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JONES v. ILLINOIS DEPT. OF REHABILITATION SERV.

United States District Court, Northern District of Illinois, E.D


January 12, 1981

CHARLES P. JONES, PLAINTIFF,
v.
THE ILLINOIS DEPARTMENT OF REHABILITATION SERVICES AND JAMES S. JEFFERS, IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE ILLINOIS DEPARTMENT OF REHABILITATION SERVICES, AND THE ILLINOIS INSTITUTE OF TECHNOLOGY, AND DR. THOMAS L. MARTIN, JR., IN HIS OFFICIAL CAPACITY AS PRESIDENT OF THE ILLINOIS INSTITUTE OF TECHNOLOGY, DEFENDANTS.

The opinion of the court was delivered by: Flaum, District Judge:

MEMORANDUM OPINION

This matter comes before the court on cross-motions for summary judgment. For the reasons set forth below, each motion is granted in part and denied in part.

The parties have stipulated to the facts. Plaintiff is a deaf person and therefore is a handicapped individual within the meaning of section 7(7)*fn1 of the Rehabilitation Act of 1973, 29 U.S.C. § 701-794 (1976), as amended by Rehabilitation Act Amendments of 1974, Pub.L.No. 93-516, 88 Stat. 1617 (codified in scattered sections of 29 U.S.C. (1976)), Rehabilitation Act Extension of 1976, Pub.L.No. 94-230, 90 Stat. 211 (codified in scattered sections of 29 U.S.C. (1976)), Rehabilitation, Comprehensive Services, and Developmental Disabilities Amendments of 1978, Pub.L.No. 95-602, 92 Stat. 2955 (codified in scattered sections of 29 U.S.C. (Supp. 1980)) (the "Act"), and is a qualified handicapped person within the meaning of 45 C.F.R. § 84.3(k) (1979).*fn2 Defendant Illinois Department of Rehabilitation Services ("IDRS") is the agency of the state of Illinois which administers that state's vocational rehabilitation program and receives financial assistance from the Rehabilitation Services Administration*fn3 in order to carry out the state vocational rehabilitation program. Defendant James S. Jeffers ("Jeffers") is the Director of IDRS and as such is responsible for the direction and administration of IDRS. Defendant Illinois Institute of Technology ("IIT") is a not for profit corporation under the laws of the state of Illinois and is a postsecondary educational institution. IIT is a recipient of federal financial assistance and has agreed to comply with section 504 of the Act, 29 U.S.C. § 794,*fn4 and its implementing regulation, 45 C.F.R. §§ 84.41-84.47, as a condition of receiving such financial assistance. Defendant Dr. Thomas L. Martin, Jr. ("Martin"), is the President of IIT and as such is responsible for the administration of IIT.

Plaintiff, who is a student at IIT majoring in mechanical engineering, must have the services of a qualified interpreter in order to effectively participate in and benefit from his classes and to complete his academic program at IIT. IDRS has determined that plaintiff is eligible*fn5 for vocational rehabilitation services,*fn6 as those terms are used in 45 C.P.R. § 1361.1.

On August 10, 1979 Jeffers advised IIT in writing that IDRS could not legally assume the cost of interpreter services for plaintiff's classes at IIT which were to begin in the Fall of 1979. On August 27, 1979 plaintiff began his mechanical engineering classes at IIT and IIT provided a qualified sign language interpreter for plaintiff. On October 4, 1979 IIT wrote Jeffers stating that IIT would not continue to provide interpreter services to plaintiff. IDRS provided interpreter services to plaintiff from October 8, 1979 until October 26, 1979 when Jeffers finally determined that IDRS would make no further payments for interpreter services for plaintiff. On October 29, 1979 IIT resumed providing interpreter services for plaintiff and continued to do so until the end of his first semester on December 18, 1979. On December 11, 1979 IIT informed plaintiff that IIT would not provide interpreter services for plaintiff's second semester classes. Subsequently, IDRS and IIT agreed to share the cost of interpreter services for plaintiff pending determination of the cross-motions for summary judgment.

