*2 BARKETT, Before TJOFLAT and Circuit *, Judges, and HOWARD Senior District Judge.
TJOFLAT, Judge: A appeals deaf student decision, trial, judge’s following a bench program’s a state vocational rehabilitation refusal to fund the student’s education does not constitute discrimination on the ba- sis of the student’s violation of Act, the Rehabilitation 701 et U.S.C. (1994). seq. We affirm.
I. 1991, August Berg, profoundly In deaf resident, applied to the Florida Divi- * Howard, Jr., sitting by designation. Honorable Alex T. Senior U.S. Dis- Alabama, Judge trict for the Southern District of (the Rutgers. January Rehabilitation classes of Vocational sion First, “DVR”), helps persons requests the DVR. agency made two state employment, or retain for him take disabilities obtain the DVR to asked college complete spring education (past at USF in the electives *3 a psychological that he become so original projected graduation date as stated high graduating from IWRP), counselor. After agreed which the DVR to do. in his school, years in Berg for several had worked Second, pay he asked to for him to company, father’s construction but private preparation in for the take course to his father’s offer take over declined Test; Aptitude request School Law He earned an associate’s had also business. fulfill, reminding Berg to DVR declined college. community degree from his local a course was not IWRP. The such 1991, in he Berg applied to the DVR When job Berg post-graduation then offered DVR at a employed a maintenance worker was deaf, Berg’s for the but as a DVR counselor mental and home for adults with disabilities Berg at trial counselor own testified taking University at the of South was classes offer “laughed” about the DVR’s and sum- (“USF”) a bachelor of arts towards it. marily declined He DVR to degree psychology. in asked the May in Berg graduated from USF obtaining degree. in his B.A. assist him degree then psychology. a B.A. in with Berg as and DVR The certified longer planned the DVR that he no informed Berg met to eligible for and with assistance instead, counselor; he wanted to be develop an Written Rehabilita- Individualized (1) pay for him to obtain a second to DVR (an “IWRP”) Berg’s detailing Plan both tion attend law degree languages, in agreed-upon responsibilities the DVR’s and an in pursue a J.D. LL.M. school to both In the regarding Berg’s further education.1 fund law. The DVR refused to international IWRP, Berg that he attend stated would help Berg it find offered to projects; these University Washington in D.C. to Gallaudet counselor, employment as a but other psychology. The DVR his B.A. in finish sought himself rejected the offer. Berg’s finance education that would stated year. paid during the next (his through at December 1992 Gallaudet May Berg entered Stetson Uni- date), graduation for anticipated paying Law, private versity College books, tuition, fees, supplies. Berg’s Petersburg, He continued to Florida. in St. room, board, own pay to for his was legal finance his edu- that the DVR demand personal expenses at Gallaudet and other cation, complaint filed an administrative money sources.2 from non-DVR with Employ- Department of Labor January in Berg entered Gallaudet Security on the DVR’s refusal ment May return to USF. DVR but left complaint dismissed.4 do so. Berg’s at USF.3 to fund education continued in the United Berg then filed this suit 1992, Berg for During the summer of worked Flori- District of Court the Middle States job utilizing psy- company in a private da, had discriminated claiming that the DVR Rutgers chology skills and took classes disability in of his him on the basis paid Berg’s against University. The DVR Although Berg’s testified at trial that counselor assigned Berg’s case 3. The DVR counselor only usually require regulations DVR funds amendment at trial that the testified DVR IWRP, plans redrafting in an as- that terminate those educational be effected an IWRP degree. made that the DVR original She stated changes Berg’s sociate’s apparent none repre- exception Berg's he case because was so memorialized. IWRP away two semesters that was sented degree. completing his bachelor's regarding administrative com- claims 4. No plaint are before us. reflects, that the 2. The record times paid for and board several room during education. Berg sought violation of 504 of the to recover at trial section Rehabilitation under (the “Act”), (1994), “disparate “disparate both treatment” and refusing impact” Berg’s disparate impact to fund his theories.7 injunctive sought requiring Berg alleges relief the DVR to claim borders on the frivolous. “auxiliary provide and all him for his Stetson tuition DVR’s refusal to expenses,” including interpreters, funding note-tak- for his law education creates a dis ers, system, criminatory “disparate impact” an electronic alert and other on those dis lawyers. that he assistance. He also claimed would abled who wish to become matter, eight need semesters —instead of As an initial neither this circuit nor necessary complete Supreme six usual a J.D.