Amicus Brief — University of Texas v. Camenisch
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No, 80-317
| oo? Supreme Court of the Rnited States
OCTOBER TERM, 1980
a
THE UNIVERSITY OF TEXAS, ef al.,
Petitioners,
—),—
WALTER CAMENISCH,
Respondent.
: ON WRIT OF CERTIORARI TO THE UNITED STATES
' COURT OF APPEALS FOR THE FIFTH CIRCUIT
MOTION FOR LEAVE TO FILE AND BRIEF OF THE AMERICAN CIVIL
LIBERTIES UNION, THE CHILDREN’S RIGHTS PROJECT, THE NEW
YORK CIVIL LIBERTIES UNION, THE AMERICAN COUNCIL OF THE
BLIND, AND THE CENTER FOR LAW AND EDUCATION, AMICI CURIAE
GEORGE KANNAR
MARCIA ROBINSON LOwRY
Of Counsel:
PATRICIA E. HENNESSEY
CHARLES S. SIMS
American Civil Liberties
Union
132 West 43rd Street
New York, New York 10036
KATHLEEN MEGIVERN
American Council of
the Blind
1211 Connecticut Ave., N.W.
Suite 506
Washington, D.C. 20036
DIANA C. PULLIN
- Center for Law and
Education
6 Appian Way
Cambridge, MA 02138
(Counsel of Record)
American Civil Liberties
Union Foundation
Children’s Rights Project
132 West 43rd Street
New York, New York 10036
(212) 944-9800
ROBERT LEvy
New York Civil Liberties
Foundation
84 Fifth Avenue
New York, New York 10011
(212) 924-7800
Attorneys for Amici Curiae
SSS ————E—E—E—ETrossoseSeooeooeeoooOoOoooo
MOTION FOR LEAVE TO FILE
The American Civil Liberties Union,
its Children's Rights Project, The New York
Civil Liberties Union, The American Council
for the Blind, and the Center for Law and
Education, hereby respectfully move for
leave to file the attached brief amici
curiae. The consent of the attorney for
respondent has been obtained. The consent
of the attorney for petitioner was re-
quested but refused.
The American Civil Liberties Union
is a nationwide, non-partisan organization
of over two hundred thousand members,
dedicated to defending the principles
embodied in the Bill of Rights. The
‘
Children's Rights Project is a special
project of the ACLU dedicated to asserting
and defending the rights of children. The
New York Civil Liberties Union is a state
affiliate of the ACLU, operated in New
York State.
The ACLU and its affiliates and the
Children's Rights Project have a deep
interest in protecting the Constitutional
and statutory rights of handicapped
individuals, including rights secured by
the Rehabilitation Act of 1973, 29 U.S.C.
790, et seq. In the belief that judicial
involvement is necessary to secure the
rights of handicapped individuals, the ACLU
has represented the plaintiffs in O'Connor
v. Donaldson, 422 U.S. 563 (1975), the
Willowbrook case, NYSARC v. Carey, 393
F. Supp. 715 (E.D.N.Y. 1975), and
petitioner in Trageser v. Libbie Convales-
cent Home, cert. denied, 442 U.S. 947
(1979).
ii
The American Council of the Blind is a
nationwide membership organization with
sixty-one state and national affiliates.
The majority of the Council members are
blind and visually impaired persons, who as
a class will be directly affected by the
outcome of this important case. The Center
for Law & Education is the national support
center on education issues for legal
services programs and is funded and
staffed specifically to assist and
participate in litigating education cases.
The Center has served as counsel in a
broad range of education cases, including
cases challenging discrimination in
schools on the basis of race, handicap,
and denial of other student rights.
Because this case raises important
questions concerning the implementation
iii
of rights secured by the Constitution and
the Rehabilitation Act, amici respectfully
urge this Court to accept and file the
enclosed brief amici curiae.
Respectfully submitted,
MARCIA ROBINSON LOWRY
American Civil Liberties
Union
Children's Rights Project
132 West 43rd Street
New York, New York 10036
Attorney for Amici Curiae
January 27, 1981
TABLE OF CONTENTS
Page
MOTION FOR LEAVE TO FILE......., owea i
TABLE OF AUTHORITIES.........ccccecs viii
INTEREST OF AMICI ec ccc ccccccevcccace 1
STATEMENT OF THE CASE.---+eeeeccecves l
SUMMARY OF ARGUMENT. .---+++eeees cont 4
ARGUMENT sci cccvccec ete tech ae weoee 7
I. SECTION 504 OF THE
REHABILITATION ACT
OF 1973 MAY BE
ENFORCED BY A PRIVATE
RIGHT OF ACTION... cccccccccvces 7
A. Congress Intended
That Section 504
Rights Be Enforced
By Private Actions.--.-.-.-..- 8
B. This Court's Decision
in Cannon v. University
of Chicago Confirms the
Existence of a Private
Right of Action....c.ce.- 13.
22,
i
THE COURT OF APPEALS
CORRECTLY CONSTRUED THIS
COURT'S DECISION IN
SOUTHEASTERN COMMUNITY
COLLEGE v. DAVIS, THE
STATUTE, AND THE RELEVANT
REGULATION, IN ORDERING
THE UNIVERSITY OF TEXAS
TO. PROVIDE A SIGN
INTERPRETER. ..ccscccccece
A. The Court of Appeals
Correctly Construed
This Court's Decision
in Southeastern
Community College v.
Ss irate te Wea a aa eo eBid
B. Valid HEW Regulations
Require the University
of Texas to Provide
an Interpreter......
PLAINTIFF HAS MET THE
MODEST BURDEN SECTION
504 IMPOSES ON PLAINTIFFS
OF SHOWING THAT THE
UNIVERSITY'S PROGRAMS
RECEIVE FEDERAL FUNDS........
A. A Handicapped Student
Suing a University Need
Prove Only That The
University Is A .
Recipient Of Federal
Funds In Order
To
State A Claim Under
Section 504...
18
21
24
37
38
—
The Stipulated Facts
Concerning Federal
Funding Suffice For
Granting Camenisch
The Relief Requested
and This Court Should
Not Hold Otherwise
Without First Remanding
The Case For Develop-
ment Of A Factual
DUE a sc c ccc srescecccvccces ». OF
If Evidence Concerning
A Particular "Program
of Activity" Were
Required Under Section
504, Ordinary Principles
of Common Law Would
Place The Burden of
Coming Forward With
Such Evidence Upon
Defendants, Not
PUBEMELE EO cccccccceccccccves 52
ARE elit ee alge ear bee
vii
TABLE OF AUTHORITIES
Cases Page
Adashunas v. Levy, 626 F.2d 600
(7th Cir. 198 7 ‘. eM Aa See ae ee
Atchison, T. & S.F.R. Co. v.
Scarlett, 300 U.S. 471 (1937)... 31
Bartels v. Biernat, 427 F.Supp. 226
eters CONES BEIT k kK 6 Bs Ske 2
Batterton v. Francis, 432 U.S. 416 . 31
Board of Public Institutions of
Taylor County, Florida v. Finch,
Tu F.2d. LOs8 (5th Cir. 1969) .. 44
Bob James University v. Johnson,
396 F.Supp. 597 (D.S.C. 1974),
aff'd mem. 529 F.2d. 514 (4th Cir.
