United States Department of Transportation v. Paralyzed Veterans of America

Justice Marshall,

with whom Justice Brennan and Justice Blackmun join, dissenting.

The Court starts from the proposition that no federal funds under the Airport and Airway Improvement Act of 1982, 49 U. S. C. App. §2201 et seq., are disbursed directly to com*614mercial airlines. It infers that commercial airlines therefore do not “receive” federal financial assistance. And it concludes that § 504 of the Rehabilitation Act of 1973 is therefore wholly inapplicable to those airlines. That reasoning mis-perceives the proper inquiry under § 504.

Section 504 provides that “[n]o otherwise qualified handicapped individual. . . 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 or under any program or activity conducted by any Executive agency....” 29 U. S. C. §794. The appropriate question is thus not whether commercial airlines “receive” federal financial assistance. Rather, it is whether commercial airlines are in a position to “exclud[e handicapped persons] from the participation in, . . . den[y them] the benefits of, or . . . subjec[t them] to discrimination under” a program or activity receiving federal financial assistance or conducted by an Executive agency. I believe that they are, and I therefore dissent.

HH

The Court begins its analysis at the proper place: the underlying grant statute. See Note, 83 Colum. L. Rev. 1210, 1227-1232 (1983). The Airport and Airway Improvement Act of 1982 (Act), which replaced the Airport and Airway Development Act of 1970, Pub. L. 91-258, 84 Stat. 219 et seq., is designed to ensure “the safe operation of the airport and airway system” and to ensure that system’s more effective management and utilization. 49 U. S. C. App. §§ 2201(a)(1), (2). To that end, the Act authorizes the Secretary of Transportation to make grants to owners of public-use airports and to certain governmental units for airport development and airport planning. § § 2204(a), 2208(a). It provides for certain other disbursements to airport owners and to States for the same purposes. §§2206, 2207. It authorizes the Secretary to expend other funds for the purposes of acquiring, estab*615lishing, and improving air navigation facilities, § 2205(a), and operating and maintaining those facilities, § 2205(c), for associated research and demonstration projects, § 2205(b), and for certain weather reporting services, § 2205(d). The Act finally directs the Secretary to fund the Explosive Detection K-9 Team Training Program for the purpose of detecting explosives at airports and aboard aircraft. § 2225.

The majority never explains the scope of the “program or activity receiving Federal financial assistance or . . . conducted by any Executive agency” that it believes the Act creates. In light of the Court’s treatment of the “program or activity” issue in Grove City College v. Bell, 465 U. S. 555 (1984), I believe that the Act is most naturally viewed as creating “programs” or “activities” relating to the construction and maintenance of safe and efficient airports, and the creation of safe airways. That, however, is not the end of the inquiry.

The next question is whether the Department of Transportation (DOT) has jurisdiction under § 504 to regulate commercial airlines in order to ensure that handicapped individuals are not “excluded from the participation in, . . . denied the benefits of, or . . . subjected to discrimination under” those programs or activities.1 In my view, the nature of airline transportation demands that DOT have such authority. If commercial airline companies barred the handicapped from traveling on their airlines at all, then that conduct would deny the handicapped the benefits of federally funded and conducted programs and activities relating to the airport and airway system. When commercial airlines allow the handicapped to travel on airlines, but, unreasonably and solely be*616cause of their handicap, force them to do so under conditions not substantially equal to those enjoyed by persons who are not handicapped, I believe that there too the airlines dis-criminatorily deny the handicapped the benefits of federally funded programs or activities supporting the airport and airway system.

This result derives from the fact that commercial airlines are in a unique position to deny public access to federally funded airport and airway services. It is true, as the Court points out, that the airport and airway system benefits a wide variety of persons and entities, including some who never fly. See ante, at 608-610. At the same time, however, a critical and obvious benefit of the airport and airway system, for members of the general public, is that it allows them to purchase tickets on airlines and to travel from city to city. The vast majority of members of the general public can enjoy that benefit only to the extent allowed, and under conditions set, by commercial airlines. Commercial airlines thus necessarily act as gatekeepers controlling who shall enjoy, and under what conditions, important benefits under federally funded and conducted programs. The airlines’ position, as a result, is quite different from that of the trucking firms and delivery services referred to by the majority, ante, at 611.2

The Civil Aeronautics Board (CAB), in promulgating the rules at issue in this case, apparently relied on an understanding that § 504 gave it no authority whatsoever to regu*617late the activities of commercial airlines not receiving direct subsidies under §§406 or 419 of the Federal Aviation Act, 49 U. S. C. App. §§ 1376, 1389 (1982 ed. and Supp. II). See App. 88a-89a. For the reasons stated above, I believe that that conclusion was in error. I therefore agree with the Court of Appeals that the regulations should be remanded to DOT to be reconsidered in the light of a proper understanding of the agency’s authority under § 504.

