The short of it is that requiring the permit in this case appears to us to rest on an irrational prejudice against the mentally retarded.
—Cleburne (1985)
Cleburne,1 decided a dozen years after Moreno, advanced the provocative, but undertheorized, analysis in Moreno. It considered the role of indirect bias—that is, the implications of legislators, not acting (as in Moreno) based on their own subjective dislike, but instead in response to such feelings expressed by their constituents. It also addressed, at least implicitly, what legislators’ response to such biases means for the fate of more legitimate reasons offered in defense of the challenged discrimination. Finally, it examined these questions against a backdrop where the Court was presented with—and seems to have given at least some credence to—an argument that the group suffering from the challenged discrimination was one that merited heightened judicial protection across the board. For these reasons, Cleburne merits close attention.
In 1980, Jan Hannah purchased the house at 201 Featherston Street, in Cleburne, Texas, a town twenty-five miles south of Fort Worth. By that time Hannah had been working with intellectually disabled persons for over a decade. She intended the Featherston house to serve as a group home for thirteen mildly to moderately intellectually disabled persons,2 under twenty-four-hour supervision.
The neighbors were not pleased. One of them was reported to have said, “The older women [in the neighborhood] are fearful of this thing. . . . [T]hey don’t want these people around.” The principal of Cleburne Junior High, located across the street, had different concerns: “Seventh- and eighth-grade kids may not always be the kindest people,” he said. He continued, “It’s a needed program. But the question is, is it needed at this site?” One neighbor seems to have summed up the attitude when he said. “We’ve lived here all our lives and we don’t see why we should be subjected to this.”3
The neighbors soon found allies. Cleburne’s zoning ordinance allowed multi-person residences in the area encompassing the Featherston property; however, it excluded from that authorization “hospitals, sanitariums, nursing homes or homes . . . for the insane or feeble-minded or alcoholics or drug addicts” unless a special-use permit was obtained. In August 1980, the town zoning board denied Hannah’s request for such a permit, and two months later the city council did so as well.
The zoning commission meeting was, according to press accounts, “stormy.”4 (And apparently of great interest to the community: The local newspaper carried accounts of that meeting and the subsequent city council meeting under banner headlines at the top of page 1.)5 Almost a hundred persons attended the meeting.6 Residents presented the zoning board with a petition opposing the home signed by twenty-nine residents. One resident stated, “I’m a coward. It’s not a very pleasant thought to go to bed and know there’s 13 demented, self-afflicted people across the street from you.” When its own turn came to consider this issue, the city council, likely aware of the emotional debate before the zoning commission, limited public comment before voting 3–1 to deny the permit, citing concerns about traffic, overcrowding of the house, and the safe evacuation of the would-be residents given the home’s location on a five-hundred-year floodplain. Reflecting on the controversy, the managing editor of the local newspaper (who wrote the articles covering the issue) concluded that the town had good reasons for denying the permit. However, he continued, “The rationale began forming after the emotional reactions.”7
Of the three council members voting against the permit, one of them had served on the board of directors of a school for the intellectually disabled and one of them had an intellectually disabled grandchild. Regardless of any such personal sympathies, the city’s decision still stung. As one of the would-be residents of the home remarked, “It hurts knowing the people in my hometown don’t want me living there. It hurts real bad.”8
In Cleburne the Court unanimously agreed that the city’s actions violated the equal protection rights of the intellectually disabled. But it split badly on its reasoning. Writing for six Justices, Justice Byron White began by considering, and rejecting, the conclusion reached by the appellate court—that the intellectually disabled constituted a “quasi-suspect class” and thus merited heightened judicial scrutiny of its claims of unconstitutional discrimination. The Court’s rejection of that conclusion meant that discrimination against the intellectually disabled received only rational basis review—as we have seen, the most deferential level of equal protection scrutiny. Nevertheless, the majority concluded that the city’s decision failed even that low level of review. In particular, it concluded that the city’s decision rested on “irrational prejudice” against that group. In making that determination, the Court appeared to rely heavily on the city’s own argument that local residents had expressed to the city council their fear and apparent dislike of the would-be occupants of the group home.
