MESKILL, Circuit Judge:
This is an appeal from a successful challenge in the United States District Court for the Southern District of New York, Gagliardi, J., to the constitutionality of sections 358-a and 384-a of the New York Social Services Law (McKinney Supp.1982) which require that parents who wish to obtain state-subsidized residential care for their children must transfer temporary custody of the children to the state. The plaintiffs' class is composed of approximately 5,000 New York children in need of special residential services
We disagree with both of the district court's conclusions. We hold that the custody transfer requirement does not violate the Rehabilitation Act because it does not discriminate against handicapped children "solely on the basis of their handicaps." 29 U.S.C. § 794 (Supp. V 1981). Accordingly, we reverse the district court's grant of plaintiffs' motion for summary judgment and grant defendants' cross-motion for summary judgment on this claim. Furthermore, we cannot conclude that the custody transfer requirement infringed plaintiffs' right to "family integrity" because it was the parents' voluntary decision to place their children in state-funded homes rather than the state's action that disrupted the protected relationship between parent and child. However, as to the constitutionality of New York's custody transfer requirement as applied, genuine issues of material fact exist which render this issue unsuitable for summary adjudication. Consequently, we remand for trial the question of whether New York's application of the custody transfer requirement deprived plaintiffs of their substantive due process rights.
Reversed and remanded.
A brief outline of New York's foster care system is a necessary preface to a discussion of the constitutional and statutory issues that we must decide. The New York Social Services regulations define "foster care" as "all activities and functions provided relative to the care of a child away from his
Parents are allowed to designate in the VPA a date for the return of their child. The agency is required to return the child at such time unless prohibited by court order or unless the parent is incapacitated or unavailable. See Ruth "J" v. Beaudoin, 55 A.D.2d 52, 54, 389 N.Y.S.2d 473, 474 (App. Div.1976). Moreover, upon written notice to the agency, the parent may request the return of the child at any time prior to the date identified in the VPA. The agency must respond within ten days after receiving this request, but is empowered to deny early return of the child. If denied, the parent can petition the family court for an order to show cause or institute a habeas corpus proceeding in family court or in the supreme court. See N.Y.Soc.Serv.Law §§ 358-a(7), 384-a(2)(a) (McKinney Supp.1982); N.Y.Admin.Code tit. 18, § 430.5 (1982).
In drafting the VPA, the social services official must ensure that the parent is advised of all of his rights, including the right to designate a return date, the right to supportive services, to visit the child and to have the child returned and the right to consult an attorney at any time including prior to the signing of the VPA. N.Y.Soc.Serv.Law § 384-a(2)(c)(i), (ii), (v) (McKinney Supp.1982). See In re Roxann Joyce M., 99 Misc.2d at 395-96, 417 N.Y.S.2d at 400. The parent must also be made aware of his obligation "(A) to visit the child, (B) to plan for the future of the child, (C) to meet with and consult the agency about such plan, (D) to contribute to the support of the child to the extent of his or her financial ability to do so, and (E) to inform the agency of any change of name and address." N.Y.Soc.Serv.Law § 384-a(2)(c)(iii) (McKinney Supp.1982).
Following execution of the VPA, if the social services official believes the child is likely to remain in state care in excess of thirty days, the official must petition the local family court judge to approve the VPA. N.Y.Soc.Serv.Law § 358-a(1) (McKinney Supp.1982). The judge must be satisfied that (1) the parent "knowingly and voluntarily" executed the VPA; (2) the parent was "unable to make adequate provision for the care, maintenance and supervision" of the child at home; (3) the requirements of section 384-a, if applicable, have been satisfied; (4) "the best interest and welfare of the child would be promoted by removal of the child from such home, and that it would be contrary to the welfare of such child for him to continue in such home." N.Y.Soc.Serv.Law § 358-a(3) (McKinney Supp.1982). If the judge believes that the petition satisfies these four prerequisites, he shall "grant the petition and approve such instrument and the transfer of the ... care and custody of such child to such social services official." N.Y.Soc.Serv.Law § 358-a(3) (McKinney Supp. 1982). The statute further provides that any order of a family court judge granting or denying a petition for transfer or return of custody shall be appealable. N.Y.Soc.Serv.Law § 358-a(8) (McKinney Supp.1982).
