School Bd. Of Nassau County v. Arline - Oral Argument

Argument of Brian T. Hayes

Chief Justice Rehnquist: We will hear arguments first this morning in No. 85-1277, the School Board of Nassau County, Florida versus Gene H. Arline.

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

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

Today this Court considers whether the contagious, infectious disease of tuberculosis is a handicap under the Rehabilitation Act of 1973.

Additionally, a second question is presented as to one so infected is otherwise qualified.

Because of the split argument with the Solicitor General, I will address the facts and point two; the Solicitor General will address his remarks to point one in the brief.

The facts, we submit, in this case are extremely significant.

And the nondisputed facts are as follows.

In 1977 Gene Arline was a tenured teacher with the Nassau County School system, teaching in the South Side Elementary School.

The School Board had no knowledge... none... that she had in fact suffered from TB since age 14.

In 1977 she had a relapse, that is, she became infectious, had a positive culture.

She was suspended briefly.

In 19... in the spring of 1978, she again suffered a relapse, and at that time, Mr. Marsh, the superintendent, was contacted by the State Health Department, the local unit there in Fernandina Beach, which is in Nassau County.

And they, that is, the State Health Department, recommended that this teacher is an unacceptable risk; please take her out of the classroom.

She was not dismissed.

She was removed with pay for the balance of the 1978 year; that is, it was in May, so there was only perhaps a month to go.

The next fall, in November, she again tested positively, making the third positive test within an 18-month period.

At this point, once again... now Dr. McEuen enters the case, Dr. McEuen being a superior to Dr. Lund.

And Dr. McEuen, who was assistant director for the State Tuberculosis Center, came to the school board, initiated the process, and said to Mr. Marsh: This woman poses an unacceptable risk.

She was again suspended with pay.

And in the spring, late spring of 1979, the school board conducted the administrative procedure to commence her dismissal.

This procedure was eventually affirmed by the state court, the First District Court of Appeals in Florida.

In 1982 she filed her complaint in the District Court in Jacksonville, and a trial was set, alleging for the first time, of course, that she was discriminated against because of her handicap.

There was actually two counts in the complaint, but the only count we're concerned with is count one.

Unknown Speaker: Mr. Hayes?

Mr. Hayes: Yes.

Unknown Speaker: Was she at any time hospitalized?

Mr. Hayes: In 19... our... the transcript of testimony indicates that in 1957 she was hospitalized.

Unknown Speaker: I mean, during this period.

Mr. Hayes: No, during this... well, yes--

Unknown Speaker: Well, aren't infectious people hospitalized in Florida usually?

Mr. Hayes: --They are oftentimes, Justice Marshall.

Unknown Speaker: Compulsory, if necessary?

Mr. Hayes: Yes, that's correct.

Unknown Speaker: Why wasn't it done in this case?

Mr. Hayes: It was not in this case, as we understand, largely because through Dr. McEuen's testimony, that it's no longer necessary with the new drugs since 1950.

They can give heavy doses of this medication, which can immediately reduce, or have an effect to attempt to reduce, the infectiousness.

Unknown Speaker: That's uncontradicted?

Mr. Hayes: That's uncontradicted, that she was not... now, she was hospitalized, she testified at page 77 of the transcript in the trial, about her being hospitalized at age 14, at Sunland Center in Tallahassee.

She she had a history of being hospitalized, although we didn't know it.

In any event, as I was indicating, after the... the trial court in this case then went on and found, in an alternative type judgment, he found first of all that tuberculosis such as she suffered, and those are his words, and I'm quoting, it's the court's opinion that an infectious disease such as the plaintiff in this case had does not qualify as a handicap.

But then he went on to say, if it does, assuming, arguendo, that it does, then the court must consider whether she's otherwise qualified.

This goes into our second point.

If she's not otherwise qualified, she has not met her burden.

The burden is clear in a handicap discrimination case, or in a case under the rehabilitation act.

As Justice Marshall said, as recently as Choate v. Alexander, the plaintiff must establish that she has a qualifying handicap.

She must establish that she is otherwise qualified.

She must establish, if she's alleging discrimination, that she was discriminated solely because of her handicap.

Now, if she fails in any of those particulars, the case is not made out.

This Court has stated in Southeastern Community College v. Davis, which is the benchmark case on "otherwise qualified", that simply means that with the handicap, or notwithstanding the handicap, he or she can meet all the of the requisite requirements, the legitimate requirements, of the job.

We suggest on point two that an infectious disease, where a doctor... and this is not a doctor employed by the school board; this is the state health professional... where that doctor says, Nassau County School Board and Mr. Marsh, don't put this teacher in a classroom with young children, for two reasons.

First of all, they're highly susceptible, and number two, it's an enclosed, confined room.

And TB, as we know... TB may be unique.

I'm not a medical expert, but we know it's communicated by breathing, by sneezing, by coughing.

So it's our position on point two that how can she be qualified as an elementary school teacher when she can't get down over Johnny's desk and help him with his penmanship and arithmetic without breathing, and thus creating a risk.

But this isn't our opinion.

This is an opinion of a state health professional.

So as a matter of law, we suggest, the record amply supports the trial judge's finding that if it's not a handicap, then she's not otherwise qualified.

Unknown Speaker: Did the school board consider whether she would be qualified to teach in the high school?

Mr. Hayes: Yes.

As the testimony of Superintendent Marsh says in this case, that she did not have a certificate.

In our reply brief, we've addressed that, Justice Powell.

She was certified K through... K through 6, which is the basic elementary certification.

That's our next question under otherwise qualified.

Could we have accommodated her... that's the next inquiry... by letting her teach high school?

Well, there's two factors there.

Number one, she wasn't certified to teach high school.

Unknown Speaker: She did not have a certification to teach beyond the elementary level?

Mr. Hayes: Absolutely, and she did not seek to get it.

