National Coalition v. Gilmore ( 1999 )

Filed: July 14, 1999
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 97-1480
(CA-96-1379)
National Coalition for Students with Disabil-
ities Education and Legal Defense Fund,
Plaintiff - Appellant,
versus
James S. Gilmore, III, etc., et al,
Defendants - Appellees.
O R D E R
The court amends its opinion filed July 24, 1998, as follows:
On the cover sheet, section 2 -- the appellees are corrected
to read:
JAMES S. GILMORE, III, acting in his official capacity as
Governor of Virginia; WILLIAM A. ALLEN, acting in his
official capacity as Director of the State Council on
Higher Education; CAMERON P. QUINN, acting in her offi-
cial capacity as Secretary of the State Board of
Elections.
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
NATIONAL COALITION FOR STUDENTS
WITH DISABILITIES EDUCATION AND
LEGAL DEFENSE FUND,
Plaintiff-Appellant,
v.
JAMES S. GILMORE, III, acting in his official
capacity as Governor of Virginia;
No. 97-1480
WILLIAM A. ALLEN, acting in his
official capacity as Director of the
State Council on Higher Education;
CAMERON P. QUINN, acting in her
official capacity as Secretary of the
State Board of Elections,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief District Judge.
(CA-96-1379)
Argued: October 27, 1997
Decided: July 24, 1998
Before RUSSELL,* MICHAEL, and MOTZ, Circuit Judges.
_________________________________________________________________
*Judge Russell participated in the decision of this case but died before
the opinion was issued. The opinion is filed by a quorum of the panel
pursuant to 28 U.S.C. § 46(d).
Reversed and remanded by published opinion. Judge Michael wrote
the opinion, in which Judge Motz joined.
_________________________________________________________________
COUNSEL
ARGUED: Michael Jackson Beattie, NATIONAL COALITION
FOR STUDENTS WITH DISABILITIES EDUCATION AND
LEGAL DEFENSE FUND, Fairfax, Virginia, for Appellant. Alice
Ann Berkebile, Assistant Attorney General, Richmond, Virginia, for
Appellees. ON BRIEF: Richard Cullen, Attorney General of Vir-
ginia, Richmond, Virginia, for Appellees.
_________________________________________________________________
OPINION
MICHAEL, Circuit Judge:
The National Voter Registration Act (NVRA), 42 U.S.C. § 1973gg-
5(a)(2)(B), requires states to designate as voter registration agencies
"all offices . . . that provide State-funded programs primarily engaged
in providing services to persons with disabilities." The National
Coalition for Students with Disabilities Education and Legal Defense
Fund (NCSD) brought this action against several Commonwealth of
Virginia officials (collectively, Virginia or the Commonwealth) to
force the Commonwealth to designate as voter registration agencies
the offices providing services to disabled students at Virginia's public
colleges and universities.1 The district court granted summary judg-
ment for Virginia, holding that the NVRA does not apply to colleges.
We reverse because offices providing services to disabled students at
public colleges are "offices" under § 1973gg-5(a)(2)(B). As a result,
we remand for the award of partial summary judgment to NCSD with
respect to particular offices at the University of Virginia (UVA) and
Virginia Polytechnic Institute (Virginia Tech) that must be designated
as voter registration agencies. Further proceedings with respect to
other public colleges will also be necessary on remand.
_________________________________________________________________
1 After this we will use "colleges" for colleges and universities.
2
I.
A.
Congress passed the NVRA -- dubbed the "Motor Voter Law" --
to encourage increased voter registration for elections involving fed-
eral offices. See 42 U.S.C. § 1973gg(b)(1). The Act adopts procedures
designed to make it easier to register to vote, and it requires the states
to put these procedures into place. Specifically, states must (1)
include a voter registration application as part of the application or
renewal form for a motor vehicle driver's license, (2) allow mail
application for voter registration, and (3) designate various offices as
"voter registration agencies" where application for registration may be
made in person. See id. §§ 1973gg-2, -5(a).
This case involves aspects of the third requirement. Under this
requirement each state must designate the following offices as voter
registration agencies: (1) "all offices in the State that provide public
assistance" and (2) "all offices in the State that provide State-funded
programs primarily engaged in providing services to persons with dis-
abilities." Id. § 1973gg-5(a)(2)(A)-(B). A state must also designate
other offices, but it has latitude in deciding exactly which ones. The
Act suggests that government offices such as public schools and
libraries, marriage license bureaus in clerks' offices, fishing and hunt-
ing license bureaus, and revenue offices may be included in the dis-
cretionary designation. See id. § 1973gg-5(a)(3)(B).