I. Rehabilitation Act
The plaintiffs' summary judgment motion asserted that New York's custody transfer requirement denied them benefits on the basis of their handicaps in violation of section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (Supp. V 1981), because it deterred parents from placing their children in residential care and therefore adversely impacted on handicapped children. The district court found that plaintiffs had indeed established a prima facie case of handicap discrimination in violation of the Rehabilitation Act. As a result, the burden of proof shifted to the state to show substantial justification for the custody transfer requirement. See New York State Association for Retarded Children, Inc. v. Carey, 612 F.2d 644, 649 (2d Cir.1979) ("It is a general principle of discrimination law that once the plaintiff has established a prima facie case that he has been discriminated against, the defendant must present evidence to rebut the inference of illegality."). Upon finding that the defendants failed to carry this burden, the court ruled that "the requirement that custody be transferred prior to the admission of the handicapped children comprising the plaintiff class to residential treatment centers violates § 504 of the Rehabilitation Act of 1973." 533 F.Supp. at 239.
Our inquiry is twofold: whether the court employed the correct legal standard for finding a violation of the Rehabilitation Act and whether any genuine issues of material fact precluded summary adjudication of this issue.
First, we believe that the district court engaged in an incomplete and misguided Rehabilitation Act analysis and therefore erred in finding that plaintiffs had established a prima facie case of discrimination. Section 504 provides in pertinent part:
29 U.S.C. § 794 (Supp. V 1981) (emphasis added). In Doe v. New York University, 666 F.2d 761 (2d Cir.1981), we determined that a prima facie violation of the Rehabilitation Act required proof that (1) the plaintiffs are "handicapped persons" under the Rehabilitation Act;
Instead of adhering to the traditional four-prong Rehabilitation Act analysis, the court gave inordinate weight to regulations promulgated pursuant to the Act.
34 C.F.R. § 104.51 (1980); 45 C.F.R. § 84.52 (1980) (emphasis added). Basing their primary argument on these regulations, plaintiffs asserted that the custody transfer requirement exerted an adverse "disparate impact" on handicapped children by limiting their "access to needed benefits and discourag[ing] their use of needed benefits in direct violation of § 504." 533 F.Supp. at 238. The district court was persuaded by this expansive interpretation of the Rehabilitation Act and found it to be undisputed "that the pre-condition of custody transfer does in fact discourage and deter plaintiffs' parents from placing their children in residential care centers."
Although an agency's consistent, longstanding interpretation of the statute under which it operates is entitled to considerable deference, we recently held that "this Court will not interpret an agency regulation to thwart a statutory mandate." Insurance Company of North America v. Gee, 702 F.2d 411, 414 (2d Cir.1983); see Southeastern Community College v. Davis, 442 U.S. 397, 411-12, 99 S.Ct. 2361, 2369-70, 60 L.Ed.2d 980 (1979) (the Supreme Court intimated that section 504 compliance regulations, if interpreted too broadly, may constitute improper standards for determining section 504 violations); International Brotherhood of Teamsters v. Daniel, 439 U.S. 551, 566 n. 20, 99 S.Ct. 790, 800 n. 20, 58 L.Ed.2d 808 (1979) ("this deference [to administrative interpretations] is constrained by our obligation to honor the clear meaning of a statute, as revealed by its language, purpose, and history"). Here the Rehabilitation Act nowhere mentions an "adverse disparate impact" test when it precludes federal programs from discriminating "solely" on the basis of handicap. Furthermore, one court has expressly rejected the "disparate impact" theory of recovery under the Rehabilitation Act.
Ultimately, the district court rested its grant of plaintiffs' motion for summary judgment on defendants' inability to justify the custody transfer requirement. 533 F.Supp. at 238-39. Because the court never should have reached this point in its analysis, we must reverse its grant of summary judgment in favor of the plaintiffs. Instead, we grant the defendants' cross-motion for summary judgment. See 6 J. Moore, W. Taggart & J. Wicker, Moore's Federal Practice ¶ 56.13, at 56-348 (2d ed. 1982) (upon concluding that there are no genuine issues of material fact, the appellate court is empowered to grant either party's motion for summary judgment). Mourning v. Family Publications Service, Inc., 449 F.2d 235, 243 (5th Cir.1971), rev'd on other grounds, 411 U.S. 356, 93 S.Ct. 1652, 36 L.Ed.2d 318 (1973); see also Abrams v. Occidental Petroleum Corp., 450 F.2d 157, 165 (2d Cir.1971), aff'd sub nom. Kern County Land Co. v. Occidental Petroleum Corp., 411 U.S. 582, 93 S.Ct. 1736, 36 L.Ed.2d 503 (1973).
