                                 United States Court of Appeals,

                                         Eleventh Circuit.

                                           No. 96-6213.

   Lydia Kay ONISHEA; Renee Brown; Carrie White; Arthur Howard; Arion Davis, et al.,
Plaintiffs-Appellants,

                                                 v.

 Joe S. HOPPER, Commissioner of the Alabama Department of Corrections; Shirlie Lobmiller,
Warden of the Julia Tutwiler Prison for Women; Steve Dees, Warden of the Limestone Correctional
Facility; Lynn Harrelson, Warden of the Kilby Prison; Correctional Health Care, Inc., Health care
provider of the Alabama Department of Corrections, et al., Defendants-Appellees.

  Stewart M. Hughey; Adam Lamar Robinson; Chuck Stoudemire, Intervening Defendants-
Appellees.

                                          Nov. 4, 1997.

Appeal from the United States District Court for the Middle District of Alabama. (No. CV-87-V-
1109-N), Robert E. Varner, Judge.

Before COX, Circuit Judge, KRAVITCH, Senior Circuit Judge, and STAGG*, Senior District Judge.

       KRAVITCH, Senior Circuit Judge:

       The Alabama Department of Corrections ("DOC") prohibits inmates who test positive for

the Human Immunodeficiency Virus ("HIV") from participating in most of the educational,

vocational, rehabilitative, religious, and recreational programs offered in state prisons. The

appellant class, which consists of Alabama inmates who are HIV-positive ("HIV+" or
"seropositive"), claims that excluding HIV+ prisoners from these programs violates the

Rehabilitation Act of 1973 Section 504, 29 U.S.C. § 794 ("section 504" or "the Act"). A prior panel

of this court, on an appeal by these appellants from a post-trial dismissal of their class action,

remanded the section 504 claim "for additional findings and clarification by the district court."

Harris v. Thigpen, 941 F.2d 1495, 1528 (11th Cir.1991). On remand, the district court ruled in favor

of DOC but failed to comply with the panel's mandate. Accordingly, we again vacate the district

court's decision and remand.


   *
     Honorable Tom Stagg, Senior U.S. District Judge for the Western District of Louisiana,
sitting by designation.
                                                   I.

          Upon entry into the Alabama prison system, each inmate is tested to determine whether he

or she carries HIV. The state incarcerates men testing positive at the Limestone Correctional Facility

("Limestone") and women testing positive at the Julia Tutwiler Prison for Women ("Tutwiler").

Each of these prisons houses HIV+ inmates in a separate unit. Seropositive prisoners not only live

apart from non-infected inmates, but, in addition, "they have not been able to participate in most of

the programs available to general population prisoners, while in other cases, the segregated

programming provided to them is not comparable." Harris, 941 F.2d at 1521-22.1

          Carmen Harris filed suit in 1987 and later became the named plaintiff of the class of

prisoners seeking declaratory and injunctive relief against DOC. The class claimed that Alabama's

HIV policy violated several constitutional provisions and section 504. The district court rejected

each of the class' claims. Harris v. Thigpen, 727 F.Supp. 1564 (M.D.Ala.1990). The prior panel

affirmed the district court's principal constitutional rulings,2 but vacated its statutory ruling. Noting

the absence of any "particularized inquiry" by the district court, the panel established the law of the

case by remanding for "full findings of fact and conclusions of law as to each program and activity

from which HIV-positive prisoners are being excluded, and a proper weighing of the dangers of

transmission in each context." 941 F.2d at 1527.

          On remand, appellant Onishea was substituted as named plaintiff for Harris, who died during
the litigation. The district court held a lengthy trial and, in an opinion discussing each program from

which appellants are excluded, ruled that every program satisfied section 504. Onishea v. Herring,

No. 87-V1109-N, slip op. (M.D.Ala. Dec. 29, 1995) (hereinafter "Op."). Appellants filed a timely

appeal.

   1
    Specific information regarding the testing and segregation process and the epidemiology of
HIV infection can be found in Judge Fay's thoughtful and exhaustive opinion in the prior appeal
of this case. We presume familiarity with that opinion.
   2
    The class' constitutional claim concerning access to the courts was remanded for additional
factual findings and for clarification of the district court's prior order. Harris, 941 F.2d at 1528.
The district court again denied relief on remand, and that issue has not been appealed.

                                                   2
                                                  II.

        Appellants suggest that the district court's opinion contains numerous errors of law and fact

that call into question the court's ultimate rejection of their section 504 claim. We discuss the

essential statutory elements of a cause of action under the Act and then address the specific

challenges to the district court's decision.

                                                  A.

        Section 504 states: "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...."

29 U.S.C. § 794. Thus, appellants' prima facie case of unlawful discrimination under the Act

consists of four elements:

        1) they are "handicapped" within the meaning of the Act; 2) they are "otherwise qualified";
        3) they are excluded from programs or activities solely because of the handicap; and 4) the
        programs or activities from which they are excluded are operated by an agency that receives
        federal financial assistance.

Harris, 941 F.2d at 1522. Only one of these elements is in dispute in this appeal—whether

appellants are "otherwise qualified." Id. at 1522-24 (holding that being HIV+ is a "handicap" and

noting that latter two requirements were undisputed).

        Deciding whether a person with a contagious disease satisfies the "otherwise qualified"

prong of section 504 necessarily begins with Sch. Bd. of Nassau County, Fla. v. Arline, 480 U.S.
273, 107 S.Ct. 1123, 94 L.Ed.2d 307 (1987). In Arline, the Supreme Court explained that a person

is "otherwise qualified" if he "is able to meet all of a program's requirements in spite of his

handicap." Id. at 287 n. 17, 107 S.Ct. at 1131 n. 17 (quoting Southeastern Community College v.

Davis, 442 U.S. 397, 406, 99 S.Ct. 2361, 2367, 60 L.Ed.2d 980 (1979)). If the individual has a

contagious disease, however, the "otherwise qualified" element requires "the district court ... to

conduct an individualized inquiry and make appropriate findings of fact" to determine whether

integration would pose "significant health and safety risks." Id. at 287, 107 S.Ct. at 1131. The

significance of the risk turns on

                                                   3
        reasonable medical judgments given the state of medical knowledge[ ] about (a) the nature
        of the risk (how the disease is transmitted), (b) the duration of the risk (how long is the
        carrier infectious), (c) the severity of the risk (what is the potential harm to third parties) and
        (d) the probabilities the disease will be transmitted and will cause varying degrees of harm.

Id. at 288, 107 S.Ct. at 1131 (internal quotation omitted).3 These factors must be balanced; it is

more easily justified, for example, for a federal grantee to exclude a person whose terminal illness

is transmitted by casual contact than a person who poses little threat of infecting others or who

carries a less serious disease.

        Even if a plaintiff is not "otherwise qualified" for a program, "refusal to modify an existing

program might become unreasonable and discriminatory" under the Act. Southeastern Community

College v. Davis, 442 U.S. 397, 413, 99 S.Ct. 2361, 2370, 60 L.Ed.2d 980 (1979). That is, even

though a plaintiff's participation in a federally-funded program poses a significant risk to others, a

plaintiff is nevertheless entitled to relief under the Act if reasonable accommodation will render the

risk insignificant. Harris, 941 F.2d at 1525. A proposed accommodation, however, need not be

implemented if it would impose an undue fiscal or administrative burden upon the recipient of

federal funds or would require the grantee fundamentally to alter its program. Alexander v. Choate,

469 U.S. 287, 299-302, 105 S.Ct. 712, 719-21, 83 L.Ed.2d 661 (1985); Arline, 480 U.S. at 287 n.

17, 107 S.Ct. at 1131 n. 17. The reasonable accommodation and undue burden inquiries overlap

somewhat, and their precise contours are difficult to chart. See Borkowski v. Valley Cent. Sch. Dist.,

63 F.3d 131, 144-48 (2d Cir.1995) (discussing relationship between inquiries). Federal grantees

must take modest, but not unreasonable, affirmative steps to ensure that disabled persons have


   3
    Subsequent to Arline, Congress amended the Act to clarify that, in the employment context, a
person with a contagious disease could be an "individual with a disability" unless that person,
"by reason of such disease or infection, would constitute a direct threat to the health or safety of
other individuals or who, by reason of the currently contagious disease or infection, is unable to
perform the duties of the job." Civil Rights Restoration Act of 1987, Pub.L. No. 100-259, 102
Stat. 28 (codified at 29 U.S.C. § 706(8)(D)). The intent of this amendment was to codify the
Arline standard. See 134 CONG. REC. S1739 (daily ed. Mar. 2, 1988) (statement of Sen. Harkin)
("[T]he purpose of the amendment was to clarify—and not to modify in any way—the
protections of section 504, as they apply to individuals with contagious diseases or infections.
The amendment is consistent with the Supreme Court decision in [Arline ]."); see also EEOC v.
Amego, Inc., 110 F.3d 135, 143 (1st Cir.1997).

                                                    4
access to program benefits. See Davis, 442 U.S. at 407-08, 99 S.Ct. at 2367-68 (holding that grantee

nursing program not required to provide student with personalized faculty assistance in

communicating with patients or exemption from certain required courses as reasonable

accommodations); Tatro v. State of Texas, 625 F.2d 557 (5th Cir.1980) (grantee school may be

required to perform simple, brief medical procedure for student as a reasonable accommodation).

       Applying these precepts to the facts of the case at bar, appellants are "otherwise qualified"

if they are capable of participating in a prison program notwithstanding their disability and if their

participation does not pose a significant risk to other inmates. We assess the significance of the risk

by considering the potentially terminal nature of HIV infection, the likelihood that certain behavior

will result in HIV transmission, and the frequency of such behavior in prison programs. If

appellants are not "otherwise qualified" because they present a significant risk, reasonable

accommodations may be available to render such risk insignificant. In prison, such accommodations

will involve measures designed to prevent high-risk behavior. A prison grantee, however, is not

obliged to undertake those accommodations that prove to be unduly burdensome from an

administrative or financial standpoint.

                                                  B.

        On remand, the district court found that appellants were not "otherwise qualified" for any

of the prison programs from which they have been categorically excluded.4 It also ruled that the

accommodations proposed by appellants either were insufficient to minimize the risk of transmitting

HIV or would pose an unreasonable burden on prison administration. Appellants argue that these

conclusions were erroneous. Specifically, they claim that the district court: (1) allocated the


   4
    Appellants challenge their segregation from numerous programs, including religious
services, rehabilitation programs (including drug and alcohol abuse classes), prison visitation,
vocational classes (ranging from data processing to welding), organized recreational activities,
dining hall use, medical clinic visits, out-of-the-prison programs, educational programs
(including GED and college courses), a number of prison jobs (such as data entry, errand
running, kitchen and laundry jobs, maintenance and housekeeping duty, and work in prison
factories), and library use. HIV+ prisoners may participate in some of these activities separately;
other programs are unavailable to seropositive inmates.

                                                  5
burdens of persuasion at trial incorrectly; (2) improperly required appellants to disprove every

possibility of HIV transmission in a program before finding the inmates "otherwise qualified"; (3)

wrongly found that a plaintiff is not "otherwise qualified" if penological concerns justify

discrimination; (4) refused to consider probative evidence that certain programs could be integrated

safely; (5) misinterpreted the prior panel's opinion by refusing to consider whether certain programs

could be integrated at all; and (6) mistakenly concluded that any accommodation imposing

additional costs upon DOC would be an undue financial burden.5
       Appellants' first argument is unpersuasive, but we conclude that their second and third claims

are meritorious and require us to vacate the district court's decision. We discuss the remaining

claims because they address errors that would likely occasion a third appeal and remand should they

be repeated. Claims (1), (2), (3) and (5) are issues of law, which we review de novo, United States

v. Olin Corp., 107 F.3d 1506, 1508 (11th Cir.1997); claim (4) challenges the district court's

exclusion of evidence, which we review for abuse of discretion, Judd v. Rodman, 105 F.3d 1339,

1341 (11th Cir.1997); and claim (6) is an issue of fact, which we review for clear error. Hovsons,

Inc. v. Township of Brick, 89 F.3d 1096, 1101 (3d Cir.1996).

   5
    Appellants also contend that the district court misinterpreted the prior panel's opinion by
refusing to consider whether individual members of the appellant class were "otherwise
qualified" or could be made so with reasonable accommodation. They argue that if they can
show that one of their number can be integrated safely into a prison program, then the class as a
whole is entitled to a declaration that the categorical ban on seropositive inmates' participation in
that program violates the Act. This argument is not without appeal, especially in view of section
504's preference for individualized treatment. See, e.g., Arline, 480 U.S. at 284, 107 S.Ct. at
1129 ("The fact that some persons who have contagious diseases may pose a serious health
threat to others under certain circumstances does not justify excluding from the coverage of the
Act all persons with actual or perceived contagious diseases."). Moreover, common sense tells
us that if one class member can establish his or her eligibility for a prison program, then the
categorical ban is in tension with section 504's goals. Nevertheless, we conclude that the prior
opinion in this case precludes an inquiry that focuses on a particular individual's eligibility for
specific programs. The panel directed the district court to determine whether appellants were
"otherwise qualified" in light of "the risk of HIV transmission with regard to each program,"
941 F.2d at 1526, and "to examine as to each program whether "reasonable accommodations' by
the DOC could minimize such a risk to an acceptable level." Id. at 1527 (emphasis added).
Because the prior panel directed the district court to undertake such an inquiry and because a
program-level assessment of risk in this case is not plainly inconsistent with section 504, see
Arline, 480 U.S. at 287, 107 S.Ct. at 1131 (individualized inquiry is necessary "in most cases,"
but not all), we reject appellants' argument based on the law of the case doctrine.

                                                  6
                                                  1.

