Cleburne Living Center, Inc. v. City of Cleburne, Texas

Decision Date05 March 1984
Docket NumberNo. 82-1565,82-1565
Citation726 F.2d 191
PartiesCLEBURNE LIVING CENTER, INC., et al., Plaintiffs-Appellants, v. CITY OF CLEBURNE, TEXAS, et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

Renea Hicks, Advocacy, Inc., Austin, Tex., for plaintiffs-appellants.

Earl Luna, Dallas, Tex., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Texas.

Before CHARLES CLARK, Chief Judge, GOLDBERG and POLITZ, Circuit Judges.

GOLDBERG, Circuit Judge:

The segregation of one group from the rest of society has been the historical benchmark of unfair discrimination in this country. Such segregation perpetuates false stereotypes about the exiled group and leads to a virtual caste system built on misconceptions. Thus, blacks were unable to disprove racist stereotypes so long as they were excluded from white neighborhoods and their children were isolated in segregated schools.

Moreover, the effects of such segregation are especially pernicious when the outcast group lacks the political power to resist unfair categorization. Courts have carefully scrutinized legislation that discriminates against politically impotent groups, for under those circumstances the danger is great that the statute will reflect and enshrine untrue stereotypes.

In the present case, we are faced with the isolation of just such a group--the mentally retarded, i.e. persons who possess certain learning disorders 1 but who are to be distinguished from the "mentally ill." 2 A zoning ordinance of Cleburne, Texas, excludes mental retardates' group homes from the permitted uses in the "apartment house district." The owners of a proposed group home challenged the ordinance under the Federal Revenue Sharing Act and the Equal Protection Clause of the Fourteenth Amendment. We reject the Revenue Sharing Act claim, because zoning was not a "program or activity" receiving federal funds. In evaluating the Equal Protection claim, we hold that mental retardates constitute a "quasi-suspect" class; and, therefore, we test the ordinance according to the "intermediate" level of scrutiny established by the Supreme Court. Because the city has failed to prove that the ordinance substantially furthers a significant governmental interest, we hold that the ordinance violates the Equal Protection Clause.


In July, 1980, Jan Hannah purchased a house at 201 Featherston Street in Cleburne, Texas. Hannah is the Vice President and part-owner of Cleburne Living Centers, Inc. ("CLC"), a Texas corporation organized for the purpose of establishing and operating supervised group homes for the mentally retarded. Hannah bought the Featherston house for the purpose of leasing it to CLC for the operation of a group home, classified as a Level I Intermediate Care Facility.

The home would house thirteen men and women who are mildly or moderately retarded. They would receive twenty-four hour supervision from CLC staff members, working eight-hour shifts. In addition to handling some cooking and cleaning, the staff would work with the mentally retarded residents to train them in such skills as "kitchen management, maintenance, personal budgeting, meat preparation, academics related to independent living (such as how to read classified advertisements for jobs and housing), and the use and enjoyment of leisure time activities." 3 An interdisciplinary team of staff workers would prepare an individualized program for each resident, based on his or her particular needs. The residents would have jobs in the community and in a work activity center. They would probably not have private cars. Their stay at the home would be voluntary, and the length of the stay indeterminate.

As a Level I Intermediate Care Facility, the Featherston home would be subject to extensive regulations and guidelines established and administered by the United States Department of Health and Human Resources, the Texas Department of Human Resources, the Texas Department of Mental Health and Mental Retardation, and the Texas Department of Health. CLC plans to comply with all applicable and valid statutes, regulations, codes, and ordinances. Cleburne, supra note 3, at 6, Finding 20.

For mentally retarded persons living in the 1980's, the existence of group homes is critical to assimilation into the normal culture. As the trial court found,

Group homes currently are the principal community living alternatives for persons who are mentally retarded. The 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.

Cleburne Living Center v. City of Cleburne, supra note 3, at 9, Finding 30. At present, there are no group homes or hospitals for the mentally retarded in Cleburne. One is located in Keene, Texas, approximately 15 minutes by automobile from Cleburne.


Section 8 of Cleburne's zoning ordinance lists the permitted uses in a district zoned R-3:

1. Any use permitted in District R-2.

2. Apartment houses, or multiple dwellings.

3. Boarding and lodging houses.

4. Fraternity or sorority houses and dormitories.

5. Apartment hotels.

6. Hospitals, sanitariums, nursing homes or homes for convalescents or aged,other than for the insane or feeble-minded or alcoholics or drug addicts.

7. Private clubs or fraternal orders, except those whose chief activity is carried on as a business.

8. Philanthropic or eleemosynary institutions, other than penal institutions.

9. Accessory uses customarily incident to any of the above uses....

Id. at 4, Finding 12 (emphasis added).

Section 16, subdivision 9, of the same ordinance requires that special use permits be obtained for "hospitals for the insane or feeble-minded, or alcoholic or drug addicts, or penal or correctional institutions" that are to be operated anywhere in the city. Id. at 5, Finding 13 (emphasis added). Because the Featherston house is located in an R-3 zone and, more generally, because it is located anywhere within Cleburne, its use as a group home is not automatically permitted but requires a special use permit from the Cleburne City Council. Under the zoning ordinance, each special use permit is valid for only one year; so the owners of the Featherston house would have to reapply year after year.


