213 F.3d 340 (7th Cir. 2000)
Hershel R. Stanley,    Plaintiff-Appellant,v.Jon E. Litscher, Secretary, Wisconsin Department  of Corrections, et al.,    Defendants-Appellees.
No. 99-3764
In the  United States Court of Appeals  For the Seventh Circuit
Submitted March 15, 2000
Decided May 16, 2000

Appeal from the United States District Court  for the Western District of Wisconsin.  No. 99-C-533-S--John C. Shabaz, Chief Judge. [Copyrighted Material Omitted]
Before Bauer, Easterbrook, and Ripple, Circuit Judges.
Easterbrook, Circuit Judge.


1
Hershel Stanley, an  inmate in Wisconsin's prison system, wants to  participate in a program for sex offenders,  believing that successful completion will give  him a boost when seeking parole or work release  and reduce the chance that he will be civilly  committed at the end of his criminal sentence.  See Wis. Stat. sec.sec. 980.01 to 980.13. Stanley  contends that, by rejecting his application to  participate in the program, defendants (officials  of Wisconsin's Department of Corrections)  violated the Americans with Disabilities Act, the  Rehabilitation Act, and multiple parts of the  Constitution. The district judge dismissed the  complaint under 28 U.S.C. sec.1915A(b)(1) for  failure to state a claim on which relief may be  granted; as a result, the defendants have not  been served with process and have not  participated in this appeal.


2
Stanley alleges--and we must take his word for  it, because all we have to go on are the  complaint, its attachments, and his appellate  brief--that prison officials deem him ineligible  for intra-prison programs designed for sex  offenders, drug abusers, and the like, because he  is a psychopath. A psychologist's report relates:


3
The results of the evaluation support a  diagnosis of psychopathy. Consequently, Mr.  Stanley is not appropriate for treatment  or programs offered by DOC. Research  demonstrates that traditional treatment or  programs do not benefit individuals with  psychopathy. In some cases, such  interventions have been demonstrated to be  contraindicated.


4
Stanley does not disagree with the assessment  that he displays the characteristics of  psychopathy, a word mental-health professionals  apply to a personality disorder manifested in  aggressive, perverted, criminal, or amoral  behavior. Rather, he contends that federal  statutes and the Constitution require prisons to  admit psychopaths to their programs.


5
As a constitutional claim, this goes nowhere.  It is far from clear that psychopathy is a mental  disease or disability of any kind, as opposed to  a complex of traits associated with antisocial  conduct. But let us assume (given the posture of  the suit) that psychopathy is a disability rather  than just a description of lawlessness.  Distinctions on the ground of disability are  proper as long as they are rational. Cleburne v.  Cleburne Living Center, Inc., 473 U.S. 432, 439-  42 (1985); Heller v. Doe, 509 U.S. 312, 319-21  (1993); United States v. Harris, 197 F.3d 870,  873-76 (7th Cir. 1999). A state rationally could  conclude that psychopaths do not benefit from  intra-prison programs, that they spoil the  programs for less aggressive inmates, or both.  What is more, admission to the programs cannot be  described as a liberty or property interest. No  fixed set of criteria entitles anyone to  admission, and exclusion leaves the prisoner with  the normal attributes of confinement. Sandin v.  Conner, 515 U.S. 472 (1995); Meachum v. Fano, 427  U.S. 215 (1976); Wallace v. Robinson, 940 F.2d  243 (7th Cir. 1991) (en banc); Higgason v.  Farley, 83 F.3d 807 (7th Cir. 1996).


6
Stanley errs in thinking that the eighth  amendment requires the state to "treat" his  psychopathy more aggressivelyif that condition  is treatable in any way other than penal  confinement. Papers attached to his complaint  show that he saw a psychiatrist, who concluded on  May 17, 1999, that he does not require "acute  treatment." It is difficult, at all events, to  conceive of psychopathy as a "serious medical  need" within the scope of Estelle v. Gamble, 429  U.S. 97 (1976). Psychopaths are dangerous to  others, not to themselves. Equally unavailing is  Stanley's invocation of the Ex Post Facto Clause.  Stanley does not point to any state law or  policy, adopted after his crimes, that increases  the authorized punishment.


7
Invoking the due process clause and the first  amendment, Stanley contends that prison officials  retaliated against him for complaining about his  non-admission to the intra-prison programs. The  alleged retaliation took the form of transfer to  an out-of-state prison, which by itself violates  none of Stanley's rights. Olim v. Wakinekona, 461  U.S. 238 (1983); Pischke v. Litscher, 178 F.3d  497 (7th Cir. 1999). Retaliation is a potential  wrong, however, even when a transfer does not  involve a liberty or property interest. See  Haymes v. Montanye, 547 F.2d 188 (2d Cir. 1976).  But on this subject Stanley pleaded himself out  of court, for his filings show that the  supposedly retaliatory event preceded the  grievances that Stanley filed. Time's arrow means  that this sequence cannot have been retaliatory.  (Stanley does not contend that prison  administrators saw a grievance coming and shipped  him out of state to prevent its filing. Actually,  it is not clear from his complaint whether a  transfer was completed, as opposed to  recommended.) Lumping all of defendants' acts  together, adding the word "conspiracy," and  citing 42 U.S.C. sec.1985 adds nothing. Ryan v.  Mary Immaculate Queen Center, 188 F.3d 857 (7th  Cir. 1999).


