Ask the Scholar
Document scope · 1 page
Scholar
Ask about this object, its catalog metadata, its source description, or the page inventory.
For page-specific OCR and visual context, open one of the page chats.
Scholar Source Context
Document identity
localId
118568824
label
[Section] 504 - Disability (2)
core
doc
dtoType
document
citationUrl
pageCount
1
Source metadata
id
118568824
contentType
document
title
[Section] 504 - Disability (2)
citationUrl
identifierLocal
94
collections
Records of the Office of the Chief of Staff (Reagan Administration)
James Cicconi's Subject Files
thumbnailUrl
largeImageUrl
imageCount
1
hasImages
yes
source
import
hasTranscription
no
Source extras
naId
118568824
coverageEndDate
logicalDate
1985-12-31
year
1985
coverageStartDate
logicalDate
1981-01-01
year
1981
levelOfDescription
fileUnit
recordType
description
ocrSource
nara-archive
Single page context
seq
1
pageIndex
0
type
document
mediaId
b57f633db7ded70f
ocrText
MEMORANDUM
OFFICE OF THE VICE PRESIDENT
WASHINGTON
January 20, 1984
MEMORANDUM FOR FAITH WHITTLESEY
JIM CICCONI
FROM:
C. Boyden Gray 89
SUBJECT:
504 regulations and Brad Reynolds
The potential political problem with the 504 regulations arises out
of a public perception that Reynolds is applying a different and less
stringent standard to the federal government's own facilities (the
so-called "federally-conducted" programs) than to public programs
funded in part by the government (the so-called "federally-assisted"
programs). The issue revolves specifically over the "undue burden"
defense that operators can assert to avoid making unreasonable
expenditures (such as $1.7 billion subway retrofit of the New York
City subway).
In 1981 the Task Force on Regulatory Relief began reviewing the
federally assisted program regulations issued by the Carter
Administration to implement Section 504's discrimination against
the handicapped (the Carter Administration never issued the federally-
conducted regulations). The regulations are complicated, because
the question is not how to avoid deliberate discrimination, but how
to determine how much money must be spent (for ramps, wheelchairs,
high-tech vision and hearing aids, etc.) to "accommodate" a
handicapped person who is "otherwise qualified" by education, experience
and skills for a particular benefit or job.
A very important factor in this determination is the Supreme Court's
1978 decision in the Davis case, which held that a deaf woman was not
qualified for a nursing school program and that the state did not
have to change its nursing qualifications to allow her admission to
the nursing school. The decision also contains dicta to the effect that
an operator of a federally-funded program can refuse to make an
accommodation if it would "create an undue administrative and
financial burden." (The question decided in the Davis case,
however, was whether a deaf person can ever be qualified to be
a nurse in view of her inability to perform in operations and
other important functions without hearing, not whether a school
would have to spend extra funds to train a nurse of sharply limited
abilities.)
- 2 -
In reviewing the 504 federally-assisted regulations, Reynolds and I tried
to negotiate with the handicapped leaders to formulate precise language
for the revised 504 regulations that would codify the Davis case. We
actually agreed on language, but in the end the handicapped community
balked at putting a specific reference to "undue burden" in the
regulations because "undue burden" has become such a politically sensitive
concept. Accordingly, we all decided ultimately to issue a statement
through the Vice-President (attached) that we were leaving the original
regulations, as interpreted by the courts, unchanged. This left Reynolds
the option to continue to argue in court for a broad reading of the
Davis undue burden defense.
Some months later Reynolds issued a suggested model regulation for
all of the federal agencies' federally-conducted regulations which
they are under court order to propose. This model, and the
subsequent regulations which 20 agencies have by now proposed, all
contain an "undue burden" defense that does no more than repeat the
very brief language from Davis, with the preamble spelling out what
the defense means in more detail.
The handicapped community objects to this codification of the
undue burden defense. The objection is on perception grounds, since
they concede that the defense does no more to curb their benefits
under federally-conducted programs than the Davis case on which the
defense is based - already does to the federally assisted programs.
In other words, they concede the obvious - that Reynolds is entitled
to apply the Davis undue burden concept to federally conducted programs
as forcefully as to federally assisted programs, but they resent
bitterly his insistence on symbolically and publicly clubbing them
over the head with the concept by flaggingit explicitly in the
text of the federally conducted regulations.
