Tоm BRENNAN, Plaintiff-Appellant, v. Wanda F. STEWART, Individually and as Executive Director of the Texas Board of Examiners in the Fitting and Dispensing of Hearing Aids, et al., Defendants- Appellees.
No. 86-2972.
United States Court of Appeals, Fifth Circuit.
Jan. 7, 1988.
834 F.2d 1248
George Warner, Asst. Atty. Gen., Austin, Tex., for defendants-appellees.
Appeals from the United States District Court for the Eastern District of Texas.
Before WRIGHT,* GEE, and JOLLY, Circuit Judges.
GEE, Circuit Judge:
Appellant Tom Brennan, his application for a temporary training permit rejected by the Texas Board of Examiners in the Fitting and Dispensing of Hearing Aids because of a visual handicap, sued the members of the Board in federal court, alleging that their actions violated his constitutional and statutory rights and requesting damages and other relief. The district court dismissed his claims as barred by the Eleventh Amendment and the qualified immunity of the members of the Board. We reject Mr. Brennan‘s constitutional claims, but remand certain of his statutоry claims for further proceedings.
A. Facts and Prior Proceedings
The State of Texas regulates the hearing aid business through the Texas Board of Examiners in the Fitting and Dispensing of Hearing Aids. See
When he applied to the Board for a temporary training permit, Tom Brennan was a graduate of Stephen F. Austin University with a bachelor of science degree in psychology and social and rehabilitation services; he was enrolled in (and has since completed) a masters program in speech and language from the same university; and he was employed at the Nachogdoches Hearing, Speech, and Language Center as an aid. Mr. Brennan is totally blind.
The Board denied Mr. Brennan‘s application. According to a letter from Executive Director Wanda Stewart to his putative training supervisor:2
The decision of the Board was based on the fact that Mr. Brennan‘s visual disability will prevent him from complying with Rule and Regulation 141.35(E) [sic;
22 Tex.Admin.Code Sec. 141.35(b)(1)(E) ] whiсh requires fifteen hours of ear impressions and otoscopic examinations. The rule requires that the fifteen hours be physically performed by the trainee himself. The Board cannot make exceptions to the rule and this decision is final.
Despite this apparently unqualified rejection, Ms. Stewart went on in the same letter to give the time and location of the next Board meeting and to assert that “Mr. Brennan is welcome to appear before the Board at this meeting if he so desires.” Mr. Brennan did not respond; instead, after delaying about six months, he wrote to a Texas Assistant Attorney General requesting reconsideration of the Board‘s decision. Although the Assistant Attorney General‘s response did not satisfy him, he sought no judicial review under state administrative law.
Mr. Brennan then filed this federal action against the Board members in their official and individual capacities. He alleged that the Board‘s denial of the training permit on the basis of his visual handicap violated his right to equal protection and due process of law under the
The district court held that the suit against the Board members in their official capacities was against the Board itself, and that the Board was an arm of the State of Texas. It therefore dismissed Mr. Brennan‘s Sec. 1983/Fourteenth Amendment and Sec. 504 claims against the Board members in their official capacities as barred by the Eleventh Amendment. In addition, the court dismissed Mr. Brennan‘s state-law claims as barred by the Eleventh Amendment and Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984); and the court dismissed his claim under
B. Through a Glass Darkly: Mysteries of the Eleventh Amendment
The district court held that Mr. Brennan‘s due process and equal protection claims and his claim under Sec. 504 of the Rehabilitation Act brought under Sec. 1983 against the members of the Board in their official capacities were barred by the Eleventh Amendment. Read literally, the Eleventh Amendment shields the states from suits by non-citizens only,3 but the Supreme Court has construed it in light of a broader notion of sovereign immunity implicit in the constitutional scheme. See Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890); see also Welch v. Dept. of Highways & Public Transportation, --- U.S. ----, 107 S.Ct. 2941, 97 L.Ed.2d 389 (1987) (plurality opinion). Although Congress can abrogate the Eleventh Amendment by statute under the authority of
Mr. Brennan is correct. The district court should have entertained his claims for equitable relief on the merits. See Kentucky v. Graham, 473 U.S. 159, 167 n. 14, 105 S.Ct. 3099, 3106 n. 14, 87 L.Ed.2d 114 (1985) (“[I]mplementations of state policy or custom may be reached in federal court only because official-capacity actions for prospective relief are not treated as actions against the State. See Ex parte Young.“); Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 102, 104 S.Ct. 900, 909, 79 L.Ed.2d 67 (1984) (Ex parte Young fiction applies only to violations of federal law by state officials); Quern v. Jordan, 440 U.S. 332, 337, 99 S.Ct. 1139, 1143, 59 L.Ed.2d 358 (1979) (Eleventh Amendment bars all but prospective relief and costs ancillary to prospective relief under Ex parte Young ); see also Darlak v. Bobear, 814 F.2d 1055, 1060-61 (5th Cir.1987); Clay v. Texas Women‘s University, 728 F.2d 714, 715-16 (5th Cir.1984).
