Mental Retardation and the Constitution
MENTAL RETARDATION AND THE CONSTITUTION
The Supreme Court first addressed the constitutional status of mentally retarded people in buck v. bell (1927). In an opinion by Justice oliver wendell holmes, the Court upheld a state statute authorizing compulsory sterilization of "mental defectives." In dismissing the claim that this imposition wrongly discriminated against retarded people and thereby denied them equal protection under the fourteenth amendment, Holmes appeared to invoke "minimal scrutiny" (as it was later termed), holding that the legislature might reasonably find retardation both inheritable and socially harmful. It was not until the 1970s that courts took a different, more protective stance toward retarded people. In so doing, they challenged the social attitudes of fear and aversion that lay beneath not only sterilization laws but also the general state policy, dating from the late nineteenth century, of excluding retarded people from community facilities (such as public schools) and consigning them to large, geographically isolated residential institutions.
The modern decisions involved two constitutional approaches. The first approach was to recognize a constitutional "right to treatment" for residents of state institutions. This right was initially formulated in 1971 when a federal district court held that brutal custodial conditions in an Alabama institution must be remedied by intensive educational and treatment programs conducted by new cadres of professionally qualified staff. In Youngberg v. Romeo (1982) the Supreme Court effectively endorsed this constitutional holding, deriving as a proposition of substantive due process that, although the state was not required to offer any services to retarded people, if the state chose to provide residential facilities, then those facilities must meet certain minimal standards.
The second constitutional approach was initially formulated in 1972, when a federal district court overturned a state statute excluding retarded children from public schools on the ground that they were "ineducable." The court appeared to conclude that all retarded people were educable to some degree. This holding was quickly adopted by other federal courts to overturn similar state statutes and, moreover, was endorsed by Congress in the education of all handicapped children act (1975) requiring education of all children, no matter how severely impaired, as a condition on federal funding of public schools.
These two constitutional approaches of substantive due process and equal protection analysis were blended by a 1977 district court ruling that a state institution for the retarded must be wholly closed and its residents moved to small-scale community homes on the grounds that the "right to treatment" could not be effectively protected in any large, isolated institutional setting and that, like racial segregation, separation of retarded people from contact with mentally normal people was invidious discrimination. a congressional act of 1975 also indicated preference for community over institutional retardation facilities; but the Supreme Court, in pennhurst state school v. halderman (1981) without addressing the initial constitutional ruling, held that Congress had spoken only with "hortatory" rather than mandatory intention.
In 1985 the Supreme Court finally did address the question whether mentally retarded people warranted specially protected constitutional status, but its answer was ambiguous. The specific issue in cleburne v. cleburne living center (1985) was the validity of a local zoning ordinance that specifically excluded group residences for "feeble-minded" people, even though fraternity and sorority houses, dormitories, and nursing homes for "convalescents or aged" people were explicitly permitted. The Fifth Circuit overturned the ordinance, citing the immutability of retardation, its stigmatized social history (as evidenced by sterilization laws based on spurious scientific findings and by brutalizing, isolated institutional residences), and the political vulnerability of retarded people. Because retardation could be relevant to some state classifications such as school programming or employment eligibility, however, the court found that it was more like gender than like race, a "quasi-suspect" rather than a suspect classification. Applying intermediate scrutiny, the court found insufficient justification for the zoning exclusion.
The Supreme Court declined to follow this analysis. It concluded that retardation classifications warranted no special judicial scrutiny for several reasons: the legitimate relevance of retardation for some classificatory purposes, the nonjudicial expertise seemingly required to evaluate such purposes, and the political strength of retardation advocates as evidenced by the 1975 congressional acts (notwithstanding that Congress had also acted against race and gender discrimination in recent decades). The Court nonetheless invalidated the zoning ordinance on the ground that it was based merely on "vague, undifferentiated fears" about retarded people. This rationale does not readily fit the conventional conception of "minimal scrutiny" equal protection analysis, given that fears regarding the irrationality and uncontrollability of retarded people have some plausible claim to factuality, even though this claim is unreliably documented and inapplicable to most retarded people.
The Court's invalidation of the zoning ordinance in Cleburne must thus rest on an unacknowledged premise, either that minimal scrutiny equal protection analysis (as applied to all state classifications) now requires more clearly demonstrated reasonableness than has heretofore been demanded or that retarded people do warrant some degree of special judicial protection to ensure that differential classifications of them have factual bases beyond "vague, undifferentiated fears."
Robert A. Burt
Burt, Robert A. 1985 Pennhurst: A Parable. Pages 265–364 in Robert Mnookin, ed., In the Interest of Children. New York: W. H. Freeman.
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