HIRAM H. WARD, District Judge.
On September 1, 1977, the United States Magistrate's Findings and Recommendation was filed and notice was served on the parties pursuant to 28 U.S.C. § 636. In this action plaintiff sought a preliminary injunction, claiming that his rights under the Civil Rights Act of 1871, 42 U.S.C. § 1983, and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, were being violated. The Magistrate recommended, inter alia, that a preliminary injunction issue but would condition such issuance on plaintiff's initiating a complaint with the Department of Health, Education, and Welfare, that raised the grounds for relief sought in this court's action. For the reasons set out below, this Court accepts and adopts as its own the Magistrate's Findings and Recommendation.
Both parties filed objections to the Magistrate's Findings and Recommendation. Defendants objected to the Magistrate's Finding no. 12 which stated that plaintiff had made an attempt to secure funds for an interpreter but had not been successful. The Court does not find that objection material to the decision in this action. More importantly, the defendants have failed to comply with Local Rule 50(c)(2) of this Court in that they have not submitted a transcript of the proceedings before the Magistrate for this Court to review. The Court, therefore, rejects the objection. Defendants' second objection is to the Magistrate's Finding no. 17 where the Magistrate found that the regulations issued to implement the Rehabilitation Act of 1973 stated that their effective date was June 3, 1977. Defendants contend that the regulation was not effective until a one-year evaluation period had passed, citing 45 C.F.R. § 84.6(c). Contrary to defendants' contention, the Magistrate fully considered this argument, but declined to rule on the contention, stating that a resolution of the question should be reserved for initial agency review. Magistrate's Findings and Recommendation n. 5. Defendants' other objections concern issues of law. Specifically, defendants object to the Magistrate's recommendation of the issuance of a preliminary injunction. (Defendants did not object to the Magistrate's recommendation that the matter be stayed until plaintiff had initiated a complaint with the Department of Health, Education, and Welfare.) Inasmuch as the Court adopts the Magistrate's Findings and Recommendation, it rejects these objections.
The plaintiff also filed objections to the Magistrate's Findings and Recommendation. Plaintiff did not object to either the recommendation for a preliminary injunction or the amount of the bond to be posted. Instead, plaintiff objected to the recommendation that he be required to initiate a complaint with the Department of Health, Education, and Welfare. Inasmuch as the Court adopts the Magistrate's Findings and Recommendation, it rejects plaintiff's objection.
Plaintiff further objected to the Magistrate's Finding no. 10. The basis of this objection is that the Magistrate found that plaintiff intended to attend the University during the Fall and Winter sessions. Plaintiff now states that he also intends to take graduate courses at the University during the Summer of 1978. In effect, plaintiff seeks to introduce additional evidence which was not before the Magistrate at the hearing on his motion for preliminary injunction. Local Rule 50(c)(2) of this Court states that a Judge of this Court shall make a de novo determination of those portions of the Magistrate's Findings and Recommendation to which an objection is filed. It further states that the Judge will normally not conduct a new hearing. However, the Court does have the power to receive further evidence or to recommit the matter to the Magistrate with instructions. Plaintiff has not made a motion to reopen the hearing to receive additional evidence, or to recommit the matter to the Magistrate. Therefore, the Court will not decide whether the injunction in this case should be extended to cover any graduate courses
Plaintiff further requests the Court to modify the Magistrate's Finding no. 17 to reflect the fact that the Magistrate admitted into evidence an affidavit of John Wodatch, Acting Director of the Office of New Programs, Office for Civil Rights, Department of Health, Education, and Welfare, which indicates that the effective date of the Rehabilitation Act regulations upon which plaintiff relies is June 3, 1977. Since the Magistrate did not definitively decide the effective date of the regulations, the Court finds no reason to modify the Magistrate's finding of fact. The Magistrate admitted the affidavit into evidence, and the exhibit speaks for itself. It does not modify the substance of the Magistrate's Findings and Recommendation.
The Court hereby accepts the Findings and Recommendation of the Magistrate and adopts it as its own.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the defendants William C. Friday, William A. Johnson, and Harold F. Robinson, in their official capacities as agents and officers for the University of North Carolina, and those persons in active concert or participation with them be, and the same hereby are, ordered to procure an interpreter or other effective method of making orally delivered materials available to the plaintiff for his attendance of graduate courses at the Western Carolina University for the Fall, 1977 classes and the Winter, 1977-78 classes.
