Amicus Brief — University of Texas v. Camenisch

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No. 80-317

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

UNIVERSITY OF TEXAS, et al.,

Petitioners,

Vv.

WALTER CAMENISCH,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

MOTION FOR LEAVE

TO FILE BRIEF AUL

BRIEF AMICUS CURIAE FOR THE

EQUAL EMPLOYMENT ADVISORY COUNCIL

IN SUPPORT OF THE PETITIONERS

ROBERT E. WILLIAMS

DoucLas S. MCDOWELL

EDWARD E. POTTER

McGuINESS & WILLIAMS

1015 15th Street, N.W.

Washington, D.C. 20005

(202) 789-8600

WILSON - Eres PRINTING Co.. INC. - 789-0096 - WASHINGTON. D.C. 20001

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

No. 80-317

JNIVERSITY OF TEXAS, et al.,

. Petitioners,

WALTER CAMENISCH,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

MOTION OF THE EQUAL EMPLOYMENT

ADVISORY COUNCIL FOR LEAVE TO SUBMIT BRIEF

AS AMICUS CURIAE

IN SUPPORT OF THE PETITIONERS

To the Honorable, the Chief Justice and the Associate

Justices of the United States Supreme Court:

Pursuant to Rule 42(3) of the Rules of this Court,

the Equal Employment Advisory Council (EEAC) moves

this Court for leave to file the accompanying brief as

Amicus Curiae supporting the petitioners, the Univer-

sity of Texas, et al., in this case. In support of this

motion, EEAC shows as follows:

1, EEAC is a voluntary nonprofit association organ-

ized to promote the common interest of employers and

the general public in sound government policies, proce-

dures and requirements pertaining to nondiscriminatory

employment practices. Its membership comprises a broad

segment of the employer community in the United States,

including both individual employers and trade and in-

dustry associations. Its governing body is a Board of

Directors composed primarily of experts and specialists

in the field of equal employment opportunity whose com-

bined experience gives the Council a unique depth of

understanding of the practical and legal considerations

relevant to the proper interpretation and application of

EEO policies and requirements.

2. Many of EEAC’s members participate in federally

subsidized programs and therefore are subject to the non-

discrimination provisions of Section 504 of the Rehabili-

tation Act of 1973, 29 U.S.C. § 794. In addition, most

of EKEAC’s members are federal contractors subject to

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

which unlike Section 504, requires affirmative action “to

employ and advance in employment qualified handicapped

individuals.” Despite the significant differences in Sec-

tions 504 and 503, the Court’s resolution of the jurisdic-

tional and substantive issues in this case will influence

the resolution of similar issues under Section 503.

3. Accordingly, EEAC’s members have a direct inter-

est in the issues presented for the Court’s consideration,

including: (1) whether private individuals may bring

suit under Section 504 without first showing that they

are participants in programs in which they were the

intended beneficiaries of federal financial assistance and

that they have exhausted administrative remedies; and

(2) whether Section 504 requires institutions and em-

ployers receiving financial assistance to take positive

steps to accommodate otherwise qualified handicapped

persons.

4. Because of its interest in issues involving the pri-

vate right of action under our civil rights laws, EEAC

filed a brief as Amicus Curiae in this Court in South-

eastern Community College v. Davis, 99 Sup. Ct. 2361

(1979) ; and Cannon v. University of Chicago, 99 Sup.

Ct. 1946 (1979). On numerous other occasions, EEAC

has filed briefs as amicus curiae. See, e.g., International

Brotherhood of Teamsters v United States, 481 U.S. 324

(1977) ; United Air Lines, Inc. v. Evans, 481 U.S. 558

(1977) ; and Great American Federal Savings & Loan

Association v. Novotny, 99 Sup. Ct. 2345 (1979).

5. The written consent of counsel for the petitioners

to the filing of this brief has been filed with the Clerk

of the Court. Counsel for the respondent indicated that

he would not consent, thereby necessitating this motion.

WHEREFORE, it is respectfully moved that the EEAC

be granted leave to file the accompanying brief amicus

curiae in this case.

Respectfully submitted,

ROBERT E. WILLIAMS

DOUGLAS S. MCDOWELL

EDWARD E. POTTER

McCGUINESS & WILLIAMS

1015 15th Street, N.W.

Washington, D.C. 20005

(202) 789-8600

INDEX

RAED. GH ALT TROTTING iscsccinctiensnctienpnessacetaceseie

INTEREST OF THE AMICUS CURIAE .....W.0.0000......

SUMMARY OF ARGUMENT .................

IFO shncinicnisheieniiintsnaidiabinneaniinialigeai dae aaa

I. SECTION 504 DOES NOT CREATE AN AD-

DITIONAL PRIVATE RIGHT OF ACTION

BEYOND THE RIGHT TO SEEK JUDICIAL

REVIEW OF AN ADVERSE AGENCY AC-

SUITE Lsiesesincsnsstsinasis bitsibeaatapnicus necida sit anand

II.

The Legislative History of the Rehabilitation

Act of 1973 and Its Two Amendments Does

Not Support an Implication of a Right of

Action Under Section 504 for Private Indi-

viduals Against Recipients of Federal Funds

Prior to an Administrative Determination....

1. The 1974 Amendments ....................

2. The 1978 Amendments .........................

. Implication of a Private Right of Action

Under Section 504 Would Interfere"With the

Legislative Purposes of the Rehabilitation

CS OSES LEN eT S GIP. Lint

ANY IMPLIED JUDICIAL REMEDY UNDER

SECTION 504 SHOULD BE CAREFULLY

CER IER CIID i scciesinisecicitibeamuscilatsiee a

A. Section 504 Applies Only to Programs Re-

ceiving Federal Financial Assistance, and

Net to Other Activities Administered by the

GOUIOIIE « sensithoscunncneasaeninted ae teenie =

INDEX—Continued

B. The Complainant Must Exhaust Available

Administrative Remedies With the Depart-

ment of Health, Education, and Welfare Be-

fore Filing Suit in Federal Vourt ................ é

III. SECTION 504 IS A NONDISCRIMINATION

STATUTE AND DOES NOT IMPOSE ANY

OBLIGATION TO UNDERTAKE POSITIVE

STEPS TO ACCOMMODATE “OTHERWISE

QUALIFIED HANDICAPPED” INDIVIDU-

Page

iii

TABLE OF AUTHORITIES

CASES Page

Abbott Laboratories v. Gardner, 387 U.S. 186

8 RIC ARPT SR he REAP cow tee BNL SCC 18

Aircraft & Diesel Equipment Corp. Vv. Hirsch, 331

I cn 15, 22

Anderson V. Erie Lakawanna Ry. Co., 468 F.

Supp. 984 (N.D. Ohio 1979) ...................0... eee 10

Bd. of Public Instruction of Taylor County Vv.

Finch, 414 F.2d 1068 (5th Cir. 1969) 2.000000... 20

Brinkley v. Department of Public Safety, 22 FEP

Cases 164 (N.D. Ga. 1980) .......cscccsssessssereresssseserees 17

Brown V. GSA, 425 U.S. 820 (1976) ........ccccccccseeeee 18

Camp V. Pitts, 411 U.S. 188 (1978) .......00000... 8

Campbell v. Kruse, 484 U.S. 808 (1977) ......0000000... 17

Cannon V. University of Chicago, 99 Sup. Ct.

WE, MPI acetal i i 8,7, 10, 12, 28

Carmi v. St. Louis Sewer District, 20 FEP Cases

I GN I hi a a 24

Carmi v. Metropolitan St. Louis Sewer District,

620 F.2d 678 (8th Cir. 1980), cert. denied, 49

RECT, MBI TIED cinecetstudcietesseccednnonses 16, 17, 20, 21

Cave Vv. Beame, 488 F.Supp. 172 (E.D.N.Y. 1977)... 21

Citizens to Preserve Overton Park, Inc. v. Volpe,

I He MI, IAD eldadiealis kcabcassiee sennarocccecesenncoen 8

Cort V. Ash, 422 U.S. 66 (1976) ...............cc.cccccccceees 8,5

Crawford v. University of North Carolina, 440 F.

I, BOGE Cie ale MUTE cctkntctirctneconscccascasacscee 24

Davis Vv. Bucher, 451 F.Supp. 791 (E.D. Pa. 1978).. 22

Davis Vv. Southeastern Community College, 574

pf Be | CREE Ries renee 5

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

OB Ry, URRY HY SEAR Ree FW ASIA 21, 28

Drennon V. Philadelphia General Hospital, 428

PB. GOO CED. Pa. BOET) cccisiccccacscciscessssscsesr 24

Dupree v. City of Chattanooga, 862 F.Supp. 1186

RNG | IA, UII chietahincs rinbaicrhidcarineebWiaiaas icncipaconian 21

Federal Maritime Board v. Ibrandtsen, 356 U.S.

Sp SUA RRRETRDRE B Se 2, 2 rece ce 24

Feliciano v. Romney, 863 F.Supp. 656 (S.D.N.Y.

NCES RPE ED eee UPS Ca A 21

TABLE OF AUTHORITIES—Continued

Page

Furnco Construction Corporation v. Waters, 488

Be IE ier siniacdaceRabassitagtbnatenaniepennssetainisnes 26

Gatreaux Vv. Romney, 457 F.2d 124 (7th Cir.