On page 77 of the transcript, I asked her at the trial... this is not in the Joint Appendix... on a full page, Mrs. Arline, did you consider during the intervening four years going and taking the nine or twelve hours in French or... whatever you need?

She said she did not.

But that's only the first part of that question.

We would have a different inquiry, and it's not before the Court, had she been certified.

And then we'd be faced with Dr. McEuen's testimony that the risk is real as to all persons, but it's certainly an unacceptable risk as to elementary school teachers.

So in a way, we have not reached that question of, had she been certified because she has not.

We simply suggest that the regulation is quite clear, under the duty to accommodate.

There have been no cases of this Court... there have been some lower court cases... but in referring to the duty to accommodate, the regulations specifically refer, and I'm talking about 45, the code of Federal regulations, 84.4 KL.

And it says: The duty to accommodate a handicapped person, who with reasonable accommodation can perform the essential functions of the job in question.

Now the job in question, we suggest, is an elementary school teacher, in an elementary school setting.

So it's our position, therefore, that she is not otherwise qualified for the position.

Unknown Speaker: Mr. Hayes?

Mr. Hayes: Yes, sir, Justice Scalia.

Unknown Speaker: On your point that she is not a handicapped individual, you're not merely arguing that she was discriminated against by reason of her handicap, but you're also asserting that she is not a handicapped individual.

Mr. Hayes: Yes, sir.

Unknown Speaker: Yet you say that she has been, by reason of a disability produced by the tuberculosis, hospitalized on several occasions.

Mr. Hayes: In... the evidence was, and the Solicitor General will speak to that extensively, sometime in the past, in 1957, which we didn't know about, as it turns out, until the trial... so that goes to the question of solely by reason of: did we use that as a basis.

Unknown Speaker: Okay, but I'm not concerned about "solely by reason of" right now.

Mr. Hayes: Okay.

Unknown Speaker: I'm concerned about whether she's handicapped.

Mr. Hayes: Well, that goes to the question, the definitions of impaired.

If a person was hospitalized sometime in the past, and then we get into the question of whether or not she had a--

Unknown Speaker: Had a record of such impairment.

Mr. Hayes: --That's correct.

Or a record of such impairment.

Unknown Speaker: Well, now, what does it take to establish a record of such impairment, beyond being in the hospital?

Mr. Hayes: Well, the impairment... the question there would be whether or not the impairment related to the contagiousness, or to the disease of tuberculosis.

We think that's a difference.

And Mr. Fried will--

Unknown Speaker: Well, that goes to whether she was dismissed because of it.

It doesn't go to whether she was a handicapped individual or not.

Mr. Hayes: --Well, there is a question... there's no question in the record that as a child she was hospitalized for this disease.

And that's undisputed.

It's also in the record--

Unknown Speaker: So you have to say she was a handicapped individual, don't you?

Mr. Hayes: --We... we... as the trial judge--

Unknown Speaker: Or else you tell me what else that phrase, has a record of such... right now she wasn't impaired.

She was teaching, she was doing fine.

Mr. Hayes: --That's correct.

Unknown Speaker: But she had a record of being so debilitated by tuberculosis that she had to be hospitalized.

Mr. Hayes: Correct.

Unknown Speaker: Now, what does that language mean if it doesn't cover that?

Mr. Hayes: We would, at this time, at least for point two, suggest that we would accept, as the trial judge did, that if she was indeed... if she was indeed impaired or had a record of such impairment by hospitalization, for the purposes of point two, we suggest it's not important, because she would be not otherwise qualified.

Mr. Fried will now address the Court on that issue.

Thank you.

Argument of Charles Fried

Chief Justice Rehnquist: Thank you, Mr. Hayes.

General Fried.

Mr. Fried: Thank you, Mr. Chief Justice, and may it please the Court:

The United States is concerned that handicapped persons get the full measure of protection intended for them by Congress in enacting and amending Section 504.

There is also concern that Section 504 be kept within manageable bounds.

And that means that it not be invoked to deal with all manner of social problems which were no in Congress' mind when it enacted that statute.

In particular, we think it is important that Congress had no intention to displace the web of local, state, and Federal responses to the very different and the very difficult problem of contagiousness and epidemic.

That problem, and that difficulty, is well illustrated by this case.

In this case, the school board, acting at the instance, indeed, at the insistence, of county, state... county and state health authorities, removed from a third grade classroom the respondent, Ms. Arline.

Having complied with these state directives, the school board now faces a suit under Section 504 for handicapped discrimination.

We maintain that this cannot be what Congress had in mind when it passed Section 504 and amended it.

When Congress amended Section 504 in 1974, it extended the coverage to cover not only persons who are presently handicapped, but persons who have a record of handicap, and also persons who are believed to be handicapped.

Further, Congress expanded the definition of handicapped to include any, quotes, impairment which substantially limits one or more major life activities.

But in the original enactment, as well as in the amendment, one feature remained constant: that to come within the statute at all, to count as handicapped discrimination or exclusion at all, the exclusion must be, quotes, solely by reason of handicap.

And this phrase is what keeps the statute within manageable bounds.

This phrase is what keeps it from covering exclusion on all manner of other kinds of grounds, good or bad.

And it's this phrase which demonstrates why respondent's suit was properly dismissed in the trial court.

Unknown Speaker: Mr. Fried, what is the handicap of someone who's diseased?

Is it the disease, or is it the manifestations of the disease, or what?

Mr. Fried: The statute couldn't be clearer, Justice O'Connor.

The handicap is defined as any impairment which substantially limits one or more major life activities.

Unknown Speaker: Is employment a major life activity?

Or association with other people?

Mr. Fried: Those are all major life activities.

But it would be to argue in a circle to say that if one is excluded, for instance, by reason of contagiousness, from associating with others, then that exclusion constitutes an impairment, when the question you're asking is, whether the exclusion itself is by reason of handicap.

That's a totally circular argument which lifts itself by its bootstraps.

