the facts indicate that blind persons can be successful teachers.
32. The School District can reasonably and legitimately consider an applicant's blindness in evaluating his or her qualifications for a teaching position. Dr. Huntington's testimony indicated that blind persons could be successful teachers, but that special arrangements were necessary in some areas. For example, blind teachers usually were not assigned to lunchroom or playground supervision, and special arrangements sometimes had to be made for administering tests or keeping records. The special problems encountered by blind teachers and the kinds of adjustments in normal school procedures that may be necessary are relevant to a school district's evaluation of a blind applicant for a teaching position.
In Ms. Gurmankin's case, however, the interviewers frequently did not give her an opportunity to explain how she might overcome her handicap, nor did the interviewers have sufficient background information to properly evaluate the prospects of a blind applicant for a teaching position.
33. In January of 1975, the school district offered Ms. Gurmankin two teaching positions because her name was reached on the teachers' eligibility list. Ms. Gurmankin could not qualify for one of the positions because it was for a combination music and English teacher, and she did not know music well enough. The second offer was for the Catto School. The Catto School is a remedial disciplinary school for boys. Ms. Gurmankin testified that the person who made these offers advised her against accepting a position at the Catto School, and that a guidance counselor at the school also discouraged her. Ms. Gurmankin declined both offers.
34. In July of 1975, shortly before the trial of this case, 12 or 13 additional schools were offered to Ms. Gurmankin. These were all junior high schools. Ms. Gurmankin refused to accept these offers, apparently because she contended in this suit that she was entitled to five or six years seniority and should be able to get a more desirable assignment.
35. Even if Ms. Gurmankin had five years seniority, she would not necessarily be assigned to the school of her choice. The more desirable schools in the Northeast, District 8, have lower turnover rates and longer waiting lists for transfers than other Philadelphia schools. Moreover, a teacher's opportunities to transfer are also limited by the requirements that the school district maintain racial balances in teaching staffs. Ms. Gurmankin probably would not be able to transfer to a school in District 8 at this time even if she had five years seniority.
36. The educational activities and programs of the School District of Philadelphia receive substantial amounts of federal assistance.
CONCLUSIONS OF LAW
1. This Court has jurisdiction over the plaintiff's claims by virtue of 42 U.S.C. § 1983, 28 U.S.C. § 1343(3) and (4), and 28 U.S.C. § 1331(a).
2. The Philadelphia School District's refusal to consider blind persons to be teachers of sighted students in Philadelphia public schools violated Ms. Gurmankin's due process rights under the Fourteenth Amendment. See Cleveland Board of Education v. LaFleur, 414 U.S. 632, 39 L. Ed. 2d 52, 94 S. Ct. 791 (1974); Vlandis v. Kline, 412 U.S. 441, 37 L. Ed. 2d 63, 93 S. Ct. 2230 (1973); Hoffman v. Ohio Youth Commission, C 71-263 (N.D. Ohio, March 25, 1975) (unreported decision) (dictum).
3. The appropriate remedy for the defendants' infringement of Ms. Gurmankin's constitutional rights is that she be offered employment as a secondary school English teacher, with full seniority and other rights as though she had commenced employment in September, 1970.
4. The Court need not resolve the plaintiff's other claims of discrimination, since further relief would not be necessary even if discrimination were found.
5. The Court will reserve decision on the plaintiff's claims for back pay and counsel fees.
The plaintiff brought this action on due process, equal protection and statutory grounds. I first will consider federal statutory law to determine if the issues raised by this case can be resolved without reaching constitutional questions. The plaintiff relies on Section 504 of the Rehabilitation Act of 1973:
"No otherwise qualified handicapped individual in the United States, as defined in section 706(6) 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." 29 U.S.C. § 794
While I have been unable to find any reported decisions construing section 504 of the Rehabilitation Act of 1973, it seems reasonably clear that a refusal to hire a blind person as a teacher is the kind of discrimination which that section was meant to prohibit. A blind person certainly is a "handicapped individual" as defined in the Act,
and the educational activities conducted by the School District of Philadelphia do receive financial assistance from the federal government. One of the specific purposes of the Rehabilitation Act was to "promote and expand employment opportunities in the public and private sectors for handicapped individuals and to place such individuals in employment." 29 U.S.C. § 701(8).