I iad ect techies es AN bh chepersdailecanaberbiseinsieeens 20

Green Vv. Cauthen, 879 F.Supp. 361 (D.S.C. 1974).. 21

Green Street Association v. Daley, 873 F.2d 1

(7th Cir.), cert. denied, 387 U.S. 982 (1967).... 21

Hart v. County of Alameda, 21 FEP Cases 233

COs FARSI * cece fensnccsisicccccchasshducecscbvimssinasones 17, 22

Johnson Vv. County of Chester, 418 F.Supp. 1299

Be a ED iiicscdiathesasushareaidesiinnsnsechaegbcbentencesosnie 21

Kampmeier v. Nyquist, 558 F.2d 296 (2d Cir.

kali steinlataaeed inakili dah dhcsinadnehiiaeniveisebesbouse 5

Leary Vv. Crapsey, 566 F.2d 868 (2d Cir. 1977) ....... 5

LeMaster v. Weinberger, 558 F.2d 887 (6th Cir.

I eiiaticeakiteh ad ene satethaldsitancaydidedethtnaeciviidndadssiongiatinin 15

Lloyd v. Regional Transportation Authority, 548

if Bh By Se Ue. y ) enn 5, 7, 8,9, 11

McGee Vv. United States, 402 U.S. 479 (1971) ...... 23

McKart v. United States, 895 U.S. 185 (1969) ....... 23

Mohasco Corp. Vv. Silver, 100 Sup. Ct. 2486 (1980).. 23

Morris v. Gressetle, 482 U.S. 491 (1977) .........0..... 18

N.A.A.C.P. v. Medical Center, Inc., 599 F.2d 1247,

BE, CI Ge I wi iedeteticdoeccecctentcncsscccasicntaneienopede 5

National Railroad Passenger Corp. v. National

Assn. of Railroad Passengers, 414 U.S. 453

CO aed ncin seep peatabtciedsceevesacnrianaiviiniomesidpans 10, 18

Neal v. U.S. Postal Service, 468 F.Supp. 958 (D.

SI III ciate sdottsce tities acllestaiieleveiioninatneipionehiliisune 21

Proffit v. Consolidation Coal Co., 21 FEP Cases

CF ee, BND hecrecctnsitsitidenecesavnnsmidentagnbonnde 17

Rogers Vv. Frito-Lay, Inc., 483 F.Supp. 200 (N.D.

Texas 1977), aff'd, 611 F.2d 1074 (5th Cir.

TIE iiscicsa aeenccnvsacnie pcb tecieabinicenuac db cascatinssnvnt 10, 12, 17, 23

Rogers Vv. Frito-Lay, Inc., 611 F.2d 1074 (5th Cir.

IPI" cis sccctotsntheatllbsstndtodanestampuinntedetsesnedeianileaniedadenes 11

TABLE OF AUTHORITIES—Continued

School District of City of Saginaw, Michigan v.

HEW, 481 F.Supp. 147 (E.D. Mich. 1977) .........

Simpson Vv. Reynolds Metals Co., 629 F.2d 1226

CUD CIR. DUNN caine sintatcvscceediocsctnedlial 5, 8, 11,

Snowden v. Birmingham-Jefferson County Transit

Authority, 407 F.Supp. 894 (N.D. Ala. 1975),

aff'd, 5651 F.2d 862 (5th Cir. 1977) 0...

Southeastern Community College v. Davis, 99

i ed Ce RT 2, 6, 12, 17,

Touche Ross & Co. Vv. Redington, 99 Sup. Ct. 2479

STDUMTIID ° cnecdemaie bc ssunlastintienags sacindpschenctonootunalasiiie ss aD ada R Re

Trageser V. Libbie Rehabilitation Center, Inc., 590

F.2d 87 (4th Cir. 1978), cert. denied, 99 Sup.

Re Re LR ea ae

Transamerica Mortgage Advisors, Inc. v. Lewis,

pe EON Rn

Trans World Airlines, Inc. v. Hardison, 482 U.S.

Se. NE - sapihsdceinsipsctasncactinondeiiteidinntitainscaceneahabdboieted 8,

United Handicapped Federation v. Andre, 558

ee Ge EI Ga BTU viicrecnstdcntcecceccibesercnetcastes

United States v. Jefferson County Bd. of Educ.,

872 F.2d 886 (5th Cir. 1966), decree corrected

on rehearing, 880 F.2d 885 (en banc), cert.

denied, 889 U.S. 840 (1967) ...................0.....cc0000.

United States v. Philadelphia National Bank, 874

RP SI MEMES “sit cntininesdiblnsnescldsiciaseietchadametih Se

University of California Regents v. Bakke, 488

1 RRP SRT a 0 ee Mea | OA

Upshur v. Love, 20 FEP Cases 688 (N.D.Calif.

PRE A om OE ESN ere TCS) uel Ce

Weinberger v. Salfi, 422 U.S. 749 (1975) 000000000...

Whitaker v. Board of Higher Education of New

York, 18 FEP Cases 906 (E.D.N.Y. 1978) .........

Wood v. Diamond State Telephone Co., 440 F.

SU: TG CHG DOOD: catttntcescaiernctetennciicsction

Page

17, 20

26, 27

27, 28

TABLE OF AUTHORITIES—Continued

STATUTES: Page

Administrative Procedure Act, 5 U.S.C. §§ 701-

ENN eee ea mS Ses APOE OE AIC 1,9

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

§ 2000d et seq.

Section 601, 42 U.S.C. § 2000d -....00. 5

Section 602, 42 U.S.C. § 2000d-1 2.000000... 6,19

Section 608, 42 U.S.C. § 2000d-2 0.00020. 7,21

Section 604, 42 U.S.C. § 2000d-8 0000... 20

Civil Rights Act of 1964, Title VII, 42 U.S.C.

Oe ee sblcaiace 10, 12, 16, 27

Civil Rights Attorney’s Fee Awards Act of 1976,

BREST RS ee a 12

Education Amdenments of 1972, Title IX, 20

U.S.C. § 1681 et seq.

Section 901, 20 U.S.C. $1681 ........................ 6

Section 902, 20 U.S.C. § 1682 ......000000000.... 6

Section 908, 20 U.S.C. § 1683 0000. 7

Rehabilitation Act of 1973, as amended, 29 U.S.C.

§ 701 et seq.

Section 501, 29 U.S.C. § 791 00.0. 10, 12

Section 508, 29 U.S.C. § 798 ......... 4,9, 10, 23, 26, 27

Section 504, 29 U.S.C. § 794 2.0.0.0... passim

Section 505, 29 U.S.C. § 794a ooo... 10

a |. RS eR 9

Section 706(7), 29 U.S.C. § 706(7) ....14, 15, 16, 28

Section 720(a), 29 U.S.C. § 720(a) ............... 25

Section 723(6), 29 U.S.C. § 728(6) .............. 25

Section 776, 29 U.S.C. § 776 .............:....200...... 25

Social Security Act, 42 U.S.C. § 428(d) (2) (A),

ae I 15

S. Rep. No. 93-318, 98d Cong., 1st Sess. (1978) .... 4

S. Rep. No. 93-1297, 98d Cong., 2d Sess. (1974) ....6, 7, 28

S. Rep. No. 95-890, 95th Cong., 2d Sess. (1978).... 11

H. Rep. 95-1780, Conf. Rep., 95th Cong., 2d Sess.

DUNE “pabasineled alts sdtainsacnssaseiiaiieagckains telidinsievieetalsunds 11

vii

TABLE OF AUTHORITIES—Continued

Page

LEGISLATIVE HISTORY:

Hearings on Civil Rights Before Subcomm. No. 5

of the House Comm. on the Judiciary, ser. 4,

pt. II, 88th Cong., 1st Sess. (1968)... 18

Hearings on H.R. 7152, As Amended by Subcomm.

No. 5, Before the House Comm. on the Judiciary,

ser. 4, pt. IV, 88th Cong., 1st Sess. (2968) ......... 18

Hearings on H. Res. 789 Before the House Comm.

on Rules, 88th Cong., 2d Sess. GREE Oe 19

110 Cong. Rec. 7059 (1964) ............................... 19

110 Cong. Ree. 7067 (1964) ............................... 19

110 Cong. Rec. 12689 (1964) 19

110 Cong. Rec. 12714 (1964) 00 19

120 Cong. Rec. 80551 (1979) W000 23

124 Cong. Rec. S15590 (daily ed. Sept. 20, 1978).. 11

124 Cong. Rec. S15591 (daily ed. Sept. 20, 1978).. 11,12

124 Cong. Rec. S15593 (daily ed. Sept. 20, 1978).. 11, 12

124 Cong. Rec. H12720 (daily ed. Oct. 12, 1978).... 11, 12

124 Cong. Rec. S$18999 (daily ed. Oct. 14, 1978)... 11

124 Cong. Rec. S19001 (daily ed. Oct. 14, 1978)... 11

REGULATIONS AND ORDERS:

Executive Order 11914, 41 Fed. Reg. 17871 (April

ie once EY RENEN I EAC RTO Er 8,9

Executive Order 12250, 45 Fed. Reg. 72995 (No-

ee, RS OO Cae ag 9

= Cre rere ee end $1... 6

Re 6

I 25

i. See eee 25

co |. Dein oie 25

i ee OI 25

dy Re ee 10

viii

TABLE OF AUTHORITIES—Continued

MISCELLANEOUS:

Jaffe, Primary Jurisdiction, 77 Harv. L. Rev. 1037

CPD ceiiccisniiiratesecknoneseviicdbiiebadeeeeseiabeaallaiaiensacidiasiees

Kuhn, Title IX: Employment and Athletics are

Outside HEW’s Jurisdiction, 65 Geo. L.J. 49

IGE. sacnscssis sencasticienssnebinsessihecnsapateasitiime de leaanieaiabiais

Liebman, The Definition of Disability in Social

Security and Supplemental Security Income:

Drawing the Bounds of Social Welfare Estates,

80 Tear. Ea Beers. Be Cae acetates

O’Neill, Discrimination Against Handicapped Per-

sons—The Costs, Benefits and Economic Impact

of Implementing Section 504 of the Rehabilita-

tion Act Covering Recipients of HEW Financial

Reap CHI GE, BUG P ecctinctecwcecthnctewdiccsbcctnesiene:

Page

15, 16

IN THE

Siywrene Court of the United States

OCTOBER TERM, 1980

No. 80-317

UNIVERSITY OF TEXAS, et al.,

- Petitioners,

WALTER CAMENISCH,

Respondent.

