Amicus Curiae Brief — Alexander v. Choate

IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

LAMAR ALEXANDER,

GOVERNOR OF THE STATE OF TENNESSEE, et al.,

- Petitioners,

ROSIER JENNINGS, et al.,

Respondents.

On Writ of Certiorari to the United States Court of Appeals

for the Sixth Circuit

BRIEF AMICUS CURIAE OF THE

EQUAL EMPLOYMENT ADVISORY COUNCIL

IN SUPPORT OF THE PETITIONERS

ROBERT E. WILLIAMS

DouGcLas S. MCDOWELL*

McGUINEss & WILLIAMS

1015 15th Street, N.W.

Washington, D.C. 20005

(202) 789-8623

*Counsel of Record

—

WILSON - Eres PrinTine Co.. Inc. - 789-0096 - WASHINGTON. D.C. 20001

‘BEST AVAILABLE COPY

TABLE OF CONTENTS

TABLE OF AUTHORITIEB8 .neeceeceeceeeeceeeee

INTEREST OF THE AMICUS CURIAE EE

STATEMENT OF THE CASE

SUMMARY OF ARGUMENT

ARGUMENT — —

I.

III.

SECTION 504’s BAN ON DISCRIMINATION

AGAINST QUALIFIED INDIVIDUALS

SOLELY ON THE BASIS OF HANDICAP

CANNOT BE CONSTRUED TO ENCOMPASS

THE ADVERSE IMPACT THEORY OF DIS-

CRIMINATION

A. Section 504’s Language Excludes Enforce-

ment by Use of the Adverse Impact Theory....

B. Rejection of an Effects Test Would Not Be

Inconsistent With This Court’s Title VI

Guardians Decision .

BECAUSE OF THE IMPRECISE AND COM-

PLEX NATURE OF THE CONCEPT OF

“HANDICAP DISCRIMINATION,” THE AD-

VERSE IMPACT MODEL OF ANALYSIS

WOULD NOT BE APPROPRIATE

THE INSUFFICIENT AND IMPRECISE NA-

TURE OF AVAILABLE STATISTICAL DATA

RELATING TO THE HANDICAPPED MAKES

THE USE OF A GRIGGS-TYPE ADVERSE

IMPACT ANALYSIS INAPPROPRIATE IN

CASES ARISING UNDER SECTION 504

Page

iii

13

15

ii

TABLE OF CONTENTS—Continued

IV. THE SIXTH CIRCUIT IMPROPERLY OVER-

RODE THE LEGITIMATE BUDGETARY DE-

CISION OF THE STATE GOVERNMENT BE-

CAUSE BY PROVIDING EQUAL ACCESS TO

HOSPITAL BENEFITS, THE STATE HAS

COMPLIED WITH THE REQUIREMENTS

OO K11!ñͥ———ß——

EEE

Page

iii

TABLE OF AUTHORITIES

Cases: Page

Beal v. DOE, 432 U.S. 438 (1977) 27

Bernard B. v. Blue Cross & Blue Shield, 528 F.

Supp. 125 (S. D. N. V. 1981), aff'd 679 F.2d 7

e .... 28

Board of Education v. Rowley, 102 S. Ct. 3034

ELLE 27

Bryan v. Koch, 627 F.2d 612 (2d Cir. 1980) 26

Cannon v. University of Chicago, 441 U.S. 677

, ?. 2

Cannon v. The University of Chicago, 648 F. 2d

1104 (7th Cir. 1984), cert. denied, 454 U.S. 1128

ES LE 15

Community Television of Southern California v.

Gottfried, 103 S. Ct. 885 (1983) 13

Connecticut v. Teal, 457 U.S. 440 (1987 3

Consolidated Rail Corporation v. Darrone, 104 S.

e ... 2, 13

Doe v. Coalutti, 592 F.2d 704 (3d Cir. 19799 28

Doe v. Devine, 545 F. Supp. 576 (D. D.C. 1982),

aff'd, 703 F.2d 1319 (D.C. Cir. 198) 28

Doe v. New York University, 666 F.2d 761 (2d

ESSE . .... 9, 12

Dot hard v. Rawlinson, 443 U.S. 321 (1977) 10

Furnco Const. Corp. v. Waters, 438 U.S. 567

r 27

Garrity v. Gallen, 522 F. Supp. 171 (D. N. H. 1981). 12, 14,

16

General Building Contractors v. Pennsylvania, 458

r ũ TT. 3

Griggs v. Duke Power Co., 401 U.S. 424 (1971)... 6,10

Grove City College v. Bell, 104 S. Ct. 1211 (1984) 2

Guardians Association v. Civil Service Commission

e 2, 13

Hazelwood School District v. United States, 433

r euasens 20, 21

Int'l. Bro. of Teamsters v. United States, 431 U.S.

e ‚F᷑“˙], ͤ ———— 2, 11, 20, 21

iv

TABLE OF AUTHORITIES—Continued

Statutes:

Page

Jennings v. Alexander, 715 F.2d 1036 (6th Cir.

1983), pet. for cert. granted, 52 U.S.L.W. 3596

rr 5, 9, 24

Jennings v. Alexander, 518 F. Supp. 877 (N. D.

f 4ͤöXðè ,, ««ͤ 8 3, 4

McDonnell Douglas Corp. v. Green, 411 U.S. 792

% manner een © Sevan nee Rate oer Ee we 11

NAACP v. Wilmington Medical Center, Inc., 491

F. Supp. 290 (D. Del. 1980), aff'd, 657 F.2d 1322

IT 28

New York City Transit Authority v. Beazer, 440

Sa I I a ieaethieetalaeitebianiiediiis 21

Norcross v. Sneed, 33 FEP Cases 679 (W.D. Ark.

rr Ce rate tar Ser meaner henry STO 9

North Haven Bd. of Educ. v. Bell, 102 S. Ct. 1912

CC

Pennhurst State School & Hospital v. Halder man,

Aer ee 27

Prewitt v. United States Postal Service, 662 F. 2d

1 —?ͤʃͤ—::. 2 23

Pushkin v. Regents of the Univ. of Colorado, 658

rere 9

San Antonio School District v. Rodriguez 441 U.S.

11 a eee Se eee 27

Southeastern Community College v. Davis, 442 U.S.

