Appeal from the United States District Court for the Northern District of Illinois, Eastern Division No. 75C 1834 - Joel M. Flaum, Judge.
Cummings and Tone, Circuit Judges, and Grant, Senior District Judge.*fn*
This class action was filed under the Civil Rights Act of 1871 (42 U.S.C. § 1983),*fn1 the Rehabilitation Act of 1973 (29 U.S.C. §§ 701 et seq.), the Architectural Barriers Act of 1968 (42 U.S.C. §§ 4151 and 4152), and unspecified regulations promulgated under the statutes.*fn2 Plaintiffs also relied on various sections of the Constitution but now rest their constitutional argument only on the Equal Protection Clause of the Fourteenth Amendment.
The named plaintiffs are George A. Lloyd, a quadriplegic who has been confined to a wheelchair since 1953, and Janet B. Wolfe, who is "mobility-disabled" because of a chronic pulmonary dysfunction. They sued on behalf of a class of all mobility-disabled persons in the northeastern region of Illinois. The two defendants are the Regional Transportation Authority (RTA),*fn3 which provides public transportation and assists in the public mass transportation system in that region, and the Chicago Transit Authority (CTA),*fn4 which operates a mass transportation system in the Chicago metropolitan area. The complaint alleges that the suing class is unable to use defendants' public transportation system because of physical disabilities. Plaintiffs aver on information and belief that defendants are in the process of planning for the purchase of new transportation equipment utilizing federal funds*fn5 and that, unless defendants are compelled to take affirmative action, the transportation system will continue to be inaccessible to the mobility-disabled.
The complaint sets out four causes of action. First, plaintiffs assert that defendants have violated Section 16 of the Urban Mass Transportation Act of 1964 (49 U.S.C. § 1612) because they have not met the transportation needs of handicapped persons. Secondly, plaintiffs charge that defendants have violated Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794) because, by reason of their handicaps, plaintiffs have been denied the meaningful usage of defendants' federally financed mass transportation facilities. Thirdly, plaintiffs claim that defendants have not complied with Sections 1 and 2 of the Architectural Barriers Act of 1968 (42 U.S.C. §§ 4151 and 4152) because they have not designed vehicular facilities permitting ready access to physically handicapped persons. Finally, defendants' denial of public transportation system access to plaintiffs and their class is said to violate the Fourteenth Amendment's Equal Protection Clause.
The plaintiffs sought a preliminary injunction to prevent the defendants from designing or placing into operation any new federally funded facilities unless the facilities were accessible to all mobility-disabled persons. Plaintiffs also prayed for a mandatory injunction compelling the defendants to make the existing transportation system accessible to the mobility-disabled.
The district court filed a memorandum opinion granting the defendants' motions to dismiss on the ground that the three statutes in question do not confer a private right of action. The opinion stated that the only substantial constitutional claim of plaintiffs was founded on the Equal Protection Clause but that it was inapplicable because
"[defendants] have not created any inequalities of treatment. They are not alleged to be providing handicapped persons with any lesser facilities than other persons."*fn6
SECTION 504 CONFERS AFFIRMATIVE RIGHTS
Plaintiffs and two amici curiae*fn7 rely on Section 504 of the Rehabilitation Act of 1973 as giving plaintiffs the right to file a private action to enforce compliance with the statutes relied upon in the complaint and the recent regulations of the Urban Mass Transportation Administration.*fn8 Section 504 provides:
"No otherwise qualified handicapped individual in the United States, as defined in section 7(6), 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).
This provision closely tracks*fn9 Section 601 of the Civil Rights Act of 1964,*fn10 which was construed in Lau v. Nichols, 414 U.S. 563, 39 L. Ed. 2d 1, 94 S. Ct. 786. There a unanimous Supreme Court held that Section 601 provided a private cause of action. See also Bossier Parish School Board v. Lemon, 370 F.2d 847, 852 (5th Cir. 1969), certiorari denied, 388 U.S. 911, 18 L. Ed. 2d 1350, 87 S. Ct. 2116. While adverting to regulations and guidelines issued by the Department of Health, Education and Welfare (HEW) pursuant to Section 602 of the Act*fn11 and the respondent school district's contractual agreement to comply with Title VI of the Civil Rights Act of 1964 and the regulations thereunder,*fn12 Justice Douglas (speaking for himself and Justices Brennan, Marshall, Powell and Rehnquist) stated, in reversing the court of appeals, that "[we] do not reach the Equal Protection Clause argument which has been advanced but rely solely on § 601." 414 U.S. at 566. The concurring opinion of Justice Stewart (with whom the Chief Justice and Justice Blackmun joined) relied on Section 601 and the HEW regulations and guidelines and mentioned that plaintiffs there could concededly sue as third-party beneficiaries of said contract. Finally, Justice Blackmun (with whom the Chief Justice joined) stated that because the plaintiff class involved 2800 school children, he concurred in the holding that the San Francisco School District could not continue to teach students in English without teaching English to Chinese-speaking children or giving their classes in the Chinese language.*fn13 Because of the near identity of language in Section 504 of the Rehabilitation Act of 1973 and Section 601 of the Civil Rights Act of 1964, Lau is dispositive. Therefore, we hold that Section 504 of the Rehabilitation Act, at least when considered with the regulations which now implement it, establishes affirmative rights and permits this action to proceed.*fn14
Judge Flaum held that Lau was not controlling because this case was devoid of analogs to the HEW guidelines there involved. In the district court's view, the "obligation to provide special programs did not flow from the cited statutory language [Section 601 of the Civil Rights Act of 1964], but rather from Health, Education and Welfare guidelines which were enacted pursuant to the additional statutory section, § 2000d-1 [Section 602 of the Civil Rights Act of 1964]." Even though the opinion of the Court in Lau can be read as authority for allowing this action to proceed under Section 504 of the Rehabilitation Act alone, developments subsequent to the district court's opinion have provided a virtual one-to-one correspondence between the conceptual props supporting the concurring opinions in Lau and the elements of the instant case.
Here the conceptual analog of Section 602 of the Civil Rights Act of 1964 came into being on April 28, 1976, in the form of Executive Order 11914, 41 F.R. 17871 (April 29, 1976). The Executive Order authorizes HEW and other federal agencies dispensing financial assistance to adopt rules, regulations and orders to ensure that recipients of federal aid are in compliance with Section 504. If compliance cannot be secured voluntarily, it may be compelled by suspension or termination of federal assistance after a hearing or by "other appropriate means authorized by law." HEW is given the responsibility of establishing standards for who are "handicapped individuals" and for determining what are "discriminatory practices" as well as coordinating the implementation of Section 504 by all federal agencies. While the Rehabilitation Act itself contains no express directive to issue regulations,*fn15 the 1974 Amendments to the Act generated a legislative history which indicates that Congress contemplated speedy implementation of Section 504 through regulations. See S. Rep. No. 93-1139, 93d Cong., 2d Sess. 24-25 (1974); H.R. Rep. No. 32-1457, 93d Cong., 2d Sess. 27-28 (1974); S. Rep. No. 32-1297, 93d Cong., 2d Sess. 39-40 (1974). "In review of the foregoing, [it can be concluded] that the [HEW] Secretary is required to promulgate regulations effectuating § 504." Cherry v. Mathews, 419 F. Supp. 922 (D. D.C., 1976).*fn16
Forty days after the district court's opinion was issued, the Urban Mass Transportation Administrator promulgated final regulations, in part under the authority of Section 504. These regulations and various accompanying guidelines are squarely couched in ...