The impairment has got to be in respect to an activity which is defined and considered apart from the exclusionary action which is the subject of the lawsuit, of the complaint.

Now, contagiousness and handicap are obvious different things.

Some people are contagious without being handicapped; others are handicapped without being contagious.

They often go together; but not always.

Other characteristics, as well, may often go together with handicapped.

For instance, age; occupation; poverty; lifestyle.

Exclusion on the basis of any of these was not intended by Congress to count as exclusion solely by reason of handicap.

In this case, nothing could be clearer than that the exclusion which took place was solely on the basis of contagion.

The school board did not know that there was any impairment in Ms. Arline whatsoever.

They had no reason to think that she had... was unable to perform her duties; there was no absenteeism; there was no deficiency in her work.

The first they heard of this matter was when they were contacted by the local health authorities and told--

Unknown Speaker: Mr. General, how do you respond to Justice Scalia's question?

How about her record of hospitalization?

Mr. Fried: --Well, she's plainly a handicapped person.

Unknown Speaker: Oh, you do--

Mr. Fried: Oh, plainly a handicapped person; no question of that.

The point that we insist on is that the exclusion can't possibly be viewed as having been solely by reason of handicap.

Indeed, it wasn't by reason of handicap at all.

Unknown Speaker: --Well, Mister--

--If you had... if you had removed the handicaps, she wouldn't have been excluded.

If there had been no history of tuberculosis, she would have still had her job, wouldn't she?

Mr. Fried: Oh, indeed not.

Indeed not.

Because, so long as she was contagious... and it's quite clear that it's possible--

Unknown Speaker: She wouldn't be contagious if she didn't have tuberculosis.

Mr. Fried: --Oh, yes.

But you can have a contagious... you can be in a contagious condition with tuberculosis, and if not tuberculosis, with a number of other diseases, without being in the least bit impaired.

Indeed, the American Medical Association, at page 6 of their brief, recognizes the phenomenon of the asymptomatic carrier, that is to say, the person who is infectious, who can spread the disease to others, but is in now way impaired himself.

And in that case, if the action is taken on the basis of that contagiousness, the fact that the person is or is not handicapped is simply irrelevant to the lawsuit under Section 504.

So if Ms. Arline had been an immune carrier, a sort of a medical phenomenon which is well recognized, and she had been removed because she was an immune carrier, a Typhoid Mary, as it were, that would plainly not be exclusion on the grounds of handicap.

It would be exclusion on the grounds of contagiousness.

The fact that she was also a handicapped person does not mean that the exclusion, which plainly was on the basis of the contagiousness, all of a sudden becomes exclusion on the basis of a handicap.

Unknown Speaker: And you would say... you would say that she would not have been a... the only reason you acknowledge that she's a handicapped person is because of the prior history of hospitalization.

And she had not been hospitalized and been functioning perfectly well, although she had tuberculosis, then you would say she was not a handicapped person?

Mr. Fried: So far as the record indicates, there is no other basis for concluding that she's handicapped.

But another basis might exist.

She may have had shortness of breath.

She may have had night sweats.

She may have had some of the other symptoms of tuberculosis.

But the school board knew nothing of this.

The school board did not act in response to any of this.

And therefore, whether she was handicapped or not was irrelevant to the school board's action, and should be irrelevant to this action.

Unknown Speaker: General Fried, wasn't she otherwise qualified, within the words of the statute?

Mr. Fried: We believe she was not, Justice Marshall.

Unknown Speaker: Why not?

Mr. Fried: She was not otherwise qualified, because a person who poses a risk--

Unknown Speaker: You did rehire her twice.

And you rehired her because she was no longer contagious.

Mr. Fried: --At the time she was terminated, she was contagious.

And she had been--

Unknown Speaker: But before that, she had taken time off, and had been rehired twice.

Mr. Fried: --I believe so, Justice Marshall, that's correct.

Unknown Speaker: Well, then, wasn't she otherwise qualified?

Mr. Fried: Not at the time her... not at the time she was excluded from the classroom.

Unknown Speaker: Why not?

Mr. Fried: At the time she was excluded from the classroom, she was in a contagious condition.

And a person in a--

Unknown Speaker: Well, wasn't she in a contagious condition that first time?

Mr. Fried: --Not to the knowledge of the school board.

Unknown Speaker: Well, I thought that your opponent said that twice she was released on full salary.

Mr. Fried: Oh, she was released on full--

Unknown Speaker: And why was she released?

3--

Mr. Fried: --She was released--

Unknown Speaker: --Because she was contagious.

Mr. Fried: --She was released from the classroom, Justice Marshall.

Unknown Speaker: Because she was contagious.

Mr. Fried: Yes, Your Honor.

Unknown Speaker: So she was otherwise qualified.

Mr. Fried: I don't believe so, Your Honor.

Unknown Speaker: Why not?

Mr. Fried: Because the exclusion was the exclusion from the classroom.

And she was--

Unknown Speaker: Well, what other reason was she excluded from the classroom?

Mr. Fried: --Because of her contagiousness.

No other reason.

Unknown Speaker: That's what I... well, that makes her otherwise qualified.

Or we're talking about something I don't understand.

Mr. Fried: Forgive me, I think I misunderstood.

She was qualified in other respects, except her contagiousness: quite correct.

That is so.

But in respect to her contagiousness, this was a properly disqualifying characteristic.

Unknown Speaker: Mr. Fried, suppose someone has an accident, is burned, and becomes hideously disfigured.

And the employer does not want to have anyone disfigured in the office and lets them go.

Now, the act just doesn't cover that.

Because the exclusion in your view is on the basis of the employer's dislike of the disfigurement.

Mr. Fried: I believe that is correct, Justice O'Connor.

The regulations appear to cover that case.

Unknown Speaker: Well, they do.

And so it's very hard to understand where your argument would take us with regard to irrational reasons for excluding handicapped people.