As a condition of such relief, plaintiff shall post a security bond in the amount of $3,000.00 pending the final outcome of this litigation pursuant to Rule 65(c), F.R.Civ.P.
IT IS FURTHER ORDERED that this action be stayed, and that as a condition of preliminary injunctive relief, the plaintiff is required to immediately initiate a complaint with the Department of Health, Education, and Welfare requesting the relief sought in this action, in accordance with the regulations issued to implement the Rehabilitation Act of 1973, as set out in 45 C.F.R. § 84.1 et seq.
IT IS FURTHER ORDERED that the plaintiff shall consider the advisability of adding the Secretary of Health, Education, and Welfare as a party to this action, or taking steps to request that he become a part of this action as amicus curiae. Therefore, the plaintiff shall forward a copy of this Order to the Secretary of Health, Education, and Welfare and report to the Court any communications received as result of taking such action.
MAGISTRATE'S FINDINGS AND RECOMMENDATION
On July 18, 1977, this matter came before the Court on plaintiff's motion for a preliminary injunction. Plaintiff filed a complaint seeking declaratory and injunctive relief claiming that his rights were violated under the Civil Rights Act of 1871, 42 U.S.C. § 1983, and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. The latter Act prohibits discrimination against handicapped persons by recipients of federal financial assistance. Jurisdiction was premised under 28 U.S.C. § 1343(3) and (4).
Plaintiff is a deaf-handicapped individual taking graduate courses at Western Carolina University, a part of the University of North Carolina. His complaint claimed that while attending the university as a student he was denied interpreter services. The defendants are the University of North Carolina and the Western Carolina University as well as the President of the University of North Carolina, the Chairman of the Board of Governors of the University of North Carolina, and the Chancellor of Western Carolina University. The individuals are sued in their individual and official capacities. Plaintiff claims that the policy and practice of the defendants violates the
FINDINGS OF FACT
Upon considering the testimony of the witnesses and the exhibits admitted into evidence, the Court makes the following findings of fact:
1. Plaintiff is a deaf graduate student at Western Carolina University, a constituent institution of the University of North Carolina, having enrolled in the graduate program in June of 1976.
2. The defendant University of North Carolina is a state-supported institution of higher education which receives federal financial assistance.
3. Defendant William C. Friday is president of the University of North Carolina and is responsible for the administration of the defendant University.
4. Defendant William A. Johnson is the chairman of the Board of Governors of the University of North Carolina which establishes the policy of the defendant University.
5. Defendant Harold F. Robinson is chancellor of Western Carolina University, a constituent institution of the University of North Carolina, and is the chief administrative officer of Western Carolina University.
6. Plaintiff is a handicapped individual as defined in 29 U.S.C. § 706(6):
7. Plaintiff is a qualified handicapped individual as defined in the Regulation to Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, 45 C.F.R. 84.3(k)(3):
8. Plaintiff, in a letter dated December 29, 1976, to the defendant Robinson, requested Western Carolina University to provide interpreter services at university expense while plaintiff is a student in good standing at said University. Defendant Robinson replied indicating that the University had no money with which to meet plaintiff's request and further that "Section 504 Rehabilitation Act of 1973 has not as yet been promulgated." [sic] (implemented?)
9. Defendants to this date have not provided interpreter services to the Plaintiff while Plaintiff has been a student in good standing at said University.
10. Plaintiff is employed at the North Carolina School for the Deaf at Morganton, North Carolina. He earns a salary of approximately $10,500 per year. His employment is not contingent upon his supplementing his education. Plaintiff is taking courses at the University to obtain his master's degree in order to enhance his career opportunities in the field of education administration. He will complete his summer program at the University on August 5 of this year. He plans to take six (6) hours of graduate courses in the Fall and Winter quarters at Western Carolina University. These courses will be taken at night in order that he may work at his present job during the daytime.
12. Plaintiff has made an attempt to secure funds to pay for an interpreter from other sources but has been unsuccessful.
13. In the Spring of 1977, in response to an inquiry from the Dean of the Graduate School as how the program could be improved, plaintiff wrote concerning his need for an interpreter. However, plaintiff has not made an official request to defendant Robinson for an interpreter since his letter of December, 1976.
