Consolidated Rail Corporation v. Lestrange Darrone Brief for Respondent
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January 1, 1983

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Brief Collection, LDF Court Filings. Consolidated Rail Corporation v. Lestrange Darrone Brief for Respondent, 1983. 5fe8ad29-ae9a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/e111290d-0f1a-4f37-bd44-58b1fb5667ce/consolidated-rail-corporation-v-lestrange-darrone-brief-for-respondent. Accessed June 13, 2025.
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No. 82-862 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1982 CONSOLIDATED RAIL CORPORATION, Petitioner, v. LEE ANN LESTRANGE DARRONE, Administratrix of the Estate of Thomas LeStrange, Respondent. On Writ Of Certiorari To The United States Court of Appeals For The Third Circuit BRIEF FOR RESPONDENT JOSEPH P. LENAHAN P.O. Box 234 Scranton Electric Building 507 Linden Street Scranton, PA 18503 (717) 346-2097 * Counsel of Record Attorney for Respondents QUESTIONS PRESENTED 1. Does a private right of action exist under section 504 of the Rehabilitation Act of 1973? 2. In a private action under section 504, may an injured plaintff recover damages for (a) an intentional violation of section 504, or (b) an unintentional violation of section # 504? 3. Does section 504 forbid a receipient of federal assistance to discriminate in employment on the basis of handicap where a primary objective of that assistance is not to provide employment? 4. Under what circumstances does discrimination constitute "exclu [sion] from participation in ... deni[al] [of] the benefits of, or ... discrimination under any program or activity receiving Federal financial assistance" within the meaning of section 504? l TABLE OF CONTENTS • Page Questions Presented ....................... Statutes and Regulations Involved ....... Statement of the Case .................... Summary of Argument ....................... Argument I. Section 504 Creates a Cause of Action on Behalf of Handicapped Individuals Discriminated Against By Federal Grantees .... II. Damages May Be Awarded In Private Actions to Redress Violations of Section 504 ..... (1) Intentional Violations .... (2) Unintentional Violations .. III. Section 504 Prohibits Employment Discrimination Under All Federally Assisted Programs .... (1) The Department of Transpor tation Regulations ....... (2) The Rehabilitation Act of 1973 ....................... (3) The Rehabilitation Act Amendments of 1974 ....... (4) The Rehabilitation Act Amendments of 1978 ....... IV The Discrimination Alleged In This Case Constituted "Dis crimination Under [A] Program or Activity Receiving Federal Financial Assistance" Within the Meaning of Section 504 ........ - i i - Page Conclusion APPENDIX Statutes and Regulations Section 504 of the Rehabilitation Act .................................. Section 505 of the Rehabilitation Act .................................. Section 601 of the 1964 Civil Rights Act .................................. Section 604 of the 1964 Civil Rights Act .................................. 45 C.F.R. § 84.11(a)(1) ............. 45 C.F.R. § 27.31(a)(1) ............. "Nondiscrimination Based on Handicap in Federally Assisted Programs", 45 Fed. Reg. 37628 (1980) ................... Agency Regulations Concerning Employment Discrimination on the Basis of Handicap ............................. - iii - No. 82-862 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1982 CONSOLIDATED RAIL CORPORATION, Petitioner, v. LEE ANN LESTRANGE DARRONE, Administratrix of the Estate of Thomas LeStrange Respondent. On Writ Of Certiorari To The United States Court of Appeals For The Third Circuit BRIEF FOR RESPONDENT STATUTES AND REGULATIONS INVOLVED The statutes and regulations involved in this case are set out in an appendix to this brief. a a 2 I. SECTION 504 CREATES A CAUSE OF ACTION ON BEHALF OF HANDICAPPED INDIVIDUALS DISCRIMINATED AGAINST BY FEDERAL GRANTEES The question of whether section 504 can be enforced through a private action is controlled by this Court's decisions in Cannon v. University of Chicago, 441 U.S. 677 (1979), and Guardians' Association v. Civil Service Commission of the City of New York (slip opinion, July 1, 1983). Section 504 was expressly patterned after the similar language of Title VI of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972. In Cannon this Court held that Title IX creates a private cause of action. In Guardians a majority _/of the Court reached a similar conclusion regarding Title VI. This construction of Title VI was well established in the lower courts by 1973 when section 504 was enacted. Cannon v. University of Chicago, 441 U.S. at 696-98. This Court's exhaustive analysis of this issue in Cannon, and the application there of the standards _/ Opinion of Justice White (joined by Justice Rhenquist), pp. 11-12, Justice Stevens (joined by Justices Brennan, Blackmun, and O'Connor), pp. 2-4, and Justice Marshall, pp. 10-20. 3 in Cort v. Ash, 422 U.S. 66 (1975), is largely applic able to the instant case. The basis for recognizing a private cause of action under section 504 is even stronger than under Title VI and Title IX. As enacted in 1973, section 504, unlike those titles, neither authorized the termination of funds for a violation of its provisions nor established any administrative procedure for implementing such a remedy. Thus this is not a case in which "a statutory scheme expressly provides for an alternative mechanism for enforcing the rights and duties created...." Guardians' Association v. Civil Service Commission, opinion of Mr. Justice Powell, p. 3 n.2. All eight circuits which have considered this question have held that section 504 creates a private _/cause of action. _/ Miener v. State, 673 F.2d 969 (8th Cir. ) cert. denied 103 S.Ct. 215 (1982); Pushkin v. Regents of the University of Colorado, 659 F.2d 1372 (10th Cir. 1981); Kling v. County of Los Angeles, 633 F .2d 876 (9th Cir. 1980); Camenisch v. University of Texas, 616 F.2d 127 (5th Cir. 1980), vacated on other grounds, 451 U.S. 390 (1981); 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 (1979); Kampmeier v. Nyquist, 553 F.2d 296 (2d Cir. 1977); Lloyd v. Regional Transp. Auth., 548 F.2d 1277 (7th Cir. 1977). Petitioner urges this Court to conclude other wise on the ground that section 504 is merely hortatory, that it creates no private right of action because it does not create any right or duties at all on the part of recipients of federal assistance, but is _/"no more than a statement of policy." If this were correct it would also preclude action on the part of any federal agency to correct discrimination on the basis of handicap in the federal programs which it administers. Petitioner relies for this surpris ing conclusion on the following passage in the 1974 Senate report: [SJection [504] ... constitutes the establish ment of a broad government policy that programs receiving federal financial assistance shall be operated without discrimination on the basis of handicap. _/ We agree that the 1974 Senate report is entitled to considerable weight, since it was issued by the same committee of the same Congress which had drafted section 504 only a year before, and since it accompanied an amendment that clarified the meaning of that section. _/ Brief for Petitioner, p. 36; see also î d., at 14-17. _/ S. Rep. No. 1135, 92nd Cong., 2d Sess., p. 39. See Red Lion Broadcasting Co., Inc. v. Federal Trade Commission, 395 U.S. 367, 380-81 (1969). But the language immediately following quoted portion of the Senate report makes clear that Congress did intend section 503 to create enforceable obligations. It does not specifically require the issuance of regulations or expressly provide for enforcement procedures, but it is clearly mandatory in form, and such regulations and enforcement are intended. The report further explained that Congress envisioned that section 504 would be implemented in a manner "similar to" Title VI and Title IX. This approach to implementation of section 504 ... would ensure administrative due process (right to hearing, right to review), provide for administrative consistency within the federal government as well as relative ease of implemen tation and permit a judicial remedy through a private action.__/ The words "judicial remedy through a private action" must refer to a private right of action, since judicial review of contested agency action is men tioned earlier in the sentence. Petitioner suggests no reason, and none can readily be imagined, why Congress, having recognized that recipients of / Id. pp. 39-40. / Id. p. 40 (emphasis added). federal assistance were frustrating the Vocational Rehabilitation Act by discriminating against the handicapped, would have announced a policy of nondis crimination which those recipients would be free to _ /disregard at will. As Representative Dodd subse quently remarked in criticizing the lack of implemen tation of section 504, " [W]e would not have enacted it if we did not expect for it to be enforced." Petitioner also urges that Congress cannot have intended to permit private enforcement of section 504 because section 505(a)(2) expressly authorizes certain "remedies, procedures and rights"; petitioner _/ The only reference to private litigation during the events leading to the enactment of section 504 is consistent with the 1974 report. See Hearings on S.7 before the Subcommittee on the Handicapped of the Senate Committee on Labor and PPublic Welfare, 93rd Cong., 1st Sess., pp. 282-83 (statement of John Nagle) ("[T]he civil rights for the handicapped provision ... creates a legal remedy when a disabled man is denied his rightful citizenship rights because of his disability. It gives him a legal basis for recourse to the courts that he may seek ... full equality with all others.") (hereinafter cited as "1973 Senate Hearings"). _/ Hearings on Rehabilitation of the Handicapped Programs, 1976, before the Subcommittee on the Handicapped of the Senate Committee on Labor and Public Welfare, 94th Cong., 2d Sess., p. 323 (1978) (hereinafter cited as "1976 Senate Hearings"). - j r - argues that these Title VI remedies do not include a private right of action, and that the counts "shall not expand the coverage of the statute to subsume other remedies." Brief for Petitioner, p. 34. Since section 505(a)(2) was not adopted until 1978, it cannot of course control the meaning of section 503 as originally enacted in 1973. Thus here, as with the applicability of section 504 to employment, petitioner is urging that section 505(a)(2) was adopted to partially repeal section 504 and to rescind the right of private action that was widely recognized by the lower courts prior to 1976. See nn. ___, ___ , supra. Such a construction of section 505(a)(2) is precluded by the terms of secion 505(b), which provides: In any action or proceeding to enforce or charge a violation of a provision of this subchapter, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs. _ /Both the House and Senate reports make clear _/ H. Rep. No. 95-1149, 95th Cong., 2d Sess., p. 21 (1978) states: "The proposed amendment is not in any way - S ' - that subsection (b) was adopted to provide counsel fees for handicapped individuals who enforced section 504 through private litigation. The Senate report, which is of particular importance since it accom panied section 505(a)(2) as well as 505(b), explained The committee believes that the rights extended under title V, that is ... nondiscrimination under Federal grants — are, and will remain, in need of constant vigilance to assure compliance, and the availability of attorneys' fees should assist in vindicating private rights of action in ... cases .. arising under section ... 504. / The importance of counsel fees to facilitate private enforcement of section 504 was also stressed on the _ /Senate floor. Congress would not have provided / (continued) unique. At present there are at least 90 separate atttorneys' fees provisions to promote enforcement of over 90 different Federal laws. In fact, disabled individuals are one of the very few miniority groups in this country who have not been authorized by the Congress to seek attorneys' fees. The amendment proposes to correct this omission and thereby assist handicapped individuals in securing the legal protection guaranteed them under Title V of the act." _/ 124 Cong. Rec. 30346 (remarks of Sen. Cranston), 37507 (remarks of Sen. Stafford). in subsection (b) for counsel fees in private enforce ment actions if such actions were to have been precluded by subsection (a)(2). Petitioner's argument that section 505(a)(2) forbids any private cause of action also necessarily assumes that such lawsuits are not among the "remedies, procedures and rights set forth in Title VI." But Senator Cranston, the author of section 505(9) (2) and the floor manager of the 1978 amendment, . . _ /indicated otherwise in a colloquy with Senator Bayh. / "MR. BAYH: Senator Cranston, is my under standing correct that section 505 merely extends to the handicapped the same remedies, procedures and rights already extended through titl [e] VI...? "MR. CRANSTON: My colleague from Indiana ... is correct. "MR. BAYH: When title VI was first enacted in 1964, Congress intended to create a private right of action for aggrieved individuals. The circuit courts of the United States have clearly acknowledged this congres sional intent.... "MR. CRANSTON: I agree with my colleage from Indi ana.... [A]n important reason for the inclusion of the attorneys' fees provision in S. 2600 is to encourage appropriate private litigants to bring actions under title V of the Rehabili tation Act .... 10 Had Congress in 1978 abolished the then well established private right of action, it would have left disabled individuals aggrieved by a vioaltion of section 504 no relief other than recourse to the federal agency which had provided the grant involved. But the most consistent theme in the four years of congressional oversight of section 504 which led to the 1978 amendments had been the failure of those agencies to enforce it vigorously, if at all. The delays in HEW's final approval of its regulations, however justifiable in light of the complexity of the issues involved, had been the subject of repeated congressional criticism. See pp. __________ , infra. A Government Accounting Office study concluded that most federal agencies had taken no action / (continuted) "MR. BAYH: I thank the distinguished Senator from California for taking time to make clear the continuing intention of Congress that private actions be allowed under ... title V of the Rehabilitation Act of 1973." 