Presumptions of Justice: Law, Politics, and the Mentally Retarded Parent

Although over half a century has passed since Justice Holmes' now infamous ruling in Buck v. Bell that "three generations of imbeciles are enough," our legal system continues to discriminate against mentally retarded parents. In this Article, Professor Hayman argues that stereotyped responses to mental retardation have been codified into law and are reflected in the current legal presumption that mentally retarded people are unfit to be parents. Using scientific studies of parenting skills, Professor Hayman argues that this presumption of unfitness is both unjust and empirically invalid. The presumption persists, he explains, because the label "mentally retarded" is based on discredited assumptions and reflects a political view of the ideal person that is anti-communal, anti-passionate, and anti-egalitarian. He urges decisionmakers in the juvenile court process to eliminate the label from their adjudications. The Article concludes with suggestions for the advocate for mentally retarded parents who must work within the current system.