Poole v. South Plainfield Bd. of Ed., Civ. No. 79-1771.

• Decision Date: 28 May 1980
• Docket Number: Civ. No. 79-1771.
• Citation: 490 F. Supp. 948
• Parties: Richard POOLE, Plaintiff, v. SOUTH PLAINFIELD BOARD OF EDUCATION, Defendant.
• Court: U.S. District Court — District of New Jersey

490 F. Supp. 948

Richard POOLE, Plaintiff, v. SOUTH PLAINFIELD BOARD OF EDUCATION, Defendant.

Civ. No. 79-1771.

United States District Court, D. New Jersey, Civil Division.

May 28, 1980.

George F. Hendricks by Stephen C. Orosz, New Brunswick, N. J., for plaintiff.

Wilentz, Goldman & Spitzer P. A. by Gordon J. Golum, Woodbridge, N. J., for defendant.

OPINION

HAROLD A. ACKERMAN, District Judge.

Richard Poole, a young man who was born with one kidney, was denied the right to participate in South Plainfield High School's interscholastic wrestling program due to his handicap. As a result, he has brought this suit against the South Plainfield Board of Education seeking compensatory damages. His complaint alleges a cause of action under 42 U.S.C. § 1983 for a violation of his Fourteenth Amendment rights and under 29 U.S.C. § 794, also known as § 504 of the Rehabilitation Act of 1973, "which prohibits discrimination against an `otherwise qualified handicapped individual' in federally funded programs `solely be reason of his handicap.'" Southeastern Community College v. Davis, 442 U.S. 397, 400, 99 S.Ct. 2361, 2364, 60 L.Ed.2d 980 (1979) quoting 29 U.S.C. § 794.

The Board has filed a motion for dismissal for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1), or, in the alternative, for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c), or for summary judgment pursuant to Fed.R.Civ.P. 56.

Although the defendant's moving papers principally address the constitutional issues raised by Mr. Poole's complaint, it is clear from the plaintiff's responding papers and from paragraph 1 of the pretrial order, that this is principally a case arising under the Rehabilitation Act of 1973. I have concluded that the defendant is not entitled to either summary judgment or a dismissal of Richard Poole's § 504 claim and will, therefore, deny its motion.

The Board has urged several grounds for rejection of the plaintiff's § 504 claim. As an initial matter, they assert that § 504 does not create a private cause of action. Although the question of whether this section creates a private cause of action is a matter in dispute nationally. See Southeastern Community College v. Davis, 442 U.S. 397, 404 fn. 5, 99 S.Ct. 2361, 2366, 60 L.Ed.2d 980 (1979), it has been resolved in favor of a private party's standing in the Third Circuit. Doe v. Colautti, 592 F.2d 704, 708 fn. 8 (1979). The Board has also argued that even if § 504 creates a private cause of action, it only creates an action for injunctive relief and not one for damages. It is true that in Doe v. Colautti the plaintiff was only seeking injunctive relief, but in Leary v. Crapsey, 566 F.2d 863 (2d Cir. 1977), the first case cited by the Third Circuit in support of the proposition that a private cause of action exists, the plaintiff was seeking monetary as well as injunctive relief. The decision in Leary is a sound one.

There are many plaintiffs for whom injunctive relief can only come too late. Mr. Poole is one of these, since he has already graduated from the South Plainfield High School and cannot, therefore, participate in its wrestling program. If he can prove that he was a victim of illegal discrimination, he should be entitled to some form of relief. Monetary damages are the most usual form of relief given to successful plaintiffs, and I conclude that they are appropriately sought here.

I am aware of the fact that a contrary conclusion was reached in Boxall v. Sequia Union High School District, 464 F.Supp. 1104 (N.D.Cal.1979), but I respectfully disagree with Judge Peckham's conclusion in that case. If, as the Third Circuit has held, Congress intended to permit private litigants to enforce § 504, then it seems sensible to conclude that in the absence of an express limitation on remedies, the usual remedies should be available in order to promote that enforcement. I see no reason, therefore, to draw a distinction between injunctive and monetary relief.

The Board's second objection is that its interscholastic wrestling program does not come within the purview of § 504 since it "was not the recipient of federal funds for its interscholastic athletic program during the period of plaintiff's enrollment in the school system." Defendant's brief at page 7.

It is, of course, clear from the statutory language that § 504 is only applicable to a "program or activity receiving Federal financial assistance." What is not clear is the definition of "program or activity."