— Court decided whether dis *4 parate cognizable disability prevented impact him claims are even un because his Choate, taking der section 504. See Alexander v. a full work load each semester.5 287, 299, 712, 719, 469 U.S. 105 S.Ct. 83 parties agreed to have their case (“While (1985) reject L.Ed.2d 661 we magistrate judge. Sep heard before a On disparate-impact boundless notion that all 16, 1996, trial, non-jury following tember a showings prima constitute facie cases under magistrate judge opinion an issued hold 504, § deciding we assume without ing Judgment for the DVR.6 was entered § 504 reaches at least some conduct that has pursuant opinion day. to the the same unjustifiable disparate impact upon an assume, handicapped.”). We will without issue, passing on the that because section 504 II. persons enjoy ensures that disabled access to argument sole both at trial and on federally-funded programs and activities appeal is the DVR violated section 504 equal persons, to that of non-disabled dis by refusing of the Rehabilitation Act to might present facially- crimination be when legal for his education. 504 Section reads neutral state action creates obstacle be part: relevant persons tween disabled and access to federal ly-funded programs and activities that is qualified No otherwise individual with a greater than the obstacle for nondisabled shall, disability in the United States ... persons. Kitagawa, See Crowder v. 81 F.3d solely by disability, reason of her or (9th Cir.1996) (concluding 1480 that the en in, participation excluded from the be de- quarantine forcement of Hawaii’s animal of, subjected nied the benefits or be “disparate impact” visually creates a dis any program discrimination under or activ- persons in abled violation of the American ity receiving Federal financial assis- (the “ADA”) by depriv Disabilities tance____ ing guide dogs, them of visually their because 794(a) (1994). Berg § was neither persons dogs gain disabled must have excluded from the DVR’s vocational rehabili- meaningful federally-funded pro access to program, tation nor denied benefits Hawaii, grams and activities whereas non- program: he received for the entire dogs disabled do not need for ac undergraduate cess). however, remainder of his Berg, claims access to the claims, “subjected that he was legal profession. apprehend fail to We how (1) to discrimination” on the basis of his disabili- legal profession could be considered ty federally-funded because the program activity, DVR refused to fund his law or inability gain school education. a “free ride” to Stet- 73(c) magistrate judge presiding Berg's 5. The over tri- and Rule of the Federal Rules of Civil by September Procedure, al noted that 1996 had suc- thereby obviating the need for an cessfully completed 60 of the 88 credits neces- appeal intermediate to the district court. graduation sary for from law school. 7.Berg allege Equal does violation of the parties agreed party 6. The that either Protection Clause of the Fourteenth Amendment. appeal judge’s directly decision 636(c)(3) (1994), this court under 28 U.S.C.
1255
disabilities,
clients in
amongst its disabled
the DVR is an obstacle between
son from
Compare
greater
that is
the distribution of benefits.
John
profession
Berg and
(10th
1487,
Thompson,
F.2d
by a non-
son v.
1494
obstacles encountered
than the
Cir.1992) (“Without
showing
that the non-
person.
handicapped received the
denied
[benefits]
ap
qualified’ handicapped, the
argument
the ‘otherwise
Berg’s disparate treatment
pellants cannot
that a violation of sec
To
assert
equally unsupportable.
succeed
occurred.”)
claim,
Zimr
prove, by prepon
tion 504
L.C.
such a
(11th
Olmstead,
evidence,
F.3d
ing
in
derance of
Cir.1998) (“The
only
mandate
against
ADA does
to discriminate
him on
tended
utterly
treated
to do that
individuals with disabilities be
disability.
basis of
disabilities.”),
persons without such
the same as
so.
(U.S.
granted,
t.
