Respondent, who suffers from a serious hearing disability and
who seeks to be trained as a registered nurse, was denied admission
to the nursing program of petitioner Southeastern Community
College, a state institution that receives federal funds. An
audiologist's report indicated that, even with a hearing aid,
respondent cannot understand speech directed to her except through
lip-reading, and petitioner rejected respondent's application for
admission because it believed her hearing disability made it
impossible for her to participate safely in the normal clinical
training program or to care safely for patients. Respondent then
filed suit against petitioner in Federal District Court, alleging,
inter alia, a violation of § 504 of the Rehabilitation Act
of 1973, which prohibits discrimination against an "otherwise
qualified handicapped individual" in federally funded programs
"solely by reason of his handicap." The District Court entered
judgment in favor of petitioner, confirming the audiologist's
findings and concluding that respondent's handicap prevented her
from safely performing in both her training program and her
proposed profession. On this basis, the court held that respondent
was not an "otherwise qualified handicapped individual" protected
by § 504, and that the decision to exclude her was not
discriminatory within the meaning of § 504. Although not disputing
the District Court's factfindings, the Court of Appeals reversed,
holding that, in light of intervening regulations of the Department
of Health, Education, and Welfare (HEW), § 504 required petitioner
to reconsider respondent's application for admission without regard
to her hearing ability, and that, in determining whether respondent
was "otherwise qualified," petitioner must confine its inquiry to
her "academic and technical qualifications." The Court of Appeals
also suggested that § 504 required "affirmative conduct" by
petitioner to modify its program to accommodate the disabilities of
applicants.
Held: There was no violation of § 504 when petitioner
concluded that respondent did not qualify for admission to its
program. Nothing in the language or history of § 504 limits the
freedom of an educational institution to require reasonable
physical qualifications for admission to
Page 442 U. S. 398
a clinical training program. Nor has there been any showing in
this case that any action short of a substantial change in
petitioner's program would render unreasonable the qualifications
it imposed. Pp.
442 U. S.
405-414.
(a) The terms of § 504 indicate that mere possession of a
handicap is not a permissible ground for assuming an inability to
function in a particular context, but do not mean that a person
need not meet legitimate physical requirements in order to be
"otherwise qualified." An otherwise qualified person is one who is
able to meet all of a program's requirements in spite of his
handicap. HEW's regulations reinforce, rather than contradict, this
conclusion. Pp.
442 U. S.
405-407.
(b) Section 504 does not compel petitioner to undertake
affirmative action that would dispense with the need for effective
oral communication, such as by giving respondent individual
supervision whenever she attends patients directly or by dispensing
with certain required courses for respondent and training her to
perform some but not all of the tasks a registered nurse is
licensed to perform. On the record, it appears unlikely that
respondent could benefit from any affirmative action that HEW
regulations reasonably could be interpreted as requiring with
regard to "modifications" of post-secondary educational programs to
accommodate handicapped persons and the provision of "auxiliary
aids" such as sign language interpreters. Moreover, an
interpretation of the regulations that required the extensive
modifications necessary to include respondent in the nursing
program would raise grave doubts about their validity. Neither the
language, purpose, nor history of § 504 reveals an intent to impose
an affirmative action obligation on all recipients of federal
funds, and thus even if HEW has attempted to create such an
obligation itself, it lacks the authority to do so. Pp.
442 U. S.
407-412.
(c) The line between a lawful refusal to extend affirmative
action and illegal discrimination against handicapped persons will
not always be clear, and situations may arise where a refusal to
modify an existing program to accommodate the needs of a disabled
person amounts to discrimination against the handicapped. In this
case, however, petitioner's unwillingness to make major adjustments
in its nursing program does not constitute such discrimination.
Uncontroverted testimony established that the purpose of
petitioner's program was to train persons who could serve the
nursing profession in all customary ways, and this type of purpose,
far from reflecting any animus against handicapped individuals, is
shared by many, if not most, of the institutions that train persons
to render professional service. Section 504 imposes no requirement
upon an educational institution to lower or to effect
substantial
Page 442 U. S. 399
modifications of standards to accommodate a handicapped person.
Pp.
442 U. S.
412-413.
574 F.2d 1158, reversed and remanded.
POWELL, J., delivered the opinion for a unanimous Court.
Page 442 U. S. 400
MR. JUSTICE POWELL delivered the opinion of the Court.
