{concurring).
I agree with the majority that New Hampshire has .a right to require that each driver *52licensed by the state meets the essential eligibility requirement of being able to drive safely. I also agree that there is no violation of the ADA in the Commissioner’s requirement that Theriault, as part of the license renewal process, perform a road test in order to establish that he still meets that essential eligibility requirement. The majority says there is no violation because requiring Ther-iault to take a road test to gain the renewal of his license was not discrimination within the meaning of the ADA. I conclude that there was no violation because requiring Theriault to take a road test, though discriminatory within the meaning of the ADA, was permissible discrimination under the Act. I believe those divergent routes reflect important differences in the application of the ADA, and I therefore write separately.
I.
This case involves a challenge to New Hampshire’s method of administering its driver’s license renewal program. In my view, that program discriminates on the basis of disability as the term “disability” is defined in the ADA: “The term ‘disability’ means, with respect to an individual — (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” 42 U.S.C. § 12102(2) (emphasis added). Pursuant to the New Hampshire Department of Safety regulation, an applicant can be required to take a road test to renew his or her driver’s license
if the director has any reason to believe the applicant may be a hazard to public safety if licensed to drive, such as but not limited to apparent psychological or physical impairment.
N.H.Code Admin. R. [Saf-C] 1003.27(b) (emphasis added). This regulation clearly distinguishes between those who have an apparent disability, described as an apparent psychological or physical impairment, and those who do not. The requirement that Theriault take a road test because of his apparent disability was discriminatory within the meaning of the ADA.9
II.
In concluding that the New Hampshire regulation does not “discriminate” on the basis of disability as that term is used in the ADA, the majority focuses primarily on “meaningful access” to government services and programs. Inasmuch as Theriault received a driver’s license renewal, the majority is correct in recognizing that one of the goals of the ADA has been vindicated. However, this focus on access does not permit adequate review of the process through which the government determines qualifications for a program. That process may be as discriminatory as the ultimate determination of eligibility itself. Yet the majority seems to say that it is only once all the qualification judgments have been made, and the entitlement to access established, that the disabled can claim that there is discrimination within the meaning of the ADA if access to the program is denied.
The majority cites the ADA’s prohibition of discrimination against “qualified” individuals to support its conclusion that different treatment of a disabled individual during a “threshold inquiry” into qualifications is not discrimination within the meaning of the ADA. So long as some reasonable, objective basis for questioning an applicant’s qualifications is present, there is no discrimination. Thus, in the qualifications context, the majority reads an “invidiousness” or “irrationality” element into the statutory definition of “discrimination.”
I think that is too narrow a view of the ADA, one purpose of which is “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101. Congress did not premise the ADA on “reasonable” assumptions about people with disabilities. The ADA establishes a framework for scrutinizing all government regulations that discriminate on the basis of disability, not just unreasonable ones. In *53enacting the ADA, one of Congress’ targets was society’s basic assumption that it is reasonable to link “disabled” with “not qualified.” Congress recognized the inherent unfairness embodied in such assumptions:
The discriminatory nature of policies and practices that exclude and segregate disabled people has been obscured by the unchallenged equation of disability with incapacity and by the gloss of “good intentions.” The innate biological and physical “inferiority” of disabled people is considered self-evident. This “self-evident” proposition has served to justify the exclusion and segregation of disabled people from all aspects of life.
S.Rep. 101-116, at 16 (1989); H.R. Rep. 101-485, at 41 (1990) (quoting testimony of Arlene Meyerson), reprinted in 1990 U.S.C.C.A.N. 267, 328. Congress was of course concerned with ensuring that qualified individuals with disabilities be given opportunities commensurate with their real abilities. But Congress also took cognizance of the discrimination experienced by the disabled during the process of gaining access to opportunity and sought to limit such discrimination. The stigmatic effects of such discrimination are very real, leading Congress to conclude that “[discrimination produces fear and reluctance to participate on the part of people with disabilities.” S. Rep. 101-116, at 16 (1989); H.R. Rep. 101-485, at 42 (1990), reprinted in 1990 U.S.C.C.A.N. 267, 324. That is why additional administrative requirements applied only to those with an apparent disability are subjected to the more searching inquiry of necessity rather than mere reasonableness. See 28 C.F.R. § 35.130(b)(7) (discussed below).
