R LCMJ8/Z»: W227 , 1RR5‘1989% 5T-:Lg§i§iL§o T CONGRESSIONAL RESEARCH SERVICE 7 LIBRARY OF CONGRESS HANDICAPPED PERSONS AND THE REHABILITATION ACT OF 1973: SOUTHEASTERN COHHUNITY COLLEGE V. DAVIS (ABCHIVED——09/O5/79) ISSUE BRIEF NUMBER IB79227 AUTHOR: Jones, Nancy Lee American Law Division THE LIBRARY OF CONGRESS CONGRESSIONAL RESEARCH SERVICE nnaoa ISSUES szswzn” DATE ORIGINATED g441g42g DATE UPDATED Qgggggzg FOR ADDITIONAL INPORNATION CALL 287-5700 0907 CRS- 1 w IB79227 UPDATE-08/22/79 l§§Q§-2§§I!lE£Q§ In §22E§§§§E§£E-§9!!E2$EZ-QQll2Q§ 7- 2§!;§: N0- 73-711 (June 11» 1979): the U.S. Supreme Court for the first time interpreted section 504 of the Rehabilitation Act. Section 504, 29 U.S.C. 794, is considered to be a crucial provision concerning the rights of handicapped persons and has been the subject of a growing number of lower court decisions. This section basically prohibits discrimination, exclusion or denial of benefits against otherwise qualified handicapped individuals by any program receiving federal financial assistance or under any program or activity conducted by an executive agency or by the 0.5. Postal Service. The Court's unanimous decision, which found that section 504 did_ not forbid the imposition of physical qualifications for admission to clinical training programs and did not require affirmative action by the college, is of major significance and its implications for other aspects of section sou besides education reach beyond the Court's holding. §A£§§§Q!!2-A!2.2QLLQ!-é§AL1§I§ In its decision of June 11, 1979, the U.S. Supreme Court found that action 50H would not preclude _a public college from denying a hearing _mpaired person admission to a nursing program due to a handicap where this handicap might interfere with the ability to perform duties safely. The Court further found that section 504 imposed no affirmative duties to provide modified educational opportunities in this situation. The Court specifically reserved judgment on two other issues that had been presented to it for resolution; that is, whether section 504 gives rise to a private right of action or whether, if this right is found, a handicapped person must first exhaust administrative remedies. In arriving at its decision, the Court noted that the case presented a matter of first impression and then discussed the factual situation presented by the case and its procedural history. Court material emphasized that the plaintiff's hearing disability made it unsafe for her to perform duties as a nursing student or as a nurse. The Supreme Court began its analysis of the merits of the case with a discussion of the language of section 504 and noted that the section did not specifically compel educational institutions '...to disregard the disabilities of handicapped individuals or to make substantial modifications in their programs to allow disabled persons to participate“ (Slip oninion at 6). The Court focused on the requirement of section 504 that an "otherwise qualified handicapped individual” not be excluded from participation in a federally funded program and found that an otherwise qualified handicapped individual "...is one who is able to meet all of a program's requirements in “rite of his handicap" (Slip opinion at 7). The regulations promulgated by 3 under section 504 were seen by the Court as supporting this interpretation. This aspect of the holding overruled the Court of Appeal's interpretation of "otherwise qualified,” which the Supreme Court had characterized as '...prevent(ing) an institution from taking into account any limitation resulting from the handicap, however, disabling“ (Slip op. at 7). The Supreme Court then analyzed the issue of whether the college must take affirmative action to dispense with the need for effective oral CBS* 2 IB79227 UPDATE-O8/22/79 communication. The plaintiff has suggested that she be given individual supervision by the faculty members when she attended patients directly. She also argued that the college is not required to train her in all the tasks a registered nurse is licensed to perform, but that section 504 would be applicable if she were able to perform satisfactorily some of the duties of a registered nurse or to hold some positions available to a registered nurse. This argument was supported by citations to HEW regulations requiring covered institutions to make modifications in their programs to accommodate handicapped person (45 CPR 84.44). The Court rejected this argument stating: ~ We note first that on the present record it appears unlikely respondent could benefit from any affirmative action that.the regulation reasonably could be interpreted as requiring....In light of respondent's inability to function in clinical courses without close supervision, Southeastern with prudence could allow her to take only academic classes. Whatever benefits respondent might realize from such a course of study, she would not receive even a rough equivalent of the training a nursing program normally gives. Such a fundamental alteration. in the nature of a program is far more than the "modification* the regulation requires (Slip Op. at 10-11).. The Court further noted that if the regulations were interpreted to require the extensive modifications necessary to include the plaintiff in the nursing program, "grave doubts“ would be raised concerning the regulations‘ validity. The language of sections 501 and 503 of the Rehabilitation Act, 29 U.S.C. 791 and 793, specifically