Amicus Brief — Southeastern Community College v. Davis
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IN THE | HIGHAM. BODAK, IR. GLEBK
Supreme Court of the United States
OCTOBER TERM, 1978
No. 78-711
SOUTHEASTERN COMMUNITY COLLEGE,
Petitioner,
v.
FRANCES B. DAVIS,
Respondent.
On A WRIT OF CERTIORARI TO THE
UNITED STATES CouRT OF APPEALS
FOR THE FOURTH CIRCUIT
BRIEF OF THE COMMONWEALTHS OF MASSACHUSETTS
AND VIRGINIA AND THE STATES OF ARIZONA, CONNECTI-
CUT, DELAWARE, FLORIDA, GEORGIA, HAWAII, IDAHO,
INDIANA, IOWA, KANSAS, LOUISIANA, MARYLAND, MISSIS-
SIPPI, MISSOURI, MONTANA, NEBRASKA, NEW HAMPSHIRE,
NEW JERSEY, NEW YORK, NORTH CAROLINA, NORTH
DAKOTA, OHIO, OKLAHOMA, OREGON, SOUTH CAROLINA,
TENNESSEE, TEXAS, WASHINGTON, WEST VIRGINIA, AND
WISCONSIN AS AMICI CURIAE IN SUPPORT OF THE PETI-
TIONER
FRANCIS X. BELLOTTI ROBERT K. CORBIN
Attorney General of Massachusetts Attorney General of Arizona
One Ashburton Place 200 State Capitol Building
Boston, Massachusetts 02108 Phoenix, Arizona 85007
Attorney for the Attorney for the
Commonwealti:: of Massachusetts State of Arizona
J. MARSHALL COLEMAN CARL R. AJELLO
Attorncy General of Virginia Attorney General of Connecticut
Supreme Court — Library Building Capitol Annex, 30 Trinity Street
Richmond, Virginia 23219 Hartford, Connecticut 06115
Attorney for the Attorney for the
Commonwealth of Virginia State of Connecticut
(Counsel continued inside front cover;
The Daily Record Co., Baltimore, Md. 21202 >
TABLE OF CONTENTS
PAGE
INTERESTS OF THE AMICI CURIAE ..........ccseeeceeeeeees 1
QUESTIONS PRESENTED. ............c:sscceceessssceceesseeeeeeeees 3
SUMMARY OF ARGUMENT. ...........ccccceseessseeeeeeeeeseeeeees 3
ARGUMENT:
I. The Definition Of “Otherwise Qualified
Handicapped Individual” By The Court
Of Appeals Contravenes Section 504 Of
The Rehabilitation Act Of 1973 And
The Implementing HEW Regulations .. 6
II. Contrary To The Holding Of The Court
Of Appeals, Section 504 Of The Act
Does Not Impose Affirmative Action
Requirements On Beneficiaries Of Fed-
| guia Ae noA ern Rrad col kite RACE OO LOR NCE 13
III. A Private Right Of Action Should Not
Be Implied Under Section 504. .............. 22
IV. Even If A Private Action is Available,
The Doctrines Of Exhaustion Of Admin-
istrative Remedies And Primary Juris-
diction Should Be Found Applicable ... 48
Bs | RANE. IRC RE NEN MEN URS aOR 56
TABLE OF CITATIONS
Cases
Ashwander v. TVA, 297 U.S. 288 (1936) ............ 31
Barnes v. Converse College, 436 F. Supp. 635
Ra. RAPT ED cocssbee dina aaistaicsnenescovsqzenitnees 17, 42
Barnes v. Converse College, No. 77-1116 (D.S.C., |
order filed Mar. 28, 1978) .0..........:ccccsccceeseseeeees 51
Bartels v. Biernat, 405 F. Supp. 1012 (E.D. Wis.
ST oclaeeintathives thiamin stanstbsnvatsiisvcasciniactianlinshass 43
ii
Bartels v. Biernat, 427 F. Supp. 226 (E.D. Wis. —
| ERENCE RIEL LAS e el Secs ae MTR OO ne 43
Bivens v. Six Unknown Federal Narcotics
Agents, 403 U.S. 388 (1971) ........sceeseseseeeeees 48
Board of Curators of the University of Missouri
v. Horowitz, 434 U.S. 78 (1978) ........ceeeeseseeee 40
Bradley v. School Board of Richmond, 416 U.S.
I ED cecnsieiindicnciptnstnissthesttigosisianiiecinenilesinstgainacensnness 23, 54
Camenisch v. University of Texas, No. A-78-CA-
961 (W.D. Tex. May 17, 1978) -....sccesseeeeeee 43,51
Campbell v. Kruse, 434 U.S. 808 (1977) .............. 31
Cannon v. University of Chicago, 559 F.2d 1063
CFR MIE. ROI ED cicrnarsiketbicnendennediiepustansouincekei 33, 47, 52, 53
Cherry v. Mathews, 419 F. Supp. 992 (D.D.C.
IIE: sisi Minetsiceaistiiacdesesaabstnguhtiniicananapcaneatcamecehstimsuiieke’ 35, 54
Coleman v. Darden, 13 Empl. Prac. Dec. 6788 (D.
RN ETD "iis nicised pduiebeibsetaiibin dabbling dachpaeanidnaieiebaodien 47
Cort v. Ash, 422 U.S. 66 (1975) wo...ecceeeccccceeeseeeeeeee passim
Crawford v. University of North Carolina, 440 F.
Supp. 1047 (M.D.N.C. 1977) wu. eeeeeeseeeeees 51,53
Davis v. Southeastern Community College, 424
F. Supp. 1341 (E.D.N.C. 1976) ................000 7,10, 11
Davis v. Southeastern Community College, 574 |
F.2d 1158 (4th Cir. 1978) wou... cccceccssscsesseeees passim
Dewey v. Reynolds Metals Co., 402 U.S. 689
CIEE LD siics dpsscnsantebiniicicasinbansinnadedadncoemanaicicn 18
Doe v. New York University, 442 F. Supp. 522
I, Ws EE eihisbemmevudcicciiasisdbecdniensnideioipacornes 50
Drennon v. Philadelphia General Hospital, 428
F. Supp. 809 (E.D. Pa. 1977) .o...ccceeeeeeee 47,52, 54
DuPree v. City of Chattanooga, 362 F. Supp. 1136
Ee, PS IP OAP sekisinshensnsabieccibbedaceineeeaienakiionee 52
Duran v. City of Tampa, 430 F. Supp. 75 (M.D.
pe, RRRPER SAT ERE EEE Meir bh AES Bn 44
iii
PAGE
Epperson v. Arkansas, 393 U.S. 94 (1968) ......... 40
General Electric Co. v. Gilbert, 429 U.S. 125
COIN Sia sails a lesnatanitenahessdashiaotesnlaneallbebinsnsoailonseniias 17,18
Greene v. Howard University, 271 F. Supp. 609
(D.D.C. 1967) ........ OEY COM EERO Re SNE TOE 20
Green Street Association v. Daley, 373 F.2d 1
CF REED hidisdnseaiecainisenistidbeceectkcbbindactsbacnncncss 52
Gurmankin v. Constanzo, 411 F. Supp 912 (E.D.