        Appellants argue that circuit precedent places the burden on defendants to prove at trial that

plaintiffs are not otherwise qualified or could not be made so with reasonable accommodation, but

that the district court erroneously placed that burden on appellants. The district court concluded that

the Rehabilitation Act requires plaintiffs to bear the burden of showing that they are qualified to

participate in a program or that an accommodation is available that will make them qualified.

Although we do not adopt the district court's reasoning,6 we conclude that it properly allocated the

burdens in the present case.

       In Treadwell v. Alexander, 707 F.2d 473, 475 (11th Cir.1983), we stated that "[o]nce a

plaintiff shows an employer denied him employment because of physical condition, the burden of

persuasion shifts to the federal employer to show that the criteria used are job related and that [the]

plaintiff could not safely and efficiently perform the essentials of the job." We also concluded that

a "federal employer has the ultimate burden of persuasion in showing an inability to accommodate."

Id. at 478.7 According to appellants, these remarks mean that appellants can carry their trial burden

by demonstrating that they would be able to participate in prison programs if they were not HIV+.

DOC then would have to prove that appellants' seropositivity poses a significant risk that cannot be

accommodated.

       Appellants' contention is inconsistent with both our controlling precedent and the prior
panel's remand. Recently, we stated unequivocally that a disabled plaintiff must prove that he or she

is "otherwise qualified" by showing that he or she is capable of participation in a program, either

   6
     The district court noted that Treadwell v. Alexander, 707 F.2d 473 (11th Cir.1983), and
Fitzpatrick v. City of Atlanta, 2 F.3d 1112 (11th Cir.1993), "appear[ ] to have placed a more
stringent burden upon defendants in a Rehabilitation Act claim," Op. at 20, than did Texas Dep't
of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), in a
Title VII case. Consequently, it refused to follow Treadwell and Fitzpatrick, even though it
thought that they were on point and binding, and even though they came after Burdine. This was
improper for obvious reasons.
   7
   See also Fitzpatrick, 2 F.3d at 1127 n. 17 (dicta) (burden of persuasion on reasonable
accommodation issue rests with defendant); Prewitt v. United States Postal Serv., 662 F.2d 292,
308 (5th Cir. Unit A Nov.1981) (same).

                                                  7
with or without accommodation. Holbrook v. City of Alpharetta, Ga., 112 F.3d 1522, 1526 (11th

Cir.1997). If accommodation is necessary, "[t]he plaintiff retains at all times the burden of

persuading the jury that reasonable accommodations were available," and if that burden is met, the

defendant "has the burden of persuasion on whether an accommodation would impose an undue

hardship." Id.; see also Moses v. American Nonwovens, Inc., 97 F.3d 446, 447 (11th Cir.1996)

(same burdens). Likewise, in remanding the instant case, the prior panel held that "in order to obtain

relief under section 504 appellants must establish that ... they are "otherwise qualified'...." Harris,

941 F.2d at 1522 (emphasis added).

       Treadwell does not command a different result. In that case, this court suggested that a

Rehabilitation Act plaintiff need only "com[e] forward with evidence to make at least a facial

showing that his handicap can be accommodated" before the burden of persuasion shifts to the

defendant. 707 F.2d at 478. The issue the court found dispositive, however, was that the defendant

proffered evidence sufficient to show that the proposed accommodation—reassignment of some of

the plaintiff's job duties to other workers—would pose an undue burden. Id. Consequently, the panel

did not have to decide who bore the ultimate burden to show the availability of a reasonable

accommodation.

       Moreover, Treadwell 's dictum is distinguishable; the instant case challenges a federal

grantee's practice under section 504, whereas Treadwell involved a suit against a federal agency
under section 501, 29 U.S.C. § 791(b). Unlike section 504, section 501 requires agencies to

undertake affirmative action in favor of disabled people. See id. According to the Treadwell court,

"[t]he necessity for providing reasonable accommodation is derived from" section 501's affirmative

action mandate. 707 F.2d at 477-78. In light of this observation and section 501's purpose, which

is to make the government a model employer, a proof regime different from section 504 is

appropriate. Cf. Overton v. Reilly, 977 F.2d 1190, 1194 (7th Cir.1992) (citing Treadwell and

suggesting that actions pursuant to sections 501 and 504 are identical, with the possible exception




                                                  8
of the burden of persuasion on the issue of reasonable accommodation); Mantolete v. Bolger, 767

F.2d 1416, 1425 (9th Cir.1985) (Rafeedie, J., concurring) (noting differences between sections).

       In sum, we hold that the district court correctly concluded that appellants bear the burden of

persuading the finder of fact that they are "otherwise qualified" to participate in prison programs.

This burden may be satisfied by showing either that their seropositivity poses no significant risk to

others in the program or that reasonable accommodations are available to reduce the risk to an

insignificant level. If appellants demonstrate by a preponderance of the evidence that available

accommodations would make them "otherwise qualified," then DOC would have to prove that the

proposed accommodations pose an undue burden. We realize that "the evidence probative of the

issue of whether an accommodation ... is reasonable will often be similar (or identical) to the

evidence probative of the issue of whether a resulting hardship ... is undue," Willis v. Conopco, 108

F.3d 282, 286 (11th Cir.1997), but note that appellants' burden ordinarily operates at a higher level

of generality. That is, appellants will have to show that the suggested accommodation will diminish

sufficiently the risk of transmission and is reasonable " "in the run of cases....' " Id. at 286 n. 2

(quoting Barth v. Gelb, 2 F.3d 1180, 1187 (D.C.Cir.1993), cert. denied, 511 U.S. 1030, 114 S.Ct.

1538, 128 L.Ed.2d 190 (1994)). DOC would then be required to demonstrate that the proposed

accommodation is unreasonable "in the context of the particular agency's operations." Id.

                                                  2.
         People with contagious diseases are "otherwise qualified" if they meet all of the

prerequisites for program participation and if their participation would not pose a significant danger.

As stated supra, whether a person poses a significant threat depends on how the infection is

transmitted, how long carriers are contagious, the potential harm to third parties, and the probability

that the disease will be transmitted. Arline, 480 U.S. at 288, 107 S.Ct. at 1131. The central issue

before the district court on remand concerned the fourth factor—the probability of transmission in

specific programs. Appellants claim that the district court erroneously applied an unduly exacting

standard in ruling that they could not be "otherwise qualified" for a program if there were any risk


                                                  9
of transmission from HIV+ inmates' participation. We agree that the district court demanded proof

beyond that which the Act requires.

       In Arline, the Supreme Court held that persons with infectious diseases are "otherwise

qualified" unless, based upon four factors, their contagion poses "significant health and safety risks

" to others, 480 U.S. at 287, 107 S.Ct. at 1130 (emphasis added). At the same time, however, a

footnote suggested that one of these factors would have determinative weight in certain cases. The

Court remarked: "A person who poses a significant risk of communicating an infectious disease to

others in the workplace will not be otherwise qualified for his or her job if reasonable

accommodation will not eliminate that risk." Id. at 287 n. 16, 107 S.Ct. at 1131 n. 16 (emphasis

added). Thus, the Court seemed to distinguish between significant health risks and significant

transmission risks and implied that a less than significant risk of transmission, no matter what the

disease, alone could not suffice to justify a person's exclusion from a federally-funded program.

       The district court resolved the arguable tension between Arline 's significant health risk

standard and its significant transmission risk footnote by declaring the latter to be a misstatement.

It opined that "[a] strict reading of this could suggest that in analyzing whether reasonable

accommodations would render one "otherwise qualified,' the trial court should ignore the remaining

Arline factors ... and consider only the probability of transmission." Op. at 47. The district court

then asked: "May this Court not weigh the catastrophic nature, duration, and severity against a
lightweight probability of transmission?" Id. In the end, the district court concluded that a small

possibility of transmission—but more than a remote theoretical possibility—would suffice to justify

exclusion of HIV+ persons from programs receiving federal funds.

       This circuit's law is to the contrary. In Martinez v. School Bd. of Hillsborough County, Fla.,

861 F.2d 1502 (11th Cir.1988), we held that the district court erred in upholding the exclusion of

an HIV+ child from special education classes. The school board argued that the child might transmit

HIV to her classmates and teachers through saliva, tears, and excrement. The district court found

that a "remote theoretical possibility" of transmission existed in an integrated program and ordered


                                                 10
the student segregated. Id. at 1506. We rejected the district court's analysis because it required too

rigorous a showing; the likelihood of transmission did not "rise to the "significant' risk level that

is required" under section 504. Id. In announcing this standard, we cited the Arline footnote that the

district court in the present case declared irrelevant, and we remanded for "findings as to the overall

risk of transmission. ..." Id. (emphasis added).

       The district court in this case distinguished Martinez, which involved transmission through

means that were only theoretically possible (e.g., saliva and tears), from this case, which involves

established transmission pathways (e.g., sex and needle sharing). Although correct, this observation

does not vitiate Martinez 's announcement of a significant transmission risk test in cases involving

HIV. Moreover, it ignores the fact that the prior panel hearing this case, citing both Martinez and

the Arline footnote, endorsed the significant risk of transmission standard for this specific set of

facts,. See Harris, 941 F.2d at 1525 ("If, after reasonable accommodations, a significant risk of

transmission of the infectious disease still exists, a plaintiff will not be considered "otherwise

qualified' ....") (emphasis added).

       The district court bolstered its decision to deviate from the significant risk standard by

referring to non-circuit precedent, but gave the mistaken impression that courts have uniformly

eschewed the significant transmission risk test in HIV cases. We are aware that the Fourth and Fifth

Circuits have declared that HIV+ medical workers who pose a less than significant risk of
transmitting HIV may, consistent with section 504, be prohibited from performing invasive

procedures. See Doe v. Univ. of Md. Med. Sys. Corp., 50 F.3d 1261, 1266 (4th Cir.1995) ("Although

there may presently be no documented case of surgeon-to-patient transmission, such transmission

clearly is possible."); Leckelt v. Bd. of Comm'rs, 909 F.2d 820, 829 (5th Cir.1990) ("Even though

the probability that a health care worker will transmit HIV to a patient may be extremely low and

can be further minimized through the use of universal precautions, there is no cure for HIV or AIDS

at this time, and the potential harm of HIV infection is extremely high."). Other courts, however,

have followed closely the Supreme Court's direction in Arline. See Chalk v. United States Dist.


                                                   11
Court, 840 F.2d 701, 707-08 (9th Cir.1988) ("As authoritatively construed by the Supreme Court,

section 504 allows the exclusion of an employee only if there is "a significant risk of communicating

an infectious disease to others.' " (quoting Arline, 480 U.S. at 287 n. 16, 107 S.Ct. at 1131 n. 16));

New York State Ass'n for Retarded Children, Inc. v. Carey, 612 F.2d 644, 650 (2d Cir.1979)

(applying significant transmission risk standard to hepatitis B, which has identical transmission

pathways as HIV, is easier to transmit, but is rarely fatal); Doe v. Dolton Elementary Sch. Dist. No.

148, 694 F.Supp. 440, 445-46 (N.D.Ill.1988) (holding that student was likely to prevail and was

entitled to injunction where medical evidence showed no significant risk of HIV transmission in

school).

        Putting previous interpretations of Arline's footnote aside, we are convinced that the Arline

balancing test itself would require a significant risk of HIV transmission before sanctioning

segregation. Epidemiologic evidence indicates that transmission of HIV requires intimate, rather

than casual, human contact that involves the exchange of certain bodily fluids. Harris, 941 F.2d at

1503. At the same time, the record evidence in this case shows that HIV infection is incurable and

potentially fatal.8 Id. at 1502-03. Because the Arline factors point in different directions, then,

determining the overall significance of the risk to third parties depends in large part on assessing the

likelihood of behavior that would allow transmission of HIV. We realize that HIV infection frightens

most people because of its life-threatening nature. By enacting section 504, however, Congress has
directed its grantees to accept some risks and has prohibited them from unduly indulging their fears.

See Abbott v. Bragdon, 107 F.3d 934, 946-48 (1st Cir.1997) ("[A] service provider like Dr. Bragdon

is not entitled to demand absolute safety; he can rely upon the direct threat defense only in response

to significant risks.").


   8
    It was uncontested at trial that the normal progression of HIV infection leads to an
AIDS-related death. By the time that the facts of this case are considered anew, that fact may
have changed. On remand, we leave it to the district court's discretion how best to discharge its
responsibility to assess the dangers of HIV infection "based on reasonable medical judgments
given the state of medical knowledge. ..." Arline, 480 U.S. at 288, 107 S.Ct. at 1131 (internal
quotation omitted) (emphasis added).

                                                  12
        We therefore conclude that the district court erred in holding that a less than significant risk

of transmitting HIV justifies appellants' segregation from all programs. Further, a review of the

court's decision reveals that this legal conclusion permeated its program-specific findings.

Throughout its opinion, the court ruled that appellants were not "otherwise qualified" without any

attempt to quantify whether a sufficient risk of transmission existed to warrant categorical

exclusion.9 Because of the number of programs and activities at issue in this appeal, we will not

enumerate here each instance in which the district court based its ruling on a less than significant

risk of transmission. We offer, instead, three examples that demonstrate the court's failure to

quantify and appropriately balance the risks in each prison program.

