he was hospitalized, with his consent. given shock treatments for his delusion. delusions that people were trying to poison him and all these other things. finally he was committed in 1956 and sat there for 15 years. in the meantime he had family and friends that said, wait a minute, he's not dangerous. we'll take care of him. let him out. we can house him. we'll take care of him. he has these episodes. no one would listen at all. so justice potter stewart -- great decision. listen to this. that he found for o'conner -- or
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they found for donaldson. may the state fence in the harmless mentally ill solely to save its citizens from exposure to those whose ways are different. one may as well ask if the state to avoid public ease could incarcerate those physically unattractive or socially eccentric. mere public intolerance or animosity cannot constitutionally justify the depp are vagus of a person's physical liberty. beautiful. justice potter stewart buried the old ugly laws once and for all, 1975. so a lot of supreme court cases doing really good things. and then in the '70s to the '90s, we had a flowering of dibt
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rights laws that congress got. and we had a couple of interesting court cases, which led the congress to be active. the first was parcv. pennsylvania. parc. family in pennsylvania had some children who will intellectually disabled. a couple for developmentally disabled and they are bar frd attending school. they could go to another school, but it was private and very expensive and they couldn't afford it. so the pennsylvania associate for retarded citizens brought to case against p.a. made its way all the way to the supreme court. and a very important principle was annunciated by the supreme court. a constitutional principle.
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here's what the court said -- if a state under its taxing and spending power, has free public education, it cannot then discriminate against kid who are disabled. now, here's why that's important. any way, a little teaching moment, if i might. there's nothing in the constitution that says that a state has to provide a free public education. nothing there. no state has to provide. yet the state of west virginia tomorrow said, we are not going to have free public education anymore. they can do it. nothing prevents it in the constitution. of course they wont get any federal money, either, for things like -- all kind of education things, but they could do it. what the supreme court said in parc, if you're going to have a
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free public education, you can't discriminate on the basis of sex or race or religion or national origin, civil rights at 1964 said you can also not discriminate on the bases of disability either. wow, so, that led then to a couple of things. section 504 the rehab action of 1993. if federal money goes out to something, if you get that money, you cannot discriminate against persons with disabilities. section 504. that led the congress to pass the education of all handicap children's act of the 1975 which provided, again, for the education of all children -- handicap children in secondary and elementary ex. it was renamed id.d.e.a.
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we named it in 1990. then the bill of rights act, the advocacy program for people can disabilities. ttys for deaf people so they could advocate on phones. then we had three wonderful cases. i was involved with them. the americans with disabilities act, 1990. the television decoder and circuitry act and individual with disabilities act. all three in 1990. it was a heck of a year. the congress moved ahead, especially with the americans with disabilities act. keep in mind, that's a civil rights bill. think about it like the civil rights act of 1964. it's the same thing but for
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persons with disabilities. one difference -- this civil rights bill does mandate certain things have to be done by the private sector and the public in terms of axability and accommodation. reasonable accommodations in the workplace. the tv decoder and circuitry act, which was my bill again and it basically mandate that had every television set sold in america five years from then size 13 inch or bigger had to have a decoder in the set. that's why you have a mute button. press the mute button, keep read what's going on on the television screen. obviously i did this because i had the deaf and hard of hearing in mind. i later found out the biggest user of this are sports bars. [ laughter ]
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you never know, do you? then i.d.e.a., again, updating the handicap children's education act, funds to certain schools for children with disabilities and mainstream main line schools. then, after all this good work, and after all these wonderful decisions the supreme court has done that move the needle forward, we take a step back. in 1999 on one day, the supreme court decided three cases -- followed up in 2002 by another one. those three cases today are called the sutton trilogy. sutton versus united airlines. murphy versus uu.p.s. and a toyota versus williams case. what are these about?
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all of these involved issues of whether an assisted device or medicine that would enable a person to work or perform their major life activities, would that remove a person from coverage of the a.d.a. hmm? think about it. let's say that -- well, sutton v. united airlines. two twin sisters, wanted to get a job. one passed all the tests. they had uncorrected vision, but if they wore glasses, they had 20/20 or better. the airline said, you're not covered by a.d.a. because when you wear your glasses you're not disabled any longer. in another case, murphy had high blood pressure, but he controlled it with high blood pressure medication. u.p.s. said -- so i recollect herfy was the guy with one eye.