On Writ of Certiorari to the United. States

Court of Appeals for the Fifth Circuit

BRIEF AMICUS CURIAE FOR THE

EQUAL EMPLOYMENT ADVISORY COUNCIL

IN SUPPORT OF THE PETITIONERS

INTEREST OF THE AMICUS CURIAE!

The Council is a voluntary nonprofit association com-

posed of employers and trade associations. Many of

EEAC’s members participate in federally subsidized pro-

grams and therefore are subject to the nondiscrimina-

tion provisions of Section 504 of the Rehabilitation Act of

1978, 29 U.S.C. § 794. Accordingly, EEAC’s members

have a direct interest in the issues presented for the

Court’s consideration; that is, (1) whether private in-

1 The interest of the amicus curiae Equal Employment Advisory

Council is set forth in greater detail above in the motion for leave

to file a brief as amicus curiae.

dividuals may bring suit under Section 504 without show-

ing that they are participants in programs in which they

were the intended beneficiaries of financial assistance and

that they have exhausted administrative remedies; and

(2) whether Section 504 requires institutions and em-

ployers receiving financial assistance to take positive

steps to accommodate otherwise qualified handicapped

persons.

SUMMARY OF ARGUMENT

The legislative history of the Rehabilitation Act of

1973 and its two amendments shows that Congress did

not intend to create a right of action under Section 504

for private individuals against recipients of federal finan-

cial assistance prior to an administrative determination.

In order for an otherwise qualified handicapped individ-

ual to have standing under Section 504 to seek review of

an agency determination, the complainant must have

been the intended beneficiary in a program receiving fed-

eral funds and have exhausted his administrative rem-

edies. Because resolution of handicap discrimination com-

plaints are substantially more complex than those in-

volving race, sex, or national origin, exercise of adminis-

trative expertise by the funding agency is a necessary

predicate to judicial review.

Section 504, which merely proclaims a policy of non-

discrimination, does not require recipients to undertake

costly accommodations for the handicapped. Southeastern

Community College v. Davis, 99 Sup. Ct. 23861, 2869

(1979). Because there is no “accommodation” language

in the statute in question, no such accommodations are

required and even if such an obligation exists, Section 504

requires that recipients incur no more than de minimis

costs to comply. To require more would be at odds with

this Court’s decision in Trans World Airlines, Inc. v.

Hardison, 482 U.S. 63 (1977).

ARGUMENT

I. SECTION 504 DOES NOT CREATE AN ADDITION-

AL PRIVATE RIGHT OF ACTION BEYOND THE

RIGHT TO SEEK JUDICIAL REVIEW OF AN AD-

VERSE AGENCY ACTION.

A. The Legislative History of the Rehabilitation Act

of 1973 and Its Two Amendments Does Not Support

an Implication of a Right of Action Under Section

504 for Private Individuals Against Recipients of

Federal Funds Prior to an Administrative Deter-

mination.

The question of whether a statute creates a cause of

action, expressly or by implication, is essentially a matter

of statutory construction. Transamerica Mortgage Ad-

visors, Inc. v. Lewis, 100 Sup. Ct. 242, 245 (1979);

Touche Ross & Co. v. Redington, 99 Sup. Ct. 2479, 2485

(1979) ; and Cannon v. University of Chicago, 99 Supp.

Ct. 1946, 1958 (1979). “[T]he fact that a federal

statute may have been violated and some person harmed

does not automatically give rise to a private cause of

action in favor of that person.” Touche Ross, 99 Supp.

Ct. at 2485; and Cannon, 99 Sup. Ct. at 1953. Rather,

as recognized in recent decisions of this Court, the central

inquiry in such cases is whether it is clear that Congress

intended to create the private remedy asserted.2 Trans-

america, 100 Sup. Ct. at 245; and Touche Ross, 99 Sup.

Ct. at 2489. Cf. Cannon, 99 Sup. Ct. at 1975 (Powell, J.,

dissenting) (“Absent the most compelling evidence of af-

2In Cannon, the Court implied a private right of action under

Title IX of the Education Amendments of 1972, relying on the

four factor test in Cort v. Ash, 422 U.S. 66 (1975). Since that

decision, this Court has adopted a stricter standard in deciding

questions of private rights of action and has determined that the

four Cort factors standing alone do not justify the implication of

a private right of action. Transamerica, 100 Sup. Ct. at 249 (“The

dispositive question remains whether Congress intended to create

any such remedy. Having answered that question in the negative

our inquiry is at an end.”); and Touche Ross, 99 Sup. Ct. at 2489.

firmative congressional intent, a federal court should not

infer a private course of action.”)

Section 504 as enacted in 1973 does not explicitly

create a right for anyone to bring suit in federal court.

Moreover, the only contemporaneous legislative history

is one sentence which refers to the provision as a mere

policy proclamation.* This characterization is not sur-

prising because the Rehabilitation Act of 1973 was not

a civil rights statute but rather a massive appropriations

law aimed both at subsidizing handicapped individuals—

especially the severely handicapped—and developing new

programs to assist in their assimilation into society. It

was enacted primarily to improve the states’ delivery of

vocational rehabilitation services to handicapped indi-

viduals.

In sum, Section 504 stood alone within the Rehabilita-

tion Act of 1973 unaccompanied by any implementation

provisions. No authority was delegated to any agency

to promulgate or enforce regulations under the Act.

These omissions are in contrast with the language of

Section 503 of the Rehabilitation Act, which contained

provisions mandating the promulgation of regulations

and the establishment of a complaint procedure within

the Department of Labor. 29 U.S.C. § 793. Thus, no

private right of action can be inferred under Section

504 because no rights to administrative process or other

action was evidenced by the statute.

3S. Rep. No. 93-318, 93d Cong., Ist Sess., reprinted in [1973]

U.S. Cope Conc. & AD. NEWS 2076, 2123, stated: “The bill fur-

ther incudes a provision proclaiming a policy of nondiscrimination

against otherwise qualified handicapped individuals with respect to

participation in or access to any program which is in receipt of

Federal financial assistance.” (Emphasis added.) See Snowden v.

Birmingham-Jefferson County Transit Authority, 407 F.Supp. 394,

8397 (N.D. Ala. 1975), aff'd, 551 F.2d 862 (5th Cir. 1977).

1. The 1974 Amendments.

Notwithstanding this contemporaneous legislative his-

tory indicating that Section 504 was no more than a

pe'icy statement, numerous courts between 1973 and

19.8 concluded that Section 504 authorizes a private

right of action. All of the courts of appeals that reached

this conclusion, including the court below, have based

their decisions on the Cort analysis of the Seventh Cir-

cuit in Lloyd v. Regional Transportation Authority, 548

F.2d 1277, 1284-1287 (7th Cir. 1977) .*

In Lloyd, the court relied heavily on the legislative

history of the 1974 amendments to the Rehabilitation

Act, which amended the definition the “handicapped in-

dividual” but did not in any way modify Section 504.

Although the Act was amended for this limited purpose,

the report written to support overriding the presidential

veto of the 1974 amendments included language which

extended beyond the scope of the amendments and at-

tempted to clarify Congress’ intent in 1973 regarding

Section 504. Specifically, the Senate Committee report

stated that: (1) Section 504 was patterned after the

nondiscrimination language pertaining to recipients of

federal financial assistance in Section 601 of the Civil

Rights Act of 1964, 42 U.S.C. § 2000d (Title VI), and

4 See N.A.A.C.P. v. Medical Center, Iuc., 599 F.2d 1247, 1258

(3d Cir. 1979) ; Davis v. Southeastern Community College, 574 F.2d

1158, 1159 (4th Cir. 1978); United Handicapped Federation Vv.

Andre, 558 F.2d 413, 415 (8th Cir. 1977); Kampmevw v. Nyquist,

553 F.2d 296, 299 (2d Cir. 1977) ; and Leary v. Vrapsey, 566 F.2d

863, 865 (2d Cir. 1977). Significantly, in Simpson v. Reynolds

Metals Co., 629 F.2d 1226, 1229 (7th Cir. 1980), the Seventh Cir-

cuit stated that the assumption by other courts that it implied a

private right of action under Section 504 in Lloyd “may reflect an

oversimplified view of that case and ignores the limitations we

there expressed.” The court in Lloyd found a private right of

action solely on the basis that at the time of its decision there did

not exist remedial administrative procedures under Section 504.

