ML23156A110

PR-004 - 49FR34138 - Enforcement of Nondiscrimination on the Basis of Handicap in Federally Conducted Programs (No Sign Date)

ML23156A110
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Issue date:	08/28/1984
From:	NRC/SECY
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PR-004, 49FR34138
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ADAMS Template: SECY-067 08/28/1984 PR-004 - 49FR34138 - ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN FEDERALLY CONDUCTED PROGRAMS (NO SIGN DATE)

PR-004 49FR34138 RULEMAKING COMMENTS Document Sensitivity: Non-sensitive - SUNSI Review Complete

PAGE 1 OF 2 STATUS OF RULEMAKING RECORD 1 OF 1

PROPOSED RULE:

PR-004 RULE NAME:

ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF H ANDICAP IN FEDERALLY CONDUCTED PROGRAMS (NO SIGN D ATE)

PROPOSED RULE FED REG CITE:

49FR34138 PROPOSED RULE PUBLICATION DATE:

08/28/84 NUMBER OF COMMENTS:

7 ORIGINAL DATE FOR COMMENTS:

I I

EXTENSION DATE:

I I

FINAL RULE FED. REG. CITE: 51FR22880 FINAL RULE PUBLICATION DATE: 06/23/86 NOTES ON: VOLUME 1(8/28/84 -

3/20/85). (NO FR SIGN DATE)

ATUS

FILE LOCATED IN P-1 RULE:

PRESS PAGE DOWN OR ENTER TO SEE RULE HISTORY OR STAFF CONTACT PRESS ESC TO SEE ADDITIONAL RULES, (E) TO EDIT OR (S) TO STOP DISPLAY PAGE 2 OF 2 HISTORY OF THE RULE PART AFFECTED: PR-004 RULE TITLE:

OPOSED RULE CY PAPER:

ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF H ANDICAP IN FEDERALLY CONDUCTED PROGRAMS (NO SIGN D ATE)

PROPOSED RULE SRM DATE:

I I

DATE PROPOSED RULE SIGNED BY SECRETARY:

DOCKET NO. PR-004 (49FR34138)

In the Matter of ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF H ANDICAP IN FEDERALLY CONDUCTED PROGRAMS (NO SIGN D ATE)

DATE DATE OF TITLE OR DOCKETED DOCUMENT DESCRIPTION OF DOCUMENT

-10/01/84 09/27/84 COMMENT OF MINNESOTA STATE COUNCIL FOR HANDICAPPED (SUSAN LASOFF) (

10/24/84 10/23/84 COMMENT OF PARALYZED VETERANS OF AMERICA (ARLENE J. BATTIS) (

2) 11/28/84 11/20/84 COMMENT OF ASSOCIATION FOR RETARDED CITIZENS (ARC)

(CHARLES W. JELLEY) (

3) 12/24/84 12/20/84 COMMENT OF NATIONAL CENTER FOR LAW & THE DEAF (KAREN PELTZ STRAUSS ET AL) (

4) 12/24/84 12/21/84 COMMENT OF PUBLIC INTEREST LAW CENTER OF PHILA.

(TIMOTHY M. COOK ET AL) (

5) 12/26/84 12/21/84 COMMENT OF DEAF COUNSELING, ADVOCACY & REFERRAL AGY (NICHOLAS LANZA) (

6) 03/25/85 03/20/85 COMMENT OF PUBLIC INTEREST LAW CENTER OF PHILA.

(TIMOTHY M. COOK) (

7)

PUBLIC iNTEREST LAW CENTER OF PHILADELPHIA THOMAS K. GILHOOL CHIEF COUNSEL JEROME BAL TEA MICHAEL CHURCHILL FRANK J. LASKI OQ(;t-;ETEO USNliC

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DAVID G. DAVIS ADMINISTRATIVE OFFICER 1315 WALNUT ST., suiribt113a: PHIL.A~191Q STANLEY R. WOLFE CHAIRMAN OF THE BOARD F1CE "IJ:' ~ l-1:. iAk' 215

• PE 5-7200 EDWIN D. WOLF EXECUTIVE DIRECTOR J:KEi

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March Secretary U. S. Nuclear Regulatory Commission 1717 H Street, N.W.

Washington, DC 20555 Attention:

Docketing and Service Branch

Dear Sir/Madam:

The attached supplemental comments pertain to your notice of proposed rulemaking of August 28, 1984 concerning your enforcement regulation for Section 504 of the Rehabilitation Act of 1973.

They are submitted out of time in order to bring to your attention an important legal development that occurred after the close of your comment period.

TMC/pjk Enclosure Very truly yours, Timothy M. Cook AFFILIATED WITH LAWYERS COMMITTEE FOR CIVIL RIGHTS UNDER LAW 1974-1976

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Notice of Proposed Rulemaking:

Enforcement of Nondiscrimination o n the Basis of Handicap in Federally Conducted Programs (49 Fed. Reg. 34132 (August 28, 1984))

Supplemental Comments of Advocacy, Inc., Disabilities Unlimited, Disabled in Action of Baltimore, Disabled in Action of Kentucky, Disabled in Action of New Jersey, Disabled in Action of New York, Disabled in Action of Pennsylvania, Disabled in Government, District of Columbia Services for Independent Living, Federation of Recipients with Activism Regarding Disabilities, Handicaps Unlimited of Virginia, Independence Center, MH/MR Consumer Advocates of Bucks County, Inc.,

Michigan Protection an d Advocacy Services for Develop-mentally Disabled Citizens, Open Doors for the Handi-capped of Pennsylvania, The Allegheny Accessibility Coalition, The Association for the Severely Handicap-ped, The Atlantis Comm u~ity, The California Disability Rights Union, The Chicago Council for Disability Rights, The c *olorado Coalition for Persons with Disabilities, The Department of Justice Handicapped Employees Association, The Florida Council of Handicap-ped Organizations, The Georgia State Advocacy Office, The Handicapped Advocacy Network of Delaware, Inc., The Maryland Alliance of Advocates of the Handicapped, The National Council of Independent Living Programs, The National Spinal Cord Injury Association, The New York State Coalition of People with Disabilities, The North Carolina Alliance of Disabled and Concerned Citizens, The Pennsylvania Coalition of Citizens with Disabili-ties, The Pennsylvania Developmental Disabilities Advocacy Network, The Philadelphia Resources for Living Independently Association, The Spina Bifida Associa-tion, The Southeastern Wisconsin Center for Independent Living, The Tennessee Coalition of Citizens with Disabilities, The Vermont Center for Independent Living, Vermont Developmental Disabilities Protection and Advocacy, The Wisconsin Disability Coalition, The Wisconsin Governor's Committee for People with Disabil-ities, The World Institute on Disability THOMAS K. GILHOOL FRANK J. LASKI TIMOTHY M. COOK JUDITH A. GRAN Public Interest Law Center of Philadelphia 1315 Walnut Street, Su i te 1632 Philadelphia, PA 19107 Attorneys for Commen t ers

We submit these brief supplemental comments in order to bring to your attention an important Supreme Court decision, Alexander v. Choate, 105 S.Ct. 712 (1985), affecting the vali dity of the "undue burden" provision of your proposed Section 504 regulations.

Because this case was decided following the close of your comment period, we were unable to include a discussion of this case in our previously submitted detailed comments.

In a unanimous decision, the Alexander Court removed any doubt about the validity of the original HEW recipient regulation, 45 C.F.R. part 84, and the other recipient regulations requiring program accessibility without waivers for undue burdens."

