HEMPHILL, District Judge.
Plaintiff, Nelda K. Barnes, filed this action on June 13, 1977,
Nelda K. Barnes is an English teacher at the Cedar Springs School for the Deaf and Blind, Spartanburg, South Carolina, and is certified in deaf education by the South Carolina Office of Teacher Education and Certification. This court is satisfied, through plaintiff's live testimony and the report of Benjamin Dawsey, Jr., Audiologist (Plaintiff's Exhibit 8) that plaintiff is a handicapped individual within the meaning of 29 U.S.C. § 794. Plaintiff is periodically required by the State Department of Education to earn additional college credits to maintain her "out-of-field" permit to teach in the public schools of South Carolina. She must earn six hours of graduate English credit in summer school in order to teach in the Fall, and has been accepted academically at Converse College. Plaintiff requires an interpreter to participate in classroom activities and seeks to have Converse College provide funds for such interpreter. It is conceded by both parties that
The proper standard for issuing an injunction at the trial level was outlined by the Fourth Circuit in the case of Sinclair Refining Co. v. Midland Oil Co., 55 F.2d 42 (4th Cir. 1932), and was recently reaffirmed and analyzed in Blackwelder Furniture Co., etc. v. Seilig Mfg. Co., Inc., 550 F.2d 189 (4th Cir. 1977). In formulating a standard to be followed by the district court in granting preliminary injunctions, the Circuit Court has developed what they term the "balance-of-hardship" test. The "balance-of-hardship" test is set out as follows:
Under this standard for the issuance of preliminary relief, the plaintiff's likelihood of success is almost irrelevant. The court is required to find only that plaintiff has a "probable" right under which she may recover. The court then must "balance the likelihood of irreparable harm to the plaintiff against the likelihood of harm to the defendant and if they decide the balance of hardship should appear in the plaintiff's favor" then the injunction must issue. 550 F.2d at 195.
Under the Fourth Circuit's standards, the district court must first consider whether the plaintiff has a probable right upon which she may grant her prayer for relief. Plaintiff brings this action under 29 U.S.C. § 794 which provides:
and 45 C.F.R. 84.44(d), promulgated thereunder, which provides:
From the evidence adduced at the hearing, this court finds that plaintiff is an "otherwise qualified handicapped individual" who can adequately perform in the academic course in which she wishes to enroll with the help of an interpreter. The cost of such interpreter, for the entire summer school session, would be approximately $750.00. As such, it is probable that, under this statute and regulation, the defendant is obliged to provide for such "auxiliary aids" as an interpreter.
Defendant contends that plaintiff has no probable right to recovery because the regulation under which she brings her cause of action is not effective until the 2nd day of August, 1977. Their argument is based upon regulation § 84.22(d) which provides that a recipient of federal funds "shall comply with the . . . [requirements relating to program accessibility] within 60 days of the effective date . . .." The effective date of the regulation is June 3, 1977. Section 84.22(d), however, applies only to subpart (c) which relates to program accessibility. Regulation § 84.44(d), upon which plaintiff relies, is contained in subpart (e) of the regulation and is not limited by § 84.22(d). Therefore the effective date of 84.44(d) is June 3, 1977, and said regulation is now in effect.
Moreover, in the Conference Committee's Joint Explanation Statement, there is an expression of legislative intent to provide a private right of action for noncompliance under § 794. "This approach to implementation of § 504 (§ 794) . . . would insure 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." Congressional Record, S.18879 (October 10, 1974). In addition to the Supreme Court's allowance of a private cause of action under an almost identical statute and a relatively clear expression of legislative intent to allow such a private action under § 794, various other federal courts have found the existence of a private right of action under that section. See, Lloyd v. Regional Transportation Authority, 548 F.2d 1277 (7th Cir. 1977); Gurmankin v. Costanzo, 411 F.Supp. 982 (E.D. Pa.1976). For these reasons, it is the opinion of this court that a private right of action exists in the plaintiff under 29 U.S.C. § 794.
After having found the existence of a probable right in plaintiff, the court must look to see if there is a probable danger that the right may be defeated in absence of the issuance of preliminary relief. In this case, plaintiff has alleged, and demonstrated at the hearing, that her continued employment as a teacher is dependent upon her maintaining a valid "out-of-field" permit from the State Department of Education. Plaintiff must earn six semester hours credit from an accredited senior institution before the beginning of the school year in September or she will lose her permit and will be unable to continue employment. Therefore, refusal to grant plaintiff relief at this time would defeat any rights she may have under the statute and regulations, and, by failing to give effect to plaintiff's rights, would cause her immediate and irreparable injury in the form of loss of employment.
Defendant, Converse College, would, in this action, be faced with the relatively minor financial damage of an interpreter's fee which has been estimated at somewhat less than $1,000. Defendant's chief concern, however, is not the cost of the interpreter in this particular action. Defendant institution, which is a privately funded institution in close proximity with the South Carolina state-supported school for the deaf and blind, is justifiably concerned with the financial burden which it may ultimately have to bear as a result of compliance with § 794 in the future. Although the danger of future expenditures under this statute is not a proper consideration in this lawsuit, this court is most sympathetic with the plight of defendant as a private institution which may well be forced to make substantial expenditures of private monies to accommodate the federal government's generosity. Converse College is subject to regulation under 29 U.S.C. § 794 because it receives federal financial assistance. None of this federal financial assistance, however, was given the Converse College for the purpose of providing auxiliary aids for the handicapped. No educational administrator needs to be reminded of the said fact that federal money means pervasive, bureaucratic federal control; and for pervasive, tyrannical bureaucratic federal control, the Department of Health, Education and Welfare knows no equal or superior.
Despite the obvious inequities inherent in the enforcement of this regulation with respect to private institutions, there has been no challenge to its validity and this court is bound by law to give it effect. Under the requirements set out by the Fourth Circuit in the Sinclair Refining case for the granting of injunctive relief under Rule 65, it is equally clear that plaintiff is entitled to the preliminary relief sought in this matter.
Therefore, the defendant Converse College will procure and compensate a qualified interpreter of its choosing for the purpose of assisting the plaintiff in her summer school classes. Plaintiff will post a security bond of four thousand ($4,000.00)
AND IT IS SO ORDERED.