Court to Decide Rights of Retarded in Texas Case : Decision Could Extend to Them Protections Given to Minorities and Women

In 1887, California became the first state to enact a law establishing institutions for the “imbecile or feeble-minded.” Eventually, all states joined the trend toward segregating what an official report in Vermont described in 1916 as “this blight on mankind.”

Since then, widespread reform has dramatically reduced the forced isolation of the mentally retarded--people with learning disorders but not mental illnesses. However, there are still many legal restrictions in the United States that, critics say, unfairly deny the retarded the rights enjoyed by other citizens.

One such restriction is under heavy attack before the U.S. Supreme Court in a case that could extend to the nation’s 2 million mentally retarded people the same kinds of constitutional protections that the court has already given minorities and women.

The justices will hear arguments on Tuesday over an attempt by the city of Cleburne, Tex., to use its zoning authority to exclude a home for the mentally retarded from a residential neighborhood. The court will decide the case this summer.

Special Permission

The Cleburne ordinance freely allows apartment houses, fraternities, hospitals and homes for the elderly. But it bars facilities for “the insane or feeble-minded” without special permission--which it denied to a proposed home for 13 mildly and moderately retarded adults.

The case has commanded extraordinary attention, with dozens of advocacy groups for the retarded, several civil liberties organizations and attorneys general from 11 states--including California--all opposing the city’s action.

Those attorneys say that a court decision striking down the ordinance might not only ease housing barriers to the retarded but could add impetus to efforts to remove other restrictions. Some states, they said, still authorize compulsory sterilization of the retarded or prohibit them from marrying, and dozens of states restrict the voting rights of the retarded.

“It could have a major impact all over the country,” said Paul Hoffman, legal director of the American Civil Liberties Union Foundation of Southern California. “It would enable lawyers to go into federal court to redress restrictions on the mentally retarded of all kinds.”

Symbolic Importance

A favorable ruling, the lawyers said, could also carry vast symbolic importance. “This case can mean for retarded people what the (1954 school desegregation) decision meant for society with respect to black people,” said Thomas K. Gilhool, chief counsel for the Public Interest Law Center of Philadelphia. “A signal from the court could serve to open many doors that have been closed to the retarded.”

On the other side, the city of Cleburne vigorously denies that it is trying to ban the retarded from the community. “That’s a completely ridiculous, fabricated claim,” said Earl Luna of Dallas, an attorney representing the city.

The city says that it is only exercising its duty to regulate a business--in this case, the privately operated facility for the retarded. Another kind of facility in another area might well have been permitted, the city said, and the retarded, as individuals, are not restricted.

The proposed home, with four bedrooms and two baths, would have been too small for 13 men and women plus two adult supervisors, Luna said. “They all would be going off to jobs or training workshops at 8 o’clock every morning,” he said. “Their choice would be to go without bathing or have 13 people trying to take baths in two bathrooms.”

Increased Congestion Cited

The city argues that the home would have been located across the street from a junior high school, increasing congestion in the area. It also points to objections raised by elderly residents and property owners in the neighborhood.

The city has picked up an ally of sorts in the Reagan Administration. Justice Department lawyers, while expressing doubt about the validity of the city’s refusal to permit the home, have filed a friend of the court brief urging the justices not to grant the retarded the same kind of special protection the court has previously granted to blacks, women and some other groups.

The Justice Department argues that giving the retarded special protection would make it difficult to deny the same protection to the physically handicapped, the infirm or those suffering such diseases as alcoholism. It also would invite judges to overturn laws that aid particular groups--such as the aged or physically handicapped--if those laws do not make similar provisions for the retarded, the government says.

“In the best of all possible worlds, each of these worthy groups would be amply accommodated,” the department’s brief said. “But the (legislative) decision to accommodate some now and others later, some here and others there, cannot be allowed to become, as a regular matter, grist for the judicial mill.”

Retarded Make Gains

Although ordinances such as Cleburne’s remain on the books in many places, the retarded have made many gains in recent years. New federal and state laws provide them a wide variety of aid and protection. Discrimination against the handicapped, including the retarded, is barred in federally assisted programs. Numerous groups lobby for the rights of the retarded in Congress and elsewhere.

California, which in 1937 repealed its statute segregating the “feeble minded,” is one of 31 states to forbid local zoning policies that could be used unfairly against homes for the retarded. Many states, including California, actively promote “deinstitutionalization”--the transfer of the retarded from remote, warehouse-style institutions to smaller group homes in communities. As a result, the number of retarded in public institutions throughout the nation declined from 213,000 in 1960 to 119,000 in 1982.

But discrimination against the retarded, based on discredited stereotypes, still exists, according to advocates for the retarded. In Texas alone, they said, 12 other cities still have ordinances similar to the one in Cleburne, and countless other communities in the country have resisted efforts to locate homes in their areas.

The case before the court (City of Cleburne vs. Cleburne Living Center, 84-468) arose in 1980 when a group that operates other homes for the retarded in Texas was denied permission to open a home in Cleburne, a city of about 19,000 near Fort Worth.

Sweeping Opinion

Last year, the U.S. 5th Circuit Court of Appeals in New Orleans struck down the ordinance, issuing a sweeping opinion that likened the historic discrimination and segregation of the retarded to that suffered by blacks.

It held that the retarded constitute a “quasi-suspect” class--and thus any law that discriminates against them must be subject to heightened scrutiny. The city, the appeals court said, had failed to meet its burden of showing that the ordinance “substantially furthers a significant governmental interest.”

Next week’s argument will be the case’s second before the Supreme Court. The case was first argued on March 18, but Justice Lewis F. Powell Jr. was absent, recovering from prostate surgery. The court, in a rare action, subsequently ordered another argument when Powell would be present, indicating that the eight other justices may be evenly divided on the case.

In the March arguments, Luna denied that Cleburne was discriminating against the retarded. Their needs and capacities differ from the rest of society, he said, and the ordinance was invoked for the well-being of both.

Concerned Over Emergencies

Luna cited concern over whether residents of the proposed home could adequately cope with fires or other emergencies that might arise. “We think the ordinance protected the mentally retarded,” he said.

Renea Hicks of Austin, Tex., an attorney representing the operators of the proposed home, ridiculed the city’s claim that it was protecting both the retarded and their neighbors.

“This is a classic example of government’s historical justification for exclusion of mentally retarded people from many areas of American life,” he said. As for the concern for the safety of the retarded in an emergency, they were “quite likely” to be better-equipped than most other adults because group homes provide special training for such eventualities, Hicks said.

If the Supreme Court rules in favor of the the home, even California--among the trend setters in reducing legal barriers to the retarded--could feel the impact, said Joseph Lawrence, legal director for the Western Law Center for the Handicapped in Los Angeles.

“There is still the notion here and the rest of the nation that the mentally retarded are dangerous or in some fashion people who present serious problems to the community,” he said. “This case could go a long way to reducing those fears.”