The remaining three justices agreed with the Court’s decision striking down the city’s zoning decision. But that bloc, speaking through Justice Thurgood Marshall, argued that discrimination based on intellectual disability should be subject to heightened review, especially in cases, like Cleburne, that implicated important interests such as the right to establish a home.9 But that was not the end of the justices’ disagreement. Two justices in the majority concurred separately, to express doubt about the entire enterprise of courts differentiating their scrutiny of different types of discrimination.10 Thus, the Court’s core analysis—its determination that the intellectually disabled did not merit heightened scrutiny and its subsequent determination that the city’s conduct nevertheless violated equal protection—was fully endorsed only by four Justices.
Why this fracturing? Part of the reason was the oddity of the Court’s sequencing of its analysis—its rejection of heightened scrutiny for the intellectually disabled, followed by its conclusion that the city’s action nevertheless failed lower-level, rational basis scrutiny. As Justice Marshall asked in his concurring opinion, why did the Court need to perform the first of those inquiries if it was going to find that, regardless of its outcome, the city failed to satisfy the default, rational basis, level of review? This result may well have been the result of happenstance: The justices’ own records reveal that originally the Court was going to stop its analysis with the suspect class question and send the case back to the lower courts to apply the rational basis standard. Only later in their deliberations did the Court resolve to decide that latter question itself, but by that time at least a few of the justices had become entrenched in their approval of the Court’s suspect class analysis and did not wish to excise it from the majority opinion.11 But regardless of how the Court got there, the fact remains that it arrived at an odd place: first rejecting heightened scrutiny of the discrimination at issue, but then essentially deciding that that conclusion did not matter because the discrimination failed even a lower level of judicial scrutiny.
That latter result—the city losing under rational basis review—also raised its own questions. Such review is typically quite deferential—indeed, in addition to requiring only that the government action have a rational connection to a legitimate government interest, it also usually requires the plaintiff to disprove the existence of any such connection. That shifting of the burden of proof is usually fatal to plaintiffs raising equal protection claims. Yet in Cleburne, the Court applied a more stringent variety of rational basis review. It discounted the city’s legitimate-sounding concerns about evacuating the group home during a flood; more generally, the Court noted the lack of any evidence in the record supporting a rational justification for the city’s action. These two features of Justice White’s opinions encapsulate the Court’s deviation from standard-issue rational basis review: Under such review, essentially any legitimate-sounding justification will serve to validate the challenged discrimination, and the Court will not require actual evidence in the record proving that justification but, instead, will require the challenger to conclusively disprove it. In stark contrast, in Cleburne the Court did not accept that the city might have been motivated by the legitimate justifications it proffered,12 insisting that such justifications be proven rather than merely hypothesized.
These two oddities—the Court’s decision to lead off with a suspect class analysis that Justice Marshall criticized as gratuitous, and its application of unusually searching review under the rational basis standard—provide us with an entry point for appreciating Cleburne’s contribution to the Court’s evolving animus doctrine. Let’s take them in opposite order, beginning with the Court’s application of the rational basis standard. The Court began that application by noting the city’s argument about local residents’ fear of the intellectually disabled persons who would have occupied the group home. The Court pointed out that such negative attitudes would not have justified the residents in directly making the zoning decision themselves—for example, by referendum—and concluded that the city council’s apparent acquiescence to those attitudes was similarly unconstitutional. Thus, the Court extended its analysis in Moreno, in which the Court suspected legislative animus, to a context in which it suspected legislative acquiescence to constituent animus.
