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August 7, 1981


The opinion of the court was delivered by: TROUTMAN

The plaintiff in this case, John Wright, sighted since infancy in his left eye only, challenges the refusal of defendant Columbia University, hereinafter referred to as Columbia, to provide him with the opportunity to participate in its intercollegiate football program as a deprivation of rights secured by Section 504 of the Rehabilitation Act of 1973, 29 U.S.C., Section 701 et seq., hereinafter referred to as the Rehabilitation Act.

 Moving for a temporary restraining order preventing Columbia from discriminating against him on the basis of his handicap, plaintiff argues that, notwithstanding his lack of vision in one eye, he was an outstanding high school running back; that, given the opportunity, he is capable of playing on Columbia's team; that, aside from his handicap, he is "otherwise qualified" to participate in the program; and that his coaches concur with this assessment. Finally, plaintiff and his parents are apparently willing to release Columbia from any potential liability which it might incur by virtue of his participation in the football program.

 Specifically, plaintiff contends that Columbia, a recipient of federal funds, violated Section 504 of the Rehabilitation Act, which provides that

No otherwise qualified handicapped individual ... as defined in Section 706(7) of this title, shall, solely by reason of his handicap, be excluded from participation in, be denied benefits of, or be subject to discrimination under any program or activity receiving federal financial assistance.

 The parties do not dispute the fact that plaintiff is handicapped within the meaning of Section 706(7) and the regulations promulgated thereunder.

 Columbia argues, however, that its intercollegiate sports, physical education and athletic programs receive neither federal grants nor any federal financial assistance directly and that, consequently, the football program falls outside the coverage of the Rehabilitation Act, which proscribes discrimination by "any program or activity" receiving federal funds. That is, although the University as an institution receives federal funds, the discrete entity of the football team itself does not. Therefore, Columbia argues that plaintiff's claim must fail.

 Recognizing that Section 504 contains no legislative history, Columbia urges not only an examination of the legislative history and case law of analogous federal statutes, namely, Title IX of the Education Amendments of 1972, 20 U.S.C., Section 1681 et seq. and Title VI of the Civil Rights Act of 1964, 42 U.S.C., Section 2000d et seq., but also a construction thereof in a manner parallel to Section 504. In summary, Columbia asseverates that those statutory antidiscrimination provisions apply only to the specific entity or program receiving federal funds rather than the institution of which that entity is a part and that, as such, plaintiff's claim must fail. See Othen v. Ann Arbor School Board, 507 F. Supp. 1376 (E.D.Mich.1981).

 True, some relationship exists among and between Title VI, Title IX and Section 504. However, Columbia's contention that such a kinship compels the conclusion that analysis under Title VI and Title IX must be adopted whole cloth and applied to Section 504 forces the kinship to an unwarranted degree of consanguinity.

 Additionally, defendant's proffered statutory construction ignores the regulations promulgated under the Rehabilitation Act, which defines the "recipient" of federal funds, for Section 504 purposes, as

... any public or private agency, institution, organization, or other entity, or any person to which federal financial assistance is extended directly or through another recipient.

 45 C.F.R. 84.3(f). This regulation specifically contradicts defendant's asserted narrow construction. Importantly, a recent court decision has done so as well. Poole v. South Plainfield Board of Education, 490 F. Supp. 948 at 950 and 51 (D.N.J.1980). True, as contended by Columbia, the Poole Court was not aware of the cases called to our attention today by the defendant. That does not prove that the Poole Court, given such cases, would have adopted the analogy urged by the defendant. Importantly, also see 45 C.F.R. 84.17(a)(1).

 To the extent that the University receives federal funding, component entities thereof benefit indirectly through the reallocation of funds received from other sources. Moreover, to accept defendant's argument would allow major institutions receiving substantial amounts of federal aid to dissect themselves, at whim, into discrete entities, to allocate federal dollars into programs which cannot discriminate against handicapped persons, and to free privately obtained funds from those programs and instead to channel such money into programs purportedly immune from Section 504 strictures. Columbia's construction of Section 504 would sanction this circumvention of federal policy against discrimination for institutions benefiting from federal aid.

 Finally, Columbia has consistently viewed itself as a singular institution rather than as a composite of discrete entities. Columbia's surgeon, Dr. Schetlin, wrote to the director of athletics that plaintiff should not be allowed to play intercollegiate football and that he, the doctor, had reached this conclusion after consultation with plaintiff and discussions which extended over a four-month period with the Columbia's legal counsel as well as senior officers in both the athletic program and the University itself. When plaintiff challenged Dr. Schetlin's conclusion, Columbia's general counsel informed him that the University supported the doctor's decision and that this judgment was final. Clearly, Columbia has consistently represented to plaintiff that the University as a whole, not the limited entity of the athletic program, was the official decisionmaker. Therefore, even accepting Columbia's argument that Section 504 does not apply to the football team as a discrete entity which does not receive ...

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