Lead Opinion
In thеse consolidated appeals, paralym-pic athletes appeal the district court’s dismissal of their claims under § 504 of the Rehabilitation Act against the United States Olympic Committee (“USOC”). In 07-1053, Plaintiffs-Appellants Scot Hollon-beck, Jose Antonio Iniguez, and Jacob Walter Jung Ho Heilveil appeal the district court’s grant of a motion to dismiss in favor of the USOC on their § 504 claim. In 07-1056, Plaintiff Mark Shepherd appeals the district court’s grant of summary judgment in favor of the USOC on his § 504 claim. As both cases raise identical legal issues, we consolidated the cases for briefing and submission. Prior to our disposition, Mr. Shepherd and the USOC stipulated to a dismissal of the appeal in 07-1056 under Fed. R.App. P. 42(b). Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm.
Background
The USOC is a federally-chartered corporation that has exclusive jurisdiction over U.S. participation in three athletic competitions: the Olympic Games, the Paralympic Games, and the Pan American Games. 36 U.S.C. §§ 220502, 220503(3)(A). Under the Ted Stevens Olympic and Amateur Sports Act (“ASA”) as amended, id. §§ 220501-220529, Congress has charged the USOC to “obtain for the United States, ... the most competent amateur representation possible in each event of the Olympic Games, the Paralym-pic Games, and the Pan-American Games.” Id. § 220503(4).
The first Paralympic Games were held in 1960. Now the Paralympic Games immediately follow the Olympic Games in the same host city and involve betweеn 1,100 and 4,000 athletes. Plaintiffs are all elite paralympic athletes who have competed in at least one Paralympic Games. Plaintiffs are wheelchair racing paralympians. U.S. Paralympians have been very successful compared to their Olympic counterparts with 42% of the Paralympians winning medals in 2000 and 75% winning medals in 2002 (compared to 16% of Olympians winning medals in both 2000 and 2002). Aplt. App. at 241.
To achieve its mission under the ASA, the USOC provides Athlete Support Programs which include various types of grants, tuition assistance, and health insurance benefits. The criterion that the USOC uses to distribute the benefits under its Resource Allocation Policy is that the applicant must be an athlete who is “eligible to represent the United States and who intend[s] to compete, if selected, in the next Olympic or Pan American Games.” Id. at 110.
Plaintiffs challenge the USOC’s policy of providing Athlete Support Programs only to Olympic team members, to the exclusion of Paralympic team members, as violating § 504 of the Rehabilitation Act. The district court consolidated two separate cases for oral argument which the parties and the court agreed raise identical legal issues under Title III of the Americans with Disabilities Act (“ADA”), and § 504 of the Rehabilitation Act: Hollonbeck v. USOC, No. 07-1053, on a motion to dismiss; and
On appeal, Plaintiffs argue that (1) the relevant universe for analysis should be all amateur athletes over which the USOC has responsibility; (2) they are “otherwise qualified” for the Athlete Support Programs; (3) the USOC’s policy discriminates agаinst them; and (4) the USOC’s policy has the effect of screening out amateur athletes with disabilities.
Discussion
We review the grant of a motion for summary judgment de novo, applying the same standard as the district court. Timmerman v. U.S. Bank, N.A.,
Section 504 of the Rehabilitation Act states: “No othеrwise qualified individual with a disability ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.... ” 29 U.S.C. § 794(a). A prima facie case under § 504 consists of proof that (1) plaintiff is handicapped under the Act; (2) he is “otherwise qualified” to participate in the program; (3) the program receives federаl financial assistance; and (4) the program discriminates against plaintiff. Powers v. MJB Acquisition Corp.,
Plaintiffs first argue that the relevant universe for analysis is all amateur athletes over which the USOC has responsibility, and the district court erred in restricting its discrimination analysis to the Olympics. Plaintiffs argue that the ASA’s use of the term “amateur athlete” and § 504’s definition of “program or activity,” in light of the history of the definition and precedent applying Title IX, compel an analysis of the USOC programs for Olympic, Pan American, and Paralympic athletes as a whole. Thus, Plaintiffs argue that we should compare the USOC’s treatment of all amateur athletes, no matter the competition in which they compete.
