Warren E. Burger: We will hear arguments first this morning in University of Texas v. Camenisch. Mr. Zwiener.
Lonny F. Zwiener: Mr. Chief Justice, and may it please the Court: This case involves the Rehabilitation Act of 1973 and especially the last provision of that Act, Section 504, which reads, "no other qualified handicapped individual will be excluded from or denied the benefits in any program or activity receiving federal financial assistance. " Now, in the Rehabilitation Act there were many sections, there were many programs, all of which set up appropriated money to accomplish the program. 504 and 503 were sort of catch-all statutes at the end: you will not discriminate against the handicapped in any program receiving financial assistance. Petitioners' first point, and I think I can characterize it as what we consider the most important point, is that 504 does not require the expenditure of any money by an institution, no affirmative action; it's a neutral statute which says that we will not discriminate the handicapped. You can participate; we will not deny you participation in a program or activity if you are able to participate in it. We say that for the Federal Government to require any type of affirmative action toward the handicapped, it will require a statute that's tied to the spending power of Congress. The Fourteenth Amendment, the Equal Protection Clause, again only requires the states to be neutral.
William J. Brennan, Jr.: May I ask, Mr. Zwiener, your position is that there's absolutely no affirmative obligation under any circumstances toward the handicapped? No affirmative obligation? Let me put this hypothetical to you. Suppose there is no way of getting to classes except by climbing several flights of stairs and you have a handicapped person who has to use a wheelchair. Do you have to provide a ramp?
Lonny F. Zwiener: I beg your pardon?
William J. Brennan, Jr.: Do you have to provide a ramp for that handicapped person?
Lonny F. Zwiener: We would say not.
William J. Brennan, Jr.: Say not?
Lonny F. Zwiener: We would say not, unless it's a program in which, which is designed to educate this handicapped in some way.
William J. Brennan, Jr.: I'm assuming that's what it is, it's a program. You do have programs. He wants to be a teacher, for example. He can't get to the classrooms unless he has--
Lonny F. Zwiener: No, we would also say, we would also say that it's not an affirmative action statute under any... circumstance.
William J. Brennan, Jr.: --Right. And you don't even have to provide a ramp, in those circumstances?
Lonny F. Zwiener: That's true. That's what we would say.
William J. Brennan, Jr.: Unless you get the federal money to finance the program?
Lonny F. Zwiener: That's true, Your Honor. That's what we're saying. Now, as I said, we think that the Fourteenth Amendment requires no more, so we do have to tie, Congress cannot dictate to the states or to state institutions or a private employer that they provide affirmative action unless they tie it to some money given for a particular program which the handicapped is a beneficiary of. Now, I think we need to make one point clear. The University of Texas, who is the petitioner in this case, is not heartless, nor are the other institutions in the State of Texas, and this case itself will not bankrupt the University of Texas, nor will it bankrupt the smallest state college in Texas, the interpreter in this case.
Thurgood Marshall: Too many oil wells down there.
Lonny F. Zwiener: Yes, Your Honor, that has helped the University of Texas and Texas A&M. The other universities down there are not pleased with the fact that these two institutions are getting it all. Well, to be perfectly frank, Mr. Justice Marshall, the University of Texas may be the richest university in the country now, more heavily endowed because of its oil properties than even Harvard University. But what frightens everybody is not this case. What worries all state institutions, whether they be of higher education or other, is that the handicapped tie their demands to mainstream 100 deaf students at the University of Texas. We cannot segregate them; they want to be separate in the class, with an interpreter for each one. And just take Camenisch here, Walter Camenisch. He got an interpreter to finish his master's degree. Suppose he wished to continue in a PhD program, no program having any federal financial aid? And by the way, the University of Texas does get a lot of grants, but they're specific grants for research, that are sitting over here. Most of them, as a matter of fact, are not even close to the main campus of the University, they're out at the Balcones Research Center. There are proposals made, certain things done, and we say that program does not infect the rest of the University. But to get back to Walter Camenisch, he gets his PhD with the services of an interpreter, the entire time, paid for by the University of Texas. Then he wishes to become a faculty member of the University of Texas. He's otherwise qualified, if he didn't have the deaf problem, but since he can't communicate with students, they gave him a job, the University makes him an associate, or an assistant professor; he spends the rest of his career, academic career, with an interpreter that the University must provide him under the theory that Walter Camenisch, the respondent, and the other amici that support their position want. Now, to carry it to the extreme... and really this is... if you read the briefs, and, gosh, I can't even remember them all, because they're just too many; it's difficult for me to decide who supports what position, but otherwise... he's otherwise qualified, without the handicap. Now, this statute now applies to the Federal Government. It didn't. And they're required to take affirmative action under it; there's been amendments, but they left the states out when they put the part about the Federal Government. But here is a man who wants to be a fighter pilot without hands. He's otherwise qualified; he's got a good mind, he can read the gauges. He just can't move the buttons, punch the buttons and the dials. What are you going to do with him? A ruling, like what's asked for by the respondent, will put this Court, and all the courts, and all the institutions, the Federal Government, not only the states, in a situation of with a little affirmative action, or a whole lot of it, in the case of a fighter pilot without hands. Where does it stop, is the point I'm making? Now, again, the University of Texas is not heartless, and even in its deaf programs... I mean, even in its academic programs, it does provide deaf interpreters where there's a financial need. There have been millions of dollars spent, some of it federal money, some of it state money. We've got a state statute that forbids us from discriminating against the handicapped and makes us make building alterations. So we have spent a lot of money. My feelings and sentiments... I was interested, coming in last night, picking up a paper, hearing about the unfortunate tragedy as far as the President is concerned, but the paper that I picked up: U.S. Regulations> ["]--
Thurgood Marshall: Mr. Zwiener, do you know of any evidence that is less reliable in a courtroom than a newspaper?
Lonny F. Zwiener: --You're right, Your Honor. You're right, Your Honor. I certainly endorse that, but here, George Washington University is worrying about it and they're worrying about elevators for, I believe, seven handicapped people; seven. So the expenditure, they're just... you have to spend too much for the return. And again, I'm not unsympathetic to the handicapped but society can only support so much, and we're saying that this statute, as respondents would have us to interpret it, just the imagination boggles. And that is why we're up here with this case.
