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SALVADOR v. BELL

August 20, 1985

ARSENIO E. SALVADOR, PLAINTIFF,
v.
TERREL H. BELL, SECRETARY, UNITED STATES DEPARTMENT OF EDUCATION, DEFENDANT.



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

MEMORANDUM OPINION AND ORDER

This case arises under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and its implementing regulations. On November 20, 1984 plaintiff Arsenio Salvador ("Salvador") filed his pro se complaint against Terrel Bell, the Secretary of the United States Department of Education ("the Secretary") alleging that the Secretary failed to investigate his complaints and review decisions regarding his complaints that Roosevelt University ("Roosevelt") discriminated against him on the basis of his handicap, a learning disability. Roosevelt allegedly failed to make necessary modifications of its academic program to accommodate him in violation of Section 504 of the Rehabilitation Act.*fn1 Salvador alleged that, as a direct and proximate result of these violations, he was denied a Masters Degree from Roosevelt, denied the opportunity for employment, and has suffered mental anguish and emotional distress. He seeks damages in the amount of $10,000 and an injunction requiring the Secretary to fully investigate his complaints against Roosevelt.

The Secretary has moved to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction and pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted on the grounds that, although the plaintiff may file a claim directly against Roosevelt under Section 504, Section 504 does not provide the plaintiff with a private cause of action against the Secretary. In the alternative, the Secretary has moved for summary judgment pursuant to Fed.R. Civ.P. 56(b) on the grounds that the Secretary has complied with his obligation described in 34 C.F.R. § 104.61 to investigate alleged violations of Section 504, and, consequently, the plaintiff's claim is without basis.

Facts

Salvador filed two complaints with the Department of Education Regional Office for Civil Rights in Chicago, Illinois ("Regional Office") claiming that Roosevelt, which is located in Chicago, discriminated against him because of his handicap, a learning disability. He filed the first complaint on May 19, 1980. On October 31, 1980, the Regional Office issued a Letter of Findings which concluded that the evidence uncovered by the Regional Office in its investigation of this complaint did not support the plaintiff's claim of discrimination against him because of his handicap by Roosevelt. The Letter of Findings indicated that the investigation by the Regional Office revealed that Roosevelt was never informed that the plaintiff had a learning disability that might require modifications of the school's academic requirements. Section 504 requires a recipient of federal financial assistance, such as Roosevelt, to "make such modifications to its academic requirements as are necessary to insure that such requirements do not discriminate or have the effect of discriminating, on the basis of handicap, against a qualified handicapped applicant or student." 34 C.F.R. § 104.44. Because that obligation only arises when the recipient knows of or is made aware of a beneficiary's handicapping condition, and because Roosevelt was never informed that the plaintiff had a learning disability, the Letter of Findings concluded that Roosevelt's obligation to make necessary modifications in its academic requirements to accommodate Salvador never arose.

The October 31, 1980 Letter of Findings prompted Salvador to file his second complaint against Roosevelt. In his second complaint, he provided the Office of Civil Rights with a neuropsychological evaluation dated November 22, 1980 as proof of his handicap. The doctor who evaluated him stated in his evaluation that Salvador had a past history of cryptococcal meninigitis, hydrocephalus, and posterior right shunt. He concluded, however, that ". . . at the same time, the deficiency in recent memory and learning ability make his academic failures recently entirely understandable, and it seems to be unlikely that he could manage a graduate course at present."

On March 20, 1981, the Regional Office issued its second Letter of Findings on Mr. Salvador's complaint. The Letter stated:

  This additional evidence does not change our
  original findings. As we notified Mr. Salvador in
  our original letter, since his needs (as a result
  of his handicap) were not clearly communicated to
  University officials, it was difficult for them
  to ascertain what specific academic modifications
  he required.
  However, we did find that University officials
  were made aware that he was recovering from a
  serious illness and as a result made certain
  academic adjustments on his behalf. (Please refer
  to the letter dated October 31, 1980). Therefore,
  the weight of the evidence is insufficient to
  establish that Roosevelt University has
  discriminated against Mr. Salvador on the basis
  of his handicap in failing to make necessary
  modifications of its academic program.

The plaintiff then appealed the decision of the Regional Office on his two complaints to the Secretary who in turn referred the matter to officials in the headquarters office of the Department's Office for Civil Rights. On June 8, 1981, the Office for Civil Rights informed Salvador that, after a careful review of his complaints, it had determined that the conclusion of the Regional Office that Roosevelt had not violated his rights under Section 504 was correct. The Office of Civil Rights stated that Roosevelt did in fact take account of Salvador's recovery from a serious illness by allowing him to continue in its M.B.A. program even after he received his third "C," which normally resulted in termination. The Office of Civil Rights also noted that Roosevelt was not obligated to accommodate a handicap of the plaintiff of which it was not informed. This lawsuit followed.

Discussion

Section 504 of the Rehabilitation Act of 1973 provides as follows:

  No otherwise qualified handicapped individual in
  the United States, as defined in section 706(6)
  of this title, shall, solely by reason of his
  handicap, be excluded from the participation in,
  be denied the benefits of, or be subjected to
  discrimination ...

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