A TUFTED icissidicctbtevasinsnphhivnahssgnaevaniiieiaanaiomnvelion 43
Hairston v. Drosick, 423 F. Supp. 180 (S.D.W. Va.
SEP TEE Nceriathcaniiscetecndenessabbipinieandlinadsaiiaviavasadsatausiehes 42,43
Halderman v. Pennhurst State School & Hospi-
tal, 446 F. Supp. 1295, 1323 (E.D. Pa. 1977) 43
Healy v. James, 408 U.S. 169 (1972) ...............00 41
Herbold v. Trustees of the California State
University and Colleges, C-78-1358-RHS
(N.D. Cal. July 17, 1978) 0... ceeccessseessseeeees 51
Johnson v. County of Chester, 413 F. Supp. 1299
Sadi Sea UIE ienssalivisiatiesvassstidindenaindauibadéameaninnnences 52
Kampmeier v. Nyquist, 553 F.2d 296 (2d Cir.
Rh nk ancueiioains 42
Keyishian v. Board of Regents of the University
of New York, 385 U.S. 589 (1966) ................. 41
Lau v. Nichols, 414 U.S. 563 (1974) ................. 31, 45, 46
Leary v. Crapsey, 566 F.2d 863 (2d Cir. 1977) .. 42
Lloyd v. Regional Transportation Authority, 548
F.2d 1277 (7th Cir. 1977) .........cccccsscsessseeeseeerees passim
Mayor and City Council of Baltimore v. Ma-
thews, 562 F.2d 914 (4th Cir. 1977) .............. 48
McKart v. United States, 395 U.S. 185 (1969) ... ° 48
Meyer v. Nebraska, 262 U.S. 390 (1923) .............. 41
Montana-Dakota Utilities Co. v. Northwestern
Public Service Co., 341 U.S. 246 (1951) ....... 27
ii,
Davis v. Bucher
451 F. Supp. 791 (E.D.Pa.
DPI aN ecco wecveswoosececccsese 8B, 17
Dermott Special School Dist. v.
Gardner, 278 F. Supp. 687 ¢E.D.
APK. 19GB) .ccccccecsecesesccecesdd
Doe v. Colautti
454 F. Supp. 621 (W.D. Pa.
LOTS) cccecnccccceciesncesccescodl
Doe v. Grile
No. F 77-108 (N.D. Ind. Aug.
Re Perera erat & ae
Doe v. Marshall
459 F. Supp. 1190 (S.D. Tex,
ROTTS) ccceesessecccccssceséscscoald
Doe v. New York University
422 F. Supp 809 (S.D. N.Y.
LOFTS) cccccecscccescesscccccccses BG, LG
25, 28
Drennan v. Philadelphia General
Hospital, 428 F. Supp. 809
(B.D. Pa ASTT) ccvccccrveseeeoece Fy 18
Duran v. City of Tampa
430 F. Supp. 75 (M.D. Fla.1978).7, 17
Flanagan v. President & Directors
of Georgetown College.
417 F. Supp. 377 (D.D.C. 1976). 9
Guernsey v. Rich Plan of the Mid-
west, 408 F. Supp. 582 (N.D.
InG. 1976) .ccccccecscseccesecs 12
Gurmankin v. Costanzo |
556 F. 26 184 (328 Cir. 2977). 7
Hairston v. Drosick
423 F. Supp. 1190 (S.D. Tex.
L9TS) wcccvvcencsevesccecseveses 7
Halderman v. Pennhurst
466 F. Supp. 1295 (E.D. Pa.
L977) voccwcccecses cai ce ene sess 8, 17
aaa,
Hairston v. Drosick
423 F. Supp. 180 (S.D.W.Va.
a, Ba ee aes rae
Howard S. v. Friendswood Ind.
School District, 454 F. Supp.
634 (6.D. Tex. LOTS) occcceseesd8
Jayne v. University of Nevada
Nc. R-76-183 BRT (D.Nev. June
tel css Aer err ee eee ee 7
Kampmeier v. Nyquist
sos F420 296 (2nd Cir. 1977)... 7
Lau v. Nichols
414 U.S. S63 (1974) ccccecccves 8,
Laufman v. Oakley Building
and Loan Co., 408 F. Supp.
SSy (8.0. Goae 2976) 2.0420 sec0ck0
Leary v. Crapsey
566 F. 2d 863 (2nd Cir. 1977). 7
Like v. Carter
448 F. 2d 798 (8th Cir.1971)..12
Lloyd v. Regional Transportation
Authority, 548 F.2d 1277 (7th
CEs AGT Fade cecescwedseeoceca Ty
10,
12,
19,
Lora v. Board of Education
456 F. Supp. 1211 (E.D.N.Y.
Sl } Aerercrree ee eee ee reo,
Marable v. Alabama Mental Health
Board, 297 F. Supp. 291 (M.D.
BLA. L969) ccccccccccvcscsseccccdd
Michigan Paralyzed Veterans of
America v. Coleman, 451 F. Supp.
uh ie REET D o ¢ iio s 0-00 «Oe
Mielke v. Hannon
72 Civ. 473 (N.D. T1ll.)eccceeed
17
13
28
17
iv:
National Ass'n. for Community
Development v. Hodgson
356 F. Supp. 1399 (D.D.C. 1973) .12
Natonabah v. Bd. of Ed.
355 F. Supp. 716 (D.N.M. 1973)..10
NYSARC v. Carey
393 F. Supp. 715 (E.D.N.Y.
1975) wecccccecs eeccccces rere rree
NYSARC v. Carey
No. 72-356,357 (E.D.N.Y. orders
issued Sept. 14,1978 and Feb.28,
BOTS) sc Pewdceacececececiossevcseonl
Pedro v. Bishop
No. 78-083P(N.D. Miss. Oct. 28,
AST) ccccedvesceseccsneeccecoceveks
Regents v. Bakke
0.8. 57 Le. BG.28 750 (1976)....-10,
20
Rios v. Read
75 Cir. 296 (E.D.N.Y. October
LI pADIS) cncewecacscsesccesseaeces 23
Rogers v. Frito-Lay
433 F. Supp. 200 (N.D. Tex.
1977) wove Coweednecéessesvenvecves ©
Serna v. Portales Municipal
Schools, 499 F.2d 1147 (9th Cir.
LOTTE} ccccccccccccceccccesvccsecshd
Shera v. Waier
457 F. Supp. 1034 (W.D. Mo.1978)17
Simon v. St. Louis County
C.A. 77-1140 C(4) (E.D. Mo. Jan.
