Cleburne v. Cleburne Inc. exposé

“For disability law purposes, Cleburne has been the end-all–be-all statement of the constitutional rights of people with disabilities. And, despite the holding in Cleburne itself, … it has been nearly uniformly applied to deny people with disabilities any protection under the Equal Protection Clause.”    Waterstone, Michael – Loyola Law School, Los AngelesA

The 1985 Supreme Court ruling [link to archived document] has become a seminal case as a bulwark and a bastion of Law-enshrined denial of rights to Autistic people in particular and the Disabled population in general. Here we examine the judgements, the reasoning, and the prejudice expressly manifested by the CERTIORARI of Supreme Court. 

It will be done by copying portions of the document via application of highlights [using bold and background color – yellow to bring attention, red -when egregiously abhorrent] of select text and via our inline comments [in script on green background preceded by // ].

To help reader get a general idea about the case and the arguments, it would be also useful to view the following wiki pages:,_Inc.

Record of the Court by Scholar.Google.Com

473 U.S. 432 (1985)
No. 84-468.
Supreme Court of United States.
Argued March 18, 1985
Reargued April 23, 1985
Decided July 1, 1985

434*434 Earl Luna reargued the cause for petitioners. With him on the briefs were Robert T. Miller, Jr., and Mary Milford.
Renea Hicks reargued the cause for respondents. With him on the brief were Diane Shisk and Caryl Oberman.[*]

435*435 JUSTICE WHITE delivered the opinion of the Court.

A Texas city denied a special use permit for the operation of a group home for the mentally retarded, acting pursuant to a municipal zoning ordinance requiring permits for such homes. The Court of Appeals for the Fifth Circuit held that mental retardation is a “quasi-suspect” classification and that the ordinance violated the Equal Protection Clause because it did not substantially further an important governmental purpose. We hold that a lesser standard of scrutiny is appropriate, but conclude that under that standard the ordinance is invalid as applied in this case.


In July 1980, respondent Jan Hannah purchased a building at 201 Featherston Street in the city of Cleburne, Texas, with the intention of leasing it to Cleburne Living Center, Inc. (CLC),[1] for the operation of a group home for the mentally retarded. It was anticipated that the home would house 13 retarded men and women,

who would be under the constant supervision of CLC staff members.   // [highlight by reviewer]//

The house had four bedrooms and two baths, with a half bath to be added. CLC planned to comply with all applicable state and federal regulations.[2]

436*436 The city informed CLC that a special use permit would be required for the operation of a group home at the site, and CLC accordingly submitted a permit application. In response to a subsequent inquiry from CLC, the city explained that under the zoning regulations applicable to the site, a special use permit, renewable annually, was required for the construction of “[h]ospitals for the insane or feeble-minded, or alcoholic [sic] or drug addicts, or penal or correctional institutions.”[3] The city had determined that the proposed 437*437 group home should be classified as a “hospital for the feeble-minded.” After holding a public hearing on CLC’s application, the City Council voted 3 to 1 to deny a special use permit.[4]

CLC then filed suit in Federal District Court against the city and a number of its officials, alleging, inter alia, that the zoning ordinance was invalid on its face and as applied because it discriminated against the mentally retarded in violation of the equal protection rights of CLC and its potential residents. The District Court found that “[i]f the potential residents of the Featherston Street home were not mentally retarded, but the home was the same in all other respects, its use would be permitted under the city’s zoning ordinance,” and that the City Council’s decision “was motivated primarily by the fact that the residents of the home would be persons who are mentally retarded.” App. 93, 94. Even so, the District Court held the ordinance and its application constitutional. Concluding that no fundamental right was implicated and that mental retardation was neither a suspect nor a quasi-suspect classification, the court employed the minimum level of judicial scrutiny applicable to equal protection claims. The court deemed the ordinance, as written and applied, to be rationally related to the city’s legitimate interests in “the legal responsibility of CLC and its residents, . . . the safety and fears of residents in the adjoining neighborhood,” and the number of people to be housed in the home.[5] Id., at 103.