Plaintiff contends that the failure of IDRS and Jeffers to provide plaintiff with interpreter services violates section 103(a)(6) of the Act, 29 U.S.C. § 723(a)(6),*fn7 and the regulation promulgated thereunder, 45 C.F.R. § 1361.1(ee);*fn8 section 504 of the Act, 29 U.S.C. § 794,*fn9 and the regulations promulgated thereunder, 45 C.F.R. § 84.4*fn10 and 84.52;*fn11 and the equal protection clause of the fourteenth amendment to the United States Constitution.*fn12 Plaintiff contends that the failure of IIT and Martin to provide plaintiff with interpreter services violates section 504 of the Act*fn13 and the regulation promulgated thereunder, 45 C.F.R. § 84-44(d).*fn14 IIT and Martin contend that the primary obligation for provision of interpreter services to plaintiff is imposed upon IDRS, relying upon the Analysis of the Final Regulations, 45 C.F.R. pt. 84, app. A, ¶ 31.*fn15 With respect to the claim under section 103(a) of the Act, IDRS and Jeffers contend that there is no private right of action under title I of the Act, 29 U.S.C. § 720-751, that plaintiff failed to exhaust his administrative remedies, that the court lacks subject matter jurisdiction, and that claims for monetary relief against IDRS and Jeffers are barred by the eleventh amendment to the United States Constitution.*fn16 With respect to the claims under section 504 of the Act, IDRS and Jeffers contend that sections 101(a)(8), 101(a)(12), and 103(a)(3) of the Act, 29 U.S.C. § 721(a)(8), 721(a)(12)*fn17 and 723(a)(3),*fn18 prohibit IDRS from providing interpreter services to plaintiff, that IIT and Martin do not have standing, and that claims for monetary relief against IDRS and Jeffers are barred by the eleventh amendment.

The court will first address plaintiff's claim under title I of the Act. The purpose of title I is to authorize grants to assist states in meeting the current and future needs of handicapped individuals, so that such individuals may prepare for and engage in gainful employment to the extent of their capabilities. Section 100(a) of the Act, 29 U.S.C. § 720(a).*fn19 Under part A of title I each state is required to submit to the Commissioner of the Rehabilitation Services Administration (the "Commissioner") a state plan for vocational rehabilitation services for a three-year period in order to be eligible to participate in programs under title I. Section 101 of the Act, 29 U.S.C. § 721(a).*fn20 Part A of title I also specifies the contents of each state plan (section 101(a) of the Act, 29 U.S.C. § 721(a))*fn21 and requires the Commissioner to insure that the individualized written rehabilitation program for each handicapped individual developed jointly by the vocational rehabilitation counselor or coordinator and the handicapped individual meets certain enumerated requirements (section 102(a)-(b) of the Act, 29 U.S.C. § 722(a)-(b)).*fn22 Finally, part A of title I defines the scope of vocational rehabilitation services provided to individuals under title I as any goods or services necessary to render a handicapped individual employable and gives a noninclusive list of such goods or services. Section 103(a) of the Act, 29 U.S.C. § 723(a).*fn23

Any discussion of whether a private cause of action is implied under a statute must begin with the factors identified in Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2088, 45 L.Ed.2d 26 (1975):

    In determining whether a private remedy is
  implicit in a statute not expressly providing
  one, several factors are relevant. First, is the
  plaintiff "one of the class for whose
  especial benefit the statute was enacted," . . . —
  that is, does the statute create a federal right in
  favor of the plaintiff? Second, is there any
  indication of legislative intent, explicit or
  implicit, either to create such a remedy or to deny
  one? . . . Third, is it consistent with the
  underlying purposes of the legislative scheme to
  imply such a remedy for the plaintiff? . . . And
  finally, is the cause of action one traditionally
  relegated to state law, in an area basically the
  concern of the States, so that it would be
  inappropriate to infer a cause of action based
  solely on federal law?

The Supreme Court has decided that each of these factors is not entitled to equal weight and has indicated that in appropriate cases it is necessary to consider only the first two or three factors. Touche Ross & Co. v. Redington, 442 U.S. 560, 575-76, 99 S.Ct. 2479, 2489, 61 L.Ed.2d 82 (1979); Davis v. Ball Memorial Hospital Ass'n, 640 F.2d 30, at 44, (7th Cir. 1980).

