Pushkin v. Regents Of The University Of Colorado

This is an appeal by the defendants-appellants consisting of the Regents of the University of Colorado; the University of Colorado Hospital, also known as University of Colorado Health Science Center; the University of Colorado Psychiatric Hospital; and Douglas Carter, M. D. The action was brought by Joshua R. Pushkin, M. D., the plaintiff-appellee in this court, pursuant to § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and 42 U.S.C. § 1983.

The decree in question is an injunction directing that plaintiff-appellee be admitted to the next class at the University of Colorado Psychiatric Residency Program; the judgment awarded plaintiff attorneys fees and costs. The plaintiff had sought monetary damages as well. This request has been denied and no appeal is taken from this denial.

Dr. Pushkin is a medical doctor who alleges that the University of Colorado wrongfully denied him admittance to the Psychiatric Residency Program because he suffers from multiple sclerosis. As a result of this disease Dr. Pushkin is confined to a wheelchair, and is disabled in his abilities to walk and to write. The court found that Dr. Pushkin was an otherwise qualified handicapped individual who had been excluded from a program receiving federal financial assistance solely by reason of his handicap, and that the University was in violation of § 504 of the Rehabilitation Act which provides in pertinent part:

No otherwise qualified handicapped individual in the United States as defined in § 706(6) of this Title, shall, solely by reason of his handicap, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance...

It is undisputed that the program in question is receiving federal financial assistance. The district court, 504 F.Supp. 1292, recognized this and further ruled that the statute was violated because the plaintiff was excluded from participation in or denied the benefits of or subjected to discrimination under a program receiving such funds within the meaning of the statute. The court also held that Dr. Pushkin was an otherwise qualified individual in spite of his handicap, in accord with the Supreme Court's ruling in Southeastern Community College v. Davis, 442 U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979), and thus was entitled to admittance to the program. Pursuant to the injunction, Dr. Pushkin was admitted to the residency program on July 1, 1981 and he is actually taking part in the program at the present time. We have expedited the appeal in an effort to reach an early resolution of the controversy. As already noted defendants have not disputed that Dr. Pushkin is handicapped within the meaning of the statute, that the Psychiatric Residency Program is a program or activity receiving federal financial assistance within the meaning of the statute and that defendants were acting under color of state law within the meaning of § 1983 in taking the position which they took.

Defendants appeal the trial court's ruling on three grounds. They maintain that: 1) no private cause of action exists under § 504; 2) plaintiff has failed to exhaust his administrative remedies prior to filing this lawsuit; and 3) the trial court erroneously decided the merits of the case. Each of these contentions will be taken up in this review.

DOES § 504 OF THE REHABILITATION ACT, 29 U.S.C. § 794 CREATE

A PRIVATE CAUSE OF ACTION?

The Supreme Court's decision in Southeastern Community College v. Davis, 442 U.S. 397, 404, n. 5, 99 S.Ct. 2361, 2366, n. 5, 60 L.Ed.2d 980 (1979) considered a case which arose under this identical section but did not consider the issue of a private remedy under the Act. The Court did rule on the merits of the case and the judgment of the Court of Appeals for the Fourth Circuit which had granted relief to the handicapped person was reversed by the Supreme Court. The decision was based on the "otherwise qualified" phrase in the statute. It rejected the requirement that was imposed by the court of appeals that § 504 contemplated "affirmative conduct" by the College to modify its program to accommodate the disabilities of applicants. The Supreme Court's determination was that there was no violation of the statute and the Supreme Court's unanimous decision said "in light of our disposition of this case on the merits, it is unnecessary to address these issues (including whether a private right of action was provided by the Act) and we express no views on them." 442 U.S. 405, n. 5, 99 S.Ct. 2366, n. 5.