1— 2, 6, 7, 8, 9, 11, 14, 27

University of Texas v. Camenisch, 451 U.S. 390

—— . tai ciaiinissime nail 2,13

Wilhelm v. Continental Title Co., 720 F.2d 1173

(10th Cir. 1983), cert. denied, 52 U.S.L.W. 3687

(1984) —— — 17

Civil Rights Act of 1964, Title VI, 42 U.S.C. 2000d

ccc 2

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

I Ce OUR. — . 2

Education Amendments of 1972, Title IX

113 ae 15

20 U.S.C. § 1988 ............... — 2

*

TABLE OF AUTHORITIES—Continued

Page

Education For All Handicapped Children Act,

e exccemenensscevonmnnconenies 27

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

EERE ca a passim

Section 504, 29 U.S.C. § 7944 passim

Section 505, 29 U.S.C. § 794 (a) (a) (2) _....... 13

REET .

Social Security Act, 42 U.S.C. § 423 (d) 23

e eneaniae 17

Regulations and orders:

r ieaiiaananl 16

e ee 25

t cunsusndenseunwenoves 13, 14

e ... 14

41 Fed. Reg. 20,296 (1976) 18

42 Fed. Reg. 22,676 (1977) (remarks of then

HEW Secretary Joseph Calif ano) 12

42 Fed. Reg. 22,677, (1977) (remarks of then

HEW Secretary Joseph Califan oo) 19

Miscellaneous:

Cohen, Discrimination on the Basis of Handicap:

The Status of Section 504 of the Rehabilitation

Act of 1973, 65 Iowa L. Rev. 446 (1980) 12

Gittler, Fair Employment and the Handicapped:

A Legal Perspective, 27 DePaul L. Rev. 953

r 22, 24, 25

Lang, Protecting the Handicapped from Employ-

ment Discrimination: The Job-Relatedness and

Bona Fide Occupational Qualification Doctrines,

27 DePaul L. Rev. 989 (1978) )))) 25

Peck, Employment Problems of the Handicapped:

Would Title VII Remedies be Appropriate and

Effective? 16 U. Mich. J. L. Ref. 343 (1983). 17, 24

United States Commission on Civil Rights, Accom-

modating the Spectrum of Individual Abilities,

Clearinghouse Publication 81, September 1983. 19, 20,

22, 24

IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

No. 83-727

LAMAR ALEXANDER,

GOVERNOR OF THE STATE OF TENNESSEE, et al.,

- Petitioners,

ROSIER JENNINGS, et al.,

Respondents.

On Writ of Certiorari to the United States Court of Appeals

for the Sixth Circuit

BRIEF AMICUS CURIAE OF THE

EQUAL EMPLOYMENT ADVISORY COUNCIL

IN SUPPORT OF THE PETITIONERS

The Equal Employment Advisory Council (EEAC),

with the written consent of all parties, respectfully sub-

mits this brief as Amicus Curiae in support of the

Petitioners.’

INTEREST OF THE AMICUS CURIAE

EEAC is a voluntary, nonprofit association organized

to promote the common interest of employers and the

general public in sound government policies, procedures

and requirements pertaining to nondiscriminatory em-

ployment practices. Its membership comprises a broad

segment of the employer community in the United States,

including both individual employers and trade and in-

1 Their consents have been filed with the Clerk of the Court.

2

dustry associations. Its governing body is a Board of

Directors composed primarily of experts and specialists

in the field of equal employment opportunity whose cm-

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.

Many of EEAC’s members participate in federally

subsidized programs and therefore are subject to the

nondiscrimination provisions of Section 504 of the Re-

habilitation Act of 1973, 29 U.S.C. § 794 (hereiu “Sec-

tion 504” or “the Act”). Accordingly, EEAC’s mem-

bers have a direct interest in the issue presented in this

case; i.e., whether a “disparate impact” or “effects” test

is appropriate to determine a violation of Section 504 of

the Act, or whether a showing of intentional discrimina-

tion is necessary to establish a violation.

Because of its interest in issues arising out of Section

504, EEAC has filed amicus curiae briefs with this Court

in several cases construing that statute. See, Consolidated

Rail Corporation v. Darrone, 104 S. Ct. 1248 (1984);

Southeastern Community College v. Davis, 442 U.S. 397

(1979) ; and University of Texas v. Camenisch, 451 U.S.

390 (1981). EEAC also has filed briefs with the Court

in cases involving Title VI of the Civil Rights Act of

1964 (42 U.S.C. §§ 2000d, et seg.), and Title IX of the

Education Amendments of 1972 (20 U.S.C. § 1988). See,

Grove City College v. Bell, 104 S. Ct. 1211 (1984);

Guardians Association v. Civil Service Commission, 103

S. Ct. 3221 (1983); Cannon v. University of Chicago,

441 U.S. 677 (1979); and North Haven Bd. of Educ.

v. Bell, 102 S. Ct. 1912 (1982). The courts generally

have recognized that the language of Section 504 and

Title IX was patterned after Title VI.”

2 EEAC has participated further before the Court in cases con-

struing the application of the adverse impact standard of liability

in cases arising under Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000e, et seg. See Int'l Bro. of Teamsters v. United

STATEMENT OF THE CASE

In this case, the Tennessee Medicaid Program deter-

mined that it no longer could afford to pay for the exist-

ing array of medicaid benefits. Because of severe bud-

getary constraints, the State determined it was neces-

sary to cut back on the level of a number of existing

benefits.* At issue here is the State’s decision to reduce

the number of inpatient hospital days provided by

Medicaid in a fiscal year from twenty to fourteen days.

Respondents brought suit seeking to enjoin the proposed

reduction. One of the theories of liability was that the

proposed changes would violate Section 504 of the Re-

habilitation Act.

Respondents primary argument is that Section 504 of

the Act proscribes conduct that has an adverse impact

(or effect) on the handicapped and that the decrease in

hospital days would have an impermissible effect on han-

dicapped Medicaid recipients. The district court below,

however, held that the Respondents failed to establish

that the limitation of fourteen days would in fact have

a discriminatory impact upon handicapped Medicaid re-

cipients. See Jennings v. Alexander, 518 F. Supp. 877,

881 (N.D. Tenn. 1981).* Moreover, the district court

States, 431 U.S. 324 (1977); Connecticut v. Teal, 457 U.S. 440

(1982). Finally, EEAC filed a brief as amicus curiae in General

Building Contractors v. Pennsylvania, 458 U.S. 375 (1982), a case

holding that a showing of an intentional viclation is necessary to

establish a violation of 42 U.S.C. § 1981.

The budgetary reasons for the cutback are explained more fully

in the brief of the State of Tennessee.