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he had one eye, but he compensated for it, as most people do. but they said, you can't drive a truck anymore. even though he could pass all the tests and everything. they said you're not cover by the a.d.a. because you're obviously not disabled. you can provide all of your daily life's activities. toyota was the same thing. basically williams was working at a job for toyota in kentucky. she couldn't do the specific job because of carpal tunnel, but they said she could do other things. they gave her other jobs but then they demoted her, made life miserable. she said, wait a minute, but they said, you're not covered by the americans with disabilities act. that's what happened. it confused employers and employees. employers didn't know what their rights were. how about a person with the a
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disability? my gosh, if i take my insulin every day that enables me to go to work and to work and make livelihood, i'm no longer covered by the a.d.a. if my employer find out they can fire me and i'm not covered by the a.d.a. so should i take that insulin and take my job or just forget about it or wear glasses or used an assisted device. so we went to work -- you mentioned a.d.a. act amendment of 2008. that's what that was about. we went to work in the congress to overturn the supreme court decisions and tell them what we meant. it's interesting to note. bob dole and i sat in the supreme court chambers when they came down with that decision in toyota. you know who argued for toyota in that case? john roberts. now chief justice of the united
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states supreme court. that's okay. he was an attorney doing his job. because we were there that day. but any way, they were saying, well, we didn't have enough evidence, all that kind of stuff. we wrote -- when we pass laws in congress, and we write these laws, we have court language that goes with it and the report language is telling the you are the chaos, here's what we meant when we wrote this. we had very clear unambiguous report language saying, what we mean by this -- we used an example of someone with diabetes. they're still covered. judge scalia said, that's not good enough, it's got to be in the law. well, any way, so much for report language for at least some segments of the court. so we had to go to work and get this overturned.
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so again, we did that in 2008, and those amendments overturned those four cases actually and cleared it up. it's interesting -- the president that signed the a.d.a. act amendment was president george bush. we all went down to his office for the signing and who was there was his dad george h.w. bush who signed the official americans with disabilities act. we are down there gets the bill signed. first president bush and then president george w. bush was there. someone said, wait a minute, this hasn't happened since john adams and john quincy and they didn't have cameras in there. let's have a picture of this. so we all have pictures of us with former president bush and president bush. well, there was one good decision, however -- there was
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always a little bit, isn't there? bad, good. there was one good decision in 91 1999. olmstead. it was two women put in an institution. they argued that they didn't want to be there. they should be free to live out on their own in the community, and this made it way all the way to the supreme court. the supreme court sided with them, said, yeah -- the constitution the least restrictive environment is a constitutionally based right of persons with disabilities. imagine that. that means that persons with disabilities rather than being put in an institution have a right to live in a community or wherever, but not in an institution. that was a good -- i got to close up. where are we now?
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i think where we are now is we have to remain always vigilant about how persons with disabilities are provided accessibility and accommodation. we still have cases all the time. we had one in des moines, iowa, two years ago. restaurant refused to widen its door so a person with a wheelchair could get in a restaurant. these things still pop up. a terrible year was introduced this year in the congress, got killed in the senate, which reared its head every so aoften since 1999 and every year it came up, it never got out of committee no at maar if republicans or democrats were in charge. because it was so bad. this year, passed not only the community, but the house of
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representatives. very scary. basically what it ed is if a person with a disability is discriminated against by an entity, before that person can go to the courthouse to second redress, that person must first in writing to the entity specify the date and the time of the incident, what happened, must specify exactly where it happened, must specify who was involved, and must specify that part of the americans with disabilities act that was violated. the entity then has 60 or 90 days to respond. and they can respond and say, no, you're wrong. this is the wrong part of the law that many part of the law doesn't apply here. people with disabilities have an attorney at their beck and call? plus it's not just the a.d.a.
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a lot of court decisions since then laid out provisions for disability, law. so what it meant, it distinguished persons with disabilities from under the 1964 civil rights act, if you were a person of color and went into a store and they said, we don't serve people of color, get out of here. would you have to go home and say, here's what happened, here's who was involved and here's the part of the civil rights act it violated? no. you go to the courthouse and have your rights vindicated. no! plus, then, the entity after all of this, if they are found to have violated is they get 100 days to comply. it rewards bad actors.
