The opinion of the court was delivered by: BRODERICK
Again, the defendants in this case have petitioned for a stay of this Court's remedial Orders pending decision by the Court of Appeals on remand from the Supreme Court. This is the fourth time defendants have asked this Court to stay its Orders. In each instance the request for a stay has been denied. On seven occasions the Court of Appeals and the Supreme Court have likewise refused to stay the basic thrust of this Court's Orders pending disposition of appeals. A review of this litigation makes it obvious why stays have been consistently denied in the past and why the instant motion to stay will be denied.
In 1977 this Court, after 32 trial days, determined that not only were the constitutional rights of the retarded residents of Pennhurst being violated, but that their rights under both state and federal statutes were also violated. As the trial record in this case reveals, all parties to this litigation admitted that the residents of Pennhurst were not receiving minimally adequate habilitation. By "adequate habilitation" we mean such education, training and care as will better enable a retarded person to cope with life as effectively as his or her capacities will permit. The average stay of a resident at Pennhurst was 21 years, and the testimony showed that a majority of them had regressed in that their level of functioning had declined when compared to the skills which they possessed at the time of admittance to Pennhurst. On many occasions since the trial, including the oral argument on this motion, all parties were in agreement with the many experts who testified at the trial that normalization is now universally accepted as the most beneficial method of habilitating a retarded person. Normalization is the antithesis of institutionalization and is based upon the fact that the education, training and care of a retarded person can best be accomplished in a community living arrangement. As this Court found, Pennhurst as an institution is inappropriate and inadequate as a place to habilitate the retarded. At the trial the Commonwealth represented that it intended to close Pennhurst in the early 1980's.
Approximately 3% of our population is retarded to some degree. However, 89% of those classified as retarded are only mildly retarded and are capable of achieving self-support and self-care; the remainder of the retarded are capable of achieving some degree of self-care. Once again this Court points out that when it speaks of the retarded it means individuals who are impaired in learning capacity and adaptive behavior, persons who have not broken the law and who are not a danger to the community because of some severe mental or emotional disorder.
1. When a state involuntarily commits a retarded person it must provide that person with habilitation that will afford him or her a reasonable opportunity to acquire such skills as his or her capabilities permit, and that due process requires that when a state undertakes the habilitation of a retarded person it must do so in the least restrictive setting consistent with his or her habilitative needs.
2. Because the retarded persons at Pennhurst were physically abused their constitutional right to be free from harm has been violated.
3. That all retarded persons have a constitutional right to non-discriminatory habilitation and that the retarded residents of Pennhurst are being segregated by institutionalizing them in a place that is not only separate and apart but is a place denying the retarded their equal right to education and training.
4. A Pennsylvania statute (50 P.S. § 4201) creates for each retarded individual a statutory right to minimally adequate habilitation.
5. Section 504 of the Rehabilitation Act of 1973 creates for each retarded person a federal statutory right to minimally adequate habilitation in a non-discriminatory setting such as a community living arrangement.
The concept of community living arrangements for the retarded was not conceived by this Court. In November of 1970 the Commonwealth of Pennsylvania enacted Act 256 which appropriated $ 21,000,000 to construct or otherwise provide community living arrangements for 900 Pennhurst residents. At the time this case was tried in 1977, 7 years later, only 37 Pennhurst residents had directly benefited from that appropriation. It is of interest to note that on the basis of the testimony presented at the trial the Court found that community living arrangements are less expensive to operate than large institutions such as Pennhurst.
On July 1, 1981, this Court held a hearing in connection with the instant motion to stay this Court's remedial Orders pending decision by the Court of Appeals on remand from the Supreme Court.
Federal Rule of Civil Procedure 62(c) provides in pertinent part:
When an appeal is taken from an interlocutory or final judgment granting, dissolving, or denying an injunction, the court in its discretion may suspend, modify, restore, or grant an injunction during the pendency of the appeal upon such terms as to bond or otherwise as it ...