OPINION OF THE COURT
GIBBONS, Circuit Judge.
In these appeals we review two injunctive orders entered by the district court in an action charging that the defendants, officials of the Philadelphia School District, discriminated against the plaintiff, Judith Gurmankin, because she is a blind person.
When her name was reached on the eligibility list the District offered her several positions, none of which she accepted, because they were not accompanied by an agreement that she would be afforded seniority as of the time she should properly have been admitted to the examination. Ms. Gurmankin filed this suit in November 1974, and on March 31, 1976 the district court ruled in her favor. The court ordered defendants to offer her employment
The effect of this injunction was to require her employment, with a September 1970 seniority date. The court reserved decision on class aspects of the litigation and on back pay and attorney's fees.
Both the defendants and Ms. Gurmankin appealed from the injunction. The defendants contend that no order should have been entered. Ms. Gurmankin contends that the court fixed a seniority date later than that to which she was entitled. The
Despite the absence of a stay, ten months after the injunction issued Ms. Gurmankin still was not employed by the District as an English teacher. Several offers of employment had been made to her, but she rejected them as not reflecting the seniority awarded her by the court. In January, 1977, she filed a motion to amend the injunction. She contended that the District had offered her only the least attractive schools in the system, while teachers with less seniority were placed in more attractive schools. The court permitted limited discovery on that contention, found it to be meritorious, and concluded:
It then amended the injunction to provide:
From this order the defendants again appealed, and again unsuccessfully sought a stay. The appeals were consolidated. In each we affirm.
I. THE ORIGINAL INJUNCTION
The defendants contend that the court erred in finding a due process violation in the District's pre-1974 policy of refusing to allow blind persons to take the Philadelphia Teachers Examination. They also contend that an award of seniority is beyond the equitable powers of a federal court. Ms. Gurmankin defends the injunction not only for the constitutional reasons on which the district court relied, but also on equal protection grounds and on a statutory supremacy ground. The statutory supremacy argument refers to § 504 of the Rehabilitation Act of 1973, P.L. 93-112, 87 Stat. 357, 29 U.S.C. § 794:
It was apparently in response to this statute that in 1974 the District changed its policy and permitted Ms. Gurmankin to take the examination.
Relying on Cleveland Board of Education v. LaFleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974), the court held that the
In LaFleur, of course, the court dealt with employed teachers, and thus with some continued expectation of employment based on state law. Ms. Gurmankin had no contract of employment, but she had an expectation, based on state law, of being admitted to the qualifying examination. In July 1970 she was issued a Professional Certificate, No. 190-34-3597, by the Pennsylvania Department of Education, certifying her as a qualified teacher of Comprehensive English. Under the rules of the Philadelphia School District this certificate was the only requirement for entrance to the examination.
The District urges that even if we agree that there was a due process violation, the trial court lacked the power to cure it by the award of rightful place seniority. It distinguishes cases such as Franks v. Bowman Transp. Co., 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976) and United States v. Int'l Union of Elevator Constructors, 538 F.2d 1012 (3d Cir. 1976) as confined solely to remedies for violations of Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000e et seq. But the language of Title VII in § 706(g), 42 U.S.C. § 2000e-5(g), on which the courts have relied in affording seniority relief is merely ". . any other equitable relief as the court deems appropriate." There is no distinction in the law of equitable remedies between suits brought under Title VII and suits brought in reliance on 42 U.S.C. § 1983, or directly on the fourteenth amendment.
Bell v. Hood, 327 U.S. 678, 684, 66 S.Ct. 773, 777, 90 L.Ed. 939 (1946); Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 392, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). The equitable relief of an award of a retroactive seniority date was, on the record before us, entirely appropriate.