        The district court's consideration of the first program is typical of its approach to many of

the challenged activities. Religious programs are held in the Tutwiler chapel, with inmates

supervised at all times by the chaplain or his assistants. Appellants argued at trial that the constant

supervision would prevent any unsafe behavior, as evidenced by the fact that there had been no

incident reports of risky activity during chapel services. Further, they claimed that any remaining

safety risk could be rendered insignificant by requiring HIV+ inmates to sit apart from general

population prisoners. The court concluded that appellants' evidence failed to prove them "otherwise

qualified" because the lack of incident reports "does not prove that potentially high risk behavior

(e.g., passing needles or syringes) never occurred, only that it has not been discovered." Op. at 62.10

In addition, the district court opined that appellants' suggested accommodations did not aid their

case; the separate sitting arrangements do not guarantee that high-risk behavior will not occur, the


   9
    We are aware that the district court occasionally used the correct legal terminology, but we
attach no importance to its choice of words because it is apparent that the court would find a
"significant" risk even where it conceded none existed. Compare Op. at 155 ("this Court holds
that integrating the out-of-the-prison programs would present a significant risk of transmitting
the deadly HIV virus"), with id. at 152 ("The probability that the HIV disease will be transmitted
is not significant in the [out-of-the-prison] programs where inmates are supervised by
correctional officers....").
   10
   The court repeated this reasoning in its analysis of 27 of 79 programs it considered at
Limestone and Tutwiler.

                                                  13
district court reasoned, because the civilian supervisors have no authority to discipline prisoners if

they do not remain separate. Id. at 68.11 These observations, however, rested on conjecture. First,

the court assumed that inmates in the programs would possess needles or syringes. Second, it

assumed that exchanges of such contraband occur but previously have been undetected. Third, it

assumed that inmates would not obey the dictates of their civilian supervisors, even though civilian

personnel are instructed to report disciplinary incidents to prison officials. Notably absent was any

attempt to determine whether or how often inmates have secreted contraband into prison programs,

whether or how often such contraband is able to be exchanged, and whether or how often such

exchanges lead to high-risk activity. The district court created a scenario for transmission sufficient

to satisfy an "any risk" standard by stringing its assumptions together, but failed to show that the

scenario satisfies the governing significant transmission risk test.

          Similarly, the district court held that DOC's exclusion of HIV+ inmates from maintenance

jobs at Tutwiler was justified. Although the prisoners are not supervised constantly, appellants

argued that the prison job board only allows those inmates with appropriate behavioral histories to

participate, thus minimizing the risk of high-risk behavior and, consequently, transmission. The

district court held that appellants are not "otherwise qualified" because "[t]he risk of the job board's

making an erroneous decision always exists," Op. at 211,12 and because even careful selection of

inmates who do not misbehave would not prevent potentially HIV-transmitting fights between
seropositive participants and others who oppose integration. Id. at 217.13 Again, the result reached
by the court reveals the difference between an "any risk" standard and a "significant risk" standard.

The court merely speculated about the job board's fallibility without discussing the potential



   11
        This rationale appeared 23 times in the opinion.
   12
        The court discussed and dismissed the job board on twelve separate occasions in its opinion.

   13
     The court justified segregation based on the possibility of HIV transmission from fighting in
sixteen different programs.

                                                   14
frequency of such errors14 and assumed that inmate violence was likely to occur in the program.

Moreover, although the district court conceded earlier in its opinion that the transmission risk from

violence is low, it nevertheless found appellants ineligible to participate. The district court's

combination of these factors may identify a conceivable pathway for transmission, but it does not

amount to the quantitative analysis necessary to find a significant risk.

          The district court's willingness to hypothesize is best exemplified by its treatment of certain

out-of-the-prison programs.15 Although inmates are supervised by corrections officers during such

programs and although the court conceded that "[t]he probability that the HIV disease will be

transmitted is not significant" in supervised programs, Op. at 152, the court nevertheless rejected

appellants' claims that they were "otherwise qualified." The court reasoned:

          [I]n the prison system, one must always be prepared for the unexpected. An automobile or
          other accident may incapacitate a guard and leave the inmates on the out-of-the-prison detail
          free to proceed without an escort. An inmate, temporarily healthy but facing the bleak future
          of all sero-positives, may have controlling impulses vastly different from those of healthy
          inmates who may be more concerned about the penal aspects of their future.

          ....

          If ... a correctional officer has been incapacitated in an accident, a female inmate with
          contempt for that officer could purposely implant, while the guard remains unconscious,
          blood containing HIV organisms from the HIV+ inmate[']s open wounds.

Op. at 153.16 Thus, the court found segregation justified even though the likelihood of transmission

in these programs depends, in this rather fanciful hypothetical situation, upon the unlikely
coincidence of possibilities that an accident might occur, a guard might be wounded and rendered

unconscious, and an HIV+ inmate might have both an open wound and a vendetta. It is exactly this




   14
    The court's speculation is especially inappropriate after it excluded evidence of the job
board's effectiveness. See infra section II.B.4.
   15
     Such programs include, for example, the Medium Custody Road Squad, in which inmates
are supervised while cutting grass and picking up trash alongside roadways by an armed guard.
   16
        The court used this identical reasoning to reject integration in 6 separate programs.

                                                    15
kind of speculation that the significant transmission risk test guards against and that section 504

prohibits.17

        These examples are by no means exhaustive and should not be read to suggest that proper

application of the appropriate standard will necessitate seropositive inmates' participation in all (or

even the preceding) programs. To the contrary, the court may find, upon appropriately quantifying

the risk inherent in certain activities, that integration is inappropriate. Appellants candidly admit,

for instance, that HIV+ prisoners might properly be excluded from "runner jobs," in which inmates

perform errands for DOC personnel and have tremendous access to various parts of the prison, often

without supervision. Appellants' Reply Br. at 12. We only hold that the district court erroneously

required appellants to disprove all conceivable (and even fanciful) risks of transmission, and that

this ruling requires remand for application of the proper standard.

                                                  3.

        Our conclusion that the district court imposed too strict a burden on appellants does not end

this case. Instead, we must address the court's alternative ruling that prisoners invoking section 504

must clear a hurdle that non-inmate plaintiffs need not. Specifically, the court held that inmates'

statutory rights under the Act may be subordinated to correctional concerns, just as some of their

constitutional rights may be.18 Under Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 2261, 96

   17
    Indeed, we submit that the district court's guesswork in these programs would fail even its
own test, which prohibits segregation based on a theoretical risk of transmission.
   18
      The dissent, although conceding that the Act applies to state prisons as the law of the case,
suggests that "the issue may merit en banc attention." Because the law of the case doctrine
precludes us from redeciding this issue, we cannot quarrel here with the Fourth Circuit's recent
decision in Amos v. Md. Dep't of Pub. Safety & Correctional Servs., --- F.3d ---- (4th Cir.1997),
that the Act does not apply to state prisons. We note, however, that DOC has conceded in this
litigation that section 504 is a remedy available to state prisoners. See Harris, 941 F.2d at 1522.
Moreover, other circuits have squarely confronted the issue and held that state prisoners are
entitled to protection under the Act. See Yeskey v. Comm. of Pa. Dep't of Corrections, 118 F.3d
168, 174 (3d Cir.1997); Crawford v. Ind. Dep't of Corrections, 115 F.3d 481, 487 (7th
Cir.1997); Bonner v. Lewis, 857 F.2d 559, 562 (9th Cir.1988). The only other circuit to hold
that the Act does not apply to state prisoners did so in a cursory manner. In Williams v. Meese,
926 F.2d 994, 997 (10th Cir.1991), the court held that a federal prisoner was not entitled to
protection under section 504 because the "Federal Bureau of Prisons does not fit the definition of
"programs or activities' governed by that section." In White v. Colorado, 82 F.3d 364, 367 (10th

                                                  16
L.Ed.2d 64 (1987), "when a prison regulation impinges on inmates' constitutional rights, the

regulation is valid if it is reasonably related to legitimate penological interests."19 The district court

held that appellants were not "otherwise qualified" unless they could prove both that they were

capable of participating safely in the program ("the Arline test," supra ) and that their participation

would not cause disciplinary problems ("the Turner test"). Because the district court found that

there was a likelihood of violence whenever HIV+ inmates are mixed with general population

prisoners, it concluded that the Turner test rendered appellants not "otherwise qualified."20 This

holding is erroneous.

          The district court's freedom to determine the applicable "otherwise qualified" standard was

constrained by the prior panel's remand. In setting out what appellants had to prove on remand, the

prior panel discussed only the Arline test. Harris, 941 F.2d at 1525-27. Such silence is significant

because the court was acutely aware of the Turner test. Immediately prior to discussing section 504,

the panel rejected appellants' constitutional right to privacy claim under Turner. Id. at 1512-21.

Crucially, appellants' privacy claim attacked the same condition as their Rehabilitation Act

claim—their segregation. If both causes of action were subject to Turner, then, the court should

have rejected both upon determining that either failed the Turner test. Because the prior panel did


Cir.1996), the court cited Williams, without significant discussion, for the categorical proposition
that the Act "does not apply to issues of prison employment."
   19
        Under Turner, several factors bear on a regulation's validity:

                  (a) whether there is a "valid, rational connection" between the regulation and a
                  legitimate government interest put forward to justify it; (b) whether there are
                  alternative means of exercising the asserted constitutional right that remain open
                  to the inmates; (c) whether and the extent to which accommodation of the
                  asserted right will have an impact on prison staff, inmates and the allocation of
                  prison resources generally; and (d) whether the regulation represents an
                  "exaggerated response" to prison concerns.

          Harris, 941 F.2d at 1516.
   20
     Turner was the sole ground on which the district court rejected appellants' participation in
certain programs. See, e.g., Op. at 369-76 (Limestone staff barber jobs). Usually, however, the
court cited Turner as a justification for segregating HIV+ inmates after having found that they
could not satisfy Arline.

                                                   17
not, we conclude that it ruled that the Arline test, unadorned by Turner, was applicable. On remand,

that standard was the law of the case.21

        As the law of the case, the prior holding bound the district court "unless the presentation of

new evidence or an intervening change in the controlling law dictate[d] a different result, or the

appellate decision [was] clearly erroneous and, if implemented, would work a manifest injustice."

Litman v. Mass. Mut. Life Ins. Co., 825 F.2d 1506, 1510 (11th Cir.1987) (en banc), cert. denied, 484

U.S. 1006, 108 S.Ct. 700, 98 L.Ed.2d 652 (1988). Neither circumstance is present in the instant

case. Since this court's prior opinion, neither this circuit nor the Supreme Court has suggested, much

less held, that the Turner test applies to inmates' claims under the Rehabilitation Act.

        The panel's refusal in Harris to superimpose Turner upon section 504 also was not clearly

erroneous. Although we are aware that two of our sister circuits have stated that Rehabilitation Act

claims ought to be subject to the Turner test, Torcasio v. Murray, 57 F.3d 1340, 1355-56 (4th

Cir.1995) (dicta), cert. denied, --- U.S. ----, 116 S.Ct. 772, 133 L.Ed.2d 724 (1996); Gates v.

Rowland, 39 F.3d 1439, 1447 (9th Cir.1994),22 there are several reasons why the Harris panel's

approach makes better sense. First, although Turner serves to restrain the judiciary from interfering




   21
     The district court suggested that this court's prior opinion inserted the Turner test sub
silentio, citing two occasions where the court referred to the interests of prison officials. See
Harris, 941 F.2d at 1522 n. 41 (noting the "congruence of the Act's goals with those of prison
officials"); id. at 1527 (noting that the Act balances rights of disabled inmates against "the
legitimate concerns of the prison-grantee"). Neither of these statements suggests that the Turner
test applies, nor are they inconsistent with applying section 504's test alone; consideration of
prison needs is appropriate within the statutory framework because the Act's reasonable
accommodation and undue burden inquiries are always contextual. In Crawford v. Ind. Dep't of
Corrections, 115 F.3d 481, 487 (7th Cir.1997), for example, the court cited Turner and noted
that "[t]erms like "reasonable' and "undue' are relative to circumstances, and the circumstances of
a prison are different from those of a school, an office, or a factory, as the Supreme Court has
emphasized in the parallel setting of prisoners' constitutional rights." The court did not,
however, hold that Turner might render lawful an otherwise clear case of disability
discrimination.
   22
    The Third Circuit has "flagged" this issue, but has not yet determined whether Turner
applies to claims under section 504 or the ADA. Yeskey v. Commonwealth of Pa. Dep't of
Corrections, 118 F.3d 168, 175 (3d Cir.1997).

                                                 18
in prison matters, a job best left to the legislative and administrative branches,23 482 U.S. at 84-85,

107 S.Ct at 2259, rights under the Rehabilitation Act emanate from those branches, and thus ought

not be subject to Turner 's requirements without a congressional indication to that effect. Cf. Arline

v. Sch. Bd. of Nassau County, 772 F.2d 759, 762 n. 8 (11th Cir.1985) ("We would be acting beyond

our authority to read into section 504 limitations which Congress chose not to establish when it

clearly could have done so."), aff'd, 480 U.S. 273, 107 S.Ct. 1123, 94 L.Ed.2d 307 (1987). Second,

the Turner test is in some ways duplicative of the inquiry under the Act. Applied in the prison

setting, section 504's reasonable accommodation and undue burden inquiries, like Turner's inquiry,

consider the practicalities of accommodating individual rights within established programs and do

not require integration where it would pose serious problems that cannot be eliminated consistent

with effective and efficient prison administration. The Act thus mandates judicial consideration of

interests particular to the prison system. Finally, it has not been this court's practice to subject

prisoners' statutory claims to the Turner test. See, e.g., Gambetta v. Prison Rehabilitative Indus.