8
This leaves for discussion only Stanley's  arguments under the ADA and the Rehabilitation  Act. The Supreme Court has held that the ADA  applies to prisons, see Pennsylvania Department  of Corrections v. Yeskey, 524 U.S. 206 (1998),  and its reasoning is equally applicable to the  Rehabilitation Act. But given Erickson v. Board  of Governors for Northeastern Illinois  University, 207 F.3d 945 (7th Cir. 2000), and  Stevens v. Illinois Department of Transportation,  No. 98-3550 (7th Cir. Apr. 11, 2000), Stanley  must raise his claims under the ADA in state  court. Erickson and Stevens hold that sec.5 of  the fourteenth amendment does not provide  Congress with authority to enact the ADA. Because  it rests on the Commerce Clause rather than  sec.5, the eleventh amendment precludes private  litigation against the state in federal court.  Seminole Tribe v. Florida, 517 U.S. 44 (1996).  Walker v. Snyder, No. 98-3308 (7th Cir. May 16,  2000), added that suits under Title II of the ADA  (as this is) proceed against the public entity--  either in its own name, or through suits against  its officers in their official capacities.


9
Stanley's claims differ from Walker's in two  respects. First, unlike Walker, Stanley does not  seek an accommodation of his condition but wants  the state to disregard it when deciding who may  participate in programs. Second, Stanley has  raised a claim under the Rehabilitation Act. The  first difference is potentially important, given  the emphasis Erickson placed on the accommodation  requirements in Title I of the ADA. But Erickson,  Stevens, and Walker, following Kimel v. Florida  Board of Regents, 120 S. Ct. 631 (2000), also  observe that the ADA exceeds the sec.5 power to  the extent it forbids states to consider aspects  of disability that are rationally related to  legitimate objectives of government. That was  what Kimel held for the traditional anti-  discrimination provisions of the Age  Discrimination in Employment Act, and as we  concluded in Erickson and Stevens that reasoning  is no less applicable to the ADA. Because we have  already held that Wisconsin did not act  irrationally in excluding psychopaths from  programs within its prisons and therefore did not  violate the Constitution, it follows that it is  the Commerce Clause, rather than sec.5, that  provides the basis of the rules Stanley seeks to  invoke.


10
As for the Rehabilitation Act, 29 U.S.C.  sec.794: we agree with Kilcullen v. New York  State Department of Labor, 205 F.3d 77, 79-80 (2d  Cir. 2000), and Garrett v. University of Alabama,  193 F.3d 1214, 1218 (11th Cir. 1999), cert.  granted on a different issue, No. 99-1240 (Apr.  17, 2000), that the ADA and the Rehabilitation Act  are identical for purposes of sec.5. But the  Rehabilitation Act also is a condition on the  receipt of federal funds, and legislation under  the spending power is not affected by Kimel. See  Oak Park Board of Education v. Kelly E., 207 F.3d  931, 935 (7th Cir. 2000). The Rehabilitation Act  is no different in this respect from the IDEA,  which Oak Park held adequate to support  litigation against states in federal court.  Accord, Little Rock School District v. Mauney,  183 F.3d 816, 831-32 (8th Cir. 1999). We  therefore agree with the fourth, ninth, and  eleventh circuits that the Rehabilitation Act is  enforceable in federal court against recipients  of federal largess. Litman v. George Mason  University, 186 F.3d 544, 553 (4th Cir. 1999);  Clark v. California, 123 F.3d 1267, 1271 (7th  Cir. 1997); Sandoval v. Hagan, 197 F.3d 484, 493-  94 (11th Cir. 1999). The only contrary decision,  Bradley v. Arkansas Department of Education, 189  F.3d 745 (8th Cir. 1999), has been vacated and  reheard en banc under the name Jim C. v. Arkansas  Department of Education, 197 F.3d 958 (argued  Jan. 14, 2000), and appears to be based on a  misreading of the Rehabilitation Act's coverage.


11
Stanley's major hurdle on the merits under the  Rehabilitation Act is demonstrating that he is an  "individual with a disability" as that term is  defined in 29 U.S.C. sec.706(8), a definition  different from the one in the ADA. Section  706(8)(F) excludes from the protected class  persons who suffer from "sexual behavior  disorders" or compulsive criminality, yet  Stanley's claims arise from those behavioral  characteristics. He wants admission to programs  that he believes would help him overcome his  sexual behavior disorder and his persistently  antisocial behavior, but these very disorders  preclude him from obtaining benefits under the  Rehabilitation Act.


12
The judgment of the district court is affirmed,  except to the extent that court addressed on the  merits Stanley's claims under the ADA. The  judgment is vacated in part, and the case is  remanded with instructions to dismiss for want of  jurisdiction the claims under that statute.

