With respect to fundamental liberty, the U.S. Constitution limits a state’s right to interfere with a person’s most basic decisions about family and parenthood.endnote[1294] And yet, 37 states have child welfare lawsendnote[1295] and nearly every state has child custody and guardianship lawsendnote[1296] that invidiously classify parents with disabilities and authorize removal and detention of their children or termination of their custody or parenting rights on the basis of the parent’s disability. This situation creates an atmosphere of doubt for the disability community and is not ethically or legally tenable. In the words of Supreme Court Justice John Paul Stevens, “Liberty finds no refuge in a jurisprudence of doubt.”endnote[1297]

These laws serve no purpose and have no effect other than to lessen the status and human dignity of parents and prospective parents with disabilities in the United States, and to officially classify their relationships with their children as inferior to those of other parents. After nearly 25 years of state court decisions involving these discriminatory laws and the policies and practices they engender, it is clear that existing federal regulations (the Bill of Rights,endnote[1298] the Rehabilitation Act of 1973,endnote[1299] the Americans with Disabilities Act,endnote[1300] and the Code of Federal Regulationsendnote[1301]) are not adequate to ensure the rights of parents with disabilities and their children.

History of Efforts to Challenge or Defeat Laws Harmful to Parents with Disabilities

The strongest law and argument to protect this population of families should be found in child welfare cases, where the Constitution is so strongly implicated. Yet even in child welfare jurisprudence, no successful antidiscrimination strategy has emerged.

Due Process

Parent litigants have unsuccessfully raised the due process clause of the 14th Amendment in both on-the-face and as-applied challenges to discriminatory laws and related policies.endnote[1302] Parenting is a fundamental right, and legislation that affects this right is subject to strict scrutiny on judicial review.endnote[1303] Theoretically, this interest is defeasible only by a compelling state interest and a rigorous procedural process.endnote[1304] However, some state laws allow child welfare systems and courts to deny reunification services—the key procedural safeguard to retaining parenting rights in child welfare cases—even to nonoffending parents on the basis of the parent’s disability.endnote[1305] Often this disallowance is based solely on speculation that parental disability may be detrimental to a child at some point in the future. There is a contradiction between the treatment of parents with disabilities and that of parents without disabilities: In child welfare cases generally, such speculation is unacceptable; however, in cases that involve parents with disabilities, speculation is acceptable. At least one circuit has held that due process is violated and social workers can lose their immunity to lawsuit if they remove a child while consciously disregarding the “great risk that there has been no abuse.”endnote[1306]

Some courts have avoided addressing this issue by holding that strict scrutiny does not apply on judicial review of the laws authorizing the policy, because there is no fundamental right to reunification services, despite their centrality to avoiding loss of a fundamental right.endnote[1307] This reasoning is equivalent to saying that if an African American citizen is allowed to vote but prevented by law from entering a voting booth, no violation of a fundamental right has occurred and strict scrutiny should not be applied during judicial review of the legislation. Other courts have held that a rigorous procedural process is in place to protect parents with disabilities because, in their state, the law disenfranchises parents with disabilities from participating in reunification services only after two psychologists have established that they are unlikely to benefit from such services.endnote[1308] This is equivalent to saying that if an African American is allowed to vote but kept by law from voting unless he or she can pass a literacy test, no violation of a fundamental right has occurred and strict scrutiny is satisfied because a process is in place. The Voting Rights Act of 1965endnote[1309] explicitly forbade such procedural obstructionism in voting policy; it should not be tolerated in child custody or child welfare policy.

Equal Protection

Parent litigants have been similarly unsuccessful in using the equal protection clause of the 14th Amendment as a defense against discriminatory state laws. City of Cleburne v. Cleburne Living Center[1310] established that disability is not a suspect classification and, in theory, a simple rationality test is the only hurdle a state is required to clear.endnote[1311] However, although the Cleburne court said “rational,” the analysis applied in the decision is widely recognized to represent something more akin to heightened scrutiny (“active rationality” or “rationality with a bite”).endnote[1312] There was hope that after passage of the ADA, this intermediate scrutiny would be formally recognized as the proper level of judicial review in disability cases because of the congressional direction it represents—a direction the Cleburne court complained that it lacked.endnote[1313] This has not occurred, and no court to date has struck down on the basis of irrationality any child custody or child welfare law alleged to discriminate against parents with disabilities. This despite the fact that the laws cannot be proved to be substantially related to the objective of promoting child welfare as there is no evidence that child maltreatment is more prevalent among parents with disabilities.endnote[1314]