The first question, whether the statute was enacted for the benefit of a special class of which plaintiff is a member, is answered by looking to the language of the statute itself. Cannon v. University of Chicago, 441 U.S. 677, 689, 99 S.Ct. 1946, 1953, 60 L.Ed.2d 560 (1979). Language in the statute which expressly identifies the class Congress intended to benefit and which confers a right directly on a class of persons that includes the plaintiff or creates a duty in favor of the plaintiff is generally the most accurate indicator of the propriety of implication of a cause of action. Id. at 690 & n. 13, 99 S.Ct. at 1954 & n. 13; Simpson v. Reynolds Metals Co., Inc., 629 F.2d 1226, 1239 (7th Cir. 1980). The purpose of title I

  is to authorize grants to assist States to meet
  the current and future needs of handicapped
  individuals, so that such individuals may prepare
  for and engage in gainful employment to the
  extent of their capabilities. Section 100 of the
  Act, 29 U.S.C. § 720.

There is thus no doubt that plaintiff is among the class for whose especial benefit this legislation was enacted. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 61, 98 S.Ct. 1670, 1678, 56 L.Ed.2d 106 (1978). While handicapped individuals are the class for whose especial benefit title I was enacted, by its terms, the language of title I does not manifestly endow any handicapped individual with a private judicial remedy. Simpson v. Reynolds Metals Co., Inc., 629 F.2d at 1239. Rather, the language permits: (1) a state, if the Commissioner has disapproved a plan because it does not fulfill the considerations specified in section 101(a) or if the Commissioner has found either that a state plan has been so changed that it no longer complies with the requirements of section 101(a) or that in the administration of the plan there is failure to comply substantially with any provision of the plan, to obtain judicial review of the Commissioner's determination in the United States Court of Appeals for the circuit in which the state is located, section 101 of the Act, 29 U.S.C. § 721;*fn24 and (2) a handicapped individual, who is not satisfied with the review by the director of the state agency designated to administer the state plan of the determination made by the rehabilitation counselor or coordinator regarding his individualized written rehabilitation program, to request the Secretary to review the decision of the director, section 102(d) of the Act, 29 U.S.C. § 722(d).*fn25 The lack of any right- or duty-creating language in title I makes implication of a private judicial remedy difficult. Id. at 1240.

The second question, whether there is any indication of legislative intent either to create such a remedy or to deny one, must be answered in the negative. There is no indication whatever in the legislative history of title I which suggests a Congressional intention to create or deny a private cause of action under title I. While the absence of anything in the legislative history that indicates an intention to confer any private right of action is hardly helpful to plaintiff, it does not automatically undermine his position. Transamerica Mortgage Advisors, Inc. (TAMA) v. Lewis, 444 U.S. 11, 18, 100 S.Ct. 242, 246, 62 L.Ed.2d 146 (1979). Here Congress has expressly provided both judicial and administrative means for enforcing compliance with title I. Where a statute expressly provides a particular remedy or remedies, a court must be chary of reading others into it. Id. at 19. "When a statute limits a thing to be done in a particular mode, it includes the negative of any other mode." Id. at 20 (quoting Botany Worsted Mills v. United States, 278 U.S. 282, 289, 49 S.Ct. 129, 132, 73 L.Ed. 379 (1929)). Furthermore, in 1978 when Congress amended the Act to expressly provide that the same remedies, procedures and rights set forth in title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d to 2000d-4, were applicable to any person aggrieved by any act or failure to act by any recipient of federal assistance or federal provider of such assistance under section 504 of the Act, section 505 of the Act, 29 U.S.C. § 794a,*fn26 it amended section 102 of the Act to provide for review of final decisions of a director by the Commissioner, 29 U.S.C. § 722(d)(2).*fn27 These amendments indicate an intention not to extend a private right of action to such cases under title I. Davis v. Ball Memorial Hospital Ass'n, slip op. at 45.

The provision of an express judicial remedy for a state which is unsatisfied with the Commissioner's determination and of an express administrative remedy for a handicapped individual who is unsatisfied with his individualized written rehabilitation program indicates that the third question, whether it is consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff, must also be answered in the negative.

  [U]nder Cort, a private remedy should not be
  implied if it would frustrate the underlying
  purpose of the legislative scheme. On the other
  hand, when that remedy is necessary or at least
  helpful to the accomplishment of the statutory
  purpose, the Court is decidedly receptive to its
  implication under the statute. Cannon v. University
  of Chicago, 441 U.S. at 703, 99 S.Ct. at 1961
  (footnote omitted).

The express provision of both judicial and administrative remedies, insofar as it discloses the underlying purposes of the legislative scheme, suggests that implication of a private right of action would be inconsistent with the legislative scheme. Simpson v. Reynolds Metals Co., Inc., 629 F.2d at 1243.