14. Plaintiff estimates that he will need an interpreter approximately ten (10) hours a week during the Fall and Winter sessions. He knows of two (2) persons in his area of the state who can interpret and estimates that they might charge $5.00 to $10.00 an hour. Mrs. Doris Hill, an interpreter certified by the North Carolina Registry of Interpreters, testified that she interprets for the deaf at Piedmont Community College and receives $768 per month for approximately 20-25 hours of work per week.
15. At present there are only nine (9) certified interpreters for the deaf in North Carolina. There are approximately 200 other individuals who identify themselves as interpreters. While certification is not necessarily essential for classroom interpretation, it is uncertain how many of these persons could provide adequate translating services without further training.
16. Plaintiff introduced the 1977 Summer School Catalog for Western Carolina University. On page 4 of that catalog (exhibit no. 5) the following statement appears:
17. On its own motion, the Court took notice of regulations issued to implement the Rehabilitation Act of 1973 and admitted such into evidence as Court's Exhibit No. 1. These regulations were issued Wednesday, May 4, 1977. The effective date is stated to be June 3, 1977.
In regard to postsecondary education, 45 C.F.R. § 84.44(d) provides:
CONCLUSIONS OF LAW
This case presents a problem in that the Congress of the United States has provided a right to handicapped individuals without explicitly defining the remedy. Section 504 of the Rehabilitation Act provides:
In Section 793, 29 U.S.C., Congress provided for enforcement of the Rehabilitation Act of 1973 against employers receiving money under federal contracts. Congress directed that an aggrieved individual should file a complaint with the Secretary of Labor, who would take appropriate action. However, Section 504 of the Rehabilitation Act provides no explicit enforcement mechanism for individuals such as plaintiff who are given rights under the Act to receive special treatment while attending institutions of higher education which receive federal funds.
Defendants therefore contend that plaintiff has no private cause of action arising from the Rehabilitation Act of 1973. Moreover, defendants claim that denying special treatment to handicapped individuals does not violate the Equal Protection Clause of the Fourteenth Amendment, and thus plaintiff states no cause of action under 42 U.S.C. § 1983.
Notwithstanding defendants' contentions, Blackwelder Furn. Co., etc. v. Seilig Mfg. Co., Inc., 550 F.2d 189, 195 (4th Cir. 1977), holds that plaintiff is not required to make a strong showing that he is likely to succeed on the merits before a preliminary injunction becomes proper. Rather,
Under Blackwelder one would initially investigate the quality and quantum of harm to each side of the controversy in order to determine if an injunction should issue. However, it will be more profitable in this case to first determine whether the plaintiff has a probable right.
There is a growing body of case law indicating that handicapped individuals have a cause of action against arbitrary, unreasonable and discriminatory classifications. This right is said to lie in an individual's Fourteenth Amendment right to substantive due process as protected by 42 U.S.C. § 1983. Moreover, this same protection against arbitrary classification may also be found in Section 794 of the Rehabilitation Act of 1973 which states that "no otherwise qualified handicapped individual" shall be denied the right to participate in programs which are federally funded.
For example, in Kampmeier v. Nyquist, 553 F.2d 296 (2d Cir. 1977), an action was brought on behalf of a high school student
In Duran v. City of Tampa, 430 F.Supp. 75 (M.D.Fla.1977), a police department refused to hire an individual with a history of epilepsy. The court found that the regulation involved created an arbitrary and irrebuttable presumption against employability in violation of the Due Process Clause of the Fourteenth Amendment. The court further held plaintiff stated a cause of action under 29 U.S.C. §§ 793 and 794. It denied a grant of preliminary injunction stating that the mere loss of income or damage to reputation was not such an irreparable injury upon which a preliminary injunction could be predicated. In Drennon v. Philadelphia General Hospital, 428 F.Supp. 809 (E.D.Pa.1977), the court noted a probable cause of action under 42 U.S.C. § 1983 and 29 U.S.C. §§ 793 and 794 where a hospital allegedly denied employment opportunities to individuals solely because of a history of epilepsy. In Gurmankin v. Costanzo, 411 F.Supp. 982 (E.D.Pa.1976), aff'd, 556 F.2d 184 (3rd Cir. 1977), the court granted relief under 42 U.S.C. § 1983 where plaintiff brought suit challenging a school district's policy of excluding blind teachers from teaching sighted students. It also noted probable jurisdiction under 29 U.S.C. § 794.
