author: Justice Marshall Justice Powell,

text:
    FEDERAL COMMUNICATIONS COMMISSION et al. v. FLORIDA POWER CORP. et al.
    No. 85-1658.
    Argued December 3, 1986
    Decided February 25, 1987

      Marshall, J., delivered the opinion for a unanimous Court. Powell, J., filed a concurring opinion, in which O’Connor, J., joined, post, p. 254.

      Deputy Solicitor General Wallace argued the cause for appellants in No. 85-1658. With him on the brief were Solicitor General Fried, Harriet S. Shapiro, and Jack D. Smith. Jay E. Ricks argued the cause for appellants in No. 85-1660. With him on the briefs were Brenda L. Fox, E. Barrett Prettyman, Jr., and J. Christopher Redding.

      Allan J. Topols argued the cause for appellees in both cases and filed a brief for appellee Florida Power Corp. With him on the brief was Harry A. Evertz III. Peyton G. Bowman III and Daniel J. Wright filed a brief for appellees Alabama Power Co. et al. Shirley S. Fujimoto and Ralph A. Simmons filed a brief for appellee Tampa Electric Co.

      Together with No. 85-1660, Group W Cable, Inc., et al. v. Florida Power Corp. et al., also on appeal from the same court.

        Paul Glist filed a brief for the Texas Cable TV Association, Inc., et al. as amici curiae urging reversal in No. 85-1658.
      Briefs of amici curiae urging affirmance were filed for the Edison Electric Institute by Robert L. Baum and Jan J. Sagett; for the Mountain States Telephone and Telegraph Co. et al. by L. Andrew Tollin; and for the Pacific Legal Foundation by Ronald A. Zumbrun and John H. Findley.

        Briefs of amici curiae were filed for the Association of American Railroads by Paul A. Cunningham and Kenneth P. Kolson; and for Nor-West Cable Communications et al. by Harold R. Farrow, Sol Schildhause, and Siegfried Hesse.

   Justice Marshall

delivered the opinion of the Court.

These cases present consolidated appeals from a single decision of the United States Court of Appeals for the Eleventh Circuit holding that 47 U. S. C. § 224 (the Pole Attachments Act) effects an unconstitutional taking of property without just compensation.

I

The Pole Attachments Act, 92 Stat. 35, as amended, 47 U. S. C. §224, was enacted by Congress as a solution to a perceived danger of anticompetitive practices by utilities in connection with cable television service. Cable television operators, in order to deliver television signals to their subscribers, must have a physical carrier for the cable; in most instances underground installation of the necessary cables is impossible or impracticable. Utility company poles provide, under such circumstances, virtually the only practical physical medium for the installation of television cables. Over the past 30 years, utility companies throughout the country have entered into arrangements for the leasing of space on poles to operators of cable television systems. These contracts have generally provided for the payment by the cable companies of a yearly rent for space on each pole to which cables were attached, the fixed costs of making modifications to the poles and of physical installation of cables being borne by the cable operators. In many States the rates charged by the utility companies for these attachments have not been subject to regulation.

In response to arguments by cable operators that utility companies were exploiting their monopoly position by engaging in widespread overcharging, Congress in the Pole Attachments Act authorized the Federal Communications Commission to fill the gap left by state systems of public utilities regulation. See S. Rep. No. 95-580, pp. 12-14 (1977). The Act provides that any cable company operating in a State which does not regulate the rates, terms, and conditions of pole attachments may seek relief from alleged overcharging before the Commission, which is empowered to “regulate the rates, terms, and conditions for pole attachments to provide that such rates, terms, and conditions are just and reasonable . . . .” 47 U. S. C. § 224(b)(1). The Act establishes a standard for the Commission’s determination of rates, providing that “a rate is just and reasonable if it assures a utility the recovery of not less than the additional costs of providing pole attachments, nor more than an amount determined by multiplying the percentage of the total usable space, or the percentage of the total duct or conduit capacity, which is occupied by the pole attachment by the sum of the operating expenses and actual capital costs of the utility attributable to the entire pole, duct, conduit, or right-of-way.” § 224(d)(1).

In 1963, appellee Florida Power Corporation (Florida Power) entered into a pole attachment agreement with appellant Cox Cablevision Corporation (Cox). Florida Power subsequently, in 1977 and 1980, contracted for similar purposes with Teleprompter Corporation and Teleprompter Southeast, Inc. (Teleprompter), and Acton CATV, Inc. (Acton), respectively. In November 1980, Teleprompter filed a complaint with the FCC, alleging that its 1980 per pole rent of $6.24 was unreasonable under the Act. In February 1981, Acton filed a complaint concerning the rate under its agreement, which was $7.15 per pole. In July 1981, the Commission’s Common Carrier Bureau issued a memorandum opinion and order finding in favor of Teleprompter and Acton, reforming the agreements to provide in both cases for yearly rents of $1.79 per pole, and ordering refunds of excess rents paid after the filing of the complaints. Florida Power filed an application for review by the FCC; during the pendency of this application Cox filed a complaint seeking revision of the rent charge under its 1963 agreement, which was at that time set at $5.50 per pole. The Common Carrier Bureau ordered reformation of Cox’s agreement to provide for rent of $1.79 per pole. In September 1984 the FCC, in a single order, approved the orders of the Common Carrier Bureau in all three cases. The Commission rejected constitutional arguments raised by Florida Power under the Takings and Due Process Clauses, and upheld the rate calculations made by the Bureau.

Florida Power then sought review of the FCC’s decision in the United States Court of Appeals for the Eleventh Circuit. Neither Florida Power nor any of the intervenors argued before the Eleventh Circuit that the Pole Attachments Act was unconstitutional. The Court of Appeals nonetheless held in a per curiam opinion that the Pole Attachments Act violated the Fifth Amendment. 772 F. 2d 1537 (1985). The court first concluded that the Act effected a taking of property because it authorized a permanent physical occupation of property under our decision in Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419 (1982). 772 F. 2d, at 1544. The court then struck down the Act under the Fifth Amendment because it authorizes the FCC to make the initial determination of the amount of compensation to be paid under legislatively prescribed standards. “By prescribing a ‘binding rule’ in regard to the ascertainment of just compensation,” the court stated, “Congress has usurped what has long been held an exclusive judicial function.” Id., at 1546.

The FCC and intervenor cable operators noticed separate appeals from this decision. We noted probable jurisdiction and consolidated the cases for argument and decision, 476 U. S. 1156 (1986). We now reverse.

I — I HH

The Court of Appeals found at the outset that the Pole Attachments Act authorizes a permanent physical occupation of property, which, under the rule we adopted in Loretto, is per se a taking for which compensation must be paid. 772 F. 2d, at 1543-1544. We disagree with this premise, for we find that Loretto has no application to the facts of this litigation.

In Loretto we reviewed a New York statute which prohibited any owner of rental property from “interfer[ing] with the installation of cable television facilities upon his property or premises,” and provided that the landlord could charge cable operators for access to his property only the amount “which the [State Commission on Cable Television] shall, by regulation, determine to be reasonable.” 458 U. S., at 423, and n. 3. The appellant in Loretto had purchased an apartment building upon the roof of which appellee had mounted cables and switching boxes for the provision of cable television service to tenants. The State Commission on Cable Television had declared that a one-time charge of $1 might be levied by landlords in return for the statutory compulsory access to property. Id., at 424-425. We found that our prior decisions interpreting the Takings Clause, along with the purposes of the Clause itself, compelled the conclusion that “a permanent physical occupation authorized by government is a taking without regard to the public interests that it may serve.” Id., at 426. We reversed the holding of the New York Court of Appeals that the challenged statute did not take property within the meaning of the Fifth Amendment, and remanded for consideration of the issue whether just compensation had been paid.

We characterized our holding in Loretto as “very narrow.” Id., at 441. The Court of Appeals in its decision in these cases broadened that narrow holding beyond the scope to which it legitimately applies. For, while the statute we considered in Loretto specifically required landlords to permit permanent occupation of their property by cable companies, nothing in the Pole Attachments Act as interpreted by the FCC in these cases gives cable companies any right to occupy space on utility poles, or prohibits utility companies from refusing to enter into attachment agreements with cable operators. The Act authorizes the FCC, in the absence of parallel state regulation, to review the rents charged by public utility landlords who have voluntarily entered into leases with cable company tenants renting space on utility poles. As we observed in Loretto, statutes regulating the economic relations of landlords and tenants are not per se takings. Id., at 440; see Bowles v. Willingham, 321 U. S. 503, 517-518 (1944); Block v. Hirsh, 256 U. S. 135, 157 (1921); see also Fresh Pond Shopping Center, Inc. v. Callahan, 464 U. S. 875 (1983) (dismissing challenge to rent control ordinance under Loretto for want of substantial federal question). “So long as these regulations do not require the landlord to suffer the physical occupation of a portion of his building by a third party, they will be analyzed under the multifactor inquiry generally applicable to nonpossessory governmental activity.” Loretto, supra, at 440 (emphasis added).

This element of required acquiescence is at the heart of the concept of occupation. As we said in Loretto:

“[Property law has long protected an owner’s expectation that he will be relatively undisturbed at least in the possession of his property. To require, as well, that the owner permit another to exercise complete dominion literally adds insult to injury. Furthermore, such an occupation is qualitatively more severe than a regulation of the use of property, even a regulation that imposes affirmative duties on the owner, since the owner may have no control over the timing, extent, or nature of the invasion.” 458 U. S., at 436 (citation omitted).

Appellees contend, in essence, that it is a taking under Loretto for a tenant invited to lease at a rent of $7.15 to remain at the regulated rent of $1.79. But it is the invitation, not the rent, that makes the difference. The line which separates these cases from Loretto is the unambiguous distinction between a commercial lessee and an interloper with a government license. We conclude that the Court of Appeals erred in applying the per se rule of Loretto to the Pole Attachments Act.

