EARLY IMMIGRATION LEGISLATION

“It is often said, and with truth, that each of the different alien peoples coming to America has something to contribute to American civilization. But what America needs is desirable additions to, and not inferior substitutions for, what it already possesses” (Ward, 1924, p. 103). Early immigration literature and the apparent attitudes and treatment toward PWDs, as well as certain other immigrant populations, were blatantly prejudiced and discriminatory. Antidisability sentiment became more evident with immigration restriction, which began as early as the development of the first North American settlements. It was after 1838, when a large influx of immigrants came to the United States, that the issue of disability became more pressing to the early American settlers (Treadway, 1925).

Antidisability legislation began in 1882 and continued through 1924, with some of the original laws in effect until the 1980s. The concept behind early immigration legislation was to prevent the immigration of people who were considered undesirable. Early Americans believed that preventing people considered undesirable from entering the United States was a means of protecting not only the people but also the welfare of the country as a whole (Ward, 1907). Baynton (2005) states, “disability was a crucial factor in deciding whether or not an immigrant would be allowed to enter the United States” (p. 34). The term “undesirable “was used to describe people from any race, ethnicity, or religion, and/or with a disability, who were believed to be more likely to pass on less-than-desirable traits to their offspring. The purpose of early immigration legislation was to protect the American bloodlines, and, according to early lawmakers, this meant excluding people based on any trait that could be considered as undesirable. Baynton (2005) states,

This marked the beginning of the exclusion of PWDs in America.

In the years following 1882, early American lawmakers became more and more concerned about the bloodlines of immigrants seeking entrance into the United States and their possible effect on the bloodlines that were already present. With the 1891 revised Immigration Act, a key wording change made restrictions even more discretionary regarding excluding PWDs. Baynton (2005, p. 33) notes that the original 1882 law wording was “any lunatic, idiot, or any person unable to take care of himself or herself without becoming a public charge”; the phrase changed in the 1891 law from unable to “likely to become a public charge.” In 1894, the Immigration Restriction League (IRL) was established in Boston. The primary focus of the IRL was to “carry on a general educational campaign for more effective restriction and selection” (Ward, 1924, p. 102). According to Ward, the league’s fears were that the United States was becoming an “asylum for the poor and the oppressed of every land” (p. 100). Ward went on to explain:

As such, by 1896, literacy requirements were imposed on all immigrants entering the United States, and then from 1903 through 1907, immigration laws were broadened and became more restrictive in scope. However, it was only after the 1917 revisions to the 1907 Immigration Act had occurred that more specific and harsher discriminatory language appeared in legislation. Before this, in 1903, persons with epilepsy were added to the list, as well as individuals who met the 1903 wording: “persons who have been insane within 5 years previous [or] who have had two or more attacks of insanity at any time previously” (Baynton, 2005, p. 33). Treadway (1925) cites the exclusionary language of the law in the 1907 Act:

The 1907 Act was also the first in which the law required a medical certificate for persons judged to be “mentally or physically defective, such mental or physical defect being of a nature which may affect the ability of such alien to earn a living” (Baynton, 2005, p. 33).

The subsequent years saw increasing restrictions, including financial penalties on transport companies and ship captains for the transportation of immigrants considered “unfit” for entry into the United States (Barkan, 1991; Baynton, 2005; Treadway, 1925). In an attempt to gain better control of the immigration situation, ship captains at ports of entry were to examine prospective immigrants for “defects.” Although they were neither physicians nor did they have any medical experience, the purpose of their inspections was to medically examine the immigrants. If a disability, either mental or physical, was observed or perceived, the ship captain at transit or the inspector at entry ports was authorized to either deny departure from the immigrant’s country of origin or deny entry into the United States. If an immigrant was granted departure from his or her country of origin and, on arrival, entry into the United States was denied, the immigrant was to be deported back to his or her country of origin at the expense of the transport company that brought the individual (Baynton, 2005). For this reason, many ship captains in all likelihood denied numerous individuals for various vague reasons in order to not be fined or potentially lose their jobs. Baynton notes:

This process allowed for the discrimination and/or refusal of immigrants based on suspected impairments whether or not any impairment was present. The commissioner general of immigration in his 1907 report regarding the governing immigration laws essentially laid out that the primary reason for the laws was to exclude anyone with a disability or anyone perceived as having a disability. The commissioner wrote, “The exclusion from this country of the morally, mentally, and physically deficient is the principal object to be accomplished by the immigration laws” (Baynton, p. 34). In order to exclude those with physical disabilities, the regulations stated that inspectors were to observe individuals at rest and then in motion to detect any irregularities or abnormalities in gait. Again, the wording for excluding individuals was vague and granted the inspectors full discretion in excluding anyone they wished. Baynton wrote about an Ellis Island medical inspector whose job was to “detect poorly built, defective or broken down human beings” (p. 34). A few examples of the physical impairments listed included spinal curvature, varicose veins, poor eyesight, hernia, flat feet, bunions, deafness, arthritis, hysteria, and, simply, poor physical development. Once again, as with all age-old debates on eugenics, ethnocentricity, and exactly who was considered the weaker species, there was no consistent consensus.

During this period, individuals were often excluded based on size or physical stature, or lack thereof, and abnormal sexual development. In addition, the commissioner and IRL, among others, were concerned about the public charge or becoming an economic drain because of perceived discrimination from employers in hiring. The surgeon general in a letter to the commissioner noted that such persons were:

In all, it is difficult to determine exactly how many immigrants were excluded either before or on entering the United States. Baynton (2005) cites statistics that increased over the years and notes that the actual numbers were likely much higher. The number of individuals excluded because they were likely to become a public charge or were mentally or physically defective in 1895 was 1,720; in 1905 the number was greater than 8,000, and by 1910 it rose to more than 16,000. Individuals from certain countries in particular were denied more often than the others. Individuals from Slovakia were viewed as slow witted, Jews were seen as having poor physique and being neurotic, and those of Portuguese, Greek, or Syrian ethnicity were described as undersized (Baynton, 2005).

For those individuals who were somehow allowed entry to the United States, or were born in the United States with any type of perceived or real impairment, life was not generally favorable regarding societal attitudes. Specifically, Longmore and Goldberger (2000) noted court rulings in which railroads and public transit systems were essentially granted permission to deny access to transportation for these impaired people. School laws were upheld segregating PWDs by not alllowing them to attend school or requiring that they be taught in a segregated room. Employers were also permitted to discriminate in hiring those with disabilities, and all public venues such as restaurants, theaters, and so on, could deny access and frequently did so. For all intents and purposes, many of those with disabilities during the early 20th century were relegated to being shut-ins in their own homes, and when venturing out were subject to ridicule and indignant comments.

Many PWDs were outraged by these political and societal attitudes and the blatant efforts to prejudice and discriminate against them. For many, it was not only the negative attitudes of being devalued and dehumanized, but also the discrimination of being excluded from the workforce. Longmore and Goldberger (2000) cite the historic accounts during the spring of 1935 after 5 years of the Great Depression, in which a number of persons with physical and other disabilities demanded their voices be heard and protested against New York City’s Emergency Relief Bureau demanding jobs. Forming the League of the Physically Handicapped (LPH), this group focused on discrimination issues as opposed to their medical impairments. Media coverage back then was also largely discriminatory and prejudiced. Longmore and Goldberger cite how media and popular culture portrayals during the 1920s and 1930s perceived PWDs as villains, victims, sinners, charity cases, unsightly objects, dangerous denizens of society, and unworthy citizens (p. 896).