The Court "recognized these regulations as an importait source of guidance on the meaning of Sec. 504," 105 S.Ct. at 722 n.24, and noted its earlier "holding" in Consolidated Rail Corp. v. Darrone, 104 S.Ct. 1248 (1984), "that 1978 Amendments to the [Rehabilita-tion] Act were intended to codify the regulations enforcing Sec. 504," 105 S.Ct. at 722-23 n.24.

The Alexander Court went even further, specifically quoting with approval the very provisions of the recipient regulations that your proposed regulations now--erroneously--claim are ultra vires.

The Court flatly stated that the "regulations implementing Sec. 504 are consistent with the view that reasonab l e adjustments in the nature of the benefit offered must at times be made to assure

meaningful access," and quoted with specific approval 45 C.F.R. Sec. 84.23, which it described as "requiring that existing facilities eventually be operated so that a program or activity inside is, 'when viewed in its entirety,' readily accessible ***. " 105 S.Ct. at 721 n.21.

The Court also concluded that "elimination of architectural barriers was one of the central aims" of Congress in enacting Section 504.

Id. at 719.

As noted above, the Alexander Court specifically held that the current program accessibility regulations for grantees, the ones without any waiver provision for "undue burdens" "are consistent with [its] view [of Davis] that reasonable adjustments in the nature of the benefit offered must at times be made to assure meaningful access."

Id. at 721 n.21.

The agency's proposed regulation, by falling short of this requirement, "effectively denies otherwise qualified 2 -

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handicapped individuals the meaningful access to which they are entitled."

Id. at 721.

March 20, 1985 Respectfully submitted,

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THOMAS K. GILHOOL FRANK J. 7\SKI Q.ua~ {}_.. -Ab-~-

JliDITH A. GRAN

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TIMOTHY M.

Public Interest Law Center of Philadelphia 1315 Walnut Street, Suite 1632 Philadelphia, PA 19107 (215)735-7200 Attorneys for Commenters 3 -

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Deaf Counseling, Advocacy, and Referral Ag~~fc fl 1, John F Levesque Executive Director BOARD OF DIRECTORS Ronald Herbold President Diane Morton Vice President At Fortney w

srary Dale Ritter Treasurer Thom Allison Steve Bock Ron Burdett Rhoda Clark Edward Cossart William Cutler Hazel Davis Al Duncan Norbert Enos Joseph Faria Susan Frankovich James Gatehouse Richard Hough Dale Ice Leo Jacobs Jack Lamberton Daniel Langholtz Steve Longo Lynch s Miller Rogers Lawrence Siegel Dean Swaim Pat Z1nkov1ch Secretary HEADQUARTERS 125 Parrott Street

• San Leandro, CA 94577 (415) 895-2430, 31 (Voice)

• 895-2432 (TTY)

December 21, U.S. Nuclear Regulatory Comm.

1717 H Street NW Washington, D. C. 20555 RE:

Comments on proposed rulemaking "Enforcement of of Nondiscrimination on the Basis of Handicap in Federally Conducted Programs" (49 Fed.Reg. 34132, August 28, 1984)

Dear Secretary:

The Deaf Counseling, Advocacy and Referral Agency (DCARA) submits these comments to the above referenced proposed rules.

DCARA is a soc i al service agency providing assistance to the more than 350,000 hearing-impaired persons in the ten county San Francisco Bay Area through its offices in San Leandro, Oakland, San Jose, and San Mateo.

We commend your Agency for publishing these proposed rules.

Although some or even many of the agencies joining together to publish these rules may have no present contact with the disabled, publishing them is nonetheless important because it reinforces the Federal policy behind Section 504 that all of our society is to be open on an equal basis to the disabled.

At the same time, however, we feel that your Agency could have taken a more energetic approach to this rule-making.

Instead of adopting the Department of Justice pro-totype Section 504 regulations for federal agencies with almost no changes, it would have been m'Cre ff e~t.1.v..a to written the regulations with your Agency 1s*~ pec i f

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tions in mind.

For example the comments to sections.130,

. 150 or.160 all could have included concrete examples taken A united way Agen~rom the everyday functions of your Agency.

As they OAKLAND OFFICE 477 15th Street #200

• Oakland, CA 94612 (415) 465-0927 (TTY)

• 465-0926 (Vo,ce)

SAN LEANDRO OFFICE SAN MATEO OFFICE SAN JOSE OFFICE 157 Parron Street

• San Leandro, CA 94577 134 North B Street

• San Mateo. CA 94401 1663A W San Carlos St

• San Jose, CA 95t28 (415) 895-2520 (TTY)

• 895-2440 (Vo,ce)

(415) 347-6672 (TTY)

• 347-667 (Voce)

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are written, the proposed rules are exceedingly general, and i n some sections have no apparent relevance to your Agency's usual interaction with either private citizens or other federal employees, whethe r hand icapped or not.

Expressly relating these regulations to your Agency's functions would not only encourage your Agency t o examine more closely its actual and potential i nteractions with disabled individuals, but also would make the eventual adopti on of t hese rules more meaningful by giving both Agency personnel and the disabled more specific guidance.

Our other main problem with these proposed rules is the inclusion of the Dayis "undue financial and administra-tive burdens " defense in secti ons.150 "Program accessibil-ity:

Existing facilities", and.160 "Communications".

Quite simply, we feel that your Agency is not r equired to fo 1 ow the holding in 12.,.9:_yis h~cRuse that decision i nvolved the requirements placed by Section 504 on reeipients of federal aid, not federal agencies.

Your Agency is proposing regulations that will govern itself, not others.

Thus, Dayis clearly does not control and your Agency is free to adopt a less restrictive Section 504 interpretation to govern i t self.

We stress that the United States Government should be a model of accessibility.

We know from experience that local federal administrators, citing hardship, have used the undue financial and administrative burdens defense to refuse all but the smallest expenditures or burdens for handicap accommodation.

We feel that such a counterproductive approach will be encouraged if the proposed language is allowed to remain unchanged in your Agency's regulations.

Since the your Agency is under no duty to adopt the undue burdens defense it should strike the language from the proposed rule or at a minimum, explain it and provide specific examples of its potential application.

Should you elect to retain the undue burdens defense, we nevertheless feel there should be some mechanism in sec ions. 150(~)(3) a nd. 160( e) f o r me~t i ng the needs of the handicapped person who is awaiting a personal determination by the Agency head whether compliance would result in undue financ i al or administrative burdens.

We suggest a 30-day time l imit for the issuing of such a determination.

Without such a mechanism, it is quite forseeable that lower level administrators might "kick upstairs" a handicapped person's request for accommodation, making that ' person-wait p~rhaps many months for a decision by the. Agency head that an undue burden actually existed.

Should the Agency h~ad eventually dec i de that no undue burden existed, the handi~apped person *in the meantime could well have lost an important right or benefit.

Com~ents upon the other sections of the proposed rules are as follows:

1.

Section. 130,* Genera l prohibitions against discrimination.

We believe the your Agency has erred by omitting the provision found in the federal financial assistance regulations t hat prohibits aiding or perpetuating discrimination by ass isting an Agency, organization, or person that discrimi nat es against handicapped persons.

(28 CFR 41.51(b)(1)(V) & (b)(3)(iii) (1982).)

There is no apparent rationale fo r a llowing government agencies to perpetuate di scrimination by ass i st i ng discriminators when recipients of federal financia l assistance are prohibited from doing so.

2.

Section. 17 0, Compliance procedures.

This proposed section is clearly lacking i n necessary detail.

It omits guidance on such i mportant matters as who may f ile a complaint, whe n and how to file, and confidentiality.

It also lacks provi sion f or a complainant to have his or her appeal hear rl by a administrat*ve l aw judge.