The Court of Appeals for the Fifth Circuit reversed, determining that mental retardation was a quasi-suspect classification and that it should assess the validity of the ordinance 438*438 under intermediate-level scrutiny. 726 F. 2d 191 (1984).

Because mental retardation was in fact relevant to many legislative actions, strict scrutiny was not appropriate.

// The said legislative relevance had been created in 1920s as a part of eugenics and societal cleansing  [comment by reviewer] //

But in light of the history of “unfair and often grotesque mistreatment” of the retarded, discrimination against them was “likely to reflect deep-seated prejudice.” Id., at 197. In addition, the mentally retarded lacked political power, and their condition was immutable.  The court considered heightened scrutiny to be particularly appropriate in this case, because the city’s ordinance withheld a benefit which, although not fundamental, was very important to the mentally retarded. Without group homes, the court stated, the retarded could never hope to integrate themselves into the community.[6] Applying the test that it considered appropriate, the court held that the ordinance was invalid on its face because it did not substantially further any important governmental interests. The Court of Appeals went on to hold that the ordinance was also invalid as applied.[7] Rehearing en banc was 439*439 denied with six judges dissenting in an opinion urging en banc consideration of the panel’s adoption of a heightened standard of review. We granted certiorari, 469 U. S. 1016 (1984).[8]


// this section is a prep for argumentation by Justice White in regard to Equal Protection applicability to “mentally retarded”.  We highlight below some important pronouncements and comment on it  [comment by reviewer] //

The Equal Protection Clause of the Fourteenth Amendment commands that no State shall “deny to any person within its jurisdiction the equal protection of the laws,” which is essentially a direction that all persons similarly situated should be treated alike. Plyler v. Doe, 457 U. S. 202, 216 (1982).

Section 5 of the Amendment empowers Congress to enforce this mandate, but absent controlling congressional direction, the courts have themselves devised standards for 440*440 determining the validity of state legislation or other official action that is challenged as denying equal protection.

// “Congress is limited under section 5 of the 14th amendment to enacting laws that prevent or remedy violations of rights already established by the supreme court. Because the court is the authoritative interpreter of the constitution, not congress.”
// Effectively one limits the other to remedy violations!  //

The general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest. Schweiker v. Wilson, 450 U. S. 221, 230 (1981); United States Railroad Retirement Board v. Fritz, 449 U. S. 166, 174-175 (1980); Vance v. Bradley, 440 U. S. 93, 97 (1979); New Orleans v. Dukes, 427 U. S. 297, 303 (1976). When social or economic legislation is at issue, the Equal Protection Clause allows the States wide latitude, United States Railroad Retirement Board v. Fritz, supra, at 174; New Orleans v. Dukes, supra, at 303,

and the Constitution presumes that even improvident decisions will eventually be rectified by the democratic processes.

// This is an unsubstantiated statement – the Constitution doesn’t presume that – not literally or otherwise //

The general rule gives way, however, when a statute classifies by race, alienage, or national origin.

These factors are so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy —  a view that those in the burdened class are not as worthy or deserving as others. 

// These factors were considered to be quite relevant until sufficient pressure from these groups [race, alienage, national origin] had forced the Judicial branch to see the said  ‘relevance’ as based on prejudice and antipathy! //

For these reasons and because such discrimination is unlikely to be soon rectified by legislative means, these laws are subjected to strict scrutiny

// In this particular case the Civil Rights Act of 1964 has already rectified  their rights and the Government has enforced them!  This is the actual reason for strict scrutiny //

and will be sustained only if they are suitably tailored to serve a compelling state interest. McLaughlin v. Florida, 379 U. S. 184, 192 (1964); Graham v. Richardson, 403 U. S. 365 (1971). Similar oversight by the courts is due when state laws impinge on personal rights protected by the Constitution. Kramer v. Union Free School District No. 15, 395 U. S. 621 (1969); Shapiro v. Thompson, 394 U. S. 618 (1969); Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535 (1942).

