                                                                                   [ PUBLISH]


                      IN THE UNITED STATES COURT OF APPEALS

                              FOR THE ELEVENTH CIRCUIT
                                                                           FILED
                               ________________________           U.S. COURT OF APPEALS
                                                                    ELEVENTH CIRCUIT
                                        No. 96-6213                      04/07/99
                                 ________________________            THOMAS K. KAHN
                                                                          CLERK
                              D. C. Docket No. CV-87-V-1109-N

LYDIA KAY ONISHEA; RENEE BROWN, et al.,

                                                                          Plaintiffs-Appellants,

                                            versus

JOE S. HOPPER, Commissioner of the Alabama
Department of Corrections; SHIRLIE LOBMILLER,
Warden of the Julia Tutwiler Prison for Women; et al.

                                                                         Defendants-Appellees,

STEWART M. HUGHEY; ADAM LAMAR ROBINSON; et al.,

                                                                        Intervening Defendants-
                                                                                     Appellees.
                                 ________________________

                         Appeal from the United States District Court
                             for the Middle District of Alabama
                               _________________________
                                       (April 7, 1999)
Before HATCHETT, Chief Judge, TJOFLAT, ANDERSON, EDMONDSON, COX, BIRCH,
DUBINA, BLACK, CARNES, BARKETT, HULL, and MARCUS, Circuit Judges.

COX, Circuit Judge:

       The plaintiff class, all of whom are prison inmates who have tested positive for the Human

Immunodeficiency Virus (HIV), have sued officials of the Alabama Department of Corrections

under § 504 of the Rehabilitation Act1 to force integration of prison recreational, religious, and

educational programs. The district court denied relief, and we affirm.

                                          I. Background

       This litigation began over a decade ago in reaction to a legislatively inspired program to

prevent the spread of Acquired Immune Deficiency Syndrome (AIDS) in Alabama’s prison system.

Under statute,2 the Alabama prison system tests all entering inmates for infection with HIV, which

causes AIDS. Harris v. Thigpen, 941 F.2d 1495, 1499 (11th Cir. 1991).           The Department of

Corrections segregates inmates testing positive for the virus from the general inmate population in

HIV-positive units, one for men at the Limestone Correctional Facility and one for women at the

Julia Tutwiler Prison for Women. Id. at 1500.

       So segregated, the HIV-positive inmates are unable to participate in many programs and

activities with the HIV-negative, general population. Programs that are available only to the general

population program at Limestone include “Double O” squad jobs maintaining the prison grounds,

jobs on the prison farm, bus squad jobs, facility maintenance jobs, trash detail jobs, kitchen jobs,

runner jobs, upholstery classes, electrical technology classes, auto mechanics classes, construction



   1
       29 U.S.C. § 794.
   2
       Ala. Code § 22-11A-17(a) (1996 Supp.)

                                                 2
trade classes, automotive body repair classes, horticulture classes, welding classes,3 staff barber jobs,

inmate barber jobs, laundry jobs, gardening jobs in the prison’s vegetable gardens, the “Free by

Choice” program (in which prisoners go to schools to talk to pupils about substance abuse and

criminality), basketball and baseball tournaments, and “Alabama Volunteers in Corrections”

meetings (to prepare prisoners for release). Programs that are available separately to Limestone

HIV-positive inmates include paralegal training classes (HIV-positive inmates see videotapes of live

instruction); adult basic education, GED testing, Narcotics and Alcoholics Anonymous meetings,

graduation ceremonies, drafting classes, haircuts, visitation, medical treatment, gymnasium and

library time, chapel services, dining, and prisoner transportation.

        A similar range of programs is unavailable to HIV-positive inmates at Tutwiler: data

processing classes, clerical classes, cosmetology classes, sewing classes, building trades classes,

automotive repair classes, welding classes, floral design classes, small business machine repair

classes, quantity foods service classes, nutrition classes, concerts and talent shows, softball and

volleyball games, the “Free by Choice” program, college classes, Laubach literacy training, sewing

factory jobs, data processing jobs, “downtown” jobs for government agencies, community projects

jobs, road squad jobs, kitchen jobs, yard jobs, maintenance jobs, housekeeping jobs, laundry jobs,

trash jobs, runner jobs, and haircutting jobs. Like their male counterparts, however, the HIV-

positive prisoners at Tutwiler also have access to many programs separately from the general

population: chapel services, some rehabilitation programs such as substance abuse and stress



   3
        Correspondence in the months before the 1994 trial between the commissioner of
corrections and the commissioner of post-secondary education suggest an intent to offer
vocational and college classes to HIV-positive inmates separately from the general prison
population. This intent, however, had not been fully realized at the time of trial.

                                                   3
management counseling, visitation, organized recreational activities such as May Day and

Oktoberfest, dining, medical care, adult basic education, GED testing, library use, and prisoner

transportation.

       The plaintiff class challenged this practice of denying some programs to the HIV-positive,

and providing other programs separately, as a violation of several constitutional rights and of § 504

of the Rehabilitation Act of 1973.4 The district court denied relief after a bench trial. The court

concluded that no constitutional rights were violated. See Harris, 941 F.2d at 1521. 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. See Harris, 941 F.2d at 1523. 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 order to determine whether the

plaintiffs were otherwise qualified to participate in each program. In so directing the

district court, the panel nonetheless acknowledged that “the court’s conclusion of the

significance of the risk of HIV transmission with regard to each program [could] be

unaltered.” Id. at 1526.




   4
       Codified as amended at 29 U.S.C. § 794 (1994).

                                                 4
      Measuring the significance of the risk of HIV transmission in a host of

programs (and thus determining whether the plaintiffs were otherwise qualified to

participate) was accordingly the focus of the second trial. One relevant fact was

undisputed: In the state of medical knowledge and art at the time of trial, HIV

infection inevitably progressed to AIDS. AIDS always led to death, often after

lengthy suffering. But the parties’ evidence and arguments reflected two different

approaches to the problem of measuring risk. Both sides presented substantial

evidence in support of their positions.

      On one hand, the plaintiffs argued that experience teaches us that the odds of

HIV transmission in prison programs are remote at best. Their evidence fell into two

categories. First, the plaintiffs presented expert testimony that incidents of HIV

transmission in many activities are rare or virtually unknown. For instance, at the

time of trial there were no reported cases of transmission as a result of lesbian sex.

There was a similar lack of reported incidents of transmission from sports injuries,

stabbing, or tattooing. Only “sporadic” instances of transmission from oral sex and

fistfights had been reported. In short, the possibility of transmission in certain unusual

circumstances (for instance in a fight if both participants bleed copiously into each

other’s wounds, or during barbering if bloody razors are immediately reused) had not

been realized in any commonly recurring way.


                                            5
      Second, however, the plaintiffs’ medical expert had to acknowledge that anal

sex and needle-sharing are high-risk activities. Rather than assert the medical

unlikelihood of transmission from these activities, the plaintiffs presented evidence

of the rarity of such conduct in the programs in which they wish to participate. The

plaintiffs’ prison security expert combed prison files for incident reports and found

none describing anal sex or needle-sharing during a wide variety of prison programs

at both Limestone and Tutwiler. Reported incidents being rare or unknown in the

past, the plaintiffs reason, we can expect them to be rare or unknown in the future

even if HIV-positive inmates participate in integrated programs. The plaintiffs also

showed that many of these programs are in high demand, and that inmates therefore

have every incentive to be on their best behavior; moreover, they point out, the degree

of surveillance in most programs makes an occurrence of anal sex, for instance,

implausible.

      While not completely contradicting any of this testimony, the defendants

stressed other facts. They introduced testimony that HIV transmission is theoretically

possible, even if not documented, in sports accidents and during fights — wherever

there is a large exchange of blood between an infected person and an uninfected one.

And the defendants introduced evidence that concededly high-risk activity abounds

in prison. This evidence included a six-inch high stack of incident reports from the


                                          6
past few years describing hidden hypodermic needles, homosexual acts, and bloody

fights. The defendants also showed that a 1991 outbreak of syphilis in the HIV-

positive population at Limestone, in which 86 inmates were ultimately treated, was

traceable to a single inmate. Finally, the defendants offered studies showing that

residentially integrated prison systems in Maryland, Nevada, and Illinois have

experienced seroconversions at annual rates of .41% , .19%, and .33%, respectively.5

In Alabama, by contrast, over the entire roughly eight-year period of entrance and

exit HIV- testing before the time of trial, (see R.31 at 167), only two inmates out of

the at least 30,000 tested had seroconverted — an all-time rate of .0067%. (See id. at

106 (at least 30,000 inmates tested); id. at 166 (two total seroconverted).) Had the

Alabama seroconversion rates resembled those in Illinois, in the neighborhood of 5

inmates per year would have contracted HIV at Limestone alone, perhaps 40 over an

eight-year period.6

       Neither side’s evidence was iron-clad on the points they emphasized. The

plaintiffs undermined the defendants’ evidence of widespread high-risk behavior with

anecdotal evidence of risk-free mixing. The defendants, on the other hand, called into

question the plaintiffs’ reliance on the absence of incident reports by offering

  5
       A “seroconversion” has occurred when an inmate who tested negative for HIV upon
entering prison later tests positive.
  6
       At the time of trial, one of plaintiffs’ experts put Limestone’s population at about 1600.

                                                7
testimony that much high-risk activity goes unreported, even when discovered, and

that inmates have developed techniques such as “hot railing” — posting a lookout —

to avoid detection by roving guards. The defendants showed that a runner, who as

such held a highly coveted job, forfeited it by engaging in a high-risk act in the HIV-

positive unit. They also offered evidence of a single, sensational incident of high-risk

behavior committed by two Limestone kitchen workers who engaged in homosexual

sex in the kitchen bakery beside a mixing bowl of peanut butter and jelly.

       The district court generally took the defendants’ view of the facts. The court

made two significant findings of fact, neither of which the plaintiffs have challenged

as clearly erroneous. The first finding is 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 unpredictable—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.