This case presents a matter of first impression for this Court:
Whether § 504 of the Rehabilitation Act of 1973, which prohibits
discrimination against an "otherwise qualified handicapped
individual" in federally funded programs "solely by reason of his
handicap," forbids professional schools from imposing physical
qualifications for admission to their clinical training
programs.
I
Respondent, who suffers from a serious hearing disability, seeks
to be trained as a registered nurse. During the 1973-1974 academic
year, she was enrolled in the College Parallel program of
Southeastern Community College, a state institution that receives
federal funds. Respondent hoped to progress to Southeastern's
Associate Degree Nursing program, completion of which would make
her eligible for state certification as a registered nurse. In the
course of her application to the nursing program, she was
interviewed by a member of the nursing faculty. It became apparent
that respondent had difficulty understanding questions asked, and
on inquiry, she acknowledged a history of hearing problems and
dependence on a hearing aid. She was advised to consult an
audiologist.
Page 442 U. S. 401
On the basis of an examination at Duke University Medical
Center, respondent was diagnosed as having a "bilateral,
sensori-neural hearing loss." App 127a. A change in her hearing aid
was recommended, as a result of which it was expected that she
would be able to detect sounds "almost as well as a person would
who has normal hearing."
Id. at 127a-128a. But this
improvement would not mean that she could discriminate among sounds
sufficiently to understand normal spoken speech. Her lip-reading
skills would remain necessary for effective communication:
"While wearing the hearing aid, she is well aware of gross
sounds occurring in the listening environment. However, she can
only be responsible for speech spoken to her, when the talker gets
her attention and allows her to look directly at the talker."
Id. at 128a.
Southeastern next consulted Mary McRee, Executive Director of
the North Carolina Board of Nursing. On the basis of the
audiologist's report, McRee recommended that respondent not be
admitted to the nursing program. In McRee's view, respondent's
hearing disability made it unsafe for her to practice as a nurse.
[
Footnote 1] In addition, it
would be impossible for respondent to participate safely in the
normal clinical training program, and those modifications that
would be necessary to enable safe participation would prevent her
from
Page 442 U. S. 402
realizing the benefits of the program: "To adjust patient
learning experiences in keeping with [respondent's] hearing
limitations could, in fact, be the same as denying her full
learning to meet the objectives of your nursing programs."
Id. at 132a-133a.
After respondent was notified that she was not qualified for
nursing study because of her hearing disability, she requested
reconsideration of the decision. The entire nursing staff of
Southeastern was assembled, and McRee again was consulted. McRee
repeated her conclusion that, on the basis of the available
evidence, respondent "has hearing limitations which could interfere
with her safely caring for patients."
Id. at 139a. Upon
further deliberation, the staff voted to deny respondent
admission.
Respondent then filed suit in the United States District Court
for the Eastern District of North Carolina, alleging both a
violation of § 504 of the Rehabilitation Act of 1973, 7 Stat. 394,
as amended, 29 U.S.C. § 794 (1976 ed., Supp. III), [
Footnote 2]
Page 442 U. S. 403
and a denial of equal protection and due process. After a bench
trial, the District Court entered judgment in favor of
Southeastern.
424 F.
Supp. 1341 (1976). It confirmed the findings of the audiologist
that, even with a hearing aid, respondent cannot understand speech
directed to her except through lip-reading, and further found:
"[I]n many situations, such as an operation room intensive care
unit or post-natal care unit, all doctors and nurses wear surgical
masks which would make lip-reading impossible. Additionally, in
many situations, a Registered Nurse would be required to instantly
follow the physician's instructions concerning procurement of
various types of instruments and drugs where the physician would be
unable to get the nurse's attention by other than vocal means."
Id. at 1343. Accordingly, the court concluded:
"[Respondent's] handicap actually prevents her from safely
performing in both her training program and her proposed
profession. The trial testimony indicated numerous situations where
[respondent's] particular disability would render her unable to
function properly. Of particular concern to the court in this case
is the potential of danger to future patients in such
situations."
Id. at 1345.
Based on these findings, the District Court concluded that
respondent was not an "otherwise qualified handicapped individual"
protected against discrimination by § 504. In its view,
"[o]therwise qualified, can only be read to mean otherwise able
to function sufficiently in the position sought in spite of the
handicap, if proper training and facilities are suitable and
available."