See pp. 7-8, infra.

Section 901 of the Education Amendments of 1972, 20

U.S.C. § 1681 (Title IX); (2) although not specifically

required by Section 504, regulations were to be promul-

gated; and (3) the enforcement provisions of Section 504

were to be patterned after the implementing regulations

of Title VI, 45 C.F.R. Parts 80 and 81, and Title IX,

45 C.F.R. Part 86. S. Rep. No. 93-1297, 93d Cong., 2d

Sess. 39-40 (1974).

In contrast to the weight accorded to this legislative

history in Lloyd by the Seventh Circuit, this Court in

Southeastern Community College v. Davis, 99 Sup. Ct.

2361 (1979), stated that this committee report, “made

after the enactment. of the statute under consideration

[Section 504], cannot substitute for a clear expression

of legislative intent at the time of enactment (citations

omitted).” 99 Sup. Ct. at 2876 n.11. Moreover, “[nJor

do these comments, none of which represents the will

of Congress as a whole, constitute subsequent ‘legisla-

tion’ such as this court might weigh in construing the

meaning of the earlier enactment.” Jd. Consequently,

the legislative history attached to the 1974 amendments

does not justify reading Section 504 as anything more

than it appears on its face to be, 7.e., an expression of

a nondiscrimination policy with respect to the allocation

of the benefits of federal funding to the handicapped.

Indeed, a comparison of the language of Section 504

as enacted in 1973 with Title VI and Title IX shows

that the only similarity between these statutes is limited

to the language prohibiting discrimination. In both of

those titles, Congress followed the prohibition of dis-

crimination by recipients of financial assistance with a

detailed section directing all federal agencies and de-

partments which disburse federal money to issue regula-

tions. 42 U.S.C. § 2000d-1; and 20 U.S.C. § 1682. Sec-

tion 504 contains no such direction. Furthermore, unlike

Section 504, Titles VI and IX both provide for presi-

dential review of the regulations and compliance with

them by termination of federal funds or by other means

authorized by law. Jd. Finally, those titles provide for

judicial review of agency action against recipients by

any aggrieved person pursuant to the procedures of the

Administrative Procedures Act. 42 U.S.C. § 2000d-2, and

20 U.S.C. § 1683. Again, Section 504 contains no such

provision.

Even if Congressional intent could be gleaned from

the 1974 committee report, it at most shows that Con-

gress intended the enforcement provision of Section 504

to be patterned after existing Title VI and Title IX

regulations, which neither provide for nor contemplate a

private cause of action. There is no indication in the

report that Congress assumed that Title VI created a

private remedy or evidence in the legislative history that

any Member of Congress voted in favor of either the

1973 statute or the 1974 amendments in reliance of an

understanding that Title VI provided a private remedy.®

Furthermore, a conclusion that there is a private right

of action under Sections 504 is not justified by the follow-

ing sentence in the 1974 Senate report:

This approach to implementation of section 504,

which closely follows the models of Title VI and Title

IX, would ensure administrative due process (right

to hearing, right to review), provide for administra-

tive consistency within the Federal government as

well as relative ease of implementation, and permit

a judicial remedy through a private action. S. Rep.

No. 93-1297 at 39-40.

The Lloyd court—the only court to construe this sen-

tence—stated that this phrase “contemplates judiciai re-

5 This Court has never explicitly held that Title VI contemplates

a private right of action and Amicus believes there is none for

reasons well-stated in Justice White’s dissenting opinion in Cannon,

99 Sup. Ct. at 1968-1974 (White, J. and Blackmun, J., dissenting) ;

and separate opinion in University of California Regents v. Bakke,

438 U.S. 265, 379 (1978) (separate opinion of White, J.).

view of an administrative proceeding as contradistinct

from an independent cause of action in federal court... .”

548 F.2d at 1286. The entire passage from the Senate

report can be considered nothing more than a directive

to HEW and other administrative agencies to enforce

Section 504 as HEW was already enforcing Title VI

and Title IX. If HEW, for example, should arbitrarily

and capriciously abuse its enforcement powers, an ag-

grieved recipient of federal financial assistance would

clearly be entitled to obtain judicial review of agency

action, the “judicial remedy through a private action”

contemplated by Congress. The defendant in such an

action would be HEW, not the recipient of federal

funds, and review would be limited to the administra-

tive record, to determine whether the agency’s action

was arbitrary or capricious or unsupportable by sub-

stantial evidence on the record as a whole. See Camp

v. Pitts, 411 U.S. 188 (1973) ; Citizens to Preserve Over-

ton Park, Inc. v. Volpe, 401 U.S. 402 (1971).

Nor can the Seventh Circuit’s statement in Lloyd that,

in the circumstances prevailing at the time of that de-

cision, “there can be no objection to an independent

cause of action in the federal courts,” 548 F.2d at 1286,

fairly be read to support such a private cause of action

today. For the court specifically noted, in reaching that

conclusion, that at the time of its decision there did not

exist administrative remedial machinery under Section

504. Significantly, however, the Seventh Circuit ‘“ex-

pressly reserved the question of whether a private right

of action would still be available after final regulations

were promulgated.” Simpson, 629 F.2d at 1280. See

Lloyd, 548 F.2d at 1286 n.29.

Although not explicitly authorized by Section 504 until

the passage of the 1978 amendments to the Rehabilita-

tion Act (discussed below), at least 11 federal agencies

including HEW have issued virtually identical Section

504 regulations. Consequently, as a result of Executive

Order 11914 (41 Fed. Reg. 17871), which authorized

HEW to coordinate the implementation of Section 504

by all federal departments and agencies, there now exists

a uniform regulatory framework for Section 504.° There

now being a consolidated enforcement program under

Section 504, “the judicial remedy available must be

limited to post-administrative remedy judicial review.”

Lloyd, 548 F.2d at 1286 n.29.

2. The 1978 Amendments.

The legislative history of the Rehabilitation, Compre-

hensive Services, and Developmental Disabilities Amend-

ments of 19787 likewise confirms that alleged discrimi-

natees may not enter federal court except to seek review

of adverse administrative action pursuant to the Ad-

ministrative Procedure Act. As with the original Act

in 1978, the principal thrust of the 1978 amendments

was to expand vocational rehabilitation, research, train-

ing, and construction programs and, additionally, to

create a permanent authorization of appropriations for

the basic federal-state vocational rehabilitation program.

29 U.S.C. $701. Unlike in 1974, some of the amend-

ments affected Section 504.

Section 504 was amended to authorize agency heads

to promulgate agency regulations. In this respect, Sec-

tion 504 now parallels Section 508, as enacted in 1973,

because both now require implementing regulations and

administrative enforcement. Congress also added a

6On November 2, 1980, HEW’s coordination function was trans-

ferred to the Department of Justice by Executive Order 12250, 45

Fed. Reg. 72995 (November 4, 1980), which is now authorized

to coordinate the implementation and enforcement of Title VI,

Title IX, Section 504, and any other law which precludes dis-

crimination in programs receiving federal financial assistance.

7P.L. 95-602, 92 Stat. 2955, 2982, 2984.

8 Because Section 503 as enacted contained an administrative

enforcement scheme, courts have viewed this express remedy as a

new Section 505, which explicitly grants a private

right of action to alleged victims of handicap discrimi-

nation in federal employment under Title VII of the

Civil Rights Act of 1964, but then rejects that approach

for Section 504 complainants by specifying that the

“remedies, procedures, and rights set forth in Title VI

of the Civil Rights Act of 1964” apply to Section 504

violations. 92 Stat. 2982. By doing so, Congress was

merely codifying the HiW regulation, 45 C.F.R. § 84.61,

which made available to Section 504 complainants the

“remedies, procedures and rights” of Title VI—which,

again, do not provide for or contemplate a private cause

of action for alleged victims of discrimination directly

against alleged violators. That Section 505 authorizes

discretionary awards of attorney’s fees to the prevailing

party, other than the United States “in any action or

proceeding to enforce or charge a violation of” Section

504, does not indicate that Congress intended a private

right of action. Rather, this provision applies to ad-

strong indication that Congress did not intend to provide a private

judicial remedy as well under Section 503. See, e.g., Rogers Vv.

Frito-Lay, Inc., 433 F.Supp. 200, 203 (N.D. Texas 1977), aff'd, 611

F.2d 1074 (5th Cir. 1980); Anderson v. Erie Lackawanna Ry. Co.,

468 F.Supp. 934, 938-39 (N.D. Ohio 1979); and Wood v. Diamond

State Telephone Co., 440 F.Supp. 1003, 1009 (D. Del. 1977).

® “Obviously, when Congress wished to provide a private...

remedy [under the Rehabilitation Act], it knew how to do so and

did so expressly.” Touche Ross, 99 Sup. Ct. at 2487. In view of

the express judicial remedy provided in Section 501 and the express

administrative remedy provided in Section 504, “it is highly im-

probable that Congress absentmindedly forgot to mention an in-

tended private action” for Section 504. Transamerica, 100 Sup. Ct.

at 247, citing Cannon, 99 Sup. Ct. at 1981 (Powell, J., dissenting).