* The amicus, EEAC, concurs with the State that the statistical

evidence presented below by the Respondents does not establish that

the proposed cuts would have an adverse impact upon handicapped

recipients. Our primary focus, however, is on the broader question

of whether the adverse impact theory is applicable to Section 504

of the Act. We rely, therefore, on the State to argue that the Re-

spondents’ statistical evidence does not show that these particular

cutbacks would have an adverse impact.

4

found that even if the evidence could be construed to

demonstrate a disparate impact upon the handicapped as

a separate group, the impact was not the type that Sec-

tion 504 was intended to proscribe. Jd. The court stated

that [bloth handicapped and nonhandicapped Medicaid

recipients will have identical services available for their

use, subject to the same durational limitation.” 518

F. Supp. 883. In the district court’s view, while Section

504 may require the State to give handicapped individ-

uals equal access to Medicaid benefits, neither the section

nor the applicable regulations mandate equal results for

the handicapped and nonhandicapped. 518 F. Supp. at

883, 884.“ And as the court further noted, “the same

durational limit works without regard to any particular

handicapping condition and regardless of the particular

cause of hospitalization.” 518 F. Supp. at 885.

Because the coverage would be terminated whether

or not the recipient was handicapped, the court could

find no discrimination by reason of handicap. Thus, in

the district court’s view, “so long as a service is offered

in equal quality, scope and duration to both handicapped

and nonhandicapped recipients, and handicapped recipi-

ents are actually afforded equal access to that service, the

mandates of § 504 have been satisfied.” Jd. at 886.

The Sixth Circuit, in a 2-1 decision, reversed the de-

cision of the district court. Thus, with little discussion,

the appellate court stated that the effects test is a suffi-

5 The district court’s decision, having found no adverse impact

covered by Section 504, did not discuss at any length the underlying

issue of whether an adverse impact claim is cognizable under the

Act. The court stated merely:

While agreeing that a disparate impact test is the appropriate

standard to apply in a § 504 case, the court holds that the

adverse impact arguably shown in this case does not amount

to discrimination under § 504.

518 F. Supp. at 885.

cient basis upon which to base a violation of Section 504.

Jennings v. Alexander, 715 F.2d 1036, 1041-42 (6th Cir.

1983), pet. for cert. granted, 52 U.S.L.W. 3596 (Feb-

ruary 21, 1984). It then concluded that the statistical

studies introduced before the district court indicated that

the handicapped population of Medicaid recipients would

suffer proportionally more from the reduction in hospital

benefits than the nonhandicapped recipients. Id., 715

F.2d at 1042 & n. 7.

The Sixth Circuit stated that the Medicaid program

was intended to provide more than equal access to the

program. Rather, the court felt that the objective of

the Medicaid program was “to afford the best cure,

therapy, or preventive treatment that the allotted funds

ean provide.” 715 F.2d at 1043 n. S. Thus, although the

Sixth Circuit held that “[t]he state clearly proved that

it was justified in attempting to reduce its Medicaid ex-

penses” (715 F.2d at 1043), it felt that the State’s ra-

tionale was not sufficiently supported by the evidence.

Id. at 1044. The case was remanded to the district

court to give the State a chance to justify its reduction

of hospital days as compared with the plaintiff’s alter-

native, which would have limited the number of days

of hospital coverage on a per stay basis.

Judge Merritt dissented from the majority panel de-

cision. Agreeing with the district court, he argued that

the “equal access” test was the only workable rule to

apply to Section 504. In his view, the adverse impact

standard would mean that any reduction of spending

would have a disparate effect on some class of patients,

thereby creating “a whole new source of challenges to

state budgetary decisions.” 715 F.2d at 1047. Thus,

application of the adverse impact standard would mean

that some class of plaintiffs would always succeed in its

challenge to a budget reduction.* Judge Merritt stated

The dissent noted, for example, that the plaintiff's alternative

solution that would limit the number of trips to the hospital would

that he did not believe that Congress intended Section

504 to authorize the federal courts to step in and control

the state’s budgetary process. The dissent argued, more-

over, that inasmuch as the majority opinion would re-

quire a “form of affirmative action or equality of re-

sults,” it was at odds with the Supreme Court’s decision

in Southeastern Community College v. Davis, 442 U.S.

397 (1979). There, the Court held that Section 504

does not compel federal funds recipients to undertake

affirmative action favoring the handicapped.

SUMMARY OF ARGUMENT

Adoption of the adverse impact standard would be

at odds with the statutory language and purpose of Sec-

tion 504 of the Rehabilitation Act. Section 504 estab-

lishes its own criteria for determining whether or not its

provisions have been violated. It prohibits a federal

funds recipient from excluding or discriminating against

an “otherwise qualified handicapped individual” “solely

by reason of his handicap.” Thus, the statutory lan-

guage puts in issue the qualifications of the handicapped

individual and the motive or intent of the recipient of

federal funds. By contrast, the adverse impact stan-

dard, developed under Title VII in Griggs v. Duke Power

Co., 401 U.S. 424 (1971), does not require a showing of

an intent to discriminate or an evaluation of the quali-

fications of individual members of protected groups.

Moreover, there are substantial differences between dis-

crimination on the basis of race or sex (the groups pro-

tected by Titles VI, VII and IX) and discrimination

against the handicapped. Unlike race or sex, a physical

fall hardest on the class of patients who must come often to the

hospital for short stays. Thus, in his view, there appeared to be

“no way under the majority's opinion that a state can modify its

medica! program without some disparate impact on some class of

patients—unless the state simply abolished Medicare altogether, a

solution that would presumably be equal only because it denies relief

to everyone.” 715 F.2d at 1049-50.

7

or mental handicap may affect one’s ability to function

and, in appropriate circumstances, may provide legiti-

mate grounds for exclusion of the handicapped individ-

uals. Southeastern Comm. College v. Davis, 442 U.S.

397 (1979). To be realistic, Congress recognized that

the existence of a handicap often defines the extent

to which a disabled person may participate in particu-

lar employment opportunities. For these reasons, Con-

gress drafted Section 504 to require an analysis of a spe-

cific individuals’ qualifications. It did not allow a vio-

lation to be premised on the basis of group effects.

Because of the imprecise and complex nature of handi-

cap discrimination, the adverse impact model would be

inappropriate. The decision below presents the real dan-

ger that its logic could be extended to find discrimina-

tion merely because of the absence of individuals with

a specific handicap in an organization’s workforce. Un-

like race and sex, the definition of handicap is not sus-

ceptible to precise categorization. There is no readily

identifiable and homogeneous class of handicapped per-

sons, and there likewise is no fixed reference class with

which treatment of the handicapped could be compared.