PTR Ee Se Eek ee ee be ee
Bossier Parish School Board v.
Leman, 370 F.oa 847, 852 (5th
Cir.), Cert. denied, 388 U.S. 911
(Peete + bate ety es tow le ee oe Oe
Camenisch v. University of Texas,
[1978] 16 EPD (CCH) q5836 (W.D.
wale FE 2s See 8k ee we ee es
Cannon v. Universit a of chicago,
441 U.S. 671 (1 * . -
4,8,
10,13,
14,16,
17
viii
vy
Cases (cont'd)
Carmi v. Metropolitan St. Louis
Sewer Dist., 620 F.2d 762 (8th
Cike ), cert. den, U.8e
__, 101 S.Ct. 249 eee s ee ee « 69
Castaneda v. Partida, 430 U.S. 482
7 . . . . . . . . . ° * . . 53
Chrysler Corp. v. Brown, 441 U.S.
28 (1979 - - 7 . . . + © . - . 31
Codd v. Velger, 429 U.S. 624 (1977). 50
Cort v. Ash, 422 U.S. 66 (1975). .. 8
Davis v. Southeastern Communit
College, 574 F.2d 1158 (4th Cir.
1978), rev'd on other grounds,
442 U.S. 397 (1979). . . - . . - . 17
Dennis v. United States, 339 U.S.
en Se ns os of ge ee 8 ee Oe
Foti v. Immigration and Naturaliza-
tion Serv., 375 U.S. 217 (1963). . 31
Griffin v. Illinois, 35l U.S. 12 (1956). 35
Griggs v. Duke Power Co., 401 U.S.
(1971) . ~ . . ° . + 7 . . . . 6,31
Grove City College v. Harris, Civ.
No. 78-1293 (W.D. Pa. March,
1980 * . . 7 7 . . . * o . . . 7: 39
ix
Cases (cont'd)
Hairston v. Drosick, 423 F.Supp.
0 S.D.W.Va. 1976) >. . . _ . * >.
Hills v. Gautreaux, 425 U.S. 286
ihn >). sf x
Cir. 19
Kampmeier v. Teguise, 553 F.2d 296
Keyes v. School District No. l,
13 U.S. 189 (1973). . + . . > . .*
Lau v. Nichols, 414 U.S. 563 (1974).
Leary v. ay 566 F.2d 863
( d Cir. 1977 . . . . . . . . . .
Lloyd v. Illinois Regional Trans-
ortation Authority, F.
(7th Cals ) . . 7 . . . .
Maine v. Thiboutot, 100 S.Ct. 2502
(1980) >. * . > . _ * i -_ 7 _ -_ >. >.
National Association for the Ad-
vancement of Colored People v.
The Medical EY Inc., 599 F.2d
Cc Le — . . > o .* . >
36
36
16
53
5,6,
16,17,
33,36
16
17,33,
36
18
16
Cases (cont'd)
Natonabah v. Board of. Education,
F.Supp. 716 (D.N.M. 1973). .
NLRB v. Great Dane Trailers,
388 U.S. 26 (1967) . ° . . . . .
NYSARC v. Carey, 393 F.Supp. 715
(E.D.N.Y. AD) . . 7 . . ° . .
O'Connor v. Donaldson, 422 U.S.
563 (1975) ? 7 7 > 7 7 7 - . . .
Red Lion races Co. ¥. FIC,
U.S. ) 7. 7. 7 * 7 * 7
Southeastern Community College v.
Davis, 442 U.S. 397 (1979) ..
Southeastern Community College v.
Davis, No. 78-711. . . 7 * . . .
Trageser v. Libbie Rehabilitation
Center, Inc., 590 F.2d 87 (4th
Cir. 1978), cert. den., 442 U.S.
Pee Caeree 68s Fe Be: eee Ose
Udall v. Tallman, 380 U.S. 1 (1965).
xi
53
ii
ii
10
5,6,
13,18
19,20,
21,23
24,29
32,41,
Cases (cont'd)
United Handicapped Federation v.
Andre, S58 FD d 413 (8th Cir.
. 7 * 7 - . 7 7 o - . 7 7 . . i7,36
United States v. Baltimore Count -
19 FEP 4403 (D. Md. Dec. 1, 1978). 46
United States v. Caceres, 440 U.S.
74h% . * — o. 7 7 * 7 . 7 . : oe . - 52
United States v. Mersky, 361 U.S.
es 6 hee a gs slew be ee
University of California v. Bakke,
sf 7 7 . 7 2 . . . 5
Statutes
Pub. L. 95-1149. . . . ° ° . . . . . 12
Rehabilitation Act of 1973, §504
cy eee PEE, 6g Se aes ws L,Sete
8,9,10,
11,15,
20,2h,
37,38
39,40,
46,47,
48,49,
50,5.,
52,56
Rehabilitation Act of 1973, §505a,
ga FS ee se a |
xii
Statutes (cont'd)
OP UseGa: Gree tee tad se ee eee eG
SA U.S.C. §1242 (a) . * - 7 7 . + 7 a
42 vee Ce §1983. 7 . . 7 . . . . . .
on Usb Cx GROCOE 6 wis oS. a “es 6 ae
Regulations
31 C.F.R. §51.51(i) (1979),
reprinted in 2 Empl. Prac. Guide
eens GOW ama ee 6. 6 oh 8S re ea ee
oe Gere ms BoveBaleies 6 2 sé 6) bee
ae Coltel~ PRES BO oe Ss Sa ve Se eet
SO Osis Gee Obs 8 4s Se ee es
Legislative Histories
S. Rep. 93-318, 93rd Cong., lst
Sess., reprinted in 1973 U.S. Code
Cong. & Adm. News 2076, 2092...
Ss. Rep. No. 93-1297, 93d Cong.,
2d Sess. 39-40, reprinted in 1974
U.S. Code Cong. & Adm. News 6373 .
xiii
36
44
17
14
45
45
13,25,
26,41
51
7
11,29
Other Authorities
41 Fed. Reg. 20296 (May 17, 1976). .
41 Fed. Reg. 29549 (1976)... « «
Cleary, Presuming and Pleading:
An Essay on Juristic Immaturity,
IZ Stan. L. Rev. 5 (1955). ... .
McBaine, Burden of Proof: Degrees
of Belief, 32 Cal. L. Rev. 242
(1944) . . . : . . . . . . . 7 + .
Underwood, The Thumb on the Scales
of Justice: Burdens of Persuasion
30
30
53
54
in Criminal Cases, 86 Yale L. J.
xiv
54
INTEREST OF AMICI
The Interest of Amici is set forth
in the foregoing motion.
