Justices Refuse to Extend Bias Safeguard to Retarded

The Supreme Court, ruling in a widely watched case, refused Monday to extend to the mentally retarded the same special constitutional safeguards against governmental discrimination that protect blacks and women.

The court, by a vote of 6 to 3, reversed a federal appellate ruling that any law or policy specifying the retarded for different treatment from others must be given special judicial scrutiny.

The justices noted that many federal and state statutes now prohibit discrimination and protect the rights of the mentally retarded. And granting extra constitutional protection to the retarded would justifiably entitle a wide range of other groups--the aging, disabled, infirm or mentally ill--to claim similar protection, the court said.

Nonetheless, the court unanimously struck down as reflecting “an irrational prejudice” a zoning ordinance in Cleburne, Tex., that had been invoked by city officials to bar a home for the mentally retarded in a residential area. Under the ordinance, apartment houses, fraternities, sororities, hospitals and homes for the elderly were allowed without qualification--but homes for the “feeble-minded” were required to obtain special permits.

“The record does not reveal any rational basis for believing that the home (for the retarded) poses any special threat to the city’s legitimate interests,” Justice Byron R. White wrote for the court.

In a sharp dissent from the majority’s view, Justice Thurgood Marshall, joined by Justices William J. Brennan Jr. and Harry A. Blackmun, said the laws involving the retarded should be given heightened judicial examination in light of historic discrimination that “in its virulence and bigotry rivaled, and indeed paralleled, the worst excesses of Jim Crow.”

The ruling drew mixed reaction from attorneys for organizations supporting the retarded in the case. According to the government, there are about 6.5 million mentally retarded persons now in the United States. In a recent trend toward “de-institutionalization,” more and more such persons are living in small group homes in residential communities.

“We’re very pleased, of course, that the justices have given out the message that the retarded aren’t second-class citizens and can’t be pushed aside into industrial areas of the city,” said Diane Shisk, supervising attorney for Advocacy Inc. of Austin, Tex., which represented the home that had been barred in Cleburne. “But it certainly would have been a greater boost for all the mentally retarded if the court had held they were entitled to higher constitutional protection.”

‘Compelling’ Interest

In cases involving the equal protection clause of the Constitution, the court has held that laws or policies that make a distinction on the basis of race or gender must be given extra judicial scrutiny and must serve a “compelling” governmental interest to pass muster. A law that puts such groups at a disadvantage is quite likely to be struck down.

Laws that do not involve such distinctions ordinarily must be supported only by a “rational basis.”

In the case before the court (City of Cleburne vs. Cleburne Living Center, 84-468), a proposed home for the 13 mentally retarded persons, along with two live-in supervisors, was barred by city officials on several grounds--among others, objections from concerned elderly residents nearby.

Appeal Court Ruling

Attorneys for the home, the Cleburne Living Center, took the case to court. A federal appeals court in New Orleans had struck down the ordinance and ruled that the laws involving the retarded must be examined by the same constitutional standards as those that make distinctions by gender.

The Supreme Court justices refused to grant the retarded special constitutional protection--but held that the ordinance still did not pass the lesser standard, that of a rational basis.

In his dissent, Marshall argued that the retarded had been subject to a “lengthy and tragic history” of segregation and prejudice. “For the retarded, just as for Negroes and women, much has changed in recent years, but much remains the same,” he said.