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most businesses have been very good. i say 8 out of ten businesses complied. if you don't want to comply, you wait until someone brings a case against you. it a wards bad actors. well, where are we now? i have a concern. because in 2007. a case came up in the district of columbia called doe versus d.c. again, women who are incarcerated in the district of columbia called the mental retardation and mendle and development disabilities administration, and these were three women who are incarcerated there and who were going to have surgical procedures done to them that were not of an emergency nature. and for which they had never given their consent or even been
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talked to. the attorney brought these cases up to the district court. the district court, the district court, after hearing the evidence and examining the record found the district of the columbia's process unconstitutional. ordered the mrdda the mental retardation developmental disabilities association, quote, to attempt to known wishes of the patient, which must include documented reasonable efforts to communicate with that person regarding her wishes. the court went on to say that if after such an inquiry the wishes of the patient are still unknown, the district of the columbia must make a good faith determination of the best interest of the patient, a determination that required consideration of the totality of that person's circumstances. sounds reasonable, doesn't it?
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sounds reasonable. sounds like the federal district court with the facts before them made a much more enlightened decision than oliver wendell holmes and buck v. bell. but wait a minute. the district of the columbia appealed this to the circuit court. a three-judge panel overturned the district court's finding. judge brett kavanaugh was one of the three judges on that circuit court panel and he wrote the opinion overturning lower court's finding. here's what he wrote. consideration of the wishes of patients -- listen to this -- consideration of the wishes of patients who are not and have never been competent is not required by the supreme court's procedural cases.
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the plaintiffs have not shown the considerations of a never competent patients is deeply rooted in this country's history. that sounds convoluted. these plaintiffs have not shown that consideration of their wishes, that consideration of their wishes is deeply rooted in our history. well, of course not. deeply rooted in our history is segregation. and ace lights, institutionalizati institutionalization, and our history of disability rights movement is littered with cases of people who are never competent all of a sudden becoming competent with new or different approaches to that person's unique vigilty, social and economic exexclusiveiness.
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the term never competent may have more to do with faulty reasoning and the society's treatment of the life long challenged individual rather than the individual's own self-. henry s. williams the attorney who represented these plaintiffs said judge kavanaugh made a bad decision and he was wrong. what was before the court was the idea that intellectually disabled people are entitled to have an informed decision made on their behalf like anybody else. we argued the district of columbia shouldn't have been making decisions until they talked to these people. they're individuals. they're not lumps of flesh. end quote. well, as i say, we have come a long way toward a more enlightened view of people with disabilities, intellectual, physical, mental of a combination there of.
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our laws have encompassed the best of this. 504, a.d.a., et cetera. our courts to have progressed with cases like parc versus pennsylvania. the olmstead case saying the least restricted environment is your right. now to have a judge issue a decision and to write like this is -- you wonder, are we taking a step back now? so again, i will just close by saying that maybe now you understand why over 100 disabilities groups were opposed to his nomination, just on that alone. they don't know anything else about his other stuff. i don't either. i'm just saying that what they found. i think what we have to do is we have to be -- must carefully consider any new threats to the
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constitution at rights of persons with disabilities to their constitutional right -- the life, liberty, and pursuit of happiness. we have come too far to turn back, but we have to remain vigilant and understand that there's always going to be forces that want to turn the clock back. in the spirit of robert byrd, in saying that the constitution is for everybody. it's not just for a few people. thank you. di effectively use all my time? i don't have any questions. anybody have any questions, comments, mild criticism? >> the only thing we ask, if you
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have questions, come down to the mike. >> oh, i can probably hear, maybe. boy. >> hi. >> hi. >> what are your thoughts on the eugenics movement in comparing to deportation laws and border laws today? >> one more time. >> what are your thoughts on the eugenics movement in the past and compares to the -- >> oh, deportation? >> yes. >> well, i mean, the eugenics laws were -- i mean, they were just awful in terms of doing procedures on persons with their consent, the deportation laws -- look, i was there when we actually passed an immigration bill. a good immigration bill. supported by both republicans and democrats in the senate, 2005.
