Kling v. Los Angeles County

• Decision Date: 08 December 1980
• Docket Number: No. 80-5371,80-5371
• Citation: 633 F.2d 876
• Parties: 24 Empl. Prac. Dec. P 31,398 Mary L. KLING, Appellant, v. COUNTY OF LOS ANGELES; Los Angeles County Medical Center School of Nursing; Gerald C. Crary, M.D., as head of the Admissions Committee of Los Angeles County Medical Center School of Nursing; Mary Duncan, R.N., as Registrar and Head of Recruitment for Los Angeles County Medical Center School of Nursing; Foteen O'Connor, as Chief Administrative Director of Los Angeles County Medical Center School of Nursing; Paul Drozd, as Deputy Administrative Director of Los Angeles County Medical Center School of Nursing, Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 876

633 F.2d 876

24 Empl. Prac. Dec. P 31,398

Mary L. KLING, Appellant, v. COUNTY OF LOS ANGELES; Los Angeles County Medical Center School of Nursing; Gerald C. Crary, M.D., as head of the Admissions Committee of Los Angeles County Medical Center School of Nursing; Mary Duncan, R.N., as Registrar and Head of Recruitment for Los Angeles County Medical Center School of Nursing; Foteen O'Connor, as Chief Administrative Director of Los Angeles County Medical Center School of Nursing; Paul Drozd, as Deputy Administrative Director of Los Angeles County Medical Center School of Nursing, Appellees.

No. 80-5371.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Oct. 7, 1980.

Decided Dec. 8, 1980.

Stanley Fleishman, Beverly Hills, Cal., for appellant.

Alan K. Terakawa, Los Angeles, Cal., for appellee.

Appeal from the United States District Court for the Central District of California.

Before FLETCHER and CANBY, Circuit Judges, and SOLOMON, District Judge. ^*

SOLOMON, Senior District Judge:

Mary Kling, who suffers from Crohn's disease, appeals from the district court's stay of her proceedings pending exhaustion of administrative remedies and from a denial of her motion for a preliminary injunction to allow her to attend the Los Angeles County School of Nursing (School) pending a trial of her action against the School. She seeks relief under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (Section 504) and the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq.

FACTS

Kling is afflicted with Crohn's disease. In February 1979, she applied for admission to the School. In April 1979, she received a letter admitting her. At the School's invitation, she attended an orientation session where she was told to order uniforms and to purchase textbooks for the summer session. But, after a School doctor examined her, the School informed her that she could not enroll.

Kling complained to HEW but when she brought this action in the district court, HEW closed its files. In her action filed in July 1979, she alleged that the School violated Section 504 when solely because of her handicap the School refused to admit her to its nursing program. She sought declaratory and injunctive relief and also a preliminary injunction requiring the School to admit her for the Spring semester. The district In this appeal, we will only consider Kling's claims under the Rehabilitation Act of 1973 (the Act). Section 504 of that Act provides:

court denied the motion because she had not exhausted her administrative remedies.

No otherwise qualified handicapped individual ... 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....

Kling is a handicapped individual as defined by the Act. 29 U.S.C. § 706(7). The School's nursing program receives federal financial assistance.

PRIVATE RIGHT OF ACTION

Kling must first establish that there is a private right of action under Section 504. This issue is one of first impression in this court. ¹ But all the other circuits that have considered this issue have held that there is such a right of action. Camenisch v. University of Texas, 616 F.2d 127 (5th Cir. 1980); NAACP v. Medical Center, Inc., 599 F.2d 1247 (3d Cir. 1979); 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) ²; Leary v. Crapsey, 566 F.2d 863 (2d Cir. 1977); United Handicapped Federation v. Andre, 558 F.2d 413 (8th Cir. 1977); Lloyd v. Regional Transportation Authority, 548 F.2d 1277 (7th Cir. 1977).

In Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), the Supreme Court set forth four criteria for determining whether a private remedy is implicit in a statute which does not expressly provide for one.