After considering the first three factors enunciated in Cort v. Ash, the court concludes that a private right of action cannot be implied under title I.*fn28 Therefore, with respect to title I of the Act, the motion of IDRS and Jeffers for summary judgment is granted and the motion of plaintiff for summary judgment is denied.

The court will next address plaintiff's claim under section 504 of the Act. Section 504 prohibits exclusion from the participation in, denial of the benefits of, or discrimination under any program or activity receiving federal financial assistance of an otherwise qualified handicapped individual solely by reason of his handicap.*fn29 The regulations promulgated under section 504 prohibit recipients of federal financial assistance from utilizing criteria or methods of administration that, inter alia, have the effect of subjecting qualified handicapped persons to discrimination, 45 C.F.R. § 84.4(b)(4),*fn30 and from providing benefits or services in a manner that limits or has the effect of limiting the participation of qualified handicapped persons, 45 C.F.R. § 84.52(a).*fn31 The regulations promulgated under section 504 also require such recipients to provide appropriate auxiliary aids, including interpreters, to persons with impaired sensory skills where necessary to afford such persons an equal opportunity to benefit from the service in question, 45 C.F.R. § 84.52(d),*fn32 and to take such steps as are necessary to ensure that no handicapped student is denied the benefits of, excluded from participation in, or otherwise subjected to discrimination under the educational program operated by the recipient because of the absence of educational auxiliary aids, such as interpreters, for students with impaired sensory skills, 45 C.F.R. § 84.44(d).*fn33 Thus, either IDRS and Jeffers or IIT and Martin could be required to provide plaintiff with interpreter services. E.g., Barnes v. Converse College, 436 F. Supp. 635, 637 (D.S.C. 1977).

The question then becomes who has the primary responsibility for providing the interpreter services. IIT and Martin relying upon the Analysis of the Final Regulations, which states that it is anticipated that such an auxiliary aid will be paid for by state and private agencies,*fn34 contend that IDRS and Jeffers must provide the interpreter. IDRS and Jeffers, on the other hand, contend that they are precluded by sections 101(a)(8), 101(a)(12), and 103(a)(3) of the Act from providing interpreter services.

Section 101(a)(8) of the Act*fn35 requires each state plan to provide for the provision of vocational rehabilitation services, such as interpreter services for deaf individuals, only after full consideration of eligibility for similar benefits under any other program. The regulations promulgated under section 101(a)(8)*fn36 require a state plan to provide that the state agency will give full consideration to any similar benefits available to a handicapped individual under any other program to meet the cost of any vocational rehabilitation services provided to such a handicapped individual.*fn37 Thus, IDRS and Jeffers contend that since plaintiff is eligible for interpreter services under the program operated by IIT and Martin, they are prohibited from providing plaintiff with interpreter services. Neither the language, the purpose, nor the history of the Act support this contention of IDRS and Jeffers.

"The starting point in every case involving construction of a statute is the language itself." Southeastern Community College v. Davis, 442 U.S. 397, 405, 99 S.Ct. 2361, 2366, 60 L.Ed.2d 980 (1979) (quoting Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 756, 95 S.Ct. 1917, 1935, 44 L.Ed.2d 539 (1975) (Powell, J., concurring)). Section 101(a)(8) requires state agencies which administer vocational rehabilitation programs to provide interpreter services for deaf individuals only "after full consideration of eligibility for similar benefits under any other program. . . ." Thus, state agencies which administer vocational rehabilitation programs do not have to provide interpreter services if a college or university is another "program". Within the context of section 101, it appears that "program" refers to vocational rehabilitation programs, not educational programs.*fn38

The purpose of the Act, which is set forth in section 2 of the Act, 29 U.S.C. § 701, supports this conclusion. Section 2 provides:

  The purpose of this chapter is to develop and
  implement, through research, training, services,
  and the guarantee of equal opportunity,
  comprehensive and coordinated programs of
  vocational rehabilitation and independent living.

Thus, the Act is intended to authorize programs which provide for vocational rehabilitation services.

The legislative history for section 101(a)(8) provides in pertinent part:

    The plan must assure that the State will
  provide the vocational rehabilitation services
  identified in section 103(a)(1) through (3), and
  provide the remainder of such services after full
  consideration of eligibility for such services
  under other programs. . . . S.Rep. No. 93-318,
  93rd Cong., 1st Sess. ___, reprinted in [1973]
  U.S. Code Cong. & Ad. News, pp. 2076, 2129.

