Constitutional Law Class Notes 3/29/04


City of Cleburne, Texas v. Cleburne Living Center


Here is the comparison to Beazer:



Mentally retarded

Recovering drug addicts








There was a proposed home for the mentally retarded in the city.  The city required a special permit to have such a home in this particular neighborhood.  The city doesn’t want that home there, and they invoke a certain city ordinance.  How does this case get to the Supreme Court?  What’s the federal constitutional issue?  The key point of an equal protection analysis is to find the alleged discrimination.  There is a special permit required for a home for the mentally retarded, but not for certain other groups.  Like what?  Well, the same house could be used for a frat or sorority or nursing home.  You could have a lot of stuff there, but not mentally retarded people.


What is the basic holding of the Court with respect to this claim?  They decide that the mentally retarded shouldn’t be a quasi-suspect classification, however, they find that in this case in particular the denial of the permit doesn’t have a rational basis and thus is unconstitutional.


There are two parts to the inquiry: (1) What level of scrutiny applies?  The Court doesn’t apply strict scrutiny.  The Court only applies the rational basis test.  (2) In this particular case, the discrimination is no good.


The language of suspect and quasi-suspect classification is a pet peeve of Foley.  It’s the classification in the law that is considered suspicious or suspect when you have heightened or intermediate scrutiny.  We’re not saying that mentally retarded people are “suspect”.  It’s sort of an inelegant, colloquial shorthand.  For Foley’s purposes, don’t use the term “suspect class”.  Use the term “suspect classification”.


Cleburne came out when Foley was in law school.  This case seems to get bigger and bigger over time in terms of setting out the basic framework for how the Supreme Court thinks about equal protection: when it’s going to use heightened scrutiny or not, and how it applies low-level scrutiny.  Interestingly, this law flunks the rational basis test.  So this is an important case, though not the last word on equal protection.  This is a biggie.


Let’s look at the part of the holding where they say that they aren’t going to apply heightened scrutiny.  Why not?  This is the opposite of what the Fifth Circuit decided.  Brennan, Marshall, and Blackmun would have applied intermediate scrutiny for laws that treat the mentally retarded differently from others.  What is the Court’s reasoning?


They say that mentally retarded people really are different from other people so that there is a rational reason for treating them differently in the law, at least from time to time.  Compare their situation to blind people.  Historically, some laws that have treated the mentally retarded differently have been based on prejudice, but not all such laws have been bad.  On the other hand, most laws that regulate on the basis of race or gender have had an invidious character.  Why not treat mental retardation laws the same as gender discrimination laws as opposed to like laws discriminating between opticians and optometrists?  The Court says that the legislation over time related to the mentally retarded tried to protect them rather than hurt them.  The Court is concerned that to impose heightened review would discourage legislation that would benefit the mentally retarded.


The Court will start with the presumption that these laws are valid.


There are two more points that the Court made.  The Court says that the mentally retarded are adequately represented politically.  The Court seems to care about the political dynamic here.  Whether a group has political power in the legislature is a factor for the Court in deciding whether judicial intervention is necessary.  The Court doesn’t claim that the mentally retarded will be able to exercise power by voting or being in the legislature, but there is a sense that people who are not retarded will take care of their “less fortunate” neighbors and fellow citizens.  This is sort of a “paternalistic” attitude: we can count on ordinary citizens and legislators to act with good will concerns mental retardation issues.


The Court also says that if you must subject laws related to mental retardation to higher scrutiny, they claim you’ll have to bring in lots of other classifications.


Does Cleburne tell us when a new form of intermediate scrutiny might arise?


There are certain state areas where more deference is given to the states or other institutions, like in prisons or in a military context.


The whole other part of this case: we know the rational basis test applies, but the law flunks the test?  How come?  Normally, most laws don’t flunk the rational basis test after the New Deal revolution of 1937.  The rational basis test is kind of a way to bend over backwards to support the government.


How did the city try to justify the denial of the permit?  They try to claim that other citizens are afraid of the mentally retarded.  The Court says no way!  You can’t relegate a whole class of people to a certain area just because people don’t like them.  That’s an illegitimate reason under the Equal Protection Clause!  That’s exactly what the Equal Protection Clause is designed to quash!  You have to evaluate both the ends and the relationship of the means to the ends.  But this goal is terrible in itself!  It’s prejudice!


The city’s lawyers said that it was a problem that the home was across from a junior high school and they thought the students would harass the mentally retarded persons.  The Court says that’s not legitimate either!  The school across the street has 30 mentally retarded students itself!  It also smacks of bigotry.  If the junior high kids are mean, that’s ill will, and the government can’t discriminate on the basis of the ill will of its own citizens.  Imagine if we were talking about race instead of mental retardation!  If one group is really mean to another, you have to crack down on the mean people!


The city’s lawyers said that the home was on a floodplain, and they were concerned about the residents in the case of a flood.  It was a 500 year floodplain.  That means the statistical chance is that a flood will tend to occur once every 500 years!  That’s a very slim explanation.  Very, very slim.  Is this an invalid justification under the rational basis test?  Not really; it’s valid, but it’s not rationally related.  The floodplain argument, as silly as it is, flunks for a different reason.  It’s a safety-related reason, not based on hatred or irrational prejudice in the way the first two are.  If the goal is remotely legitimate, why are the means no good?  The means are no good because the ordinance at issue allows nursing homes, convalescent homes, hospitals, and so on at the same location.  The city supposedly thinks that old people or sick people would have no problem getting away from a flood while the mentally retarded would.  The Court says that to differentiate between the retarded and other folks who suffer from the same sorts of conditions, it is irrational!


The last point that the city made was to say that they were worried about how many people live in one house.  The Court said that you could have an across-the-board rule, or zone for single-family dwellings.  But instead, this city allows stuff like fraternities and sororities, so it’s obviously not concerned about just the numbers of people.


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