I — i I — I HH

The remaining question, whether under traditional Fifth Amendment standards the challenged FCC order effected a taking of property, is readily answered. It is of course settled beyond dispute that regulation of rates chargeable from the employment of private property devoted to public uses is constitutionally permissible. See Munn v. Illinois, 94 U. S. 113, 133-134 (1877); Permian Basin Area Bate Cases, 390 U. S. 747, 768-769 (1968). Such regulation of maximum rates or prices “may, consistently with the Constitution, limit stringently the return recovered on investment, for investors’ interests provide only one of the variables in the constitutional calculus of reasonableness.” Id., at 769. So long as the rates set are not confiscatory, the Fifth Amendment does not bar their imposition. St. Joseph Stock Yards Co. v. United States, 298 U. S. 38, 53 (1936); see Permian Basin, supra, at 770.

The Pole Attachments Act, as previously noted, provides a range of reasonableness within which the FCC may undertake ratesetting. The Act provides that the minimum reasonable rate is equal to “the additional costs of providing pole attachments,” while the maximum reasonable rate is to be calculated “by multiplying the percentage of the total usable space, or the percentage of the total duct or conduit capacity, which is occupied by the pole attachment by the sum of the operating expenses and actual capital costs of the utility attributable to the entire pole, duct, conduit, or right-of-way.” 47 U. S. C. § 224(d)(1). The minimum measure is thus equivalent to the marginal cost of attachments, while the statutory maximum measure is determined by the fully allocated cost of the construction and operation of the pole to which cable is attached.

The FCC has evidently interpreted the statute to provide that when it reduces the contract rate for pole attachments, it may only reduce to the maximum rate allowed under the statute. Tr. of Oral Arg. 10. The rate imposed by the Commission in this case was calculated according to the statutory formula for the determination of fully allocated cost. App. to Juris. Statement of FCC 23a. Appellees have not contended, nor could it seriously be argued, that a rate providing for the recovery of fully allocated cost, including the actual cost of capital, is confiscatory. Accordingly, we hold that the the FCC regulatory order challenged below does not effect a taking of property under the Fifth Amendment.

IV

Because we hold that the Pole Attachments Act does not authorize a taking of property within the meaning of the Fifth Amendment, the holding of the Court of Appeals, that the Act is void because it unconstitutionally constrains the judicial determination of just compensation for takings, necessarily falls. The decision of the Court of Appeals is

Reversed.

Justice Powell,

with whom Justice O’Connor joins, concurring.

I join the Court’s opinion, and write only to state generally my understanding as to the scope of judicial review of rates determined by an administrative agency. I agree that the FCC regulatory order challenged in these cases does not effect an unconstitutional taking of property. In the Court’s brief discussion of “traditional Fifth Amendment standards,” it quotes a single sentence from the Permian Basin Area Rate Cases, 390 U. S. 747 (1968), to the effect that regulation of maximum rates “may, consistently with the Constitution, limit stringently the return recovered on investment, for investors’ interests provide only one of the variables in the constitutional calculus of reasonableness,” id., at 769.

The inquiry mandated by the Constitution is considerably more complex than this simple statement reflects. Justice Harlan’s opinion for the Court in that case is some 74 pages long. In addition, Justice Douglas wrote an interesting, and relevant, dissenting opinion. The one sentence included in today’s opinion in no way accurately portrays the full rationale of judicial review of ratemaking by administrative tribunals. Other portions of the Permian opinion could be quoted to indicate that the standard gives governments far less leeway. Indeed, on the next page in Permian the Court identifies the relevant standard of review under the Natural Gas Act as “just and reasonable,” id., at 770, and the opinion goes on to suggest that the Commission’s rates must be selected “from the broad zone of reasonableness.” Ibid. A second rate case in which several Justices carefully considered the role courts should play in reviewing administrative rate-making orders is FPC v. Hope Natural Gas Co., 320 U. S. 591 (1944). Justice Douglas, writing for the Court, stated that the “just and reasonable” standard required that “the return to the equity owner should be commensurate with returns on investments in other enterprises having corresponding risks.” Id., at 603.

I do not suggest that this isolated sentence from Hope Natural Gas is any more to be viewed as the appropriate standard than the sentence from Permian Basin the Court quotes today. My point is only that judicial review of rates challenged as taking property without just compensation involves careful consideration of the relevant statute, the action of the regulatory commission, and a complex of other factors. The rates before us clearly comport with the Constitution. In my view no purpose is served by selecting for quotation a single sentence that, standing alone, is meaningless at best.

       The Commission had previously investigated allegations of overcharging by utilities, but had concluded that it had no jurisdiction because pole attachments were not “communications by wire or radio” under the Communications Act, 48 Stat. 1064, as amended, 47 U. S. C. § 151. See California Water & Telephone Co., 64 F. C. C. 2d 753, 758 (1977).

       Florida Power’s agreements with Cox and Acton were for a minimum term of one year, thereafter terminable by either party on six months’ notice. The agreement with Teleprompter provided for a minimum term of 57s years, terminable thereafter on six months’ notice.

       The rate ordered by the Commission was in both instances substantially lower than the rate which the cable operators had asked the Commission to adopt. The cable operators, after review of information provided by Florida Power, had requested the imposition of annual rents of approximately $2.20 per pole.

       Appellants in No. 85-1660, Group W Cable, Inc., National Cable Television Association, Inc., and Cox Cablevision Corporation, intervened before the Court of Appeals supporting the FCC. Tampa Electric Company, Alabama Power Company, Arizona Public Service Company, and Mississippi Power and Light Company, appellees in both cases, intervened before the Court of Appeals in support of Florida Power.

       Florida Power’s opening brief in the Court of Appeals stated that its petition for review of the Commission’s order did not “involve a facial attack on the constitutionality of a legislative act.” See Brief for Petitioner in No. 84-3683 (CA11), p. 35.

       The Court of Appeals found, and appellees contend here, that “[t]he hard reality of the matter is that if Florida Power desires to exclude the cable companies, for whatever reason, they are powerless to do so . . . because in previous cases where utilities have ordered cable companies to disconnect, the FCC has routinely intervened by issuing temporary stays which prevent the exclusion of the cable companies.” 772 F. 2d 1537,1543 (1985). According to the Solicitor General, the FCC “has not yet taken a position” on whether utilities may terminate attachment contracts for non-retaliatory reasons. Tr. of Oral Arg. 7. The language of the Act provides no explicit authority to the FCC to require pole access for cable operators, and the legislative history strongly suggests that Congress intended no such authorization. See, e. g., S. Rep. No. 95-580, p. 16 (1977) (The Act “does not vest within a CATV system operator a right to access to a utility pole, nor does the bill, as reported, require a power company to dedicate a portion of its pole plant to communications use”). We do not decide today what the application of Loretto v. Teleprompter Manhattan CATV Corp.,
        458 U. S. 419 (1982), would be if the FCC in a future case required utilities, over objection, to enter into, renew, or refrain from terminating pole attachment agreements.

       In view of the Commission’s interpretation of the statute, and use of the fully allocated cost measure in this case, we have no occasion to consider the constitutionality of the minimum rate allowable under the statute.

       Our disposition of the takings question makes it unnecessary to review on the merits the Court of Appeals’ holding that Congress may not establish standards under which the initial determination of compensation will be made by an administrative authority subject to final judicial review.


source: Caselaw Access Project

author: Per Curiam. Justice O’Connor,

license: Public Domain

text:
    CITY OF SPRINGFIELD, MASSACHUSETTS v. KIBBE, ADMINISTRATRIX OF THE ESTATE OF THURSTON
    No. 85-1217.
    Argued November 4, 1986
    Decided February 25, 1987

      Edward M. Pikula argued the cause for petitioner. With him on the briefs were Richard T. Egan and Harry P. Carroll.

      Terry Scott Nagel argued the cause for respondent. With him on the brief were J. Levonne Chambers and Eric Schnapper.

        Benna Ruth Solomon and David 0. Stewart filed a brief for the U. S. Conference of Mayors as amicus curiae urging reversal.
      Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Marjorie Heins, Jack D. Novik, Howard Friedman, Michael Avery, and David Rudovsky; and for the National Association for the Advancement of Colored People by Grover G. Hankins.

   Per Curiam.

We granted certiorari to resolve the question whether consistently with our decision in Monell v. New York City Dept. of Social Services, 436 U. S. 658 (1978), a municipality can be held liable under 42 U. S. C. § 1983 for inadequate training of its employees. 475 U. S. 1064 (1986). In addressing that issue, we anticipated that we would be able to reach the “fairly included” related question, see this Court’s Rule 21.1(a), whether more than negligence in training is required in order to establish such liability.

The case having now been fully briefed and orally argued, we conclude that we cannot reach the negligence question. Although petitioner city of Springfield argues here that a heightened negligence standard does not suffice under Monell’s requirement of a municipal policy, it appears that in the District Court petitioner did not object to the jury instruction stating that gross negligence would suffice, App. 234-235, and indeed proposed its own instruction to the same effect. Id., at 28. Nor did it argue for a higher standard than gross negligence in the Court of Appeals. Brief for Defendant-Appellant and Reply Brief for Defendant-Appellant in No. 85-1078 (CA1). It has informed us of no special circumstances explaining its failure to preserve this question.

We ordinarily will not decide questions not raised or litigated in the lower courts. See California v. Taylor, 353 U. S. 553, 556, n. 2 (1957). That rule has special force where the party seeking to argue the issue has failed to object to a jury instruction, since Rule 51 of the Federal Rules of Civil Procedure provides that “[n]o party may assign as error the giving . . . [of] an instruction unless he objects thereto before the jury retires to consider its verdict.” Here, our inability to reach the negligence issue makes this case an inappropriate vehicle for resolving the inadequate training question, because of the close interrelationship between the two matters, and the other questions presented are not of sufficient importance to warrant our review independently.