"First, is the plaintiff 'one of the class for whose especial benefit the statute was enacted'-that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law?"

Id. at 78, 95 S.Ct. at 2087 (citations omitted).

We agree with the application of the Cort test to Section 504 the court made in Lloyd v. Regional Transportation Authority, supra. There the court found that both the legislative history of the Rehabilitation Act and the analogy to Title VI of the Civil Rights Act of 1964, as interpreted in Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1 (1974) supports the existence of such a right. ³

We therefore hold that Kling has a private right of action under Section 504 of the Rehabilitation Act of 1973.

EXHAUSTION OF REMEDIES

The district court held that it was necessary that Kling exhaust her administrative remedies before she could maintain this action.

The Section 504 regulations, 45 C.F.R. § 84.61, adopt the enforcement procedures of Title VI of the Civil Rights Act of 1964, 45 C.F.R. §§ 80.6-80.10. The same procedures were adopted to enforce Title IX of the Education Amendments of 1972, 45 C.F.R. § 86.71. In Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979), the Supreme Court held that the exhaustion of Title IX administrative remedies is not required before one files a private action because the procedures do not afford individual complainants adequate relief. Id. at 706-08 n. 41, 99 S.Ct. at 1962-63 n. 41. The administrative procedures under Section 504 are the same as those under Title IX. We therefore hold that the Section 504 remedies are inadequate and that exhaustion is not required. ⁴

PRELIMINARY INJUNCTION

The grant or denial of a preliminary injunction will be overturned on appeal only if there has been an abuse of discretion by the district court. Benda v. Grand Lodge of the International Association of Machinists & Aerospace Workers, 584 F.2d 308, 314 (9th Cir. 1978), cert. dismissed 441 U.S. 937, 99 S.Ct. 2065, 60 L.Ed.2d 667 (1979), unless the district court relied on an erroneous legal premise. Douglas v. Beneficial Finance Co. of Anchorage, 469 F.2d 453, 454 (9th Cir. 1972). Here, the district court held that Kling was not entitled to any relief because she had not exhausted her administrative remedies. This is an erroneous legal premise.

A party who seeks a preliminary injunction must demonstrate both probable success on the merits and the possibility of irreparable injury. In the alternative the party may show that the case raises serious questions and that the balance of hardships tips in his favor. William Inglis & Sons Baking Co. v. ITT Continental Baking Co., 526 F.2d 86, 88 (9th Cir. 1975).

Section 504 prohibits discrimination against "otherwise qualified handicapped individuals." In Southeastern Community College v. Davis, 442 U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979), the Supreme Court held that a deaf student was not able to meet all of the requirements of a clinical nursing program because the ability to understand speech without reliance on lipreading was necessary for a patient's safety during the clinical phase of the program. The Court also held that the school was not required to make the extensive modifications in its curriculum that a deaf student would require. But the Supreme Court did state that as a general proposition that "(a)n otherwise qualified person is one who is able to meet all of a program's requirements in spite of his handicap" Id. at 406, 99 S.Ct. at 2363, that means "possession of a handicap is not a permissible ground for assuming an inability to function in a particular context." Id. at 405, 99 S.Ct. at 2366.

Here the School does not contend that Kling is unable to meet its requirements. It asserts, however, that because of her condition she will miss an excessive number of classes. Kling's physician, Dr. Ament, stated that this was not true, and that she has demonstrated her ability to adequately participate in required school programs. Dr. Ament also stated that Kling's need for hospitalization can be avoided but if necessary it can be scheduled to minimize interference with her nursing school work. The School assumed that merely because Kling has Crohn's disease, her health was not sufficiently sound and stable to successfully complete the program even though Dr. Gerald C. Crary, the head of the admissions committee, indicated that if Kling had been evaluated on an individual basis the School would have allowed her to enroll. In our view, Kling has shown a probability of success on the merits.

In addition, the balance of hardships tips in Kling's favor. The School has an outstanding reputation. Its graduates are among the best trained and have increased career opportunities....