It goes without saying that the offices designated as voter registra-
tion agencies under the NVRA were originally created to provide ser-
vice or assistance wholly apart from voter registration. The Act
requires a designated office to provide certain voter registration ser-
vices to persons who request the service or assistance customarily
provided by that office. These voter registration services include dis-
tribution of voter registration application forms and another form that
includes, among other things, the question, "[i]f you are not registered
to vote where you live now, would you like to apply to register to
vote here today?" See id. § 1973gg-5(a)(6)(A)-(B). Offices designated
as voter registration agencies must also offer to assist applicants in
completing voter registration forms and accept completed forms for
3
transmittal to the appropriate state election official. See id. § 1973gg-
5(a)(4)(A).
B.
NCSD is an organization headquartered in Fairfax, Virginia, whose
general purpose is to advance the educational opportunities and rights
of students with disabilities. NCSD is currently working to encourage
college students with disabilities to register to vote. Many disabled
students do not drive or otherwise have difficulty traveling. In addi-
tion, many of these students need assistance in completing voter reg-
istration forms because of blindness or motor or muscular
dysfunction. Thus, NCSD alleges that a voter registration site on col-
lege campuses would permit many more disabled students to register.
And, NCSD contends that the NVRA requires states to designate dis-
ability services offices at state-funded colleges as voter registration
agencies.
On July 10, 1996, a visually impaired member of NCSD went to
the campus of George Mason University in Fairfax, Virginia, to
"look[ ] into acceptance to" that school. Among the offices she visited
at George Mason was the Office of Disability Support Services,
where she asked what assistance that office provided to students with
disabilities. In response to a specific question about voter registration,
she was told that the office did not provide voter registration services.
On July 17, 1996, NCSD sent a written complaint to the Virginia
State Board of Elections, alleging that the Commonwealth was in vio-
lation of the NVRA by failing to provide voter registration services
in disabled student services offices in public colleges.2 After the
Board took no action on this complaint, NCSD sued the Common-
wealth in the Eastern District of Virginia, asserting an NVRA claim
as well as claims under the Americans with Disabilities Act (ADA)
and several provisions of the United States Constitution. NCSD
sought, among other relief, a declaration that Virginia was in violation
of the NVRA and an injunction requiring the Commonwealth to pro-
_________________________________________________________________
2 Before suing for declaratory or injunctive relief under the Act, a per-
son must (in most cases) give the state's chief election official prior writ-
ten notice of the alleged violation. See 42 U.S.C. § 1973gg-9(b).
4
vide voter registration services in college offices providing services
to students with disabilities.
In the course of discovery and motion practice in this case Virginia
provided undisputed facts about how the Commonwealth's institu-
tions of higher education provide services to students with disabilities.
To begin with, every public college in Virginia has an "office, section
or department" that provides services for disabled students. These
offices provide assistance "geared toward ensuring that qualified stu-
dents with disabilities are receiving adequate access to the educational
programs and activities" at their schools. None of these offices, how-
ever, provides voter registration services.
More specific information was provided about three public col-
leges, George Mason University, UVA, and Virginia Tech. George
Mason has a Disability Support Services Office (DSS) which is the
only office at George Mason that offers services"specifically directed
to students with disabilities." Operation of the DSS office at George
Mason is funded by student activity fees. At UVA disabled student
services are provided through the Office of the Vice President of Stu-
dent Affairs. At Virginia Tech these services are provided by the
Office of the Dean of Students. UVA and Virginia Tech fund these
offices from appropriations made by the General Assembly for
"Higher Education Student Services."3
Virginia moved for summary judgment on November 25, 1996, and
NCSD cross-moved for partial summary judgment on January 13,
1977. The Commonwealth argued that "offices" under § 1973gg-
_________________________________________________________________
3 A visit to the Internet reveals additional information about disabled
students services available at UVA. UVA advertises a Learning Needs
and Evaluation Center that provides "numerous non-medical services to
students with disabilities," including education counseling. See Univer-
sity of Virginia, Guide to the University of Virginia for Students with
Disabilities (visited June 30, 1998) http://www.uva.edu~vpsa/ada-
std.html>. This center appears to operate separately from the Office of
the Vice President of Student Affairs, the only UVA office the Common-
wealth disclosed in this case. See id. Our decision, of course, must be
based on the record developed in district court. See United States v.