STATEMENT OF THE CASE
This case involves the refusal of
the University of Texas at Austin, a
state university supported by more than
$30,000,000 in federal funds, to make any
accommodation whatever to meet the needs
of Walter Camenisch, a deaf graduate
student, who could not participate in
his classes or obtain the job he had
been promised by the Texas School for
the Deaf upon completion of his degree
without the assistance at the University
of a sign interpreter, or transcribed
lectures, or other special aid.
Camenisch contends that Section 504 of
the Rehabilitation Act of 1973 (29 U.S.C.
§ 794) and the regulations lawfully
promulgated by the Department of Health,
Education and Welfare pursuant thereto
require the University to provide such
services. The District Court agreed and,
because the University refused to suggest
any less expensive or more administratively
convenient means to provide Camenisch with
access to his classes, ordered the
University to provide Camenisch with a
part-time sign interpreter, at a total
cost of approximately $1,200.> The Fifth
Circuit upheld that ruling.
Few facts in this case are in dispute,
but some deserve special emphasis. The
The actual cost does not appear in the
record, but we are advised by counsel
that the University, which provided the
services as ordered under a $3,000 bond,
actually spent a little more than a
third of the bonded amount.
University of Texas has stipulated that it
receivod at least $31,400,000 of federal
financial assistance, 15.5% of its annual
budget, during the year Camenisch requested
the University to comply with HEW
Regulations. Moreover, the University
of Texas stipulated that Camenisch is,
within the meaning of § 504, a qualified
handicapped person. While he was in the
University's graduate school, Camenisch
was also employed as acting dean at the
Texas School for the Deaf, and his
continued employment was contingent upon
his securing a Master's Degree.
Prior to the District Court's
_ decision, the Department of Health,
Education and Welfare issued a letter
of findings supporting Camenisch and
rejecting each of the University's
arguments for refusing to provide the
auxiliary aids Camenisch needs and the
applicable federal regulations require.
The agency's findings were wholly in
accord with the Assurance of Compliance
the University had earlier signed with
HEW in which it promised to comply -- in
all its programs and activities -- with
§ 504 and the regulations lawfully
promulgated thereunder.
SUMMARY OF ARGUMENT
The legislative history of the
Rehabilitation Act demonstrates that
Congress intended to permit handicapped
persons to sue to enforce rights
guaranteed in § 504 of the Rehabilitation
Act, a conclusion amply supported by this
Court's decisions in Cannon v. University
of Chicago, 441 U.S. 677 (1979), University
of California v. Bakke, 438 U.S. 265 (1978),
and Lau v. Nichols, 414 U.S. 563 (1974).
Point I.
The decision reached by both courts be-
low did not unlawfully require the Univer-
sity to extend affirmative action to the
handicapped. Instead, following this
Court's teaching in Southeastern Community
College v. Davis, 442 U.S. 397 (1979), the
district court found, and the Court of Ap-
peals agreed, that the University had dis-
criminated against respondent by its unjus-
tified refusal to make its oral instruction
available to him in contravention of § 504
and valid HEW regulations. The relief or-
dered and affirmed was properly non-intru-
sive, and fully consistent with those regu-
lations. The holding that identical treat-
ment was in these circumstances discrimina-
tory within the meaning of the Rehabilita-
tion Act is fully supported by cases in
this Court. See, e.g., Lau v. Nichols, su-
pra; Griggs v. Duke Power Co., 401 U.S. 424
(1971). Point II.
The question whether respondent met
his burden of showing that § 504 applied
to the University in this case is not
before the Court, since petitioner failed
to raise the point below. In any event,
§ 504 imposes no burden on plaintiffs of
demonstrating "program specificity," as
every court to reach the question has
agreed, and as the decision in Sdutheastern
Community College indicates. Moreover,
even were this Court to doubt that this
is so, the University's failure to make
a record on the issue, or even to assert
that the undefined "program" respondent
completed was not federally funded,
counsels against reversal of the Court
of Appeals on this issue, and suggests at
most a remand for development of the
record. If the case is remanded for this
purpose, the Court should make clear, in
accordance with ordinary principles of
common law, that the University, which
alone has access to the information in
question, carries the burden of
demonstrating that the relevant program
is not federally funded. Point III.
ARGUMENT
I. SECTION 504 OF THE REHABILI-
TATION ACT OF 1973 MAY BE
ENFORCED BY A PRIVATE RIGHT
OF ACTION.
By enacting the Rehabilitation Act
of 1973, Congress intended to make
"participation in society more feasible
for handicapped individuals." S. Rep.
93-318, 93rd Cong., lst Sess., reprinted
in 1973 U.S. Code Cong. & Adm. News
2076, 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 necessary, proper
"and intended" under § 504 of the
Rehabilitation Act. That conclusion,
endorsed by the Fifth Circuit in this
case, 616 F.2d at 13l, is entirely
consistent with the reasoning of this
Court's decisions in Cannon v. University
of Chicago, 441 U.S. 677 (1979) and
Cort v. Ash, 422 U.S. 66 (1975), where
the standards for implying private rights
of action were set forth.
A. Congress Intended That
Section 504 Rights Be
Enforced by Private Actions.
The Rehabilitation Act, as enacted
in 1973, read in relevant part as follows:
"No otherwise qualified handi-
capped individual in the United
States, as defined in section
706(6), shall, solely by reason
of his handicap, be excluded from
the participation in, be denied
the benefits of, or be subjectea
to discrimination under any
program or activity receiving
Federal financial assistance."
29 U.S.C. § 794.
Although the original act contained
no express grant of a private cause of
action, in framing the language of § 504,
Congress chose precisely the same words
as Title VI of the Civil Rights Act,
which, as Congress was well aware in 1973,
had already been repeatedly held to
confer a private right of action upon
2
aggrieved individuals. Legislative
The lower federal courts have agreed
that a private right of action should
be implied under Title VI. See, e.g.,
Bossier Parish School Board v. Leman,
370 F.2d 847, 852 (5th Cir.), cert.
denied, 388 U.S. 911 (1967); Natonabah v.
history accompanying the Act made clear
that Congress intended a private right
of action under § 504.°
Moreover, in twice amending the
original Rehabilitation Act, in 1974 and
1978, Congress twice reiterated and
Clarified its intention to create a
private right of action under § 504. The
1974 and 1978 Amendments should be
accorded great weight when interpreting
Congressional intent. See Red Lion
Broadcasting Co. v. FTC, 395 U... 367,
380-81 (1969).
Board of Education, 355 F. Supp. 716,
724 (D.N.M. 1973). This Court has held
specifically that Congress was aware of
the many cases concerning private
causes of action under Title VI as of
1972, that is, a year before the
enactment of § 504. Cannon v.
University of Chicago, supra at 575-76.
See generally Brief for the American
Civil Liberties Union et al. Amici
Curiae in Southeastern Community
College v. Davis, No. 78-711, at 6-15.
10
Congress first amended the Rehabilita-
tion Act in 1974. The committee report to
the Senate concerning that amendment states:
This approach to implementation of
Section 504, which closely follows
{Title VI] would ensure administra-
tive due process (right to hearing,
right to review), provide for
administrative consistency within
the Federal Government as well as
relative ease of implementation and
permit a judicial remedy through a
private action. (Emphasis supplied).