The dissent argues that we need not concern ourselves about Springfield’s failure to preserve this issue, because it was passed on by the Court of Appeals below. Post, at 263-266. There is doubtless no jurisdictional bar to our reaching it, whether or not the Court of Appeals did so. See Carlson v. Green, 446 U. S. 14, 17, n. 2 (1980). We think, however, that there would be considerable prudential objection to reversing a judgment because of instructions that petitioner accepted, and indeed itself requested. That the Court of Appeals was fortunate enough to entertain the issue without reaching that outcome would not justify our running the same risk. In any event, we disagree with the dissent’s reading of the Court of Appeals’ opinion, and do not believe that it pursued the extraordinary course of considering this issue — which petitioner had not even raised in its arguments to that court — any more than we are inclined to do so. See 777 F. 2d 801, 804, 809-810 (CA1 1985). (We refrain from elaborating upon the latter point, since it is of no general application.)

Unlike Oklahoma City v. Tuttle, 471 U. S. 808 (1985), this case does not present a proper occasion for us to exercise our discretion to decide an issue despite petitioner’s failure to preserve it. In Tuttle, the issue in question was explicitly-set forth in the petition for certiorari, id., at 814, n. 2, and was not objected to in respondent’s brief in opposition to cer-tiorari or in respondent’s merits brief. Id., at 815. In addition, the issue had been fully briefed and argued in the Court of Appeals. Ibid. Here, by contrast, respondent’s failure to object at the petition stage is unsurprising, because the petition did not explicitly present the negligence question, and it had not been addressed below. It would be unreasonable to require a respondent on pain of waiver to object at the cer-tiorari stage not only to the petitioner’s failure to preserve the questions actually presented, but also to his failure to preserve any questions fairly included within the questions presented but uncontested earlier. Respondent strenuously objected to petitioner’s raising this question at the first point that she was on notice that it was at issue in this case — in her response to petitioner’s brief on the merits in No. 85-1078.

For these reasons, we have concluded that the writ should be dismissed as improvidently granted. See Belcher v. Stengel, 429 U. S. 118 (1976) (per curiam).

It is so ordered.

Justice O’Connor,

with whom The Chief Justice, Justice White, and Justice Powell join, dissenting.

We granted certiorari in this case to resolve whether a city can be held liable under 42 U. S. C. § 1983 for providing inadequate police training, and, if so, what standard should govern the imposition of such liability. 475 U. S. 1064 (1986). In my view, the question is properly before the Court, and I would decide it on the merits

I.

On the evening of September 28, 1981, the Springfield Police Department received a telephone call reporting that someone had called an apartment’s occupants and threatened to come after them with a knife. Later calls reported that an individual identified as Clinton Thurston had broken the apartment door and assaulted a woman staying at the apartment. When officers arrived at the scene, they discovered that Thurston had abducted the woman and driven away in his car. A short while later, Thurston’s vehicle was spotted by an officer driving an unmarked police car. When Thur-ston stopped at an intersection, the officer walked up to Thurston’s vehicle and identified himself as a police officer, but Thurston drove away.

The officer gave chase, and soon was joined by other members of the Springfield Police Department. Two officers set up a roadblock to stop Thurston, but he drove past the obstacle without stopping. As he did so, one of the officers fired at the tires of Thurston’s vehicle; later a nick was found in the left rear wheel. At a second roadblock, Officer Kenneth Schaub placed his vehicle across one lane of traffic, while he stood in the middle of the other lanes and attempted to flag down Thurston’s automobile. Thurston again failed to stop. As Thurston passed the roadblock, Schaub fired in the direction of the car.

Officer Theodore Perry, who had been waiting near the second roadblock on his motorcycle, heard Schaub’s shot and joined the chase. Accelerating past several police cars, Perry pulled abreast of the rear window on the driver’s side of Thurston’s car. As he did so, Thurston swerved to the left, and Perry dropped back. Rather than remain behind the vehicle, Perry twice more moved up even with the car’s rear window; on both occasions, when Thurston swerved towards him, Perry fired his gun. Apparently Perry hit Thur-ston in the head with the second shot; the car rolled to a stop and Thurston was taken, unconscious, to the hospital, where he died a short time later.

Respondent, the administratrix of Thurston’s estate, brought suit in the Federal District Court for the District of Massachusetts under § 1983, alleging that the city and several of its police officers had deprived Thurston of his civil rights. After trial, the jury returned verdicts against the city and Officer Perry, but found in favor of the other officers. The jury awarded $1 in compensatory damages and $500 in punitive damages against Perry and $50,000 in compensatory damages against the city. The District Court denied the city’s motions for directed verdict and for judgment notwithstanding the verdict. The city appealed the District Court’s refusal to grant either a directed verdict or a judgment notwithstanding the verdict, and also claimed error in the jury charge.

The Court of Appeals for the First Circuit affirmed. 777 F. 2d 801 (1985). In showing that Thurston’s injuries were inflicted pursuant to government “policy or custom” under Monell v. New York City Dept. of Social Services, 436 U. S. 658 (1978), respondent “argued primarily that the City should be found liable here because it had a policy or custom of inadequately training its officers.” 777 F. 2d, at 803. The Court of Appeals observed that while the plurality opinion in Oklahoma City v. Tuttle, 471 U. S. 808 (1985), may “have raised doubts as to whether a harm allegedly caused by a policy of gross negligence in police training could meet § 1983’s standard of causation,” the Court of Appeals “continue[d] to believe [that] this is a viable theory of municipal liability.” 777 F. 2d, at 804. The Court of Appeals found that while the evidence in the record regarding the Springfield Police Department’s training policy admittedly was “sparse,” the jury could have concluded from the testimony of two police officers that the city’s training in the apprehension of fleeing vehicles was grossly inadequate. The jury also could infer, from the fact that both Schaub and Perry had used deadly force, that the city’s failure to train its officers in alternative methods of stopping a fleeing vehicle played a substantial part in bringing about Thurston’s death. Id., at 808. The Court of Appeals identified a number of additional “policies” or “customs” that the jury might have inferred from the evidence in this case. As the court noted, however, “these other policies were not' proven sufficiently or linked sufficiently with the harm to impose municipal liability.” Id., at 809.

Turning to the city’s challenge to the jury instructions given in the case, the Court of Appeals noted that the city’s argument was that its liability “could not be predicated upon an isolated incident of negligent training, but must instead be based on ‘a pattern of deliberate supervisory inaction and indifference.’” Ibid. The Court of Appeals concluded that while the jury instructions “could have emphasized the distinction between negligence and reckless or grossly negligent conduct,” the instructions were not deficient because they did inform the jury “that it must find a failure to train which amounted to gross negligence.” Id., at 810.

I — I I — I

The central question presented in this case is whether a city can be held liable under § 1983 for the inadequate training of its employees. As the Court notes, fairly included is the related question whether more than simple or heightened negligence in training is required in order to establish such liability. See ante, at 258.

The Court of Appeals clearly reached and decided the negligence question, both in its consideration of the appeal from the jury charge, and in its review of the denial of the city’s motions for directed verdict and for judgment notwithstanding the verdict. First, in addressing the city’s challenge to the jury instructions, the Court of Appeals specifically considered whether the jury charge should have required a showing of “deliberate supervisory inaction and indifference.” See 777 F. 2d, at 809. The Court of Appeals rejected the city’s argument, concluding that the jury instructions were adequate because they “instructed the jury that it must find a failure to train which amounted to gross negligence.” Id., at 810. Today this Court holds that the city’s challenge to the jury charge was not properly preserved on appeal because the city failed to make a timely objection to the instructions as required by Federal Rule of Civil Procedure 51. Ante, at 258-259. The Court of Appeals, however, did not treat the question as barred by Rule 51, perhaps because that argument was not pressed before it. See Brief for Plaintiff-Appellee in No. 85-1078 (CAI), pp. 21-24. In my view, this Court should not now decline, on that basis, to review the Court of Appeals’ affirmance of the jury charge.

Moreover, even if the Court treats the city as having waived its challenge to the jury charge, the failure to object to an instruction does not render the instruction the “law of the case” for purposes of appellate review of the denial of a directed verdict or judgment notwithstanding the verdict. See Ebker v. Tan Jay International, Ltd., 739 F. 2d 812, 825, n. 17 (CA2 1984); Hanson v. Ford Motor Co., 278 F. 2d 586, 592-593 (CA8 1960); 9 C. Wright & A. Miller, Federal Practice and Procedure §2558 (1971). The city raised the negligence question in its motions for directed verdict and for judgment notwithstanding the verdict, arguing that it should not be held liable “even for its grossly negligent failure to train single police officers.” App. 26, 41. In arguing that a “pattern” of police misconduct is necessary to establish municipal liability under § 1983, the city relied on Wellington v. Daniels, 717 F. 2d 932 (CA4 1983), and Languirand v. Hayden, 717 F. 2d 220 (CA5 1983). In those cases, the courts required proof of a pattern of police misconduct on the ground that municipal liability under § 1983 could not be imposed absent proof of the city’s “‘tacit authorization’ of or ‘deliberate indifference’ to constitutional injuries.” See Wellington v. Daniels, supra, at 936; see also Languirand v. Hayden, supra, at 226, n. 7, and 227-228.

