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Abstract

The Equal Protection Clause of the Fourteenth Amendment provides a constitutional check on state governments when a state statute or action classifies a group of individuals based on certain characteristics. Courts typically scrutinize a discriminatory state statute based on the type of class that it discriminates against, weighing the statute against the government interest and the statute’s relation to the asserted government interest.

In City of Cleburne v. Cleburne Living Center, the United States Supreme Court applied rational basis review to a city ordinance that discriminated based on mental disabilities. Courts following Cleburne have used its rationale to apply a lower, rational basis standard of review to both physical and mental disabilities. This is despite the fact that the Americans with Disabilities Act (ADA) provides protections to the disabled by requiring state and local governments to implement “reasonable accommodations,” the purpose of which is to allow the disabled to participate to the same degree as those who are not disabled. Yet, despite Congress’s statutory mandate, the Equal Protection Clause only requires a rational basis review of state statutes that discriminate based on disabilities. The Court’s decision in Board of Trustees of the University of Alabama v. Garrett, decided after Congress passed the ADA, followed the rationale of Cleburne and affirmed its reasoning. In Garrett, the Court again relied on Cleburne’s denial of heightened scrutiny to the disabled.

This Comment argues that the Supreme Court should overturn or limit Cleburne. This is because Cleburne is inconsistent with the policy underlying the ADA. The broad protection of disabilities afforded by the ADA conflicts with the Court’s application of rational basis review to equal protection disability claims. Additionally, the Supreme Court has opined that courts should not decide broader constitutional issues than are necessary to decide the rights of the specific parties before the Court. In Cleburne, the Court did not have to make a broad determination on what level of scrutiny to apply to the disabled because the City of Cleburne’s ordinance did not meet any level of scrutiny.

Alternatively, the Court should at least limit Cleburne’s holding to just mental disabilities. In Cleburne, one of the Court’s predominant concerns with extending heightened scrutiny to the mentally disabled was the difficulty of identifying and understanding mental disabilities, being that they are large, amorphous, and often difficult to define as a class. The Garrett Court alluded to that same concern—that mental disabilities are too diverse, difficult to understand, and difficult to define for equal protection purposes.

Limiting Cleburne’s holding to mental disabilities alone would alleviate this concern of definitional vagueness. Physical disabilities are easier to identify and diagnose because of their visible signs and manifestations, thus making the class easier to define for purposes of the Equal Protection Clause. Limiting Cleburne to mental disabilities would also further the Court’s principle of deciding constitutional questions as narrowly as possible. In light of the advances in technology aiding physical disabilities, and the fact that modern job requirements focus more on cognitive abilities rather than physical skills, the argument that the government has an interest in discriminating against physical disabilities based on a reduced capacity to participate in society is diminished.

If the Court overturns, or at the very least limits, Cleburne, statutes that classify individuals based on physical disabilities should receive heightened scrutiny. Physical disabilities should either be recognized as a suspect class and receive strict scrutiny or at least be recognized as a quasi-suspect class and receive intermediate scrutiny. Overall, the Court must recognize the history and pattern of discrimination against the disabled and apply heightened scrutiny to Equal Protection claims by the physically disabled. Congress has spoken on the issue of treatment of the disabled by passing the ADA and has made specific legislative findings regarding widespread societal discrimination against the disabled. Although the ADA is an avenue of legal protection for the disabled, applying heightened scrutiny to statutes that discriminate against the physically disabled would provide them additional constitutional protection in instances when the ADA is inadequate to protect their rights.

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