COFFIN, Senior Circuit Judge.
Plaintiff-appellant Dennis Theriault claims that the Commissioner of the New Hampshire Department of Safety ("the Commissioner") violated the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213, by requiring him to take a road test as a prerequisite to renewing his driver's license when such testing was not a mandatory part of the renewal procedure for all applicants. Theriault, who has cerebral palsy and uses a wheelchair, previously had obtained a license to operate a vehicle equipped with hand controls. He maintains that he was required to pass a new test solely because of his disability. The district court concluded that a licensing officer's decision to administer the road test, after observing Theriault's apparent inability to control his hand movements, did not constitute unlawful discrimination, and granted summary judgment for the Department. We affirm.
Our review of a district court's grant of summary judgment is plenary, see American Airlines v. Cardoza-Rodriguez, 133 F.3d 111, 116 (1st Cir.1998), and we must consider the facts in the light most favorable to the opposing party, plaintiff Theriault. See id. Summary judgment is appropriate only if there is no genuine issue of material fact, allowing the court to conclude that the Commissioner is entitled to judgment as a matter of law. See id.; Fed.R.Civ.P. 56(c). We
Theriault's cerebral palsy, among other symptoms, diminishes his ability to use his legs and causes involuntary hand movements. He uses a walker to travel short distances and a manual wheelchair or electric scooter for longer distances. He originally obtained a driver's license in 1987 after a road test in which he used a vehicle equipped with hand controls. Although road tests are not always part of the renewal process,
Theriault subsequently filed this lawsuit and alleged that requiring a road test "solely on the basis of his obvious disability, and without any substantiated information that he posed a particular risk to public safety," constituted discrimination in violation of the ADA.
N.H.Code Admin. R. [Saf-C] 1003.27(b).
The district court concluded that the Commissioner did not discriminate against Theriault based on his disability and therefore did not violate the ADA in requiring Theriault to take a road test. The court explained its review of the undisputed facts as follows:
After an unsuccessful motion to alter judgment, Theriault appealed, claiming that the court improperly drew factual inferences favorable to the Commissioner and misapplied the ADA in concluding as a matter of law that the road testing did not constitute unlawful discrimination.
The ADA is a federal civil rights statute designed to provide comprehensive protection
This aspect of the ADA is not directly at issue here, as it cannot reasonably be argued that Theriault was denied "meaningful access" to a government benefit or program. New Hampshire does not foreclose individuals with cerebral palsy, or those who use wheelchairs, or even those whose hands uncontrollably shake, from driving, although their licenses may be restricted to operating vehicles with appropriate modifications. See N.H.Rev.Stat. Ann. §§ 263:6, 13.
Theriault's claim centers instead on the method used to determine access to the government benefit, and his contention is that the extra eligibility requirement imposed upon him — the road test — constituted discrimination based on his disability.
In determining whether "essential eligibility requirements" are met, a public entity properly may consider whether an applicant with a disability poses a direct threat to the health and safety of others. See 28 C.F.R. pt. 35, app. A, at 472-73 (1997); id. at § 36.208(c). See also Bragdon v. Abbott, ___ U.S. ___, ___, 118 S.Ct. 2196, 2210, 141 L.Ed.2d 540 (1998) (involving Title III of the ADA) (noting the need to balance the interests of individuals with disabilities against legitimate concerns for public safety); School Board of Nassau County v. Arline, 480 U.S. 273, 287, 107 S.Ct. 1123, 94 L.Ed.2d 307 (1987) (involving the Rehabilitation Act) (relied on in Bragdon). According to regulation, this judgment may not be based on generalizations or stereotypes about the effects of a particular disability, but must result from "an individualized assessment, based on reasonable judgment that relies on current medical evidence or on the best available
At this juncture, there is no dispute that Theriault, having demonstrated his ability to drive safely by means of the road test, meets the "essential eligibility requirements" for obtaining a New Hampshire driver's license. The issue is whether the Commissioner violated the ADA in making that determination by requiring Theriault to take the third road test. Theriault maintains that his condition had not changed, and perhaps even had improved, since he previously had renewed his license, and he emphasizes that he had never had an accident during his eight years of driving. In Theriault's view, therefore, his eligibility for a driver's license already had been established, and asking him to requalify with a road test when nondisabled individuals are not similarly reviewed constitutes discrimination in the administration of the driver's license program in violation of the ADA.