This Court has refused to infer private rights of actions where

administrative or like remedies are expressly available. See, e.g.,

National Railroad Passenger Corp. v. National Assn. of Railroad

Passengers, 414 U.S. 458 (1974). See also Transamerica Mortgage

Advisors, 100 Sup. Ct. at 247 (“where a statute expressly provides

a particular remedy or remedies, a court must be chary of reading

others into it,’”’).

ministrative proceedings pursuant to the incorporated

Title VI regulations, together with the limited judicial

review authorized by Title VI itself, 42 U.S.C. § 2000d-

2. Like the portion of the legislative history of the

1974 amendments which was construed by the Seventh

Circuit in Lloyd, these provisions of the 1978 amend-

ments contemplate “judicial review of an administrative

proceeding as contradistinct from an independent cause

of action in federal court.” 548 F.2d at 1286.

Nothing in the legislative history of the 1978 amend-

ments indicates otherwise. The floor statements of Sena-

tors Cranston," Stafford,’* and Bayh,” the committee re-

ports,’* and the conference reports’ indicate no more

than the amendments to Title V of the Rehabilitation

Act contemplate a right to seek judicial review of ad-

ministrative action.’® Significantly, Senator Cranston

10 See Rogers v. Frito-Lay, Inc., 611 F.2d 1074, 1082 (5th Cir.

1980) (“[I]t does not necessarily follow that the [attorney’s fees]

amendment is intended to authorize private individuals to file civil

actions’); Cf. Simpson v. Reynolds Metals Co., 629 F.2d at 1243

(“We are left without any indication that, contemporaneous with

its adoption of § 503, Congress intended to extend a private rem-

edy’”).

11124 Cong. Rec. S$15590-91, 15598 (daily ed. September 20,

1978) ; and Jd. at S19001 (daily ed. October 14, 1978).

12124 Cong. Rec. $18999-S19000 (daily ed. October 14, 1980).

18 124 Cong. Rec. 815593 (daily ed. September 20, 1980). In all

of the court cases relied on by Senator Bayh, none explicitly held

that a private right of action was available under Title VI, and 42

U.S.C. § 1983 provided an alternative and express cause of action

in those cases.

14S. Rep. No. 95-890, 95th Cong., 2d Sess. 19 (1978).

16H. Rep. No. 95-1780, Conf. Rep., 95th Cong., 2d Sess. (1978)

as reported in 124 Cong. Rec. H 12720 (daily ed. October 12, 1978).

16 To the extent that the remarks of the three Senators seem to

indicate that the 1978 Attorney’s fees provision reflects Congress’

original intent that Section 504 included a private right of action,

this Court placed little weight on such subsequent legislative history

clearly distinguished the provisions of the amendments

applicable to Section 504 from those applicable to Section

501, which explicitly extended Title VII rights, remedies

and exhaustion requirements to qualified federal employees

who are victims of handicap discrimination.’ Moreover,

the House Conference Report, which accepted the Sen-

ate’s proposals concerning attorney’s fees and the appli-

eability of Title VI rights, remedies and procedures to

Section 504, also unequivocally differentiated between the

private right of action available to federal employees

and the procedures available to aggrieved handicapped

under Section 504.'* Given the proximity of Section 501

to Section 504, the conclusion is inescapable—Congress

obviously knew how to create an independent judicial

remedy for persons covered by Section 504, but failed to

do so, just as it has so often in the past rejected similar

proposals in the form of amendments to Title VII. See

Appendix A. See Rogers v. Frito-Lay, Inc., 433 F. Supp.

200, 202 (N.D. Tex. 1977).

In sum, there is no evidence whatsoever in Section

504’s history of a Congressional in.ent to provide for the

type of private suit for injunctive relief which the court

of appeals permitted in this case. Congress intended to

foreclose private litigation about alleged handicap dis-

crimination by recipients of federal financial assistance

until a final agency determination has been made. Con-

relating to the effect of the Civil Rights Attorney’s Fee Awards

Act of 1976, 42 U.S.C. § 1988, on a similar right under Title IX.

Cannon, 99 Sup. Ct. at 1952 n.7. See also Southeastern Community

College, 99 Sup. Ct. at 2370 n.11. See p. 6, supra. It is sig-

nificant to note, moreover, that, unlike Title IX, Section 504 did

not contain a provision for the award of attorney’s fees contempo-

raneous with passage of the Act. See Cannon, 99 Sup. Ct. at 1958-

59 & n.25.

17 Compare 124 Cong. Rec. S15591 with S15593 (daily ed. Sep-

tember 20, 1978).

18124 Cong. Rec. H12720 (daily ed. October 12, 1978).

gress is entitled to assume that the judiciary will recog-

nize the “balance, completeness, and structural integrity”

of its statutes and abstain from interference with the

“careful blend of administrative and judicial enforcement

powers” ® contained in Title VI and incorporated by

reference into Section 504. This Court has never de-

manded that Congress insert into a statute or its legisla-

tive history a sentence to the effecvt that “no court shall

imply any additional remedies hereunder” as a precondi-

tion to its refusal to “expand the coverage of the statute

to subsume other remedies.” ”

B. Implication of a Private Right of Action Under

Section 504 Would Interfere With the Legislative

Purpose of the Rehabilitation Act.

It is important to view Section 504 within “the con-

text of the entire legislative scheme” of the Rehabili-

tation Act of 1978, as amended. As previously noted, as

enacted in 1973, the Rehabilitation Act was nothing more

than a massive appropriations bill designed to improve

the delivery of vocational rehabilitation services. In con-

trast, to the legislative histories associated with Title VI

and IX, there were no legislative findings regarding dis-

crimination with respect to the handicapped. Although not

specifically required by the Act, an administrative en-

forcement mechanism was established, which was codi-

fied by the 1978 amendments. Thus, in 1978 the primary

jurisdiction over enforcement of Section 504 was com-

mitted, not to the courts, but to federal agencies which

Congress presumed had developed the expertise to prevent

discrimination against qualified handicapped persons.

19 See Brown Vv. GSA, 425 U.S. 820, 883 (1976).

20 National Railroad Passenger Corp. v. National Association of

Railroad Passengers, 414 U.S. 453, 458 (1974).

21 Morris V. Gressetle, 482 U.S. 491, 501 (1977), citing Abbott

Laboratories v. Gardner, 387 U.S. 136, 141 (1967).

Clearly, the legislative purpose of Section 504 is better

served by agency enforcement, and judicial review of

agency action, than by private suits. Unlike race, color,

national origin, or sex discrimination, which are addressed

in Title VI and Title [X, “handicapped discrimination” is

not susceptible to precise categorization. It is different

in kind and does not necessarily have the sanie effect on

equal opportunity as with other forms of discrimination.

Former HEW Secretary Matthews explained the unique

definitional problems in a letter accompanying the publi-

cation of the initial proposed Section 504 regulations of

HEW:

Section 504, however, differs conceptually from

both titles VI of the Civil Rights Act of 1964 and

IX of the Education Amendments of 1972. The prem-

ise of both title VI and title [X is that there are no

inherent differences or inequalities between the gen-

eral public and the persons protected by these statutes

and, therefore, there should be no differential treat-

ment in the administration of Federal programs.

The concept of section 504, on the other hand, is far

more complex. Handicapped persons may require

different treatment in order to be afforded equal ac-

cess to federally assisted programs and activities, and

identical treatment may, in fact, constitute discrim-

ination. The problem of establishing general rules

as to when different treatment is prohibited or re-

quired is compounded by the diversity of existing

handicaps and the differing degree to which particu-

lar persons may be affected. Thus, under section

504 questions arise as to when different treatment of

handicapped persons should be considered improper

and when it should be required. 41 Fed. Reg. at

«0296 (1976).

Thus, determinations of handicapped discrimination in-

volve the resolution of two significant threshold issues not

present in resolving discrimination complaints under Title

VI and Title IX: (1) the determination of who meets

the statutory definition of a “handicapped individual,”

and (2) the determination of when equal treatment vio-

lates the statute. Because the answers to these questions

are novel and complex, judicial implication of a private .

right to sue under Section 504 would defeat the legisla-

tive purpose that before federal courts become involved,

the administrative agencies should be given an opportun-

ity to apply their expertise to these issues in the context

of remedying handicapped discrimination in programs for

which they provide financial assistance. Aircraft & Diesel

Equipment Corp. Vv. Hirsch, 331 U.S. 752, 767-68 (1947).

This is no simple task.

While there may be no difficulty in determining if a

person is a “handicapped individual” under the Act if

their impairment involves, for example, blindness or a

mobility handicap, less disabling impairments present

problems in terms of whether the statutory definition of

“handicapped individual” is met. For example, ad-

ministrators and judges have been struggling for

years with definitions of disability in cases aris-

ing under the Social Security Act.% The extreme

difficulty in determining who is disabled, and to what ex-

tent, are illustrated by the conflicting medical testimony

in a myriad of cases involving disability benefits, per-

sonal injuries, and workmen’s compensation. See, ¢.g.,

LeMaster v. Weinberger, 533 F.2d 387 (6th Cir. 1976)

(conflicting testimony as to whether claimant had or was

disabled by multiple sclerosis); see also, Liebman, The

Definition of Disability in Social Security and Supple-

22 The definition of “handicapped individual’ found in Section

706(7) of the Act is set forth in Appendix B.

23 Only those persons who cannot perform any job anywhere

in the National economy are disabled for purposes of the Social

Security Act. 42 U.S.C. § 423(d) (2) (A). The disabling physical

or mental impairment must be medically demonstrable. 42 U.S.C.