Reynolds' answer is that it is irresponsible, if not impermissible,
to refuse to codify a Supreme Court decision in new regulations to
which it applies. He has not, however, adequately explained why
it is not sufficient simply to refer to Davis in the preamble to
the regulations, especially since the new regulations already use
the preamble to explain what the regulations' reference to undue
burden in fact means. The handicapped community would, I think,
accept a reference to Davis in the preamble.
THE VICE PRESIDENT
WASHINGTON
March 21, 1983
Mr. Evan Kemp, Jr.
Executive Director
Disability Rights Center, Inc.
1346 Connecticut Avenue, N.W.
Suite 1124
Washington, D.C. 20036
Dear Evan:
In view of your personal concerns with possible modifications
to the Section 504 coordination guidelines under the Rehabilitation Act
of 1973, this is to advise you that the Department of Justice and the
Presidential Task Force on Regulatory Relief have concluded their review
and have decided not to issue a revised set of coordination guidelines.
This decision brings to a close a lengthy regulatory review
process during which the Administration examined the existing regulatory
structure under Section 504, studied recent judicial precedents and
talked extensively with Members of Congress and of the handicapped
community. Especially important were the personal views and experience
of those most directly affected by these regulations. The comments of
handicapped individuals, as well as their families, provided an invaluable
insight into the impact of the 504 guidelines.
A full evaluation of all the information brought to bear on
this subject prompted the conclusion that extensive change of the existing
504 coordination regulations was not required, and that with respect to
those few areas where clarification might be desirable, the courts are
currently providing useful guidance and can be expected to continue to
do so in the future. In these circumstances, the Administration has
decided not to proceed with its planned issuance of a revised set of
proposed coordination guidelines.
- 2 -
I would like to thank you for your personal participation
in this regulatory review process. Your commitment to equal oppor-
tunity for disabled citizens, to achieve their full potential as
independent, productive citizens is fully shared by this Administra-
tion and has the strong personal support of both the President and
me. I hope you will continue to keep me informed of any developments
in this area of such vital importance to our nation.
CyBl George Sincerely, Bush
Public Law 94-142 and Section 504
and Position of
The President's Committee on Mental Retardation-
WHEREAS, disabled children and adults have historically been denied
the right to obtain a meaningful education, appropriate
vocational training, and access to basic human services,
and have been relegated to a role of dependency and a loss
of human dignity; and
WHEREAS, The Education of All Handicapped Children Act, Public Law
94-142, was passed into law to guarantee disabled children
a right to a free public education provided in conjunction
with specific related services which would allow them to
have an equal educational opportunity; and
WHEREAS, Section 504 of the 1973 Rehabilitation Act guarantees
that as these disabled children grow into adulthood, they
will be provided with equal access to the educational,
training, employment, social services, transportation and
housing services available to the nondisabled; and
WHEREAS, the implementation of both of these laws through federal
regulations over the last five years has resulted in
greater opportunities for meaningful educational programs
for over 4 million disabled children throughout the
country, and uncounted numbers of disabled adults from
lives of total dependency and low self-esteem to productive
lives through increased employment and training
opportunities and expanded avenues to social services and
community life; and
WHEREAS, the premise that some disabled persons would not be able
to benefit from meaningful educational and training
opportunities, and that a determination should be made
regarding the extent to which disabled people would either
benefit from or contribute to the operations of a program
in a manner which would be "socially beneficial" to all
parties, speaks to age-old prejudices against the disabled,
denies them basic human dignity, and is antithetical to the
concept of equal citizenship; and
WHEREAS, these two laws were passed because similar protections
were not and are not available through existing states'
statutes;
THEREFORE, BE IT RESOLVED that the President's Committee on Mental
Retardation reaffirms their strong commitment to retaining
the existing laws and regulations pertaining to Public Law
94-142 and Section 504 in substantially their present form,
and encourages the President to take a positive and public
stand to halt all efforts to change these laws through
regulatory and legislative reform that would adversely
affect mentally retarded citizens. Through these laws, the
way has been cleared for preparing a large segment of our
society to moving from lives of dependency to greater
independency by becoming tax-paying citizens. Public Law
94-142 and Section 504, and their implementing regulations
constitute an investment, rather than a burden, to society.
Friday, June 25, 1982
Washington, D. C.
(18-1)
THE WHITE HOUSE
WASHINGTON
January 19, 1984
MEMORANDUM FOR JAMES CICCONI
FROM:
JUDI BUCKALEW
SUBJECT:
MEETING PERTAINING TO SECTION 504
I have arranged a meeting to be held on
January 20, 1984 at 4:30 p.m. in Jack
Courtemanche's office in the Old Executive
Office building.
