Braille Monitor                                                                 February 1985


Looking at the Law: Can Students at the School for the Blind Sue the State?

by James Gashel

The United States Court of Appeals for the Ninth Circuit recently let stand a lower court ruling in the case of Students of California School for the Blind v. Honig, 736 F.2d 538 (9th Cir. 1984). The dispute arose when California State Education officials decided to move the School for the Blind from Berkeley to Fremont. Although the school was in fact moved, the District Court required the state to close the school if it did not conduct tests to determine the seismic safety of the Fremont site. This ruling was based on expert testimony that the new location was placed on or near a fault, raising the hazard of earthquake damage and a threat to students.

Reports are that California is conducting the seismic tests. Nonetheless, the state also pursued a challenge to the District Court's ruling because of its legal significance. But the state lost. The loss may not have any immediate practical effect on the students at the California School for the Blind. But the decision will have important implications on the legal protection afforded by the Education for All Handicapped Children Act (Public Law 94-142) and Section 504 of the Rehabilitation Act of 1973, as amended.

For one thing, state officials argued that the Eleventh Amendment to the United States Constitution (sovereign immunity) protected them from suit in federal court by the students of the School for the Blind. But the court held that the Eleventh Amendment bar does not apply in this case since the students were seeking to enforce their rights under federal law, specifically Public Law 94-142 and Section 504. In reaching this conclusion, the Ninth Circuit relied on two prior rulings of that circuit and reasoned that the state had waived its Eleventh Amendment immunity by participating in federally-funded and regulated programs. The Court concluded, as in the other eases, that in this instance Congress authorized private suits against a class of defendants that included states. By accepting federal funds, the state had entered into activities regulated by federal law.

Public Law 94-142
And Seismic Safety

Having struck down the state's sovereign immunity claim, the Ninth Circuit Court proceeded to rule that failure to conduct seismic tests at the site of the new California School for the Blind violated California's obligation to provide a free appropriate educational opportunity for handicapped children under Public Law 94-142. In this connection, the court noted that although Public Law 94-142 does not contain a specific standard relating to seismic safety, California law does have such a requirement. Therefore, violating the California statute would be a failure to provide an appropriate educational opportunity. It would also violate requirements of Public Law 94-142 requiring attention to matters of safety in educational programs for handicapped children. So the failure to conduct seismic tests would violate both state and federal law the court said.

Section 504 And Seismic Safety

The Ninth Circuit also held that the students had argued successfully for protection by Section 504. The students pointed out that Section 504 not only guarantees participation in and access to programs but also prohibits discrimination. Since the state's new school for the blind was arguably less safe than other schools, the students claimed that the state had violated the antidiscrimination provision of Section 504. The Court agreed, holding that facilities of the School for the Blind should be comparable to facilities for other students in the state, including that they must be as safe. The court said "because Section 504 forbids discrimination in federally funded programs, a regulation requiring comparable facilities seems to be a logical and valid interpretation of that statute."

Taken as a whole, this ruling by the Ninth Circuit is a positive step forward in assuring that the legal right to protection against discrimination on the basis of handicap can be secured by Section 504. As a circuit court decision, it will carry a strong precedent. Who knows? Even though the school wasn't moved back to Berkeley, the students and all of us may still benefit from these latest interpretations of Section 504. At least let us hope so.