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January 23, 1980

William PATTON, by his next friends, Dr. Hylan Lewis and Mrs. Florence Logan, Plaintiff,
James DUMPSON, Individually and as Administrator of the New York City Human Resources Administration, and as Commissioner of the New York City Department of Social Services; Carol Parry, Individually and as Assistant Administrator of Special Services For Children; Elizabeth Beine, Individually and as Director of the Bureau of Child Welfare; Adolin Dall, Individually and as Director of the Division of Inter-Agency Relationships of Special Services for Children; Sister Marian Cecilia Schneider, Individually and as Administrator of New York Foundling Hospital; Victor Remer, Individually and as Executive Director of Children's Aid Society; Bernard Shapiro, Individually and as Executive Director of the New York State Board of Social Welfare; Stephen Berger, Individually and as Commissioner of the New York State Department of Social Services, Defendants

The opinion of the court was delivered by: OWEN

Two legal issues of first impression have been briefed by the parties to this action in the context of a court initiated motion to dismiss for failure to state a claim. *fn1" These questions pertain to the viability of plaintiff's cause of action for damages under § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 ("s 504"). That statute prohibits discrimination against handicapped individuals in federally funded programs. Two issues are raised in this case: first, whether a private right of action for damages may be implied under § 504; and second, whether the doctrine of respondeat superior applies to such actions. Plaintiff concedes that both questions must be answered in the affirmative for the § 504 claim to survive a motion to dismiss.

The background of this case is as follows. Plaintiff William Patton is a handicapped child who became the legal responsibility of certain public and private child welfare agencies after he was abandoned by his mother in January 1969. *fn2" This suit was brought on his behalf against the executive heads of those agencies in their individual and official capacities, *fn3" on the grounds that they failed to provide him with adequate and appropriate care. *fn4" The original complaint, dated October 6, 1975, set forth twelve causes of action, all but one of which were dismissed by this court on January 3, 1977. *fn5" The remaining cause of action was a claim under 42 U.S.C. § 1983 alleging that plaintiff was denied an education while under the defendants' care.

The complaint was subsequently amended to add a cause of action under § 504 of the Rehabilitation Act based on allegations that plaintiff was denied an education solely because he suffered from certain physical and mental handicaps. *fn6" At a pretrial conference on September 22, 1978, plaintiff's counsel conceded that it would be unable to adduce sufficient evidence of defendants' personal responsibility for the injury alleged to prevail on the § 1983 claim. *fn7" Thus, by plaintiff's own admission, this case stands or falls on the § 504 cause of action.

 Section 504 of the Rehabilitation Act of 1973 provides in pertinent part:

No otherwise qualified handicapped individual in the United States, as defined in section 706(7) of this title, shall, solely by reason of his handicap, be excluded from the participation in, denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . . .

 29 U.S.C. § 794. *fn8" Under this statute, the plaintiff, a handicapped child, is seeking to hold public and private agencies liable in damages for discriminating against him because of his handicap. *fn9" The complaint alleges that, due to plaintiff's physical and mental handicaps, agency employees denied him the benefit of educational services. The jurisdictional basis for such a claim under § 504 has not yet been conclusively established. At this juncture, therefore, plaintiff must show that a private right of action for damages may be implied from § 504's general proscription. In addition, he must demonstrate that the agencies may be held vicariously liable for the acts of their staff members under the doctrine of respondeat superior.