This court in Coleman v. Darden, 595 F.2d 533 (10th Cir.), cert. denied, 444 U.S. 927, 100 S.Ct. 267, 62 L.Ed.2d 184 (1979), recognized that a private right of action may have been created by § 504. Every court of appeals and district court, and there have been many, which have considered this question have held that a private right of action exists under the statute. See, e. g., Kling v. County of Los Angeles, 633 F.2d 876 (9th Cir. 1980); Camenisch v. University of Texas, 616 F.2d 127 (5th Cir. 1980), vacated on other grounds, 451 U.S. 390, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981); Rogers v. Frito Lay, Inc., 611 F.2d 1074 (5th Cir.), cert. denied, Moon v. Roadway Express, Inc., 449 U.S. 889, 101 S.Ct. 246, 66 L.Ed.2d 115 (1980); N. A. A. C. P. v. The Medical Center, Inc., 599 F.2d 1247 (3rd Cir. 1979); Southeastern Community College v. Davis, 574 F.2d 1158 (4th Cir. 1978), rev'd. on other grounds, 442 U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979); Leary v. Crapsey, 566 F.2d 863 (2nd Cir. 1977); United Handicapped Federation v. Andre, 558 F.2d 413 (8th Cir. 1977); Kampmeier v. Nyquist, 553 F.2d 296 (2nd Cir. 1977); Lloyd v. Regional Transportation Authority, 548 F.2d 1277 (7th Cir. 1977);1 Cain v. Archdiocese of Kansas City, 508 F.Supp. 1021 (D.Kan.1981); Coleman v. Casey Cty. Bd. of Ed., 510 F.Supp. 301 (W.D.Ky.1980); Patton v. Dumpson, 498 F.Supp. 933 (S.D.N.Y.1980); Miener v. State of Missouri, 498 F.Supp. 944 (E.D.Mo.1980); Simon v. St. Louis County, Mo., 497 F.Supp. 141 (E.D.Mo.1980); Guertin v. Hackerman, 496 F.Supp. 593 (S.D.Tex.1980); Larry P. v. Riles, 495 F.Supp. 926 (N.D.Cal.1979); Poole v. South Plainfield Bd. of Ed., 490 F.Supp. 948 (D.N.J.1980); Upshur v. Love, 474 F.Supp. 332 (N.D.Cal.1979); Cruz v. Collazo, 84 F.R.D. 307 (D.Puerto Rico 1979); Boxall v. Sequoia Union High School District, 464 F.Supp. 1104 (N.D.Cal.1979); Howard S. v. Friendswood Independent School District, 454 F.Supp. 634 (S.D.Tex.1978); Davis v. Bucher, 451 F.Supp. 791 (E.D.Pa.1978); Michigan Paralyzed Veterans of America v. Coleman, 451 F.Supp. 7 (E.D.Mich.1977); Halderman v. Pennhurst State School and Hospital, 446 F.Supp. 1295 (E.D.Pa.1977), aff'd. in part, rev'd. in part, 612 F.2d 84 (3rd Cir. 1979), rev'd. on other grounds, --- U.S. ----, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981); Crawford v. Univ. of North Carolina, 440 F.Supp. 1047 (M.D.N.C.1977); Barnes v. Converse College, 436 F.Supp. 635 (D.S.C.1977).2 It is noteworthy that the Supreme Court in Campbell v. Kruse, et al, 434 U.S. 808, 98 S.Ct. 38, 54 L.Ed.2d 65 (1977) suggested that a private right of action does exist under § 504 when it remanded the case to the district court to determine whether handicapped children were being discriminated against by the application of the tuition grant system in question under § 504 rather than under the Fourteenth Amendment equal protection principles.

Such a finding is fully supported by the legislative history of § 504 which provides as follows:

This approach to implementation of section 504, which closely follows the models of the above-cited anti-discrimination provisions (§ 601 of the Civil Rights Act of 1964, 42 U.S.C. 2000d-1, relating to race, color or national origin; § 901 of the Education Amendments of 1972, 42 U.S.C. 1683, relating to sex) would ensure administrative due process (right to hearing, right to review), provide for administrative consistency within the federal government as well as relative ease of implementation, and permit a judicial remedy through a private action.

S.Rep.No. 93-1297, 93 Cong. 2d Sess. 39-40, reprinted in 4 U.S.Code Cong. and Admin.News, pp. 6373, 6391 (1974) (emphasis supplied).

The Supreme Court's opinion in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975) contains a test for determining whether a private right of action may be implied in a statute which does not expressly provide for such a right. That test requires that the following questions be answered:

First, is the plaintiff 'one of the class for whose especial benefit the statute was enacted' that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the states, so that it would be inappropriate to infer a cause of action based solely on federal law?