Plaintiffs have not shown that the New York social services regulations and statutes, either on their face or as applied, are inconsistent with the terms of or policies underlying the Rehabilitation Act. Plaintiffs relied on two theories to support their motion for summary judgment. First, they argued that New York's foster care program discriminated between handicapped and non-handicapped children in the provision of "special services." They claimed that New York's foster care system discriminated by providing nonhandicapped children with a variety of state-subsidized services without forcing them to submit to state custody, while requiring that handicapped children submit to state custody as a prerequisite to receipt of residential care. Yet, plaintiffs have produced no testimonial or documentary evidence to show that New York requires all handicapped children who receive "special services" at state expense to submit to state custody. Rather, the New York social service regulations provide handicapped children with virtually every type of special rehabilitative service without any requirement that custody be transferred. See N.Y.Admin.Code tit. 18, §§ 423.1, 423.3, 425.1, 425.2 (1982). A transfer of custody is only required when a child is placed in "foster care." See N.Y. Soc.Serv.Law § 358-a (McKinney Supp.1982). In short, all parents whose children need state-subsidized "home substitutes" must transfer temporary custody to the state, regardless of whether the child is or is not handicapped. The New York statutes and regulations overwhelmingly demonstrate that New York's foster care scheme discriminates between children only as to the type of assistance needed and not solely on the basis of their handicaps.
Plaintiffs' second claim was that New York's foster care system discriminates among handicapped persons by requiring that only children with certain types of handicaps must submit to state custody in order to receive residential care. As support for this claim they point to N.Y.Educ.Law §§ 4401-4409 (McKinney 1981 & Supp.1982) which allows learning disabled children in need of special educational services to obtain state-subsidized residential care without submitting to state custody. In contrast, a physically or psychologically
However, plaintiffs cannot rely on this argument as the basis for their Rehabilitation Act claim. During the course of this litigation, the parties agreed to narrow the issues in dispute and in so doing excluded the question of "educational services" from the lawsuit:
Joyner v. Dumpson, 75 Civ. 35 (S.D.N.Y. May 8, 1979) (stipulation) (emphasis added). Consequently, the Rehabilitation Act claim in this lawsuit concerns only those children who need state-subsidized residential services exclusive of education. Plaintiffs have produced no evidence to show that within this class the state discriminates against children on the basis of their handicaps. They have not demonstrated that the state prohibits children with certain types of physical, psychological or emotional infirmities from entering residential care centers. Nor have they shown that only children with certain types of infirmities must submit to state custody in order to receive residential care.
After reviewing both parties' cross-motions for summary judgment, we cannot discern any disputed issues of material fact that would suggest that New York's statutory foster care system discriminates on the basis of handicap. Consequently, we hold that on this record as a matter of law the New York foster care statutes do not violate the Rehabilitation Act.
II. Substantive Due Process
Plaintiffs contend that New York's custody transfer requirement, as embodied in N.Y.Soc.Serv.Law §§ 358-a and 384-a (McKinney Supp.1982),
Here plaintiffs claim that the custody transfer requirement infringed their fundamental right to "family integrity" — "the
The court then inquired whether New York's custody transfer requirement significantly infringed this fundamental right. Plaintiffs argued that by conditioning their receipt of residential care on a transfer of "custody," the New York foster care scheme necessarily forced them to sacrifice their right to family privacy and integrity. The district court agreed and held that "the right of the parent to rear and retain custody of his children is one aspect of that fundamental right [to family integrity]." 533 F.Supp. at 239.
We disagree with the district court's conclusion for three reasons. First, the district court incorrectly assumed that a transfer of "custody" would deprive parents of all rights to "rear" their children. Our scrutiny of the New York case law demonstrates that a transfer of "custody" pursuant to New York's foster care statutes does not result in parents' wholesale relinquishment of their right to rear their children. Second, the district court made no reference to the New York social services regulations which govern the temporary foster care system. Yet, it appears that the whole orientation of that system is to try to keep the natural family together. Third, although the remedy sought by the plaintiff class is a declaration that they have the right to tailor state-subsidized programs to suit their own needs, we do not believe that the state is obligated to contour voluntary social service programs such as residential foster care to accord with the desires of each of the participants.