To remedy these deficiencies, we recommend that the compliance section fro~ the Department of Justice f i nal ru l e (49 Fed. Reg. 35724, 35737, September 11, 1984) be substituted for this section.

3.

Also, we believe that, counter to the language in section.130(6), the protections of this part should be extended to programs or activities of entities that are licensed or certified by your Agency if such programs in fact exist.

Such a prohi bition would foster the broad nat i onal policy of non-discrimination on the basis of handicap expressed in federal laws such as in Section 504.

All federal agencies should undertake to foster important national policies within their respective spheres of activity.

We thank your Agency for the opportunity to comment on this proposed rule and trust you will continue to give the needs of the disabled serious consideration.

NL/vdr Very truly yours, NcA~~

Nicholas Lanza Advocacy Specialist THOMAS K. GILHOOL CHIEF COUNSEL JEROME BALTER MICHAEL CHURCHILL FRANK J. LASKI DAVID G. DAVIS ADMINISTRATIVE OFFICER Secretary PUBLIC INTEREST LAW CENTER OF PHILADB..PHIA l1CO !~

December 21, 1984 oor.1S11M11 215

• PE 5-7200 EDWIN D. WOLF EXECUTIVE DIRECTOR 1974-1976 U. S. Nuclear Regulatory Commission 1717 H Street, N.W.

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Washington, D.C.

20555 Attention:

Docketing and Service Branch

Dear Sir/Madam:

Enclosed are our Comments on your proposed rule concerning enforcement of non-discrimination on the basis of handicap in programs or activities conducted by your agency, which appear at 49 Fed. Reg. 34132 ( August 28, 1984), which we submit on behalf of the organizations that comprise the Save 504 Coalition.

We appreciate your attentiveness to these Comments.

TMC/rll Enclosure Very truly yours,

~-

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Ti~Cook Judith A. Gran Frank J. Laski Thomas K. Gilhool

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bt illlM.:i:~ ::c-AFFILIATED WITH LAWYERS COMMITTEE FOR CIVIL RIGHTS UNDER LAW

U.S. NUCLEAR REGU! AT RY COMMrss1011 DOCKETING & SE ' 1,,. SECT/ON OfF1rr. OF T'

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Notice of Proposed Rulemaking:

Enforcement of Nondiscrimination on the Basis of Handicap in Federally Conducted Programs (49 Fed. Reg. 34132 (August 28, 1984))

Comments of Advocacy, Inc., Disabilities Unlim-ited, Disabled in Action of Baltimore, Disabled in Action of Kentucky, Disabled in Action of New Jersey, Disabled in Action of New York, Disabled in Action of Pennsylvania, Disabled in Govern-ment, District of Columbia Services for Indepen-dent Living, Federation of Recipients with Acti-vism Regarding Disabilities, Handicaps Unlimited of Virginia, Independence Center, MH/MR Consumer Advocates of Bucks County, Inc., Michigan Protec-tion and Advocacy Services for Developmentally Disabled Citizens, Open Doors for the Handicapped of Pennsylvania, The Allegheny Accessibility Coalition, The Association for the Severely Han-dicapped, The Atlantis Community, The California Disability Rights Union, The Chicago Council for Disability Rights, The Colorado Coalition for Per-sons with Disabilities, The Department of Justice Handicapped Employees Association, The Florida Council of Handicapped Organizations, The Georgia State Advocacy Office, The Handicapped Advocacy Network of Delaware, Inc., The Maryland Alliance of Advocates of the Handicapped, The National Council of Independent Living Programs, The Na-tional Spinal Cord Injury Association, The New York State Coalition of People with Disabilities, The North Carolina Alliance of Disabled and Con-cerned Citizens, The Pennsylvania Coalition of Citizens with Disabilities, The Pennsylvania De-velopmental Disabilities Advocacy Network, The Philadelphia Resources for Living Independently Association, The Spina Bifida Association, The Southeastern Wisconsin Center for Independent Liv-ing, The Tennessee Coalition of Citizens with Dis-abilities, The Vermont Center for Independent Liv-ing, Vermont Developmental Disabilities Protection and Advocacy, The West Virginia Advocates for the Developmentally Disabled, The Wisconsin Coalition for Advocacy, The Wisconsin Disability Coalition, The Wisconsin Governor's Committee for People with Disabilities, The World Institute on Disability THOMAS K. GILHOOL FRANK J. LASKI TIMOTHY M. COOK JUDITH A. GRAN Public Interest Law Center of Philadelphia 1315 Walnut Street, Suite 1632 Philadelphia, PA 19107 (215) 735-7200 Attorneys for Commenters

These comments are submitted in response to the notice of proposed rulemaking appearing in the Federal Register on August 28, 1984.

That notice concerned "enforcement of. nondis-crimination on the basis of handicap in federally conducted pro-grams."

The proposed rule was issued to enforce the 1978 amend-ments to Section 504 of the Rehabilitation Act of 1973, 29 u.s.c.

§794.

Those amendments made the provisions of Section 504, the "Disabled Persons' Civil Rights Act," applicable to "any program or activity conducted by any Executive agency."

The amendments also required that "the head of each such agency shall promulgate such regulations as may be necessary to carry out the amendments to this section.*"

Commenters are organizations of disabled persons, and their advocates.

Their membership includes over one million dis-abled people, many of.whom are beneficiaries of the* programs' and activities covered by the proposed rule.

Commenters also are plaintiffs in a suit filed on November 15, 1984, Department of Justice Handicapped Employees Association, et al. v. Smith, No.

84-5645 (E.D. Pa.) challenging the validity of certain provisions of the final rule recently promulgated by the Department of Jus-tice (49 Fed. Reg. 35724 (Sept. 11, 1984)) for the enforcement of Section 504.

We believe your proposed rule, if promulgated in its current form, invites.a.:similar challen~e.

While we are troubled by various sections of the proposed rule, we believe that most of our concerns are being addressed

sufficiently by other commenters.*

Thus, our comments are di-rected exclusively to certain portions of the "program access-ibility" (§~150) and the "communications" (§.160) provisions of the proposed regulation, which carve out a broad exception to Section 504's imperative that handicapped people be included, accommodated and integrated into federal programs.

Those sec-tions*both flatly state that the proposed rule "does not re-quire the agency to take any action that it can demonstrate would result... in undue financial and administrative burdens."

We vigorously oppose inclusion of these provisions.

They un-necessarily create a substantial exception to Section 504's co~erage.

The exceptions are not clearly mandated by the case law.

Nor has there been any attempt whatsoever that we know of to assert any factual necessity for these exceptions.

Un-der the formulation of the proposed rule, Section 504 ~£fects only those activities that an agency head desires to be COV7 ered.

Thus, qualified handicapped persons may legally be ex-cluded from participating in or denied the benefit of a federal program so long as an agency head decides that any efforts ne-cessary to accommodate that person would be an "undue financial burden" or an "undue administrative burden."

We believe that a regulation permitting such an exception is improper.

We base this conclusion on several independent points, as detailed below.

• In that regard, we specifically endorse the comments submitted to you on behalf of the Disability Rights Education and Defense Fund.

2 -

1.

We begin by setting forth the proper framework within which the "burdens" exception may be analyzed.

It is well-set-tled that Section 504 was enacted as major civil rights legisla-tion.

See Consolidated Rail Corp. v. Darrone, 104 S.Ct. 1248 (1984); Community Television of Southern California v. Gottfried, 103 S.Ct. 885 (1983).

"As is apparent from its language, Sec-tion 504 is intended to be part of the general corpus of dis-crimination law," and therefore must be construed in terms of "general princ~ple[s] of discrimination law."