Id. at 78, 95 S.Ct. at 2088 (citations omitted). We agree with the above cited decisions that the requirements of the Cort test are fully satisfied when considered in relation to § 504.

The defendants-appellants rely on Pennhurst State School and Hospital v. Halderman, --- U.S. ----, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981), for the proposition that no private right of action should be found to exist in § 504 actions. But in that case the Supreme Court considered a different Act, § 6010 of the Developmentally Disabled Assistance and Bill of Rights Act, 42 U.S.C. § 6001, et seq., (the "Assistance Act"). This provision was determined to not create a private right of action. Section 6010 was found to have been enacted solely pursuant to the spending power of Congress and not pursuant to Congress' power under § 5 of the Fourteenth Amendment. The opinion stated that the remedy for state non-compliance with federally imposed conditions in legislation enacted pursuant to the spending power is action by the federal government to terminate funds to the state, and not action by private citizens. The Court interpreted § 6010, which provides that persons with developmental disabilities have a right to appropriate treatment, services and rehabilitation appropriate to their needs, but did not suggest that compliance with that section was a condition for the recipient of federal funding under the Act. An additional observation was that the explicit purpose of § 6010 was to assist the states, through the use of federal grants, to improve the care and treatment of the mentally disabled, and not to require the states to fund new, substantive rights. The Court stated that the "provisions of § 6010 were intended to be hortatory, not mandatory." 101 S.Ct. at 1543. Therefore, the Court declined to imply a private cause of action under § 6010 of the Assistance Act.

Pennhurst is not applicable to the present issue concerning § 504 of the Rehabilitation Act inasmuch as the history of § 504 expressly indicates that the anti-discrimination provision of the statute is a mandatory prohibition against discrimination on the basis of handicap. The report of the Senate Labor and Public Welfare Committee which is within the legislative history of the Rehabilitation Act Amendment of 1974 states that "section 504 is intended to include a requirement of affirmative action as well as a prohibition against discrimination." 4 U.S.Code Cong. and Admin.News, p. 6390 (1974). The report further states:

Section 504 was patterned after and is almost identical to the anti-discrimination language of section 601 of the Civil Rights Act of 1964, 42 U.S.C. 2000d-1 (relating to race, color, or national origin), and section 901 of the Education Amendments of 1972, 42 U.S.C. 1683 (relating to sex). The section therefore constitutes the establishment of a broad government policy that programs receiving Federal financial assistance shall be operated without discrimination on the basis of handicap. It does not specifically require the issuance of regulations or expressly provide for enforcement procedures, but it is clearly mandatory in form, and such regulations and enforcement are intended.

Id. (emphasis supplied).

In addition the report states that sanctions for non-compliance with the Act "would include, where appropriate, the termination of federal financial assistance to the recipient or other means authorized by law." Id. (emphasis supplied). As previously noted the report expressly states that § 504 "permit(s) a judicial remedy through a private action."

In Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979) the Supreme Court ruled that since Title IX of the Civil Rights Act was patterned after Title VI of that Act, and Title VI creates an implied private right of action for discrimination, Title IX should also be read to imply a private right of action. This reasoning applies with reference to § 504 of the Rehabilitation Act, which was also patterned after Title VI of the Civil Rights Act. Section 601 of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, and Section 901(a) of Title IX of the Education Amendments of 1972, §§ 901-903, are virtually the same as § 504 of the Rehabilitation Act, 29 U.S.C. § 794. Section 601 is framed the same way except that it refers to race, color or national origin. Section 901(a) has the same qualities, although it refers to discrimination based on sex as its object whereas in § 504 the reference is to otherwise qualified handicapped individuals. In Cannon, the Supreme Court expressly rejected the court of appeals' reasoning that since § 902 of Title IX established a procedure for the termination of federal financial support for institutions violating § 901, that Congress intended that remedy to be the exclusive means of enforcing the statute. The Court recognized that Title IX and Title VI sought to accomplish two purposes: "to avoid the use of federal resources to support discriminatory practices," and "to provide individual citizens effective protection against those practices." 441 U.S. at 704, 99 S.Ct. at 1961. The Court held that a private right of action was necessary to promote the second of those purposes. For the same reasons, § 504, expressly based on and modeled after Title VI of the Civil Rights Act and Title IX of the Education Amendment, must also be read to imply a private right of action if individual handicapped persons are to have effective protection against prohibited discriminatory practices. Moreover, the Court in Cannon rejected the defendant's argument that a private cause of action should not be implied when the result would be "to subject admissions decisions of universities to judicial scrutiny at the behest of disappointed applicants on a case by case basis." Id. at 709, 99 S.Ct. at 1964.