Shea OTOP co cctcesectevvceses padean: We
Sites v. McKenzie
423 F. Supp. 1190 (N.D.W. Va.
L976) wocccoccccccesccncesevessce by
Snowden v. Birmingham-Jefferson
County Transit Authority
407 F. Supp. 394 (N.D. Ala.1975)
aff'd per curiam, 551 F. 2d 862
TSE SEN ROTTS cvecenedeccduvens Oi
18
16
17
17
Stubbs v. Kline
463 F. Supp. 1034 ( W.D. Mo.
LOTS) ccccccccccccescesecccecececs 17
Sullivan v. Chase Inv. Servs. of
Boston, Inc., 434 F. Supp. 171
Tats GCOhs AFT T cc cevcecees sscoehke
Trageser v. Libbie Rehabilitation
Center, Inc., cert. granted, 78-
BOSE cesbcestdacsrcesseseasneceeace 2
United Handicapped Federation v.
Andre, 588 F.2d 413 (8th Cir.
EP TP oe ccewecececccccesecesceseces 7
Vanco v. Finlay
440 F. Supp. 656 (N.D. Ohio 1977)7,
Walker v. Southern Ry. Co.
a ere
Whitaker v. Board of Higher
Education
461 F. Supp. 99 (E.D. N.Y. 1978)12,
23,
28
Statutes and Regulations
29 U.S.C. §$706(6)...-. eeeeces coces 2
17
16
29 U.S.C. $791, Gt SOG. cccccccee -Dassm
42 U.S.C. $19BS. cc cccccccccccccecs 3
42 U.S.C. §1988......... ececcccecce 14,
42 U.S.C. §2000d et SOEGe sc eeeeeeee 8,
45 C.F.R. 80-6-80-10.............-.18,
22,
435 C.P.R. 84.6. cc ccccccccccccccce cel
o
18
20
23
Wis
Legislative History
124 Cong. Rec. 15590,15593
(Sept. 20,
H. Rep. No.
EPTG) ca osiccesesscss
95-1149,
95th Cong., 2d Sess. (1978)....
S. Rep. No.
De. SOs LhPU Olea was oe te eweee
S. Rep. No 93-1297,
93rd Cong., 2d Sess. (1974)...
Other Authorities
Jaffe, Judicial Controls of
Administrative Action (1965)..19
Johnston, "Private Rights of
Action under Title Ix,"
13 Harv. C.R.C.L.L. Rev. 425,
oe = ey ) A
Schwartz, Administrative
Law (1976)
12
11
In The
SUPREME COURT OF THE UNITED STATES
No. 78-711
SOUTHEASTERN COMMUNITY COLLEGE,
Petitioner,
vs.
FRANCES B. DAVIS,
Respondent.
On Writ of Certiorari to the
United States Court of Appeals
for the Fourth Circuit
BRIEF OF THE AMERICAL CIVIL LIBERTIES
UNION, THE NEW YORK CIVIL LIBERTIES
UNION, AND AMERICAN CIVIL LIBERTIES
UNION OF SOUTHER CALIFORNIA,
AMICI CURIAE
Interest of Amici Curiae */
The American Civil Liberties Union is a
nationwide, non-partisan organization of
two hundred thousand members, dedicated to
defending the principles embodied in the
Bill of Rights to the Constitution. The
New York Civil Liberties Union and the
American Civil Liberties Union of Southern
California are state affiliates of the ACLU,
operating in New York State and Southern
California, respectively.
The ACLU and its affiliates have a
deep interest in protecting the Constitu-
tional and statutory rights of handicapped
individuals, including rights secured by
the Rehabilitation Act of 1973, 29 U.S.C.
794. In the belief that judicial enforce-
ment can best secure the rights of handi-
capped individuals, the ACLU has represen-
ted developmentally disabled plaintiffs in
the Willowbrook case, NYSARC v. Carey, 393
F.Supp. 715 (F.D.N.Y. 1975), and petitioner
in Trageser v. Libbie Rehabilitation Center,
Inc., cert. granted, 78-1454, among others.
*/ Consents to the filing of a brief
Amicus Curiae have been obtained from all
parties and have been lodged with the
Clerk's office.
3.
This case raises important questions
concerning the ability of handicapped per-
sons to make the rights secured by the
Constitution and the Rehabilitation Act
a reality. For good reason, courts rather
than administrative agencies have been the
primary guarantors of such important per-
sonal rights. Amici submit this brief in
support of the traditional role of the
courts in vindicating civil rights.
STATEMENT OF THE CASE
Respondent Frances Davis, an indivi-
dual with a hearing disability, sought and
was denied admission to the Associate Degree
Nursing Program offered by petitioner South-
eastern Community College. After unsuccess-
fully seeking reconsideration of that denial
by the college President, an informal review
procedure provided by the college, Ms. Davis
filed a civil action under Section 504 of
the Rehabilitation Act of 1973, 29 U.S.C.
§794, and 42 U.S.C. §1983, alleging discrimi-
nation in admission on the basis of her hear-
ing disability.
The trial court upheld respondent's
right to maintain the action without exhaus-
tion of further administrative remedies, 424 F.
Supp. 1341 (E.D.N.C. 1976). However, the
court held that although respondent is a
"handicapped person" within the meaning of
29 U.S.C. §706(6), the college's actions did
not constitute discrimination. On appeal,
a panel of the Fourth Circuit unanimously
affirmed the district court's holding as to
the private right of action and exhaustion
issues, and remanded on the merits of the
claim itself for consideration by the dis-
trict court of recently promulgated regula-
Se
4.
of the administrative process is presently
tions implementing Section 504. A petition futile, as even H.E.W. concedes (IIBii).
for rehearing and suggestion for rehearing
en banc were subsequently denied without
opinion. 574 F.2d 1158, 1163.
INTRODUCTION AND SUMMARY
OF ARGUMENT
Amici have special experience and
expertise in two of the questions for which
the Court granted certiorari in this case -
whether §504 of the Rehabilitation Act of
1973 confers a private right of action and
whether administrative exhaustion is re-
quired, at least under the circumstances
presented here. Amici's brief is therefore
limited to a discussion of these two impor-
tant points.
Section 504 confers a private right of
action on aggrieved handicapped individuals
to secure rights guaranteed by the Act.
The existence of a private right of action
is fully consistent with the standards enun-
ciated by this Court in Cort v. Ash, 422
U.S. 66 (1975), and has been recognized by
virtually all federal courts to consider the
issue. (Point I) .
The Court of Appeals was correct in
ruling that administrative exhaustion was
not required under the circumstances of
this case. The weight of decisional law
Supports that conclusion (IIA). The ad-
ministrative process is directed toward
the termination of federal funds for sys-
tematic non-compliance, and is not designed
or implemented to-redress specific depri-
vations of individual rights (IIBi).
Moreover, because H.E.W. is currently faced
with severe delays in investigating and
processing individual complaints, exhaustion
6.
ARGUMENT
I. SECTION 504 OF THE REHABILITATION
ACT OF 1973 MAY BE ENFORCED BY A
PRIVATE RIGHT OF ACTION.
By enacting the Rehabilitation Act
of 1973, Congress intended to make "parti-
cipation in society more feasible for han-
dicapped individuals." 1973 U.S. Code Cong.