Legislative classifications based on gender also call for a heightened standard of review. That factor generally provides no sensible ground for differential treatment.

“[W]hat differentiates sex from such nonsuspect statutes as intelligence or physical disability . . . is that the sex characteristic 441*441 frequently bears no relation to ability to perform or contribute to society.” Frontiero v. Richardson, 411 U. S. 677, 686 (1973) (plurality opinion).

// “ability to perform or contribute to society” is not a criteria in the US Constitution as it regards the Equal Protection Clause or other matters!  
“To each according to their contribution” is a Soviet-Socialist construct that resulted in Gulags for great many classes of people deemed not-contributing!  It is a highly subjective and volatile quality. 
The history of the imposition of this viral requirement by Judiciary most likely takes root at the same foul springs and we intend to track it down //

Rather than resting on meaningful considerations, statutes distributing benefits and burdens between the sexes in different ways very likely reflect outmoded notions of the relative capabilities of men and women. A gender classification fails unless it is substantially related to a sufficiently important governmental interest. Mississippi University for Women v. Hogan, 458 U. S. 718 (1982); Craig v. Boren, 429 U. S. 190 (1976). Because illegitimacy is beyond the individual’s control and bears “no relation to the individual’s ability to participate in and contribute to society,” Mathews v. Lucas, 427 U. S. 495, 505 (1976), official discriminations resting on that characteristic are also subject to somewhat heightened review. Those restrictions “will survive equal protection scrutiny to the extent they are substantially related to a legitimate state interest.” Mills v. Habluetzel, 456 U. S. 91, 99 (1982).

We have declined, however, to extend heightened review to differential treatment based on age:

“While the treatment of the aged in this Nation has not been wholly free of discrimination, such persons, unlike, say, those who have been discriminated against on the basis of race or national origin,

have not experienced a `history of purposeful unequal treatment’ or been subjected to unique disabilities on the basis of stereo-typed characteristics not truly indicative of their abilities.” Massachusetts Board of Retirement v. Murgia, 427 U. S. 307, 313 (1976).

// we disagree – while an individual is not born into it – ‘aged’  is a group that had been stereo-typed and discriminated against [based on their wrinkles] specifically due to promotion of negative conceptions regarding age and infirmity in the modern society. 

The lesson of Murgia is that where individuals in the group affected by a law have distinguishing characteristics relevant to interests the State has the authority to implement,

// the only State’s interest relevant here should be the protection of these individuals – there are no other legitimate State interests here!
Notwithstanding  the special interests of parasitic industry  //

the courts have been very reluctant, as they should be in our federal system and with our respect for the separation of powers, to closely scrutinize legislative choices as to whether, how, and to what extent those interests should be 442*442 pursued. In such cases, the Equal Protection Clause requires only a rational means to serve a legitimate end.

// Historically the Courts and Congress had to be consistently pressured by the discriminated groups to give them their rights and not the so called “rational review”. Aged and infirm fail on these grounds. Shame on us! //


Against this background, we conclude for several reasons that the Court of Appeals erred in holding mental retardation a quasi-suspect classification calling for a more exacting standard of judicial review than is normally accorded economic and social legislation.

First, it is undeniable, and it is not argued otherwise here, that those who are mentally retarded have a reduced ability to cope with and function in the everyday world.

// Here on display is a far-reaching example of prejudice proclaimed from a position of power – advancing the notion of mental and moral differentiation of pre-Nazi era regarding abilities and moral character of those sought to be removed from the protection of the law.  