Mr. Fried: In regard to irrational reasons for excluded, handicapped reasons, I hope that our argument would say that those are not sufficient reasons, and they constitute discrimination.

But--

Unknown Speaker: Well, what about the person who's just disfigured as a result of a previous injury?

Mr. Fried: --In our view, that person is not handicapped because, to quote the statute, that person is not impaired in respect to a major life activity, except by virtue of the exclusion.

But that's that circular argument again.

Unknown Speaker: What do we do about the regulations, then?

Just ignore them, or what?

Mr. Fried: That particular phrase in the regulation, in our view, exceeds the purpose and the language of the statute, Your Honor.

Unknown Speaker: You don't even think it's a reasonable reading of the statute?

Mr. Fried: We think it's an incorrect reading of the statute.

It's an incorrect reading, which once again causes the statute to burst those manageable bounds, and to start dealing with a whole lot of other subjects which were not in Congress' contemplation at the time.

Unknown Speaker: Mr. Fried, what about a person who loses one arm.

I have a friend who's lost an arm and who's able to do everything I can do.

He can do every major life activity you can think of.

Is that person handicapped or not?

Mr. Fried: Such a person is... would clearly be considered handicapped.

Unknown Speaker: Why?

Mr. Fried: Because there are some life activities, if I may traverse the assumption--

Unknown Speaker: Some of these people do magnificent achievement, and are able to do things that everyone else can do.

But that... if they achieve the level of skill that the average person has, would they not cease to be handicapped?

Mr. Fried: --I don't believe so.

I think there would still be some activities which a one-armed person could not perform in the same way that a two-armed person could.

Unknown Speaker: Major life activities?

Mr. Fried: I believe so.

I believe so.

Unknown Speaker: But employment is not one of them?

Mr. Fried: Well, employment certainly is one of them.

But if the question is, are you able to carry out the employment?

Ms. Arline was able to carry out the employment but for the exclusion.

The only reason she couldn't teach third grade was that they wouldn't let her.

Now, that kind of inability surely can't be what the statute referred to, because that is your circular argument.

Unknown Speaker: Well, what if the parents of the children wouldn't let the children enter the classroom because they were afraid of contracting the disease?

Would that impair her ability to teach?

Mr. Fried: Well, that... it would certainly interfere with it.

But it would not impair her ability--

Unknown Speaker: You would have to have some pupils in order to be able to teach, I suppose.

Mr. Fried: --If I may, I'd wish to reserve the balance of the time for Mr. Hayes' rebuttal.

Unknown Speaker: Mr. Fried, may I inquire before you sit down about the last part of the section defining handicapped individual, which says someone, a person with an impairment, who is regarded as having an impairment is a handicapped person.

How broadly does that sweep, do you say?

Mr. Fried: That sweeps no more broadly than the term, impairment.

You have the definition of an impairment, and that is something that restricts you in a major life activity, your ability to perform a major life activity.

And if you are regarded--

Unknown Speaker: Or who is regarded as having such.

Mr. Fried: --Then you are regarded as not being able to engage in a major life activity.

So if the school board had thought that by reason of her tuberculosis Ms. Arline was unable to teach third graders... not that they wouldn't let her teach third graders, but that she was unable to do so... then she would be regarded as having--

Unknown Speaker: And you don't think that if the school board thought that one manifestation of tuberculosis was contagiousness, and because of the tuberculosis, which they regarded as her impairment, that that puts her under the act?

Mr. Fried: --No, I don't think so, Justice O'Connor, because tuberculosis is not the impairment.

The impairment is whatever prevents you, the very condition, the shortness of breath, the hospitalization, whatever, which prevents you from engaging in the activity.

The word, tuberculosis, is perfectly ambiguous.

It can cover the condition of being contagiousness without any impairment, or it can cover the impairment as well.

And I think we musn't get caught up in that ambiguity.

Argument of George K. Rahdert

Chief Justice Rehnquist: Thank you, General Fried.

We'll hear new from you, Mr. Rahdert.

Mr. Rahdert: Thank you.

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

Both issues presented on this case are narrowly drawn, and present the Court with the identical choice.

The petitioners, as they have framed the issue in their cert petition, would have this Court enact a per se rule which categorically excludes people with infectious, contagious tuberculosis from coverage under the Rehabilitation Act.

The second question--

Unknown Speaker: That's not quite true.

That's not quite true.

They couldn't be... they couldn't be dismissed by reason of their disability.

Mr. Rahdert: --Justice Scalia--

Unknown Speaker: As I understood both arguments, if the reason for the firing is that the person is not able to teach because they're ill now and then, or something of that sort, a person with tuberculosis would be covered, just as a person with any other disease that causes impairment would be covered.

What they're arguing is simply that dismissing that person because of the threat of contagion would not be covered.

That's quite different from saying that a person with tuberculosis is not covered at all, isn't it?

Mr. Rahdert: --Justice Scalia, if I can refer to the first question presented on review, which was presented in the cert petition of the school board: Whether the contagious, infectious disease of tuberculosis constitutes a handicap within the meaning of Section 504.

The issue that was initially briefed by the petitioners was a per se issue.

The petitioners analyzed legislative history to suggest that since contagious diseases were not specifically included, they are excluded from the coverage of the Act.

Unknown Speaker: Well, I think everybody agrees on the point, as you've... as you've just put it.

Unless that question means whether the contagiousness is covered by the handicapped act.

That's the only point that's being argued here.

Mr. Rahdert: The question as originally presented was a per se question.

If the petitioners are receding at the per se question, and we are looking at contagiousness, it is our contention that contagiousness goes to the second question presented, which is whether Mrs. Arline was qualified.

Essentially, the questions framed in this... in this appeal pose first the question of coverage, and second, the question of whether there is a remedy, whether Mrs. Arline is qualified.