& Adm. News 2092. Virtually every federal
court to consider the question presented
here has concluded that a private right of
action on behalf of handicapped individuals
against those who have discriminated on the
basis of handicap is both necessary and
proper "and intended" under §504 of the
Rehabilitation Act. That conclusion, en-
dorsed by the Fourth Circuit in this case,
574 F.2d at 1159, is entirely consistent
with the reasoning of this Court's deci-
sion in Cort v. Ash, 422 U.S. 66 (1975),
where the standards for implying rights of
action were set forth.
A. The Lower Federal Courts Are In Virtually
Unanimous Agreement That §504 May Be
Enforced By A Private Right Of Action.
The federal courts have from the outset
construed §504 of the Rehabilitation Act
of 1973, 29 USC §794, to create a private
right of action. In the carliest cases,
most courts simply assumed the existence of
such a right. See e.g. Hairston v. Drosick,
423 F. Supp. 180 (S.D. W. Va. I976); Snow-
den v. Birmingham-Jefferson County Transit
Authority, 407 F. Supp. 394 (N.D. Ala. 1975).
Indeed, the district court did the same here.
With the passage of time this unstated as-
sumption has been more frequently made ex-
plicit after careful analysis of legislative
history and relevant decisional law.
7.
Sites v. McKenzie, 423 F. Supp. 1970
(N.D.W.Va.1976), was the first case express-
ly to recognize a private right of action
under §504. In Sites, plaintiff asserted
that defendants' denial of vocational reha-
bilitation opportunities to mentally ill
prisoners violated the anti-discrimination
strictures of §504. The court granted plain-
tiff's motion for summary judgement stating
that §504 "... provides a cause of action
for any discrimination on the basis of such
handicap..." 423 F.Supp. at 1197.
Sites was followed by Lloyd v. Illinois
Regional Transportation Authority, 548 F.2d
1277 (7th Cir. 1977), which based its con-
clusion that a private right of action could
be implied under §504 upon a detailed analy-
sis of this Court's decisions on implied
rights of action. Lloyd's holding has been
adopted by every circuit court which has
since considered the issue. See Kampmeier
v. Nyquist, 553 F.2d 296 (2nd Cir.1977);
United Handicapped Federation v. Andre, 558
F.2d 413 (8th Cir. 1977); Leary v. Crapsey,
566 F.2d 863 (2nd Cir.1977); Davis v. South-
eastern Community College, 574 F.2d 1178
(4th Cir.1978); see also Gurmankin v. Cos-
tanzo, 556 F.2d 184 (3rd Cir.1977), Coleman
v. Darden, 47 U.S.L.W. 2583 (10th Cir. Feb.
23, 1979) .1/
1/ Most District Courts passing on the ques-
tion have recognized a private right of ac-
tion under Section 504. See Bartels v.
Biernat, 427 F. Supp. 226 (E.D. Wis.1977);
Drennon v. Philadelphia General Hospital,
428 F. Supp. 809 (E.D. Pa. 1977); Duran v.
City of Tampa, 430 F. Supp. 75 (M.D. Fla.
1977); Vanko v. Finley, 440 F. Supp. 656
(N.D. Ohio 1977); Jayne v. University of
Nevada,- Reno, No. R-/6-183
8.
In determining that a private right
of action was appropriate under Section 504,
the Lloyd court first noted the near iden-
tity of language in §504 and Section 601
of the Civil Rights Act of 1964, 42 U.S.C.
§2000d.2/ Recognizing that the practice un-
der Section 601 would bear heavily on plain-
tiffs' right to bring a private action pur-
Suant to Section 504, the court then reviewed
the practice under Title VI and discussed Lau
v. Nichols,, 414 U.S. 563 (1974), in which
this Court recognized a private action under
Title VI and permitted private persons to
1/ (cont'd)
BRT (D. Nev. June 10, 1977); Michigan
Paralyzed Veterans of America v. Coleman,
451 F.Supp. 7 (E.D. Mich. 1977);
Halderman v. Pennhurst, 466 F. Supp. 1295
(E.D.Pa. 1977); Simon v. St. Louis
County, Missouri, No. 77-1140 C.(4) (E.D.
Mo. Jan. 31, 1978); Davis v. Bucher,
451 F.Supp. 791 (E.D. Pa. 1978); Craw-
ford v. University of North Carolina, 440
F. Supp. 1047 (M.D.N.C. 1977); cf. Rogers
v. Frito-Lay, 433 F. Supp. 200 (N.D. Tex.
1977) (private right of action upheld,
but §504 held not to apply to mere govern-
ment contractors). Contra, Doe v. New York
University, 442 F. Supp. 522 (S.D.N.Y.
1978).
2/ Section 504 is patterned after, and is
almost identical to the anti-discrimination
language of Section 601, 42 U.S.C. §2000d,
which provides:
"No person in the United States
Shall, on the grounds of race,
color, or national origin, be
«xCluded from participation in,
9.
challenge the failure of the San Francisco
School District to offer classes in the
Chinese language to Chinese speaking children.3/
The court found Lau "dispositive" in support
of the private right of action. The court
in Lloyd further noted that the regulations
implementing Section 504 established .affir-
mative individual rights which further
supported a private cause of action under
this Court's Lau analysis. Lloyd, supra at
1280, 1281.4/
2/ (cont'd)
be denied the benefits of, or be
subjected to discrimination under
any program or activity receiving
federal financial assistance."
Moreover, §505 of the Act, which was added
in the 1978 amendments, Pub.L.95-1149, now
expressly provides:
"The remedies, procedures and rights
set forth in Title VI of the Civil
Rights Act of 1964 shall be available
to any person agarieved by any act or
failure to act by any recipient of
Federal Assistance or Federal pro-
vider of such assistance under Sec-
tion 504 of this Act."
The regulations promulgated by HEW to imple-
ment §504 are similarly explicit. Under 45
C.F.R. §84.61, "The procedural provisions
applicable to Title VI of the Civil Rights
Act of 1964 [45 C.F.R. §80.6 and 45 C.F.R.
Part 81] apply to this part."
3/ The lower federal courts have agreed that
a private fight of action should be implied
under §60l1. See, e.g., Bossier Parish School
Board v. Leman, 370 F.2d 847, 852 (5th Cir.),
cert. denied, 388 U.S. 911 (1967); Flanagan
v. President and Directors of Georgetown College,
4/ SEE next page,
10.
Additionally, the Lloyd Court found
support for a private right of action under
Section 504 by reference to Cort v. Ash,
Supra, 422 U.S. 66 (1975). In Cort, this
Court listed four factors for determining
whether a private remedy is implicit in
a statute silent on the subject:
First, is the plaintiff "one of the
Class for whose special benefit that
statute was enacted" - that is, does
the statute create a federal right in
favor of the plaintiff? Second, is
there any indication of legislative
intent, explicit or implicit, either
to create such a remedy or to deny
one? Third, is it consistent with the
underlying purposes of the legislative
scheme to imply such a remedy for the
plaintiff? And finally, is the cause
of action one traditionally relegated
to state law, in an area basically the
3/ (cont'd) 417 F. Supp. 377
(D.D.C. 1976); Laufman yv. Oakley Building
& Loan Co.,408 F. Supp. 489, 498-499 (S.D.