The ability of these “historically discriminated” people “to cope and function in the world” was quite exemplary until the advent of systemic targeting by Governmental eugenic policies of the past era!
We are yet to break free of it! //

// To note – Aborigine people were held to have a reduced ability to cope and function in the civilized world, and arguably the esteemed Judges would have a reduced ability to cope and function in the world of Aborigine people, as well as in the low income neighborhoods unless supported by and provided for by these people.  Pilgrims exhibited this reduced ability on arrival to this country.  “Mentally retarded” on the other hand were often a communal resource in time of war as reflected by numerous accounts  //

Nor are they all cut from the same pattern: as the testimony in this record indicates, they range from those whose disability is not immediately evident to those who must be constantly cared for.[9] They are thus different, immutably so, in relevant respects, and the States’ interest in dealing with and providing for them is plainly a legitimate one.

// Argumentation above is akin to arguing that African Americans don’t deserve strict scrutiny because they are not “all cut from the same pattern” – due to ranges in the shade of their skin varying from very dark to “not immediately evident”.  It is a deceptive piece of false derivatives from the first to the last word!
The argument’s purpose  is to put a claim that so classified “mentally retarded” people are too diverse and don’t constitute an uniform group – and exclude them on this bases from the Equal protection of the law! 
 “Constantly cared for” is another falsehood – none requires constant care and none receives it.  Neglect and persecution however is witnessed in abundance!
That “the States’ interest in dealing with and providing for them is plainly a legitimate one” is another falsehood.  The foremost legitimate and relevant States’ interest is above all in protecting people Freedom and Rights and not in support of special interests that perpetuate the infringement.

[10] How this large and diversified group is to be treated 443*443 under the law is a difficult and often a technical matter, very much a task for legislators guided by qualified professionals and not by the perhaps ill-informed opinions of the judiciary. Heightened scrutiny inevitably involves substantive judgments about legislative decisions, and we doubt that the predicate for such judicial oversight is present where the classification deals with mental retardation.

// This is just as difficult matter as was slavery and racial discrimination indeed!  The “we doubt” pronouncement has been used to avoid the Judicial responsibility in 1985.  It is time to review it! //

Second, the distinctive legislative response, both national and state, to the plight of those who are mentally retarded demonstrates not only that they have unique problems, but also that the lawmakers have been addressing their difficulties in a manner that belies a continuing antipathy or prejudice and a corresponding need for more intrusive oversight by the judiciary.

// The manner of legislative response [to Willowbrook debacle and other abuses] had unfortunately not belied a continuing antipathy, prejudice, and stigma!  In fact as it is seen below – the legislative response has left wide open loopholes to continue the discriminatory differentiation of  this population. //

Thus, the Federal Government has not only outlawed discrimination against the mentally retarded in federally funded programs, see § 504 of the Rehabilitation Act of 1973, 29 U. S. C. § 794, but it has also provided the retarded with the right to receive “appropriate treatment, services, and habilitation” in a setting that is “least restrictive of [their] personal liberty.” Developmental Disabilities Assistance and Bill of Rights Act, 42 U. S. C. §§ 6010(1), (2). In addition, the Government has conditioned federal education funds on a State’s assurance that retarded children will enjoy an education that, “to the maximum extent appropriate,” is integrated with that of nonmentally retarded children. Education of the Handicapped Act, 20 U. S. C. § 1412(5)(B). The Government has also facilitated the hiring of the mentally retarded into the federal civil service by exempting them from the requirement of competitive examination. 444*444 See 5 CFR § 213.3102(t) (1984). The State of Texas has similarly enacted legislation that acknowledges the special status of the mentally retarded by conferring certain rights upon them,

such as “the right to live in the least restrictive setting appropriate to [their] individual needs and abilities,” including “the right to live . . . in a group home.” Mentally Retarded Persons Act of 1977, Tex. Rev. Civ. Stat. Ann., Art. 5547-300, § 7 (Vernon Supp. 1985).[11]

// The Court lists these legislative Acts as an indication of the absence of prejudice – yet here it is on display – the far reaching invidious  restrictions – defining a right to be institutionalized ! 
What are the justifications for restrictions to their personal liberty and rights ? None is given here and none had been given by Legislators – except their all encompassing internalized prejudice!   //

Such legislation thus singling out the retarded for special treatment reflects the real and undeniable differences between the retarded and others. That a civilized and decent society expects and approves such legislation indicates that governmental consideration of those differences in the vast majority of situations is not only legitimate but also desirable.