We would argue that the contagiousness goes to the second question, is very properly part of the analysis of whether Mrs. Arline is qualified to remain as a teacher in the Nassau County School System, but it doesn't go to the question of coverage and whether she is excluded.

If that first issue has been conceded in oral argument, I think the focus should be on whether she is otherwise qualified.

Unknown Speaker: Well, Mr. Rahdert, on that first point for a moment, as I understand it, the Eleventh Circuit held that all people with tuberculosis are handicapped.

Do you support that holding of the Eleventh Circuit?

Mr. Rahdert: Justice O'Connor, as I read the Eleventh Circuit opinion, and I will concede that there are... there are some loose dicta preceding their actual holding... they are saying that someone who is afflicted with infectious, contagious tuberculosis, such as Mrs. Arline, can be covered because that--

Unknown Speaker: Well, let me phrase it another way.

Do you agree with me, then, that not all people with tuberculosis are handicapped?

Mr. Rahdert: --I certainly agree with that proposition.

And I would refer to the AMA brief.

Unknown Speaker: And if the Eleventh Circuit meant something broader than that, they were wrong.

Mr. Rahdert: If that's the reading of the Eleventh Circuit opinion, it certainly stands to be clarified.

Our position is that someone with infectious, contagious tuberculosis, certainly someone such as Mrs. Arline, who as the Eleventh Circuit observed, has a condition that fits neatly within all three categories of the definition of a handicapped person, should be considered covered, and should be allowed the analysis of the second issue, whether she's also qualified.

Whether her contagion prevents her from being qualified, and as the--

Unknown Speaker: Mr. Rahdert, maybe there's not as much agreement on the first question as I thought.

The question reads, whether the contagious, infectious disease of tuberculosis constitutes a handicap.

Now, does that ask whether it always constitutes a handicap, or whether it can ever constitute a handicap?

Mr. Rahdert: --I interpret it... and if you will read the petitioners' initial brief, the petitioner initially argues that it can never constitute a handicap, because Congress meant to exclude all contagious diseases from the coverage of 504.

What has happened is that I think the Justice Department position, their gloss on the rehabilitation act, takes an effect from the cause, contagion caused by tuberculosis; analyzes that in a vacuum, somehow segregated, separated from the underlying impairment, and argues that contagion alone, discrimination against contagion alone, and in their words, whether reasonable or not, constitutes discrimination that is not covered by the act.

We would suggest that contagion should be analyzed in terms of the qualified question.

If someone who has a contagious impairment can have medical management of that impairment and be qualified.

Justice O'Connor asked the question of preceding counsel whether irrational reasons could be reached under this contagion analysis.

And I quote page 23 of the Government's brief, suggesting that if the reasons... if the discrimination is focussed solely on contagion, whether reasonable or not, in the Government's language, that would elude coverage.

I know that the AID's memo has been lodged with the Court.

That is the genesis of the Government's position.

And in that document the Government has written, Section 504 simply does not reach decisions based on fear of contagion, whether reasonable or not.

That... Justice O'Connor asked where this question would carry us, this theory of justice would carry us.

And I submit, it would carry us to exactly that point, where irrational fear eludes the act.

And Mrs. Arline argues that that is completely contrary to the legislative history and intent.

Unknown Speaker: Suppose somebody, an employer, is superstitious, and thinks that left handed people are unlucky, and chooses not to hire left handed people.

Is that covered by the act?

Mr. Rahdert: As a matter of fact, left handedness has been ruled in the lower courts not to be a handicap.

Unknown Speaker: Now, that's pretty irrational, isn't it?

Mr. Rahdert: It's an irrational consideration, but it's not a consideration of a condition of impairment.

Unknown Speaker: Ah, that's exactly what's being argued here.

That the fact that it's irrational has nothing to do with whether it's covered by the act.

You can make some very irrational and unfair decisions as an employer, you would acknowledge, and not be covered by the act.

Mr. Rahdert: Justice Scalia, certainly the act does not reach all irrational decisions.

But we contend that irrational decisions which are related to an impairment, a handicapping condition such as tuberculosis, should and would be reached.

And the error in Justice's position is that it is taking a condition of an impairment, isolating that condition, and suggesting that discrimination can be addressed to that condition in the abstract.

We contend that a consideration of contagion necessarily is a consideration of the impairment of the... impairing conditions as defined.

Unknown Speaker: Mr. Rahdert, the Government, as I understand it, contends that the handicapped act, one way or the other, was not intended to reach what they describe as the web of local and state regulations governing communicable diseases.

Don't we have something of the same kind of question here that was involved in our Penhurst decision of a few years ago?

Congress grants money to state and local governments, and says, you take it on these conditions.

And then all of a sudden it turns out, ten years later, that maybe the conditions are construed far more broadly than the governments thought they were at the time they took the money.

Mr. Rahdert: I think the act is clear.

And as the Court has analyzed, I believe in the Choate case, that there is a quid pro quo; that the receipt of Federal monies requires some accommodation of the handicapped.

With respect to the web of state and local regulations of communicable diseases, we suggest that far from impairing that process, the question of whether Mrs. Arline or someone with tuberculosis is fact specific, those are medical facts which should be considered.

And it would be a very important part of the qualification issue.

Unknown Speaker: But does that bring each individual person who is perhaps quarantined in some way by the local governments, does that bring her into Federal court for a case-by-case determination under this act?

Mr. Rahdert: If there were discrimination, it would be subject to review in the courts.

If that person... if that person were handicapped as defined, they would have coverage under 504.

Unknown Speaker: Well, supposing someone had scarlet fever, if people still get scarlet fever anymore, and they're quarantined for three weeks or something like that.

When they have scarlet fever, are they handicapped?

Mr. Rahdert: Your Honor, that would depend on the medical facts pertaining to that impairment, whether it fits within the three-part criteria.

I don't know that much about scarlet fever.

Unknown Speaker: The mere fact that it's contagious would not cause it to be a handicap?