If one compares Cannon with Pennhurst, it becomes apparent that the Cannon principles apply with regard to § 504, while the principles of Pennhurst do not. Section 504 of the Rehabilitation Act, Title VI of the Civil Rights Act, and Title IX of the Education Amendments were all created to provide mandatory substantive rights to private citizens subject to discrimination on the basis of race, color, national origin, sex or handicap. In order to enforce those rights Congress has prohibited the use of federal resources to support discriminatory practices, and has provided individual citizens with private remedies to overcome the discrimination. Unlike § 6010 of the Assistance Act, § 504 of the Rehabilitation Act was not enacted merely to assist the states in implementing policies to prevent discrimination generally, but to mandatorily prohibit discrimination on the basis of handicap. Under § 504 of the Rehabilitation Act, as well as under Title VI of the Civil Rights Act and Title IX of the Education Amendments, compliance with the non-discrimination mandate is a condition to federal funding. This makes some difference. These statutes create substantive rights in the classes of persons they are geared to protect. Such a class has enough interest to justify an action on its behalf.

But the above is not all. The explicit language evidencing congressional intent that § 504 created a private right of action indicates that such a cause is to be implied under § 504 on the basis of a clear congressional intent, as well as on the basis of the factors which are set forth in Cort and Cannon.

Justice Powell, in his dissenting opinion in Cannon, raised a question as to the validity of following the four pronged test of Cort v. Ash when determining whether a private right of action exists under every federal statute. Justice Powell was concerned that the Cort analysis has been used to deflect the inquiry away from the intent of Congress. With regard to § 504, however, such is not the case. Implying a private right of action under § 504 is fully in accord with the express congressional intent in enacting § 504.

The trial court ruled that it had jurisdiction to hear this claim under Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980), since the action was brought pursuant to § 504 and 42 U.S.C. § 1983. It found that under Thiboutot, § 1983 gives a cause of action for violation of federal rights under both the Constitution and federal statutes. The defendants disagree on the ground that in order for a § 1983 claim to be predicated upon an alleged violation of a statute, that statute must confer a federal substantive right upon the plaintiff. Defendants contend that § 504 merely provides a remedial right, and not a substantive right. This issue need not be decided, however, in view of our conclusion that § 504 provides an individual remedy. We hold that a private right of action does exist under § 504 of the Rehabilitation Act.

IS IT NECESSARY FOR THE PLAINTIFF IN THIS CAUSE TO EXHAUST

OTHER REMEDIES?

The remedy to which the defendants refer is that contained in regulations promulgated by the Department of Health and Human Services (HHS, formerly the Department of Health, Education and Welfare), 45 C.F.R. § 84, et seq. Under those regulations HHS may require the recipient of federal funding to take such remedial action as HHS deems necessary to overcome the effects of unlawful discrimination. 45 C.F.R. § 84.6(a)(1) and (2). Pursuant to § 84.6(a)(3), HHS may take such action with regard to handicapped persons who would have been able to participate in the program in question but for the discrimination of the recipient of federal assistance. It is the position of defendants-appellants that plaintiff was required to pursue the above mentioned remedies prior to initiating this lawsuit. We disagree. In the first place it is not within the plaintiff's power to pursue the remedy since it is a public one and not a private remedy.