§ 423 (d) (3).

mental Security Income: Drawing the Bounds of Social

Welfare Estates, 89 Harv. L. Rev. 833 (1976).

Likewise, the problems involving application of the

statute to “handicapped individuals” are equally difficult,

requiring an administrative assessment before judicial

review. Handicaps differ widely in kind and degree, and

there is no readily identifiable and homogeneous class of

handicapped persons. Nor is there a class of non-handi-

capped persons with whom treatment of handicapped per-

sons can be compared. The Rehabilitation Act’s definition

of the handicapped, 29 U.S.C. § 706(7), is so broad that

allegations of discrimination could not be restricted to

readily identifiable classes of persons but undoubtedly

would encourage complaints based upon disparate treat-

ment of differently and uniquely handicapped individuals.

This analysis becomes hopelessly complex because there is

no fixed reference class with which treatment of others

can be compared.

Although Congress chose to use the same term “dis-

crimination”—as is found in Title VI and Title IX,

Congress showed its caution by limiting the application of

Section 504 to “otherwise qualified handicapped in-

dividuals” who face disparate treatment “solely” on the

basis of handicap. Furthermore, Congress has consistently

rejected attempts to amend Title VII, which does include

an explicit private right of action, 42 U.S.C. § 2000e-

5(g), to add handicap as a prohibited ground of discrim-

ination. See Appendix A. Significantly, by incorporating

the procedures and remedies of Title VI, with their ex-

plicit exclusion of employment practices from coverage

except for federally subsidized jobs programs, Congress

has shown in particular that it did not want employment

discrimination lawsuits to arise under Section 504.% In

24 See Trageser Vv. Libbie Rehabilitation Center, Inc., 590 F.2d

87, 89 (4th Cir. 1978), cert. denied, 99 Sup. Ct. 2895 (1979);

Carmi Vv. Metropolitan St. Louis Sewer District, 620 F.2d 673, 674-

addition, the courts have been particularly adverse to im-

plication of private judicial remedies in matters involv-

ing employment practices under federal statutes and

executive orders.” Judicially created employment litiga-

tion under the Rehabilitation Act would present, in the

words of the court in Lloyd, “the unseemly vista of a

spotty application of ad hoc remedies in lawsuits in vari-

ous regions of the country.” 548 F.2d at 1286. In view

of the cautious approach of Congress in this new area,

and because Congress chose to establish an administrative

scheme for handling these claims, rather than to pro-

vide for private causes of action, this Court should not

create a direct judicial forum for resolving these com-

plicated problems.”

75 (8th Cir. 1980), cert. denied, 49 U.S.L.W. 3231 (U.S. 1980);

Simpson, 629 F.2d 1226, 1234-35 (7th Cir. 1980); Brinkley v. De-

partment of Public Safety, 22 FEP Cases 164, 165-66 (N.D. Ga.

1980); and Proffit v. Consolidation Coal Co., 21 FEP Cases 382

(S.D. W.Va. 1979). Contra, Hart v. County of Almeda, 21 FEP

Cases 233 (N.D. Calif. 1979).

25 See, e.g., the cases collected in Rogers v. Frito-Lay, Inc., 433

F.Supp. at 202 n.1.

26 Although the question of whether Section 504 contains a

private right of action was argued by the petitioner and respondent

in Southeastern Community College v. Davis, 99 Sup. Ct. at 2366

n.5, the Court declined to rule on the question because of its dispo-

sition of the case on the merits. Consequently, the fact that this

Court two years earlier vacated the judgment and remanded a

Section 504 case to the district court in Campbell v. Kruse, 434 U.S.

808 (1977) “to decide the claim based on” Section 504 does not

“acknowledge the judicial authority to entertain private suits for

injunctive relief under Section 504” as held by the Court below.

(Pet. App. A-7, footnote omitted.)

II. ANY IMPLIED JUDICIAL REMEDY UNDER SEC-

TION 504 SHOULD BE CAREFULLY CIRCUM-

SCRIBED.

A. Section 504 Applies Only to Programs Receiving

Federal Financial Assistance, and Not to Other Ac-

tivities Administered by the Recipient.

Pursuant to the 1978 amendments to the Rehabilitation

Act, only the remedies, procedures, and rights under Title

VI are available to complainants under Section 504. The

legislative history of Title VI clearly demonstrates that

it was program specific; that is, Title VI’s provisions

applied only to the program receiving the financial as-

sistance. See Kuhn, Title IX: Employment and Athletics

are Outside HEW’s Jurisdiction, 65 Geo. L.J. 49, 50-54,

65-67 (1976).

As the 1964 Civil Rights Act worked its way through

the House and Senate, the question frequently arose as

to whether assistance to one program could be cut off

because of a finding of discrimination in another. The

Administration’s cabinet-level representatives consistent

answer was that it could not.” A reading of the floor

debates on Title VI in both Houses, moreover, reinforces

the conclusion that under no circumstances would dis-

crimination in one program justify action with respect

to any other program.

The Senate floor leader for Title VII emphasized that

“Tplarticipation in one program would not justify the

27 See, e.g., Hearings on Civil Rights Before Subcomm. No. 5

of the House Comm. on the Judiciary, ser. 4, pt. II, 88th Cong.,

Ist Sess. 1543 (1963) (colloquy between Representative Meader

and HEW Secretary Celebreeze that the withholding of funds from

one program cannot be used as a means of combatting discrimi-

nation in another program) ; Hearings on H.R. 7152, As Amended

by Subcomm. No. 5, Before the House Comm. on the Judiciary,

ser. 4, pt. IV, 88th Cong., lst Sess. 2766 (1963) (Attorney General

Kennedy indicated that the termination of assistance be limited to

the particular program and location where the discrimination

exists).

exaction of a non-discrimination assurance concerning

some other program.” ** Similarly, Senator Ribicoff, one

of the two authors of the version of Title VI passed by

the House, pointed out that “[u]nder no circumstances”

would discrimination in one program justify any action

with respect to any other program.” These repeated

assurances that assistance in one program could not be

terminated because of a finding of discrimination in an-

other program were made prior to the inclusion in Title

VI of the so-called “pin-point” termination provision

found in Section 602, 42 U.S.C. § 2000d-1, which limits

any termination of federal assistance to the “particular

program, or part thereof,” in which the discrimination

is found.

When the final version of the 1964 Civil Rights Act

was proposed in the Senate, Title VI contained the pro-

gram specific provision. As explained in the Senate de-

bates, “[t]he new language will ensure that Federal

funds will be cut off for only those political entities or

particular programs or parts of programs in which dis-

crimination is practiced.” * Moreover, Senator Humph-

rey, floor leader for the Civil Rights Act, stated that the

revisions clarified that “any termination shall affect only

the particular program, or part thereof,” in which dis-

crimination occurs."' Finally, House J udiciary Chairman

Celler confirmed Senator Humphrey’s interpretation when

he appeared before the House Rules Committee to describe

the Senate amendments to the Bill, stating that “aid to

a particular program, will not be cut off because one

part of the program or institution is being operated in

violation of the law.” *

28110 Cong. Rec. 7059 (1964) (remarks of Senator Pastore).

79 Id. at 7067 (remarks of Senator Ribicoff ) .

* Id. at 12689 (remarks of Senator Saltonstall).

3! Id. at 12714-15 (remarks of Senator Humphrey).

*? Hearing on H. Res. 789 Before the House Comm. on Rules,

88th Cong., 2d Sess. 6 (1964).

This view of legislative history of Title VI has been

affirmed by the courts. In Bd. of Public Instruction of

Taylor County v. Finch, 414 F.2d 1068 (5th Cir. 1969),

the Fifth Circuit held that programs could not be con-

demned by association. The court refused “to assume,

contrary to the express mandate of [the statute], that

defects in one part of the school system automatically in-

fect the whole.” 414 F.2d at 1074. Thus, funds under

Title VI are not to be denied or terminated in a federally

assisted program unless there is an express finding of

discrimination in a particular program. Accord, Gat-

reaux V. Romney, 457 F.2d 124, 128 (7th Cir. 1972)

(federal assistance to model cities program unrelated to

housing cannot be terminated because of discrimination

in a low-rent housing program). |

The legislative histcry and the decisions of the courts

makes clear, therefore, what is evident from the statu-

tory language—federal assistance to program “A” can-

not be terminated because of a finding of discrimination

in program “B”. As a corollary, a remedy for the ag-

grieved is not available unless it is proven that the com-

plainant participated in a program which received fed-

eral financial assistance and was the intended beneficiary

of that assistance. Carmi, 620 F.2d at 674-75 & n.4.

These Title VI standards apply to Section 504 by virtue

of the 1978 amendments to the Rehabilitation Act. Zd.,

and Simpson, 629 F.2. at 1234. Consequently, to have

standing under Section 504, the plaintiff must plead and

prove as a jurisdictional prerequisite that the particular

activity he participated in received federal financial as-

sistance and that he was the intended beneficiary of that

assistance. Jd.** In the instant matter, the stipulated

83 The program specific nature of rights and remedies under

Section 504 is most clearly shown with respect to employment.

Section 604 of Title VI, which is incorporated by reference into

Section 504, explicitly excludes employment practices of recipients

except in federally-subsidized jobs programs. 42 U.S.C. § 2000d-3

(1970). See United States v. Jefferson County Bd. of Educ., 372

facts show only that the defendant university was a

recipient of federal assistance but do not specify that

the plaintiff participated in a program receiving such

assistance.

