475 U.S. 1118
106 S.Ct. 1633
90 L.Ed.2d 179
SCHOOL BOARD OF NASSAU COUNTY, FLORIDA and Craig Marsh,  Individually and as Superintendent of Schools of  Nassau County, Floridav.Gene H. ARLINE.
No. 85-1277
Supreme Court of the United States
April 21, 1986

On petition for writ of certiorari to the United States Court of Appeals for the Eleventh Circuit.
The motion of respondent for leave to proceed in forma pauperis is granted.  The petition for writ of certiorari is granted, limited to Question 1 presented by the petition.  In addition, the parties are requested to brief and argue the following question:
"Whether one who is afflicted with the contagious,      infectious disease of tuberculosis is precluded from being      'otherwise qualified' for the job of elementary-school      teacher, within the meaning of Section 504 of the      Rehabilitation Act of 1973, 29 U.S.C. § 794?"
Justice STEVENS, dissenting.


1
The Court of Appeals remanded this case for further proceedings, and concluded its opinion as follows:


2
"In this case, the district court made no findings resolving      the numerous factual disputes as to whether the risks      entailed in retaining Arline in her elementary school      position precluded her from having the necessary physical      qualifications for the job, whether the same would be true if      she were transferred to a position teaching less susceptible      individuals, or whether the costs involved in accommodating      her would place undue burdens on the school system.  Rather,      it simply concluded that the school board was exempt from any      duty whatever to weigh the actual costs and risks involved in      accommodating Arline because of an overriding 'duty to the      public it serves.'  Section 504 by its existence establishes      that such a duty cannot be used to shield an entity from      liability for making decisions which 'arbitrarily deprive      genuinely qualified handicapped persons of the opportunity to      participate in a covered program.'  Southeastern Community      College [v. Davis, 442 U.S. 397, 412, 99 S.Ct. 2361, 2370, 60 L.Ed.2d 980 (1979) ].      We therefore remand this case for further findings as to      whether the risks of infection precluded Mrs. Arline from      being 'otherwise qualified' for her job and if so whether it      was possible to make some reasonable accommodation for her in      that teaching position, in another position teaching less      susceptible individuals, or in some other kind of position in      the school system."  772 F.2d 759, 765 (CA11 1985) (footnotes      omitted).


3
In my opinion, it is inappropriate for this Court to direct the parties to present argument on the "otherwise qualified" issue before the District Court has an opportunity to make the findings ordered by the Court of Appeals.  It is especially inappropriate because petitioner did not seek review on that issue. Accordingly, I respectfully dissent.