29 U.S.C. § 794a(a)(2) provides that the procedures set forth for enforcement of Title VI of the 1964 Civil Rights Act, 42 U.S.C. § 2000d et seq. shall be available for enforcement of the Rehabilitation Act. Under 42 U.S.C. § 2000d-1, an administrative examination of the practices of a recipient of federal assistance may lead to a suspension or termination of the federal assistance; such relief, however, does not include or encompass equitable relief for the affected individual. Similarly, under 45 C.F.R. § 84, et seq., the regulations permitting HHS termination of federal funding do not provide a means by which an individual can obtain personal redress for a violation of § 504. See, Whitaker v. Board of Education, 461 F.Supp. 99 (E.D.N.Y.1978). This would be an empty remedy indeed for the plaintiff herein who was seeking to continue his residency program. In other words he would make no progress in this endeavor by seeking to compel the cutting off of funds generally to the university.

In Camenisch v. University of Texas, supra, the Fifth Circuit discussed the exhaustion question at some length. That court based its decision that exhaustion was not required under § 504 on Cannon v. University of Chicago, supra, wherein the Supreme Court upheld the right to a private cause of action under Title IX of the Rehabilitation Amendments without resort to administrative mechanisms. Inasmuch as the same administrative and enforcement procedures are to be followed with respect to both Title IX and § 504 (45 C.F.R. § 84.61 and § 86.71 (1979)), the Fifth Circuit has held that private suits to enforce a cause of action under § 504 should also be allowed without resort to these administrative procedures. The Fifth Circuit stated:

In Cannon, the Supreme Court said that the complaint procedures adopted by HEW did not allow the complainant to participate in the administrative investigation or subsequent enforcement proceedings. If a violation was found, a resulting compliance agreement might not include relief for the complainant. Furthermore, the Court found that the ultimate remedy, a complete cut-off of federal funds to the institution was an inappropriate result for an individual complainant. 99 S.Ct. at 1962-63, n.41.

616 F.2d at 135. The Fifth Circuit ruled that the same conclusion should be reached under § 504 as was reached under Title IX. The Fifth Circuit stated that the administrative remedy that emerges from a hearing process is not designed to aid such petitioners at all and that such a decision terminating funding of a violating recipient would work to the disadvantage of a complainant since such a cut-off could guarantee that no further services accrue to the complaining party. The court went on to say that there existed no specific vindication of personal rights within the HEW administrative procedure which would operate for the benefit of the complaining party. The court added that the appellees had filed an affidavit of the Director of the Division of Policy and Procedure in the Office of Civil Rights in HEW, which said that it is an OCR policy that § 504 complainants should be allowed to file civil actions in the federal courts without exhausting either the grievance procedures established by a recipient or HEW's own complaint procedure. The court stated that "it makes good sense and was the congressional intent that § 504 rights be protected by grant termination through the administrative process or by private suits to eliminate the proscribed discrimination." 616 F.2d at 136.

Kling v. County of Los Angeles, supra, 633 F.2d at 879, is a case in which the Ninth Circuit relied on Cannon in reaching the same result. See also, Swan v. Stoneman, 635 F.2d 97 (2nd Cir. 1980); Cain v. Archdiocese of Kansas City, Kansas, 508 F.Supp. 1021 (D.Kan.1981); Larry P. v. Riles, 495 F.Supp. 926 (N.D.Cal.1979); Sherry v. N. Y. State Ed. Dept., 479 F.Supp. 1328 (W.D.N.Y.1979); Cruz v. Collazo, 84 F.R.D. 307 (D.Puerto Rico 1979). Without question Cannon is dispositive of this issue. We hold that under § 504 of the Rehabilitation Act the plaintiff is not compelled to pursue a remedy which is irrelevant to his particular need.

One additional factor should be mentioned, however, and that is that § 1983 has also been cited as a basis for the lawsuit. Regardless of the reach of Maine v. Thiboutot, supra, actions pursuant to § 1983 are definitely recognized under statutes conferring substantive rights. It is plain that § 504 does confer substantive rights upon handicapped people in that Congress contemplated a private right of action to enforce mandatory anti-discriminatory provisions. Thus, under any reading of Thiboutot, plaintiff's cause of action is properly based on § 1983 and no requirement exists that administrative remedies be exhausted prior to court action under § 1983. Under both § 504 and § 1983, then, plaintiff is not required to exhaust remedies as a prerequisite to filing this suit.

SUMMARY OF THE TRIAL COURT'S FINDINGS.