& Diversified Enters., Inc., 112 F.3d 1119, 1123 n. 4 (11th Cir.1997) (holding that prisoners not

categorically excluded from protection of Fair Labor Standards Act; rejecting blanket exemption

from statute where program in question serves rehabilitative purpose); Lawson v. Singletary, 85

F.3d 502, 508-11 (11th Cir.1996) (holding that prisoners covered by Religious Freedom Restoration

Act to extent intended by Congress).24

   23
     Of course, Turner also serves federalism concerns by keeping federal authority out of state
prison management unless it is clear that Congress intended such an intrusion. See Torcasio, 57
F.3d at 1345. This reasoning, however, does not justify subjecting the Rehabilitation Act to
Turner 's limits because we already have decided that the Rehabilitation Act applies to state
prisons. See Harris, 941 F.2d at 1522 n. 41; supra note 18. The dissent takes us to task for
"second-guessing the legitimate penological decisions of state authorities." Because such review
of DOC's decisions has been legislatively mandated (or, to use the dissent's more innocuous
phrase, "statutorily prompted") by section 504, however, our inquiry here does not "run[ ]
squarely counter to the most basic notions of comity," but rather fulfills the role Congress has
created for the courts.
   24
     The court in Lawson actually subjected the inmates' claim to the Turner test, but only
because it determined that Congress so intended. The opinion clearly indicates, however, that
Congress' intent, and not the simple fact of incarceration, determines the scope of inmates'
statutory rights.

                                                  19
       Thus, the district court erred by grafting Turner's constitutional standard onto this court's

stated statutory test. We therefore hold that the district court's judgment cannot be affirmed based

upon its alternative Turner rationale.

                                                  4.

        Appellants next assert that the district court prohibited them from proving that a reasonable

accommodation exists that would make them "otherwise qualified." Specifically, they object to the

court's exclusion of evidence of DOC's ability to conduct, as a precondition to program participation,

an individualized assessment of seropositive inmates' propensities to engage in high-risk activities.

We conclude that the district court erred.

       On several occasions during trial, appellants sought to introduce evidence about the prison

classification process, but the district court prohibited them from doing so. For instance, appellants

attempted to elicit testimony explaining Limestone's and Tutwiler's "job boards" and "classification

teams," which together gather psychological, penological, and behavioral data about all inmates and

consider such information in making program recommendations and assignments. The district court

ruled that, because this case was remanded for a program-by-program assessment of risk, see supra

note 5, it was precluded from considering evidence about DOC's ability to make, within programs,

inmate-by-inmate determinations of eligibility. The district court therefore assumed that DOC's

capacity to select inmates who do not pose a significant risk of transmitting HIV was not relevant
to the case on remand.

       To the contrary, appellants' proffered evidence was central to the question before the district

court. One of the things that appellants were required to prove on remand was that, if they could

not participate in prison programs safely under current conditions, there existed reasonable

accommodations that would allow seropositive prisoners to be integrated safely. A mechanism

whereby those least likely to engage in high-risk behavior would be selected for a program may be

an accommodation that could reduce the risk of transmission to an insignificant level in a particular

program. Further, appellants offered to prove that such accommodation was reasonably affordable


                                                 20
and administratively feasible, also relevant to the court's reasonable accommodation determination,

as DOC already classifies prisoners and recommends them for various programs based upon their

individual histories. Thus, the district court abused its discretion in excluding evidence pertinent

to a fundamental issue in the case.25

        We do not lightly upset a district court's order based upon evidentiary error. Rather, "[w]e

overturn evidentiary rulings only when the moving party has proved a substantial prejudicial effect."

Fed.R.Civ.P. 61; Judd v. Rodman, 105 F.3d 1339, 1341 (11th Cir.1997). Here, however, we already

have decided that remand is necessary.         Further, by negating one of appellants' principal

arguments—namely, that they could be accommodated reasonably—the district court's error itself

necessitates remand because it calls into question the propriety of the court's judgment on the merits

with respect to each program for which appellants suggested individualized assessment as a

reasonable accommodation. "Since the district judge's ruling precluded [the plaintiff] from

establishing a prima facie claim, it cannot be characterized as harmless error." Allstate Ins. Co. v.

Swann, 27 F.3d 1539, 1544 (11th Cir.1994).

                                                  5.

         The prior panel's remand demanded an inquiry into each prison program from which

appellants had been excluded. The district court, however, instructed the parties that it would not

entertain argument about several programs that are not held on site at Limestone or Tutwiler but that

are available to general population inmates from both facilities. Specifically, the court refused to

consider appellants' potential integration into work release programs, correctional industries,

residential substance abuse programs, a sex offender treatment program, and boot camps.26

   25
     The district court impliedly recognized this error in its opinion by attempting to evaluate
individual assessment as a reasonable accommodation. The court then rejected such
accommodation based upon the fallibility of the selection process. Its ruling, however, is tainted
by the fact that it excluded evidence tending to shed light on the ability of DOC to predict
high-risk behavior reliably.
   26
    The district court also ruled that it would not consider integrating HIV+ prisoners into
general population housing. Appellants objected to that decision, but did not raise it on appeal.
We deem the issue abandoned. See Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n.

                                                 21
Appellants contend that these programs fall within the scope of the remand and that it was therefore

error to prevent them from proving that they could participate safely.

        Appellants' argument is well taken. The prior panel's remand was not so limited; it directed

the court to consider "each program and activity from which HIV-positive prisoners are being

excluded...." Harris, 941 F.2d at 1527. Indeed, the panel even mentioned work release as a program

in which appellants have been denied participation. Id. at 1522 n. 40. In view of the Rehabilitation

Act's expansive definition of "program or activity," see 29 U.S.C. § 794(b)(1)(A) (holding that

"program or activity" includes "all of the operations" of state agencies and departments receiving

federal funds), we agree with appellants that the off-site programs appear to have been a proper

subject for retrial.27 DOC responds that the prior panel ruled that segregated housing did not violate

seropositive inmates' right to privacy and, because these off-site programs are residential in nature,

impliedly held that such activities fall outside of section 504. This argument proves too much; by

finding DOC's practices constitutional, this court did not conclude that they comported with section

504. Otherwise, there would have been no reason for a remand to assess whether program

segregation violated the statute.28


6 (1989).
   27
     See also 28 C.F.R. § 42.540 ("program" includes the operations of department of
corrections); Nondiscrimination Based on Handicap in Federally Assisted Programs, 45
Fed.Reg. 37,620, 37,630 (1980) (listing corrections agencies obligated to make, including
structural modifications to accommodate disabled persons, "jails, prisons, reformatories and
training schools, work camps, reception and diagnostic centers, pre-release and work-release
facilities, and community-based facilities").
   28
     In rejecting appellants' argument, the district court also relied in part on the fact that, under
Meachum v. Fano, 427 U.S. 215, 224-25, 96 S.Ct. 2532, 2538-39, 49 L.Ed.2d 451 (1976),
inmates have no constitutional right to be housed at a specific facility. We have no quarrel with
the court's statement, as far as it goes. It is true that, absent some state law entitlement to be
housed in a particular place, an inmate does not have an interest protected by procedural due
process in avoiding transfer. See id.; Montanye v. Haymes, 427 U.S. 236, 242, 96 S.Ct. 2543,
2547, 49 L.Ed.2d 466 (1976). To say this, however, does not absolve prison officials of their
responsibility to comply with other substantive guarantees of federal law; just as an equal
protection challenge would be proper if prison authorities chose to incarcerate blacks and whites
in separate prisons, see Lee v. Washington, 390 U.S. 333, 88 S.Ct. 994, 19 L.Ed.2d 1212 (1968),
so, too, is a Rehabilitation Act challenge appropriate where prison authorities choose separate
facilities for the disabled.

                                                  22
       Our conclusion does not command that these programs be integrated. We express no opinion

on that subject, especially given the emptiness of the record regarding such activities. We hold only

that the district court must consider whether section 504 mandates integration.

                                                  6.

        The parties and the district court agree that certain programs could be integrated safely by

adding corrections personnel, in some cases a single officer. The district court, however, rejected

appellants' argument that DOC should add staff as an accommodation. Because DOC does not

receive from the Alabama legislature all of the funds it requests and because its funding had, at the

time of trial, recently been reduced, the district court found that the addition of even a single

corrections officer to integrate HIV+ inmates into certain programs would impose an undue burden

upon DOC. This determination was clearly erroneous.

       Appellants carried their burden of showing that hiring an additional officer is financially

reasonable " "in the run of cases,' " Willis v. Conopco, 108 F.3d 282, 286 n. 2. (11th Cir.1997)

(quoting Barth v. Gelb, 2 F.3d 1180, 1187 (D.C.Cir.1993)), by demonstrating that a new officer

would not occupy an unreasonably large portion of DOC's budget. It is uncontested that DOC's

operating budget was $178 million in 1993 and $163 million in 1994. It is also uncontested that the

first-year cost of an additional corrections officer is $24,483. Appellants satisfied their burden by

citing these stipulated figures. See United States v. Bd. of Trustees for the Univ. of Ala., 908 F.2d
740, 751 (11th Cir.1990) ("In light of UAB's annual transportation budget of $1.2 million, an

expenditure of $15,000, plus occasional amounts ..., is not likely to cause an undue burden on

UAB.") (citations omitted).

       Consequently, to be permitted to segregate HIV+ inmates from a program where a single

officer would provide adequate safety, it is DOC's duty to demonstrate that hiring one new officer

is unreasonable " "in the context of the particular agency's operations.' " Willis, 108 F.3d at 286 n.

2. This DOC has not done. That DOC receives fewer funds than it requests or that it has fewer

officers than it would like says nothing about its ability to hire a single officer within its current


                                                 23
budget. Trial evidence indicated that DOC has tremendous spending discretion within its budget

and can request necessary additional funds from the legislature. Additionally, a defense witness

conceded that DOC would save money if it were to discontinue some of the "separate but equal"

programs currently operated for seropositive prisoners. Such funds presumably could finance an

additional guard to facilitate integration.

        We therefore conclude that, based upon the evidence before it, the district court clearly erred

in finding that any expenditure by DOC to hire additional staff would be an "undue burden." We

leave open on remand the possibility that sufficient evidence may be adduced as to the

unreasonableness of adding even a single guard, but note that DOC must show that such an

accommodation would be unreasonable given the demands of its present budget. See 28 C.F.R. §

42.511(c) (stating that undue hardship inquiry should consider "(1) [t]he overall size of the

recipient's program with respect to number of employees, number and type of facilities, and size of

budget; (2)[t]he type of the recipient's operation, including the composition and structure of the

recipient's workforce; and (3)[t]he nature and cost of the accommodation needed").29

                                                  C.

        To summarize, we hold that the district court correctly allocated the burdens of persuasion

at trial. We vacate the judgment of the district court and remand for further proceedings, however,

because the district court determined that appellants were not "otherwise qualified" based upon two
errors of law: (1) the court required appellants to disprove all conceivable risks of transmission in

prison programs, even though the statute requires only the elimination of significant risks; and (2)

the court disqualified appellants from programs in which penological interests, such as eliminating

completely the potential for inmate violence, purportedly justified segregation. On remand, the

district court must reassess whether appellants are "otherwise qualified" in light of our decision.

Moreover, the court should consider evidence that demonstrates DOC's ability to integrate programs

   29
    Although this provision is located in a section of the Department of Justice's Rehabilitation
Act regulations titled "Employment", the first and third factors it suggests are equally relevant to
evaluating whether an accommodation would be an undue burden in a non-employment case.

                                                  24
by selecting only those individuals unlikely to engage in high-risk behavior. The court also must

examine the possibility of integrating the off-site programs discussed in section II.B.5. Finally, the

court should not find that DOC has satisfied its burden of proving that suggested accommodations

are unreasonable simply upon a showing that DOC receives less than its requested level of funding

from the state or upon a showing that DOC has fewer officers than it would like.30

                                                 III.

        Near the beginning of trial on remand, appellants moved to recuse Judge Varner from

hearing the case. They appeal the district court's denial of that motion, claiming that recusal was

required because the son of DOC's lead counsel is Judge Varner's law clerk and because Judge

Varner revealed that he discussed the case with his son, a doctor, who expressed his view that there

was a risk of HIV transmission in some of the programs at issue on retrial. We review the judge's

recusal ruling for an abuse of discretion. Loranger v. Stierheim, 10 F.3d 776 (11th Cir.1994). On

appeal, appellants forward an additional ground for disqualification; they claim that the judge's trial

comments evinced a pervasive hostility toward the members of the appellant class. We are

concerned by the allegation that the judge and his son discussed disputed matters, but avoid deciding

whether recusal was necessary. The remaining allegations are not disqualifying.

        The relevant provisions of the recusal statute read as follows:

        (a) Any justice, judge, or magistrate of the United States shall disqualify himself in any
        proceeding in which his impartiality might reasonably be questioned.

        (b) He shall also disqualify himself in the following circumstances:



   30
     We do not reach several issues argued on appeal. First, DOC contends that it may face
liability in suits by prisoners and the public if programs are integrated and innocents are infected.
Second, appellants challenge several of the district court's factual findings, including its reliance
on the "Ingram Study," an inmate opinion survey purporting to show an increased likelihood of
violence after integration, and its conclusion that certain behavior (sex between women,, sports,
fighting, and sharing barbering equipment) posed a high risk of HIV transmission. Third, DOC
suggests that the Prison Litigation Reform Act, 18 U.S.C. § 3626, limits appellants' ability to
secure sweeping injunctive relief. On remand, the district court is free to examine these issues'
bearing on the merits of appellants' claims and, if appropriate, on the necessity and scope of
relief.

                                                  25
                (1) Where he has a personal bias or prejudice concerning a party, or personal
                knowledge of disputed evidentiary facts concerning the proceeding....

28 U.S.C. § 455. Appellants argue that Judge Varner's trial comments and the hiring of DOC's

counsel's son create a reasonable question about the judge's partiality under section 455(a) and that

Judge Varner's discussion with his son gave him knowledge of disputed facts in violation of section

455(b)(1). In the alternative, appellants claim that all of these facts considered together would lead

a reasonable person to question the judge's impartiality. See Parker v. Connors Steel Co., 855 F.2d

1510, 1525-26 (11th Cir.1988), cert. denied, 490 U.S. 1066, 109 S.Ct. 2066, 104 L.Ed.2d 631 (1989)

(adopting totality of the circumstances approach in evaluating allegations under section 455(a)).