Franklin D. Roosevelt was a member of the LPH, and although he largely hid his own paralysis from polio at age 39 years, he strived for the rehabilitation of those with disabilities. He epitomized what persons with a disability “can” do and is arguably one of America’s greatest presidents, having presided for 12 years over troubling times, including the Great Depression, the signing of the 1935 Social Security Act, and World War II (Gallagher, 1994). In his book, FDR’s Splendid Deception, Gallagher cites how Roosevelt was intuitively aware of the negative societal attitudes toward disability and aware that if the public knew of both the extent of his disability and chronic pain, he would be perceived as a weak, ineffective leader. As such, Roosevelt had agreements with the media not to photograph or film him in his wheelchair or while ambulating with his leg braces. Ironically, he did not really have a disability agenda and in fact tried to reduce vocational rehabilitation funding by 25%, which was ultimately not supported by Congress (Gallagher, 1994).

THE EUGENICS MOVEMENT IN AMERICA

Driving the ideology of the early immigration Acts was Charles Darwin’s highly influential 1859 book, On the Origin of Species by Means of Natural Selection, or the Preservation of Favored Races in the Struggle of Life, which initially set out to explain the concept of heredity in plants and animals. Darwin refrained from applying his beliefs to humans out of fear of the reaction from the ruling religions. Sir Francis Galton, a cousin of Darwin’s, whose own studies primarily focused on mathematics and meteorology, was inspired by Darwin’s work and the implications of it. Galton applied mathematics to the study of heredity as a whole, and through this application he established not only some of the techniques of modern statistics but also the basis for what he later called eugenics (Pearson, 1995). Galton, who coined the term eugenics in 1883, believed that natural selection could rid mankind of problems such as disease, criminality, alcoholism, and poverty (Farrell, 1979). Farrell states that when Galton introduced the word eugenics in 1883 he did so with the following explanation:

The concept of eugenics reached America around 1900, and many prominent politicians, physicians, and academics agreed with Galton’s premise of essentially restricting the promulgation of those considered the weaker species. The notion of protecting and preserving healthy American bloodlines for the betterment of future generations was idealistic in theory and would later prove extremely difficult to implement. The central question contemplated for these powerful and predominantly Caucasian White males was to decide who exactly was the weaker species, and how exactly could these undesirables be restricted from bearing children (Marini, 2011a). President Theodore Roosevelt also embraced eugenics in the United States along with other highly influential people such as Alexander Graham Bell, John Harvey Kellogg, and J. C. Penney, to name a few (Pearson, 1995).

STERILIZATION IN THE UNITED STATES

Evidence of eugenic ideals became more obvious with the passage of sterilization laws in the early 20th century, the primary goal of which was to “improve the quality of the nation’s citizenry by reducing the birth rate of individuals they considered to be “feebleminded” (Largent, 2002, p. 190). The term feebleminded was used at this time to describe anyone with any type of observed or perceived mental or physical disability. Eugenics continued to gain strength and support through the first quarter of the 20th century with 27 of the 48 states adopting sterilization laws (Farrell, 1979). The state of Indiana was at the forefront of the sterilization movement, being the first to implement eugenic sterilization laws in 1907.