Since the legislative history merely paraphrases section 101(a)(8), it is necessary to look to the predecessors of section 101(a)(8).

The Vocational Rehabilitation Act Amendments of 1943, ch. 190, § 1-11, 57 Stat. 374-380 (1943) (the "1943 Amendments"), which re-enacted the Vocational Rehabilitation Act of June 2, 1920, ch. 219, § 1-7, 41 Stat. 735-737 (1919-1921), first introduced the "similar benefits" language. Section 3 of the 1943 Amendments provided in pertinent part:

    (a) From the sums made available pursuant to
  section 2, the Secretary of the Treasury shall
  pay to each State which has an approved plan for
  vocational rehabilitation, for each quarter or
  other shorter payment period prescribed by the
  Administrator, the sum of amounts he determines
  to be —

      (3) one-half of necessary expenditures under
    such plan in such period (exclusive of
    administrative expense) for rehabilitation
    services specified in subparagraphs (A), (B),
    (C), (D), and (E), to disabled individuals (not
    including war disabled civilians) found to
    require financial assistance with respect
    thereto, after full consideration of the
    eligibility of such individual for any similar
    benefit by way of pension, compensation, or
    insurance. . . . (emphasis added).

The legislative history to section 3 of the 1943 Amendments stated:

    Steps were taken to assure use of Federal funds
  for rehabilitation services only when necessary.
  Thus (except for war-disabled veterans certified
  to the State) eligibility for maintenance,
  physical restoration, and prosthetic appliances
  is limited to cases where a financial need for

 
  such services is found after full consideration of
  all other benefits available to the individuals.
  H.R.Rep. No. 426, 78th Cong., 1st Sess. ___,
  reprinted in [1943] U.S. Code Cong.Serv., pp. 2.134,
  2.139 (emphasis added).

The 1943 Amendments were amended in their entirety by the Vocational Rehabilitation Amendments of 1954, ch. 655, §§ 1-13, 68 Stat. 652-662 (1954) (the "1954 Amendments"). Section 11(a) of the 1954 Amendments provided in pertinent part:

    The term "vocational rehabilitation services"
  means diagnostic and related services (including
  transportation) incidental to the determination
  of eligibility for and the nature and scope of
  services to be provided; training, guidance and
  placement services for physically handicapped
  individuals; and, in the case of any such
  individual found to require financial assistance
  with respect thereto, after full consideration of
  his eligibility for any similar benefit by way of
  pension, compensation, and insurance, any other
  goods and services necessary to render such
  individual fit to engage in a remunerative
  occupation (including remunerative homebound
  work). . . . 68 Stat. at 659 (emphasis added).

That section 3 of the 1943 Amendments is substantially incorporated into section 11(a) of the 1954 Amendments is confirmed by the legislative history to section 11(a):

    The term "vocational rehabilitation services"
  is defined in subsection (a) of section 10
  [section 11 of the 1954 Amendments]. Except for
  substantial liberalizations referred to below,
  the definition of "vocational rehabilitation
  services" contained in subsection (a), paragraphs
  (1) through paragraph (6) thereof, is
  substantially similar to the provisions of
  section 3(a) of the existing act to the extent
  that the latter section outlines the various
  categories of rehabilitation services for which
  Federal reimbursement is available under the
  conditions specified therein. S.Rep. No. 1626,
  83rd Cong., 2d Sess. ___, reprinted in [1954]
  U.S. Code Cong. & Ad. News, pp. 2862, 2885.

The legislative history regarding the similar benefits provision stated:

    The term also includes, in the case of any
  disabled individual found to require financial
  assistance with respect thereto, after full
  consideration of his eligibility for any similar
  benefit by way of pension, compensation, and
  insurance, any other goods and services necessary
  to render such individual fit to engage in a
  remunerative occupation. S.Rep. No. 1626, 83rd
  Cong., 2d Sess. ___, reprinted in [1954] U.S. Code
  Cong. & Ad. News at 2885-86 (emphasis added).

The 1954 Amendments were amended in part by the Vocational Rehabilitation Amendments of 1968, P.L.No. 90-391, 82 Stat. 297-306 (1968) (the "1968 Amendments"). In the 1968 Amendments section 11(a) was amended to read as follows:

    (1) The term "vocational rehabilitation
  services" means the following services:

    (2) Such term also includes, after full
  consideration of eligibility for any similar
  benefit by way of pension, compensation, and
  insurance, the following services and goods
  provided to, or for the benefit of, a handicapped
  individual:. . . . 82 Stat. at 301 (emphasis
  added).

