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51 U. Tol. L. Rev. 57 (2019-2020)
Ex Tenebris Lux: Buck v. Bell and the Americans with Disabilities Act

handle is hein.journals/utol51 and id is 65 raw text is: EX TENEBRIS LUX: BUCK V. BELL AND THE AMERICANS WITH DISABILITIES ACT Derek Warden* INTRODUCTION L IKE many law review articles and essays, this essay has its genesis in a law school classroom. In that class, I found myself discussing the worst decisions the Supreme Court ever rendered.' Of course, we concluded that Dred Scott,2 Plessy,3 and Korematsu,' were on that list.5 However, a number of students did not know Buck v. Bell.' Even those who had heard of the case had no idea what the holding was.' Most were surprised to learn the decision remains good law.' While the students in that class may have been stunned by Buck, many people in the disability rights community look to Buck as the Dred Scott of disability rights cases, while they consider the Olmstead 9 decision the disability rights Brown v. * Attorney with Bums Charest LLP in New Orleans and LLM Candidate (2020) at Tulane Law School. My primary area of practice has been in civil rights and class actions, with a focus on the Americans with Disabilities Act. As a 2016 AmeriCorps Legal Fellow with the Advocacy Center, I assisted in plaintiff's side ADA class actions in the prison setting. I've lectured at all four Louisiana law schools and published eight law review articles all touching on civil rights and constitutional law. Prior to graduating from LSU Paul M. Hebert Law Center (2016), I worked with a number of non-profit and govermnental entities: The Promise of Justice Initiative, the Advocacy Center of Louisiana, The Louisiana First Circuit Court of Appeal, the Bioethics Defense Fund, Southeast Louisiana Legal Services, and the Public Defender for the Third Judicial District of Louisiana. In addition to these posts, I served as Graduate Editor to the Journal of Civil Law Studies at LSU, held a research assistantship with professor Margaret Thomas, published my J.D. thesis, and often tutored fellow students in areas of constitutional law and civil procedure. I received my B.A. in Political Science from Louisiana Tech University (2013). This article is dedicated in memory of Carrie Buck and all those who suffered forced sterilization as a result of Justice Holmes's words. Buck v. Bell truly belongs alongside Dred Scott as one of the worst opinions of all time. 1. What constitutes a bad decision is of considerable debate. Michael Stokes Paulsen, The Worst Constitutional Decision ofAll Time, 78 NOTRE DAME L. REv. 995, 1003 (2003). 2. See generally Dred Scottv. Sandford, 60 U.S. 393 (1857). 3. See generallyPlessy v. Ferguson, 163 U.S. 537 (1896). 4. See generally Toyosaburo v. Korematsu, 323 U.S. 214 (1944). 5. These cases are part of the traditional anticanon. Jamal Greene, The Anticanon, 125 HARv. L. REv. 379, 380 (2011). 6. See generally Buckv. Bell, 274 U.S. 200 (1927). 7. That states were free to forcibly sterilize persons with disabilities on the basis of disability alone. Id. 8. Roberta Cepko, Involuntary Sterilization of Mentally Disabled Women, 8 BERKELEY WOMEN'S L.J. 122, 123 (1993). 9. See generally Olmsteadv. L.C. ex rel. Zimring, 527 U.S. 581 (1999). 57

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