was denied it to soci- income? Or is benefits median Or prestige is it scale? ety? Or on some day question the of leave for another We rat- according public disapproval to a is prohibits discrimi- section 504 even whether ing? such federally-funded program, nation DVR, as serves the graduate "paid it had agency's DVR to admit that regarding failure to the
8. A claim a state profoundly policies properly deaf raised in least one its own is tuition of at follow school's n hearing, years,” before this court. administrative within the last five Florida resident Thus, Berg cast himself has the DVR did. which alleges complaint dis- DVR claim doubt on serious of at least one the educational costs "funded persons when against deaf disabled criminates past five profoundly student within the other deaf train- allocating graduate educational funds' for graduate And in his years school...." to attend ing. Admissions," Request to the directed "First discovery, Berg pre-trial asked of arguendo lawyer [Assuming maximizing employment. that a is In the context of higher goals than a the associated of “economic self-suffi- rehabilitation counselor chain, scale, ciency, independence, and inclusion and in- or some other social food tegration society,” into it is clear that the plaintiff and that the cannot be fulfilled if purpose “maximizing] employment” lawyer, he does not become a there is obtaining does not refer to the of some nothing in the Rehabilitation Act that man- premium employment. sort of public, through dates that the the defen- dant, pursuit goal. must finance the of that This conclusion confirmed ref- plaintiffs argument The that there is such “meaningful” erence primarily upon mandate is based lan- throughout congressional the statement of guage in stating purpose the Act that a findings, purpose, policy. employment.” the statute is “to maximize purpose points “fulfilling aspirations 701(b). plaintiffs argu- ... individuals disabilities for ment, however, far reads too much into meaningful gainful employment phrase. 701(b)(2). independent living.” 29 U.S.C. Similarly, congressional findings speak Following substantial amendments in “meaningful opportunities employ- purposes of the Rehabilitation integrated settings through ment in work (29 Act were stated as follows U.S.C. provision of reasonable accommoda- 701(b)): 701(a)(4). Moreover, tions.” 29 U.S.C. purposes chapter of this are^— congressional findings policy both pursuit “meaningful refer to the ca- empower individuals wdth dis- (c)(1). 701(a)(3)(E), reers.” 29 U.S.C. employment, abilities to maximize eco- *6 self-sufficiency, independence, nomic and short, congressional findings, pur- the integration society, inclusion and into pose, policy upon goal focus the of through— meaningful employment, optimal em- ployment. Consequently, nothing there is (A) comprehensive and coordinated defendant, § suggests 701 that programs of vocational .state-of-the-art having plaintiff after educated the for work rehabilitation; in the field of vocational rehabilitation (B) independent living centers and counseling having and after offered him a services; job field, put in that plaintiff must then the through law school. (C) research; (D) training; We add the observation that country the laws directed towards (E) projects; demonstration ending against people discrimination with (F) guarantee equal opportuni- the of designed provide disabilities are not to ty; and person disabled with benefits because of his disability (except or her when the autho (2) to ensure that the Federal Gov- program rizes an affirmative action to correct plays leadership pro- ernment role in past injustice), but to eliminate unfair bur moting employment the of individuals imposed only dens on those with disabilities. disabilities, especially individuals County, See Kornblau v. Dade 86 F.3d disabilities, assisting with severe and in (“The (11th Cir.1996) purpose 194 of the providers States and in fulfill- services place [Americans Act] with Disabilities is to ing aspirations the of such individuals equal footing, those with disabilities on an meaningful gain- with disabilities for give advantage.”). them unfair employment independent living. ful Section 504 does not entitle to a free purpose education, Thompson, the of the Act does not see Johnson v. Cir.1992) (10th abilities, speak maximizing simply (stating but 971 F.2d 1494 finding has not that this shown § “does not create absolute clearly erroneous. Nor has shown that sought by a right” to the benefits substantive re- the DVR’s suitable limitation him with person); only provides disparate impact sults in a individuals enjoy right to to that education access disability- Berg faces no with disabilities. may Although Berg if he were non-disabled. of law based obstacle to attendance without to finance his education be unable school and he not adduced evidence of assistance, lack inability is due any disparate policy. impact of DVR’s funds, not to based on not, may there- fact that he disabled.
fore, Act use section 504 of the Rehabilitation
as a vehicle to those funds from obtain
DVR.
III. reasons, judgment foregoing
For the magistrate judge is
AFFIRMED.
BARKETT, Judge, concurring: majority agree I I concur because ESCARENO, Alejandro Plaintiff- prove that failed to Appellant, (DVR) of Vocational Rehabilitation Division 504 of the Rehabilitation violated fund refusing to his law AND REFRAC NOLTINA CRUCIBLE by a applies to discrimination Section CORPORATION, al., et De TORY federally entity funded fendants, qualified” individuals with against “otherwise *7 An disabilities. individual GMBH, Carl Nolte Sohne qualified” if he or meets the “otherwise she Defendant-Appellee. (a) benefit, eligibility criteria either (b) help spite handicap, with the of her or No. 97-8415. School Bd. a reasonable accommodation. Arline, County, Fla. v. 480 U.S. Nassau Appeals, Court of United States 1123, 94 n. L.Ed.2d S.Ct. Eleventh Circuit. (1987). The DVR the benefit denied 31, 1998. al- it found that he had requested because provided sufficient to ready been services Purdom, Jr., Stolz, Seaton D. Irwin W. employment.” him to obtain “suitable enable L.L.P., Atlanta, GA, Stolz, & Gambrell in need further was not Because Plaintiff-Appellant. services, not “otherwise he was rehabilitative thus qualified” them. receive Morgan, Lewis & Kenworthy, B. Thomas qualified,” no “accommo- not “otherwise PA, LLP, Bockius, Defen- Philadelphia, Moreover, Berg change that. dation” dantGAppellee. no that the DVR’s deci- introduced evidence on his to fund him further was based sion not judge found
deafness. disability played in the plaintiffs
“the for law school” denial of benefits
defendant’s