         At trial, Judge Varner made a number of comments that appellants claim demonstrate his

bias against inmates with HIV. The parties agree that the judge's bias, if any, did not stem from an

extrajudicial source. As such, recusal under section 455(a) is only required if the comments reveal

an antipathy for appellants intense enough to make fair judgment impossible. Liteky v. United

States, 510 U.S. 540, 554-56, 114 S.Ct. 1147, 1157, 127 L.Ed.2d 474 (1994).

        We conclude that the judge's trial statements do not indicate a bias so severe as to call into

question the fairness of the trial. The court opined on numerous occasions that inmates are

unpredictable and untrustworthy, and it also pressed DOC's counsel to elicit trial testimony about

the horrors of dying from AIDS. The former statement is perhaps an unfair generalization insofar

as it applies to certain members of the appellant class, but it is not proof of severe prejudice. See
id. (referring, as example of disqualifying bias, to case where district court allegedly professed

difficulty in objectivity toward German-Americans because their " "hearts are reeking with

disloyalty' ") (quoting Berger v. United States, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481 (1921)). The

latter statement is unobjectionable; the court requested evidence on the amount of suffering

involved in advanced cases of HIV infection because it believed such information was part of the

legal test that it had to apply.31

   31
    Arline 's fourth factor is "the probabilities the disease will be transmitted and will cause
varying degrees of harm." 480 U.S. at 288, 107 S.Ct. at 1131 (quotation omitted). In chambers,

                                                 26
        Appellants also allege that Judge Varner was obligated to recuse himself under section

455(a) because the fact that his law clerk's father was lead counsel for DOC creates a reasonable

question about the judge's impartiality. It is true that a law clerk's involvement in a case and his or

her relationship to one of the parties may constitute grounds for the judge's disqualification. See,

e.g., Parker, 855 F.2d at 1524-25 (recusal was required where judge's clerk was son of senior partner

in firm representing party, the father was himself a former law clerk to the judge, the son held a

hearing with the parties present but not the judge, and the judge thanked the law clerk in his order

for the clerk's extensive work on the case).

        Law clerk conflicts, however, are not necessarily judicial conflicts, and we conclude that

Judge Varner did not abuse his discretion in denying disqualification on this ground. The court

stated unequivocally in its order that the clerk had no involvement in this case, and the clerk's father

submitted an affidavit representing that he instructed his son not to take any action with regard to

the suit. These averments satisfy us that disqualification was not required. See Parker, 855 F.2d

at 1525 (recusal "might have been avoided if [the judge] would have taken steps to isolate [the clerk]

from this case"); Hunt v. American Bank & Trust Co., 783 F.2d 1011, 1015-16 (11th Cir.1986) ("If

a clerk has a possible conflict of interest, it is the clerk, not the judge, who must be disqualified.").

        As a final basis for disqualification, appellants allege that, during an in-chambers status

conference, Judge Varner revealed that he had discussed disputed material issues with his son.

Counsel for appellants testified that "Judge Varner stated that he had spoken with his son, who is

a doctor, about transmission of the virus and that his son had told him that there was a risk of

transmission in some of the contexts subject to retrial on remand." Affidavit of Margaret Winter,

Sept. 6, 1994, at 1-2. DOC's counsel rejoined that "Judge Varner did not make any statement closely

resembling" appellants' account. Affidavit of David Byrne, Jr., Sept. 8, 1994, at 2. DOC contends



the court merely inquired about the phrase "will cause varying degrees of harm." We do not
necessarily agree with the court's view of this snippet of Arline (as the balancing test already
accounts for "the severity of the risk"), but appellants unfairly take the court's legal inquiry out
of context.

                                                   27
that the discussion in chambers concerned the issue of how HIV can be transmitted, that Judge

Varner expressed his view that the medical community was divided on the issue, and that Judge

Varner also mentioned his son's illegible handwriting, but that the latter statement was unconnected

to the prior discussion about issues for trial. Id. For his part, Judge Varner did not deny that the

conversation took place, nor did he dispute appellants' characterization of the substance of the

discussion. Instead, the court held that the conversation could not form the basis for recusal because

of the court's conclusion that the reported statements were not disputed in the case; the court then

quoted portions of this court's prior opinion acknowledging that the risk of HIV transmission exists

in prisons generally. Opinion of Sept. 19, 1994, at 11-12.

        Extrajudicial fact-finding by a judge is improper because it cannot be "tested by the tools

of the adversary process." Edgar v. K.L., 93 F.3d 256, 259 (7th Cir.1996), cert. denied, --- U.S. ----,

117 S.Ct. 949, 136 L.Ed.2d 837 (1997). That is, " "a judge cannot be, or cannot appear to be,

impartial if he has personal knowledge of evidentiary facts that are in dispute.' " United States v.

Alabama, 828 F.2d 1532, 1545 (11th Cir.1987), cert. denied, 487 U.S. 1210, 108 S.Ct. 2857, 101

L.Ed.2d 894 (1988) (quoting Thode, Reporter's Notes to Code of Judicial Conduct 62 (1973)).

Consequently, section 455(b)(1) creates a self-enforcing duty to recuse if a judge, outside of his or

her judicial capacity, gains knowledge of facts material to the case. Id.

       Whether section 455(b)(1) mandated disqualification is a difficult question based upon the
record before us. We cannot tell from the parties' representations or the court's order what

information Judge Varner's doctor-son may have conveyed to him. It is unclear, for instance, what

appellants' counsel meant by the phrase "some of the contexts subject to retrial on remand."

Consequently, we are unable to assess whether the conversation covered the risks of transmission

in prison programs, an issue that is both material to the case and in dispute. Given these

circumstances, we could remand for a hearing into the nature of the alleged conversation, see Easley

v. University of Mich. Bd. of Regents, 853 F.2d 1351, 1358 (6th Cir.1988), so that we might better

assess whether disqualification was necessary, but we do not do so here. We think it wise to reserve


                                                  28
judgment on whether or not Judge Varner's conversation with his son required recusal under section

455(b)(1). Likewise, we decline appellants' invitation to find Judge Varner's conduct inappropriate

under section 455(a)'s more general proscription against partiality.

        Instead, we invoke this court's supervisory authority over the courts of this circuit and chart

a middle course. Because we are remanding this case for further proceedings, reassignment to a

different judge is an option pursuant to 28 U.S.C. § 2106, which permits courts of appeals to

"require such further proceedings to be had as may be just under the circumstances." In deciding

whether to reassign, we consider whether the district judge would have difficulty putting his or her

previous views and feelings about a case aside on remand, whether assignment to a new judge is

appropriate to preserve the appearance of justice, and whether reassignment will create such waste

and duplication as to outweigh its benefits. Chudasama v. Mazda Motor Corp., 123 F.3d 1353 (11th

Cir.1997); United States v. Remillong, 55 F.3d 572, 577-78 n. 12 (11th Cir.1995).

        Even a cursory review of the district court's order reveals Judge Varner's unwillingness to

put aside the conclusions he reached after the first trial. In response to the district court's blanket

conclusion after the original trial that appellants were not "otherwise qualified" because high-risk

behavior occurs in prisons, the prior panel directed the district court to examine each challenged

program, stating that "general findings and prison policy" could not justify segregation. Harris, 941

F.2d at 1527. Nevertheless, on remand, the district court relied heavily on generalization and

deference to prison policy in rejecting appellants' claims. In each program for which the court

determined that appellants were not "otherwise qualified," it found that high-risk behavior and

violence against seropositive inmates were likely because they occur in prisons generally.32 Further,




   32
     Specifically, the district court selected segments of this court's prior opinion—wherein the
panel observed that "the elimination of high risk behavior ... is impossible," id. at 1520, and that
total integration of the prison "could likely degenerate into active violence," id. at 1518—and
then stated that there is no reason to believe that these general observations about prison are not
also true of specific programs. The court repeated these end-runs around the prior panel's
remand in discussing no less than 39 of 43 programs at Tutwiler.

                                                  29
the court gave unbridled deference to the decisions of prison officials, repeating the following

statement either verbatim or in substance in its analysis of nearly every challenged program:

        This Court is ill-suited to instruct prison officials on the likelihood of the occurrence of high
        risk behavior. This Court is even more ill-suited to instruct the prison system on when and
        how to prevent such conduct when they [sic], along with their managers and medical
        officials, determine that such conduct is likely. Because Defendant/Prison system has
        decided that such conduct is likely, and because of the catastrophic severity of the
        consequences if such conduct does occur, this Court holds that integrating [the specific
        program] would present a significant risk of transmitting the deadly HIV virus.

Op. at 63; see also passim. The district court's deference to policy makers, however, led it to

abandon its judicial role. See, e.g., id. at 461 ("Regardless of how much evidence is presented, no

court will ever be as qualified as prison officials to judge the particular needs of a penal institution.")

(emphasis added).33

        Reassignment is also necessary to preserve the appearance of justice. First, we believe that

reasonable people would be troubled by the judge's alleged conversation with his doctor-son about

the case and about disputed evidence in addition to the court's unwillingness to forego

generalizations about prison in analyzing particular programs. Although we lack sufficient evidence

to conclude that the discussion mandated recusal, we are convinced that the situation is questionable

enough to warrant reassignment. Second, the court brushed aside both precedent, see supra note 6,

as well as the prior panel's remand, see supra sections II.B.3. & 5, to rule against appellants.

Finally, appellants' other grounds for disqualification, although alone insufficient to mandate recusal,
add to the totality of the circumstances and increase the appearance of injustice.

        We are not unmindful that this case is substantial, having spawned a voluminous record and

having been litigated for nearly ten years. At the same time, however, we note that the first appeal

of this case disposed of all but one of appellants' constitutional claims, and appellants have not now

appealed the second denial of the remaining claim.                 Thus, the only issue left is the

program-by-program analysis under section 504. This will surely involve additional fact finding,


   33
     The court also imposed the Turner test upon appellants' prima facie case, thereby giving
prison officials added deference. See supra section II.B.3.

                                                    30
but we are convinced that this additional burden is outweighed by the needs of justice and by

Congress' broad mandate that "[n]o otherwise qualified handicapped individual ... shall, solely by

reason of his handicap, ... be subjected to discrimination under any program or activity receiving

Federal financial assistance...." 28 U.S.C. § 794.

                                                  IV.

        Accordingly, the decision of the district court is VACATED. We REMAND for further

proceedings consistent with this opinion and with the direction to the Chief Judge of the Middle

District of Alabama that the case be REASSIGNED to a different district judge for further

proceedings.

        COX, Circuit Judge, concurring in part and dissenting in part:

        I respectfully disagree with the majority's resolution of five of the issues addressed in its

opinion. First, § 504 of the Rehabilitation Act of 1973 does not require federal-fund grantees and

their wards to live with even slight odds of contracting a painful and fatal disease. Second,

prisoners' rights under the Rehabilitation Act, like their constitutional rights, are properly limited

by legitimate penological concerns such as security. Third, the district court correctly concluded

that providing the additional security necessary to integrate the plaintiffs in all the programs at issue

here would be an undue burden on the Department of Corrections. Fourth, the district court should

not be mandated to consider programs requiring residential integration when—as the majority
found—the plaintiffs have waived the argument that the district court should have addressed their

rights to residential integration. I would accordingly find no error in the district court's treatment

of these issues. Finally, this action does not merit the extreme measure of reassignment to another

district judge. I agree, however, with the majority's holding that the district court's exclusion of

evidence of prisoner classification as a reasonable accommodation requires remand.1 Thus, I would

vacate the judgment and remand solely for the district court to reconsider whether inmate-specific



   1
    See part II.B.4 of the majority opinion.

                                                   31
risk evaluation is a reasonable accommodation in light of the excluded evidence concerning inmate

classification.

                                              I. Background

          This litigation began ten years ago in reaction to a legislatively mandated AIDS-protection

program in Alabama's prison system. Under statute,2 the Alabama prison system tests all entering

inmates for infection with the Human Immunodeficiency Virus, which causes AIDS.3 Those

inmates testing positive for the virus are segregated from the general inmate population in "HIV+"

units, one for men at the Limestone Correctional Facility and one for women at the Julia Tutwiler

Prison for Women.4 So segregated, the HIV-positive inmates are unable to participate in many

programs and activities with the HIV-negative, general population.5

          The plaintiff class challenged this practice as a violation of several constitutional rights and

of § 504 of the Rehabilitation Act of 1973.6 The district court denied relief after a bench trial. The

court concluded that no constitutional rights were violated. It further concluded that the plaintiffs

were not "otherwise qualified," as required for rights to arise under § 504, to participate in integrated

programs because their participation would pose a significant HIV-transmission risk. This court

affirmed judgment against the plaintiffs on the constitutional claims. This court held, however, that

§ 504 requires a program-by-program analysis to determine if the plaintiffs merit relief.7 The action

was remanded to the district court for this fact-finding. This court directed the district court
especially to evaluate the risk of HIV transmission in each program. In doing so, the panel



   2
    Ala.Code § 22-11A-17(a) (1996 Supp.)
   3
    Harris v. Thigpen, 941 F.2d 1495, 1499 (11th Cir.1991).
   4
    Id. at 1500.
   5
    Id.
   6
    Codified as amended at 29 U.S.C. § 794 (1994).
   7
    Harris, 941 F.2d at 1523.

                                                    32
nonetheless acknowledged that "the court's conclusion of the significance of the risk of HIV

transmission with regard to each program [could] be unaltered."8

          The remaining factual dispute at the trial that followed remand (and on this appeal) is

narrow. Several key facts are undisputed. In the current state of medical knowledge and art, HIV

infection inevitably progresses to AIDS. AIDS always leads to death, often after lengthy suffering.