      From these facts, the court concluded that the transmission risk is significant

in all programs. After all, each case of transmission, however rare, claims at least one


                                           8
life. More lives could follow if the infected general-population inmate spreads the

virus to his cellmates, who in turn spread it farther, as was the case with the 1991

syphilis outbreak at Limestone. Given this degree of harm, even slim odds of

transmission make the risk significant. As the court put it in words echoed throughout

its 476-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.’” (R.6-532 at 313-314 (emphasis added); accord, e.g., id. at 82, 277-78.)

      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 Corrections’ penological concerns, including the danger of violence

that might arise from inmate prejudice toward and fear of HIV-positive prisoners. The

court looked to Turner v. Safley, which permits infringement of prisoners’ First

Amendment rights provided that the prison regulation “is reasonably related to

legitimate penological interests,”7 as a guide to evaluating the Department of

Corrections’ interests. In almost every program, the court concluded that the


  7
      482 U.S. 78, 89, 107 S. Ct. 2254, 2261 (1987).

                                             9
Department of Corrections could legitimately seek to prevent violence and epidemic

HIV by the measures it has taken. In one program, interstate prisoner exchange,8 the

court found that penological concerns alone — the cost of medical care for the HIV-

positive — sufficed to excuse the exclusion of HIV-positive inmates.

        The district court continued its analysis, as directed by this court,9 by asking if

reasonable accommodations would make the plaintiffs otherwise qualified. Although

the court found that in many programs the plaintiffs had already been reasonably

accommodated by provision of identical, but segregated programs,10 the court found

as to other programs that the only reasonable 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.




   8
        In this program, based on an interstate compact, inmates may serve their terms in another
state (for personal reasons, for instance) if that state agrees to send one of its inmates to
Alabama.
   9
        Harris v. Thigpen, 941 F.2d 1495, 1527 (11th Cir. 1991).
   10
        These activities included those such as visitation, classes, haircuts, medical treatment,
sports, and legal research. (R.6-532 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).)

                                                10
        On appeal, the plaintiffs attacked every step of the analysis. On the “otherwise

qualified” issue, they contended 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

argued that the district court erroneously considered the burden on the Department of

Corrections of accommodating all of the plaintiffs’ demands, rather than considering

whether hiring the few guards necessary to integrate each program would individually

overburden the entire prison system.

        A panel of this court agreed with the plaintiffs on most issues. See Onishea v.

Hopper, 126 F.3d 1323 (11th Cir. 1997). The en banc court vacated the panel

opinion, 133 F.3d 1377 (11th Cir. 1998), and now revisits the case with new briefing.

The plaintiffs’ contentions remain essentially the same and are addressed in turn

below.11 These arguments present issues of law and mixed issues of law and fact; both

   11
        In their en banc briefs — for the first time in the ten-year history of this lawsuit — the
defendants claimed Eleventh Amendment immunity. The defendants conceded at oral argument,
however, that the relief the plaintiffs seek plants this case within the fiction of Ex parte Young,
209 U.S. 123, 28 S. Ct. 441 (1908), and that the Eleventh Amendment is therefore not an issue in
this case.
        Two other issues can be disposed of in footnote. First, we asked the parties to brief the
issue whether the Rehabilitation Act applies to prisons at all. The Supreme Court since decided
that the Americans with Disabilities Act applies to prisons. See Pennsylvania Dep’t of
Corrections v. Yeskey, 118 S. Ct. 1952 (1998). We find Yeskey indistinguishable and conclude
that the Rehabilitation Act applies to prisons, as well.
        Second, the plaintiffs complain that the district court excluded evidence concerning
programs that would require residential integration. Residential integration — even for program
purposes — was a matter beyond the scope of the second trial, which was to concern integration

                                                11
are reviewed de novo, although findings of fact stand unless clearly erroneous.

Kennedy v. Herring, 54 F.3d 678, 682 (11th Cir. 1995).

                                        II. Discussion

        A.     What is a “significant risk”?

        While not challenging the district court’s findings of fact, the plaintiffs argue

that the district court misapplied the law and this court’s mandate in determining

whether they qualify for relief under the Rehabilitation Act of 1973. In particular,

they contend that the court wrongly interpreted a “significant risk” of HIV

transmission to mean “any risk.” We conclude that the district court’s conclusion,

based on its unchallenged findings of fact, is substantially correct.

        Section 504 of the Rehabilitation Act, under which the plaintiffs seek relief,12

prohibits discrimination against “otherwise qualified individual[s] with a disability.”

29 U.S.C. § 794(a). An “individual with a disability” does not include “an individual



of programs. See Harris, 941 F.2d at 1527. We note further that it was the plaintiffs, not the
defendants, who objected to introduction of this evidence at trial. (See R.36 at 92 (“Work
release is no longer a part of this case.”).)
   12
         As we address more thoroughly in the reasonable-accommodation discussion below,
there are potentially applicable agency regulations promulgated under § 504. See, e.g., 28 C.F.R.
subpt. G (Department of Justice regulations). Each agency’s regulations, however, generally
apply only to recipients of funds from that agency. See, e.g., 28 C.F.R. § 45.202 (restricting
application of Department of Justice regulations to recipients of financial assistance from the
Department of Justice). We cannot tell from the record where the Department of Corrections
gets its federal funds and thus what regulations apply. We assume for this discussion that any
applicable regulations would not contradict our analysis of the statute.

                                               12
who has a currently contagious disease or infection and who, by reason of such

disease or infection, would constitute a direct threat to the health or safety of other

individuals.” 29 U.S.C. § 705(20)(D). This restriction adopts the Supreme Court’s

interpretation of § 504 in School Board v. Arline13. Bragdon v. Abbott, 118 S. Ct.

2196, 2210 (1998). Under Arline, the “basic factors” for determining if the carrier of

a contagious disease is entitled to § 504’s protection 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 potential harm
       to third parties) and (d) the probabilities the disease will be transmitted
       and will cause varying degrees of harm.’

Arline, 480 U.S. at 288, 107 S. Ct. at 1131 (quoting Br. for American Med. Ass’n as

Amicus Curiae at 19). The Court further directed the courts to “defer to the

reasonable medical judgments of public health officials.” Id.; see also Bragdon, 118

S. Ct. at 2211 (public health authorities’ determinations entitled to “special weight and

authority”). In short, “[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.” Arline, 480 U.S.

at 287 n.16, 107 S. Ct. at 1131 n.16.



  13
       480 U.S. 273, 107 S. Ct. 1123 (1987).

                                               13
        We can infer from Arline’s language 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 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.” Webster’s Third International

Dictionary 2116 (1986). It does not just mean “big.” See id. 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.

        Thus, when the adverse event is the contraction of a fatal disease, the risk of

transmission can be significant even if the probability of transmission is low: death

itself makes the risk “significant.” But federal courts disagree about how low the odds

may be, and how much evidence it takes to prove a significant risk.14 On one hand,

   14
       The cases cited here concerned suits under both the Rehabilitation Act and the Americans
with Disabilities Act. The Acts’ standards for carriers of contagious diseases are the same. See
Estate of Mauro ex rel. Mauro v. Borgess Medical Ctr., 137 F.3d 398, 402 (6th Cir.), cert.
denied, 119 S. Ct. 51 (1998).

                                              14
the Fourth, Fifth, and Sixth Circuits have implicitly followed a cautious rule. For

these courts, a showing of a specific and theoretically sound means of possible

transmission was enough to justify summary judgment against an HIV-positive

plaintiff on the ground that the infection posed a “significant risk” to others in the

workplace, even though reported incidents of transmission were few or nonexistent,

and the odds of transmission were admittedly small. See Bradley v. University of Tex.

M.D. Anderson Cancer Ctr., 3 F.3d 922, 924 (5th Cir. 1993) (affirming summary

judgment in favor of a hospital that refused to permit an HIV-positive surgical

assistant to assist surgeries, even though risk was “small”); see Doe v. University of

Md. Med. Sys. Corp., 50 F.3d 1261, 1264-65 (4th Cir. 1995) (affirming summary

judgment against HIV-positive physician even though there were no documented

cases of surgeon-to-patient transmission, and hospital itself described risk as “minimal

but nevertheless ascertainable”); Estate of Mauro ex rel. Mauro v. Borgess Med. Ctr.,

137 F.3d 398, 405, 407 (6th Cir.) (affirming summary judgment against HIV-positive

surgical technician even though Centers for Disease Control calculated odds of HIV

transmission during a surgery as between 1 in 42,000 and 1 in 420,000), cert. denied,

119 S. Ct. 51 (1998).

       The First Circuit, on the other hand, has construed the phrase “significant risk”

to mean that not only must the danger be theoretically justifiable, it must also have


                                          15
been realized in at least several cases. See Abbott v. Bragdon, 107 F.3d 934, 948 (1st

Cir. 1997) (affirming summary judgment in favor of the HIV-positive plaintiff whose

dentist denied her services, notwithstanding evidence of seven documented cases of

patient-to-dentist HIV transmission; “Dr. Bragdon is not entitled to demand absolute

safety”), aff’d in part, vacated and remanded in part, 118 S. Ct. 2196 (1998). This

circuit’s panel precedent arguably anticipates the First Circuit’s view, see Martinez

v. School Bd., 861F.2d 1502 (11th Cir. 1988) (“remote theoretical possibility” of HIV

transmission through tears, saliva, and urine not significant risk; remand for

determination of possibility of blood-to-blood transmission), although limited fact-

findings make it difficult to determine that case’s standard. The Ninth Circuit

arguably anticipated the First Circuit’s position, as well. See Chalk v. United States

Dist. Ct., 840 F.2d 701, 709 (9th Cir. 1988) (“[I] t was error to require that every

theoretical possibility of harm be disproved.”)

       The Supreme Court has reviewed the First Circuit’s judgment in Abbott v.