B. The Complainant Must Exhaust Available Adminis-

trative Remedies With the Department of Health,

Education, and Welfare Before Filing Suit in Fed-

eral Court.

It is well-established that a suit may not be brought

under Title VI—the statute which determines the rights

and remedies under Section 504—without exhausting ad-

ministrative remedies under 42 U.S.C. § 2000d-2. See

Green Street Association v. Daley, 373 F.2d 1, 8-9 (7th

Cir.), cert. denied, 887 U.S. 982 (1967).% The Title

VI exhaustion requirement applies both to alleged victims

of discrimination, as in the cases above, and to alleged

violators of the statute, as in School District of City of

Saginaw, Michigan v. HEW, 481 F. Supp. 147 (E.D.

Mich. 1977). Under Section 504, exhaustion has been

required before seeking court review. See Neal v. U.S.

Postal Service, 468 F.Supp. 958 (D. Utah 1979); Doe

v. New York University, 442 F.Supp. 522, 528 (S.D.N.Y.

F.2d 836, 882-83 (5th Cir. 1966), decree corrected on rehearing,

380 F.2d 385 (en banc), cert. denied, 389 U.S. 840 (1967). More-

over, the three courts of appeals which have examined the rela-

tionship between the rights and remedies under Section 504 and

Title VI have concluded that an action to redress employment dis-

crimination may not be maintained unless a primary objective of

the federal financial assistance is to provide employment. See

Trageser, 590 F.2d at 89; Carmi, 620 F.2d at 674-75; and Simpson,

629 F.2d at 1227.

% See also Cave v. Beame, 483 F.Supp. 172, 174 (E.D.N.Y. 1977) ;

Johnson v. County of Chester, 413 F.Supp. 1299, 1310-11 (E.D. Pa.

1976) ; Green v. Cauthen, 379 F.Supp. 361, 378 (D.S.C. 1974) ;

Feliciano v. Romney, 363 F.Supp. 656, 672-73 (S.D.N.Y. 1973) ;

Dupree v. City of Chattanooga, 362 F.Supp. 1136, 1141-42 (E.D.

Tenn. 1973).

1978) ; and Davis v. Bucher, 451 F.Supp. 791 (E.D. Pa.

1978). But see Whitaker v. Board of Higher Education

of New York, 18 FEP Cases 906 (E.D.N.Y. 1978) ; and

Hart v. County of Alameda, 21 FEP Cases 233 (N.D.

Calif. 1979).

Furthermore, the complainant must fully exhaust ad-

ministrative remedies. It is not sufficient, as here, that

a complaint has been filed with HEW. As this Court

held in Aircraft & Diesel Equipment Corp., 331 U.S. at

767-68 (1974) :

The doctrine of exhaustion of administrative reme-

dies, whereever applicable, does not require merely

the initiation of prescribed administrative procedures.

It is one of exhausting them, that is, pursuing them

to their appropriate conclusion and, correlatively, of

awaiting thei: final outcome before seeking judicial

intervention.

The very purpose of providing either an exclusive

or an initial and preliminary administrative deter-

mination is to secure the administrative judgment

either, in the one case, in substitution for judicial

decision or, in the other, as foundation for or per-

chance to make unnecessary later judicial proceed-

ings. Where Congress has clearly commanded that

administrative judgment be taken initially or ex-

clusively, the courts have no lawful function to an-

ticipate the administrative decision with their

own, whether or not when it has been rendered

they may intervene either in presumed accordance

with Congress’ will or because, for constitutional rea-

sons, its will to exclude them has been exerted in an

invalid manner. To do this not only would contra-

vene the will of Congress as a matter of restricting

or deferring judicial action. It would nullify the

congressional objects in providing the administrative

determination. In this case these include securing

uniformity of administrative policy and disposition,

expertness of judgment, and finality in determina-

tion, at least of those things which Congress intended

to and could commit to such agencies for final de-

cision. (Footnote omitted *)

Moreover, courts should be, and have been, reluctant to

find relatively new administrative machinery insufficient

before it has had a chance to prove its adequacy. See

Doe v. New York University, 442 F.Supp. at 523, and

Rogers v. Frito-Lay, 433 F.Supp. at 203.%

The need for agency investigation and determination

is compelling in the field of handicap discrimination

under Section 504 of the Rehabilitation Act. As former

HEW Secretary Matthews stressed, handicap discrimi-

nation is “far more complex” than the discrimina-

tion prohibited by Title VI and Title IX.” As an agency

which has had substantial experience administering pro-

grams for the rehabilitation of handicapped individuals,

HEW is better equipped than the federal courts to make

the initial investigation of complex factual situations

and to formulate a consistent approach to handicap dis-

85 These policies were further explained and summarized in

Weinberger v. Salfi, 422 U.S. 749, 765 (1975); McGee v. United

States, 402 U.S. 479, 484-85 (1971), and McKart v. United States,

895 U.S. 185 (1969).

86In view of Congress’ desire that Section 503 and 504 be ad-

ministered in a uniform and consistent manner, the fact that

HEW’s administrative procedures do not allow the complainant

to participate in the investigation or subsequent enforcement pro-

ceedings should not be determinative of the exhaustion question as

it was in Cannon (99 Sup. Ct. at 1961-62 n.41). See S. Rep. No.

93-1297 at 39-40; and 120 Cong. Rec. 30551 (1974) (remarks of

Senator Stafford). There being no statutory preclusion to the com-

plainant’s participation in the administrative process, the adminis-

trative procedures adopted by HEW should not undercut the clear

Congressional intent that there be a right to a hearing, a right to

review and exhaustion of the administrative process before a limited

right action can be initiated. See p. 7, supra. Cf. Mohasco Corpo-

ration Vv. Silver, 100 Sup. Ct. 2486, 2496 (1980) (Administrative

interpretation or regulation “cannot supersede the language chosen

by Congress.”’)

87 41 Fed. Reg. at 20296; see p. 14, supra.

crimination problems. Thus, exhaustion of administra-

tive remedies should be required under Section 504 as

well, with judicial review limited to such questions as

whether HEW exceeded its statutory authority or abused

its discretion.**

III. SECTION 504 IS A NONDISCRIMINATION STAT-

UTE AND DOES NOT IMPOSE ANY OBLIGATION

TO UNDERTAKE POSITIVE STEPS TO ACCOM-

MODATE “OTHERWISE QUALIFIED HANDI-

CAPPED” INDIVIDUALS.

Section 504 merely requires that recipients of federal

financial assistance not discriminate against otherwise

qualified handicapped individuals solely on the basis of

their handicap. By its terms Section 504 does not con-

tain any requirement to accommodate the needs of an

“otherwise qualified handicapped individual.” See Carmi

v. St. Louis Sewer District, 20 FEP Cases 162, 164 (E.D.

Mo. 1979). Indeed, to be “otherwise qualified” implies

the absence of need for any accommodation. Congress’

use of this terminology shows that it intended only to

38 Alternatively, the complainant should be required to pursue

his claims with HEW pursuant to the doctrine of primary juris-

diction. See Crawford v. University of North Carolina, 440 F.Supp.

1047 (M.D.N.C. 1977). Under the doctrine, whether the agency is

an expert or not, a court normally should not act upon subject

matter that is peculiarly within the agency’s specialized field,

without considering the results of the administrative process for

otherwise parties who are subject to the agencies continuous regu-

lation may become the victims of uncoordinated and conflicting

requirements. See Jaffe, Primary Jurisdiction, 77 Harv. L. Rev.

1087 (1964); and Federal Maritime Board v. Ibrandtsen, 356 U.S.

481, 498-99 (1958). “Court jurisdiction is not thereby ousted, but

only postponed.” United States v. Philadelphia National Bank, 374

U.S. 321, 353 (1963). This doctrine has been applied to Section

504 claims by at least one district court in Crawford and is par-

ticularly appropriate to the complex area of handicap discrimina-

tion. Cf. Drennon v. Philadelphia General Hospital, 428 F.Supp.

809 (E.D. Pa. 1977) (Doctrine of primary jurisdiction applies to

Section 503).

eliminate practices that exclude handicapped persons who

are fully capable of participating in a program without

accommodation. HEW, however, has promulgated a reg-

ulation under Section 504 which purports to impose such

a requirement on recipients with respect to their employ-

ment practices, 45 C.F.R. § 84.12, and a number of other

regulations, ¢.g., 45 C.F.R. § 84.22 (modification of ex-

isting facilities), § 84.28 (new construction), and § 84.44

(d) (auxiliary aids), which will require, according to

HEW’s own estimate, an expenditure of at least $3.2

billion annually on behalf of handicapped individuals by

institutions which participate in federally-funded pro-

grams.” Such expenditures would require recipients of

federal financial assistance to provide services, including

interpreter services, which Congress designated to be

provided by state agencies under the Act. 29 U.S.C.

§§ 720(a), 723(6). Private entities such as the Uni-

versity herein receive no funds to provide such services.

Instead of placing the burden on recipients, the Act

as amended in 1978 specifies that “[comprehensive re-

habilitation] centers shall provide . . . [to entities such as

the University] such technical assistance (including sup-

port personnel such as interpreters for the deaf) as may

be necessary . . . in complying with . . . the requirements

of section [504]... .” 29 U.S.C. § 775. Thus, on the basis

of a one-sentence statute prohibiting “discrimination,”

HEW has mandated extremely expensive preferential

treatment that is inconsistent with the allocation of re-

sponsibilities under the Rehabilitation Act.

