(concurring):
I concur in the result reached by Judge Meskill’s thorough and carefully considered opinion. However, I do not agree fully with some of its reasoning.
I do not subscribe to the majority’s statement that a plaintiff may not use a “disparate impact” theory to establish a claim under § 504 of the Rehabilitation Act. In my view a plaintiff should be permitted to prove a violation of that Act by showing that a facially-neutral practice has a disparate impact on members of a protected class, just as a plaintiff may do to establish a violation of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634 (1976 & Supp. V 1981), or of Title VII, 42 U.S.C. §§ 2000e-2000el7 (1976 & Supp. V 1981). The procedure is now well established as a method of enforcing anti-discrimination statutes. See Dothard v. Rawlinson, 433 U.S. 321, 329, 97 S.Ct. 2720,2726, 53 L.Ed.2d 786 (1977); Griggs v. Duke Power Co., 401 U.S. 424, 429-30, 91 S.Ct. 849, *784852-53, 28 L.Ed.2d 158 (1970); Geller v. Markham, 635 F.2d 1027,1032 (2d Cir.1980), cert. denied, 451 U.S. 945,101 S.Ct. 2028, 68 L.Ed.2d 332 (1981). Nothing in the Rehabilitation Act distinguishes it in this respect from other antidiscrimination statutes. That Act’s failure to mention the “adverse disparate impact” test, which is relied on by the majority, has no significance; no such mention is found in Title YII or the Age Discrimination in Employment Act.
Nor is there any support in the legislative history of § 504 for the conclusion that Congress intended to preclude a disparate impact theory. The legislative history of § 504 is sparse, New York Association for Retarded Children v. Carey, 612 F.2d 644, 649 n. 5 (2d Cir.1979). Yet in drafting the Rehabilitation Act in 1973 Congress was well aware of Griggs’ disparate impact theory, and its silence on this subject must be construed as incorporation of the Griggs analysis. “As is apparent from its language, Section 504 is intended to be part of the general corpus of discrimination law.” Carey, supra, 612 F.2d at 649. Since that “corpus of discrimination law” includes a disparate impact theory, such a theory is also presumptively available to plaintiffs under the Rehabilitation Act in the absence of a clear statutory mandate to the contrary.
Moreover, the Supreme Court implicitly recognized a disparate impact theory under § 504 in Southeastern Community College v. Davis, 442 U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979). There, after concluding that the refusal to admit the plaintiff who suffered from deafness into a nursing program did not violate § 504 because she was not an “otherwise qualified individual” who was denied admission “solely by reason of ... handicap,” id. at 405-06, 99 S.Ct. at 2566, the Court inquired into whether the facially neutral requirement of hearing was an indispensible qualification. Thus it indicated that, if the requirement was not bona fide and had a disparate impact, the plaintiff might have made out a case under the Act. But since ability to hear was a valid requirement and the term “otherwise qualified handicapped individual” means a person qualified in spite of his handicap, which must be taken into consideration, she could not succeed. Id. at 406, 99 S.Ct. at 2367. See also Doe v. New York University, 666 F.2d 761 (2d Cir.1981).
None of the cases cited by the majority is to the contrary. Indeed the court in Pushkin v. Regents of the University of Colorado, 658 F.2d 1372, 1385 (10th Cir.1981), noted that
“[i]t would be a rare case indeed in which a hostile discriminatory purpose or subjective intent to discriminate solely on the basis of handicap could be shown. Discrimination on the basis of handicap usually results from more invidious causative elements and often occurs under the guise of extending a helping hand or a mistaken, restrictive belief as to the limitations of handicapped persons. A claim under § 504 would be analyzed more readily under a ‘disparate impact’ theory where it is claimed that a facially neutral practice has a discriminatory impact on persons within a protected class.” Id. (citing Griggs v. Duke Power, 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971)) (emphasis added).
Lastly, as the majority concedes, a number of circuits have sanctioned use of the disparate impact analysis in cases under § 501 of the Rehabilitation Act. See, e.g., Prewitt v. United States Postal Service, 662 F.2d 292, 306-07 (5th Cir.1981).
I also have serious question about the majority’s reliance, in its consideration of appellants’ due process claims, on what it characterizes as the “voluntary” nature of the parents’ decision to obtain state-subsidized residential care for their children. Although use of the state’s temporary foster care system may in many instances be voluntary, in others it is not. As the Supreme Court pointed out with respect to New York’s system in Smith v. Organization of Foster Families, 431 U.S. 816, 824-25, 97 S.Ct. 2094, 2099, 53 L.Ed.2d 14 (1977), “resort to such placements is almost compelled.”
*785Notwithstanding these differences, I concur in the result for the reason that the record demonstrates that, even if a case based on disparate impact were established, valid grounds exist for transfer of temporary foster custody.