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and it got killed in the house and we have never been able to get it back. but everybody agreed it was a good bill. a lot of problems we are having now, we wouldn't have been having those if we passed a good bill. obviously as a nation, we have a right and a duty to protect our borders. i understand that. there ought to be a legitimate legal process to take in refugees, for example, and others who may be fleeing war prosecution, that type of thing, but it ought to be one that bends towards justice and not exclusion. in the past i have been to central america a number of times and if you're a person in, say, guatemala and you're being targeted by the death squads, and you want to get your family out of there and you go down to the u.s. embassy to apply for a
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visa, well, you get in line and maybe two or three years later, they might see your case. by that time, you're dead. we need better processes and procedures in countries like that to process expeditiously those that are really under threats. but we can't just open our borders and say, anybody that wants to come, come. we did that before. that's how my mother got here, from another country, but those days are gone. but we need an orderly process for having immigrants come into this country. one that is active in the countries under question. and again, doing what we can to help those country with their economies and their education and their infrastructure.
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i see it a little bit different than the eugenics movement. >> moses by marriage. i treat addictions. some people are very susceptible to it. others aren't, and i'm wondering if you consider someone with an addiction to be disabled. >> addiction. >> yes, because some people are very susceptible to it depending on their upbringing and the trauma they experienced as children. others aren't. >> well, since you know about this and i don't know -- i don't want to talk about something i don't know anything about. i don't recall any course cases. i don't think so. i'm surprised someone hasn't brought a course case up of someone who had been addicted. i -- yeah, sometimes people get
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addicted to prescribed drugs. and they get addicted that way, so it's not someone using illicit or illegal drugs sometimes. >> they get addicted because they have a brain disorder, a chemical disorder that makes them susceptible to -- >> i would think that would cover -- the a.d.a. would cover that, i would think. but i don't know of any court cases. anybody here know of any court cases or anything on addiction -- obviously there are a lot of course cases and stuff that have pretty much settled that persons with bipolar, skrits friend ya, et cetera, are covered by the americans with disabilities act. but i don't know if addiction is covered. definitely skit friend ya.
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there was a case -- i don't remember the name of it, that dealt specifically with schizophrenia, and the court found that was a covered entity. i think they included paranoia and bipolar the same way. i'm back to your eugenics and deportation. that bothers me. because deportation is also a lot of times saying people are undesirable. man f manifestly undesirable in my cases. that would bother me. that's why we just have to have a more orderly process, a humane process. 12,000 kids being kept in shelters and tents and stuff? it's unconchenable. that doesn't have to happen. and it doesn't have to happen that we aren't helping some of
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those countries in terms of their education, economics, law enforcement, things like that. >> thank you very much. my question is, for people who have disabilities, do they sometimes have difficulty getting medical care? >> sure. >> okay. and as you can see from my button i advocate for improved medicare for all, and i was wondering if you are tying those two issues together in terms of -- i mean, i've read statements that you have regrets that single payer wasn't enacted -- >> don't get me started on that. >> oh, i would like to. >> i tried. >> well, and i can see, though, how the issues of those with a disabilities feed right into the need for single payer, so i was
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wondering if you wanted to make a comment. >> you're right. i mean, ssdi doesn't cover it all because of certain restrictions, income limits and things like that. but yeah, if you had medicare for all, of course, then you're covered. and a lot of people, especially with intellectual disabilities or mental health -- a lot of people with mental health problems don't seek out health care because it's expensive, it's not covered, they don't have insurance that would cover that. so they get worse and worse and worse, and they wind up in emergency rooms and they wind up sadly enough, a lot of times today, in institutions. what's the major institution in america today for holding the mentally ill? >> jail. >> the jails.