// An interesting argument – look we are all on the same page!  However the “civilized and decent society has changed – “retarded” has become a foul word and it is time that society becomes aware of what is under the hood !  
“Not only legitimate but desirable” !!! //

It may be, as CLC contends, that legislation designed to benefit, rather than disadvantage, the retarded would generally withstand examination under a test of heightened scrutiny. See Brief for Respondents 38-41. The relevant inquiry, however, is whether heightened scrutiny is constitutionally mandated in the first instance. Even assuming that many of these laws could be shown to be substantially related to an important governmental purpose, merely requiring the legislature to justify its efforts in these terms may lead it to refrain from acting at all.

Much recent legislation intended to benefit the retarded also assumes the need for measures that might be perceived to disadvantage them.

// Not only perceived –  Much of the recent legislation has indeed disadvantaged and solidified the discrimination of  people classified with ASD and I/DD!  //

The Education of the Handicapped Act, for example, requires an “appropriate” education, not one that is equal in all respects 445*445 to the education of nonretarded children; clearly, admission to a class that exceeded the abilities of a retarded child would not be appropriate.[12] Similarly, the Developmental Disabilities Assistance Act and the Texas Act give the retarded the right to live only in the “least restrictive setting” appropriate to their abilities, implicitly assuming the need for at least some restrictions that would not be imposed on others.[13]

// Indeed – Legislation could not hide this from the Judiciary and not from us!  So here one points to another… // 

Especially given the wide variation in the abilities and needs of the retarded themselves, governmental bodies must have a certain amount of flexibility and freedom from judicial oversight in shaping and limiting their remedial efforts.

// Here is a conclusion massaged from combining two falsehoods //  

Third, the legislative response, which could hardly have occurred and survived without public support, negates any claim that the mentally retarded are politically powerless in the sense that they have no ability to attract the attention of the lawmakers. Any minority can be said to be powerless to assert direct control over the legislature, but if that were a criterion for higher level scrutiny by the courts, much economic and social legislation would now be suspect.

// Contrary to the above statement – the legislative response [as cited above by the Court] reaffirms that  mentally retarded are politically powerless! Even with the outcry about inhumane abuses  – the lawmakers have left a wide open door for implementation of  “lickerish discrimination” ! //

Fourth, if the large and amorphous class of the mentally retarded were deemed quasi-suspect for the reasons given by the Court of Appeals, it would be difficult to find a principled way to distinguish a variety of other groups who have perhaps immutable disabilities setting them off from others, who cannot themselves mandate the desired legislative responses, and who can claim some degree of prejudice from at least part of the public at large. One need mention in this respect only 446*446 the aging, the disabled, the mentally ill, and the infirm. We are reluctant to set out on that course, and we decline to do so.

// Indeed there are other groups that are discriminated, and as argued by the Court – not deserving either. The Case of ‘Mentally Retarded’ however is most virulent and most grotesque. This is where the Law must begin ! //

Doubtless, there have been and there will continue to be instances of discrimination against the retarded that are in fact invidious, and that are properly subject to judicial correction under constitutional norms. But the appropriate method of reaching such instances is not to create a new quasi-suspect classification and subject all governmental action based on that classification to more searching evaluation. Rather, we should look to the likelihood that governmental action premised on a particular classification is valid as a general matter, not merely to the specifics of the case before us.

Because mental retardation is a characteristic that the government may legitimately take into account in a wide range of decisions, and because both State and Federal Governments have recently committed themselves to assisting the retarded, we will not presume that any given legislative action, even one that disadvantages retarded individuals, is rooted in considerations that the Constitution will not tolerate.