The Ex parte Young fiction is that acts by state officials which are contrary to federal law cannot have been authorized or be ratified by the state; thus, illegal acts by state officials cannot be considered acts done under the state‘s authority. Therefore, any suit seeking to enjoin wrongful--and ipso facto unauthorized--acts by state officials is not a suit against the state; and the federal court‘s injunction of those wrongful acts is not a judgment against the state itself. The “fiction” of Ex parte Young is its underlying image of the state as a discrete entity separate from its agents, ready and willing to obey federal law under the Supremacy Clause but thwarted by the bad acts of its recalcitrant officials; whatever the power of this image, the fiction has long been thought “necessary to preserve the supremacy of federal law.” Clark, The Role of National Courts in 200 Years of Evolving Governance, 18 Cum.L.Rev. 95, 107 (1987). Ex parte Young creates “the well-recognized irony that an official‘s unconstitutional conduct constitutes state action under the Fourteenth Amendment but not the Eleventh Amendment.” Pennhurst, 465 U.S. at 105, 104 S.Ct. at 910 (internal quotation omitted). Although the Supreme Court has sometimes implied otherwise,5 Ex parte Young is a gaping hole in the shield of sovereign immunity created by the Eleventh Amendment and the Supreme Court.6
The Eleventh Amendment and the doctrine of Ex parte Young together create a relatively simple rule of state immunity. Basically, prospective injunctive or declaratory relief against a state is permitted--whatever its finаncial side-effects--but retrospective relief in the form of a money judgment in compensation for past wrongs--no matter how small--is barred. The Ex parte Young fiction is usually quite easy to apply. In this case, for example, the district court should have dismissed the official-capacity damage claims but retained jurisdiction over the official-capacity equitable ones.
But the district court‘s miscue in this case also demonstrates that the interaction of the Eleventh Amendment with Ex parte Young continues to confound lawyers and judges alike. At least part of the problem is that the Supreme Court shifts between formalistic recitations of Eleventh Amendment dogma without acknowledging Ex parte Young even in a footnote and ruling on the merits of dozens of cases under the Ex parte Young fiction without mentioning the Eleventh Amendment issue even in passing. Compare Atascadero State Hospital v. Scanlon, 473 U.S. 234, 235, 105 S.Ct. 3142, 3144, 87 L.Ed.2d 171 (1985) (holding in categorical terms that Sec. 504 does not abrogate Eleventh Amendment while carefully limiting the question presented to “retroactive monetary relief“; no mention of Ex parte Young ); Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978) (per curiam) (granting certiorari to delete state from list of party defendants without noting undoubted propriety of underlying injunctive relief against the state under Ex parte Young fiction);7 with Turner v. Safley, --- U.S. ----, ----, 107 S.Ct. 2254, 2257, 96 L.Ed.2d 64 (1987) (reaching merits of suit challenging state prison regulations described as a “class action for injunctive relief and damages ” (emphasis added)); see also cases cited supra note 6.
In addition, the confusion is compounded by frequent decisions, offered without explanation, of cases that appear to be barred by the Eleventh Amendment. For example, in Ortega v. O‘Connor, 764 F.2d 703 (9th Cir.1985), the Ninth Circuit granted summary judgment for the plaintiff in his suit against a California state hospital8 under
Also, two out of three leading Supreme Court cases in the “constitutional tort“/due process area appear to have been barred by the Eleventh Amendment. In Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), a prisoner sued under
Or again, in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), the Court confronted the problem of the relation between
the Court held that inmates who claimed in a class action that good-time credits had been taken from them without proper procedural protections could sue for damages and an injunction under Sec. 1983 even though their claim seeking restoration of lost good-time for which they had previously been credited could be pursued only through a petition for a writ of habeas corpus.