Although the first sterilization law was passed in 1907, Osgood (2001) noted that unauthorized sterilization of the so-called defectives had already occurred in institutions in several states as early as the 1890s (p. 257). In 1909, the state of Oregon also implemented eugenic sterilization laws, 5 years after Dr. Bethenia Owens-Adair had proposed sterilization in Oregon as a means of dealing with persons considered to be criminals and/or insane (Largent, 2002). Noll (2005) reports that the use of intelligence testing in the 1920s allowed medical and mental health doctors to more accurately identify “feeblemindedness.” As the years progressed, more states adopted eugenic sterilization laws, and, as the United States entered World War II, the nation’s state mental health and prison authorities reported more than 38,000 sterilizations (Largent, 2002, p. 192). In the 1920s, the most notable Supreme Court sterilization case was Buck v. Bell. In 1927, Carrie Buck, a 17-year-old Virginia girl, became pregnant and was institutionalized by her foster parents in the Virginia State Colony for Epileptics and Feeble-Minded. Carrie’s mother had already been committed and was deemed feebleminded and subsequently sterilized. Because Carrie’s mother was deemed feebleminded, Carrie was also deemed feebleminded and was sterilized as well. Carrie had a younger sister who, under the pretense that she was undergoing an appendectomy, was also sterilized as a result of her mother’s perceived mental capacity. Although there was no evidence to the accusations that Carrie Buck was promiscuous, the case went to the U.S. Supreme Court where Judge Oliver Wendell Holmes, Jr., reported in an 8 to 1 decision that the state of Virginia was supported by its sterilization law and further stated, “three generations of imbeciles are enough” (Carlson, 2009, p. 178). The case of Carrie Buck was not an isolated incident at the time, and although other cases similar in nature were found in other states to be unconstitutional, Buck v. Bell was never overturned. Despite the injustice associated with forced sterilization of people considered to be developmentally disabled, mentally ill, or simply criminals, sterilization laws lasted well into the 1980s in some states (Largent, 2002). Although there was a focus on eugenic sterilization laws, other laws that specifically targeted persons with mental and physical disabilities were being passed.

THE UGLY LAWS

This was a City of Chicago ordinance, originally passed in 1881. Unsightly beggar ordinances passed between the years 1867 and 1913 were otherwise known as Ugly Laws. The first unsightly beggar ordinance was passed in San Francisco in 1867. Although these ordinances had been in place for 14 years before the passage of the Chicago ordinance, it is the most well known and considered “the most egregious example of discrimination against people with physical disabilities in the United States” (Coco, 2010, p. 23). The passing of these ordinances and laws allowed some insight into how disability was perceived. PWDs were generally thought of as a burden to society as they lacked the ability to care for themselves or contribute in any way to society. This perception, however, was largely contingent on one’s social standing and social contribution (Schweik, 2009, as cited in Coco, 2010). Although unsightly beggar ordinances were commonplace in cities throughout the country, Chicago’s unsightly beggar ordinance remained on the law books until 1973 (Coco, 2010).

However, the soldiers returning from World War II with various disabilities provide a good example of how some PWDs were perceived. For example, soldiers were often viewed with sympathy but were nevertheless respected because of their contribution, whereas a civilian born with a disability would often not be perceived in the same way. The Industrial Revolution in the United States further increased the number of Americans with disabilities, as factory workers began to sustain injuries leading to chronic conditions. Without effective workers compensation laws early on, injured workers had to sue their employers, with the vast majority often losing their suits for contributory negligence and for knowingly accepting the hazards of the job, otherwise known as “assumption of risk” (Marini, 2011b).

For some PWDs with facial or physical deformities, performing in circus freak shows became the only employment they could obtain. These PWDs appeared to be more highly regarded and were often considered to be prominent citizens despite the fact that in certain parts of the country, where Ugly Laws were adopted, they were unable to show themselves in public.

MOVEMENT TOWARD EQUALITY

As disability discrimination and sterilization laws were being passed concerning PWDs, helpful legislation was also being passed. The 1920s brought about the Smith–Fees Act (P.L. 66–236), allowing services to PWDs such as vocational guidance, occupational adjustment, and placement services. In 1935 the Social Security Act (P.L. 74–271) was passed and the State-Federal Vocational Rehabilitation Program was established as a permanent program (Parker, Szymanski, & Patterson, 2005). Despite this early legislation and numerous additional laws over time designed to protect and employ PWDs in the workforce, the unemployment rate for PWDs has been dismally held at around 70%. Yelin (1991) noted that the lowest unemployment rate for PWDs was actually during World War II because many able-bodied Americans were involved in the war and manufacturing jobs for the war effort increased dramatically. Once the war was over, however, tens of thousands of able-bodied men and women in the armed services returned home looking for work, and thousands of workers with disabilities were subsequently replaced and suddenly unemployed. There was a shift in who was entering the workforce in the United States (Longmore & Goldberger, 2000).

