by Chris Danielsen
In September of 2024, seventeen states, led by Texas, sued the United States Department of Health and Human Services (DHHS) over a regulation that the agency had issued in May. The other sixteen states that brought the suit are Alaska, Alabama, Arkansas, Florida, Georgia, Indiana, Iowa, Kansas, Louisiana, Missouri, Montana, Nebraska, South Carolina, South Dakota, Utah, and West Virginia. At the time the lawsuit was filed, the 2024 election had not yet taken place, and so the named defendant was Xavier Becerra, who was DHHS Secretary under President Joe Biden.
The regulation that the lawsuit challenged was issued under Section 504 of the Rehabilitation Act of 1973. It is an update of previous DHHS regulations, and its goal is to prevent discrimination against people with disabilities in Medicaid and other state-run healthcare programs and facilities—such as nursing homes, hospitals, and child welfare agencies—that receive federal funds. Among other things, the regulation says that individuals with disabilities must receive care in the “most integrated setting” and, pursuant to court cases, acknowledges that this requirement means that states must also avoid putting individuals “at serious risk of institutionalization.” It also acknowledges that, according to a recent court case decided by the Fourth Circuit Court of Appeals, gender dysphoria may be included in the legal definition of disability in certain circumstances.
The final rule is hundreds of pages long, but the first two counts of the lawsuit focus on the inclusion of gender dysphoria in the definition of disability and what the states perceive as the unwarranted expansion of the “most integrated setting” requirement to include the “serious risk of institutionalization.” They say categorizing gender dysphoria as a disability violates the Americans with Disabilities Act (ADA) as originally written. (The definition of disability contained in the ADA is the same as the definition used when applying the Rehabilitation Act.) The states also claim to worry that the “serious risk” standard will limit their flexibility and saddle them with burdensome costs. In other words, they want flexibility to institutionalize more patients with disabilities because they believe that community care placements will cost too much. These initial counts therefore ask the court to invalidate the regulation, but unfortunately the lawsuit then goes much further.
Count III of the complaint is simply entitled “Section 504 is unconstitutional.” This language could not be any more straightforward. The complaining states are saying that Section 504, a bedrock of our nation’s disability laws for over fifty years, is now—and always has been—unconstitutional and should be struck off our nation’s books. The complaint then goes on for approximately twenty paragraphs spread across three pages to explain the reasoning behind this count. A few pages later, in their demand for relief, the states ask not only for the court to enjoin (or prohibit) DHHS from enforcing the regulation, but to “declare Section 504 unconstitutional” and “issue permanent injunctive relief against [DHHS] enjoining them from enforcing Section 504.”
The threat this poses to blind people and all Americans with disabilities, including students at all education levels, cannot be overstated. If the court were to declare Section 504 unconstitutional and block DHHS from enforcing it, all other federal agencies would be prohibited from enforcing it as well, and states would no longer be bound by its requirements. Section 504 plans, which are like Individualized Education Plans, would be a thing of the past; blind or disabled K-12 students and their families would find their rights curtailed or eliminated. Furthermore, blind individuals (including blind postsecondary students and state and federal workers), as well as the Federation and other advocacy organizations, would no longer be able to bring lawsuits to enforce the law’s antidiscrimination mandate. And because the Rehabilitation Act is linked with the ADA and other civil rights statutes in several ways, the lawsuit could result in even greater damage to protections for the blind and our rights.
The lawsuit is in limbo following the inauguration of President Donald J. Trump. A new president’s administration can review, change, or even revoke regulations made by the prior administration or decline to defend all or part of them in court. Almost immediately after President Trump’s inauguration, he issued an executive order that purports to remove all federal protections for people with gender dysphoria. For the time being, the complaining states say they are willing to hold off on further pursuing the case to see how this policy shift plays out. So the lawsuit, now known as Texas v. Kennedy since Robert F. Kennedy Jr. is the new DHHS secretary, is technically paused and may or may not be made irrelevant. But the lawsuit has not been dismissed, which would be the best outcome given the serious threat that it poses to section 504. That is why the National Federation of the Blind and other advocates are acting.
On February 13, 2025, we issued an alert that urged our members in the states that brought the suit to contact their attorneys general, the elected officials who serve as the states’ lawyers, and ask them to withdraw from the lawsuit or, in the case of Texas, to voluntarily move to dismiss it. Our affiliates went to work, as did other advocates. By the time President Riccobono, along with our Advocacy and Policy team and General Counsel Eve Hill, conducted a Zoom meeting to update affiliate leaders on the lawsuit and other issues on March 11, our activism was making national news, with stories appearing in the Washington Post and USA Today. Prior to that, local media in Montana and Iowa had also covered the litigation.