// Here is the culmination of the Judicial prejudice derived from two falsehoods that were not substantiated except by the repetition and finger pointing – thus abrogating their responsibility by expressly stating that the Court would not presume that any legislative action of the state even discriminatory may be violating our Constitution ! // 

Our refusal to recognize the retarded as a quasi-suspect class does not leave them entirely unprotected from invidious discrimination. To withstand equal protection review, legislation that distinguishes between the mentally retarded and others must be rationally related to a legitimate governmental purpose. This standard, we believe, affords government the latitude necessary both to pursue policies designed to assist the retarded in realizing their full potential, and to freely and efficiently engage in activities that burden the retarded in what is essentially an incidental manner. The State may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational. See Zobel v. Williams, 457 U. S. 55, 61-63 (1982); United States Dept. of Agriculture v. Moreno, 413 U. S. 528, 535 (1973). Furthermore, some objectives — 447*447 such as “a bare . . . desire to harm a politically unpopular group,” id., at 534 — are not legitimate state interests. See also Zobel, supra, at 63. Beyond that, the mentally retarded, like others, have and retain their substantive constitutional rights in addition to the right to be treated equally by the law.

// Ending with hypocrisy – “substantive constitutional rights”  for people “who would live under the closely supervised and highly regulated conditions expressly provided for by state and federal law.”  //

451*451 JUSTICE STEVENS, with whom THE CHIEF JUSTICE joins, concurring.

// The statement quoted from his opinion below summarizes the philosophy of Justice Stevens of no need to elevated scrutiny even in view of ongoing persecution and discrimination. We just need to be rational, he says.
That sounds rational of course, but in our near past it has been also 
believed  rational to have slavery, and as this case shows it is still believed rational by many to keep disabled in institutions. 
Here Justice Stevens also alludes at “willingness and ability” – the moral and intellectual qualities of a person – promoting a modern approach to discrimination –  [never mind color of the skin or other physical characteristics]  – we’ll deny you on your moral and mental inferiority //

“The rational-basis test, properly understood, adequately explains why a law that deprives a person of the right to vote because his skin has a different pigmentation than that of other voters violates the Equal Protection Clause. It would be utterly irrational to limit the franchise on the basis of height or weight; it is equally invalid to limit it on the basis of skin color. None of these attributes has any bearing at all 453*453 on the citizen’s willingness or ability to exercise that civil right. We do not need to apply a special standard, or to apply “strict scrutiny,” or even “heightened scrutiny,” to decide such cases.”

Every law that places the mentally retarded in a special class is not presumptively irrational. The differences between mentally retarded persons and those with greater mental capacity are obviously relevant to certain legislative decisions. An impartial lawmaker — indeed, even a member of a class of persons defined as mentally retarded — could rationally vote in favor of a law providing funds for special education and special treatment for the mentally retarded. A mentally retarded person could also recognize that he is a member of a class that might need special supervision in some situations, both to protect himself and to protect others. Restrictions on his right to drive cars or to operate hazardous equipment might well seem rational even though they deprived him of employment opportunities and the kind of freedom of travel enjoyed by other citizens. “That a civilized and decent society expects and approves such legislation indicates that governmental consideration of those differences in the vast majority of situations is not only legitimate but also desirable.” Ante, at 444.

// To demonstrate where this logic leads we have replaced below – the ‘mentally retarded’  wordage with the equally offensive word used in the past for “African Americans”. We apologize here for using it – it is solely to demonstrate the repugnancy of what is written above and below //

Every law that places the Negro in a special class is not presumptively irrational. The differences between  Negropersons and those with greater mental capacity are obviously relevant to certain legislative decisions. An impartial lawmaker — indeed, even a member of a class of persons defined as Negros  — could rationally vote in favor of a law providing funds for special education and special treatment for the Negro. A Negro  person could also recognize that he is a member of a class that might need special supervision in some situations, both to protect himself and to protect others. Restrictions on his right to drive cars or to operate hazardous equipment might well seem rational even though they deprived him of employment opportunities and the kind of freedom of travel enjoyed by other citizens. “That a civilized and decent society expects and approves such legislation indicates that governmental consideration of those differences in the vast majority of situations is not only legitimate but also desirable.” Ante, at 444.