A. Definitions of Custody
Plaintiffs claim that the custody transfer requirement infringes family integrity by effecting a "substantial transfer of responsibility with regard to important decisions in a child's life about which a parent might not even be informed and which a parent could contest only by seeking to remove the child from needed services altogether." Br. for Appellees at 16. Our review of both federal and New York decisions defining "custody" belie this assertion.
The Supreme Court recently reviewed New York's foster care statutes in upholding the constitutionality of the procedures for removing children from foster homes. Smith v. Organization of Foster Families for Equality & Reform, 431 U.S. 816, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977) (OFFER). Rather than viewing "custody" as the responsibility for rearing a child, the Court defined "custody" as simply the "day-to-day supervision of the child." Id. at 827, 97 S.Ct. at 2100. The Court noted that "`[l]egal custody is concerned with the rights and duties of the person (usually the parent) having custody to provide for the child's daily needs — to feed him, clothe him, provide shelter, put him to bed, send him to school, see that he washes his face and brushes his teeth.'" Id. at 827 n. 17, 97 S.Ct. at 2101 n. 17 (quoting A. Kadushin, Child Welfare Services, 354-55 (1967)). The Court expressly recognized that not all
OFFER, 431 U.S. at 827-28 & n. 19-20, 97 S.Ct. at 2100-01 & n. 19-20.
New York state court decisions that discuss the term "custody" echo the Supreme Court's observations in OFFER. These decisions do not equate a transfer of "custody" with a total relinquishment of parental prerogatives. In Roland F. v. Brezenoff, 108 Misc.2d 133, 436 N.Y.S.2d 934 (Fam.Ct.1981), the Family Court of New York County held that execution of a voluntary placement agreement pursuant to N.Y.Soc.Serv.Law § 384-a "does not and should not have the legal effect of surrender, abandonment, persistent neglect or unfitness." 108 Misc.2d at 135, 436 N.Y.S.2d at 936; see Dodd v. Dodd, 93 Misc.2d 641, 403 N.Y.S.2d 401, 407 (Sup.Ct.1978) (requiring consultation with noncustodial parent); In re Allen, 88 Misc.2d 265, 267, 387 N.Y.S.2d 185, 186-87 (Fam.Ct.1976), aff'd, 57 A.D.2d 1009, 394 N.Y.S.2d 498 (App.Div.1977). Similarly, the Family Court for Kings County stressed that the New York State Department of Social Services must ensure that the parent who relinquishes temporary custody of his child is apprised of his continuing rights and obligations with respect to "rearing" the child. In re Roxann Joyce M., 99 Misc.2d 390, 395-96, 417 N.Y.S.2d 396, 400 (Fam.Ct.1979), rev'd on other grounds, 75 A.D.2d 872, 428 N.Y.S.2d 264 (App.Div. 1980); see also Rockland County Department of Social Services v. Brust, 102 Misc.2d 411, 413, 423 N.Y.S.2d 435, 436 (Fam.Ct.1979) (the parents' obligation to support the child survives despite the execution of a VPA).
These decisions clearly demonstrate that a transfer of "custody" pursuant to New York's foster care statutes does not result in parents' wholesale relinquishment of their right to rear their children. Consequently, the district court relied on an erroneous assumption in concluding that New York's custody transfer requirement necessarily infringed plaintiffs' fundamental right to family integrity.
B. New York Social Services Regulations
In holding that New York's transfer of custody requirement was facially unconstitutional, the district court did not give full effect to the New York social services regulations which guide the temporary foster care system. These guidelines demonstrate that instead of infringing family integrity, the system protects the parent-child relationship. In fact, the expressed central policy of the New York foster care system is that "it is generally desirable for the child to remain with or be returned to the natural parent because the child's need for a normal family life will usually best be met in the natural home, and that parents are entitled to bring up their own children unless the best interest of the child would be thereby endangered." N.Y.Soc.Serv.Law § 384-b(1)(a)(ii) (McKinney Supp.1982); N.Y.Admin.Code tit. 18, § 430.10 (1982).
When a parent seeks to place a child in a state-subsidized institution, the local social services official must first determine whether the needed services can be provided without residential placement, in other words, without disrupting family unity. N.Y.Soc.Serv.Law §§ 398-b, 409 (McKinney 1975 & Supp.1982); N.Y.Admin.Code tit. 18, §§ 423.3, 430.9(c) ("provision of preventive services shall be considered mandated when such services are essential to improve family relationships and prevent the placement of a child into foster care"), 430.10(b)(2), 430.10(c) (1982). Instead of a "substitute
N.Y.Admin.Code tit. 18, § 425.1(a) (1982). Only if these services do not suffice may foster care be considered. N.Y.Admin.Code tit. 18, § 430.10(b)(2) (1982).
