Amicus Brief — Southeastern Community College v. Davis

> Supreme Court, U,

FILED

OCT 28 1978

IN THE Miense, RODAK, JR.. CLERK

‘

Supreme Court of the United States

OCTOBER TERM, 1978

No. 78-711

SOUTHEASTERN COMMUNITY COLLEGE,

Petitioner,

V.

FRANCES B. DAVIS,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES CourRT OF APPEALS

FOR THE FouRTH CIRCUIT

BRIEF OF THE AMERICAN COUNCIL ON EDUCATION, THE

COMMONWEALTHS OF MASSACHUSETTS, PENNSYLVANIA,

AND VIRGINIA, AND THE STATES OF ALASKA, ARIZONA,

CONNECTICUT, DELAWARE, FLORIDA, GEORGIA, HAWAII,

IDAHO, LOUISIANA, MARYLAND, MISSISSIPPI, MISSOURI,

MONTANA, NEBRASKA, NEW HAMPSHIRE, NEW JERSEY,

NEW YORK, NORTH CAROLINA, OHIO, OREGON, SOUTH

CAROLINA, TENNESSEE, WASHINGTON, AND WEST VIR-

GINIA AS AMICI CURIAE IN SUPPORT OF THE PETITION

FOR A WRIT OF CERTIORARI

SHELDON ELLIOT STEINBACH GERALD GORNISH

1 DuPont Circle, N.W. Attorney General of Pennsylvania

Suite 824 Capitol Annex, Room 1

Washington D.C. 20036 Harrisburg, Pennsylvania 17120

Attorney for the American Attorney for the

Council on Education Commonwealth of Pennsylvania

FRANCIS X. BELLOTTI J. MARSHALL COLEMAN

Attorney General of Massachusetts Attorney General of Virginia

One Ashburton Place Supreme Court — Library Building

Boston, Massachusetts 02108 Richmond, Virginia 23219

Attorney for the Attorney for the

Commonwealth of Massachusetts Commonwealth of Virginia

(Counsel continued inside front cover)

The Daily Record Co., Baltimore, Md. 21202 Eo 0)

AVRUM GROSS

Attorney General of Alaska

Pouch K, State Capitol

Juneau, Alaska 99811

Attorney for the

State of Alaska

JOHN A. LaSOTA, JR.

Attorney General of Arizona

200 State Capitol Building

Phoenix, Arizona 85007

Attorney for the

State of Arizona

CARL R. AJELLO

Attorney General of Connecticut

Capitol Annex, 30 Trinity Street

Hartford, Connecticut 06115

Attorney for the

State of Connecticut

RICHARD R. WIER, JR.

Attorney General of Delaware

Wilmington Tower Bldg.—4th Floor

Wilmington, Delaware 19801

Attorney for the

State of Delaware

ROBERT L. SHEVIN

Attorney General of Florida

State Capitol

Tallahassee, Florida 32304

Attorney for the

State of Florida

ARTHUR K. BOLTON

Attorney General of Georgia

132 State Judicial Building

Atlanta, Georgia 30334

Attorney for the

State of Georgia

RONALD Y. AMEMIYA

Attorney General of Hawaii

State Capitol

Honolulu, Hawaii 96813

Attorney for the

State of Hawaii

WAYNE L. KIDWELL

Attorney General of Idaho

State Capitol

Boise, Idaho 83720

Attorney for the

State of Idaho

WILLIAM J. GUSTE, JR.

Attorney General of Louisiana

State Capitol, P.O. Box 44005

Baton Rouge, Louisiana 70804

Attorney for the

State of Louisiana

FRANCIS B. BURCH

Attorney General of Maryland

1400 One South Calvert Building

Baltimore, Maryland 21202

Attorney for the

State of Maryland

A. F. SUMMER

Attorney General of Mississippi

Carroll Gartin Justice Building

Jackson, Mississippi 39205

Attorney for the

State of Mississippi

JOHN D. ASHCROFT

Attorney General of Missouri

Supreme Court Building

Jefferson City, Missouri 65101

Attorney for the

State of Missouri

MICHAEL T. GREELY

Attorney General of Montana

State Capitol

Helena, Montana 59601

Attorney for the

State of Montana

PAUL L. DOUGLAS

Attorney General of Nebraska

State Capitol

Lincoln, Nebraska 68509

Attorney for the

State of Nebraska

THOMAS D. RATH

Attorney General of New Hampshire

208 State House Annex

Concord, New Hampshire 03301

Attorney for the

State of New Hampshire

JOHN J. DEGNAN

Attorney General of New Jersey

State House Annex, Second Floor

Trenton, New Jersey 08625

Attorney for the

State of New Jersey

(Counsel continued inside back cover)