Ohio 1976); Natonabah v. Board of Education,
355 F. Supp. 716, 724 (D.N.M. 1973). In
Regents of the University of California v.
Bakke, 98 S.Ct. 2733(1978), decided since
Lloyd, four Justices of this Court found an
implied right of action under Title VI; four
others assumed it for purposes of that case.
4/ The Lau Court had relied heavily on the
existence of administrative regulations to
Support a private cause of action. 414
U.S. at 567-568.
ll.
concern of the States, so that it
would be inappropriate to infer a
cause of action based solely on
federal law? 422 U.S. at 78.
(citations omitted)
Applying this test, the Lloyd court con-
cluded that the plaintiffs met the standards
set forth in Cort for a private action, be-
cause, as persons whose mobility was impaired,
the plaintiffs were among the class "for
whose special benefit" Section 504 had been
enacted. The Lloyd court further found a
strong indication of Congressional intent to
create a private remedy citing a Senate Labor
and Public Welfare Committee report which
noted that Section 504 "...was patterned
after, and is almost identical to, the anti-
discrimination language of section 601 of
the Civil Rights Act of 1964..." S. Rep.No.
93-1297, 93d Cong., 2d Sess. 39-40 (1974).
The Senate Labor and Public Welfare Com-
mittee noted (id. at 40) that "section 504,
which closely follows the models of the
above-cited anti-discrimination provisions,
would "...permit a judicial remedy through a
private action."5/ The Court also concluded
that implying a private remedy for plaintiffs
was consistent with a primary purpose under-
S/ As already noted, a number of federal
courts had ruled or implied that §601 of
the Civil Rights Act of 1964 created a
private right of action by the date of the
just-quoted Senate Report. See Serna v.
Portales Municipal Schools, 499 F.2d 1147
(9th Cir. 1974); Cypress v. Newport News
General and Nonsectarian Hospital Ass'n.,
375 F.2d 648 (4th Cir. 1967); Marable v.
Alabama Mental Health Board, 297 F. Supp.291
(M.M. Ala.1969). These decisions were cer-
tainly known to Congress when it analysed
8304 to Title VI.
12.
lying the Rehabilitation Act. in this case
statutory and regulatory standards regarding
barrier-free construction of public facili-
ties.6/ Finally, the court recognized that
affording plaintiffs a private remedy to
vindicate the transpertation needs of the
disabled would not encroach upon an area
traditionally relegated to state law. The
Court concluded, "Because all four Cort
tests are satisfied, we are reinforced in
our holding that Section 504 implicitly pro-
ry a private remedy." Lloyd, supra at
7.
6/ In assessing this third element of the
Cort test, one factor which courts have con-
Sidered in the past is whether private suites
"aided an otherwise overworked or inefficient
administrative Agency." Johnston, "Private
Rights of Action under Title IX, 13 Harv.
C.R.C.L.L. Rev. 425, 444-445 (1978). See J.I.
Case Co. v. Borak,377 U.S. 426 (1964); Like v.
Carter, 448 F.2d 798 (8th Cir. 1971); Colonial
Realty Corp. v. Bache & Co., 358 F.2d 178
(2d Cir. 1966); Sullivan v. Chase Inv. Servs.,
of Boston, Inc., 434 F. Supp. 171 (N.D.Cal.1977) ;
Guernsey v. Rich Plan of the Midwest, 408 F. Supp.
582 (N.D.Ind. 1976); National Ass'n for Com-
munity Development v. Hodgson, 356 F. Supp.
1399 (D.D.C. 1973); Common Cause v. Democratic
National Comm., 333 F. Supp. 803 (D.D.C.1971).
That is clearly the situation here, as des-
cribed in Point II, infra. Significantly,
"The Office for Civil Rights, as a matter of
policy, believes that complainants should have
a private right of action under Section 504
in federal courts..." Affidavit of Michael
A. Middleton, Director, Division of Policy,
Planning and Research of OCR, submitted in
Whitaker v. Bd. of Higher Ed., 461 F.Supp.
99 (E.D.N.Y. 1978) ‘hereinafter "Middleton
affidavit").
c—
13.
B. The 1978 Amendments To The Rehabilitation
Act Reaffirm The Congressional Intention
To Allow Private Enforcement of §504.
Developments since Lloyd affirm the cor-
rectness of that decision. Most importantly,
in 1978 Congress amended the Rehabilitation
Act to provide, inter alia, that courts may
award attorneys' fees in "any action or
proceeding to enforce or charge a violation
of a provision of this title." P.L.95-602,
§120(a), 92 Stat. 2983. As explained in the
accompanying House Report, the purpose of
this addition was to provide "“attorneys'
fees to successful parties in judicial ac-
tions to enforce the provisions of Title V."
H.Rep. No. 95-1149, 1978 U.S. Code Cong. &
Adm. News 7490, 7491 (emphasis added). The
only possible interpretation of this unam-
biguous language is that the 95th Congress
believed that a private right of action
was available to enforce the substantive
provisions of §504, and that it intended to
assist such private enforcement.
In the discussion of the 1978 Amendments
to the Rehabilitation Act, Senator Cranston,
Chairman of the Subcommittee on Child and
Human Development of the Committee on Human
Resources, emphasized that the provision for
allowance of attorneys’ fees by a court
"would be an important step in assisting all
handicapped individuals in their struggle
by permitting equal access to the courts to
enforce the provisions of Title V of the
Rehabilitation Act of 1973. 124 Cong. Rec.
15590 (Sept. 20, 1978). See also, S. Rep.
No. 95-890, 95th Cong., 2d Sess. 19 (1978).
Senator Cranston emphasized that "the rights
extended to handicapped individuals under
Title V of the Rehabilitation Act of 1973...
are and will continue to be in need of constant
vigilance by handicapped individuals to assure
compliance. Private enforcement of
14.
these Title V rights is an important and
necessary aspect of assuring that these
rights are vindicated and that enforcement
is uniform." 124 Cong. Rec. 15590 (Sept.
20, 1978).
Senator Bayh noted that the proposed
1978 Amendments were consistent with the
initial intent of Congress when Title VI
was first enacted in 1964 "to create a
private right of action for aggrieved indi-
viduals. The Circuit Courts of the United
States have clearly acknowledged this con-
gressional intent. (Cases cited from the
Fourth, Fifth and Eighth Citcuits omitted)"
Id., at 15593.
Further colloquy between Senators
Cranston and Bayh emphasized that one of the
principal purposes of the passage of the
Civil Rights Attorneys Fees Awards Act of
1976, Pub.L. 94-559 was "to encourage ap-
propriate private litigants to bring ac-
tions under titles VI and VII of the Civil
Rights Act of 1964 and Title IX of the
Education Amendments of 1972, id. at 15593,
and similarly, that "an important reason"
for what is now §505, "is to encourage
appropriate private litigants to bring
actions under Title V of the Rehabilitation
Act." Id. Senator Cranston quoted again
from the Congressional discussion of the
1974 Amendments to the Rehabilitation Act
to stress that Section 504 would "permit a
judicial remedy through a private action."