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the jails have become our major institution in america for housing persons with mental health problems. it's just -- it's really awful. but that's true. and because they don't get help. medical help. >> that segways exactly to my concern is housing for people who have mental illness. there are no places in west virginia for people who are -- they're not violent. they just need to be in housing other than trying to live by themselves. >> right, sure. >> any other thoughts? >> well, you're right. we have shown throw our committee, eric fatimi, through our committee we have shown in the past, both the appropriations and the off right
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committee that it is cheaper for a state to provide assistive services for a person to live in a community home or group home in the community than it is for putting them in an institution. it's not a budget problem. it's just inertia. states have always put people in institutions and they just keep on doing it. but it's not a budget problem. it's cheaper. we have shown that time and time and time again. again, i think it's a lot of -- of the same thing, of just isolate people with disabilities. and we have a supreme court case -- yes, there's a supreme court case. i'm sorry, i can't remember it right now. and third down to do with a group home being located in a
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city where they weren't wanted. i put it that way. they were zoned out. made its way to the supreme court. the supreme court said, again, the city can't arbitrarily zone out a house that is providie housing and accommodations for persons with disabilities. it really is unconstitutional now to say, you cannot put a group home here now, for example. >> [ inaudible ] many are living on homelessness. there really is no place for people to live. >> and, again, what happens is they're either on the streets -- >> [ inaudible ]. >> well, for health care, they go to the emergency rooms and a lot of them wind up in our jails. vagrancy laws are still around.
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not ugly laws but vagrancy laws. yeah, that's where they wind up. we need a better social compact, my friends. a better social compact in our country than what we have, but that's another side, that's another story. >> among budget cuts we are going to be facing, how vulnerable are the programs for people with disabilities such as title 19, social security act? more vulnerable than everybody else, or just equal? >> probably more vulnerable. but they're all -- these are all vulnerable now. and why are we having budget cuts? wait a minute, i just saw a poster out here in the byrd thing, a famous cartoon of senator byrd. i forget who was in it, but it
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was -- it was president reagan. and he was saying, and byrd is in a cage. you know, the byrd in a cage -- it's right out here some place. the president is saying, cut taxes, cut the budget. cut taxes, cut the budget. cut taxes, cut the budget. so, you know, that's what happens. you keep having all these tax cuts for the wealthiest in your country and for big corporations and the budget comes up and they say, we have to make a cut some place. they cut from the most vulnerable in the society. >> exactly. i'm wondering if the an mouse for people with disabilities would make it worse than just your basic horrible cuts. >> the fact that the house of representatives passed the awful horrible bill -- that bill wouldn't even make it out of the committee any time in the entire
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aughts, the 2000s up until now. even when republicans were in charge, they wouldn't get it out. but somehow this year they got it throw. to me, that's frightening. obviously we kill it in the senate, but the fact that the house would pass that bill in this day and age -- you're right. people with disabilities are still vulnerable. imminently vulnerable. but the supreme court through its decision said people with disabilities are a protected class in our united states and they are protected by -- that little book i had called the constitution of the united states. they are protected. but, yeah, that's -- see it all the time. but you know, there are upli uplifting stories. uplifting stories.
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can i tell you one more story? about my friend m. hillman. em hillman, a young woman with an intellectual disability. goes through school on an iep. get put into a sub minimum wage sheltered workshop. comes home, tells her mother, i don't like what i'm doing. her mother says, well, emily, what do you want to do? emily says, i want to run a coffee shop. her mother says, emily, you know, to run a coffee shop, you got to know how to make coffee, all that stuff. emily says, well, someone told me there's a school in minneapolis you can go to to learn how to make coffee. so her mother and father found
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out, yes, there's a school in minneapolis. this is happening in iowa, folks. this is in iowa. pokes there is a place you can go out there to learn how to make cappuccinos and espresso and learn how to run the machines. they take emily up, she completes the course work up there. they come back to their hometown. the mother and father with the help of voc rehab, got a small loan, found a store front in a small town. it's a small town in iowa, right? 6,000 people maybe. 6,500 people. they find an empty store front, and they leased it, rented it, fixed it up with the loan from vr and stuff. they bought one of these coffee machines. they set up em's coffee shop. that was eight years ago.
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today em's coffee shop employs five people, four of whom are persons with disabilities. it has become the center of the town for people to come talk. now they make paninis for urge. they come there a talk. emily is a wonderful young woman. she remembers everyone. boy, she remembers everyone that comes in. she has other people that help her make the coffee, she does it herself. now emily found a roaster some place. you can go online -- you can look up -- e-m's coffee shop and you can by it online. she's in competition with starbucks. a young woman that was told she could work for sub minimum wage in a coffee shop.