424 F. Supp. at 1345. Because respondent's disability would
prevent her from functioning "sufficiently" in Southeastern's
nursing program, the court
Page 442 U. S. 404
held that the decision to exclude her was not discriminatory
within the meaning of § 504. [
Footnote 3]
On appeal, the Court of Appeals for the Fourth Circuit reversed.
574 F.2d 1158 (1978). It did not dispute the District Court's
findings of fact, but held that the court had misconstrued § 504.
In light of administrative regulations that had been promulgated
while the appeal was pending,
see 42 Fed.Reg. 22676
(1977), [
Footnote 4] the
appellate court believed that § 504 required Southeastern to
"reconsider plaintiff's application for admission to the nursing
program without regard to her hearing ability." 574 F.2d at 1160.
It concluded that the District Court had erred in taking
respondent's handicap into account in determining whether she was
"otherwise qualified" for the program, rather than confining its
inquiry to her "academic and technical qualifications."
Id. at 1161. The Court of Appeals also suggested that §
504 required "affirmative conduct" on the part of Southeastern to
modify its program to accommodate the disabilities of applicants,
"even when such modifications become expensive." 574 F.2d at
1162.
Because of the importance of this issue to the many institutions
covered by § 504, we granted certiorari. 439 U.S. 1065 (1979). We
now reverse. [
Footnote 5]
Page 442 U. S. 405
II
As previously noted, this is the first case in which this Court
has been called upon to interpret § 504. It is elementary that
"[t]he starting point in every case involving construction of a
statute is the language itself."
Blue Chip Stamps v. Manor Drug
Stores, 421 U. S. 723,
421 U. S. 756
(1975) (POWELL, J., concurring);
see Greyhound Corp. v. Mt.
Hood Stages, Inc., 437 U. S. 322,
437 U. S. 30
(1978);
Santa Fe Industries, Inc. v. Green, 430 U.
S. 462,
430 U. S. 472
(1977). Section 504, by its terms, does not compel educational
institutions to disregard the disabilities of handicapped
individuals or to make substantial modifications in their programs
to allow disabled persons to participate. Instead, it requires only
that an "otherwise qualified handicapped individual" not be
excluded from participation in a federally funded program "solely
by reason of his handicap," indicating only that mere possession of
a handicap is not a permissible ground for assuming an inability to
function in a particular context. [
Footnote 6]
Page 442 U. S. 406
The court below, however, believed that the "otherwise
qualified" persons protected by § 504 include those who would be
able to meet the requirements of a particular program in every
respect except as to limitations imposed by their handicap.
See 574 F.2d at 1160. Taken literally, this holding would
prevent an institution from taking into account any limitation
resulting from the handicap, however disabling. It assumes, in
effect, that a person need not meet legitimate physical
requirements in order to be "otherwise qualified." We think the
understanding of the District Court is closer to the plain meaning
of the statutory language. An otherwise qualified person is one who
is able to meet all of a program's requirements in spite of his
handicap.
The regulations promulgated by the Department of HEW to
interpret § 504 reinforce, rather than contradict, this conclusion.
According to these regulations, a "[q]ualified handicapped person"
is,
"[w]ith respect to post-secondary and vocational education
services, a handicapped person who meets the academic and technical
standards requisite to admission or participation in the [school's]
education program or activity. . . ."
45 CFR § 84.3(k)(3) (1978). An explanatory note states:
"The term 'technical standards' refers to
all
nonacademic admissions criteria that are essential to participation
in the program in question."
45 CFR pt. 84, App A, p. 405 (1978) (emphasis supplied).
Page 442 U. S. 407
A further note emphasizes that legitimate physical
qualifications may be essential to participation in particular
programs. [
Footnote 7] We think
it clear, therefore, that HEW interprets the "other" qualifications
which a handicapped person may be required to meet as including
necessary physical qualifications.
III
The remaining question is whether the physical qualifications
Southeastern demanded of respondent might not be necessary for
participation in its nursing program. It is not open to dispute
that, as Southeastern's Associate Degree Nursing program currently
is constituted, the ability to understand speech without reliance
on lip-reading is necessary for patient safety during the clinical
phase of the program. As the District Court found, this ability
also is indispensable for many of the functions that a registered
nurse performs.
Respondent contends nevertheless that § 504, properly
interpreted, compels Southeastern to undertake affirmative action
that would dispense with the need for effective oral communication.