New York State Ass'n for Retarded Children v. Carey, 612 F.2d 644, 649 (2nd Cir. 1979).*

If Section 504 were not civil rights legislation, a stronger case could possibly be made for the "burdens" provision of the proposed regulation.

But, as Professor Sutherland indi-cates:

There has now come to be widespread agree-ment, however, that civil rights acts are remedial and should be liberally construed in order that their beneficent objectives may be realized to the fullest extent pos-sible.

To this end, courts favor broad and inclusive application of statutory lan-guage by which the coverage of legislation

• Section 504 _was intended to be "a bill of rights for the handicapped."

119 Cong. Rec. 7105 (1973).

During the de-bates on the 1978 amendments to Section 504, Senator Stafford referred to that law as "the base line civil rights provision for handicapped Americans."

124 Cong. Rec. Sl5572 (September 20, 1978).

3 -

to protect and implement civil rights is defined.

This policy has found application in determining such questions as, for exam-ple, what activities or circumstances are subject to a prohibition against discrimina-tion, and what constitutes a violation.

Cor-relatively, exceptions and limitations which restrict the operation of such laws are strictly construed.

3 Sutherland, Statutes and Statutory Construction, §72.05, at 392 (4th ed.).

Like Title IX of the Education Amendments of 1972, whose language it tracks, Section 504 must be accorded "a sweep as broad as its language."

North Haven Board of Educa-tion v. Bell, 102 s.ct. 1912, 1918 (1982), q*uoting United.States v.

Price, 383 U.S. 787, 801 (1966).

The language of Section 504, like that of Title VI, whose words Section 504 also copies, "is majestic in its sweep."

Board of Regents of the University of California v. Bakke, 438 U.S. 265, 284 (Powell, J.) (1978).*

Thus, "Section 504, as [a] remedial statute, should be broadly applied and liberally construed."

S-1 v. Turlington, 635 F.2d 342, 347 (5th Cir.), cert. denied, 454 U.S. 838 (1981): -

• Accord, id. at 387 (Brennan, White, Marshall & Blackmun, JJ.) (under Title VI, "Congress... clearly desired to encourage all remedies... to eliminate discrimination"); NAACP v. Medical Center, Inc., 599 F.2d 1247, 1251 (3rd Cir. 1979) ("Section 601 is unequivocal, broad, and remedial in nature"); United States

v. El Camino Community College District, 454 F.Supp. 825, 829 (C.D. Cal. 1978), aff'd, 600 F.2d 1258 (9th Cir. 1979), cert.

denied, 444 U.S. 1013 (1980) (" to effectuate the remedial pur-pose of Title VI, the statute should be liberally construed");

Bob Jones University v. Johnson, 396 F.Supp. 597, 604 (D.S.C.

1974), aff'd sub nom. Bob Jones University v. Roudebush, 529 F.2d 514 (4th Cir. 1975) ("narrow readings of Title VI coverage are inappropriate").

4 -

We cannot emphasize too strongly that this special stan-dard requires agencies to take extraordinary care before limit-ing the scope of laws like Section 504.

If persuasive arguments can be made to both challenge and defend the "burdens" exception, then the black letter law of statutory construction compels dele-tion of that exception in view of the preference for "broad and inclusive application of statutory language by which the coverage of legislation to protect and implement civil rights is defined."

Sutherland, supra, at 392.

2.

Justice Powell was not exaggerating in the least when he judicially recognized that the language of Title VI, and al-so Section 504 since it uses the exact same words, "is majestic in its sweep."

Regents v. Bakke, 438 U.S. at 284.

Section 504 states that "no" handicapped person, if qualified, can be "ex-cluded from the participation in" or "denied the benefits of

... any program or activity" conducted by federal agencies or recipients of federal assistance.

This broad language was originally enforced via a regu-lation promulgated by the Department of Health, Education and Welfare (HEW)

• in-1977 for re:c.ip:ients of its assistance, 45, C. F. R.

Part 84.

That regulation contained numerous concessions to those recipients.

For example, that regulation restricted the requirement that employers provide reasonable accommodations to those instances that do not present an undue hardship, id.

5 -

at §84.12(a); did not require that all existing facilities be made accessible, id. at §84.22(a); and limited the requirement that small providers of health, welfare and social services pro-vide auxiliary aids, id. at §84.52(d).

As the Secretary of HEW stated in the Preamble to that regulation:

"Section 504... represents the first Federal civil rights law protecting the rights of handicapped persons and re-flects a national commitment to end dis-crimination on the basis of handicap.

The language of section 504 is almost

• identical to the comparable nondiscrimi-nation provisions of title VI of the Civil Rights Act of 1964 and title IX of the Education Amendments of 1972 (ap-plying to racial discrimination and to discrimination in education on the basis of sex).

It establishes a mandate to end discrimiriation and to bring handi-capped persons into the mainstream of American life.

The Secretary intends vigorously to implement and enforce that mandate....

"There is overwhelming evidence that in the past many handicapped persons have been excluded from programs entirely or denied equal treatment, simply because they are handicapped.

But eliminating such gross exclusions and denials of equal treatment is not sufficient to assure gen-uine equal opportunity.

In drafting a regu-lation to prohibit exclusion and discrimi-nation, it became clear that different or special treatment of handicapped persons, because of their handicaps, may be neces-sary in a number of contexts in order to ensure equal opportunity.

Thus, for exam-ple, it is meaningless to 'admit' a handi-capped persons in a wheelchair to a program if the program is offered only on the third floor of a walk-up building.

Nor is one providing equal educational opportunity to a deaf child by admitting him or her to a classroom but providing no means for the child to understand the teacher or receive instruction.

6 -

"These problems have been compounded by the fact that ending discriminatory practices and providing equal access to programs may involve major burdens on some recipients.

Those burdens and costs, to be sure, provide no basis for exemption from section 504 or this reg-ulgation:

Congres~' mandate to end dis-crimination is clear.

But it is also clear that factors of burden and cost had to be taken into account in the regulation in prescribing the actions necessary to end discrimination and to bring handicapped persons into full par-ticipation in federally financed pro-grams and activities."

4 2 Fed. Reg. 2 2 6 7 6 ( 19 7 7).

Thus, the HEW regulation took "factors of burden and cost... into account," but at the remedy stage, and only in a manner that would "bring handicapped persons into full partici-pation."

Id.

The handicapped community, though not thrilled, was satisfied.

Recipients of federal assistance, though not thrilled, also were satisfied.

Everyone recognized that the regulation was a fair one, and no one from either camp, as far as we know, has ever judicially challenged its validity in the more than seven years since its promulgation.

Not surprisingly, a year after issuance of the HEW rule, in the process of amending the Rehabilitation Act to include federal agencies within the coverage of Section 504, Congress re-viewed the HEW formulation and put its imprimatur on that regula-tion.

As the Senate Report for the 1978 Amendments expressly states:

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 7 -

t conformed with those promulgated under Title VI.

Thus, this Amendment codi-fies existing practice as a specific statutory requirement.

S. Rep. No. 890, 95th Cong., 2d sess. 19 (1978).

In Conrail v. Darrone, the Supreme Court quoted this legislative history and concluded that "[t]he [HEW] regulations particularly merit deference in the present case:

the responsi-ble congressional committee participated in their formation and both these committees and Congress itself endorsed the regula-tions in their final form."

104 S.Ct. at 1255.

Indeed, the Court went further, stating that "the legislative history re-veals that this section was intended to codify the regulations of the Department of HEW governing enforcement of §504.... "

Conrail, id. at 1255 (emphasis supplied).