Bragdon, but the Court’s opinion does not resolve the conflict on this question. The

Court stated no rule, and it neither affirmed nor reversed the First Circuit’s conclusion

on this issue. Rather, the Court explained that, “[f]or the most part,” the First Circuit’s

analysis was correct. Bragdon v. Abbott, 118 S. Ct. 2196, 2211 (1998). The Court




                                            16
then offered the First Circuit some helpful hints for revisiting the significant-risk issue

on remand.

        From these helpful hints, we know that the relevant scientific knowledge is that

at the time of the discrimination, id.; that an unreasonable offer of accommodation

merits no weight, see id.; that public health statements recommending certain

precautions are of scant value because they do “not assess the level of risk,” id.; that

professional organizations’ opinions may be too intertwined with other matters (such

as ethics) to give objective medical evaluations of risk, see id. at 2211-12; that the

testimony of health experts may be of some value, see id.; that inconclusive scientific

studies deserve little weight, see id.; that evidence of seven cases of patient-to-doctor

transmission is not necessarily sufficient, “standing alone,” to show the risk to be

significant, id.; but that all of these observations are qualified by the fact that the

parties did not brief the issue, see id. at 2213. These helpful hints, however, do not

shed much light on the amount or nature of the evidence that is necessary to prove a

risk to be “significant.”

        In this absence of any clear Supreme Court direction,15 we opt for the position

of the Fourth, Fifth, and Sixth Circuits. Their cautious approach balances two



   15
      On remand, the First Circuit has simply reaffirmed its earlier conclusions. See Abbott v.
Bragdon, 163 F.3d 87 (1st Cir. 1998).

                                               17
arguably conflicting statutory policies. First, requiring evidence that the asserted risk

of transmission has a sound theoretical basis prevents the Act from overlooking the

unfounded fears and prejudices that Congress meant to uproot. See Arline, 480 U.S.

at 285-87, 107 S. Ct. at 1129-31. Second, the more cautious rule protects federal

funds recipients from well-founded worries that deaths can result from a ruling that

an HIV-positive plaintiff is otherwise qualified, and thus it avoids the absurd

conclusion that Congress has decreed even a few painful deaths in service of the Act’s

noble goals. See id. at 287 & n.16, 107 S. Ct. at 1131 & n.16; Southeastern

Community College v. Davis, 442 U.S. 397, 406, 99 S. Ct. 2361, 2367 (1979)

(reversing judgment in favor of a would-be nursing student because her hearing

problems could impede her performance in emergency situations, thus endangering

patients). Accepting proof of a theoretically possible method of transmission as

sufficient recognizes — unlike the First Circuit’s approach — that saying a risk of an

event is small does not mean that it will not happen. And each time the event occurs,

it is real people — not cold ciphers — that suffer the consequences. Saying that only

one in 42,000 persons will die if exposed to a risk, see Mauro, 137 F.3d at 407, does

not make that one’s death insignificant.

      We thus hold that when transmitting a disease inevitably entails death, the

evidence supports a finding of “significant risk” if it shows both (1) that a certain


                                           18
event can occur and (2) that according to reliable medical opinion the event can

transmit the disease. This is not an “any risk” standard: the asserted danger of transfer

must be rooted in sound medical opinion and not be speculative or fanciful. But this

is not a “somebody has to die first” standard, either: evidence of actual transmission

of the fatal disease in the relevant context is not necessary to a finding of significant

risk.

        Based on Arline’s standard thus interpreted, the district court’s conclusion was

correct. Two of the district court’s unchallenged factual findings support its result.

First, the district court found that violence, intravenous drug use, and sex may cause

blood-to-blood contact and happen in prisons in the most unlikely and unexpected

places and that it is impossible to know or watch much of what goes on. Second, the

court found (based on adequate expert testimony) that blood-to-blood contact, such

as that resulting from anal sex or needle-sharing, likely transmits HIV, and that violent

exchanges of blood raise the specter of transmission. These two findings were enough

for the court, sitting as fact-finder, to conclude that the risk was significant in any

program in which prisoners participate.16

   16
        The plaintiffs also complain that the district court ignored this court’s earlier mandate to
assess each program individually. We reject this argument. It is true that the court reached the
same conclusion for a host of different programs; but nothing in the earlier mandate required the
court to conclude that the programs were different. See Harris v. Thigpen, 941 F.2d 1495, 1526
(11th Cir. 1991) (“[I]t may turn out that the court’s conclusion of the significance of the risk of
HIV transmission with regard to each program will be unaltered.”). The district court’s 476-

                                                 19
        B.     May legitimate penal concerns figure into whether an inmate is
               otherwise qualified to participate in a program?

        The plaintiffs contend that the district court improperly engaged in the analysis

prescribed by Turner v. Safely, 482 U.S. 78, 89-90, 107 S. Ct. 2254, 2261-62 (1987),

to adapt constitutional rights to the prison context. Turner provides four factors to

guide a court’s determination of whether a prison regulation is “reasonably related to

legitimate penological interests”; if the regulation is, then it escapes constitutional

scrutiny. Id. at 89, 107 S. Ct. at 2261. Those four factors17 served as makeweights to

the district court’s conclusions here for all the programs, and for one program (the

interstate prisoner exchange program), the Turner analysis served as the sole basis for

denying relief.

        We can agree with the plaintiffs’ primary argument that Turner does not, by its

terms, apply to statutory rights. That does not mean, however, that the district court’s

use of the Turner factors requires vacating its judgment. Section 504’s provisions

extend only to “otherwise qualified individual[s] with a disability.” 29 U.S.C. §

794(a). “An otherwise qualified person is one who is able to meet all of a program’s


page opinion, moreover, doggedly reviews the independent evidence for each program.
   17
        The four factors are (1) the connection between the prison regulation and a legitimate,
neutral government interest, (2) the presence or absence of alternatives for the prisoners to
exercise their claimed right, (3) the effect of unfettered exercise of the right on other inmates,
guards, and the allocation of prison resources, and (4) the presence or absence of ready
alternatives. See Turner, 482 U.S. at 90, 107 S. Ct. at 2262.

                                                 20
requirements in spite of his handicap.” Southeastern Community College v. Davis,

442 U.S. 397, 406, 99 S. Ct. 2361, 2367 (1979). What the “requirements” of a

program are is an issue of fact. See, e.g., Majors v. Housing Auth., 652 F.2d 454, 458

(5th Cir. Unit B Aug. 3, 1981) (vacating summary judgment because of genuine issue

of material fact).

       The district court was entitled to find on this record — it indeed seems obvious

— that the requirements for participation in prison programs are determined in part

by the same “legitimate penological interests” that Turner respects in the First

Amendment context. Security is one such legitimate interest. Turner and its

antecedents indeed so recognize. See Turner, 482 U.S. at 91, 107 S. Ct. at 2262-63;

Bell v. Wolfish, 441 U.S. 520, 546, 99 S. Ct. 1861, 1878 (1979) (“[M]aintaining

institutional security and preserving internal order and discipline are essential . . . .”);

Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119, 132, 97 S. Ct.

2532, 2541 (1977) (“The interest in preserving order and authority in the prisons is

self-evident.”); Pell v. Procunier, 417 U.S. 817, 823, 94 S. Ct. 2800, 2804 (1974)

(“[C]entral to all other corrections goals is the institutional consideration of internal

security within the corrections facilities themselves.”); Procunier v. Martinez, 416

U.S. 396, 412-13, 94 S. Ct. 1800, 1811 (1974) (“the legitimate governmental interest

in the order and security of penal institutions justifies the imposition of certain


                                            21
restraints”). Penological concerns such as security and cost are legitimate, and the

evidence in this case shows that these are in fact the concerns behind the program

requirements that participating prisoners neither create a threat of disorder or

unreasonable costs. Thus, even if the district court’s importation of Turner’s

standards into the Rehabilitation Act was not precisely correct as a matter of legal

theory, determining whether penological concerns impose requirements for program

participation is not error. See Crawford v. Indiana Dep’t of Corrections, 115 F.3d

481, 487 (7th Cir. 1997).

      While not conceding that Turner-like factors are properly considered at all, the

plaintiffs also argue that the district court misapplied Turner first by making a clearly

erroneous finding that integrating programs would risk violence, and second by

concluding that the Department of Corrections’ segregation policy is not an

exaggerated response to the problem of prison security and slowing the virus’s spread.

      We reject both arguments. The district court’s finding as to the risk of HIV-

related violence was, as the plaintiffs point out, based on conflicting evidence. The

defendants offered a study of inmate opinion that was both off-point (it asked for

views on residential integration, not program integration) and six years old at the time

of trial. But the plaintiffs did not do much better; they offered only anecdotal

evidence of peaceful intermingling between HIV-positive and HIV-negative inmates.


                                           22
If two findings were possible here — risk of violence from intermingling or no risk

of violence from intermingling — both required drawing a series of inferences from

the parties’ scant evidence. The district court chose to infer from the defendants’

study (1) that residential and program integration would be equally objectionable to

certain inmates and (2) that inmate opinion had remained substantially unchanged

over a six-year period. To make the finding plaintiffs urged, the district court would

have had to infer at least (1) that the HIV-negative inmates involved in peaceful

intermingling represent the unanimous sentiment among HIV-negative inmates and

(2) that special circumstances surrounding the intermingling did not contribute to the

peacefulness. The district court’s choice of the former inferences over the latter ones

is not clearly erroneous.

      The court’s conclusion that the response is not exaggerated, moreover, properly

follows Turner’s guidance. (The plaintiffs do not contend that Turner’s “exaggerated

response” analysis in particular is inappropriate for Rehabilitation Act otherwise-

qualified analysis.) Turner compels a conclusion that a response is exaggerated only

when the inmate produces evidence of “easy alternatives” that come at a de minimis

cost to valid penological interests. Turner, 482 U.S. at 91, 107 S. Ct. at 2262. The

plaintiffs’ proposed “easy alternative” is to exclude from programs the prisoners who

might react violently to integration. The record does not support the ease of this


                                          23
alternative, which would apparently require the Department of Corrections to evaluate

the attitudes and predict the behavior of every program participant. The district court

could correctly conclude that segregated programs are not an exaggerated response

to the problem of violence.