The Court of Appeals must have viewed the city’s motions as raising the negligence question, because the court directly ruled on the issue. The Court of Appeals began by stating that it previously had recognized “grossly inadequate training” as a basis for imposing municipal liability. See 777 F. 2d, at 803. The court acknowledged, however, that the decision in Oklahoma City v. Tuttle, 471 U. S. 808 (1985), had “raised doubts as to whether a harm allegedly caused by a policy of gross negligence in police training could meet §1983’s standard of causation.” 777 F. 2d, at 804. The Court of Appeals then cited a footnote in Tuttle which states: “[I]t is open to question whether a policymaker’s ‘gross negligence’ in establishing police training practices could establish a ‘policy’ that constitutes a ‘moving force’ behind subsequent unconstitutional conduct, or whether a more conscious decision on the part of the policymaker would be required.” 471 U. S., at 824, n. 7 (emphasis added). Notwithstanding the reservations expressed in Tuttle, the Court of Appeals “continue[d] to believe” that gross negligence in police training was “a viable theory of municipal liability” under § 1983. 777 F. 2d, at 804.

The Court does not contend that the Court of Appeals failed to pass upon the negligence question. Instead, the Court finds, from its own review of the briefs filed in the court below, that the city did not argue for a higher standard in the Court of Appeals. Ante, at 258. Certainly it is fair to conclude from the city’s briefs in the Court of Appeals that its position on the question of culpability was unclear: it argued at different points that the standard should be deliberate indifference, see Brief for Defendant-Appellant in No. 85-1078 (CAI), p. 15; recklessness or “gross, palpable, and culpable” negligence, id., at 8; or deliberate indifference or gross negligence, id., at 13. Perhaps the Court of Appeals might have been able to conclude from this that it did not have before it the question whether municipal liability can be based on a finding of negligence. The court did not read the briefs in that fashion, however; instead it viewed the question as before it and proceeded to consider whether gross negligence or some “more conscious decision on the part of the policymaker,” Oklahoma City v. Tuttle, supra, at 824, n. 7, would be required to establish § 1983 liability. Having done so, it is clear that there are no jurisdictional or prudential reasons why this Court should not review the Court of Appeals’ decision. The standard we previously have employed is that we will not review a question not pressed or passed on by the courts below. See, e. g., Adickes v. S. H. Kress & Co., 398 U. S. 144, 147, n. 2 (1970); Husty v. United States, 282 U. S. 694, 702 (1931); Duignan v. United States, 274 U. S. 195, 200 (1927). Here, the Court of Appeals expressly ruled on the question, in an appropriate exercise of its appellate jurisdiction; it is therefore entirely proper in light of our precedents for the Court to reach the question on which it granted certiorari, and I would do so.

f — I I — I I — I

In Monell v. New York City Dept. of Social Services, 436 U. S. 658 (1978), the Court held that municipal liability under §1983 can be imposed only where the municipality itself “causes” the constitutional violation. The Monell Court reasoned that § 1983, as originally enacted, imposed liability if a person “subjected, or caused to be subjected,” another person to the deprivation of federally protected rights. By specifically imposing liability for the torts of another person if one “caused” the tort to be committed, the statutory language suggested that Congress “did not intend § 1983 liability to attach where such causation was absent.” Id., at 692.

The Monell Court found support for this conclusion in the legislative history of the Civil Rights Act of 1871, the precursor to § 1983. The legislative history showed that Congress had rejected the “Sherman amendment,” which would have imposed vicarious liability on municipalities for damage caused by the “riotou[s] and tumultuou[s] assembl[y]” of private individuals within their borders, Cong. Globe, 42d Cong., 1st Sess., 749 (1871), on the ground that the amendment was of questionable constitutional validity. The Court determined that while the legislative history did not specifically address whether Congress intended to permit vicarious liability for the torts of municipal agents and employees, the same constitutional difficulties that Congress perceived when it rejected the Sherman amendment would apply to liability based on respondeat superior. The Monell Court concluded that Congress did not intend, in enacting § 1983, that municipalities be held vicariously liable for the tortious conduct of their employees. It is only when the “execution of [the] government’s policy or custom . . . inflicts the injury” that the municipality may be held liable under § 1983. 436 U. S., at 694.

Given the importance, under § 1983, of distinguishing between direct and vicarious liability, the Court repeatedly has stressed the need to find a direct causal connection between municipal conduct and the constitutional deprivation. See, e. g., Oklahoma City v. Tuttle, supra, at 824-825, n. 8 (requiring “affirmative link” between municipal policy and constitutional violation); Polk County v. Dodson, 454 U. S. 312 (1981) (municipal policy must be “moving force” behind constitutional deprivation). In Monell itself, the policy at issue commanded the deprivation of constitutional rights. The causal link between the municipal policy and the constitutional violation therefore was readily apparent: no “evidence was'needed other than a statement of the policy by the municipal corporation, and its exercise.” Oklahoma City v. Tuttle, supra, at 822-823.

When the execution of municipal policy does not compel a constitutional violation, however, the causal connection between municipal policy and the deprivation of constitutional rights becomes more difficult to discern. In some sense, of course, almost any injury inflicted by a municipal agent or employee ultimately can be traced to some municipal policy. Finding §1983’s causation requirement satisfied by such a remote connection, however, would eviscerate MonelVs distinction, based on the language and history of §1983, between vicarious liability and liability predicated on the municipality’s own constitutional violations. The limits on municipal liability imposed by §1983 require more careful analysis, in each instance, of the municipal policy alleged in the case, and whether a jury reasonably could conclude that the city’s conduct was the moving force in bringing about the constitutional violation.

In this case, the causal connection between the municipal policy and the constitutional violation is an inherently tenuous one. Respondent does not contend that the city’s police training program authorizes the use of deadly force in the apprehension of fleeing vehicles; rather, her argument is that the methods taught in the city’s training program were “inadequate,” and that if individual officers had received more-complete training, they would have resorted to those alternative methods without engaging in the unconstitutional conduct. The difficulty with respondent’s argument is that at the time of the officers’ alleged misconduct, any number of other factors were also in operation that were equally likely to contribute or play a predominant part in bringing about the constitutional injury: the disposition of the individual officers, the extent of their experience with similar incidents, the actions of the other officers involved, and so forth. To conclude, in a particular instance, that omissions in a municipal training program constituted the “moving force” in bringing about the officer’s unconstitutional conduct, notwithstanding the large number of intervening causes also at work up to the time of the constitutional harm, appears to be largely a matter of speculation and conjecture.

Because of the remote causal connection between omissions in a police training program and affirmative misconduct by individual officers in a particular instance, in my view the “inadequacy” of police training may serve as the basis for § 1983 liability only where the failure to train amounts to a reckless disregard for or deliberate indifference to the rights of persons within the city’s domain. The “causation” requirement of § 1983 is a matter of statutory interpretation rather than of common tort law. Cf. Martinez v. California, 444 U. S. 277, 285 (1980) (injury “too remote a consequence” of official conduct to impose liability under §1983, even if conduct “proximately caused” injury under state tort law). Analogy to traditional tort principles, however, shows that the law has been willing to trace more distant causation when there is a cognitive component to the defendant’s fault than when the defendant’s conduct results from simple or heightened negligence. See, e. g., Restatement (Second) of Torts §501, Comment a, p. 591 (1965) (“[A] jury may be permitted to find that a defendant’s reckless misconduct bears a sufficient causal relation to a plaintiff’s harm to make him liable, although were the defendant’s conduct merely negligent, no such finding would be permissible”). See generally W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton should be permitted to find that the municipality’s inadequate training “caused” the plaintiff’s injury only if the inadequacy of the training amounts to deliberate indifference or reckless disregard for the consequences. Negligence in training alone is not sufficient to satisfy the causation requirement of § 1983.

A number of lower courts have recognized the need to show more than negligence before a deficient training policy can form the basis for municipal liability under § 1983, phrasing the requisite degree of fault variously as “deliberate indifference” or gross negligence “amounting to deliberate indifference.” See, e. g., Fiacco v. Rensselaer, 783 F. 2d 319, 326 (CA2 1986) (“deliberate indifference”); Languirand v. Hayden, 717 F. 2d, at 227 (so grossly negligent as to constitute “deliberate indifference”); Patzner v. Burkett, 779 F. 2d 1363, 1367 (CA8 1986) (“deliberate indifference” where training so grossly negligent “that police misconduct inevitably occurs”); Wellington v. Daniels, 717 F. 2d, at 937, n. 6 (no showing that municipality “remain[ed] indifferent to” unwarranted injury). Indeed, the Court of Appeals for the First Circuit previously had adopted such a standard, requiring proof of gross negligence “amounting to deliberate indifference” before finding Monell liability. See Voutour v. Vitale, 761 F. 2d 812, 820 (1985). In my view, these decisions properly reflect the need to show more than “negligence” in police training procedures before a jury should be permitted to find that the city’s policy was a material element and substantial factor in bringing about the alleged deprivation of protected federal rights.

In this case, there clearly was insufficient evidence to support a finding that the city’s training policy was conducted with reckless disregard for the consequences or deliberate indifference to its citizens’ constitutional rights. Because such a showing is necessary, in my view, to make out a claim that the city “subjected, or caused [Thurston] to be subjected,” to a deprivation of his constitutional rights under § 1983, the Court of Appeals for the First Circuit should have reversed the decision of the District Court and remanded for the entry of judgment on behalf of the city of Springfield.

The plurality opinion in Tuttle made clear that to establish municipal liability for a policy that is not itself unconstitutional, the plaintiff must introduce evidence sufficient to establish the existence of the policy; evidence showing that the city was at fault for establishing the policy; and evidence establishing that the policy was the moving force in causing the constitutional harm. A plaintiff does not carry the burden of proving these elements merely by introducing evidence concerning the particular incident at issue: “where the policy relied upon is not itself unconstitutional, considerably more proof than the single incident will be necessary in every case to establish both the requisite fault on the part of the municipality, and the causal connection between the ‘policy’ and the constitutional deprivation.” 471 U. S., at 824 (footnotes omitted). A different result would have been directly at odds with the need under § 1983 to “prevent the imposition of municipal liability under circumstances where no wrong could be ascribed to municipal decisionmakers.” Id., at 821.