S. Rep. No. 93-1297, 93d Cong., 2d Sess.
39-40, reprinted in 1974 U.S. Code Cong. &
admin. Wews 6373, 6391."
4 Congress was especially concerned about
advancing educational opportunities for
handicapped people. The Senate Labor
and Public Welfare Committee stated in
its Report:
Special attention must be paid to
the needs of those individuals who
through no fault of their own have
not received adequate education.
These individuals, young adults
and adults alike, must be afforded
equal opportunity and access to
higher educational services. The
1l
By 1978, the year Walter Camenisch
brought this case, when Congress again
amended the Act, the issue of the existence
of a private right of action was thought
to be so well settled that the only open
question was whether private litigants were
entitled to attorneys' fees in § 504 cases.
Congress again voted to treat § 504 the
same as other civil rights statutes, and
provided for the award of attorneys fees,
Section 505a, 29 U.S.C. § 794a, action
which is inexplicable except on the under-
standing that Congress had previously
created a private right of action. More-
over, § 794a(a) (2), which was added in the
1978 amendments, Pub. L. 95-1149, now
expressly provides:
Committee is aware that at the
present time most of these avenues
are not open to individuals with
handicaps. ...
S. Rep. No. 1297, 93d Cong. 2d Sess.,
reprinted in 1974 U.S. Code Cong. &
Ad. News at 6408 (emphasis added).
12
"The remedies, procedures and
rights set forth in Title VI
of the Civil Rights Act of 1964
shall be available to any person
aggrieved by any act or failure
to act by any recipient of Federal
Assistance or Federal provider of
such assistance under Section 794
of this title."
The regulations promulgated by HEW to
implement § 504 are similarly explicit.
Under 34 C.F.R. § 104.61, "The procedural
provisions applicable to Title VI of the
Civil Rights Act of 1964 apply to this
part."
B. This Court's Decision in
Cannon v. University of
Chicago Confirms the
Existence of a Private
Right of Action.
Despite the fact that in Southeastern
Community College v. Davis, 442 U.S. 397,
404 n.5 (1979), this Court formally
reserved the: question whether § 504 provides
a private right of action, the Court's
decision in Cannon v. University of Chicago,
13
441 U.S. 677 (1979), effectively put to rest
any lingering doubt as to the existence of
a private cause of action under § 504.
In Cannon, the Court noted the near
identity between Title Ix, the act it was
considering, and Title VI,” the similarities
in the provisions for the administrative
resolution of disputes between the two
titles, the fact that the intention of the
legislative scheme was "to avoid the use
of federal resources to support discrimina-
tory practices... [and] ... to
provide individual citizens effective
protection against those practices," and
> 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
excluded from participation in,
be denied the benefits of, or be
subjected to discrimination under
any program or activity receiving
federal financial assistance."
14
the fact that the federal government has
been the primary guarantor of individuals
against all forms of discrimination since
at least the Civil War. The Court also
noted that Congress was charged with
@nowledge of earlier judicial decisions
implying a private cause of action under
Title VI at the time it enacted Title Ix.
On the basis of these considerations --
all of which apply with at least equal
force to § 504 -- the Supreme Court
implied a private cause of action under
Title Ix.
In Cannon, this Court clearly indicated
its preference for Congress to speak
explicitly when it wishes to create a
private cause of action,but it also made
clear that
the failure of Congress to do so
is not inconsistent with an intent
on its part to have such a remedy
15
available to the person benefitted
by its legislation.
441 U.S. at 717. As demonstrated above,
the intentions of Congress concerning
§
504, particularly those articulated at
the time of the 1978 Amendments, are even
clearer than its intentions concerning
Title IX. Therefore, Cannon decides this
issue a fortiori.
6
6
See also Lau v. Nichols, 414 U.S. 563
(1974) where this court recognized a
private action under Title VI and per-
mitted private persons to challenge the
failure of the San Francisco School
District to offer classes in the
Chinese language to Chinese speaking
children. In Regents of the University
of California v. Bakke, 438 U.S. 265
(1978), four Justices of this Court
found an implied right of action under
Title VI; four others assumed it for
purposes of that case. The Courts of
Appeal have unanimously agreed that
the Rehabilitation Act creates a
private cause of action. See Kampmeier v.
Nyquist, 553 F.2d 296, 299 (2d Cir.
1977); Leary v. Crapsey, 566 F.2d 863,
865 (2d Cir. 1977); National Association
for the Advancement of Colored People v.
The Medical Center, Inc., 599 F.2d 1247,
1258-59 (3d Cir. 1979); Davis v. South-
eastern Community College, 574 F.2d
16
In sum, the Congressional intent to
provide a private right of action for
handicapped persons under Section 504 is
clear, and the Fifth Circuit's decision
is in complete harmony with this Court's
prior decisions in Cannon v. University of
Chicago, supra, and Lau v. Nichols, supra,
which recognized private rights of action
under Title IX and Title VI, the intended
analogs of Section 504./
1158, 1159 (4th Cir. 1978), rev'd on
other grounds, 442 U.S. 397 (1579);
Lloyd v. Illinois Regional Transportation
Authority, 548 F.2d 1277 (7th Cir. 1977);
Adashunas v. Levy, 626 F.2d 600, 603
(7th Cir. 1980); United Handicapped
Federation v. Andre, 558 F.2d 413, 415
(8th Cir. 1977).
Even if this Court held that Section 504
creates no private right of action,
Camenisch could bring his claim in
district court under 42 U.S.C. § 1983
against a state public educational
institution to redress an alleged
deprivation of the rights, privileges,
and immunities secured by the laws of
17
II. THE COURT OF APPEALS CORRECTLY
CONSTRUED THIS COURT'S DECISION
IN SOUTHEASTERN COMMUNITY COLLEGE
v. DAVIS, THE STATUTE, AND THE
RELEVANT REGULATION, IN ORDERING
THE UNIVERSITY OF TEXAS TO PROVIDE
A SIGN INTERPRETER
The District Court's order in this
case, affirmed by the Circuit Court, is
unequivocally among the numerous possible
remedies for deprivation of a deaf student's
access to academic classes contemplated by
regulations implementing the rights
the United States. In Maine v. Thiboutot,
U.S. , 100 S.Ct. 2502 (1980),
this Court held that § 1983 entitles an
individual to bring suit for violations
of federal statutes, such as Section 504,
a question which had been reserved in
Southeastern Community College v. Davis,
442 U.S. 397, 404 n.5 (1979).
In his dissenting opinion in Thiboutot,
Justice Powell argued that § 1983 only
encompasses civil rights statutes, not
all statutory claims. Even under this
narrower interpretation, Mr. Camenisch
could sue under § 1983, because Section
504 is a civil rights statute.