Russell, 971 F.2d 1098, 1112 (4th Cir. 1992).
5
5(a)(2)(B) of the NVRA are only those state agencies created by the
legislature and funded by specific appropriation for the primary pur-
pose of providing assistance to the disabled. Because colleges as a
whole are not primarily engaged in that endeavor, they are not
"offices" under the Act, according to Virginia. Finally, Virginia
argued that particular college offices serving disabled students are not
"offices" under the NVRA because these offices are not created by the
legislature or funded by an appropriation dedicated specifically for
services to disabled students.4
NCSD based its cross-motion on three main grounds. First, it
pointed out that it was not contending that entire colleges should be
designated as voter registration agencies. Rather, it said that disability
services offices in colleges were "offices" under the Act. These smal-
ler offices had to be designated as voter registration agencies, accord-
ing to NCSD, because they were offering "programs primarily
engaged in providing services" to disabled students. Second, it argued
that the ADA requires colleges to provide convenient and accessible
voter registration sites for disabled students. Third, NCSD went
beyond its complaint and argued that the ADA requires Virginia to
provide braille and large print voter registration applications for per-
sons who are visually impaired. This third argument was apparently
based on Lightbourn v. El Paso, 904 F. Supp. 1429, 1433-34 (W.D.
Tex. 1995) (holding that Texas Secretary of State had duty to make
sure local election authorities complied with ADA in providing
accommodations to allow visually impaired persons to vote in secret),
a decision that was reversed on appeal to the Fifth Circuit, see
Lightbourn v. El Paso, 118 F.3d 421 (5th Cir. 1997), cert. denied sub
nom. Lightbourn v. Garza, 118 S. Ct. 700 (1998).
The district court granted Virginia's motion for summary judgment
and denied NCSD's cross-motion. In addressing the NVRA, the court
_________________________________________________________________
4 A few state government departments that serve the disabled have been
designated by Virginia as voter registration agencies. They are the Vir-
ginia Department of Rehabilitative Services, the Department for Rights
of Virginians with Disabilities, the Virginia Department for the Deaf and
Hard of Hearing, the Virginia Department for the Visually Handicapped,
the Virginia Department of Mental Health, Mental Retardation and Sub-
stance Abuse Services, and the Virginia Department of Social Services.
6
held that Congress did not intend for the Act to apply to state colleges
because these institutions are not primarily engaged in serving dis-
abled persons. The court also rejected NCSD's claim that the ADA
requires a voter registration site for disabled students on college cam-
puses. Finally, the court said that NCSD did not state a claim under
the Constitution. NCSD appeals the district court's ruling on its
NVRA claim and also seeks to have us consider its claim that the
ADA requires voter registration application forms in braille and large
print. The district court did not address the braille/large print claim,
presumably because the claim was not asserted in the complaint or in
any motion to amend. Because the braille/large print claim was not
properly raised in district court, we will not consider it here. See
Krouse v. American Sterilizer Co., 126 F.3d 494, 499 n.1 (3d Cir.
1997). We move, then, to the one claim that NCSD preserved for
appeal, the NVRA claim.
II.
The NVRA requires that states designate as voter registration agen-
cies "all offices in the State that provide State-funded programs pri-
marily engaged in providing services to persons with disabilities." 42
U.S.C. § 1973gg-5(a)(2)(B).
Virginia concedes that at each of its public colleges there is an
office, section, or department that provides services to disabled stu-
dents to ensure them adequate access to educational programs and
other activities. Virginia also concedes that these offices at UVA and
Virginia Tech are funded by a line item appropriation made by the
General Assembly for "Higher Education Student Services." As a
result, it cannot be disputed that the offices assisting disabled students
at UVA and Virginia Tech fit a key portion of the controlling statu-
tory language: they "provide State-funded programs primarily
engaged in providing services to persons with disabilities." Id.
§ 1973gg-5(a)(2)(B).5 The focus of the dispute on appeal is therefore
whether the offices providing these programs at UVA and Virginia
Tech are "offices" under the NVRA.
_________________________________________________________________
5 We cannot say whether the DSS office at George Mason meets the
"State-funded" requirement. See part III, infra.
