Jones v. Illinois Dept. of Rehabilitation Services

• Decision Date: 27 September 1982
• Docket Number: 81-2478 and 81-2558,81-1312,Nos. 81-1267,s. 81-1267
• Citation: 689 F.2d 724
• Parties: 6 Ed. Law Rep. 927, 11 Fed. R. Evid. Serv. 1471 Charles P. JONES, Plaintiff-Appellee, Cross-Appellant, v. ILLINOIS DEPARTMENT OF REHABILITATION SERVICES and James S. Jeffers, in his official capacity as Director of the Illinois Department of Rehabilitation Services, Defendants- Appellants, Cross-Appellees, v. ILLINOIS INSTITUTE OF TECHNOLOGY and Dr. Thomas L. Martin, Jr., President, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 724

689 F.2d 724

6 Ed. Law Rep. 927, 11 Fed. R. Evid. Serv. 1471

Charles P. JONES, Plaintiff-Appellee, Cross-Appellant, v. ILLINOIS DEPARTMENT OF REHABILITATION SERVICES and James S.

Jeffers, in his official capacity as Director of

the Illinois Department of

Rehabilitation Services, Defendants- Appellants, Cross-Appellees, v. ILLINOIS INSTITUTE OF TECHNOLOGY and Dr. Thomas L. Martin, Jr., President, Defendants-Appellees.

Nos. 81-1267, 81-1312, 81-2478 and 81-2558.

United States Court of Appeals Seventh Circuit.

Argued March 31, 1982.

Decided Sept. 27, 1982.

Mary Anne Smith, IIT, George Harold Klumpner, Chicago, Ill., for defendants-appellants, cross-appellees.

Marc P. Charmatz, National Assoc. of the Deaf, Washington, D. C., for plaintiff-appellee, cross-appellant.

Before PELL, Circuit Judge, KASHIWA, Associate Judge, ^* and ESCHBACH, Circuit Judge.

PELL, Circuit Judge.

The plaintiff-appellee, cross-appellant Charles P. Jones brought this action for declaratory and injunctive relief under the Rehabilitation Act of 1973, 29 U.S.C. §§ 701-94, against the Illinois Department of Rehabilitation Services (IDRS) and its director Jeffers, and the Illinois Institute of Technology (IIT) and its President Martin. His complaint alleged that by failing to provide him with the services of a sign language interpreter to enable him effectively to participate in and benefit from his classes at IIT, IDRS violated the provisions of Title I of the Act, 28 U.S.C. §§ 701-50, and both IDRS and IIT violated section 504 of the Act, 29 U.S.C. § 794. All parties filed motions for summary judgment. As to Jones' claim under Title I of the Act, the court granted IDRS' motion and denied Jones' motion, finding that there was no private right of action under that portion of the Act. As to Jones' section 504 claims, the court granted Jones' motion, and denied that of IDRS, concluding that although either IIT or IDRS could be required to provide interpreter services under the Act, IDRS had the primary responsibility for providing such services. ¹ As to IIT's cross-claim against IDRS for the cost of services already provided, the court found that claim barred by the Eleventh Amendment and denied the motion. ² The court entered an injunction requiring IDRS to provide interpreter services to Jones at IDRS expense, and if Jones ceased to be eligible for IDRS vocation rehabilitation services, requiring IIT to do the same.

IDRS appeals from that portion of the judgment granting Jones relief under section 504 of the Act. Jones appeals from the denial of his claim under Title I of the Act. Jones and IIT also appeal from the court's disposition of their claims for attorneys' fees. The case presents the following issues on appeal: (1) whether the district court erred in holding that no private right of action can be implied under Title I of the Act; (2) whether a cause of action exists under 42 U.S.C. § 1983 for a violation of Title I of the Act; (3) whether the district court erred in holding that IDRS had the primary responsibility under section 504 to provide interpreter services; and (4) whether the district court erred in ruling on Jones' and IIT's motions for attorneys' fees.

I.

The facts were stipulated by the parties, and are set forth in some detail in the opinion of the district court, 504 F.Supp. 1244 (N.D.Ill.1981). We will rehearse only those necessary to disposition of the issues before this court. The plaintiff Jones is a deaf person and therefore a handicapped individual within the meaning of the Act, 29 U.S.C. § 706(7)(a). He is also a "qualified handicapped person" within the meaning of regulations promulgated pursuant to the Act, which means, with respect to post-secondary and vocational education services, that he meets the academic and technical standards requisite to admission and participation. 34 C.F.R. § 104.3(k)(3) (1981). Until May of 1982, when he graduated, Jones was a student at IIT majoring in mechanical engineering. He required the services of an interpreter to participate in and benefit from his classes.

