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State and local laws provide similar protection. 10The appropriate place to begin 11 an analysis of theappropriate equal protection standard for "disability"cases is Congress' prohibition against discriminationagainst those with disabilities in federallyfunded programs, including its expression of particularconcern about medical care discriminationagainst infants with disabilities. 12In a series of cases elaborating on various Federallaws governing the rights of persons with disabilities,13 the United States Supreme Court has heldthat the intent of these laws is twofold: 14 to protectthose with disabilities from the discriminatory actsof others 15 and to eliminate what might be called"benign neglect" based on "thoughtlessness andindifference." 16 The Court has also held thatdiscrimination on the basis of disability is a violationof the equal protection clause of the 14th amendmentwhen the government is unable to demonstratethat its rationale for the challenged discriminatoryactivity is grounded in an unprejudiced evaluation ofthe differences caused by the disability itself. 1710See, e.g., Fla. Stat. Ann. §760.10 (West Supp. 1985); N. Dak.Cent. Code §§ 14-02.4-03 to 4-06, 14-02.4-08 (1981); Ohio Rev.Code §4112.02 (Page 1984); Tenn. Code Ann. §8-50-103, 104(1979). Unlike the Federal Government, the States are notconstrained by a Federal constitutional requirement that nondiscriminationprovisions relating to private sector discrimination onthe basis of disability must be tied to a funding source or somematter of Federal concern such as interstate commerce. As aresult, they may, and do, prohibit private sector discriminationdirectly.11This is not to say that constitutional and legislative standardsare the same, but merely to point out that, whatever theconstitutional standard of protection, Congress retains the abilityto mandate a minimum level of additional protection which is nototherwise inconsistent with the Constitution. U.S. CONST, amend.XIV, §5. Katzenbach v. Morgan, 384 U.S. 641, 651-52 n.10(1966).18Child Abuse Amendments of 1984, 42 U.S.C.A. §§5101-5103(Supp. 1988). For a full discussion of the law, see chap. 7.13See cases cited supra note 7.14That the congressional concern was for both the social welfareand the civil rights of persons with disabilities is criticallyimportant to an understanding of the Supreme Court's approachto disability cases, and to the approach taken by this Commissionin this report and others. See U.S. Commission on Civil Rights,Accommodating the Spectrum of Individual Abilities (1983).There is an inherent relationship between civil rights law andsocial welfare policy, yet they address separate problems. Personsin need of material or economic assistance often need the legalprotection afforded by the civil rights laws. Proof of materialneed, however, is not necessary to state a claim under the civilrights laws.15See Alexander v. Choate, 469 U.S. 287 (1985) (holding thatsection 504 would clearly cover cases of intentional discriminationagainst the persons with disabilities, but refusing to holdeither that the regulations promulgated under the statute areCleburne v. Cleburne Living CenterIn City of Cleburne v. Cleburne Living Center, aunanimous 19 Supreme Court ruled that the equalprotection clause forbids exclusionary zoning thatwould make it impossible for people with mentalretardation to live in a neighborhood group homeenvironment. 20 The Court began its discussion ofthe constitutional standards that govern legislationhaving an adverse impact on the mentally retardedwith a review of the general standards that areapplicable to cases raising equal protection claims,and held that mental retardation is not a "quasisuspectclassification calling for a more exactingstandard of judicial review than is normally accordedeconomic and social legislation." 21 Instead, theCourt chose a minimum rationality standard, andhighlighted the obvious relationship between thesocial and constitutional concerns that motivated itschoice:First. . .those who are mentally retarded have a reducedability to cope with and function in the everydayworld. . . .[T]hey range from those whose disability isnot immediately evident to those who must be constantlylimited to such cases or that the statute necessarily comprehendsthe use of "disparate impact" analysis); Consolidated Rail Corp.v. Darrone, 465 U.S. 624 (1984) (coverage of funded programs);Smith v. Robinson, 468 U.S. 992 (1984).18Alexander v. Choate, 469 U.S. 287, 295 & nn. 12-16. (1985).The sources cited in the Court's footnotes make it clear that abright line was drawn between "thoughtlessness and indifference"which, though neglecting the needs of the persons withdisabilities, might be considered "benign" in that they are notintentional or "invidious":To be sure, well-catalogued instances of invidious discriminationagainst the handicapped do exist. See, e.g., United StatesCommission on Civil Rights, Accommodating the Spectrumof Individual Abilities, Ch. 2 (1983); Wegner, The AntidiscriminationModel Reconsidered: Ensuring Equal OpportunityWithout Respect to Handicap Under Section 504 of theRehabilitation Act of 1973, 69 Cornell L. Rev. 401, 403 n.2(1984).469 U.S. at 295, n. 12. Intentional neglect of the needs of personswith disabilities—such as denying food and water (nutrition andhydration) or necessary medical care because the disability isalleged to cause a diminished quality of life—are not "benign."» Cleburne Living Center, 473 U.S. 432 (1985).18473 U.S. 432 (1985).19Justice Stevens and Chief Justice Burger joined the opinion ofthe Court, but also filed a concurring opinion advocatinga new single tier standard for equal protection analysis.Justices Brennan and Marshall filed an opinion concurringin part and dissenting in part, which arguesthat the proper standard for disability cases is heightenedscrutiny, and that the ordinance should have been declaredinvalid on its face.20See chap. 4.21Cleburne Living Center, 473 U.S. at 442. For a generaldiscussion of these standards, see supra note 7.95