      In sum, then, we conclude that the district court could properly use factors such

as Turner’s to determine whether the plaintiffs were otherwise qualified to participate

in the programs. The district court’s analysis of those factors, moreover, was

substantially correct.

      C.     Did the district        court     appropriately   evaluate   “reasonable
             accommodations”?

      The Harris panel directed the district court on remand to consider whether

reasonable accommodations would permit the plaintiffs to participate in any of the

programs at issue. See Harris, 941 F.2d at 1527. The district court did so and

concluded in most programs that the proposed accommodations, which mostly

consisted of hiring additional guards to prevent high-risk behavior, would impose an

undue burden on the prison programs. The plaintiffs challenge the district court’s

conclusions on four grounds.

      Before we get to the specific challenges, however, we have to point out that we

are not construing any law whose source we may clearly identify. This is because the

reasonable-accommodation principle (that a disabled person is entitled to participate

                                          24
in a program, notwithstanding lack of qualification, if a reasonable accommodation

would qualify him) does not appear in § 504. See 29 U.S.C. §§ 706, 794. The

principle appears, rather, in agency regulations promulgated under the statute’s

authority. See, e.g., 28 C.F.R. § 42.511(a) (Department of Justice); 29 C.F.R. § 32.13

(Department of Labor). The applicability of these regulations as a general rule

follows federal funding from an agency. See, e.g., 28 C.F.R. § 42.502; 29 C.F.R. §

32.2(a). Unfortunately, the district court denied the plaintiffs discovery of the source

of the Department of Corrections’ federal funding, and the plaintiffs did not pursue

questioning on this subject at trial. Thus, with one exception,18 we do not know what

regulations apply to the Department of Corrections. And this matters: Different

agency regulations lay out the contours of the reasonable-accommodation principle

differently.     For instance, Department of Justice regulations require no

accommodation at all in nonemployment programs, see 28 C.F.R. § 42.540(l)(2),

while Department of Labor regulations require reasonable accommodation in

employment training programs, see 29 C.F.R. § 32.13(a).




   18
        We know that the Department of Labor contributes funds to the Department of
Corrections’ adult basic education programs. (See R.26 at 223.) Those programs, therefore, fall
under Labor regulations, but the regulations by their own terms do not extend beyond that
program. See 29 C.F.R. § 32.2(a) (“This part applies to each recipient of Federal financial
assistance from the Department of Labor . . . but is limited to the particular program for which
Federal financial assistance is provided.”)

                                               25
      Our ignorance of what law controls has not, however, been troubling to any

party; the parties briefed the question only upon order of this court. Nor was it

troubling to the Harris panel. See Harris, 941 F.3d at 1547. Rather than disturb what

have become the parties’ settled expectations, therefore, we elect to apply some sort

of least-common-denominator reasonable-accommodation principle, and we assume

for present purposes (notwithstanding some arguably contrary regulations) that the

reasonable-accommodation principle applies to all the programs under discussion. Cf.

Alexander v. Choate, 469 U.S. 287, 300-04, 105 S. Ct. 712, 719-20 (1985) (construing

the statute without the aid of apparently applicable regulations). But in doing so, we

keep in mind that regulations issued under statute control the interpretation of the

statute as long as the interpretation is permissible. See Chevron, U.S.A., Inc. v.

Natural Resources Defense Council, Inc., 467 U.S. 837, 843, 104 S. Ct. 2778, 2782

(1984). We thus look to some regulations for guidance, but our interpretation here

would not trump any agency regulation that interprets § 504 differently.

      One further caveat: we acknowledge that the Harris panel sensibly concluded

that differences among the programs in which the plaintiffs seek to participate

required different analyses. See Harris, 941 F.2d at 1527. In this court, however, the

plaintiffs have painted their reasonable-accommodation arguments with a broad brush,

and we follow their lead in explaining our rulings.


                                         26
               1.    Was classifying high- and low-risk prisoners an accommodation
                     open to consideration?

         One reasonable accommodation that the plaintiffs proposed was for the

Department of Corrections to refine existing systems of inmate classification to detect

HIV-positive inmates who were highly unlikely to engage in high-risk behavior and

to permit those inmates to participate in integrated programming. At trial, however,

each time the defendants objected to classification evidence, the court excluded it on

the reasoning that any evidence tending to be about individual inmates — even if the

evidence concerned inmate classification systems in general — was outside the scope

of the retrial mandated by this court. For the same reason, the court implied that it

would not consider the evidence or the argument. The plaintiffs contend that both the

exclusion of evidence and the refusal to consider the evidence in the bench trial was

error.

         We agree with the plaintiffs that consideration of this proposed accommodation

(and, therefore, evidence of it) was within the mandate. The Harris panel directed the

district court to consider reasonable accommodations, see Harris, 941 F.2d at 1527,

and this argument and evidence was about classifying all the class members for access

to particular programs. The district court should not, therefore, have excluded the

plaintiffs’ evidence about classification, and it should have considered classification

as a reasonable accommodation.

                                           27
        But this conclusion does not mean that reversal is required. The defendants did

not always object to classification evidence, and throughout the trial the plaintiffs

were allowed to introduce substantial evidence about the classification process at the

Department of Corrections (including the Department of Corrections’ inmate

Classification Manual) and about classification’s potential effectiveness.19 Thus, the

court’s evidentiary ruling did not prevent the plaintiffs from making a classification

argument. Furthermore, while the court implied at trial that it would not consider

classification as an accommodation, the court’s findings of fact make clear that it did

consider classification, if only implicitly.           The court found that inmates are

“untrustworth[y],” “volatil[e],” “unpredictable,” and subject to “great pressures from

conflicting sources.” (R.6-531 at 56, 57.) Therefore, the court found, prison officials

must always “prepare[] for the worst” and “expect the unexpected.” (Id. at 57, 58.)

These findings are an implicit rejection of plaintiffs’ argument.              If prisoners are

inherently “unpredictable,” as the district court found, then classification is not a

reasonable way of integrating programs, because it does not reduce the risk of HIV

transmission.



   19
        (See, e.g., R.25 at 67-69; id. at 74; id. at 143-45 (Department of Corrections
Classification Manual admitted as Plaintiffs’ Exhibit 1); R.27 at 127 (“cherry-picking” inmates
is sound penological strategy); R.32 at 229 (“job board” classification system); R.34 at 210-213
(classification procedure); R.35 at 208-230 (great detail concerning classification process).)

                                               28
      Because the plaintiffs thus did in fact successfully introduce classification

evidence, and the district court implicitly considered the feasibility of classification,

the plaintiffs’ substantial rights were not affected by the court’s trial rulings, and no

remand is required. Cf. Deviner v. Electrolux Motor, AB, 844 F.2d 769, 774 (11th Cir.

1988) (exclusion of certain evidence not reversible error when similar evidence

“leaked” through the exclusion).

             2.     May excessive cost make a hardship undue?

      Reasonable accommodations are mandatory only to the point that they impose

“undue hardship” on the federal funds recipient. See, e.g., 29 C.F.R. § 32.3 (definition

of “reasonable accommodation”); see also Willis v. Conopco, 108 F.3d 282, 286 n.2

(11th Cir. 1997). The plaintiffs’ primary proposed accommodation was for the

Department of Corrections to hire enough guards to surveil the programs and prevent

high-risk behavior. The district court found that the plaintiffs’ recommended level of

security staffing to be too low to prevent high-risk behavior, but implied that the

Department of Corrections’ claimed necessary level of staffing—as many as 70

additional guards all together, a 23% increase—would adequately reduce the risk.

This level of staffing, the court concluded, would place an undue financial and

administrative burden on the already-strapped prison system.




                                           29
      In challenging this conclusion, the plaintiffs complain primarily that the district

court should not have considered cost at all. The plaintiffs cite Zimring v. Olmstead,

138 F.3d 893 (11th Cir.), cert. granted, 67 U.S.L.W. 3402 (Dec. 17, 1998), for the

proposition that only expenditures that would “fundamentally alter the service”

provided can impose an undue hardship on the federal fund recipient. Id. at 905

(interpreting Title II of the Americans with Disabilities Act). According to the

plaintiffs, the defendants did not carry their burden of proving that the addition of 70

guards would “fundamentally alter” the nature of the programs to which the plaintiffs

seek access, and that cost could not, therefore, have been an undue burden.

      We reject the plaintiffs’ argument both because Zimring’s standard does not

apply here and because the district court’s findings are supported by sufficient

evidence. Under the Rehabilitation Act, cost is relevant to the federal fund recipient’s

burden when it, like any other burden, reaches the point of “undue hardship.” This

is a consistent agency interpretation of the statute: Many (if not all) regulations

promulgated under the Rehabilitation Act prescribe “undue hardship” as the standard

for measuring when the federal funds recipient’s burden is too much. See, e.g., 7

C.F.R. § 15b.13(a) (Department of Agriculture); 28 C.F.R. § 42.511(a) (Department

of Justice); 29 C.F.R. § 32.13(a) (Department of Labor); 34 C.F.R. § 104.12(a)

(Department of Education); 45 C.F.R. § 84.12(a) (Department of Health and Human


                                          30
Services). And in all these regulations, determining “undue hardship” explicitly

factors in “the nature and cost of the accommodation.” 7 C.F.R. § 15b.13(b)(3); 28

C.F.R. § 42.511(c); 29 C.F.R. § 32.13(b); 34 C.F.R. § 104.12(c); 45 C.F.R. § 84.12(c).

      This circuit’s precedents, moreover, show that a hardship becomes undue long

before it effects a “fundamental alteration” in employment conditions or reallocation

of program resources. See, e.g., Jackson v. Veterans Admin., 22 F.3d 277, 279 (11th

Cir. 1994) (undue hardship for hospital to schedule around a janitor’s unpredictable

absences, which had occurred six times in two and a half months); Severino v. North

Fort Myers Fire Control Dist., 935 F.2d 1179, 1183 (11th Cir. 1991) (“Evenhanded

treatment of employees in a covered program does not require an institution to lower

or effect substantial modification of standards to accommodate a handicapped

person.”); Treadwell v. Alexander, 707 F.2d 473, 478 (11th Cir. 1983) (undue

hardship for park to accommodate heart-bypass patient by assigning demanding tasks

to the two to four other park employees of the same rank who worked the same shift).