The ASA defines “amateur athlete” to be “an athlete who meets the eligibility standards established by the national governing body or paralympic sports organization for the sport in which the athlete competes.” 36 U.S.C. § 220501(b)(1). In 1998, the ASA was amended to give the USOC jurisdiction and responsibility over United States participation in the Para-lympic Games in addition to the Olympic and Pan American Games. See 36 U.S.C. § 220503; S.Rep. 105-325 (1998). However, the ASA as amended does not direct
The cases that Plaintiffs rely upon also do not support analyzing the USOC’s three programs as a whole. First, Plaintiffs rely on Klinger v. Department of Corrections, where women prisoners sued the Nebraska Department of Corrections under Title IX for failing to provide equal educational opportunities for male and female prisoners.
Plaintiffs’ reliance on Klinger to alter § 504’s definition of “program or activity” is misplaced.
Plaintiffs also rely on two ADA cases to suggеst an analysis of the USOC as a whole: Rodde v. Bonta,
The additional Title IX precedent cited by Plaintiffs is not applicable here because it is based on a regulatory framework unique to the Title IX context. Title IX regulations recognize that separation based on gender may be necessary thus requiring an institution-wide analysis to determine whether a Title IX violation has occurred. See e.g., 34 C.F.R. § 106.41(b), (c); Roberts v. Colo. State Bd. of Agric.,
Second, Plaintiffs argue that they are “otherwise qualified” for the Athlete Support Programs because they are amateur athletes under the ASA. A plaintiff is “otherwise qualified” under the Rehabilitation Act if he “is able to meet all of a program’s requirements in spite of his [disability].” Se. Cmty. Coll. v. Davis,
Third, Plaintiffs argue that the USOC’s policy of excluding Paralympic athletes from Athlete Support Programs is both facially discriminatory and discriminatory by proxy. Even if Plaintiffs were “otherwise qualified” for the benefits, the USOC’s policy does not discriminate against Plaintiffs by reason of their disability. First, Plaintiffs err in contending that the eligibility requirements for the Athlete Support Programs are intentionally discriminatory. The criterion that the USOC uses to distribute the benefits under its Resource Allocation Policy is that the athlete must be “eligible to represent the United States and ... intend to compete, if selected, in the next Olympic or Pan American Games.” The policy, on its face, clearly does not contain an explicit requirement of not being disabled. Cf. Bangerter v. Orem City Corp.,
Plaintiffs also contend that the program discriminates against Paralympic athletes by proxy as the policy specifically excludes Paralympic athletes and the term “Para-lympic athletes” is a proxy for amateur athletes with disabilities. The designation of “Olympic athlete” as a requirement for Athlete Support Programs is not a proxy for non-disabled athletes because there is no fit between being an Olympic athlete and not being disabled. The requirement of being an Olympic athlete is not “direct
Fourth, Plaintiffs argue that the USOC’s policy has the effect of screening out amateur athletes with disabilities. Plaintiffs’ argument appears to allege that the USOC’s policy impermissibly creates a disparate impact on disabled athletes, thus violating § 504. The Supreme Court has held that disparate impact, by itself, does not state a prima facie case under § 504. Choate,
The dissent concludes that Plaintiffs are “otherwise qualified” for the Athlete Support Program because § 504 defines “program or activity” to include “all of the operations of’ a covered entity. 29 U.S.C. § 794(b). However, Congress included the phrase “all of the operations of’ a covered entity in § 504 to ensure that § 504 applies to an institution as a whole once any part of the institution receives federal funds. See supra note 2; see also DeVar-gas v. Mason & Hanger-Silas Mason Co.,
The dissent also argues that only extending the benefits at issue to Olympic athletes “has a discriminatory effect” against Paralympic athletes. However, disparate impact, by itself, does not state a prima facie case under § 504. Choate,
We sympathize with Plaintiffs’ efforts to obtain benefits similar to those received by their Olympic counterparts. However, we cannot modify the Rehabilitation Act to reach a result in their favor absent statutory or regulatory authority to import,
AFFIRMED.
Notes
. In Grove City College v. Bell, the Supreme Court held that receipt of federal funds by a college’s financial aid office did not trigger institution-wide Title IX coverage because the financial aid office was the "program or activity receiving Federal financial assistance.”
. Plaintiffs also refer in their briefs to a “separate benefit” regulation in 28 C.F.R. § 41.51(b)(l)(iv), and note that it is irrelevant tо our analysis. We agree that it is irrelevant to our analysis for a different reason — Plaintiffs are not "qualified” as required by the regulation.