Mr. Rahdert: Contagion alone is not a self-defining, an automatic definition of handicapped.

A handicapped person is someone who has an impairment which substantially limits major life activities, such as working and breathing, under the regs.

Or whether that person has a history of such an impairment, or whether that person is regarded as having such an impairment.

So it would be a fact question in the first instance to determine coverage.

And no, not all contagiousness is a handicap.

But certainly--

Unknown Speaker: Well, if a discharge or termination is by reason of the contagion, which isn't itself a handicap, why... why is there coverage?

Mr. Rahdert: --Justice White, we suggest that a decision based on contagion is not going to be made abstractly, or isolated from the underlying impairment.

As in this case, with any medical analysis of contagion, assuming that decisions will be made on medical facts, there will be an evaluation of the medical history of the particular person, part two of the definition.

Each case depends on whether... what is in the minds.

If there are irrational assumptions being made, stereotypes--

Unknown Speaker: Well, I take it, if you find the person who has tuberculosis, but there's no... the person is just a carrier.

Let's assume there's no impairment--

Mr. Rahdert: --If I can--

Unknown Speaker: --but she's contagious, or he's contagious.

Mr. Rahdert: --If I can respond to that on the specifics of tuberculosis.

My understanding of tuberculosis, and it's detailed in the AMA and the American Public Health Association briefs, is that to be contagious, you must have pulmonary tuberculosis.

It has to be in and around the lungs.

You have to have an impairment.

Unknown Speaker: Yes.

But what is the impairment?

Mr. Rahdert: The impairment would be a respiratory system dysfunction, which is specifically defined under the regulations.

Unknown Speaker: So anyone who has... any contagious person who can transmit person, you say, is a handicapped person?

Mr. Rahdert: It's a serious impairment when it reaches the contagiousness stage.

There have been 15 million Americans who have been exposed to tuberculosis who have been infected by it and who are not active carriers.

I would draw a distinction between those people and the few who have pulmonary dysfunction as a result of tuberculosis.

Incidentally, pulmonary dysfunction is defined elsewhere in the Act, for other purposes, as a severe handicap, specifically.

Unknown Speaker: Well, what about a different disease where the person is not handicapped, not impaired, but is a carrier?

Mr. Rahdert: With respect to a different disease, it would depend on the medical facts of that disease, as well as how that person is regarded.

Unknown Speaker: Yes, assuming the person is not physically impaired.

Mr. Rahdert: It still is a fact question, first as to coverage, whether the person is regarded in some manner as being impaired.

It's a case-by-case question, simply one that doesn't admit to per se rules.

With respect to that hypothetical person, there would be a further question, which would be a medical fact question of whether that person is otherwise qualified; whether than condition would require some job modification or accommodation, or whether it could not be reasonably accommodated.

I would make the point that the AMA has made in their brief.

Contagion is simply not a monolithic concept.

It varies in degree.

Unknown Speaker: 0 xxx.

Mr. Rahdert: Justice White--

Unknown Speaker: Which I thought you said awhile ago.

Mr. Rahdert: --I would suggest that contagion itself is not a handicap, but the underlying impairment to which it is inextricably bound, could be a handicap.

Unknown Speaker: What's the impairment?

Is the impairment tuberculosis?

Mr. Rahdert: Yes, Your Honor.

Unknown Speaker: Why isn't the impairment the consequences of tuberculosis?

Mr. Rahdert: The impairment is defined in terms of--

Unknown Speaker: In other words, you have three things.

You have a disease, tuberculosis.

One consequence, impairment.

And another consequence, contagion.

And what the statute prohibits is dismissing a person or affecting a person because of the former consequence, impairment; and not because of the latter consequence, contagion.

I think that's what the other side is arguing here.

Now, why is that wrong?

Mr. Rahdert: --The point... I agree with you that impairment has consequences.

In fact, under part one of the definition, under the statute, the consequences are looked to to define whether it is a covered impairment, whether it substantially affects major life activities.

But are argument is that there is no such thing in the real world as discrimination, whether reasonable or not, based solely on contagion.

It's going to be based on... if it's based on any kind of a reasonable and factual analysis, it will be based on the medical history, which any doctor would take; and more importantly, the fearful response to contagion is a fearful response to the underlying impairment.

I would--

Unknown Speaker: Is the impairment due to the difficulty in breathing or to whatever other--

Mr. Rahdert: --Certainly.

Unknown Speaker: --physical difficulty there is?

No.

It's a response to tuberculosis.

Now, tuberculosis is the disease--

Mr. Rahdert: That's right.

Unknown Speaker: --which produces impairment and also produces contagion.

Now, you could be afraid of it or treat someone adversely because of it for either of those two reasons, either because of the impairment that it produces, or because of the contagion that it produces, couldn't you?

Mr. Rahdert: I would--

Unknown Speaker: And it can produce contagion without impairment, or impairment without contagion.

Mr. Rahdert: --I would submit that the impairment is tuberculosis.

And the fearful reaction to contagiousness is a fearful reaction to tuberculosis and what it can do; that we really have a very clear case of coverage when there's a severe case of tuberculosis as here.

Unknown Speaker: Well, what about if it's in remission?

Mr. Rahdert: If the tuberculosis were in remission and not contagiousness, coverage would depend on part two, which is history, and part three, how that person is regarded.

And that's very important.

Congress meant broad coverage in the instances of irrational fear, of stereotype, of assumption.

And so coverage would be defined by the act of discrimination of the act of assumption.

As Choate notes, very often... very often discrimination is not invidicus animus, but indifference, assumption; and the legislative history suggests discrimination is often based on stereotype and fear.

To allow contagion to be separated out and be the basis of discrimination would be to completely eviscerate the Act in its purpose of preventing stereotype discrimination.

Justice Marshall, in your opinion in Choate, you talked... you analyzed the Tennessee Medicare rules in that case in terms of whether they were facially neutral, or whether they had an exclusionary effect on the handicapped.