John Paul Stevens: Mr. Zwiener, I take it your real position is that the regulation that the Government has promulgated is not authorized by the statute, is that? Because you would concede that the regulation would require that you provide the interpreter?
Lonny F. Zwiener: That's true, Your Honor.
John Paul Stevens: So, basically, the question is whether the regulation is valid or not?
Lonny F. Zwiener: Well, it's also a question whether the United States Court of Appeals for the 5th Circuit is correct in saying, not just under the regulations, I think, but I think they went under the statute, so we do have that decision. We're saying that that's incorrect. We're saying, as many courts have interpreted this statute, that they're incorrect. Now, our second point is that 504 does not confer a private cause of action. I would have rather argued this point before this Court decided Maine v. Thiboutot, because I'm not sure exactly how to handle this private cause of action now, since perhaps we don't have to state it but just have a statute and have a beneficiary, and then we have a 1983 cause of action. But I would say that Congress can enact a statute like this one, and certainly it could have put explicit language in the statute that would say, private plaintiffs cannot bring suit; we do not mean this statute to cover that type of situation. Again, as I say, I would have been much more comfortable arguing this point before the Maine v. Thiboutot case, if I am pronouncing it anywhere close to being right. Now, something that's not in our brief is an amendment to the rehabilitation statute, which is 505. And I point this out. I feel that the respondent in the principal brief and the brief of the Civil Liberties Union and its companion amici are misquoting 505. They say that now that we have 505, which does permit private causes of action in certain circumstances, there's no question. However, they talk in terms of a private cause of action going to 504. If you look at the statute, it goes to 501, which is an employment type of statute, and under that statute a private cause of action is authorized. All the remedies provided by Title VI are authorized, but not 504, as is said by respondent, and also the brief for the American Civil Liberties Union and its companions on the brief. As a matter of fact, that's the strongest evidence, I think, that we have of congressional intent, is that they did provide a private cause of action for a program designed to increase the employment of the handicapped, which is 501, but did not; 504. And as I say, I think that I'm reading the statute correctly. Now, our third point is... and this is critical; it ties into the first point... that 504 refers to a program and activity that receives federal financial assistance and that's what it means, a program and activity. Just because the University of Texas Maritime Center down on the coast gets a grant to study the fishing conditions in the Gulf of Mexico doesn't mean that 504 applies to Freshman English in Austin.
Potter Stewart: This argument, according to your brother, was not raised until now, in this case.
Lonny F. Zwiener: We are saying that--
Potter Stewart: Is that correct?
Lonny F. Zwiener: --That's true. It was raised in the petition for rehearing en banc in the 5th Circuit. I did not try this case in the trial court nor I didn't handle the original brief. I did make the argument for the first time in the 5th Circuit and put the argument into the petition for rehearing en banc, and then before this Court. We say that it is properly before this Court because it's a jurisdictional question. You see, it's a threshold question. A plaintiff cannot show that he's entitled to any relief without first showing that the program about which he's complaining receives federal financial assistance. Again, we're saying that's a threshold question which must be proved. Now, we do have some briefs here that say that it's our burden to prove that the program does not. I would say that would go in the teeth of a very, of a decision this Court rendered just a short time ago involving a Texas agency, the Texas Department of Human Resources v. Burdine, where someone sues because he's been discriminated against; he's got to show a little discrimination first before the defendant has to do anything. And we're saying that this question, the program-specific, is jurisdictional. The burden is on the plaintiff to prove it before he could even go forward with anything in his case. And I would try a case that way the next time we go around. And we say that Burdine mandates the fact, the premise, the conclusion that this is a jurisdictional question.
John Paul Stevens: Counsel, the court of appeals said that the University of Texas is the recipient of over $31 million of federal assistance and has agreed to comply with Section 504 as a condition to continued receipt of federal funds.
Lonny F. Zwiener: Well, we did stipulate that the University got $31 million. We didn't stipulate, so far as I know, that we agreed to comply. Now, each program, each program that's funded by the Federal Government... and I would say that of that $31 million I don't know that anybody knows whether those are student loans, by the way, or whether it's just grants and that sort of thing, but let's take the ordinary grant. A proposal may be paid to the University or sometimes the Federal Government, some agency that needs some research done, will come to the state. They will get together, agree on what will be done; the Federal Government will advance the money; they'll have a budget, so much for salary, so much for this, so much for that. And the Federal Government, the state government, or the particular agency involved, with respect to that program, will agree not to discriminate under Title VI and sometimes under 504, although a lot of the grants have not yet gotten 504 into them. But that is true. We say we agree not to discriminate with respect to this grant and with respect to dispersal of this federal money which we're getting. So, I would say that we haven't stipulated ourselves out of court.
John Paul Stevens: If you're right, then, you could have denied this man admission to the University, period. Is that right, just on the ground that you don't like deaf people?
Lonny F. Zwiener: No, sir, we could not do that.
John Paul Stevens: Why not?
Lonny F. Zwiener: No.
John Paul Stevens: If you agree to programs that are supported with federal money?
Lonny F. Zwiener: That's true.
John Paul Stevens: And he wants to be, say, an English major and the English Department doesn't get any federal funds, you could say, we don't want deaf people in the English Department.
Lonny F. Zwiener: No, sir.
John Paul Stevens: Why not?
Lonny F. Zwiener: No, sir, we could not do that. We could deny him admission to the University if he did not have the entrance requirements, even though he would say, I had a more difficult getting my education because I am deaf and therefore I am not in the top quarter of my class, or I don't have a certain score on the SAT. I have a difficult time passing these tests because of my disability. But we could not... if he had the scores... we could not say, we do not like deaf people--
John Paul Stevens: Why not?
Lonny F. Zwiener: --we don't like blind people, we don't like funny-looking people--
John Paul Stevens: I'm asking you, what is it that would prevent you from saying that? Why couldn't you say that? Just say, we don't allow deaf people in the English Department?
Lonny F. Zwiener: --We could say it, and I would say that if we did that, and they were otherwise qualified, brought their own interpreter along, were able--
John Paul Stevens: I'm asking you, you keep saying you can't do it. But is there a federal law that prevented you from doing it?