TABLE OF CONTENTS

PAGE

INTERESTS OF AMICI CURIAE .........sssssceeseseeeeeeseeeees 1

QUESTIONS PRESENTED .........:cssssessseeseeeereeeeneeeeneennee 4

REASONS FOR GRANTING THE WRIT:

Review is necessary to settle important

questions of federal law because the

court of appeals has over-extended and

misapplied section 504 contrary to the

intent expressed by Congress and by

HEW in its implementing regulations . 4

CORIOR AMIE oiccsististiinisnensstnssciiaseaneniiitibinn tesigemessinouneninn 13

TABLE OF CITATIONS

‘ Cases

Barnes v. Converse College, 4386 F. Supp. 635

CBE BURT Oe cnstctarnteibdhchinieatiitaitlaniahcnentaietgnsiaepiiniaeiens 8,9

Barnes v. Converse College, No. 77-1116 (D.S.C.

order filed Mar. 28, 1978) .............cssssssessesereeees 13

Cannon v. University of Chicago, 559 F.2d 1063

(7th Cir. 1977), cert. granted, 98 S.Ct. 3142

CIID ch nicsethceiehsienicaeecteeeiintndatcaesinainaenibiiincanaininss 13

Castaneda v. Partida, 430 U.S. 482 (1977) ......... 9

Crawford v. University of North Carolina, 440 F.

Supp. 1047 (M.D.N.C. 1977) ........esscesseseeseerees 12,13

Davis v. Southeastern Community College, 574

F.2d LEGS: COG Coe, 1GTB) nccccsccesersereccncsecseccses passim

Davis v. Southeastern Community College, 424

F. Supp. 1341 (E.D.N.C. 1976) ..............ssseeeees 5

Doe v. New York University, 422 F. Supp. 552

te cD | titiaia ticeickccctiisctndiisioeneninhinibaianistinn 12

General Electric Co. v. Gilbert, 429 U.S. 125

(1976) .......c0e HNO fy ELOY ORES TER Ma 8

Lloyd v. Regional Transportation Authority, 548

iP Boyan, Be Mi, y : Beaeeenterenerenemeen 10, 11

McDonald v. Santa Fe Trail Transportation Co.,

423 U.S. 923 (1976) ...........0 -dpinicbbiatisate pnren 9

.

ii

PAGE

McKart v. United States, 395 U.S. 185 (1969) ... 11

Myers v. Bethlehem Shipbuilding Corp., 303 U.S.

MMIII sich debian dctedavamidsubiecasenamapeilialesd ibaa liiiabes 11

Nader v. Allegheny Airlines, 426 U.S. 290 (1976) 13

National League of Cities v. Usery, 426 U.S. 833

SRE IG IP IS ean ene emer nea 4

Regents of the University of California v. Bakke,

i re TD sca ascccnsnsecesnisinncsscisnsbssoconce 9,10

United Air Lines v. Evans, 431 U.S. 553 (1977) 7

United States v. Larionoff, 431 U.S. 864 (1977) 8

Younger v. Harris, 401 U.S. 37 (1971) «we. ~ 4

Statutes

20 U.S.C. §1681(a) Title IX of the Education

Amendments of 1972 .....cccicccccccsssssesessessceeseees 5

29 U.S.C. § 793, § 503 of the Rehabilitation Act of

RNS Lie NRA ee a ORR ACRE WON aI EE 7

29 U.S.C. § 794, § 504 of the Rehabilitation Act of

1973 sicadaSnsipviosdossigaiuilsakabsdelihiiatidiasianbiniaiieiielinebieibeiias passim