The year 1943 marked the passage of landmark legislation with the Vocational Rehabilitation Act Amendments (P.L. 113), essentially increasing the amount of state vocational services available to PWDs (Parker et al., 2005). The Vocational Rehabilitation Act Amendments also broadened the definition of disability, allowing persons with mental illness or psychiatric disabilities to be eligible for services. Disability rights continued to make progress for the next 30 years without much fanfare, but unemployment rates remained relatively the same as they are today.

The 1973 Rehabilitation Act was also considered to be landmark legislation for PWDs, especially since President Nixon was considering abolishing the state/federal Vocational Rehabilitation program altogether. After much debate and considerable outcry from disability groups, President Nixon signed into law what is believed to be the first civil rights laws for PWDs, from which the 1990 Americans with Disabilities Act (ADA) was designed. Again, there was increased funding for public vocational rehabilitation programs and affirmative action in the hiring of federal employees (Parker et al., 2005). Although this landmark employment legislation was unprecedented, it was extremely difficult for employees to sue and win their claims against discriminatory employers. Colker (1999) noted that 94% of all court trials were decided in the employer’s favor. The statistic remains high even today, as much of the burden of proof lies with the suing employee. Separately, sections 501 to 504 of the Act also addressed access to transportation, removal of architectural barriers, and physical access to all newly constructed federal buildings. Perhaps one of the most criticized aspects of the 1973 Act was the fact that there was no enforcement entity designed to check whether policies were being followed or implemented.

In 1975, the Rehabilitation Act was combined with the Education for All Handicapped Children Act (P.L. 94–142), now known as the Individuals with Disabilities Education Act (IDEA). IDEA allowed for opportunities such as equal access to public education for all children with disabilities in the least restrictive environment. IDEA also allowed for children with disabilities to be tested through multiple means, such as being tested in their native language. The law also gave parents the right to view their children’s school records (Olkin, 1999). The 1986 revision of IDEA extended services to provide early intervention for children from birth to preschool, help with equipment purchases, and provide legal assistance to families with children with disabilities (Olkin, 1999).

Perhaps the single most important legislation to date concerning the civil rights of PWDs was the 1990 passage of the Americans with Disabilities Act (ADA) by President George H. W. Bush. The Act contains five titles: employment, extended access to state and federal government services including public or paratransit transportation access, public accommodations for physical access to all public venues (e.g., restaurants, theaters, sporting events), access to telecommunications (e.g., closed captioning, theater audio loops), and a miscellaneous title. The ADA has arguably been deemed a success as far as making communities more accessible; however, there continues to be complaints and lawsuits filed daily owing to employers and businesses that continue to knowingly or unknowingly discriminate (Blackwell, Marini, & Chacon, 2001). Some PWDs continue to see the glass as half empty regarding physical access and societal attitudes; others see it as half full (Marini, 2001). The United States Equal Employment Opportunity Commission’s charge statistics website (n.d.) indicates that since 2009, there have been over 20,000 to 25,000 filed disability employment discrimination claims annually.

CURRENT PULSE ON AMERICA REGARDING DISABILITY

Attitudes, physical access, and the laws regarding PWDs have unquestionably improved in the last century. The eugenics movement essentially died down after World War II, primarily because of Social Darwinism and the Nazi extermination of an estimated 250,000 German citizens and war veterans with disabilities (Marini, 2011a). In America, many eugenicists realized that this extremist version was essentially a slippery slope and that continued forced sterilization, as well as forbidding those with epilepsy, mental illness, or mental retardation from marrying, could potentially lead them down a similar path.

