Excerpts From Ruling in School Board of Nassau Co. v. Arline

March 11, 1987 11 min read

The following are exerpts from the U.S. Supreme Court’s majority and dissenting opinions last week in School Board of Nassau County, Fla. v. Arline.

JUSTICE BRENNAN delivered the opinion of the Court.

Section 504 of the Rehabilitation Act of 1973 prohibits a federally funded state program from discriminating against a handicapped individual solely by reason of his or her handicap. This case presents the questions whether a person afflicted with tuberculosis, a contagious disease, may be considered a “handicapped individual’’ within the meaning of 504 of the Act, and, if so, whether such an individual is “otherwise qualified’’ to teach elementary school.


From 1966 until 1979, respondent Gene Arline taught elementary school in Nassau County, Fla. She was discharged in 1979 after suffering a third relapse of tuberculosis within two years. After she was denied relief in state adminstrative proceedings, she brought suit in federal court, alleging that the school board’s decision to dismiss her because of her tuberculosis violated 504 of the Act.


In enacting and amending the Act, Congress enlisted all programs receiving federal funds in an effort “to share with handicapped Americans the opportunities for an education, transportation, housing, health care, and jobs that other Americans take for granted.’' ... Section 504 of the Rehabilitation Act reads in pertinent part:

“No otherwise qualified handicapped individual in the United States ... 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 ... .

In 1974 Congress expanded the definition of “handicapped individual’’ for use in 504 to read as follows:

"[A]ny person who (i) has a physical or mental impairment which substantially limits one or more of such person’s major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment.’'

In determining whether a particular individual is handicapped as defined by the Act, the regulations promulgated by the Department of Health and Human Services are of significant assistance. ... “Physical impairment’’ is defined as follows:

"[A]ny physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive, digestive, genitourinary; hemic and lymphatic; skin; and endocrine.’'

In addition, the regulations define “major life activities’’ as:

"[F]unctions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.’'


Within this statuatory and regulatory framework, then, we must consider whether Arline can be considered a handicapped individual. According to the testimony of [medical experts], Arline suffered tuberculosis “in an acute form in such a degree that it affected her respiratory system,’' and was hospitalized for this condition. Arline thus had a physical impairment as that term is defined by the regulations, since she had a “physiological disorder or condition ... affecting [her] ... respiratory [system].’' This impairment was serious enough to require hospitalizatin, a fact more than sufficient to establish that one or more of her major life activities were subtantially limited by her impairment. Thus, Arline’s hospitalization for tuberculosis in 1957 suffices to establish that she has a “record of ... impairment’’ within the meaning of [the Act] and is therefore a handicapped individual.

Petitioners concede that a contagious disease may constitute a handicapping condition to the extent that it leaves a person with “diminished physical or mental capabilities,’' and concede that Arline hospitalization for tuberculosis in 1957 demonstrates that she has a record of physical impairment. Petitioners maintain, however, Arline’s record of impairment is irrelevant in this case, since the school board dismissed Arline not because of her diminished physical capabilities, but because of the threat that her relapses of tuberculosis posed to the health of others.

We do not agree with petitioners that, in defining a handicapped individual under 504, the contagious effects of a disease can be meaningfully distinguished from the disease’s physical effects on a claimant in a case such as this. Arline’s contagiousness and her physical impairment each resulted from the same underlying condition, tuberculosis. It would be unfair to allow an employer to seize upon the distinction between the effects of a disease on others and the effects of a disease on a patient and use that distinction to justify discriminatory treatment.

Nothing in the legislative history of 504 suggests that Congress intended such a result. That history demonstrates that Congress was as concerned about the effect of an impairment on others as it was about its effect on the individual.

Allowing discrimination based on the contagious effects of a physical impairment would be inconsistent with the basic purpose of 504, which is to ensure that handicapped individuals are not denied jobs or other benefits because of the prejudiced attitudes or the ignorance of others. By amending the definition of “handicapped individual’’ to include not only those who are actually physically impaired, but also those who are regarded as impaired and who, as a result, are substantially limited in a major life activity, Congress acknowledged that society’s accumulated myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairments. Few aspects of a handicap give rise to the same level of public fear and misapprehension as contagiousness. Even those who suffer or have recovered from such noninfectious diseases as epilepsy or cancer have faced discrimination based on the irrational fear that they might be contagious. The Act is carefully structured to replace such reflexive reactions to actual or perceived handicaps with actions based on reasoned and medically sound judgments: the definition of “handicapped individual’’ is broad, but only those individuals who are both handicapped and otherwise qualified are eligible for relief. The fact that some persons who have contagious diseases may pose a serious health threat to others under certain circumstances does not justify excluding from the coverage of the Act all persons with actual or perceived contagious diseases. Such exclusion would mean that those accused of being contagious would never have the opportunity to have their condition evaluated in light of medical evidence and a determination made as to whether they were “otherwise qualified.’' Rather, they would be vulnerable to discrimination on the basis of mythology--precisely the type of injury Congress sought to prevent. We conclude that the fact that a person with a record of a physical impairment is also contagious does not suffice to remove that person from coverage under 504.