7
NCSD argues that an "office" is a subdivision of a government
department or institution. This argument is based on the definition of
the term "office" found in several leading dictionaries. NCSD argues
that since an office providing services for disabled students in a pub-
lic college is a subdivision of the college, it should be considered an
"office" for purposes of the NVRA. Virginia disagrees, arguing that
the term "office" refers to a government agency as a whole and not
to offices that are subdivisions of an agency. Only a government
agency created by state statute could be an "office" under Virginia's
interpretation. Virginia's public colleges are public institutions cre-
ated by statute. See generally Va. Code Ann. tit. 23. Thus, Virginia
suggests that a public college as a whole would be an "office" in the
NVRA sense, but an office serving the disabled within that college
could not be an NVRA "office" because it is merely a subdivision of
the college that is not designated by statute or specific appropriation.6
_________________________________________________________________
6 Although Virginia argues that its public colleges are "offices," the
Commonwealth concludes that they do not have to be designated as voter
registration agencies because a college as a whole is not primarily
engaged in serving the disabled. Virginia's argument about the meaning
of "office" thus proceeds on the assumption that in order to be designated
as a voter registration agency under § 1973gg-5(a)(2)(B), an office (as a
whole) must be primarily engaged in serving the disabled. The statutory
language does not permit this assumption. Again, § 1973gg-5(a)(2)(B)
designates "all offices in the State that provide State-funded programs
primarily engaged in providing services to persons with disabilities."
"Primarily engaged" modifies "programs" under the most natural reading
of this provision. This reading is also mandated by the fundamental
canon of statutory construction that a qualifying phrase refers solely to
its immediate antecedent. See 2A Sutherland Statutory Construction
§ 47.33 (5th ed. 1992). Absent an expression of contrary congressional
intent, the failure to apply this canon "flies in the face of common sense
in grammar hardened into law." United States ex rel. Santarelli v.
Hughes, 116 F.2d 613, 616 (3d Cir. 1940). Here, the antecedent immedi-
ately preceding "primarily engaged" is "programs." There is nothing in
the statute or legislative history to suggest that"primarily engaged" does
not modify "programs." Accordingly, an office may qualify as a voter
registration agency if it provides programs primarily engaged in serving
the disabled, even if the office as a whole is not primarily engaged in
serving the disabled.
8
We conclude that § 1973gg-5(a)(2)(B), read in light of the estab-
lished rules of statutory construction, requires states to designate as
voter registration agencies those state-funded offices that provide ser-
vices to disabled students at public colleges.
A.
Courts must apply the plain language of a statute except in the rare
circumstance when there is a clearly expressed legislative intent to the
contrary or when a literal application would frustrate the statute's pur-
pose or lead to an absurd result. See In re Vial, 115 F.3d 1192, 1196
(4th Cir. 1997) (en banc). "In interpreting statutory language, words
are generally given their common and ordinary meaning." Alexander
S. v. Boyd, 113 F.3d 1373, 1383 (4th Cir. 1997) (citation omitted); see
also Smith v. United States, 508 U.S. 223, 228 (1993) ("When a word
is not defined by statute, we normally construe it in accord with its
ordinary or natural meaning"). We decide whether particular statutory
language is plain by considering "the language itself, the specific con-
text in which that language is used, and the broader context of the
statute as a whole." Robinson v. Shell Oil Co., 117 S. Ct. 843, 846
(1997) (citations omitted); accord United States v. Wildes, 120 F.3d
468, 469-70 (4th Cir. 1997), cert. denied sub nom. Cameron v. United
States, 118 S. Ct. 885 (1998).
1.
We begin with the language itself, that is, the term "offices" in
§ 1973gg-5(a)(2)(B), which specifies "all offices in the State that pro-
vide State-funded programs primarily engaged in providing services
to persons with disabilities." (Emphasis added.) We customarily turn
to dictionaries for help in determining whether a word in a statute has
a plain or common meaning. See, e.g., United States v. Harris, 128
F.3d 850, 854 (4th Cir. 1997) (using Black's Law Dictionary to deter-
mine plain meaning of "similar"); In re A.H. Robins Co., 109 F.3d
965, 967-68 (4th Cir. 1997) (using Webster's Dictionary for "there-
fore").
