                                                      The Attorney        General of Texas
                                                                     October 13, 1983
      JIM MATTOX
      Attorney General



      Supreme      Court Building
      P. 0. Box 12546
                                                    Mr. Victor H. Galloway, Ed.D.          Opinion No. .JM-78
      Austin.    TX. 7671% 2546                     Executive Director
      51214752501                                   Texas School for the Deaf              Re:   Construction of section
      Telex    9101674.1367                         1102 South Congress Avenue             5(a) of article 6687b, V.T.C.S.
      Telecopier     5121475.0266                                   78764
                                                    Austin, Texas

      714 Jackson.    Suite 700                     Dear Mr. Galloway:
      Dallas,   TX. 752084506
      2141742.6944                                       Section 5(a) of article 6687b, V.T.C.S., provides in part as
                                                    follows:
      4024 Alberta       Ave.. Suite          160
      El Paso, TX.       799052793                           It shall be unlawful for any person to be employed
      9151533.3464                                           to drive a motor vehicle while in use as a school
                                                             bus for the transportation of pupils who has not
                                                             undergone a physical examination which reveals his
-   A01      Texas,    Suite 700
          wston.    TX. 77002~3111
                                                             physical and mental capabilities to safely operate
      I 1312236666
                                                             a school bus. Such physical examinations shall be
                                                             conducted     annually     for    each     driver,
                                                             thereafter. . . .   Such physical and driver's
      606 Broadway,             Suite 312                    license examinations shall meet the criteria set
      Lubbock,     TX.        79401.3479
                                                             forth in this Act. (Emphasis added).
      606/747-5236

                                                         The Texas Education Agency (hereinafter TEA) and the Department
      4309 N. Tenth. Suite B                        of Public Safety (hereinafter DPS) have adopted various standards for
      McAllen.     TX. 76501-1665                   determining whether prospective school bus drivers are physically
      5121662.4547
                                                    capable of safely operating a school bus. One standard requires a
                                                    minimum hearing ability and permits the use of a hearing aid to attain
      200   Main     Plaza,     Suite   400         that ability. An applicant is considered to have a hearing impairment
      San Antonio,        TX.     76205.2797        if
      512/225-4191

                                                             [alpplicant's hearing is not a minimum of lo/15 by
      An Equal       Opportunity/
                                                             whispered voice. Hearing aid is permissible.
      Affirmative      Action       Employer
                                                         You have challenged the legality of this standard. Your argument
                                                    appears to be that it violates section 504 of the Rehabilitation Act
                                                    of 1973. This section states in part:

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


                                                                              p. 328
Mr. Victor H. Galloway - Page 2   (JM-78)




29 U.S.C. 9794. It is not clear from your letter whether your
argument is that section 504 prohibits TEA and DPS from disqualifying
3    prospective school bus driver solely because he is hearing
impaired, or whether it is that this particular standard is illegal.
As we shall show, however, the former argument is untenable, and the
latter cannot be conclusively answered in the opinion process.

     Before exploring the issue of whether this standard comports with
section 504, we must consider whether TEA and DPS were authorized to
promulgate it. The portion of section 5(a) of article 6687b that we
reprinted above is relevant in this inquiry. Section 4 of the same
article also provides that DPS shall not issue a license, inter alia:

            a. To any person when in the opinion of the
         Department such person is afflicted with or
         suffering from such physical or mental disability
         or disease as will serve to prevent such person
         from exercising reasonable and ordinary control
         over a motor vehicle while operating the same upon
         the highways. . . provided, however, no person
         shall be refused a license because of any physical
         defect unless it be shown by common experience
         that such defect incapacitates him from safely
         operating a motor vehicle.

Section 10 of article 6687b provides that DPS:

         shall examine every applicant for an operator's,
         commercial operator's, or chauffeur's license,
         except as otherwise provided in this Section.
         Such examination. . . shall include [certain
         tests] and such further physical and -written
         examination as the Department finds necessary to
         determine the applicant's fitness to operate a
         motor vehicle safely upon the highways. . . .
         (Emphasis added).

Section 11.12 of the Education Code provides in part:

            The Central Education Agency and the State
         Board of Control, by and with the advice of the
         director of the Department of Public Safety, shall
         have joint and complete responsibility to adopt
         and   enforce   regulations   governing   the. . .
         operation   of   all   school   buses    for   the
         transportation of school children. . . .

Finally, section 21.171 of the Education Code provides that:

            The boards of trustees of all school districts
         providing transportation for pupils and all



                             p. 329
     ,   .


             Mr. Victor H. Galloway - Page 3 (~~-78)


-.



                      drivers used in that service shall abide by any
                      and all regulations pertaining thereto which may
                      be promulgated by the State Department of
                      Education as authorized in Section 11.12 of this
                      code.

                  In our opinion, these statutes authorize TEA and DPS to
             promulgate reasonable standards in addition to those set forth in
             article 6687b for determining whether an individual is physically
             capable of safely operating a school bus. These agencies may also
             conclude that, to be deemed capable of operating a bus, a prospective
             school bus driver must be able to hear at a certain minimum level.
             Thus, we conclude that the requirement in question is not invalid for
             the reason that TEA and DPS lacked statutory authority to promulgate
             it. We do not address the question of whether its adoption was
             procedurally correct. The next question is whether the requirement
             violates section 504.

                  The first case in which the United States Supreme Court dealt
             with section 504 was Southeastern Community College v. Davis, 442 U.S.
             397 (1979). In that case, a woman who suffered from a serious hearing
             disability and who sought to be trained as a registered nurse was
-
             denied admission to the nursing program of Southeastern Community
             College, a state institution that received federal funds.           An
             audiologist's report indicated that even with a hearing aid, the woman
             could not understand speech directed to her except through lipreading.
             The college rejected her application for admission because it
             concluded that her hearing disability would make it impossible for her
             to safely participate in the normal clinical training program or
             provide safe care for patients.