The types of programs specified in the predecessors to section 101(a)(8) were programs designed to provide vocational rehabilitation services. Unless the context indicates otherwise, words or phrases in a provision that were used in a prior act pertaining to the same subject matter will be construed to be used in the same sense. 2A C. Sands, Statutes and Statutory Construction § 51.02, at 290 (1973). Since section 101(a)(8) must be interpreted as only requiring consideration of other benefit programs which provide or pay for vocational rehabilitation services, IDRS and Jeffers are not precluded by section 101(a)(8) of the Act from providing interpreter services.
*fn39

Section 101(a)(12) of the Act*fn40 and the regulation promulgated thereunder*fn41 require each state plan to provide that, in the provision of vocational rehabilitation services, maximum utilization shall be made of vocational or technical training facilities or other appropriate resources in the community.*fn42 IDRS and Jeffers contend that the duty of IIT and Martin to provide plaintiff with interpreter services is an "other appropriate resource in the community" and therefore that they are prohibited from providing plaintiff with interpreter services. Plaintiff contends that the phrase "other appropriate resources in the community" refers to resources whose major function is the provision of vocational rehabilitation services and therefore that IDRS and Jeffers are not prohibited from providing plaintiff with interpreter services.

The language and the purpose of the Act support plaintiff's contention. When read in conjunction with section 2, *fn43 section 101(a)(12)(B)*fn44 and the other subsections of section 101(a) of the Act, it appears that section 101(a)(12) contemplates community resources whose major function is to provide vocational rehabilitation services, not to provide postsecondary educations.

The legislative history for section 101(a)(12) supports this conclusion. The legislative history provides:

    The plan must require maximum utilization of
  public or other vocational or technical training
  facilities and resources in the community for the
  provision of services. S.Rep. No. 93-318, 93rd
  Cong., 1st Sess. ___, reprinted in [1973] U.S. Code
  Cong. & Ad.News at 2129 (emphasis added).

Since section 101(a)(12) must be interpreted as requiring maximum utilization of resources in the community which provide vocational rehabilitation services, IDRS and Jeffers are not precluded by section 101(a)(12) of the Act from providing plaintiff with interpreter services.

Section 103(a)(3) of the Act*fn45 and the regulation promulgated thereunder*fn46 provide that vocational rehabilitation services include vocational and other training services for handicapped individuals provided that training services in institutions of higher education (universities, colleges, and community/junior colleges) will not be paid for with funds provided under title I unless maximum efforts have been made to secure grant assistance from other sources to pay such training.*fn47 IDRS and Jeffers contend that interpreter services are training services and therefore that they are prohibited from providing plaintiff with interpreter services. However, the question which must be answered first is whether, assuming arguendo that interpreter services are training services, institutions of higher education constitute "other services." The language and the history of section 103(a)(3) indicate that they do not.

The phrase "other sources" must be read in conjunction with the phrase "grant assistance." When so read, section 103(a)(3) suggests that "other sources" refers to means of obtaining public or private funds other than those provided by institutions of higher education.

This construction is supported by the legislative history to section 103(a)(3) which provides:

    The Committee also limited the use of program
  funds for individuals who are pursuing higher
  education paid for by this program to those for
  whom all alternative means of funding have been
  sought and were not available. The Committee
  feels that the costs for instruction at colleges
  should be borne by some other source of funds if
  in any way possible, and points out that a
  substantial new student assistance program is
  available through P.L. 92-318, the Education
  Amendments of 1972 [amending the Higher Education
  Act of 1965, 20 U.S.C. § 1001-1145c]. Statistics
  provided to the Committee show that many States do
  not limit the amount that may be spent on a
  handicapped individual's higher education, thus
  substantially diminishing basic program monies
  available for other services, especially those
  needed by individuals with more severe handicaps.
  The Committee does not wish to limit a handicapped
  individual's opportunity to pursue postsecondary
  education, but does believe that other sources of
  funds should be explored with diligence. S.Rep. No.
  93-318, 93rd Cong., 1st Sess. ___, reprinted in
  [1973] U.S. Code Cong. & Ad. News at 2099.