And you looked to whether they were based on criteria that were a test, judgment or trait... and the Court used the word trait... of handicapped to determine the propriety of the rules and whether they were violative of the Act.

Contagion is exactly the same question.

Contagion is a trait of the underlying impairment.

And we contend that there is no reality in the real world of someone acting irrationally but parsing it down so finely that it is directed to contagion in the abstract.

Unknown Speaker: Mr. Rahdert, do you intend to explain how someone who is actively contagious with an impairment of tuberculosis can be otherwise qualified to teach small children?

Mr. Rahdert: I intend to present that to the District Court, Justice O'Connor.

The question is a fact-bound question, as has been universally recognized.

If you look at the regulations on otherwise qualified, they deal in facts.

Medical facts are obviously the key issue in this particular case and in many handicapped cases.

And so--

Unknown Speaker: If someone is actively contagious with tuberculosis, how can that person be otherwise qualified to teach small children?

Mr. Rahdert: --We would not contend for a moment, Justice O'Connor, that an actively contagious person... tuberculosis sufferer should be in a classroom.

And I want to correct one misstatement of the record by the Solicitor General.

There was no record evidence in this case to indicate that at the time of termination she was contagious.

What happened in this case was, as soon as they found out about the recurrence, she was... she was put on leave and was discharged several months later through administrative proceedings.

At that time, there was no specific evaluation of her current condition.

The only evidence we have in this very sparse record concerning Mrs. Arline and her contagiousness was that at the time of trial she had been free of contagion for quite some time.

And the medical expert testified that she had not received reports of positive tests indicating current contagion since 1979.

Unknown Speaker: When was the trial?

Mr. Rahdert: The trial was in 1983.

Unknown Speaker: And when was Mrs. Arline discharged or suspended?

Mr. Rahdert: At the end of the school year, 1979, I believe.

Unknown Speaker: Well, do you think that's terribly relevant that she was found not contagious in 1983 when the question is whether it was a discriminatory discharge in 1979?

Mr. Rahdert: I think the relevant question would be, was her contagion revealed in I believe November of 1978 under control at the time that her future in her career as a teacher was being weighed and determined.

And we suggest that there should be accommodation that should be considered.

We suggest that in this case, on this record, it appears there was no consideration of accommodation during the termination process.

There was a judgment made--

Unknown Speaker: Well, do you think accommodation requires finding another job for the person?

Or doesn't it relate to the job the person has?

Mr. Rahdert: --I think accommodation primarily refers... and whether she's otherwise qualified, it's essentially the same question... refers to medical condition primarily.

With respect to other jobs, we're not suggesting that affirmative action, simply that evidently in this case, as the District Court seems to have found, there were job transfer options that were policies of this school.

And we merely ask that she be considered, just like a nonhandicapped person would be, for the usual and routine policies of the school board.

But our point on whether she is otherwise qualified is that if you look at the standards of this Court, in fact, which suggest, for example, in Choate, a balancing test; in Davis, locked at very detailed efforts to evaluate and see if the person could fit into the program and whether the program would be--

Unknown Speaker: Well, are you suggesting that one form of accommodation that the statute might require was that even if she were contagious, she could continue to teach elementary school children?

Mr. Rahdert: --Not at all.

Not at all.

If she were continuously contagious, I would conceded she's not otherwise qualified.

We're suggesting that tuberculosis is a condition that medical science has made great progress in, and as the AMA has pointed out, 95 percent of the cases of active contagion, pulmonary tuberculosis, can be rendered noncontagious within two weeks of proper chemotherapy.

That possibility certainly should be explored in Mrs. Arline's case, and was not.

But no, as a... a person actively contagious could not teach at that time.

Perhaps the school board's normal leave policies would allow an accommodation to return this woman to productive participation in her career, which is the underlying objective of the statute.

The question Justice O'Connor raised about cosmetic disfigurement is a very--

Unknown Speaker: Excuse me, before you go on, Mr. Rahdert, that fact-bound question would become a Federal question in every cases, if your argument's right, correct?

And all state health measures of quarantine or dismissal because of contagion would be in the Federal courts?

Mr. Rahdert: --Justice Scalia, I don't think it would be that severe, because if proper medical procedures were followed... we don't have a record of that precision in this case... I would suggest that following state health guidelines, as the state health guidelines are constituted would not in any manner constitute discrimination.

Unknown Speaker: Well, I can think of a lot of, you know, nice questions that can be raised about the remedies you suggest.

For example, you say, within two weeks of chemotherapy.

But how quickly can she be analyzed as having become contagious again and what not?

It would be necessary to do a test everyday or whatever.

I don't know what the answers are.

I don't care.

I'm just saying, it raises a lot of fact-bound issues which would all be dumped into the Federal courts.

Mr. Rahdert: Justice Scalia, the questions you raise, first of all, there are instantaneous testing methods for tuberculosis.

The frequency of those methods, those testings, would be established by disease control standards.

The Center for Disease Control, cited in the APHA brief, talks about getting people... treating tubercular patients on an individualized basis, getting them back into work as quickly as possible.

That's Florida law.

That's Arizona law.

So I would suggest as a practical matter, if the public health standards were followed, and followed consistently, there just simply wouldn't be a floodgate of litigation; that that would be an appropriate means of accommodating an impaired person.

We very much endorse a medical determination of Mrs. Arline; a medical determination of all tuberculosis patients.

And by extending coverage, and by allowing a remedy under this broad remedial Federal legislation, we would encourage exactly this process of not reacting to public sentiment; not reaction to parents; not reacting to members of the school system personnel, which occurred in this case and is part of the record; but evaluating specifically on medical considerations.

Unknown Speaker: Well, Mr. Rahdert, that is what was asserted to have happened here with the State public health officer, who said she wasn't... she shouldn't be allowed in the classroom.