The instant action does not fall within the above category of cases. Plaintiff has not been arbitrarily and unreasonably classified in such a manner so as to deny him access to the University's educational programs. To the contrary, the evidence indicates that this plaintiff has been permitted to attend classes. He has successfully completed some courses and has a high B average. This case does not involve a situation where the plaintiff has been classified to his detriment on the basis of his handicap. Rather, plaintiff's cause of action states that the University has an obligation not to ignore, but in fact to recognize his handicap, and to provide him special services not given to other students.
Courts have not been as consistent in applying an equal protection analysis to handicapped individuals. Thus, in United Handicapped Federation v. Andre, 409 F.Supp. 1297 (D.Minn.1976), the court found that the Rehabilitation Act of 1973 and 42 U.S.C. § 1983 did not provide a cause of action on behalf of wheelchair-handicapped individuals so as to require a metropolitan transit authority to provide specially equipped buses. See Gurmankin v. Constanzo, supra, 411 F.Supp. at 992 n. 8, where the court found a blind teacher protected under due process reasoning but expressly rejected the claim that blind persons constitute a suspect classification for equal protection purposes.
However, another line of cases does support plaintiff's contention that he has a private cause of action under the Rehabilitation Act of 1973. Thus in Hairston v. Drosick, 423 F.Supp. 180 (S.D.W.Va.1976), the court ruled that a handicapped school girl had a private cause of action under 29 U.S.C. § 794 and required the defendant to make necessary expenditures to enable her to attend school with non-handicapped children.
The most searching examination of whether a handicapped individual has a private cause of action under the Rehabilitation Act is found in Lloyd v. Regional Transportation Authority, 548 F.2d 1277 (7th Cir. 1977). In that case it was alleged that the transportation authority was contemplating purchasing new equipment, utilizing federal funds, without considering the needs of handicapped individuals. The court found that a private cause of action existed relying upon Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1 (1974). Lau was a class action comprising 28,000 school children of Chinese ancestry who claimed that they were denied the right to a meaningful education because of their not being able to speak English. The Supreme Court relied exclusively upon Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, to grant relief. The majority opinion noted that the Department of Health, Education and Welfare (hereinafter referred to as HEW) had enacted regulations and guidelines compelling the result and further that the school had contractually obligated itself to carry out those guidelines by receiving federal funds. In a concurring opinion, Justice Stewart noted that the defendants did not question the plaintiffs' standing to bring the action, as third-party beneficiaries of the contract. Justice Blackmun also concurred in the decision, and was joined by the Chief Justice. He emphasized that the case involved a large number of students and that the result might not be the same without the large number of persons involved.
The Seventh Circuit in Lloyd, relying upon the Lau decision, held that the Rehabilitation Act grants affirmative rights, derived from the then proposed regulations. (Final regulations have now been issued by HEW.) The court went on to hold, after examining the legislative history, that handicapped individuals have a private cause of action under the Rehabilitation Act to enforce those rights. The decision expressly recognized the fact that the regulations contemplate judicial review of administrative proceedings. (The regulations of the Rehabilitation Act are similar to the compliance provisions of Title VI of the Civil Rights Act of 1964. In both instances HEW has authority to review financial assistance programs to ensure voluntary compliance, and to deny or terminate funds after an administrative hearing.) Nevertheless, the court stated in Lloyd, 548 F.2d at 1286, that:
The instant case does not fit entirely within the reasoning of Lloyd which established a private cause of action under the Rehabilitation Act. There are no large numbers of handicapped individuals involved in this suit. However, since the University is now trying to identify handicapped individuals, a decision in this case may affect others. Thus, numerosity may be lurking in the background. Next, unlike Lloyd, the final regulations have been issued. Thus, effective administrative machinery may exist to vindicate plaintiff's rights. These facts counsel against finding to a private cause of action in this case based on the Lloyd and Lau decisions.
On the other hand, plaintiff has introduced the summer bulletin of the defendant University which indicates that it will comply with the Rehabilitation Act.