First, it is suggested that respondent can be given individual
supervision by faculty members whenever she attends patients
directly. Moreover, certain required courses might be dispensed
with altogether for respondent. It is not
Page 442 U. S. 408
necessary, she argues, that Southeastern train her to undertake
all the tasks a registered nurse is licensed to perform. Rather, it
is sufficient to make § 504 applicable if respondent might be able
to perform satisfactorily some of the duties of a registered nurse
or to hold some of the positions available to a registered nurse.
[
Footnote 8]
Respondent finds support for this argument in portions of the
HEW regulations discussed above. In particular, a provision
applicable to post-secondary educational programs requires covered
institutions to make "modifications" in their programs to
accommodate handicapped persons, and to provide "auxiliary aids"
such as sign language interpreters. [
Footnote 9] Respondent
Page 442 U. S. 409
argues that this regulation imposes an obligation to ensure full
participation in covered programs by handicapped individuals and,
in particular, requires Southeastern to make the kind of
adjustments that would be necessary to permit her safe
participation in the nursing program.
We note first that, on the present record, it appears unlikely
respondent could benefit from any affirmative action that the
regulation reasonably could be interpreted as requiring. Section
84.44(d)(2), for example, explicitly excludes "devices or services
of a personal nature" from the kinds of auxiliary aids a school
must provide a handicapped individual. Yet the only evidence in the
record indicates that nothing less than close, individual attention
by a nursing instructor would be sufficient to ensure patient
safety if respondent took part in the clinical phase of the nursing
program.
See 424 F.
Supp. at 1346. Furthermore, it also is reasonably clear that §
84.44(a) does not encompass the kind of curricular changes that
would be necessary to accommodate respondent in the nursing
program. In light of respondent's inability to function in clinical
courses without close supervision, Southeastern, with prudence,
could
Page 442 U. S. 410
allow her to take only academic classes. Whatever benefits
respondent might realize from such a course of study, she would not
receive even a rough equivalent of the training a nursing program
normally gives. Such a fundamental alteration in the nature of a
program is far more than the "modification" the regulation
requires.
Moreover, an interpretation of the regulations that required the
extensive modifications necessary to include respondent in the
nursing program would raise grave doubts about their validity. If
these regulations were to require substantial adjustments in
existing programs beyond those necessary to eliminate
discrimination against otherwise qualified individuals, they would
do more than clarify the meaning of § 504. Instead, they would
constitute an unauthorized extension of the obligations imposed by
that statute.
The language and structure of the Rehabilitation Act of 1973
reflect a recognition by Congress of the distinction between the
evenhanded treatment of qualified handicapped persons and
affirmative efforts to overcome the disabilities caused by
handicaps. Section 501(b), governing the employment of handicapped
individuals by the Federal Government, requires each federal agency
to submit "an affirmative action program plan for the hiring,
placement, and advancement of handicapped individuals. . . ." These
plans "shall include a description of the extent to which and
methods whereby the special needs of handicapped employees are
being met." Similarly, § 503(a), governing hiring by federal
contractors, requires employers to "take affirmative action to
employ and advance in employment qualified handicapped individuals.
. . ." The President is required to promulgate regulations to
enforce this section.
Under § 501(c) of the Act, by contrast, state agencies such as
Southeastern are only "encourage[d] . . . to adopt and implement
such policies and procedures." Section 504 does not refer at all to
affirmative action, and, except as it applies to
Page 442 U. S. 411
federal employers, it does not provide for implementation by
administrative action. A comparison of these provisions
demonstrates that Congress understood accommodation of the needs of
handicapped individuals may require affirmative action and knew how
to provide for it in those instances where it wished to do so.
[
Footnote 10]
Although an agency's interpretation of the statute under which
it operates is entitled to some deference,
"this deference is constrained by our obligation to honor the
clear meaning of a statute, as revealed by its language, purpose,
and history."
Teamsters v. Daniel, 439 U. S. 551,
439 U. S. 566
n. 20 (1979). Here, neither the language, purpose, nor history of §
504 reveals an intent to impose an affirmative action obligation on
all recipients of federal funds. [
Footnote 11] Accordingly, we hold that, even if
Page 442 U. S. 412
HEW has attempted to create such an obligation itself, it lacks
the authority to do so.