New Hampshire’s regulation classifies people on the basis of apparent disability rather than on their actual ability to drive safely. Simply put, New Hampshire discriminates against the entire class of disabled persons— qualified and not qualified alike — to ensure that no driver’s license is issued to a disabled person who cannot drive safely (and, thus, is not qualified). New Hampshire’s regulation discriminates against both qualified and non-qualified individuals with disabilities by singling out disabled individuals as a group for separate treatment. It is the use of disability as a proxy for “presumptively not qualified” that works the discrimination of which Theriault complains.
Assuming non-disabled individuals are qualified while assuming disabled individuals are not is generally inconsistent with the ADA. A similar proscription from Title I of the ADA10 helps to inform this understanding. The ADA explicitly forbids discrimination “in regard to job application procedures” and specifies that the term “discriminate” includes “limiting, segregating, or classifying a job applicant in a way that adversely affects the opportunities or status of such applicant or employee because of the disability of such applicant.” 42 U.S.C. § 12112. In Title I language very similar to the Title II regulation (28 C.F.R. Part 35) under which we review New Hampshire’s driver’s license renewal program, the ADA prohibits the utilization of “standards, criteria, or methods of administration ... that have the effect of discrimination on the basis of disability.” 42 U.S.C. § 121Í2(b)(3). Methods of administration which assume that non-disabled individuals are more likely to be qualified than disabled individuals “have the effect of discriminating on the basis of disability,” even if they have intuitive appeal as reasonable.
The majority further concludes that New Hampshire’s program does not discriminate on the basis of disability because the road test requirement was based on the symptoms of a disability (Theriault’s limited use of his hands) rather than the disability itself (cerebral palsy). The majority disassociates Theriault’s disability from the symptoms of that disability, stating that “[tjhere is no evidence ... that Theriault was singled out because he is a disabled individual.” Instead, he was asked to take the road test *54because of “his physical condition on the day of the test.” I question the validity of this distinction. Theriault was singled out for a road test because he has a disability which always manifests itself in the limited use of his hands. He is disabled because he has these symptoms.
I think School Board of Nassau County, Fla. v. Arline, 480 U.S. 273, 107 S.Ct. 1123, 94 L.Ed.2d 307 (1987), does not support the majority’s distinction between a response to the symptoms of a disability and the disability itself. In Arline, the school board sought to shield its treatment of a teacher with tuberculosis from review under Section 504 of the Rehabilitation Act of 1973.11 Id. at 276, 107 S.Ct. 1123. The school board argued that its treatment of Arline was not based on her tuberculosis as such, but on her contagiousness. Id. at 281-82, 107 S.Ct. 1123. The Supreme Court rejected this reasoning, opining that “[i]t would be unfair to allow an employer to seize upon the distinction between the effects of a disease on others and the effects of a disease on a patient and use that distinction to justify discriminatory treatment.” Id. at 282, 107 S.Ct. 1123. A fortiori, if the law does not recognize a distinction between a. disability and its possible effect on others (i.e., contagiousness), the law does not recognize a distinction between a disease and its effect on the afflicted individual himself. As the Supreme Court recognized,
Congress extended coverage ... to those individuals who are simply “regarded as having” a physical or mental impairment. The Senate Report provides as an example of a person who would be covered under this subsection “a person with some kind of visible physical impairment which in fact does not substantially limit that person’s functioning.”
Id. (quoting S. Rep. 93-1297, at 64). Ther-iault is just such an individual: he has a visible physical impairment which in fact does not substantially limit him from functioning as a driver. Nonetheless, Theriault was treated differently because of his visible physical impairment, which is exactly what Congress sought to address through the ADA.
III.
Recognizing that discrimination is taking place is critical because it shifts the burden to the government to justify the discrimination. Thus, a policy or practice that discriminates on the basis of disability in the administration of a governmental program cannot be defended on the basis that the policy is reasonable. The ADA sets a higher standard for justifying governmental discrimination on the basis of disability: in the present context, the government must show that the discrimination itself is “necessary” to the licensing scheme, or that modification would work a “fundamental alteration” in the program. See 28 C.F.R. § 35.130(b)(7) & (8); see also Clark v. Virginia Bd. of Bar Examiners, 880 F.Supp. 430, 442-43 (E.D.Va.1995) (holding that under Title II of the ADA, when an “additional burden discriminates against those with disabilities ... the [public entity] must show that [the additional burden] is necessary to the performance of its licensing function”).