The Court of Appeals’ analysis of “fault” in this case relies upon the kind of inference specifically rejected in Tuttle. The evidence introduced at trial showed that the city’s officers were instructed in two techniques for apprehending fleeing suspects: they were told to stand in the street and put up their hands in a stopping motion; and to move up behind the vehicle while using lights and siren to signify that the suspect should pull over and stop. 777 F. 2d, at 807. They were taught not to set up obstacles that completely block the road. Ibid. The Court of Appeals did not point to any evidence which would support the conclusion that these instructions deviated from accepted police practice. Instead, the court concluded that the jury could have inferred, from the chase itself, that “partial roadblocks were not an effective method of slowing down a suspect who was unwilling to stop,” ibid.; that additional methods might have been successful in apprehending the fleeing vehicle; and that the failure to instruct in these additional methods constituted gross negligence on the part of the city. Ibid.

The chain of inferences drawn by the Court of Appeals directly conflicts with Tuttle’s instruction that “considerably more proof than the single incident will be necessary in every case to establish . . . the requisite fault on the part of the municipality.” 471 U. S., at 824. There was no evidence in the record, apart from the speculative inferences suggested by the Court of Appeals, from which jurors reasonably could conclude that the city’s training in the apprehension of fleeing vehicles manifested recklessness or deliberate indifference. Respondent therefore failed to prove an essential element of her claim, and a directed verdict should have been entered in favor of the city. Accordingly I would reverse the Court of Appeals for the First Circuit and would remand for the entry of judgment in favor of petitioner in this case. I respectfully dissent from the Court’s judgment dismissing this case as improvidently granted.

      We also granted certiorari on two other questions: whether the “single incident” rule of Oklahoma City v. Tuttle, 471 U. S. 808 (1985), is limited in application to one act by one officer, and whether a policy of inadequate training may be inferred from the conduct of several police officers during a single incident absent evidence of prior misconduct in the department or a conscious decision by policymakers.

      We also granted certiorari to consider whether the “single incident” rule of Oklahoma City v. Tuttle, 471 U. S. 808 (1985), was satisfied in this case. Because, in my view, the decision below is inconsistent with Tuttle’s requirement of proof of fault, see infra, at 271-272,1 do not reach the question whether other aspects of Tuttle were satisfied in this case.

       The Court of Appeals speculated that the jury might have found three alternatives to be successful in stopping fleeing vehicles: “deploying several police ears to crowd or surround Thurston’s car”; “calling in reinforcements”; or using “sheer persistence” in the hope that it “might have worn Thurston down.” 777 F. 2d, at 807. The first method would not have been an accepted alternative to the use of deadly force. See International Association of Chiefs of Police, A Manual of Model Police Traffic Services, Policies and Procedures, Procedure 1.20, p. 91 (1986) (“[Bjoxing in, heading off, ramming, or driving alongside the pursued vehicle . . . may be approved only when the use of deadly force would be authorized”). The second alternative, the use of reinforcements, in fact had been implemented by the city’s police officers during the chase — 10 officers ultimately were involved in trying to stop Thurston’s vehicle. The third suggestion does not appear to be different from the city’s policy of following the vehicle while using lights and siren.


author: Justice Brennan Chief Justice Rehnquist,

text:
    SCHOOL BOARD OF NASSAU COUNTY, FLORIDA, et al. v. ARLINE
    No. 85-1277.
    Argued December 3, 1986
    Decided March 3, 1987

      Brennan, J., delivered the opinion of the Court, in which White, Marshall, Blackmun, Powell, Stevens, and O’Connor, JJ., joined. Rehnquist, C. J., filed a dissenting opinion, in which Scalia, J., joined, post, p. 289.

      Brian T. Hayes argued the cause for petitioners. With him on the briefs was John D. Carlson.

      Solicitor General Fried argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Assistant Attorney General Reynolds, Deputy

      Solicitor General Ayer, Deputy Assistant Attorney General Carvin, Richard J. Lazarus, and Mark L. Gross.

      George K. Rahdert argued the cause for respondent. With him on the brief was Steven H. Malone.

      Briefs of amici curiae urging reversal were filed for the Equal Employment Advisory Council by Robert E. Williams, Douglas S. McDowell, and Thomas R. Bagby; and for Congressman William E. Dannemeyer et al. by William E. Dannemeyer, pro se.

      Briefs of amici curiae urging affirmance were filed for the Association for Retarded Citizens of the United States et al. by Thomas K. Gilhool, Michael Churchill, Frank J. Laski, Timothy M. Cook, Stanley S. Herr, and Donald S. Goldman; and for the Employment Law Center et al. by Robert E. Borton.

      Briefs of amici curiae were filed for the State of California et al. by John K. Van de Kamp, Attorney General, Andrea Sheridan Ordin, Chief Assistant Attorney General, and Marian M. Johnston and M. Anne Jennings, Deputy Attorneys General, and by the Attorneys General for their respective States as follows: Stephen H. Sachs of Maryland, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, W. Cary Edwards of New Jersey, Robert Abrams of New York, and Bronson C. La Follette of Wisconsin; for the American Medical Association by Benjamin W. Heineman, Jr., and Carter G. Phillips; for the American Public Health Association et al. by Nan D. Hunter and Herbert Semmel; for Doctors for AIDS Research and Education by Stanley Fleishman, Joseph Lawrence, Susan D. McGreivy, and Paul Hoffman; for the Epilepsy Foundation of America by Alexandra K. Finucane; for the National School Boards Association by Gwendolyn H. Gregory, August W. Steinhilber, and Thomas A. Shannon; and for Senator Cranston et al. by Arlene Mayerson.

   Justice Brennan

delivered the opinion of the Court.

Section 504 of the Rehabilitation Act of 1973, 87 Stat. 394, as amended, 29 U. S. C. §794 (Act), prohibits a federally-funded state program from discriminating against a handicapped individual solely by reason of his or her handicap. This case presents the questions whether a person afflicted with tuberculosis, a contagious disease, may be considered a “handicapped individual” within the meaning of § 504 of the Act, and, if so, whether such an individual is “otherwise qualified” to teach elementary school.

H

From 1966 until 1979, respondent Gene Arline taught elementary school in Nassau County, Florida. She was discharged in 1979 after suffering a third relapse of tuberculosis within two years. After she was denied relief in state administrative proceedings, she brought suit in federal court, alleging that the school board’s decision to dismiss her because of her tuberculosis violated §504 of the Act.

A trial was held in the District Court, at which the principal medical evidence was provided by Marianne McEuen, M.D., an assistant director of the Community Tuberculosis Control Service of the Florida Department of Health and Rehabilitative Services. According to the medical records reviewed by Dr. McEuen, Arline was hospitalized for tuberculosis in 1957. App. 11-12. For the next 20 years, Arline’s disease was in remission. Id., at 32. Then, in 1977, a culture revealed that tuberculosis was again active in her system; cultures taken in March 1978 and in November 1978 were also positive. Id., at 12.

The superintendent of schools for Nassau County, Craig Marsh, then testified as to the school board’s response to Arline’s medical reports. After both her second relapse, in the spring of 1978, and her third relapse in November 1978, the school board suspended Arline with pay for the remainder of the school year. Id., at 49-51. At the end of the 1978-1979 school year, the school board held a hearing, after which it discharged Arline, “not because she had done anything wrong,” but because of the “continued reoccurence [sic] of tuberculosis.” Id., at 49-52.

In her trial memorandum, Arline argued that it was “not disputed that the [school board dismissed her] solely on the basis of her illness. Since the illness in this case qualifies the Plaintiff as a ‘handicapped person’ it is clear that she was dismissed solely as a result of her handicap in violation of Section 504.” Record 119. The District Court held, however, that although there was “[n]o question that she suffers a handicap,” Arline was nevertheless not “a handicapped person under the terms of that statute.” App. to Pet. for Cert. C-2. The court found it “difficult... to conceive that Congress intended contagious diseases to be included within the definition of a handicapped person.” The court then went on to state that, “even assuming” that a person with a contagious disease could be deemed a handicapped person, Arline was not “qualified” to teach elementary school. Id., at C-2-C-3.

The Court of Appeals reversed, holding that “persons with contagious diseases are within the coverage of section 504,” and that Arline’s condition “falls . . . neatly within the statutory and regulatory framework” of the Act. 772 F. 2d 759, 764 (CA11 1985). The court remanded the 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” or in some other position. Id., at 765 (footnote omitted). We granted certiorari, 475 U. S. 1118 (1986), and now affirm.

I — I 1 — 1

In enacting and amending the Act, Congress enlisted all programs receiving federal funds in an effort “to share with handicapped Americans the opportunities for an education, transportation, housing, health care, and jobs that other Americans take for granted.” 123 Cong. Rec. 13515 (1977) (statement of Sen. Humphrey). To that end, Congress not only increased federal support for vocational rehabilitation, but also addressed the broader problem of discrimination against the handicapped by including § 504, an antidiscrimi-nation provision patterned after Title VI of the Civil Rights Act of 1964. Section 504 of the Rehabilitation Act reads in pertinent part:

“No otherwise qualified handicapped individual in the United States, as defined in section 706(7) of this title, shall, solely by reason of his handicap, be excluded from 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.

In 1974 Congress expanded the definition of “handicapped individual” for use in §504 to read as follows:

“[A]ny person who (i) has a physical or mental impairment which substantially limits one or more of such person’s major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment.” 29 U. S. C. § 706(7)(B).

The amended definition reflected Congress’ concern with protecting the handicapped against discrimination stemming not only from simple prejudice, but also from “archaic attitudes and laws” and from “the fact that the American people are simply unfamiliar with and insensitive to the difficulties confronting] individuals with handicaps.” S. Rep. No. 93-1297, p. 50 (1974). To combat the effects of erroneous but nevertheless prevalent perceptions about the handicapped, Congress expanded the definition of “handicapped individual” so as to preclude discrimination against “[a] person who has a record of, or is regarded as having, an impairment, [but who] may at present have no actual incapacity at all.” Southeastern Community College v. Davis, 442 U. S. 397, 405-406, n. 6 (1979).