124 Cong. Rec. 30349 _ /to implement section 504. The Department of Health, Education, and Welfare, the agency primarily responsible for administrative enforcement of section 504, conceded it was unable to do so. In 1975 HEW's Office for Civil Rights reported that it had become "increasingly difficult to adhere to the assurance in substantive regulations of prompt investigation of each [discrimination] complaint _ /...." The next year HEW noted that there had been an "astronomical growth" in the number of complaints it was _ /required to process, and that "these increases have not permitted the office to keep pace with the rising volume of complaints received." OCR believed that even with increased staff it would be impossible "simultane ously to eliminate the complaints on a timely basis, and _ /to fulfill other essential enforcement responsibilities." In 1977 the OCR director, David Tatel, urged Congress to retain the private right of action under section 504 precisely because the department was simply unable to handle effectively the increasing volume of administrative _/ Hearings on Review of Programs for the Handicapped, 1977, before the Subcommittee on the Handicapped of the Senate Committee on Human Resources, 95th Cong., 1st Sess., 1130 (1977) (hereinafter cited as "1977 Senate Hearings" ; 1976 Senate Hearings 322. / 40 Fed. Reg. 24148. / 41 Fed. Reg. 18394. / 41 Fed. Reg. 18395. /7- - > r - _ /complaints. Tatel noted that while the number of complaints filed under section 504 was accelerating, his office was understaffed, and that a backlog of several thousand unprocessed _ /discrimination charges thus existed. Repre- _/ Hearings on Implementation of Section 504, Rehabilitation Act of 1973, before the Subcommittee on Select Education of the House Committee on Education and Labor, 95th Cong., 1st Sess., p. 358. ("I believe it is important that the private right of action for individuals be preserved. HEW is not in a position and does not have the resources to do the whole job.") (hereinafter cited as "1977 House Hearings"); see also ĵ d. at 358 ("The Office for Civil Rights is small and we don't have the resources to discover and root out every instance of discrimina tion which occurs throughout the country....") _/ "[W]e have received already 541 complaints under section 504. About 46 percent of the complaints alone have come in since the implementating regulations were issued.... We are just beginning, during the past month or two, to process these complaints .... We have completed, I believe, 38 .... There are several reasons why the Office for Civil Rights cannot, or has not, processed section 504 complaints as quickly as we would like. The main reason is that we have responsibilities under title VI and title IX as well, and the complaint backlog in all areas is extraordinary. I don't have the exact figure with me, but I think its approximately 3,000 complaints, and the number of complaints in all areas, including section 504, is growing." 1977 House Hearings 341; see also _id. at 302-05. i3>- > r - sentative Jeffords commented that no one "could conceive of" requiring exhaustion of administra tive remedies in light of that backlog and the _ /understaffing at OCR. It is equally incon ceivable that Congress, which was all too aware of these problems, could have intended to re quire aggrieved individualls to resort to this backlogged and ineffective admministrative _ /process instead of, or prior to, seeking redress in the courts. _/ (footnote continued) In 1978 the OCR official resonsible for enforcing section 504 executed an affidavit stating that there is "a large backlog of [section 504] complaints and there is no guarantee that any newly filed complaint can be investigated and resolved in an expeditious manner." Whitaker v. Board of Higher Education of the City of New York, 461 F.Supp. 99, 108 (E.D.N.Y. 1978). 1977 House Hearings 276. _/ The section 504 administrative procedures under are identical to those under Title IX, which this Court has already held are so limited that it would be inappropriate to insist they be used prior to filing suit. "Because the individual complainants cannot assure themselves that the administrative process will reach a decision on their complaints within a reasonable time, it makes little sense to require exhaustion." Cannon v. University of Chicago, 441 U.S. at 708-09 n.41. The United States itself opposed any exhaustion requirement in section 504 cases in its amicus brief in Southeastern Community Collegee v. Davis, U.S. (19 ). [footnote continued on next page] / (continued) In the instant case, of course, there were no administrative procedures to exhaust when respondent's claim arose. LeStrange filed this action on September 22, 1978. The Department of Transportation did not issue regulations im plementing section 504 until May 31, 1979. /-*> ' II. DAMAGES MAY BE AWARDED IN PRIVATE ACTIONS TO REDRESS VIOLATIONS OF SECTION 504 Since Marbury v. Madison, 1 Cranch. 137, 163 (1803), this Court has recognized that "Itjhe very essence ot civil liberty consists in the right of every individual to claim the protection of the laws, whenever he receives an injury." That protection would be meaningless if it consisted ot no more than a judicial pronouncement that the law had been violated. Thus "it is also well settled tnat where legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good tne wrong done." Bell v. Hood, 327 U.S. 678, 684 (1946). "The exis tence of a statutory right implies the existence ot all necessary and appropriate remedies." Sullivan v. Little Hunting Park, 396 U.S. 229, 239 (1969). This Court has never treated damages as some kind of exceptional relief to be awarded only under unusual circumstances, but has noted that, "[h]istorically, damages have been regarded as the ordinary remedy for an invasion of personal interests in liberty." Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 395 (1971). "A disregard of the command of the statute is a wrongful act, and where it results in damage to one of the class for whose especial benefit the statute was enacted, the right to recover damages from the party in default is implied." Texas & Pacific R. Co. v. Rigby, 241 U.S. 33, 39 (1916). On several occasions during recent years this Court has considered arguments that those whose federal rights have been violated should not be permitted to redress that injury through damages. Davis v. Pressman, 442 U.S. 228 1979), But2 v. Economou, 438 U.S. 478 (1978); Bivens v. Six Unknown Federal Narcotics Agents, supra. These establish a criteria for weighing such claims in the absence of an express congressional authorization of damages: (1) whether the type of injury sustained is one ordinarily compensable in damages, (2) whether there are "special concerns counseling hesitation," and (3) whether there is an "1 explicit congressiona declaration that persons' in [plaintiff'sJ position ...' may not recover money damages from those responsible for the injury,'" Davis v. Passman, 442 U.S. at 246-47. The first and third criterion are clearly met in this case. The type of injury which respondent has sustained, primarily a loss of wages, is frequently redressed in damages by the federal and state courts; indeed, it is the very same type of harm which this Court held compensable in Davis v. Passman, 442 U.S. at 245. There is, moreover, no claim that Congress explicitly forbad the award of monetary damages in actions arising under section 504. The critical issue is whether section 504 presents special concerns which counsel against providing redress through "a particular remedial mechanism normally available in the federal courts." Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. at 397 (emphasis added). The issue is one of congressional intent. This Court considered, but did not resolve, the avail ability of damages for a violation of Title VI in Guardian's Association v. Civil Service Commission (slip opinion, July 1, 1983). Four members of the court concluded that damages - n - could be awarded in a private action under Title VI. Opinion of Justice Stevens, pp. 2-4; opinion of Justice Marshall, pp. 10-20. Two members of the Court would have held that such damages were not available for an unintentional violation of Title VI. Opinion of Justice White, pp. 12-24. Justice O'Connor concluded that compensatory equitable relief was authorized by Title VI, but neither she, Justice Powell nor the Chief Justice expressed an opinion as to the avail ability of damages. Many of the general questions discussed in the opinions of Justices White, Stevens and Marshall bear on the propriety of an award of damages under section 504; the language and legislative histories of the two measures, however, differ significantly. Justice White's opinion in Guardians leaves open the question of whether damages could be awarded for an inten tional violation of Title VI. Because the considerations bearing on the propriety of damages got intentional and unintentional violations of section 504 are somewhat dif ferent, we discuss them separately.— ^ _/ Count one of the complaint alleges that Conrail refused LeStrange employment "without a medical evaluation or a hearing," although he was "ready, willing and able to return to work." A-6 to 7. If LeStrange were to prove that Conrail refused, solely because of his handicap, to consider in good faith whether he was "otherwise qualified," that would con stitute a purposeful violation of section 504. Count two asserts that the test subsequently used by Conrail to determine LeStrange's fitness "was willfully and purposefully prepared in such a manner as to insure ... failure," A-7 and that Conrail "has maliciously, willfully and purposely discriminated against the plaintiff since 1973, solely because the plaintiff is handicapped." A-8. Such allegations, it proven, would of course constitute intentional discrimination. - I S - (1) Intentional Violations Respondent urges that a federal grantee who violates section 504 cannot be held liable in damages under any cir cumstances. On respondent's view, even if employment discrim ination against the handicapped is illegal under federal law, Conrail is immune from monetary relief if it discriminates against a fully qualified disabled employee or job applicant because of a prejudice against the disabled, with an awareness that its conduct violates both section 504, or out of a cavalier indifference to the requirements of the law. Even if the federal courts were to hold that its treatment of LeStrange contravened section 504, Conrail maintains that it could with impunity treat another employee with the same disability in precisely the same way. The degree of protection from damage awards asserted by Conrail for itself and ten of thousands of federal grantees is broader than that normally accorded to federal and state government officials in their personal capacities. Even a cabinet member can be held liable in damages for conduct which he or she knew or should reasonably have known was unlawful. Butz v. Economou, 438 U.S. 478 (1978). The immunity sought by respondent is particularly incongruous because of the unusual case with which a recipient of federal funds can ascertain its legal responsibilities. A grantee can, prior to accepting federal assistance, bring to the attention of the granting agency any practices about whose legality it may be in doubt, and "the appropriate federal official will determine whether the grantee's plan, proposal or program will satisfy the condition of the grant ... and the grantee will [thus] have in mind what its obligations will be." — 19 - Guardians Association v. Civil Service Commission, opinion of Justice White, pp. 13-14. If a question about such a practice arises after the grant has been accepted, the grantee can call it to the attention of the appropriate federal official and is entitled to a "prompt investigation" of whether that practice would constitute a violation of section 503. 45 C.F.R. § 80.7(c); 4a C.F.R. § 27.123(c).— / Federal regulations expressly direct recipients of federal assistance to review their policies and practices and to modify those which do not meet the requirements of section 504. 45 C.F.R. § 84.6(c); 49 C.F.R. § 27.12(c). Since federal grantees are thus required to scrutinize the legality of their conduct, and have a ready source of guidance as to the requirements of the law, the circumstances under which they should reasonably know whether their actions are unlawful are unusually broad. The policy considerations articulated by Justice White in Guardians are largely inapplicable to grantees who knew or should reasonably have known that they were violating section 504. Such grantees cannot complain they were unaware of the conditions of the federal assistance (slip opinion, p. 13); by definition they either knew or disregarded a reasonable opportunity to learn that such conditions were being violated. (See id. at 15). The possibility of a compensatory remedy might dissuade from participating in federal programs potential recipients who intended to disregard _/ While the determination of federal authorities regarding such practices would not be binding on the courts, we believe a grantee who relied in good faith on such a ruling should not be held liable in damages for any resulting injury. - - the rules and regulations governing such programs, _id. at 21 n.24, but Congress certainly intended to deter such entities from accepting federal funds for which they were not eligible. Here, as in any other area of the law, retrospective relief is essential to bringing about obedience to the law. Section 503 forbids discrimination on the basis of handicap, not merely because Congress disapproved such discrimination, but because Congress believed that at least some federal grantees wanted to engage in discrimination and would continue to do so until it was forbidden by federal law. But unless some adverse consequence is imposed on grantees who have violated section 504, they are as free to engage in discrimination as if that section had never been enacted. If the only possible consequence of such a violation is that a court or agency may direct prospective obedience, there is no practical reason to obey until and unless such an order is issued. A grantee who finds compliance with section 504 expensive, and understands tnat disobedience is cost free, will have every financial incentive to discriminate. In the absence of retrospective relief, section 504 would be merely precatory; not until the imposition of an injunction or agency order backed by a threat of sanctions would grantees have any reason to comply with its commands. Thus, wholly aside from the normal assumption that Congress intended that federal courts have the authority to redress violations of any federal statute, the obvious congressional desire that federal grantees actually comply with tne provisions of section 504 compels the conclusion that Congress contemplated that there would be retrospective relief for such a violation. That overriding congressional purpose is clearly advanced by the "deterrent ... inherent in the award of compensatory damages." Carey v. Piphus, 435 U.S. 247, 256-57 (1978). Transamerica Mortgage Advisors, Inc, v. Lewis, 444 U.S. 11 (1979), holds that "where a statute expressly provides a particular remedy or remedies, a court must be chary of reading others into it." 444 U.S. at 19. But section 504 as originally enacted contained no express remedies at all; thus no inference can be drawn that Congress in 1973 chose certain forms of redress over others. The 1978 amendments do provide for enforcement of section 504 through the rights, remedies and procedures of Title VI, but section 505(a)(2) is expressly non-exclusive, declaring those forms of relief "available." Since, as petitioner concedes,— ^ the avail ability of damages under Title VI cases was unresolved in the lower courts in 1978, as it is in this Court today, no conclusion regarding Congress' attitude toward damages can be drawn from the invocation of Title VI remedies. Moreover, in light of the numerous statements during the legislative history of the 1978 amendments that that measure would expand the rights and remedies of the disabled, pp. ____ infra, and the repeatedly expressed approval of the private right of action under section 504, p. ____ supra, Congress cannot have intended that Section 505(a)(2) eliminate any type of relief that was otherwise permissible under section 504. This conclusion regarding the significance of section 505(a)(2) is confirmed by the provision of the Senate bill concerning procedural safeguards for disabled / Brief for Petitioner, p. 42. individuals who might be aggrieved by the rehabilitation plan prepared for them by state agencies. Section 104 of that bill accorded to such individuals the right to an administrative hearing to review that plan, and if it were upheld to challenge it in federal court. Subsection (f), however, expressly provided "No civil action may be brought under this section for monetary damages." 