Davis v. Southeastern Community College

• Citation: 574 F.2d 1158
• Decision Date: 29 June 1978
• Docket Number: No. 77-1237,77-1237
• Parties: Frances B. DAVIS, Appellant, v. SOUTHEASTERN COMMUNITY COLLEGE, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 1158

574 F.2d 1158

Frances B. DAVIS, Appellant, v. SOUTHEASTERN COMMUNITY COLLEGE, Appellee.

No. 77-1237.

United States Court of Appeals,

Fourth Circuit.

Argued Jan. 9, 1978.

Decided March 28, 1978.

Rehearing and Rehearing En Banc Denied June 29, 1978.

Marc P. Charmatz and Sy Dubow, The National Center for Law and The Deaf Legal Defense Fund, Washington, D. C. (Philip A. Diehl and Warren L. Pate, Moses, Diehl & Pate, Raeford, N. C., on brief), for appellant.

Edward L. Williamson, Whiteville, N. C. (Benton H. Walton, III, Williamson & Walton, Whiteville, N. C., on brief), for appellee.

Charles E. Hill, Douglas L. Parker and Mark A. Barenstein, Washington, D. C., on brief) for amicus curiae Disability Rights Center and James Cherry.

Before HAYNSWORTH, Chief Judge, and BUTZNER and HALL, Circuit Judges.

K. K. HALL, Circuit Judge:

Frances B. Davis, a Licensed Practical Nurse ("LPN"), appeals from a final judgment entered against her in a civil action filed under the Civil Rights Act of 1871, 42 U.S.C. § 1983, and under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, ("the Act"). The Southeastern Community College ("college"), located in North Carolina, was the named defendant, and Ms. Davis complained that the college unlawfully denied her admittance to the college's Associate Degree Nursing Program ("program"), which would ultimately lead to certification as a Registered Nurse ("RN"), because of her admitted hearing disability.

Following a trial to the court, the district judge held: (1) that the plaintiff did not have to exhaust further administrative remedies as a precondition to suit; (2) that the plaintiff was not denied any constitutional or property rights, under either due process or equal protection clauses of the Constitution, (42 U.S.C. § 1983); and (3) that the plaintiff, although plainly a "handicapped individual" within the meaning of 29 U.S.C. § 706(6), was not discriminated against within the strictures of 29 U.S.C. § 794. Davis v. Southeastern Community College, 424 F.Supp. 1341 (E.D.N.C.1976). We affirm in part, and vacate in part and remand. ¹

I. PRIVATE RIGHT OF ACTION

Although the district court did not make a specific legal finding as to whether or not the plaintiff could pursue a private right of action under Section 504 of the Act, we believe that such a finding was at least implicit, and was legally sound. On this point, we affirm, ² and we adopt the sound reasoning of the Seventh Circuit in Lloyd v. Regional Transportation Authority, 548 F.2d 1277, 1284-87 (7th Cir. 1977). See also United Handicapped Federation v. Andre, 558 F.2d 413, 415 (8th Cir. 1977); Kampmeier v. Nyquist, 553 F.2d 296, 299 (2nd Cir. 1977); Hairston v. Drosick, 423 F.Supp. 180 (S.D.W.Va.1976); Sites v. McKenzie, 423 F.Supp. 1190 (N.D.W.Va.1976).

II. ADMINISTRATIVE EXHAUSTION

As the district court noted, once the plaintiff was formally denied admission to the college's nursing program, she sought an additional, yet informal, reconsideration through the Office of the President of the college. In fact, her application was reconsidered by a committee of nurses who were on the staff at the college and who availed themselves of all relevant materials and records concerning the plaintiff. They reaffirmed their refusal to admit plaintiff to the nursing program. Davis v. Southeastern Community College,supra, at 1343-4, PP 9, 10.

On appeal, the college contends that since it had an established grievance procedure, ³ and since the plaintiff did not pursue her denial of admittance to the nursing program through the tiers of that grievance procedure, then her suit in federal court is effectively barred.

We disagree with the college, hold that the processing of plaintiff's grievance beyond that which she had already achieved would indeed have been "futile," and affirm that holding for the reasons adequately stated by the district court. Davis v. Southeastern Community College, supra, at 1343-4, at PP 9, 10, and A. ⁴

III. THE SECTION 504 CLAIM

Our holding on the merits of plaintiff's Section 504 claim is rather narrow. 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. The college may consider such other relevant subjective and objective factors as it deems appropriate, consonant of course with a fair and essentially uniform application of those same subjective and objective factors utilized in the consideration of other candidates for enrollment in the nursing program. For instance, past academic performance would undoubtedly be a highly relevant factor governing admissibility to the nursing program. ⁵

We reach this result because the district court erred when it found that plaintiff was not "otherwise qualified" pursuant to Section 504 of the Act, 29 U.S.C. § 794, for admission to the college's nursing program.