IV
We do not suggest that the line between a lawful refusal to
extend affirmative action and illegal discrimination against
handicapped persons always will be clear. It is possible to
envision situations where an insistence on continuing past
requirements and practices might arbitrarily deprive genuinely
qualified handicapped persons of the opportunity to participate in
a covered program. 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 financial
and administrative burdens upon a State. Thus, situations may arise
where a
Page 442 U. S. 413
refusal to modify an existing program might become unreasonable
and discriminatory. Identification of those instances where a
refusal to accommodate the needs of a disabled person amounts to
discrimination against the handicapped continues to be an important
responsibility of HEW.
In this case, however, it is clear that Southeastern's
unwillingness to make major adjustments in its nursing program does
not constitute such discrimination. The uncontroverted testimony of
several members of Southeastern's staff and faculty established
that the purpose of its program was to train persons who could
serve the nursing profession in all customary ways.
See,
e.g., App. 35a, 52a, 53a, 71a, 74a. This type of purpose, far
from reflecting any animus against handicapped individuals is,
shared by many. if not most. of the institutions that train persons
to render professional service. It is undisputed that respondent
could not participate in Southeastern's nursing program unless the
standards were substantially lowered. Section 504 imposes no
requirement upon an educational institution to lower or to effect
substantial modifications of standards to accommodate a handicapped
person. [
Footnote 12]
Page 442 U. S. 414
One may admire respondent's desire and determination to overcome
her handicap, and there well may be various other types of service
for which she can qualify. In this case, however, we hold that
there was no violation of § 504 when Southeastern concluded that
respondent did not qualify for admission to its program. Nothing in
the language or history of § 504 reflects an intention to limit the
freedom of an educational institution to require reasonable
physical qualifications for admission to a clinical training
program. Nor has there been any showing in this case that any
action short of a substantial change in Southeastern's program
would render unreasonable the qualifications it imposed.
V
Accordingly, we reverse the judgment of the court below, and
remand for proceedings consistent with this opinion.
So ordered.
[
Footnote 1]
McRee also wrote that respondent's hearing disability could
preclude her practicing safely in "any setting" allowed by "a
license as L[icensed] P[ractical] N[urse]." App. 132a. Respondent
contends that, inasmuch as she already was licensed as a practical
nurse, McRee's opinion was inherently incredible. But the record
indicates that respondent had "not worked as a licensed practical
nurse except to do a little bit of private duty,"
id. at
32a, and had not done that for several years before applying to
Southeastern. Accordingly, it is at least possible to infer that
respondent in fact could not work safely as a practical nurse, in
spite of her license to do so. In any event, we note the finding of
the District Court that
"a Licensed Practical Nurse, unlike a Licensed Registered Nurse,
operates under constant supervision, and is not allowed to perform
medical tasks which require a great degree of technical
sophistication."
424 F.
Supp. 1341, 1342-1343 (EDNC 1976).
[
Footnote 2]
The statute, as set forth in 29 U.S.C. § 794 (1976 ed., Supp.
III), provides in full:
"No otherwise qualified handicapped individual in the United
States, as defined in section 706(7) of this title, shall, solely
by reason of his handicap, be excluded from the participation in,
be denied the benefits of, or be subjected to discrimination under
any program or activity receiving Federal financial assistance
or under any program or activity conducted by any Executive
agency or by the United States Postal Service. The head of each
such agency shall promulgate such regulations as may be necessary
to carry out the amendments to this section made by the
Rehabilitation, Comprehensive Services, and Developmental
Disabilities Act of 1978. Copies of any proposed regulation shall
be submitted to appropriate authorizing committees of the Congress,
and such regulation may take effect no earlier than the thirtieth
day after the date on which such regulation is so submitted to such
committees."
The italicized portion of the section was added by § 119 of the
Rehabilitation, Comprehensive Services, and Developmental
Disabilities Amendments of 1978, 92 Stat. 2982. Respondent asserts
no claim under this portion of the statute.
[
Footnote 3]
The District Court also dismissed respondent's constitutional
claims. The Court of Appeals affirmed that portion of the order,
and respondent has not sought review of this ruling.
[
Footnote 4]
Relying on the plain language of the Act, the Department of
Health, Education, and Welfare (HEW) at first did not promulgate
any regulations to implement § 504. In a subsequent suit against
HEW, however, the United States District Court for the District of
Columbia held that Congress had intended regulations to be issued,
and ordered HEW to do so.
Cherry v.
Mathews, 419 F.
Supp. 922 (1976). The ensuing regulations currently are
embodied in 45 CFR pt. 84 (1978).