124 Cong. Rec. 30293 (1978); see also id. at 30315 (remarks of Sen. Javits). The failure of Congress to include any such language in the portion of the bill containing section 505(a)(2) can only be understood as indicating the absence of any intention to oppose such a limitation on relief in section 504 cases.— ^ Justice White's opinion in Guardians Association, however, asserts that under Pennhurst State School v. Halderman, 451 U.S. 1 (1981) there is a "presumption" that in an action to enforce spending Clause legislation private litigants are entitled to no relief other than a prospective injunction compelling grantees to comply with the conditions of federal assistance if they chose to continue receiving it. Slip opinion p. 17. This is not an accurate description of the majority opinion, of Justice White's dissent, or even of the issue presented in Pennhurst. The plaintiff in that case did not ask for damages or retrospective or compensatory relief of any other kind, but sought only to "compel compliance _/ The conference committee replaced the civil action authorized by section 104 with a right of review by the Secretary of HEW, and subsection (f) was thus eliminated as irrelevant. H. Conf. Rep. No. 95-1780, pp. 68-69, (1978). with" certain conditions imposed by statute on grants under the Developmentally Disabled Assistance Act. 397 U.S. at ____. The remedial question was whether such compulsion should take the form of an order enjoining federal authorities from providing funds to the grantee if the conditions were not met, or an order directed at the grantee itself requiring compliance. The majority in Pennhurst noted that the former approach was taken in Rosado v. Wyman, 397 U.S., 420 (1970), but that "[ijn other cases ... we have implicitly departed from that rule," 451 U.S. at 29, and remanded the question to the court of appeals. Id. at 30. Justice White would have held that prospective relief to enforce the conditions of federal grants should be limited to the type of injunction approved in Rosado, since "the State may terminate such statutory obligations, except those already accrued, by withdrawing from the program and terminating its receipt of federal funds." 451 U.S. at 53 (emphasis added). But as theunderscored language makes clear, Justice White recognized that a state could not merely by withdrawing from a federal program, in any way escape from or alter the obligations that were created by its earlier acceptance of federal funds. (2) Unintentional Violations Although there is thus no basis for inferring that Congress intended to deny absolutely the traditional remedy of damages for injuries sustained by reason of a violation of section 504, delineating the circumstances under which damages will be available raises somewhat different issues. Damages are normally available for any injury occasioned by the violation of a legal right regardless of the mental state of the defendant; the added element of an intent to violate or a willful disregard of the law may be the basis for the additional remedy of punitive damages. Congress must be assumed to have intended to aply this traditional rule unless the language or legislative history of a statute demonstrates otherwise. See Carey v. Piphus, 435 U.S. 247, 250-57 (1978). The paramount desire of Congress in enacting section 504 was to end the practice of discrimination on the basis of handicap in all cases, not just in those in which a grantee happened to know that its conduct violated the law. The prospect of damage awards serves to induce compliance with the law among those who may not at first realize what section 504 requires, just as it does among those who are well aware of those requirements. In the case of discrimination in employment, as in other areas, the primary legislative objective was a prophylactic one. "It was to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identi fiable group of white employees over other employees. ..." Backpay has an obvious connection with this purpose. If employers faced only the prospect of an injunc tive order, they would have little incentive to shun practices of dubious legality. It is the reasonably certain prospect of a backpay award that "provide[s] the spur or catalyst which causes employers and unions to self-examine and to self- evaluate their employment practices, and to endeavor to eliminate, so far as possible, the last vestiges of an unfortunate and ignominious page of this country's history." Albemarle Paper Co. v. Moody, 422 U.S. 405, 417-418 (1975). It may be, as Justice White noted in Guardians, that a fed eral grantee will not necessarily know prior to such self- examination whether its employment criteria, program entrance qualifications, or architecture have the effect of excluding the disabled, but without the prospect of retrospective relief such a grantee has no incentive to make that inquiry or correct the arguable violations it may unearth. The congressional direction that handicapped individ uals receive the same treatment as others benefitting from a federally assisted program can often be complied with, par tially if not fully, on a retrospective basis. As Justice O'Connor recognized in Guardians, compensatory injunctive relief represents merely a delayed method of providing the victims of discrimination with the same benefits or status that Congress intended that they be afforded at an earlier time. Where non-handicapped students at a school are given a particular form of training, section 504 ordinarily requires that it be given to the disabled as well. That statutory command is equally applicable to and implemented by the voluntary act of a school admitting the handicapped student, or a subsequent court order directing that they be given the instruction that was earlier denied them. An award of dam ages serves precisely the same "make equal" function. If a disabled employee does the same work for which able-bodied colleagues are paid $100, section 504 ordinarily directs — — that the handicapped worker also receive $100. That statu tory command is equally implemented whether the disabled worker receives the $100 as a result of the voluntary act of the employer or due to a court ordered award of back pay. The Department of Transportation section 504 regula tions, following the similar requirement established by the earlier HEW regulations under both section 504 and Title VI, directs a recipient of federal funds which has engaged in discrimination on the basis of handicap to "take such reme dial action as the responsible official deems necessary to overcome the effects of the violation." 49 C.F.R. § 27.11 (a)(1); 45 C.F.R. §§ 80.3(b )(6)(i) (Title VI), 84.6(a)(1) (section 504). Such remedial action must be extended to individuals who are no longer in the recipient's program, or who, because of the discrimination, never participated in the program at all. 49 C.F.R. § 27.12(a)(3). This require ment is on its face as applicable to intentional violations as it is to unintentional violations, and mandate corrective or compensatory measures regardless of whether the effect of the discrimination was the denial of an education or a denial of wages. A majority ^ of this Court held in Guardians that a victim of discrimination under Title VI is entitled to com pensatory injunctive relief. ^ A remedial rule which none theless excluded compensatory monetary relief would make little practical sense under Tiel VI or section 504. If only _/ Justices O'Connor, Brennan, Marshall, Blackmun and Stevens. / compensatory injunctive relief were permitted, the victims who could and could not obtain effective redress for a Title VI or section 504 would be determined in an entirely capri cious manner. A student illegally excluded from a public school could get relief if he or she sought no other educa tion and waited for an injunction ordering remedial training, but not if he or she went to a private school after that rejection and subsequently sought reimbursement for the tuition. An unlawfully dismissed employee who ordinarily received non-monetary compensation, such as discounts on company goods or services, could receive partial compensa tory relief, but not a fired employee who received only wages. The deterrent effect would be equally uneven and unpredictable. In the case of section 504 this distinction seems particularly peculiar, for often compliance with a corrective injunction will be far more costly than ordinary damage claims. Thus a federal grantee who constructed a building inaccessible by wheelchair might have to spend millions of dollars to build ramps and elevators, but would be protected from the financially trivial liability that would accrue if it spurned the services of the local newsboy because he walked with a limp. Justice White in Guardians noted with regard to Title VI The possibi1ity that Congress may have felt that the salutary deterrent effect of a compensatory remedy was outweighed by the possibility that such a remedy would dissuade potential recipients from participating in important federal programs. Slip opinion, pp. 20-21, n. 24 (emphasis added). - 3.?- But the legislative history of section 504 contains not a single reference to any such concern. No witness or member of Congress ever mentioned any federal grantee ever having rejected or even considered rejecting federal aid because of the danger of a compensatory award. And nowhere in the thousands of pages of hearings, reports and debates on the vocational rehabilitation legislation of 1973, 1974 and 1978 is there the slightest suggestion that Congress should have or had restricted the traditional remedies available for violations of federal law in order to reassure squeemish applicants for federal aid. The only discussion of the costs imposed by section 504 concerned expense of complying with injunctive relief. Senator McClure in 1978 offered an amendment that would have forbidden inactions alleging employment discrimination by the federal government "equitable relief ... disproportionately exceed ing actual damages in the case." ^ McClure emphasized that his proposal "would not in any way limit the actual damages which could be recovered," ^ but expressed concern about situations in which the cost of altering a workplace to accommodate a disabled employee might be 200 times greater than the damages which would be suffered without such changes. McClure's amendment was successfully opposed by the managers / 124 Cong. Rec. 30576 (1978). / Ibid. __ -N QI of the bill. Senator Cranston, who had drafted section 505 and chaired the hearings which led to the original version of section 503, argued that federal employees were entitled to the same rights of employees of federal grantees, and added An individual denied a job, an advancement, or promotion on the basis of handicap is a person entitled to the same remedies as a person dis criminated against unlawfully on the grounds of any other factor.__/ The remedies available to victims of discrimination on the basis of other factors— specifically race, national origin, sex and religion— include back pay under Title VII. It is inconceivable that Cranston could have made this argument had he believed that such monetary relief was not available to victims of discrimination on the basis of handicap just as it was for victims of other forms of employment discrimi nation. No limitation similar to the McClure amendment was even proposed to restrict the injunctive relief available to victims of employment discrimination by federal grantees. In 1979, a report of the Senate Committee which had drafted section 505 emphasized that It is and always has been the Committee's intent that any handicapped individual aggrieved by a violation of title V has the right under existing law ... to receive back pay.__/ _/ Section 505(b)(1) allows a court in framing an injunc tion to consider the cost of any workplace accommodation. Senator Cranston correctly described this as merely stating what any "reasonable court" could do even in the absence of an express authorization. 