The court below defined the key statutory terminology, "otherwise qualified," as contained in 29 U.S.C. § 794, in their ordinary common meaning since, at the time the case was decided, there had not been any definitive interpretations of those terms. Davis v. Southeastern Community Approximately six months after the district court decided Davis, on June 3, 1977, the regulations implementing Section 504 of the Act, promulgated by the Department of Health, Education and Welfare ("HEW"), became effective. ^6a 42 Fed.Reg. 22676 (May 4, 1977). Among these regulations, now embodied in 45 C.F.R. Part 84, is one which addresses the particular definitional problem presented on this appeal. Title 45 C.F.R. § 84.3(k)(3) requires that:

College, supra, at 1345, decided December 22, 1976. Thus, "otherwise qualified" was defined to mean that the plaintiff had ". . . to (be) otherwise able to function sufficiently in the position in spite of (her) handicap, if proper training facilities (were) suitable and available." Id. However, since plaintiff's hearing deficiencies would prevent her from safely performing the clinical training leading to her RN degree and would, after graduation, restrict her in the pursuit of her proposed profession, then in the district court's view she was not "otherwise qualified." Id. ⁶

With respect to post-secondary and vocational education services (an otherwise qualified handicapped person is one) . . . who meets the academic and technical standards requisite to admission or participation in the recipient's education program or activity.

(Emphasis added.) ⁷

The official explanation provided by HEW for this definition indicates that:

. . . both academic and technical standards must be met by applicants to these programs. The term 'technical standards' refers to all nonacademic admissions criteria that are essential to participation in the program in question.

42 Fed.Reg. at 22687.

Thus, we hold the district court erred by considering the nature of the plaintiff's handicap in order to determine whether or not she was "otherwise qualified" for admittance to the nursing program, Davis v. Southeastern Community College, supra, at 1345, rather than by focusing upon her academic and technical qualifications as required by the newly promulgated regulations. We reach this result by applying the law which is in effect at the time we render our decision, Thorpe v. Housing Authority, 393 U.S. 268, 281, 89 S.Ct. 518, 21 L.Ed.2d 474 (1969); see also Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975); Bradley v. Richmond School Board, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974), and note that other courts of appeals have been required to vacate and remand Section 504 cases to the lower courts for reconsideration in light of applicable regulations which antedated their decisions. See United Handicapped Federation v. Andre, 558 F.2d 413, 416 (8th Cir. 1977); Lloyd v. Regional Transportation Authority, 548 F.2d 1277, 1287-8 (7th Cir. 1977). ^7a

IV. AFFIRMATIVE RELIEF

Since this case will be returned to the district court for further proceedings, we believe it would be appropriate, as guidance for the court below, to briefly discuss plaintiff's claim that the district court also erred by failing to consider that the college could be required to modify the nursing program so as to accommodate the plaintiff and her hearing disability. Plaintiff bases her entitlement to such "affirmative relief" also upon Section 504 of the Act, 29 U.S.C. § 794, and upon certain designated sections of the HEW regulations under Section 504. ⁸

The position of the college was relatively clear it was not prepared, from a faculty viewpoint, to adequately supervise and train the plaintiff during her clinical training. Therefore, it could not modify its program to compensate for plaintiff's hearing disability.

We believe the district court should give close attention, on remand, to the regulations upon which plaintiff relies, which are cited in footnote 8 of this opinion, and especially to 45 C.F.R. § 84.44(a), Academic requirements, which requires that:

A recipient . . . shall make such modifications to its academic requirements as are necessary to ensure that such requirements do not discriminate or have the effect of discriminating, on the basis of handicap, against a qualified handicapped applicant or student. * * * Modifications may include changes in the length of time permitted for the completion of degree requirements, substitution of specific courses required for the completion of degree requirements, and adaptation of the manner in which specific courses are conducted.

and to 45 C.F.R. § 84.44(d)(1), Auxiliary aids, which requires that:

A recipient . . . shall take such steps as are necessary to ensure that no handicapped student is denied the benefits of, excluded from participation in, or otherwise subjected to discrimination under the education program or activity operated by the...