We would like to begin by reminding everyone that all people with disabilities—not just students with disabilities—benefit from the civil rights protections afforded by Section 504. We must remain vigilant, as restoring rights for students may not restore a person’s rights in terms of healthcare, transportation or housing.

On Friday, February 21, in response to the large outcry from the disability community and advocacy organizations, the plaintiffs in this case, Texas v. Becerra, filed a document called a Status Report with the court. Here’s what to know about that:

• A Status Report is a document that clarifies the plaintiffs’ intent in this case. It is NOT an amended filing, however.
  • This status report essentially puts this case on hold until at least April 21, 2025.
  • The plaintiffs will file monthly Status Reports with the court, which means essentially giving the court updates as they untangle the legal knots they find themselves in partly due to an Executive Order issued by the Trump Administration in January.
• The Status Report filed on Friday states: “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. Plaintiffs have not sought and do not seek to enjoin the disbursement of funds from the Department on the basis that the statute is unconstitutional.”

So the 17 states are essentially saying, “Wait, no, we didn’t mean the entire thing is unconstitutional, and we’re not asking the federal government to stop funding Section 504 protections.”

That’s a relief to some degree – remember, the filing itself has not been amended – but there is another count that’s worth being vigilant about.

Why the change? There are two main reasons – there are four counts in the complaint – this lawsuit was filed:

Gender dysmorphia protections

President Biden expanded Section 504 protections to include people with gender dysmorphia. The 17 states that have filed this lawsuit do not agree with designating this class of people as disabled.

HOWEVER, the Trump Administration’s January Executive Order that declared only two genders are federally recognized can mean any number of things for this specific item in this lawsuit. Is there standing if gender dysmorphia – as far as the federal government is concerned – does not exist? I

The filing of the Status Report for this aspect of the lawsuit is good and bad. It may mean this count could be dropped entirely from the lawsuit; however, nonbinary people are still losing civil rights protections due to the Executive Order.

The states that are suing think it’s too expensive and onerous to pay money to make federally funded places and activities as accessible as possible in accordance with Olmstead.

As many in this community know, the Supreme Court case Olmstead v. L.C. made it a requirement for federally funded places to be the “most integrated setting” for people with disabilities “at serious risk of institutionalization.” This means examination tables that are height adjustable, doors wide enough to get a wheelchair through, and any kiosks, websites and apps must meet established accessibility standards.

Section 504 was expanded to include the protections established by Olmstead formally.

However, the 17 states that are suing claim this is far too expensive and essentially too much regulation to abide by, stating:

“The meaning and scope of Count 3 asserting a claim under the Spending Clause—and the declaratory and injunctive relief sought in the demand—is an as-applied challenge to any purported application of Section 504 to funds that are not authorized by the Rehabilitation Act. Such alleged unconstitutional applications include the requirements the Final Rule imposes on recipients to adopt the ‘most integrated setting’ and the ‘at serious risk of institutionalization’ standards of care.”

This isn’t great, but it’s not the worst-case scenario, either. Even if these accessibility protections aren’t ultimately incorporated into Section 504, it won’t change the Olmstead requirements, which have been reinforced countless times by lower courts.

This is an almost victory of sorts. We won’t fully breathe a sigh of relief until the filing is amended or the gender dysmorphia count is removed. And we’re not thrilled about the cultural and political environment that makes suing to get out of investing in accessibility acceptable or desirable by one-third of the country.

So, we’ll stay vigilant, and we ask you to do the same.

One of the best things you can do is share the ways you benefit from Section 504 as a member of the disability community so that more people in the general public understand that one person’s excessive regulation is actually another human’s basic civil rights.

ABOUT BRAIN INJURY ASSOCIATION OF ARIZONA

The Brain Injury Association of Arizona (BIAAZ) is the only statewide nonprofit organization dedicated to improving the lives of adults and children with all types of brain injuries through prevention, advocacy, awareness and education. BIAAZ also houses the Arizona Brain Health Resource Center, a collection of educational information and neuro-specific resources for brain injury survivors, caregivers, family members and professionals.

What began in 1983 as a grassroots effort has grown into a strong statewide presence, providing valuable life-long resources and community support for individuals with all types of brain trauma at no charge.