Nevertheless, the Rehabilitation Act of 1973 is not dispositive of the plaintiff's claims in this case. Although the Act became effective in December of 1973, see 29 U.S.C. § 790, Ms. Gurmankin had been seeking a teaching position since 1969 or earlier. Consequently, many of her claims are based on actions by the school district which took place prior to December, 1973. In fact, the school district discontinued its policy of refusing to allow blind persons to take the teacher's examination shortly after the Rehabilitation Act took effect, when Ms. Gurmankin was given an examination in early 1974. Thus, Ms. Gurmankin's claim that the school district's prior policy violated her rights cannot be resolved without considering her constitutional arguments.
In attempting to analyze the plaintiff's due process and equal protection claims, I once again have the uncomfortable feeling that I am playing a shell game without being sure there is a pea.
This uncomfortable feeling is enhanced by the complete absence of any reported cases adjudicating on the merits the constitutional rights of the blind.
The plaintiff primarily relies on Cleveland Board of Education v. LaFleur, 414 U.S. 632, 94 S. Ct. 791, 39 L. Ed. 2d 52 (1974), to challenge the school district's policy of completely excluding blind persons from teaching sighted students. In LaFleur the plaintiffs were challenging a mandatory maternity leave policy under which a pregnant teacher in the Cleveland, Ohio public schools was required to take maternity leave without pay beginning five months before the expected birth of her child. To justify these mandatory maternity leave rules, the school boards asserted that rigid rules were necessary to maintain continuity of instruction, to protect the health of the teacher and the unborn child, and to assure that students have a physically capable instructor in the classroom at all times. The Court concluded that the mandatory maternity leave policy had no rational relationship to the valid state interest of preserving continuity of instruction, and that even though the leave policy did insulate the classroom from the presence of physically unfit teachers, a legitimate state interest, the leave policy violated the due process clause of the Fourteenth Amendment. The Court viewed the maternity leave rules as establishing an irrebuttable presumption of physical incompetency, even though many teachers would be able to continue working beyond the arbitrary cutoff dates. Citing Vlandis v. Kline, 412 U.S. 441, 37 L. Ed. 2d 63, 93 S. Ct. 2230 (1973) and Stanley v. Illinois, 405 U.S. 645, 31 L. Ed. 2d 551, 92 S. Ct. 1208 (1971), the Court held that such an irrebuttable presumption was a violation of due process of law. The sweeping mandatory leave policies unduly penalized female teachers for deciding to bear a child, so that the school boards should have employed alternative methods, such as medical examinations, for keeping physically unfit teachers out of the classroom.
The irrebuttable presumption analysis of LaFleur is also applicable in the instant case. The school board's policy of totally excluding blind persons as teachers of sighted students created an irrebuttable presumption that blind persons could not be competent teachers. However, since the evidence in this case indicates that some blind persons can be successful teachers, the school district's presumption is unconstitutionally broad. Thus, even though the school district's apparent goal of insuring that only competent teachers are hired is proper and legitimate, the refusal of the school district to even consider blind persons for teaching positions cannot be justified.
If LaFleur were the latest case from the Supreme Court on irrebuttable presumption analysis, the school district's exclusion of blind teachers could be invalidated rather easily. However, the Court recently has limited the use of irrebuttable presumptions as a means of challenging classifications. See Weinberger v. Salfi, 422 U.S. 749, 45 L. Ed. 2d 522, 95 S. Ct. 2457 (1975). Salfi involved a challenge to Social Security regulations under which surviving wives and stepchildren are denied benefits if their respective relationships did not last at least nine months before the wage earner's death.
