Lee Meyerson v. The State of Arizona Arizona Board of Regents

ORDER

Appeal from the United States District Court for the District of Arizona.

Before WALLACE and' FERGUSON, Circuit Judges, and GRANT,^* District Judge.

The Supreme Court vacated the judgment in this case and remanded it to us for further consideration in light of Consolidated Rail Corp. v. Darrone, 465 U.S. -, 104 S.Ct. 1248, 79 L.Ed.2d 568 (1984) (Darrone). Meyerson charged that Arizona State University had discriminated against him in violation of four statutory provisions of federal law. The district court granted summary judgment against Meyerson. 526 F.Supp. 129 (D.Ariz.1981). Meyerson appealed as to three of the claims, and we affirmed the district court on all three. See 709 F.2d 1235 (9th Cir. 1983). The remand from the Supreme Court involves only Meyerson’s claim under section 504 of the Rehabilitation Act of 1973, as amended (the Act), 29 U.S.C. § 794.

In reviewing Meyerson’s section 504 claim, Scanlon v. Atascadero State Hospital, 677 F.2d 1271 (9th Cir.1982) (Scanlon), bound us to hold that a plaintiff may not maintain a private action under that section of the Act unless the federal financial assistance involved has a primary objective of providing employment. See 709 F.2d at 1237. The Supreme Court in Darrone makes it clear that Scanlon incorrectly decided this point. We therefore vacate the judgment of the district court on Meyer-son’s section 504 claim and remand it for further consideration in light of Darrone. We affirm the remaining parts of the judgment of the district court.

We commented in our previous decision that the district court may have rejected Meyerson’s section 504 claim on the additional ground that “he failed to establish a sufficient nexus between himself and the federal assistance received by the University.” 709 F.2d at 1237 n. 1. The record is inadequate for us to review this possible alternative holding. Furthermore, we observe that the Supreme Court has recently decided Grove City College v. Bell, 465 U.S. -, 104 S.Ct. 1211, 79 L.Ed.2d 516 (1984), a Title VII case involving definition of the terms “program or activity.” Although we express no opinion on the applicability of Grove City College v. Bell to Meyerson’s claim under section 504, we believe the district court should, if Meyer-son raises the point, have the first opportunity to address it.

AFFIRMED IN PART; VACATED AND REMANDED IN PART.