II

Were this case to be remanded, it would be appropriate for DOT to proceed upon an additional premise not available to the CAB in its original rulemaking proceeding: that DOT has power, through regulation of airport operators, to ensure that commercial airlines do not discriminatorily deprive handicapped persons of the benefits of federal programs supporting the airport and airway system.3 In order to serve an airport, an air carrier must enter into a lease with the airport operator for the use of airport facilities. DOT has power to direct each federally assisted airport, as part of that lease, to secure from all air carriers serving the airport an assurance of compliance with regulatory standards for service to handicapped persons.4

*618Such a requirement would be a proper exercise of authority under § 504. For the reasons stated above, discrimination by commercial airlines against handicapped persons deprives those persons of equal access to the benefits provided by federally supported airport and airway programs. An airport can properly be considered in violation of § 504 when, through its contractual agreement with the airlines, it perpetuates discrimination against handicapped persons giving those persons unequal access to those programs. See 49 CFR § 27.7 (1985).

I — H HH hH

This case raises important and difficult issues regarding the extent of federal regulatory authority over entities, not themselves direct recipients of federal financial assistance, that nonetheless, in important respects, control the terms of public access to the benefits of such assistance. The majority ignores these issues because it believes that the single question whether commercial airlines are direct “recipients” of federal financial assistance disposes of this case. Because I find the matter more complicated than that, I dissent.

The original rulemaking proceedings in this ease were undertaken by the Civil Aeronautics Board (CAB). As the Court explains, ante, at 600, n. 3, however, the relevant functions of the CAB were transferred to DOT under the Civil Aeronautics Board Sunset Act of 1984, Pub. L. 98-443, 98 Stat. 1703 et seq. See also Paralyzed Veterans of America v. CAB, 243 U. S. App. D. C. 237, 267, 752 F. 2d 694, 724 (1985).

The majority ignores this aspect of the question presented by the parties by relying unwaveringly on the fact that, as a general matter, no federal funds are disbursed directly to commercial airlines. The Court, however, has never held that fact dispositive. In Grove City College v. Bell, 465 U. S. 555 (1984), indeed, on which the majority heavily relies, the federal funds triggering Title IX coverage were not disbursed to Grove City College at all, but to some of its students. We nonetheless found part of the college subject to Title IX. Cf. Frazier v. Board of Trustees of Northwest Mississippi Regional Medical Center, 765 F. 2d 1278, 1290 (CA5 1985).

At the time of the original rulemaking proceeding, the involved federal agencies had apparently agreed that regulation of airlines would be in the hands of the CAB, but that regulation of airport operators would be left to DOT. See 44 Fed. Reg. 31451 (1979). DOT, in fact, postponed its inquiry into whether it should require airport operators, “through their leasing agreements with the airlines,” to require the airlines to provide service to the handicapped on a nondiseriminatory basis, because the CAB was considering imposing such regulation on the airlines directly. Ibid. At present, DOT exercises jurisdiction over both airlines and airport operators.

DOT officials, at least in the past, have shared this view. See Review of Airline Deregulation and Sunset of the Civil Aeronautics Board (Legislative Proposals Relating to Airline Deregulation and CAB Sunset): Hearings before the Subcommittee on Aviation of the House Committee on Public Works and Transportation, 98th Cong., 2d Sess., 16 (1984) (statement of James Burnley, Deputy Secretary of Transportation) (“I don’t *618think there is any question that we would have the authority to require a federally assisted airport in its contracts with carriers, who are given the right to use the facilities at those airports, that they provide that there will be no discrimination against the handicapped”); see also 44 Fed. Reg. 31451 (1979).