Required accommodations, on the other hand, have demanded little from federal fund

recipients in either money or other resources. See, e.g., Majors v. Housing Auth., 652

F.2d 454, 458 (5th Cir. Unit B Aug. 3, 1981) (public housing complex could be

required to permit exception to “no pet” rule to accommodate mentally unstable tenant

who needed a dog); Tatro v. Texas, 625 F.2d 557, 564 n.19 (5th Cir. 1980) (school


                                         31
could be required to train teachers to catheterize little girl with no urinary control,

when procedure took only a few minutes every three hours).

        These regulations (some of which we assume apply here for the reasons

explained above) and precedent do not fix a bright-line rule, but they do make clear

that a financial burden may become too much when it reaches the point of “undue

hardship.” And the district court did not clearly err in so finding here. Limestone’s

warden estimated that he would need around 25 additional officers to guard integrated

programs; Tutwiler’s warden estimated that she would need as many as 45 additional

officers to integrate all programs safely.20 The record shows that the cost of these 70

additional officers for their first year would be $1,713,810. The budget for the entire

Department in fiscal 1994 was $163,000,000.                At the time of trial, this level of

funding left Limestone 35 correctional officers short and Tutwiler 89 short. The court

could conclude that in these circumstances spending an addition $1.7 million would

cause undue hardship.

        The plaintiffs assert to the contrary that their evidence of the Department of

Corrections’ power to reallocate resources required the opposite conclusion. We

disagree, because the plaintiffs’ reliance on the Department’s authority to reallocate



   20
       There was testimony that because of vacation and sick time it takes 1.73 officers to fill
one eight-hour post; it is not clear if the wardens’ estimates were of posts or actual officers.

                                                32
resources rests on a legal equation of “undue hardship” with “impossibility.” As

explained just above, that is not the standard. The Rehabilitation Act does not require

the Department to do whatever it is legally capable of doing to accommodate the

plaintiffs.

              3.    May a court consider the global burden of accommodations
                    requested in different areas?

       Here, the plaintiffs argue that the district court wrongly considered the burden

to the Department of Corrections of accommodating the plaintiffs in every program

that required additional security to operate safely. According to the plaintiffs, the

district court should have picked and chosen among programs, selecting some for

accommodations that, because of their smaller scale, would not be unduly

burdensome. We reject this argument. While it may be true, as the plaintiffs assert,

that “[n]othing in § 504 permits federal funds recipients to take this ‘all or nothing’

stand,” it was not the federal funds recipient here but the plaintiffs who insisted on

having everything. The plaintiffs’ post-trial brief, for instance, made this argument

without specifically identifying any programs that the plaintiff preferred to integrate

over others, and the Complaint asks for integration in all programs. It was incumbent

on the plaintiffs, not the defendants or the court, to identify where they wanted partial

relief, if full relief were not possible. Cf. Blessing v. Freestone, 117 S. Ct. 1353,

1360-62 (1997) (plaintiffs obligated to particularize claims for relief).

                                           33
                4.     Can providing “separate but equal” programs be a reasonable
                       accommodation?

          The plaintiffs’ fourth challenge to the court’s analysis we need not discuss in

detail.     They complain that the district court ruled that “separate but equal”

programming — those programs such as adult basic education that were afforded both

HIV-positive and -negative prisoners separately — is not a proper accommodation of

a disability. This argument is apparently new on appeal. Indeed, before the district

court, the plaintiffs argued somewhat inconsistently that “separate but equal”

accommodations were not only permissible under the Rehabilitation Act, but required

by it. (R.5-526, at 161-62.) We decline to consider this newly raised issue.

                                         III. Conclusion

          For the foregoing reasons, the district court’s judgment is affirmed.21

          AFFIRMED.




   21
        In addition to their other arguments, the plaintiffs accuse Judge Varner, the district judge
here, of impropriety and assert that Judge Varner should have recused himself. In the
alternative, they argue that the case should be reassigned on remand. We conclude that the
evidence of impropriety is insufficient to warrant recusal and vacatur of the judgment; we need
not consider reassignment because we do not remand.

                                                 34
BARKETT, Circuit Judge, dissenting, in which HATCHETT, Chief Judge, joins:

      The issue before the court today is not an easy one. Prisons certainly have the

obligation to prevent the spread of the HIV virus among inmates. At the same time

they have the obligation to protect the rights of prisoners already infected with the

virus. This difficult balancing act requires sensitivity to the rights of all prisoners

within the state’s custody – both those infected with the disease and those who are not.

By upholding on this record Alabama’s policy of excluding HIV+ inmates from all

the programs and activities offered to inmates housed in the general population, the

majority permits Alabama to forego any consideration of the rights of HIV+ inmates

even where the rights of uninfected inmates are not, in any real sense, endangered.

The majority upholds the blanket exclusion on the grounds that any cognizable risk

of HIV transmission, no matter how infinitesimal and even if based on a wholly

unlikely and speculative chain of events, suffices to disqualify HIV+ inmates from

participating in all general population prison programs and that no reasonable


                                          35
accommodation could eliminate this risk. The majority’s holding is in direct conflict

with governing Supreme Court precedent and eviscerates § 504’s protections.

Moreover, in affirming the judgment of the district court, the Court places its

imprimatur on the district court’s failure to conduct a discrete analysis of the risk of

HIV transmission in each of the many programs and activities at issue here in

derogation of the specific mandate of this court. As a result, HIV+ inmates in

Alabama are excluded from participating in a whole host of programs to which

uninfected inmates routinely have access – programs and activities which comprise

virtually all features of institutional life – without any meaningful inquiry into whether

this stigmatizing exclusion is necessary to protect uninfected inmates from a

significant risk of HIV transmission. For these reasons, I respectfully dissent.

      In School Board of Nassau County, Fla. v. Arline, 480 U.S. 273 (1987), the

Supreme Court made clear that recipients of federal aid are not entitled to demand

absolute segregation from individuals with contagious diseases; § 504 prohibits those

receiving federal moneys from unduly indulging their fears and requires them to

tolerate less than significant risks of transmission. In Arline, the Supreme Court held

that a school teacher who was diagnosed with tuberculosis was a handicapped

individual within the meaning of § 504 and remanded the case for an “individualized

inquiry” as to whether Arline could serve as a teacher without posing a significant risk


                                           36
of communicating her disease to her students. Id. at 287. Observing that “[f]ew

aspects of a handicap give rise to the same level of public fear and misapprehension

as contagiousness,” the Court explained that § 504 was “carefully structured to replace

such reflexive reactions . . . with actions based on reasoned and medically sound

judgments. . . . 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.” Id. at 284-85 (emphasis in original). Accordingly, the Court held that an

individualized inquiry into risk was “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.” Id. at 287.

      In formulating the “significant risk” standard, the Court explained 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.” Id. at 287 n.16. The Court instructed

lower courts to look to objective medical evidence concerning four factors in

determining whether a risk is significant: “(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


                                            37
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.



       Focusing exclusively on Arline’s third factor, the majority holds that, because

of its deadly consequences, any cognizable risk of HIV transmission is, as a matter of

law, a significant risk. The majority purports to apply Arline, stating that “the

significance of a risk is a product of the odds that transmission will occur and the

severity of the consequences,” Maj. op. at 13, but then proceeds to ignore all but the

severity of risk factor. The fatal consequences of a contagious disease, in the

majority’s view, suffice to render a transmission risk significant even if the

probabilities of transmission are so low as to approach zero, so long as transmission

could theoretically occur, letting one factor overwhelm the entire Arline analysis.

Although it disclaims any intent of establishing an “any risk” standard, in fact the

majority opinion does exactly that. By focusing only on possibilities – whether “a

certain event can occur” and whether “the event can transmit the disease,” Maj. op.

at 16 (emphasis added) – the majority requires a plaintiff to prove that transmission

is impossible. This reasoning conflicts with Arline’s explicit directive to consider

other relevant factors and is directly contrary to the Supreme Court’s recent decision

in Bragdon v. Abbott, 118 S. Ct. 2196 (1998).


                                            38
       In Bragdon, the Court considered whether a dentist could refuse to treat an

HIV+ patient based on the risk of transmission of the HIV virus. It bears noting that

the Supreme Court specifically rejected the very argument the majority adopts today.

Bragdon declined to permit discriminatory treatment of those afflicted with the HIV

virus based on an “any risk” standard, explaining that “[b]ecause few, if any, activities

in life are risk free, Arline and the ADA do not ask whether a risk exists, but whether

it is significant.” Id. at 2210. Thus, the “significant risk” analysis begins with the

existence of a risk of transmission, but it does not end there. “The question under the

statute,” the Court stated, was “one of statistical likelihood” based on an “objective

assessment of the risks posed . . . .” Id. at 2211-12. Indeed, in Bragdon, the Court

rejected the dissent’s argument that a significant risk of HIV transmission existed

based on instances of possible transmission of HIV from patients to dental and other

healthcare workers, finding that this evidence of possible transmission was

insufficient to establish “the objective, scientific basis for finding a significant risk to

the petitioner.” Id. at 2212. See also Abbott v. Bragdon, 163 F.3d 87, 89-90 (1st Cir.

1998) (reaffirming conclusion that seven cases of possible transmission were

insufficient to establish significant risk).      The majority wholly ignores these

principles, failing to recognize Bragdon’s distinction between “any risk” of HIV-




                                            39
transmission and a “significant risk,” and offers no reason why Bragdon should not

be applied here.