Given the difficulties in matching the qualifications of

broad groups of handicapped persons with the require-

ments of different jobs, it would be impossible to deal

with handicap discrimination issues on any basis except

the qualifications of individuals for particular jobs.

In addition, the adverse impact approach requires ade-

quate statistical information about the qualifications of

the minority and female workforce in the relevant labor

market, which then is compared to the racial or sexual

makeup of a particular employer’s workforce. There is

no adequate available source of workforce information

about the availability of qualified handicapped persons.

Also, because the number of handicapped persons with a

particular handicap would be so small in relation to the

overall workforce, such statistics as could be mustered

would have little legal significance or predictive value.

As long as qualified handicapped individuals are given

the same opportunities as persons who are not handi-

capped, there can be no violation of Section 504. Section

504 does not require a preference for handicapped in-

dividuals beyond equal access and it would be improper

for the courts to read Section 504 in the broader manner

of the Sixth Circuit below. Southeastern Comm. College

v. Davis, supra."

ARGUMENT

I. SECTION 5047S BAN ON DISCRIMINATION

AGAINST QUALIFIED INDIVIDUALS SOLELY ON

THE BASIS OF HANDICAP CANNOT BE CON-

STRUED TO ENCOMPASS THE ADVERSE IMPACT

THEORY OF DISCRIMINATION.

A. Section 504’s Language Excludes Enforcement by

Use of the Adverse Impact Theory.

Section 504 establishes its own criteria for determining

whether or not its provisions have been violated. An ex-

amination of the statute’s language indicates that the

focus is on the individual handicapped person, rather

than on the impact on groups of the handicapped. Sec-

tion 504 provides in pertinent part that:

No otherwise qualified handicapped individual in

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

this title, shall solely by reason of his handicap, be

excluded from the participation in, be deneid the

There are other related reasons why the adverse impact model

should not be applied generally to Section 504, particularly in the

private employment sector. Unlike the instant case where the

parties agreed that the definition “handicapped individual” would

be equated with Medicaid recipients who were blind or disabled

(715 F.2d at 1089 n.2), many Section 504 cases involve a dispute

over whether a particular individual is indeed handicapped. More-

over, often it would not be readily apparent that the employer's

employment practices could be shown to cause an adverse impact

on the handicapped. As detailed more fully below, the definitional

difficulties in determining handicapped issues are unsuited for the

adverse impact model.

benefits of, or be subjected to discrimination under

any program or activity receiving Federal financial

assistance

29 U.S.C. § 794 (emphasis added).

Accordingly, as the first analytical step, the individ-

ual must show that he was qualified to perform his job

in spite of his handicap. Southeastern Community Col-

lege v. Davis, 442 U.S. 397 (1979). Thus:

In the more typical suit under § 504, the defend-

ant acknowledges reliance on the plaintiffs handi-

considered but whether under all

stances it provides a reasonable basis for finding the

plaintiff not to be qualified or not as well qualified

as other applicants.

Doe v. New York University, 666 F.2d 761, 777 (2d

Cir. 1981). See also Pushkin v. Regents of the Univ. of

Colorado, 658 F.2d 1372, 1385 (10th Cir. 1981). Ac-

on the institution’s motivation requires a showing that

the employer or institution intentionally discriminated on

the basis of the handicapped condition. As now shown,

both steps foreclose the use of the disparate impact

theory of discrimination developed under Title VII of the

Civil Rights Act of 1964.

10

Unlike Section 504, under the adverse impact theory

it is not necessary to prove that the employer discrimi-

nated against an individual “because of” his race,

;

f

f

i

United States, 431 U.S. 324, 335 n.

to establish a prima facie case of

plaintiff must show that a particular facially neutral

employment practice produces a significant adverse im-

pact on a protected group of employees. The employer's

intent to discriminate against a class of employees is not

at issue. Griggs v. Duke Power Co., 401 U.S. 424, 432

(1971). In further contrast to Section 504, which relates

|

ment absent from the adverse impact theory.

Accordingly, Section 504 is

i

|

Ff

:

3

ee |

11

must demonstrate a discriminatory motive or intent on

the part of the employer. See, e. g., Int’l Bro. of Team-

sters v. United States, 431 U.S. at 335-36, which held

that a disparate treatment case under Title VII is based

upon a showing that a person is treated less favorably

“because of such individual’s race, color, religion, sex, or

national origin.” Like the words “by reason of“ in Sec-

tion 504, the words “because of” indicate that “proof of

discriminatory motive is crucial.” 431 U.S. at 335-36

n.15 (emphasis added).

As this Court has stated, the disparate treatment ap-

proach requires the following showing to demonstrate

a prima facie case of intentional discrimination:

(i) that [the individual] belongs to a racial minor-

ity; (ii) that he applied and was qualified for a job

for which the employer was seeking applicants; (iii)

despite his qualifications, he was rejected; and (iv)

that, after his rejection the position remained open

and the employer continued to seek applicants from

persons of complainant’s qualifications.

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802

(1973). Section 504’s requirements are closely analogous

because they stress the individual’s qualifications and

the motive for the institution’s actions. Indeed, Section

504 is more demanding than the traditional disparate

treatment standard because it permits the employer to

consider the individual’s handicap in determining whether

the individual is qualified. See Southeastern Comm. Col-

lege v. Davis, 442 U.S. 397 (1979).

Thus, application of Section 504’s handicap discrimi-

nation provision requires a recognition of its unique re-

quirements not present in other statutory schemes. The

courts which have closely examined Section 504 have

recognized these special factors. As stated by the Sec-

ond Circuit:

A § 504 action frequently does not lend itself easily

to the analysis used for allocation of burdens and

order of proof used in suits alleging discrimination

12

on impermissible factors (race, color, religion, sex

or national origin) in violation of Title VII.

Doe v. New York University, 666 F.2d at 776. In

addition:

The Title VI and Title IX models were not auto-

matically adaptable to the problem of discrimination

against the handicapped, but involved a very differ-

ent analytical undertaking. Indeed, attempting to fit

the problem of discrimination against the handi-

capped into the model remedy for race discrimina-

tion is akin to fitting a square peg into a round

hole

Garrity v. Gallen, 522 F. Supp. 171, 206 (D. N. H. 1981).