Lonny F. Zwiener: --504; it's in the statute.
John Paul Stevens: Then you do not... what happens to your argument that that only applies to programs that are funded with federal money?
Lonny F. Zwiener: All right; you're right, Your Honor, you're right. Because--
John Paul Stevens: So you could in the English Department say, we don't want deaf people, under your view of the case?
Lonny F. Zwiener: --We very possibly could, under the ultimate--
John Paul Stevens: Not very possibly. Under your argument you have an absolute right to.
Lonny F. Zwiener: --That's true. That's true.
Warren E. Burger: Do I correctly understand that he has been allowed to have interpreters in the classes from time to time?
Lonny F. Zwiener: Yes, sir, he was always allowed interpreters, and we would say, the reasonable accommodation which Southeast Community College v. Davis refers to is permitting an interpreter to be present, permitting an interpreter to distract, if you will... and there are some people that fussed about some of our city council meetings. They said that the interpreter up there bothers me, I can't keep track of what's going on. But, yes, I think we have to make that accommodation, perhaps. And we would have to... a professor who had a rule that lectures could not be tape-recorded might have to bend that rule for the blind student so he could record the lectures. That kind of accommodation.
William J. Brennan, Jr.: And what's the source of the obligation to make that kind of accommodation? 504?
Lonny F. Zwiener: Well, I would say... without buying all of my argument, my argument ultimately goes, as indicated, to the fact that 504 doesn't require us to do anything unless the program receives federal financial monies. But if it has any effect on just a general handicap situation... you see, I would say, ultimately--
William J. Brennan, Jr.: I'd still like to know what's the source of the obligation to make that accommodation. Is it 504?
Lonny F. Zwiener: --Well, I would say it's this Court's opinion in Southeastern Community College v. Davis. My argument, of course, goes a little further than that. My argument goes to the fact that the Fourteenth Amendment--
William J. Brennan, Jr.: What I was--
Lonny F. Zwiener: --doesn't protect the handicapped, and therefore--
William J. Brennan, Jr.: --Wasn't Davis a construction of 504?
Lonny F. Zwiener: --Yes, sir. And that's why I would say that Davis maybe requires us to do that even though using my argument, and you've already adopted that--
William J. Brennan, Jr.: Well, now, but you are conceding, contrary to what you told me at the outset of your argument, that there are some things you have to do for the handicapped under 504. Is that right? If the program receives federal assistance?
Lonny F. Zwiener: --If the program receives federal assistance. Now, I'm not... I must be dense this morning. Since this Court construed 504 to do something, I'm saying that you have decided it must do something. Now, to get back to your question, Your Honor, and your question, in a way, our state statute... we have a state antidiscrimination statute that would require us to admit the deaf student and not discriminate on account of this particular handicap, and we say that's entirely within the powers of the state without the Federal Government.
William J. Brennan, Jr.: Does your state statute reach so far as to require that you provide the deaf with an interpreter?
Lonny F. Zwiener: No, Your Honor, it does not. Actually, one of the problems that we've had in this case, and again I think these monies are confused in some of the amicus briefs... there's a lot of money that goes to the states for assistance to the handicapped, but it does not go to the universities, it goes to the Texas Rehabilitation Commission. By the way, Texas has a constitutional amendment that says we cannot give money away, which this would be. We had to have a constitutional amendment to permit the Rehabilitation Commission to give money to the handicapped. We had to have a similar one, it was an earlier one, for our Welfare Department. So, you know, there isn't any, but there's a lot of money that goes to the Texas Rehabilitation Commission and other rehabilitation commissions. As a matter of fact, these respondents have been suing the rehabilitation commissions and been winning some of the cases, and probably more justifiably so. And perhaps they should be the persons primarily responsible. I would like to reserve some time to reply to the respondents if I may, Your Honor.
Warren E. Burger: Mr. Pollak.
Stephen J. Pollak: Mr. Chief Justice, may it please the Court: I would like to address my argument to the primary issue here, which is whether Regulation 84.44(d) is within the authority conferred by Section 504 of the Rehabilitation Act, as that regulation was applied in this case to require provision of an interpreter to a qualified handicapped person who had been admitted to the master's degree program of Texas University in Education.
Harry A. Blackmun: Mr. Pollak--
Stephen J. Pollak: Yes, sir?
Potter Stewart: --It's pretty clear, is it not, that the statute does not and cannot mean exactly what it says? It says that no otherwise qualified handicapped individual shall solely by reason of his handicap be excluded from participation in any program receiving federal financial assistance. Well, let's assume a blind person who would like to be a bus driver in a city transportation system that receives federal assistance, and except for his blindness he would be qualified but he can clearly be excluded from being a bus driver because of his handicap, because he's blind.
Stephen J. Pollak: Yes sir, we accept that, that's the interpretation in Mr. Justice Powell's opinion for the unanimous Court.
Potter Stewart: But the statute does not mean precisely what it says?
Stephen J. Pollak: No, it's admitted in spite of, and that's clearly made in the Powell opinion for the Court in Southeastern Community College, and this case does not re-present that issue; indeed the HEW regulations make that clear.
Potter Stewart: Well, the would-be airplane pilot without hands presents that issue.
Stephen J. Pollak: No, to the extent that the argument presented by my worthy colleague suggested that we're taking a position that persons may be required to be admitted who cannot press the buttons. We are not taking that position. Indeed, Your Honor, the case comes to the Court on a stipulated record which we think is significant. It provides (1) that Camenisch is a deaf man; (2) that he is a qualified handicapped person, meeting all the academic and technical requirements of the program; (3) that he needs the services of an interpreter--
Potter Stewart: And that he is such, quite apart from his handicap?
Stephen J. Pollak: --That's correct. Indeed, the record establishes that this man has gone through, completed, and received his master's degree, so he--
Potter Stewart: He's not somebody who would be qualified except for his handicap. He is somebody who is qualified despite his handicap.
Stephen J. Pollak: --That's correct. That is a stipulated fact, Texas has stipulated he is a qualified handicapped individual. That is a major distinction, from this case, from the Southeastern Community College case, which was an admissions case. Now--
Byron R. White: He might even be more qualified because of his handicap?
