Suit Over New Section 504 Guidelines Threatens the Rights of Disabled Americans
“No otherwise qualified handicapped individual in the United States shall solely on the basis of his handicap, be excluded from the participation, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance,” Section 504 of the Rehabilitation Act, 29 U.S.C. § 794.
When Congress passed the Rehabilitation Act of 1973, which contains Section 504, many disabled Americans believed that they were witnessing a turning point in disability rights in our country; however, the passage of Section 504 was preceded by years of intentional sabotage from the Nixon administration.
President Richard Nixon (in)famously referred to the Rehabilitation Act as a “fiscally irresponsible, badly constructed bill” and “a massive assault upon the pocketbooks of millions of men and women in this country” and vetoed the bill twice, leading to nationwide protests demanding the passage of Section 504.
The problem was that there were no published regulations for Section 504 from 1973 until 1977, causing lawsuits to be thrown out and plaintiffs left with no recourse until the federal government issued guidelines for implementing Section 504.
The American Coalition of Citizens with Disabilities warned the Department of Health, Education, and Welfare (HEW) that action would be taken if the regulations, which had already been written, were not signed and issued by April 4, 1977.
Nationwide protests took place from April 5-28, 1977, until HEW Secretary Joseph Califano finally signed the regulations, including the famous 25-day occupation of HEW headquarters in San Francisco spearheaded by disability rights activists Judith Heumann, Kitty Cone and Mary Jane Owen.
Section 504 has played a major role in ensuring disabled Americans have had equal access to education, healthcare and other basic services. The rights that all citizens have needed to be formally granted to disabled Americans.
But wait a minute – now that those rights have been formally granted, isn’t everything fine?
The short answer is: absolutely not.
Although fundamental in the fight for civil rights for disabled Americans, Section 504 and the ADA continue to allow employers to pay disabled employees below the minimum wages required by state and federal law, provide loopholes for institutions and state governments to delay proper implementation of accessibility requirements and fail to effectively ensure compliance.
On May 1, 2024, the U.S. Department of Health and Human Services (HHS) released its final ruling containing several updates to the regulations in Section 504, including the mandated removal of barriers preventing disabled people from accessing necessary healthcare and social services and prohibiting disability or ideas about the value of a person’s life from being a consideration when making determinations about organ transplants and life-sustaining care.
The 130-page HHS rules also stated that gender dysphoria may be considered a disability under the ADA and the Rehabilitation Act, codifying what federal courts have been ruling for years (see Williams v. Kincaid as one example). Although this provision is only one aspect of the comprehensive updates, it alone has caused Section 504 to come under fire.
Texas v. Becerra was filed in Sept. 2024 in response to the new HHS rule by 17 states: Texas, Alaska, Alabama, Arkansas, Florida, Georgia, Indiana, Iowa, Kansas, Louisiana, Missouri, Montana, Nebraska, South Carolina, South Dakota, Utah and West Virginia. The case sought to halt the enforcement of the HHS final rule and declare Section 504 unconstitutional, as stated in the suit’s ‘demand for relief’ section.
South Carolina Attorney General Alan Wilson clarified that the suit “will not take away Section 504 accommodations for anyone with a disability” through a court update filed on Feb. 20. The status report, filed jointly with the 16 other states participating in the lawsuit, further stated that “Plaintiffs clarify that they have never moved—and do not plan to move—the Court to declare or enjoin Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, as unconstitutional on its face.”
Despite this blatant backtracking following widespread outrage as the lawsuit has gathered national news coverage, no states have withdrawn from the suit and the request that the courts declare Section 504 unconstitutional has not been withdrawn (at the time of writing).
The reality is that the plaintiffs did explicitly request the court to declare Section 504 unconstitutional and that Texas v. Becerra threatens to dismantle over 50 years of legal protections that guarantee the civil rights of millions of Americans.
This is far from an isolated issue that affects a small percentage of the population. According to the Centers for Disease Control and Prevention (CDC) “Disability Impacts All of Us Infographic” updated in July 2024, more than one in four (28.7%) adults in the United States have some type of disability.
Just two years ago, I may not have said that I was a person with a disability; however, much can change in a short time – in the words of the late Christopher Bell, disability is, after all, perhaps the only identity “that one can acquire in the course of an instant.” In a time where all marginalized communities in the United States are under fire from overwhelmingly conservative coalitions, it is increasingly important that we come together to protect each other.
Disabled Americans – and for that matter, all people, regardless of their sex, gender, religion, race, color, origin, or legal status – should not have to fear for their safety and legal rights as a result of political or cultural backlash.
Political and legislative action have consequences for the lives of real people. The rapid gutting of diversity, equity and inclusion (DEI) initiatives and the withholding of federal funds from vital assistance programs will cause a chain reaction that harms the most vulnerable people in our country – including me and many of our parents, grandparents and loved ones.
For a country that touts itself as a land of liberty, freedom and justice for all, we are doing a shit job of protecting the liberty and freedoms of all of our people. It will affect all of us.
Even if Texas v. Becerra is dropped, the harmful ideology that inspired it continues to thrive at all levels of government in the United States. Our elected officials continue to provoke outrage and fearmonger about small proportions of the population at the expense of millions.
How long until the Americans with Disabilities Act comes under fire? What would happen to anti-discrimination statutes based on race and sex if disability-based protections were ruled unconstitutional?
How much is enough for us to speak up? How much is enough for us to organize and take to the streets, to our lecture halls, to our county councils and statehouses?
Enough is already enough. What we can do now is contact our representatives and demand action to protect the rights of their constituents and remain calm, informed and poised for collective action. Attend community meetings, participate in student-led and community organizations. Get involved.