The purpose of the meeting is to bring
the White House Staff together with
W. Bradford Reynolds to discuss the
possibility of altering or withdrawing
the Section 504 regulations.
The attendees at the meeting are:
1. Faith Whittlesey
2. Jack Courtemanche
3. W. Bradford Reynolds, Department of Justice
4. James Cicconi, Special Assistant to the President
5. Robert Sweet, Office of Policy Development
6. Paul Simmons, Office of Policy Development
7. Robert Veeder, Office of Management and Budget
8. Boyden Gray, Counsel to the Vice President
9. Dr. William Roper, Office of Policy Development
10. Judi Buckalew
THE WHITE HOUSE
WASHINGTON
January 18, 1984
MEMORANDUM FOR JAMES CICCONI
FROM:
JUDI BUCKALEW S.
SUBJECT:
HANDICAPPED COMMUNITES RESPONSE TO
RECENT JUSTICE DEPARTMENT 504 REGULATIONS
There has been an outcry from the handicapped community over
regulations published by the Justice Department on
December 16, 1983. Active and open Nation-wide opposition
to these regulations will commence soon, on a level that
will equal or surpass the reaction to the Special Education
Regulations (P.L. 94-142). The trust of the opposition
by the disabled community will focus on the "fairness" issue.
The proposed regulations were issued to implement the
1978 Admendments to Section 504 of the Rehabilitation
Act, which extended Section 504 to programs and activities
conducted by the Federal Agencies. Section 504 of the
Rehabilitation Act is ver brief and essentially states
that: "An individual's rights shall not be denied on the
basis of a handicapping condition." Since protection of
a handicapped citizens rights are not contained in any
other piece of legislation, the handicapped community
zealously embraces Section 504 and considers it sacrosanct.
My point is that this program elicts highly emotional
reactions within the disabled community.
The concern is over the issue of "undue burden". Basically
the Justice Department is saying that it will support the
guarantee contained in Section 504, as long as in doing
so, it does no impose any undue burden on the agency.
-2-
The determination of undue burden is left to the
agency. The Justice Department's decision to
implement Section 504 based on a determination
of undue burden contradicts a number of things:
1. A promise, made in March, 1983,
in writing , from the Vice
President that these regulations
would not be revised to include
undue burden. (See enclosed Letter)
2. A recent court decision (Davis vs
Southeastern Community College)
that ruled that revisions of the
Section 504 regulations were not
required, nor did they invalidate
Regulations published by the
Department of Health and Human
Services which did not contain
undue burden stipulations.
I am attaching copies of a newsletter that the
Disability Rights, Education and Defense Fund
recently distributed to it's members. It contains
a concise discription of the disabled community's
objectives in regard this matter.
As I mentioned earlier, the issue at hand is the
unfairness that the disabled feel when undue burden
is added. In addition, they feel betrayed since they
were promised by the Vice President that the regulations
would not be issued.
PRESIDENT'S COMMITTEE
PRESIDENT'S COMMITTEE ON MENTAL RETARDATION
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES
Office of Human Development Services
ON
MENTAL
RETARDATION
Washington, D.C. 20201
January 19, 1984
Mr. James Cicconi
Special Assistant to the President
Special Assistant to the Chief
of Staff
The White House
Washington, D. C. 20500
Dear Mr. Cicconi:
It has been brought to my attention that the Department of Justice has recently
issued departmental regulations for Section 504 of the Rehabilitation Act of
1973. These regulations are substantially less demanding than those in effect
for non-governmental agencies and are due to take effect sometime after the
comment period ends in April, 1984.
As you remember there was a great deal of controversy last Spring when the
Justice Department was preparing to issue proposed changes in 504 regulations
for federally assisted agencies. At that time the Committee passed a Resolu-
tion which I have enclosed. We passed this Resolution in June, 1982 and have
reaffirmed this position at. all subsequent meetings. When it was announced
that the proposed changes would not be issued the groups who represent handi-
capped individuals were indebted to the Administration.
Now they are very concerned again, claiming they have been let down. They
believe that not only are the Justice Department's own regulations unfair to
handicapped persons, but they set a poor example for what the Administration
expects from non-federal agencies.
We believe there is justification for these groups to feel the way they do.