There is likewise no dispute that HIV is transmitted through body fluids, and that transmission by

blood is much more probable than transmission by any other means. The primary disputed issue is

the likelihood of blood-to-blood contact between HIV-positive and HIV-negative inmates during

the various programs in which the plaintiffs seek to participate.

          The defendants presented evidence that transmission is possible in any integrated activity.

They did this in two ways. First, the defendants showed that certain activities inherently raise the

possibility of blood transmission.9 Second, the defendants adduced evidence that high-risk behavior

(such as anal intercourse, sharing of drug needles,10 or tattooing11) or behavior that presents the

possibility of transmission (such as violent bloodshed) may occur in virtually any activity in which

HIV-positive and HIV-negative prisoners mingle without supervision.12 This evidence included

testimony about and numerous incident reports of high-risk behavior in a variety of settings, from




   8
    Id. at 1526.
   9
   See, e.g., Onishea v. Herring, No. 87V-1109-N, at 31 (M.D.Ala. Dec. 29, 1995) [hereinafter
Op.]; R.29 at 158 (barbering with unsterilized razors); Op. at 32; R.29 at 167 (sports).
   10
    The parties agreed that anal intercourse and sharing hypodermic needles are high-risk
behaviors. Op. at 27.
   11
        R.29 at 32.
   12
     See, e.g., R.29 at 145-46 ("possibility" exists during anger-management and
substance-abuse therapy for both violent and needle-sharing behavior); id. at 179 ("opportunity"
exists during data processing classes at Tutwiler for needle-sharing); id. at 177-78 (large size of
class and individual attention makes high-risk behavior possible in cosmetology class at
Tutwiler).

                                                  33
bathrooms to the kitchen to the library.13 Defense witnesses provided anecdotal evidence that even

prisoners with strong incentives to behave have nonetheless run risks.14 The defense case also

contained evidence that HIV-negative prisoners will not easily tolerate integration. This evidence

included a 1988 study of Alabama prisoners concluding that HIV-negative inmates may react

violently to integration15 and corroborating anecdotal evidence.16 Finally, the defendants presented

circumstantial evidence that Alabama's total segregation policy, one of only two in the nation, is

superior to integrated programs in slowing HIV's spread. The all-time seroconversion rate per

thousand prisoners in Alabama's prisons is .00006%, as compared to annual rates of .19, .33, and

.41% in Nevada, Illinois, and Maryland, respectively, all states with integrated populations.17

          The plaintiffs naturally took a different tack. While never categorically denying the

possibility of transmission if a bloody fight breaks out, tattoo needles are shared, sports injuries

occur, or female inmates have sex with each other, they marshaled evidence of the rarity or absence

of any such incidents of transmission.18 They further presented evidence that there are no reported

or witnessed incidents of anal sex, needle-sharing, or other high-risk behavior during any of the

activities in which they wish to participate.19 The plaintiffs also offered evidence that the degree of

   13
    See, e.g., R.32 at 191 (syringes smuggled into Limestone wrapped in Kotex pads); Defs.'
Exs. F-5 (needles hidden in library), F-7 (syringe in public bathroom), F-20 (unspecified
homosexual act in kitchen over a mixing bowl of peanut butter and jelly).
   14
    See R.32 at 295 (runner—who as such held a coveted job among the prisoners—engaged in
high-risk behavior in the HIV unit at Limestone).
   15
        See R.36 at 142-43.
   16
   For instance, HIV-negative prisoners refused to use the same drafting tools as the
HIV-positive inmates, for fear of contracting HIV. R.27 at 228.
   17
        Op. at 462.
   18
     See, e.g., R.27 at 35 (no documented cases of transmission through stabbing); id. at 43-44
(never a reported incident of transmission via tattoo needles); id. at 36-39 (no confirmed cases
of sports-related transmission); id. at 18 (only theoretical cases of sexual transmission between
women have been described).
   19
     See, e.g., R.25 at 76-77 (no sex or needle-sharing incidents reported in cosmetology class,
just fistfights); id. at 110 (no incidents except fistfights in sewing factory at Tutwiler); R.32 at

                                                  34
surveillance in most circumstances makes such behavior implausible. Moreover, the plaintiffs'

anecdotal evidence is that HIV-positive and HIV-negative prisoners in both Limestone and Tutwiler

have mingled peacefully and without HIV transmission in "welfare committee" meetings,20 fire

drills,21 "Communicators' Meetings,"22 and literacy training classes23.

          Based on this record, the parties' approach to measuring the odds of transmission is

predictable. On one hand, the defendants contend that transmission could happen whenever

prisoners mix because of the perpetual potential for high-risk activity or for violence—and the

HIV-negative prisoners' anti-HIV sentiments boost the odds of confrontation and bloodshed.

HIV-positive participation in any of the programs, according to the defendants, thus poses a

significant risk of transmission. On the other hand, the plaintiffs argue that none of the defendants'

chthonic scenarios has ever been realized in prison history, and that the defendants' fear of clashes

between HIV-positive and HIV-negative inmates is unwarranted in today's enlightened prison

society.

          The district court generally took the defendants' view, concluding that the risk of

transmission in every program was significant. While the court's reasoning was not wholly uniform

for every program, the court generally reached this result by measuring the odds based on two

background findings, rather than extrapolating past incidents of transmission. The first finding is



258 (no incidents among inmate maintenance workers at Limestone); id. at 251 (no incidents
among tractor crew at Limestone); id. at 247-48 (no incidents on the "double-O squad," which
maintains the prison grounds); id. at 244 (no incidents in "college by cassette" classes); id. at
245 (no disciplinary incidents in the paralegal classes); id. at 246-47 (no incidents at GED and
college graduation ceremonies); R.25 at 205 (no incidents in substance abuse treatment classes).

   20
        R.28 at 94.
   21
        R.33 at 26-27.
   22
     Id. at 28-29. On the other hand, one of the plaintiffs' experts also opined that "there has to
be an unlearning process" at both Tutwiler and Limestone, and that certain activities such as
dining should therefore not be immediately integrated. See R.25 at 93.
   23
        R.33 at 210-12.

                                                 35
that sex, intravenous drug use, and bloodshed are a perpetual possibility in prison whenever a

security guard trained to stop it is not watching, and that prison life is inherently

unpredictable24—especially when large-scale mixing of HIV-positive and HIV-negative prisoners

in Alabama is untried. The second finding is that HIV is transmitted by sex, intravenous drug use,

and blood-to-blood contact. If these activities can spread HIV, and these activities can occur

between HIV-positive and HIV-negative inmates, the court reasoned, then HIV transmission is more

than a theoretical possibility, even if we have no examples.25

           From this conclusion, the court easily found this risk to be significant. After all, each case

of transmission, however rare, claims at least one life. More lives could follow if the infected

general-population inmate spreads the virus to his dormmates. To support this inference of harm,

the court pointed to an investigation of a 1991 syphilis outbreak at Limestone in which medical

officials located 86 prisoners suspected of sexual contact with a single infected inmate.26 Given this

degree of harm, even slim odds of transmission make the risk significant. As the court put it in

words echoed throughout its 475-page opinion, "elimination of high risk behavior is impossible....

Because the Defendant/Prison system has decided that such conduct is likely, and because of the

catastrophic severity of the consequences if such conduct does occur, this Court holds that

integrating the [program under discussion] would present a significant risk of transmitting the deadly

HIV virus. Accordingly, the HIV+ inmates are not "otherwise qualified.' "27
           The court took this otherwise-qualified analysis one step further. As part of its evaluation

of the plaintiffs' qualifications to participate in the programs, it weighed the Department of

Correction's penological concerns, including the danger of violence that might arise from inmate



   24
        See, e.g., Op. at 211.
   25
        See id. at 48.
   26
        Op. at 464.
   27
        Id. at 313-314 (emphasis added); accord, e.g., id. at 82, 277-78.

                                                    36
prejudice toward and fear of HIV-positive prisoners.28 The court looked to Turner v. Safley, which

permits infringement of prisoners' First Amendment rights provided that the prison regulation "is

reasonably related to a legitimate penological interest,"29 as a guide to evaluating the Department

of Corrections's interests. In almost every program, the court concluded that the Department of

Corrections could legitimately seek to prevent violence and epidemic HIV by the measures it has

taken.

           The court continued its analysis, as directed by this court,30 by asking if reasonable

accommodations would make the plaintiffs qualified. Although the court found that in many

programs the plaintiffs had already been reasonably accommodated by provision of identical, but

segregated programs,31 the court found as to other programs that the only effective accommodation

would be additional guards to prevent high-risk behavior. The court concluded, however, that hiring

the dozens of guards necessary to integrate all the programs safely would place an undue financial

burden on the Department of Corrections.

           The plaintiffs have attacked every step of the analysis. On the "otherwise qualified" issue,

they contend that the district court weighed too heavily the gravity of the harm that could result if

these small risks are realized, and that the district court improperly took legitimate penological

objectives into account. Furthermore, they argue that the district court erroneously considered the

burden on the Department of Corrections of accommodating all of the plaintiffs' demands, rather

   28
        Id. at 15-16.
   29
        482 U.S. 78, 89, 107 S.Ct. 2254, 2261, 96 L.Ed.2d 64 (1987).
   30
        Harris v. Thigpen, 941 F.2d 1495, 1527 (11th Cir.1991).
   31
     These activities included those such as visitation, classes, haircuts, medical treatment,
sports, and legal research. Op. at 87 (visitation at Tutwiler); id. at 326 (paralegal training
classes at Limestone); id. at. 336 (high-school and college level courses at Limestone); id. at
341 (GED examination at Limestone); id. at 383 (haircuts at Limestone); id. at 407 (visitation
at Limestone); id. at 415 (medical treatment at Limestone); id. at 435 (sports at Limestone); id.
at 444 (legal research at Limestone). The plaintiffs briefly challenge this conclusion, but the
majority does not address it. I would affirm the court's finding that providing materially
identical activities in a separate location is a reasonable accommodation of the risks posed by the
plaintiffs' contagious disease.

                                                   37
than myopically considering whether hiring the few guards necessary to integrate each program

would individually overburden the entire prison system. These arguments present issues of law and

mixed issues of law and fact; both are reviewed de novo, although findings of fact stand unless

clearly erroneous.32

                                                  * * *

          The plaintiffs raise a final issue unrelated to the merits. They argue that Judge Varner should

have recused himself from the retrial of this case. Three circumstances, the plaintiffs contend, make

recusal mandatory: the judge's alleged consultation with his son (who is a physician) concerning

the facts of this case; the father-son relationship between Judge Varner's law clerk (who did not

work on this case) and defendants' lead counsel; and finally Judge Varner's asserted bias against the

plaintiffs, as evidenced by a few of the Judge's remarks on the record during the trial. Because none

of these circumstances warrant recusal, I concur in the majority's conclusion on this issue. I would

refuse, however, to undermine that conclusion by reassigning the action based on the very same

facts.

                                              II. Discussion

          I break with the majority's analysis of the merits of the claims asserted in this action in three

ways.33 These differences correspond to the three different stages of the district court's analysis:

first, its determination that the plaintiffs were not otherwise qualified to participate in the relevant
programs; second, the court's inquiry into the effect of legitimate penological interests on the

prisoners' Rehabilitation Act rights; and finally its consideration of reasonable accommodations,

a step demanded by the finding that the prisoners were not otherwise qualified. The majority holds

that the district court applied the wrong standard on the first step, improperly added the second step,

   32
        Kennedy v. Herring, 54 F.3d 678, 682 (11th Cir.1995).
   33
    I agree, however, that this court's earlier mandate required the district court to consider
evidence relating to inmate classification, as that is probative of potential reasonable
accommodations. I would therefore remand for the limited purpose of permitting the district
court to revisit its reasonable accommodations analysis in light of that evidence and any
counterevidence the defendants may choose to offer.

                                                     38
and erroneously found on the last step that the plaintiffs' proposed reasonable accommodations,

considered together rather than program by program, are unduly burdensome.

          The majority's first holding requires courts to treat all transmissible illnesses equally,

regardless of their consequences; this does not comport with the law. The second holding requires

courts to apply identical standards to classrooms, workplaces, and prisons, and thus does not observe

both the unique importance of security in the prison environment and limited judicial competence

in the penal realm. Finally, the majority's third holding fails to focus the undue burden analysis on

the unique circumstances of a case—which here means a case in which dozens of correctional

officers would be needed to accommodate the plaintiffs in all programs, even if one officer would

reasonably accommodate them in one.34

                                A. "Significant Risk," Not "High Odds"

          Section 504 of the Rehabilitation Act of 1973,35 under which the plaintiffs seek relief,

requires a federal-fund grantee reasonably to accommodate a disability only if the disabled person

is "otherwise qualified" for the activity.36 As the Supreme Court interpreted the statute in School

Board v. Arline,37 the "basic factors" for determining if the carrier of a contagious disease is

otherwise qualified include

          [findings of] facts, based on reasonable medical judgments given the state of medical
          knowledge, about (a) the nature of the risk (how the disease is transmitted), (b) the duration
          of the risk (how long is the carrier infectious), (c) the severity of the risk (what is the

   34
     One further holding from which I dissent requires only brief explanation. The plaintiffs
claim that the district court erroneously refused to consider programs such as work release and
boot camp that required residential integration of the plaintiffs into the general population at
other facilities. The majority notes correctly that the plaintiffs waived all claims for residential
integration by not challenging on appeal the trial court's refusal to consider the issue of
integration. Because the plaintiffs have abandoned on appeal any claim for residential
integration, this court should not direct the district court—in effect end-running the waiver—to
consider all programs requiring residential integration. The court should instead, in light of the
waiver, uphold the district court's refusal to consider those programs.
   35
        Codified as amended at 29 U.S.C. § 794 (1994).
   36
        Harris v. Thigpen, 941 F.2d 1495, 1522 (11th Cir.1991).
   37
        480 U.S. 273, 107 S.Ct. 1123, 94 L.Ed.2d 307 (1987).