      This Circuit has, until today, declined to sanction segregation of those with HIV

or AIDS based on an “any risk” standard. In Martinez v. School Bd. of Hillsborough

County, Fla.., 861 F.2d 1502 (11th Cir. 1988), a case summarily dismissed without

any analysis by the majority, we considered whether, consistent with the dictates of

§ 504, a mentally retarded girl with AIDS could be provided schooling in a segregated

setting to avoid the transmission of her disease to her classmates. Applying Arline,

we rejected the district court’s conclusion that a “remote theoretical possibility” of

transmission through tears, saliva, and urine were sufficient to support segregated

schooling. This possibility, we explained, “does not rise to the ‘significant’ risk level

that is required for Eliana to be excluded from the regular . . . classroom.” Id. at 1506.

Despite the lethal consequences of the plaintiff’s AIDS, we found that the risk of

transmission occurring in this manner was too remote and speculative to constitute a

“significant risk” under Arline. See also Doe v. DeKalb County School Dist., 145

F.3d 1441, 1446 (11th Cir. 1998) (remanding to permit the district court to “explain

why it believes that the risk posed by Doe is ‘remote’” under Martinez and to “make

findings of fact with respect to the Arline factors”).




                                           40
      I recognize that sex and needle sharing have been established as pathways of

HIV transmission. However, different programs present different levels of risk of

such behavior occurring. The prior mandate of this court recognized this distinction

by requiring that the district court evaluate each program in terms of the risks

involved. For example, the risks of residential integration differ from the risks of

integrating a religious service or an educational class. Even where an established

transmission pathway is involved, a risk of HIV transmission must be evaluated on

objective evidence of the likelihood of transmission and the other Arline factors, not

on mere speculation. Contrary to the majority’s suggestion, this standard does not

demand that someone die before a risk is considered significant. It does, however,

demand both evidence that particular conduct will transmit the disease and a

reasonable likelihood that the conduct will actually take place in the particular

program at issue. See Estate of Mauro v. Borgess Medical Ctr., 137 F.3d 398, 402-03

(6th Cir.) (because “neither [the Rehabilitation Act nor the ADA] requires the

elimination of all risk posed by a person with a contagious disease . . . our analysis

. . . must not consider the possibility of HIV transmission, but rather focus on the

probability of transmission weighed with the other three factors of the Arline test”)

(emphasis in original), cert. denied, 119 S. Ct. 51 (1998); id. at 409 (Boggs, J.,

dissenting) (“[T]he ‘significance’ of risk inescapably involves a judgment about the


                                          41
probabilities of harm”); Chalk v. United States Dist. Ct., 840 F.2d 701, 709 (9th Cir.

1988) (holding that “it was error to require that every theoretical possibility of [HIV

transmission] be disproved”); H.R. Rep. No. 101-485, pt. 2 at 56 (1990), reprinted in

1990 U.S.C.C.A.N. 267, 338 (noting that “a speculative or remote risk” is insufficient

to support a finding of a “significant risk”); id., pt. 3 at 46, reprinted in 1990

U.S.C.C.A.N. at 469 (“The plaintiff is not required to prove that he or she poses no

risk.”). It is one thing to say that objective evidence of a small risk of transmission

of a deadly, contagious disease entails a significant risk in a particular context. It is

quite another to say, as the majority does, that the probability of transmission is

irrelevant so long as transmission is theoretically possible.

      In this case, the district court asked only whether there was a risk of HIV

transmission, equating a mere possibility of HIV transmission with the significant risk

required for exclusion. No separate analysis of each program weighing the different

risks involved and the likelihood of transmission was conducted to determine whether

plaintiffs were otherwise qualified to participate in any of them. In program after

program, the district court concluded that integration would pose a significant risk,

relying on and repeating verbatim the following paragraph thirty-nine times in the

course of its opinion to justify its holding that the HIV+ inmates were not “otherwise

qualified” to participate in any general population programs:


                                           42
       The Court of Appeals recognized in Harris, 941 F.2d at 1495, 1519-20
       that “high risk behavior occurs disproportionately in prison systems” and
       that “under any system of prison administration, the elimination of high
       risk behavior, such as homosexual behavior or IV drug use is
       impossible.” This Court, too, recognizes that elimination of high risk
       behavior is impossible. There is no guarantee that any conduct will or
       will not occur in a prison setting. 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, along with their managers
       and medical officials, determine that such conduct is likely. 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 integrati[o]n[] . . . would present a
       significant risk of transmitting the deadly HIV virus.

Op. at 62-63 (footnotes omitted) (religious programs).1

       Instead of following this court’s mandate in Harris v. Thigpen, 941 F.2d 1495

(11th Cir. 1991), requiring findings concerning “the risk of transmission . . . with

regard to each program from which appellants have been automatically excluded,” id.

at 1526, the district court simply deferred to the unsubstantiated suspicions of prison

   1
     This same passage was recited throughout the district court’s opinion. See Op. at 72-73
(rehabilitation programs); 82-83 (visitation); 111-12 (vocational programs); 123 (recreational
programs); 132-33 (dining hall); 141-42 (medical clinic); 155-56 (out-of-prison programs); 165
(educational programs); 178-79 (Laubach literacy program) 187 (sewing factory); 195-96 (data
processing jobs); 203-04 (kitchen jobs); 211-12 (yard workers); 221-22 (laundry jobs); 230
(trash recycling jobs); 238-39 (health care unit jobs); 246-47 (gate runner jobs); 254-55 (hair
cutting jobs); 262-63 (use of library/library jobs); 277-78 (Double 0 Squad jobs); 285 (tractor
operator jobs); 296-97 (maintenance jobs); 304 (trash detail jobs); 313-14 (runner jobs); 321-22
(paralegal training class); 331-32 (educational programs); 344 (graduation ceremonies); 363-64
(vocational programs); 378-79 (hair cutting jobs); 386-87 (laundry jobs); 394 (garden jobs); 402-
03 (visitation); 410-11 (medical clinic visits); 420-21 (rehabilitation programs); 429-30
(recreational programs); 439 (library); 446-47 (religious programs); 453 (Alabama Volunteers in
Correction program).

                                               43
officials that transmission would occur.2 Even where there had been no history of

high-risk activity in connection with a particular program, the district court attached

no significance to the absence of such activity, noting that “the lack of incident reports

. . . does not necessarily prove that high risk behavior does not occur,” Op. at 61, only

that such behavior “has not been discovered.” Op. at 62. In its analysis of these

programs and activities, the district court assumed that high-risk behavior would

eventually occur, explaining time and again that prison officials must expect the

unexpected, thereby “allow[ing] the DOC to . . . guard against contingencies which,

under normal circumstances, would be considered only remote possibilities.” Op. at

58. This rejection of evidence in favor of sheer speculation is reflected, for example,

in the district court’s discussion of the out-of-prison programs.3                        Although

acknowledging the evidence that “surveillance by a correctional officer would likely

prevent [high-risk] behavior,” Op. at 152, in some of these programs, the district court

justified its conclusion by constructing the following hypothetical:

       [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-prison detail free to proceed without an escort. An


   2
     The majority, too, makes this error, affirming the district court based on evidence on high-
risk behavior in the prison system as a whole, not in each program as Harris required.
   3
    These programs permit inmates to leave prison, generally in handcuffs, under direct
surveillance of prison guards, to talk to school children about the perils of drug use, to attend a
funeral or seek medical care, or to work outside the institution fence.

                                                 44
      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+ inmates open wounds. An unconscious guard would be
      defenseless, and would perhaps never be fully aware of how the infection
      was contracted. The unexpected must be expected in a penal setting or
      when dealing with convicted felons.

Op. at 153 (footnotes omitted).

      As this passage illustrates, the district court’s analysis found that a mere

possibility of a transmission risk, often based on nothing more than highly speculative

scenarios, justifies the wholesale segregation and exclusion of HIV+ inmates from

prison programs and activities. Under this reasoning, which the majority approves,

an individual is, in essence, subject to segregation and discriminatory treatment simply

for having the HIV virus. This is precisely the result that

§ 504 and Arline’s “significant risk” standard sought to prevent.

      Nor are the cases cited by the majority to support its refusal to follow Bragdon

applicable. These cases uphold the authority of hospitals to prohibit HIV+ physicians

and surgical technicians from performing certain invasive surgical procedures based

on public health guidance authority absent here. See Mauro, 137 F.3d 398 (6th Cir.

1998); Doe v. University of Maryland Medical Sys. Corp., 50 F.3d 1261 (4th Cir.

                                          45
1995); Bradley v. University of Texas M.D. Anderson Cancer Ctr., 3 F.3d 922 (5th

Cir. 1993). First, these cases were decided before Bragdon explained the distinction

between a risk of HIV-transmission and a “significant risk.” Second, none of these

cases hold that any risk of HIV transmission – no matter how small or remote – is a

significant risk as a matter of law. In Mauro, Doe, and Bradley, the courts explicitly

relied on the guidance of public health officials to support their finding of a significant

risk and Bragdon teaches us that “the views of public health authorities,” such as the

Centers for Disease Control (“CDC”), “are of special weight and authority.” Bragdon,

118 S. Ct. at 2211. In Doe, for example, the court emphasized that the CDC had

stated that “hospitals may bar HIV-positive surgeons from performing those

procedures identified by the hospital as exposure prone” and the university concluded

that “all neurosurgical procedures that would be performed by Dr. Doe fit the

definition of exposure-prone procedures . . . .” Doe, 50 F.3d at 1266 (emphasis in

original); see also Mauro, 137 F.3d at 404 (“defer[ring] to the medical judgment

expressed in the Report of the Centers for Disease Control”); Bradley, 3 F.3d at 924

(relying on CDC guidelines). These cases, therefore, conclude, based on explicit CDC

guidance, that a small risk of transmission in that particular context amounts to a

“significant risk.” The record below does not contain any such guidelines or similar

evidence. Moreover, the only testimony below in support of Alabama’s policy


                                            46
consists of the opinions of corrections officials and none comes from any public

health entity unconnected with the parties.