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now has her own coffee shop. employs five people and is doing well. did i mention the name of the hometown? independence, iowa. see, there are things like that happening. and, you know, you just -- it's like going clear back to buck v. bell. you just can't, by looking at someone or accepting someone else's judgment decide what that person is capable of. in my lifetime i met so many persons with disabilities who are pushed aside, set aside, shunned, who were told they couldn't do any of that stuff. they could do any of that stuff. but perhaps because they were physically or mentally disabled, they had low expectations of
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what they could do. i talk about emily hillman a lot, both to illustrate that principle that high expectations are what we need for a young person with disabilities as they go through school. and secondly, you know, why should there be limits? someone said to me, yeah, but i bet emily has help. i said, her mother helpser had. she has a sister. name me one small business owner that doesn't have some help some place to do something. of course she has some help here and there. but again, her own personality and her own persona draws people in there and it's made it the center for the community for emily hillman, young woman with an intellectual disability. any way, my wife is saying i better -- thank you very much.
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>> we have wonderful drinks in the rotunda, so please feel free to hang out. this weekend an c-span, saturday add 8:00 p.m. eastern, photo journalists talk about their favorite photographs on the campaign trail. >> you chase the light first. that's kind of how i do it, but then you look really hard and work really hard, because, um, there's always a story to tell. this is like -- this is stage craft, political theater, but you always try to lift the veil so people can maybe understand what these people are like, and what they're about.
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>> on book tv on c-span two saturday at 8:00 p.m. eastern, pull itser prize winning war photographer lindsay addario talks about photographs she has taken in the middle east. >> there was a call to arms. we went with them. it was terrifying. as we were hitly khadafy's troops and there were air round, there was mortar fire, and it was a relentless and the guys would run away and leave us the journalists on the front line. we had to run away after that. >> on american history tv, c-span 3, saturday 8:00 p.m. eastern, how the pilgrims became part of america's founding story. >> one of the reasons they become this influential and important thing is because they could be used to give america a noble identity or a noble cause, right? so we hear that the pilgrims came for freedom or god for
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self-government or for all three of those things. because they came for those reasons that's what america stands for ever since. >> this weekend, on the c-span networks. >> this friday on american history tv, remembering former first lady barbara bush, who die in the april. this discussion is introduced by her son and former president george w. bush, at the bush presidential sent nor dallas. here's a preview. >> so barbara bush as second lady watched nancy reagan just go to war with each other. it was like a civil war between them. >> it actually wasn't civil. >> great, yes, it was pretty fierce. and it wasn't exactly a problem, but it was sort of a problem. you know how if you have a really good friend but your husband hates -- if the spouses don't get along then you can
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never have dinner together. i think barbara bush felt it wasn't helpful to the united states to have a feud with reza gorbachev. barbara bush wrote a letter to her brother scott before the first time she was going to see reza as first lady. she said she's going to be my friend no matter what she does. no matter what she did, she made it work. one time i was covering them and reza and barbara bush came out holding hands. women in russia hold hands. women in texas do not generally walk around around holding hand. i saw them and thought, barbara bush will do whatever it takes. >> watch the entire program on former first lady barbara bush this friday at 6:30 p.m. eastern on american history tv.
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>> who was martin van buren? >> good question. a lot of people probably need to ask that question. he was the eighth president of the united states. and he's often forgotten. his presidency was only four years long. >> sunday on "q&a," ted widmer on his biography of marren van buren. >> he spent an of the of time with aaron burr and there were rumors that were consistent -- so consistent ignore videole planted them that marren van buren might have been the illegitimate son of aaron burr. john quincy adams quote in his journal -- i saw it, he looks a
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lot like aaron burr and is acting like aaron burr, he's trying to organize factions and get northerners and southerners in political factions together. >> sunday night 8:00 eastern on c-span's "q&a." >> decades before the well known march on washington for civil rights, women paraded in washington for the right to vote. up next on american history tv, author rebecca roberts describes the cay in 1913 that suffragists let by alice paul led to march to the capitol hill. it attracted huge crowds and caused an uproar on pennsylvania avenue and many marchers were harassed. it took them seven more years to earn the right to vote with the passage of the 19th amendment in 1920. the


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