In Chapter 1 of this text, we discussed how past attempts to eradicate mental disorders and the mistreatment and confinement of people with mental disorders came to be challenged by both evolving social ideas and by scientific and legal developments that helped make change possible. As social activists were criticizing overflowing state hospitals, scientific advancements (e.g., the development of psychiatric medications) and legal progress (e.g., the passage of the Community Mental Health Act) were improving logistics for people with mental disorders to function outside of hospitals. Together, social, scientific, and legal forces led to the reduction and closure of institutions, which increased the number of people with mental disorders living in their communities.

Although the movement towards deinstitutionalization in the 1960s (discussed in Chapter 1) signaled an end to routine confinement of people with mental disorders, there was still a lot of work to do. At that time, people with disabilities might be allowed to live in the community, but they had limited opportunities to achieve financial or other forms of independence. People with disabilities had no protection for their civil rights, which are personal rights that should be guaranteed and protected by law. Civil rights include things like the right to vote, gain an education, or enter public establishments. Discrimination, the different or unfair treatment of a person based on their status, was still perfectly legal when based on disability. Children with disabilities had no right to access public school, and adults with disabilities were often excluded from jobs, housing, and services like restaurants or stores. For example, a person who used a wheelchair often could not get in the door of a business, use public transportation, or find an accessible toilet. Some barriers were especially burdensome to those with mental disorders. For example, medical insurance was not required to cover mental health needs, making necessary treatment out of reach for most people.

Over the next several decades, more progressive thinking about people with disabilities, coupled with legislation and court decisions interpreting the laws, began to change the outlook for people with mental disorders. As part of the disability rights movement in the 1970s and beyond, advocates fought to end discrimination and achieve access and inclusion for people with disabilities, including people with mental disorders. The Spotlight in this section lists some of the legislative highlights. Links are provided for your information if you would like to learn more about a particular piece of legislation.

Some of the most important disability-related laws, especially the earlier ones, focused on the freedom and financial viability of people with disabilities. These laws (Social Security, the CMHA, and Medicaid) were the first steps in allowing a degree of independence and community opportunity for people with a variety of disabilities. Though it was an enormous and celebrated step to prohibit discrimination against people based on race and gender, the Civil Rights Act of 1964 did not address discrimination based on disability (figure 3.2). Discrimination against people who experienced mental disorders and other disabilities remained legal and unchecked for many more years. That began to change in 1973 with the passage of Section 504 of the Rehabilitation Act.

Section 504 of the Rehabilitation Act of 1973, known as “Section 504,” was the very first law that recognized the civil rights of people with disabilities. The language in Section 504 prohibited discrimination against disabled people by the federal government and by state entities that received federal funding (U.S. Department of Health and Human Services, 2006). The law was passed by Congress in 1973 in what was reportedly an under-the-radar insertion of revolutionary language into an otherwise uncontroversial piece of legislation (Heumann & Joiner, 2021). Once it became clear that the new law would have a huge impact (e.g., requiring places like government buildings to become accessible), three presidents (Nixon, Ford, and Carter), one after the other, resisted signing the regulations needed to put the law into action. Section 504 sat dormant. Focused advocacy, culminating in a month-long sit-in at a federal office building in San Francisco, along with shorter sit-ins in other locations, protested the delay. The San Francisco protest was led by a group that included Judith Heumann (figure 3.3), introduced in Chapter 1 of this text, and her friend Kitty Cone, another disability activist involved in the Berkeley Center for Independent Living.

As a child, Heuman, a wheelchair user, had been denied entry to kindergarten as a “fire hazard”—only the first of many times she faced dehumanizing discrimination (Heumann & Joiner, 2021). Kitty Cone, who had muscular dystrophy, had already been active in protesting race and gender discrimination when she became involved in the disability rights movement in the 1970s (figure 3.4). An openly gay woman, Cone faced additional discrimination based on her gender and sexuality (Disability Rights Education & Defense Fund. n.d.).

Supporting the Section 504 demonstrations, including the federal building sit-in, was an unexpected group of experienced civil rights activists: the Black Panthers. The Black Panthers had formed to empower Black people, especially in protest against police brutality, and they now lent their voices, skills, and power to the disability rights movement (Connelly, 2020). Longtime Black Panther Party leader Bradley Lomax (pictured in figure 3.5) had developed multiple sclerosis, which gave him a personal view into the myriad challenges of being a disabled Black man in America (Connelly, 2020).

Lomax’s personal experience drew him to the disability rights movement. When he joined the Section 504 protests along with a few other Black disabled activists, he inspired the involvement of other Black Panthers. The Panthers kept showing up to feed and supply the disabled protesters occupying the federal building for their nearly month-long protest. The Panthers were a critical source of support for the Section 504 sit-in (Connelly, 2020). Additionally, according to Kitty Cone, the disability protestors felt a strong connection with the Black activists who had inspired them and now supported them: “We felt ourselves the descendants of the civil rights movement of the ’60s” (Cone, n.d.).