      I likewise believe the majority errs in holding that plaintiffs were not “otherwise

qualified” within the meaning of § 504 because of the prison’s penological interests

in excluding them from the many programs and activities at issue here. In Harris, our

mandate made clear that the prison’s penological interests supporting the segregation

of HIV+ prisoners were not automatically sufficient to render plaintiffs unqualified,

thereby declining to insulate the Alabama prison authorities from liability under the

Rehabilitation Act. We explained that

      it is not enough for the district court simply to rely on general findings
      and prison policy reasons that support segregation. . . . We . . . do not
      believe . . . that the prison’s choice of blanket segregation should alone
      insulate the DOC from its affirmative obligation under the Act to pursue
      and implement such alternative, reasonable accommodations as are
      possible for HIV-positive prisoners with respect to various programs and
      activities that are available to the prison populations at large.

Harris, 941 F.2d at 1527 (footnote omitted).

      Under § 504, the “otherwise qualified” analysis focuses on the requirements of

the program at issue and whether reasonable accommodations would permit the

plaintiff to participate, see Arline, 480 U.S. at 287 n.17, not whether the

discriminatory exclusion is supported by legitimate goals, penological or otherwise.

As Harris makes clear, a § 504 plaintiff is not rendered unqualified to participate in


                                          47
a prison program simply because the prison asserts general penological interests in

excluding him or her from participation.

      This is not to say that penological concerns have no place in a § 504 analysis.

As the Seventh Circuit has explained, “[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,” and “[t]he security concerns that the defendant

rightly emphasizes . . . are highly relevant to determining the feasibility of the

accommodations that disabled prisoners need in order to have access to desired

programs and services.” Crawford v. Indiana Dep’t of Corrections, 115 F.3d 481, 487

(7th Cir. 1997). As Crawford suggests, however, a prison’s legitimate penological

interests must be considered within the established § 504 framework – not by

supplanting this framework with the inapplicable constitutional analysis set forth in

Turner v. Safley, 482 U.S. 78 (1987), as the district court did here. Cf. Dothard v.

Rawlinson, 433 U.S. 321, 334-37 (1977) (considering prison’s penological interests

with established Title VII framework, not constitutional framework).

      Finally, I disagree with the majority’s holding that the district court correctly

concluded that plaintiffs had failed to offer any reasonable accommodations, for




                                           48
several reasons.4 First, the majority errs in affirming the district court’s conclusion

that hiring any additional officers to reduce the risk of HIV-transmission would

impose an undue burden on the Alabama prison authorities to provide reasonable

accommodation. Distancing itself from the district court’s statement that hiring even

a single officer would impose an undue burden, the majority unfairly characterizes the

relief requested by the plaintiffs as integration of all the programs and activities

challenged here, which it asserts would require hiring many additional officers. As

the majority must concede, the inability to accommodate plaintiffs in all the programs

and activities would not justify Alabama’s refusal to provide accommodation in any

of the programs and activities at issue here. The majority nonetheless affirms the

district court because plaintiffs did not specify which programs and activities they

would prefer to integrate. This begs the question since the district court failed to

conduct the correct inquiry into each program as to whether integration would pose

a significant risk and what measures would be required to accommodate plaintiffs.

Thus, this question should also be remanded for a proper evidentiary hearing.



   4
    I would note that both the Supreme Court and this Court have repeatedly recognized that §
504 requires covered recipients to make reasonable accommodations to permit individuals with
disabilities to participate in programs offered by a recipient of federal financial assistance. See
Alexander v. Choate, 469 U.S. 287, 300-01 (1985); Harris, 941 F.2d at 1525-27; Martinez, 861
F.2d at 1505-07. Thus, I find no basis for the majority’s suggestion that the § 504 imposes no
reasonable accommodation mandate and that the source of any duty to provide reasonable
accommodations comes solely from the applicable agency regulations.

                                                 49
      Second, by rejecting the use of the prison risk classification system as a

reasonable accommodation because it is not error free, the majority once again

requires a plaintiff to prove that he or she can not possibly transmit the HIV virus,

thereby equating any possible transmission risk with the significant risk required to

support exclusion under Arline and Bragdon. It may well be that the prison risk

classification system will not suffice to reduce the risk of transmission resulting from

integration to a less than significant one. At this point, however, the record is

inadequate to establish the rate of error in the classification program in accordance

with Arline’s dictates. The district court excluded much, though not all, of the

evidence about this classification scheme and the district court only found that this

system was not error free. It made no findings regarding the likelihood of error.

Accordingly, I believe that the district court’s exclusion of evidence on this point

requires a new trial.

      I would note that it is significant that Alabama prison authorities use this

selection process despite the possibility of error in the risk classification system and

despite the tragic, and even fatal, consequences of error, which have in fact occurred.

The majority offers no explanation why the prison system should be entitled to insist

its risk classification system work in an error-free manner in the HIV context, and this

context alone. Further, it appears that Alabama does not impose a similar policy of


                                          50
segregation and exclusion where other inmates have other contagious diseases, such

as hepatitis.

       Congress and the Supreme Court have recognized that automatic expulsion and

exclusion from society because of          “health risks” have historically masked

discrimination against individuals with contagious diseases based on prejudice and

baseless fear. Certainly, care must be taken to minimize risk of infection, but care

must just as certainly be taken to assure that a society that aspires to be just does not

make outcasts of its stricken citizens. In this case, no fair assessment of the risks

involved was conducted and no fair consideration was given to reasonable

accommodations which could have minimized to an acceptable level those risks which

did exist. No balancing of rights occurred here. Thus, I respectfully dissent.




                                           51
HULL, Circuit Judge, dissenting:

       I respectfully dissent. The district court’s decision should be vacated and the

case retried because the district court refused to consider applying Alabama’s inmate

risk classification system as a reasonable accommodation, denied plaintiffs a fair trial,

and failed to follow this Court’s mandate in the prior appeal of this case, Harris

v.Thigpen, 941 F.2d 1495 (11th Cir. 1991).

       I agree with the majority that requiring more prison guards to prevent high-risk

behavior by inmates is an “undue burden” and that federal courts should not run

Alabama’s prisons, much less micro-manage the state’s prison budget. However, the

district court erred in refusing to consider plaintiffs’ alternative “reasonable

accommodation” of utilizing the Alabama DOC’s ongoing inmate risk classification

system, which already analyzes each inmate’s psychological, penological, and

behavioral history.1        Plaintiffs sought to show the DOC could reasonably

accommodate at least some HIV-positive inmates in at least some religious,

educational, vocational, and recreational prison programs by using its existent inmate




   1
    The Supreme Court and this Court have indicated that § 504 of the Rehabilitation Act
requires covered recipients of federal funds to make “reasonable accommodations” to permit
individuals with disabilities, such as HIV, to participate in programs offered by such recipients.
See Alexander v. Choate, 469 U.S. 287, 299-302 (1985); Harris, 941 F.2d at 1525-27; Martinez
v. School Bd. of Hillsborough County, Fla., 861 F.2d 1502, 1505-07 (11th Cir. 1988). Thus,
Alabama has to comply with the Rehabilitation Act because it accepts federal funds.

                                                52
risk classification system to do individualized assessments of transmission risks – as

opposed to the current blanket segregation from most prison programs.2

A.       Majority Acknowledges District Court’s Errors

         The majority acknowledges the district court’s errors in not following the Harris

panel’s mandate and in not allowing plaintiffs to introduce evidence regarding inmate

risk classification as a reasonable accommodation. The majority states:

         (1) that “[t]he Harris panel directed the district court to consider reasonable

accommodations, see Harris, 941 F.2d at 1527,” and that “[t]he Harris panel directed

the district court on remand to consider whether reasonable accommodations would

permit the plaintiffs to participate in any of the programs at issue. See Harris, 941

F.2d at 1527.”3




     2
   In holding that Title II of the ADA applies to state prisons, the Supreme Court noted that
“[m]odern prisons provide inmates with many recreational ‘activities,’ medical ‘services,’ and
educational and vocational ‘programs,’ all of which at least theoretically ‘benefit’ the prisoners.”
Pennsylvania Dep’t of Corrections v. Yeskey, ___ U.S. ___, 118 S. Ct. 1952, 1955 (1998).
     3
    Indeed, the Harris panel expressly stated that the district court on remand should “examine as
to each [prison] program whether ‘reasonable accommodations’ by the DOC could minimize
such [HIV] risk to an acceptable level.” Id. at 1527. The Harris panel expressly directed that
“whether the risk of [HIV] transmission is sufficient to warrant categorical exclusion, and if so,
whether that risk can be rendered minimal through accommodation, are findings the district court
must make on remand.” Id. at 1527 n.47. The Harris panel remanded 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.” Id. at
1527.

                                                53
      (2) “that the Harris panel sensibly concluded that differences among the

programs in which the plaintiffs seek to participate required different analyses. See

Harris, 941 F.2d at 1527.”

      (3) that “one reasonable accommodation that the plaintiffs proposed was for the

Department of Corrections to refine existing systems of inmate classification to detect

HIV-positive inmates who were highly unlikely to engage in high-risk behavior and

to permit those inmates to participate in integrated programming. At trial, however,

each time the defendants objected to classification evidence, the district court

excluded it on the reasoning that any evidence tending to be about individual inmates

– even if the evidence concerned inmate classification systems in general – was

outside the scope of the retrial mandated by this court”; and,

      (4) that “[t]he district court should not, therefore, have excluded the plaintiffs’

evidence about classification, and it should have considered classification as a

reasonable accommodation.” So far, so good. The majority then wrongly concludes

that these errors do not require reversal.

B.    Majority Wrongly Concludes Errors Do Not Require Reversal

      The majority finds these new errors do not require reversal because some

evidence about classification leaked in through the exclusion and the district court’s

finding that prisoners are “unpredictable” was “implicitly” a consideration and


                                             54
rejection of inmate risk classification as a reasonable accommodation. I disagree for

several reasons.