42 U.S.C. § 2000d, Title VI of the Civil Rights Act

I NN si cicetcnnssecbnhccseh scthcis a hidoinbtasiceaetiiedetanncoais 5

Regulations

SE Se Ce itescenedendsanpaioeiiksettiesnisintninnas, 6

41 Fed. Reg. 17, 871 (April 28, 1976), Exec. Order

1 RARER UG ESSmREP emer ts WEneene ARNE SRE A CREED 8

Miscellaneous

Note, Rehabilitating the Rehabilitation Act of

1973, 58 Boston Univ. L. Rev. 247 (1978) ... 7

Brooks, Section 504 of the Rehabilitation Act of

1973 and The Private College: Barnes uv.

Converse College, 29 Mercer L. Rev. 7451978 8,13

IN THE

Supreme Court of the United States

OcTOBER TERM, 1978

No. 78-711

SOUTHEASTERN COMMUNITY COLLEGE,

Petitioner,

Vv.

FRANCES B. DAVIS,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES CouRT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF OF THE AMERICAN COUNCIL ON EDUCATION, THE

COMMONWEALTHS OF MASSACHUSETTS, PENNSYLVANIA,

AND VIRGINIA, AND THE STATES OF ALASKA, ARIZONA,

CONNECTICUT, DELAWARE, FLORIDA, GEORGIA, HAWAII,

IDAHO, LOUISIANA, MARYLAND, MISSISSIPPI, MISSOURI,

MONTANA, NEBRASKA, NEW HAMPSHIRE, NEW JERSEY,

NEW YORK, NORTH CAROLINA, OHIO, OREGON, SOUTH

CAROLINA, TENNESSEE, WASHINGTON, AND WEST VIR-

GINIA AS AMICI CURIAE IN SUPPORT OF THE PETITION

FOR A WRIT OF CERTIORARI

INTERESTS OF THE AMICI CURIAE

The interests of the amici curiae and their reasons for

urging this Court to review the decision of the United

States Court of Appeals for the Fourth Circuit in Davis

v. Southeastern Community College, 574 F.2d 1158 (4th

Cir. 1978), are as follows:

2

The amici are a majority of the States and the

American Council on Education, the nation’s largest

association of colleges and universities.! All of the

amici fully support equal rights for handicapped

individuals, as well as the purpose of §504 of the

Rehabilitation Act of 1973, 29 U.S.C. § 794. Neverthe-

less, because the amici have an obligation to comply

with the Act and to bear, without any federal assist-

ance, the enormous financial and other burdens

associated with its administration, they have an

important stake in its reasoned interpretation.?

The amici are concerned that a one-sentence prohibi-

tion with no particular legislative history is being

transformed by administrative excess and judicial

inventiveness into a tool of oppression not contem-

plated by Congress. For example, the Department of

Health, Education, and Welfare (“HEW”) in regulations

' The American Council on Education, a nonprofit corpora-

tion organized under the laws of and located in the District of

Columbia, is a membership organization composed of 1,291

nonprofit institutions of higher education and 169 national

and regional educational associations and organizations.

One of the major functions of the American Council on

Education is to speak for colleges and universities on matters

of national significance. Because its members include the

overwhelming majority of nonprofit institutions of higher

education, the American Council on Education believes itself

uniquely positioned to represent the interests of the higher

education community on matters of national importance

such as the issues presented to this Court in the pending

petition. Written consent of the parties has been granted for

a geen by the American Council on Education in this

rief.

2 In a cost survey prepared for HEW, the estimated annual

pecuniary cost of compliance with the Act has been set at 3.2

billion dollars. D. O’Neill, Discrimination Against Handi-

capped Persons — The Costs, Benefits and Economic Impact

of Implementing Section 504 of the Rehabilitation Act

Covering Recipients of HEW Financial Assistance at 65

(May 4, 1977) (unpublished report prepared for the HEW ,

pe a Civil Rights under Orders #SA-4141-76 and +35A-

3

implementing the basic prohibition of section 504* has

excised key statutory language‘ and has imposed

affirmative action requirements on entities receiving

federal funds where Congress with apparent delibera-

tion placed none.’ More importantly, the court of

appeals in the present case has gone far beyond the

HEW regulations in fashioning a definition of an

“otherwise qualified” handicapped individual which is

at war with common sense, the intent of Congress, and

the regulations themselves. In addition, a majority of

that deeply-divided court® refused to require the plain-

tiff to follow the administrative route specified in the

HEW regulations, without analysis implied a private

right of action under section 504, and without legal

foundation held that the statute required a public

college to modify its courses and programs to compen-

sate for the disability of a single student.