If this were, in fact, a case in which an additional eligibility requirement had been imposed on an applicant simply because he is disabled, a violation of the ADA in all likelihood would have occurred. See Clark v. Virginia Bd. of Bar Examiners, 880 F.Supp. 430, 442 (E.D.Va.1995) (finding discrimination based on disability where question on bar application "imposes an additional burden on applicants with [mental] disabilities to satisfy additional eligibility criteria"). There is no evidence, however, that Theriault was singled out simply because he is a disabled individual or because he has cerebral palsy. The record reflects, without dispute, that Theriault had limited use of his hands (so much so that he was unable to complete the application), and that the license he carried reported that he operated his vehicle with hand controls. We agree with the district court that asking him to demonstrate that his present condition did not interfere with his safe driving ability — in other words, asking him to demonstrate that he remained qualified to drive — was not only permissible but also the state's obligation in balancing the rights of the disabled with the responsibility to ensure safety on the roads.
Theriault argues that the Commissioner could have — and should have — met that obligation in a way that did not have a disparate impact on individuals with disabilities, either by administering road tests to all renewal applicants or by soliciting information from all applicants and their motor vehicle records about driving history or conditions that might affect their driving. The expense of hiring enough licensing officials to conduct the thousands of tests that would be required to satisfy the first of these suggestions strikes us as facially unreasonable, and even Theriault does not press this position. Relying on file information about driving history, on the other hand, does not speak to an individual's present ability to drive safely. Moreover, while requesting information directly from applicants might help identify additional individuals who should be given road tests, such interviews would not render road tests irrelevant or improper for applicants with observable limitations directly relevant to driving ability.
In the face of a licensing officer's judgment, based on direct observation, that an applicant has a condition that could impact his or her ability to drive safely, we think the Commissioner may reject reliance on an applicant's statement that the condition at issue has not changed materially since his or her license originally was issued or last renewed. Unless invasive probing of truthfulness were to burden the application process, the results of self-serving statements would be a shaky basis for license issuance. Moreover, even
Theriault does not, in fact, argue that the limitations in the use of his hands are an inappropriate basis for concern in a driver who operates a motor vehicle with hand controls. His argument is that he previously had met this concern. We do not discount the inconvenience of multiple road tests and take to heart Theriault's assertion that it is demeaning to be asked repeatedly to prove his ability to drive. The ADA, however, does not protect disabled individuals from all differences in treatment stemming from their disabilities, and it certainly does not require licensing officials to refrain from evaluating safety risks because an applicant appears to be disabled. To the contrary, when the safety of the public at large is implicated, public entities must be permitted some latitude in their judgments that individualized assessments of qualifications are necessary. See generally Strathie v. Department of Transp., 716 F.2d 227, 231 (3d Cir.1983) (program administrators entitled to "some measure of deference" in determining reasonableness of a refusal to accommodate an individual with a disability) (cited in Wynne, 932 F.2d at 25). In our view, the Commissioner's use of a relatively non-burdensome procedure, properly based on criteria tailored to the ability to drive safely, was a lawful method for determining whether Theriault remained a qualified driver and thus was entitled to a license.
We recognize that, in so holding, we effectively are saying that it is not "discrimination" within the meaning of the ADA to rely on the symptoms or appearance of a disability to single out a person for an individualized assessment. Although the concurrence offers a thoughtful differing view, see infra at 54, we believe our approach is consistent with the Supreme Court's ruling in Arline, 480 U.S. at 273, 107 S.Ct. 1123, which rejected a school board's attempt to justify its discharge of a teacher by claiming that its decision was based on the contagiousness of her tuberculosis as distinguished from the disease itself. The school's rationale was found lacking because there had been no individualized inquiry into the actual risks of infection posed by the teacher's own illness, and thus no consideration of whether she was qualified to teach despite her illness. She was fired simply because she had tuberculosis and because tuberculosis generally is contagious.
Thus, what is impermissible under Arline is rejecting an applicant automatically as a result of his disease or its symptoms, without considering the individual's abilities. When, however, symptoms concededly and objectively raise a concern about qualifications — such as significant hand movements in an applicant for a driver's license who operates his vehicle with hand controls — the public entity properly may engage in an individualized inquiry into whether the person is nonetheless qualified without shouldering the burden of defending its "discrimination" as "necessary." See 28 C.F.R. § 35.130(b)(8). Indeed, we believe this is why the ADA prohibits discrimination against qualified individuals with disabilities. No cognizable discrimination takes place when an objectively appropriate qualifying assessment is required. A different case would be presented, of course, if the state's criteria for qualification were assertedly discriminatory. That is not the case here; the safe-driving standard is accepted as appropriate.
Putting to one side whether our judgment is correct that no violation of the ADA took place as a matter of law, Theriault alternatively argues that summary judgment was premature because the record contained no information about the connection between his hand movements and the mechanics of the hand controls in his car. We reject the suggestion that the licensing official needed to ascertain the precise way in which Theriault's hand controls worked or the range of his hand movements before requiring the road test. The question faced by the licensing official was whether, given the apparent physical condition of the applicant before him and the license restriction, he could safely operate his vehicle. Whether a road test was a proper method for resolving that concern turns on those undisputed facts alone.
Theriault also suggests that the procedure used here was not an "individualized assessment" of his eligibility for a driver's license, as required by statute, because the details surrounding his driving record were not examined. In our view, the requirements were fully met. It was the individual factors of Theriault's license restriction and the apparent limitations in the use of his hands — not his status as a disabled individual or an individual with cerebral palsy — that made further inquiry into his driving ability reasonable. The ensuing road test unquestionably was an individualized assessment of his safe driving skills. Cf., e.g., Ward v. Skinner, 943 F.2d 157, 164 (1st Cir.1991) (upholding denial of waiver from general rule disqualifying individuals with history of epilepsy from driving commercial vehicles); Stillwell v. Kansas City, Mo., Bd. of Police Comm'rs, 872 F.Supp. 682, 683 (W.D.Mo.1995) (invalidating automatic disqualification of one-handed applicants for licensing as armed security guards). The fact that other information about his driving ability could have been considered does not render the procedures followed inadequate.
To sum up briefly, we conclude that the road test administered to Theriault was a mechanism to determine whether he remained qualified, not a licensing requirement imposed as a barrier to his participation in a government program. The record does not support an inference that Theriault was asked to take the test simply because he is disabled or suffers from cerebral palsy; his apparent physical condition on the day of the test presented a legitimate basis for concern about his ability to safely operate his motor vehicle. The ADA does not bar such qualifying assessments. It is, in fact, a public entity's responsibility first to determine whether a disabled individual is qualified and then to assure that such qualified individuals are given meaningful access to public programs and activities. We believe that, on this record, a factfinder would have to conclude that the Commissioner fulfilled these responsibilities.
We therefore affirm the district court's summary judgment that the Commissioner did not violate the ADA.
LIPEZ, Circuit Judge, (concurring).
I agree with the majority that New Hampshire has a right to require that each driver
This case involves a challenge to New Hampshire's method of administering its driver's license renewal program. In my view, that program discriminates on the basis of disability as the term "disability" is defined in the ADA: "The term `disability' means, with respect to an individual — (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(2) (emphasis added). Pursuant to the New Hampshire Department of Safety regulation, an applicant can be required to take a road test to renew his or her driver's license
N.H.Code Admin. R. [Saf-C] 1003.27(b) (emphasis added). This regulation clearly distinguishes between those who have an apparent disability, described as an apparent psychological or physical impairment, and those who do not. The requirement that Theriault take a road test because of his apparent disability was discriminatory within the meaning of the ADA.
In concluding that the New Hampshire regulation does not "discriminate" on the basis of disability as that term is used in the ADA, the majority focuses primarily on "meaningful access" to government services and programs. Inasmuch as Theriault received a driver's license renewal, the majority is correct in recognizing that one of the goals of the ADA has been vindicated. However, this focus on access does not permit adequate review of the process through which the government determines qualifications for a program. That process may be as discriminatory as the ultimate determination of eligibility itself. Yet the majority seems to say that it is only once all the qualification judgments have been made, and the entitlement to access established, that the disabled can claim that there is discrimination within the meaning of the ADA if access to the program is denied.
The majority cites the ADA's prohibition of discrimination against "qualified" individuals to support its conclusion that different treatment of a disabled individual during a "threshold inquiry" into qualifications is not discrimination within the meaning of the ADA. So long as some reasonable, objective basis for questioning an applicant's qualifications is present, there is no discrimination. Thus, in the qualifications context, the majority reads an "invidiousness" or "irrationality" element into the statutory definition of "discrimination."
I think that is too narrow a view of the ADA, one purpose of which is "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." 42 U.S.C. § 12101. Congress did not premise the ADA on "reasonable" assumptions about people with disabilities. The ADA establishes a framework for scrutinizing all government regulations that discriminate on the basis of disability, not just unreasonable ones. In
S.Rep. 101-116, at 16 (1989); H.R. Rep. 101-485, at 41 (1990) (quoting testimony of Arlene Meyerson), reprinted in 1990 U.S.C.C.A.N. 267, 323. Congress was of course concerned with ensuring that qualified individuals with disabilities be given opportunities commensurate with their real abilities. But Congress also took cognizance of the discrimination experienced by the disabled during the process of gaining access to opportunity and sought to limit such discrimination. The stigmatic effects of such discrimination are very real, leading Congress to conclude that "[d]iscrimination produces fear and reluctance to participate on the part of people with disabilities." S. Rep. 101-116, at 16 (1989); H.R. Rep. 101-485, at 42 (1990), reprinted in 1990 U.S.C.C.A.N. 267, 324. That is why additional administrative requirements applied only to those with an apparent disability are subjected to the more searching inquiry of necessity rather than mere reasonableness. See 28 C.F.R. § 35.130(b)(7) (discussed below).
New Hampshire's regulation classifies people on the basis of apparent disability rather than on their actual ability to drive safely. Simply put, New Hampshire discriminates against the entire class of disabled persons — qualified and not qualified alike — to ensure that no driver's license is issued to a disabled person who cannot drive safely (and, thus, is not qualified). New Hampshire's regulation discriminates against both qualified and non-qualified individuals with disabilities by singling out disabled individuals as a group for separate treatment. It is the use of disability as a proxy for "presumptively not qualified" that works the discrimination of which Theriault complains.
Assuming non-disabled individuals are qualified while assuming disabled individuals are not is generally inconsistent with the ADA. A similar proscription from Title I of the ADA
The majority further concludes that New Hampshire's program does not discriminate on the basis of disability because the road test requirement was based on the symptoms of a disability (Theriault's limited use of his hands) rather than the disability itself (cerebral palsy). The majority disassociates Theriault's disability from the symptoms of that disability, stating that "[t]here is no evidence . . . that Theriault was singled out because he is a disabled individual." Instead, he was asked to take the road test
I think School Board of Nassau County, Fla. v. Arline, 480 U.S. 273, 107 S.Ct. 1123, 94 L.Ed.2d 307 (1987), does not support the majority's distinction between a response to the symptoms of a disability and the disability itself. In Arline, the school board sought to shield its treatment of a teacher with tuberculosis from review under Section 504 of the Rehabilitation Act of 1973.
Id. (quoting S. Rep. 93-1297, at 64). Theriault is just such an individual: he has a visible physical impairment which in fact does not substantially limit him from functioning as a driver. Nonetheless, Theriault was treated differently because of his visible physical impairment, which is exactly what Congress sought to address through the ADA.
Recognizing that discrimination is taking place is critical because it shifts the burden to the government to justify the discrimination. Thus, a policy or practice that discriminates on the basis of disability in the administration of a governmental program cannot be defended on the basis that the policy is reasonable. The ADA sets a higher standard for justifying governmental discrimination on the basis of disability: in the present context, the government must show that the discrimination itself is "necessary" to the licensing scheme, or that modification would work a "fundamental alteration" in the program. See 28 C.F.R. § 35.130(b)(7) & (8); see also Clark v. Virginia Bd. of Bar Examiners, 880 F.Supp. 430, 442-43 (E.D.Va.1995) (holding that under Title II of the ADA, when an "additional burden discriminates against those with disabilities . . . the [public entity] must show that [the additional burden] is necessary to the performance of its licensing function").
This affirmative burden on the government to justify the discrimination is inconsistent with some of the district court's reasoning in denying Theriault's claim and demands further explication. After finding that Theriault had failed to articulate a prima facie case of unlawful discrimination, the district court provided an alternative ground for its decision by doing a McDonnell Douglas
The McDonnell Douglas analysis is inapposite when examining a regulation for compliance with Title II of the ADA. McDonnell Douglas established a process for inferring discriminatory intent when direct evidence of such intent is lacking. See McDonnell Douglas, 411 U.S. at 802-03, 93 S.Ct. 1817. However, in a facial challenge to a regulation under Title II of the ADA the intent of the public entity that promulgated the regulation is not at issue. Title II prohibits public entities from acting in a way which has the effect of discriminating on the basis of disability, whether the public entity intended to discriminate or not. See 28 C.F.R. § 35.130(b)(3) (prohibiting public entities from administering programs or criteria that "have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability" pursuant to Title II of the ADA); see also Tyler v. City of Manhattan, 118 F.3d 1400, 1407 (10th Cir.1997)("In enacting the ADA, Congress recognized that discrimination against the disabled is often the product of indifference rather than animosity."). In interpreting Section 504 of the Rehabilitation Act, the Supreme Court stated that "much of the conduct that Congress sought to alter in passing the Rehabilitation Act would be difficult if not impossible to reach were the Act construed to proscribe only conduct fueled by discriminatory intent." Alexander v. Choate, 469 U.S. 287, 296-97, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985). Therefore, McDonnell Douglas burden shifting is unnecessary in this context; intent need not be found. Once Theriault showed that the challenged regulation discriminated among applicants on the basis of disability, the burden should have shifted to the Commissioner to justify the regulation as necessary to protect public safety.
Not all disability-based discrimination is prohibited by the ADA. Indeed, where, as in the present context, important public safety concerns are present, some discrimination may be permissible. See e.g., 28 C.F.R. Pt. 35, App. A, at 477 (1997)(in establishing safety standards for licensees "the public entity must ensure that standards that it promulgates do not discriminate against . . . qualified individuals with disabilities in an impermissible manner")(emphasis added). The inquiry turns then on whether the New Hampshire regulation impermissibly discriminates.
The ADA regulations require public agencies to eliminate policies, practices, and procedures which discriminate on the basis of disability "unless the public entity can demonstrate that making  modifications would fundamentally alter the nature of the service, program, or activity." 28 C.F.R. § 35.130(b)(7). The regulations go on to prohibit eligibility criteria that have the effect of discriminating against disabled individuals "unless such criteria can be shown to be necessary[.]" 28 C.F.R. § 35.130(b)(8); see also 28 C.F.R. Pt. 35, App. A, at 478 (1997)(citing driver's license requirements as a context where policies which tend to screen out disabled individuals can be justified by safety concerns). The ability to require a road test is necessary if the Commissioner is to adequately protect public safety. The ADA does not require a state to forgo testing and rely solely on a license renewal applicant's representations of driving ability. Nor does the ADA demand that a state require every renewal applicant take a road test in order to legitimize more selective testing. Such a drastic change would "fundamentally alter" the program as that term is used in 28 C.F.R. § 35.130(b)(7) and is therefore not required by the ADA. As the majority points out, the state must be given some leeway in balancing public safety concerns with the ADA's anti-discrimination mandate. The regulation at issue here appropriately charts that course. Because the Commissioner has affirmatively met the burden required to justify discrimination under the ADA, I concur.