The proposed rule now pending carves out an exception appearing nowhere in the Act itself or in the HEW regulations that have been expressly approved and codified by the Congress.

Thus, the proposed rule falls short of full implementation of Section 504.

3.

Other provisions of the 1978 Amendments similarly demon-strate that Congress was well aware.that the Section 504 regula-ti,on would impose financial burdens.

In order to assist with those burdens, the Amendments established programs to assist recipients of federal funds to provide aids and services re-quired to comply with Section 504.

Section 115(a) (2) of the 8 -

1978 Amendments established local rehabilitation centers for handicapped persons and expressly provided that:

Such centers shall provide, upon re-quest, to local governmental units and other private nonprofit entities located in the area such {nforrnation and technical assistance (including support personnel such as interpre-ters for the deaf) as may be neces-sary to assist those entities in com-plying with this chapter, particularly the requirement of Section 794 [Sec-tion 504] of this Title.

29 u.s.c. §775(a) (2) (emphasis supplied).

This statutory language plainly indicates Congress' determination that Section 504 prohi-bits the exclusion of handicapped people due to the absence of communication aids.*

The 1978 Amendments provided funds for communication aids and services that were expressly required by the HEW regulation, such as interpreter services for the deaf and reading services for the blind.

29 U.S.C. §777 (e) (providing funding to aid corn-pliance with 45 C.F.R. §§84.34(a), 84.52); 29 U.S.C. §777(d) (pro-viding funding to aid compliance with 45 C.F.R. §§84.34(a), 84.52).

Especially in light of the Supreme Court's decision in Conrail v.

• Similarly, Section 114(3) of the 1978 Amendments, 29 U.S.C.

§774(d), authorizes grants to public and private nonprofit institu-tions to establish programs "[f]or the purpose of training a suffi-cient number of interpreters to meet the communication needs of deaf individuals."

Section 774(d) was enacted in part "in response to the requirements imposed by section 504.... "

S. Rep. No. 890, 95th Cong., 2d sess. 41 (1978)

See also 124 Cong. Rec. Hl3473 (daily ed. Oct. 14, 1978) (section 774 (d) is intended "[to] make section 504's nondiscrimination policies meaningful... ") (remarks of Rep. Jeffords).

9 -

Darrone, 104 S.Ct. at 1254 n.13, these enactments provide addi-tional authority for our contention that provision of those aids was considered mandatory by the Congress.*

4.

The Attorney General, in his "Section-by-Section Analy-sis and Response to Comments" published with the final 504 regu-lation for the programs the Department of Justice conducts, has failed to adequately consider and respond to these comments, which were duly submitted to him by several commenters.

He failed to address the 1978 Amendments or their legislative his-tory.

Regarding the Supreme Court's decision in Conrail v.

• In so concluding, Congress also noted the revenue sav-ings that are achieved by rehabilitating handicapped persons.

One commentator has analyzed the legislative history of Section 504 and concluded:

If a particular accommodation would re-habilitate a handicapped person, i.e.,

enable her to become self-sufficient in-stead of economically dependent on_the government, the costs of such an accom-modation could be offset by cost savings.

Rehabilitation can be cost-efficient in two ways.

First, rehabilitated persons greatly increase their personal income--

in fiscal year 1976, the increase was es-timated to be over $1 billion dollars--and pay at least 6% of their income and taxes to Federal, State, and Local governments.

H.R. Rep. No. 1149 [94th Cong. 2d sess.]

8, [1978] U.S. Code Cong. Ad. News at 7320.

Second, rehabilitation reduces wel-fare and other expenditures.

Id.

Note, Accommodating the Handicapped:.

The Meaning of Discrim-ination under Section 504 of the Rehabilitation Act, 55 N.Y.U. L.

Rev. 881, 887 n.30 (1980); see also Comment, Accommodating the Handicapped, 80 Colum. L. Rev. 171, 173-74 (1980) ("underlying Congress' goals [in Section 504] is the assumption, supported by substantial evidence, that it is less expensive to educate and employ the handicapped than to institutionalize them or to pro-vide them with public assistance"), citing H.R. Rep. No. 1149, supra, at 9; S. Rep. No. 1135, at 12; 119 Cong. Rec. 24,586 (1973)

(remarks of Sen. Cranston).

10 -

Darrone, the Attorney General states:

This view misunderstands the court's actions in Darrone.

In that case the Court ruled on a series of issues, the most important of which was under what circumstances* [ sic] section 5 04 applied to employment discrimination by recipients.

The Court did not concern itself either directly or indirectly with the defini-tion of "qualified handicapped person" or whether section 504 included limita-tions based on "undue financial and ad-ministrative burdens."

49 Fed. Reg. at 35726.

The most cursory reading of Darrone, however, reveals that, as its central rationale for holding that Section 504 applied to all employment discrimination by recipients of federal assistance, the Supreme Court relied upon the applica-tion of the HEW regulation to employment.

It was in the course of deciding upon the validity of the HEW construction that the Court reviewed the legislative history of the 1978 Amendments to Section 504, and correctly determined that the intent of Congress was to codify that regulation--not solely the employ-ment practices provisions at issue in that case, but the regula-tion as a whole, including the requirement that no qualified handicapped person be "excluded from participating in" or "de-nied the benefits of" federally funded activities due to the lack of accessibiilty or communicative aids.

Thus, Section 504 requires exactly what the proposed regu-lation wants to exclude.

Although federal agencies may not like this requirement, arguments in that vein ought to be addressed 11 -

to the Congress.

It is not within the agency's purview to create an exception, especially to a civil rights enactment, when Congress has failed to do so and, to the contrary, has approved and codified an official administrative construction without that exception.

5.

The principle argument for inclusion of the "burdens" exception is that it is required by a 1979 Supreme Court deci-sion, Southeastern Community College v. Davis.*

The Section-by-Section Analysis of the proposed rule states:

This subparagraph J§.150] provides that

~n m~eting the program acces~ibility requirement the agency is not re-quired to take any action that would result in a fundamental alteration in the nature of its program or activ-ity or in undue financial and admin-istrative burdens.

A similar limita-tion is provided in §160(e).

This provision is based on the Supreme Court's holding in Southeastern Com-munity College v. Davis, 442 U.S. 397 (1979), that section 504 does not re-quire program modifications that re-sult in a fundamental alteration in the nature of a program, and on the Court's statement that section 504 does not require modifications that would result in "undue financial and administrative burdens."

442 U.S. at 412.

49 Fed. Reg. at 34135.

This contention is wrong for several

• Because of the apparent importance of the Davis deci-sion to this proposed rule, the next several comments are de-voted to analysis of that case.

12 -

reasons.*

We begin by noting that the above passage represents a selective use of the Davis quotation.

The full text of the discussion by Justice Powell reads:

Technological advances can be expected to enhance opportunities to rehabilitate the handicapped or otherwise to qualify them for some useful employment.

Such advances also may enable attainment of these goals without imposing undue fi-nancial and administrative burdens upon a State.

442 U.S. at 412.

Thus, the Davis opinion never says that "sec-tion 504 does not require program modification... that would result in 'undue financial and adP1inistrative burdens,' "as the Section-by-Section Analysis suggests.

That is a gloss placed on the quotation.

The Davis passage could also fairly be read as a discussion of possible technological advances that may make it less burdensome to comply with Section 504 in the future.

Whatever the validity of the Analysis' construction of the "burdens" passage, that language was not the holding of the case, but merely, as the Analysis concedes, 49 Fed. Reg. at 34135, "the Court's statement."

As the Attorney General also

• We do not challenge here or in our complaint against the Department of Justice the legal validity of the new "fun-damental alteration" language of the federally conducted regu-lation.