Despite the fact that the challenged regulation seems to create a conclusive presumption that relationships that do not endure at least nine months are not legitimate, the Court refused to apply the doctrine of irrebuttable presumptions. Rather, the Court used more traditional equal protection analysis, and relied on a number of cases which had dealt with social welfare legislation.
On this basis, the Court upheld the regulations as reasonably related to a legitimate legislative purpose.
In Salfi, Justice Rehnquist distinguished LaFleur and other irrebuttable presumption cases on the basis of the interests that were being protected in those cases. Rights to conceive and to raise children enjoy constitutionally protected status, in sharp contrast to a noncontractual claim to receive funds from the public treasury, as asserted in Salfi. Where the interest asserted is only claims for disability payments, Congress could rationally conclude that the expense and difficulty of individual determinations justified a broad prophylactic rule.
Confronted with these two seemingly inconsistent opinions, I believe that LaFleur is the more appropriate precedent. Ms. Gurmankin's interest in public employment, though it may not be a "fundamental right,"
is certainly more important than the "right" to receive social security benefits in Salfi. In addition, Ms. Gurmankin's blindness permanently sets her apart from other people in a way that may cause her to be treated differently from other people in every activity she attempts to engage in. This is a far different kind of classification than was involved in Salfi, and it is one that demands a greater degree of constitutional protection. The persons alleging discrimination in Salfi had had relationships with a deceased wage earner that had not lasted at least nine months. Although such persons are denied disability benefits because they are classified in a particular way by the social security regulations, presumably they are not subjected to other disadvantages because they are so classified. Thus, the classification at issue in Salfi is artificial and is one that perhaps may be more appropriately evaluated on traditional equal protection grounds. On the other hand, the blind, like pregnant school teachers, are an objectively defined group that should not be subjected to inaccurate and irrebuttable presumptions of incompetence.
Most importantly, the decision in Salfi to a great extent was based on the administrative difficulty and expense of having individual determinations of the genuineness of marital relationships. As the Court stated,
"Large numbers of people are eligible for these programs and are potentially subject to inquiry as to the validity of their relationships to wage earners. These people include not only the classes which appellees represent, but also claimants in other programs for which the Social Security Act imposes duration-of-relationship requirements. Not only does the prophylactic approach thus obviate the necessity of large numbers of individualized determinations, but it also protects large numbers of claimants who satisfy the rule from the uncertainties and delays of administrative inquiry into the circumstances of their marriages. Nor is it at all clear that individual determinations could effectively filter out sham arrangements. . . . 422 U.S. 749, 781-2, 95 S. Ct. 2457, 45 L. Ed. 2d at 548-49. (footnotes omitted).
The Court concluded that Congress rationally could determine that generalized rules were appropriate and that "the difficulties of individual determinations outweigh the marginal increments in the precise effectuation of congressional concern" which individual consideration might be expected to produce. Weinberger v. Salfi, 422 U.S. 749, 45 L. Ed. 2d 522, 550, 95 S. Ct. 2457 (1975).
The administrative concerns cited by the Court in Salfi simply are not present in the instant case. Requiring the school district to give blind applicants for teaching positions an opportunity to demonstrate their competence through the teacher's examination and an oral interview would not lead to a great many such "hearings," since relatively few blind persons are likely to apply.
In fact, "hearings" in the form of written examinations and personal interviews apparently have been routinely given to all applicants except the blind. Similarly, there is nothing in the evidence to indicate that the potential ability of blind applicants as teachers could not be evaluated through the written examination and oral interview, in the same manner that sighted applicants are considered.
Given Ms. Gurmankin's interest in obtaining employment and the insignificance of the burdens that would be placed on the school district if it allowed blind persons an opportunity to demonstrate their competence, I find that the Philadelphia School District's policy of refusing to consider blind persons to be teachers for sighted students created an irrebuttable presumption in violation of the plaintiff's due process rights. In utilizing the irrebuttable presumption analysis of LaFleur, I am not unmindful of Justice Rehnquist's warning that this doctrine could become "a virtual engine of destruction for countless legislative judgments which have heretofore been thought wholly consistent with the Fifth and Fourteenth Amendments to the Constitution." Weinberger v. Salfi, 422 U.S. 749, 45 L. Ed. 2d 522, 543, 95 S. Ct. 2457 (1975). However, the importance of the plaintiff's interest and the ease with which a hearing can be provided distinguish this case from most other challenges to legislative classifications, and make this an appropriate case for applying irrebuttable presumption analysis.
