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Flight v. Gloeckler, 68 F.3d 61 (2d Cir. 1995). Cases Citing This Book View Copy Cite
“the distinction in the present case is not based upon disability, multiple sclerosis, but rather upon his inability to drive.”
64 citation events (34 in the last 25 years) across 9 distinct courts.
Strongest positive: Castellano v. City of New York (nysd, 1996-06-28)
Treatment trajectory · 1995 → 2026 · click a year to view as-of
1995 2010 2026
Statutes interpreted (leading-cases list)
#1 34 C.F.R. § 104.3(j)(2)(i)(A) cited 1× in this case · 1 total citations of statute #1 28 C.F.R. § 35.130(b)(1) cited 1× in this case · 1 total citations of statute
Top citers, strongest first. 35 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) Castellano v. City of New York (2×) also: Cited "see, e.g."
S.D.N.Y. · 1996 · signal: see · quote attribution · 1 verbatim quote · confidence high
the distinction in the present case is not based upon disability, multiple sclerosis, but rather upon his inability to drive.
discussed Cited as authority (rule) Wimberly v. Atlantic Dialysis Management Services, LLC
S.D.N.Y. · 2025 · confidence medium
“The purpose of the disability discrimination statutes is ‘to eliminate discrimination on the basis of disability and to ensure evenhanded treatment between the disabled and the able-bodied.’ In keeping with this purpose, the [Second Circuit] has repeatedly held that a plaintiff may not challenge the adequacy of services provided exclusively to the disabled under either the ADA or the Rehabilitation Act.” Greene v. City of New York, 725 F. Supp. 3d 400 , 424 (S.D.N.Y. 2024) (citation to Doe v. Pfrommer, 148 F.3d 73, 82 (2d Cir. 1998) omitted). “[N]either the ADA nor the Rehabilitatio…
discussed Cited as authority (rule) Giggetts v. County of Suffolk
E.D.N.Y · 2022 · confidence medium
“Neither the ADA nor the [RA] establish an obligation to meet a disabled person’s particular needs vis-à-vis the needs of other handicapped individuals, but mandate only that the services provided by [defendants] to non-handicapped individuals not be denied to a disabled person because he is handicapped.” Doe v. Pfrommer, 148 F.3d 73, 82 (2d Cir. 1998) (discussing the holding in Flight v. Gloeckler, 68 F.3d 61, 64 (2d Cir. 1995)).
discussed Cited as authority (rule) Luckey v. St. Luke's Cornwall Hospital
S.D.N.Y. · 2021 · confidence medium
“In order to establish a violation of § 504 [of the RA], a plaintiff must show (1) that he has a disability for purposes of the Rehabilitation Act, (2) that he is ‘otherwise qualified’ for the benefit that has been denied, (3) that he has been ‘denied the benefits’ solely by reason of his disability, and (4) that the benefit is part of a ‘program or activity receiving Federal financial assistance.’” Flight v. Gloeckler, 68 F.3d 61, 63 (2d Cir. 1995) (citations omitted).
discussed Cited as authority (rule) Thomas v. Mohawk Valley Health System
N.D.N.Y. · 2020 · confidence medium
“In order to establish a violation of § 504 [of the Rehabilitation Act], a plaintiff must show (1) that he has a disability for purposes of the Rehabilitation Act, (2) that he is ‘otherwise qualified’ for the benefit that has been denied, (3) that he has been ‘denied the benefits’ solely by reason of his disability, and (4) that the benefit is part of a ‘program or activity receiving Federal financial assistance.’” Flight v. Gloeckler, 68 F.3d 61, 63 (2d Cir. 1995) (citations omitted); see also C.L. v. Scarsdale Union Free Sch.
discussed Cited as authority (rule) D.A.B. ex rel. D.B. v. New York City Department of Education
S.D.N.Y. · 2014 · confidence medium
B; Tr. 870.) Nevertheless, even if plaintiffs did intend to enroll D.B. in public school, they cannot show that D.B. was excluded from school “solely by reason” of his disability. 29 U.S.C. § 794 (a); Flight v. Gloeckler, 68 F.3d 61, 64 (2d Cir.1995) (dismissing Section 504 claim because the plaintiff was denied an additional subsidy for modifications to a vehicle due to his “inability to drive”).
cited Cited as authority (rule) Marino v. City University of New York
E.D.N.Y · 2014 · confidence medium
Cmty. Action Program, 294 F.3d at 49 (citing Flight v. Gloeckler, 68 F.3d 61, 64 (2d Cir.1995)).
discussed Cited as authority (rule) DiFillippo v. Special Metals Corp.
N.D.N.Y. · 2014 · confidence medium
“In order to establish a violation of § 504 of the Rehabilitation Act, a plaintiff must show: (1) that he has a disability for purposes of the Rehabilitation Act; (2) that he was ‘otherwise qualified’ for the benefit that has been denied; (3) that he has been denied the benefits ‘solely by reason’ of his disability; and (4) that the benefit is part of a ‘program or activity receiving federal financial assistance.’ ” Doe v. Pfrommer, 148 F.3d 73, 82 (2d Cir.1998) (quoting Flight v. Gloeckler, 68 F.3d 61, 63 (2d Cir.1995)).
cited Cited as authority (rule) Valenzisi v. Stamford Board of Education
D. Conn. · 2013 · confidence medium
July 23, 2002) (citing LeBlanc-Sternberg v. Fletcher, 67 F.3d 412, 425 (2d Cir.1995) and Flight v. Gloeckler, 68 F.3d 61, 64 (2d Cir.1995)). .
cited Cited as authority (rule) Valley Housing Lp v. City of Derby
D. Conn. · 2011 · confidence medium
Flight v. Gloeckler, 68 F.3d 61, 64 (2d Cir.1995). 16.
discussed Cited as authority (rule) Gordan Bates v. Wisconsin Department of Workforce Development
7th Cir. · 2010 · confidence medium
See Doe v. Pfrommer, 148 F.3d 73, 81-84 (2d Cir.1998) (affirming summary judgment for state agency that obtains employment for disabled persons where plaintiff was not placed in employment because of his behavior patterns which plaintiff refused to remedy, not because he suffered from personality disorder); Flight v. Gloeckler, 68 F.3d 61, 64 (2d Cir.1995) (per curiam) (affirming summary judgment for state agency that provides money to disabled persons where plaintiff was denied grant to modify vehicle because he *636 was unable to drive, not because of his multiple sclerosis); see also Berg v…
discussed Cited as authority (rule) Cave v. East Meadow Union Free School District
E.D.N.Y · 2007 · confidence medium
In order to establish a violation of Section 504 of the Rehabilitation Act, a plaintiff must show: (1) that he has a disability for purposes of the Rehabilitation Act; (2) that he was “otherwise qualified” for the benefit that has been denied; (3) that he has been denied the benefits “solely by reason” of his disability; and (4) that the benefit is part of a “program or activity receiving Federal financial assistance.” Pfrommer, 148 F.3d at 82 (quoting Flight v. Gloeckler, 68 F.3d 61, 63 (2d Cir.1995)). *640 “Although there are subtle differences between [the ADA and Section 504 …
discussed Cited as authority (rule) Harris v. Mills
S.D.N.Y. · 2007 · confidence medium
“In order to establish a violation of § 504 of the Rehabilitation Act, a plaintiff must show: (1) that he has a disability for purposes of the Rehabilitation Act; (2) that he was ‘otherwise qualified’ for the benefit that has been denied; (3) that he has been denied the benefits ‘solely by reason’ of his disability; and (4) that the benefit is part of a ‘program or activity receiving Federal financial assistance.’ ” Doe v. Pfrommer, 148 F.3d 73, 82 (2d Cir.1998) (citing Flight v. Gloeckler, 68 F.3d 61, 63 (2d Cir.1995)).
cited Cited as authority (rule) Telesca v. Long Island Housing Partnership, Inc.
E.D.N.Y · 2006 · confidence medium
Clay v. Hernandez, 360 F.Supp.2d 595, 628 (S.D.N.Y.,2005) (quotations omitted) (citing Flight v. Gloeckler, 68 F.3d 61, 63 (2d Cir.1995)).
discussed Cited as authority (rule) Blatch Ex Rel. Clay v. Hernandez
S.D.N.Y. · 2005 · confidence medium
NYCHA does not dispute that it receives federal financial assistance and is therefore a “program or activity” within the meaning of the statute. 28 In order to show a violation of Section 504 of the Rehabilitation Act, a plaintiff must show: (1) that he has a disability for purposes of the Rehabilitation Act, (2) that he is ‘otherwise qualified’ for the benefit that has been denied, (3) that he has been ‘denied the benefits’ solely by reason of his disability, and (4) that the benefit is part of a ‘program or activity receiving Federal financial assistance.’ Flight v. Gloeckler…
discussed Cited as authority (rule) Henrietta v. Bloomberg
2d Cir. · 2003 · confidence medium
See, e.g., Rodriguez v. City of New York, 197 F.3d 611, 618 (2d Cir.1999) (declining to recognize discrimination where plaintiff requested a substantive benefit that was not provided to the non-disabled); Doe v. Pfrommer, 148 F.3d 73, 83-84 (2d Cir.1998) ("[T]he central purpose of the ADA and § 504 of the Rehabilitation Act is to assure that disabled individuals receive `evenhanded treatment' in relation to the able-bodied.... [W]hat [plaintiff] ultimately seeks to challenge is not illegal discrimination against the disabled, but the substance of services provided to him."); Flight v. Gloeckl…
discussed Cited as authority (rule) Henrietta D. v. Bloomberg
2d Cir. · 2003 · confidence medium
See, e.g., Rodriguez v. City of New York, 197 F.3d 611, 618 (2d Cir.1999) (declining to recognize discrimination where plaintiff requested a substantive benefit that was not provided to the non-disabled); Doe v. Pfrommer, 148 F.3d 73, 83-84 (2d Cir.1998) (“[T]he central purpose of the ADA and § 504 of the Rehabilitation Act is to assure that disabled individuals receive ‘evenhanded treatment’ in relation to the able-bodied .... [W]hat [plaintiff] ultimately seeks to challenge is not illegal discrimination against the disabled, but the substance of services provided to him.”); Flight v…
discussed Cited as authority (rule) Henrietta D. v. Giuliani
E.D.N.Y · 2000 · confidence medium
According to City defendants, plaintiffs’ claims are legally foreclosed by Supreme Court caselaw, including Alexander v. Choate, 469 U.S. 287 , 105 S.Ct. 712 , 83 L.Ed.2d 661 (1985) (court found ADA does not prohibit limit on Medicaid reimbursement for hospital stays despite undisputed disproportionate impact on disabled persons), and Second Circuit caselaw, including Rodriguez v. City of New York, 197 F.3d 611 , 1999 WL 795552 (2d Cir. October 6, 1999) (ADA does not require provision of additional benefits to the disabled, merely equal access to those already available); Doe v. Pfrommer, 14…
discussed Cited as authority (rule) A.W. Ex Rel. C. v. Marlborough Co. (2×) also: Cited "see"
D. Conn. · 1998 · confidence medium
To establish a violation of section 504, a plaintiff must demonstrate (1) that he has a disability for purposes of the Rehabilitation Act, (2) that he is ‘otherwise qualified’ for the benefit that has been denied, (3) that he has been ‘denied the benefits’ solely by reason of his disability, and (4) that the benefit is part of a ‘program or activity receiving Federal financial assistance.’ Flight v. Gloeckler, 68 F.3d 61, 63 (2d Cir.1995) (citations omitted).
discussed Cited as authority (rule) Lincoln CERCPAC v. Health & Hospital Corp. (2×)
S.D.N.Y. · 1997 · confidence medium
Flight v. Gloeckler, et al., 68 F.3d 61, 63 (2d Cir.1995) (citations omitted); Rothschild v. Grottenthaler, 907 F.2d 286, 289-90 (2d Cir.1990).
discussed Cited as authority (rule) Lincoln Cercpac v. Health and Hospitals Corp.
S.D.N.Y. · 1996 · confidence medium
It is therefore clear that the Rehab Act “mandates only that services provided non-handicapped individuals not be denied [to a disabled person] because he is handicapped,” Flight, 68 F.3d at 63-64 (affirming dismissal of plaintiffs Rehab Act claim because the benefit plaintiff alleged he had been denied was only available to handicapped individuals); citing P.C. v. McLaughlin, 913 F.2d 1033, 1041 (2d Cir.1990).
cited Cited "see" Regional Economic Community Action Program, Inc. v. City of Middletown
2d Cir. · 2002 · signal: see · confidence high
See Flight v. Gloeckler, 68 F.3d 61, 64 (2d Cir.1995).
discussed Cited "see" Regional Economic Community Action Program, Inc. v. City Of Middletown
2d Cir. · 2002 · signal: see · confidence high
See Flight v. Gloeckler, 68 F.3d 61, 64 (2d Cir.1995). 35 If the plaintiffs make out a prima facie case, then the burden of production shifts to the defendants to provide a legitimate, nondiscriminatory reason for their decision.
discussed Cited "see" Regional Economic Community Action Program, Inc. v. City Of Middletown
2d Cir. · 2002 · signal: see · confidence high
See Flight v. Gloeckler, 68 F.3d 61, 64 (2d Cir.1995). 35 If the plaintiffs make out a prima facie case, then the burden of production shifts to the defendants to provide a legitimate, nondiscriminatory reason for their decision.
cited Cited "see" Regional Economic Community Action Program, Inc. v. City of Middletown
2d Cir. · 2002 · signal: see · confidence high
See Flight v. Gloeckler, 68 F.3d 61, 64 (2d Cir.1995).
cited Cited "see" Doe v. Pfrommer
2d Cir. · 1998 · signal: see · confidence high
See Flight v. Gloeckler, 68 F.3d 61, 64 (2d Cir.1995) (“challenges to the allocation of resources among the disabled under the Rehabilitation Act are disfavored”).
cited Cited "see" Doe v. Pfrommer
2d Cir. · 1998 · signal: see · confidence high
See Flight v. Gloeckler, 68 F.3d 61, 64 (2d Cir.1995) ("challenges to the allocation of resources among the disabled under the Rehabilitation Act are disfavored").
discussed Cited "see" Gregory C. Mallett v. Wisconsin Division of Vocational Rehabilitation and Judy R. Norman-Nunnery (2×)
7th Cir. · 1997 · signal: see · confidence high
See Flight v. Gloeckler, 878 F.Supp. 424, 426 (N.D.N.Y.1995) (concluding individual with disabilities is not “otherwise qualified” for Rehabilitation Act), aff'd, 68 F.3d 61 (2d Cir.1995).
discussed Cited "see" Bartlett v. New York State Board of Law Examiners
S.D.N.Y. · 1997 · signal: see · confidence high
See Flight v. Gloeckler, 68 F.3d 61 (2d Cir.1995); Argen v. New York State Bd. of Law Exam’rs, 860 F.Supp. 84, 86 (W.D.N.Y. 1994); Pazer v. New York State Bd. of Law Exam’rs, 849 F.Supp. 284, 287 (S.D.N.Y. 1994).
discussed Cited "see, e.g." Parks v. Blanchette
D. Conn. · 2015 · signal: see also · confidence medium
See Doe v. Pfrommer, 148 F.3d 73, 83-84 (2d Cir.1998) (affirming a grant of summary judgment dismissing a plaintiffs ADA and Rehabilitation Act claims because he was challenging the quality of services he received rather than any discrimination against him because of his disability); see also Flight v. Gloeckler, 68 F.3d 61, 63-64 (2d Cir.1995) (per curiam) (finding no liability for defendant under the ADA and Rehabilitation Act because plaintiff was not denied a benefit available to non-handicapped and was not denied the benefit because he was disabled).
examined Cited "see, e.g." John Goodpaster v. Schwan's Home Service, Inc. and Todd Swanson, Individually and in His Corporate Capacity (4×)
Iowa · 2014 · signal: see also · confidence medium
Cir. 1992) (holding summary judgment against plaintiff with multiple sclerosis was inappropriate); Carter v. Casa Cent., 849 F.2d 1048, 1050 , 1053–54 (7th Cir. 1988) (upholding district court ruling that plaintiff with multiple sclerosis was denied job as a result of disability); Pushkin v. Regents of Univ. of Colo., 658 F.2d 1372 , 1387 (10th Cir. 1981) (holding plaintiff with multiple sclerosis established he is a disabled person who was rejected from a residency program based on his disability); see also Flight v. Gloeckler, 68 F.3d 61, 64 (2d Cir. 1995) (referring to multiple sclerosis …
discussed Cited "see, e.g." John Goodpaster v. Schwan's Home Service, Inc. and Todd Swanson, Individually and in His Corporate Capacity (2×)
Iowa · 2014 · signal: see also · confidence medium
Cir. 1992) (holding summary judgment against plaintiff with multiple sclerosis was inappropriate); Carter v. Casa Cent., 849 F.2d 1048, 1050 , 1053–54 (7th Cir. 1988) (upholding district court ruling that plaintiff with multiple sclerosis was denied job as a result of disability); Pushkin v. Regents of Univ. of Colo., 658 F.2d 1372 , 1387 (10th Cir. 1981) (holding plaintiff with multiple sclerosis established he is a disabled person who was rejected from a residency program based on his disability); see also Flight v. Gloeckler, 68 F.3d 61, 64 (2d Cir. 1995) (referring to multiple sclerosis …
cited Cited "see, e.g." Connecticut Office of Protection & Advocacy for Persons With Disabilities v. Connecticut
D. Conn. · 2010 · signal: see also · confidence medium
See also Flight v. Gloeckler, 68 F.3d 61, 64 (2d Cir.1995)(“challenges to the allocation of resources among the disabled under the Rehabilitation Act are disfavored.”).
discussed Cited "see, e.g." M.K. Ex Rel. Mrs. K. v. Sergi
D. Conn. · 2008 · signal: see also · confidence medium
See also Flight v. Gloeckler, 68 F.3d 61, 64 (2d Cir.1995) (“challenges to the allocation of resources among the disabled under the Rehabilitation Act are disfavored.”); Rodriguez v. City of New York, 197 F.3d at 618 (holding that the ADA only requires that a particular service provided to some not be denied to the disabled and, thus, dismissing plaintiffs’ claim that challenged the City’s failure to provide a particular service to the disabled, which was not provided to anyone); Fetto, 181 F.Supp.2d at 76 (holding that plaintiffs claim that he received benefits different than those pr…
cited Cited "see, e.g." Goldring v. Sillery Mayer & Partners
D. Conn. · 1999 · signal: see also · confidence low
LEXIS 19386 (N.D.Ill.Dec. 19, 1996); see also Flight v. Gloeckler, 68 F.3d 61 (2d Cir.1995); Outzts v. U.S.Air, Inc., No. 94-625, 1996 U.S. Dist.
Retrieving the full opinion text from the archive…
Edward Flight
v.
Lawrence C. Gloeckler, in His Official Capacity as Deputy Commissioner for Vocational and Educational Services for Individuals With Disabilities Thomas Sobol, in His Official Capacity as Commissioner of the New York State Education Department Office of Vocational and Educational Services for Individuals With Disabilities of the New York State Education Department New York State Education Department
316.
Court of Appeals for the Second Circuit.
Oct 19, 1995.
68 F.3d 61
Cited by 23 opinions  |  Published

68 F.3d 61

4 A.D. Cases 1699, 13 A.D.D. 312

Edward FLIGHT, Plaintiff-Appellant,
v.
Lawrence C. GLOECKLER, in his official capacity as Deputy
Commissioner for Vocational and Educational Services for
Individuals with Disabilities; Thomas Sobol, in his
official capacity as Commissioner of the New York State
Education Department; Office of Vocational and Educational
Services For Individuals With Disabilities of the New York
State Education Department; New York State Education
Department, Defendants-Appellees.

No. 316, Docket 95-7308.

United States Court of Appeals,
Second Circuit.

Argued Oct. 17, 1995.
Decided Oct. 19, 1995.

William F. Mastroleo, Buffalo, New York (Neighborhood Legal Services, Inc., Buffalo, New York, of counsel), for Plaintiff-Appellant.

Patrick Barnett-Mulligan, Assistant Attorney General of the State of New York, Albany, New York (Dennis C. Vacco, Attorney General, Peter H. Schiff, Deputy Solicitor General, Peter G. Crary, Assistant Attorney General, Albany, New York, of counsel), for Defendants-Appellees.

Before: LUMBARD, CARDAMONE, and MAHONEY, Circuit Judges.

PER CURIAM:

[*~61]1

Plaintiff-appellant Edward Flight appeals from a judgment entered March 24, 1995 in the United States District Court for the Northern District of New York, Frederick J. Scullin, Jr., Judge, that dismissed Flight's claims that defendants-appellees had unlawfully discriminated against him in the provision of payment for modifications to a vehicle in violation of Section 504 of the Rehabilitation Act of 1973, as amended (the "Rehabilitation Act"), 29 U.S.C. Sec. 794,[1] and Section 202 of the Americans with Disabilities Act of 1990, as amended (the "Disabilities Act"), 42 U.S.C. Sec. 12132.[2]

2

Flight is afflicted with multiple sclerosis, a degenerative condition that attacks the central nervous system. He is restricted to a wheelchair, and has limited use of his upper body. Flight has been a client of New York State's Office of Vocational and Educational Services for Individuals with Disabilities ("VESID") since 1984. VESID issued Flight an individualized written rehabilitation plan ("IWRP") in 1991, which currently ascribes to Flight an employment goal of being a homemaker.

3

In 1992, Flight decided to purchase a van, and petitioned VESID for financial assistance in order to make modifications necessary for him to use the van. VESID's policy statement Sec. 1350.00, Vehicle Modifications and Adaptive Equipment (Sept.1985), determines the amount of money that VESID will provide for the modification of a vehicle for a client who "is pursuing a vocational objective for which the equipment or modification is necessary, as shown on the [client's] IWRP." Section 1350.00 allows VESID to spend up to $10,500 in order to modify a van "if the client will function as driver of the vehicle," but only up to $4,000 "if the client will only use the vehicle as a passenger."

4

In response to Flight's request, VESID tested Flight's driving abilities and determined that he was too severely disabled to drive a motor vehicle. VESID also determined that a van was not necessary to enable Flight to function as a homemaker, but nevertheless offered to provide $4,000 towards the cost of modifying Flight's van. Flight then attempted, with the support of his VESID counselor, to obtain a waiver of the $4,000 limitation, and a hearing was ultimately held regarding the requested waiver, but VESID persisted in its denial. Flight then purchased the van, and had it modified at a cost of $10,400. VESID contributed $4,000 towards this expense.

[*~62]5

Flight brought suit in the district court seeking declaratory and injunctive relief, as well as monetary damages. Flight alleged that VESID's policies regarding the distribution of money for the modification of vehicles violates Sec. 504 of the Rehabilitation Act, see supra note 1, Sec. 202 of the Disabilities Act, see supra note 2, and (derivatively) 42 U.S.C. Sec. 1983 by denying to Flight "under color of any ... regulation ... of any State ... rights ... secured by the ... laws" of the United States. Id. The district court denied summary judgment to Flight and granted summary judgment to defendants-appellees. Flight v. Gloeckler, 878 F.Supp. 424 (N.D.N.Y.1995). This appeal followed.

6

In order to establish a violation of Sec. 504, a plaintiff must show (1) that he has a disability for purposes of the Rehabilitation Act, (2) that he is "otherwise qualified" for the benefit that has been denied, (3) that he has been "denied the benefits" solely by reason of his disability, and (4) that the benefit is part of a "program or activity receiving Federal financial assistance." Id., supra note 1; Doe v. New York Univ., 666 F.2d 761, 774-75 (2d Cir.1981).

7

We have held that "[t]he [Rehabilitation] Act does not require all handicapped persons to be provided with identical benefits." P.C. v. McLaughlin, 913 F.2d 1033, 1041 (2d Cir.1990). The statute "d[oes] not clearly establish an obligation to meet [a disabled person's] particular needs vis-a-vis the needs of other handicapped individuals, but mandates only that services provided nonhandicapped individuals not be denied [to a disabled person] because he is handicapped." Id. Thus, challenges to the allocation of resources among the disabled under the Rehabilitation Act are disfavored.

8

In this case, Flight is not being denied a benefit which is made available to nonhandicapped individuals and for which Flight is "otherwise qualified." Rather, VESID's subsidies for vehicle modifications are made available only to handicapped individuals. See Flight, 878 F.Supp. at 426-27.

[*~63]9

Furthermore, Flight was not denied the additional subsidy "solely by reason of ... his disability" within the meaning of Sec. 504. The denial of the increased allowance was not based upon Flight's classification as a victim of multiple sclerosis, but rather upon the type of modification that he requested. See Marshall v. Switzer, 10 F.3d 925, 929-30 (2d Cir.1993) (noting Rehabilitation Act's "pervasive policy of tailoring the provision of services to meet the individual needs of each client").

10

Flight contends that his disability is not multiple sclerosis, but rather an inability to drive, but this argument is unpersuasive. A disability is a "physical or mental impairment," 29 U.S.C. Sec. 706(8)(A), (B), i.e., "any physiological disorder or condition ... affecting" the neurological system. 34 C.F.R. Sec. 104.3(j)(2)(i)(A) (emphasis added). Clearly, an inability to drive is not a physiological condition, but rather a result of a physiological condition, viz., Flight's neurological disorder.

11

Flight also argues that VESID's policy violates Sec. 202 of the Disabilities Act. See supra note 2. The regulations implementing this statute provide:

12

A public entity, in providing any aid, benefit, or service, may not, directly or through contractual licensing, or other arrangements, on the basis of disability--

13

....

14

(iv) Provide different or separate aids, benefits, or services to individuals with disabilities or to any class of individuals with disabilities than is provided to others unless such action is necessary to provide qualified individuals with disabilities with aids, benefits, or services that are as effective as those provided to others.

15

28 C.F.R. Sec. 35.130(b)(1).

[*~64]16

The district court correctly noted that this provision is inapplicable because the distinction in the present case is not based upon Flight's disability, multiple sclerosis, but rather upon his inability to drive. See Flight, 878 F.Supp. at 428. Thus, VESID does not provide varying services or benefits "on the basis of disability" within the meaning of Sec. 35.130(b)(1), but rather upon the basis of the recipient's ability to make meaningful use of the service or benefit provided. The regulation cannot plausibly be read to preclude sensible distinctions of this sort in addressing the remedial needs of disabled persons.

[*~63]17

We accordingly affirm the judgment of the district court.

1

Section 504 provides in pertinent part:

(a) No otherwise 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....

2

Section 202 provides in pertinent part:

[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.