The amici submit that this overextension, manipula-

tion, and misapplication of section 504 reflects a lack of

“sensitivity to the legitimate interests of both State and

3 Section 504 provides that:

No otherwise qualified handicapped individual in the

United States, as defined in section 706(6) of this title,

shall, solely by reason of his handicap, be excluded from

the participation in, be denied the benefits of, or be

subjected to discrimination under any program or

activity receiving Federal financial assistance.

4 The word “solely” was eliminated in the HEW regula-

tions. 45 C.F.R. § 84.4(a) (1977).

5 Although Congress imposed affirmative action obliga-

tions on certain federal contractors in section 503 of the Act,

29 U.S.C. § 793, section 504 is silent.

6 Upon submission of a petition for rehearing and

suggestion for rehearing en banc to the six members then in

regular active service on the court, J udges Russell and

Widener dissented from the denial of rehearing en banc and

indicated they would affirm the judgment of the district

court; in addition, Chief Judge Haynsworth dissented from

the denial of the petition for rehearing. 574 F.2d at 1163 (4th

Cir. 1978).

4

National Governments,” (Younger v. Harris, 401 U.S.

37, 44 (1971)), and impairs the States’ “ability to

function effectively within ... [the] ... Federal

system.” National League of Cities v. Usery, 426 U'S.

833, 852 (1976). In addition, this view of section 504

gravely endangers sound academic principles and

undermines academic freedom, causing concern to all

institutions of higher education, both public and

private. For these reasons review of the Fourth Circuit

decision is essential.

QUESTIONS PRESENTED

I. Whether section 504 of the Rehabilitation Act of

1973 must be construed to require an institution of

higher education receiving federal funds to admit a

handicapped person whose handicap makes it impossi-

ble to participate effectively in the educational program

and the career to which it leads?

II. Whether section 504 requires an institution to

change its academic requirements or take other action

to compensate for the disability of a handicapped

applicant for admission?

: ITI. Whether section 504 impliedly creates a private

right of action that may be enforced by an individual

without resort to federal ad:ninistrative remedies?

REASONS FOR GRANTING THE WRIT

REVIEW IS NECESSARY TO SETTLE IMPORTANT

QUESTIONS OF FEDERAL LAW BECAUSE THE COURT

OF APPEALS HAS OVEREXTENDED AND MISAPPLIED

SECTION 504 CONTRARY TO THE INTENT EXPRESSED

BY CONGRESS AND BY HEW IN ITS IMPLEMENTING

REGULATIONS.

In section 504 of the Rehabilitation Act of 1973,

Congress established a mechanism to prevent discrimi-

nation against handicapped persons by grant recipients

in their utilization of federal financial assistance.

5

Although a significant step in fostering equal opportu-

nity for the handicapped, section 504 is a terse and

carefully worded statute. Unlike the basic prohibitions

of title VI of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000d, and title IX of the Education Amendments of

1972, 20 U.S.C. § 1681(a), section 504 is framed in less

absolute terms. A handicapped person may not be

denied benefits “solely” by reason of his or her

handicap and such an individual must be “otherwise

qualified” to come within the protections of the statute.

Focusing on this language, the district court correctly

construed section 504 to mean that “no person may be

excluded from a federally assisted program or activity

solely by reason of the fact that such person is

handicapped unless the nature of the handicap renders

the person unable to fully and effectively participate in

the activity.” Davis v. South. stern Community Col-

lege, 424 F. Supp. 1341, 1345 (E.D.N.C. 1976). Thus, an

applicant for admission to a college receiving federal

aid must be able to function sufficiently in courses in

spite of his or her handicap. Id.