We believe the Administration should maintain the same regulations for federal
agencies as those in effect for agencies receiving federal assistance. We urge
the withdrawal of the Justice Department's proposed regulations on 504.
Another factor which causes additional concern to groups of handicapped people
is the phrase "undo burden" when used in reference to making changes to meet
the needs of the handicapped. They believe it is an insult to the considered
"burdensome." We would urge you to delete this phrase from official Adminis-
tration use.
Sincerely,
Docathy C. black
(Mrs.) Dorothy C. Clark
First Vice Chairperson
Enclosure
Disability Rights Education
and Defense Fund, Inc.
LAW,
PUBLIC POLICY,
ALERT BULLETIN!
ALERT BULLETIN!
ALERT BULLETIN!
TRAINING AND
TECHNICAL
ASSISTANCE
2032 San Pablo Avenue
JUST WHAT YOU ALWAYS WANTED FOR X-MAS!
Berkeley, California 94702
(415) 644-2555
(TDD) 644-2629
DEPARTMENT OF JUSTICE PROPOSES UNDUE
BURDEN DEFENSE UNDER SECTION 504 FOR
FEDERALLY CONDUCTED PROGRAMS ON DECEMBER 16, 1983
16 Connecticut Avenue N.W.
Suite 1124
Washington, D.C. 20036
WHAT DOES THIS MEAN?
(202) 659-4684
(voice or TDD)
It means that the federal government can refuse to integrate
disabled people because some agency official thinks it costs too
much or will be too much of an administrative hassle.
Under the heading of Program Accessibility, the proposed regula-
tion states. that this requirement: "does not require the agency to
take any action that it can demonstrate would result in a fundamental
alteration in the nature of the program or activity or in undue
financial and administrative burdens."
The whole concept of program accessibility is already a compro-
mise to full and equal access. The existing program accessibility
requirements in the recipient regulations provide more than enough
flexibility. The federal government should be a model of accessibility
The undue burden defense encourages the kind of short sightedness
which has served to exclude disabled people from participation in
society.
WHAT IS A FEDERALLY CONDUCTED PROGRAM?
The "federally-conducted"Section 504 regulations cover the
day to day operations of the federal agencies themselves, as well
as all programs administered by the agencies for program
beneficiaries such as social security, veterans benefits, park
services, etc.
A not-for-profit
public benefit corporation
dedicated to the Independent
Living Movement and
the Civil Rights of Persons
-2-
In 1978, Section 504 was amended to include the programs
and activities conducted by the federal government itself.
Previously, Section 504 only applied to programs which received
federal financial assistance, such as hospitals, schools, cities,
etc. There are currently no Section 504 guidelines or regulations
for 'federally-conducted programs. Since the Department of Justice
(DOJ) is the lead federal agency under Section 504, it is expected
that all of the other federal agencies will publish regulations
which are virtually identical to the DOJ regulation proposed on
December 16, 1983.
DOES THIS PROPOSED REGULATION ALSO
COVER RECIPIENTS OF FINANCIAL ASSISTANCE
FROM FEDERAL AGENCIES?
No. The existing Section 504 regulations published in 1977-
1978 cover programs and activities which receive federal financial
assistance ("recipient regulations") After an 18-month review
the Presidential Task Force on Regulatory Relief concluded that
there was no need to revise the Section 504 recipient regulations.
The addition of an undue burden defense was specifically rejected.
After receiving thousands of letters from across the country,
on March 21, 1983 Vice President Bush announced the halt of the
de-regulation campaign and assured the disabled community that the:
"commitment to equal opportunity for disabled
citizens
is fully shared by this Administration
and has the strong personal support of both the President
and me. "
THE UNDUE BURDEN DEFENSE IN THE
DECEMBER 16, 1983 PROPOSED FEDERALLY-
CONDUCTED 504 REGULATION MEANS
EITHER THAT
1) The Department of Justice is imposing less obligation on the
Federal government than on the recipients of federal funds
OR
2) Attorney General for "Civil Rights", Brad Reynolds, is taking
a second stab at Section 504 by trying to undermine the victory
of the disabled community which was announced by the Vice
President on March 21, 1983.
-3-
IN EITHER CASE IT IS UP TO YOU
to stop this set-back from becoming permanent
WE CAN DO IT --
WE'VE DONE IT BEFORE --
When the Administration threatened to put an undue burden
defense in the Section 504 recipient regulations the Administration
received thousands of letters from disabled people and friends all
over the country.