Finally, Senator Bayh concluded his
discussion of the 1978 Amendments with the
following observation:
"I thank the distinguished Senator
from California for taking time
b.
to make clear the continuing
intention of Congress that pri-
vate actions be allowed under
titles VI and VII of the Civil
Rights Act of 1964, title IX of
the Education Amendments of 1972
and title V of the Rehabilita-
tion Act of 1973." Id. (emphasis
added). 7/
In sum, a private right of action under
Section 504 of the Rehabilitation Act has
been endorsed by every Circuit Court of
Appeals which has considered the issue. More-
over, these conclusions are consistent with
the Supreme Court's standards regarding the
appropriateness of private actions set forth
in the Cort v. Ash decision, supra.
7/ This language becomes even more com-
pelling when placed against the context
of a body of developing case law which
had already implied a private right of
action under §504. Had Congress originally
intended otherwise, it surely could have
taken the opportunity presented by the com-
prehensive Rehabilitation Act Amendment of
1978 to halt that trend. Instead, as
Senator Bayh's comments indicate, it con-
firmed that trend.
16.
II. EXHAUSTION OF ADMINISTRATIVE
REMEDIES IS NOT REQUIRED UNDER
§504 BECAUSE THE REGULATIONS
DO NOT PROVIDE A MEANINGFUL
ENFORCEMENT MECHANISM FOR THE
VINDICATION OF PERSONAL RIGHTS.
A. Exhaustion of Administrative Remedies
is Not Required Under §504 of the
Rehabilitation Act.
Neither the language nor the legisla-
tive history of §504 specifically requires
individual complainants to exhaust
their administrative remedies prior to
initiating litigation.
A considerable body of case law supports
the view that exhaustion is not necessary
in the §504 context. In Campbeli v. Kruse,
434 U.S. 808 (1977), this Court vacated and
remanded a lower court opinion which had
been based on constitutional grounds "with
directions to decide the claim based on the
federal statute,§504 of the Federal Rehabili-
tation Act of 1973." Id. (emphasis added).
Plaintiff in that case had not exhausted
administrative remedies, and this Court's
ruling implicitly precluded any attempt to
subject plaintiffs" claim to a requirement
of prior administrative review.
Since then, other courts have been more
explicit in reaching the same result. Most
recently, Chief Judge Mishler ruled in
Whitaker v. Board of Higher Education, 461
F.Supp. 99 (E.D.N.Y. 1978), that exhaustion
is not required in §504 cases. Similarly,
in Simon v,. St. Louis County, C.A. 77-1140
C(4) (E.D. Mo. Jan. 31, 1978), the court
refused to dismiss a §504 claim for failure
17
to exhaust administrative remedies. And in
Michigan Paralyzed Veterans of America v.
Coleman, 451 F.Supp. 7 (E.D. Mich. 1977),
the doctrines of primary jurisdiction and
administrative exhaustion were deemed in-
applicable to §504 suits. Accord, Doe v.
Grile, No. F 77-108 (N.D. Ind. Aug. 10,
1978).
In addition, numerous courts have
directly addressed §504 claims, implicitly
rejecting an administrative exhaustion
requirement .7/
7/ Duran v. City of Tampa, 430 F.Supp.
75 (M.D. Fla. 1978) and 451 F.Supp. 954
M.D.Fla. 1978); Pedro v. Bishop, No. 73-
083P N.D. ex. Feb. 21, 1978); Mattie T.
v. Holladay, No. DC 75-31-5 (N.D. Miss.
Oct. 28, 1977); Halderman v. Pennhurst,
466 F.Supp. 1295 (E.D. Pa. 1977); Vanco v.
Finlay, 440 F.Supp. 656 (N.D. Ohio 1977);
Barnes v. Converse College, 436 F. Supp.
635 (D.S.C. 1977); Bartels v. Biernat, 427
F.Supp. 226 (E.D. Wis. 1975); Doe v.
Marshall, 459 F. Supp. 1190 (S.D. Tex.
1978); Davis v. Bucher, 451 F. Supp. 791
(E.D. Pa. 1978); Hairston v. Drosick, 423
F. Supp. 180 (S.D. W. Va. 1976); Snowden
v. Birmingham-Jefferson County Transit
Authority, 407 F. Supp. 394 (N.D. Ala.
1975), aff'd per curiam, 551 F.2d 862 (5th
Cir. 1977); Sites v. McKenzie, 423 F. Supp.
1190 (N.D.W. Va. 1976); Lora v. Board of
Educ., 456 F. Supp. 1211 (E.D.N.Y. 1978);
NYSARC v. Carey, No. 72-356, 357 (E.D.N.Y.,
orders issued Sept. 14, 1978 and Feb. 28,
1979). Contra, Doe v. Colautti, 454 F.
Supp. 621 (E.D. Pa. 1978); Stubbs v. Kline,
463 F. Supp. 110 (W.D. Pa. 1978); Sherer v.
Waier, 457 F. Supp. 1034 (W.D. Mo. 1978);
Crawford v. Univ. of North Carolina, 440
F. Supp. 1047 (M.D.N.C. 1977); Drennan v.
18.
This Court has decided two cases under
Title VI of the Civil Rights Act of 1964, 8/
the administrative procedures of which are
identical to those under §504, 9/ which
imply that exhaustion is not required in
Title VI cases.
In Lau v. Nichols, 414 U.S. 563 (1974),
a unanimous Court held that Chinese-American
students who had been denied an appropriate
bilingual education by the San Francisco
school system had a private right of action
under Title VI. In remanding the case to
the district court for further proceedings,
there was no suggestion in the Court's
opinion that it anticipated or intended
that plaintiffs first exhaust whatever
administrative remedies might have been
available. Similarly, and more recently,
eight of nine justices in Regents v. Bakke,
__U.S. __, 57 L.Ed. 2d 750 (1978), were
Willing to consider the merits of Bakke's
Title VI claim although it is clear from
the procedural history of the case, and
indeed from Justice Powell's opinion, 57
L.Ed. 2d at 767, that Bakke had not pressed
his assertion of reverse discrimination
before HEW prior to initiating his action.
(footnote 7 cont'd.) Philadelphia Gen'l.
Hosp., 428 F. Supp. 809 (E.D. Pa. 1977);
Doe ve. New York University, 422 F. Supp.
809 (S.D.N.Y. 1978).
8/ 42 U.S.C. §2000d et seg,
9/ 45 C.F.R. 80.6-30.10. See §120(a) of
the Rehabilitation, Comprehensive Services
and Developmental Amendment of 1978 P.L. 95602,
to be codified as 29 USC §794a(a) (2) (Title
VI remedies and procedures applicable to §504
cases).
19.
B. The Futility of Filing an
Administrative Complaint with
H.E.W. Renders Exhaustion
Unnecessary.
It is a well-established principle of
administrative law that exhaustion is not
required if the only availabie administra-
tive remedy is plainly inadequate. See
generally Schwartz, Administrative Law aw 499
(1976); Jaffe, Judicial Controls of Admini-
strative Action, 426-432 (1965). That
principle has been recognized in §504
cases as elsewhere. Thus, in Lloyd v.