Stephen J. Pollak: --There is no suggestion--
Byron R. White: Qualified for the job that he wants?
Stephen J. Pollak: --That's correct. We know from the record that he was the Acting Dean, at the time the case arose, of the East Campus of the School for the Deaf of the University of Texas. Now--
Potter Stewart: As I understand it the regulations impose this obligation only in institutions of higher learning, is that correct?
Stephen J. Pollak: --We are speaking about, Mr. Justice Stewart, subpart (e) which applies only to postsecondary institutions; that's correct. And 84.44(d) applies to postsecondary institutions.
Potter Stewart: And is there any such requirement on secondary institutions or below?
Stephen J. Pollak: Elementary and secondary schools, which is a different subpart, do have a requirement for the children to be provided with interpreters, as HEW has interpreted its regulations. That is not raised in this case, Your Honor.
Potter Stewart: But, I would think if the statute means what you say it means, then the obligation would run throughout.
Stephen J. Pollak: I think, while the HEW regulations for higher education have been drawn with the concerns expressed by universities and colleges during the comment period respecting costs, and so as to provide a limited obligation. I don't want to suggest that "the obligation" runs throughout, because I think it's--
Potter Stewart: Well, the statute doesn't seem to permit any compromise or accommodation. It's either an obligation or it isn't.
Stephen J. Pollak: --The obligation imposed by the statute runs throughout; that's right. The administrative agency charged with its application has drawn regulations which limit the obligation in several respects, and I am not master of the regulations which they have drawn respecting the elementary and secondary schools, since that was not the issue that arises here, but rather 84.44(d) as Your Honor suggests, which applies to the postsecondary schools.
Potter Stewart: And there is a different and lesser obligation imposed upon secondary and primary educational institutions?
Stephen J. Pollak: No, I don't represent that. What I was representing was that HEW in 44(d) drew a limited regulation which there's some indication in Mr. Zwiener's argument that the University may in certain circumstances not be required to provide an interpreter. For instance, if it's a laboratory course where oral communication is not relevant, it would not need an interpreter, but if the situation is such where a transcript of the classroom proceedings or classroom notes could be provided, the University can take that route. Additionally, HEW has indicated that there are other sources of funding and that its purpose is to assist the recipients of federal funds in utilizing vocational education funds or private charitable funds or other sources of money. So that in drawing the regulation, there was some attention paid to tailoring it to these financial concerns.
Warren E. Burger: What does the record show, if anything, Mr. Pollak, about the financial ability of this respondent to provide his own interpreters?
Stephen J. Pollak: The record and stipulation indicates that Mr. Camenisch and his wife had earnings in excess of $23,000. Mr. Camenisch's earnings were $11,600, I believe. The record shows that the University received an application for financial aid from Mr. Camenisch and that it found him not eligible for financial aid. We do not believe that the University of Texas has urged that the regulation is satisfied by a financial means test. And indeed, we believe it is not satisfied.
Warren E. Burger: Then what would you say if the record showed that he had an income of $100,000 a year from a family trust or otherwise?
Stephen J. Pollak: We would take the same position, Your Honor.
Warren E. Burger: In other words, the University must provide the expense of an interpreter even if the individual student has very large means of his own?
Stephen J. Pollak: The statute does not make lack of financial means a condition of the rights which it guarantees; that is our position. And, indeed, the HEW regulations have been interpreted by the agency charged with their interpretation so as to not permit a financial means test to be applied. We do not understand, Mr. Chief Justice, that Texas has urged upon this Court that it satisfies the regulation except as it may have argued this morning by a financial means test. We understand, looking at page 10 of its brief, that Texas says that, concedes that 44(d) of the HEW regulations provides an entitlement to the provision of an interpreter, and so we come before the court this morning and urge that 44(d) with its provision of the entitlement is within the statute and lawful, and entitles Mr. Camenisch as the two courts below ruled to the provision of the interpreter; and we say that the legislative history and words of 504 show that Congress had in mind an equal opportunity for the handicapped, that it sought to provide against the effective exclusion of the handicapped from programs to which they were admitted. Indeed, that is a particular emphasis in the '73 Act legislative history that there was a concern... Senator Humphrey expresses it... that the concern is not only prejudice, but the presence of barriers, the lack of services, which effectively exclude the handicapped, and we have here a qualified handicapped person; he's admitted to the program; the absence of a service effectively excludes him from a classroom proceeding with--
William J. Brennan, Jr.: Mr. Pollak, what's the evidence as to the amount of the federal support for this particular program?
Stephen J. Pollak: --Your Honor, the stipulation provides... pages 30, 31, and 32... that the University of Texas receives $31.4 million. That's on page 32 of the Appendix. The stipulation further provides that this man is admitted to the graduate program in the University. We do not believe that the program specificity issue has been presented to any of the courts below, that it was not briefed, it was not argued, it was not decided, and indeed to the extent that it is in the petition for rehearing it was not ruled on by the court of appeals for the 5th Circuit. And I believe I'm correct as to the decisions of the court, that where an issue was not presented, briefed, argued, decided below, and then is put into a petition for rehearing, that that issue does not--
William J. Brennan, Jr.: Let's get to the merits. Suppose it had been argued and decided below, what would your position here be? Or suppose it is jurisdictional?
Stephen J. Pollak: --My position is that the aid received by this University, $31.4 million, aid to the University satisfies the requirement of 504. Mr. Camenisch is an admitted student to the University. The stipulation provides the University receives $31.4 million. That's satisfied.
Harry A. Blackmun: So you feel it's a false issue?
Stephen J. Pollak: Your Honor, I feel that the issue has not been litigated and presented, and indeed there are interrogatories in the tail end of this brief in which Mr. Camenisch sought, following the decision on the preliminary injunction, this case arises before this Court on a preliminary injunction needed by Mr. Camenisch in order that he could attend the summer session. There are interrogatories in the case which was proceeding ahead on the merits, in which Mr. Camenisch sought to elicit, more particularly, information as to the aid received by the University of Texas.
Harry A. Blackmun: Well, I'm still trying to get at your position. Suppose it had been raised, would you not be making the same argument here today?