In determining whether a particular individual is handicapped as defined by the Act, the regulations promulgated by the Department of Health and Human Services are of significant assistance. As we have previously recognized, these regulations were drafted with the oversight and approval of Congress, see Consolidated Rail Corporation v. Darrone, 465 U. S. 624, 634-635, and nn. 14-16 (1984); they provide “an important source of guidance on the meaning of §504.” Alexander v. Choate, 469 U. S. 287, 304, n. 24 (1985). The regulations are particularly significant here because they define two critical terms used in the statutory definition of handicapped individual. “Physical impairment” is defined as follows:

“[A]ny physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskel-etal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive, digestive, genitourinary; hemic and lymphatic; skin; and endocrine.” 45 CFR §84.3(j)(2)(i) (1985).

In addition, the regulations define “major life activities” as

“functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” §84.3(j)(2)(ii).

t — i I — I

Within this statutory and regulatory framework, then, we must consider whether Arline can be considered a handicapped individual. According to the testimony of Dr. McEuen, Arline suffered tuberculosis “in an acute form in such a degree that it affected her respiratory system,” and was hospitalized for this condition. App. 11. Arline thus had a physical impairment as that term is defined by the regulations, since she had a “physiological disorder or condition . . . affecting [her] . . . respiratory [system].” 45 CFR § 84.3(j)(2)(i) (1985). This impairment was serious enough to require hospitalization, a fact more than sufficient to establish that one or more of her major life activities were substantially limited by her impairment. Thus, Arline’s hospitalization for tuberculosis in 1957 suffices to establish that she has a “record of . . . impairment” within the meaning of 29 U. S. C. § 706(7)(B)(ii), and is therefore a handicapped individual.

Petitioners concede that a contagious disease may constitute a handicapping condition to the extent that it leaves a person with “diminished physical or mental capabilities,” Brief for Petitioners 15, and concede that Arline’s hospitalization for tuberculosis in 1957 demonstrates that she has a record of a physical impairment, see Tr. of Oral Arg. 52-53. Petitioners maintain, however, that Arline’s record of impairment is irrelevant in this case, since the school board dismissed Arline not because of her diminished physical capabilities, but because of the threat that her relapses of tuberculosis posed to the health of others.

We do not agree with petitioners that, in defining a handicapped individual under § 504, the contagious effects of a disease can be meaningfully distinguished from the disease’s physical effects on a claimant in a case such as this. Arline’s contagiousness and her physical impairment each resulted from the same underlying condition, tuberculosis. It would be unfair to allow an employer to seize upon the distinction between the effects of a disease on others and the effects of a disease on a patient and use that distinction to justify discriminatory treatment.

Nothing in the legislative history of §504 suggests that Congress intended such a result. That history demonstrates that Congress was as concerned about the effect of an impairment on others as it was about its effect on the individual. Congress extended coverage, in 29 U. S. C. § 706(7) (B)(iii), to those individuals who are simply “regarded as having” a physical or mental impairment. The Senate Report provides as an example of a person who would be covered under this subsection “a person with some kind of visible physical impairment which in fact does not substantially limit that person’s functioning.” S. Rep. No. 93-1297, at 64. Such an impairment might not diminish a person’s physical or mental capabilities, but could nevertheless substantially limit that person’s ability to work as a result of the negative reactions of others to the impairment.

Allowing discrimination based on the contagious effects of a physical impairment would be inconsistent with the basic purpose of § 504, which is to ensure that handicapped individuals are not denied jobs or other benefits because of the prejudiced attitudes or the ignorance of others. By amending the definition of “handicapped individual” to include not only those who are actually physically impaired, but also those who are regarded as impaired and who, as a result, are substantially limited in a major life activity, Congress acknowledged that society’s accumulated myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairment. Few aspects of a handicap give rise to the same level of public fear and misapprehension as contagiousness. Even those who suffer or have recovered from such noninfectious diseases as epilepsy or cancer have faced discrimination based on the irrational fear that they might be contagious. The Act is carefully structured to replace such reflexive reactions to actual or perceived handicaps with actions based on reasoned and medically sound judgments: the definition of “handicapped individual” is broad, but only those individuals who are both handicapped and otherwise qualified are eligible for relief. The fact that some persons who have contagious diseases may pose a serious health threat to others under certain circumstances does not justify excluding from the coverage of the Act all persons with actual or perceived contagious diseases. Such exclusion would mean that those accused of being contagious would never have the opportunity to have their condition evaluated in fight of medical evidence and a determination made as to whether they were “otherwise qualified.” Rather, they would be vulnerable to discrimination on the basis of mythology — precisely the type of injury Congress sought to prevent. We conclude that the fact that a person with a record of a physical impairment is also contagious does not suffice to remove that person from coverage under §504.

> hH

The remaining question is whether Arline is otherwise qualified for the job of elementary schoolteacher. To answer this question in most cases, the district court will need to conduct an individualized inquiry and make appropriate findings of fact. Such an inquiry is essential if § 504 is to achieve its goal of protecting handicapped individuals from deprivations based on prejudice, stereotypes, or unfounded fear, while giving appropriate weight to such legitimate concerns of grantees as avoiding exposing others to significant health and safety risks. The basic factors to be considered in conducting this inquiry are well established. In the context of the employment of a person handicapped with a contagious disease, we agree with amicus American Medical Association that this inquiry should include

“[findings of] facts, based on reasonable medical judgments given the state of medical knowledge, about (a) the nature of the risk (how the disease is transmitted), (b) the duration of the risk (how long is the carrier infectious), (c) the severity of the risk (what is the potential harm to third parties) and (d) the probabilities the disease will be transmitted and will cause varying degrees of harm.” Brief for American Medical Association as Amicus Curiae 19.

In making these findings, courts normally should defer to the reasonable medical judgments of public health officials. The next step in the “otherwise-qualified” inquiry is for the court to evaluate, in light of these medical findings, whether the employer, could reasonably accommodate the employee under the established standards for that inquiry. See n. 17, supra.

Because of the paucity of factual findings by the District Court, we, like the Court of Appeals, are unable at this stage of the proceedings to resolve whether Arline is “otherwise qualified” for her job. The District Court made no findings as to the duration and severity of Arline’s condition, nor as to the probability that she would transmit the disease. Nor did the court determine whether Arline was contagious at the time she was discharged, or whether the School Board could have reasonably accommodated her. Accordingly, the resolution of whether Arline was otherwise qualified requires further findings of fact.

y

We hold that a person suffering from the contagious disease of tuberculosis can be a handicapped person within the meaning of § 504 of the Rehabilitation Act of 1973, and that respondent Arline is such a person. We remand the case to the District Court to determine whether Arline is otherwise qualified for her position. The judgment of the Court of Appeals is

Affirmed.

Chief Justice Rehnquist,

with whom Justice Scalia joins, dissenting.

In Pennhurst State School and Hospital v. Halderman, 451 U. S. 1 (1981), this Court made clear that, where Congress intends to impose a condition on the grant of federal funds, “it must do so unambiguously.” Id., at 17. This principle applies with full force to § 504 of the Rehabilitation Act, which Congress limited in scope to “those who actually ‘receive’ federal financial assistance.” United States Department of Transportation v. Paralyzed Veterans of America, 477 U. S. 597, 605 (1986). Yet, the Court today ignores this principle, resting its holding on its own sense of fairness and implied support from the Act. Ante, at 282-286. Such an approach, I believe, is foreclosed not only by Pennhurst, but also by our prior decisions interpreting the Rehabilitation Act.

Our decision in Pennhurst was premised on the view that federal legislation imposing obligations only on recipients of federal funds is “much in the nature of a contract.” 451 U. S., at 17. See also Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U. S. 176, 204, n. 26 (1982). As we have stated in the context of the Rehabilitation Act, “ ‘Congress apparently determined it would require . . . grantees to bear the costs of providing employment for the handicapped as a quid pro quo for the receipt of federal funds.”’ United States Department of Transportation v. Paralyzed Veterans of America, supra, at 605, quoting Consolidated Rail Corporation v. Darrone, 465 U. S. 624, 633, n. 13 (1984). The legitimacy of this quid pro quo rests on whether recipients of federal funds voluntarily and knowingly accept the terms of the exchange. Pennhurst, supra, at 17. There can be no knowing acceptance unless Congress speaks “with a clear voice” in identifying the conditions attached to the receipt of funds. 451 U. S., at 17.

The requirement that Congress unambiguously express conditions imposed on federal moneys is particularly compelling in cases such as this where there exists longstanding state and federal regulation of the subject matter. From as early as 1796, Congress has legislated directly in the area of contagious diseases. Congress has also, however, left significant leeway to the States, which have enacted a myriad of public health statutes designed to protect against the introduction and spread of contagious diseases. When faced with such extensive regulation, this Court has declined to read the Rehabilitation Act expansively. See Bowen v. American Hospital Assn., 476 U. S. 610, 642-647 (1986); Alexander v. Choate, 469 U. S. 287, 303, 307 (1985). Absent an expression of intent to the contrary, “Congress . . . ‘will not be deemed to have significantly changed the federal-state balance.’” Bowen v. American Hospital Assn., supra, at 644, quoting United States v. Bass, 404 U. S. 336, 349 (1971).

Applying these principles, I conclude that the Rehabilitation Act cannot be read to support the result reached by the Court. The record in this case leaves no doubt that Arline was discharged because of the contagious nature of tuberculosis, and not because of any diminished physical or mental capabilities resulting from her condition. Thus, in the language of §504, the central question here is whether discrimination on the basis of contagiousness constitutes discrimination “by reason of . . . handicap.” Because the language of the Act, regulations, and legislative history are silent on this issue, the principles outlined above compel the conclusion that contagiousness is not a handicap within the meaning of § 504. It is therefore clear that the protections of the Act do not extend to individuals such as Arline.