In one sense this was not an extension at all. A year before Cleburne the Court had struck down the decision of a family law judge in a divorce case to award child custody based on social disapproval of the interracial marriage into which one of the divorcing parents had entered. In that case, Palmore v. Sidoti, the Court famously stated that “[p]rivate biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.”13 Palmore, however, dealt with private racial biases. Cleburne, by applying Palmore to a case of non-suspect discrimination, extended and generalized that prohibition.
But what about the decision that intellectual disability discrimination is non-suspect? Recall Justice Marshall’s complaint that that determination was superfluous. On its face, his objection seems well founded: If the Court thought the city council’s action violated rational basis review, why did it go through the effort of rejecting the plaintiffs’ claim that intellectual disability discrimination merited more rigorous judicial review? As he put it, wasn’t the Court’s approach a case of “two for the price of one” decision making? While “two for the price of one” is a bargain at the supermarket, deciding two legal questions when only one is necessary to decide the case is not; indeed, the Court typically stresses that it decides only the questions necessary to resolve the case in front of it. So why did Justice White begin his opinion with a suspect class analysis that turned out to be superfluous?
As noted earlier, this sequencing may have derived from the evolution of the Court’s decisional process—in particular, the desire of some justices to use Cleburne as a vehicle to limit the groups that enjoy suspect class status, regardless of whether the city’s permit denial failed even rational basis review. But is there anything about the Court’s suspect class analysis that may have influenced its seemingly distinct decision that the city’s action failed rational basis review? Perhaps. Recall that Chapter 1 concluded with a brief explanation of the concept of a “suspect class.” Suspect class analysis is an approach to equal protection that seeks to determine whether a particular species of classification—for example, on the basis of race, sex, or, as in Cleburne, intellectual disability—is so inherently problematic that courts are justified in being skeptical of (and thus scrutinizing carefully) every instance of such discrimination.
As Chapter 1 noted, this method of equal protection analysis arose from a famous footnote in an otherwise-insignificant case from 1938, United States v. Carolene Products,14 in which the Court observed, among other things, that “prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.” Eventually, the concepts in that phrase—“prejudice” “against discrete and insular minorities,” and political process dysfunction—came to be encapsulated in a three-part test for determining whether discrimination against a particular group was suspect, thus justifying “more searching judicial inquiry.” While expressed differently in different cases, for our purposes that test can be expressed as three inquiries: (1) Did the group in question suffer from a history of discrimination? (2) Is the trait that marks that group one that is immutable (that is, fundamentally unchangeable) and irrelevant to one’s ability to contribute to society? and (3) Is the group politically powerless?
Suspect class analysis—what it is, how courts apply it, and whether it makes sense—is a far bigger topic than we can discuss here, in the discrete context of Cleburne’s application of that analysis. For our purposes, though, what is striking about Cleburne’s application is that at times it appeared to concede that the intellectually disabled satisfied at least some of the standard criteria. Not all of them, to be sure—the Court insisted that the intellectually disabled were “different . . . in relevant respects” from mainstream society and argued that society’s provision of special education and other measures for their benefit “belies a continuing antipathy or prejudice” toward that group. Nevertheless, the Court’s final justification for denying the intellectually disabled suspect class status appeared to concede that those persons did exhibit at least some indicia of a suspect class:
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 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.15
This quotation suggests that, in fact, the intellectually disabled may possess some of the traits marking a suspect class. Indeed, they may share such traits—“immutable disabilities,” an inability to “mandate the desired legislative responses,” and “some degree of prejudice from at least part of the public at large”—with many other groups. According to this last part of the Court’s suspect class analysis, it is exactly the widely shared nature of those phenomena, and thus courts’ inability to meaningfully explain why some groups experiencing these traits should be deemed suspect and others not, that justifies denying that status to the intellectually disabled. And it was only then that the Court started looking (unusually carefully, it turns out) for animus.