                                                   39
              potential harm to third parties) and (d) the probabilities the disease will be transmitted and
              will cause varying degrees of harm.38

The Court further directed the courts to "defer to the reasonable medical judgments of public health

officials."39 The point, as the Court put it, is that "[a] person who poses a significant risk of

communicating an infectious disease to others in the workplace will not be otherwise qualified for

his or her job if reasonable accommodation will not eliminate that risk."40

              Contrary to the majority's holding, this standard does not seek simply to identify a certain

percentage possibility of transmission above which the plaintiff is not otherwise qualified. Arline

's selection of factors and its language show that the significance of a risk is a product of the odds

that transmission will occur and the severity of the consequences. First, Arline 's four factors include

both "the severity of the risk" and the "the probabilities the disease will be transmitted," not just "the

odds the virus will spread." This suggests that each must interplay with the other in the

otherwise-qualified inquiry. Second, significance by itself connotes more than size: "significant"

means "deserving to be considered," "important," "weighty," or "notable."41 It does not just mean

"big."42 And it is the potential gravity of the harm that imbues certain odds of an event with

significance. This is indeed common sense: to borrow an analogy from the district court's opinion,

we are far more likely to consider walking a tightrope to pose a significant risk if the rope is fifty

feet high than if it is one foot off the ground. This is so even if the odds of losing our balance are

the same however far we have to fall.
              In the context of HIV transmission, Arline 's standard thus means that something less than

high odds of transmission will make the plaintiffs not otherwise qualified.                   It has been

   38
        Id. at 288, 107 S.Ct. at 1131 (quoting Br. for American Med. Ass'n as Amicus Curiae at 19).

   39
        Id.
   40
        Id. at 287 n. 16, 107 S.Ct. at 1131 n. 16.
   41
        Webster's Third International Dictionary 2116 (1986).
   42
        See id.

                                                       40
uncontroverted at every stage of this case that HIV is inevitably, and painfully, fatal. These

horrendous consequences render even very low odds of transmission enough to make a risk

significant. The other circuits that have confronted this issue directly have indeed so interpreted

Arline 's standard. The Fourth Circuit has affirmed a district court's conclusion that an HIV-positive

neurosurgery resident could be barred from surgery, notwithstanding the fact that there were no

documented cases of surgeon-to-patient HIV transmittal.43 Similarly, the Fifth Circuit has held that

a "small" chance of blood-to-blood contact between an HIV-positive surgical assistant and his

patients nonetheless constitutes a "significant" risk: "A cognizable risk of permanent duration with

lethal consequences suffices" to disqualify the assistant.44

        Based on Arline 's standard thus interpreted, the district court's conclusion was correct. First,

the district court finding of a cognizable possibility of transmission has record support. The court

found as fact the following: that blood-to-blood contact likely transmits HIV; that violence,

intravenous drug use, and sex may cause blood contact and occur in prisons in the most unlikely and

unexpected places; and that it is impossible to know or surveil much of what goes on. These

subsidiary findings, which are supported by expert and lay testimony, legitimately support the

conclusion that mixing prisoners raises a cognizable possibility of spreading HIV. "Conjecture," as


   43
    Doe v. University of Md. Med. Sys. Corp., 50 F.3d 1261, 1266 (4th Cir.1995). The court
noted that the Centers for Disease Control estimate the risk of transmission from an HIV-positive
surgeon to a single patient to be between one in 42,000 and one in 417,000. Id. at 1263.
   44
     Bradley v. University of Tex. M.D. Anderson Cancer Ctr., 3 F.3d 922, 924 (5th Cir.1993);
cf. Kohl v. Woodhaven Learning Ctr., 865 F.2d 930, 941 (8th Cir.1989) (concluding that a
hepatitis B carrier posed a significant risk, because even though the risk of transmission to those
treated immediately after blood-to-blood contact is 2.5%, 1% of those infected would eventually
die from the disease). This circuit's law is not to the contrary. Martinez v. School Board, 861
F.2d 1502, 1506 (11th Cir.1988), which the majority cites as requiring a high probability of
transmission to render a plaintiff not otherwise qualified, is distinguishable. Unlike here, the
district court in that action did not even consider certain transmission risks, such as through
blood. Instead, the district court found that there was a "remote theoretical possibility" of
transmission through other bodily fluids and ended the inquiry there. Id. This court held that the
risks of transmission through tears, saliva, and urine in the case's classroom setting did not reach
a significant level of risk, but the court remanded for further findings as to the possibility of
blood transmission. Id. Here, of course, the district court based its finding of significant risk on
all possible transmission methods.

                                                   41
the majority calls it, it may be, but the district court has no other option in this case. After all, Arline

's standard requires the court to measure risk. Measuring risk is predicting the future. Unless the

judge is a seer, he must predict the future by drawing inferences from both current conditions and

past events. It may be preferable to extrapolate past events, but in this case that would, in effect,

impose a somebody-has-to-die-first standard—the risk is not cognizable until someone dies from

the conditions posing the risk. This court should reject such a standard.

          Next, the district court properly concluded that this risk was significant.             Arline 's

sliding-scale standard authorized the court to cleave to caution and find the risk significant in a case

such as this when death is a certain result of the possible event. The district court's conclusion also

comported with Arline in another significant respect: Arline urges circumspection when a finding

may contravene the judgment of public health professionals.45 Prison officials charged with

protecting prisoners' health have determined that this policy is justified, and the court properly

hesitated before rejecting their judgment. The district court's conclusion that the plaintiffs'

participation in the programs poses a significant risk to others' health, and that the plaintiffs thus are

not otherwise qualified, should be upheld.

                                           B. Security Matters

          In its otherwise-qualified inquiry, the district court also reviewed the four factors suggested

in Turner v. Safley46 to determine whether the defendants' security concerns disqualified the
plaintiffs from participating in the programs.47 The trial court concluded that the likelihood of
inmate resentment and fear of the HIV-positive prisoners made violence a reasonable worry, and that

the wardens were therefore justified in separating the HIV-positive prisoners from the HIV-negative.



   45
        Arline, 480 U.S. at 288, 107 S.Ct. at 1131.
   46
        482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987).
   47
     For one program, interstate prisoner exchange, the district court pretermitted the rest of its
otherwise-qualified analysis and concluded that legitimate penological concerns alone warranted
the plaintiff's exclusion. Op. at 269-73.

                                                      42
Turner is not a Rehabilitation Act case, and the propriety of using its factors in considering a § 504

plaintiff's qualifications is new to this court.

          I must first dispose of a threshold matter: the prior panel's silence on this issue is not law

of the case. The law-of-the-case doctrine "comes into play only with respect to issues previously

determined."48 An appeals court may impliedly resolve an issue.49 But for that resolution to govern

all subsequent proceedings, the issue must necessarily have been decided.50 The doctrine does not

embrace all issues that could have been addressed,51 even if addressing them would have been

appropriate.52

          An implied holding is at best what we have from the first panel's opinion, which is silent on

Turner 's application. And we should not infer any holding at all on Turner from the panel's silence.

After all, the issue was not before the court. Following the first trial, the district court denied the

plaintiffs relief on their Rehabilitation Act claim on the finding that the plaintiffs were not otherwise

qualified because "the probability of transmission, in the prison environment, is significant" in all

programs, without an individuated assessment.53 The plaintiffs challenged this conclusion on one

   48
    Quern v. Jordan, 440 U.S. 332, 347 n. 18, 99 S.Ct. 1139, 1148 n. 18, 59 L.Ed.2d 358
(1979); accord, Burger King Corp. v. Pilgrim's Pride Corp., 15 F.3d 166, 168 (11th Cir.1994);
Hester v. International Union of Operating Eng'rs, 941 F.2d 1574, 1581 n. 9 (11th Cir.1991).
   49
        Burger King, 15 F.3d at 168.
   50
     See Wheeler v. City of Pleasant Grove, 746 F.2d 1437, 1440 (11th Cir.1984) ("[T]he law is
clear that [the doctrine] comprehends things decided by necessary implication as well as those
decided explicitly.") (emphasis added) (internal quotations omitted).
   51
        18 Charles Alan Wright et al., Federal Practice and Procedure § 4478, at 789 (1981).
   52
     See Lawson v. Singletary, 85 F.3d 502, 512-13 (11th Cir.1996) (law-of-the-case doctrine did
not apply, in part because the issue at hand—the constitutionality of prison regulations—was not
briefed in the earlier appeal, which concerned the appropriate standard of constitutional review);
Northeastern Fla. Chapter of Associated Gen. Contractors of America v. City of Jacksonville,
951 F.2d 1217, 1218 n. 1 (11th Cir.1992) (first panel vacated a preliminary injunction solely
because of an insufficiently developed record, despite a special concurrence pointing out—sua
sponte—that the plaintiff lacked standing; second panel nonetheless was entitled to affirm a
denial of relief based on its independent conclusion that the plaintiffs lacked standing), rev'd on
other grounds, 508 U.S. 656, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993).
   53
        Harris v. Thigpen, 727 F.Supp. 1564, 1582 (M.D.Ala.1990).

                                                   43
ground: that the district court could not have found the plaintiffs to be not otherwise qualified

without individualized findings as to the risk of transmission in every program for every member

of the class.54 Thus, because the Rehabilitation Act Turner issue was not raised in the briefs, the

panel may have decided not to address an issue that was not properly presented. Many panels so

decide.55 Furthermore, whether Turner 's factors may weigh into otherwise-qualified analysis was

not an issue the court had to resolve before holding that the Rehabilitation Act requires a

program-by-program qualifications assessment. There is, therefore, no law of the case relating to

this issue.

          The issue is accordingly now before this court. This court should hold, as the Ninth Circuit

has,56 that Turner 's factors are relevant to Rehabilitation Act claims arising in prison. Four reasons

support this conclusion. First, Turner 's concerns apply equally to statutory claims even though

Turner 's holding is limited to constitutional claims. In either case, federal judges have no business

sitting in the warden's seat:

          [T]he problems of prisons in America are complex and intractable, and, more to the point,
          they are not readily susceptible of resolution by decree.... Running a prison is an
          inordinately difficult undertaking that requires expertise, planning, and the commitment of
          resources, all of which are peculiarly within the province of the legislative and executive
          branches of government. Prison administration is, moreover, a task that has been committed
          to the responsibility of those branches, and separation of powers concerns counsel a policy
          of judicial restraint. Where a state penal system is involved, federal courts have, as we
          indicated in Martinez [Procunier v., 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974) ],
          additional reason to accord deference to the appropriate prison authorities.57




   54
        Appellants' Br., Harris v. Thigpen, Nos. 90-7083, 90-7100, at 42-50.
   55
     See, e.g., United States v. Dieguimde, 119 F.3d 933, 934-35 (11th Cir.1997) (declining to
address poorly briefed and possibly moot issue); Alabama Power Co. v. OSHA, 89 F.3d 740,
747 n. 7 (11th Cir.1996) (refusing to address issue not raised in trial court); Boca Ciega Hotel,
Inc. v. Bouchard Transp. Co., 51 F.3d 235, 237 n. 6 (11th Cir.1995) (declining to address issue
raised only in reply brief).
   56
        See Gates v. Rowland, 39 F.3d 1439, 1447 (9th Cir.1994).
   57
    Turner v. Safley, 482 U.S. 78, 84-85, 107 S.Ct. 2254, 2259, 96 L.Ed.2d 64 (1987) (citation
omitted).

                                                  44
These concerns are equally valid for both constitutional and statutory claims. In both cases, the

judges run into the same problems of lack of experience and expertise when they begin to interfere

with matters traditionally left to the legislative and executive branches. Here, moreover, Congress's

enactment of the statute does not put a legislative stamp of approval on judicial intrusion into state

prison administration. Congress apparently never thought about prisons when it passed the

Rehabilitation Act. The words "prison" and "prisoner" do not occur in the legislative history.

Section 504 does not mention prisons. In short, "[t]here is no indication that Congress intended the

Act to apply to prison facilities irrespective of the considerations of the reasonable requirements of

effective prison administration."58

          Second, federal judicial second-guessing of the legitimate penological decisions of state

authorities, even when statutorily prompted, runs squarely counter to the most basic notions of

comity. Prison administration is a core state function.59 "It is difficult to imagine an activity in

which a State has a stronger interest, or one that is more intricately bound up with state laws,

regulations, and procedures, than the administration of its prisons."60 In this realm, federal courts

should await a clear statement from Congress before construing statutes as a license to dictate state

policy.61 Taking the Rehabilitation Act's silence as to application in the prison environment to mean

that its effect in prison is identical to that elsewhere does not comport with this "clear statement"

rule. On the other hand, viewing § 504's "otherwise qualified" language as incorporating Turner 's


   58
        Gates, 39 F.3d at 1447.
   59
    Torcasio v. Murray, 57 F.3d 1340, 1345 (4th Cir.1995), cert. denied sub nom. Torcasio v.
Angelone, --- U.S. ----, 116 S.Ct. 772, 133 L.Ed.2d 724 (1996).
   60
        Preiser v. Rodriguez, 411 U.S. 475, 491-92, 93 S.Ct. 1827, 1837, 36 L.Ed.2d 439 (1973).
   61
     Torcasio, 57 F.3d at 1345 (citing Will v. Michigan Dep't of State Police, 491 U.S. 58, 65,
109 S.Ct. 2304, 2309, 105 L.Ed.2d 45 (1989); United States v. Bass, 404 U.S. 336, 349-50, 92
S.Ct. 515, 523, 30 L.Ed.2d 488 (1971)). The Fourth Circuit has indeed held that the
Rehabilitation Act does not apply to state prisons at all because of the Act's lack of an
appropriate "clear statement." Amos v. Maryland Dep't of Pub. Safety & Correctional Servs., 7
A.D. Cases 454 (4th Cir.1997). While the applicability of the Rehabilitation Act to state prisons
is law of the case for this panel, the issue may merit en banc attention.