We need to do the same thing again. We need to let Brad
Reynolds and the Reagan Administration know that:
WE ARE STILL WATCHING!
WHAT TO DO
Please send in the attached sample letter, with a copy to
the President. (Fill in your interest in the regulations, i.e.,
I am a disabled person; a parent; an advocate, etc.). Or better
yet, write your own and tell the Administration how you or your
clients or members could be affected! An analysis of the
December 16, 1983 proposed regulations and copies of the regula-
tions themselves are available from DREDF (Berkeley) upon request.
DREDF will also prepare official comments which will be available
for distribution. The comment period ends on April 16, 1983.
But, please, send your protest letter NOW.
W. Bradford Reynolds
Assistant Attorney General
for Civil Rights
U.S. Department of Justice
Washington, D.C. 20013
Dear Mr. Reynolds:
I am
I was shocked and appalled to learn that the Department of
Justice has included a broad undue burden defense in the
proposed Section 504 regulations for programs and activities
conducted by the Department of Justice published on December 16,
1983. In March of this year, I was informed that the Vice
President had announced that "the Department of Justice and the
Presidential Task Force on Regulatory Relief have concluded
their review and have decided not to issue a revised set of
Section 504 coordination guidelines."
If it was not necessary to include a broad undue burden
defense at that time, then it is not necessary now. Either
DOJ is imposing a lesser requirement on the federal government
than on recipients of federal aid or you are trying to under-
mine the important victory for disability civil rights announced
by Vice President Bush. Both are unacceptable!
The federally-conducted Section 504 regulations should follow
the recipient regulations which you so recently approved. The
December 16, 1983 proposal must be withdrawn!
Sincerely,
(address)
CC:
President Reagan
White House
Washington, D.C.
DREDF
Disability Rights Education
and Defense Fund, Inc.
LAW,
PUBLIC POLICY,
TRAINING AND
DEPARTMENT OF JUSTICE PROPOSES SECTION 504
TECHNICAL
REGULATION FOR ITS OWN PROGRAMS AND ACTIVITIES
ASSISTANCE
WHICH IS WEAKER THAN THE EXISTING SECTION 504
REGULATIONS FOR RECIPIENTS OF FEDERAL
2032 San Pablo Avenue
FINANCIAL ASSISTANCE
Berkeley, California 94702
(415) 644-2555
(TDD) 644-2629
BACKGROUND
16 Connecticut Avenue N.W.
Suite 1124
Washington, D.C. 20036
(202) 659-4684
(voice or TDD)
On April 15, 1983, DOJ issued to 91 federal agencies a
prototype regulation implementing the 1978 amendments to Section
504 which extended Section 504 to programs and activities conducted
by the federal executive agencies and the U.S. Postal Service. *
Consistent with this prototype, on December 10, 1983, DOJ published
a proposed Section 504 regulation governing the programs and
activities of DOJ itself. 48 Fed. Reg. 55996.
The "federally-conducted" regulations are distinct from
the recently reaffirmed 1978 Section 504 guidelines covering
recipients of federal financial assistance ("recipient regulations")
There are currently no guidelines or regulations governing
enforcement and implementation of Section 504 by programs conducted
*
DOJ is under court order to issue "federally-conducted"
regulations; Williams V. USA, U.S.D.C. CD Calif. #80-5368-WPG.
A not-for-profit
public benefit corporation
dedicated to the Independent
Living Movement and
the Civil Rights of Persons
-2-
by the federal government itself. The 1978 amendments require
each agency to publish Section 504 regulations governing its own
programs ("federally-conducted" regulations).
As amended by the Rehabilitation, Comprehensive Services
and Developmental Disabilities Amendments of 1978 (Sëc. 119,
Pub. L. 95-602, 92 Stat. 2982), Section 504 of the 1973 Rehabilitation
Act provides that:
No otherwise qualified handicapped individual
in the United States
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 activity receiving Federal financial assistance
or under any program or activity conducted by any
Executive Agency or by the United States Postal
Service. The head of each such agency shall
promulgate such regulations as may be necessary
to carry out the amendments to this section made
by the Rehabilitation, Comprehensive Services,
and Developmental Disabilities Act of 1978.
Copies of any proposed regulation shall be sub-
mitted to appropriate authorizing committees of
the Congress, and such regulation may take effect
no earlier than the thirtieth day after the date
on which such regulation is SO submitted to such
committees. *
The DOJ proposed regulation is expected to be adopted verbatim
by the other federal agencies, with adjustments in specialized
areas of concern to the particular agency. Each federal agency is
then expected to publish an agency-specific proposed regulation in
the Federal Register for comment.