Accordingly, I join the opinion of the Court.


455B*455B JUSTICE MARSHALL, with whom JUSTICE BRENNAN and JUSTICE BLACKMUN join, concurring in the judgment in part and dissenting in part.

I have long believed the level of scrutiny employed in an equal protection case should vary with “the constitutional and societal importance of the interest adversely affected and the recognized invidiousness of the basis upon which the particular classification is drawn.” San Antonio Independent School District v. Rodriguez, 411 U. S. 1, 99 (1973) (MARSHALL, J., dissenting). See also Plyler v. Doe, 457 U. S. 202, 230-231 (1982) (MARSHALL, J., concurring); Dandridge v. Williams, 397 U. S. 471, 508 (1970) (MARSHALL, J., dissenting). When a zoning ordinance works to exclude the retarded from all residential districts in a community, these two considerations require that the ordinance be convincingly justified as substantially furthering legitimate and important purposes. Plyler, supra; Mississippi University for Women v. Hogan, 458 U. S. 718 (1982); Frontiero v. Richardson, 411 U. S. 677 (1973); Mills v. Habluetzel, 456 U. S. 91 (1982); see also Buchanan v. Warley, 245 U. S. 60 (1917).

First, the interest of the retarded in establishing group homes is substantial. The right to “establish a home” has long been cherished as one of the fundamental liberties embraced by the Due Process Clause. See Meyer v. Nebraska, 262 U. S. 390, 399 (1923). For retarded adults, this right means living together in group homes, for as deinstitutionalization has progressed, group homes have become the primary means by which retarded adults can enter life in the community. The District Court found as a matter of fact that

“[t]he availability of such a home in communities is an essential ingredient of normal living patterns for persons who are mentally retarded, and each factor that makes such group homes harder to establish operates to exclude persons who are mentally retarded from the community.” App. to Pet. for Cert. A-8.

Excluding group homes deprives the retarded of much of what makes for human freedom and fulfillment — the ability to form bonds and take part in the life of a community.[5]

Second, the mentally retarded have been subject to a “lengthy and tragic history,” University of California Regents v. Bakke, 438 U. S. 265, 303 (1978) (opinion of POWELL, J.), of segregation and discrimination that can only be called grotesque. During much of the 19th century, mental retardation was viewed as neither curable nor dangerous and the retarded were largely left to their own devices.[6] By the latter part of the century and during the first decades of the new one, however, social views of the retarded underwent a radical transformation. Fueled by the rising tide of Social Darwinism, the “science” of eugenics, and the extreme 462*462 xenophobia of those years,[7] leading medical authorities and others began to portray the “feebleminded” as a “menace to society and civilization . . . responsible in a large degree for many, if not all, of our social problems.”[8] A regime of statemandated segregation and degradation soon emerged that in its virulence and bigotry rivaled, and indeed paralleled, the worst excesses of Jim Crow. Massive custodial institutions were built to warehouse the retarded for life; the aim was to halt reproduction of the retarded and “nearly extinguish their race.”[9] Retarded children were categorically excluded from 463*463 public schools, based on the false stereotype that all were ineducable and on the purported need to protect nonretarded children from them.[10] State laws deemed the retarded “unfit for citizenship.”[11]