                                                 45
factors, which carry an element of deference to prison authorities, provides a means of avoiding

undue interference in state affairs without a clear congressional direction.

          Third, Arline 's standard, born in an action by a teacher plaintiff, is inadequate for the prison

setting. While Arline acknowledges that the Rehabilitation Act does not require the federal-fund

grantee, or its wards, to run significant risks of any kind,62 its rule views those risks as solely ones

to health from the disease. In a classroom setting, or in the surgical theater,63 these risks may be the

only dangers that the communicable disease poses. But in prison, mixing carriers of a virus that is

considered loathsome, however wrongly, with those who do not have the virus runs the risk of

violence. The district court so found, and cases elsewhere show that such violence is not unknown.64

This danger—whether or not it leads to HIV transmission—warrants consideration along with health

risks, and Turner 's factors offer a vehicle for taking into account hazards that are unique to the

prison context.

          Fourth, considering Turner 's factors in a prison Rehabilitation Act case is wholly consistent

with the statute. As Arline 's holding makes clear, § 504 does not command the federal-fund grantee

to endanger its wards.65 And in the employment context from which Arline sprang, Congress has

embraced the principle of safety-threat limitations. This concern for safety enters into § 504 by way


   62
     Arline, 480 U.S. at 287, 107 S.Ct. at 1130-31 (describing the inquiry under its standard as
"essential if § 504 is to achieve its goal of protecting handicapped individuals from deprivations
based on prejudice, stereotypes, or unfounded fear, while giving appropriate weight to such
legitimate concerns of grantees as avoiding exposing others to significant health and safety
risks") (emphasis added).
   63
    See Doe v. University of Md. Med. Sys. Corp., 50 F.3d 1261, 1266 (4th Cir.1995); Bradley
v. University of Tex. M.D. Anderson Cancer Ctr., 3 F.3d 922, 924 (5th Cir.1993).
   64
     Anderson v. Romero, 72 F.3d 518, 520 (7th Cir.1995) (claim by HIV-positive inmates
against prison authorities for disclosing his HIV-positive status and thus exposing him to attacks
by other prisoners); Casey v. Lewis, 4 F.3d 1516, 1524 (9th Cir.1993) ("[W]henever inmates
discover another inmate is HIV-positive ... threats are made against that inmate's life."), rev'd on
other grounds, --- U.S. ----, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996); Adams v. Drew, 906
F.Supp. 1050, 1058 (E.D.Va.1995) (plaintiff inmate assaulted by other inmates solely because of
his HIV positive status).
   65
        Arline, 480 U.S. at 287, 107 S.Ct. at 1131.

                                                      46
of § 504(d), which imports the standards under Title I of the American with Disabilities Act (ADA)

into § 504 in employment cases.66 Section 103(b) of the ADA,67 as interpreted, in turn permits

discrimination against those who as a result of their disability pose a "direct threat to the health or

safety of other individuals in the workplace."68 It would be anomalous to hold that although an

authority may take safety of either the Rehabilitation Act plaintiff or his coworkers into account in

taking adverse employment action against that plaintiff, a prison is not entitled to respect for its

concern for protecting the safety of the plaintiffs here and their fellow inmates. Turner 's factors

offer a means to implement these safety limitations in the prison setting.

          For these reasons, the district court did not err in taking into account the defendants' security

concerns that lead to segregating the HIV-positive prisoners in the programs at issue. Nor did the

district court err in its analysis of Turner 's factors.69 A key fact-finding, which was adequately

based on survey evidence and the presence of an intervenor inmate class that opposes integration

of the programs, is that there are still many inmates who would react negatively—indeed,

violently—to integration. Application of Turner 's four factors to this case's circumstances in light

of this fact supports the district court's conclusion that security concerns disqualify the plaintiffs.

First, security is a classically legitimate penological concern, and the court could conclude that

separating prisoners who, if mixed, would react violently, has a rational connection to preventing

violence. This factor weighs against the plaintiffs. Turner 's second factor weighs in the plaintiffs'
favor: they have no other way of participating in integrated programs. The third factor, however,

weighs heavily against the plaintiffs; the district court could properly conclude, based on sufficient

evidence of inmate prejudice, that mixing HIV-positive and HIV-negative inmates could cause

ripple effects that threatened security, either because of anti-HIV prejudice or as a result of the

   66
        29 U.S.C. § 794(d) (1994).
   67
        Codified at 42 U.S.C. § 12113(b) (1994).
   68
        Id.; see E.E.O.C. v. Amego, Inc., 110 F.3d 135, 144 (1st Cir.1997).
   69
        See Turner, 482 U.S. at 89-90, 107 S.Ct. at 2262 (naming the four factors in its test).

                                                     47
necessary diversion of resources from elsewhere to surveil the integrated programs. Finally, the

court properly concluded that there are no "obvious, easy alternatives" here: plaintiffs' implication

that integration is an easy alternative because other prison facilities follow it does not undermine the

court's conclusion. Given its findings concerning the substantially higher seroconversion rates and

incidence of violence elsewhere, the court could properly find that integration elsewhere served the

interests of security and health less reasonably than the policies under attack here. Thus, the district

court's otherwise-qualified findings should be upheld.

                         C. Isolated Versus Global Burden of Accommodation

           The Rehabilitation Act deems a disabled person qualified to participate in an activity if

reasonable accommodations remove any disqualification.70               One of the plaintiffs' primary

reasonable-accommodation suggestions was the hiring of more guards to provide the surveillance

necessary to prevent the plaintiffs and HIV-negative inmates from engaging in high-risk behavior.

The district court found that the plaintiffs' recommended level of security staffing would not prevent

high-risk behavior, but implied that the Department of Corrections' claimed necessary level of

staffing—60 additional guards all together—would adequately reduce the risk.71 This level of

staffing, the court concluded, would place an undue financial and administrative burden on the

already-strapped prison system.72 This conclusion was based on the effect system-wide of

accommodating the plaintiffs in all the programs at issue: the court emphasized that it would "see
"the forest as well as the individual trees.' "73 The plaintiffs claim that the district court erred either
by failing to consider the burden in each program separately or, alternatively, by failing to pick

particular programs to which limited resources should be allocated.74 The plaintiffs suggest that the

   70
        Harris v. Thigpen, 941 F.2d 1495, 1525 (11th Cir.1991).
   71
        Op. at 51-53.
   72
        Id. at 53.
   73
        Id. at 51.
   74
        Appellants' Br. at 41-42.

                                                    48
court should have compared the cost of each individual guard to the Department of Corrections'

entire budget to determine if each guard alone would be a reasonable accommodation.

        The district court did not err. Whether an accommodation imposes an undue burden on a

defendant is determined by "the hardships imposed by the plaintiff's preferred accommodation in

the context of the particular agency's operations."75 And cost is a hardship properly taken into

account in assessing whether the burden on a federal-fund grantee is undue.76 Assessing that cost

accommodation-by-accommodation, and not in the aggregate, effectively defeats the purpose of the

agency-specific analysis: it permits impositions of burdens that could nickel-and-dime an agency

to extinction. That reasoning ignores, rather than examines, the "context of the particular agency's

operations." Thus, if the plaintiffs demand to be accommodated system-wide, the total cost to the

Department of Corrections is the relevant cost for determining the agency's burden. Adding 60

guards at Tutwiler and Limestone, as the record suggests are needed to ensure security, would

require a nearly 20% increase in guard staffing.77 The district court could conclude based on this

record that accommodation by an increase in staffing would place an undue hardship on the

Department of Corrections.

        The plaintiffs further fault the district court for not considering whether the Department of

Corrections in fact needed all the guards it currently has stationed where they are currently stationed,

and for not choosing certain programs for integration if it is indeed true that providing all the guards
necessary would be an undue burden. The plaintiffs cite no evidence in the record, however, that

indicates that any guards elsewhere are unnecessary. To the contrary, the record suggests that both



   75
    Willis v. Conopco, Inc., 108 F.3d 282, 286 n. 2 (11th Cir.1997) (emphasis added) (quoting
Barth v. Gelb, 2 F.3d 1180, 1187 (D.C.Cir.1993)).
   76
    See, e.g., Borkowski v. Valley Cent. School Dist., 63 F.3d 131, 138 (2d Cir.1995); Vande
Zande v. State of Wis. Dep't of Admin., 44 F.3d 538, 543 (7th Cir.1995) (both identifying undue
hardship analysis as a species of cost-benefit inquiry).
   77
     The record suggests, moreover, that the additional staffing would be more expensive. To
get guards for the HIV unit, Limestone must currently pay those guards more. R.32 at 110.

                                                  49
Tutwiler and Limestone are already staffed significantly below the optimum.78 Nor do the plaintiffs

propose a basis upon which the district court should have allocated any portion of the necessary

additional guards. The plaintiffs thus failed to carry their burden of proof that alternate, less

burdensome reasonable accommodations exist by moving correctional officers from other posts to

HIV-protection posts. The district court's conclusion should accordingly be upheld.

                             D. Reassignment to Another District Judge

          The plaintiffs in this case sought Judge Varner's recusal on a variety of grounds. Judge

Varner refused to recuse himself, and the plaintiffs appeal the denial of their motion and suggest,

in the alternative, that the case be assigned on remand to another judge. Among the reasons for this

remedy they point to Judge Varner's remarks on the bench and in his opinion, the judge's law clerk's

father-son relationship to the defendants' lead counsel, and the judge's possible learning of facts

pertinent to the medical issues in this case from the judge's son, a physician. The majority properly

concludes that the record does not sufficiently evince bias or impropriety that required Judge Varner

to recuse himself under the Supreme Court's interpretation of 28 U.S.C. § 455.79 But the majority

then adopts a "middle course"—reassigning the action—that leaves Judge Varner stained with

impropriety's brush. This "middle course" is extreme and unnecessary in this case.

          Reassignment is rare in this circuit and is generally appropriate only when three factors

weigh in favor of it: (1) whether the original judge would have had difficulty putting his previous
views and findings aside; (2) whether reassignment is appropriate to preserve the appearance of

justice; and (3) whether reassignment would entail waste and duplication out of proportion to the

gains realized from reassignment.80 None of these factors points to reassignment in this case.


   78
    Warden Lobmiller of Tutwiler requested 179 guards in 1993 and was authorized to employ
90. R.35 at 13-14. The Limestone facility is approximately forty guards short of full staffing.
R.32 at 106.
   79
    Liteky v. United States, 510 U.S. 540, 554-56, 114 S.Ct. 1147, 1157, 127 L.Ed.2d 474
(1994).
   80
        Torkington, 874 F.2d at 1446.

                                                 50
        The first prong is satisfied only by a showing of extreme conduct—for example, when a

judge has willfully refused to follow this court's mandate,81 or when the judge has made such

mistakes that in the court of appeals' eyes the court appears unjust.82 Judge Varner's greatest offense,

however, is that he disagreed with the plaintiffs. Far from ignoring this court's mandate, his 475-

page opinion meticulously reviews the individual evidence about the location, circumstances, and

security concerns for dozens and dozens of separate programs. Nor is the appearance of justice

imperiled here. As the majority observes, Judge Varner's remarks do not show any bias mandating

recusal,83 and the evidence of impropriety is also insufficient to warrant recusal. This court should

on this record be as hesitant to direct reassignment as it is to find recusal to be mandated. Finally,

the extraordinary waste of judicial resources that would result on remand if we shift judges after ten

years of litigation and two trials counsels leaving the case before Judge Varner. I would therefore

refuse to direct reassignment to another district judge.

                                           III. Conclusion

        For the foregoing reasons, I would vacate the district court's judgment and remand for the

limited purpose of permitting the district court to reconsider, in light of plaintiffs' and defendants'

evidence of prisoner classification, whether classification offers the basis for a reasonable


   81
     See, e.g., United States v. Remillong, 55 F.3d 572, 577 (11th Cir.1995) (reassigning case
after the district judge "stubbornly persisted" in disregard of this court's mandate); Clark v.
Coats & Clark, 990 F.2d 1217, 1230 (11th Cir.1993) (reassigning case when the district judge's
opinion "contained strong language expressing dissatisfaction with this court's decision").
   82
     See, e.g., Chudasama v. Mazda Motor Corp., 123 F.3d 1353 (11th Cir.1997) (reassigning
case from district judge that had refused to rule on a motion to dismiss, ignored discovery
objections, adopted one party's exaggerated statements verbatim, and precipitously imposed a
default sanction on the defendant for inadequately complying with an unintelligible discovery
order drafted by opposing counsel and signed by the judge).
   83
     Compare United States v. Microsoft, Inc., 56 F.3d 1448, 1463-64 (D.C.Cir.1995) (judge
rejected consent decree without modifications that would address conduct accused by a bestseller
that the judge had read, but not mentioned in the complaint; judge also permitted intervenors
and amici to proceed anonymously because of his bestseller-induced suspicion of Microsoft);
Torkington, 874 F.2d at 1447 (judge grants judgment of acquittal early in prosecution case,
which the judge called a waste of taxpayer money, based upon a prosecution witness's unelicited
remark that violated a motion in limine).

                                                  51
accommodation of the plaintiffs' disability. I would otherwise affirm the district court's resolution

of the issues presented on appeal.




                                                 52