Mr. Rahdert: Justice O'Connor, it's not clear on this record whether the state officer said, at this time; whether she said, this lady should be terminated completely for all times.

That simply... that analysis which should be done was not done; is not evident on the record.

Moreover, and more importantly, the District Court assumed, based on his... the Judge's assumption of Congressional intent, which is really not... to which no citations were given... that there was a per se exclusion.

And I think if the Court reads the District Court's opinion, it will read it to be a very broad exclusion of contagious people from the Act; and a further assumption that contagious people can never be... or people who have at some point a contagious impairment, can never be qualified.

So there were no findings of fact by the District Court of a sufficient nature to decide this highly fact-bound question.

And we contend that the Eleventh Circuit Judge Vance appropriate remanded, based on that kind of record, and based on a decision that went off much like an order on a motion to dismiss on erroneous legal points.

Justice O'Connor asks about cosmetic disfigurement.

That has been in the regs since 1977.

It is a clear example of discrimination, stereotyped, or in the government's terms, whether rational or not, a reaction to a condition of handicap.

And the reaction to the condition simply cannot be parsed out and separated and segregated from the reaction to the condition itself.

Justice described that, in their initial brief, as anomalous, and suggested that cosmetic disfigurement discrimination could come under the Act if there was a perceived or actual nexus to the impairment.

Unknown Speaker: What about just substantial ugliness?

I mean the person is not just disfigured, but just not a handsome person?

And an airline, let's say, you know, said we would prefer to hire good looking stewards and stewardesses.

We don't want any ugly people.

Now would that... if... if it is enough that people associate with you less readily, if that is enough to constitute a disability, why wouldn't... why wouldn't just homeliness be a disability?

Mr. Rahdert: The regulations answer that question in terms of... defining an impairment as a medical deficiency.

And so ugliness would not, but someone with facial burns who suffered an anatomical loss, would.

Unknown Speaker: Now how do you get that from the statute?

Mr. Rahdert: From the regulations, Your Honor.

Unknown Speaker: Well, where do the regulations get it from the statute?

Mr. Rahdert: The regulations get it from a substantial impairment of a major life activity, of--

Unknown Speaker: But if a major life activity is associating with other people, and people shun you because... I don't know why--

Mr. Rahdert: --It would have to be--

Unknown Speaker: --ugliness produced by burns is any different from people shunning you just because of run-of-the-mill homeliness.

Mr. Rahdert: --To just answer this question, it would be an impairment.

An impairment is the handicapping condition.

And impairment is not just not fitting the norm cosmetically, but having something physiologically go wrong in your life which, in turn, substantially limits major life activities.

I would suggest that cosmetic disfigurement from a cause such as a facial... severe facial burn would be such an impairment and have the limitation on life activities that ugliness would not.

Rebuttal of Brian T. Hayes

Chief Justice Rehnquist: Thank you, Mr. Rahdert.

Mr. Hayes, do you have something more?

You have five minutes remaining.

Mr. Hayes: Yes, sir, if I may, Mr. Chief Justice.

To answer some questions that were raised during direct, or the argument of the respondent, we would like to remind the Court on page 18 of our brief, we did make the statement, Justice Scalia, I'm quoting:

In short, it is evident that while certain of the individuals having tuberculosis may be obviously impaired by the disease, others may not.

We have not made a per se statement that everybody in the world who has tuberculosis will never be impaired.

I want to also go into some of the medical problems that have--

Unknown Speaker: What about the person in this case?

Mr. Hayes: --Well, this is a situation--

Unknown Speaker: Did this person have a handicap?

Mr. Hayes: --If she had a handicap, Justice White, it would only be on the basis of a past record--

Unknown Speaker: Well, then, you... I take it the Solicitor General said that this person was a handicapped person.

Mr. Hayes: --Yes.

Unknown Speaker: You don't agree with that?

Mr. Hayes: Yes.

We suggest--

Unknown Speaker: Yes what?

Mr. Hayes: --We suggest, Justice White, that she can be... for purposes of this argument, she can be considered handicapped, that is, get by the threshold question, so we can explore then the question of, solely by reason of, and the question of, otherwise qualified.

Unknown Speaker: I know she can be, but is she?

Mr. Hayes: No.

Unknown Speaker: Is she handicapped?

Mr. Hayes: I don't think, as a matter of fact, there's any record that she was impaired in any way.

She taught for 13 years.

There's no evidence that she missed a day of class.

Unknown Speaker: The statute doesn't require--

Mr. Hayes: I understand that.

Unknown Speaker: --It just requires that she have a record.

She was not able to teach for some period of time.

She was hospitalized, right?

Mr. Hayes: I concur, the petitioners concur 100 percent with the Solicitor General, who says, those regulations, to that extent--

Unknown Speaker: Why don't you give it away, Mr. Hayes?

She's handicapped, isn't she?

She had a record--

Mr. Hayes: --She had a record of handicap; there's no question about it, Justice Scalia.

But we want to address that, on the tuberculosis questions, the American Medical Association stated very clearly in their brief, they said the same thing essentially that we did, they said the disease of tuberculosis manifests itself through a variety of symptoms.

Some diseased people have no symptoms at all.

One of the real problems in this case... the actual question raised by Mr. Rahdert as to why the doctor recommended, I think Justice Marshall, that she be removed, not just suspended again and again and again, was this.

The question was asked at page 13 of Dr. McEuen, and she said... you know, the attorney for Ms. Arline asked her, and Dr. McEuen said, quote: Because small children are considered highly susceptible to tuberculosis, and because the pattern of relapse suggested that there may be a possibility of further relapses.

This gets into the other testimony about one of the difficulties in diagnosing when a person is infectious.

That is the test where they take a sputum test.

It often is six or eight weeks.

And so you're diagnosed, if you will, in arrears, in arrears of the judgment.

Thank you.

Chief Justice Rehnquist: Thank you, Mr. Hayes.

The case is submitted.