Webster's defines the term "office" in a governmental context as
"a subdivision of a governmental department." See Webster's II New
Riverside University Dictionary 816 (1988). Other dictionaries are in
9
accord with this definition of "office." See, e.g., Webster's III New
International Dictionary 1567 (1981) ("a branch or subdivision of
governmental administration that ranks (in the national government)
below the department"); Random House Dictionary of the English
Language 1844 (2d ed. 1987) ("an operating agency or division of
certain departments of the U.S. Government: Office of Community
Services"); cf. Black's Law Dictionary 1083 (6th ed. 1990) ("[a] place
for the regular transaction of business or performance of a particular
service"). This definition means that an office within a government
department is a "subdivision" of that department. From this, NCSD
persuasively argues that a public college created by the state is a state
department or institution. A public college is therefore not an "office"
under the NVRA because as a stand-alone department or institution,
it could not be a "subdivision" of itself. NCSD concludes its applica-
tion of the definition by arguing that a college office serving the dis-
abled is a "subdivision" of the college and, hence, an "office" under
the Act.
By contrast, Virginia argues that the term "office" in § 1973gg-5
means only a government department as a whole that is created
directly by the state legislature; constituent subdivisions of a depart-
ment do not count. Under Virginia's interpretation public colleges are
themselves the "offices" referred to in the section. Virginia provides
no textual support for this interpretation, however. In fact, the only
support for Virginia's argument comes not from American but from
British usage of the term "office." See, e.g., Random House, supra,
at 1844 ("Brit. a major administrative unit or department of the
national government: the Foreign Office." (emphasis in original));
Webster's III, supra, at 1567 ("Brit: a principal branch or division of
governmental administration: DEPARTMENT" (emphasis in origi-
nal)). Were we interpreting a statute of British origin, this definition
might be sufficient to create an ambiguity of meaning.
In this case, however, we are interpreting a statute enacted by the
United States Congress, with the constituent states of the Union as the
intended audience. The fact that an alternative definition exists in the
English language is not enough to create ambiguity."[T]he plain,
obvious and rational meaning of a statute is always to be preferred to
any curious, narrow, hidden sense that nothing but the exigency of a
hard case and the ingenuity and study of an acute and powerful intel-
10
lect would discover." Lynch v. Alworth-Stephens Co., 267 U.S. 364,
370 (1925) (Sutherland, J.) (quotations omitted). We believe that
when the alternative definition of a term derives chiefly from usage
outside the United States, the foreign usage will not blur an otherwise
plain meaning of the term in one of our statutes, unless there is clear
evidence that Congress intended to adopt the foreign definition. Cf.
MCI Telecommunications Corp. v. American Tel. & Tele. Co., 512
U.S. 218, 228 & n.3 (1995) (rejecting aberrant definition of "modify"
when weight of common American usage dictates otherwise). There
is no evidence that Congress intended to use "office" in the NVRA
in the British (department of government) sense.
When we focus on what the term "office" means insofar as govern-
ment structure is concerned, respected dictionaries tell us that in com-
mon American usage the term means a subdivision of a government
department or institution. Virginia acknowledges that every one of its
public colleges has "an office, section or department" providing ser-
vices to disabled students. Virginia does not dispute that these offices
are subdivisions of the colleges. Accordingly, the dictionary defini-
tion of the term "office" (a subdivision of a government department)
supports the proposition that offices providing disability services in
public colleges are "offices" under the NVRA.
2.
In looking for the plain meaning of a statutory term, we also refer
to the specific context (usually the subsection) in which the term is
used. See e.g., Robinson, 117 S. Ct. at 846-47; Wildes, 120 F.3d at
740. The context in which a term is used often determines how
broadly or narrowly the term is to be defined. And, when "Congress
employ[s] broad language" in drafting a statute, we "are not free to
disregard" it. Wildes, 120 F.3d at 740.
The term "offices" in the provision at issue appears in the following
context: "all offices in the State that provide State-funded programs
primarily engaged in providing services to persons with disabilities."
§ 1973gg-5(a)(2)(B) (emphasis added). Virginia can point to nothing
in this language that can be read to construe "office" to refer to an
entire government department or institution, such as a college, created
directly by the legislature. Nor can Virginia claim, once specific con-
11
text is taken into account, that college offices providing programs for
the disabled are not "offices" under the provision. Indeed, the use of
the word "all" to modify "offices" suggests an expansive meaning
because "all" is a term of great breadth. See Wildes, 120 F.2d at 740.
The addition of the broad, inclusive word "all" in the specific context
(§ 1973gg-5(a)(2)(B)) in which the term "offices" is used also sup-
ports the conclusion that an office providing programs for the dis-
abled in a public college is an "office" under the Act.
3.