For all these reasons, it is clear from the language of

Section 504 that the adverse impact approach would be

inappropriate as a burden of proof scheme.“

Although Section 504 has been described as the first Federal

Civil rights law protecting the rights of handicapped persons“

(42 Fed. Reg. 22,676 (1977) (remarks of then HEW Secretary

Joseph Califano), it would be incorrect to assume that there is an

exact correlation between the concept of handicap discrimination

and discrimination on the basis of race, national origin or sex. As

has been argued:

This comparison is accurate in one sense, yet misleading in

another. To the extent that discrimination on the basis of

handicap, race, and national origin may often result from

misconceptions and stereotypes, it is accurate to compare handi-

cap to race and national origin. Such a comparison is mis-

leading, however, because it serves to obscure a very important

distinction. Unlike race or national origin, a physical qr mental

handicap may affect one’s ability to function and ma ;

constitute legitimate grounds for exclusion. Distinctions drawn

on the basis of handicap, as opposed to those drawn on the

basis of race or national origin, do not always reflect stereo-

typed attitudes about disadvantaged individuals since, realis-

tically speaking, a handicap has practical limitations that de-

fine the extent to which a disabled individual may participate

in norma! societal activities.

Cohen, Discrimination on the Basis of Handicap: The Status of

Section 504 of the Rehabilitation Act of 1978, 65 lowa L. Rev. 446,

453 (1980).

13

B. Rejection of an Effects Test Would Not Be Incon-

sistent With This Court’s Title VI Guardians

Decision.

Insofar as Section 504 may be affected by decisions

under Title VI of the Civil Rights Act of 1964, it is clear

that Title VI would not require an application of the

effects test in the instant case. The Court has noted

previously that Section 504 was patterned after Title VI

of the Civil Rights Act of 1964. See Community Televi-

sion of Southern California v. Gottfried, 103 S. Ct. 885,

892 (1983); and Consolidated Rail Corporation v. Dar-

rone, 104 S. Ct. 1248, 1250 (1984). Moreover, in 1978,

the Rehabilitation Act was amended to add a new Sec-

tion 505 (29 U.S.C. § 794(a) (a) (2)) which applies to

Section 504 the remedies, procedures and rights avail-

able under Title VI. This Court recently reviewed the

standard required to prove a violation of Title VI. Seven

members of the Court “agree[d] that a violation of the

statute itself requires proof of discriminatory intent.”

Guardians Ass’n v. Civil Service Commission of the City

of New York, 103 S. Ct. 3221, 3235 n.1 (1983) (opinion

of Justice Powell).

In Guardians, Justices Brennan, Marshall, Blackmun

and Stevens, however, would hold that proof of discrimi-

natory effect suffices to establish liability “only when the

suit is brought to enforce the regulations rather than

the statute itself.” 103 S. Ct. at 3235 n.1 (opinion of

Justice Powell). That view may be limited to Title VI

and should not be applied to the Section 504 regulations

in this case. The regulations make clear that Section 504

is to be construed as requiring merely equal access to

benefits and services available to handicapped individ-

uals. 84 C.F.R. § 84.4(b) (2) provides that:

(2) For purposes of this part, aids, benefits, and

services, to be equally effective, are not required to

produce the identical result or level of achievement

for handicapped and nonhandicapped persons, but

14

must afford handicapped persons equal opportunity

to obtain the same result, to gain the same benefit,

or to reach the same level of achievement in the most

integrated setting appropriate to the person’s needs.

(Emphasis added)

See also Southeastern Community College v. Davis, 442

U.S. at 410 (Section 504 merely requires equal treat-

ment, not affirmative action). And as the dissent and

district court pointed out below, where equal treatment

has been afforded the handicapped, it could not reason-

ably be argued that such practices “have the effect of sub-

jecting qualified handicapped persons to discrimination on

the basis of handicap.” See 84 C.F.R. § 84.4(b) (4) (em-

phasis added).

Indeed, if these regulations were construed as adopting

an effects test, they would be inconsistent with 84 C.F.R.

§ 84.4(b) (2) and with the specific language of Section

504 and hence unenforceable. See University of Texas

v. Camenisch, 451 U.S. 390, 399 (1981) (opinion of

Chief Justice Burger) (“The Secretary has no authority

to rewrite the statutory scheme by means of regula-

tions.”) ; and Garrity v. Gallen, 522 F. Supp. 171, 208

(D.N.H. 1981).

Finally, this Court is not required to defer to any

administrative interpretation of Section 504 that adopts

an effects test. The hisiory of Section 504’s regulations

contrasts sharply with the Title VI regulations, which

were contemporaneous with the enactment of Title VI

and were consistently applied. See 103 S. Ct. at 3240

(opinion of Justice Marshall). As this Court previously

noted, the Department’s reluctant and inconsistent his-

tory with respect to Section 504’s regulations “substan-

tially diminishes the deference to be given to [HHS’s]

present interpretation of the statute.” Southeastern Com-

munity College v. Davis, 442 U.S. at 412-13 n. 11. For

all these reasons, it is evident that rejection of an effects

test in this case would be consistent with the language of

15

Section 504 and with this Court’s previous interpreta-

tions of Title VI.“

II. BECAUSE OF THE IMPRECISE AND COMPLEX

NATURE OF THE CONCEPT OF “HANDICAP DIS-

CRIMINATION,” THE ADVERSE IMPACT MODEL

OF ANALYSIS WOULD NOT BE APPROPRIATE.

Although Congress chose to use the term “discrimina-

tion” in both Section 504 and Title VII, Congress showed

its caution by limiting the application of Section 504 to

“otherwise qualified handicapped individuals” who face

disparate treatment “solely” on the basis of handicap.

There are sound reasons for this distinction.

Handicaps are not susceptible to precise categorization

because they are not the same in kind and do not neces-

sarily have the same effect on employment opportunity

as do the types of discrimination prohibited by Title VII.

Title VII is premised, in part, on the concept that no

inherent differences exist between the general public and

persons protected on the basis of race, color, religion,

sex, or national origin. The courts have recognized this

difference between the handicap discrimination statutes

and other nondiscrimination statutes.

First, unlike classifications based on race, there

are no readily apparent divisions among the handi-

capped. Rather, mental and physical handicaps cover

a continuum, from color-blindness or forgetfulness

on the one hand to total spasticity or profound men-

tal retardation on the other. In relation to other

human beings, we are all handicapped to a certain

degree, however insignificant or debilitating that

handicap may be.

* Title IX of the Education Amendments of 1972 (20 U.S.C.

§ 1681 et seq.) also was patterned after Title VI. It has been held

that a violation of Title IX requires an intentional discriminatory

act and disparate impact alone is not sufficient to establish a viola-

tion. See Cannon v. The University of Chicago, 648 F.2d 1104 (7th

Cir. 1981), cert. denied, 454 U.S. 1128 (1981).

16

Assessing the capability of various individuals to per-

form without knowledge of the particular task under

consideration and its various requirements, or with-

out an individualized determination of their

and weaknesses would appear to be impossible. In

fa , it was partly in recognition of this fact that

Convress passed § 504—to encourage treatment of

the .andicapped on the basis of individualized as-

sessment of ability.

Garrity v. Gallen, 522 F. Supp. at 206.

Handicaps differ widely in kind and degree and there

is no readily identifiable and homogeneous class of handi-

capped persons. The Rehabilitation Act’s definition of

handicapped is so broad that discrimination can only be

defined in terms of disparate treatment of differently

and uniquely handicapped individuals.” Thus, there is

no fixed reference class with which treatment of the

handicapped can be compared because each handicapped

person must be treated differently in order to be afforded

equal access to employment. Indeed, identical treatment

may, in fact, constitute discrimination. For example,

10 Applicable Department of Health and Human Services regula-

tions define “handicapped persons” as follows:

“Handicapped persons” means any person who (i) has a

physical or mental impairment which substantially limits one

or more major life activities, (ii) has a record of such an im-

pairment or (iii) is regarded as having such an impairment.

(2) As used in paragraph (j) (1) of this section, the phrase:

(1) “Physical or mental impairment” means (A) any physi-

ological disorder or condition, cosmetic disfigurement, or ana-

tomical loss affecting one or more of the following body sys-

tems: neurological; musculoskeletal; special sense organs;

respiratory, including speech organs; cardiovasular; reproduc-

tive, digestive, genito-urinary ; hemic and lymphatic; skin; and

endocrine; or (b) any mental or psychological disorder, such

as mental retardation, organic brain syndrome, emotional or

mental illness, and specific learning disabilities.

45 C. F. R. § 84.3 (j).

17

epileptics may be properly excluded from some jobs but

not others. The nature and the degree of epilepsy may

affect whether epileptics are qualified for various jobs.

It, therefore, would be difficult to classify all epileptics

as a member of a common class with typical claims.”

As stated by the Tenth Circuit in an analogous context

in a case interpreting 42 U.S.C. § 1985(3):

It is apparent that different individuals are handi-

capped in vastly different ways, for different periods

of time, and to very different degrees or extent. The

variations in each category are infinite and as a con-

sequence the term “handicapped” does not have a

definition capable of a reasonably precise application

for the purposes before us [i.e., defining a class of

handicapped persons].

Wilhelm v. Continental Title Co., 720 F.2d 1173, 1176

(10th Cir. 1983), cert. denied, 52 U.S.L.W. 3687 (1984).

Similarly, unlike race, color, national origin, or sex

discrimination—which are addressed in Title VI, Title

1! As one commentator has noted, administrative enforcement of

handicap discrimination laws is much more difficult than enforce

ment of laws prohibiting discrimination against females or minor-

ities:

In contrast, review of an employer’s treatment of epileptics,

for example, will not provide the same insights about how to

treat other handicapped persons or, indeed other epileptics.

Nor will EEOC or any other enforcing agency be able to offer

guidance with the specificity it has provided in administration

of Title VII in its prevent form. The task would require a staff

with medical expertise concerning each type of impairment

which gives rise to disability, and vocational expertise con-

cerning the significance of the impairments upon the whole

range of employment opportunities.

Peck, Employment Problems of the Handicapped: Would Title VII

Remedies be Appropriate and Effective?, 16 U. Mich. J.L. Ref. 343,

370 (1983). The author concluded: “Even the disparate impact

test developed under Title VII may not be well suited for dealing

with the range of problems that will be encountered in providing

and expanding job opportunities for the handicapped.” /d., at 346.

18

VII and Title [X—“handicapped discrimination” is not

susceptible to precise categorization. It is different in

kind and does not necessarily have the same 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 title VI of the Civil Rights Act of 1964 and IX

of the Education Amendments of 1972. The premise

of both title VI and IX is that there are no inherent

differences or inequalities between the general public

and the persons protected by these statutes and,

therefore, there should be no differential treatment

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 access to

federally assisted programs and activities, and iden-

tical treatment may, in fact, constitute discrimina-

tion. The problem of establishing general rules as to

when different treatment is prohibited or required is

compounded by the diversity of existing handicaps

and the differing degree to which particular persons

may be affected. Thus, under section 504 questions

arise as to when different treatment of

persons should be considered improper and when it

should be required.

41 Fed. Reg. at 20296 (1976).

12 Similar concerns were expressed by Joseph A. Califano, Jr.,

then Secretary of Health, Education and Welfare, in his background

explanation to the 1977 HEW regulations on Section 504. Secretary

Califano explained:

From the outset, the Department has recognized that the

problem of ending discrimination on the basis of handicap pre-

sents considerations that are extremely complex. The diversity

of types of handicaps, as well as the wide variety of settings

in which programs financed by the Department are offered,

19

The difficulties in applying Title VII standards and

concepts of discrimination were also recognized by the

United States Commission on Civil Rights (herein “the

Commission”). The Commission has cautioned:

[Blecause the classification “handicap” differs

from other antidiscrimination classifications, such as

The Commission went on to discuss the differences be-

tween the groups protected by Section 504 and Title VII:

All too often, racial and ethnic minorities, women,

ing to that issue (/d., at 150).

handicap class. As a result, handicapped people are

an exceedingly heterogenous group.“

Because race, sex, and national origin have no direct

connection with functional abilities, this neutrality

doctrine [of Title VII] prohibits consideration of

these characteristics except in the remedial context

of affirmative action.

The handicap classification, in contrast, encom-

passes real functional limitations. The goal of handi-

cap antidiscrimination law, therefore, cannot be

complete neutrality or indifference to the defining

characteristic.“

It thus is apparent that the substantial differences be-

tween traditional protected groups and the handicapped

make it inappropriate to apply the concept of adverse

impact discrimination to suits brought under Section 504

of the Act.

III. THE INSUFFICIENT AND IMPRECISE NATURE

OF AVAILABLE STATISTICAL DATA RELATING

TO THE HANDICAPPED MAKES THE USE OF A

GRIGGS-TYPE ADVERSE IMPACT ANALYSIS IN-

APPROPRIATE IN CASES ARISING UNDER SEC-

TION 504.

Even under Title VII, in which the adverse impact

approach has been adopted, the courts have emphasized

that not all statistics are probative of discrimination.

In Teamsters, the Supreme Court cautioned that “statis-

tics are not irrefutable; they come in infinite variety and

like any other kind of evidence they can be rebutted.

In short, their usefulness depends on all the surrounding

facts and circumstances.” 431 U.S. at 340. In Hazelwood

School District v. United States, 433 U.S. 299 (1977),

the Court developed the proper form of statistical analy-

Civil Rights Commission Study at 145-46.

15 Civil Rights Commission Study at 153.

21

sis in Title VII cases. The usefulness of statistics, it

said, depends upon the identification of the appropriate

comparative data base, i.e., the relevant labor market to

whicu che employer’s workforce is to be compared.

Hazelwood makes clear that, at a minimum, for statis-

ties to be probative there needs to be a comparison be-

tween the composition of the relevant components of the

employer workforce and the composition of those persons

available in the relevant labor market with the skills to

perform the employer’s jobs. Unless workforce statistics

and the qualified labor pool are tailored to each other

and appropriately refined, no inference of discrimination

is reasonable or permissible, because any resulting dis-

parity may be caused by numerous factors other than

discrimination. The Supreme Court has observed, in this

regard, that broad-based statistics which include a sub-

stantial number of people who realistically cannot be

considered potential applicants are “virtually irrelevant”

for comparison purposes. New York City Transit Au-

thority v. Beazer, 440 U.S. 568, 586 (1979) ; Hazelwood,

443 U.S. at 308 n.13; Int'l Bro. of Teamsters, 431 U.S.

at 340-41 n.20. Accordingly, if the available statistics

reveal little about the class of “otherwise qualified”

handicapped individuals, they may not be relied upon to

demonstrate the presence of discrimination. New York

City Transit Authority v. Beazer, 440 U.S. at 585 & n.29

(“(E)vidence showing that the figures for the general

population might not accurately reflect the pool of quali-

fied job applicants undermines the significance of such

figures.”) As now shown, these principles make inap-

propriate the use of adverse impact theory in handicap

discrimination cases.

In contrast to the typical employment discrimination

case based upon race or sex where a comparative analysis

between the percentage of minorities or women in the

employer’s work force and the qualified outside relevant

labor market might be probative of discrimination, there

simply is no way to obtain sufficient statistical informa-

tion upon which to base a prima facie case of adverse

impact discrimination against the handicapped.“

The first problem is that there is no adequate source

or sources of statistical information on the availability of

qualified handicapped persons. As the United States

Commission on Civil Rights has concluded:

There is no single repository of adequate national

data on the handicapped population. Instead, demo-

ability or fail to provide adequate information about

functional limitations or activity restrictions. Other

surveys report major restrictions but do not indicate

their causes. Ad hoc studies tend to be sharply

take national samples, it is not possible to extrapo-

late from them to the national population.

The available statistics are difficult to aggregate

because of inconsistent methodologies and definitions

used by the different sources of data.

Civil Rights Commission Study at 10-11 (footnotes

omitted).

The Civil Rights Commission pointed out the differ-

ences between the use of statisties in traditional eivil

rights cases (such as race discrimination) and in handi-

cap discrimination cases:

To date, statistics have been used infrequently

with respect to handicap discrimination. Few court

decisions have viewed statistical evidence as proving

disparate impact or suggesting intentional discrimi-

nation. It would seem the absence of

participants in a program or activity with many

pants might be evidence of

discrimination. total absence of people commonly

considered handicapped from a large employer’s

workforce, for example, is statistically so unlikely as

— handicaps 722 ne

tween ] and i limitations, however,

disproportionate underrepresentation }

Civil Rights Commission Study at 157 (emphasis added)

The Civil Rights Commission also pointed out that the different

usages of the terms “handicap” and “disability” in the Social Se

curity Act (42 U.S.C. § 423(d)) and the Rehabilitation Act “hamper

any correlation of the statistics generated by the various programs,

since the samples are divergent by definition.” Civil Rights Com-

mission Study at 11 n.42. The Commission also noted that there

are “major differences in the methodologies used to collect data” by

federal agencies that collect such data—the Social Security Admin-

istration, the National Center for Health Statistics and the Bureau

of Census. Civil Rights Commission Study at 11.

As pointed out in Prewitt v. United States Postal Service, 662

F.2d 292, 307 (Sth Cir. 1981) :

In addition, it has been argued that “meaningful sta-

tistics cannot be obtained for the handicapped because of

the virtual absence of handicapped persons in the labor

market relative to the number of persons employed.”

Gittler, 27 DePaul L. Rev. at 971. Because of this small

proportion of the handicapped in the working population,

subclasses. This is because “the fact that an employer employs

the handicapped to a far greater degree than they have with

enforcement f a prohibition of discrimination on the basis of

race, sex, or national origins.

Peck, 16 U. Mich. J.L. Ref. at 357

25

such statistical analyses would be so small as to have lit-

tle legal significance or predictive value.” Id., at 973.”

For all these reasons, it is apparent that there is not

an adequate statistical basis upon which to apply the

adverse impact approach to the general run of Rehabili-

tation Act cases. Thus, Congress had good reasons for

limiting the protections of the Rehabilitation Act to the

individr:al who could demonstrate that he was qualified

for a particular job in spite of his particular form of

handicap.

IV. THE SIXTH CIRCUIT IMPROPERLY OVERRODE

THE LEGITIMATE BUDGETARY DECISION OF

THE STATE GOVERNMENT BECAUSE BY PRO-

VIDING EQUAL ACCESS TO HOSPITAL BENE-

FITS, THE STATE HAS COMPLIED WITH THE

REQUIREMENTS OF SECTION 504

EEAC’s final concern is that the lower court’s decision

would permit the courts to second-guess the legitimate

budget decisions of governments who must administer

the Medicaid program in the face of dwindling revenues.

As argued by the dissent below:

Without a clear, bright-line distinction based on

access, like the District Court makes, the Court’s de-

cision will create a whole new source of challenges to

state budgetary decisions. People with physical ail-

20 See also Lang, Protecting the Handicapped from Employment

Discrimination: The Job-Relatedness and Bona Fide Occupational

Qualification Doctrines, 27 DePaul L. Rev. 989, 1001, 1008 (1978),

which noted with respect to an analysis of employee selection cri-

teria that “in many instances the criterion-related validity study

favored by the EEOC Guidelines will be impractical, if not impos-

sible to apply to the handicap context due to a lack of a significant

number of handicapped test takers in the sample.” This conclusion

would also apply to the HHS regulations at issue here. See 45

C.F.R. § 84.13. Lang also concluded that the traditional Title VII

method of statistical proof might not be readily transferable to

handicap cases because “the number of handicapped applicants may

not be a large enough base for a traditional statistical study.” Id.,

at 1007.