In addition to challenging the school district's policy of completely excluding blind teachers for sighted students before 1974, Ms. Gurmankin also has alleged that the oral interview that she did have in 1974 was evaluated in a discriminatory manner. I need not reach this issue, however, since Ms. Gurmankin was given a passing score on the examination and eventually was offered employment based on her score. The harm she has suffered primarily was caused by the school district's refusal to even consider her application before 1974.
Nevertheless, because a large part of counsel's energies and the testimony at trial concerned Ms. Gurmankin's oral interview, I have made findings of fact on that issue, and some discussion is warranted. Merely requiring that blind persons be considered for teaching positions will be a meaningless gesture if such applicants are not evaluated fairly. In this case I have found that Ms. Gurmankin's interview was not graded fairly, mainly because of the interviewers' lack of information concerning the capabilities of blind teachers and the kinds of adjustments that a blind teacher can make to overcome apparent problems. Similarly, the school district discriminated against Ms. Gurmankin by refusing to give her student teaching "score points," after she had been excluded from student teaching sighted students in Philadelphia public schools because of her blindness. Although I am unable to predict what score Ms. Gurmankin would have received if she had been evaluated properly, it is clear that due process requirements will not be met if test results are based on misconceptions and stereotypes about the blind, as was true in this case.
A strong argument also can be made that the school district's testing procedures violated section 504 of the Rehabilitation Act of 1973, which has been discussed previously. See 29 U.S.C. § 794. Although that section protects only "otherwise qualified" handicapped individuals, whether Ms. Gurmankin meets that requirement clearly requires a nondiscriminatory evaluation of her competency. In this regard the special problems encountered by blind teachers certainly must be considered, but the fact that several hundred blind persons are successful teachers indicates that Ms. Gurmankin's blindness does not automatically prevent her from being "otherwise qualified."
The final point for discussion is what relief is appropriate. I have found that the school district's policy of totally excluding blind persons as teachers of sighted students violated the plaintiff's constitutional rights. The evidence in this case indicates that Ms. Gurmankin inquired about employment opportunities in 1969, but was summarily rejected because of her blindness. After she was finally considered in the spring of 1974, the school district offered her employment in January, 1975 (two unsatisfactory schools) and July, 1975. In light of the great number of secondary school English teachers hired by the School District of Philadelphia since 1969, it is reasonable to assume that if Ms. Gurmankin had been allowed to take the teacher's examination in 1969, she would have been offered suitable employment by September of 1970. Consequently, Ms. Gurmankin should be offered employment with seniority rights and all other benefits accruing to a secondary school English teacher who commenced employment in September, 1970.
The plaintiff also has requested back pay and a reasonable attorney's fee. The parties have not briefed these matters, and consequently I will reserve decision at this time.
Clarence C. Newcomer, J.
AND NOW, to wit, this 31st day of March, 1976, in accordance with the foregoing Findings of Fact and Conclusions of Law, judgment is hereby entered in favor of the plaintiff, together with costs, and defendants are ordered to offer employment to Ms. Gurmankin as a secondary school English teacher, with seniority rights and all other rights accruing to a secondary school English teacher commencing employment in September, 1970. Specifically, the plaintiff is to have the same rights under the School District's teacher transfer policy as a teacher who commenced employment in September, 1970.
Both parties are requested to submit briefs to this Court within forty-five (45) days concerning the remaining class aspects of this litigation, and the appropriateness of awarding back pay and a reasonable attorney's fee to the plaintiff.
AND IT IS SO ORDERED.
Clarence C. Newcomer, J.