Stephen J. Pollak: I would be making that argument but I would also be strengthened with the detail of the type of aid which the University received. I am not in that position, Mr. Justice--
William J. Brennan, Jr.: I know, Mr. Pollak, but are we to assume that $31 million, whether or not it supports this particular program, satisfies 504, or are we to assume that $31 million, because it's not otherwise litigated, includes funds, federal funds, to support this program? Which is it?
Stephen J. Pollak: --My position is that the program to which Mr. Camenisch by the record has been admitted is the University program, and the University program receives $31.4 million, so that any program specificity--
Speaker: Well, then, you're saying without identification of specific programs the fact that the University receives $31 million million satisfies the requirement of the statute, "a program or activity receiving federal financial assistance. "
Stephen J. Pollak: --Where the record shows that the student has been admitted to the program of the University. This is not a case in which--
Byron R. White: Yes, but, Mr. Pollak, what if the all of the $31 million was specifically allocated to other programs within the University?
Stephen J. Pollak: --Well, we would have a different situation--
Byron R. White: You would have a problem; you would have a little problem then, wouldn't you? What... does the record show that or not?
Stephen J. Pollak: --It does not show that.
Byron R. White: Well, does it show that any of the $31 million is sort of a block grant to the University to do with it what it wants to do?
Stephen J. Pollak: It does not show that either. The extent of the record, as I understand it--
Byron R. White: Well, does it disclose any part of it goes for overhead, administration, research, generally, or anything like that?
Stephen J. Pollak: --It's... I think the limit is the statement that the University of Texas at Austin receives federal financial assistance in excess of $31.4 million.
Byron R. White: Well, that might be all, technically, logically, it could be for, all $31 million is allocated to another single program within the University. It could be.
Stephen J. Pollak: It could be, Your Honor, and that issue was not litigated below and is not before this Court.
William J. Brennan, Jr.: Well, I know, Mr. Pollak, that's just the point; it wasn't.
Stephen J. Pollak: Yes, sir.
William J. Brennan, Jr.: What premise are we to proceed on? That the $31 million satisfies 504 whether or not it supports this particular program?
Stephen J. Pollak: I urge the Court to proceed on the premise that that requirement is satisfied, but I urge the Court preliminarily that the issue is not here and as in Lau and as in, I believe, Bakke, the program specificity issue can be passed.
William H. Rehnquist: Well, Mr. Pollak, interrogatories were filed. At what stage of the proceedings were they filed?
Stephen J. Pollak: They were filed after the preliminary injunction had been granted by the Court, Your Honor. Texas moved to stay further proceedings and the Court granted the stay.
William H. Rehnquist: And they were never followed up on?
Stephen J. Pollak: No, Justice Rehnquist, they have not been pursued. The case is waiting on the merits below. And, indeed, as to the program specificity matter, that issue is capable of going forward on the merits just as down below. This case is here on the review of the preliminary injunction.
William H. Rehnquist: And the interrogatories were directed to HEW?
Stephen J. Pollak: No, the interrogatories are directed, I thought, to the University of Texas. I thought they were directed to the University. Plaintiffs request of defendants, Mr. Justice Rehnquist, that's on page A-75.
William J. Brennan, Jr.: Well, Mr. Pollak, to the extent your case is a 1983 action under Maine v. Thiboutot, you have to prove the violation of the federal statute or the Constitution, but it's only the federal statute, isn't it?
Stephen J. Pollak: That's right. We come here--
William J. Brennan, Jr.: And when do you do that? Now, if you prevail today, then you go back for a trial, do you?
Stephen J. Pollak: --The remaining proceedings would be pursued in light of this Court's opinion in the district courts.
William J. Brennan, Jr.: Would it be an element of your cause of action to prove that this particular program under 504 was in fact a program receiving federal financial assistance?
Stephen J. Pollak: If that contention is made against us, we would endeavor to prove that. Yes, Mr. Justice Brennan.
William J. Brennan, Jr.: I thought you were arguing that the entire University educational program was a "program" within the meaning of the statute, in which event you wouldn't have to worry about allocation.
John Paul Stevens: If you're right about that; I don't know whether you are or not.
Stephen J. Pollak: Well, I am here... first of all, I don't believe the issue is before the United States Supreme Court, but I'm here--
John Paul Stevens: Well, even assuming it's before, if you're right as a legal matter, you have proved the jurisdictional requirement.
Stephen J. Pollak: --I believe that in terms of the way the issue rests before the Court, we have proved enough; yes, sir. I want to... my time is fleeting, and I want to at least state that we believe that this Court may hold the auxiliary aid interpreter regulation 44(d) to be within Section 504, consistent, wholly consistent with this Court's unanimous opinion in Davis. We are not here urging that there be retreat from the Davis case. That case is decided and it is a different case. It is an admissions case, it is significantly distinguished from what we have here today. The issue in that case was whether Ms. Davis was an otherwise qualified handicapped person. Could she meet the physical qualifications needed for the safety of the patients in the program of study, the clinical program, and could she serve as a registered nurse in the various activities of the job? The college said no and this Court decided that issue and said she was not an otherwise qualified person, and that the modifications that would be required to permit her to be admitted were so substantial that they would constitute a proscribed or not-authorized affirmative action. Look at the differences with Camenisch. He's a qualified handicapped person; he's been admitted to the program by the University. There is no modification of the academic program required, there is no lowering of standards required. The HEW regs read directly on the Camenisch request.
John Paul Stevens: Mr. Pollak, that case involved the meaning of the word "qualified" in the statute. This case involves the meaning of the word "discrimination"?
Stephen J. Pollak: This case involves... pardon me, I didn't mean to interrupt.
John Paul Stevens: And the question I have is, how far must one go to comply with the statutory requirement of not discriminating? How far? That's sort of this parade of horribles that your opponent raises.
Stephen J. Pollak: Yes, he does.
John Paul Stevens: What is the limit on the University's obligations?