124 Cong. Rec. _______ . __/ 124 Cong. Rec. 30578. _/ S. Rep. No. 96-316, 96th Cong., 1st Sess., 12-13 (1979). -3><9 There is no reason to question the accuracy of the Committee's description of its views only the year before. Back pay and other damages are among the forms of relief normally available to the victim of a violation of federal law, regardless of the motivation of the lawbreaker. Nothing in the language or legislative history of section 504 even hints at a congressional desire to depart from that tradi tional rule, or to shift the cost of such violations from grantees receiving millions or even billions of dollars in federal aid to physically and mentally handicapped indi viduals often uniquely unable to protect their interests. To deny monetary relief under section 504 would often be to postpone until the entry of a final court injunction the implementation of legal rights adopted a decade ago for men and women who had already endured "hundreds of years of be ing alienated, degraded, insulted and otherwise ignored by society. ..." ^ Such a scheme would, as Senator Cranston said of the rejected McClure amendment, provide "half-reme dies for whole wrongs." ^ / 124 Cong. Rec. 30578 (1978) (remarks of Sen. Stafford). / Ibid. - 3 I - pt'-Q ■— 1--- III. SECTION 504 PROHIBITS EMPLOYMENT DISCRIMINATION UNDER ALL FEDERALLY ASSISTED PROGRAMS The contention advanced by Conrail in this case is far more radical than that already rejected by this Court in North Haven Board of Education v. Bell, 456 U.S. 512 (1982). In North Haven the petitioners conceded that employment discrimination on the basis of sex was illegal; they asserted no right to fire, demote, or harass female employees because of they were women, but merely argued that such mistreatment, admittedly forbidden by Title VII of the 1964 Civil Rights Act and other laws, was not also covered by Title IX of the Education Amendments _ /of 1972. In the instant case Conrail contends that neither an aggrieved individual nor any federal _ /agency is authorized to take any action to prevent or ___/ "A holding that § 901 does not prohibit employment discrimination will not sanction such discrimination. Rather, employment discrimination will be remedied by resort to Title VII, the Equal Pay Act [and] the post-Civil War civil rights statutes, 42 U.S.C. § 1983...." Brief for Petitioners, No. 80-986, p. 109. _/ Brief for Petitioner, pp. 22, 23. Petitioner's argument against any private action to remedy such dis crimination is premised in part on the assumption that federal agencies are powerless to take such action, and that Congress cannot have intended to "invest individuals with substantive rights broader than ... those subject to agency definition, administration, and enforcement." Brief for Petitioner, p. 10. — 3>̂ - ' -02--- redress employment discrimination on the basis of handicap in a federally assisted program except where providing employment was one of the primary objec tives of that program. On Conrail's view a public or private entity which is supported partially or even wholly by federal funds and which has an avowed policy of not hiring, promoting or retaining handicapped individuals is, save in certain exceptional circumstances, innocent of contravening federal law. If that argument is sustained, Conrail would be free to refuse to hire an attorney because he or she had a bad back, to pay a ticket clerk loss because he or she used a cane, or to fire a baggage handler because he or she once suffered from epilepsy. One decision relied on by petitioner actually holds that a school can even discriminate against handicapped instructors _ /in hiring teachers for handicapped children. The issue raised by petitioner is thus not how Congress intended to enforce a prohibition against employment _/ Sabol v. Board of Education of Willingboro, 510 F. Supp. 892 (D.N.J. 1981) cited at Brief for Petitioner, p. 7, n.4. — 33 — — 3— discrimination on the basis of handicap by federal grantees, but whether Congress intended, save in one small category of cases, to permit the disabled to be barred from jobs in federally funded programs, regardless of their actual qualifications, because of nothing more than prejudices, fears, or unfounded preconceptions about physical or mental disabilities. If the coverage of section 504 is limited to employees in fedral programs whose primary objective is to create jobs, the reduction in the number of workers protected by that law would, as petitioner _ /acknowledges, be "dramatic." An analysis prepared in 1976 for the Department of Health, Education and Welfare estimated that section 504, if applied to all federal grantees, wuld affect more _ /than a million disabled workers. That Department alone provided funds for more than 36,000 programs _ /and activities. Only a handful of these employees and programs would be covered if the application of section 504 were restricted to programs / Petition, p. 13. / 41 Fed. Reg. 20312, 20323 (1976). / 1977 House Hearings, pp. 299, 358. whose primary purpose was to provide employment. The practical effect of such a restriction would be particularly great because of the frequency and importance of employment discrimination against the disabled. Employment discrimination has consistently been the most common subject of administrative complaints filed with federal officials under section 504; in 1977, for example, 70% of all the section 504 complaints received by HEW concerned employment problems. Thus any construction of section 504 that sharply limited its application to employment discrimination would reduce dramatically its overall impact on the plight of handicapped individuals. -— 4— _/ 1977 House Hearings, pp. 303, 317, 318, 341 ; see also 1976 Senate Hearings, p. 1500. _ 3>A' (1) The Department of Transportation Regulations This action was commenced on September 22, 1978. _ /Eight months later the Department of Transpor tation adopted regulations under section 504 applicable to Conrail and other recipients of funds administered by DOT. Section 27.31(a)(1) of those regulations provides: No qualified handicapped applicant for employment, or an employee shall, on the basis of handicap, be subjected to discrim ination under any program or activity that receives or benefits from Federal financial assistance. This regulation is not limited to discrimination under a federal program whose primary objective is employment, but deliberately and without ex ception applies to all federally assisted programs. Section 27.31, if valid, is dispositive of this aspect of this litigation. As the Court has repeat- _/ 44 Fed. Reg. 31442 ( 1979). The regulations are now contained in 49 C.F.R. part 27. _/ As we note, infra, pp. ______ , Executive Order 11914 required that the DOT regulations comport with guidelines established by HEW, which in turn require non-discrimination in employment regardless of the purpose of the federally assisted activity. See 44 Fed. Reg. 31442. 3 6 - edly held, "a court is to apply the law in effect at the time it renders its decisions, unless doing so would result in manifest injustice...." Bradley v. Richmond School Board, 416 U.S. 696, 711 (1974). Section 27.31, although not discussed by the courts below, has been in effect throughout most of the _ /five years that this action has been pending. In addition to DOT, twenty-four other federal _ /agencies have promulgated virtually identical reg ulations forbidding employment discrimination on the basis of handicap in all federally assisted programs. This widespread and uniform construction of section 504, derives from the interpretation long given to the statute by HEW. Executive Order 11914, 41 Fed. Reg. 17871, promulgated in 1976, directed the Secretary of Health Education and Welfare to "coordinate the imple mentation of section 504 of the Rehabilitation Act of 1973", and to establish "guidelines for determining what are discriminatory practices, within the meaning - 2- _/ Since section 27.31 merely reiterated for DOT grantees the long established HEW construction of section 504, its application to events occurring prior to its issuance in May, 1979, is clearly not unjust. _/ See Appendix _____ , infra p. _______ - 3 7 ' of section 504." Section 2 of the Executive Order required that regulations issued by DOT and all other federal agencies be "consistent with" the _ /standards formulated by HEW. Thus HEW was the agency particularly responsible for the administration of the statute. Cf. NLRB v. Bell Aerospace Co., 416 U.S. 267, 274-75 (1974). HEW's construction of section 504, insofar as that provision applies to employment discrimination, has been consistent and longstanding. The first HEW regulation was promulgated in June, 1974, nine months after enactment of section 504. The rules issued on that date revised pre-existing provisions concerning voca tional rehabilitation in order "to implement the pro- _ /visions of the Rehabilitation Act of 1973." Section 402.24, entitled "Nondiscrimination for reason of handicapping condition," provided: _/ This authority was transferred to the Department of Justice by Executive Order 1250, 45 Fed. Reg. 72995 (1982). That Department, however, also construes section 504 to apply to employment discrimination in all federally assisted programs. SEe p. ___, infra. 3 / 39 Fed. Reg. 18562 ( 1974) . - 4~ 5 ^ - No otherwise qualified handicapped individual shall, solely by reason of his handicap, be excluded from participation in, be denied the benefits of, or be subjected to discrimination in any program, project or activity supported under this part. No qualified individual shall be denied employment in any program, project, or activity supported under this part solely because of a physical or mental disability.__/ Thus the regulations forbad employment discrimination in all such programs despite the fact that providing employment was not a primary objective of the Vocational _ /Rehabilitation Act. The language of section 503 as originally enacted in 1973 contained no express authorization or requirement of agency regulations. In November, 1974, however, a Senate report accompanying _ /certain amendments related to section 504 explained that section 504 had envisioned the "promulgation of regulations" and the development of uniform federal "standards and policies." The report called on the Secretary of HEW to issue such regulations and to coordinate section 504 enforcement in light of "that Department's experience in dealing with handicapped persons and with the _ /eliminiation of discrimination in other areas." __/ 39 Fed. Reg. 18582 ( 1974) (emphasis added). _/ The 1974 amendments are discussed infra, pp. ________ . _/ Not until 1978 did the act include a program to include funds for the express purpose of providing jobs to the disabled. See n. __ , infra. [?] / S.Rep. No. 93-1297, 93rd Cong., 2d Sess., p. 40 (1974). - - following this report HEW decided, "[rjather than promulga ting a general regulation which would provide only minimal direction to the recipients, ... to confront and attempt to resolve various major policy issues which would necessarily _ /arise in the administration of the statute. Although _ /there appears to have been no question within HEW regarding the applicability of section 504 to all employees of federal grantees, delineating the substance of section _ /504's requirements raised novel and complex issues. After consulting with committees of both the House and _/ 1976 Senate Hearings, p. 1491 (testimony of Martin Gerry, director of HEW's Office of Civil Rights). _/ An internal HEW memorandum dated December 3, 1975, stated: / HEW explained: "The premise of both Title VI and Title IX is that there are not inherent differences or inequalities between the general public and the persons pro tected by these statutes .... The concept of section 504, on the other hand, is far more complex. Handicapped persons may require different treatment in order to be afforded equal access to federally assisted programs and activities, and identical treatment may, in fact, constitute discrimination. The problem of establishing general rules as to when different treatment is prohibited or required is compounded by the diversity of existing handi caps and the differing degree to which particular persons may be affected." 41 Fed. Reg. 20296 (1976). Senate as well as some 60 federal, state and local agencies, and organizations familiar with the problem of the disabled. HEW issued proposed draft regulations in May of 1976. The May 1976 announcement, in addition to seeking public comment on the proposed draft, solicited comments on 15 issues about which HEW was particularly uncertain. But HEW indicated no doubt as to the scope of section 504's application to employment discrimination. The Department emphasized that "section 504 ... differs from __ title VI in the extent to which it applies to employ- _ /ment practices." Section 84.11(9) (1) of the regulations provided: No qualified handicapped person shall, on the basis of handicap, be subjected to discrimination in employment, or in the recruitment, consideration or selection therefor, under any programs or activity to which this part applies.__/ _ / 1976 Senate Hearings, pp. 1491, 1503-04. _ / 41 Fed. Reg. 20296-97. _ / 41 Fed. Reg. 20296-97. _ /tion from 41 Fed. Reg. was applicable HEW. Section 20307 (emphasis added). The to all recipients of federal 84.2, 41 Fed. Reg. 20305. regula funds -g -1 - HEW expressly noted that the section 504 subpart concerning employment "generally follows the employment provisions of the Department's regulation implementing Title IX of the Education Amendments _ /of 1972..." ; the Title IX regulations covered all employment discrimination in federal education programs, most of which virtually by definition were not primarily concerned with providing employ ment. See 45 C.F.R. § 86.51(a)(1). In July, 1976, HEW formally proposed a somewhat modified set of section 504 regulations. The accompanying announcement reiterated in identical language the distinction noted in May between the scope of section 504 and Title VI regarding _ /employment practices, as well as the reliance _ /on Title IX regulations. Section 84.11 remained _ / 'unchanged. Although the July announcement contained an extensive discussion of public comments on the May / 41 Fed. Reg. 20300 / 41 Fed. Reg. 29548 / Id. at 29552. / Id. at 29563. _ /draft, there was no indication that any commen tator had raised any question regarding the applicability of the employment provisions to all federally assisted programs. The final regulations ultimately promulgated by HEW in May of 1977 were, like the draft released a year earlier, applicable to employment discrimination in all federally assisted programs. 45 C.F.R. § 84.11 (a)(1). The correctness of HEW's construction of the law was not questioned until the decision of the fourth circuit in Trageser v. Libbie Rehabilitation Center, 590 F.2d 87 (1978), held that the Comprehensive Rehabilitation Services Amendments of 1978 restricted section 504 to employment discrimination in federal activities whose primary purpose was to provide employment. Trageser was decided ony 42 days after the adoption of the 1978 Amendments, and the court conceded it did not know how HEW would construe the new legislation. 590 F.2d at 89, n.11. The courts =— 8— / Id. at 29552-54. - I f 3 - -— 9 — of appeals following Trageser have either ignored _ /or refused to consider HEW's construction of section 504. The appellate opinions rejecting the Trageser limitation, on the other hand, have expressly relied on the broad administrative interpretation of _ /section 504. The administrative agencies responsible for applying section 504 have consistently disapproved Trageser1s construction of the 1978 amendments. In March, 1979, HEW considered and rejected suggestions that it alter its standards in light of Trageser, __/ Scanlon v. Atascadero State Hospital, 677 F.2d 1271, 272 (9th Cir. 1982); United States v. Cabrini Medical Center, 639 F.2d 908, 910-911 (2d Cir. 1981)? Simpson v. Reynolds Metals Co. Inc., 629 F.2d 1226, 1236-37 (7th Cir. 1980). _/ Carmi v. Metropolitan St. Louis Sewer District, 620 F.2d 672, 675 n.7 (8th Cir. 1980). __/ LeStrange v. Consolidated Rail Corporation, 687 F.2d 767, ___ (3d Cir. 1982), A-52-53; Jones v . Metropolitan Atlanta Rapid Transit Authority, 681 F.2d 1376, 1382 (5th Cir. 1982); Scanlon v. Atascadero State Hospital, 677 F.2d 1271, 1273 and nn.3 and 4 (9th Cir. 1982)(Ferguson, J., dissenting); Carmi v. Metro politan St, Louis Sewer Dist., 620 F.2d 672, 677 n.3, 678 n.6 (8th Cir. 1980)(McMillan, J., concurring). insisting that its guidelines "reflect the Department's _ /current interpretation of its authority". In 1980, following the transfer to it of responsibility _ /for coordinating federal enforcement of section 504, the Department of Justice published a detailed analysis reaffirming the government's view that "the employment practices of recipients of federal finan cial assistance are covered by section 504 regardless of the purpose of the assistance". 