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

April 18, 1985|PHILIP HAGER | Times Staff Writer

WASHINGTON — 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

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