Just days ago, Explainer answered the question, “ Does the Law Treat the Insane Differently Than the Retarded?” However, the item did not explore the legal rights of the retarded in other areas–such as marriage, home ownership, and the right to drive. What are those rights?
The American Association on Mental Retardation defines someone as mentally retarded if they 1) have an IQ below 70-75; 2) are limited in two or more adaptive skill areas (daily living skills needed to live, learn, work, and play in the community); and 3) if the condition is present from childhood (defined as age 18 or younger). An estimated seven million mentally retarded people live in the United States.
Mentally retarded individuals have the same legal rights to marry, drive cars, and own homes as any other American, says Dr. Richard Redding of the University of Virginia’s Institute of Law, Psychiatry, and Public Policy, and they need not pass any competency tests. So long as a mentally retarded individual can pass the DMV tests, he may drive a car; so long as he can pay the rent, a mentally retarded person may live where he pleases.
Under federal law, public schools may no longer assume that all retarded children must be sent to special classrooms. Instead, every retarded child is evaluated to determine what kind of education is appropriate. Some are placed in special classrooms for children with learning disabilities, while others are placed in a regular classroom with a special aide.
More than 30 states either prohibit or restrict marriage between people with “developmental disabilities” (another term for mental retardation). Such marriage laws are rarely enforced. But when they are, a competency hearing can be triggered by a guardian or family member who suspects manipulation or coercion behind the marriage. Courts adjudicating the denial of such fundamental rights as the right to marry or procreate will use a heightened level of scrutiny to evaluate whether the retarded individual is being unfairly denied his or her constitutional rights.
There has also been significant litigation under the Americans with Disabilities Act involving mentally retarded individuals evicted or denied access to housing based on their disability. Under the Americans with Disabilities Act and other civil rights legislation, including the Fair Housing Amendments Act of 1988, landlords and communities can no longer deny housing, employment, or other fundamental rights to the developmentally disabled without a strong showing that they simply have no capability to function.
Explainer thanks Dr. Richard E. Redding, at University of Virginia’s Institute of Law, Psychiatry, and Public Policy.