Because the district court's due process analysis was necessary to the decision and adequately sustains the injunction there is no reason for us to address Ms. Gurmankin's equal protection contentions. For the same reason we need not consider whether those contentions should, as the School District urges, be rejected on the authority of Mass. Bd. of Retirement v. Murgia, 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976) (per curiam). Nor do we have any occasion in this case to determine whether § 504 of the Rehabilitation Act of 1973 confers affirmative rights enforceable in private lawsuits. Courts which have considered that question have noted the similarity of language between § 504 and § 601 of the Civil Rights Act of 1964, 42 U.S.C. § 2000d. The latter statute was construed in Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1 (1974) to imply a private cause of action. See Lloyd et al. v. Regional Transportation Authority and Chicago Transit Authority, 548 F.2d 1277, 1280-1281 (7th Cir. filed Jan. 18, 1977), and cases therein cited, holding, on the authority of Lau v. Nichols, supra, that a private cause of action in favor of the handicapped is implied from § 504. The amici, The American Coalition of Citizens with Disabilities, Inc., The American Council of the Blind, The National Association of Blind Teachers, and the Counsel for Handicapped People, urge that this is an appropriate cause in which to adopt that position. We conclude that the question is not properly before us since the disputed issue, seniority, is unaffected by § 504.
II. MS. GURMANKIN'S APPEAL
The District Court fixed Ms. Gurmankin's seniority date as September, 1970. In her cross appeal she contends that she should have been awarded a seniority date of June, 1968, when she graduated from college. We find no error. The court found that she first sought a Philadelphia employment opportunity in 1969, and that if she had then been admitted to the examination, she would have been offered suitable employment by September, 1970. These findings are not clearly erroneous.
III. THE SUPPLEMENTAL ORDER
To support her contention that job offers made to her following the March 31, 1976 injunction were not in compliance with the injunction's seniority provisions, Ms. Gurmankin sought discovery of all secondary school English teachers hired from 1970 to 1977 and a list of the schools at which they are now teaching. The School District resisted
When the limited discovery was completed it disclosed that numerous persons hired after September, 1970 were teaching English at the six high schools selected by the plaintiff as more attractive, although Ms. Gurmankin was not offered a position in any of the six. The court concluded that the School District's refusal over ten months to place Ms. Gurmankin in an appropriate position commensurate with her September, 1970, seniority date had prevented the order from accomplishing its purpose, and entered the supplemental order quoted above.
The School District objects to that order because its implementation may require that some other teacher be "bumped." It made no showing by affidavit or testimony that in any of the six specific schools to which the supplemental order applies any "bumping" will occur. Nor has there been any showing that any teacher who may be "bumped" was placed in the position he or she occupies prior to the entry of the March 31, 1976 injunction. Certainly the School Board cannot be heard to claim equities of third parties, particularly when any such equities were created by its disobedience of the court's order. Moreover, even if the original order, by giving Ms. Gurmankin a competitive seniority date of September, 1970, put her in a position to bid for a more desirable school and "bump" teachers hired after that date (on this record a matter of speculation), it is settled that a court of equity has discretion to make such an order in a discrimination case. Franks v. Bowman Transp. Co., Inc., supra; United States v. Int'l Union of Elevator Constructors, supra. The School District's objections to the supplemental order are in essence the same objections it makes to the March 31, 1976 injunction. We reject them for the same reasons.
The orders appealed from will be affirmed.
Costs taxed in favor of appellee Gurmankin in Nos. 76-1730 and 77-1273. Costs taxed in favor of the appellees in No. 76-2297.
Salfi is distinguishable because it is a government benefits case. While this is not a distinction we would draw if writing on a clean slate, it is plainly the one drawn by the Supreme Court. Flemming v. Nestor was decided fourteen years before LaFleur. The Supreme Court evidently was content that Flemming and LaFleur coexist, even as recently as Salfi. There, Justice Rehnquist wrote, after discussing Flemming v. Nestor and several other "benefits" cases (422 U.S. at 768-770, 95 S.Ct. 2457):
In distinguishing Salfi from the LaFleur line, Justice Rehnquist noted that in Salfi:
The very point of this case is that denying Gurmankin the opportunity to take a qualifying exam, the defendants deprived her of the opportunity to present evidence of her qualifications. This is not a case challenging the competency requirements for teachers. It challenges the deprivation of the right to present evidence of competency. It is quite different from Salfi, and the district court was correct to regard it as controlled by LaFleur.