Next, we must consider what "offices" means in the context of the
statute as a whole. See Robinson, 117 S. Ct. at 846-47; Wildes, 120
F.3d at 740. The word "offices" is used in other provisions, § 1973gg-
5(a)(2)(A) & (3)(B), which are interrelated with and in close proxim-
ity to § 1973gg-5(a)(2)(B), the provision we are studying today. We
thus have the "classic case for application of the normal rule of statu-
tory construction that identical words used in different parts of the
same act are intended to have the same meaning." See Commissioner
v. Lundy, 516 U.S. 235, 250 (1996)(citations and internal quotations
omitted).
To provide adequate voter registration opportunities to citizens
who may not apply for or renew driver's licenses, Congress requires
states to designate a number of "offices" as voter registration offices.
See generally § 1973gg-5. A state must designate "all offices" that
provide public assistance, see id. § 1973gg-5(a)(2)(A), and "all
offices" "that provide State-funded programs primarily engaged" in
serving the disabled, id. § 1973gg-5(a)(2)(B). In addition to these spe-
cific offices that must be designated as voter registration agencies, a
state must also designate "other offices," see id. § 1973gg-5(a)(3)(A).
Although a state has discretion in choosing the additional offices for
designation, paragraph (3)(B) lists offices that may be included in the
discretionary designation. See id. § 1973gg-5(a)(3)(B). Thus, para-
graph (3)(B), like paragraphs (2)(A) and (2)(B) just above it,
describes "offices" that are suitable, in Congress's judgment, as voter
registration agencies.
Among the "offices" suggested in paragraph (3)(B) for designation
are "public libraries, public schools, offices of city and county clerks
12
(including marriage license bureaus), fishing and hunting license
bureaus, government revenue offices, [and] unemployment compen-
sation offices." Id. § 1973gg-5(3)(B). Congress is not describing over-
all government departments here; it is describing subdivisions of
departments. Thus, a marriage license bureau is a subdivision of a
clerk's office, a hunting license bureau is a subdivision of a state
game and wildlife department, a revenue office is a subdivision of a
state tax department, an unemployment compensation office is a sub-
division of a state department of employment security, and so on.
Congress's focus in paragraph (3)(B) is on the small offices or loca-
tions where citizens conduct their daily business with government.
Because of the high volume of citizen traffic in these offices, they are
ideal as voter registration agencies.
Virginia argues that in paragraph (2)(B), relating to "offices" serv-
ing the disabled, Congress used "offices" to mean overall governmen-
tal departments. Thus, according to Virginia, "offices" providing
"programs primarily engaged in providing services" to the disabled
would only include the half-dozen major state departments serving
the disabled, such as the Virginia Department of Rehabilitative Ser-
vices. However, when paragraph (2)(B) is read in context with para-
graphs (2)(A) (offices providing public assistance) and (3)(B)
(various local offices), it appears that Congress in all three places
used "offices" in the same (smaller) sense. In other words, Congress
wanted to make voter registration services available in community-
based offices that citizens visit frequently for services or assistance.
This purpose applies especially to the disabled, many of whom do not
drive or have difficulty in traveling.
When we consider what the word "office" means in the broader
context of the NVRA as a whole, it does not stand for a government
department but it is a subdivision of a department where citizens reg-
ularly go for service and assistance. Under this meaning, a college
office serving disabled students would be an "office" under the spe-
cific paragraph, § 1973gg-5(a)(2)(B), we are considering.
B.
We have just said that the plain meaning of the term"offices" in
§ 1973gg-5(a)(2)(B) includes an office providing services to disabled
13
students in a public college. This plain meaning cannot be circum-
vented unless we have the rare instance when there is a clearly
expressed congressional intent to the contrary or when a literal appli-
cation of the plain language would frustrate the statute's purpose or
lead to an absurd result. See In re Vial, 115 F.3d 1192, 1196 (4th Cir.
1997) (en banc). Virginia does not argue that use of the plain meaning
of "offices" would frustrate the purposes of the NVRA or lead to an
absurd result. However, Virginia did cite legislative history to the dis-
trict court to argue that Congress did not intend for the NVRA to
reach state-supported colleges.
The district court held that the language of § 1973gg-5(a)(2)(B)
does not apply to state colleges because they are not primarily
engaged in serving the disabled. The court then adopted Virginia's
legislative history argument to bolster this holding. The court cited a
paragraph from the legislative history indicating that the Act's cover-
age includes agencies providing "education counseling" to the dis-
abled. From this, the court said that Congress "intended that the act
apply to state institutions providing `education counseling' and not to
those agencies [that is, colleges] providing educational services."
