# Amicus Brief — Southeastern Community College v. Davis

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1973%3A02

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Brief
- **Published:** January 1, 1979
- **Citation:** 442 U.S. 397

## Text

> 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
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
Wi'mington, 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

14

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

LOUIS J. LEFKOWITZ
Attorney General of New York
#2 World Trade Center
New York, New York 10047

Attorney for the
State of New York

RUFUS L. EDMISTEN
Attorney General of North Carolina
Justice Building, P.O. Box 629
Raleigh, North Carolina 27602
Attorney for the
State of North Carolina

WILLIAM J. BROWN
Attorney General of Ohio
State Office Tower, 30 E. Broad St.
Columbus, Ohio 43215
Attorney for the
State of Ohio

15

JAMES A. REDDEN
Attorney General of Oregon
100 State Office Building
Salem, Oregon 97310

Attorney for the
State of Oregon

DANIEL R. McLEOD
Attorney General of South Carolina
Hampton Office Building
Columbia, South Carolina 29211
Attorney for the
State of South Carolina

WILLIAM M. LEECH, JR.
Attorney General of Tennessee
450 James Robertson Parkway
Nashville, Tennessee 37219

Attorney for the
State of Tennessee

SLADE GORTON
Attorney General of Washington
Temple of Justice
Olympia, Washington 98504
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1973%3A02. Public record. Not legal advice.