Regional Transportation Authority, 548 F.
2d 1277, 1286 (7th Cir. 1977), the Seventh
Circuit noted that the doctrine of exhaus-
tion presupposes the presence of ". . .
a meaningful administrative enforcement
mechanism" structured ". . . to vindicate
an affirmative right." In the absence of a
meaningful administrative remedy, 10/ the
Lloyd court held that "neither the ex-
haustion nor primary jurisdiction doctrine
applies." Id. at 1287.
For two reasons, one structural and one
institutional, a meaningful administrative
enforcement mechanism does not exist under
§504. Under the circumstances, to insist
upon exhaustion is merely to require that
plaintiffs engage in a futile gesture.
10/ At the time Lloyc was decided, the §504
regulations were not in effect.
20.
i. HEW'S Enforcement Procedures
Under §504 Are Not Designed to
Remedy Individual Complaints of
Discrimination.
The regulations adopted by HEW pursuant
to §504; 45 C.F.R. §84.6, incorporate bv
reference the administrative procedures
applicable to Title VI of the Civil Rights
Act of 1964, 45 C.F.R. §80.6 - 80.10 and
Part 81. Those procedures in turn focus
exclusively on the question of whether or
not, in light of the policies and practices
of a recipient of federal assistance, HEW
should cut off federal funds. It is im-
portant to emphasize that this administra-
tive mechanism is not designed to remedy
deprivations of the personal rights of
individual complainants, but rather to de-
termine whether, in light of systematic non-
compliance, recipients should continue to
receive federal funds.
In the context of Title VI, the dis-
tinction between vindication of personal
rights and termination of federal funds
is reflected in the statute itself, as
Justice Stevens observed in his opinion
in Bakke v. Regents, supra, 57 L.Ed. 2d
at 852, n. 26.
The government's supplemental
brief also suggests that there
may be a difference between a
private cause of action brought
to end a particular discrimina-
tory practice and such an action
brought to cut off federal funds
- « « Section 601 is specifically
addressed to personal rights,
while §602 - the fund cut-off
provision - established an
21
elaborate mechanism for govern-
mental enforcement by federal
agencies. Id. at 28 (emphasis
added). Arguably, private en-
forcement of this “elaborate
mechanism" would not fit within
the congressional scheme. . - -
The difference between their two
courses of action is clear and
significant. As the Government
itself states:
"[T]he grant of an injunction or
a declaratory judgment ina
private action would not be
inconsistent with the adminis-
trative program established by
Section 602 . . . A declaratory
judgment or injunction against
future discrimination would not
raise the possibility that funds
would be terminated, and it
would not involve bringing the
forces of the Executive Branch
to bear on state programs; it
therefore would not implicate
the concern that led to the .
limitations [including adminis-
trative exhaustion] contained in
Section 602." Supplemental
Brief, supra, at 30 n. r +
The notion that a private action
seeking injunctive or declaratory
judgment relief is inconsistent
with a federal statute that
authorizes termination of funds
has clearly been rejected by this
Court in prior cases. See Rosado
v. Wyman, 397 U.S. 397, 420.
22.
Quite clearly, the regulations promul-
gated by HEW to implement §504 do nothing
more than "authorize [a] termination of
funds." The regulations define an adminis-
trative scheme by which the Secretary of HEW
can monitor and enforce the nondiscrimina-
tion provisions of a contract between HEW
and the recipients of federal financial
assistance. The regulations are not designed
to redress the personal grievances of
handicapped individuals who suffer from dis-
crimination in federally funded programs.
If anything, the termination of funds will
Only leave such individuals in far worse
straits.
Under the regulations HEW must initi-
ate an administrative investigation whenever
a compliance review or other information,
including an individual complaint, indicates
a possible violation of the statute or regu-
lations. 45 C.F.R. §80.7. No provision,
however, is made for an individual complai-
nant to furnish evidence or otherwise parti-
cipate in the investigation. 45 C.F.R. §80.7
(c). If HEW concludes that there is no
violation, it gives notice to both the reci-
pient and the complainant - but the indivi-
dual complainant has no right to object to or
seek review of HEW'S finding. 45 C.F.R. §80.7
(a) (2). Should HEW determine that the
recipient is not in compliance, attempts are
then made to obtain voluntary compliance
in accord with the statutory mandate. But
HEW can totally ignore the individual victim
of past discrimination in its efforts to
secure voluntary compliance for the future.
If voluntary compliance efforts fail,
an administrative hearing is held. 45 C.F.R.
§80.8 -80.9. The determination as to whether
a hearing will occur
23.
and the definition of the issues to be pur-
sued is solely the province of HEW and the
reciepient.See 45 C.F.R. §80.9(a). At the
hearing both HEW and the recipient have the
right to be represented by counsel, 45 C.F.R.
§80.9(c), and to present relevant evidence,
45 C.F.R. §80.9(d). No such rights are ~
granted to individual complainants. HEW is
not required to conduct the hearing on ’
behalf of the individual and in no sense 1s
the hearing intended to provide a forum to
obtain individual relief.il/In particular,
the administrative scheme does not provide
the array of equitable remedies which are
available to private litigants in federal
court. Thus HEW is not empowered to issue
a binding award of damages, backpay, Or —
reinstatement to a victim of discrimination
under §504. Whitaker v. Bd. of Higher Ed.,
Supra.
Moreover, the withdrawal of federal assis-
tance from a noncomplying program may "defeat
the purpose of the private litigant by termi-
nating the allocation of funds and the. . .
program." Rios v. Read, 75 Civ. 296 (E.D.N.Y.
October 13, 1978). In Rios, a case brought
under Title VI, the court observed that plain-
tiffs' interests were in the continuation of
federal funding in order to provide an adequate
bilingual educational program in compliance
with Title VI. The HEW remedy, however,
1l/the regulations provide that in the event
of noncompliance H.E.W. may effect compliance
by cutting off funds or "by any other means
authorized by law." The Court in Whitaker
found those “other means" to be "unclear,"
and stated that a cut-off of funds was the
principal sanction and that "the regulations
simply provide no procedures by which any other 3
sanctions may be imposed or judicially reviewed.
Whitaker, supra, at 108, n.10.
threatened the very existence of those
services to which the complainants sought
access. Furthermore, the administrative
remedy available under Section 504 is
essentially prospective. A program that
has discriminated in the past may continue
to receive federal financial assistance
if it desists from doing so in the future
and takes steps necessary to come into
compliance with the statute. Although
future compliance may include rectifying
the effects of past discrimination, as a
practical matter this process may not afford
effective or expeditious relief to indivi-
dual victims of unlawful discrimination.
"In short, while the administrative process
may effectively provide, by way of the
threat of a funding termination, an incen-
tive to comply with Section 504, it provides
no means by which an individual can obtain
personal redress for a §504 violation."