45 Fed. Reg. 37628. The Department expressly declined to follow Trageser, criticizing in particular that decision's failure to consider the legislative history of the 1978 amendment, and emphasized that its own regula- _ /tions reflected its broader view of the law. Id. The United States has aggressively advanced this construction of section 504 in the courts, both in litigation to which it was a party and through amicus _ /curiae briefs in several cases. __/ 44 Fed. Reg. 17162, 17174. _/ The Department of Justice commentary on Trageser, which accompanied its final regulations implementing section 504 and the 1978 amendments, are set out in full in the appendix to this brief. ___a - a. _/ United States v. Cabrini Medical Center, supra. _/ Scanlon v. Atascadero State Hospital, supra; Trageser v. Libbie Rehabilitation Center, supra; Sabol v. Board of Education of Township of Willingboro, 510 S. Fupp. 892 (D.N.J. 1981). 1-t In sum, the construction of section 504 contained in section 27.31 of the DOT regulation embodies a widespread, longstanding and consistent administrative interpreta tion of the law, an interpretation first announced only months after the adoption of the 1973 act, emphasized by HEW shortly after that agency was given primary authority for implementing section 504, strongly reiterated following the 1978 amendments, and now followed by a total of 25 federal agencies. This reading of section 504, concurred in by the Department of Transportation, Justice, and Health, Education and Welfare, is entitled to the "great deference to the interpretatin given [a] statute by the officers or agency charged with its administration." Udall v. Tallman, 380 U.S. 1, 16 (1965). - U . I - ---1--- (2) The Rehabilitation Act of 1973 Although both Trageser and petitioner focus their arguments on the 1978 amendments to the Rehab ilitation Act, an analysis of the meaning of section 504 must begin with the original enactment of that provision in 1973. This is particularly true in the instant case because LeStrange's claim arose in 1973, App. A-6, five years prior to the 1978 amendments. Thus even if this Court were to hold tht the 1978 legislation did restrict section 504 to employment discrimination in federal employment programs, it would still be necessary to ascertain the original scope of section 504 prior to 1978 and to consider whether that the pre-1978 law should be applied to respondent's pre-1978 claims. See Cort v.Ash, 422 U.S. 66, 76-77 (1975). No court prior to the adoption of the 1978 amendments questioned the applicability of section 504 to employment discrimination in all federally _ /assisted programs. This judicial acceptance [ I \ l _/ See Whitaker v. Board of Higher Education, 461 F. Supp. 99 (E.D.N.Y. 1978); Davis v. Bucher, 451 F. Supp. 791 (E.D Pa. 1978); Duran v. City of Tampa, 451 F. Supp. 954 (M.D. Fla. 1978), 430 F. Supp. 75 (M.D. Fla. 1977); Drennon v. Philadelphia General Hospital, 428 F. Supp. 809 (E.D. Pa. 1977); Gurmankin v. Costanzo, 411 F. Supp. 982 (E.D. Pa. 1976) aff1 d on other grounds, 556 F.2d 184 (3d Cir. 1977); cf. Cook, Nondiscrimination in Employment Under the Rehabilitation Act of 1973, 27 Am. U. L. Rev. 31, 43 n.71 (1977). of HEW's construction of the law is understandable in light of the actual wording of section 504: No otherwise qualified handicapped individual in the United States, as defined in section 7(b), shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subject to discrimination under any program or activity receiving federal assistance. Nothing in the broad language of this statute affords any basis for limiting its application to only some employees, programs, or types of discrimination. "No individual", not "very few individuals", may be dis criminated against. "Any program", not "most programs _ /or activities", are forbidden to discriminate. The prohibition is not limited to denials of benefits or exclusion from participation, but extends broadly to any "discrimination under" a federally assisted programs. Here, as in North Haven, a handicapped "employee who works in a federally funded program is 'subject to discrimination under' that program if ... paid a lower salary for like work, given less opportunity for promo tion, or forced to work under more adverse conditions than are" his or her non-handicapped colleagues. 72 L.Ed.2d at 307, U.S. at _/ United States v. Cabrini Medical Center, 639 F.2d 908, 910 (2d Cir. 1981), one of the lower court cases relied on by petitioner, concedes that this reference to "any program" "at first blush seems broad enough" to cover all employment claims. The fact that section 504 does not expressly mention employment is clearly of no significance, for the statute contains no references to specific types of discrimination, but is deliberately cast in all-inclusive general terms. Congress's "failure" to single out employment for particular emphasis no more militates against respondent's claims than Congress's "failure" to mention specifically railroads, or grantees receiving over $1 billion, or discrimination against employees who _/had lost their left, rather than right hands. Had Congress intended to exclude from the scope of section 504 employment discrimination not involving federal employment programs, it certainly knew how to do so. In May of 1972, only four months before the section 504 was _ /drafted by the Senate Subcommittee on the Handicapped, a House-Senate conference committee considered and deleted from Title IX of the Education Amendments a limitation identical to that which Conrail now seeks to read into section 503. North Haven Board of Education, ___U.S.at , 72 L.Ed.2d at 310. _/ See Guertin v. Hackerman, 496 F. Supp. 593, 595-96 (S.D. Tex. 1980)(rejecting defendants' contention that section 504 applies only to public agencies receiving federal assistance.) _/ See 118 Cong. Rec. 30680 (remarks of Senator Randolph). — - -— 4--- Section 904 of those Amendments, forbad discrimination against the blind by recipients of federal aid to education, but was specifically limited to discriminatory exclusion from "any course of study" and thus was expressly inapplicable to employment discrimination. No such express limitations were placed in section 504. A broad literal reading of section 504 is strongly supported by section 7(6) of the act, whose definition of "handicapped individual" delineates the persons protected by section 504. Section 7(6) provides: The term "handicapped individual" means any indi vidual who (A) has a physical or mental disability which for such individual constitutes or results in a substantial handicap to employment and (B) can reasonably be expercted to benefit in terms of employability from vocational rehabilita tion services provided pursuant to Title I and III of this Act. __/ Only individuals whose handicap may inhibit but does not preclude them from working are protected from discrimina tion by section 504. This restriction would make no sense if section 504 were generally inapplicable to employment discrimination. The employability of a _/ "No person in the United States shall, on the ground of blindness or severely impaired vision, be denied admission in any course of study by a recipient of federal financial assistance for any education program or activity...." This provision is now codified in 20 U.S.C. § 1689[?] / 87 Stat. 361 (1973). — SJ> — --5-- * disabled individual is clearly of little if any relevance to whether he or she should or needs to be protected from discrimination in housing, education or medical treatment, but bears directly on the propriety of excluding the individual from employment. Just as Congress might have defined "handicap" in terms of educability had its paramount interest been discrimina tion in education, so here the criterion of employability demonstrates that employment discrimination was the problem with which section 504 was primarily concerned. This construction of section 504 is consistent with the overall goals and other provisions of the Rehabilita tion Act. That statute is not concerned with housing, food assistance, transportation, communication or the public schools — its primary focus is on enabling the disabled to obtain work. Section 2(8) in a clear refer ence to sections 501, 503, and 504, states that a purpose of the Act is to promote and expand employment opportunities in the public and private sectors for handicapped indi viduals and to place such individuals in employment. None of the stated purposes of the statute refer to promoting and expanding opportunities for the disabled in any other specific area. Title I authorized $1.3 — 1 l — — 6— billion in grants to assist handicapped individuals to "prepare for and engage in gainful employment to the extent of their capabilities". 87 Stat. 363. Title II provides funds for research and training regarding the rehabilitation of the disabled. Having authorized more than a billion dollars to assist the disabled to return to the work force, it would have been "odd indeed" if Congress had condoned in section 504 the very type of employment discrimination in federally assisted programs which would have frustrated that vital and costly program. Scanlon v. Atascadero State Hospital, 677 F.2d 1271, 1274 (9th Cir. 1982)(Ferguson, J., dissenting). To hold section 503 largely inapplicable to employment discrimination would be like holding Title IX inapplic able to the exclusion to female students from federally funded programs of study. The legislative history of the 1973 Act fully supports HEW's construction of section 504. The bill passed by the House and the measures intially proposed in the Senate contained no anti-discrimination provision? section 504 was drafted by the Senate Subcommittee on / 87 Stat. 357 (1973) the Handicapped after extensive hearings in May and June 1972. Virtually the only form of intentional discrimina tion against the disabled which was disclosed at the Senate hearings was discrimination in employment. One study, based on the experience of the President's Committee on Employment of the Handicapped, concluded: [T]he disabled face all the obstacles to the able bodied and a myriad of special ones caused by their handicap.... The stigma associated with disability ... hurts the job seeking individual. An employer who does not feel comfortable around a disabled person will not be inclined to hire the handicapped. [C]ertain disabilities, among them epilepsy, and mental illness, carry more stigma than others, but employers react negatively in many cases to any type of disability.... Initially sympathetic employers may also be scared away by the fear that their insurance rates will rise if they hire the handicapped ... [although] the safety record of the disabled worker on the job is 8% better than that of the average worker.... Another barrier to employment of the handicapped is the stereotype that exists about their job capabilities. Too often they are seen as workers who can only perform menial tasks. They are regarded as suitable sign painters ... but not as competent white-collar workers.__/ Employment discrimination was a frequent focus of Senate _/ Hearings on the Rehabilitation Act of 1972 before the Subcommittee on the Handicapped of the Senate Committee on Labor and Public Welfare, 92nd Cong., 2d Sess., pp. 534-536 (1972 (hereinafter cited as "1972 Senate Hearings"); see also jld. at 1361-62 (employment discrimination against the deaf). — 4 " 3 - discussion during the year when section 504 was drafted. In February of that year Senator Williams, who later cosponsored the bill containing section 504 and who chaired the Committee on Labor and Public Welfare which reported it to the Senate, placed in the Congressional Record a series of letters descriving in graphic detail the employment discrimination suffered by the disabled. / 118 Cong. Rec. 525 (remarks of Sen. Humphrey) T"Millions of young persons and adults who want to learn a trade, work like other people, and establish their self-worth through a paycheck, are barred ... from countless jobs they could do well."), 3321 (remarks of Sen. Williams)("Too many of our handicapped population are misdiagnosed, mislabled, and hustled out ... jobs ...."), 9495 (remarks of Senator Humphrey)(victims of discrimination against the handicapped include individuals "who can and want to learn a trade and experience the dignity of work and a paycheck."), 19435 (remarks of Sen. Williams)(placing in record student essay on the employ ment problems of the disabled); 33319 (remarks of Sen. Dole)("Too many employers are still reluctant to hire the handicapped and look first to disabilities rather than the skills and talents the handicapped possess."); 36761 (remarks of Sen. Mondale)(placing in the record article entitled "Handicapped Tell of Discrimination in Finding Jobs and Getting Insurance")(1972). _/ 118 Cong. Rec. 3324 (letter of Robert L. Bennett) ("Quite possibly the greatest handicap a handicapped person has is being disqualified for work solely because he is somethat different.... I am an epileptic who was refused employment by the Post Office"), 3325 (letter of Charles Bright)("In 1921 I had Polio which paralyzed me from the waist down__ To day, with the use of a brace on my right leg and a cane, I do quite well.... I found myself with an almost insurmountable problem — that of finding a job___ I have had more doors closed in my face, because I was ... handicapped than I care to remember"), 3327 (letter of Mrs. JoAnn Marshall) ("Generally [ / continued on next page] - 4 V - Williams noted that the unemployment rate was 52% among paraplegics, 66% among the blind, and 75% among epileptics. The Senate report accompanying the Rehabilitation Act explained, in a passage reiterated _ /during the Senate debate, that the hearings had revealed "a lack of action in areas related to rehabili tation which limit a handicapped individual's ability to function in society, e.g., employment discrimination...." S. Rep. No. 93-318, 93rd Cong., 1st Sess., p. 3 (1973)(?). _/During the 1973 debates both Senator Cranston, the _/ continued ... handicapped people are the last hired and the first fired.... My husband, a paraplegic has ... been told 'you can't do it' for so long that if it weren't for his tremendous belief in himself and his ability he would have been beaten long ago"), (letter of David Zeise)("I had a 3.5 average, a good record, and excellent recommen dations from my teachers. Nevertheless, I've been having a difficult time finding employment because of my poor vision"); (letter of Max Feintuch)("How does a man gain recognition when he isn't given a chance to show what he can do?... [My son's] physical condition always stands