18
granted in Section 504. In its brief and
certiorari petition to this Court, the
University of Texas has attempted to
mislead the Court by arguing that the
Fifth Circuit incorrectly applied South-
eastern Community College v. Davis,
and to further confuse the issue by
erroneously equating "affirmative action"
with the steps necessary to ensure
equality of treatment for handicapped
persons. This case, however, is not
about affirmative action but rather the
finding of two courts below that the
University discriminated against
respondent by its unjustified refusal
to extend the reasonable accommodation
required by HEW regulations to effect
the equality for qualified handicapped
persons in higher education which it
19
+
was Congress' clear intention to
insure.°
8 the Rehabilitation Act provides both
that "no otherwise qualified handi-
capped individual . .. shall, solely
by reason of his handicap, be excluded
from participation in" a covered
program, and that no such individual
"shall, solely by reason of his
handicap, . . . be subjected to
discrimination under” any covered
program. 29 U.S.C. § 794, quoted
Supra at 9. The Court has not
previously decided whether there is
any difference in coverage between
those prohibitions, although South-
eastern Community College might be
read to indicate that there is not.
See 442 U.S. at 400, 412. In any
event, because Camenisch has been
"discriminated against" within the
meaning of Southeastern Community
College, we have addressed this brief
solely to that test, even though it
is clear that he has also been
"excluded from participation" in
covered programs as well.
20
A. The Court of Appeals
Correctly Construed This
Court's Decision in South-
eastern Community College v.
Davis
The University of Texas mischaracterizes
the issue in this case by asserting that the
courts below failed to heed this Court's
decision in Southeastern Community College
v. Davis. The Fifth Circuit did not mis-
construe this Court's decision in Davis,
however, but correctly distinguished the
instant case by applying the analysis
undertaken in Davis.
In Southeastern Community College,
7
this Court held that Mrs. Davis failed to
meet the legitimate and necessary physical
requirements of the college's nursing
program, and hence was not an "otherwise
qualified handicapped individual" within
the meaning of Section 504. 442 U.S. at
407. This Court further found that none
21
of the modifications and auxiliary aids
authorized by the HEW regulations could
accommodate Mrs. Davis's handicap to
enable her to participate in the program
and become a registered nurse. 442 U.S.
at 409.
By stark contrast, both courts below
found -- and even the University of Texas
has stipulated -- that Walter Camenisch
is an otherwise qualified handicapped
student, within the meaning of § 504, who
despite his handicap could both participate
successfully in his classroom activities
with an interpreter or other educational
aid, and perform well in a job as Dean of
Students at the Texas School for the Deaf
that his degree would guarantee.
Because Mrs. Davis did not meet the
threshold requirement of being an
“otherwise qualified handicapped" person
22
within the meaning of Section 504, this
Court did not, and could not, decide in
that case the degree of accommodation
Section 504 requires for persons like
Mr. Camenisch, who is within the scope of
the Act. The Fifth Circuit's holding
that the University of Texas was obligated
to provide a sign language interpreter
was not inconsistent with this Court's
holding in Davis, and was squarely based
on the duly promulgated HEW Regulations
pursuant to § 504. As Davis expressly
recognized,
"situations may arise where a
refusal to modify an existing
program might become unreasonable
and discriminatory. ...
identification of those instances
where a refusal to accommodate
the needs of a disabled person
amounts to discrimination against
the handicapped continues to be
an important responsiblity of HEW."
442 U.S. at 412-13.
23
The relief requested in Davis
involved major restructuring of the
Clinical portion of an academic program.
No such restructuring is necessary here,
and affording Camenisch the accommoda-
tion would not change the program as it
affected other students in any respect.
Camenisch could participate in the
graduate program as given, if a sign
language interpreter or other educational
aid were provided to give him access to
classroom lectures.
B. Valid HEW Regulations
Require the University
of Texas to Provide an
Interpreter.
The regulations at issue in this
case were duly authorized by the Rehabi-
litation Act, and promulgated by the
Department of Health, Education and
Welfare. They are explicit and unequivocal
24
in their requirement that colleges and
universities are obliged to make oral
lectures available to deaf students. 34
C.F.R. § 104.44(d) provides, under the
title "Auxiliary Aids," that
(1) A recipient to which
this subpart applies shall take
such steps as are necessary to
ensure that no handicapped
student is denied the benefits
of, excluded from participation
in, or otherwise subjected to
discrimination under the
education program or activity
operated by the recipient
because of the absence of
educational auxiliary aids
for students with impaired
sensory, manual,or speaking
skills.
(2) Auxiliary aids may
include taped texts, interpreters
or other effective methods of
making orally delivered materials
available to students with hearing
impairments, readers in libraries
for students with visual impair-
ments, classroom equipment
adapted for use by students with
manual impairments, and other
similar services and actions.
Recipients need not provide
attendants, individuaily
25
prescribed devices, readers for
personal use or study, or other
devices or services of a personal
nature.
Moreover, in addition to the clear
meaning of the regulations themselves,
recipient institutions are guided by
"Comments" explaining the regulations
under which this case was decided. At
34 C.F.R. § 104, Appendix A, HEW reiterated
that one method for complying with 34
C.F.R. § 104.44(d) was provision of
interpreters for deaf students.” The
9 In discussing and recommending ways
which colleges and universities such
as the University of Texas could defray
the cost of providing interpreters,
the regulations clearly established a
duty of the university:
Under § 104.44(d), a recipient
must ensure that no handicapped
student is subject to discrimina-
tion in the recipient's program
because of the absence of necessary
auxiliary educational aids. Colleges
and universities expressed concern
26
preliminary relief ordered by the district
court in this case mirrored these regula-
tions, by requiring the University of Texas
about the costs of compliance
with this provision.
The Department emphasizes that
recipients can usually meet this
obligation by assisting students
in using existing resources for
auxiliary aids such as state
vocational rehabilitation agencies
and private charitable organiza-
tions. Indeed, the Department
anticipates that the bulk of
auxiliary aids will be paid for
by state and private agencies,
not by colleges or universities.
In those circumstances where the
recipient institution must provide
the educational auxiliary aid, the
institution has flexibility in
choosing the methods by which the
aids will be supplied. For
example, some universities have
used students to work with the
institution's handicapped students.
Other institutions have used
existing private agencies that
tape texts for handicapped
students free of charge in order
to reduce the number of readers
needed for visually impaired
students.
27
"to procure an interpreter or
other effective method of making
orally delivered course materials
available to Plaintiff... ."
Camenisch v. University of Texas, [1978]
16 EPD (CCH) ¥ 8836 (W.D. Tex. May 17,
1978) (emphasis added). In short there
can be no question that the relief ordered
and affirmed in this case is precisely the
relief contemplated by the applicable
regulations.?°
10 Thus, the issue raised by the
University in this Court, whether
the district court improperly con-
strued the Act to require the
University to assume undue financial
and administrative burdens by furnish-
ing an interpreter for Camenisch, is
not presented by this case, because
the district court did not do so.
To the contrary, the order entered
was as non-intrusive as possible,
requiring only that the University
procure some "effective method of
making orally delivered course
materials available to Plaintiff... ."