Whitaker v. Bd. of Higher Ed., 461 F. Supp.
at 10812/
12/
Even H.E.W. has publicly acknowledged the
inadequacy of its enforcement scheme. As
amicus curiae in at least two cases before
federal district courts, the Department has
urged that exhaustion of administrative
remedies should not be required as a pre-
requisite to private litigation under §504.
See Brief of the United States in whitaker
v- Bd. of Higher Ed., supra, and in Mielke
v.- Hannon, 75 Civ. 473 (N.D. I1l.).
ES
25.
ii. H.E.W.'s Backlog in Resolving §504
Complaints Has Rendered the Admin-
istrative Process Futile.
Even if the §504 regulations had
created an enforcement system theoreti-
cally capable of vindicating personal
rights, in practice the excessive and un-
due delays in that system have rendered
it inadequate.
According to H.E.W.'s own statis-
tics, the Office for Civil Rights is al-
ready so backlogged with §504 complaints
that, for all practical purposes, there
is no longer an available administrative
remedy.
Figures released in the fall of
1978 reveal that, as of June l, 1978,
H.E.W. had received 1264 individual §504
complaints of discrimination nationally
since the institution of the regulations
on June 3, 1977.13/ Of this total H.E.W.
had not even begun to investigate 653
complaints or 51.6% of the total filed.
Corrective action, i.e., voluntary com-
pliance, had been effected in only 47
complaints (3.7%) and 83 complaints had
been withdrawn.
Further breakdown of these statis-
tics discloses even greater backlogs in
13/ These statistics were made available
to counsel for amici by the Office of
Management and Administration of the
Office for Civil Rights (OCR) at H.E.W.
in August, 1978 and are current through
June 1, 1978. Many of them are contained
in plaintiff's Motion for Reconsideration
and Memoranda and in the transcript of
oral argument held August 4, 1978 in Doe
W. Batecuns @? Ca¥. 6250 (8.0.8.¥.).
26.
resolving particular types of complaints.
For example, in post-secondary education,
the area in which Ms. Davis' claim of dis-
crimination arose, H.E.W. had received
202 complaints as of June 1, 1978. Only
ten letters of finding had been issued,
and corrective action had been taken in
a scant three instances. Fully 134
individual complaints, or 66% of the
total filed, remained uninvestigated.
Substantial backlogs in individual com-
plaints of discrimination in post-secon-
dary education existed in Region 3 (15
of 20 outstanding complaints uninvestiga-
ted); Region 4 (14 of 20 outstanding
complaints uninvestigated); Region 5
(13 of 17 outstanding complaints un-
investigated); Region 6 (16 of 19 out-
standing complaints uninvestigated) ;
and Region 7 (14 of 15 outstanding
complaints uninvestigated).
H.E.W.'s inability to resolve pre-
viously filed §504 complaints expedi-
tiously has severely impaired the Depart-
ment's ability to handle new complaints.
Thus, OCR's Annual Operating Plan for
1978 projected that H.E.W. would investi-
gate only 26 out of 756 complaints likely
to be filed under §504 during fiscal year
1978.14/ Of 453 backlog complaints, H.E.W
14/ There is some evidence that OCR
underestimated the number of new complaints
that would be filed during fiscal year
1978. Region 2, which had anticipated
a total of 73 new complaints in 1978
reported 160 new filings as of May 8,
1978. There is also evidence that H.E.W.'s
performance in 1978 was slightly better
than anticipated, although accurate sta-
tistics are not yet available to amici.
ai.
predicted that only 14 would be inves-
tigated. 43 Fed. Reg. 7048, 7054 (Feb.
i) Ae
Moreover, even after the long,
drawn-out investigative process, severe
delays are encountered in the succeeding
administrative stages as well.15/ Vir-
tually two years after the effective date
of the regulations, H.E.W. has never ter-
minated funding in a §504 case and no
administrative hearing has ever been held
on a §504 complaint.16/
The delays resulting from H.E.W.'s
inability promptly to investigate new
and backlogged complaints as well as from
the absence of any time limits for the
administrative enforcement process, have
led to a situation in which H.E.W.'s
administrative process could not and can-
not currently provide a "meaningful en-
forcement mechanism." Lloyd, supra, 548
15/ It should be noted that H.E.W. has
established no time limits within which
it must attempt to enforce the Act upon
completion of the investigation of a
complaint. A federal court has already
found it necessary to impose strict time
limits for the investigation phase of the
administrative enforcement process, upon
finding that administrative delays ren-
dered the rights at issue nugatory. Adams
v. Califano, No. 3095-70 (D.D.C., unpub-
lished order December, 1977).
16/ Information furnished to counsel for
amici by the Office of Compliance and En-
forcement of the Office for Civil Rights
at H.E.W. on March 26, 1979. Moreover,
according to the Office of Management and
Administration of OCR, as of August, 1978,
there had been no cut-off of funds under
Title VI since 1972.
28.
F.2d at 1286 n.29 for the vindication of
private rights.17/
Where there are delays of this
magnitude, the case law is clear that plain-
tiffs need not exhaust administrative reme-
dies before proceeding to court.18/
17/ As summarized in the Middleton affi-
davit, supra:
"The Office for Civil Rights has a
large backlog of complaints and
there is presently no guarantee
that any newly filed complaint can
be investigated and resolved in an
expeditious manner. It would be
inconsistent with the Department's
desire and the public's need for
“the speedy resolution of complaints
to prohibit aggrieved parties who
wish to file suit from doing so
and then subject them to a lengthy
period of time before acting upon
their claim."
18/ See Camenish v. University of Texas,
No. A-78-CA-061 (W.D. Tex., May 17, 1978)
(preliminary relief granted to §504 plain-
tiff based on excessive delays); Doe v.
New York University, 77 Civ. 6285 (S.D.N.Y.
Sept. 12, 1978) (§504 plaintiff permitted
to proceed with discovery due to admini-
strative delays); Whitaker v. Board of
Higher Education, supra; Howard S. v.
Friendswood Ind. School Dist., 454 F.Supp.
634 (S.D. Texas 1978) (11 month delay
renders exhaustion futile in §504 case);
Dermott Special School Dist. v. Gardner,
278 F.Supp. 687 (E. D. Ark. £978) (Title vVrt )
See also Walker v. Southern Ry. Co., 385
U.S. 294 (1966).
CONCLUSION
For the foregoing reasons, the Court
should hold that section 504 of the Reha-
bilitation Act of 1973 confers a private
right of action, and that exhaustion of
administrative remedies is not required,
or is futile under the circumstances of
this case.
Respectfully submitted,
GEORGE KANNAR
CHARLES S. SIMS
American Civil Liberties
Union Foundation
22 East 40th Street
New York, New York 10016
A
ROBERT M. LEVY
STEVEN R. SHAPIRO
New York Civil Liberties
Union Foundation
84 Fifth Avenue
New York, New York 10011
Of counsel: FRED OKRAND
BRUCE J. ENNIS -SAM ROSENWEIN
ACLU Foundation of Southern
California
633 South Shatto Place
7 Los Angeles, Calfcrnia 90005
Attorneys for Amici Curiae
March 29, 1979
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