National Coalition For Students with Disabilities Educ. and Legal
Defense Fund v. Allen, 961 F. Supp. 129, 131 (E.D. Va. 1997)
(emphasis added).7 The district court added that state colleges are not
mentioned in the legislative history. See id.
This is an inappropriate use of legislative history. Because the plain
meaning of "offices" includes an office in a college serving the dis-
abled, the NVRA's legislative history is irrelevant unless it proves
that this meaning of the statutory term violates congressional intent.
We have read the legislative history, and nothing in it reveals that
using the plain meaning of "offices" would violate congressional
intent.
_________________________________________________________________
7 The undisputed facts in this case do not support the district court's
reliance on legislative history. By Virginia's own admission it appears
that public college offices serving disabled students provide "education
counseling" to those students. According to the legislative history, there-
fore, these particular college offices would be covered by the Act.
14
We backtrack for a moment to the opening language of the NVRA,
which makes its purpose clear: "to establish procedures that will
increase the number of eligible citizens who register to vote."
§ 1973gg(b)(1). The centerpiece of the Act is the motor voter section,
providing for the simultaneous application for a driver's license and
voter registration. See id. § 1973gg-3. But Congress recognized that
many citizens do not drive. To accommodate the non-drivers among
us and to provide greater opportunity for registration in general, Con-
gress requires states to designate a number of offices -- offices that
are not part of state motor vehicle departments -- as voter registration
agencies. Nothing in the legislative history suggests that state college
offices serving the disabled are not "offices" to be designated as voter
registration agencies.
According to the House Report, the office designation section of
the Act is designed to "supplement the motor-voter provisions of the
bill by reaching out to those citizens who are likely not to benefit
from the State motor-voter application provisions." H.R. Rep. No.
103-9, at 12 (1993), reprinted in 1993 U.S.C.C.A.N. 105, 116.
Offices serving the disabled and recipients of public assistance were
identified as the offices "most likely to serve the person of voting age
who may not have driver licenses." Id. By requiring states to desig-
nate these offices as voter registration agencies, "we will be assured
that almost all of our citizens will come into contact with an office
at which they may apply to register to vote with the same convenience
as will be available to most other people under the motor voter pro-
gram of this Act." H.R. Conf. Rep. No. 103-66, at 19 (1993),
reprinted in 1993 U.S.C.C.A.N. 140, 144; see also id. ("If a State
does not include . . . public assistance [offices and] agencies serving
persons with disabilities . . . it will exclude a segment of its popula-
tion from those for whom registration will be convenient and readily
available -- the poor and persons with disabilities who do not have
driver's licenses and will not come into contact with the other princi-
ple [sic] place to register under this Act").
The above passages from the legislative history are representative.
Congress did not in any way express an intent to exclude offices serv-
ing the disabled in public colleges from the term "offices" in
§ 1973gg-5(a)(2)(B) of the NVRA.
15
C.
In sum, the dictionary defines "office" as a subdivision of a govern-
ment department or institution. The specific context in which the term
"office" is used in § 1973gg-5(a)(2)(B) and the use of the term else-
where in the Act reinforce this dictionary definition. Nothing in the
legislative history reveals that Congress intended for a different defi-
nition to apply. Accordingly, we hold that the plain meaning of the
term "offices" in § 1973gg-5(a)(2)(B) includes an office providing
services to disabled students at a public college. Such an office, as a
subdivision of the college, fits the plain meaning of "office."8
_________________________________________________________________
8 Virginia has indicated that under this interpretation an office that pro-
vides programs primarily serving the disabled could be designated as a
voter registration agency even though the office also provides other pro-
grams not aimed at serving the disabled. See n.6, supra. The Common-
wealth has in mind the Office of the Vice President of Student Affairs
at UVA and the Office of the Dean of Students at Virginia Tech. How-
ever, the fact that such an office is designated as a voter registration
agency does not mean that it must provide voter registration services to
all patrons, including those without disabilities. Rather, only those per-
sons seeking the benefits of the programs primarily serving the disabled
would be entitled to voter registration services.
It is true that the NVRA states that "[a] voter registration agency that
is an office that provides service or assistance in addition to voter regis-
tration shall . . . distribute [the voter registration application forms, etc.]
with each application for such service or assistance, and with each recer-
tification, renewal, or change of address form relating to such service or
assistance." § 1973gg-5(a)(6). Read literally, this could require a multi-
purpose office, designated as a voter registration agency because its
functions include offering programs primarily serving the disabled, to
offer voter registration services to all patrons, disabled and non-disabled
alike. This would be an absurd result, however, given the NVRA's care-
fully structured program to promote registration.