*
The 1978 amendment language is underlined
-3- -
The DOJ Prototype Section 504 Regulation for "Federally-
Conducted" Programs Provides Less Civil Rights Protection
for Disabled People than the Recently Reaffirmed 1978
Section 504 Guidelines for Recipients of Federal Financial
Assistance.
The key objection to the DOJ prototype regulation is its
incorporation of an across the board "undue administrative or
financial burden" defense to program accessibility. * The prototype
regulation provides:
(a) General. The agency shall operate each
program or activity SO that the program or
activity, when viewed in its entirety, is
readily accessible to and usable by handicapped
persons. This paragraph does not
...
(3) Require the agency to take any action
that it can demonstrate would result in a
fundamental alteration in the nature of a
program or activity or in undue financial and
administrative burdens. If an action would
result in such an alteration or such burdens,
the agency shall take any other action that
would not result in such an alteration or such
a burden but would nevertheless ensure that
handicapped persons receive the benefits and
services of the program or activity.
(28 CFR $39.150 (a) (2) **
This language is inconsistent with the recently reaffirmed
1978 Section 504 guidelines for recipients of federal financial
* This is not a section-by-section analysis of DOJ's prototype
rule. Rather, this memorandum sets forth the key policy and
political objections to the incorporation of an across the board
"undue burden" defense and highlights other major problems.
** Identical language appears in the section entitled
Communications (38 CFR $39.160 (e) ).
-4-
assistance. For over 18 months DOJ reviewed the 1978
"recipient" guidelines. Every DOJ draft of revisions to those
guidelines contained some formulation of the "undue burden"
defense. This was the major rallying point for disabled people
who objected strenuously to the incorporation of any undue burden
language in the guidelines.
On March 21, 1983, Vice President Bush announced that:
the Department of Justice and the Presidential
Task Force on Regulatory Relief have concluded
their review and have decided not to issue a
revised set of coordination guidelines.
Vice President Bush assured the disabled community that the:
commitment to equal opportunity for disabled
citizens to achieve their full potential as
independent, productive citizens is fully
shared by this Administration and has the strong
personal support of both the President and me.
Hence, the incorporation of an undue burden defense in the
guidelines was rejected by the Administration. This represented
the major victory for the disabled community.
In spite of Vice President Bush's announcement, DOJ has
incorporated the undue burden language in its "federally-
conducted" proposed regulation. As stated by DOJ in the preamble
to the proposed regulation:
-5-
This regulation adopts the program
accessibility concept found in the existing
Section 504 coordination regulation for
programs or activities receiving federal
assistance (28 CFR 41.56.58, with certain
modifications
However, Section 39.150
unlike [the federal recipient guidelines]
places explicit limits on the agency's
obligation to ensure program accessibility
(Section 39.150 (a) (2) ) (Emphasis added.
48 Fed. Feg. 55998)
At a minimum, the two sets of guidelines ("federally-
conducted" and "recipient") should be consistent. If anything
the federal government should be a model of accessibility, held
to more stringent standards than recipients of federal assistance.
The federal government must not be allowed to exclude "qualified
handicapped" people from its programs because they will be a
"burden. "
Moreover, Congress clearly intended that the Section 504
regulations governing activities of the federal government should
be consistent with the regulations governing recipients of federal
assistance. See, 124 Cong. Rec. 13,901 (1978) remarks of Rep.
Jeffords) ; 124 Cong. Rec. E2668, E2670 (daily ed. May 17, 1978)
id; 124 Cong. Rec. 13, 897 (remarks of Rep. Brademas) ; id at
38, 552 (remarks of Rep. Sarasin).
Analysis of Fundamental Alteration and Undue Burden Language
The incorporation of an "undue burden" defense codifies
prevalent assumptions and stereotypes that the participation of
disabled people will be "burdensome." Undue burden is not
-6-
defined. It is left to the whim of agency officials and
bureaucrats to decide whose participation will cause an "undue"
burden. Any disabled person, through experience, knows what
this means--arbitrarily decision making based on ignorance and
prejudice. Disabled people are supposed to be "grateful" for
any effort made to include them and "understand" when they are
excluded. In these hard times, the codification of an undue
burden defense will surely be used to bolster arguments that have
always been used to exclude disabled people. The lack of guidance
encourages fiscal short-sightedness. A short-term "burden" will
in most cases be a long-term benefit.
