Camenisch v. University of Texas

• Decision Date: 28 April 1980
• Docket Number: No. 78-2191,78-2191
• Citation: 616 F.2d 127
• Parties: 24 Empl. Prac. Dec. P 31,228 Walter CAMENISCH, Plaintiff-Appellee, v. The UNIVERSITY OF TEXAS et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 127

616 F.2d 127

24 Empl. Prac. Dec. P 31,228

Walter CAMENISCH, Plaintiff-Appellee, v. The UNIVERSITY OF TEXAS et al., Defendants-Appellants.

No. 78-2191.

United States Court of Appeals, Fifth Circuit.

April 28, 1980.

Rehearing and Rehearing En Banc Denied May 29, 1980.

Martha H. Allan, State & County Div., Lonnie F. Zwiener, Asst. Attys. Gen., Austin, Tex., for defendants-appellants.

Walter W. Barnett, Atty., Charles Pereyra-Suarez, Drew S. Days, III, Asst. Atty. Gen., Dept. of Justice, Washington, D. C., for amicus curiae.

Sheldon E. Steinbach, Gen. Counsel, American Council on Ed., Washington, D. C., for American Council on Ed.

Marc P. Charmatz, Sy DuBow, Andrew S. Penn, Washington, D. C., Nat. Assoc. of the Deaf Legal Defense Fund, Charley L. Smith, Bellville, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before TUTTLE, AINSWORTH and SAM D. JOHNSON, Circuit Judges.

TUTTLE, Circuit Judge:

This is an appeal by the state of Texas from a district court order granting the plaintiff's motion for relief under the Rehabilitation Act of 1973, 29 U.S.C. § 794. The court ordered the University of Texas to procure and compensate a qualified interpreter to assist the plaintiff in his classes during the 1978 term. As part of that order, the court conditioned its grant of preliminary relief on the plaintiff's filing an administrative complaint with the Department of Health, Education and Welfare (HEW). The court also stayed the action, pending an HEW administrative determination on the merits. We uphold the district court's order granting injunctive relief, but vacate that part of the order conditioning the grant on the filing of an administrative complaint with HEW. We also dissolve the stay of the action.

Walter Camenisch, a deaf graduate student at the University of Texas, filed a complaint and motion for a preliminary injunction on March 1, 1978. In that complaint, he alleged that the University had failed to provide him with sign language interpreter services in violation of Section 504 of the Rehabilitation Act of 1973, and that as a result, he would be unable to complete a master's degree by the end of the 1978 summer term. The plaintiff's completion of a master's degree that summer was a prerequisite to his maintaining employment as acting dean of students of the East Campus of The Texas School for the Deaf.

Section 504 of the Rehabilitation Act, as written then, said: ¹

No otherwise qualified handicapped individual in the United States, as defined in section 706(6) of this title, shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

The University of Texas is a recipient of over $31,400,000 in federal assistance and has agreed to comply with Section 504 as a condition to continued receipt of federal funds. The HEW regulations require colleges to provide auxiliary aids, such as interpreters, for deaf students who cannot otherwise participate in college programs. ² However, the University denied Camenisch his request for sign language interpreter services on the grounds that he did not meet the University's established criteria for financial assistance to graduate students. The University said he should therefore pay for his own interpreter.

In May 1978, the district court granted the plaintiff's motion for preliminary relief. While not reaching the merits of the claim, the court noted that every court of appeals which had considered the issue had found a private right of action under Section 504. The court further concluded that requiring the plaintiff to exhaust HEW administrative remedies before seeking relief would result in irreparable injury to him, and would defeat his rights under Section 504. The court therefore issued a preliminary injunction relying on this Court's standard for temporary relief, which is substantial likelihood that the plaintiff will prevail on the merits, as set out in Canal Authority of State of Florida v. Callaway, 489 F.2d 567 (5th Cir. 1974). As stated previously the court also, however, required the plaintiff to post a $3,000 security bond pending the outcome of the litigation pursuant to Rule 65(c) F.R.C.P.; conditioned its grant of relief on the plaintiff's filing an administrative complaint with HEW and stayed the action pending an HEW administrative determination on the merits. ³

We first must determine the proper standard to be used in reviewing the district court's preliminary injunction order. Appellate review of such orders is limited to an examination of whether the district court abused its discretion. Blackshear Residents Organization v. Romney, 472 F.2d 1197, 1198 (5th Cir. 1973).