IDRS, the Illinois state agency responsible for the state's vocational rehabilitation (VR) program, receives financial assistance from the federal Rehabilitation Services Administration to carry out that program. IDRS has determined that Jones is eligible for VR services, and has provided him with financial assistance for tuition, room and board, and books to enable him to attend IIT. IIT is a not-for-profit institution of higher education which receives federal funds, and has signed an Assurance of Compliance Form, agreeing to comply with section 504 as a condition of receiving such funds.

Jones was to begin classes at IIT in late August of 1979. On August 10, IDRS advised IIT that it could not legally assume the cost of interpreter services for Jones' classes. IIT thereupon provided an interpreter for Jones until October 4, 1979, when IIT informed IDRS it would not continue to do so. IDRS provided interpreter services from October 8, 1979 until October 26, 1979, when its director determined it would make no more payments. IIT paid for an interpreter for the remainder of Jones' first semester. On December 11, 1979, IIT informed Jones that it would no longer provide interpreter services. Subsequently IDRS and IIT agreed to share the cost of the interpreter pending the resolution of this case.

II.

We turn first to Jones' contention, raised for the first time at the oral argument of this case, that the case is moot because Jones graduated from IIT on May 16, 1982.

Jones relies primarily on the case of DeFunis v. Odegaard, 416 U.S. 312, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974). DeFunis had sought admission to law school but was not accepted. He brought suit alleging that he had been discriminated against, and obtained an injunction requiring his admission to law school. By the time the appeal reached the Supreme Court, DeFunis was in his final quarter of law school, and was about to graduate. The Supreme Court held that because DeFunis would complete law school regardless of any decision of the Court, there was no definite and concrete controversy between the parties, and therefore the case was moot. The Court also rejected any suggestion that the case fell within the "capable of repetition yet evading review" exception to the mootness doctrine, noting, "DeFunis will never again be required to run the gauntlet of the Law School's admission process, and so the question is certainly not 'capable of repetition' so far as he is concerned." 416 U.S. at 319, 94 S.Ct. at 1707.

We are persuaded that the instant case, however, does fall within the exception to the mootness doctrine. In Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), a pregnant woman brought suit challenging the constitutionality of the Texas criminal abortion statutes. By the time the case reached the Supreme Court, she was no longer pregnant. The Court rejected any contention that the case was moot, noting first that a pregnancy would generally come to term before the usual appellate process could be completed, thereby making the case one that could evade review. Secondly, the Court pointed out, "Pregnancy often comes more than once to the same woman, and in the general population, if man is to survive, it will always be with us," 410 U.S. at 125, 93 S.Ct. at 712, and thus the case was capable of repetition. We believe the case before us is similarly capable of repetition yet evading review.

The case is capable of repetition both as to Jones, the named plaintiff, and as to other deaf clients of IDRS who are or will be students at IIT. Unlike DeFunis, Jones is completing only his undergraduate education. Although he disclaims any current intent to attend graduate school, that is a possibility that cannot be discounted in today's society and in his highly technical profession. If he returns to school as an IDRS client, the controversy over additional interpreter services would renew and continue for as long as he remained in school.

The case is also capable of repetition by other hearing-impaired IIT students who are IDRS clients. IIT points out that one deaf student who is an IDRS client is now enrolled at IIT, and another eligible student has been accepted for the fall of 1982. The court further takes judicial notice that a rubella epidemic in 1963-65 doubled the number of births of hearing-impaired infants, with the result that some 15,000 deaf individuals are now at or approaching the age of college or professional education. See, e.g., Deafness and Rubella: Infants in the 60's, Adults in the 80's, 125 American Annals Of The Deaf 959 (1980); U.S. News & World Rep., October 19, 1981 at 57. Thus the situation presented by this case is reasonably certain to recur at IIT and at other colleges and universities in Illinois and other states.

We conclude that Jones' graduation has not rendered his case moot. We turn, therefore, to consider the merits of the case; first, to Jones' claims against IDRS and IIT under section 504 of the Act and the regulations promulgated thereunder.

III.

Section 504 of the Act, 29 U.S.C. § 794 (1976), provides:

No otherwise qualified handicapped individual in the United States, as defined in section 706(7), shall, solely by reason of his handicap, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

The Secretary of Health, Education and Welfare promulgated regulations under the statute. ³ They set out not only general requirements for all programs funded by the Agency, but detail, in subparts E, 34 C.F.R. §§ 104.41-47, and F, 34 C.F.R. §§ 104.51-54, respectively, the specific obligations pertinent to providers of postsecondary education, such as IIT, and providers of health, welfare and other social services, such as IDRS. ⁴

The district court concluded that under the statutes and the...