While we believe that this new language is unwise and unnecessary as a matter of policy, we also recognize that a persuasive argument could be made that this language, unlike the "burdens" language, may be consistent with that already contained in the HEW recipient regulation.

13 -

concedes, 49 Fed. Reg. at 35730, the Court's discussion was not necessary to the decision in the case, and thus was gratuitous commentary, i.e., dicta.

The Court specifically stated that "on the present record it appears unlikely respondent could benefit from any affirmative action" that the defendant college might have undertaken to accommodate her needs.

Thus, the Court ob-served, even if such accommodations were made Ms. Davis "would not receive even a rough equivalent of the training a nursing program normally gives."

Id. at 409, 410.

For these reasons, the Court concluded that Ms. Davis would be unable to partici-pate in the nursing program in any event, see id. at 407, and that she was therefore not an otherwise qualified handicapped individual.

See id. at 406, 407.

Moreover, lower court decisions discussing this ques-tion uniformly have recognized that the holding in Davis dealt only with the issue of whether the plaintiff there was "other-wise qualified."

E.g., New Mexico Ass'n for Retarded Citizens

v. New Mexico, 678 F.2d 847, 853-54 (10th Cir. 1982); S-1 v.

Turlington, 635 F.2d 342, 349-50 (5th Cir. 1981), cert. denied, 454 U.S. 838 (1982).

Reliance on judicial language that lacks the weight of precedential authority for such a sweeping modi-fication of a statutory obligation as that suggested in this proposed rule surely is an improper way to write a regulation.

6.

Other language in the Davis decision, bypassed by the Analysis, impliedly upheld the HEW regulations involved in that 14 -

case.

Indeed, the Court relied upon those regulations in ren-dering its decision, 442 U.S. at 409, and concluded that "a refusal to modify an existing program might become unreason-able and discriminatory," id. at 412.

The Court also stated:

"If [the HEW] regulations were to require substantial adjustments in existing programs beyond those ne-cessary to eliminate discrimination against otherwise qualified indivi-duals, they would do more than clar-ify the meaning of §504."

Id. at 410 (emphasis supplied).

This language plainly recognizes that "adjustments in existing programs" may be required in some circumstances by Section 504 when "necessary to eliminate dis-crimination against otherwise qualified individuals."

Thus, "thi elimination of discrimination [to comply with Section 504]

might involve some costs."

Id. at 411 n.10.

7.

Numerous other federal agencies in promulgating regula-tions for recipients of federal assistance,.like HEW, have al-ready carefully and appropriately balanced those costs and com-plying with Section 504 with the Congressional ~ntent in enact-ing that statute, without adopting an across-the-board burdens" exception.

5 C.F.R. §§900.701-.710 (effective November 14, 1980)

(OPM); 7 C.F.R. §§15b.l-.42 (June 11, 1982) (Agriculture); 10 C.F.R. §§4.101-.233 (March 6, 1980) (NRC); 10 C.F.R. §§1040. 74 (June 13, 1980) (Energy); 13 C.F.R. §§113.1-.10 (April 4, 1979) (SBA); 14 C.F.R. §§382.1-.25 (June 6, 1982) (CAB); 14 C.F.R.

§§1251.100-.400 (September 10, 1979) (NASA); 15 C.F.R. §§8b.l-.25 15 -

(April 23, 1982) (Commerce); 18 C.F.R. §§1307.1-.13 (April 4, 1980) (TVA); 22 C.F.R. §§142.1-.63 (October 21, 1980) (State);

22 C.F.R. §§217.1-.61 (October 6, 1980) (AID); 29 C.F.R. §§32.1-

.51 (October 7, 1980) (Labor); 31 C.F.R. §§51.55 (September 30, 1981) (Treasury); 32 C.F.R. §§56.1-.7 (April 8, 1982) (Defense);

34 C.F.R. §§104.1 (May 9, 1980) (Education); 38 c.F.R. §§18.401-

.461 (September 24, 1980) (VA); 43 C.F.R. §§17.200-.280 (July 7, 1982) (Interior); 45 C.F.R. §§1151.1-.44 (April 17, 1979) (NEA);

45 C.F.R. §§1170.1-.55 (November 12, 1981) (NEH); 45 C.F.R.

§§1232.1-.16 (May 30, 1979) (ACTION).

19 of these final regula-tions were promulgated after the Davis decision.

8.

Of particular significance is a 1980 action of the At-torney General, promulgating a final regulation to enforce Sec-tion 504 as to recipients of financial assistance from the De-partment of Justice.

45 Fed. Reg. 37622 (1980).

In the pre-amble to that regulation, the Attorney General stated that the rule was fully consistent with "the substance of the HEW section 504 rule."

Id.

In an explanatory appendix to the regulation, the Attorney General analyzed the Davis decision, and concluded that that decision required no alteration from the substance of the HEW regulation:

"This subpart requires that (1) em-ployers make reasonable accommodation to the handicaps of qualified handi-capped applicants or employees, and that (2) programs be readily accessi-ble to and usable by qualified handi-capped persons.

These requirements 16 -

must be read in light of Southeastern Community College v. Davis, 442 U.S.

397 (1979), where the Supreme Court first considered the reach of Section 504 of the Rehabilitation Act.

"Davis held that section 504 did not require the petitioner college to make fundamental alterations to its regis-tered nurses' training program in order to accommodate the severe hearing loss of respondent who had applied for admis-sion to the program as a student.

The Court held that the respondent failed to meet the legitimate and necessary physi-cal requirements of the program estab-lished by petitioner, and, hence, was not qualified to participate in the pro-gram.

The Court noted that the section 504 regulations of the Department of Health, Education and Welfare (45 C.F.R.

84. 3 (k) (3) (1978)) reinforced the Court's conclusion that the respondent was not qualified to be a student in petitioner's training programs.

Id. at 406.

Section 84.3(k) (3) of Title °4"5"provides that, as to postsecondary and vocational services, a 'qualified handicapped person' means

'a handicapped person who meets the aca-demic and technical standards requisite to admission or participation*:in the re-cipient's educational program or activ-ity.'

An explanatory note to the HEW regulations defines 'technical standards' as 'all nonacademic admissions criteria

... essential to participation in the program in question.'

45 C.F.R. Part 84, App. A, at p.405.

"While the HEW section 504 regulations relating to postsecondary education re-quire recipients to modify any academic requirements that might discriminate against qualified handicapped persons and, further, require the provision of educational 'auxiliary aids' (e.g., taped texts, interpreters, classroom equipment, readers in libraries) (45 C.F.R. 84. 44 (a),

(d)), where necessary to avoid discrimina-tion, the Court noted these regulatory pro-visions did not require fundamental pro-grammatic and personal service adjustments needed by the respondent.

17 -

"First, the Court noted that peti-tioner's training program required 'the ability to understand speech without reliance on lipreading' to ensure 'pa-tient safety during the clinical phase of the program,' and that the respon-dent would require the 'close individual attention by a nursing instructor' in order to participate effectively in clinical work.*

Id. at 407, 409.

How-ever, the HEW regulation requiring aux-iliary aids specifically excludes 'at-tendants, individually prescribed de-vices, readers for person use or other study, or other devices or services of a personal nature.'

45. C.F.R. 84.44 (d) (2).

Accordingly, in the Court's view, the law did not require the pe-titioner to provide respondent with an attendant nursing instructor since, in the context of a clinical program where each student would be required to deal individually with patients, this would have constituted 'services of a personal nature. 1 Hence the respondent could not qualify for the clinical nature of the training program and would be confined to taking academic courses only.