The court below applied this Court's standards for the granting of preliminary relief as set out in Canal Authority of the State of Florida v. Callaway, 489 F.2d 567 (5th Cir. 1974). In Canal Authority, this Court delineated four factors that had to be met before a court could grant preliminary relief. Those factors are:

1. Irreparable harm to the plaintiff from failure to issue the injunction.

2. The relative lack of harm to the defendant from issuance of the injunction.

3. The public interest.

4. Probability that the plaintiff will ultimately succeed on the merits.

In this case, it is clear that Camenisch would have suffered irreparable harm from a failure to issue the injunction. Without an interpreter, he would have been unable to complete the academic program in which he was enrolled, would not have been able to earn his degree, and thus might have lost his position as Acting Dean of Students. The harm to the defendant of granting the injunction was not great either. This question of the balance of hardship how the plaintiff's harm compares to the harm to the defendant if the preliminary injunction is granted must be considered in the context of the requirement of posting a bond. See Yakus v. United States, 321 U.S. 414, 440, 64 S.Ct. 660, 674, 88 L.Ed. 834 (1944); Note, Interlocutory Injunctions and the Injunction Bond, 73 Harv.L.Rev. 333 (1959). In this case, the posting of the $3,000 bond by the plaintiff clearly protected the defendant from any permanent harm.

The final two considerations the public interest and the probability that the plaintiff will ultimately succeed on the merits, can only be considered by an examination of the merits of Camenisch's claim. We therefore turn to an examination of that claim.

I

The district court found that every United States Court of Appeals which had attempted to determine whether the Rehabilitation Act conferred a private individual right of action under Section 504 to enforce the Act through injunctive relief had found that it did. The University argues here, again, that there is no private right of action under Section 504, even in suits for injunctive relief.

As an initial point, it has been suggested to this Court that this issue is now moot, because Camenisch has received the relief he sought. Such an argument shows a basic lack of understanding of what is at stake in this dispute. The University provided Camenisch with an interpreter at its own expense under order of the district court. The University argues, in effect, that Camenisch should have had to pay for that interpreter, since they were under no obligation to provide one. Camenisch has posted a bond that can be used to repay the appellants, if he loses this appeal. Therefore, despite the fact that Camenisch has graduated, a justiciable issue remains whose responsibility is it to pay for this interpreter? ⁴ This is simply another way of stating the traditional rule that issues raised by an expired injunction are not moot if one party was required to post an injunction bond. Liner v. Jafco, Inc., 375 U.S. 301, 305, 84 S.Ct. 391, 394, 11 L.Ed.2d 347 (1964); Kinnett Dairies, Inc. v. Farrow, 580 F.2d 1260, 1266 (5th Cir. 1978). ⁵

Turning to the merits, we find ourselves in complete agreement with the other Courts of Appeal that have decided this issue and found such a right of action, applying the test of Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975). See Lloyd v. Regional Transportation Authority, 548 F.2d 1277 (7th Cir. 1977); Kampmeier v. Nyquist, 553 F.2d 296 (2d Cir. 1977); United Handicapped Federation v. Andre, 558 F.2d 413 (8th Cir. 1977); Davis v. Southeastern Community College, 574 F.2d 1158 (4th Cir. 1978), rev'd on other grounds, 442 U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979); National Association for the Advancement of Colored People v. The Medical Center, Inc., 599 F.2d 1247 (3rd Cir. 1979). We agree with the Cort analysis of Section 504 undertaken in Lloyd v. Regional Transportation Authority, 548 F.2d 1277, 1284-86 (7th Cir. 1977) in which that Court found an explicit congressional intent to create such a private right of action and found that such a right was consistent with the purposes of the legislation. ⁶

We also take note, of the Supreme Court's decision in Campbell v. Kruse, 434 U.S. 808, 98 S.Ct. 38, 54 L.Ed.2d 65 (1977) in which the Supreme Court vacated the judgment of a three-judge district court, which held that a Virginia statute, providing partial tuition grants to handicapped children attending private schools, denied equal protection to handicapped children who were not affluent enough to take advantage of these partial grants. The Supreme Court directed the district court to decide the plaintiffs' claim "based on the federal statute, Sec. 504 of the Federal Rehabilitation Act of 1973." 434 U.S. at 808, 98 S.Ct. at 38. With this ruling the Supreme Court seemingly acknowledged the judicial authority to entertain private suits for injunctive relief under Section 504. ⁷

The appellants argue here that Lloyd and other cases were decided before HEW promulgated regulations designed to...