In the absence of a showing by the
University that the state and private
assistance HEW had found could be
28
Thus, the only legal question for this
court to resolve is whether the regulations
are valid, and this is a question which has
nothing whatever to do with this Court's
decision in Southeastern Community College
v. Davis. As noted above, the regulations
were authorized by Congress, in the 1974
ll
Amendment to the Rehabilitation Act, and
utilized was unavailable, or detailing
the financial and administrative
expense which the University will have
to bear, the record would not support
finding the district court's order
burdensome or unreasonable.
11 5. Rep. No. 93-1297, 93rd Cong., 2nd
Sess., reprinted in 1974 U.S. Code
Cong. & Ad. News at 6390. Congress
further expressed the intent that
the regulations be implemented by
the end of 1974. Id. at 6391.
29
they were the result of a particularly
careful and extensive rule-making process. 12
All of this, moreover, occurred pursuant to
a specific Executive Order, directing the
12 over three hundred written comments
were received in response to HEW's
Notice of Intent to Issue Proposed
Rules. 41 Fed. Reg. 20296 (May 17,
. 1976). The written comments were
Supplemented by a series of ten
meetings conducted by HEW at various
locations across the country. On
July 16, 1976, the Department
published a Notice of Proposed
Rulemaking, analyzing the public
comments received on the critical
proposed regulation for further
public comments. 41 Fed. Reg.
29549 (1976). A total of more than
850 comments were received and
analyzed. An additional 22 public
meetings were held after publication
of the July 16 Notice, again
designed to inform interested
persons and organizations of the
proposed regulations and to solicit
their comments and recommendations.
Transcripts of all these meetings
were made and analyzed along with
the written comments.
30
Department of Health, Education and Welfare
to “coordinate the implementation of Section
504 by all federal departments and agencies,
adopt rules and regulations and issue orders
deemed necessary."+3
As this court most recently held in
Chrysler Corp. v. Brown, 441 U.S. 281
(1979) "properly promulgated, substantive
agency regulations have the force and
effect of law." See Batterton v. Francis,
432 U.S. 416, 425 n.9 (1977); Foti v.
Immigration and Naturalization Serv., 375
U.S. 217 (1963); United States v. Mersky,
361 U.S. 431, 437-38 (1960); Atchison, T &
S.F.R. Co. v. Scarlett, 300 U.S. 471, 474
13 On numerous occasions this Court has
determined that administrative
interpretations of a statute by the
enforcing agency are entitled to
"great deference," E.g., Udall v.
Tallman, 380 U.S. 1, 16 (1965);
Griggs v. Duke Power Co., 401 U.S.
424, 433-34 (1971).
31
(1937). The University has not alleged
that the regulations which decide this case
fail in any of these regards. Instead, its
position apparently is that a covered
program would not violate the statute if
each otherwise qualified handicapped
individual were permitted to participate
and required to provide any necessary
accommodations at his own expense. But
that is not how HEW has interpreted
the statute through its regulatory
authority, and unless its interpretation
is contrary to the statute, it must be
honored. In light of this Court's
express recognition in Southeastern
Community College that the statute
forbids, in certain circumstances, the
"refusal to accommodate the needs of a
disabled person" without undue burden,
442 U.S. at 413, HEW was well within its
32
statutory authority in rejecting the
University's proposed rule. As the
Seventh Circuit observed in Lloyd v.
Regional Transportation Authority,
548 F.2d 1277 (7th Cir. 1977) with
regard to public transportation:
There is no equality of treat-
ment merely by providing the
handicapped with the same
facilities as ambulatory
persons .. . ; for handicapped
persons who cannot gain access
to such facilities are
effectively foreclosed from
any meaningful public transporta-
tion. 548 F.2d at 1284.
Similarly in public education, to provide
a handicapped student with the exact
same facilities, and not make the reasonable
adjustments that make the access meaningful,
is to effectively foreclose him from
education. Lau v. Nichols, 414 U.S. at
566 ("there is no equality of treatment
merely by providing [non-English speaking]
33
students with the same facilities, textbooks,
teachers, and curriculum. .. .").
The idea that identical treatment may
constitute statutorily defined "unequality"
thereby necessitating differential treatment
as a remedy, has a long and distinguished
history in this Court. As the Chief Justice
wrote in Griggs v. Duke Power Co., 401 U.S.
424, 431 (1971), construing Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000-e,
Congress has now provided that tests
or criteria for employment or
promotion may not provide equality
of opportunity merely in the sense
of the fabled offer of milk to the
stork and the fox. On the contrary,
Congress has now required that
the posture and condition of the
job-seeker be taken into account.
It has -- to resort again to the
fable -- provided that the vessel
in which the milk is proffered be
one that all seekers can use.
See also Dennis v. United States, 339
U.S. 162, 184 (1950) (Frankfurter, J.,
34
dissenting) ["There is no greater inequality
than the equal treatment of unequals.")74
In a number of cases like that before
this Court, lower courts have correctly found
discriminatory and therefore illegal the
arbitrary and unjustified refusal to make
adjustments (which do not impose undue
financial or administrative burdens) to
provide otherwise qualified handicapped
14 Providing both the rich and the poor
the "opportunity" to rely on appellate
transcripts has been deemed unequal
treatment. Griffin v. Illinois,
351 U.S. 12 (1956). The University's
argument here requires that the
otherwise qualified handicapped
accommodate themselves to its rules
in precisely the manner which this
Court has consistently held
discriminatory.
35
persons the opportunity to participate in
covered programs .?> These decisions are
consistent with Title VI cases which have
required far more substantial changes in
public schools and public housing than are
at issue in this case.}§ And, as already
noted, Title VI provides the model for
enforcing Section 504.
15 Lloyd v. Regional Transp. Auth., 548 F.2d
1277 (7th Cir. 1977) (adapting mass
transit vehicles to accommodate mobility
impaired persons); United Handicapped
Federation v. Andre, 558 F.2d 413 (8th
Cir. 1977) (adapting mass transit vehicles) ;
Bartels v. Biernat, 427 F. Supp. 226 (E.D.
Wisc. 1977) (mass transit vehicles) ;
Hairston v. Drosick, 423 F. Supp. 180
(S.D. W. Va. 1976) (accommodate handicapped
child in regular public classroom).
Moreover the 1978 Amendments to the
Rehabilitation Act authorize funds to
assist federally-aided programs to
accommodate the handicapped, 29 U.S.C.
§ 775(a) (1) (West. Supp. 1979).
16 51g. Hills v. Gautreaux, 425 U.S. 234
76); Lau v. Nichols, 414 U.S. 563
(1974); Bossier Parish School Board v.
Lemon, 370 F.2d 847 (5th Cir.), cert.
. Genied, 388 U.S. 911 (1967).
36
III. PLAINTIFF HAS MET THE MODEST
BURDEN SECTION 504 IMPOSES ON
PLAINTIFFS OF SHOWING THAT THE
UNIVERSITY'S PROGRAMS RECEIVE
FEDERAL FUNDS
The University failed to argue below
that § 504 did not apply to its actions in
this case, and indeed coverage is so
apparent that the failure is hardly
surprising. As this Court's cases show,
plaintiff met the modest burden § 504
imposes on him in this regard by estab-
lishing that the University receives
significant federal funding. Even were
the Court to doubt that the stipulated
facts are sufficient, the failure of the
University to identify which specific
"program" is involved, and the general
lack of a factual record on the specifics
of federal funding, would counsel at most
remand for development of the record.