                  After being rejected, the woman filed suit in federal court
             alleging that the college had discriminated against her in violation
             of federal law. The lower court disagreed, concluding that she was
             not an "otherwise qualified handicapped individual" protected by
             section 504 and that the decision to reject her was not discriminatory
             within the meaning of that section. 424 F. s~pp.   1341, 345 (E.D.N.c.
             1976). The court of appeals, however, reversed, holding that the
             college had to consider the woman's application for admission without
             regard to her hearing ability, and that in determining whether she was
             "otherwise qualified," the college had to confine its inquiry to her
             academic and technical qualifications. 574 F.2d 1158, 1161 (4th Cir.
             1978).

                  A unanimous Supreme Court reversed the court of appeals. In its
             opinion, the court made several pertinent observations regarding
             section 504:

                       Section 504 by its terms does not compel
-c                     educational   institutions   to   disregard    the
                       disabilities of handicapped individuals or to make


                                             p. 330
Mr. Victor H. Galloway - Page 4     (JM-78)




          substantial modifications in their programs to
          allow disabled persons to participate. Instead,
          it requires only that an 'otherwise qualified
          handicapped individual' not be excluded from
          participation in a federally funded program
          'solely by reason of his handicap,' indicating
          only that mere possession of a handicap is not a
          permissible ground for assuming an inability to
          function in a particular context.

             The court below, however, believed that the
          'otherwise qualified'     persons   protected   by
          [section] 504 include those who would be able to
          meet the requirements of a particular program in
          every respect except as to limitations imposed by
          their handicap. See 574 F.2d, at 1160. Taken
          literally,   this holding     would   prevent   an
          taking
          institution   from                   account   an
          limitation resulting from the handicap, however
          disabling. It assumes, in effect, that a person
          need not meet legitimate physical requirements in
          order to be 'otherwise qualified.' We think the
          understanding of the District Court is closer to
          the plain meaning of the statutory language. An
           otherwise qualified person is one tiho is dnie G
           meet all of a program's requirements in spite of
           his handicap. (Emphasis added).

442 U.S. at 405-06. With respect to the    regulations promulgated by
                                         .~ __                    .
the Department of Health, Education and Welfare to Interpret section
504, see, e.g., 45 C.F.R. 5084.3-84.99, the court stated that:

          A further note emphasizes that legitimate physical
          qualifications may be essential to participation
          in particular programs.      We think it clear,
          therefore, that HEW      interprets the    'other'
          qualifications which a handicapped person may be
          required to meet as including necessary physical
          qualification. (Emphasis added).

 442 U.S. at 407.     The court concluded that the college legally
 rejected the applicant. It found that she was not an "otherwise
 qualified handicapped individual" because she could not "meet all of
 [the college's] requirements in spite of [her] handicap." 442 U.S. at
 406.

      Given its reasoning in the Davis case, we think that it is
 abundantly clear that the Supreme Court would reject any argument that
 section 504 absolutely prohibits TEA and DPS from requiring that
 prospective school bus drivers be able to demonstrate some particular
 level of hearing competency. The safety of children beingtransported


                                  p. 331
       Mr. Victor H. Galloway - Page 5    (JM-78)


c-4



       in a school bus could be jeopardized if the hearing of the driver of
       that bus were impaired to such an extent that he could not hear
       automobile horns, sirens, the voices of the children themselves, etc.
       We therefore conclude that the standard in question does not, as a
       matter of law, violate section 504. In this connection, we note that
       this standard is, in certain respects, less onerous than the
       regulation that was upheld in Strathie v. Department of Transportation
       of the Commonwealth of Pennsylvania, 547 F.Supp. 1367 (E.D.Pa. 1982).
       There, the court rejected a challenge brought under the equal
       protection clause of the Fourteenth Amendment, section 1983 of the
       1871 Civil Rights Act (42 U.S.C. §1983), section 504 of the
       Rehabilitation Act of 1973, and various state statutes, against a
       regulation that prohibited persons needing and wearing hearing aids
       from being licensed as school bus drivers, even if, with the use of
       the hearing aid, the person's hearing would be considered normal.

            We emphasize, however, that we hold only that the standard in
       question does not, as a matter of law, violate section 504. To
       resolve completely the question of whether it comports fully with this
       section or with other applicable laws such as section 4(8) and 5(a) of
       article 6687b. we would have to resolve numerous questions of fact
       concerning its reasonableness, the need for it, etc. We cannot
       undertake such a task in the opinion process. We also emphasize that
--     if this standard were to be found valid, it would be legally
       impermissible to discriminate against a prospective bus driver who
       satisfies the standard as well as other applicable legal requirements.

                                    SUMMARY

                    A standard promulgated by the Texas Education
                 Agency and the Department of Public Safety which
                 requires that prospective school bus drivers be
                 able to demonstrate a reasonable level of hearing
                 competency does not, as a matter of law, violate
                 section 504 of the Rehabilitation Act of 1973.1




                                              JIM     MATTOX
                                              Attorney General of Texas

       TOM GREEN
       First Assistant Attorney General

       DAVID R. RICHARDS
       Executive Assistant Attorney General
- -,   Prepared by Jon Bible
       Assistant Attorney General


                                    p. 332
Mr. Victor H. Galloway - Page 6 (JM-78)




APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Jon Bible
David Brooks
Rick Gilpin
Jim Moellinger
Nancy Sutton




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