       First, the record shows unequivocally that at trial the district court refused to

consider inmate classification as a reasonable accommodation for any program and

refused to admit plaintiffs’ substantial evidence about inmate classification. For

example, in one instance, the court explained, “I did not let [plaintiffs’ expert witness]

go into the fact that there were some inmates that perhaps could be cleared for certain

of these programs and others cannot. Because this is a class action not composed of

a division between those type people.” R.26 at 15. For other similar comments, see

R.24 at 290 (“Well, you now want to say that you want to introduce evidence that

there are some people in the class of HIVs who are excluded that ought not to be

excluded. And . . . that is not an issue in this case and I mustn’t get into it.”); id. at

291 (“. . . I am going to make you stick to the whole class unless the other side says

they are ready to defend on less than the whole class.”); id. at 299 (“[W]e don’t get

to look at it from the viewpoint of singling out some HIV, who is the best of all the

rest, like some people have done in cases.”); id. at 300 (“I am not going to let you

offer all this business about what people you can break down and what people you

can’t. It is a class and it is a class action, and that is the way it is going to be tried.”);

R.26. at 18 (“. . . I followed, or think I followed, the order of the court of appeals that


                                             55
I consider these matters particularized as to programs and activities but not as to

persons. And you have tried to make it a proceeding wherein you particularize . . .

or I would have to particularized [sic] my findings between persons; individual

persons.”); id. at 19 (“[Y]ou might as well quit. You are keeping your expert here

unnecessarily to go through a great number of words that really lead back to the

question of whether I am supposed to have a hearing considering the rights of a class

or of individual members of the class. And I understand that I am here to consider the

rights of the class; not individual members of it. And I have so restrained you where

I could.”); id. (“[Y]ou are trying to get me to break the class down into individualized

claims, which I can’t do.”).

        Second, the majority incorrectly contends that substantial evidence about the

inmate classification process leaked in through the exclusion. The majority lists this

“substantial evidence” in footnote 19. A review of all record cites in footnote 19

reveals that the evidence that leaked in consisted of only one manual and less than

thirty pages of testimony in a thirteen-volume, 3654-page trial transcript. Moreover,

the district court expressly refused to consider such evidence that leaked in and even

struck some of it from the record.4

   4
    In at least one instance, the district court clarified that it would not consider the classification
evidence that had leaked in, and the court directed that the testimony be struck from the record.
R.34 at 214. Plaintiffs’ attorney then inquired, “Am I understanding correctly that . . . any
information about determining which inmates are likely to engage in high risk behavior, meaning

                                                  56
       Moreover, the district court refused to admit the substantial evidence plaintiffs

did proffer. Here is but one example of plaintiffs’ proffers:

              Plaintiffs, also offer to prove that classification is a traditional tool
       of prison management by which the Alabama DOC, like all other DOCs,
       makes distinctions among inmates, and that the classification process is
       done [on] an individual basis, inmate by inmate.
              We would offer to prove that in making those classification
       decisions the DOC looks at the inmate’s criminal history institutional
       disciplinary history, psychological tests administered by the staff
       psychologist and similar factors; a team of people come together for each
       inmate to make the classification assessment, a person from
       Classification, a psychologist, a warden or assistant warden. And that
       classification process includes precisely an assessment of whether the
       inmate poses a significant risk of harming other inmates or other staff on
       an inmate-by-inmate or individual basis.
              And we would prove that, in fact, the Alabama classification
       process expressly addresses the factor of whether an inmate as [sic]
       aggressive homosexual. That is, the DOC’s classification process
       already addresses some of the behavior related to transmission of HIV
       and it would be a reasonable accommodation to have . . . to use that
       classification system to qualify inmates with HIV for programs and
       activities.
              We would offer to prove that using the information that the
       classification team is in a position to gather in the course of it[s] duties,
       the classification process result in the assignments of a custody level to
       an inmate ranging from community custody to minimum-in, to
       minimum-out, to trustee, to medium, to close, to maximum. And,
       moreover, that the classification team makes recommendations about
       programs that the inmate should participate in, including rehabilitation
       programs, education, trade school and community jobs. The DOC
       institutional job board then actually looks at the classification materials
       and makes an assessment on and an assignment. And this assignment is

culling the good from the bad, will not be allowed?”, to which the court responded, “That is
correct. That is a fairly good analysis of it. . . . Now I will let you ask and I will try to rule
against you if you ask the wrong questions. I won’t tell you you can’t ask.” R.34 at 216.

                                                  57
       on an individualized basis of inmates to trade school, community job and
       other job assignments.
              Our proof would be that the DOC institutional job board already
       selects among general population inmates and decides that some of them
       and not others will participate in particular programs.
              The plaintiff’s proof would address these facts. Plaintiff’s
       position is that the same selection and screening process that is already
       applied to general population inmates through the institutional job board
       could be utilized, possibly with enhanced factors, to determine who may
       participate in particular jobs and other programs.
              Plaintiffs would offer to prove that other jurisdictions have
       devised classification systems for HIV positive inmates by which the
       issue of whether an inmate poses a significant risk of transmission is
       determined on an individualized basis inmate-by-inmate as part of its
       classification system, and that this would be a reasonable thing for
       Alabama to do.
              We would show that the Federal Bureau of Prisons has a system
       by which inmates who engage in high risk activity are segregated and
       remain segregated until an assessment is made that an inmate has
       rehabilitated himself such that he no longer poses a risk of transmission.

R.26 at 15-18. The district court repeatedly refused to allow plaintiffs to present such

proof.5

       Even if a paucity of evidence about classification, as I find, or “substantial

evidence,” as the majority finds, leaked in through the exclusion, the district court’s

errors still require reversal because the district court refused to consider such evidence

and never made any findings of fact or legal analysis about inmate classification as a

“reasonable accommodation.” The majority finds that the district court “implicitly”


   5
   See, e.g., R.24 at 289-91; id. at 299-300; R.26 at 15-20; R.34 at 214-15; R.35 at 214; id. at
215; id. at 220; id. at 222; id. at 227; id. at 228; id. at 230; id. at 231.

                                                58
did so because the district court found inmates are “unpredictable.” The majority’s

analysis on this point is as follows:

      The [district] court found that inmates are “untrustworth[y],”
      “volatil[e],” “unpredictable,” and subject to “great pressures from
      conflicting sources.” . . . Therefore, the court found, prison officials must
      always “prepare[] for the worst” and “expect the unexpected.” (Id. at 57,
      58.) These findings are an implicit rejection of plaintiffs’ arguments. If
      prisoners are inherently “unpredictable,” as the district court found, then
      classification is not a reasonable way of integrating programs, because
      it does not reduce the risk of HIV transmission.

I respectfully submit that the district court’s finding that prisoners are “unpredictable”

is not an “implicit rejection” of plaintiffs’ classification arguments and does not show

that “the district court implicitly considered the feasibility of classification.”

Prisoners’ being “unpredictable” is no factual finding – much less a legal analysis –

about whether inmate classification is a reasonable accommodation for at least some

HIV-positive inmates for at least certain prison programs.

      Finally, this is no first appeal where “implicit” district court findings might be

justifiably found by an appellate court from an ambiguous record. This is the second

appeal after the Harris panel’s decision reversed, expressly directed the district court

to consider reasonable accommodations, and remanded “for additional findings and

clarification by the district court.” Id. at 1528. Rather than requiring the district court

to make the legal analysis or factual findings required by the Harris mandate, the

majority wrongly excuses the district court’s errors by finding that the district court

                                            59
somehow “implicitly” did what it plainly did not do and expressly in the record

refused to do.

C.     Errors Affected a Core Issue and Denied Plaintiffs a Fair Trial

       There is justifiable reluctance to reverse and remand once again for a new trial

in this protracted case. But a retrial is required because the district court’s clear errors

affected a core issue in the case and substantially prejudiced the plaintiffs’ trial. By

negating one of plaintiffs’ principal claims – namely, that applying the DOC’s inmate

risk classification system would allow at least some HIV-positive prisoners to be

accommodated reasonably in certain prison programs – the district court drew into

question its judgment with respect to each prison program for which plaintiffs

suggested individualized risk assessment as a reasonable accommodation.

       Although appellate courts should refrain from second-guessing prison officials

and district courts in their difficult jobs, appellate courts should assure the

fundamental right to a fair trial. The Harris panel aptly concluded that “it may turn

out that the court’s conclusion of the significance of the risk of HIV transmission with

regard to each program will be unaltered.” Harris at 1526. I likewise do not predict

the result of a fair trial – but know only that plaintiffs were denied one.

       In conclusion, the district court did not follow the Harris panel’s mandate, erred

in precluding much of plaintiffs’ evidence regarding inmate risk classification, erred


                                            60
in refusing to consider the evidence that leaked in regarding inmate risk classification,

and erred in refusing to consider inmate risk classification as a reasonable

accommodation. Respectfully, I would vacate the district court’s decision and remand

this case for a new trial.6 Because I find that remand for a new trial is required, I do

not reach the other issues presented by this appeal.




   6
    It is noteworthy that the Harris panel aptly observed, “Intuitively, however, it seems as if
there are several programs or activities in which the risk of transmission would be rather
minimal. An example is the participation of seropositive prisoners in college classes.” Harris,
941 F.2d at 1527 n.47. Intuitively, it does seem as if there are at least a few programs, such as
religious services and college classes, where the transmission by non-violent seropositive
offenders with no history of high-risk behavior or aggressive behavioral problems would be so
remote or non-existent as to allow integration as opposed to blanket segregation. This is
especially true given that the profile of a state’s inmates is usually as diverse as that of a state’s
population: male and female, of all races and creeds, college educated and illiterate, with or
without high school diplomas, rich and poor, and guilty of crimes ranging from mass murders to
non-violent credit card fraud. Likewise, the causes of inmates’ HIV-positive status are equally
varied and range from transmissions from mother to fetus during pregnancy or childbirth,
transfusions during operations, and consensual marital sexual relations to intravenous drug use,
needle-sharing, and other high-risk behavior. Some prisoners have a history of no high-risk
behavior while other inmates have just the opposite history. This further exemplifies why the
district court’s errors in excluding plaintiffs’ evidence denied plaintiffs a fair trial.

                                                  61