Notwithstanding the authority indicating that plaintiff has a probable right to assert a private claim to affirmative action under the Rehabilitation Act, the Court deems it appropriate to consider the doctrines of primary jurisdiction and the concomitant question of exhaustion.
See also Drennon v. Philadelphia General Hospital, supra, wherein the court using the doctrine of primary jurisdiction, stayed the action and remanded the claim to the Department of Labor; and NAACP v. Wilmington Medical Center, Inc., 426 F.Supp. 919 (D.Del.1977).
The doctrine of primary jurisdiction adopts as its premise that, in order to properly integrate the functions of administrative agencies and the courts, consideration must be given to whether the administrative agency should initially pass on the controversy. See Miss. Power and Light Co. v. United Gas Pipeline, 532 F.2d 412, 417-19 (5th Cir. 1976). The doctrine has been applied even if "there is a basis for judicial action, independent of agency proceedings, [and] courts may route the threshold decision as to certain issues to the agency charged with primary responsibility for governmental supervision or control . .." Marine Terminal v. Rederi. Transatlantic, 400 U.S. 62, 68, 91 S.Ct. 203, 208, 27 L.Ed.2d 203 (1970). As noted in Miss. Power and Light Co. v. United Gas Pipeline, supra, the Supreme Court has held that it is proper to ask for agency expertise even when an agency decision will only be a material aid in deciding an issue. Referrals to administrative agencies are appropriate if the agency could provide immunity to the defendant's actions or where the issues involve technical questions within the particular competence of the administrative agency, or an administrative decision would promote uniformity in regulation throughout the country. Nader v. Allegheny Airlines, Inc., 426 U.S. 290, 96 S.Ct. 1978, 48 L.Ed.2d 643, 655 (1976).
The doctrine of exhaustion of administrative remedies involves questions akin to
Thus, the question must be answered as to whether there is any room in this case for agency action. If there is, then the Court must consider whether the doctrines of primary jurisdiction or exhaustion require the agency to hear the matter.
In the instant case, plaintiff alleges he has a private cause of action under the Rehabilitation Act. That question would not be more appropriate for an agency to initially decide than the Court. However, plaintiff in seeking to implement the Rehabilitation Act regulations seeks a remedy enforceable by the administrative agency.
Since referral of this controversy to the administrative agency would be helpful to the Court, does plaintiff have an adequate remedy? In Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970), the court held that neither the principle of exhaustion of administrative remedies nor the doctrine of primary jurisdiction had any application in a case where welfare recipients alleged that state welfare programs were not in compliance with HEW requirements.
Turning to the instant case, the availability of participant review falls between extremes found in Rosado and Gordon. In issuing regulations for the Rehabilitation Act of 1973, HEW has engrafted the enforcement provisions applicable to Title
The fact that this Court invokes the doctrine of primary jurisdiction does not moot the question of whether preliminary relief should issue to safeguard plaintiff's rights from irreparable injury pending administrative determination. See Natural Resources Defense Council, Inc. v. Train, 166 U.S.App. D.C. 312, 323, 510 F.2d 692, 703 n. 59 (1975); Monsanto Company v. FPC, 149 U.S.App. D.C. 396, 463 F.2d 799 (1972); see also United States v. Virginia Elec. and Power Co., 412 F.Supp. 165 (E.D.N.C.1976).
Mandatory injunctions should be used sparingly. 7 Moore's Federal Practice ¶ 65.04, 65-35—65-38 (2d ed. 1975). Moreover, an injunction should not work so as to give a party the full relief which he seeks on the merits, especially when the order would require the payment of money. Dorfmann v. Boozer, 134 U.S.App.D.C. 272, 277, 414 F.2d 1168, 1173 (1969). Notwithstanding, it would appear that in a case where a party requests a mandatory preliminary injunction, the test is still one of balancing the competing interests. Ross v. Community Services, Inc., 396 F.Supp. 278, 288 (D.Md.1975).
