UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 2, 2006*
Decided November 6, 2006
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
No. 06-2011
TERRANCE J. SHAW, Appeal from the United States District
Plaintiff-Appellant, Court for the Eastern District of
Wisconsin
v.
No. 04-C-979
JUDY SMITH and MATTHEW
FRANK, William E. Callahan, Jr.
Defendants-Appellees. Magistrate Judge.
ORDER
Terrance Shaw, an inmate at Oshkosh Correctional Institution (OCI),
appeals from the district court’s order granting summary judgment to defendants
and dismissing his lawsuit under Title II of the Americans with Disabilities Act
(ADA), 42 U.S.C. § 12131 et seq. and 42 U.S.C. § 1983. Shaw asserts that OCI’s
warden, Judy Smith, and the Secretary of the Wisconsin Department of
*
After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 06-2011 Page 2
Corrections, Matthew Frank, violated his rights under the ADA and the Equal
Protection Clause by prohibiting him from participating in the prison’s Youth
Awareness Program because he is a sex offender. Shaw has failed to show either
that he is disabled under the ADA or that the defendants’ policy of excluding all sex
offenders from the Youth Awareness Program lacks a rational basis. We affirm.
Shaw, who is serving a life sentence plus 20 years for the rape and murder of
a female adult, asked to participate in the Youth Awareness Program in 2004. This
program allows a select group of approximately twelve inmates to speak to young
people (many of them from troubled backgrounds) about the dangers and
consequences of crime. Shaw’s request was denied because OCI has a policy
prohibiting sex offenders from participating in this program. The defendants justify
this policy on the ground that exposing children—who may have been victimized
themselves or who may be at risk for delinquency—to sex offenders would be
counterproductive. They also say that OCI’s community partners in the Youth
Awareness Program oppose the participation of sex offenders because of the high
rate of recidivism among sex offenders and the tendency of sex offenders to exploit
children.
A magistrate judge, presiding with the parties’ consent, granted summary
judgment to the defendants. The judge concluded that Shaw’s status as a sex
offender did not qualify as a disability under the ADA. The judge also concluded,
after considering the defendants’ justifications for their decision, that Shaw’s equal
protection claim failed because the decision to exclude sex offenders from the Youth
Awareness Program was rationally related to the “legitimate penological concern of
security.”
On appeal Shaw first argues that the magistrate judge erroneously rejected
his argument that he was disabled under the ADA because the defendants regard
him as having a disability. Shaw concedes here, as he did in the district court, that
he does not actually have a physical or mental impairment as defined in the ADA,
but he continues to insist that he qualifies as disabled under 42 U.S.C.
§ 12102(2)(C), because he is regarded as having an impairment covered by the
statute. However, the regulations implementing the ADA specify that “disability
does not include . . . sexual behavior disorders,” 28 C.F.R. § 35.104(5)(I), and the “as
regarded” section of the ADA is not meant to be used to secure recognition of an
impairment that is explicitly excluded from the ADA’s definition of “disability,”see
Richards v. City of Topeka, 173 F.3d 1247, 1251 (10th Cir. 1999).
We next turn to Shaw’s argument that the defendants violated his rights
under the Equal Protection Clause. Shaw argues that the magistrate judge ignored
his arguments refuting the defendants’ justifications for the policy of excluding all
sex offenders from the Youth Awareness Program. In particular, he points to his
No. 06-2011 Page 3
argument that, because sex offenders may have been convicted of any one of
seventeen different offenses and thus may vary in their characteristics, it is
arbitrary and irrational to decide that they are all unsuited to participate in the
program. He also asserts that the defendants presented no evidence to support
their conclusion that prohibiting all sex offenders from participating in the Youth
Awareness Program is necessary.
The defendants’ decision here to exclude sex offenders from this program
survives rational-basis review. Under this lenient standard, the prison’s policy
must be upheld if we can reasonably conceive of any justification for it. See Smith
v. City of Chicago, 457 F.3d 643, 652 (7th Cir. 2006); Greater Chicago Combine &
Ctr., Inc., 431 F.3d 1065, 1071–72 (7th Cir. 2005); Racine Charter One, Inc. v.
Racine Unified Sch. Dist., 424 F.3d 677, 685 (7th Cir. 2005). The prison’s policy
need not fit perfectly with its objective. See Brown v. City of Michigan City, 462
F.3d 720, 734 (7th Cir. 2006); Zehner v. Trigg, 133 F.3d 459, 463 (7th Cir. 1997). As
the magistrate judge noted, the defendants submitted sufficient evidence to support
their decision. Smith and Dr. Lori Adams, a psychologist at the prison who
recommended that Shaw not be allowed to participate, both testified by affidavit
that some of the children in the Youth Awareness Program “may be at risk for
delinquency and may have been victimized by others.” The magistrate judge also
noted Smith and Adams’s testimony that OCI’s community partners in the Youth
Awareness Program did not want sex offenders to participate because of the high
rate of recidivism among sex offenders and the tendency of sex offenders to exploit
children. The defendants could have rationally concluded that excluding sex
offenders from the program was necessary to protect vulnerable children. See
Conn. Dep’t of Pub. Safety v. Doe, 538 U.S. 1 (2003); Mahfouz v. Lockhart, 826 F.2d
791, 794 (8th Cir. 1987) (per curiam) (excluding sex offenders as a group from work-
release program rationally related to legitimate purpose of preventing sex crimes).
For the above reasons, we AFFIRM the district court’s decision.