Serio v. Members of Louisiana State Bd. of Pardons, 821 F.2d 1112, 1115 (5th Cir.1987) (emphasis added). The Supreme Court explicitly relied on the existence of the prisoners’ damages claims for past wrongs--undoubtedly barred by the Eleventh Amendment--in determining that
The district court‘s jurisdictional dismissal of Mr. Brennan‘s claims for injunctive relief was error. “When the basis of federal jurisdiction is intertwined with the plaintiff‘s federal cause of action, the court should assume jurisdiction over the case and decide it on the mеrits.” Eubanks v. McCotter, 802 F.2d 790, 792-93 (5th Cir.1986). Jurisdiction over a claim for equitable relief under Ex parte Young grounded on the “federal question” statute
In some cases improper jurisdictional dismissals force us to reverse and remand to allow the district court to consider the merits. See, e.g., Eubanks, 802 F.2d at 794. In this case, however, the district court considered the merits of the constitutional claims (but not the Sec. 504 claims) when ruling on Mr. Brennan‘s suit against members of the Board in their individual capacities. Since “[r]eversal is inappropriate if the district court can be affirmed on alternative grounds,” Leonard v. Dixie Well Service & Supply, Inc., 828 F.2d 291, 294 (5th Cir.1987), we proceed to review the merits of Mr. Brennan‘s claims to see whether any of them warrant remand to the district court for further proceedings.
C. Constitutional Limits on the Power of the Board
Mr. Brennan does not complain about the procedures used by members of the Board in deciding to deny his application for a license. He argues instead that the Board‘s decision was wrong; in fact, he argues that the decision was so utterly wrong that it can be reversed by a federal court reviewing it under the Due Process and Equal Protection Clauses of the Fourteenth Amendment.11
1. The Framework of Rights
a. “Substantive” Due Process
Mr. Brennan‘s due process claim is one form of several interrelated constitutional doctrines that courts and commentators have oxymoronically labeled “substantive” due process. The conceptual essence of “substantive” due process is the notion that the Due Process Clause--in addition to setting procedural minima for deprivations of life, liberty, or property--bars outright “certain government actions regardless of the fairness of the procedures used to implement them.” Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 665, 88 L.Ed.2d 662 (1986). The Supreme Court has never advanced a rigorous theoretical framework for the classification and analysis of all “substantive” due process claims, but the interrelated strands of the doctrine are relatively clear.
The Due Process Clause also requires that the states act only through means appropriately related to legitimate ends. This strand of the “substantive” due process doctrine itself is composed of two parts: rationality limitations and normative limitations on government power. Every law or governmental act must be reasonably related to its end, and thus not “arbitrary.” See Regents of University of Michigan v. Ewing, 474 U.S. 214, 106 S.Ct. 507, 88 L.Ed.2d 523 (1985) (state university‘s dismissal of student was not arbitrary); Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 124-25, 98 S.Ct. 2207, 2213, 57 L.Ed.2d 91 (1978) (regulation of retail gasoline market found rational). Certain laws or actions are unconstitutional, however, even if rationally related to the state‘s purposes or ends. One historical manifestation of this normative limitation on state power was simply to declare certain ends illegitimate. See, e.g., Lochner v. New York, 198 U.S. 45, 57, 25 S.Ct. 539, 543, 49 L.Ed. 937 (1905) (states may not restrict freedom of contract under guise of labor law). But the modern technique has been to require a “compelling” state interest reflected in laws16 that are “narrowly drawn to express only the legitimate state interests at stake.” Roe v. Wade, 410 U.S. 113, 155, 93 S.Ct. 705, 728, 35 L.Ed.2d 147 (1973); cf. Lochner, 198 U.S. at 58-59, 25 S.Ct. at 543-44 (justification based on legitimate end of protecting workers’ health was inadequate because there must be “a more direct relation, as a means to an end, ... before an act can be held to be valid which interferes with [freedom of contract]“). This normative limitation, whose requirement of a tight “fit” between means and ends was imported from the “strict scrutiny” approach of modern equal protection law,17 “is ‘strict’ in theory but usually ‘fatal’ in fact.” Bernal v. Fainter, 467 U.S. 216, 219 n. 6, 104 S.Ct. 2312, 2315 n. 6, 81 L.Ed.2d 175 (1984) (quoting Gunther, The Supreme Court, 1971 Term--Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv.L.Rev. 1, 8 (1972)).