DOJ states in the preamble that the "undue burden" language
is in response to Davis V. Southeastern Community College. However,
incorporation of the undue burden defense in program accessibility
is an overly-broad and wholly unnecessary application of Davis.
First, as noted above, after an 18-month review DOJ and the
Administration announced that revisions on the Section 504 regula-
tions were not required by Davis. Second, it should be noted that
the Supreme Court in Davis did not choose to invalidate the HEW
regulations or to require that they be modified. In fact, DOJ
published its own recipient regulations which are identical to
the 1977 HEW regulations one year after the Davis decision.
Third, Davis did not involve a program of the federal government.
The federal government should be held to the highest standards
of accessibility and non-discrimination.
-7-
Finally, the situation in Davis is clearly distinguishable
from program accessibility. In Davis, a deaf woman was found not
to be qualified because her hearing impairment would prevent her
from participating in the clinical training portion of the program.
The Court found that if the clinical training requirements were
waived, Ms. Davis "would not receive even a rough equivalent of
the training a nursing program normally gives". Id at 410.
Program accessibility does not involve the question of
qualification. It is a concept which simply assures that disabled
people will not be totally barred from participating in or
benefitting from a program because it is inaccessible.
The very concept of program accessibility is an implicit
cost standard. Program accessibility, by its very nature, is a
compromise to full and equal access. A recipient may comply with
the existing program accessibility requirements,
through such means as redesign of equipment,
reassignment of services to accessible buildings,
assighment of aides to beneficiaries, home
visits, delivery of services at alternate
facilities
or any other method that
results in making its program or activity
readily accessible to and usable by handicapped
persons. A recipient shall not be required to
make structural changes in existing facilities
where other methods are effective in achieving
compliance with this section. 28 C.F.R. Section
41.220 (b) (1).
Surely the federal government does not need more flexibility than
currently allowed. The overlay of an undue burden defense is a
clear signal to the federal agencies that Section 504 requires only
limited efforts to accommodate.
-8-
Finally, the "fundamental alteration" language of Davis
is inappropriately applied across the board in program access.
In Dopico V. Goldschmidt, Dec. No. 81-6172 (2nd Cir., Sept. 2,
1982) the Second Circuit correctly distinguished Davis in a
transportation context:
plaintiffs do not seek fundamental changes
in the nature of a program by means of alterations
in its standards
The existing barriers to
the "participation" of the wheelchair-bound are
incidental to the design of facilities and the
allocation of services, rather than being
integral to the nature of public transportation
itself, just as a flight of stairs is incidental
to a law school's construction but has no
bearing on the ability of an otherwise qualified
handicapped student to study law.
Making a program accessible does not change the fundamental
nature. of a program. Using this language in program accessibility
seriously confuses, expands and distorts its use in the Davis case.
Analysis of New Qualified Handicapped Person Definition
Similarly, Davis is applied over-broadly in a new definition
of qualified handicapped person which provides:
28 CFR $39.103
With respect to any agency program or
activity under which a person is required to
perform services or to achieve a level of
accomplishment, a handicapped person who
meets the essential eligibility requirements
and who can achieve the purpose of the program
or activity without modifications in the
program or activity that would result in a
fundamental alteration in its nature;
-9-
The range of programs that this definition would apply
to is unclear. Again, Davis does not require a revision in
existing definitions. * Davis involved a situation where the
plaintiff had not met stated eligibility standards that the
Court ruled were essential to the nature of the clinical training
program at issue. The holding was thus fully addressed by the
"essential eligibility criteria" standard in the existing Section
504 recipient regulations.
The "fundamental alteration" language codifies the
exception rather than the rule. Again, the danger is that this
type of codification will reinforce existing stercotypes.
Most importantly, the questions of "qualification" and
"modification" should be separate inquiries. A disabled person
should be deemed "qualified," if like any other applicant, s/he
meets the essential eligibility requirements. At that point,
inquiry can be made as to the type of accommodation, if any, which
is needed in order for the person to participate in the program.
These inquiries must be separated in order to ensure that the
disabled applicants' qualifications are fairly evaluated. This
two-step process is recognized in the Section 504 recipient
regulations on employment. An applicant for employment can be
given a physical examination only after an offer has been made.
* The corresponding definition in the HEW regulations provides:
"with respect to post secondary and vocational education services,
a handicapped person who meets the academic and technical standards
requisite to admission or participation in the recipient's education
program or activity.