The memorandum opinion of the trial court included far reaching and extensive findings of fact. The essence of the court's ruling was that the judge had weighed all of the defendants' allegations at trial that Dr. Pushkin was not qualified for the program apart from his handicap and found that the evidence intended to show that the plaintiff was rejected as being unqualified due to his handicap was more persuasive. The testimony of the University's own witnesses was conflicting, and the after the fact allegations given at trial that Dr. Pushkin was not of the caliber of applicants usually interviewed for the residency program are not supported by the record, including the interviewers' reports. Also they are contrary to comments made by the Chairman, Dr. Carter, to both Dr. and Mrs. Pushkin concerning the reasons for Dr. Pushkin's rejection, which emphasized the fact of the handicap. The trial court specifically noted:

What is clear, however, is that when informing Dr. Pushkin of his rejection, Dr. Carter discussed the rejection only in terms of the handicap and gave no other reason; that when subsequently discussing the rejection with Dr. Pushkin's wife Dr. Carter again explained the decision only in terms of Dr. Pushkin's handicap; and that the interviewers' reports document assumptions of inability based upon the handicap.

The trial court further stated that its conclusions that the reason for plaintiff's exclusion from the program was his handicap were based on:

The interview sheets which refer to assumed disabilities occasioned by his multiple sclerosis ... and additional testimony which shows after the fact articulation of concern about his alleged emotional instability which was not manifested in the interview sheets or in Dr. Carter's conversations with Dr. and Mrs. Pushkin.

The trial court weighed the credibility of the conflicting evidence and rejected the after the fact testimony that Dr. Pushkin was not qualified for the program apart from his handicap. This evidence of non-qualification came to the surface, of course, after the interviews. The record supports the findings that the trial court made that the reason for rejecting Dr. Pushkin was entirely his affliction. Having found that Dr. Pushkin was rejected from the residency program on the basis that his multiple sclerosis would preclude him from performing well in the duties of the program, the trial court applied the proper test in determining whether defendants' articulated reasons for finding Dr. Pushkin unqualified in spite of his handicap were legitimate, or whether those reasons were based upon incorrect assumptions or inadequate factual grounds. In any event, after weighing all of the evidence the trial court held that the latter was applicable, that is that the reasons were based on incorrect assumptions or inadequate factual grounds. Since the decision so reached is supported by the record, this court is not at liberty to reach an independent factual conclusion and determine otherwise. We do however consider further the applicable test or standard.

WHAT IS THE PROPER STANDARD OF REVIEW?

It is contended by the defendants-appellants that their decision not to admit Dr. Pushkin to the residency program must be reviewed under equal protection standards, and necessarily must be affirmed under the rational basis test. Principally, the University contends that in cases not involving a suspect class, fundamental rights, an irrebuttable presumption, or a federal statute establishing different legal standards than that enunciated by a public body, judicial deference to administrative decision, especially academic decisions relating to admissions criteria, must be followed whenever the decision of the public body is rationally related to legitimate governmental needs. In other words they say that the rational basis test of equal protection must be applied when considering § 504.4 The rational basis test is not applicable where there is an alleged violation of a statute, § 504, which prohibits discrimination on the basis of handicap. That statute by its very terms does not provide that a recipient of federal financial assistance may act in an unreasonable manner to promote legitimate government means, even if discrimination should be the result. Rather, the statute provides that a recipient of federal financial assistance may not discriminate on the basis of handicap, regardless of whether there is a rational basis for so discriminating. The inquiry has to be on whether the University has, in fact, discriminated on the basis of handicap. The mere fact that the University acted in a rational manner is no defense to an act of discrimination. Thus, while application of the rational basis test may be used to lend credence to the proposition that no discriminatory action has been taken, a finding of rational behavior on the part of the University is only the start of our search to determine whether the mandate of § 504 has been followed.

The Supreme Court apparently considered the issue of whether the analysis should be under the equal protection clause or whether it should be a cause arising under § 504 in Campbell v. Kruse, supra. In that appeal from the District Court for the Eastern District of Virginia the judgment was vacated and the case was remanded to the United States District Court for the Eastern District of Virginia with directions to decide the claim based on the federal statute, § 504 of the Rehabilitation Act of 1973. In Kruse the plaintiffs had brought an action pursuant to the Rehabilitation Act of 1973, 29 U.S.C. § 794, the Socia