On July 28, 1980, Hannah applied for a special use permit. The Cleburne Planning and Zoning Commission held a hearing and denied the permit. On October 14, 1980, the City Council of Cleburne held a public hearing on the permit application and again voted (3-1) to deny the permit. The Council members considered the following factors:

1. the attitude of a majority of owners of property located within two hundred (200) feet of 201 Featherston;

2. the location of a junior high school across the street from 201 Featherston;

3. concern for the fears of elderly residents of the neighborhood;

4. the size of the home and the number of people to be housed;

5. concern over the legal responsibility of CLC for any actions which the mentally retarded residents might take;

6. the home's location on a five hundred (500) year flood plain; and

7. in general, the presentation made before the City Council.

After exhausting administrative remedies, Hannah and the CLC sued for injunctive relief and damages, in the United States District Court for the Northern District of Texas. They were joined by the plaintiffs Johnson County Association for Retarded Citizens (JCARC) and Advocacy, Inc. in asserting the constitutional rights of mentally retarded persons who were potential residents of the facility. JCARC is an organization that aims to improve the welfare and treatment of the mentally retarded. Advocacy, Inc. is a non-profit corporation that provides legal services to developmentally disabled persons.

The defendants in the suit include the City of Cleburne and individual city employees and council members. After a bench trial, the district judge entered judgment denying the plaintiffs relief on each of the grounds they had claimed. This appeal follows.


The plaintiffs raise various challenges to the zoning ordinance on its face and as applied. They argue, first, that the ordinance and the special use permit denial violate the Revenue Sharing Act which prohibits discrimination against "otherwise qualified" handicapped people. 31 U.S.C. Sec. 1242(a)(1) (1982), recodified at 31 U.S.C.A. Sec. 6716(b)(2) (1983).

The plaintiffs also claim that the ordinance and its application violate the Equal Protection and Due Process clauses of the Constitution. 4 We find the Revenue Sharing Act claim unconvincing in the circumstances of this case. However, we hold that the Cleburne ordinance, both on its face and as applied, denies equal protection. Therefore, we need not address the other constitutional claims. The one tangential issue that is worthy of note is the defendants' argument that JCARC lacks standing to prosecute this suit. Given the specific facts of this case, we agree. That determination does not affect our decision on the merits, however, for the other plaintiffs remain in the suit.


The plaintiffs argue, first, that the zoning function of the Cleburne City Council is within a "program or activity" subject to the provisions of the Revenue Sharing Act. 31 U.S.C.A. Sec. 6716 (1983). We disagree. As the trial court held, clear and convincing evidence proved that federal funds were not used to finance the zoning activities of the City Council. See 31 U.S.C.A. Sec. 6716(c)(1); see also North Haven Board of Education v. Bell, 456 U.S. 512, 102 S.Ct. 1912, 1926, 72 L.Ed.2d 299 (1982) ("program or activity" language in Education Amendments of 1972 makes their coverage program-specific); Brown v. Sibley, 650 F.2d 760, 767 (5th...

To continue reading

Request your trial
27 cases
  • Town of Ball v. Rapides Parish Police Jury
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 19 Noviembre 1984
    ...equal protection would no longer apply to de facto assessments of or exemptions from state taxes.34 Cleburne Living Center v. City of Cleburne, 726 F.2d 191, 195-97 (5th Cir.1984); see generally G. Gunther, supra, n. 20, at 670-75; L. Tribe, American Constitutional Law, ch. 16 (1978).It has......
  • Association of Community Organizations for Reform Now v. Fowler
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 10 Junio 1999
    ...defendant's allegedly unlawful practices. See 455 U.S. at 379, 102 S.Ct. 1114; Spann, 899 F.2d at 28; Cleburne Living Ctr., Inc. v. City of Cleburne, 726 F.2d 191, 202-03 (5th Cir.1984), affirmed in part and vacated in part on other grounds, 473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313 (198......
  • Haitian Refugee Center v. Gracey
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 9 Enero 1987
    ...appears rather disingenuous. The Government makes a futile effort to find some support from the recent Fifth Circuit decision in Cleburne Living Center v. City of Cleburne, Tex. 42 In Cleburne, an organization engaged in promoting the welfare of mentally retarded persons, and favoring the d......
  • City of Cleburne, Texas v. Cleburne Living Center
    • United States
    • United States Supreme Court
    • 18 Marzo 1985 under the closely supervised and highly regulated conditions expressly provided for by state and federal law. Pp. 447-450. 726 F.2d 191 (CA5 1984), affirmed in part, vacated in part, and Earl Luna, Dallas, Tex., for petitioners. Renea Hicks, Austin, Tex., for respondents. [Amicus Curia......
  • Request a trial to view additional results
4 books & journal articles

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT