SOUTHEASTERN COMMUNITY COLLEGE v. DAVIS

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Argument of Eugene Gressman

Chief Justice Warren E. Burger: We'll hear arguments first this morning in Number 711, Southeastern Community College against Davis.

Mr. Gressman, you may proceed whenever you're ready.

Mr. Gressman: Thank you.

Mr. Chief Justice, and may it please the Court.

This is a case of first impression as far as this Court is concerned.

It is a case involving the interpretation and application of Section 504 of the Rehabilitation Act of 1973, which establishes a broad duty on recipients of federal aid and assistance.

Not to discriminate against handicapped persons, against qualified handicapped persons solely because of their handicap.

I think it essential at the outset to note that this is not a case of discrimination against a handicapped person.

This is a case rather of a handicapped person who has been found not qualified to participate in the program or activity to which she sought admission.

The uncontested facts as found by the District Court after an evidentiary hearing, facts and findings which have not been challenged in the lower courts or essentially before this Court established that the respondent, Frances Davis, by concession had a severe hearing handicap which made it impossible for her to communicate with other people other than with the use of a hearing aid and the ability and necessity to read the lips of the person to whom she is talking.

And she must apparently be face to face with the talker.

Chief Justice Warren E. Burger: Well are you telling us that the hearing aid did not compensate fully or substantially for the handicap?

Mr. Gressman: That is essentially the finding implicit in the District Court's opinion, yes.

It was a combination though of the hearing handicap -- of I mean the hearing aid plus the necessity to read lips, and even then that was found to be an inadequate compensation for the severity of a hearing handicap.

Now --

Justice Harry A. Blackmun: Mr. Gressman, she was a licensed practical nurse, was she not for some years?

Mr. Gressman: That is true.

Apparently about 10 years previously.

Justice Harry A. Blackmun: And is there anything in the record which indicates that she was unable to perform those duties or that she did so with hazard to the patients?

Mr. Gressman: There is nothing in the record one way or the other on that.

We do not know for example even whether her hearing handicap was that severe at the time she acquired the LPN license.

Justice Harry A. Blackmun: Well that brings me to my next question.

Is there anything in the record that protects the public when a licensed registered nurse becomes handicapped as this respondent was after her licensure had been obtained?

Mr. Gressman: Well, yes.

Under the North Carolina statutes, the state licensing bureau is authorize to revoke any license it has previously granted because of incompetent or inadequate nursing practice under any license, whether it be an LPN license or an RN license.

That is very clearly set forth in the statutes.

That's a -- I would assume that's a fairly universal provision with respect to any licensing activity.

Justice Harry A. Blackmun: Are they fulfilled in actual practice? Does the record show that?

Mr. Gressman: You mean if they have lifted licenses --

Justice Harry A. Blackmun: Say that licenses have been terminated or revoked.

Mr. Gressman: There's nothing in this record, no.

This is solely a, you might say an ad hoc factual development solely related to this particular individual.

We have no evidence as to the general practices of the licensing authorities.

Now the court made the critical determinations, in terms of this respondent's lack of qualifications either to participate in the training program or in her ultimate profession as a registered nurse.

The court specifically found that her hearing handicap actually prevents her from safely performing in both her training program and her proposed registered nurse profession.

And the court found and concluded that there are numerous situations where her hearing disability would render her unable to function properly in a clinical situation, in a nurse-patient relationship.

And finally, the court emphasized that was a particular concern to this Court was the potential danger to the patients in the hospitals who would be unable to in many situations communicate effectively with this particular nurse-trainee or ultimately the professional nurse.

Many patients obviously are not incapable of addressing the nurse face to face so that their lips could be read, or there might be situations where various crises develop that could only be -- that could not be heard by the nurse who had her back turned to in a particular situation.

Chief Justice Warren E. Burger: Mr. Gressman, you spoke of the nurse's activities in terms of a hospital.

There are some nurses who function in private homes taking care of patients too, are there not?

Mr. Gressman: That is true.

But in the nurses training program, they only have this clinical programs in the hospital.

Chief Justice Warren E. Burger: Well, is there any statute giving a cause of action against an individual who would refuse to employ a nurse, a registered nurse on the grounds that the registered nurse had a handicap of this kind?

Mr. Gressman: Well --

Chief Justice Warren E. Burger: Would that be discriminatory under any federal statute?

Mr. Gressman: It could be discriminatory under 504 even in that employment relationship, if you decline to employ a qualified handicapped person solely because of his handicap.

Justice Potter Stewart: Well if you're receiving a federal financial assistance.

Mr. Gressman: Federal financial aid, that's right.

Now there are other --

Chief Justice Warren E. Burger: If an individual, I was addressing my question to an individual patient in a private home.

Mr. Gressman: You mean the individual --

Chief Justice Warren E. Burger: Any restriction or is it just -- does it violate any statute civil rights or otherwise for a person who is ill, or the family of that person who refused to hire a registered nurse on the ground that she's hard of hearing?

Mr. Gressman: I would assume not that that's no form of state action which any kind of a statute could reach as essential basis for imposing any kind of anti-discrimination policy.

Chief Justice Warren E. Burger: But there are statutes about employments that do not involve state action, are there not?

Mr. Gressman: Well, there are yes.

In employment situations where the employer has a contractual relationship with the federal government and -- or with the state.

And as a condition to the maintenance of that contractual relationship, they may be prohibited from refusing to employ a handicapped person who is qualified solely because of his handicap.

But you would have to have some relationship with a government agency or program either through contract or through expressed coverage.

But as far as a purely private individual who's ill at home, I would assume that there is nothing to prohibit that person from discriminating as to whom he wants to employ as a nurse.

Justice William H. Rehnquist: Mr. Gressman, does Section 504 apply to hospitals as well as schools if they receive federal --

Mr. Gressman: If it's a federally funded program of some sort, yes.

Now, --

Justice William H. Rehnquist: Do you think the result of 504 and the valid regulations promulgated person to it would be to prevent a hospital from saying we will hire only registered nurses who have become registered under the North Carolina laws?

Mr. Gressman: Well you have something of that problem, I understand, in the pending petition for certiorari in the (Inaudible) case where the -- a private hospital allegedly discriminated and refused to hire a handicapped nurse.

Now there are cases of that nature where the -- if the hospital is in some way related to a federally funded program for employment purposes, that hospital would be subject to 504.

Justice William H. Rehnquist: But there's nothing in 504 that would in any way require North Carolina to alter its standards for licensing registered or licensed nurses?

Mr. Gressman: Not in a bit, not in one -- in any way Your Honor.

I think that the 504 is a very broad in scope and it makes no pretense at revising or altering or conditioning state licensing laws that may be appropriate for certain professions that happened to involve handicapped persons.

But the -- there is no -- not a word on the face of the statute or its intent or purpose that would indicate that Congress meant to revise or alter the reasonable and necessary state licensing laws with respect to the practice of nursing by registered nurses who are qualified and capable of fully performing safe nursing practices.

Justice Lewis F. Powell: Mr. Gressman, could I ask you a question?

There are two separate things that she might not be qualified to do.

One is to be a registered nurse because it might be dangerous for her if she couldn't hear properly, and secondly she might not be able to do this study program adequately.

Now, I understood you to say that the District Court found that she could not do either?

Mr. Gressman: That's right.

Justice Lewis F. Powell: And some of the findings are ambiguous but my interpretation of it was that they -- the District Court found that she could not progress satisfactorily with the training because when upon completion of the program, she could not safely perform her duties as a nurse.

Do you also read the finding as saying if you put to one side how she perform as a nurse, she still wouldn't be able to do the -- to complete the program because she was unable to hear?

Mr. Gressman: To complete the training program?

Justice Lewis F. Powell: Yes.

Mr. Gressman: Yes, she could not effectively complete the training program because of her handicap.

The state licensing bureau head who wrote a letter, it's in the record, said that she could not exactly predict what would be the situation two or three years hence when this person, if she got through the training program, would then be eligible to take a licensing examination.

But she said that on the basis of her present knowledge, she assumed that it would be improper and perhaps run undue risk to permit her to participate in the training program.

And the likelihood was that if this condition remained the same after she were to have completed her training program, there would be a serious question whether they would let her take the licensing examination.

You see, the licensing authorities do not have any independent sifting out process.

They simply take the graduates of the nursing schools that have been certified to them as fully competent, fully qualified nurses -- nurse candidates who are completely able to fulfill all the requirements that a registered nurse must have.

And they simply take that and allow them on basis to that certification from an accredited nursing program to take the licensing exam, and if they -- which is simply a written examination, there is no physical test made by the licensing authorities, then that person if she passes the written examination is given a RN license.

Now, I think it's essential to see how the structure of Section 504 comes into play at this point.

It's a very simple proposition.

The opening words of 504 say that “No otherwise qualified handicapped individual shall solely by reason of his handicap be excluded from participation or otherwise discriminated against in any federally funded program or activity.”

Now, the essential predicate in other words for 504 coming into operation at all is that the person be otherwise qualified.

Those are the predicate words that bring 504 into operation.

Unless you have a qualified handicapped person, you can never have the kind of discrimination against that person that 504 is talking about.

Justice Potter Stewart: Well, except that 504 is talking about not a qualified but an otherwise qualified, isn't it?

Mr. Gressman: That is true Your Honor and that is really the problem but in this case.

But I think however you view the words otherwise qualified, it is essential to understand that 504 is not talking about the unqualified handicapped person, otherwise or not.

The qualification --

Justice Potter Stewart: Well, one could read is as saying the person and indeed it's a natural reading that a person who is qualified except for his handicap shall not be excluded because of his handicap.

And that but I gather none of the parties here suggest that it should be that way.

Mr. Gressman: Nobody not with that --

Justice Potter Stewart: The blind bus driver and the moronic graduate student --

Mr. Gressman: That's right.

That's what we call the absurd reading --

Justice Potter Stewart: Right.

Mr. Gressman: -- the literal reading of that language produces the impossible situation, and that is that you have to disregard all kinds of handicaps.

Justice Potter Stewart: Right.

Mr. Gressman: And in terms -- and omit them to perform the most physically demanding jobs or activities known to man.

Now this cannot be.

Chief Justice Warren E. Burger: Well to disqualify a person, it must be a job related handicap must it not?

Mr. Gressman: Of course Your Honor.

Now, I think this --

Chief Justice Warren E. Burger: This blind person might be -- would be obviously disqualified from being a bus driver or a taxi driver but not necessarily from being an elevator operator perhaps.

Mr. Gressman: That's true and I always like to think of the example of a law school who freely admits blind people, deaf people, paraplegics primarily because there is no physical qualification for entering into an academic type program of that nature.

Now therefore, you have to approach this whole problem on an ad hoc basis.

You have to look at the qualifications for a particular activity.

You have to look at the particular nature of the handicap and see whether that is relevant to the qualifications, and you have to look at -- determine whether ultimately there's been discrimination against the person once he has been determined he is qualified.

We never get to that point in this case because we never got above -- beyond the predicate requirement that the person be otherwise qualified.

Now, the pro problem in this case is one of confusion, and I think as Mr. Justice Stewart said, these words otherwise qualified had a rather ambiguous note to them.

But I think the whole thing becomes crystal clear if you understand that there are two basic kinds of programs or activities that may be funded by the federal government.

The broad type of programs that are covered are the academic type programs running from preschool education to primary schools, secondary schools and post graduates -- and post secondary schools, the great mass of the undergraduate collegiate programs, 95% of which I assume would be largely academic in nature.

In those types of programs which are the great mass that are covered by 504, there ordinarily are not any physical qualifications.

Chief Justice Warren E. Burger: But there surely a person who is blind in a program that require a substantial amount of reading which I assume most academic programs do, or writing -- and/or writing, or listening.

A person who is deaf would hardly be qualified in the absence of affirmative special assistance to that person, isn't it?

Mr. Gressman: That is exactly true and 504 regulations issued by HEW do require that certain kinds of auxiliary aids and assistance be given --

Chief Justice Warren E. Burger: Under this statute as so worded as --

Mr. Gressman: Of the regulations under this statute, yes.

Chief Justice Warren E. Burger: -- under this simple language of this statute as been found in a requirement for expenditure funds for a special --

Mr. Gressman: Not -- well this was --

Chief Justice Warren E. Burger: You mean?

Mr. Gressman: It's referred to in the opinion of the Fourth Circuit of the law here that on remand of this case, the court should give consideration to certain HEW regulations which required; one, auxiliary aids to be provided for the handicapped person, or two, to make modifications in the academic programs.

Chief Justice Warren E. Burger: And those regulations have been promulgated under the authority of this statute?

Mr. Gressman: That's right, Your Honor.

They were promulgated in 1977.

Justice William H. Rehnquist: Certainly the statute itself gives no indication of a duty to undertake affirmative action?

Mr. Gressman: No, it does not Your Honor, and this is in direct contrast with the preceding two Sections, 501 and 503.

501 relates to federal employees, 503 relates to government contractors who employ individuals that may be handicapped, and both of those cases Congress specifically says that affirmative action and accommodation shall be made in the course of enforcing that non-discrimination policy.

Justice Byron R. White: But there are -- your are --

Mr. Gressman: Your Honor is exactly right.

There is not one word on the face of 504 that establishes any duty to make affirmative accommodation.

Justice Lewis F. Powell: Do you challenge the validity of the regulations in so far as their promulgated pursuant to Section 504?

Mr. Gressman: Not at this point, Your Honor.

I think that we don't arrive at that point yet in this case.

That you would make affirmative accommodation if at all only if you have an otherwise qualified individual, in a program or activity where no physical qualifications are at issue and where the handicap does not affect his qualification.

Justice Harry A. Blackmun: Mr. Gressman, was the Section 504 pleaded?

Mr. Gressman: In the District Court?

Justice Harry A. Blackmun: Yes.

Mr. Gressman: Yes, it was.

There was an alternative claim under 1983 which was a constitutional claim.

But then there was the statutory claim which requested that she be admitted.

Justice William J. Brennan: Was any reference -- was there ever actual reference to 504?

Mr. Gressman: Well there is a -- it came in rather obliquely I believe in the --

Justice Harry A. Blackmun: I should ask you opposition this of course, but I take it you're not making any point, and you accept the presence of the 504 issue here.

Mr. Gressman: That's right, Your Honor.

I think the -- particularly in the -- there is a several references to it in some of the preliminary pleadings in this case, but --

Justice William J. Brennan: Well Mr. Gressman, what's the effect of the reference to it in 15 (a) and the pretrial order?

Mr. Gressman: Well, I think that that was an elaboration clarification of her.

I don't think the complaint was all that clearly drawn frankly, and I think it became clarified in the pretrial proceedings in the order.

Justice Harry A. Blackmun: Well you're quite right if it came in at all.

It came in mighty indirectly.

Mr. Gressman: Yes.

Justice Lewis F. Powell: Mr. Gressman, are you going to address the implied cause of action point?

Mr. Gressman: Yes, I will Your Honor.

Justice Lewis F. Powell: Your time is getting a bit short.

Mr. Gressman: Right.

I would say one final word as to the interpretation of 504.

It simply does not apply in my judgment to any a cause of action which involves a person who is found not to be qualified.

And I think that the person who is not qualified in a -- for a participation in a clinical program raises a most serious policy considerations, because once you leave the academic area where physical qualifications are no longer an issue, indeed they do be -- go into the clinical areas where physical qualifications may be important to the public safety, health and welfare.

Then it seems to me you are outside the intended scope of the language and the purpose of 504.

Now, we have in this situation a reflection of this concern by the District Court for the safety of the patients.

And I think that a person who is unqualified to provide safe nursing care for the great mass of individuals who are ill and sick raises a serious question as to whether this 504 duty should be imposed indiscriminately upon that kind of program or activity.

Congress has from the very beginning established a policy that is very much in point here, and I refer to the statutes in my reply brief that under the Nurse Training Act of 1964 which provides for financial assistance to nursing schools, and which is the very assistance that was given to Southeastern Community College in this case.

That is why it is federally funded.

It was federally funded to provide safe nursing practice and training.

But Congress in that Act said that in no event shall there be any condition or imposition by the federal authorities of any changes in the curriculum.

In other words, any kind of affirmative accommodation that Your Honor spoke of a few minutes ago.

They were concerned that you maintain the quality and the safety of nurse training programs, and there was to be no interference with changing the curricular or the administration of this highly important and high risk type of clinical training programs in the nursing school.

And Congress has also told us in another statute in the education amendments of 1974 that if the handicapped people want to participate in these kinds of clinical programs, Congress authorizes grants and expenditures to community colleges and other institutions to establish specially designed programs for the seriously handicapped who can not be qualified in terms of the ordinary program.

Chief Justice Warren E. Burger: You're not leaving yourself much time for the implied cause of action.

Mr. Gressman: I would say as to the implied cause of action, Your Honor, that not only has it been fully briefed but I would emphasize what I think is the conclusive factor in that respect.

In 1978 the Rehabilitation Act was amended to provide for two specific kinds of private causes of action with respect to it the federal employees and those who are employed by the a recipient funds in a narrow employment context where the primary purpose of the grant is to foster and provide for creating employment relationships.

Now, it seems to me that the very specificity with which it authorized private causes of action in those two instances by necessary implication reads out any kind of private cause of action for other situations such as we have here.

Since we do have a federal employee or do we have an employment type situation, Congress has said as clearly as it can, I assume that there are to be no other types of private causes of action.

Otherwise, there is absolutely nothing in the language -- in the history of 504 that permits the standards of the -- that permits and implication of a private cause of action.

There are a few isolated statements by Senators and perhaps by a committee or two unrelated in time to the original enactment of this statute and --

Justice Byron R. White: But Mr. Gressman, isn't it your case on that isn't any stronger than it would be under Title 6 is it?

Except for the 1978 amendments, your --

Mr. Gressman: I think the 1978 amendments do make a vital difference or distinction.

Justice Byron R. White: But absent though, your case is no stronger than it would be under Title 6 or 9, would it?

Mr. Gressman: No, except I think there may be some differences perhaps with respect to a spending program and with respect to the fact that you are dealing with an enormous regulatory system that has been developed in the HEW.

Justice Byron R. White: Let me ask you this.

Put aside the 1978 amendments for the moment.

This is a state agency we have the state involved here.

Mr. Gressman: That's right.

Justice Byron R. White: I suppose that even if there were not a private cause of action that would arose directly under Title 5 that you might be able to state a cause of action under 1983 relying on Title 5?

Mr. Gressman: You mean 504?

Justice Byron R. White: Oh yes.

I mean -- yes on 504, under the end laws of provision of 1983.

Mr. Gressman: Well I'm not aware Your Honor that this Court or any court has ever addressed this problem which I assume has been raised in the Solicitor General's brief here as to whether you can have a cause of action under 1983 premise upon a violation of another statute which gives no cause of action in and of itself.

Now, I think this is a highly dangerous or questionable doctrine, because that would mean that you could create -- under 1983 assuming some kind of state action, you could create causes of action under the -- all the provisions of the United States Code, regardless of whether courts had held that there is no right of action under a specific --

Justice Potter Stewart: -- Mr. Gressman if the other statute does give a cause of action, you don't need 1983, is that right?

Mr. Gressman: Exactly right, exactly right.

So I think it's somewhat a circular and self-defeating proposition in the end.

All I can say is that there is absolutely no authority at least in this Court for permitting to raise yourself up by the bootstraps by using the 1983 cause of action to create a cause of action that doesn't otherwise exist.

Chief Justice Warren E. Burger: Your time has expired now, Mr. Gressman.

Mr. Gressman: Alright.

Your Honor, would it be possible for me to have leave to reply to the Solicitor General's brief?

Chief Justice Warren E. Burger: Yes, that was a late filing.

Mr. Gressman: That was, yes.

Chief Justice Warren E. Burger: Yes, you may respond.

Mr. Gressman: I would like to file a very brief reply to that.

Chief Justice Warren E. Burger: You may do so as promptly as possible.

Mr. Gressman: Yes, indeed.

Argument of Marc P. Charmatz

Chief Justice Warren E. Burger: Mr. Charmatz.

Mr. Charmatz: Mr. Chief Justice, and may it please the Court.

Frances Davis is a licensed practical nurse.

She seeks to enroll in the Southeastern Community College nursing program, and to advance in her education, and to reach her full potential.

She is a hearing-impaired woman but the college has refused to give her that opportunity solely on the basis of her hearing impairment, with that any consideration of possible program modifications to be made in this case.

The college position as stated in its reply brief is clear.

Nurse trainees must be drawn from the national pool of those who are able-bodied in the fullest physical sense.

Applying this criteria to Mrs. Davis, we have the situation as indicated in the reply brief that the college has applied the rule saying that Mrs. Davis must possess hearing to the fullest degree without substantial impairment in order to qualify.

Quite frankly, Your Honor, this would apply to Mrs. Davis as an LPN, and under this status, under this way of looking at it, Mrs. Davis would not have the opportunity to be an LPN where she is safely and efficiently functioned now for 12 years.

It has been assumed by the college --

Justice Potter Stewart: Do we know what her physical condition was when she originally acquired her license in LPN?

Mr. Charmatz: I think we do Mr. Justice.

The audiologist report indicates that Mrs. Davis has sustained the hearing loss for many years.

The pre-entrance medical examine also indicates that Mrs. Davis has some decrease in hearing.

But the preemptions medical examine found her physically and mentally qualified to undertake the nursing program.

Justice Potter Stewart: It seems to me then we don't.

Mr. Charmatz: Pardon.

Justice Potter Stewart: It didn't say how many years.

Many years can be five or six or 12 or 20.

However, go on proceed.

Mr. Charmatz: It has been assumed by the college that people with hearing impairments which can not be fully corrected, people with impairments similar or worst than Mrs. Davis' cannot function as a nurse.

And it's precisely this assumption which Congress has recognized is incorrect in acting Section 504.

The assumption that a hearing impaired person can not be a nurse.

The federal government employs over 150 impaired nurses and over 300 nursing assistants.

Chief Justice Warren E. Burger: Nothing in this record to show the degree of impairment of this other 300, is there?

Mr. Charmatz: No.

But the audiologist report indicates that Mrs. Davis is successful in communicating with people.

Justice Thurgood Marshall: If she can lip read, didn't it say that?

Mr. Charmatz: It said that she can.

Justice Thurgood Marshall: But she's only effective if she can lip read.

Mr. Charmatz: And she -- and her hearing aid improves her hearing.

Justice Thurgood Marshall: But she is efficient if she has hearing aid and she can lip read.

Mr. Charmatz: That's correct.

The --

Justice Thurgood Marshall: And how do you do that, through gauze, the -- that you wear in certain parts of the hospital, the gauze mask.

How can you lip read?

Mr. Charmatz: Well, the Fourth Circuit in this case vacated and remanded the decision of the District Court to ask what accommodations could be made for Mrs. Davis, and what accommodations would be necessary in that --

Justice Thurgood Marshall: You don't object to that.

Mr. Charmatz: We do not object to --

Justice Thurgood Marshall: Obviously.

You didn't cross-petition.

Mr. Charmatz: No.

Justice William H. Rehnquist: But the vacation was not for purposes of seeing what accommodation could be made for in the operating room, but in the Southeastern Community College, wasn't it?

Mr. Charmatz: That's correct.

Justice William H. Rehnquist: And I heard by Mr. Justice Marshall's questions to go to her functioning in a hospital.

Mr. Charmatz: Well from the record we the statement of the nursing director at Southeastern Community Hospital who indicated that she did not know any area that Mrs. Davis couldn't function given her present determination to continue her education.

And indeed, Mrs. Davis at the present time obviously can't function in any capacity as a registered nurse and by going into the clinical program she attempts to advance her education so that she could function in areas as a registered nurse.

Justice William H. Rehnquist: Could she under present North Carolina law be certified as a registered nurse?

Mr. Charmatz: We think that we might not have to reach that question but that the indication is that she could.

Justice William H. Rehnquist: Didn't the District Court find against you on that point?

Mr. Charmatz: No, I think the District Court found that the feelings of the college that she couldn't be a registered nurse were one of the reasons that the college refused her.

But the report from the nursing director is very difficult to understand.

At one point, it certainly indicates that there may be some problems from Mrs. Davis.

No question about that from the report.

But at another point in the nursing statement, it indicates that Mrs. Davis might not be licensed as a licensed practical nurse.

And what has happened since this -- her application, she has been re-licensed by the state as a licensed practical nurse.

And at the end of course the nursing director for the state said that they could not predict the eligibility because the eligibility would be determined on how she does in the clinical program.

We have also demonstrated in amicus briefs that there are a number of areas where hearing impaired and handicapped citizens perform safely and effectively in the medical community, functioning in hospitals as hearing-impaired people.

Justice William H. Rehnquist: But when you say you have demonstrated something in amicus briefs, I thought the place you usually demonstrate something in a lawsuit is in the record before the trial court?

Mr. Charmatz: What I meant to say was that it is obvious that hearing-impaired people can perform in hospital situations.

Justice William H. Rehnquist: Well --

Chief Justice Warren E. Burger: Well if it's one thing to perform, even a deaf-mute might perform in the laboratory carrying out laboratory tests where there's no contact with patients.

Do you acknowledge that there is that difference and availability?

Mr. Charmatz: Well, the question is that Mrs. Davis has performed as a licensed practical nurse where she is in contact with patients.

Justice Harry A. Blackmun: What about the operating room?

Mr. Charmatz: The operating room?

Again, we have to look at it in terms of the clinical aspect of the program and to determine whether or not the clinical aspect can be accommodated.

The indication is, and again we have to see what hearing-impaired people are doing is that they are performing in the operating room, because they've received from their clinical instruction they've received training, they've received evaluation, and they received supervision.

And this is an --

Justice Harry A. Blackmun: Are you answering my question?

Now, Mr. Justice Marshall brought out the fact that she can perform with her hearing aid and so long as she is in the position to read lips.

In the operating room, the operating surgeons wear masks.

Mr. Charmatz: The question of whether or not she can perform in the operating room may be premature that we first have to see how she would perform in the clinical setting.

The question also is what accommodations might be made to enable her to perform in --

Justice Harry A. Blackmun: What do you mean by the clinical setting?

Are you excluding the operating room from the clinical setting?

Mr. Charmatz: No.

We have to -- I think it has to be identified what are the essential parts of the clinical program, which has not yet been done here, and which would be proper on vacating and remanding.

Justice Harry A. Blackmun: Well, is there any registered nurse program that does not take the candidates into the operating room?

Mr. Charmatz: Not that I know of.

Justice Harry A. Blackmun: No.

Justice William H. Rehnquist: Well then, isn't you are the plaintiff in this case, isn't the burden on you?

And in at the trial stage to demonstrate what you're talking about now will be demonstrated on remand?

Mr. Charmatz: The question is though, the problem was that the college refused to make any modification and that was their position.

And the District Court accepted that the college refused to make any modification.

Justice Potter Stewart: But where in Section 504 is there imposed any duty to make any modifications?

Mr. Charmatz: In the statute doesn't say.

Justice Potter Stewart: That's what I'm asking about the statute.

Mr. Charmatz: In the statute, it does not say.

Justice Potter Stewart: Well, that's what --

Mr. Charmatz: In the legislative history to Section 504 in the same legislative history of the same Congress that enacted Section 504, the committee reports indicate that Section 504 is meant to have a requirement of affirmative relief.

Justice Potter Stewart: But there is no such requirement in the language of the statute, is there?

Mr. Charmatz: In the language of the statute, no.

But with the legislative history and also the HEW regulation which has gone through congressional oversight hearings and again the 1978 amendments there are no --

Chief Justice Warren E. Burger: But before we turn to the legislative history, we must be confronted with the statute that's ambiguous.

Do you suggest 504 is ambiguous on this aspect?

Mr. Charmatz: We suggest that it is a broadly-worded statute that is similar to Title 6 and to Title 9, and in the --

Chief Justice Warren E. Burger: Is it clearly worded?

Mr. Charmatz: We think in terms of an otherwise qualified individual, it is one that HEW found required a number of different definitions, because of the different program activities.

But the purpose of Section 504 is to avoid the exclusion to make modifications that's found by HEW, that's found in the Senate -- Senate Reports to Section 504.

The legislative history is that handicapped people can not be excluded on the basis of stereotypes and can not be excluded because of failures to make modifications.

And in particular, one Senate Report states “Special attention must be paid to the needs of those individuals who through no fault of their own have not received adequate education.

These individuals, young adults and adults alike must be afforded the equal opportunity and access to higher educational services.”

The committee as we at the present time most of these avenues have not been available to people with handicaps.

Justice Lewis F. Powell: Mr. Charmatz, on the question of the clinical program that Mr. Justice Blackmun was asking about, the District Court found that from the evidence presented at trial appears to be difficult and in fact dangerous for plaintiff to even attempt the clinical portion of the training program.

Do you challenge that finding?

Mr. Charmatz: We think that the District Court asked the wrong questions.

That the one --

Justice Lewis F. Powell: Do you challenge that finding?

Mr. Charmatz: We can't say that it's -- we do not allege that the findings are clearly erroneous.

But we think that asked the wrong questions, one in accommodation and two, certainly consideration of whether Mrs. Davis as a licensed practical nurse should enter into the picture.

Here a woman could --

Justice Lewis F. Powell: Of course at the time of the District Court decision, was there a regulation that raised this question with the District Court?

Mr. Charmatz: The HEW regulation was promulgated in June of 1977.

And the District Court hearing was in October of 1976.

Justice Lewis F. Powell: So the District Court at that time didn't ask the wrong question what you are in effect arguing that later regulations raised a question that they should've anticipated, the District Court judge should've anticipated.

Mr. Charmatz: That and also that from the legislative history it seems that you should also consider accommodation questions which were not asked by the District Court.

The Fourth Circuit's decision, a very narrow one, started on statutory grounds rather than constitutional grounds recognizes that a prejudgment on solely on disability is incorrect.

And first, the Fourth Circuit is saying “Look at the admission standards, the academic standards to see if they can be considered so that we do not screen out handicapped individuals.”

If the decision is in the affirmative, then we have to look to see if there are program modifications that can be made.

If the person does not meet the academic standards, well the person will not be admitted.

If the person -- if there is no program modification to be made, then the person may not be admitted.

But the point is that we have to at least consider those, and in this case that was not done.

I think this approach is it consisted with Section 504, its legislative history, and consistent with the HEW regulation?

The college position as found by the Fourth Circuit was no modification.

They didn't consider that issue and the Fourth Circuit suggested that they give close attention on remand to it.

At that point they would also -- should be consideration of the academic standards which were not considered at all in this case.

I think even the amicus, the American Association of Medical Colleges, recognizes that the sole focus on disability conducted by the college and conducted by the District Court was inappropriate, because the District Court did not consider the issue of accommodation, and because the District Court did not consider the academic standards in this case.

There's no indication and in fact I think the record reveals that an evaluation of whether Mrs. Davis was a licensed practical nurse did not enter into the evaluation in this case.

In addition, it would seem that Mrs. Davis as a person who is licensed for now 12 years, may be an ideal candidate to be able to participate in a registered nurse program.

Justice William H. Rehnquist: Didn't the District Court find that LPNs perform their services only under the supervision of someone with superior medical training in the immediate supervision?

Mr. Charmatz: I think that's correct that they do perform their training under the supervision of a registered nurse.

In fact, there's a North Carolina statute which defines the duties of a licensed practical nurse and defines the duties of a registered nurse.

And certainly, the duties of a licensed practical nurse include patient care.

There's a degree in responsibility and supervision which is really the key difference between a registered nurse and a licensed practical nurse.

Justice Byron R. White: Well could I ask, what do you think the Court of Appeals meant when it said “We vacate and remand that portion of the District Court judgment which has not been affirmed here and hold that the college must reconsider plaintiff's application for admission to the nursing program without regard to her hearing disability.”

Mr. Charmatz: I think --

Justice Byron R. White: Now that means that you put that aside entirely.

Mr. Charmatz: I think --

Justice Byron R. White: And that isn't the way I understand your argument.

Mr. Charmatz: I think it means that you look at the academic standards first.

Justice Byron R. White: Yes.

Mr. Charmatz: And you see if the person meets the academic standards without regard to disability.

Justice Byron R. White: And then you look at the technical.

Mr. Charmatz: And then you look at the technical or actual program.

And then you see whether or not the program can be accommodated.

Justice Byron R. White: Well, that isn't what this -- you don't suggest then that the Court of Appeals, if the Court of Appeals meant to say that if the -- if this person satisfies the academic and technical requirements, she is automatically admitted to the program.

Mr. Charmatz: No.

Justice Byron R. White: Well that is -- if that's what the Court of Appeals meant, you think it was wrong?

Mr. Charmatz: Well I don't think the Court of Appeals meant that --

Justice Potter Stewart: Well, unless one includes in technical requirements the physical requirements.

Mr. Charmatz: That's correct.

Justice Byron R. White: Well, what do you think it meant by technical?

Mr. Charmatz: I think it meant by technical work experience --

Justice Byron R. White: You don't think it meant hearing, it didn't?

Mr. Charmatz: No.

Justice Byron R. White: No, it couldn't have or you would be out of court now.

Mr. Charmatz: That's right.

Justice Byron R. White: Yes, exactly.

Mr. Charmatz: We think that that is the appropriate consideration.

Justice Potter Stewart: Well except the HEW regulations, I think you correct me if I'm mistaken, define technical as nonacademic, isn't that correct?

Mr. Charmatz: That's correct.

Justice Potter Stewart: So that mean -- that would include physical wouldn't it?

Mr. Charmatz: Well, we think that that should be construed in terms of the accommodation.

It would be silly for example to have a lawyer --

Justice Potter Stewart: Well it'd be helpful if -- I know you think it can be construed this, that way or the other, but if technical means everything except academic, it would include physical wouldn't it?

Mr. Charmatz: If it means everything?

Yes.

Justice Byron R. White: In which event the HEW construction would be right in your teeth.

Mr. Charmatz: Except that when we look at the technical, we have to look to see if there can be accommodations.

Justice Byron R. White: Well, at least I gather you can see then that there wouldn't be automatic admission just because academic and requirements were satisfied, and the technical requirements as you understand were satisfied?

Mr. Charmatz: Right, there would not be an automatic admission.

I do not think the Fourth Circuit opinion reads that all handicapped people must be admitted into programs.

Justice Byron R. White: Do you agree that HEW construes qualified in otherwise qualified to be exactly the same?

Mr. Charmatz: I think they do.

I think they indicate that they do.

Justice Byron R. White: Well isn't that -- that is not the way you read otherwise qualified, is it?

Mr. Charmatz: Well, we read otherwise qualified or qualified handicapped person to be one that can perform the academic and technical standards.

Justice Potter Stewart: Despite his handicap, his or her handicap?

Mr. Charmatz: Not despite his handicap, --

Justice Potter Stewart: Well, certainly the statute doesn't mean that he could do it except for his handicap, his or her handicap.

It couldn't mean that.

Mr. Charmatz: It doesn't.

It does not mean the blind bus driver.

Justice Potter Stewart: No?

Mr. Charmatz: No.

Justice Potter Stewart: So it must mean something else?

Mr. Charmatz: It may -- that does not mean the blind bus driver.

Justice Potter Stewart: Right.

Justice Lewis F. Powell: It means, if I understand you, that it's qualified to perform the technical requirements if the technical requirements were somewhat different?

Justice Potter Stewart: I'm sorry?

Justice Lewis F. Powell: It means that he has to be able to perform the technical aspects of the program if they were somewhat different than they are.

That's what it means under your view as I understand it.

Mr. Charmatz: I believe so, yes.

Justice John Paul Stevens: If the respondent had been totally deaf, just stone-deaf, would you make the same argument?

Mr. Charmatz: I think that we would.

Justice John Paul Stevens: What level of handicap would cause you to conclude that 504 was inapplicable.

Mr. Charmatz: I think --

Justice John Paul Stevens: Suppose it was an individual who lost both hands, sight and capacity to hear?

Mr. Charmatz: Well the question -- the initial question would be whether or not he meets the academic requirements.

And the second question would be whether or not there can be any accommodation to him.

I would doubt seriously that there could be accommodation in that situation and therefore the person would not be admitted.

Just as the way we look at the blind bus driver, whether he could perform the essential functions of a job as blind bus driver is the initial question.

I wouldn't think he could.

And the second question is whether there'd be an accommodation, and again I don't think he could.

The conclusion that we draw in this case is that the college in this instance was blind to the ability of handicapped people to perform such as Mrs. Davis, and to contribute meaningfully to society.

Justice Byron R. White: Well suppose it were concluded on remand that the -- this lady could not perform at all in the operating room that it would be just -- we're trying to see if there can be an accommodation between the demands of the operating room and being deaf to this degree.

And the answer is no, there can't be any accommodation.

But all that means is that she shouldn't be performing in an operating room.

Would you suggest that she nevertheless should be in the training program because she can perform in every other context?

Mr. Charmatz: I think we are.

I mean I don't think we have to reach that issue here --

Justice Potter Stewart: Even though a part of the training program is operating room procedures?