The student assistance program available through the Higher Education Act of 1965, in addition to making funds available directly to students, provides for payments to the states to assist them in making financial aid available to students of exceptional need who, for lack of such a grant, would be unable to obtain the benefits of a postsecondary education and provides assistance to institutions of higher education. 20 U.S.C. § 1070.*fn48 Thus, institutions of higher education do not constitute "other sources" and IDRS and Jeffers are not precluded by section 103(a)(3) of the Act from providing interpreter services.*fn49

Since IDRS and Jeffers are not precluded by sections 101(a)(8), 101(a)(12), and 103(a)(3) of the Act from providing interpreter services and since the Analysis of the Final Regulations*fn50 indicates that the bulk of auxiliary aids are to be paid for by state and private agencies, not by colleges or universities, the court concludes that IDRS and Jeffers have the primary responsibility for providing interpreter services for deaf individuals who are eligible for vocational rehabilitation services.*fn51 Therefore, with respect to section 504 of the Act, the motions of plaintiff and IIT and Martin for summary judgment are granted and the motion of IDRS and Jeffers for summary judgment is denied.

With respect to the cross-claim of IIT and Martin against IDRS and Jeffers for costs incurred by IIT in providing interpreter services to plaintiff, IDRS and Jeffers contend that IIT and Martin do not have standing to claim that IDRS has breached its duty under section 504 by failing to provide plaintiff with interpreter services and that a claim for monetary relief against them is barred by the eleventh amendment. IIT and Martin contend that since there is a subrogation relationship between IIT and plaintiff, IIT can assert against IDRS the same claim for money damages which plaintiff would have asserted had he paid for those services himself and that IDRS and Jeffers have waived their immunity from suit under the eleventh amendment.

Under the eleventh amendment,*fn52 a private person may not sue a state in a federal court without its consent, whether or not the plaintiff is a citizen of that state. Edelman v. Jordan, 415 U.S. 651, 662-63, 94 S.Ct. 1347, 1355, 39 L.Ed.2d 662 (1974) (citing Parden v. Terminal Railway, 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964); Great Northern Life Insurance Co. v. Read, 322 U.S. 47, 64 S.Ct. 873, 88 L.Ed. 1121 (1944); Duhne v. New Jersey, 251 U.S. 311, 40 S.Ct. 154, 64 L.Ed. 280 (1920); Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890)). Where state officials are sued in their official capacities for retroactive money damages by private parties in a federal court, suit still is barred by the eleventh amendment because the liability is one which must be paid from public funds in the state treasury. Edelman v. Jordan, 415 U.S. at 663, 94 S.Ct. at 1355 (citing Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389 (1945)).

Furthermore, a state does not waive its sovereign immunity and consent to the bringing of a suit by accepting federal funds unless Congress intended to abrogate the immunity conferred by the eleventh amendment, i.e., unless the Congressional enactment by its terms authorized suit by designated plaintiffs against a general class of defendants which literally included states or state instrumentalities. Edelman v. Jordan, 415 U.S. at 672, 94 S.Ct. at 1360. However, states are not shielded from money judgments by the eleventh amendment when suit is brought under civil rights statutes enacted by Congress pursuant to its powers under the fourteenth amendment because the eleventh amendment and the principle of state sovereignty that it embodies are limited by the enforcement provisions of section five of the fourteenth amendment.*fn53 Fitzpatrick v. Bitzer, 427 U.S. 445, 456, 96 S.Ct. 561, 49 L.Ed.2d 614 (1976). Section five of the fourteenth amendment grants Congress authority to enforce "by appropriate legislation" the substantive provisions of the fourteenth amendment, which themselves embody significant limitations on state authority. Id. Although section 504 was enacted pursuant to the fourteenth amendment, the Act does not contain the requisite explicit Congressional authorization to enable individuals to bring suits against the states.*fn54 Stubbs v. Kline, 463 F. Supp. 110, 116 (W.D.Pa. 1978). Therefore, the eleventh amendment is a bar to the action of IIT and Martin against IDRS and Jeffers*fn55 and, with respect to the cross-claim, the motion of IDRS and Jeffers for summary judgment is granted and the motion of IIT and Martin for summary judgment is denied.

Accordingly, the motion of plaintiff for summary judgment is granted with respect to section 504 of the Act and is denied with respect to title I of the Act, the motion of IDRS and Jeffers for summary judgment is granted with respect to title I of the Act and the cross-claim and is denied with respect to section 504 of the Act, and the motion of IIT and Martin for summary judgment is granted with respect to section 504 of the Act and is denied with respect to the cross-claim.*fn56

It is so ordered.


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