The strands of “substantive” due process can be conceptually distinguished but they are intertwined. Every action by government must be rationally related to its end, and ends that “shock the conscience” or otherwise violate the norms “implicit in the concept of ordered liberty” are illegitimate. Even arguably legitimate state ends can be met only by means that do not impinge on certain individual rights deemed “fundamental” by the federal judiciary, and thus certain legitimate state ends cannot be reached in accordance with “the concept of ordered liberty.” Even “rationality” review is a kind of normativе limitation, albeit an uncontroversial one, since there is only good reason and no logical necessity for deriving a constitutional right to be free of bad decisions from a guarantee of good process.
b. Equal Protection of the Laws
The Equal Protection Clause “is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne, Texas v. Cleburne Living Center, 473 U.S. 432, 439, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985) (laws aimed at mentally retarded do not create a “suspect classification“; but zoning restrictions on homes for mentally retarded persons are irrational since all asserted reasons for the restrictions apply equally to non-restricted group homes). Mr. Brennan acknowledges that under the reasoning of City of Cleburne “strict” or “heightened” scrutiny is not appropriate for state discriminations based on his visual handicap; he contends, however, that faithfulness to City of Cleburne requires that we put teeth in the usually toothless examination of the rationality of the state‘s classification. He asserts that under City of Cleburne‘s less deferential standard there is no rational relationship between any legitimate state interest and the Board‘s decision to deny him a temporary training permit.
c. The Relationship Between “Substantive” Due Process and Equal Protection
In the absence of a “fundamental” right or a “suspect classification,” both Mr. Brennan‘s “substantive” due process and his equal protection claims result in some sort of rationality review. Is there any reason to distinguish further between the kind of review available under these two distinct provisions of the Fourteenth Amendment?
There are differences between the two constitutional protections. A violation of “substantive” due process, for example, occurs only when the government deprives someone of liberty or property; or, to use the current jargon, only when the government “works a deprivation” of a “constitutionally protected interest.” See Regents of University of Michigan v. Ewing, 474 U.S. at 223 & n. 8, 106 S.Ct. at 512 & n. 8 (assuming arguendo that plaintiff had a protected property interest before considering “substantive” due process claim). No such deprivation of liberty or property is required for a violation of the Equal Protection Clause. On the other hand, a violation of equal protection occurs only when the government treats someone differently than others similarly situated; if the challenged government action does not appear to classify or distinguish between two or more relevant persons or groups, then the action--even if irrational--does not deny them equal protection of the laws. See Arceneaux v. Treen, 671 F.2d 128, 137 (5th Cir.1982) (Goldberg, J., concurring) (rationality review employed by majority inappropriate; no equal protection problem at all with apparently foolish law because plaintiffs have not alleged any group that gets unequal treatment from it). Violations of “substantive” due process, on the other hand, occur when the government treats someone irrationally, even if it treats everyone that way. Cf. Exxon Corp., 437 U.S. at 124-25, 98 S.Ct. at 2213 (plaintiffs raised only “substantive” due process claims, since similarly situated persons all treated the same).
In this case the plaintiff has alleged that he has a property interest in the temporary training permit created by certain mandatory language in the statute, see
2. The Rationality of the Board‘s Actions
But first we must determine exactly what Mr. Brennan alleges to be irrational. His attack is not well-focused, but it seems to be on the Board‘s decision to deny him a training permit. He complains of the Board‘s “irrebutable presumption” that those who could not satisfy the otoscopic examination requirement were not qualified to receive the training permit. The “irrebutable presumption” doctrine was a strange hybrid of “procedural” due process and equal protection invented by the Supreme Court in the early 1970s, and laid to rest soon after. See, e.g., Vlandis v. Kline, 412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973) (applying the doctrine); Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975) (effectively overruling it); see generally Note, The Irrebutable Presumption Doctrine in the Supreme Court, 87 Harv.L.Rev. 1534 (1974). The doctrine forced the government to grant hearings to persons who claimed to have been wrongly trapped inside overinclusive classifications; the idea was that even if a person clearly fell within a legislative class, due process required that he be given the opportunity to show that he “really” (that is, according to the “true” purpose or justification for the distinction) belonged on the other side of the legislative line.
