Did federal disability law prevent Texas from requiring school-bus drivers to meet a minimum hearing standard?

Texas AG Opinion JM-78: School-Bus Driver Hearing Standard

Plain-English summary

JM-78 concluded that section 504 of the Rehabilitation Act did not, as a matter of law, prohibit Texas agencies from requiring prospective school-bus drivers to demonstrate a minimum level of hearing ability. The Texas standard allowed an applicant to use a hearing aid to meet the threshold.

"One standard requires a minimum hearing ability and permits the use of a hearing aid to attain that ability."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0078.pdf

"We therefore conclude that the standard in question does not, as a matter of law, violate section 504."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0078.pdf

The opinion also concluded that the Texas Education Agency and Department of Public Safety had statutory authority to adopt reasonable school-bus driver fitness standards beyond those expressly written in article 6687b, including a minimum hearing level.

"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."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0078.pdf

"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."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0078.pdf

JM-78 did not decide whether the specific standard was reasonable, necessary, procedurally adopted, or fully compliant with every applicable law. Those issues required factual determinations outside the Attorney General opinion process.

"We do not address the question of whether its adoption was procedurally correct."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0078.pdf

"To resolve completely the question of whether it comports fully with this section or with other applicable laws . . . 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."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0078.pdf

Currency note

This opinion was issued in 1983. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Subsequent judicial treatment of a cited case

JM-78 described the district-court decision in Strathie as upholding a Pennsylvania rule that barred hearing-aid users from school-bus licenses. The Third Circuit had vacated that district-court judgment and remanded on September 8, 1983, before JM-78 issued on October 13, 1983.

"We will vacate the district court's judgment and remand for further proceedings."
Source: https://www.courtlistener.com/opinion/8927707/

The appellate court required a factual basis reasonably showing that accommodation would change the essential nature of the program or impose an undue burden. It found that the district court had not addressed proposed accommodations involving secure hearing aids, inspections, spare batteries, preset volume, and stereo hearing aids.

"A handicapped individual who cannot meet all of a program's requirements is not otherwise qualified if there is a factual basis in the record reasonably demonstrating that accommodating that individual would require either a modification of the essential nature of the program, or impose an undue burden on the recipient of federal funds."
Source: https://www.courtlistener.com/opinion/8927707/

"The district court accepted the Department's reliance on the risk of hearing aid dislodgement without addressing Strathie's proposed modification."
Source: https://www.courtlistener.com/opinion/8927707/

JM-78's citation to the district-court outcome should therefore not be treated as continuing judicial support for a blanket ban on hearing-aid users.

"[W]e cannot affirm the district court on the basis of risk of dislodgement."
Source: https://www.courtlistener.com/opinion/8927707/

Common questions

What did the Texas hearing standard require?

It treated an applicant as hearing-impaired if the applicant could not meet a 10/15 whispered-voice threshold, and it allowed a hearing aid.

"Applicant's hearing is not a minimum of 10/15 by whispered voice. Hearing aid is permissible."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0078.pdf

Did section 504 require agencies to ignore every disability-related physical qualification?

No. JM-78 relied on Southeastern Community College v. Davis, which said an otherwise qualified person had to meet a program's requirements despite the disability and recognized that legitimate physical qualifications could be essential.

"An otherwise qualified person is one who is able to meet all of a program's requirements in spite of his handicap."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0078.pdf

"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."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0078.pdf

Why did JM-78 say some hearing standard could be connected to school-bus safety?

It reasoned that severely impaired hearing could prevent a driver from hearing horns, sirens, or children's voices.

"The safety of children being transported 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."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0078.pdf

Did the opinion finally validate the specific 10/15 whispered-voice standard?

No. It held only that the standard did not violate section 504 as a matter of law. It declined to resolve factual questions about reasonableness and need.

"We emphasize, however, that we hold only that the standard in question does not, as a matter of law, violate section 504."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0078.pdf

"[W]e 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."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0078.pdf

Could an agency reject a driver who met the hearing standard and all other legal requirements?

JM-78 said no discrimination would be legally permissible against an applicant who satisfied the standard and the other applicable requirements.

"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."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0078.pdf

Background and statutory framework

The executive director of the Texas School for the Deaf challenged the hearing rule as potentially inconsistent with section 504 of the Rehabilitation Act.

"You have challenged the legality of this standard. Your argument appears to be that it violates section 504 of the Rehabilitation Act of 1973."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0078.pdf

Section 504 barred disability-based exclusion from a federally funded program when the person was otherwise qualified.

"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."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0078.pdf

Article 6687b required annual physical examinations showing a school-bus driver's physical and mental capacity to operate safely. Other provisions authorized DPS examinations and joint school-bus operating regulations.

"It shall be unlawful for any person to be employed 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 physical and mental capabilities to safely operate a school bus."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0078.pdf

"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."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0078.pdf

Holding

"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."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0078.pdf

Citations and references

Statutes and regulations quoted or discussed by JM-78:

• "section 5(a) of article 6687b, V.T.C.S." Official PDF
• "section 504 of the Rehabilitation Act of 1973" Official PDF
• "29 U.S.C. §794" Official PDF
• "section 4 of article 6687b" Official PDF
• "Section 10 of article 6687b" Official PDF
• "Section 11.12 of the Education Code" Official PDF
• "section 21.171 of the Education Code" Official PDF

Cases cited by JM-78:

• "Southeastern Community College v. Davis, 442 U.S. 397 (1979)" Official PDF
• "Strathie v. Department of Transportation of the Commonwealth of Pennsylvania, 547 F. Supp. 1367 (E.D. Pa. 1982)" Official PDF

Subsequent judicial treatment:

• The Third Circuit's 1983 Strathie v. Department of Transportation decision, vacating and remanding the district-court judgment CourtListener

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0078
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0078.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.

The Attorney General of Texas

JIM MATTOX
Attorney General

October 13, 1983

Mr. Victor H. Galloway, Ed.D.
Executive Director
Texas School for the Deaf
1102 South Congress Avenue
Austin, Texas 78764

Opinion No. JM-78

Re: Construction of section 5(a) of article 6687b, V.T.C.S.

Dear Mr. Galloway:

Section 5(a) of article 6687b, V.T.C.S., provides in part as follows:

It shall be unlawful for any person to be employed 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 physical and mental capabilities to safely operate a school bus. Such physical examinations shall be conducted annually for each driver, thereafter. . . . Such physical and driver's license examinations shall meet the criteria set forth in this Act. (Emphasis added).

The Texas Education Agency (hereinafter TEA) and the Department of Public Safety (hereinafter DPS) have adopted various standards for determining whether prospective school bus drivers are physically capable of safely operating a school bus. One standard requires a minimum hearing ability and permits the use of a hearing aid to attain that ability. An applicant is considered to have a hearing impairment if

applicant's hearing is not a minimum of 10/15 by whispered voice. Hearing aid is permissible.

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. . . .

29 U.S.C. §794. It is not clear from your letter whether your argument is that section 504 prohibits TEA and DPS from disqualifying a 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:

8. 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 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. Supp. 1341, 1345 (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 educational institutions to disregard the disabilities of handicapped individuals or to make 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 institution from taking into account any 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 who is able to 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. §§84.3-84.99, 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 being transported 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 sections 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.

Very truly yours,

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

APPROVED:
OPINION COMMITTEE

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