None of these regulations requiring accommodation

including those for auxiliary aide is authorized by the

89 See O'Neill, Discrimination Against Handicapped Persons—

The Costs, Benefits and Economic Impact of Implementing Section

504 of the Rehabilitation Act Covering Recipients of HEW Finan-

cial Assistance (May 4, 1977) (unpublished report prepared for

the HEW Office for Civil Rights under Orders #SA-4141-76 and

#SA-2471-77), p. 55.

—_—

statute. To the extent that such “accommodation” would

cause a recipient to incur more than a negligible ex-

pense, the requirement is preferential rather than non-

discriminatory. HEW’s regulations thus not only exceed

the statute’s mandate; they violate it. These regula-

tions unlawfully attempt to bootstrap a failure to make

preferential accommodations into discrimination—where-

as, in the absence of a finding of illegal discrimination,

there cannot possibly arise any statutory duty to imple-

ment preferential remedies.”

Recognizing the problems associated with HEW’s in-

terpretation of a recipient’s obligations under Section

504, this Court in Southeastern Community College v.

Davis, 99 Sup. Ct. 2861, 2369-70 (1979), found that

“neither the language, purpose, nor history of § 504 re-

veals an intent to impose an affirmative action obligation

on all recipients of federal funds.” (Footnote omitted.)

Specifically, with regard to HEW’s accommodation regu-

lations, the Court stated:

If these regulations were to require substantial

adjustments in existing programs beyond those neces-

sary to eliminate discrimination against otherwise

qualified individuals, they would do more than clarify

the meaning of § 504. Instead, they would consti-

tute unauthorized extension of the obligations im-

posed by the statute. 99 Supp. Ct. at 2369.

Moreover, the Court distinguished the requirements of

Sections 508 and 504:

The language and structure of the Rehabilitation

Act of 1973 reflect a recognition by Congress of

the distinction between the evenhanded treatment of

qualified handicapped persons [Section 504] and af-

*° Cf. Furnco Construction Corporation v. Waters, 438 U.S. 567,

577-78 (1977) (“Title VII forbids the employer from having as a

goal a work force selected by any proscribed discriminatory prac-

tice, but it does not impose a duty to adopt a hiring procedure that

maximizes hiring of minority employees.”),

firmative efforts to overcome the disabilities caused

by handicaps [Section 503]. Jd.

K « a *

A comparison of these provisions demonstrates

that Congress understood accommodation of the needs

of handicapped individuals may require affirmative

action and knew how to provide for it when it wished

to do so. Jd. (footnote omitted. )

Noting that the line between affirmative action and dis-

crimination may not always be clear, the Court went on

to say that sorting out the instances involving one or the

other will “be an important responsibility of HEW.” Id.

at 2370. Because HEW has ignored this responsibility

and has not modified its accommodation regulations since

this Court’s decision in Southeastern Community College,

those regulations now are entitled to even less deference

for they clearly are in conflict with the guidance estab-

lished by the Court. The clear meaning of Section 504 is

to prohibit discrimination and not to mandate accommoda-

tion. Section 504 contains no language which would re-

quire the estimated $3.2 billion annual expenditure which

HEW seeks to impose on recipients.

This Court previously construed a requirement of rea-

sonable accommodation for religious practices imposed

by the 1972 amendments to Title VII of the Civil Rights

Act of 1964, 42 U.S.C. § 2000e(j), in Trans World Air-

lines, Inc. v. Hardison, 482 U.S. 63 (1977). Even in

that context, where (unlike the situation under Section

504) Congress clearly placed a reasonable accommodation

burden on employers, this Court held that an employer

need not incur more than a de minimis cost to accommo-

date the employee’s religious practice. Anything beyond

that would be unreasonable, or, differently stated, would

constitute an undue hardship on the employer.*!

41 See also Upshur v. Love, 20 FEP Cases 638, 645 (N.D. Calif.

1976) (Hiring an aide to assist blind teacher to perform adminis-

In Hardison, this Court questioned whether, prior to

the 1972 amendments, the EEOC had authority to issue a

“reasonable accommodation” regulation at all under Title

VII’s mere prohibition of discrimination on the basis of

religion. 432 U.S. at 76 n.11 (1977). Thus, insofar as

HEW’s regulations purport to require such accommoda-

tions or expenditures or other “affirmative conduct,”

they exceed HEW’s authority and cannot be relied upon

to support the decision below.

The Rehabilitation Act of 1978, as amended, is not a

civil rights statute but rather a massive appropriations

law aimed both at subsidizing handicapped—especially

severely handicapped—individuals and developing new

programs to assist in their integration into society. There

is no indication in the text or legislative history of the

Rehabilitation Act or its two amendments that anyone

other than the federal government must bear the expense

for these subsidies and programs. It is inconceivable that

by including the one-sentence policy statement of Section

504, Congress intended sub silentio to impose on re-

cipients of federal financial assistance (not ear-marked to

pay accommodation costs) a multi-billion dollar burden

to restructure American educational and industrial facil-

ities and practices to accommodate “otherwise qualified

handicapped individuals.” It likewise stretches credulity

to believe that Congress also intended for all who fit

within the definition of 29 U.S.C. § 706(7) to be able to

use the federal courts to force recipients to make and

bear the expense of such accommodations.

trative duties exceeds nondiscrimination requirements of Section

504).

42 See p. 25 & n.89, supra.

CONCLUSION

The decision of the court of appeals should be reversed

and this Court’s opinion should make it clear that Sec-

tion 504 (1) does not give rise to a private right of

action, (2) requires an otherwise qualified handicapped

person to be an intended beneficiary of federal financial

asistance and to have exhausted administrative remedies

to have standing, and (3) does not impose an obligation

to take positive steps to accommodate otherwise qualified

handicapped individuals.

Respectfully submitted,

ROBERT E. WILLIAMS

DouGLas S. MCDOWELL

EDWARD E. POTTER

MCGUINESS & WILLIAMS

1015 15th Street, N.W.

Washington, D.C. 20005

(202) 789-8600

December 18, 1980

APPENDIX A

Unsuccessful Attempts to Amend the Civil Rights Act of 1964

to Add Handicap as a Prohibited Ground of Discrimination

93d Congress (1973-74)

Bill Sponsor

S. 1780 Pell

H.R. 1120 Roybal

H.R. 2685 Hicks

H.R. 10960 Tiernan

H.R. 11986 Hicks & 24 others

H.R. 11987 Hicks & 10 others

H.R. 12654 O’Brien

H.R. 12916 Moakley

H.R. 13199 Hicks & 21 others

H.R. 13200 Hicks & 18 others

94th Congress (1975-76)

Bill Sponsor

8.1811 Pell

S. 1757 Weicker

H.R. 1346 O’Brien

H.R. 1886 Matsunaga

H.R. 2515 Hicks

H.R. 3497 Roybal

H.R. 4624 Hicks & 23 others

H.R. 4625 Hicks & 24 others

H.R. 4626 Hicks & 6 others

H.R. 5016 Hicks & 8 others

H.R. 7061 Dodd

H.R. 7754 Hicks & 3 others

H.R. 7758 Lehman

H.R. 7946 Dodd & 4 others

H.R. 8028 Beard & 19 others

H.R. 8417 Beard & 5 others

H.R. 12591 Koch

Bill

S. 1477

H.R. 264

H.R. 461

H.R. 1107

H.R. 1200

H.R. 1995

H.R. 3504

H.R. 6619

H.R. 9477

H.R. 9521

H.R. 10198

95th Congress (1977-78)

Sponsor

Weicker

Conte

Le Fante

O’Brien

Rodino

Roybal

Edwards

Beard

O’Brien & 2 others

O’Brien & 15 others

O’Brien & 6 others

96th Congress (1979-80)

Sponsor

Guyer

O’Brien

Harrison & 24 others

APPENDIX B

Definition of Handicapped Individual

(7) (A) Except as otherwise provided in subparagraph

(B), the term “handicapped individual” means any in-

dividual who (i) has a physical or mental disability

which for such individual constitutes or results in a

substantial handicap to employment and (ii) can rea-

sonably be expected to benefit in terms of employability

from vocational rehabilitation services provided pursuant

to subchapters I and III of this chapter.

(B) Subject to the second sentence of this subpara-

graph, the term “handicapped individual” means, for

purposes of [Sections 503 and 504], any person who (i)

has a physical or mental impairment which substantially

limits one or more of such person’s major life activities,

(ii) has a record of such impairment, or (iii) is re-

garded as having such an impairment. For purposes

of Sections [503] and [504] of this title as such sections

relate to employment, such term does not include any

individual who is an alcoholic or drug abuser whose

current use of alcohol or drugs prevents such individual

from performing the duties of the job in question or

whose employment, by reason of such current alcohol or

drug abuse, would constitute a direct threat to property

or the safety of others. 29 U.S.C. § 706(7), as amended

by the Rehabilitation Amendments of 1974, Pub. L. No.

93-516, § 111(a), 88 Stat. 1619, and as amended by the

Rehabilitation, Comprehensive Services and Disabilities

Amendments of 1978, Pub. L. 95-602, § 122(a), 92 Stat.

2984.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.