*

ments depend on a myriad of state services more

heavily than do people with no ailments. When a

local government decides to reduce the quality, fre-

quency or financing for some service, for example,

bus service, some group could make a case of dis-

crimination, for example, by showing that they use

the buses more than others. Across-the-board cuts

in welfare, social security, education and many other

benefits will affect some groups more than others and

will open the way to litigation. I do not believe that

Congress intended this statute to authorize the fed-

eral courts to step in and control the state budgetary

process when cuts in appropriations affect asthmatics,

or some other class of patients, somewhat more

heavily than another group of patients. 715 F.2d

at 1047.

The decision below goes far beyond any other in per-

mitting the courts to set aside the legitimate budgetary

decisions of state governments. Thus, the decision would

lay the groundwork for an interpretation of nondiscrimi-

nation statutes that is too openended. As stated by the

Second Circuit in an analogous context:

If, for example, a court were to assess alternative

ways of saving funds throughout the administration

of a city or even throughout the administration of

the health care function, it would seriously risk sub-

stituting its own judgment for that of the city’s

elected officials and appointed specialists. We are

skeptical of the capacity and appropriateness of

courts to conduct such broad inquiries concerning

alternative ways to carry out municipal functions.

Once a court is drawn into such a complex inquiry,

it will inevitably be assessing the wisdom of com-

peting political and economic alternatives. Moreover,

such policy choices would be made without broad pub-

lic participation and without sufficient assurance that

the alternative selected will ultimately provide more

of a benefit to the minority population.

Bryan v. Koch, 627 F.2d 612, 619 (2d Cir. 1980) (Title

VI did not prevent the closing of a hospital for budgetary

reasons).

27

This court’s recent decisions have stressed repeatedly

that judicial scrutiny of state budget decisions should give

great leeway to the decisions of local administrators.

For example, Board of Education v. Rowley, 102 S. Ct.

3034, 3043 (1981), held that the Education for all Hand-

icapped Children Act (20 U.S.C. § 1041 et seg.) was not

intended to “guarantee any particular level of education”

or “produce any particular outcome.” * The Court cau-

tioned that “courts lack the ‘specialized knowledge and

experience’ necessary to resolve ‘persistent and difficult

questions of educational policy.?“ 102 S. Ct. at 3052,

citing San Antonio School Dist. v. Rodriguez, 411 U.S. 1,

42 (1973). Thus, the Court has discouraged the im-

position of obligations on federal funds recipients that go

beyond those set forth in the language of the statute.

Pennhurst State School & Hospital v. Halderman, 451

U.S. at 24-25. See also Southeastern Comm. College v.

Davis, which held that Section 504 on its face shows that

Congress did not intend to impose an affirmative action

requirement on federal funds recipients.

The decided cases have made clear that Section 504

was not intended to provide equal results to all classifica-

tions of handicapped individuals. Congress provided that

“if the handicapped are given access to medical care

— —

21 The Court further stated that the statute generates no addi-

tional requirement that the services so provided be sufficient to

maximize each child's potential commensurate with the opportunity

provided other children.“ 102 S. Ct. at 3046.

22 See also Beal v. Doe, 432 U.S. 438, 444-45 (1977) (States have

broad discretion in determining the amount of medical assistance

and it was not unreasonable for the state to exclude nontherapeutic

abortions from Medicaid); Pennhurst State School & Hospital v.

Halderman, 451 U.S. 1, 24-25 (1981) (Court would not assume that

Congress intended to impose massive financial obligations on the

States). See also Furnco Const. Corp. v. Waters, 438 U.S. 567, 578

(1978) (“Courts are generally less competent than employers to

restructure business practices, and unless mandated to do so by

Congress they should not attempt it.“)

equal to that afforded the general population, no discrimi-

nation will be found.” NAACP v. Wilmington Medical

Center, Inc., 491 F. Supp. 290, 318 (D. Del. 1980), aff'd,

657 F.2d 1322 (3d Cir. 1981) (emphasis added). See also

Doe v. Coalutti, 592 F.2d 704, 707-10 (3d Cir. 1979)

(Congress conferred broad discretion on the States in

determining Medicaid assistance. Section 504 was not

violated by denial of hospitalization in private psychia-

tric institutions beyond 60 days); Doe v. Devine, 545

F. Supp. 576, 585 (D.D.C. 1982), aff'd, 703 F.2d 1319

(D.C. Cir. 1983) (Mental health cutback does not violate

Section 504 since program “will restore physically and

mentally ill persons to relative equivalency in terms of

actual resource expenditures. Thus, there can be no gen-

uine contention that the cutbacks at issue ‘discriminate’

against mentally diseased persons solely by virtue of their

handicaps.”); and Bernard B. v. Blue Cross & Blue

Shield, 528 F. Supp. 125, 132-33 (S. D. N. V. 1981), aff'd,

679 F.2d 7 (2d Cir. 1982) (Exclusion of psychiatric in-

patient care did not constitute discrimination solely be-

cause of handicap.)

In light of the above cases, it cannot be seriously ar-

gued that Section 504 is violated by providing equal hos-

pital services to all categories of persons in need of hos-

pitalization. Such equal treatment can in no way be con-

sidered discrimination solely on the basis of handicap.

To read Section 504 in the manner of the Sixth Circuit

would impose obligations on local governments that finds

no support in the statutory language or its legislative

history. Moreover, to do so would mean that once local

governments have established a certain level of funding

for programs affecting the handicapped they never can

be reduced because of the inevitable impact on some group

of handicapped individuals. Without clear indication

from Congress, these additional burdens cannot be placed

upon the recipients of federal funds.

CONCLUSION

For all the reasons set forth above, the Court should

vacate the decision of the Sixth Circuit below and hold

that the State did not violate Section 504 when it reduced

the number of reimbursed hospital days in the same

amount for all eligible Medicaid recipients.

Respectfully submitted,

RoBERT E. WILLIAMS

DouGLas S. MCDOWELL

McGuINEss & WILLIAMS

1015 15th Street, N.W.

Washington, D.C. 20005

(202) 789-8623

Attorneys for the Amicus Curiae

Equal Employment Advisory

Council

May 18, 1984