This affirmative burden on the government to justify the discrimination is inconsistent with some of the district court’s reasoning in denying Theriault’s claim and demands further explication. After finding that Theriault had failed to articulate a prima facie case of unlawful discrimination, the district court provided an alternative ground for its decision by doing a McDonnell Douglas12 analysis. The court held that the Commissioner had advanced a “legitimate non-discriminatory basis” for requiring the road test and that Theriault had “failed to produce any evidence that would reasonably support a finding of discriminatory animus on defendant’s part.” Because the majority agrees with the district court that no discrimination under the ADA had been established, it declines to comment on the propriety of this alternative holding. Because I find that the regulation does dis*55criminate, but nevertheless withstands ADA scrutiny, a discussion of the appropriate legal framework is in order.
The McDonnell Douglas analysis is inap-posite when examining a regulation for compliance with Title II of the ADA. McDonnell Douglas established a process for inferring discriminatory intent when direct evidence of such intent is lacking. See McDonnell Douglas, 411 U.S. at 802-03, 93 S.Ct. 1817. However, in a facial challenge to a regulation under Title II of the ADA the intent of the public entity that promulgated the regulation is not at issue. Title II prohibits public entities from acting in a way which has the effect of discriminating on the basis of disability, whether the public entity intended to discriminate or not. See 28 C.F.R. § 35.130(b)(3) (prohibiting public entities from administering programs or criteria that “have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability” pursuant to Title II of the ADA); see also Tyler v. City of Manhattan, 118 F.3d 1400, 1407 (10th Cir.1997)(“In enacting the ADA, Congress recognized that discrimination against the disabled is often the product of indifference rather than animosity.”). In interpreting Section 504 of the Rehabilitation Act, the Supreme Court stated that “much of the conduct that Congress sought to alter in passing the Rehabilitation Act would be difficult if not impossible to reach were the Act construed to proscribe only conduct fueled by discriminatory intent.” Alexander v. Choate, 469 U.S. 287, 296-97, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985). Therefore, McDonnell Douglas burden shifting is unnecessary in this context; intent need not be found. Once Theriault showed that the challenged regulation discriminated among applicants on the basis of disability, the burden should have shifted to the Commissioner to justify the regulation as necessary to protect public safety.
Not all disability-based discrimination is prohibited by the ADA. Indeed, where, as in the present context, important public safety concerns are present, some discrimination may be permissible. See e.g., 28 C.F.R. Pt. 35, App. A, at 477 (1997)(in establishing safety standards for licensees “the public entity must ensure that standards that it promulgates do not discriminate against ... qualified individuals with disabilities in an impermissible manner ”)(emphasis added). The inquiry turns then on whether the New Hampshire regulation impermissibly discriminates.
The ADA regulations require public agencies to eliminate policies, practices, and procedures which discriminate on the basis of disability “unless the public entity can demonstrate that making [ ] modifications would fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. § 35.130(b)(7). The regulations go on to prohibit eligibility criteria that have the effect of discriminating against disabled individuals “unless such criteria can be shown to be necessary[.]” 28 C.F.R. § 35.130(b)(8); see also 28 C.F.R. Pt. 35, App. A, at 478 (1997)(citing driver’s license requirements as a context where policies which tend to screen out disabled individuals can be justified by safety concerns). The ability to require a road test is necessary if the Commissioner is to adequately protect public safety. The ADA does not require a state to forgo testing and rely solely on a license renewal applicant’s representations of driving ability. Nor does the ADA demand that a state require every renewal applicant take a road test in order to legitimize more selective testing. Such a drastic change would “fundamentally alter” the program as that term is used in 28 C.F.R. § 35.130(b)(7) and is therefore not required by the ADA. As the majority points out, the state must be given some leeway in balancing public safety concerns with the ADA’s anti-discrimination mandate. The regulation at issue here appropriately charts that course. Because the Commissioner has affirmatively met the burden required to justify discrimination under the ADA, I concur.
. Title II of the ADA states that "no qualified individual with a disability shall, by reason of such disability ... be subjected to discrimination by any [public] entity.” 42 U.S.C. § 12132.
. Title II, which prohibits disability-based discrimination by public entities, speaks in more general terms than Title I (employment) and Title III (public accommodations). However, Congress clearly did not intend to give public entities more latitude than private parties to discriminate against the disabled. See H.R. Rep. 101-485, at 84 (1990), reprinted in 1990 U.S.C.C.A.N. 267, 367 ("The Committee intends [] that the forms of discrimination prohibited by [Title II] be identical to those set out in the applicable provisions of titles I and III of [the ADA].”).
. As noted by the majority, Tille II was modeled after Section 504 and is to be interpreted consistently with that provision.
. McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).