Davis v. Southeastern Community College, Civ. A. No. 75-0041-CIV-3.

Decision Date22 December 1976
Docket NumberCiv. A. No. 75-0041-CIV-3.
Citation424 F. Supp. 1341
CourtU.S. District Court — Eastern District of North Carolina
PartiesFrances B. DAVIS, Plaintiff, v. SOUTHEASTERN COMMUNITY COLLEGE, Defendant.

Warren L. Pate, and Philip A. Diehl, Raeford, N. C., for plaintiff.

Edward Williamson, of Williamson & Walton, Whiteville, N. C., for defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

HEMPHILL, District Judge.

This is an action brought by plaintiff under the provisions of 42 U.S.C. § 1983 alleging that the defendant institution denied plaintiff equal protection of the law and due process in denying her admission to the Associate Degree Nursing Program of defendant institution, and under 29 U.S.C. § 794 alleging that plaintiff was discriminated against by the defendant institution in denying her admission because of a hearing disability. After hearing and considering the testimony adduced at trial, and considering the various pleadings, exhibits, and submissions taken into evidence, including a review of the court's notes taken at the time of trial, upon the credible evidence presented, the court publishes the following:

FINDINGS OF FACT

1. The court has jurisdiction of the subject matter of this claim pursuant to 28 U.S.C. § 1343(3).

2. That plaintiff is a citizen and resident of Robeson County, North Carolina, and was enrolled at the defendant institution during the 1973-74 academic year in the College Parallel program. This College Parallel program is designed as a preparatory program for entrance into the Associate Degree Nursing Program.

3. That the defendant institution is a community college established under Chapter 115-A of the General Counsel Statutes of North Carolina as a public educational institution operating by and through a duly appointed and qualified Board of Trustees as authorized by said statute.

4. That the Associate Degree Nursing Program was one of the academic programs administered by the defendant institution and that plaintiff made application for admission to said program for the fall quarter beginning in September 1974. It appears uncontroverted from the testimony adduced at trial that the purpose for the establishment and maintenance of the Associate Degree Nursing Program was to train people for licensing as Registered Nurses pursuant to the statutes of North Carolina. In accordance with the admissions criteria of the college for the Associate Degree Nursing Program, the plaintiff was interviewed by professional members of the college staff involved in the nursing program for the purpose of evaluating the suitability of the plaintiff for admission to the Associate Degree Nursing Program. The reports of such evaluation have been offered into evidence (see plaintiff's exhibits Nos. 23 and 34) and commented on in testimony and conclude that the plaintiff was not qualified to be admitted to the program. Subsequently an Admissions Review Committee considered the application of plaintiff and determined by reason of her severe hearing impairment that she is not a qualified applicant for training as a Registered Nurse.

5. That plaintiff successfully completed her schedule of classes for the 1973-74 school term prior to her application for admission into the Associate Degree Nursing Program. Plaintiff also is a duly qualified Licensed Practical Nurse, having been granted such professional license by the State of North Carolina in 1967, and which license is currently in good standing. From the testimony presented at trial, it appears that a Licensed Practical Nurse, unlike a Licensed Registered Nurse, operates under constant supervision and is not allowed to perform medical tasks which require a great degree of technical sophistication.

6. That the defendant institution had an established criteria for admissions of students to the Associate Degree Nursing Program and the standards and objectives established by the college included an evaluation of the physical condition of the applicant. Furthermore, there were in excess of 100 applicants for admission to the Associate Degree Nursing Program and only 45 available positions to be filled for the quarter in which plaintiff had applied for admission.

7. That plaintiff had a severe impairment of her ability to hear, which was detected early in the admission process. As a result of this condition, she was referred to an audiologist at Duke Hospital to advise and to determine the extent of her hearing difficulty. The hearing test administered by Dr. Burton B. King, Audiologist, indicated that plaintiff had bilateral sensorineural hearing loss. (Plaintiff's exhibits Nos. 6, 7 and 8). This report indicated that plaintiff has a moderately severe hearing loss in the right ear and a severe hearing loss in the left ear. She has a speech discrimination loss which results in remarkable difficulty in understanding speech because of the distortion in her hearing. However, she understands speech better in her right ear. She wears a hearing aid to assist her hearing in the right ear and she uses her vision to supplement her hearing and understanding speech. In this respect she is an excellent lip reader and although she does not possess normal hearing, she is skillful in communicating with other people if she wears her hearing aid and is allowed to see the talker and use her vision to aid her in interpreting the speech of others. She is well aware of gross sounds occurring in the listening environment but can only be responsible for speech spoken to her or when the talker gets her attention and allows her to look directly at the talker. The hearing aid improves her hearing level to the outer limits of normal hearing levels.

8. That a report of the audiologist was reviewed by Mary McRee, Executive Director of the North Carolina Board of Nursing, who advised the Director of Nursing at the defendant institution that the plaintiff's abilities, based upon the report of the audiologist, would be inadequate to the patient's needs, "in fact, it would be inadequate for her probably to identify all of the patient's needs for which she would be accountable or even to pick up some clues to situations which could be quite critical to the point of life, death situations." (See plaintiff's exhibits Nos. 10 and 11.) It was also brought out in testimony that in many situations such as an operation room intensive care unit, or post-natal care unit, all doctors and nurses wear surgical masks which would make lip reading impossible. Additionally, in many situations a Registered Nurse would be required to instantly follow the physician's instructions concerning procurement of various types of instruments and drugs where the physician would be unable to get the nurse's attention by other than vocal means.

9. That the defendant institution denied the plaintiff's application for admission upon the findings of the medical tests performed with respect to her inability and incapacity to serve in the Associate Degree Nursing Program and their feelings that she would be unable to serve as a Registered Nurse on completion of such program.

10. That following the denial of plaintiff's application for admission by the Admissions Committee, the plaintiff, in an informal and nonscheduled visit to the Office of the President of the defendant institution in the month of June, 1974, asked that her application be again reviewed and reconsidered. This was done by a committee of the nurses who were on the staff of said college, and that all of the material and records then available were sent to said committee who again voted to deny plaintiff's application. After having her application reconsidered and refused a second time the plaintiff made no further attempt to gain review through college procedures. Although it appears from the record that the defendant institution had a procedure for resolving intramural grievances, it is obvious that after consideration, reconsideration and final refusal of the plaintiff's application for admission, that all parties concerned knew that the institution of any such procedures would be, in essence, futile.

11. That plaintiff offered no testimony at the trial of the case but rested her case upon...

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