In North Haven, the Court determined that while § 901(a) of Title IX does not expressly include employees or exclude them, its broad directive that "no person" may be discriminated against on the basis of sex, on its face, includes employees as well as students. The Court noted by way of example that a female employee who works in a federally funded program and is treated unequally is "subjected to discrimination under" that program. See 102 S. Ct. at 1917-19, 50 U.S.L.W. at 4503. We believe that, confronted with the identical language in Section 504, the Supreme Court would decide that that Section, on its face, applies to discrimination against employees, as well as other "beneficiaries" of the federally funded programs.
In North Haven, the Court undertook an analysis of the legislative history of Title IX to determine whether Congress had demonstrated an intent contrary to the broad reading required by the language of the statute on its face. We have undertaken a similar analysis of the legislative history of the Rehabilitation Act of 1973, as amended in 1978, and of Title VI of the Civil Rights Act of 1964, and conclude, as did the Court reviewing the history of the Title IX, that nothing therein leads to the conclusion that Congress meant to limit the expansive language by excluding employment discrimination from its coverage.
While we find several indications in the legislative history that employment discrimination was intended to be covered by Section 504, see 119 Cong. Rec. 24587 (remarks of Sen. Taft); 119 Cong. Rec. 22588 (remarks of Sen. Williams), the only contrary indication we find arises by implication from the 1978 Amendments to the Act. As noted previously, the "remedies, procedures, and rights" of Title VI were made available to persons aggrieved under Section 504, and one of these "procedures" prohibits agency action as to employment practices except where the primary purpose of the Federal funding is to provide employment.
A number of courts have applied this same limitation to private actions under Section 504, even though the statutory language refers only to agencies. See, Carmi v. Metropolitan St. Louis Sewer District, 620 F.2d 672 (8th Cir. 1980); Trageser v. Libbie Rehabilitation Center, Inc., 590 F.2d 87 (4th Cir. 1978). We are not persuaded by the reasoning of those courts.
The better analysis, we believe, is found in a decision of the Court of Appeals for the Third Circuit. In N.A.A.C.P. v. Medical Center, Inc. 599 F.2d 1247 (3d Cir. 1979), the court held that Title VI and Section 504 create private rights of action for plaintiffs who seek relief other than funding termination. Confronted with the argument that sections 602 and 603 of Title VI, which specified administrative procedures as to the enforcement of Section 601, implicitly denied a private cause of action, the court reviewed the history of those sections. Those provisions were enacted, the court determined, because "there was widespread discomfort with the prospect of arbitrary and capricious determinations emanating from Washington, especially if those orders could be backed by the threat of funding termination." 599 F.2d at 1254. "Congress was concerned with limiting the power of federal agencies to bring about compliance with Section 601, not with limiting private rights under Section 601. That Sections 602 and 603 are limits on agencies, and not on rights, is repeatedly made clear in the legislative proceedings." Id. Because the plaintiffs in N.A.A.C.P. v. Medical Center, Inc., supra, were beneficiaries of the Federal statutes by reason of their being patients at Federally funded hospitals, the court had no occasion to consider Section 604 of Title VI. We are convinced by the foregoing analysis, however, that Section 604 was enacted as a limit on agency action and not on private action. Accordingly, we hold that a plaintiff-employee bringing a private action under Section 504 need not allege or prove that the primary purpose of the Federal funds received by defendant alleged to have discriminated against him was to provide employment.
The foregoing analysis does not end our inquiry. Section 504 provides that no person shall "be subjected to discrimination under any program or activity receiving Federal financial assistance." It is thus clear that the statute is "program specific." It is not enough to show that a person has been discriminated against by a recipient of Federal funds. It must also be shown that he was subject to discrimination under the program or activity for which those funds were received.
In the present case, the Board has submitted affidavits which, they argue, show clearly that King-Smith had no involvement in any of the programs operated with Federal funds -- none of the Federal money went toward payment of her salary and none of the programs she taught were supported by Federal funds. Plaintiff has submitted her own affidavit which indicates that she was called upon to do substitute teaching in programs supported with Federal money. More generally, she argues in her brief that "there is little, if any, delineation of federally and non-federally funded aspects within the system." The thrust of this argument is that the Federal financial assistance received by the Board is so substantial, that it pervades the operation of the school system to such a degree, that the entire operation of the school system may be treated as a "program" for purposes of Section 504. This rationale has implicitly been accepted in several cases from other districts within this circuit. See, Haffer v. Temple University of Com. System, 524 F. Supp. 531 (E.D. Pa. 1981); Wright v. Columbia University, 520 F. Supp. 789 (E.D. Pa. 1981); Poole v. South Plainfield Board of Education, 490 F. Supp. 948 (D. N.J. 1980). Perhaps the Board here has the ability to channel the Federal money it receives to programs where discrimination is not a problem, thereby "freeing" other funds to be used in programs where it could choose to discriminate, circumventing the mandate of Section 504. Alternatively, the Federal funds may be earmarked for specific uses so that the Board has no freedom with regard to allocating these funds. Perhaps personnel employed by the Board are regularly called upon to perform "cross-over" functions, such that although programs might be clearly delineated as being Federally funded, the personnel carrying out those programs are derived at random from the general personnel of the school system. Alternatively, the employees hired by the Board may be assigned to one and only one function. On the present record, we are unable to determine these facts. Even if we were able to determine with certainty the operation of the school system, the affidavits on file would still raise the issue whether this plaintiff was, at any point of her employment, an employee working in a program supported by Federal funds. Consequently, the Section 504 claim may not be decided by summary judgment. The defendants' motion for partial summary judgment will be denied.
An order follows.
AND NOW, this 31 day of Aug, 1982, for the foregoing reasons, the defendants' Motion for Partial Summary Judgment is denied.