be "excessive" under the guidelines set forth in Davis.
I conclude that accommodating plaintiffs to enable them to perform the essential functions of their position is consistent with the mandates of section 504 and with the administrative regulations and case law interpreting it. I am not unmindful of the very real budgetary constraints under which the DPW and PCBA operate, and recognize that accommodation of these plaintiffs will impose some further dollar burden upon an already overtaxed system of delivery of welfare benefits. But the additional dollar burden is a minute fraction of the DPW/PCBA personnel budgets. Moreover, in enacting section 504, Congress recognized that failure to accommodate handicapped individuals also imposes real costs upon American society and the American economy. But for the fortuitous availability of supplemental benefits from the federal government -- benefits which heretofore have enabled plaintiffs to hire and pay readers on their own -- these plaintiffs, despite their education, experience and commitment, would have been barred by their handicap from the position of IMW, where they now serve as examples of how handicaps can be overcome. When one considers the social costs which would flow from the exclusion of persons such as plaintiffs from the pursuit of their profession, the cost of accommodation -- a cost which seems likely to diminish, as technology advances and proliferates -- seems, by comparison, quite small.
The decision to grant injunctive relief raises the question whether plaintiffs are also entitled to damages for past reader expenditures. That question has two sub-parts. Does section 504 create a private cause of action for damages? If so, is the recovery of damages against an agency of the state nevertheless barred by the Eleventh Amendment to the United States Constitution?
A. Damages under Section 504
The touchstone of deciding whether a statute creates a private right of action is legislative intent. Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 15-16, 100 S. Ct. 242, 245, 62 L. Ed. 2d 146 (1979). With near unanimity, the courts have inferred from the legislative scheme Congress's intent to create a private right of action under section 504. Unfortunately, there is no legislative history instructive on the extent of the remedy Congress intended to make available to a private plaintiff in a section 504 action. In the absence of legislative guidance, the courts have split on the issue of whether the remedy is limited to injunctive relief or also includes a right to collect damages.
The courts holding that no damage remedy for violations of section 504 was intended by Congress view the legislative plan as relying primarily on governmental enforcement of the rights of the handicapped, with the ultimate remedy of cutting off federal funds to recipients engaging in discrimination. Further, it is argued that implying a damage remedy which could reach massive proportions might discourage the acceptance of federal funds, working against the goal of expanded workplace opportunities for the handicapped. Ruth Anne M. v. Alvin Independent School District, 532 F. Supp. 460, 473 (S.D.Tex.1982); Boxall v. Sequoia Union High School, 464 F. Supp. 1104 (N.D.Cal.1979).
Cases deciding that private plaintiffs may collect damages reason that the availability of a damage remedy increases the deterrent effect of the non-discrimination law. The opinions also rely on the seminal case of Bell v. Hood, 327 U.S. 678, 66 S. Ct. 773, 90 L. Ed. 939 (1946), for the proposition that where a federal right has been invaded, the courts are normally empowered to use any available remedy to make good the wrong done. Id. at 684, 66 S. Ct. at 776. Assuming Congressional awareness of this principle, these cases interpret the lack of legislative discussion as tacit acceptance of the presumption "that a wrong must find a remedy." Miener v. Missouri, 673 F.2d 969, 978 (8th Cir.), cert. denied, 459 U.S. 909, 103 S. Ct. 215, 74 L. Ed. 2d 171 (1982); Hutchings v. Erie Library Bd. of Directors, 516 F. Supp. 1265, 1268-69 (W.D.Pa.1981); Patton v. Dumpson, 498 F. Supp. 933, 939 (S.D.N.Y.1980); Poole v. South Plainfield Bd. of Ed., 490 F. Supp. 948 (D.N.J.1980).
I am persuaded by the perception of the legislative scheme and the reasoning put forward in the second group of cases. The Supreme Court has stated that "the existence of a statutory right implies the existence of all necessary and appropriate remedies." Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 239, 90 S. Ct. 400, 405, 24 L. Ed. 2d 386 (1969). Congress certainly has the power to limit remedies if it so chooses. In the absence of any indication that Congress intended to exercise that power to create a limited remedial scheme for section 504, it is a fair canon of statutory interpretation to indulge the presumption that Congress intended that the full panoply of remedies be available to the private plaintiff under section 504.
B. The Eleventh Amendment
Mere presumptions and canons of statutory construction will not, however, suffice to overcome the Eleventh Amendment. That Amendment normally operates to bar the recovery of damages in an action if judgment would be collected against the state, even where, as here, the state is not named as a party. Edelman v. Jordan, 415 U.S. 651, 663, 94 S. Ct. 1347, 1355, 39 L. Ed. 2d 662 (1974) (§ 1983 does not abrogate Eleventh Amendment).
Plaintiffs do not dispute that a recovery of damages against the named defendants in reality would come from the state. Their primary argument is that Congress has acted to abrogate the Eleventh Amendment when it passed section 504.
There is no doubt that Eleventh Amendment protections may be overridden when Congress acts within its grant of plenary power under section 5 of the 14th Amendment. Hutto v. Finney, 437 U.S. 678, 98 S. Ct. 2565, 57 L. Ed. 2d 522 (1978) (Attorney's Fees Awards Act abrogates Eleventh Amendment); Fitzpatrick v. Bitzer, 427 U.S. 445, 447, 96 S. Ct. 2666, 2667, 49 L. Ed. 2d 614 (1976). (Title VII of the 1964 Civil Rights Act abrogates Eleventh Amendment). Assuming arguendo that section 5 is the source of section 504,
respect for the constitutional status of the principle of state sovereignty embodied in the Eleventh Amendment requires at least persuasive legislative history that Congress intended to abrogate the Amendment. Here, the legislative silence does not speak louder than the words of the Eleventh Amendment, and plaintiff's claim for damages must fall. Miener v. Missouri, 673 F.2d at 982.
CONCLUSIONS OF LAW
In light of the preceding findings of fact and discussion, I conclude that:
(1) This court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331, 1343;
(2) Plaintiffs are "otherwise qualified" within the meaning of section 504 of the Rehabilitation Act, 29 U.S.C. § 794;
(3) Defendants, acting in their official capacity, have discriminated against plaintiffs by refusing to provide them with half-time readers or their mechanical equivalent;
(4) Plaintiffs are barred from recovering damages by the Eleventh Amendment.
An appropriate order follows.
For the reasons recited in the accompanying Opinion, it is hereby ORDERED that:
(1) Judgment is entered for the plaintiffs and against the defendants;
(2) The parties, within thirty (30) days of the date of this Order, shall submit a form of order outlining a remedy not inconsistent with this opinion;
(3) Defendants, within ten (10) days of the date of this Order, shall declare whether they continue to oppose class certification, and, if so, submit a memorandum explaining why class certification should not be ordered. A responsive memorandum, if necessary, shall be filed within ten (10) days thereafter, and argument, if necessary, shall follow promptly.