Landmark court case is recalled

by Luther Granquist  Fifty years ago this month Judge Earl R. Larson issued his first decision in Welsch versus Likins, […]

MN State Capitol - photo by Ken Lund

by Luther Granquist 

Fifty years ago this month Judge Earl R. Larson issued his first decision in Welsch versus Likins, a class action brought by residents confined in six Minnesota state institutions for persons with what was then called mental retardation. This lawsuit challenged the lack of appropriate treatment, in large part because of wholly inadequate staffing, and the failure to provide services in the least restrictive environment. In this order Larson declared that the claims had a sound legal basis. But whether more staff were needed or whether changes had to be made in the institution’s programs required the plaintiffs to prove that mere custodial care was not good enough. 

Custodial care was the most the state system offered, as the Minnesota Association for Retarded Children (Arc Minnesota’s name then) had reported after surveying actual on-duty staff at Cambridge, Brainerd and Faribault State Hospitals in September 1964. In early 1965, Dr. H. P. Bobb at Brainerd said that 39 percent of the residents there received only custodial care (“assures that the resident will not suffer serious injury or physical neglect and attempts to maintain him as he is” but does not enable him to “learn and grow as he should”). 

Far more, 59 percent, received only what he called “survival care” (“provides residents with the physical care and supervision necessary to preserve life” but cannot “assure that residents will not suffer serious injury or physical neglect”). 

As community-based services expanded, the state hospitals’ populations dropped. Most of the persons discharged were the more capable residents who provided significant help in operating the institutions. Nevertheless, in 1971 the Minnesota Legislature, emphasizing this population reduction, eliminated hundreds of positions throughout the entire state hospital system. 

Larson’s order in February 1974 followed the first trial in the Welsch case, one that dealt only with Cambridge State Hospital. Expert witnesses presented this thoughtful and compassionate jurist with testimony about the potential of the men, women, boys and girls living there and about the conditions they faced. 

Those witnesses included Gunnar Dybwad, who had observed institutions and services for persons with intellectual and developmental disabilities around the world, and James Clements, who had been a key witness in cases involving Partlow State School in Alabama and the infamous Willowbrook State School in New York.

Other witnesses were Bruce Balow and John Rynders from the University of Minnesota; Travis Thompson, who testified about his work with men languishing in Dakota Building at Faribault State Hospital; and Mary Hubbard, who told how Project Teach, before it was terminated, gave young boys and girls at Cambridge State Hospital the opportunity to learn and grow. 

Larson listened as Eleanor Welsch quietly told him and a hushed courtroom about how she and her husband, Dick, alternately left their daughter, Patricia, at Cambridge State Hospital and struggled to care for and to teach her at home. 

This evidence, Larson wrote, was “overwhelming and convincing” that “everyone, no matter the degree or severity of retardation, is capable of growth and development if given adequate and suitable treatment.” The components of the requisite habilitation program, he wrote, were “a humane psychological and physical environment, qualified staff in sufficient numbers, and individualized treatment plans.” 

In an October 1974 decision he spelled out the actions required to protect the constitutional rights of the children and adults confined at that institution.  

Larson heard testimony in November and December 1975 about what had and had not been accomplished at Cambridge State Hospital and modified his orders, making them more demanding. It was evident that the legislature hadn’t provided the funding necessary for the institution’s administration to comply with all of them, particularly to provide needed staff. He ordered state officials to do so anyway, regardless of state finances and complement control laws that stood in the way. He wrote: “Plaintiffs’ cause cries out for the utmost relief that this Court can offer, consistent with its power.” 

State officials appealed that order. The federal court of appeals neither affirmed nor reversed it but vacated it. That gave the legislature another chance to act. (After the appeal was argued in January 1977, newly elected Gov. Rudy Perpich wrote the judges who heard the appeal and told them that he supported what Larson ordered and was proposing ways to get that done.) That court also affirmed the other orders Larson made and emphasized that regardless of what the legislature or governor did “if Minnesota is going to operate institutions like Cambridge, their operation is going to have to be consistent with the Constitution of the United States.”  

In May 1980 another trial in this case addressed similar issues at Brainerd, Faribault, Fergus Falls and Moose Lake State Hospitals. It was settled with a Consent Decree that included the Minnesota Valley Social Adaptation Center at St. Peter and the Glacial Ridge Training Center at Willmar. From that point on, while issues about staffing and conditions in the institutions remained, the focus in the lawsuit shifted to a reduction in the population of the institutions, to be achieved in part, by strict limitations on admission of children, and to a requirement that all persons discharged from these institutions had to be provided services that appropriately met their individual needs. 

The Welsch case ended in 1989 when the Minnesota Department of Human Services fulfilled the requirements of a further settlement reached in 1987. The premise of that agreement, realized only in part, was that further oversight from a court would no longer be needed. 

None of the rulings or settlements in the Welsch case required the closure of any institution, but the last resident left in July 2000. The challenge that remains and will continue is to ensure, in terms that Judge Larson used 50 years ago, that all persons with intellectual and developmental disabilities have the opportunity to grow and to develop and to live in a humane environment that is the least restrictive consistent with their individual needs. 

All the decisions and orders in the Welsch case and the other reports mentioned in this Note are available in With an Eye to the Past on the website of the Minnesota  Governor’s Council on Developmental Disabilities. 

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