The opinion of the court was delivered by: ACKERMAN
Richard Poole, a young man who was born with one kidney, was denied the right to participate in South Plainfield High School's interscholastic wrestling program due to his handicap. As a result, he has brought this suit against the South Plainfield Board of Education seeking compensatory damages. His complaint alleges a cause of action under 42 U.S.C. § 1983 for a violation of his Fourteenth Amendment rights and under 29 U.S.C. § 794, also known as § 504 of the Rehabilitation Act of 1973, "which prohibits discrimination against an "otherwise qualified handicapped individual' in federally funded programs "solely be reason of his handicap.' " Southeastern Community College v. Davis, 442 U.S. 397, 400, 99 S. Ct. 2361, 2364, 60 L. Ed. 2d 980 (1979) quoting 29 U.S.C. § 794.
The Board has filed a motion for dismissal for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1), or, in the alternative, for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c), or for summary judgment pursuant to Fed.R.Civ.P. 56.
Although the defendant's moving papers principally address the constitutional issues raised by Mr. Poole's complaint, it is clear from the plaintiff's responding papers and from paragraph 1 of the pretrial order, that this is principally a case arising under the Rehabilitation Act of 1973. I have concluded that the defendant is not entitled to either summary judgment or a dismissal of Richard Poole's § 504 claim and will, therefore, deny its motion.
The Board has urged several grounds for rejection of the plaintiff's § 504 claim. As an initial matter, they assert that § 504 does not create a private cause of action. Although the question of whether this section creates a private cause of action is a matter in dispute nationally. See Southeastern Community College v. Davis, 442 U.S. 397, 404 fn. 5, 99 S. Ct. 2361, 2366, 60 L. Ed. 2d 980 (1979), it has been resolved in favor of a private party's standing in the Third Circuit. Doe v. Colautti, 592 F.2d 704, 708 fn. 8 (1979). The Board has also argued that even if § 504 creates a private cause of action, it only creates an action for injunctive relief and not one for damages. It is true that in Doe v. Colautti the plaintiff was only seeking injunctive relief, but in Leary v. Crapsey, 566 F.2d 863 (2d Cir. 1977), the first case cited by the Third Circuit in support of the proposition that a private cause of action exists, the plaintiff was seeking monetary as well as injunctive relief. The decision in Leary is a sound one.
There are many plaintiffs for whom injunctive relief can only come too late. Mr. Poole is one of these, since he has already graduated from the South Plainfield High School and cannot, therefore, participate in its wrestling program. If he can prove that he was a victim of illegal discrimination, he should be entitled to some form of relief. Monetary damages are the most usual form of relief given to successful plaintiffs, and I conclude that they are appropriately sought here.
I am aware of the fact that a contrary conclusion was reached in Boxall v. Sequoia Union High School District, 464 F. Supp. 1104 (N.D.Cal.1979), but I respectfully disagree with Judge Peckham's conclusion in that case. If, as the Third Circuit has held, Congress intended to permit private litigants to enforce § 504, then it seems sensible to conclude that in the absence of an express limitation on remedies, the usual remedies should be available in order to promote that enforcement. I see no reason, therefore, to draw a distinction between injunctive and monetary relief.
The Board's second objection is that its interscholastic wrestling program does not come within the purview of § 504 since it "was not the recipient of federal funds for its interscholastic athletic program during the period of plaintiff's enrollment in the school system." Defendant's brief at page 7.
The Board admits in the affidavit of William Foley that it receives federal assistance for a number of its projects and activities. It argues, however, that unless the federal aid is received for the specific program that a handicapped individual is denied access to, in this case interscholastic athletics, that § 504 does not apply. The Board has cited no authority other than the statutory language itself in support of this proposition.
The Board's restrictive definition does not seem to be in keeping with the broad remedial purpose of the Rehabilitation Act of 1973. See 29 U.S.C. § 701 (Congressional declaration of purpose). Moreover, it is a definition that the Department of Health, Education and Welfare has rejected in its regulations interpreting § 504.
According to 45 CFR § 84.2 the regulations are applicable to each "recipient" of Federal Assistance from HEW. A "recipient" is defined as:
(A)ny state or its political subdivision, any instrumentality of a state or its political subdivision, any public or private agency, institution, organization, or other entity, or any person to which Federal financial assistance is extended directly or through another recipient, including any successor, assignee, or transferee of a recipient, but excluding the ultimate beneficiary of the assistance.
The South Plainfield Board of Education certainly meets this definition of a "recipient." What, then, are the duties of "recipients" like the defendants here, who operate schools? As the plaintiff's brief has pointed out, the regulations at 45 CFR § 84.37 state:
(1) A recipient to which this subpart applies shall provide nonacademic and extracurricular services and activities in such manner as is necessary to afford handicapped students an equal opportunity ...