 A private right of action under § 504 has been recognized in suits for injunctive relief by every federal court to consider the issue, including the Second Circuit. *fn10" In addition, the Supreme Court has inferred a private right of action under § 901 of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. ("Title IX") which prohibits discrimination on the basis of sex in federally funded programs. Cannon v. University of Chicago, 441 U.S. 677, 99 S. Ct. 1946, 60 L. Ed. 2d 560 (1979). All of the factors that lead the Supreme Court to imply a cause of action under Title IX are present here. See Cannon, supra, at 1953-64, applying the test of Cort v. Ash, 422 U.S. 66, 78, 95 S. Ct. 2080, 45 L. Ed. 2d 26 (1975). First, the language of the statute is expressly right-creating in favor of a special class of persons. See Cannon, Id. at 1954, n. 13. Second, it is clear that Congress intended for § 504 to be interpreted and applied as Title IX and Title VI have been. See n. 8 supra. These statutes are closely and consciously aligned in language and purpose. In addition, Congress authorized their utilization of the same enforcement procedures. Cannon, supra at 1957 n. 19; 45 C.F.R. 84.6 (s 504), incorporating by reference, 45 C.F.R. 80.6-80.10 (Title VI). Thus, it would be inconsistent not to recognize a private right of action under § 504 when one has been implied under Title IX. *fn11"

 In this action, plaintiff is seeking only money damages in mitigation of past discrimination. Defendants contend that this distinguishes it from the line of cases recognizing a private right of action under § 504. See n. 10 supra. Those cases were all suits for injunctive relief to remedy present or ongoing discriminatory conduct. Defendants argue that while injunctive suits may be consistent with the purpose of the Rehabilitation Act, damage actions are not.

 This distinction between monetary and injunctive relief is relevant, according to defendants, because the overall purpose of the Act is remedial not punitive. Section 504 is only one portion of a comprehensive act which provides for federal funding of rehabilitation and vocational training programs and facilities for handicapped individuals. In this context, § 504 was intended to ensure that handicapped persons receive the full benefit of all federally funded programs. Accordingly, defendants argue that injunctive suits do not conflict with this purpose because they merely force an agency to comply with the Act. By contrast, they assert, damage actions may result in large damage awards funded by the federal government. This could result in the bankruptcy of an agency or program for a single violation, thereby depriving other handicapped individuals of important services.

 There is, however, no precedent for limiting a private right of action under § 504 to suits for injunctive relief in the absence of a Congressional directive to that effect. In the first place, the right to seek money damages for civil rights violations is an accepted feature of the American judicial system. The trend began with Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961) (right to sue for money damages for unconstitutional search under 42 U.S.C. § 1983), and has been extended to virtually every other statute designed to protect against unlawful discrimination. *fn12" In addition, damages are now recoverable in direct actions under the first, *fn13" fourth, *fn14" fifth, *fn15" sixth, *fn16" eighth, *fn17" and ninth *fn18" amendments.

 There is no support in these cases for defendants' position that the underlying right to sue should be limited by the relief sought. Instead, they follow the well-established principal that "the existence of a statutory right implies the existence of all necessary and appropriate remedies." Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 239, 90 S. Ct. 400, 405, 24 L. Ed. 2d 386 (1969). Thus, in Bivens v. Six Unknown Named Agents, Justice Harlan observed that

(I)f a general grant of jurisdiction to the federal courts by Congress is thought adequate to empower a federal court to grant equitable relief for all areas of subject-matter jurisdiction enumerated therein, see 28 U.S.C. § 1331(a), then it seems to me that the same statute is sufficient to empower a federal court to grant a traditional remedy at law. Of course, the special historical traditions governing the federal equity system, see Sprague v. Ticonic National Bank, 307 U.S. 161, 59 S. Ct. 777, 83 L. Ed. 1184 (1939), might still bear on the comparative appropriateness of granting equitable relief as opposed to money damages. That possibility, however, relates, not to whether the federal courts have the power to afford one type of remedy as opposed to the other, but rather to the criteria which should govern the exercise of our power.

 403 U.S. 388, 405-6, 91 S. Ct. 1999, 2009, 29 L. Ed. 2d 619 (Harlan, J., concurring) (footnote omitted). *fn19"

 The history of implied rights of action under statutes other than § 504 does not reveal a judicial preference for equitable as opposed to legal remedies. The first case in which the Supreme Court inferred a private right of action was a suit for money damages under the 1893 railroad legislation, Texas & Pacific R. Co. v. ...

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