The Board admits in the affidavit of William Foley that it receives federal assistance for a number of its projects and activities. It argues, however, that unless the federal aid is received for the specific program that a handicapped individual is denied access to, in this case interscholastic athletics, that § 504 does not apply. The Board has cited no authority other than the statutory language itself in support of this proposition.

The Board's restrictive definition does not seem to be in keeping with the broad remedial purpose of the Rehabilitation Act of 1973. See 29 U.S.C. § 701 (Congressional declaration of purpose). Moreover, it is a definition that the Department of Health, Education and Welfare has rejected in its regulations interpreting § 504.

According to 45 CFR § 84.2 the regulations are applicable to each "recipient" of Federal Assistance from HEW. A "recipient" is defined as:

Any state or its political subdivision, any instrumentality of a state or its political subdivision, any public or private agency, institution, organization, or other entity, or any person to which Federal financial assistance is extended directly or through another recipient, including any successor, assignee, or transferee of a recipient, but excluding the ultimate beneficiary of the assistance.

45 CFR § 84.3(f).

The South Plainfield Board of Education certainly meets this definition of a "recipient." What, then, are the duties of "recipients" like the defendants here, who operate schools? As the plaintiff's brief has pointed out, the regulations at 45 CFR § 84.37 state:

"Nonacademic services:

(a) General.

(1) A recipient to which this subpart applies shall provide nonacademic and extracurricular services and activities in such manner as is necessary to afford handicapped students an equal opportunity for participation in such services and activities.

(2) Nonacademic and extracurricular services and activities may include counseling services, physical recreational athletics, transportation, health services, recreational activities, special interest groups or clubs sponsored by the recipients, referrals to agencies which provide assistance to handicapped persons, and employment of students, including both employment by the recipient and assistance in making available outside employment.

* * * * * *

(c) Physical education and athletics.

(1) In providing physical education courses and athletics and similar programs and activities to any of its students, a recipient to which this subpart applies may not discriminate on the basis of handicap. A recipient that offers physical education courses or that operates or sponsors interscholastic, club, or intramural athletics shall provide to qualified handicapped students an equal opportunity for participation in these activities.

(2) A recipient may offer to handicapped students physical education and athletic activities that are separate or different from those offered to nonhandicapped students only if separation or differentiation is consistent with the requirements of § 84.34 and only if no qualified handicapped student is denied the opportunity to compete for teams or to participate in courses that are not separate or different."

Section 84.34, which is referred to in the regulation that I have just read, states in relevant part:

In providing or arranging for the provision of nonacademic and extracurricular services and activities, including meals, recess periods, and the services and activities set forth in § 84.37(a)(2), a recipient shall ensure that handicapped persons participate with nonhandicapped persons in such activities and services to the maximum extent appropriate to the needs of the handicapped person in question."

45 CFR § 84.34(b). It is clear from 45 CFR § 84.31 that these regulations are applicable to a recipient, even though the funds received are not for the specific program involved in the handicapped person's claims. According to § 84.31,

these regulations apply to preschool, elementary, secondary, and adult education facilities that receive or benefit from Federal financial assistance and to recipients that operate . . . such programs or activities.

I am convinced that in promulgating these regulations, the Secretary of HEW manifested his belief that § 504 of the Rehabilitation Act of 1973 was applicable to entities like the South Plainfield Board of Education in all of its interscholastic athletic activities if it received federal moneys for any of its programs, athletic or otherwise.

While the HEW interpretation of § 504 is persuasive, it is not, of course, binding on this Court. As the Supreme Court recently stated:

Although an agency's interpretation of the statute under which it operates is entitled to some deference, "this deference is constrained by our obligation to honor the clear meaning of a statute, as revealed by its language, purpose and history".

Southeastern Community College v. Davis, 442 U.S. at 411, 99 S.Ct. at 2369, quoting Teamsters v. Daniel, 439 U.S. 551, 566 fn. 20, 99 S.Ct. 790, 800 fn. 20, 58 L.Ed.2d 808 (1979).

I agree with the agency's interpretation, however, insofar as it finds § 504 applicable to all of the activities engaged in by a school system receiving federal funds. It seems absurd to ban discrimination in a discrete area of a school system that receives federal funds while permitting it throughout the rest of the system. I do not believe that Congress intended to ban discrimination...