Stephen J. Pollak: First, I would say that there are three provisions that Congress has chosen to apply. There shall be no denial of benefits, there shall be no exclusion from participation, and otherwise, discrimination is proscribed. And we say to the Court that this case is before you to decide, and that we cannot come to you with all of the permutations and differences which other cases may present. The issue that the Camenisch case presents is the need for an interpreter explicitly provided by the HEW regulations and I might say, that that reading of the language of 504... the language of 504 is comparable to the language of Title VI, and HEW's reading of that language has been consistent now for over a decade. It read the language of Title VI, which this Court interpreted in Lau, to require the elimination of communication barriers. This Court unanimously in Lau affirmed that regulation. It reads the same language which, Mr. Justice Stevens, you and I are discussing, this discrimination exclusion benefit language, to require the elimination of a communications barrier. In this case consistent interpretation of the regulations is entitled to weight. We do not believe that what is required here is affirmative action. We believe it is the steps which the Court affirmed in Lau, not affirmative action. Thank you.
Warren E. Burger: Mr. Buscemi.
Lewis F. Powell, Jr.: Mr. Buscemi, before you commence, may I ask you a couple of questions? Would the Government's position be the same if the funding were $31,000 rather than $31 million, just generally to the University?
Peter Buscemi: I hesitate to answer that with a yes or no. I think if I had to I would say yes, Mr. Justice Powell, but I would also say that one of the critical points in these cases, cases under Title VI of the Civil Rights Act, Title IX of the Education Amendments, Section 504, is that the recipient of federal funds' obligation under the statute as a practical matter is invariably conditioned by the amount of federal aid that is received. There is naturally a cost-benefit calculus, or calculation, that is made by any recipient of federal funds.
Lewis F. Powell, Jr.: I suppose my question is whether or not the Government has the authority under the Constitution to order the elimination of what's characterized as this discrimination, but irrespective of funding?
Peter Buscemi: Well, that issue is certainly not before the Court today.
Lewis F. Powell, Jr.: I know. I just wondered whether it had been considered. My next question is whether or not in light of the position in your brief that the need of the particular student is wholly irrelevant. Is that issue before the Court, financial need?
Peter Buscemi: My answer to that question, Mr. Justice Powell, is that financial need is not a relevant criterion under the regulation.
Lewis F. Powell, Jr.: Right. That's my second question. But the first one, I don't think it's made clear in the assignments in the petition in which it states the question, that that question is before us. Do you think it is?
Peter Buscemi: Well, I think that the question of whether financial need is an appropriate criterion has been abandoned at this point by the petitioners.
Lewis F. Powell, Jr.: So you think it's not before us at this time?
Peter Buscemi: I don't think that it's the theory on which they bring the case here, although I suppose that if financial need, if the Court were to decide that financial need, notwithstanding the regulation, is an appropriate factor that petitioners might be entitled to some relief from the preliminary injunction. So I don't want... I mean, they're challenging the preliminary injunction but the theory on which they're challenging it, the question presented, if I understand the petition correctly, is not whether financial need is an appropriate factor, but only whether Section 504 requires the expenditure of any money at all.
Lewis F. Powell, Jr.: Well, if the question's here, the Government's position is that financial need is irrelevant?
Peter Buscemi: Under this regulation; that is true. We have not taken a position, Mr. Justice Powell, whether a regulation... that should this regulation be changed, for example, to make financial need a relevant criterion, whether such a regulation would or would not be consistent with the statute.
Lewis F. Powell, Jr.: Do you really think the Congress of the United States intended financial need to be irrelevant?
Peter Buscemi: I think the Congress of the United States intended to give to funding agencies the power to promulgate rules and regulations to implement the antidiscrimination, the antiexclusion guarantees of Section 504.
Lewis F. Powell, Jr.: And without regard to the federal funds provided, and without regard to the financial need of the individual that claimed this help?
Peter Buscemi: Well, certainly not without regard to the federal funds provided, because as I said at the very beginning, if there were no federal funds provided--
Lewis F. Powell, Jr.: Well, I suggested $31,000 instead of $31 million.
Peter Buscemi: --If there was $31,000 provided, the University would of course make a decision as to whether that amount of aid was sufficient to justify the imposition of the requirements of the statute. The University might well conclude that it would rather do without. That's one--
Thurgood Marshall: Without the $31,000?
Peter Buscemi: --Exactly, Mr. Chief Justice. That is one of the areas--
Thurgood Marshall: Isn't it true that $31 million to Texas is like $31,000 to most schools?
Peter Buscemi: --Mr. Justice Marshall, as I understand the record, it indicates that the $31 million is approximately one-sixth to one-seventh of the University of Texas's annual budget.
Warren E. Burger: What if the record showed a million-dollar grant to the Medical School, and this student is not part of the Medical School... a $1 million grant to conduct research on cancer. Then does that invoke the provisions of 504, in your view?
Peter Buscemi: Mr. Chief Justice, I want to say that the question of the interpretation of the statutory language, program, or activity is a very difficult one that has arisen under Title VI and Title IX, and Section 504. There has recently been a decision in the district court in Michigan holding that an athletic program in a university that does receive substantial federal funds is nevertheless not a covered program or activity because the federal funds do not specifically support the athletic program. Now, we don't know, in this case, what particular activities of the University are supported by the $31 million, but it is not the Government's position that part of that $31 million must go directly, for example, to a professor who has taught Mr. Camenisch before he can be covered by this statute. Program or activity has to be defined in a somewhat broader way. Now how broad it should be, whether as respondent contends, it should cover the entire University, the minute any federal funds are received, or whether it should be restricted, for example, to the Graduate School of Arts and Sciences, or to an undergraduate program, is not before the Court and because that's difficult--
Potter Stewart: In a sense it is jurisdictional, and therefore in a sense it is before the Court. Let's assume that all of this $31 million went to a program operated by the University down on the Gulf, not even in Austin, in marine biology. Then, unless the respondent is correct in his broad argument, this should not be a program or activity receiving federal financial assistance in which the respondent is engaged. And--
Peter Buscemi: --Well, I'm not sure that I agree with the characterization of that as jurisdictional, Mr. Justice Stewart. It seems to me that--
Potter Stewart: --Well, let's say this institution received no federal aid at all. That would be jurisdictional.
Peter Buscemi: --Well, it would have no substantive obligation under the statutes.
Potter Stewart: Precisely. And it would be jurisdictional. This statute would be totally inapplicable, would it not?
