The Court of Appeals for the Ninth Circuit reversed. After reviewing the prior history of the case and explaining why it had previously reversed the District Court's order denying respondent's motion for a preliminary injunction, the Court of Appeals wrote:
"The trial in the district court did not produce substantially different evidence from that which we considered in Kling I. The district court's findings are clearly erroneous and in many instances are inconsistent. We find that Mary Kling is an 'otherwise qualified handicapped individual' within the meaning of section 504 of the Rehabilitation Act and that she was denied admission to the School of Nursing solely because of her handicap. The school's physician, Dr. Crary, rejected Kling because she suffers from Crohn's Disease. He assumed that merely because of her disease she would be unable to complete the school's program. He did not evaluate her on an individual basis and even testified that had he known more about Kling's medical history, he would have been 'swayed very strongly toward acceptance.' It is precisely this type of general assumption about a handicapped person's ability that section 504 was designed to avoid. See Bentivegna v. United States Department of Labor, 694 F.2d 619 (9th Cir.1982); Pushkin v. Board of Regents of the University of Colorado, 658 F.2d 1372, 1385 (10th Cir.1981). This district court's legal conclusions are similarly erroneous.
"1 29 U.S.C. § 794. See 34 CFR § 104.3(j).
"2 The School of Nursing's claim that Kling was not otherwise qualified because she failed to meet the mathematical entrance requirement is meritless. Because Kling was rejected solely because of her handicap and because this decision was made without regard to her mathematical deficiency and before she had an opportunity to submit evidence that she had or had not remedied the deficiency, it is irrelevant that the deficiency may have existed." App. to Pet. for Cert. A-6—A-7, and nn. 1, 2.
As this Court's summary disposition today demonstrates, the Court of Appeals would have been well advised to discuss the record in greater depth. One reason it failed to do so is that the members of the panel decided that the issues presented by this case did not warrant discussion in a published opinion that could be "cited to or by the courts of this circuit, save as provided by Rule 21(c)." Id., at A-2, n. **. That decision not to publish the opinion or permit it to be cited—like the decision to promulgate a rule spawning a body of secret law—was plainly wrong.1
The brevity of analysis in the Court of Appeals' unpublished, noncitable opinion, however, does not justify the Court's summary reversal.2 Presumably, the Court's reversal is not based on a view that the Court of Appeals misapprehended the governing standard: as the Ninth Circuit stated, findings of fact by the District Court are reviewable to determine if they are "clearly erroneous." Fed.Rule Civ.Proc. 52(a). Apparently, the Court disagrees with the Ninth Circuit's application of that standard. However, the Court's reversal is not accompanied by a review of the District Court's factual findings or a determination that they are not, in fact, "clearly erroneous." The Court is thus spared the necessity of explaining the apparent inconsistencies in the District Court's findings. The Court is thus spared the necessity of addressing the fact that petitioners' own rendition of the incidents in question suggests that the District Court's findings give a less than complete accounting of certain events events that may well influence a court's view of the matter at hand.
Finally, the Court is spared the necessity of analyzing the District Court's factual findings in the context of the record. The absence of such an analysis is somewhat puzzling. The entirety of the majority's analysis is a reference to Anderson v. Bessemer City, 470 U.S. 564, 105 S. Ct. 1504, 84 L. Ed. 2d 518 (1985). In that case, the Court found it necessary to review the record before it reversed the Court of Appeals' conclusion that the District Court's findings were clearly erroneous. Id., at 576-581, 105 S.Ct., at 1512-1515. The Court's refusal to undertake such a review for its summary disposition in the case before us is especially disturbing when it is recalled that, under current Court practice, the petitioner does not usually file the record with a petition for certiorari.
In my judgment, this Court does not use its scarce resources wisely when it undertakes to engage in the de novo review of factual records in relatively routine litigation. Cf. United States v. Hasting, 461 U.S. 499, 516-518, 103 S. Ct. 1974, 1984-1985, 76 L. Ed. 2d 96 (1983) (STEVENS, J., concurring in judgment). When such review is necessary to a disposition, however, and the Court fails to provide it, the problems of this Court's review are still more troubling. For, like a court of appeals that issues an opinion that may not be printed or cited, this Court then engages in decision-making without the discipline and accountability that the preparation of opinions requires.
I respectfully dissent from the Court's summary reversal.
Justice BRENNAN dissents from the Court's summary reversal substantially for the reasons stated by Justice STEVENS.