Current attitudes of Americans without disabilities toward those with disabilities suggest contradictory sentiments of both admiration and pity (Harris, 1991). Most likely influenced by media portrayals, the sentiment of admiration can be easily explained when we watch a documentary on FDR, Wilma Rudolph, Christopher Reeve, or Stephen Hawking. Conversely, the pity sentiment occurs when one watches any televised charitable event, particularly Jerry’s Kids Muscular Dystrophy Labor Day telethon. Although Americans generally believe that it is right to hire a qualified individual with a disability, many nondisabled persons still believe that PWDs are fundamentally “different” from those without disabilities (Harris, 1991).

As previously noted, how much better conditions and attitudes toward those with disabilities have become is still open to debate. Although many outside observers anecdotally argue that PWDs get free benefits and health care without making a contribution to society, others are quick to point out a different reality. Specifically, with an approximate 65% unemployment rate and two thirds of those with disabilities indicating they would work if they could, this population has one of the highest poverty rates in America (Rubin & Roessler, 2008). Single minority females with children having a disability have the highest rate of poverty, along with single minority female parents with a disability (Brault, 2012). More than 25% of African Americans and Hispanics live under the federal poverty rate, and approximately 30% of caregivers who have a child with a disability live in poverty as well (Annual Disability Statistics Compendium, 2014; United States Department of Health and Human Services, 2014). This is compared to approximately 13% of those Caucasian families without a disabled loved one.

Although physical barriers and community access have improved exponentially since the 1990 ADA, several studies of persons with physical disabilities suggest that the United States still has a long way to go to become barrier free. Specifically, two recent studies have found that even 22 years after the ADA was signed into law, persons with physical disabilities still cite physical access barriers as the number one frustration (Graf, Marini, & Blankenship, 2009; Marini, Bhakta, & Graf, 2009). Negative and ambivalent societal attitudes were not far behind in the rankings as perceived by those with disabilities. Although many outsiders or those without disabilities and no experience with disability view the proverbial glass as half-full, many persons with disabilities (insiders who live the experience) continue to see the glass as half empty (Marini, 2011a). Many experience daily frustrations with health care, education, public accommodations, transportation, and employment. These are among the ongoing daily hassles many Americans with disabilities face (O’Day & Goldstein, 2005).

Eugenics has taken a different form in the 21st century. Today, scientists are improving medical technology to remove the so-called defective genes responsible for various neuromuscular diseases while an unborn fetus is still in the embryo stage (Marini, 2011a). Likewise, parents are now able to abort a fetus that may result in a child having a developmental disability and essentially start over. Roberts, Stough, and Parrish (2002) found that when referred by their physician for genetic testing in relation to potential fetus birth defects, 65% of mothers elected to abort such a child. However, when mothers were provided with information and educational counseling about the disease or disability, many changed their minds. The authors found little effort to educate and counsel expectant mothers takes place in genetic testing clinics. Designer babies are also medically possible now, meaning parents can select gender, eye, and hair color. In one extreme example of the quest for the perfect human, a Playboy photographer auctioned off a supermodel’s egg and 5 million people visited the website in one morning, offering $42,000 for the egg (Smart, 2009). For those who can afford to pay for a designer baby, the option has arrived.

The survival-of-the-fittest concept and natural selection in the 21st century appear to have morphed into a survival of the financially fittest ideology. The ramifications of the 2008 Great Recession, continual middle-class decline into poverty, and historical government actions to cut social programs like Social Security, Medicare, and Medicaid ultimately leave those who need the most assistance to fend for themselves (Huffington, 2010; Reich, 2010). Today the have-nots are no longer sterilized or exterminated, but live on the fringe of society with poor living conditions, poor health care access and treatment, unemployment or underemployment, and food insufficiency. Indeed, the most disenfranchised of us, largely including those minorities with disabilities, may see their life expectancy shortened by 20+ years depending on one’s ZIP Code (Bloch et al., 2017). With the aging of America and millions of baby boomers moving into their golden years, the financial portfolios of these individuals dictate what the quality of their lives will be, like at no time before in American history. Although Americans are living longer and healthier lives, those with disabilities and little income may face even greater precarious times ahead.