Peter Buscemi: Yes, but I think this Court would still have jurisdiction in the case.
William J. Brennan, Jr.: And the plaintiff simply would not have proved a cause of action?
Peter Buscemi: Exactly. I think that is the distinction that I want to draw here. And I want to emphasize the procedural posture of this case. There was really nothing that respondent could do to avoid the situation. He went into the district court and said, I am entitled to an interpreter. The district court said, give him an interpreter. And then there was an immediate appeal by the University of Texas. There has never been any consideration of what the appropriate burden of proof should be, whether the respondent should have to show that the money went to a program or activity in which he participated, or whether the University is in a better position to, you know, prove that question because they are the ones who know where the money went. So all of that is open. If this Court affirms the judgment of the 5th Circuit, this case is not over. As respondent points out in a footnote in his brief, there doesn't even need to be a remand. There's automatically going to be further proceedings in the district court, in which this and other issues that may not have been raised before--
William J. Brennan, Jr.: That's because we have only the temporary injunction here?
Peter Buscemi: --That's correct, Mr. Justice Brennan.
William J. Brennan, Jr.: So there are further proceedings before there's a final judgment on this, is that it?
Peter Buscemi: That's right.
Potter Stewart: And how about the question of mootness in this case? The respondent has graduated and got his degree, hasn't he?
Peter Buscemi: I would think, Mr. Justice Stewart, that there is a substantial question, and I think this is jurisdictional under Article III. I think there is a substantial question of mootness here and it depends on how the preliminary injunction is characterized. If the injunction bond is part and parcel of the preliminary injunction, then this Court retains jurisdiction. On the other hand, if the injunction bond is only something that goes to the ultimate merits and the preliminary injunction is only designed to hold the respondent harmless while the litigation is pending--
Potter Stewart: And he was held harmless, and he has his degree and he's gone and left the University, hasn't he?
Peter Buscemi: --then the preliminary injunction no longer has any effect and the jurisdictional basis for this petition is no longer--
John Paul Stevens: It's still not decided who has to pay for the interpreter?
Peter Buscemi: --Oh, that's absolutely correct.
John Paul Stevens: That's the issue, isn't it, who has to pay the $3,000?
Peter Buscemi: Just the question of how this petition should be disposed of.
Potter Stewart: Nobody has to pay for the interpreter anymore. He's left the University.
John Paul Stevens: Yes, but if the University had no statutory obligation to pay him, they can get their money back from this student.
Peter Buscemi: That's right. That's why the injunction bond is keeping the controversy alive.
William H. Rehnquist: That's Liner v. Jafco?
Peter Buscemi: I think that's one of the cases that's relevant to that.
Warren E. Burger: Let me be sure I understand your position as a friend of the Court, in relation to what Mr. Justice Powell was asking you, and what I have put to Mr. Pollak. If it were shown on this record that this man had $100,000 a year income from a trust from his grandfather or any other source, do you say that that's irrelevant under this statute?
Peter Buscemi: Under the regulation that has been promulgated by HEW in implementation of this statute, financial need is not a relevant criterion. And I wanted to respond... this gives me an opportunity, Mr. Chief Justice... to the question Mr. Justice Stevens posed to my colleague and that is, how far do we say that one has to go in order to avoid the discrimination? Because I think that is the critical question in the case. And the Government's answer is, that one has to go as far as the reasonable regulations of the agencies charged with enforcing the statute require. That is the typical answer that the Court has given to cases in which Congress has given to the administrative agencies a broad delegation of power to enforce a particular provision. It's the rule that the Court applied in Mourning, it's the rule the Court applied in Thorpe, and it's the rule that the Court applied in Lau under a statute that is very similar to this one, but Title VI of the Civil Rights Act provides, just as this statute does, that there shall be no discrimination. And HEW promulgated regulations reasonably related to that purpose that said that bilingual instruction or some other method of getting through to oriental children in the San Francisco School District was necessary to make the educational opportunity meaningful. That surely would have required the expenditure of some funds.
Warren E. Burger: Well, suppose, Mr. Buscemi, that suddenly someone shows up from Poland or Czechoslovakia to get a master's degree or a PhD and can't speak English. Would you say that Lau would require, Lau and 504 here would require the University of Texas to provide all the necessary aid?
Peter Buscemi: Well, of course Section 504 would have no application for someone, it would be a discrimination on the basis of national origin, I suppose, what you're referring to.
Warren E. Burger: No, no; he can't speak English.
Peter Buscemi: Well, I'm not sure--
Warren E. Burger: That's my hypothesis.
Peter Buscemi: --I don't Think that qualifies as a handicap within the meaning of Section 504. I'm not sure that that is correct. In any event, the Lau decision was not under Section 504. It was discrimination on the basis of national origin under Title VI of the Civil Rights Act, and the question that Your Honor poses is the very question that was reserved in the concurring opinion by Mr. Justice Blackmun that you joined, Mr. Chief Justice, and that is whether, the same result in Lau would have been required had there been, not 1,800 or 3,000 oriental children in the San Francisco School District that could not understand their instruction but only one? And we don't know exactly how the regulations would have treated just that one student. But here the regulations are clearly designed to treat individual handicapped persons.
John Paul Stevens: May I ask one question before you sit down? What is the source... I may have just lost it in the papers... the source of the Government's view and your colleague's view that financial need is irrelevant? Because 84.44(d) talks about such steps as are necessary, and if they were not necessary as a financial matter, would they clearly be necessary within the meaning of the regulation?
Peter Buscemi: Well, that was the argument, Mr. Justice Stevens, that petitioners made in the district court. The Government's position is that the agency's interpretation of its own regulation should govern.
John Paul Stevens: It's not in the regulation itself? It's an interpretation that they're?
Peter Buscemi: That's right. I mean, I will have to concede that the phase, "take such steps as are necessary. " concedes--
John Paul Stevens: And then, well, it's really not necessary because he can afford his own interpreter?