Mr. Charmatz: I think we are -- I think that if that were the case, we would say that there are many opportunities available to handicapped citizens and as registered nurses, and they should be able to participate.

I don't think --

Chief Justice Warren E. Burger: One of them being laboratory technicians for which she could qualify.

Mr. Charmatz: That's correct, or the doctor's office or a private duty nursing or a number of other settings.

Chief Justice Warren E. Burger: But isn't this program entitled to make the decision on the basis of adaptability for any one of these activities?

Mr. Charmatz: Well, again I think that that's correct.

They have to check on the adaptability of these activities.

Chief Justice Warren E. Burger: Well then I thought you conceded she was not adaptable for operating room performance?

Mr. Charmatz: I don't think we concede that point.

I think that given the testimony or given the evidence of the Director of Southeastern Community Hospital and given the examples that are in the amicus of people who are severely hearing impaired performing in the operating room that we have -- that the question is open.

Justice Thurgood Marshall: How about my brother Rehnquist?

How much of this evidence in amicus briefs are we obliged to use?

And I say evidence, or are we restricted to the record?

Mr. Charmatz: I think that you're not obliged to --

Justice Thurgood Marshall: Well, then go to my second point we are restricted to the record?

Mr. Charmatz: I think that since the District Court asked the wrong questions that the matter should be vacated or remanded.

I think you may be restricted to the record, but in so far as the record indicates that the questions that the District Court asked and that the college asked were incorrect.

I think that is the basis of the Fourth Circuit decision.

Justice William H. Rehnquist: But you have the burden of proof, I mean it's up to you to persuade the District Court to ask the right questions and introduce the evidence that's necessary to support your claim under the law as it's properly applied.

Mr. Charmatz: We have the burden of proof, but we -- but when the both the college and the District Court would not consider modifications there was for Mrs. Davis, the only efforts is what she did.

She tried her best she could to give the information about here abilities and as an LPN from the information from the hospital that she worked at.

Justice John Paul Stevens: Mr. Charmatz, I'm still somewhat concerned about the posture of the district judge when he tried the case and what your contentions were there.

Did you take the position in the District Court that the hospital had a duty or the program had a duty to engage in affirmative action that would change the technical aspects of the program?

I don't read this pretrial order as describing your contentions in that way.

Mr. Charmatz: I think that the inquiry and testimony was whether or not with adequate supervision Mrs. Davis could perform the duties in the clinical program.

Justice John Paul Stevens: Could complete the educational program offered by the college.

Mr. Charmatz: That's correct.

Justice John Paul Stevens: And the District Court found that she could not because there would be dangerous situations.

Mr. Charmatz: But the District Court found --

Justice John Paul Stevens: Asked the wrong questions but you didn't tell it to ask any other questions.

That's my problem.

Mr. Charmatz: But the District Court, again has said that as far as accommodations were concerned, even a supervision was concerned they weren't going to consider it.

And that was the problem of the college.

The college said “Well was that a good supervision, maybe Mrs. Davis can perform but we're not going to make adequate supervision.

We're not going to do that.”

Justice Byron R. White: I take it the Court of Appeals thought the issue was properly in the case?

Mr. Charmatz: That's correct.

Justice Byron R. White: At least you -- the way you read the Court of Appeals.

The Court of Appeals thought the issue was here.

Mr. Charmatz: That's correct.

And I want to speak just briefly on private right of action, because it was addressed by the Court.

The amendments referred to indicate in any action or proceeding to enforce or charge a violation of a provision of Title 5, the court may allow attorney's fees to enforce or charge a violation.

In addition, the committee reports indicate that the committee believes that handicapped individuals under Title 5 are and will remain in need of vigilance by handicapped individuals to assure compliance and the availability of attorney's fee should assist in vindicating private rights of action.

The Senate Committee Report in 1974 indicated that there was private right of action.

The amendments did not take that private right of action the way in fact by having attorney's fees and by additional legislative language, by the Senate Committee comments, from Senator Cranston, the floor leader; all indicate that there is a private right of action.

Justice William H. Rehnquist: Well, where do you say the private right of action was originally created that was then not taken away?

Mr. Charmatz: Initially in the Senate Committee Report in 1974.

Justice William H. Rehnquist: Well, committee reports don't create causes of action, its laws though, isn't it?

Mr. Charmatz: That's correct.

Justice William H. Rehnquist: And where --

Mr. Charmatz: But in so far as the indication of Congress that they considered that a private right of action was necessary to vindicate the rights of handicapped individuals --

Chief Justice Warren E. Burger: Some members of Congress --

Justice William H. Rehnquist: Some members, yes.

Chief Justice Warren E. Burger: Well, if it speaks through its statutes not through its reports.

Justice Potter Stewart: But you concede that if there is a private right of action, as you contend there is, it is an implied one it's not an explicit one.

Mr. Charmatz: That's correct.

Justice William H. Rehnquist: I know that you cite --

Justice Potter Stewart: Everybody agrees it's not explicitly in the statute.

Mr. Charmatz: That's correct.

Justice William H. Rehnquist: You cite Borak versus J.I. case in your brief, do you think that case is still good law, after Amtrak and Cort and Barbour?

Mr. Charmatz: Well we think that for the purposes of this case, that for Section 504 that the private right of action can -- should be implied.

Justice William H. Rehnquist: You don't feel you have to rely on Borak?

Mr. Charmatz: No.

Thank you.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.