Foster care can only be provided "when removal from the home is essential for ensuring [that] the child receives proper care, nurturance, or treatment." N.Y.Admin.Code tit. 18, § 430.10(c) (1982). It is usually the parent, not the state, who initiates this removal determination. If the social services official determines that the child needs such placement, he must describe the behavior which impedes the child's daily activities and must support his findings with a professional diagnosis. N.Y.Admin.Code tit. 18, § 430.10(c)(5)(ii)(a) (1982). Based upon concrete documentation, he must find that "[t]he child has special needs for supervision or services which cannot be adequately met by the child's parents or caretakers, even with the aid of intensive services in the home." N.Y.Admin.Code tit. 18, § 430.10(c)(5)(i) (1982). Even if a child is found to be appropriate for foster care, he may be placed in an institution only "if services or a level of supervision are needed by the child which cannot currently be provided in any other level of care and which can be provided in the institution in which the child is placed." N.Y.Admin.Code tit. 18, § 430.11(d)(4)(i)(b) (1982).
Moreover, after the child is placed in an institution, the local district or agency must establish a visitation plan which includes the names of parents and other persons who plan to visit the child on a regular basis. N.Y.Admin.Code tit. 18, § 428.8 (1982). The state provides transportation or other assistance to enable the parent to make the visits, N.Y.Admin.Code tit. 18, § 430.12(d)(1)(i)(a) (1982), and visitation rights cannot be terminated or limited without an amendment of the VPA or a court order. N.Y.Admin.Code tit. 18, § 431.13 (1982).
Rather than infringing "family integrity," the self-proclaimed policy of the New York foster care system is to enable "a child who has been placed in foster care to return to his family at an earlier time than would otherwise be possible; or reducing the likelihood that a child who has been discharged from foster care would return to such care." N.Y.Soc.Serv.Law § 409 (McKinney Supp.1982); N.Y.Admin.Code tit. 18, § 430.10 (1982). These social services regulations reflect deep concern that residential placement of children may strain family ties and represent a serious attempt to avoid the impairment of family integrity. Therefore, the social services regulations constitute strong probative evidence supporting the facial constitutionality of the New York foster care system.
C. Plaintiffs' Right to Unfettered Care
In concluding that the New York foster care statutes breached plaintiffs' right to family integrity, both the plaintiffs and the district court conveniently overlooked the voluntary nature of the temporary foster care system. Here the parent-child relationship is not severed by the "coercive interference of the awesome power of the state." Duchesne v. Sugarman, 566 F.2d 817, 825 (2d Cir.1977). Rather, this case involves parents who want their children to enjoy the benefits of a voluntary state-subsidized program while they retain the right to dictate how the service should be administered. In essence, plaintiffs read the Fourteenth Amendment's Due Process Clause so broadly as to render prima facie unconstitutional any strictures in a voluntary social welfare program which have an incidental effect on family life. We know of no authority for such a position.
In fact, in Black v. Beame, 550 F.2d 815 (2d Cir.1977), we rejected a similar argument. In Black, the plaintiffs were nine
Similarly, New York State is under no constitutional obligation to provide state-subsidized residential care. See Dandridge v. Williams, 397 U.S. 471, 487, 90 S.Ct. 1153, 1162, 25 L.Ed.2d 491 (1970); New York State Association for Retarded Children, Inc. v. Rockefeller, 357 F.Supp. 752, 761 (E.D.N.Y.1973). Consequently, when the state does provide voluntary social services, it can administer the program without having to consult and satisfy the individual concerns of each of the recipients. See Vander Malle v. Ambach, 673 F.2d 49, 52 (2d Cir.1982) (the state is not required "to undertake payments for continuation of a child's placement that has been selected unilaterally by the parents").
Additionally, the Supreme Court's reasoning in Harris v. McRae, 448 U.S. 297, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980), supports our rejection of plaintiffs' substantive due process claim. In Harris, the issue was whether the Hyde Amendment, which denied public funding for certain medically necessary abortions, contravened plaintiffs' substantive due process rights protected by the Fifth Amendment's Due Process Clause. The plaintiffs-appellees contended that an indigent woman's fundamental right to choose whether to terminate her pregnancy by abortion was "penalized" by the state's refusal to subsidize certain medically necessary abortions. The Supreme Court rejected this argument on the grounds that indigent persons have no constitutional entitlement to subsidized welfare programs. The Court stated that "[a]lthough the liberty protected by the Due Process Clause affords protection against unwarranted interference with freedom of choice in the context of certain personal decisions, it does not confer an entitlement to such funds as may be necessary to realize all the advantages of that freedom." Id. at 317-18, 100 S.Ct. at 2688.
