Seitz, Chief Judge, and Sloviter and Van Dusen, Circuit Judges.
James Strathie appeals an order of the district court granting judgment in favor of appellees in his civil rights, 547 F. Supp. 1367, suit after a final hearing. The district court exercised jurisdiction under 28 U.S.C. § 1331 and § 1343. This Court has jurisdiction under 28 U.S.C. § 1291 (1976).
The district court found the following facts, which are undisputed on appeal. Appellant Strathie was hired and trained as a school bus driver by Van Trans, Inc., a private bus company which provides transportation for students in certain Pennsylvania public school districts. After completing his training, Strathie took and passed the school bus driver's license test required by the Pennsylvania Department of Transportation. Strathie was issued a Class 4 license, which authorized him to drive a school bus.
After working for Van Trans as a school bus driver for one day, Strathie was notified by the Department of Transportation that his Class 4 license was suspended indefinitely and until his competency was established. The reason for the suspension was that Strathie wore a hearing aid, in violation of one of the Department's regulations, 67 Pa. Code § 71.3(b)(5).*fn1 This regulation provides that in order to obtain a school bus driver's license, an applicant must have "no hearing loss greater than 25 decibels at frequencies of 500, 1,000, and 2,000 in the better ear, without a hearing aid." The regulation was formulated by the Medical Advisory Board of the Department of Transportation, and adopted by the Department effective July 1, 1970.
At the time his school bus driver's license was suspended, Strathie was in every respect other than his hearing, qualified under Department of Transportation regulations to continue to be licensed to drive a school bus. With the use of his hearing aid, Strathie's hearing is corrected within the decibel requirements of 67 Pa. Code § 71.3(b)(5).
On February 9, 1979, Strathie filed a class action complaint in the district court, naming as defendants the Department of Transportation, the Pennsylvania Department of Education, and five named officials of those agencies. The complaint charges that defendants' suspension of the school bus driver's licenses of the class violated the due process and equal protection clauses of the Fourteenth Amendment of the United States Constitution; the Civil Rights Act of 1871, 42 U.S.C. § 1983 (1976); section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (Supp. 1983); and certain provisions of Pennsylvania law. The complaint seeks a declaration that the policies, practices and procedures of the defendants are unconstitutional and violated federal and state statutes; a permanent injunction prohibiting defendants from enforcing those policies, practices and procedures; reinstatement of Strathie's school bus driver's license at a seniority status as if his license has never been suspended; compensatory damages including back pay; and attorney's fees.
On May 12, 1979, the district court ordered that the action be maintained as a class action, and certified a class consisting of all persons who have had their Class 4 school bus driver's licenses suspended pursuant to the alleged discriminatory regulations of the defendants.
Subsequently, based on video-tape testimony, depositions and other exhibits, the district court entered judgment for defendants on all of plaintiffs' claims.*fn2 Strathie's appeal challenges the district court's dismissal of his individual claims under the Rehabilitation Act*fn3 and the Fourteenth Amendment.*fn3a We will not address Strathie's appeal with regard to the Fourteenth Amendment because he relies on a legal theory that was not presented to the district court. However, we reject appellees' contention that the Rehabilitation Act claim was not raised below.
In enacting and amending section 504 of the Rehabilitation Act, Congress "made a commitment to the handicapped, that, to the maximum extent possible they shall be fully integrated into the mainstream of life in America." S. Rep. No. 890, 95th Cong., 2d Sess. 39 (1978). Section 504 provides, in pertinent part, that:
No otherwise qualified handicapped individual . . . . 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 ...