[
Footnote 5]
In addition to challenging the construction of § 504 by the
Court of Appeals, Southeastern also contends that respondent cannot
seek judicial relief for violations of that statute, in view of the
absence of any express private right of action. Respondent asserts
that, whether or not § 504 provides a private action, she may
maintain her suit under 42 U.S.C. § 1983. In light of our
disposition of this case on the merits, it is unnecessary to
address these issues, and we express no views on them.
See
Norton v. Mathews, 427 U. S. 524,
427 U. S.
529-531 (1976);
Moor v. County of Alameda,
411 U. S. 693,
411 U. S. 715
(1973);
United States v. Augenblick, 393 U.
S. 348,
393 U. S.
351-352 (1969).
[
Footnote 6]
The Act defines "handicapped individual" as follows:
"The term 'handicapped individual' means any individual who (A)
has a physical or mental disability which for such individual
constitutes or results in a substantial handicap to employment and
(B) can reasonably be expected to benefit in terms of employability
from vocational rehabilitation services provided pursuant to
subchapters I and III of this chapter. For the purposes of
subchapters IV and V of this chapter, such term means any person
who (A) has a physical or mental impairment which substantially
limits one or more of such person's major life activities, (B) has
a record of such an impairment, or (C) is regarded as having such
an impairment."
§ 7(6) of the Rehabilitation Act of 1973, 87 Stat. 361, as
amended, 88 Stat. 1619, 89 Stat. 2-5, 29 U.S. c. § 706(6).
This definition comports with our understanding of § 504. A
person who has a record of, or is regarded as having, an impairment
may at present have no actual incapacity at all. Such a person
would be exactly the kind of individual who could be "otherwise
qualified" to participate in covered programs. And a person who
suffers from a limiting physical or mental impairment still may
possess other abilities that permit him to meet the requirements of
various programs. Thus, it is clear that Congress included among
the class of "handicapped" persons covered by § 504 a range of
individuals who could be "otherwise qualified."
See S.Rep.
No. 93-1297, pp. 339 (1974).
[
Footnote 7]
The note states:
"Paragraph (k) of § 84.3 defines the term 'qualified handicapped
person.' Throughout the regulation, this term is used instead of
the statutory term 'otherwise qualified handicapped person.' The
Department believes that the omission of the word 'otherwise' is
necessary in order to comport with the intent of the statute
because, read literally, 'otherwise' qualified handicapped persons
include persons who are qualified except for their handicap, rather
than in spite of their handicap. Under such a literal reading, a
blind person possessing all the qualifications for driving a bus
except sight could be said to be 'otherwise qualified' for the job
of driving. Clearly, such a result was not intended by Congress. In
all other respects, the terms 'qualified' and 'otherwise qualified'
are intended to be interchangeable."
45 CFR pt. 84, App. A, p. 405 (1978).
[
Footnote 8]
The court below adopted a portion of this argument:
"[Respondent's] ability to read lips aids her in overcoming her
hearing disability; however, it was argued that, in certain
situations, such as in an operating room environment where surgical
masks are used, this ability would be unavailing to her."
"Be that as it may, in the medical community, there does appear
to be a number of settings in which the plaintiff could perform
satisfactorily as an RN, such as in industry or perhaps a
physician's office. Certainly [respondent] could be viewed as
possessing extraordinary insight into the medical and emotional
needs of those with hearing disabilities."
"If [respondent] meets all the other criteria for admission in
the pursuit of her RN career, under the relevant North Carolina
statutes, N.C.Gen.Stat. §§ 9158,
et seq., it should not be
foreclosed to her simply because she may not be able to function
effectively in all the roles which registered nurses may choose for
their careers."
574 F.2d 1158, 1161 n. 6 (1978).
[
Footnote 9]
This regulation provides:
"(a)
Academic requirements. A recipient [of federal
funds] to which this subpart applies shall make such modifications
to its academic requirements as are necessary to ensure that such
requirements do not discriminate or have the effect of
discriminating, on the basis of handicap, against a qualified
handicapped applicant or student. Academic requirements that the
recipient can demonstrate are essential to the program of
instruction being pursued by such student or to any directly
related licensing requirement will not be regarded as
discriminatory within the meaning of this section. Modifications
may include changes in the length of time permitted for the
completion of degree requirements, substitution of specific courses
required for the completion of degree requirements, and adaptation
of the manner in which specific courses are conducted."
