The Attorney General of Texas
October 13, 1983
JIM MATTOX
Attorney General
Supreme Court Building
P. 0. Box 12546
Mr. Victor H. Galloway, Ed.D. Opinion No. .JM-78
Austin. TX. 7671% 2546 Executive Director
51214752501 Texas School for the Deaf Re: Construction of section
Telex 9101674.1367 1102 South Congress Avenue 5(a) of article 6687b, V.T.C.S.
Telecopier 5121475.0266 78764
Austin, Texas
714 Jackson. Suite 700 Dear Mr. Galloway:
Dallas, TX. 752084506
2141742.6944 Section 5(a) of article 6687b, V.T.C.S., provides in part as
follows:
4024 Alberta Ave.. Suite 160
El Paso, TX. 799052793 It shall be unlawful for any person to be employed
9151533.3464 to drive a motor vehicle while in use as a school
bus for the transportation of pupils who has not
undergone a physical examination which reveals his
- A01 Texas, Suite 700
wston. TX. 77002~3111
physical and mental capabilities to safely operate
I 1312236666
a school bus. Such physical examinations shall be
conducted annually for each driver,
thereafter. . . . Such physical and driver's
606 Broadway, Suite 312 license examinations shall meet the criteria set
Lubbock, TX. 79401.3479
forth in this Act. (Emphasis added).
606/747-5236
The Texas Education Agency (hereinafter TEA) and the Department
4309 N. Tenth. Suite B of Public Safety (hereinafter DPS) have adopted various standards for
McAllen. TX. 76501-1665 determining whether prospective school bus drivers are physically
5121662.4547
capable of safely operating a school bus. One standard requires a
minimum hearing ability and permits the use of a hearing aid to attain
200 Main Plaza, Suite 400 that ability. An applicant is considered to have a hearing impairment
San Antonio, TX. 76205.2797 if
512/225-4191
[alpplicant's hearing is not a minimum of lo/15 by
An Equal Opportunity/
whispered voice. Hearing aid is permissible.
Affirmative Action Employer
You have challenged the legality of this standard. Your argument
appears to be that it violates section 504 of the Rehabilitation Act
of 1973. This section states in part:
No otherwise qualified handicapped individual in
the United States. . . 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. . . .
p. 328
Mr. Victor H. Galloway - Page 2 (JM-78)
29 U.S.C. 9794. It is not clear from your letter whether your
argument is that section 504 prohibits TEA and DPS from disqualifying
3 prospective school bus driver solely because he is hearing
impaired, or whether it is that this particular standard is illegal.
As we shall show, however, the former argument is untenable, and the
latter cannot be conclusively answered in the opinion process.
Before exploring the issue of whether this standard comports with
section 504, we must consider whether TEA and DPS were authorized to
promulgate it. The portion of section 5(a) of article 6687b that we
reprinted above is relevant in this inquiry. Section 4 of the same
article also provides that DPS shall not issue a license, inter alia:
a. To any person when in the opinion of the
Department such person is afflicted with or
suffering from such physical or mental disability
or disease as will serve to prevent such person
from exercising reasonable and ordinary control
over a motor vehicle while operating the same upon
the highways. . . provided, however, no person
shall be refused a license because of any physical
defect unless it be shown by common experience
that such defect incapacitates him from safely
operating a motor vehicle.
Section 10 of article 6687b provides that DPS:
shall examine every applicant for an operator's,
commercial operator's, or chauffeur's license,
except as otherwise provided in this Section.
Such examination. . . shall include [certain
tests] and such further physical and -written
examination as the Department finds necessary to
determine the applicant's fitness to operate a
motor vehicle safely upon the highways. . . .
(Emphasis added).
Section 11.12 of the Education Code provides in part:
The Central Education Agency and the State
Board of Control, by and with the advice of the
director of the Department of Public Safety, shall
have joint and complete responsibility to adopt
and enforce regulations governing the. . .
operation of all school buses for the
transportation of school children. . . .
Finally, section 21.171 of the Education Code provides that:
The boards of trustees of all school districts
providing transportation for pupils and all
p. 329
, .
Mr. Victor H. Galloway - Page 3 (~~-78)
-.
drivers used in that service shall abide by any
and all regulations pertaining thereto which may
be promulgated by the State Department of
Education as authorized in Section 11.12 of this
code.
In our opinion, these statutes authorize TEA and DPS to
promulgate reasonable standards in addition to those set forth in
article 6687b for determining whether an individual is physically
capable of safely operating a school bus. These agencies may also
conclude that, to be deemed capable of operating a bus, a prospective
school bus driver must be able to hear at a certain minimum level.
Thus, we conclude that the requirement in question is not invalid for
the reason that TEA and DPS lacked statutory authority to promulgate
it. We do not address the question of whether its adoption was
procedurally correct. The next question is whether the requirement
violates section 504.
The first case in which the United States Supreme Court dealt
with section 504 was Southeastern Community College v. Davis, 442 U.S.
397 (1979). In that case, a woman who suffered from a serious hearing
disability and who sought to be trained as a registered nurse was
-
denied admission to the nursing program of Southeastern Community
College, a state institution that received federal funds. An
audiologist's report indicated that even with a hearing aid, the woman
could not understand speech directed to her except through lipreading.