If the case is to be remanded, this
37
Court should instruct the courts below,
in accord with ordinary principles of
common law, that the University bears
the burden of coming forward with
evidence that the relevant program is
not federally funded.
A. A Handicapped Student
Suing A University Need
Prove Only That the
University Is A Recipient
of Federal Funds in Order
to State a Claim Under
Section 504.
The "activity" in which the University
of Texas is engaged is post-secondary
education at the undergraduate and
graduate levels.
The University of Texas receives at
least $31,400,000 per year in federal
financial assistance. The pervasive
impact of this largesse is obvious.
Without it, education and research at the
University would be curtailed by more
38
than 15%. The stipulated figure almost
certainly understates the degree of the
University's reliance upon federal funding.
There are no facts in the record to indicate
whether that amount reflects various forms
of federal financial assistance to students
in the form of loans and education benefits
which at least one court has held,
correctly, are sufficient, without more,
to require a University's compliance with
Title VI and Section 504. Bob Jones
University v. Johnson, 396 F. Supp. 597
(D.S.C. 1974), aff'd mem. 529 F.2d 514
(4th Cir. 1975). See also Grove City
College v. Harris, Civ. No. 78-1293
(W.D. Pa. March, 1980). A review of the
regulations promulgated pursuant to
Section 504, and of that Section's
legislative history ,and well-established
doctrine under the closely analogous
39
provisions of Title VI and the Reyenue
Sharing Act demonstrate that Section 504
should not be read to require plaintiffs
to trace federal funds directly to a
particular course in which they are
enrolled.
The regulations promulgated under
Section 504 and interpretations of
analogous legislation demonstrate that
"program specificity" is not a requirement
for maintaining an action under Section 504.
The University of Texas has stipulated
that it receives considerable federal
assistance, and it has never denied that
this assistance permeates and supports --
in at least some measure -- all of its
programs and operations in higher educa-
tion and research. In recognition of the
impossibility of reliably determining
which state college classes are or
40
are not supported by federal: assistance when
the college itself is a recipient of such
assistance, this Court has previously found
that a college is bound by Section 504 upon
a mere showing by a plaintiff that the
college is "a state institution that re-
ceives federal funds." Southeastern
Community College v. Davis, 442 U.S. at
400. Plaintiff Camenisch has mo.re than
satisfied this requirement here. The
practical approach followed in Southeastern
Community College is reflected in the HEW
regulations implementing Section 504, which
are directed not to individual lectures or
Classes or administrators of programs, but
to recipients of federal funds, 34 C.F.R.
Part 104.17
The clear Congressional intention to
model Section 504 upon Title VI makes this
point even clearer, because "program
17
See 34 CFR §104.44(d), quoted above
at pp. 2576.
41
°°
specificity" is not a requirement in Title
VI. The receipt of federal financial assis-
tance in any form, including only direct
loans or grants to students, triggers a
requirement of compliance with all Title VI
requirements and implementing regulations.
Bob Jones University v. Johnson, 397 F.
Supp. 596 (D.S.C. 1974), aff'd mem. 529
F.2d 514 (4th Cir. 1975). To hold other-
wise in an analogous case to this under
Title VI would be to say that the University
of Texas could permissibly restrict some of
its programs to white students only, if
those programs received no direct federal
assistance.
No court has ever required proof of
program specificity in Section 504 or
Title VI. The University's reliance on
Trageser v. Libble Rehabilitation Center,
Inc., 590 F.2d 87 (4th Cir. 1978), cert.
denied, 442 U.S. 947 (1979) and Carmi v.
Metropolitan St. Louis Sewer Dist., 620
42
F.2d 762 (8th Cir. ), cert. denied,
U.S. , 101 S.Ct. 249 (1980),
is misplaced and misleading. The only
issue decided in those cases is not present
in this case -- whether employment dis-
crimination is included within the scope
of activities covered by Section 504.18
Nor have private plaintiffs in Title VI
actions been required to make such a show-
ing.?9
The broad interpretation given the
18
The Fourth Circuit held in Trageser
that employment discrimination was
covered by a separate statutory pro-
vision under Titles V and VI. The
court summarily distinguished Trageser
from Southeastern Community College v.
Davis: "That was not an employment
discrimination case." 590 F.2d at 90
n. 12.
a3 The Title VI case cited by the Univer-
sity in support of its proposition,
(footnote continued)
43
phrase “program or activity" in analogous
statutes prohibiting discrimination con-
firms this result. In regulations imple-
menting the antidiscrimination provision
of the State and Local Fiscal Assistance
Act of 1972,as amended,31l U.S.C. §1242(a) (2) (A)
(the "Revenue Sharing Act") , 29 for example,
the Office of Revenue Sharing of the
Department of the Treasury makes clear
that, by virtue of that revenue sharing
allocation, a Police Department as a whole
is a “program or activity" subject to 31
(footnote continued)
Board of Public Institutions of Taylor
County, Florida v. Finch, 414 F.2d
1068 Sth Cir. 1969), was a challenge
to an administrative action by HEW
terminating federal funds to a school
district for violation of Title VI.
20 31 U.S.C. § 1242(a) prohibits discri-
mination under any program or activity
of a “unit of local government" that
receives revenue sharing funds.
44
U.S.C. § 1242(a) (1). Consequently, no par-
ticular subcategory of the Department may
escape that provision through the exception
in 31 U.S.C. § 1242(a) (2) (A):
"Program or activity" means the
operations of the agency or organi-
zational unit of the government
receiving or substantially benefit-
ing from [revenue sharing] funds,
e.g., a police department; department
of corrections; health department.
31 C.F.R. § 51.51(i) (1979), reprinted in
2 Empl. Prac. Guide (CCH) 4 4855.51.21
These regulations and the broad
interpretation courts have given the
21
Prior to April 2, 1979, 31 C.F.R. § 57.51(7)
read in relevant part as follows:
"Program or activity" means any func-
tion conducted by an agency or depart-
ment of the recipient government
which government has received or is
receiving [revenue sharing funds] ....
44 Fed. Reg. 19191 (April 2, 1979).
45
|
concept of program or activity in the con-
text of these antidiscrimination provisions“
should guide this court in rejecting the
University's implausibly narrow reading
of Section 504.
Under the University's theory, a
cynical or recalcitrant recipient could
funnel its federal funds to fairly admin-
istered projects and could use the non-
federal funds made available by that
federal allocation to engage in blatant
discrimination elsewhere, without violating
the Rehabilitation Act. Petitioners'
restrictive reading of "programor activity"
would subvert the Congressional decision
22
See e.g. United States v. Baltimore
County, 19 FEP ¥ 403 (D. Md. Dec. I,
l *
46
to overcome discrimination based on handi-
cap, and would indeed only encourage
it by creating an incentive for making
accounting and bookkeeping decisions based
strictly upon issues relating to handicap.