Mr. Brennan‘s focus on the Board‘s decision suffers from а confusion similar to that evident in the “irrebutable presumption” doctrine. If the Board can require all applicants without exception to perform the otoscopic examinations as a condition of licensing, then surely its denial of his application was rational--indeed, inevitable. Mr. Brennan has never contended that he can fulfill the requirement (although he has suggested alternatives). Therefore, his attack is really on the rationality of the Board‘s rule that all applicants perform 15 hours of “ear mold impressions and otoscopic examinations of the ear.”
Even under the more searching inquiry that we provisionally assume to be mandated by City of Cleburne, the Board‘s decision is rational. The otoscopic examination requirement, of course, narrows the class of those eligible for a training permit to those who can use an otoscope. The Board‘s rule is based on the generalization that candidates who can visually inspect the client‘s ear will obtain a good deal more useful information about it and will be able to provide better care to the patient in the process of fitting a hearing aid. That generalization appears to us patently true, and Mr. Brennan does not seriously contend that it is false. It may be that some persons incapable of using an otoscope or visually inspecting the client‘s ear, such as Mr. Brennan, could on the whole provide better care than other persons who can fulfill that requirement; but, of course, a gеneralization cannot be falsified by pointing to a limited set of counterexamples.
None of this is to say that Board‘s rule is wise, or that its decision to reject Mr. Brennan‘s application was sound policy. The Constitution does not give citizens the right to good government; the pursuit of that high goal has been assigned to democratic institutions, creatures highly unsuited to it and thus relatively safe to undertake it. Rather, the Constitution insures against certain forms of bad government, assigning to an oligarchic judiciary the limited task of policing these lower precincts. The Board‘s actions did not fall below constitutional minima in this case.
D. Statutory Limits on the Power of the Board: the Rehabilitation Act
Mr. Brennan maintains that the Board and its members violated his rights under
The district court rejected all of Mr. Brennan‘s official capacity claims as barred by the Eleventh Amendment. As we have discussed at length above, this ruling was correct with respect to his claim for damages,22 but incorrect with respect to his claim for equitable relief. Although the point is barely raised in the complaint and poorly briefed оn appeal, the plaintiff has said enough to preserve his equitable and individual capacity damages claims, if any, under Sec. 504.
But first, one complication: In our Court, whether a handicapped person is “otherwise qualified” appears to be a question of fact. See Region 13, 704 F.2d at 1409 (applying the Boeing Co. v. Shipman24 j.n.o.v. stаndard to a jury finding of “otherwise qualified“). Therefore, we can affirm the judgment in favor of the Board only if “reasonable men could not have differed” from the conclusion that Mr. Brennan was not “otherwise qualified.”
The Supreme Court began the difficult task of figuring out the meaning of “otherwise qualified” in the unanimous decision of Southeastern Community College v. Davis, 442 U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979). There the Court appeared to hold that Sec. 504 does not require any affirmative efforts by federal grantees: “Section 504 imposes no requirement upon an educational institution to lower or to effect substantial modifications of standards to accommodate a handicapped person.” 442 U.S. at 413, 99 S.Ct. at 2370-71. But the Court made clear that under some circumstances the grantee might have some affirmative duties:
We do not suggest that the line between a lawful refusal to extend affirmative action and illegal discrimination against handicapped persons will always be clear. It is possible to envision situations where an insistence on continuing past requirements and practices might arbitrarily deprive genuinely qualified handicapped persons of an opportunity to participate in a covered program. Technological advances can be expected to enhance opportunities to rehabilitate the handicapped or otherwise qualify them for some useful employment. Such advances also may enable attainment of these goals without imposing undue financial and administrative burdens upon a State. Thus, situations may arise where a refusal to modify an existing program might become unreasonable and discriminatory.