in the way of an appointment despite his superior skill and qualifications"). _/ 118 Cong. Rec. 3321. _/ 119 Cong. Rec. 24566 (1973) (remarks of Sen. Cranston). _/ 119 Cong. Rec. 5882. _/floor manager of the bill, and Senator Stafford, a cosponsor and the ranking minority member of the sub committee which drafted it, referred to evidence of "unfounded discrimiantion in employment" which had been presented at the subcommittee hearings. Senator Randolph, introducing the committee bill, noted that its overall goal was to "provide a bright, new beginning on the road to meeting the goal of self- _/sufficiency ... for millions of handicapped Americans." Senator Taft explained: The basic purpose of vocational rehabilitation continues to be to help physically and mentally handicapped individuals achieve the ability to work, earn, and live independently in their com munity..... Too many handicapped Americans ... lack jobs and too many are underemployed — utilized in capacities well below the levels of their training, education and ability. __/ Senator Cranston noted that the federal vocational rehabilitation efforts were being frustrated by employment discrimination against the disabled: Despite efforts on the part of ... personnel of the vocational rehabilitation programs, discrimination in placement, hiring and advancement continue to limit the vocational rehabilitation program's _/ 119 Cong. Rec. 5893. _/ 118 Cong. Rec. 30680; see also _id. at 30681 (remarks of Sen. Cranston)("The program which is authorized by the legislation will provide ... a true opportunity for [handicapped] individuals to enter or reenter society on a competitive basis....") / 119 Cong. Rec. 24587. ability to effect successful rehabilitations.... The expenditure of money on vocational rehabilita tion programs is not well spent if we do not at the same time take meaningful steps to ... provide substantial accomplishments in employment for handicapped individuals. _/ _/ _/Senators Javits and Taft expressed similar concerns. In light of the importance of eliminating employment discrimination against the disabled, it is hardly surprising that several sponsors of the 1973 Act explained that that was the precise purpose of section 504. Senator Williams noted that the act contained "prohibi tions againt discrimination in employment in programs _/assisted with federal funds...." Senator Javits _/ 119 Cong. Rec. ______ . _/ 119 Cong. Rec. 5898 ("During hearings on H.R. 8395, it became patently obvious that revision of the existing Federal-State programs for rehabilitation of handicapped indiviudals would not solve all of the problem of handicapped individuals particularly in terms of employ ment. Several additional provisions within H.R. 8395 ... dealt directly with these problems.... [T]he bill ... prohibits discrimination against handicapped individuals in any program or activity receiving federal assistance.") _/ 119 Cong. Rec. 24587 ("[I]f we are to assure that all handicapped persons may participate fully in the rewards made possible by the vocational rehabilitation program, we must devote more of our energy toward the elimination of the most disgraceful barrier of all — discrimination.") / 119 Cong. Rec. 24588. - i 7 - • 9explained that among the portions of the bill addressing "special federal responsibilities" were "provisions for encouraging hiring of the handicapped under federal _/contracts and under federal grants." Senator Cranston repeatedly asserted that the Act "deal[t] comprehensively with problems such as discrimination in ... federal grants ... problems which ... have a profound effect on the provision of relevant and effective J[rehabilitation] services." Between September, 1972, when it was first drated, and September, 1973, when it was signed into law, section 504 was referred to seven times in three com- _/mittee reports and in fifteen instances during _/House and Senate debates. On not a single occasion _/ 118 Cong. Rec. 32305. _/ 119 Cong. Rec. 5862 (emphasis added); see also id. at 24569. _/ S. Rep. Nov. 1135, 92d Cong. 2d Sess., 3, 9, 49, 77 (1972): S. Rep. No. 93-318, 93rd Cong., 1st Sess., pp. (2123), (2143) (1973) H. Conf. Rep. 92-1581, 92nd Cong., 2d Sess., ______ reprinted in 118 Cong. Rec. 35163. _/ 118 Cong. Rec. 30681, 30682 (two references), 30683 (remarks of Sen. Williams), 32280 (remarks of Sen. Cranston), 32281 (remarks of Sen. Cranston), 32305 (remarks of Sen. Javits), 32310 (remarks of Sen. Humphrey), 32613 (remarks of Sen. Cranston); 119 Cong. Rec. 5862 (remarks of Sen. Cranston), 5898 (remarks of Sen. Williams), 24569 (remarks of Sen. Cranston), 24587 (remarks of Sen. Randolph), 24588 (remarks of Sen. Williams), 24589 (remarks of Sen. Dole). is there the slightest indication that any member of Congress understood or intended section 504 to have a scope narrower than its broad literal meaning. On not a single occasion is there any reference to section 605 of Title VI or to federal programs whose "primary objective ... is to provide employment." The draftsmen of section 504 could hardly have been more emphatic in explaining their preoccupation with employment discrimination, and a member of Congress who read section 503, reviewed the relevant reports, and listened to the debates, could only have concluded that it was to employment discrimination above all that section 504 was to apply. (3) The Rehabilitation Act Amendments of 1974 In 1974 Congress acted to resolve a problem created by the definition of "handicapped individual" in section 7(b) of the 1973 Act. That definition had been placed in the 1973 Act to delineate the individuals entitled to rehabilitation services, and was utilized unchanged to define those protected by section 504. See p. ____, supra. Read literally section 7(b) would have restricted the protection of section 504 to employable — M — handicapped individuals in need of rehabilitation; the unemployable disabled would not have been protected from discrimination in education or housing, and employable handicapped persons who did not need rehabilitation or who had already received such assistance could have been denied jobs solely because of their disabilities. Section 111(a) of the 1974 amendments broadened the language of section 7(b) so as to preclude either form _ /of discrimination. The legislative history of this amendment makes clear that Congress intended the amended law to include and broaden protection against any employment discrim ination by federal grantees. The Senate report explained It was clearly the intent of the Congress in adopting section 503 (affirmative action) and section 504 (nondiscrimination) that the __/ 88 Stat. 1619. The Amendment added to section 7(6) the following language; "For the purposes of titles IV and V of this Act such term means any persons who (A) has a physical or mental impairment which substantially limits one or more of such person's major life activities, (B) has a record of such an impairment, or (C) is regarded as having such an impairment." term "handicapped individuals" in those sections was not to be narrowly limited to employment ... [A] test of discrimination against a handicapped individual under section 504 should not be couched ... in terms of whether . .. such individ ual can reasonably be expected to benefit, in terms of employment, from vocational services .... Section 504 was enacted to prevent discrim ination against all handicapped individuals, re gardless of their need for, or ability to benefit from, vocational rehabilitation services, in relation to Federal assistance .... ../ Restricting the protection of employable handicapped individuals to those who could benefit from vocational rehabilitation, the report noted, "makes little sense when applied to ... section ... 504 nondiscrimination _ /programs and provisions. Senator Stafford reiterated the argument made in 1973 regarding the relationship between rehabilitation programs and nondiscrimination in employment: [I]t will do this country little good to invest money in the training of handicapped individuals so that they may be employable if we cannot provide sufficient job oppor tunities to those job applicants.__/ Senator Cranston, the floor manager of the bill, explained that the new definition was "meant to in clude a broader group of handicapped persons who suffer __/ S.Rep. Nov. 93-1297, 93rd Cong. 2d Sess., 37-38 (1974) (emphasis added). __/ Id. at 64. _/ 120 Cong. Rec. 30532 (1974). — +6— from discrimination practices, and participation in certain services and programs even though their _ /handicap may not effect job performance." The recently promulgated HEW regulations, which forbad employment discrimination without regard to the "primary objective" of the federal assistance, were also the subject of coment. See p._____ , supra. The Senate report noted that HEW, in drafting its regulations, had worked closely with the relevant House and Senate Committees in a "generally useful and satisfactory" manner, "to ensure that implemenation of the provisions of the Act would be accomplished in accordance wtih the intent of Congress." The resulting regulations were "in most respects reflective of underlying congressional intent," except where, as in the case of section 7(b), "clarifying and perfecting changes in the Act" were _ /needed. Senator Cranston expressed identical _ /views on the floor of the Senate. This approval of HEW's regulations was expressed within a year of _/ 120 Cong. Rec. 30532. _/ S.Rep. No. 93-1297, 93rd Cong. 2d Sess., 25 (1974). _/ 120 Cong. Rec. 30530. - 6 S l - 4̂ ?— a- the adoption of section 504 by the same committee which had drafted and the same Congerss which had enacted that provision. Petitioner asserts that the Senate report "noted that Section 504 was to be interpreted ... in pari materia with Title VI." Brief for Petitioner, p. 17. But the passage relied on by petitioner refers, not to Title VI as a whole, but only to section 601 of the 1964 Civil Rights Act, and mentions to Title IX as well Section 504 of was patterned after, and is almost identical to, the antidiscrimination language of section 601 of the Civil Rights Act of 1964, 42 U.S.C. 2000d-1 (relating to race, color, or national origin), and section 901 of the Education Amendments of 1972, 20 U.S.C. 1681 (relating to sex).__/ To the extent that any conclusion can be drawn from this statement, it supports a broad literal reading of section 504. Section 901 has already held by this Court to be fully applicable to employment discrimination, North Haven Board of Education v. Bell, ___ U.S. ___ (1982), while the scope of section 601 is at best unclear. ___ U.S. ___, 72 L.Ed.2d at 313 n.20. More importantly, North Haven / S .Rep. No. 93-1297, 39. - ^ 3 - — expressly disapproves construing one statute by resort to the legislative history of another provision after which it may have been patterned. "It is Congress' intention in" 1973, "not in 1964, that is of significance in interpreting" section 504. ___ U.S. ___, 72 L.Ed.2d at 313. Half of the spokesmen quoted by petitioner from the 1964 debates were not in congress nine years later, a majority of the subcommittee which drafted section 504, including Senator _ /Cranston, were not in Congress nine years earlier, and it seems unlikely that any member of the 93rd Congress would have recalled details of the lengthy debates which had occurred in 1964. Speculation about the content of any such dim and unspoken memories cannot outweight the explicit and repeated references to employment discrimination during _ /the debates on section 504. __/ Brief for Petitioner, pp. 11-13 (Representative Celler, Attorney General Kennedy). __/ Cranston, Mondale, Hathaway, Taft, Schweiker, Beall, Jr. __/ Inn 1975 the Senate adopted, as part of the Education for All Handicapped Children Act, PL 94-142, a provision requiring the recipients of assistance under that statute to take affirmative action to employ and promote qualified handicapped individuals. A House-Senate conference committee deleted this provision with the following explanation: "The conferees deleted the language in the Senate bill making financial assistance conditional upon ... asssurances [of affirmative action] because / (continued) section 504 of the Rehabilitation Act of 1973 already establishes, as a matter of federal law, that no qualified handicapped individual in the United States shall be excluded from partici pation in, be denied the benefits of, or be sub jected to discrimination under any program or activity receiving Federal Financial assistance. It is clear that qualified handicapped individuals who, because of their handicap, are refused em ployment by recipients of assistance under the Act are fully covered by the prohibition in section 504 of the Rehabilitation Act of 1973." S. Conf. Rep. 94-455, 94th Cong., (emphasis added) 1st Sess., 54 (1975). _ _ u ~ - (4) Rehabilitation Amendments Of 1978 Petitioner's central contention, and the theme of Trageser and its progeny, is that Congress, by enacting in 1978 section 505(a)(2) of the Rehabilitation Act, limited the application of section 504 to employment discrimination in federal programs whose primary objective is to provide employment. The Congress which enacted section 505(a)(2) was familiar to an unusual degree with HEW's construction of Section 504 and had been instrumental in prompting HEW to formulate and issue the regulations embodying those views. In 1974 the Senate _ /Subcommittee on the Handicapped urged HEW to promulgate such regulations. In February, 1976, that subcommittee labled as "unconscionable" the delay in the issuance of detailed _ / _ /AfegsOibbommstted hekedn^EW whfehafeuehmeegakfchiMembwosldfbe proposed. _/Congress and other witnesses pressed HEW to move forward with the regulations. In May, 1976, HEW made public its proposed regulations, explicitly emphasizing in its introduction that section 504's coverage of employment discrimination was broader than that of Title VI. See pp , supra. In January, 1977, __/ S. Rep. No. 93-1297, pp 39-40. __/ 1976 Senate Hearings, pp 347-48. _/ 1976 Senate Hearings 323 (testimony of Rep. Dodd), 1502 (statement of Sen. Williams), 1511 (statement of Sen. Williams). _/ 1976 Senate Hearings 23, 69, 278, 491, 501, 555, 604-06, 1006. Cs z-i] — 1— HEW Secretary Matthews forwarded those proposed regulations to Congress with a letter expressing the Department's desire "to lay its interpretation before the Congress so that it can provide _/whatever clarification is appropriate". In April of 1977 Joseph Califano, the new Secretary of HEW, wrote individually to every member of House and Senate, again enclosing a copy of the draft regulations, and urging that "Congress evaluate the regulation, and the implementation process, the ensure that they _/conform to the will of Congress." At Senate hearings in February, 1977, Senator Culver and other witnesses urged that _ / 'the proposed regulations be formally promulgated. The next month the subcommittee chairman wrote Secretary Califano _ / ‘asking when the regulations would be finalized throughout the spring of 1977 members of the House and Senate