13. Discrimination in Schools

(a)    School systems and other public providers of services to youth should not discriminate against a youth because he or she seeks treatment for alcohol or other drug problems.

(b)    States should enact legislation as necessary to prevent such discrimination.

One of the principle concerns raised at the Advisory Commission field hearings was the need to improve access to treatment facilities for youth with alcohol and drug problems. The Advisory Commission, however, learned from the witnesses at these hearings that there are barriers to treatment even for youth voluntarily seeking such treatment.3I9 Some of the most critical sources for access to treatment for youth are teachers and other school personnel. Teachers and school personnel often serve as advisors and counselors, particularly regarding alcohol and other drug problems. Some school systems, however, are reluctant to permit students to attend treatment programs during the school year in addition to providing the related educational services to assist that student during and after such treatment. For example, the Commission learned of one situation involving a student voluntarily seeking alcohol treatment during the school year who was denied a leave of absence and the necessary tutoring to make up school work missed during his treatment.320 Because of the significant health risks involved in delaying such treatment, this recommendation urges schools and other public service providers to assist students in seeking treatment in the same manner as students afflicted with other illnesses and learning disabilities who presently receive the protection of the laws, rules and regulations ensuring equal educational opportunities.

It has been established under federal law that public schools ordinarily fall within the scope of Sections 503 and 504 of the Rehabilitation Act of 1973 as federal contractors or recipients of federal funds.32I It has also been established that under federal law as interpreted by the Attorney General and under regulations, persons recovering from alcoholism and drug addiction are covered under these sections.322 In addition to Section 503 and 504, youth suffering from alcohol and drug problems may also be protected under Public Law 91-230, 20 U.S.C. 1401 et seg. Under that Act, the Supreme Court has upheld the providing of educationally "related services" such as clean intermittent catherization to a young student suffering from spina bifida.323 Substance abuse counseling, tutoring and other needed services would appear to be "related services" for youth with alcohol and other drug problems while attending school. Some states have also enacted similar statutory and regulatory provisions protecting disabled persons, specifically extending such provisions to cover persons recovering from substance addictions.324 In some instances, the states' laws are broader in scope as to the services covered than the federal provisions.325

Recently, however, several questions have surfaced regarding the obligations of the states and their political subdivisions under the Federal nondiscrimination laws. These questions relate to the 11th Amendment State immunity from lawsuits in the federal courts without a waiver or consent by the states. In two suits, Pennhurst State School and Hosp. v. Haldeman,326 and Scanlon v. Atascadero State Hospita1,321 this immunity issue has been recently decided by the U.S. Supreme Court in different ways. In Pennhurst, one of the issues was the 1 1 th Amendment immunity of counties receiving state funds. In its Pennhurst opinion, the Supreme Court held that since the county's involvement in the case was a function of state laws and funds, as in the education field, there could be no suit against them in that case.

In Scanlon, one of the issues is whether the states themselves are immune from all lawsuits under Section 504 of the Rehabilitation Act. On June 28, 1985, the Court held that under the 11th Amendment the state of California was immune from suits in federal court brought under Section 504 of the Rehabilitation Act.328 There were three separate bases for reversing the lower court's decision that the 1 1 th Amendment did not apply: I) that in Section 504 Congress did not specifically abrogate the states' 1 lth Amendment immunity; 2) that the California law permitting suits against the state did not specifically waive the state's 1 I th Amendment immunity against suits in federal court; and 3) that the state's taking of federal funds did not constitute a waiver of its 1 1 th Amendment immunity.329

Despite the holding in Scanlon, however, there are still state law grounds for opposing discrimination against youth with alcohol and drug problems. Also, as the Court itself noted in Scanlon, Section 504 could possibly be amended by Congress to specifically abrogate the states I 1 th Amendment immunity or to provide for a waiver by the states upon receipt of federal funds as now is required by the Scanlon and Pennhurst holdings.330

3I9 5ee, 1,g., testimony of Thomas C. Blatner, Princeton.

320 See statement of David G. Evans, Esq., Princeton.

321 29 U.S.C. 793, 794 (1982). Section 503 and 504 are the civil rights laws involving equal employment and public service to the handicapped. See, elg., Irving Indep. School Dist. v. Tatro, 104 S. Ct. 3371 (1984), and, generally, Smith v. Robinson, 104 S. Ct. 3457 (1984) (relief under 504 denied on other grounds).

322 5ee 43 Op. Att'y Gen. 12 (1977).

323 5ee Irving Indep. School Dist. v. Tatro, 104 S. Ct. 3371 (1984). See also  School Committee of Town of Burlington v. Dept. of Education of Mass., No. 84-433 Slip op. (April 29, 1985). (affirming reimbursement to parents for educational placement of their handicapped child in a private school).

324 See, e,g., Minn Stat. Ann. Sec. 363.01 et seg. (West 1966 and Supp. 1985), and Sec. 120.03 (West 1960 and Supp. 1985)T 10 N.J. Stat. Ann. Sec. 10:5-1 et seg. (West 1976 and Supp. 1984-85); and Wis. Stat. Ann. Sec. 111.31 et (West 1974 and Supp. 1984-85). See also Nold, Hidden Handicaps: Protection of Alcoholics, Drug Addicts and the Mentally Ill Against  Employment Discrimination Under the Rehabilitation Act of 1973 and the  Wisconsin Fair Employment Act, 1983 Wis. L. Rev. 725.

325 Supra note 324.

326 104 S. Ct. 900 (1984). 327104 S. Ct. 1583 (1984).