includes affirmative action provisions applicable to federal agencies and contractors but the Court noted that: section 504 does not refer at all to ffirmative action, and except as it applies to federal employers it does not provide for implementation by administrative action...Here neither the language, purpose, nor history of section 500 reveals an intent to impose an affirmative action obligation on all recipients of federal funds. Accordingly, we hold that even if HEW has attempted to create such an obligation itself, it lacks the authority to do so (Slip op. at 11-13). The Court specifically rejected arguments raised by a government agiggg gggigg brief that portions of the legislative history of the 197a Amendments ** the Rehabilitation Act and the legislative history of the 1978 amendments .dicating that section 504 required affirmative action were relevant. The Court stated that '...these isolated statements by individual members of Congress or its committees, all made after the enactment of the statute under consideration, cannot substitute for a clear expression of legislative intent at the time of enactment“ (Slip op. at 12, footnote 11). The Court further noted that the "...line between a lawful refusal to extend affirmative action and illegal discrimination against handicapped cas— 3 ‘ .IB79227 UPDATE-O8/22/79 persons will not always be clear (Slip op. at 13). For example, the court observed that technological advances could be expected to enhance opportunities for handicapped persons and that these advances may allow handicapped persons to participate in programs "without imposing undue financial and administrative burdens upon a State‘ (Slip op. at 13). However, the Court found that the types of adjustments in Southeastern's nursing program sought by the plaintiff were not required under section 504 and stated "(s)ection sou imposes no requirement upon an educational institution to lower or to effect substantial modifications of standards to accommodate a handicapped person“ (Slip op. at 14). The implications of the Supreme Court's decision could be far reaching. section 504 of the Rehabilitation Act of 1973 basically prohibits discrimination, exclusion or denial of benefits against otherwise qualified handicapped individuals by any_ program which receives federal financial assistance or under any program or activity conducted by any executive agency or by the U.S. Postal Service. The section is a crucial provision concerning discrimination against handicapped persons and has been described by HE? Secretary tJoseph Califano as '...the first federal civil rights law protecting the rights of handicapped persons and reflectting) a national commitment to end discrimination on the basis of handicap." uany regulations have been issued under this section, notably those promugated by HEW at #5 CPR Parts 84-85, and several judicial decisions. Lower court decisions have discussed various subjects including transportation, education, employment xd issues concerning a private right of action. Also, questions regarding affirmative duties under section 504 have been raised. Since several of these cases had decided the issues differently. the supreme Court's decision could have a significant impact on the interpretation of section sou, not only with regard to clinical training programs in colleges but also in other areas such as transportation.- The most significant impact of gggthgg§tg§g_§9gggg;§y_Qg;lggg is obviously in the area of higher education. Two district court decisions,’ gggggg v. §9DVe£§e Qellsgs. “35 P-5uPP- 635 (D-S-C- 1977). and §£§!£2£§ V- Q2;!s£§;£I 9§_§Qgth_Qa;9;;gg, uuo P.Supp. 1on7 (nD.N.C. 1977), have specifically dealt with the issue of interpreters for hearing impaired students in colleges prior to the Supreme Court's decision. These courts issued preliminary injunctions requiring that the defendant college and university provide an interpreter for the handicapped plaintiff after finding that section 504 and it regulations would possibly oblige the defendants to furnish such relief. Since the Supreme Court found fin §9gthga§tggg_ gggmgg;ty_ ggllgqg that affirmative action such as the close individual attention of a nursing instructor was not required under section 504, the continued validity of decisions such as those in gggggg and Qgggfgrd is in some doubt. It could be argued, though, that the situation presented by §ggghga§;g;g_ ggggggity ggllgqg can be distinguished from that presented by gagggg and ggagfggg since the §ggthgggastgrg_Q9;ggg;§y_§9;;gqg decision concerned a clinical training program and the students in the other cases were not involved in a program of this type. It is also noteworthy that the Supreme Court found support for 5's holding in HEW regulations. These regulations prohibit discrimination ugainst students because of the absence of auxiliary aids, such as interpreters, but provide that recipients of federal financial aid '...need not provide attendants, individually prescribed devices, readers for personal use of study, or other devices or services of a personal nature" (45 C.P.R. 84.4u, Slip op. at 10, footnote 9). §ggthgg§tg;g_Qggggg;;y_ggllegg could also have an effect upon lower court decisions concerning the right to education for primary and secondary school cns- u T 1379227 UPDATE-O8/22/79 tudents. For example, in gaiggtgn v. Qggsigg, 423 F. Supp. 180 (S.D.W.Va- 1976), the district court ordered that a handicapped child be admitted to