A panel of the court of appeals, although conceding

the reasonableness of this construction, 574 F.2d at

1160, held applicable the definition contained in

subsequently promulgated HEW regulations imple-

menting the Act which it said differed markedly from

the district court’s. The panel concluded that under the

Act and the HEW regulations, a person must be

admitted to a federally funded program without regard

to his or her disability. 574 F.2d at 1160.

It is true, as noted in the panel opinion, that in

deciding if a person is “otherwise qualified,” the focus

should be upon the issue of whether a handicapped

individual can meet the academic and _ technical

qualifications of a program. Id. at 1161. Nevertheless,

this focus of inquiry, contrary to the panel’s holding,

must logically take into consideration the nature of a

6

person’s handicap to see if he or she is qualified for

admission into a particular program of study in spite of

that handicap.

Indeed, this is the unequivocal position expressed in

the HEW regulations. For example, in its official

explanation of the meaning of “qualified handicapped

person” in the regulations, that agency states:

“Qualified handicapped person.” Paragraph (k)

of §84.3 defines the term “qualified handicapped

person.” Throughout the regulation, this term is

used instead of the statutory term “otherwise

qualified handicapped person.” The Department

believes that the omission of the word, “otherwise,”

is necessary in order to comport with the intent of

the statute because, read literally, “otherwise”

qualified handicapped persons include persons who

are qualified except for their handicap, rather than

in spite of their handicap. Under such a literal

reading, a blind person possessing all the qualifica-

tions for driving a bus except sight could be said to

be “otherwise qualified” for the job of driving.

Clearly, such a result was not intended by

Congress. In all other respects, the terms “quali-

fied” and “otherwise qualified” are intended to be

interchangeable.

45 C.F.R. §84 app. A, at 376 (1977).

Adherence to the “without regard to” language of the

court of appeals rather than the district court’s “in spite

of” language would create, quite literally, the spectre of

blind bus drivers adverted to in the HEW analysis of its

own regulations. Sound logic and common sense

support the district court and HEW on this important

question of federal law.

As detrimental to public and private beneficiaries of

federal funds as the lower court’s construction of the

words “otherwise qualified” in section 504 is its

determination to the effect that the statute imposes an

affirmative action requirement. To contend that affir-

2

7 ~)

mative action is mandated or authorized under section

504 of the Act is to ignore the statutory language which

on its face states that it is a statute mandating only

that there be no “discrimination.”

Nowhere in the short forty-eight words of section 504

is there an expression relating to affirmative action or

preferential treatment — it provides only for equal

access. This is of course unlike its counterpart, section

503 of the Act, 29 U.S.C. § 793, which requires federal

contracts of more than $2,500 to contain a provision

obligating the contractor to “take affirmative action to

employ and advance in employment qualified handi-

capped individuals.” See Note, Rehabilitating the

Rehabilitation Act of 1973, 58 Boston Univ. L. Rev. 247,

270 (1978) (“{A]lthough section 503 imposes an affirma-

tive action duty upon employers, section 504 imposes

only a negative duty not to discriminate. Therefore, the

classification of federal funds as a section 503 contract

or a section 504 financial assistance will determine the

nature and extent of the legal obligations owed by an

employer ... .”). :

Nevertheless, equal access does not require public or

private institutions of higher education to open their

doors to unqualified students. Only a policy of preferen-

tial treatment for past discrimination would suggest

such a standard, and section 504 was not intended to

redress the wrongs of the past or alleviate past

discrimination. Cf. United Air Lines v. Evans, 431 US.

553, 558 (1977). Its sole purpose was to effectuate

nondiscrimination in the utilization of federal financial

assistance.

Nor does the lower court position on affirmative

action derive any support from the HEW regulations

implementing section 504. The statute contains no

directive or authority for issuance of regulations and

perhaps the only authority for any regulations is

8

Executive Order 11, 914, 41 Fed. Reg. 17,871 (Apr. 28,

1976), which merely allows HEW to “establish stand-

ards for determining who are handicapped individuals

and guidelines for determining what are discriminatory

practices within the meaning of §504” (emphasis

added).? Because the affirmative action provisions of

the new HEW regulations have no origin in the Act or

the Executive Order, they are of dubious validity and of

no help in justifying the imposition of an affirmative

action requirement. See United States v. Larionoff, 431

U.S. 864, 873 n.12 (1977); General Electric Co. v. Gilbert,

429 U.S. 125, 145 (1976); Brooks, Section 504 of the

Rehabilitation Act of 1973 and the Private College:

Barnes v. Converse College, 29 Mercer L. Rev. 745, 757

(1978).