The remaining question is whether Arline is otherwise qualified for the job of elementary-school teacher. To answer this question in most cases, the district court will need to conduct an individualized inquiry and make appropriate findings of fact. Such an inquiry is essential if 504 is to achieve its goal of protecting handicapped individuals from deprivations based on prejudice, stereotypes, or unfounded fear, while giving appropriate weight to such legitimate concerns of grantees as avoiding exposing others to significant health and safety risks. ...

In making these findings, courts normally should defer to the reasonable medical judgments of public-health officials. The next step in the “otherwise-qualified’’ inquiry is for the court to evaluate, in light of these medical findings, whether the employer could reasonably accommodate the employee under the established standards for that inquiry.

Because of the paucity of factual findings by the district court, we, like the court of appeals, are unable at this stage of the proceedings to resolve whether Arline is “otherwise qualified’’ for her job. The district court made no findings as to the duration and severity of Arline’s condition, nor as to the probability that she would transmit the disease. Nor did the court determine whether Arline was contagious at the time she was discharged, or whether the school board could have reasonably accommodated her. Accordingly, the resolution of whether Arline was otherwise qualified requires further findings of fact.


We hold that a person suffering from the contagious disease of tuberculosis can be a handicapped person within the meaning of 504 of the Rehabilitation Act of 1973, and that respondent Arline is such a person. We remand the case to the district court to determine whether Arline is otherwise qualified for her position. The judgment of the court of appeals is Affirmed.

The United States argues that it is possible for a person to be simply a carrier of a disease, that is to be capable of spreading a disease without having a “physical impairment’’ or suffering from any other symptoms associated with the disease. The United States contends that this [is] true in the case of some carriers of the Aquired Immune Deficiency Syndrome (AIDS) virus. From this premise the United States concludes that discrimination solely on the basis of contagiousness in never discrimination on the basis of a handicap. The argument is misplaced in this case, because the handicap here, tuberculosis, gave rise both to a physical impairment and to contagiousness. This case does not present, and we therefore do not reach, the questions whether a carrier of a contagious disease such as AIDS could be considered to have a physical impairment, or whether such a person could be considered, solely on the basis of contagiousness, a handicapped person as defined by the Act.

Employers have an affirmative obligation to make a reasonable accommodation for a handicapped employee. Although they are not required to find another job for an employee who is not qualified for the job he or she was doing, they cannot deny an employee alternative employment opportunities reasonably available under the employer’s existing policies.

Rehnquist’s Dissent

CHIEF JUSTICE REHNQUIST, with whom JUSTICE SCALIA joins, dissenting.

In Pennhurst State School and Hospital v. Halderman, (1981), this Court made clear that, where Congress intends to impose a condition on the grant of federal funds, “it must do so unambiguously.’' This principle applies with full force to 504 of the Rehabilitation Act, which Congress limited in scope to “those who actually ‘receive’ federal financial assistance.’' Yet, the Court today ignores this principle, resting its holding on its own sense of fairness and implied support from the Act. Such an approach, I believe, is foreclosed not only by Pennhurst, but also by our prior decisions interpreting the Rehabilitation Act.

The requirment that Congress unambiguously express conditions imposed on federal moneys is particularly compelling in cases such as this where there exists long-standing state and federal regulation of the subject matter. From as early as 1796, Congress has legislated directly in the area of contagious diseases. Congress has also, however, left significant leeway to the states, which have enacted a myriad of public-health statutes designed to protect against the introduction and spread of contagious dieseases. When faced with such extensive regulation, this Court has declined to read the Rehabilitation Act expansively.

Applying these principles, I conclude that the Rehabilitation Act cannot be read to support the result reached by the Court. The record in the case leaves no doubt that Arline was discharged because of the contagious nature of tuberculosis, and not because of any diminished physical or mental capabilities resulting from her condition. Thus, in the language of 504, the central question here is whether discrimination of the basis of contagiousness constitutes discrimination “by reason of ... handicap.’' Because the language of the Act, regulations, and legislative history are silent on this issue, the principles outlined above compel the conclusion that contagiousness is not a handicap within the meaning of 504. It is therefore clear that the protections of the Act do not extend to individuals such as Arline.

... [T]he Court points to nothing in these materials suggesting that Congress contemplated that a person with a condition posing a threat to the health of others may be considered handicapped under the Act. Even in an ordinary case of statutory construction, such meager proof of congressional intent would not be determinative. The Court’s evidence, therefore, could not possibly provide the basis for “knowing acceptance’’ by such entities as the Nassau County School Board that their receipt of federal funds is conditioned on Rehabilitation Act regulation of public-health issues.

In Alexander v. Choate, (1985), this Court stated that "[a]ny interpretation of 504 must ... be responsive to two powerful but countervailing considerations--the need to give effect to the statutory objectives and the desire to keep 504 within manageable bounds.’' The Court has wholly disregarded this admonition here.

A version of this article appeared in the March 11, 1987 edition of Education Week as Excerpts From Ruling in School Board of Nassau Co. v. Arline