"
* * * *"
"(d)
Auxiliary aids. (1) A recipient to which this
subpart applies shall take such steps as are necessary to ensure
that no handicapped student is denied the benefits of, excluded
from participation in, or otherwise subjected to discrimination
under the education program or activity operated by the recipient
because of the absence of educational auxiliary aids for students
with impaired sensory, manual, or speaking skills."
"(2) Auxiliary aids may include taped texts, interpreters or
other effective methods of making orally delivered materials
available to students with hearing impairments, readers in
libraries for students with visual impairments, classroom equipment
adapted for use by students with manual impairments, and other
similar services and actions. Recipients need not provide
attendants, individually prescribed devices, readers for personal
use or study, or other devices or services of a personal
nature."
45 CFR § 84.44 (1978).
[
Footnote 10]
Section 115(a) of the Rehabilitation, Comprehensive Services,
and Developmental Disabilities Amendments of 1978 added to the 1973
Act a section authorizing grants to state units for the purpose of
providing
"such information and technical assistance (including support
personnel such as interpreters for the deaf) as may be necessary to
assist those entities in complying with this Act, particularly the
requirements of section 504."
92 Stat. 2971, 29 U.S.C. § 775(a) (1976 ed., Supp. III). This
provision recognizes that, on occasion, the elimination of
discrimination might involve some costs; it does not imply that the
refusal to undertake substantial changes in a program, by itself,
constitutes discrimination. Whatever effect the availability of
these funds might have on ascertaining the existence of
discrimination in some future case, no such funds were available to
Southeastern at the time respondent sought admission to its nursing
program.
[
Footnote 11]
The Government, in a brief
amicus curiae in support of
respondent, cites a Report of the Senate Committee on Labor and
Public Welfare on the 1974 amendments to the 1973 Act and several
statements by individual Members of Congress during debate on the
1978 amendments, some of which indicate a belief that § 504
requires affirmative action.
See Brief for United States
as
Amicus Curiae 44-50. But these isolated statements by
individual Members of Congress or its committees, all made after
the enactment of the statute under consideration, cannot substitute
for a clear expression of legislative intent at the time of
enactment.
Quern v. Mandley, 436 U.
S. 725,
436 U. S. 736
n. 10 (1978);
Los Angeles Dept. of Water & Power v.
Manhart, 435 U. S. 702,
435 U. S. 714
(1978). Nor do these comments, none of which represents the will of
Congress as a whole, constitute subsequent "legislation" such as
this Court might weigh in construing the meaning of an earlier
enactment.
Cf. Red Lion Broadcasting Co. v. FCC,
395 U. S. 367,
395 U. S.
380-381 (1969).
The Government also argues that various amendments to the 1973
Act contained in the Rehabilitation Act Amendments of 1978 further
reflect Congress' approval of the affirmative action obligation
created by HEW's regulations. But the amendment most directly on
point undercuts this position. In amending § 504, Congress both
extended that section's prohibition of discrimination to "any
program or activity conducted by any Executive agency or by the
United States Postal Service" and authorized administrative
regulations to implement only this amendment.
See n 2,
supra. The fact that no
other regulations were mentioned supports an inference that no
others were approved.
Finally, we note that the assertion by HEW of the authority to
promulgate any regulations under § 504 has been neither consistent
nor longstanding. For the first three years after the section was
enacted, HEW maintained the position that Congress had not intended
any regulations to be issued. It altered its stand only after
having been enjoined to do so.
See n 4,
supra. This fact substantially diminishes
the deference to be given to HEW's present interpretation of the
statute.
See General Electric Co. v. Gilbert, 429 U.
S. 125,
429 U. S. 143
(1976).
[
Footnote 12]
Respondent contends that it is unclear whether North Carolina
law requires a registered nurse to be capable of performing all
functions open to that profession in order to obtain a license to
practice, although McRee, the Executive Director of the State Board
of Nursing, had informed Southeastern that the law did so require.
See App. 138a-139a. Respondent further argues that, even
if she is not capable of meeting North Carolina's present licensing
requirements, she still might succeed in obtaining a license in
another jurisdiction.
Respondent's argument misses the point. Southeastern's program,
structured to train persons who will be able to perform all normal
roles of a registered nurse, represents a legitimate academic
policy, and is accepted by the State. In effect, it seeks to ensure
that no graduate will pose a danger to the public in any
professional role in which he or she might be cast. Even if the
licensing requirements of North Carolina or some other State are
less demanding, nothing in the Act requires an educational
institution to lower its standards.