To date, the lawsuit has not been dismissed, and no state has withdrawn from it. In response to the public-relations nightmare they created for themselves, however, some of the states have loudly and heatedly denied that they seek to kill Section 504 and have even gone so far as to claim that the Federation and other disability advocates are lying about the lawsuit, or at least exaggerating its potential impact. A spokesperson for Montana Attorney General Austin Knudsen told Helena’s KTVH that “bad faith actors are deliberately misconstruing this lawsuit nine months after it was filed to frighten parents into believing that the Attorneys General put Section 504 in jeopardy. That is categorically false.” Iowa Attorney General Brenna Bird similarly protested: “This lawsuit puts the full force of seventeen states behind ending the woke, Biden-Harris mandate that sexualizes kids. We are protecting Section 504 accommodations for students who need it.” Significantly, however, Texas attorney General Ken Paxton, a firebrand known for controversial statements and litigation tactics, has remained quiet, refusing to comment to reporters or respond to advocates.
Notwithstanding the pontification and attempted placation by some politicians, the language of the complaint has not changed and flatly contradicts all the assurances that are designed to try and get us to pipe down. If Texas and company really do not want to kill Section 504, then they can dismiss their lawsuit or, at the very least, amend their legal complaint to remove Count III. So far, they have done neither. They did purport to “clarify” their intentions in a February 21 joint status report to the court, but this does nothing to alter the underlying complaint. A status report is not a pleading. It is the states, and not the Federation or other disability advocates, who are being disingenuous about the possible effects of the lawsuit as written. The National Federation of the Blind is merely taking the states at their word, which is only fitting since their legal representatives, who being attorneys swore an oath to be honest with our nation’s courts, signed the complaint.
Here is the bottom line: dropping the lawsuit entirely is the only way to fully protect Section 504. That is why President Riccobono wrote Texas Attorney General Ken Paxton the following letter on March 4, with similar letters going to the other sixteen state attorneys general:
Dear Attorney General Paxton:
The National Federation of the Blind urges you to consider the full importance of Section 504 of the Rehabilitation Act of 1973 (“Section 504”) and the benefit it has for Texans with disabilities, and to immediately move to dismiss Texas v. Kennedy.
The stated goal of Texas v. Kennedy is to severely limit Section 504 by applying it only to those programs, services, and activities directly funded by and through the Rehabilitation Act of 1973 (“the Rehab Act”). The parties’ status report dated February 21, 2025, reads in pertinent part: “Plaintiffs clarify that they have never moved—and do not plan to move—the Court to declare or enjoin Section 504. . . 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,” however, we note that at the time of this writing, Plaintiffs have not chosen to amend pages 37 and 42 of their complaint which read: “Count 3: Section 504 is Unconstitutional,” and “Demand for Relief . . . d. Declare Section 504, 29 U.S.C. § 794, unconstitutional; e. Issue permanent injunctive relief against [the Department of Health and Human Services] enjoining them from enforcing Section 504.”
Section 504 protects people with disabilities from discrimination by federal agencies and recipients of federal funding in public education, work readiness programs, healthcare, elections, the court system, and more. In brief, it is not at all overstating the point to say that if Section 504 is found unconstitutional, we will ensure that a generation of people with disabilities will be less educated, less employable, and less able to participate fully in all aspects of life.
The United States has long recognized a disabled person’s value as a student, employee, and a member of the public. Reducing Section 504 would constitute a sea-change, excluding people with disabilities from education, employment, and civic life. Disabled students, teachers, and parents would lose access to course content and educational accommodations. Teachers, utility workers, farmers, office workers, county administrators, attorneys, judges, and other workers with disabilities would lose access to the government-funded software, websites, and other information vital to maintaining their employment. People with disabilities who seek to be involved in civic life, be it through joining municipal boards, exercising their right to vote, or even just crossing the street, would all be negatively impacted by the suspension of Section 504. Put another way, limiting Section 504 in the manner proposed would guarantee countless people with disabilities would stay home, be unable to work, and be forced to subsist solely on government benefits.
The National Federation of the Blind is the transformative membership and advocacy organization of blind Americans, and our goal is complete integration of the blind into society. The Federation has spent a large portion of its 84-year history combating discrimination and low expectations. We believe that all Americans can and should be afforded the opportunity to work, learn, and participate in community life. Accordingly, we believe that disabled Americans have the right to receive the education, training, and opportunity required to lead productive lives. We do not believe that people with disabilities should be forced by the government to leave school, lose work, or stay on public benefits.
We appreciate the need for effective and responsible governance. However, truncating a disabled person’s opportunity to participate fully in society runs contrary to your state’s true interests. We urge you to immediately move to dismiss Texas v. Kennedy and the dismantling of Section 504.
Sincerely,
Mark A. Riccobono, President
National Federation of the Blind
The parties will report next to the Federal District Court for the Northern District of Texas, where Judge James Wesley Hendrix is presiding over the case, about the status of the litigation on April 21. In the meantime, advocates in Texas and the thirty-three other states not involved in the lawsuit should write to Texas Attorney General Paxton and urge him to dismiss the lawsuit. Advocates in the other sixteen states should contact their own state attorney general and urge them to withdraw from the lawsuit. You can learn more about the details of the lawsuit and access a list of state attorneys general with their contact information on the following web page hosted by the Disability Rights Education and Defense Fund: https://dredf.org/protect-504. The Braille Monitor will continue to follow developments in the litigation and report what we learn.