In reaching a contrary conclusion, the Court never questions that Arline was discharged because of the threat her condition posed to others. Instead, it posits that the contagious effects of a disease cannot be “meaningfully” distinguished from the disease’s effect on a claimant under the Act. Ante, at 282. To support this position, the Court observes that Congress intended to extend the Act’s protections to individuals who have a condition that does not impair their mental and physical capabilities, but limits their major life activities because of the adverse reactions of others. This congressional recognition of a handicap resulting from the reactions of others, we are told, reveals that Congress intended the Rehabilitation Act to regulate discrimination on the basis of contagiousness. Ante, at 284.

This analysis misses the mark in several respects. To begin with, Congress’ recognition that an individual may be handicapped under the Act solely by reason of the reactions of others in no way demonstrates that, for the purposes of interpreting the Act, the reactions of others to the condition cannot be considered separately from the effect of the condition on the claimant. In addition, the Court provides no basis for extending the Act’s generalized coverage of individuals suffering discrimination as a result of the reactions of others to coverage of individuals with contagious diseases. Although citing examples of handicapped individuals described in the regulations and legislative history, the Court points to nothing in these materials suggesting that Congress contemplated that a person with a condition posing a threat to the health of others may be considered handicapped under the Act. Even in an ordinary case of statutory construction, such meager proof of congressional intent would not be determinative. The Court’s evidence, therefore, could not possibly provide the basis for “knowing acceptance” by such entities as the Nassau County School Board that their receipt of federal funds is conditioned on Rehabilitation Act regulation of public health issues. Pennhurst, 451 U. S., at 17.

In Alexander v. Choate, supra, at 299, this Court stated that “[a]ny interpretation of § 504 must... be responsive to two powerful but countervailing considerations — the need to give effect to the statutory objectives and the desire to keep § 504 within manageable bounds.” The Court has wholly disregarded this admonition here.

       Respondent also sought relief under 42 U. S. C. § 1983, alleging that the board denied her due process of law. Both the District Court and the Court of Appeals rejected this argument, and respondent did not present the issue to this Court.

       Congress’ decision to pattern § 504 after Title VI is evident in the language of the statute, compare 29 U. S. C. § 794 with 42 U. S. C. § 2000d, and in the legislative history of §504, see, e. g., S. Rep. No. 93-1297, pp. 39-40 (1974); S. Rep. No. 95-890, p. 19 (1978). Cf. TenBroek & Matson, The Disabled and the Law of Welfare, 54 Cal. L. Rev. 809, 814-815, and nn. 21-22 (1966) (discussing theory and evidence that “negative attitudes and practices toward the disabled resemble those commonly attached to ‘underprivileged ethnic and religious minority groups’ ”). The range of programs subject to § 504’s prohibition is broader, however, than that covered by Title VI, because § 504 covers employment discrimination even in programs that receive federal aid with a primary objective other than the promotion of employment. See Consolidated Rail Corporation v. Darrone, 465 U. S. 624 (1984); Note; Accommodating the Handicapped: Rehabilitating Section 504 after Southeastern, 80 Colum. L. Rev. 171, 174-175, and n. 21 (1980).

       The primary focus of the 1973 Act was to increase federal support for vocational rehabilitation; the Act’s original definition of the term “handicapped individual” reflected this focus by including only those whose disability limited their employability, and those who could be expected to benefit from vocational rehabilitation. After reviewing the Department of Health, Education, and Welfare’s subsequent attempt to devise regulations to implement the Act, however, Congress concluded that the definition of “handicapped individual,” while appropriate for the vocational rehabilitation provisions in Titles I and III of the Act, was too narrow to deal with the range of discriminatory practices in housing, education, and health care programs which stemmed from stereotypical attitudes and ignorance about the handicapped. S. Rep. No. 93-1297, at 16, 37-38, 50.

      See id., at 39 (“This subsection includes within the protection of sections 503 and 504 those persons who do not in fact have the condition which they are perceived as having, as well as those persons whose mental or physical condition does not substantially limit their life activities and who thus are not technically within clause (A) in the new definition. Members of both of these groups may be subjected to discrimination on the basis of their being regarded as handicapped”); id., at 37-39, 63-64; see also 120 Cong. Rec. 30531 (1974) (statement of Sen. Cranston).

       In an appendix to these regulations, the Department of Health and Human Services explained that it chose not to attempt to “set forth a list of specific diseases and conditions that constitute physical or mental impairments because of the difficulty of ensuring the comprehensiveness of any such list.” 45 CFR pt. 84, Appendix A, p. 310 (1985). Nevertheless, the Department went on to state that “such diseases and conditions as orthopedic, visual, speech, and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation, [and] emotional illness” would be covered. Ibid. The Department also reinforced what a careful reading of the statute makes plain, “that a physical or mental impairment does not constitute a handicap for purposes of section 504 unless its severity is such that it results in a substantial limitation of one or more major life activities.” Ibid. Although many of the comments on the regulations when first proposed suggested that the definition was unreasonably broad, the Department found that a broad definition, one not limited to so-called “traditional handicaps,” is inherent in the statutory definition. Ibid.

       See Brief for Petitioners 15-16 (Act covers conditions that leave individuals with “diminished physical or mental capabilities,” but not conditions that could “impair the health of others”); Pet. for Cert. 13-14 (“[T]he concept of a ‘handicap’ [should be limited] to physical and mental conditions which result in either a real or perceived diminution of an individual’s capabilities. . . . [A]n individual suffering from a contagious disease may not necessarily suffer from any physical or mental impairments affecting his ability to perform the job in question. In other words, an employer’s reluctance to hire such an individual is not due to any real or perceived inability on the individual’s part, but rather because of the employer’s reluctance to expose its other employees and its clientele to the threat of infection”).

       The United States argues that it is possible for a person to be simply a carrier of a disease, that is, to be capable of spreading a disease without having a “physical impairment” or suffering from any other symptoms associated with the disease. The United States contends that this is true in the case of some carriers of the Acquired Immune Deficiency Syndrome (AIDS) virus. From this premise the United States concludes that discrimination solely on the basis of contagiousness is never discrimination on the basis of a handicap. The argument is misplaced in this case, because the handicap here, tuberculosis, gave rise both to a physical impairment and to contagiousness. This case does not present, and we therefore do not reach, the questions whether a carrier of a contagious disease such as AIDS could be considered to have a physical impairment, or whether such a person could be considered, solely on the basis of contagiousness, a handicapped person as defined by the Act.

       See n. 4, supra.

       Congress’ desire to prohibit discrimination based on the effects a person’s handicap may have on others was evident from the inception of the Act. For example, Representative Vanik, whose remarks constitute “a primary signpost on the road toward interpreting the legislative history of § 504,” Alexander v. Choate, 469 U. S. 287, 295-296, and n. 13 (1985), cited as an example of improper handicap discrimination a case in which “a court ruled that a cerebral palsied child, who was not a physical threat and was academically competitive, should be excluded from public school, because his teacher claimed his physical appearance ‘produced a nauseating effect’ on his classmates.” 117 Cong. Rec. 45974 (1971). See also 118 Cong. Rec. 36761 (1972) (remarks of Sen. Móndale) (a woman “crippled by arthritis” was denied a job not because she could not do the work but because “college trustees [thought] ‘normal students shouldn’t see her’”); id., at 525 (remarks of Sen. Humphrey); cf. Macgregor, Some Psycho-Social Problems Associated with Facial Deformities, 16 Am. Sociological Rev. 629 (1961).

      The Department of Health and Human Services regulations, which include among the conditions illustrative of physical impairments covered by the Act “cosmetic disfigurement,” lend further support to Arline’s position that the effects of one’s impairment on others is as relevant to a determination of whether one is handicapped as is the physical effect of one’s handicap on oneself. 45 CFR § 84.3(j)(2)(i)(A) (1985). At oral argument, the United States took the position that a condition such as cosmetic disfigurement could not substantially limit a major life activity within the meaning of the statute, because the only major life activity that it would affect would be the ability to work. The United States recognized that “working” was one of the major life activities listed in the regulations, but said that to argue that a condition that impaired only the ability to work was a handicapping condition was to make “a totally circular argument which hits itself by its bootstraps.” Tr. of Oral Arg. 15-16. The argument is not circular, however, but direct. Congress plainly intended the Act to cover persons with a physical or mental impairment (whether actual, past, or perceived) that substantially limited one’s ability to work. “[T]he primary goal of the Act is to increase employment of the handicapped.” Consolidated Rail Corporation v. Darrone, 465 U. S., at 633, n. 13; see also id., at 632 (“Indeed, enhancing employment of the handicapped was so much the focus of the 1973 legislation that Congress the next year felt it necessary to amend the statute to clarify whether § 504 was intended to prohibit other types of discrimination as well”).

      S. Rep. No. 93-1297, at 50; see n. 4, supra. See generally, TenBroek & Matson, 54 Cal. L. Rev., at 814; Strauss, Chronic Illness, in The Sociology of Health and Illness 138, 146-147 (P. Conrad & R. Kern eds. 1981).

         The isolation of the chronically ill and of those perceived to be ill or contagious appears across cultures and centuries, as does the development of complex and often pernicious mythologies about the nature, cause, and transmission of illness. Tuberculosis is no exception. See R. Dubos & J. Dubos, The White Plague (1952); S. Sontag, Illness as Metaphor (1978).