Davis, 442 U.S. at 412-13, 99 S.Ct. at 2370. Without exploring the possible ambiguities in this language as to the extent of the federal grantee‘s affirmative duties, our court read Davis to validаte restrictions under a standard of “meta-reasonableness“; that is, to validate reasonable restrictions; and to give “reasonable deference” to the grantee‘s own determination of the restriction‘s reasonableness:
We read this landmark case under section 504 [Davis ] to support a reasonable deference to the decisions made by administrators of federally funded programs so long as no evidence is presented of discriminatory intent with regard to the handicapped person. To repeat, “an otherwise qualified person is one who is able to meet all of a program‘s requirements in spite of his handicap.” [Davis,] 442 U.S. at 406, 99 S.Ct. at 2367 (emphasis added). This assumes, of course, that “a program‘s requirements” are reasonable. 442 U.S. at 414, 99 S.Ct. at 2371.
But the development of Sec. 504 doctrine did not stop at Region 13Alexander v. Choate, 469 U.S. 287, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985), the Supreme Court held that some sorts of restrictions with “disparate impact” could be actionable under the Rehabilitation Act without a showing of intentional discrimination; the Court resolved some of the ambiguities in Davis by elaborating on the extent of affirmative duties undеr Sec. 504:
Davis thus struck a balance between the statutory rights of the handicapped to be integrated into society and the legitimate interests of federal grantees in preserving the integrity of their programs: while a grantee need not be required to make “fundamental” or “substantial” modifications to accommodate the handicapped, it may be required to make “reasonable” ones.
The balance struck in Davis requires that an otherwise qualified individual must be provided with meaningful access to the benefit that the grantee offers. The benefit itself, of course, cannot be defined in a way that effectively denies otherwise qualified handicapped individuals the meaningful access to which they are entitled; to assure meaningful access, reasonable accommodations in the grantee‘s program or benefit may have to be made.
469 U.S. at 300, 105 S.Ct. at 720 (citation and footnotes omitted). Thus, under the standard of Alexander, the Board‘s restriction violates Sec. 504 if it denies “otherwise qualified” handicapped individuals “meaningful access“; and “to assure meaningful access, reasonable accommodations in the grantee‘s program or benefit may have to be made.” The Board need not make ” ‘fundamental’ or ‘substantial’ modifications” to its licensing requirements, but “it may be required to make ‘reasonable’ ones.”
After Alexander it is clear that the phrase “otherwise qualified” has a paradoxical quality; on the one hand, it refers to a person who has the abilities or characteristics sought by the grantee; but on the other, it cannot refer only to those already capable of meeting all the requirements--or else no reasonable requirement could ever violate Sec. 504, no matter how easy it would be to aсcommodate handicapped individuals who cannot fulfill it. This means that we can no longer take literally the assertion of Davis that “an otherwise qualified person is one who is able to meet all of a program‘s requirements in spite of his handicap.” 442 U.S. at 406, 99 S.Ct. at 2367 (emphasis added). The question after Alexander is the rather mushy one of whether some “reasonable accommodation” is available to satisfy the legitimate interests of both the grantee and the handicapped person. And since it is part of the “otherwise qualified” inquiry, our precedent requires that the “reasonable accommodation” question be decided as an issue of fact--meaning, of course, that it is one for the trial court or jury, subject to “clearly erroneous” or Boeing Co. v. Shipman review only. See Region 13, 704 F.2d at 1409.
We cannot decide the question posed by Alexander on the record before us.
The district court mistakenly threw out all of Mr. Brennan‘s
We have already determined that the Board‘s requirements are reasonable ones. On remand, it will be Mr. Brennan‘s burden to demonstrate to the court some reasonable accommodation in these requirements which meets his special needs without sacrificing the integrity of the Board‘s licensing program.26 The district court should look to relevant federal regulations for guidance. See Alexander, 469 U.S. at 304-306 & nn. 24-26, 105 S.Ct. at 722-23 & nn. 24-26. If Mr. Brennan makes that prima facie showing, the case thereafter “should be patterned after [a case under]
E. Conclusion
We hold that Mr. Brennan‘s damages claims under the
Notes
The Board shall grant a temporary training permit to fit and dispense hearing aids to any person who:
(1) pоssesses the qualifications for examination as enumerated in Section 6, Subsection (a)(1) through (5) [21 years of age, of good moral character, high school graduate or equivalent, does not have communicable disease, and not addicted to drugs or alcohol]; and
(2) submits an application in the form prescribed by the Board.
No otherwise qualified individual with handicaps ... 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....