Rehabilitation Act and Americans with Disabilities Act

Parent litigants have achieved only slightly more success in raising the Rehabilitation Act or the ADA as a defense against discriminatory laws. Pursuant to both laws, state actors, including child welfare agencies and courts, may not discriminate against people with disabilities; rather, they must accommodate them and provide, where needed, more, different, or adapted services and programs to satisfy the requirements of the law.endnote[1315] State legislatures, child welfare systems, and juvenile, family, and probate courts have resisted the implications of both acts for child welfare or custody statutes. This resistance persists despite the established legal principle that a state statute is void if it contravenes any express provision of a valid federal statute, even in areas traditionally within the purview of the state, where the congressional intent is clear.endnote[1316] Not one court has voided one of these laws for violation of the ADA on the basis that it discriminates against parents with disabilities or their children (who are theoretically protected from discrimination by association by both the ADA and the Rehabilitation Act).endnote[1317] It is almost uniformly accepted that violation of the ADA is not a defense to termination of parental rights,endnote[1318] and few courts have found services unreasonable for failure to provide accommodations.endnote[1319]

Parents with disabilities cannot win these cases without legislation specific to them. Two possible avenues exist for creating such legislation: federal legislation in the form of an amendment to the ADA or a stand-alone federal law, or a concerted and organized national campaign to uniformly introduce a model-based state law in each state. Both approaches have strengths and weaknesses.

State Legislation

This type of legislation is clearly addressable at the state level, as shown in Idaho, Kansas, and California. The state law approach avoids constitutional complications in that family and domestic law is historically within the purview of the states. The drawback of state-by-state legislative efforts is the enormity of the undertaking, the complexity of organizing on so many fronts, and the risk that a significant number of the efforts will fail and the patchwork quilt of laws will remain.

Federal Legislation

The federal law approach, whether as an amendment to the ADA or as a stand-alone piece of legislation, avoids the drawbacks of state legislative efforts. It would provide national uniformity and, therefore, predictability to litigants and systems. However, a constitutional complexity exists: Opponents would likely argue that the commerce clause does not support federal intrusion into traditional state subject matter. The spending clause—in which the Adoptions and Safe Families Act is grounded—is a better possibility, but it would require funding that is unlikely in the current economic climate.

However, Section 5 of the 14th Amendment does empower Congress to “to enforce, by appropriate legislation” the provisions of the 14th Amendment.endnote[1320] The two-part Section 5 review framework enunciated by the Court in Tennessee v. Lane[1321] both synthesized and modified elements of the analysis developed in six previous Supreme Court cases.endnote[1322] Former Supreme Court clerk Kevin Schwartz, in his Yale Law Review article “Applying Section 5: Judicial Conditions on the Congressional Enforcement Power,” referred to this analysis as a “juricentric enforcement model.” Schwartz wrote, “The Court asks, first, whether Congress’s [Section]… 5 power is appropriately invoked and, second, whether the actual Section 5 law crafted by Congress is an appropriate remedy.”endnote[1323]

To satisfy the first prong, there must be a history or pattern of state violations of the fundamental liberty Congress is seeking to protect.endnote[1324] Second, the violations must be unconstitutional according to previous Section 5 decisions by the Court.endnote[1325] To satisfy the second prong, the legislation must create a “congruent and proportional” response to the violations.endnote[1326] The model legislation could satisfy both prongs.

Regarding the first prong (constitutional violation offensive to the court), parenting is a judicially identified fundamental liberty with a robust Supreme Court jurisprudence to support the requirements of due process where the state is interfering in the family sphere. Numerous state statutes deprive parents with disabilities of due process on the basis of their classification as disabled. A historic record exists of violations in the form of congressional testimony regarding the need for passage of the ADA, current data documenting disparate impact in the child welfare system, and extensive anecdotal evidence from individuals aggrieved by disability discrimination in child welfare and child custody proceedings. All these forms of “evidence” support finding a pattern of state violation under the Lane analysis.endnote[1327]

Regarding the second prong (congruent remedy) the model legislation is certainly no more far-reaching than Title II of the ADA, which was upheld as applied in Lane. The Court noted in that case that “within the limits of practicability, a state must afford to all individuals a meaningful opportunity to be heard in its courts,”endnote[1328] and endorsed Congress’s remedial conclusion that “failure to accommodate persons with disabilities will often have the same practical effect as outright exclusion.”endnote[1329] It is logical that a court would find that within the limits of practicability, a state must afford all parents meaningful access to the services, programs, and activities of child welfare system and dependency, family, and probate courts. As this report has shown, the failure to accommodate people with disabilities often has the same practical effect as outright exclusion.

Conclusion

Whether action is taken at the state or federal level, as an amendment or a new law altogether—the need for action could not be more timely or clear.

Recently, the media have reported that some survivors of the eugenics era are seeking justice for the state’s denying them the possibility of having children, and the public has been outraged on their behalf. But what will it take for our society to become outraged and act to prevent the removal of existing children from parents with disabilities? People must be helped to see that, in the disability community, prevention of procreation and removal of children are two sides of the same coin, tossed in time from one generation to the next.

NCD recommends that Congress enact legislation similar to ICWA, in accordance with the language set forth in Appendix C of this report, to ensure the rights of parents with disabilities and their children. Alternatively, a legislative amendment to the ADA (in accordance with the language set forth in Appendix D) and other relevant federal acts governing child welfare, child custody, adoption, and assisted reproductive technologies will be necessary to effect the intention of the ADA at the national level. Moreover, states are urged to immediately amend state statutes with the language set forth in Appendix C.