       Senator Humphrey noted the “irrational fears or prejudice on the part of employers or fellow workers” that make it difficult for former cancer patients to secure employment. 123 Cong. Ree. 13515 (1977). See also Feldman, Wellness and Work, in Psychosocial Stress and Cancer 173-200 (C. Cooper ed. 1984) (documenting job discrimination against recovered cancer patients); S. Sontag, supra, at 6 (“Any disease that is treated as a mystery and acutely enough feared will be felt to be morally, if not literally, contagious. Thus, a surprisingly large number of people with cancer find themselves being shunned by relatives and friends ... as if cancer, like TB, were an infectious disease”); Dell, Social Dimensions of Epilepsy: Stigma and Response, in Psychopathology in Epilepsy: Social Dimensions 185-210 (S. Whitman & B. Hermann eds. 1986) (reviewing range of discrimination affecting epileptics); Brief for Epilepsy Foundation of America as Amicus Curiae 5-14 (“A review of the history of epilepsy provides a salient example that fear, rather than the handicap itself, is the major impetus for discrimination against persons with handicaps”).

       Congress reaffirmed this approach in its 1978 amendments to the Act. There, Congress recognized that employers and other grantees might have legitimate reasons not to extend jobs or benefits to drug addicts and alcoholics, but also understood the danger of improper discrimination against such individuals if they were categorically excluded from coverage under the Act. Congress therefore rejected the original House proposal to exclude addicts and alcoholics from the definition of handicapped individual, and instead adopted the Senate proposal excluding only those alcoholics and drug abusers “whose current use of alcohol or drugs prevents such individual from performing the duties of the job in question or whose employment . . . would constitute a direct threat to property or the safety of others.” 29 U. S. C. § 706(7)(B). See 124 Cong. Rec. 30322 (1978); Brief for Senator Cranston et al. as Amici Curiae 35-36; 43 Op. Atty. Gen. No. 12 (1977).
      This approach is also consistent with that taken by courts that have addressed the question whether the Act covers persons suffering from conditions other than contagious diseases that render them a threat to the safety of others. See, e. g., Strathie v. Department of Transportation, 716 F. 2d 227, 232-234 (CA3 1983); Doe v. New York University, 666 F. 2d 761, 775 (CA2 1981).

       The dissent implies that our holding rests only on our “own sense of fairness and implied support from the Act,” post, at 289, and that this holding is inconsistent with Pennhurst State School and Hospital v. Halderman, 461 U. S. 1 (1981). It is evident, however, that our holding is premised on the plain language of the Act, and on the detailed regulations that implement it, neither of which the dissent discusses and both of which support the conclusion that those with a contagious disease such as tuberculosis may be considered “handicapped” under the Act. We also find much support in the legislative history, while the dissent is unable to find any evidence to support its view. Accordingly, the dissent’s construction of the Act to exclude those afflicted with a contagious disease is not only arbitrary (and therefore unfair) but unfaithful to basic canons of statutory construction.
      Nothing in Pennhurst requires such infidelity. The statutory provision at issue there was held to be “simply a general statement of ‘findings’ ” and to express “no more than ... a congressional preference for certain kinds of treatment.” Id., at 19. See Wright v. Roanoke Redevelopment and Housing Auth., 479 U. S. 418, 423 (1987) (“In Pennhurst. . . the statutory provisions were thought to be only statements of ‘findings’ indicating no more than a congressional preference — at most a ‘nudge in the preferred directio[n]’ ”). The contrast between the congressional preference at issue in Pennhurst and the antidiscrimination mandate of § 504 could not be more stark.
      Nor is there any reason to think that today’s decision will extend the Act beyond manageable bounds. Construing § 604 not to exclude those with contagious diseases will complement rather than complicate state efforts to enforce public health laws. As we state, infra, at 288, courts may reasonably be expected normally to defer to the judgments of public health officials in determining whether an individual is otherwise qualified unless those judgments are medically unsupportable. Conforming employment decisions with medically reasonable judgments can hardly be thought to threaten the States’ regulation of communicable diseases. Indeed, because the Act requires employers to respond rationally to those handicapped by a contagious disease, the Act will assist local health officials by helping remove an important obstacle to preventing the spread of infectious diseases: the individual’s reluctance to report his or her condition. It is not surprising, then, that in their brief as amici curiae in support of respondent, the States of California, Maryland, Michigan, Minnesota, New Jersey, New York, and Wisconsin conclude that “inclusion of communicable diseases within the ambit of Section 504 does not reorder the priorities of state regulatory agencies . . . [and] would not alter the balance between state and federal authority.” Brief for State of California et al. 30.

       A person who poses a significant risk of communicating an infectious disease to others in the workplace will not be otherwise qualified for his or her job if reasonable accommodation will not eliminate that risk. The Act would not require a school board to place a teacher with active, contagious tuberculosis in a classroom with elementary schoolchildren. Respondent conceded as much at oral argument. Tr. of Oral Arg. 45.

       “An otherwise qualified person is one who is able to meet all of a program’s requirements in spite of his handicap.” Southeastern Community College v. Davis, 442 U. S. 397, 406 (1979). In the employment context, an otherwise qualified person is one who can perform “the essential functions” of the job in question. 45 CFR § 84.3(k) (1985). When a handicapped person is not able to perform the essential functions of the job, the court must also consider whether any “reasonable accommodation” by the employer would enable the handicapped person to perform those functions. Ibid. Accommodation is not reasonable if it either imposes “undue financial and administrative burdens” on a grantee, Southeastern Community College v. Davis, 442 U. S., at 412, or requires “a fundamental alteration in the nature of [the] program,” id., at 410. See 45 CFR §84.12(e) (1985) (listing factors to consider in determining whether accommodation would cause undue hardship); 45 CFR pt. 84, Appendix A, p. 315 (1985) (“[W]here reasonable accommodation does not overcome the effects of a person’s handicap, or where reasonable accommodation causes undue hardship to the employer, failure to hire or promote the handicapped person will not be considered discrimination”); Davis, supra, at 410-413; Alexander v. Choate, 469 U. S., at 299-301, and n. 19; Strathie v. Department of Transportation, 718 F. 2d, at 231.

       This case does not present, and we do not address, the question whether courts should also defer to the reasonable medical judgments of private physicians on which an employer has relied.

       Employers have an affirmative obligation to make a reasonable accommodation for a handicapped employee. Although they are not required to find another job for an employee who is not qualified for the job he or she was doing, they cannot deny an employee alternative employment opportunities reasonably available under the employer’s existing policies. See n. 17, supra; 45 CFR §84.12 and Appendix A, pp. 315-316 (1985).

      See, e. g., 42 U. S. C. §§243, 264; Act of May 27, 1796, ch. 31, 1 Stat. 474; see generally Morgenstern, The Role of the Federal Government in Protecting Citizens from Communicable Diseases, 47 U. Cin. L. Rev. 537 (1978).

       The coverage of state statutes regulating contagious diseases is broad, addressing, inter alia, reporting requirements, quarantines, denial of marriage licenses based on the presence of certain diseases, compulsory immunization, and certification and medical testing requirements for school employees. See, e. g., Ariz. Rev. Stat. Ann. § 36.621 et seq. (1986) (reporting requirements); Conn. Gen. Stat. §§ 19a-207, 19a-221 (1985) (quarantines); Fla. Stat. §§ 741.051-741.055 (1985) (marriage licenses); Mass. Gen. Laws §71:55B (1984) (certification requirements for school employees); Miss. Code Ann. § 37-7-301(i) (Supp. 1986) (compulsory immunization of school students); W. Va. Code § 16-3-4a (1985) (medical testing).

       In testifying concerning his reasons for recommending Arline’s termination, petitioner Craig Marsh, Superintendent of Schools of Nassau County, Florida, stated that “I felt like that for the benefit of the total student population and . . . personnel in Nassau County and the public benefit, that it would be best if — not to continue or offer Mrs. Arline any employment.” App. 62. Marsh added:
      “I am charged and so is the school board, with the responsibility for the protecting, the safety, health and welfare of students, every student in Nassau County. And the record clearly states that, you know, after all-after the third time that I had knowledge of Mrs. Arline’s recurring condition, which was infectious at the time of each reoccurrence, that I felt like it [was] in the best interest of the school system of Nassau County that she be dismissed from the classroom.” Id., at 81.
      Before Arline’s termination, Marsh consulted with Dr. Marianne Mc-Euen, who testified that she recommended the termination because of the threat that Arline’s condition posed to the health of the small children with whom Arline was in constant contact. Id., at 12-17.

       See, e. g., 29 U. S. C. §701 et seq.; 46 CFR pt. 84 (1985); H. R. Rep. No. 95-1149 (1978); S. Rep. No. 95-890 (1978); S. Rep. No. 93-1297 (1974); H. R. Rep. No. 93-244 (1973); S. Rep. No. 93-318 (1973).

       In fact, two of the examples cited by the Court may be read to support a contrary conclusion. The 1978 amendments to the Rehabilitation Act, cited by the majority, ante, at 285, n. 14, specifically exclude from the definition of a handicapped person alcoholics and drug abusers that “constitute a direct threat to property or the safety of others.” 29 U. S. C. § 706(7)(B) (emphasis added). If anything, this exclusion evinces congressional intent to avoid the Act’s interference with public health and safety concerns. See Oversight Hearings on Rehabilitation Act of 1973 before the Subcommittee on Select Education of the House Committee on Education and Labor, 95th Cong., 2d Sess., 503 (1978) (statement of Rep. Hyde) (“Congress needs to give thoughtful and wide-ranging consideration to the needs of handicapped persons, balanced against the realities of public safety, economics, and commonsense”). This intent is also present in the statements of Representative Vanik relied on by the Court. See ante, at 283, n. 9. Representative Vanik expressed apparent disapproval of a court ruling that “ ‘a cerebral palsied child, who was not a physical threat and was academically competitive, should be excluded from public school, because his teacher claimed his physical appearance “produced a nauseating effect” on his classmates.’” Ante, at 283, n. 9, quoting 117 Cong. Ree. 45974 (1971) (emphasis added).