In the face of lengthy protests and other pressure from the disabled community and their allies, the required regulations were finally implemented, and Section 504 went into effect in 1977. Although Section 504 applied only to select federally-funded entities, not state or private ones, its reach was incredibly significant. Symbolically, the law was the first to establish the civil rights of people with disabilities, prohibiting discrimination and exclusion based on disability (Heumann & Joiner, 2021). Practically, Section 504 began to be used—and is still used—to secure access to places that were previously inaccessible. For example, Section 504 is often viewed as the law that allows children with disabilities to get in the door and stay at school. It empowers a student to demand that a school create an accommodation plan to eliminate disability-related barriers to school attendance. For example, a 504 plan might provide alternate reading materials for a student with dyslexia or allow breaks in the day to help a child manage an anxiety disorder so they can participate in school. Importantly, Section 504 served as something of a “warm-up” for the later laws discussed here—especially the Americans with Disabilities Act (ADA).

The Education for All Handicapped Children Act of 1975, later renamed the Individuals with Disabilities Education Act (IDEA), was passed in its original form just a few years after Section 504. The IDEA established “special education” services for children who experience disabilities (including mental disorders) that impact their ability to learn and function in school. While Section 504 might allow a child to be at school, the IDEA goes a step further and requires that the child be provided with an education at school.

The IDEA requires that the government provide a “free and appropriate” public education to all disabled children, just as is provided to nondisabled children. Plans for the education of a disabled child must be outlined in an individualized education program, commonly known as an IEP. The IDEA explicitly disfavors segregation of children due to disability, preferring that all children be educated together when possible (figure 3.6). Today, school systems still regularly engage in the segregation and educational neglect of disabled children, but families can use these laws to advocate for appropriate and inclusive education in light of their child’s disability. Before the passage of Section 504 and the IDEA, children with disabilities quite simply had no right to public education at all.

Other important disability-related laws—the inclusion of disabled people specifically in the Fair Housing Act of 1988, as well as the Mental Health Parity Act and the Air Carrier Access Act, both passed in 1996—are remarkable for staking out basic opportunities (housing, health insurance, and air travel) for people with disabilities in very recent history. Likewise, the Americans with Disabilities Act (ADA), which is discussed in detail in the next section, was passed in 1990. The year 2008 in the United States is likely better known for the history-making election of Barack Obama as America’s first Black president, but it was also the year that the ADA was amended to ensure protection from discrimination for people with disability stemming from mental disorders (such as mental illness or intellectual disability) or brain-related disorders (such as epilepsy).

The Criminal Justice System in Context

You may wonder: how do access to education, employment, and other activities relate to our topic of people with mental disorders in the criminal justice system? They relate because the criminal justice system is part of our larger world. People who find themselves in the criminal justice system were not always there, and most will not always be there. The people who are now justice-involved are also products of our educational system and past or future participants in the job market, the healthcare system, and the housing market. These community experiences are intertwined with a person’s involvement in the criminal justice system. How people are treated and supported in their communities impacts whether or not they will become engaged in the criminal justice system and whether they will be successful when they leave it. You can likely imagine many examples of this connection, but we know that school “failure” due to unmet educational needs—a frequent problem for students with mental disorders—is an enormous risk factor for justice system involvement, and this effect is even more pronounced for children with less social privilege, such as students of color or students in the foster care system (Leone et al., 2003). Education-system handling of mental disorders is very much related to criminal justice system makeup and outcomes.

Likewise, people who work in the criminal justice system—whether they are law enforcement officers, lawyers, corrections staff, or in any other role—are all part of our larger society. Their view of people with disabilities, including mental disorders, is shaped at home and school and refined as they continue into adulthood. If, for example, a young student is led to believe that people with mental disorders do not belong or are not welcome in typical classrooms at school, how might that same person, now a law enforcement officer, treat a person with a mental disorder who they encounter in the course of their work? Will that officer understand that the person with a mental disorder is deserving of respect and is entitled to inclusion in their community and that they need accommodations to do so? Alternatively, if a victim advocate has ridden the bus to work every day alongside a neighbor who experiences an intellectual disability, might that advocate be more able to appreciate the needs of a similarly situated person who appears in their office needing help? Although the specific focus of this textbook is the criminal justice system, that system has to be considered in the context of our larger society, of which it is both a part and a product.

Licenses and Attributions for Overview of Federal Disability Law

Open Content, Original

“Overview of Federal Disability Law” by Anne Nichol is licensed under CC BY 4.0.

“Spotlight: Timeline of Important Disability Laws” by Anne Nichol is licensed under CC BY 4.0.

Open Content, Shared Previously

Figure 3.2. Photograph of Judy Heumann and Barbara Ransom by Bailey Hill is licensed under CC BY-SA 4.0.

Figure 3.3. Photo of Civil Rights March on Washington D.C. by Library of Congress on Unsplash.

All Rights Reserved Content

Figure 3.4. Photograph of Kitty Cone by The Center for Independent Living is included under fair use.

Figure 3.5. Photograph of Bradley Lomax with Judith Heumann by HolLynn D’Lil used under fair use.

Figure 3.6. Photograph of child in school by Mikhail Nilov is licensed under the Pexels license.