Here we are confronted with the same issue in a different context. Rather than freedom of choice, the question here is whether a person's right to family integrity is abridged when the state places restrictions on its provision of voluntary social programs. Echoing the Supreme Court's holding in McRae, we reject plaintiffs' assertion that the state's manner of providing social services has unduly interfered with their exercise of fundamental, constitutionally-protected rights. New York has not been straining family ties by either removing children from their homes or forcing children to participate in state-funded programs. Rather, the state has simply subsidized a voluntary social service program and allowed each family to decide whether that service satisfies their needs. The severing of family ties cannot be attributed to the state's administration of the program, but can be attributed to the parents' placement of the child in the program. Cf. Duchesne v. Sugarman, 566 F.2d 817, 827 (2d Cir.1977). Therefore, we cannot conclude that the state's custody transfer requirement "significantly infringed" plaintiffs' fundamental right to family integrity.
In finding that plaintiffs have failed to satisfy the second leg of the substantive due process analysis, we need not inquire into the state's justification for its requirement. Rather, we need only observe that as New York's custody transfer requirement does not infringe plaintiffs' fundamental rights, sections 358-a and 384-a of
D. Unconstitutional as Applied
The remaining issue is whether New York administers its facially neutral foster care program in a manner that infringes plaintiffs' substantive due process rights. Plaintiffs contend that New York's application of the custody transfer requirement deprives parents of the power to rear their children. Consequently, they contend that their right to family integrity is infringed by many of defendants' practices including (1) defendants' alleged practice of refusing to return children to their parents until the Commissioner of Social Services is satisfied that the parents are able to care for the child (Deposition of Carol Parry at 19-20
After reviewing the affidavits accompanying the cross-motions for summary judgment, we believe that a grant of summary judgment for either party would be inappropriate. The deposition of Robert Page, Director of Foster Care and Adoption for the New York State Department of Social Services, on which defendants heavily rely, contradicts many of the plaintiffs' factual assertions.
MANSFIELD, Circuit Judge (concurring):
I concur in the result reached by Judge Meskill's thorough and carefully considered opinion. However, I do not agree fully with some of its reasoning.
I do not subscribe to the majority's statement that a plaintiff may not use a "disparate impact" theory to establish a claim under § 504 of the Rehabilitation Act. In my view a plaintiff should be permitted to prove a violation of that Act by showing that a facially-neutral practice has a disparate impact on members of a protected class, just as a plaintiff may do to establish a violation of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634 (1976 & Supp. V 1981), or of Title VII, 42 U.S.C. §§ 2000e-2000e17 (1976 & Supp. V 1981). The procedure is now well established as a method of enforcing anti-discrimination statutes. See Dothard v. Rawlinson, 433 U.S. 321, 329, 97 S.Ct. 2720, 2726, 53 L.Ed.2d 786 (1977); Griggs v. Duke Power Co., 401 U.S. 424, 429-30, 91 S.Ct. 849,
Nor is there any support in the legislative history of § 504 for the conclusion that Congress intended to preclude a disparate impact theory. The legislative history of § 504 is sparse, New York Association for Retarded Children v. Carey, 612 F.2d 644, 649 n. 5 (2d Cir.1979). Yet in drafting the Rehabilitation Act in 1973 Congress was well aware of Griggs' disparate impact theory, and its silence on this subject must be construed as incorporation of the Griggs analysis. "As is apparent from its language, Section 504 is intended to be part of the general corpus of discrimination law." Carey, supra, 612 F.2d at 649. Since that "corpus of discrimination law" includes a disparate impact theory, such a theory is also presumptively available to plaintiffs under the Rehabilitation Act in the absence of a clear statutory mandate to the contrary.