Moreover, the imposition of an affirmative action

requirement in section 504 whether by the court of

appeals or HEW locks States and particularly educa-

tional institutions into a financial dilemma. As the

court in Barnes v. Converse College, 436 F. Supp. 635,

638-9 (D.S.C. 1977), observed:

Converse College is subject to regulation under 29

U.S.C. §794 because it receives federal financial

assistance. None of this federal financial assist-

agg however, was given to Converse College for

oe pee of providing auxiliary aids for the

capped. No educational administrator needs

rs be reminded of the said [sic] fact that federal

money means pervasive, bureaucratic federal

* The HEW regulations stem in part from a district court

order holding that section 504 impliedly required the agency

to issue regulations. Cherry v. Mathews, 419 F. Supp. 922

(D.D.C. 1976). But see SEC v. Chenery Corp., 332 U.S. 194,

202-03 (1947), where this Court said:

The function of filling in the interstices of the Act should

be performed, as much as possible, through this quasi-

legislative promulgation of rules to be applied to the

future. But any rigid requirement to that effect would

make the administrative process inflexible and incapa-

ble of dealing with many of the specialized problems

which arise.

9

control; and for pervasive, tyrannical bureaucratic

federal control, the Department of Health, Educa-

tion and Welfare knows no equal or superior . . .

This is not to say that this court is not entirely

sympathetic with the spirit of federal legislation

which encourages the expansion of opportunities

for the handicapped. This is merely to say that if

the federal government, in all its wisdom, decides

that money should be spent to provide opportuni-

ties for a particular group of people, that govern-

ment should be willing to spend its own money (i.e.,

our taxes) for such purposes... .

In addition, if State beneficiaries or other entities

receiving federal funds are required to expend funds on

a handicapped person’s behalf in order to make up for

his or her disability, serious questions are raised with

respect to the equal protection rights of non-disabled

fellow applicants. Cf. McDonald v. Santa Fe Trail

Transportation Co., 427 U.S. 273 (1976) (allowing

whites a cause of action under title VII and 42 U.S.C.

§ 1981 for reverse discrimination); Castaneda v. Par-

tida, 430 U.S. 482 (1977) (presumption that governing

majority would not discriminate against itself insuffi-

cient basis for rejecting equal protection claim).

The lower court decision on affirmative action will

also adversely impact on the autonomy and discretion

of educational institutions that are so essential to

maintaining academic freedom.* As Mr. Justice Powell

noted only last term in Regents of the University of

California v. Bakke, 98 S. Ct. 2733, 2760 (1978), “[t]he

* Mr. Justice Frankfurter summarized the “four essential

freedoms” that comprise academic freedom:

. . . It is the business of a university to provide that

atmosphere which is most conducive to speculation,

experiment and creation. It is an atmosphere in which

there prevail “the four essential freedoms” of a univer-

sity — to determine for itself on academic grounds who

may teach, what may be taught, how it shall be taught,

and who may be admitted to study.

Sweezy v. New Hampshire, 354 U.S. 234, 263 (1957)

(Frankfurter, J., concurring).

10

freedom of a university to make its own judgments as to

education includes the selection of its student body.”

However, a glaring result of the lower court’s opinion is

the surrender of portions of this freedom without reason

or authority. While the amici are not opposed to

reasonable affirmative action obligations expressly

imposed by Congress, educational officials must not be

forced by shortsighted judicial or administrative fiat to

give up control over course content, methods of

instruction, and considered policies of admission.

Accordingly, review by this Court of the decision of the

court of appeals is necessary to prevent a serious and

unwarranted dilution of academic freedom.

This case raises additional federal questions of

nationwide importance that require prompt resolution,

specifically, whether section 504 impliedly creates a

private right of action and, if so, whether an individual

must exhaust his or her administrative remedies

available under the Act and the HEW regulations.