Congress plainly contemplated no such
result.
B. The Stipulated Facts Concerning
Federal Funding Suffice for
Granting Camenisch the Relief
Requested, And This Court Should
Not Hold Otherwise Without First
Remanding the Case for Develop-
ment of a Factual Record
The issue of whether Section 504 applies
only to the specific programs that receive
federal aid was never raised, never pleaded
as a defense, and never briefed or argued
below. For the first time in the lengthy
course of proceedings in which it has been
engaged with the plaintiff Camenisch, the
University of Texas has now asked this
47
Court to decide whether a plaintiff in li-
tigation under Section 504 is required to
prove that federal assistance was directly
received by the particular program or
activity against which he claimed discrimi-
nation or exclusion. Amici strongly be-
lieve that Section 504 embodies no such
requirement. See Point IIIA, supra. How-
ever, if the Court should doubt that this
is so, it still ought not to decide that
there is a "program or activity" require-
ment on the basis of the record presented
here. To do so would be both premature
and ill-advised. Not only have there have
been no findings of fact below on this
issue; there have not even been moderately
specific factual presentations or arguments
by either party. Consequently, if the
Court wishes to consider a possible
48
"program specificity" requirement under
Section 504, it should do so only after
remanding this case for further factual
findings.
The essence of the University's
newly-raised position is that, despite
the clear mandate of the applicable regu-
lations and a specific contrary finding
by the federal agency charged with the
duty of enforcing and interpreting
Section 504, it was not required to pro-
vide the sign interpreter or other alter-
native ordered by the District Court be-
cause Camenisch did not prove he sought
participation in a "program or activity"
within the meaning of Section 504. But
the University never objected on this
basis in the district court or suggested
that it might be grounds for a remand
49
|
in the Court of Appeals.
Moreover, even in its argument before
this Court, the University has not alleged
that there was no federal funding in
Camenisch's program. In these circumstances,
its rights under § 504 in this regard are
not even arguably jeopardized. Compare
Codd v. Velger, 429 U.S. 624, 627-28 (1977).
Nor, in any event, has the University
even attempted to define which of its
"programs or activities" it thinks is
involved -- or, rather, exempted. In short,
the University has made no showing that
the issue is relevant to the disposition
of the case: it is purely hypothetical.
In addition, it is relevant here that
the University signed an Assurance of Com-
pliance Form with HEW agreeing to comply
with the HEW Section 504 regulations in
50
all its programs. 7°
Had the University
believed the regulations went beyond the
statute, it had administrative
and judicial remedies to resolve that
dispute. Marekag foregone these remedies,
accepted the federal funds, and permitted
handicapped persons like Camenisch to
register for its courses in reliance
on the broad protection of the Assurance
of Compliance as signed, the University
may not now be heard to escape from its
contractual obligation as to such students,
23
The language of the Assurance is unam-
biguous. The University agreed to
assure that "it will comply with Section
504 of the Rehabilitation Act and all
requirements imposed by the applicable
HEW regulations (45 C.F.R. Part 84)."
The Assurance was given for valuable
consideration, namely "any and all
federal grants, loans, contracts...
property, discounts or other federal
financial assistance extended by the
Department of Health Education and Wel-
fare."
51
even if it could do so prospectively.
See United States v. Caceres, 440 U.S.
741, 753 n. 15.
C. If Evidence Concerning A Par-
ticular "Program or Activity"
Were Required Under Section 504,
Ordinary Principles of Common
Law Would Place The Burden of
Coming Forward With Such Evi-
dence Upon Defendants, Not
Plaintiffs.
Even if the Court were to decide that
a highly particularized finding must be
made in Section 504 litigation whether
the precise "program or activity" con-
cerned directly benefitted from federal
aid, the burden of supplying the eviden-
tiary basis for such a finding must be
with Section 504 defendants, not plain-
tiffs.
In civil contexts, courts retain the
52
power and responsibility to define and
allocate the production and persuasion
bu~dens. E.g. Castaneda v. Partida, 430
U.S. 482 (1977); Keyes v. School District
No. 1, 413 U.S. 189 (1973); NLRB v. Great
Dane Trailers, 388 U.S. 26 (1967). See
generally, Cleary, Presuming and Pleading:
An Essay on Juristic Immaturity, 12 Stan.
L. Rev. 5 (1959). Modern analysis has
suggested that allocation of the burdens
of proof is governed by three factors:
(1) the degree of difficulty anticipated
in proving the fact at issue; (2) the
relative ease of access to the evidence;
and (3) the direction of error displace-
ment which the legal system wishes to affix
to a given fact finding process. See e.g.,
Underwood, The Thumb on the Scales of
Justice: Burdens of Persuasion in Criminal
53
Cases, 86 Yale L.J. 1299 (1977); McBaine,
Burden of Proof: Degrees of Belief, 32
Cal. L. Rev. 242 (1944). Whether one
approaches the burden of proof issue in
this case from the perspective of diffi-
culty of proof, relative ease of access
to the evidence, or displacement of error,
the burdens of proof should be borne by
the defendants, after plaintiff meets an
initial burden of coming forward to
demonstrate that the institution receives
federal assistance.
Federal financial assistance to col-
leges and universities like the University
of Texas. is pervasive, including research
grants, construction funds and direct aid
to the students themselves in the form of
benefits (e.g. Veterans benefits) and
loans. The University is the only party
with routine access to the records of how
54
such federal assistance is received and
how it is disbursed. Given the extensive
involvement of federal funds in post-
secondary education it is not unrealistic
to presume that any particular program
has received some federal financial
assistance, at least in the form of
government grants or loans to students
enrolled.
Moreover, to the extent that error
is to be displaced it should be displaced
in the direction of ending discrimination
against qualified handicapped individuals.
Traditionally, our legal system has
effected such a displacement of error by
a sensitive allocation of the persuasion
burden to favor deeply felt social goals.
Conclusion
For the foregoing reasons, the Court
should hold that Section 504 of the
55
|
Rehabilitation Act of 1973 confers a private
right of action, that the University of
Texas has discriminated against respondent
in the circumstances of this case, and
that there is no requirement of program
specificity under Section 504, or that
that issue is not properly before the Court
in this case.
Respectfully submitted,
GEORGE KANNAR
MARCIA ROBINSON LOWRY
(Counsel of Record)
American Civil Liberties
Union Foundation
Children's Rights Project
132 West 44th Street
New York, New York 10036
(212) 944-9800
ROBERT LEVY
New York Civil Liberties
Foundation
84 Fifth Avenue
New York, New York 10011
(212) 924-7800
Attorneys for Amici Curiae
56
Of Counsel:
PATRICIA E. HENNESSEY
CHARLES S. SIMS
American Civil Liberties
Union
132 West 43rd Street
-New York, NY 10036
KATHLEEN MEGIVERN
American Council of
the Blind
1211 Connecticut Ave., N.W.
Suite 506
Washington, DC 20036
DIANA C. PULLIN
Center for Law and
Education
6 Appian Way
Cambridge, MA 02138
57
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