U.S. Backing Effort to Exclude Retarded Home

The Reagan Administration, arguing that the mentally retarded do not require special judicial consideration under the equal protection clause of the U.S. Constitution, is backing a Texas city’s attempt to bar a home for 13 retarded persons from a residential neighborhood.

In a little-noticed brief filed with the Supreme Court on Dec. 28, the Justice Department contended that, unlike blacks and other racial minorities, the retarded are not a class that deserves special attention to prevent them from suffering discrimination.

Rex E. Lee, U.S. solicitor general, and William Bradford Reynolds, U.S. assistant attorney general for civil rights, urged the justices to overturn an appeals court ruling that a zoning ordinance under which the city of Cleburne, Tex., blocked the group home is unconstitutional.

The equal protection clause, contained in the 14th Amendment to the Constitution, has been the constitutional bulwark for protecting the civil rights of citizens, particularly women, blacks and other minorities. It bars states from denying to any person within their jurisdiction the equal protection of the laws.

The Justice Department’s stance is in line with the Administration’s often-stated position that courts are increasingly ruling on questions that should be left to elected officials. Moreover, the department argued, to give the retarded such special consideration might well make it difficult to deny extra judicial protection to such other groups as “the physically handicapped, the infirm and even those suffering from diseases such as alcoholism.”

But others within the Administration, without specifically mentioning the department’s brief, are sharply criticizing the legal support for Cleburne’s action.

The President’s Committee on Mental Retardation, a 21-member panel, unanimously adopted a resolution Friday declaring that the Cleburne ordinance “represents a type of unlawful, invidious discrimination existing across the nation which is barred by the U.S. Constitution.”

And the Administration’s position showed “a lack of sensitivity to the fact that this (retarded) group needs protection,” declared Norman S. Rosenberg, director of the Mental Health Law Project, a Washington-based public interest group.

The Cleburne zoning ordinance requires that a special-use permit be obtained for the operation of any “hospitals for the insane or feeble-minded, or alcoholic or drug addicts, or penal or correctional institutions.”

The Cleburne City Council turned down Cleburne Living Centers when it sought a permit to operate the group home in a high-density, multi-use area, citing the opposition of a majority of property owners within 200 feet of the proposed home.

The council also noted the location of a junior high school across the street, concern for fears of elderly residents of the neighborhood, the number of persons to be housed and concern over the legal responsibility of the home’s sponsors for the residents’ actions.

But the availability of such group homes “in communities is an essential ingredient of normal living patterns for mentally retarded persons,” the President’s committee contended.

A federal district court in 1982 rejected a legal attack on the ordinance, ruling that denial of the permit was rationally related to the city’s legitimate concerns over the location of group housing for the retarded.

But the U.S. 5th Circuit Court of Appeals in New Orleans reversed the lower court ruling, holding that mentally retarded persons require “heightened” or “intermediate” judicial scrutiny of classifications affecting them.

The Justice Department, while describing mentally retarded as “a class that invokes our justified concern and sympathy,” argued: “But that is a far cry from creating yet another group enabled to compel heightened scrutiny of legislative actions affecting their interests.”

The department asked that the lowest level of judicial scrutiny under the equal protection clause be applied, requiring that the particular classification be rationally related to a legitimate state interest.

Using such a standard, a court “may well supportably conclude that the denial of a special-use permit in this case was so wanting in rationality as to fail to pass muster under the equal protection clause,” the department said.