"Second, academic 'modifications' set forth in the HEW regulation include (but are not necessarily limited to):

changes in the length of time per-mitted for the completion of degree requirements, substitution of spe-cific courses required for the com-pletion of degree requirements, and adaption of the manner in which spe-cific courses are conducted (45 C.F.R. 84.44).

However, as the Court saw it, such re-quired modifications did not encompass a curricular change which waived effec-tive participation in a critical compo-nent of a degree program in registered nursing.

'Whatever benefits respondent might realize from such a course of study, she would not receive even a rough equi-valent of the training a nursing program normally gives.'

Id. at 410.

18 -

"While rejecting respondent's gloss on section 504 and HEW's implementing regulations, the Court inferentially upheld the HEW regulations mandating modification in admission criteria for qualified handicapped persons by not-ing that 'situations may arise where a refusal to modify an existing pro-gram might become unreasonable and dis-criminatory.'

Id. at 412-13.

"This subpart is consistent with the holding in Davis for it prohibits dis-crimination only against qualified han-dicapped individuals in the Department's Federally assisted programs and activi-ties.

Section 42.540(1) defines iqual-ified handicapped persons' as follows:

"(1) With respect to employment, a handicapped person who, with rea-sonable accommodations, can per-form the essential functions of the job in question.

"(2) With respect to services, a handicapped per~on who meets the essential eligibility re-quirements for the receipt of such services.

"The critical consideration in deter-mining whether a handicapped person quali-fies for participation in a program or ac-tivity receiving assistance from the Depart-ment is whether a particular physical or mental ability is a necessary prerequisite for effective participation, or whether that ability is only said to be necessary because a recipient of Federal funds has not given adequate consideration to the ways in which stated requirements may be modified in order to permit participation by handicapped persons."

45 Fed. Reg. 37631 (1980).

Thus, as part of the rule-making process, the Attorney General fully considered and flatly rejected the contention that the Davis decision required modifi-cation of the substance of the HEW regulation.

19 -

,fr

9.

Similarly, this consistent administrative construction was followed by the Secretary of HEW,then the coordination au-thority for all Section 504 regulations pursuant to Executive Order No. 11914, when she ruled in response to inquiries imme-diately after the Davis decision that no revision of the 1977 regulation was required.

Letter of October 5, 1979, Patricia Roberts Harris, Secretary of HEW, to Presidents of All Colleges and Universities in the United States.

10.

In apparent recognition of the weakness of relying sole-ly on the Davis "statement," the Analysis accompanying the pro-posed rule, 49 Fed. Reg. at 34135, and that of the Department of Justice, id. at 35730, shift to reliance on a lower court case involving transportation issues, American Public Transit Association (APTA) v. Lewis, 655 F.2d 1272 (D.C. Cir. 1981),

and its progeny.*

Assuming that decision, particularly in light of Conrail

• We are distressed that the Analysis chooses to cite on-ly those lower court cases, such as APTA, that the agencies be-lieve expand the Davis dictum, while conveniently ignoring cases, such as the persuasive decision of the Court of Appeals for the Fifth Circuit in S-1 v. Turlington, discussed above, which pro-perly limit that dictum.

20 -

v. Darrone, retains any viability (which we doubt*), APTA does not in any event affect the proposed regulations at issue, which have no application to mass transit systems.

Indeed, the APTA appellants conceded in their briefs and at the argument of the case that the result they sought had no application to any area other than mass transit.

That the government also believed this to be the case, even following its embracing of the APTA decision, is confirmed by its actions in response to that ruling.

• The APTA court invalidated not only certain portions of a regulation of the Department of Transportation (DOT) requiring accessible mass transit systems, 49 C.F.R. §§27.83-.95 (1980),

but also the mass transit provisions of the HEW coordination regu-lation, 45 C.F.R. §§85.56-.57 (1980).

To the extent the DOT regu-lation and the HEW coordination regulation were consistent with the HEW recipient regulation (which, as Conrail v. Darrone held, was approved and codified by the 1978 amendments to 504), the APTA decision cannot be considered good law.

Moreover, it is important to have a good understanding of the APTA result to candidly recognize that the Justice Depart-ment did not present the most zealous advocacy possible on behalf of the transportation regulations under seige in that case.

In-deed, having successfully defended the regulation in the district court, in what can only be explained by political considerations, the Justice Department, under its new leadership in 1981, at the oral argument of the appeal abandoned the position it had taken in its briefs that the transportation regulations were required and conceded that "local option" was not only also a permissible choice, but that the government was considering adopting that very choice, i.e., plaintiff's position, see 655 F.2d at 1280 n.14.

Thus, it cannot be surprising that the court ruled as it did.

Following the decision, the government gave no thought to appealing the decision or pursuing the issues left open on re-mand, see 655 F.2d at 1280, but instead swiftly and gleefully went about dismantling the mass transit regulations.

In addi-tion, the result in other transportation cases, e.g. Rhode Is-land Handicapped Action Committee v. Rhode IslandPublic Transit Authority, 718 F.2d 490 (1st Cir. 1983) (cited by the Department of Justice at 49 Fed. Reg. 35725) can be explained partially by the fact that the Department of Justice has advocated in its briefs in those cases the broadest possible application of the APTA result.

21 -

DOT's response to APTA was to promulgate an "interim final rule."

46 Fed. Reg. 37488 (July 20, 1981).

However, that rule only purported to affect subpart E of the DOT 504 regulation, i.e., the mass transit provisions.

DOT of course could have also promulgated an across-the-board "burdens" ex-ception to its regulation at the same time.

It chose not to do so, even though its failure to take such action left intact its communications and program accessibility obligations.

Since the regulation was amended in response to the APTA decision, DOT apparently did not believe that APTA required any other altera-tion.

Similarly, the Attorney General's response was to sus-pend the HEW 1978 coordination regulation.

46 Fed. Reg. 40687 (August 11, 1981).

However, he too only suspended the mass transit provisions of that regulation, leaving all of the com-munications and program accessibility obligations intact, since APTA required no other action.

11.

Two years later, not only the Attorney General, but al-so the other federal agencies now promulgating proposed regula-tions for the programs they conduct, maintain that APTA bolsters Davisi therefore, codification of the burdens" exception is man-dated.

The Attorney General states:

Some cornmenters questioned the use of Davis as justification for the in-clusion of the new provisions in the federally conducted regulation.

They noted that the Department had not 22 -

included these changes when, subsequent to the Davis decision, it issued a regulation implementing section 504 in programs receiving Federal finan-cial assistance from this Department.

The Department's section 504 federally assisted regulation, however, was is-sued prior to the D.C. circuit's de-cision in APTA.

In APTA, the depart-ment had argued a position similar to that advocated by the cornmenters.

Judge Abner Mikva's decision in APTA clearly rejected the Department's posi-tion in that case.

49 Fed. Reg. at 35725.

Whatever arguments the Department set forth in its briefs before the APTA circuit court, the Attorney General neglects to maintain that he abandoned those positions at the oral argument.

Indeed, as noted above, the Justice Department informed the court that it was considering adoption of the very position advocated by APTA, regardless of the court's decision in the case.

The Attorney General gave the court carte blanche to rule the way it did.

The Attorney General also neglects to explain why he on-ly suspended the mass transit provisions of the 504 coordination regulation in response to APTA, if the effect of that decision was deemed to be as comprehensive as he now asserts.

Moreover, at least seven federal agencies promulgated 504 regulations after APTA, see Comment 7,. supra, but none of those agencies felt compelled by that decision to include any across-the-board "bur-dens" exception in their regulations.

12.