But what is the connection? What does any of this have to do with animus? It is at least possible that the balance of the Court’s analysis in Cleburne—in particular, its unusually careful scrutiny of the government’s justifications for its actions—reflected its sense that something might be amiss with intellectual disability discrimination. Either the case for suspect class status was not fully made, or, as suggested by the quotation above, the case was made, but the Court was nervous about its ability to handle analogous claims that might be brought by other, similarly situated, groups. But either way, the case was at least partially made—that is, the intellectually disabled at least provided a partially convincing case that it was often the victim of unconstitutional discrimination.
If we understand the first part of the Court’s opinion—the part where it considered, but rejected, suspect class status for the intellectually disabled—as sketching a picture in which that group was at least potentially at risk for unconstitutional discrimination, then the Court’s unusually careful search for animus in the second part of its opinion becomes more comprehensible. On this understanding, the intellectually disabled convinced the Court that there was at least some reason to worry, at least some of the time, when that group was subject to disparate treatment. That argument may have simply fallen short, or, again as suggested by the paragraph quoted earlier, the Court may have simply concluded that courts could not competently apply heightened scrutiny in every situation in which the plaintiffs’ analysis would have logically called for it.16
But if wholesale skeptical review of such classifications was inappropriate, then perhaps retail, or case-by-case, skepticism would be called for. But in which cases? Cleburne suggests two related answers. First, such skepticism is surely called for if, as in Cleburne, the government defendant “outs itself” by explicitly relying on private party dislike of the burdened group. Second, such skepticism may be appropriate if, again as in Cleburne, the background of the government’s action lies within a constitutional “danger zone.” In Cleburne itself, that danger zone existed because the victims of the government action—the intellectually disabled—appeared to have gone some way toward proving that they were a suspect class. To be sure, a court may not wish to accord heightened scrutiny to every decision falling within that danger zone—indeed, if it did, then it would simply declare the group a suspect class. But the proximity of a challenged decision to that danger zone might buttress the justification for heightened review when the particular context—here, the city’s explicit embrace of the constituents’ fear and dislike—independently justifies such careful scrutiny.
Cleburne adds two components to our understanding of animus. First, the city’s reliance on private attitudes that, if expressed by the governmental decision maker itself, would have quickly and explicitly condemned its action, similarly condemned the city council’s more indirect motivations. As the Court explained in both Cleburne and Palmore (the child custody/interracial marriage case from the year before), a governmental decision maker’s reliance on private biases tars the challenged decision with those same biases. When such biases motivate government action, they become unconstitutional.17
Second, when discrimination falls on a group whose historical background suggests that it may frequently fall victim to unconstitutional discrimination, Cleburne implies that courts are justified in examining such discrimination more carefully. Normally, this heightened judicial review takes the form of suspect class status. But in a case like Cleburne, where the Court expressed concern about courts’ ability to perform such review across the board to every case of intellectual disability discrimination, heightened judicial review may be reserved for special situations. Cleburne itself presented such a special situation because the city cited an unconstitutional motivation (constituent dislike of the group) for its decision. Of course, that justification is inadmissible, without any extra-careful scrutiny. But the city’s reliance on that motivation perhaps justified more careful review even of the city’s legitimate claimed justifications, such as its asserted flood evacuation concern.
Thus, perhaps Justice Marshall was too hasty when he accused the Court of gratuitously deciding the suspect class issue before striking the city’s action down on rational basis grounds. Perhaps that previous decision was necessary to the latter one—not explicitly, but by creating the backdrop justifying more stringent review under the ostensibly deferential rational basis standard. On this theory, the Court’s ultimate condemnation of the city’s action as grounded in animus was aided, or prompted, by the groundwork it did earlier in the opinion—even if the Court did not take these steps fully consciously.18
Animus, then, might be more susceptible to judicial detection when a group has in fact suffered from discrimination in the past, when that discrimination is based on a factor that is immutable, and when that group continues to suffer from a lack of political power—even when a court is unwilling to connect those dots and explicitly deem that group a suspect class. Part II will connect those dots in a slightly different way. When it does, we will see that the emerging picture points in a surprising direction, but one that has close affinity to well-established equal protection law.