a regular public classroom because her exclusion violated due process and section 504. The district court stated in this case that '(t)o deny to a handicapped child access to a regular public school classroom in receipt of federal financial assistance without compelling educational justification constitutes discrimination and a denial of the benefits of such program in violation of the statute. School officials must make every effort to include such children within the regular public classroom situation, even at great expense to the school system“ (at 18k). The Supreme Court's language in §9gthga§t§;n_Qggmgg;ty College concerning affirmative action and illegal discrimination against handicapped persons could raise some questions concerning the validity of holdings such as those in gaigstgg. More specifically, although the Supreme Court indicated that there may be situations where a refusal to modify a program to accommodate handicapped persons would be unreasonable and discriminatory, the Court also noted that '(t)echnological advances can be expected to enhance opportunities to rehabilitate the handicapped or otherwise to qualify them for some useful employment. Such advances also may enable attainment of these goals without imposing undue financial and administrative burdens upon a State" (Slip op. at 13). It could be argued that this language might indicate that the Supreme Court would balance the ‘financial and administrative burdens upon a State“ against any argument that a program, such as a public school, must be modified to accommodate handicapped persons. It should also he noted that the HEW regulations applicable to primary and secondary school programs 6 ‘fer from those discussed by the Supreme Court concerning post secondary education. Several lower court decisions made under section 504 have specifically found that section 504 confers affirmative rights. For example, in galdggmap V- I32e2h2r.s..*.=....S.’c.-‘=_11.=s..§2h92l-§v..§2§2i§.el. 446 1"- 5099- 1295 (E-D- Pa- 1977). the district court held that section 504 '...imposes affirmative obligations on state and local government officials...” (at 1323). In light of the Supreme Court's finding in §9gthga§tggg_ Q9ggggity_ ggllgqg concerning affirmative action, there is some doubt about the validity of decisions which found that section 504 conferred affirmative obligations. However, the ‘Supreme Court did find that "situations may arise where a refusal to modify an existing program might become unreasonable and discriminatory“ (Slip op. at 13). Therefore, although affirmative action such as close, individual attention by a nursing instructor for a nursing student would not be required under section 504, certain situations may arise where program modification may be required are uncertain and will have to await clarification by litigation or possibly identification by HEW. several lower court decisions have found that section 504 established an implied private cause of action. The leading case discussing this issue is ELQIQ V- §§Ql22§L-1£§2§22£E§Ei9E §EEQ9£$EI: 5“3 P-2d 1277 (7th Ciro 1977). thich was a class action suit broght by persons with mobility related 1andicaps who alleged that the public transportation systems of two municipalities violated several federal statutes including section 504. The set 2th Circuit Court of Appeals held that section sou implied a private right of action and, after a discussion of the Supreme Court case of 99;; v. g§§. 422 U.S. 66 (1975), which set out four factors for determining whether a >rivate remedy is implicit in a statute which does not expressly provide for >ne, concluded that “(a)pplying the 99;; factors here leads to the conclusion .hat a private cause of action must be implied from section 504' (at 1285). owever, one of the factors used by the Supreme Court in 99;; is whether .here is any indication of legislative intent, explicit or implicit, either CRS- 5 IB79227 UPDATE-08/22/79 to create such a remedy or to deny one. In determining that a legislative intent existed for the creation of a private right of action under section 504, the glgyg court relied heavily upon the legislative history of the 197a Amendments to the Rehabilitation Act. There is some doubt concerning whether the legislative history of the 1974 amendments is an appropriate indication of congressional intent regarding section 504 since the Supreme Court in §Qg§hgg§t§;g_ Q9gggg;§y_ ggllggg specifically rejected the use of this legislative history to indicate congressional intent with regard to the requirement of affirmative action. It should also be noted, though, that the Supreme Court specifically declined to determine whether section 504 gives rise to a private right. In addition, it could he argued that section 505 of the Rehabilitation Act, which was added by the Rehabilitation, Comprehensive Services and Developmental Disabilities Amendments of 1978, P.L. 95-602, indicates that a private right of action may be found. The Supreme Court's decision in gggtheagterg Cogggg;ty_ ggllggg v. Qagig significantly limited the interpretation of section 504 from the interpretation given the statute in several lower court decisions. Although the Court's specific holding was quite narrow, it has broad implications for the general interpretation of section sou. These implications are particularly strong concerning the issue of affirmative action to modify an existing program. ~— ~-p-. an [ LIBRARY % OF WA$HINGTON UNIVERSITY