Unlike any prior case of this Court, never has so much

been implied in a statute from so little. Section 504 and

the implementing regulations do not expressly autho-

rize a private right of action. The legislative history is

silent. The statute envisions and the regulations

provide an elaborate administrative mechanism which

can ensure remedial relief for individuals. And the

threat of a cutoff of federal assistance guarantees swift

enforcement of the statutory prohibition.

Only one court of appeals has devoted’any analysis to

the implication ofa private right of action under section

504.9 And the rationale of that case cuts against the

judicial creation of such a private right. In Lloyd v.

Regional Transportation Authority, 548 F.2d 1277 (7th

9 Other circuits finding such a right have done so only in

conclusionary terms. See, e.g., United Handicapped Federa-

tion v. Andre, 558 F.2d 413 (8th Cir. 1977), and Kampmeier v.

Nyquist, 553 F.2d 296 (2d Cir. 1977).

1]

Cir. 1977), the court implied a private right of action

under section 504 for a large group of plaintiffs because

at that time administrative remedial machinery did not

exist to vindicate affirmative rights:

We expressly leave open as premature the

question whether, after consolidated procedural

enforcement regulations are issued to implement

Section 504, the judicial remedy available must be

limited to post-administrative remedy judicial

review. In any event, the private cause of action we

imply today must continue at least in the form of

judicial review of administrative action. And until

effective enforcement regulations are promulgated,

Section 504 in its present incarnation as an

independent cause of action should not be subju-

gated to the doctrine of exhaustion. ... But

assuming a meaningful administrative enforce-

ment mechanism, the private cause of action under

Section 504 should be limited to a posteriori judicial

review.

548 F.2d at 1286 n.29 (emphasis added).

Since the promulgation of the HEW regulations, a

meaningful administrative enforcement mechanism

has exis’ed for private parties, obviating the need for

invention of a private right of action from a silent

legislative history. Even if a private right of action

should be found, because of the existence of the HEW

regulations and the remedy they afford, the time is now

ripe for this Court to apply to section 504 the well-

established rule that a litigant is not entitled to judicial

relief until the prescribed administrative remedy has

been exhausted. McKart v. United States, 395 U.S. 185

(1969); Myers v. Bethlehem Shipbuilding Corp., 303 U.S.

41 (1938). Recognizing the importance of this principle,

a recent decision has held that a plaintiff may not bring

a private action under section 504 of the Act without

first exhausting the new HEW administrative remedies

that were designed to investigate complaints of discrim-

12

ination. Doe v. New York University, 442 F. Supp. 522,

523-24 (S.D.N.Y. 1978):

On paper, it now appears that, in the words of

the Seventh Circuit in Lloyd, supra, “meaningful

administrative enforcement” is available for com-

plaints under section 504. HEW must be given at

least the opportunity to develop an efficient and

sensitive mechanism to deal with complaints of

discrimination brought by handicapped persons

before a court can make a reasoned evaluation of

such a mechanism’s adequacy. Especially in the

context of a relatively new and broadly-worded

statute like the one in question here, which could

flood the courts with new litigation, administrative

interpretation and guidance may be an important

element in the developing construction and appli-

cation of the law... . . Further, it is not unreasona-

ble to conclude that HEW could bring a greater

degree of flexibility and expertise to bear on these

issues.

Another decision, Crawford v. University of North

Carolina, 440 F. Supp. 1047 (M.D.N.C. 1977), has also

held that the “primary jurisdiction” doctrine is approp-

riate for grievances under section 504 of the Act. In

Crawford, the plaintiff was a deaf-handicapped gradu-

ate student who claimed the university failed to provide

him with interpreter services. The court in Crawford

concluded that under the HEW regulations:

[AJny person believing himself to be the object of

discrimination can file a complaint (45 C.F.R.

§ 80.7). An investigation can be commenced and a

hearing may be obtained. While a complainant

may not be a party to the proceeding, he can

petition to become involved in the controversy as

amicus curiae. (45 C.F.R. § 81.23).

13

440 F. Supp. at 1058. See Barnes v. Converse College,

No. 77-1116 (D.S.C., order filed Mar. 28, 1978), appeal

docketed, No. 78-1440 (4th Cir. July 19, 1978).