A study showed that about 90 percent of the population 18 years and
older had driver's licenses, so Congress believed that a vast majority of
citizens would have improved access to voter registration through the
motor voter provision. See H.R. Rep. No. 103-9, at 4-5 (1993), reprinted
in 1993 U.S.C.C.A.N. 105, 108-09. Recognizing that many disabled per-
sons do not drive and would therefore miss the opportunity to register
under the motor voter program, Congress added § 1973gg-5(2)(B)
16
III.
Our final piece of business is the disposition required in light of our
analysis. Because we have held that the term "offices" in 42 U.S.C.
§ 1973gg-5(a)(2)(B) includes public college offices with programs
serving the disabled, we reverse the district court's order awarding
summary judgment to Virginia.
NCSD asserts that the district court erred in denying its motion for
partial summary judgment. Although an order denying summary
judgment is not independently appealable, we may review such an
order when it is appealed along with an order granting a cross-motion
for summary judgment. See Monahan v. County of Chesterfield, 95
F.3d 1263, 1265 (4th Cir. 1996). When the facts are uncontroverted,
we are free to direct the entry of an order awarding summary judg-
ment to the party whose motion was denied. See id.
It is undisputed that the Office of the Vice President of Student
Affairs at UVA and the Office of the Dean of Students at Virginia
Tech offer "programs primarily engaged in providing services to" dis-
abled students. It is also undisputed that these programs are "State-
funded" by the Commonwealth through the "Higher Education Stu-
dent Services" appropriation made by the General Assembly. Virginia
does not suggest any issue of material fact that would preclude sum-
mary judgment regarding these two institutions. See Appellee's Br. at
4 ("There [a]re no disputed issues of material fact"). Accordingly, on
remand the district court is to grant partial summary judgment for
NCSD, declaring that the Office of the Vice President of Student
Affairs at the University of Virginia and the Office of the Dean of
_________________________________________________________________
(requiring designation of offices with "programs primarily engaged" in
serving the disabled) solely to target the disabled portion of the popula-
tion. Because § 1973gg-5(2)(B) was enacted only to cover the disabled,
we believe that an office designated as a voter registration agency under
that section is required to provide voter registration services just to those
of its patrons who are disabled. Accordingly, while an office, such as a
dean of students office, that serves both disabled and non-disabled stu-
dents may qualify for designation under § 1973gg-5(2)(B), only the dis-
abled will be entitled to voter registration services.
17
Students at Virginia Polytechnic Institute qualify for designation as
voter registration agencies under § 1973gg-5(a)(2)(B).
We are not in a position to order any relief with respect to the DSS
office at George Mason University. The DSS office is an "office" for
NVRA purposes because its function is to assist disabled students. It
is not clear, however, whether the office is state funded because it is
financed with student activity fees and not appropriated funds. Stu-
dent activity fees may be considered a source of state funding if the
monies generated by those fees are controlled by the college. See,
e.g., Student Gov't Assoc. v. Board of Trustees of the Univ. of Mass.,
868 F.2d 473, 478 (1st Cir. 1989) (holding that student activity fees
collected under authority of state law and disbursed at direction of
board of trustees are university funds). If, however, the fees are not
subject to university control and are segregated from other university
funds, they may not be considered as state funds. Cf. Schiff v.
Williams, 519 F.2d 257, 262 & n.2 (5th Cir. 1975) (holding student
activity fees not to be state funds when they were segregated from
university funds and the state treasury); cf. also Rosenberger v. Rector
and Visitors of the Univ. of Va., 515 U.S. 819, 851-52 (1995)
(O'Connor, J., concurring) (noting that student activity fees adminis-
tered by students and kept separate from state treasury are not govern-
ment resources). Both the record and Virginia law are silent as to how
student activities fees are collected, maintained, or disbursed at
George Mason University. When the factual record is insufficient on
a threshold question, we must remand to the district court for further
proceedings. See Shao v. Link Cargo (Taiwan) Ltd., 986 F.2d 700,
703-04 (4th Cir. 1993). On remand the district court will determine
the sources, nature, and handling of funding for the programs offered
by the DSS office at George Mason University.
NCSD should also be given the opportunity on remand to establish,
if it can, that there are offices serving disabled students in other public
colleges in Virginia that should be designated as voter registration
agencies.
REVERSED AND REMANDED WITH INSTRUCTIONS
18