ON RESPONDENTS’ SUGGESTION FOR REHEARING EN BANC
Before: ROBINSON, Chief Judge, and WRIGHT, TAMM, WALD, MIKVA, EDWARDS, GINSBURG, BORK, SCALIA and STARR, Circuit Judges. PER CURIAM.Respondents’ suggestion for rehearing en banc has been transmitted to the full Court. A majority of the judges of the Court in regular active service have not voted in favor thereof. Upon consideration of the foregoing, it is
ORDERED, by the Court en banc, that the suggestion is denied.
A dissenting opinion filed by Circuit Judge BORK is attached and is joined by Circuit Judges SCALIA and STARR.
BORK, Circuit Judge, with whom Circuit Judges SCALIA and STARR join, dissenting:
The panel opinion in this case conflicts with the Supreme Court’s decision in Grove City College v. Bell, 465 U.S. 555, 104 S.Ct. 1211, 79 L.Ed.2d 516 (1984). For that reason, this case should be reheard en banc.
In a final rulemaking, the Civil Aeronautics Board (“CAB”) determined that only those airlines receiving a direct subsidy under the Federal Aviation Act are federally assisted within the meaning of section 504 of the Rehabilitation Act, 29 U.S.C. § 794 (1982). This court held, however, that all activities of commercial airlines are federally assisted programs or activities because the airlines make use of airports that accept-federal funds under the Airport and Airway Improvement Act of 1982. Thus, all airlines, regardless of whether they receive direct federal assistance, are subject to section 504. The court vacated CAB’s rulemaking and ordered CAB to promulgate regulations pursuant to section 504 to be applied to all airlines. Airlines are transformed into “recipients” of federal assistance, according to the panel, because airports and the facilities are “inextricably intertwined” with and “indispensable” to air travel. Paralyzed Veterans of America v. CAB, 752 F.2d 694, 712, 715 (D.C.Cir. 1985).
This reading of section 504’s statutory language would make every commercial enterprise a “recipient” of federal aid when it merely makes use of a service or facility that receives any federal assistance. That idea has great potential. Trucking and bus companies use federally constructed and maintained highways, and their businesses are- thus inextricably intertwined with a federally assisted program. Many electric companies rely on dams constructed and maintained with federal funds. Without the National Weather Service farmers would be unable to plan, protect, and cultivate their crops in an effective manner. It ought surely to be true that federal funding of federal courts results in the regulation of law firms since courts are inextricably intertwined with and indispensable to lawyering.
It is clear that the panel has not followed the decisions in Grove City and North Haven Board of Education v. Bell, 456 U.S. 512, 102 S.Ct. 1912, 72 L.Ed.2d 299 (1982). These decisions are especially apposite because they interpret civil rights legislation upon which section 504 was modeled. As the panel opinion recognized, “courts have duly noted the extent to which the language of [section 504 of the *269Act] corresponds to that of Title VI of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972, frequently applying the case law developed in those areas to the resolution of problems arising under the Rehabilitation Act.” 752 F.2d at 707 (footnotes omitted).1
In North Haven, the Court concluded that Title IX’s reach is limited by its “program-specific” language. The Court rejected an institution-wide approach, as inconsistent with the language and legislative history of the statute. 456 U.S. at 536-38, 102 S.Ct. at 1926-27.
In Grove City, the Court again rejected the institution-wide approach and defined “program or activity” by limiting coverage of Title IX to only those “programs or activities” specifically funded by the federal government, even if those programs were part of a larger whole. 104 S.Ct. at 1220-21. The Court held, therefore, that tuition grants to students did not allow the grant agencies under Title IX to regulate all programs at the school. The purpose of tuition grants is to assist the school’s financial aid program and that is the only program considered to have received federal funds under Title IX. Id. at 1221. Under Grove City, the airlines here are clearly not “recipients” of federal funds. The airports are, and the ground activities of the airlines integral to the operation of the airport may be, subject to section 504. However, the non-airport activities of the airlines, such as in-flight procedures, are outside the scope of that section.2
The panel’s attempts to distinguish this case from Grove City are wholly unpersuasive. It would unduly extend this dissent, however, to deal with those contentions in detail. The Supreme Court has been over this ground, and we ought to accept, rather than evade, its conclusion.
I would grant the petition.
. Section 504 provides:
No otherwise qualified handicapped individual in the United States ... shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance....
29 U.S.C. § 794 (1982) (emphasis added).
Title VI of the Civil Rights Act of 1964 provides:
No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.
42 U.S.C. § 2000d (1982) (emphasis added).
Title IX of the Education Amendments of 1972 provides:
No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance____
20 U.S.C. § 1681(a) (1982) (emphasis added).
. Indeed in previous regulations under Title VI, the Federal Aviation Administration recognized that in the case of aid to airports, the scope of "program or activity receiving Federal assistance" only reached operations at the airport and not air transportation:
(2) The operator of an airport who is the recipient of Federal financial assistance is bound by the conditions and covenants in the conveyance that prohibit, among other things, discrimination for reason of color, race or national origin in admission of the public to waiting rooms, sightseeing areas, sanitary facilities, and any other facilities under the control of the airport operator himself.
14 C.F.R. § 15.5(c)(2) (1968). The successor regulation, 49 C.F.R. Part 21, Appendix c(a)(2) (1984), was expanded to clarify that any activity physically taking place in the airport was covered even if the airlines leased or bought the space.