took the _ /floor to call on HEW to issue the regulations . Following the promulgation of the HEW regulations, a House subcommittee conducted further hearings on the implementation of section 504, at which the Director of HEW's Office of Civil Rights provided a _/detailed description of the employment discrimination provisions. — 2— __/ 1977 House Hearings 73. __/ Id. at 76. _/ Hearings on S.2600 before the Subcommittee on the Handicapped of the Senate Committee on Human Resources, 95th Cong., 2d Sess., 5, 1130-31, 1244, 1247, 1269-7-, 1281 (1978)(hereinafter cited as "1978 Senate Hearings"). __/ Id. at 1571. _/ See pp , infra. / 1977 House Hearings, pp 294-95. — 6~? - By 1978 Congress was thus fully aware of the scope of the HEW regulations. The central issue presented by the 1978 amendments is whether Congress intended to drastically narrow the scope of section 504 and to overturn one of the critical provisions of the HEW regulations whose issuance had been sought by Congress only a year before. Section 505(a)(2) provides: The remedies, procedures, and rights set forth in Title VI of the Civil Rights Act shall be available to any person aggrieved by any act or failure to act by any recipient of Federal assistance or Federal provider of such assistance under Section [504] of this title. Petitioner contends that this language incorporates into section 504 the substance of section 604 of Title VI, which precludes any "action... except where a primary objective of the Federal financial assistance is to provide employment". Petitioner further contends that by thus incorporating section 604 Congress precluded private as well as agency action to prevent or redress employment discrimination other than in a federal employment programs. Petitioner's proposed construction flies in the face of the literal language of section 505. First, section 505 does not refer to all of Title VI, but only to the "remedies, procedures and rights" contained in that Title. Section 604 is neither a "remedy", a "right" nor a "procedure"; it does not provide persons aggrieved by a violation of Title VI with any substantive entitlements, with any form of redress, _/or with any method for obtaining that relief. Petitioner itself _/ Black's Law Dictionary defines a "remedy" as the means employed to enforce a right or redress an injury. (Rev. 5th ed. 1979, p. 1103). The term "right" generally connotes "a power, privilege faculty, or demand, inherent in one person and incident upon another" Id. at 1189. "Procedures" prescribe methods of "enforcing rights or obtaining redress for their invasion". Id. at 1083. The provisions of section 604 obviously fit none of thse definitions. _ ^ - never describes section 604 as a right, remedy, or procedure, but consistently and accurately refers to it instead as a "limitation" _ / _ /or "restriction" . Had Congress intended to incorporate into sections 504 and 505 all of Title VII, the restrictions as well as the rights, it could and would have said so. Second, the Title VI machinery referred to by section 505(a)(2) is not made the exclusive method of redress open to an aggrieved individual. Section 505(a)(2) is merely permissive, it provides that the Title VI rights, remedies and procedures "shall be available", but does not forbid resort to other rights, remedies or procedures. Far from "evincing an intent _ /to require identical enforcement" of Title VI and section 504, the words "shall be available" demonstrate an intent merely to add Title VI enforcement methods to whatever other devices might already be available to enforce section 504. Third, the restriction contained _/in section 604, as petitioner itself concedes, is literally applicable only to action by "any department or agency", not to litigation brought by a private individual. Thus even if section 505 had expressly made section 604 generally applicable to the enforcement of section 504, such a provision still would not affect the ability of the Federal Courts to afford relief in a civil action such as this. Petitioner suggests that such a literal reading of section 604 would give private individuals greater enforcement authority than is _/ Brief for Petitioner, pp 2,6,8; Petition for Writ of Certiorari, pp 8, 10, 12. _/ Brief for Petitioner, pp. 13, 19; Petition for Writ of Certiorari, pp 10, 14 n. 7. _/ Brief for Petitioner, p. 19. / Brief for Petitioner, p. 9. - -4 - _ /enjoyed by Federal agencies. But section 505 does not limit agency enforcement either, not merely because section 604 is not a right, remedy and procedure and because section 505 makes Title VI enforcement methods "available" but not mandatory, but also because section 505(a)(2), which incorporates the relevant Title VI provisions itself applies only to actions by aggrieved "persons". Thus, the limitation contained in section 604 is inapplicable to private parties because of the literal language of section 604, and inapplicable to federal agencies because of the literal language of section 505(a)(2) If section 505(a)(2) had the meaning urged by petitioner, it would have legalized employment discrimination against the handicapped in literally millions of jobs where it had been forbidden from 1973 through 1978. Such an implied partial repeal of section 504 is not to be inferred in the absence of unequivocal statutory language. Morton v. Mancari, 417 U.S. 535, 549-51 (1974). Other aspects of the 1978 amendments militate strongly against such a construction of section 505(a)(2). Section 505 itself is entitled "Remedies and Attorneys' Fees," 92 Stat. 2982, a title which clearly indicates the author's belief that they were assisting the implementation, not narrowing the substantive scope, of section 504. The provision for counsel fees contained in Section 505(b) signals a general congression al intent to facilitate rather than impede private enforcement of section 504. The programs authorized by the 1978 amendments confirmed the priority Congress continued to attach to the employment of handicapped individuals. Section 101 authorized over $3.7 billion over four years for vocational rehabiliation programs, programs which would be directly frustrated by employment discrimination against the / Id. at p. 10. - 7 4 - £- disabled. Title VI, the Employment Opportunities for Handicapped Individuals Act, authorized $260 million in funds for state and local governments to provide "useful opportunities in community service activities for handicapped individuals." 92 Stat. 2989-95. It is inconceivable that Congress would in the same statute have committed billions of dollars in aid to rehabilitate and provide jobs for the disabled and yet simultaneously have legalized discrimination against that very disadvantaged group by the recipients of other Federal grants. The report of the Senate Committee which drafted section 505(a)(2) explained that, far from restricting the scope of 504, it was "designed to enhance the ability of handicapped individuals to assure compliance _/with the Civil Rights Provisions of Title V ..." The report made clear that the phrase "procedures, remedies and rights set forth on Title VI" referred to the administrative rules which had been issued by HEW for implementing Title VI. It is the committee's understanding that the regulations promulgated by the Department of Health, Education and Welfare with respect to procedures, remedies, and rights under Section 504 conform with those promulgated under Title VI. Thus, this amendment codifies existing practice as a specific statutory requirement.__/ / S. Rep. Nov. 95-890, 95th Cong, 2d Sess., 18 (1978). / Id. 19. - 7 ' - That understanding was entirely accurate. HEW’s section 504 regulations themselves contained no procedural provisions; section 84.61 provided: The procedural provisions applicable to Title VI of the Civil Rights Act of 1964 apply to this part. These procedures are found in § 80.6-80.10 and Part 81 of this Title.__/ The cited Title VI regulations, which the commentary accompanying _ /section 504 described as "complaint and enforcement procedures" , concerned compliance reports, the conduct of investigations, methods for bringing about compliance, and the conduct of administrative hearings. See 42 Fed. Reg. 22695-701. The procedural regulations incorporated by reference into the section 504 regulations, and reprinted with them in the Federal Register, did not, however, include section 80.3 of the Title VI regulations, which define the "Discrimination Prohibited" by Title VI and limited its application to employment discrimination in federal employment programs. 45 C.F.R. § 80.3 (c). Thus when the Senate report asserted that the "procedures, rights and remedies "under the section 504 regulations "conform with those...under Title VI", it was referring to the incorporation by reference into section 84.61 of the procedural provisions of the Title VI regulations. The Senate committee did not, as petitioner suggests, "overlook the differences between the HEW regulations... under Title IV and Section 504... with respect to em- - 7 - - __/ 42 Fed. Reg. 22685 (1977). HEW had earlier declared its intent to incorporate by reference into Section 504 the Title VI procedural regulations. 41 Fed. Reg. 29548 (1976). / 42 Fed. Reg. 22694 (1977). -7o3 - ployment practices." Brief for Petitioner, p. 21. Rather, it was the identical Title VI and Section 504 procedural regula tions, not then differing substantive provisions, to which the words "procedures, rights and remedies" in both the Senate rpeort and Section 505(a)(2) refer. Petitioner's suggestion that Congress intended Section 505(a)(2) to radically reduce the protection afforded handicapped workers is inconsistent with the continued concern about employment _/discrimination activated during the Senate debates. Proponents of the bill repeatedly described Section 504 as protecting against employment discrimination by any federal _/ . .grantee. In opposing an amendment that would have limited the extent to which alcoholics and drug abusers were protected by Section 504, Senators Williams and Hathaway quoted a 1977 opinion of the Attorney General that: [SJection 504 does not mean that such a person must be hired...in a Federally assisted program if the manifestations of his condition prevent him from effectively performing the job in question...but... Section 504 does in general prohibit discrimination against alcoholics and drug addicts in Federally assisted programs solely because of _/their status as such. — 8— 124 Cong. Rec. 30304 (remarks of Sen. Randolph) (One of the areas where handicapped Americans have been subjected to unconscionable discrimination...has been in the area of employment), 30325 (remarks of Sen. Hathaway) ("There is ample evidence that addicts and alcoholics are subject to discrimina tion in access to...employment") _/ 124 Cong. Rec. 30323 (remarks of Sen. Williams), 30324-5 (remarks of Sen. Hathaway). Williams also quoted an opinion by the Secretary of HEW that "an alcoholic or drug addict may not be...disqualified from employment solely because of his condition..." Id. at 30323. — 7-5 - s- In arguing against a proposal that would have narrowed the circumstances under which courts could grant injunctive relief to redress employment discrimination by the Federal government, Senator Cranston asserted: I believe that the requirement with respect to Federal contractors and grantees should be no less stringent that the requirements attached to the Federal Government. The amendment would create an unwise and unrealistic distinc tion with respect of employment between the obl-igations of the Federal Government and the obligations of Federal contractors and grantees...[T]he... amendment would limit... the Federal Government's obligation of being an equal opportunity employer. Federal contractors and grantees would appropriately continue to be required to be equal opportunity employers. Rather than a leader in this field, the Federal Government would become a distant also-ran requiring more of its grantees and contractors than it would be willing to require of itself. __/ This argument would simply have made no sense if, as petitioner suggests, section 504 did not apply to the employment practices of most federal grantees. The sponsors and proponents of the Senate bill repeatedly assured their colleagues that the purpose and effect of the legislation were to expand the opportunities for the disabled. Senator Randolph, the floor manager, opened the debate by asserting that " [a]11 of the provisions of this bill... not only provide opportunities to handicapped Americans to aspire to certain goals but also provide the means by which they can / 124 Cong. Rec. 30577-7 / 124 Cong. Rec. 30303. - 7 < f --fO— _ /reach those goals." Senator Javits announced that the bill would "properly expand structurs currently in place to _ /protect the rights of [disabled citizens]." And Senator 2/Cranston, the author of section 505(a)(2) explained in a direct reference to that section that " [p]rovisions in the ... bill such as...certain application of appropriate Civil Rights remedies...should be important steps in our continuing efforts toward full participation in society by handicapped 3 /Americans." The discussion of the HEW regulations by the Congress which enacted the 1978 Amendments are entitely inconsistent with any intent to overturn section 84.11. In the spring of 1977, when the draft section 504 regulations containing section 84.11 were awaiting final action, members of both the House and Senate repeatedly took the floor to urge HEW to approve them as written. Representative Koch deplored Secre tary Califano's lack of commitment to signing the regulations _ / 124 Cong. Rec. 30303. L S 124 Cong. Rec. 30313. _2 / 124 Cong. Rec. 30346-47. _3/Sen. 124 Cong. Randolph) Rec. (bill 37509; see also _id. at "affirms not only the 30303 (remarks of rights of these severely and profoundly handicapped individuals but also strengths the rights and protections of all citizens"), 30337 (remarks of Sen. Dole)(bill "provides a host of opportunities for the handicapped"), 30349 (remarks of Sen. Cranston)(bill "promises a major step forward in our continuing efforts to assist handicapped individuals") 37506 (remarks of Sen. Stafford)(bill "will significantly enhance the opportunities for handicapped individuals") 37508 (remarks of Sen. Hathaway) (bill will "renew our national commitment to help these individuals help themselves"). — 7^s'— 44 _!/in their current form". Congressman Dodd expressed concern about possible changes in the draft, insisting "these 2/regulations must not be weakened". Senator Cranston called for the "prompt and effective implementation" of the regulations and wrote to Secretary Califano urging that the draft "be considered presumptively valid" and expressing 3/opposition to any changes tht might weaken them. Those pressing for issuance of the final regulations repeatedly stressed the need for protection against employment discrimina tion. Congressman Koch insisted tht thos ehandicapped indi viduals who, like himself, favored promoulgation of the regulations are simply remanding the right to participate as equals for opportunities for jobs they are capable of doing. They want no special consideration in employment, but simply the right to apply and not be rejected on the basis of their handicapp. when the handicap is not job related. _4/ The final promoulgation of those regulations by HEW was greeted with virtually unanimous praise by the Congress, with many speakers again referring to the problem of employment 1/ 123 Cong. Rec. • 2/ 123 Cong. Rec. 10455. J7 123 Cong. Rec. 10823. 