This authority may presage the required result in this

case, whether resort is made to the doctrines of

exhaustion of administrative remedies or primary

jurisdiction. See Nader v. Allegheny Airlines, 426 U.S.

290 (1976); Cannon v. University of Chicago, 559 F.2d

1063 (7th Cir. 1977), cert. granted, 98 S. Ct. 3142 (1978).

CONCLUSION

The amici curiae are in full agreement with the

remarks of one sage commentator who recently stated:

No one can quarrel with a goal of full access and

participation by handicapped citizens in the life

and affairs of this nation, but questions are

legitimately raised as to who can and should bear

the costs inherent in serving that goal.

Brooks, Section 504 of the Rehabilitation Act of 1973

and the Private College: Barnes v. Converse College, 29

Mercer L. Rev. 745, 745-46 (1978).

At a time when all beneficiaries of federal aid,

including the amici, are vitally in need of guidance

regarding their necessary responsibilities under the

Rehabilitation Act, this case raises these key questions

and a host of others on the scope and meaning of this

important federal statute. This Court’s determination of

those urgent questions of federal law is worthy of the

most serious consideration. For these reasons and those

expressed throughout this brief, the undersigned amici

curiae strongly urge review by this Court of the divided

decision of the United States Court of Appeals for the

Fourth Circuit in this case.

Respectfully submitted,

SHELDON ELLIOT STEINBACH FRANCIS X. BELLOTTI

1 DuPont Circle, N.W. Attorney General of Massachusetis

Suite 824 One Ashburton Place

Washington D.C. 20036 Boston, Massachusetts 02108

Attorney for the American Attorney for the

Council on Education Commonwealth of Massachusetts

GERALD GORNISH

Attorney General of Pennsylvania

Capitol Annex, Room 1

Harrisburg, Pennsylvania 17120

Attorney for the

Commonwealth of Pennsylvania

J. MARSHALL COLEMAN

Attorney General of Virginia

Supreme Court — Library Building

Richmond, Virginia 23219

Attorney for the

Commonwealth of Virginia

AVRUM GROSS

Attorney General of Alaska

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State of Alaska

JOHN A. LaSOTA, JR.

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200 State Capitol Building

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CARL R. AJELLO

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Hartford, Connecticut 06115

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State of Connecticut

RICHARD R. WIER, JR.

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Attorney for the

State of Delaware

ROBERT L. SHEVIN

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Attorney for the

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ARTHUR K. BOLTON

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Attorney for the

State of Georgia

14

RONALD Y. AMEMIYA

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WAYNE L. KIDWELL

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WILLIAM J. GUSTE, JR.

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Baton Rouge, Louisiana 70804

Attorney for the

State of Louisiana

FRANCIS B. BURCH

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Attorney for the

State of Maryland

A. F. SUMMER

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Attorney for the

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JOHN D. ASHCROFT

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Attorney for the

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MICHAEL T. GREELY

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PAUL L. DOUGLAS

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THOMAS D. RATH

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Attorney for the

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LOUIS J. LEFKOWITZ

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#2 World Trade Center

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Attorney for the

State of New York

RUFUS L. EDMISTEN

Attorney General of North Carolina

Justice Building, P.O. Box 629

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Attorney for the

State of North Carolina

WILLIAM J. BROWN

Attorney General of Ohio

State Office Tower, 30 E. Broad St.

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Attorney for the

State of Ohio

15

JAMES A. REDDEN

Attorney General of Oregon

100 State Office Building

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Attorney for the

State of Oregon

DANIEL R. McLEOD

Attorney General of South Carolina

Hampton Office Building

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Attorney for the

State of South Carolina

WILLIAM M. LEECH, JR.

Attorney General of Tennessee

450 James Robertson Parkway

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Attorney for the

State of Tennessee

SLADE GORTON

Attorney General of Washington

Temple of Justice

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Attorney for the

State of Washington

CHAUNCEY H. BROWNING, JR.

Attorney General of West Virginia

State Capitol

Charleston, West Virginia 25305

Attorney for the

State of West Virginia