The college rejected her application for admission because it
concluded that her hearing disability would make it impossible for her
to safely participate in the normal clinical training program or
provide safe care for patients.
After being rejected, the woman filed suit in federal court
alleging that the college had discriminated against her in violation
of federal law. The lower court disagreed, concluding that she was
not an "otherwise qualified handicapped individual" protected by
section 504 and that the decision to reject her was not discriminatory
within the meaning of that section. 424 F. s~pp. 1341, 345 (E.D.N.c.
1976). The court of appeals, however, reversed, holding that the
college had to consider the woman's application for admission without
regard to her hearing ability, and that in determining whether she was
"otherwise qualified," the college had to confine its inquiry to her
academic and technical qualifications. 574 F.2d 1158, 1161 (4th Cir.
1978).
A unanimous Supreme Court reversed the court of appeals. In its
opinion, the court made several pertinent observations regarding
section 504:
Section 504 by its terms does not compel
-c educational institutions to disregard the
disabilities of handicapped individuals or to make
p. 330
Mr. Victor H. Galloway - Page 4 (JM-78)
substantial modifications in their programs to
allow disabled persons to participate. Instead,
it requires only that an 'otherwise qualified
handicapped individual' not be excluded from
participation in a federally funded program
'solely by reason of his handicap,' indicating
only that mere possession of a handicap is not a
permissible ground for assuming an inability to
function in a particular context.
The court below, however, believed that the
'otherwise qualified' persons protected by
[section] 504 include those who would be able to
meet the requirements of a particular program in
every respect except as to limitations imposed by
their handicap. See 574 F.2d, at 1160. Taken
literally, this holding would prevent an
taking
institution from account an
limitation resulting from the handicap, however
disabling. It assumes, in effect, that a person
need not meet legitimate physical requirements in
order to be 'otherwise qualified.' We think the
understanding of the District Court is closer to
the plain meaning of the statutory language. An
otherwise qualified person is one tiho is dnie G
meet all of a program's requirements in spite of
his handicap. (Emphasis added).
442 U.S. at 405-06. With respect to the regulations promulgated by
.~ __ .
the Department of Health, Education and Welfare to Interpret section
504, see, e.g., 45 C.F.R. 5084.3-84.99, the court stated that:
A further note emphasizes that legitimate physical
qualifications may be essential to participation
in particular programs. We think it clear,
therefore, that HEW interprets the 'other'
qualifications which a handicapped person may be
required to meet as including necessary physical
qualification. (Emphasis added).
442 U.S. at 407. The court concluded that the college legally
rejected the applicant. It found that she was not an "otherwise
qualified handicapped individual" because she could not "meet all of
[the college's] requirements in spite of [her] handicap." 442 U.S. at
406.
Given its reasoning in the Davis case, we think that it is
abundantly clear that the Supreme Court would reject any argument that
section 504 absolutely prohibits TEA and DPS from requiring that
prospective school bus drivers be able to demonstrate some particular
level of hearing competency. The safety of children beingtransported
p. 331
Mr. Victor H. Galloway - Page 5 (JM-78)
c-4
in a school bus could be jeopardized if the hearing of the driver of
that bus were impaired to such an extent that he could not hear
automobile horns, sirens, the voices of the children themselves, etc.
We therefore conclude that the standard in question does not, as a
matter of law, violate section 504. In this connection, we note that
this standard is, in certain respects, less onerous than the
regulation that was upheld in Strathie v. Department of Transportation
of the Commonwealth of Pennsylvania, 547 F.Supp. 1367 (E.D.Pa. 1982).
There, the court rejected a challenge brought under the equal
protection clause of the Fourteenth Amendment, section 1983 of the
1871 Civil Rights Act (42 U.S.C. §1983), section 504 of the
Rehabilitation Act of 1973, and various state statutes, against a
regulation that prohibited persons needing and wearing hearing aids
from being licensed as school bus drivers, even if, with the use of
the hearing aid, the person's hearing would be considered normal.
We emphasize, however, that we hold only that the standard in
question does not, as a matter of law, violate section 504. To
resolve completely the question of whether it comports fully with this
section or with other applicable laws such as section 4(8) and 5(a) of
article 6687b. we would have to resolve numerous questions of fact
concerning its reasonableness, the need for it, etc. We cannot
undertake such a task in the opinion process. We also emphasize that
-- if this standard were to be found valid, it would be legally
impermissible to discriminate against a prospective bus driver who
satisfies the standard as well as other applicable legal requirements.
SUMMARY
A standard promulgated by the Texas Education
Agency and the Department of Public Safety which
requires that prospective school bus drivers be
able to demonstrate a reasonable level of hearing
competency does not, as a matter of law, violate
section 504 of the Rehabilitation Act of 1973.1
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
- -, Prepared by Jon Bible
Assistant Attorney General
p. 332
Mr. Victor H. Galloway - Page 6 (JM-78)
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
David Brooks
Rick Gilpin
Jim Moellinger
Nancy Sutton
p. 333