4/ 123 Cong. Rec. 12410. - 7 6 - discrimination. The only concerns expressed about the regulations focused on whether the federal government _ /should bear a share of the financial cost of compliance. If, as petitioner urges, Congress intended section 505(a)(2) to incorporate section 604 of the 1964 Civil Rights Act, to override the well-know HEW regulations regarding employment discrimination, that intent was carried out through a conspiracy of silence. Nowhere in over 3000 pages of hearings, 4 committee reports, or two years of debate is there a reference to section 604. Not a single witness, Congressman or Senator ever voiced the slightest objection to the HEW regulations, or suggested that _/ 123 Cong. Rec. 10455; see also i^. at 10292 (remarks of Rep. Koch) ("Delays in implementing Section 504 have been cited as contributing to the consistently high rate of, employment among disabled persons..."), 10822 (remarks of Rep. Dodd)(this disabled "most not be forced to wait any longer before they are allowed to enjoy the same rights to a job...that the rest of our citizens have."), 12216 (remarks of Sen. Humphrey)(disabled regard Section 504 as "other charter for fair employment in jobs for which they qualify"). _/ 123 Cong. Rec. 12760 (remarks of Sen Randolph), 13342 (remarks of Sen. Cranston), 13515 (remarks of Sen. Humphrey), 13635 (remarks of Rep. Brodhead), 14133 (remarks of Rep. Koch), 14552 (remarks of Sen. Haskell). _/ 123 Cong. Rec. 17546-8 (remarks of Rep. Jeffords), 19051-52 (remarks of Rep. Jeffords), 32618 (remarks of Rep. O'Brien). Neither Jeffords nor O'Brien voiced any objection to the substance of the regulations. Jeffords condemned discrimination against the handicapped "based upon centuries of false stereotypes and distorted images", 123 Cong. Rec. 17548, but explained "If we in the Congress believe that discrimination against the handicapped is wrong, and I do, and he Federal Government is going to direct hoe to end the problem, then the Federal Government has an obliga tion to put its money where its mouth— and regulations— is and pay at leat part if not all the costs to carry it out." 123 Cong. Rec. 9051. fewer federal grantess would be forbidden to discriminate on the basis of handicap. Nothing in the reports or debates could have alerted the House or Senate to the possibility that the 1978 amendments would reduce the protections and remedies which for vfive years had been available to the disabled. If the authors of section 505(a)(2) intended to overturn the HEW regulations and partially repeal section 504, theirs was a plan that was never articulated to solve a problem that had never been mentioned through a change that was never revealed to any of their colleagues. n[I[n light of the great emphasis which the Act places upon securing employment opportrunities for handicapped invidiuals, it is remarkable to attribute to Congress a desire to gut this protection by such a deft, unheralded maneuver." Hart v. County _ /of Alamade, 405 F. Supp. 66, 72 (N.D. Cal. 1979) _/ Because of its view of section 504, the Court of Appeals did not have occasion to decide whether providing employment was "a primary objective" of any of the programs under which petitioner has received federal assistance. Should this Court hold that section 504 only applies to employment discrimination in programs iwth that objective, it should remand this case to the Court of Appeals for consideration of whether such programs were involved in this case. IV. THE DISCRIMINATION ALLEGED IN THIS CASE CONSTITUTED "DISCRIMINATION UNDER [A] PROGRAM OR ACTIVITY RECEIVING FEDERAL ASSISTANCE" WITHIN THE MEANING OF SECTION 504 Section 504, in language identical to that in Title VI and Title IX, provides that no person may on an impermissible basis "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 Although the terms of these prohibitions are similar, Titles VI and IX contain restrictions on its enforcement which are not found in section 504. Under Titles VI and IX the termination of funds is limited "in its effect to the particular program, or part thereof, in which noncompliance has been found," 42 U.S.C. §§ ____, ____ , and agencies are only authorized to promulgate regulations regarding discrim ination in the particular programs or activities for which they provide assistance. 42 U.S.C. §§ ____, ____ . These restrictions, however, do not apply to other remedies under titles VI and IX, and do not limit agency enforcement of section 504. In North Haven Board of Education v. Bell, this Court, while noting the program-specific nature of Title IX, did not attempt to define "program." ____ U.S. at ____, 72 L.Ed. 2d at 319. We do not here attempt to offer a comprehensive explication of the "program or activity" language of section 504. The experience of the lower courts in applying section 504, Title VI and Title IX demonstrates that federal funds benefit individuals, and discrimination may injure them, in a wide variety of ways and circumstances. We believe the Court should not attempt to define in a single opinion the legal status of each of these situations, and urge instead that the explication of the "program or activity" language proceed on a case by case basis. Petitioner Conrail was established pursuant Regional Rail Reorganization Act of 1973, 45 U.S.C. § 701 et seq. In light of the bankruptcy of eight major railroads, and the possibility of termination of the rail service which they provided, Congress directed the reorganization of the rail roads into a single system operated by a federally chartered corporation. Regional Rail Reorganization Cases, 419 U.S. 102, 108-117 (1974). Because of the financial condition of the railroads to be merged into this system, Congress recognized that a substantial infusion of federal funds would be required. Under section 216 of the act, 45 U.S.C. § 726, Conrail has received $3.28 billion, which may be used for the modernization of rail properties, for the acquisition of equipment, for the refinancing of indebtedness, or as working capital. 45 U.S.C. § 726(b)(1). Under Title V of the act, 45 U.S.C. § 797 et seq., Conrail has received $317.8 million in federal aid to assist workers adversely affected by the consolidation of the rail lines. Title V funds can be utilized by Conrail to retrain or move workers, and to pay allowances to unemployed or terminated employees. The total amount received by Conrail under the Rail Act, over three and one half billion dollars exceeds the sum of ail federal aid received by many states and most cities in recent years. We maintain that Conrail's refusal to employ LeStrange meets section 504's "program or activity" requirement for several distinct reasons. First, we urge that the term "program" includes the particular activities which the recipient actually seeks and obtains federal funds to engage in. It is not, however, necessary that these activities be wholly funded by the federal government; section 504 speaks of federal "assistance", not of exclusively federal support. Section 27.9(a) of the DOT regulations requires: Each application for Federal financial assistance to carry out a program ... shall, as a condition to approval... be accompanied by, written assurance that the program will be conducted ... incompliance with all the requirements imposed by ... this part. 49 C.F.R. § 27.9(a) (emphasis added). The earlier HEW section 504 and Title VI regulations are similar. 45 C.F.R. §§ 80.4(a)(1), 85.5(a). The protection afforded by this assurance extends to the entire program of activities for which federal funds are to be provided. Employment of engineers such as LeStrange was clearly among the functions for which federal assistance was sought and given by Conrail. Any or all of the $3.28 billion in section 216 funds could be used as working capital to meet ordinary Conrail business expenses; $631 million were ac tually applied for such purposes. A-17. Petitioner, however suggests that section 504 requires proof that "the position for which LeStrange applied was funded with federal money.... But neither the applicable regulations nor the statutory language support such a narrow construction of section 504; that provision is "program-specific" not "job-specific." It petitioner is correct section 504 would apply only to those employees whom the recipient chose to pay with federal funds. Were that the case Conrail's accountants, not federal law, / Brief for Petitioner, p. 25; see also id. at 26. would determine who was protected by section 504 and Conrail could evade completely the commands of section 504 merely by using non-federal funds for any job slot from which it intended to exclude a handicapped worker. Such a construction of the law would allow major institutions receiving substantial amounts of federal aid to dissect themselves, at whim, into discrete entities, to allocate federal dollars into programs which cannot discriminate against handicapped persons, and to free privately obtained funds from those programs and instead to channel such money into programs purportedly immune from Section 504 strictures. Wright v. Columbia University, 520 F. Supp. 789, 792 (E.D. Pa. 1981.J Only by reading section 504, as do the DOT and earlier HEW regulations, to cover all activities for which the federal assistance could be used can such evasion be prevented. Second, under both section 504 and the applicable regulations that protections against discrimination extend as far as the benefits that flow from the federal assistance. Section 504 applies, not only to exclusion from direct "participation" in the federally assisted programs, but also to denials of any of the "benefits" of that program. The DOT regulations, like the HEW regulations before it, thus construe section 504 to apply to any program that "receives or benefits from federal financial assistance."— ^ The tracing of such benefits will often raise complex factual issues. In this case, however, two distinct DOT regulations compel the con clusion that LeStrange was covered by section 504. First where federal funds are employed to acquire or improve _/ See also United States v. City of Chicago, 549 F .2d 415, 442 (7th Cir. 1977); Haffer v. Temple University 524 F.Supp. 531 (E.D. Pa. 1981). _/ 49 C.F.R. § 27.7(a) (emphasis added); see also 45 C.F.R. §§ 84.4(a). real or personal property, the nondiscrimination require ment applies to that property indefinitely so long as it continues to be "used tor the purpose for which the Federal financial assistance was provided or for a similar purpose." 49 C.F.R. §§ 27.9(b)(1) and (b)(2). In the instant case Conrail spent over $800 million in federal funds to purchase railroad cars, or other equipment. A-17. It is inconceiv able that none of this vast acquisition was at any time used on the jobs where LeStrange would have worked, and Conrail does not claim that this occurred. Section 27.7(b)(6) of the DOT regulations also provides: [T]he aid, benefit, or service provided under a program or activity receiving or benefitting from federal financial assistance includes any aid, benefit, or service provided in or through a facility that has been constructed, expanded, altered, leased or rented ... in whole or in part, with federal assistance. This regulation has its roots in Simkins v. Moses H. Cone Memorial Hospital,— ^ which served as a model for Title VI, and which held all the activities of a nominally private hospital were "state action" because part of the hospital had been built with federal funds.— ^ In this case Conrail used $1.4 billion in federal funds for the construction and replacement of track. A-17. Conrail's system of con tiguous track and road bed constitutes a single facility within the meaning of the regulations. See 49 C.F.R. § 27.5. Thus even if the tracks and buildings which LeStrange would have used were not built or renovated by federal / 323 F.2d 959 (4th Cir. 1963) (en banc), cert, denied 376 U.S. 938 (1964) . _/ See 323 F.2d at 971 (Haynsworth, J., dissenting). - < ? 3 , — funds, the use of federal aid for that purpose elsewhere in the system renders section 504 applicable throughout. The benefit of federal assistance may also extend beyond the immediate activity for which it is expended if it in fact replaces funds which the recipient is thus free to spend on other activities. Often, of course, the federal aid will be used tor a program which would not have been operated but for that assistance, or be applied to increase the size or scope of some pre-existing function. In such cases there would be no non-federal funds released for other purposes. But where a plaintiff can show that one of the benefits of federal assistance was to displace other funds which the recipient was able to use elsewhere, and that the amount of the funds thus released for general purposes was not de minimis, the benefit of the federal assistance includes the equivalent of unrestricted grant in the amount of the released funds, and extends to any activities for which they could have been spent.— ^ Ordinarily ascertaining whether such funds had thus been released for general use would involve factual issues to be resolved in the first instance by the trial court. In this case, however, such an eviden tiary inquiry is not necessary. The $317 million in Title V funds were specifically intended to relieve Conrail of its contractual obligations under collective bargaining agreements in existence in 1973 to provide severance pay or other _/ See Haffer v. Temple University 524 F.Supp. 531, 537 (E .D . Pa. 1981); Poole v. South Plainfield Board of Education, 490 F.Supp. 948, 951 (D.N.J. 1980); Bob Jones University v. Johnson, 396 F.Supp. 597, 602-03 (D.S.C. 1974), aff'd sub nom. Bob Jones University v. Rhodebush, 529 F .2d 514 (4th Cir. 1975). benefits to employees who lost their jobs. Section 504(a) expressly superseded all job stabilization provisions in those agreements, 87 Stat. 1014, and the severance pay formula contained in section 505(f) was based on the formula that would have applied under those agreements. S. Rep. No. 93-601, 93rd Cong., 1st Sess., ____ (§ 605) (1973). Thus the very purpose of Title V was to help meet Conrail's pre existing financial obligations to its employees, and thus to release for other uses the funds which would otherwise have been expended to meet those obligations. CONCLUSION For the above reasons the decision of the Court of Appeals should be affirmed. Respectfully submitted, JOSEPH P. LENAHAN* P.0. Box 234 Scranton Electric Building 507 Linden Street Scranton, PA. 18503 (717) 346-2097 Attorney for Respondent *Counsel of Record