A comprehensive study commissioned by the Department of 23 -

I I

HEW, and relied upon by the Department in promulgating its regu-lation, concluded that the benefits of implementing the regula-tion to enforce Section 504 would outweigh the costs of implemen-tation.

"Discrimination Against Handicapped Persons:

The Costs, Benefits and Inflationary Impact of Implementing Section 504 of the Rehabilitation Act of 1983 Covering Recipients of HEW Finan-cial Assistance," 41 Fed. Reg. App. B, 20312, 20364 (1976).

This investigation concluded that the costs of alterations and commu-nicative aids, while sometimes expensive, amount to trifling sums, especially when compared to the resulting social benefit.

The most common necessary alterations, such as the construction of ramps at the entrances of buildings, constitute negligible ex-penses relative to the cost of the entire structure.

In fact, it is estimated that a new building can be made accessible to the handicapped at an additional cost of only one-half of one percent of the cost of constructing the.entire building.

Id. at 20,333.

This low percentage increase means that the economic impact of the new construction and alteration provisions is relatively in-significant.

Additionally, according to the study, both economic and physical benefits, which will be enjoyed by both disabled people and the general public, will result from including disabled peo-ple in the mainstream of society.

A more barrier-free environ-ment will increase the lifetime earnings of those who will be able to maximize their educatiOnal, training and employment op-portunities.

The study estimated that the HEW regulation alone 24 -

could yield approximately $1 billion per year in benefits via the higher earnings capacity of disabled workers.

41 Fed. Reg.

at 20,323.

Thus, HEW, and the other federal agencies that have issued regulations consistent with that of HEW, fully considered cost considerations before issuing their regulations.

The Attorney General issued his recent regulation without the benefit of any such investigation.

Nor does the rule pro-posed reference any factual basis for its "burdens" exclusion.

Without such a basis by the time they are finalized, the regu-lation will be subject to challenge as an arbitrary and capri-cious exercise of the agency's authority.

13.

It appears that the Presidential Task Force on Regula-tory Reform established by Executive Order No. 12291 has already made the contrary factual determination, that no across-the-board "burdens" exception is deemed necessary for any of the 504 reci-pient regulations.

Following a plenary review of those regulations by the Task Force, it ruled in a decision announced on March 21, 1983 by its Chairperson, Vice President George Bush, that the Section 504 coordination regulation for recipients of federal assistance (28 C.F.R. Part 41), which had been designated for review and possible alteration by the Task Force, required no alteration.

We do not understand why a different determination, as a fac-tual matter, is deemed appropriate fqr the federally conducted 25 -

t

• regulations.

In view of the Vice President's decision that no

burdens" exception needs to be incorporated into the 504 reci-pient regulations, it seems to us "unthinkable that the same [law]

would impose a lesser duty on the Federal Government."

Bolling

v. Sharpe, 347 U.S. 497, 500 (1954).

14.

We are concerned that the burdens" exception is being written into this proposed regulation chiefly as a means of cir-cumventing the Vice President's decision.

Thep:-oposed regula-tion as it presently is worded could be used by federal agencies to attempt to read the burdens" exception into all of their ear-lier promulgated 504 regulations for recipients of federal assis-tance.

As the Analysis to the Justice Department's regulation candidly states, "the Department has interpreted its section 504 regulation for federally assisted programs in a manner consistent with the language of this final rule."

49 Fed. Reg. at 35725 (emphasis added).

This language makes the fair victory we thought we had won, when the Vice President announced last year that the federally assisted regul~t{ons would not be changed, a hollow one.

26 -

15.

We also are concerned that the "burdens provision per-mits a narrower construction of Section 504 than that applied to other analogous statutes such as Title VI of the Civil Rights Act of 1964, 42 U.S.C. §2000d.

Section 601 of that law uses the exact language employed by Section 504, except it applies to race rather than handicap.

Remedies that could be construed as high-ly burdensome" have frequently been ordered on the authority of Title VI and the regulations issued to enforce that Title.

For example, in Lau v. Nichols, 414 U.S. 563 (1974), the Supreme Court held that Title VI required 'affirmative steps' by the school board to accommodate the lan-guage disability of Chinese-speaking

.students so that they would not re-ceive 'fewer. benefits' from school services and would not be 'denied meaningful opportunity to participate in the educational program.'

Id. at 566-68.

Thus at the time of the adoption of the 1978 Amendments to Section 504 it was settled law, based in part on Lau v. Nichols, that regulations enforcing Title VI required the provision of spe-cial aids and services necessary to permit equal participation by racial or ethnic minorities, without regard to any "burdens ex-ception.

This requirement was made explicit with the enactment in 1978 of Section 505 of the Rehabilitation Act, which provided that

"[t]he remedies, procedures, and rights set forth in Title VI of the Civil Rights 27 -

Act of 1964 shall be available to any person aggrieved by any act or failure to act by any recipient of Federal as-sistance or Federal provider of such assistance under Section 794 [Section 504] of this title."

29 U.S.C. §794a (1976).

Lau v. Nichols had been cited with approval by HEW in its official analysis of its Section 504 regulations.

45 C.F.R.

84 App. A at 300, 116 ("This standard. parallels the one established under Title VI of the Civil Rights Act of 1964 with respect to the provision of educational services to students whose primary language is not English.

See Lau v. Nichols, 414 U.S. 563 (1974)~~}

Congress, when it reviewed the regulations in considering the 1978 Amendments, had to have been well aware of the influence of Lau on the regulations.

Finally, whether or not Lau remains good law, see Guar-dians Association, 103 S.Ct. at 3236-37 (opinion of Justice Powell); id. at 3237** (opinion of Justice Rehnquist); id. at 3237, 3239 (opinion of Justice O'Connor); id. at 3252-43 (opinion of Justice Stevens), the law must be applied as Congress thought it existed in 1978 when Congress enacted Section 505.

Brown v.

GSA, 425 U.S. 820, 828 (1976) ("the relevant inquiry is not whe-ther Congress correctly perceived the then state of the law, but rather what its perception of the law was") (footnote omitted);*

see also Cannon v. University of Chicago, 441 U.S. 677, 696-703 (1979).

Thus, since no "burdens" exception exists for the Title VI regulations, consistency requires that none be added to the 28 -

Section 504 regulations.

December 21, 1984 Respectfully submitted, 21~/:~~~

Public Interest Law Center of Philadelphia 1315 Walnut Street, Suite 1632 Philadelphia, PA 19107 (215) 735-7200 Attorneys for CoITII!l.enters 29 -

J

Secretary Docketing and Service Branch

u. s. Nuclear Regulatory Commission 1717 H Street, N.W.,

Washington, D.C.

20555 D CKET£0

" 'RC RE: Proposed Rules on Enforcement of Nondiscrimination on the Basis of Handicap in the u. s. Nuclear.. Regul~tory Commis-sion Programs, 49 Fed. Reg. 34131 {August 28, 1984).

COMMENTS OF THE NATIONAL CENTER FOR LAW AND THE DEAF, THE NATIONAL ASSOCATION OF THE DEAF, THE CENTER FOR LAW AND SOCIAL POLICY, THE AMERICAN COUNCIL OF THE BLIND, THE DISABILITY RIGHTS EDUCATION AND DEFENSE FUND, THE EPILEPSY FOUNDATION OF AMERICA, THE NATIONAL SOCIETY FOR CHILDREN AND ADULTS WITH AUTISM, AND AN ASSOCIATION FOR CHILDREN AND ADULTS WITH LEARNING DISABILITIES INTRODUCTION The National Center for Law and the Deaf {NCLD) is a non-profit public interest law center that has provided legal education and services to hearing-impaired people since 1975.

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