Moreover, the Supreme Court implicitly recognized a disparate impact theory under § 504 in Southeastern Community College v. Davis, 442 U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979). There, after concluding that the refusal to admit the plaintiff who suffered from deafness into a nursing program did not violate § 504 because she was not an "otherwise qualified individual" who was denied admission "solely by reason of ... handicap," id. at 405-06, 99 S.Ct. at 2566, the Court inquired into whether the facially neutral requirement of hearing was an indispensible qualification. Thus it indicated that, if the requirement was not bona fide and had a disparate impact, the plaintiff might have made out a case under the Act. But since ability to hear was a valid requirement and the term "otherwise qualified handicapped individual" means a person qualified in spite of his handicap, which must be taken into consideration, she could not succeed. Id. at 406, 99 S.Ct. at 2367. See also Doe v. New York University, 666 F.2d 761 (2d Cir.1981).
None of the cases cited by the majority is to the contrary. Indeed the court in Pushkin v. Regents of the University of Colorado, 658 F.2d 1372, 1385 (10th Cir.1981), noted that
Lastly, as the majority concedes, a number of circuits have sanctioned use of the disparate impact analysis in cases under § 501 of the Rehabilitation Act. See, e.g., Prewitt v. United States Postal Service, 662 F.2d 292, 306-07 (5th Cir.1981).
I also have serious question about the majority's reliance, in its consideration of appellants' due process claims, on what it characterizes as the "voluntary" nature of the parents' decision to obtain state-subsidized residential care for their children. Although use of the state's temporary foster care system may in many instances be voluntary, in others it is not. As the Supreme Court pointed out with respect to New York's system in Smith v. Organization of Foster Families, 431 U.S. 816, 824-25, 97 S.Ct. 2094, 2099, 53 L.Ed.2d 14 (1977), "resort to such placements is almost compelled."
N.Y.Admin.Code tit. 18, § 430.10(c) (1982).
533 F.Supp. 233 at 235 n. 3. We agree.
When plaintiffs initiated this declaratory judgment action, in addition to their Social Security Act, Rehabilitation Act and Due Process Clause claims, they argued that the custody transfer requirement violated the First, Ninth and Fourteenth (Equal Protection Clause) Amendments to the United States Constitution. They subsequently moved for summary judgment on all but one of their claims, including these constitutionally-based allegations. In granting plaintiffs' partial summary judgment motion, the district court made no mention of any constitutional claim other than substantive due process.
Ordinarily the court's grant of partial summary judgment is a nonappealable interlocutory order. McNellis v. Merchants National Bank & Trust Co., 385 F.2d 916, 918 (2d Cir.1967). However, the district court dismissed the First, Ninth and Fourteenth Amendment claims without prejudice and, pursuant to Fed.R.Civ.P. 54(b), expressly directed that in the interest of judicial economy, final judgment should be entered on all of those issues adjudicated in its February 10, 1982 order and opinion and order of June 17, 1982. Joyner v. Dumpson, 75 Civ. 35 (S.D.N.Y. Aug. 6, 1982). In so doing, the district court converted a nonappealable interlocutory order into an appealable final judgment. Cf. Acha v. Beame, 570 F.2d 57, 61-62 (2d Cir.1978); Cinerama Inc. v. Sweet Music, S.A., 482 F.2d 66, 69 (2d Cir.1973). Thus, the only issues litigated in this appeal are the alleged violations of the Rehabilitation Act and the Due Process Clause.
After the district court's grant of summary judgment, the parties engaged in several months of discussions designed to implement the decision. Subsequently, defendants filed a motion pursuant to Fed.R.Civ.P. 60(b)(5) for relief from judgment based on the claim that proposed administrative changes in the VPA would satisfy the court's summary judgment ruling. The court denied this motion and also denied defendants' Fed.R.Civ.P. 62(d) motion for a stay pending appeal. Joyner v. Dumpson, 75 Civ. 35 (S.D.N.Y. June 17, 1982). Our disposition of the summary judgment issue obviates the need to consider these rulings.
Joyner v. Dumpson, 75 Civ. 35, slip op. 1, 4 (S.D.N.Y. Sept. 30, 1978) (footnotes omitted) (citations omitted) (emphasis added).
Deposition of Carol Parry at 19-20.
Deposition of Carol Parry at 15.
Ruth Rogers, mother of named plaintiff Jay Joyner, stated in her affidavit:
J. App. at 87 (emphasis added).
J. App. at 88.
¶ 9 from the 9(g) Statement of Facts:
J. App. at 80-81.
Deposition of Carol Parry at 21.
Deposition of Robert Page at 34.
Deposition of Robert Page at 36.
Deposition of Robert Page at 37.