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SCHORNSTEIN v. NEW JERSEY DIV. OF VOC. REHABILITAT

August 5, 1981

Ruth Ann SCHORNSTEIN, Plaintiff,
v.
The NEW JERSEY DIVISION OF VOCATIONAL REHABILITATION SERVICES; George Chizmadia, in his official capacity as Director of the New Jersey Division of Vocational Rehabilitation Services; Kean College of New Jersey; and Dr. Nathan Weiss, in his official capacity as President of Kean College of New Jersey, Defendants



The opinion of the court was delivered by: STERN

Plaintiff is a deaf woman attending college in New Jersey. As a participant in the state's vocational rehabilitation program she receives state and federal funds for her tuition, books, and transportation. She brings this suit to require the state further to provide her with interpreter services, without which her other benefits will be useless.

I. Facts and Procedural History

 Under federal law a state may receive federal financial assistance to administer and maintain an approved vocational rehabilitation program. New Jersey has chosen to develop such a program, and defendant New Jersey Division of Vocational Rehabilitation Services ("NJDVRS") is the agency which administers the program, using in part funds provided by the federal Rehabilitation Services Administration ("RSA"). *fn1"

  Plaintiff Ruth Ann Schornstein is a deaf person and is therefore severely handicapped within the meaning of sections 7(7) *fn2" and 7(13) *fn3" of the Rehabilitation Act of 1973, 29 U.S.C. §§ 701-794 (the "Act"). In August 1978 she applied for admission to defendant Kean College ("Kean"), a New Jersey state college which receives federal financial assistance. As a condition to receiving that assistance, Kean has agreed to comply with section 504 of the Act, 29 U.S.C. § 794, *fn4" and its implementing regulations, 45 C.F.R. §§ 84.41-84.47. Kean admitted plaintiff for the spring semester of 1979.

 After gaining admission to Kean, plaintiff applied to NJDVRS for assistance. She stated her intention to earn a college degree in social work and psychology, and to become thereafter a teacher of the handicapped. NJDVRS determined that plaintiff was eligible *fn5" for vocational rehabilitation services, *fn6" and selected her to receive such services. NJDVRS agreed, beginning in January 1980, to pay plaintiff's tuition at Kean, and to provide her with books and the cost of her transportation.

 On April 19, 1979, plaintiff, through her counsel, wrote a letter to Kean requesting that the college provide plaintiff with a sign language interpreter. See Complaint, Exh. I. Plaintiff contends, and defendants agree, that plaintiff requires interpreter services to participate effectively in her classes. *fn7" On May 16, 1979, Mr. Ray Ford, assistant to the President of Kean, advised plaintiff's attorney by telephone that the college would not furnish an interpreter. A second request for such services, made on January 17, 1980, was also refused.

 When Kean initially refused to provide interpreter services, plaintiff applied to and received funds for those services from the New Jersey Division of the Deaf, an agency of the state Department of Labor and Industry. The Division of the Deaf provided sufficient funds to cover interpreter services for the summer and fall semesters of 1979 and the spring semester of 1980. On March 28, 1980, plaintiff's counsel was advised by telephone that the Division of the Deaf would no longer provide funds for interpreters for deaf college students because of financial constraints.

 Plaintiff then contacted NJDVRS and requested that it provide her with interpreter services. On June 3, 1980, defendant George Chizmadia, Director of NJDVRS, advised plaintiff's counsel by telephone that the agency would not provide interpreter services. The refusal was based on a written policy of NJDVRS not to provide sign language interpreters to deaf and hearing-impaired vocational rehabilitation clients who are students at federally-assisted colleges. NJDVRS's Counselor's Policy and Procedural Manual, College Sponsorship Section, Interpretation and Attendants Subsection (January, 1980), states:

 
Provision of Interpreters for the Deaf and attendants for the physically disabled is the responsibility of the college under Section 504 of the 1973 Rehabilitation Act. The New Jersey Division of Vocational Rehabilitation Services will, therefore, no longer provide the cost of these services. The only exceptions are cases in which we are currently paying for one of these services. In these cases, every effort must be made and documented by the Counselor to secure funding from the college. If these attempts are not met with success, we will continue to pay rather than interrupt the client's program.

 (Emphasis in original.) See Complaint, Exh. III. This policy has been in effect from the time that plaintiff entered Kean College.

 Because of her inability to receive funds from Kean, NJDVRS, or the State Division of the Deaf, plaintiff was forced to withdraw from Kean's 1980 summer semester, which commenced on June 23, 1980.

 On August 6, 1980, she commenced this action. She alleges that the failure of defendant NJDVRS and its director Chizmadia to provide her with interpreter services is in violation of Title I of the Act, *fn8" section 504 of the Act, *fn9" and the equal protection clause of the Fourteenth Amendment. She also alleges that the failure of defendant Kean and its president, Dr. Nathan Weiss, to provide the same services is in violation of section 504 of the Act and the equal protection clause.

 At the same time plaintiff filed a motion for a preliminary injunction to require defendants to provide interpreter services for the semester beginning in September 1980. Before the application was heard on the merits, the parties entered into a consent order under which the state agreed to provide plaintiff with interpreter services for the fall semester and plaintiff agreed to reimburse the State for the cost of those services if defendants prevailed on the merits.

 The parties filed cross-motions for summary judgment returnable in January 1981, prior to the commencement of Kean's spring semester. At the hearing of that motion, on January 16, 1981, the Court's attention was directed to University of Texas v. Camenisch, cert. granted, 449 U.S. 1075, 101 S. Ct. 853, 66 L. Ed. 2d 797 (1980), a case presenting similar issues in which the Supreme Court had recently granted certiorari. The parties agreed to postpone a determination of the pending motions until the Supreme ...


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