-10-
Without this protection, it would often be impossible for an
applicant to show that his/her rejection was based on his/her
disability. The same concerns hold true in other areas. Since
only "qualified handicapped persons" are protected by Section 504,
the person's disability. and/or the question of accommodation should
not be allowed to enter into this threshold determination.
OTHER PROVISIONS
(A) Definitions (28 CFR $39.103)
Facility
Recipient regulations define facility as "all or any portion
of buildings, structures, equipment, roads, walks, parking lots,
or other real or personal property or interest in such property.
The underlined language has been omitted. The preamble describes
this change as intended "to clarify its coverage." In fact, the
omission seems to exclude partially owned or leased facilities
from the coverage of the regulation. Partially owned or leased
buildings should be covered.
Handicapped Person
The definition of "handicapped person" omits the specific
examples of mental and physical impairments contained in the
Federal financial assistance regulations. The preamble explains
the change as "[i]n the interest of brevity." The change causes
unnecessary confusion as to the inclusion in the definition of
such conditions as cancer, heart disease, specific learning
-11-
disabilities, diabetes, emotional illness, drug addiction, and
alcoholism. It is possible to construe the regulations in such
a way that these conditions are not covered. At the very least,
the preamble should specify that the current definition is intended
to be coextensive with the prior regulations.
(B) Self-Evaluation (28 CFR $39.110)
Section 110 of the proposed regulation, dealing with self-
evaluation of Section 504 compliance, is weak. It does not make
clear whether a written document or record of self-evaluation is
necessary. The section does not spell out any of the content
of a self-evaluation, e.g., assessment of program accessibility
or review of position descriptions and eligibility criteria,
that should be performed. The current recipient regulations
specify the obligations of recipients to involve disabled people
in evaluating "current policies and practices and the effects
thereof," "modify
any policies and practices that do not
meet the requirements of Section 504" and to take "appropriate
remedial steps to eliminate the effects of any discrimination
that resulted from adherence to those policies and practices. "
To have any real effect, at a minimum, the procedures set forth
in the recipient regulations should be required.
-12-
(C) General Prohibitions (28 CFR $39.130)
Section 130 omits certain provisions of the federal
financial assistance regulations concerning aiding or perpetuating
discrimination by assisting an agency, organization, or person
that discriminates against handicapped persons. 28 CFR $41.51 (b)
(1) (v) and (b) (3) (iii) (1982) The preamble does not mention this
omission. There is no apparent rationale for allowing government
agencies to perpetuate discrimination by assisting discriminators
when recipients of federal financial assistance are prohibited
from doing so.
Section 130 (b) (6), dealing with licensing or certification
programs, differs from the federal financial assistance regulations
that prohibit discrimination "directly or through
licensing
...
arrangements. " 28 CFR $41.51 (b) (1) (1982). The prototype
wording provides that "the programs or activities of entities
that are licensed or certified by the agency are not, themselves,
covered by this part.' " DOJ should include a prohibition against
handicap discrimination in the standards for license or certification
eligibility. The United States Supreme Court's decision in
Community Television of Southern California V. Gottfried, 103 S.Ct.
885 (1983), permits federal agencies through their proper rulemaking
procedures to impose upon prospective licensees a duty not to
discriminate against handicapped persons.
-13-
(D) Program Accessibility (28 CFR $39.150)
As discussed above, Section 150 (a) (2) incorporates very
broad defenses of "undue financial and administrative burdens"
and "fundamental alterations" to the obligation of making programs
accessible. These limitations are not found in the program
accessibility requirements of the federal financial assistance
regulations. The proposal also omits the language of the federal
financial assistance regulations (28 CFR $41.56) providing that
no qualified handicapped person will be discriminated against
because of a lack of program accessibility. It may appear that
the same effect is accomplished by Section 150 (a) of the regulation,
which requires programs or activities, when viewed in their
entirety, to be "readily accessible to and usable by handicapped
persons" (this language is drawn from $41.57 of the federal
financial assistance regulations). There is, however, a notable
difference in the two formulations. The federal financial assistance
provision makes it clear that each individual handicapped person
is entitled to access to the program or activity. The proposed
formulation can be interpreted as more of a general or group
accessibility requirement. On its face, it does not clearly
guarantee a right to each handicapped person to have access to a
particular program or activity. Such an individual accessibility
right should be clearly delineated.