Dissenting Opinion
dissenting:
I respectfully dissent. Section 504 of the Rehabilitation Act provides that a qualified individual with a disability may not, solely because of his disability, be “excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. ...” 29 U.S.C. § 794(a). Whаt the statute forbids is exactly what has occurred and is occurring here. This defiance of plain legislative intent is crystal-clear from the congressional statement that the Paralympics are “the Olympics for disabled amateur athletes.” S.Rep. No. 105-325 at 2,
The issues presented,.
A prima facie case under section 504 requires proof (1) that the plaintiff has a disability; (2) that plaintiff is otherwise qualified to participate in the program; (3) that the program receivеs federal money; and (4) that the program discriminated against the plaintiff. Powers v. MJB Acquisition Corp.,
The plaintiffs are qualified to participate in the program.
Quite obviously, this court cannot answer the first question without determining what “the program” is in this case. Indeed, resolution of these appeals turns on whether the USOC is operating one “program” or separate programs, one for the disabled and one for the able-bodied. The clear answer to that question has been provided by Congress. Section 504 defines “program or activity” to include “all of the operations of’ the covered entity. 29 U.S.C. § 794(b).
Thus, this case can and should be resolved by simple application of the plain language of the statute, and this court should reverse the judgment of the district court. The majority reaches the wrong result because its analysis goes off the track at the outset by failing to follow the statutory definition of “program.” As noted by the mаjority, Congress specifically amended the Rehabilitation Act and other statutes to broaden the definition of “program or activity.” Maj. op. at 1195, n. 1. But the majority inexplicably ignores the definition, insisting that the definition is of no moment because it is undisputed in this appeal that the Act “applies to all of the USOC’s programs .... ” Id. (emphasis added).
Not only does the majority ignore the statutory definition of “program,” but its assumption that separate programs are involved exonerates the USOC for doing just what the Supreme Court instructs must not be done — defining the benefit “in a way that effectively denies otherwise qualified handicapped individuals the meaningful access to which they are entitled.... ” Alexander v. Choate,
The USOC’s program discriminates against the plaintiffs.
Plaintiffs are subject to discrimination by being denied access to benefits that are provided to Olympic and Pan American Games athletes who are not disabled. The USOC’s practice of providing health insurance and other benefits to Olympic and Pan American Games athletes, but not Paralympic athletes, clearly has a discriminatory effect. Section 504 prohibits not only intentional discrimination but, I am satisfied, also the use of criteria or methods of administration such as those involved here that have the effect of subjecting peoplе with disabilities to discrimination. 28 C.F.R. § 41.5 l(b)(3)(l). See also Alexander v. Choate,
Denying benefits to Plaintiffs because they are athletes training for the Paralym-pic Games, and not the Olympic or Pan American Games, is a proxy for discriminating against them because of their disabilities. The majority’s assertion that “there is no fit between being an Olympic athlete and not being disabled,” maj. op. at 1196, demonstrates the faulty aim of its analysis. Presumably the majority would not countenance the denial of equal benefits based on gender. Yet, if such blatant discrimination existed, even then it could be said that there was “no fit” between being an Olympic athlete and being male. The USOC has shown four examples in one hundred years of disabled athletes who have competed in the Olympics or Pan American Games. The exceptions prove the rule: The policy of awarding benefits to athletes training for the Olympics or the Pan American Games while excluding those training for the Paralympic Games discriminates against the disabled. The reason that courts inquire about the “fit” between a practice and a class of protected individuals is because the fact that a practice does not discriminate against every member of a protected class is not sufficient to show that members of the protected class have the meaningful access to which they are entitled. See Lovell v. Chandler,
. The district court expressed substantial doubt about whether the USOC is a "covered entity." That question is not before this court, however, as the USOC has not argued that the judgment should be affirmed on the alternative ground that it is not subject to the Act.
. Indeed, the majority even accuses Plaintiffs of trying to "alter” section 504's definition of "program or activity” by discussing the reasoning of Klinger v. Dept, of Corrections,
. In Choate, the Court assumed without deciding that section 504 reaches conduct that has a disparate impact on the disabled, after having noted compelling reasons to conclude that Congress intended such an interpretation and that all the circuits that have reached the issue had reached that conclusion.