In Barnes v. Converse College, 436 F.Supp. 635 (D.S.C.1977), Judge Hemphill granted preliminary injunctive relief to a plaintiff similarly situated as the one in this case. Judge Hemphill found that the plaintiff had a probable right to a private cause of action under the Rehabilitation Act although he did not discuss the effect, if any, of primary jurisdiction or exhaustion. In Barnes, the deaf plaintiff maintained that her continuing employment as a teacher was dependent upon her receiving six (6) semester hours of college credit before the beginning of the school year in September. In the instant case, plaintiff's seeking of graduate educational credits is of less pressing concern. He presently is employed and is not in danger of losing his job. Moreover, the instant plaintiff has been pursuing his educational endeavors with a large degree
Plaintiff did not testify that he was unable to afford a classroom interpreter. In reviewing the financial data supplied to the Court concerning the expense of providing an interpreter, it would appear the cost for a Fall and Winter term would range from $1,000 to $3,000 depending upon the hours needed for, and the rate charged by, an interpreter. Considering plaintiff's salary, at some point in time it would be a financial hardship for him to provide his own interpreter. This burden must be juxtaposed against that imposed on the defendants. The Court has before it no information as to the amount of federal financial aid received by the University of North Carolina nor whether the University has received special funding for handicapped programs. Nevertheless, the Court has no doubt that the University would be better able to pay the costs. In so stating, the Court in no way minimizes the tremendous burden which might be imposed upon the University in fully implementing the regulations issued under the Rehabilitation Act.
In measuring the irreparability of harm to a plaintiff seeking preliminary injunctive relief, Blackwelder Furn. Co., etc. v. Seilig Mfg. Co., Inc., supra, at 196, requires assessment of the costs to defendant. If the cost is minimal, the threatened injury may be all the more irreparable. In evaluating the cost to the defendant, the Court notes that plaintiff has made a strong showing of having a probable right. Indeed, defendant does not question the right so much as how or when that right is to be enforced. Judged in that light, the real cost to defendant of providing an auxiliary aid to this plaintiff might well be zero. Moreover, in considering the final factor relevant in considering preliminary injunctive relief, the Court notes that the public interest lies on the side of plaintiff. Congress has enacted the Rehabilitation Act of 1973, and HEW has formulated regulations which indicate that plaintiff has the right (at some time) to receive that which he seeks in the complaint. While injunctive relief in this particular case does not preserve the status quo, the mandatory injunctive relief does serve to enforce the federal statutes and regulations under which plaintiff has a probable right to protection.
THEREFORE, IT IS RECOMMENDED that a preliminary injunction issue as to the individual defendants, in their official capacities, to procure an interpreter or other effective method of making orally delivered materials available to the plaintiff for his attendance of graduate courses at the Western Carolina University for the Fall, 1977 classes and the Winter, 1977-78 classes. As a condition of such relief, plaintiff shall post a security bond in the amount of $3,000 pending the final outcome of this litigation pursuant to Rule 65(c), F.R.Civ.P.
IT IS FURTHER RECOMMENDED that this action be stayed, and that as a condition of preliminary injunctive relief, plaintiff be required to initiate a complaint with HEW requesting the relief sought in this action. Furthermore, plaintiff shall consider the advisability of adding the Secretary
August 31, 1977
Plaintiff's claim under 1983 is considerably weaker than the one involving the Rehabilitation Act. Thus an examination, and perhaps resolution, of the Rehabilitation Act allegation, prior to consideration of the 1983 claim promotes orderly judicial functioning. Also the doctrine of primary jurisdiction may be appropriately invoked even if plaintiff has an additional or concurrent, private remedy under the Rehabilitation Act or Section 1983. See Drennon v. Philadelphia General Hospital, 428 F.Supp. 809, 816-18 (E.D.Pa.1977).
Because of the unsettled controversy as to whether plaintiff has an independent private cause of action under the Rehabilitation Act or Section 1983, the Court does not decide at this time if the case should be dismissed pending exhaustion of administrative remedies. Further factual or legal developments in this case could change that decision. Moreover, staying this action, rather than dismissing it, has a certain equitable appeal based on the facts of this particular case. See footnote 8, infra.
Defendants' claim that an injunction is barred by the Eleventh Amendment is rejected. The proposed relief is in the form of prospective injunctive relief, not an award of money damages, Milliken v. Bradley (Milliken II), ___ U.S. ___, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977), and thus would not be barred by the Eleventh Amendment. Therefore the Court does not decide if defendants may have waived the protection of the Eleventh Amendment by accepting federal funds.