Segregation was accompanied by eugenic marriage and sterilization laws that extinguished for the retarded one of the “basic civil rights of man” — the right to marry and procreate. Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535, 541 (1942). Marriages of the retarded were made, and in some States continue to be, not only voidable but also often a criminal offense.[12] The purpose of such limitations, which frequently applied only to women of child-bearing age, was unabashedly eugenic: to prevent the retarded from propagating.[13] To assure this end, 29 States enacted compulsory eugenic sterilization laws between 1907 and 1931. J. Landman, Human Sterilization 302-303 (1932). See Buck v. Bell, 274 U. S. 200, 207 (1927) (Holmes, J.); cf. Plessy v. Ferguson, 464*464 163 U. S. 537 (1896); Bradwell v. Illinois, 16 Wall. 130, 141 (1873) (Bradley, J., concurring in judgment).

Prejudice, once let loose, is not easily cabined. See University of California Regents v. Bakke, 438 U. S., at 395 (opinion of MARSHALL, J.). As of 1979, most States still categorically disqualified “idiots” from voting, without regard to individual capacity and with discretion to exclude left in the hands of low-level election officials.[14] Not until Congress enacted the Education of the Handicapped Act, 84 Stat. 175, as amended, 20 U. S. C. § 1400 et seq., were “the door[s] of public education” opened wide to handicapped children. Hendrick Hudson District Board of Education v. Rowley, 458 U. S. 176, 192 (1982).[15] But most important, lengthy and continuing isolation of the retarded has perpetuated the ignorance, irrational fears, and stereotyping that long have plagued them.[16]

In light of the importance of the interest at stake and the history of discrimination the retarded have suffered, the Equal Protection Clause requires us to do more than review the distinctions drawn by Cleburne’s zoning ordinance as if they appeared in a taxing statute or in economic or commercial legislation.[17] The searching scrutiny I would give to restrictions 465*465 on the ability of the retarded to establish community group homes leads me to conclude that Cleburne’s vague generalizations for classifying the “feeble-minded” with drug addicts, alcoholics, and the insane, and excluding them where the elderly, the ill, the boarder, and the transient are allowed, are not substantial or important enough to overcome the suspicion that the ordinance rests on impermissible assumptions or outmoded and perhaps invidious stereotypes. See Plyler v. Doe, 457 U. S. 202 (1982); Roberts v. United States Jaycees, 468 U. S. 609 (1984); Mississippi University for Women v. Hogan, 458 U. S. 718 (1982); Mills v. Habluetzel, 456 U. S. 91 (1982).

// The dissenting opinion of Justice Marshall made in 1985 is what we believe reflects the state of societal evolution that we as society have attained in our era. It delivers many arguments that further our claim of the need for a review of this case. The time we believe has come for the Judicial branch to take responsibility ! //

Our Concluding remarks

The Cleburne v. Cleburne has carved inroads for the care-taking industry to move their operations into communities.  This was bolstered in 1999 by  Olmstead v. L.C. which reinforced yet curtailed the “rights of individuals with mental disabilities to live in the community rather than in institutions”. 

The effects of these rulings and legislative acts while opening path to communal life however were not always of the benefit to the “individuals with mental disabilities”.  States that attempted to transition from institutional settings experienced alarming rates of increased mortality. Various studies show increased mortality rates {up to 47%, due to suicides and pneumonia}.  See deinstitutionalization.

We see this as a logical consequence of the limiting exemptions of these rulings and legislative acts. Neither had given rights to those on whose ‘behalf’ they were supposedly legislating and making rulings. They have remained the powerless inmates. The settings of communal homes with their strict supervision were more difficult to inspect and often were worse than larger institutions – medicating of people has increased as an instrument of control and often people were constrained to smaller spaces without ability to go outside – hence the pneumonia and suicides!

What is also very important to Note is that “Cleburne Inc. was representing their own business interests. Group homes have not brought freedom and rights to majority of so called ‘mentally retarded’ people.  None of the Justices have acknowledged that – Courts must hear THEIR voices!

The fate of 12 inmates of Cleburne Inc. in the city of Cleburne is unknown to us, and nobody seemed to care and inquire…