Peter Buscemi: --That would be a possible argument, and that's the argument that was made, because in the district court petitioners assumed that they were required to make some financial expenditures in some circumstances under the Act. That's one of the things we've pointed out in our brief. It's only now that they say nothing at all. But they argued solely on the basis of this language. But it seems to us, and petitioners now concede that this language requires them to pay, irrespective of financial need... they've abandoned that argument. And furthermore, even if they had not, the consistent construction by the agency of its own regulations, we believe, should govern.
Thurgood Marshall: Why not say that it's not in this case, rather than to continue to say it's irrelevant?
Peter Buscemi: Well, I'll be happy to adopt your formulation, Mr. Justice Marshall. That is not part of the question in this case.
Thurgood Marshall: You're digging deeper all the time. Well, the statute imposes no such requirement or criterion whatsoever.
Peter Buscemi: The statute certainly does not refer to financial need; that's--
Speaker: That's right.
Peter Buscemi: --Thank you.
Warren E. Burger: Do you have anything further?
Lonny F. Zwiener: If I might, Your Honor. The program-specific situation was considered by the 5th Circuit probably as early as any court. In the Finch case, which was cited in my brief... and I think that their logic was excellent here; this was a Title VI case, a public school that did receive some Federal monies. But the court said, just because there were problems somewhere in the school, we are not going to cut off all the federal monies and do away with a lot of beneficial programs. The money had to be identified with the program. That was a '67 case, I think, long before this came up, and I would like to say a word, I think, about Lau. Well, let me say a word about the regulations, if the Court will permit. The regulations are strange because apparently a person has to buy his wheelchair but he may be able to get some sort of tape to help study, so there is absolutely no consistency with what is required by the HEW regulations. But we are not really complaining about the regulations except to say that the statute doesn't permit any of them. But they are strange. I don't know what we'd do with eyeglasses for those that are severely handicapped. And the danger that occurred to me when the arguments were being made, one of the dangers of this 504 is that we had an employee at the University of Texas Health Science Center at Tyler, he was almost blind. He could see with things, perhaps, an inch from him. He was employed to work on wards and read charts, to fill syringes. He represented at the time that he came with us that new technology would permit him to get new glasses that he would be able to handle his work problem. Well, that didn't work out that way, and it was not good. He couldn't read the charts. He could not read the markings on the syringes that he filled. And he was working with patients that were not seriously ill, but he could have by some of his activities made them so, rendered them so. HEW investigated and said, you've got to get somebody to make the rounds with him to read the charts. You've got to get him a syringe that has raised characters on it so that he will be able to fill it properly, I think it's just outrageous, but that's what scares us; not this case. That's the thing that scares us. Now--
Potter Stewart: Well, this case is the case we have before us.
Lonny F. Zwiener: --And in this case, to summarize, Your Honor, we would say that 504 requires the universities to do nothing; not, certainly not to spend money. With respect to Lau, Lau was not decided under the Constitution, the Fourteenth Amendment, but was under Title VI and in that case there was no question of program specific; everybody assumed that the school district got substantial federal support. Title VI says you will not discriminate with respect to race. Now, I would say that Lau was probably wrongly decided. I would decide it differently because I would say that Title VI says we cannot discriminate in a program receiving federal financial aid, but it doesn't require us to go out of our way not to "discriminate".
William H. Rehnquist: This case isn't brought under the Constitution either, though.
Lonny F. Zwiener: No, Your Honor, it is not. We were talking earlier, Your Honor, that the Constitution and the Fourteenth Amendment does not, has nothing to say about handicap for discrimination. All we have to do is treat them neutral. If they can't play football and they have no legs, well, that's all we're required to do; they can have a chance to come out. We would say the Constitution... and that's why I say that Lau may be wrongly decided from the viewpoint I'm advancing here, that unless you tie a direction to the states or to private industry not to discriminate against the handicapped to money, then there is no federal power to prevent discrimination against the handicapped.
William H. Rehnquist: Well, what about 504, though? That certainly addresses the question.
Lonny F. Zwiener: Addresses? Yes, sir. It says, very simply, that a recipient will not discriminate against the handicapped in any program receiving federal financial assistance. Now, if the program receives federal financial assistance and we agree that we will not discriminate, if we just agree not to discriminate, I might say that we don't have to do anything. We offered them the job merely because we don't like the deaf, we can't refuse to do it, but we don't have to help them.
Potter Stewart: Did the plaintiff's complaint allege that the program in which he was enrolled received federal financial assistance?
Lonny F. Zwiener: No, Your Honor.
Potter Stewart: Well, then, he didn't state a case, did he?
Lonny F. Zwiener: Well, I may be misstating it, Your Honor, but--
Potter Stewart: Well, that's quite important, I think.
Lonny F. Zwiener: --I didn't... I don't see that he did state it.
Thurgood Marshall: Did you file a motion to dismiss on that point?
Lonny F. Zwiener: We filed a motion to dismiss but--
Speaker: On that point?
Lonny F. Zwiener: --But not on that ground; no, sir.
Harry A. Blackmun: Incidentally, did they plead 1983?
Lonny F. Zwiener: Yes, sir, they did. Which is why I talked about the Constitution today, because I'm worrying about Maine v. Thiboutot and then this statute. But again, because it's a private cause of action, I think there'll be certain statutes that you might say a plaintiff is a beneficiary of that would not permit a private cause of action to be brought, and I would say this is very close to one because there was a very recent amendment.
Potter Stewart: I think for your clarification, counsel, I have found the answer to my question on A-5, paragraph 5, paragraph 5 of the complaint, which appears on A-5.
Lonny F. Zwiener: Yes, it does say that. I didn't mean to misrepresent to the Court, I was just not familiar with it. He does say--
Potter Stewart: "A private institution of higher learning which receives federal financial assistance. " "And you did not deny that in your answer? "
Lonny F. Zwiener: --Your Honor, I don't know whether we did or not. I would say that the arguments I've advanced here make all that immaterial. I noticed, in closing, that the Court had a case in December, Pennhurst State School and Hospital v. Halderman, in which--
Warren E. Burger: Your time has expired.
Lonny F. Zwiener: --there was discussion about the spending power and the powers of Congress to do certain things.
Warren E. Burger: Your time has expired now, counsel.
Lonny F. Zwiener: Thank you.
Warren E. Burger: Thank you, gentlemen. The case is submitted.