Academic journal article Texas Journal on Civil Liberties & Civil Rights

"Through the Wild Cathedral Evening": Barriers, Attitudes, Participatory Democracy, Professor Tenbroek, and the Rights of Persons with Mental Disabilities

Academic journal article Texas Journal on Civil Liberties & Civil Rights

"Through the Wild Cathedral Evening": Barriers, Attitudes, Participatory Democracy, Professor Tenbroek, and the Rights of Persons with Mental Disabilities

Article excerpt

Michael Stein and Janet Lord's excellent paper on the relationship between Jacobus tenBroek' s vision and jurisprudence and the United Nations Convention on the Rights of Persons with Disabilities (UN CRD) stands on its own as an important and powerful piece of scholarship and advocacy, urging a vision of social justice that resonates for me. There is nothing in it for me to critique, and little for me to add. I do, though, want to suggest that their paper and Professor tenBroek' s work should both serve to remind us that there is still so much for all of us to do in this area of law and society.

Professor Stein and his colleague wonderfully contextualize Professor tenBroek's writings with the UN CRD, and that is a major accomplishment. But it is one that has led me to think a bit about the particular significance of Professor tenBroek's work for persons with mental disabilities, the core of my professional work.

Writing about tenBroek, Professor Mark Weber has pointed out how tenBroek's writings reflect a "history of people with disabilities as a gradual progression from compelled separation toward integration," noting how "fear of and repugnance to disability thrive when people with disabilities are locked away,"1 and how our social policies led to a "legacy of prejudice and exclusion."2 The UN CRD certainly reinforces and emphasizes an integration model, and that is a very good thing. But I remain more than a bit skeptical as to the ultimate "real life" impact of the UN CRD in many nations, including our own. I will tum to United States-based Americans with Disabilities Act (ADA) as the source of a parallel.

In 1999, in Olmstead v. L.C., the U.S. Supreme Court held that the ADA entitled the plaintiffs, residents of Georgia Regional Hospital, to treatment in an integrated community setting as opposed to an unnecessarily segregated state hospital.3 In writing the majority opinion, Justice Ginsburg stressed that "[u]njustified isolation ... is properly regarded as discrimination based on disability,"4 and ordered that states be required to maintain "a comprehensive, effectively working plan for placing qualified persons with mental disabilities in less restrictive settings," thus explicitly endorsing the ADA's "integration mandate."6 At least one commentator has characterized this decision as one that "genuinely awaken[s] the nation's conscience."7

The significance of the "integration mandate" phrase should be crystal clear. According to Professor John Jacobi, "The opportunity for 'life, liberty and the pursuit of happiness' for Olmstead plaintiffs depends almost entirely on the integration mandate."8 But in many jurisdictions, this opportunity has not materialized, and there has been a cottage industry of litigation over the waiting lists that have developed in jurisdictions; some states have imposed waits up to seven years.9 Professor tenBroek and a colleague wrote about this over 40 years ago, yet, in many ways, little has changed.10

Professor Stein and Ms. Lord also write eloquently about the connection between Professor tenBroek's work, the UN Convention, and "participation in cultural life,"11 noting how deprivation of meaningful opportunity in such areas "can be devastating."12 This perspective struck a special chord with me, because I believe that this approach has the capacity to resuscitate an important, yet now nearly dormant, aspect of the rights of persons in psychiatric institutions. I characterize these rights as "other institutional rights."13 Let me explain.

The history of expansion of the substantive civil rights of persons institutionalized because of mental disability generally follows two paths: the development of the right to treatment14 and the development of the right to refuse treatment.15 But this cursory approach obscures the rights of such persons to exercise civil rights while institutionalized, an area of civil rights that is now, less than thirty-five years after its first articulation, nearly forgotten. …

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