Thomas Le Strange v. Consolidated Rail Corporation

ADAMS, Circuit Judge,

concurring in the judgment.

Had this appeal been presented for resolution several months ago, I might well *777 have joined the other four courts of appeals in concluding that the Act was not intended to cover discrimination against the handicapped by private employers. After all, the statute makes no direct reference to private employment, and it certainly is not unreasonable to read the restrictions contained in section 604 of Title VI into the Rehabilitation Act.

Nonetheless, I have concluded that the result reached by the Court in this case is consonant with, and perhaps even compelled by, two recent decisions, one by the Supreme Court, North Haven Bd. of Educ. v. Bell, - U.S. -, 102 S.Ct. 1912 , 72 L.Ed.2d 299 (1982), and the second by this Court, Grove City College v. Bell, 687 F.2d 684 (3d Cir. 1982). And whatever I might think of the wisdom of these two decisions, I am bound to apply them unless they are overruled.

In North Haven, 1 supra, the Supreme Court concluded that the Department of Education had statutory authority to regulate employment discrimination in education — even though Title IX of the Education Act makes no direct reference to employment, and even though Title IX, which was patterned after Title VI, might be thought to incorporate the employment-regulation restrictions of section 604 of Title VI. Nevertheless, the Justices reasoned that the broad-sweeping language of Title IX, which did not explicitly rule out the regulation of employment discrimination, when coupled with a strong legislative and postenactment history, constituted a sufficient basis from which to infer a congressional intent to bring employees within the protection of Title IX. The North Haven analysis, when applied to the words of the Rehabilitation Act — which for all relevant purposes are identical to the words of Title IX — and when considered in connection within the strong legislative history of section 504, would appear to compel a similar conclusion. The theory and analysis underlying North Haven, then, would suggest that LeStrange prevail on this appeal.

In addition to North Haven, I am persuaded that it would be difficult to arrive at a contrary result in this matter after the recent opinion in Grove City, supra. In Grove City, also decided under Title IX of the Education Act, a panel of this Court concluded that an entire educational institution is brought within the definition of “program,” and therefore subject to regulation under Title IX, if it receives any federal aid, and that aid is general or indirect and not specifically earmarked for a particular educational function within the institution. The logic of Grove City would appear to be irreconcilable with the analysis employed in Trageser v. Libbie Rehabilitation Center, Inc., 590 F.2d 87 (4th Cir. 1978), cert. denied, 442 U.S. 947 , 99 S.Ct. 2895 , 61 L.Ed.2d 318 (1979), where an employer was deemed to fall within the purview of the Rehabilitation Act only if federal funds were received specifically for employment purposes.

For these reasons I join the judgment of the Court in returning this matter to the district court for further proceedings.

. North Haven involved claims of gender discrimination committed by two public school districts in Connecticut. The Supreme Court noted that one of those districts, North Haven, “devoted between 46.8% and 66.9% of its federal assistance to the salaries of its employees.” - U.S. at -, 102 S.Ct. at 1916 .