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Federico Waitoller: From the Division of Research of the Council for Exceptional Children, this is
Dive In. I am your host, Federico Waitoller, professor at the University of Illinois of Chicago.
Welcome, welcome, welcome, welcome to our seventh episode of the second season of DiveIn.
If you read the title of this episode, you know we're going to dive into an extremely important and
timely issue.
We're going to give you the ins and outs of the pending case, Texas vs. Becerra,
a case that has the potential to declare Section 504 of the Rehabilitation act of 1973 as
unconstitutional, dismantling major civil rights protection for children, youth and adults with disabilities.
As always, I have a guest that's going to help me out to unpack this case. Today, we're going to have
the help of David DeMattewss, who is the W.K. Kellogg Endow professor in the Department of
Educational Leadership and Policy at the University of of Texas, Austin.
He's the founder of the Texas Education Leadership Lab and holds a courtesy appointment in the
Department of Special Education. He's also the co director of the Cooperative Superintendency
Program. And we're going to talk about Dave because Dave is in Texas and this court case was
originated in Texas.
So he's also going to help us understand the context of the state in where this court case is emerging.
So how are we going to do this? I'm going to give you a quick outline from our episode today. We're
going to talk very, very briefly about what is 504 and its importance.
I know most of our audience know, but it's good to highlight how much is at stake here. We're going to
provide you a history and summary of the court case.
We're going to delve a little deeper into two sticking points in this court case, which are gender
dysphoria issues,
the integration mandate, and how these two are used to argument to dismantle section 504.
And also we will contextualize the Becerra case within the current Texan and national context and
broader efforts to deregulate special education and the protections for children and youth with
disabilities.
So are you ready? So let's get started and dive in.
So let's start with a very quick summary of 504 and why it's such an important legislation. Dave, can
you tell us about this?
David DeMatthews: This is an important federal civil rights law that protects individuals with
disabilities from discrimination. And specifically, the law ensures no qualified individuals with a
disability are excluded from, denied benefits of or subjected to discrimination.
Any program or activity receiving federal funds to Be clear, people of all ages are protected under
section 504, including children as well as older adults who need assistance walking, hearing, getting
out of bed, or even seeing.
The law applies broadly to a range of agencies and organizations, including public schools and
universities, as well as hospitals and doctors offices that accept Medicaid and Medicare.
To ensure compliance, the U.S. department of Education Office of Civil Rights investigates
complaints, conducts reviews and provides technical assistance. The Department of Justice can take
legal action if any institution fails to comply with section 504.
And as a last result, the federal government can actually withhold federal funds to institutions that fail
to comply.
Federal agencies such as the Department of Health and Human Services and the Department of
Education periodically update regulations to clarify and strengthen discrimination protections against
discrimination based disabilities based discrimination.
Federico Waitoller: So let's recap a little bit what Dave said and add a few things. So 504 is a major
civil rights protection for all people with disabilities. It prohibits discrimination based on disabilities in
agencies receiving federal funding like schools, like hospitals.
Section 504 is under the Rehabilitation act of 1973, interesting enough, signed by Nixon. Not a
Democrat, nor a Progressive, nor a woke member by Nixon.
But we need to clarify that though the act passed in 1973, it was rarely if ever enforced for many
years and it was not until 1977 when 150 disability rights activists included.
Judy Heumann did a huge sit down in San Francisco and enticed many other disabled activists to the
sit down supporters across the nation. So 504 is the result of continuous and hard fought civil rights
struggles just to protect basic civil rights for people with disabilities.
Like Dave mentioned. Sometimes the Department of Health and Human Services or even the
Department of Education can update the regulations of 504. And this is what happened after Covid
because the rules at the heart of the Becerra case were adopted by the Health and Human Services
Department in response to concerns that people with disabilities had not received adequate care
during COVID 19 pandemic.
The rules requiring that medical services may be more accessible,
including chairs and tables, than can be used by people with mobility impairments, kiosks and
websites for medical providers that were available for plant users.
The Biden administration also finalized a rule adding the term gender dysphoria. And this is going to
be very important and we're going to unpack it a little bit. Just keep this in mind because this term
genden dysphoria was added to the definition of disability under 544.
And additionally these new rules updated by the Health and Human Services department also require
improving the integration of severely disabled people into their communities rather than placing in
nursing homes.
So what happened on September 26, 2024, a coalition of 17 states led by Texas filed the lawsuit
against the Biden administration against these updated regulations for 504. And this is the case that is
called Texas versus Becerra.
Well, you know what Texas is, right? Texas Southern Stain, Longhorns football, Rio Grande. It used
to be part of Mexico. You know, what's Texas? But who is Becerra? That's a kind of a mystery, right?
Well, Becerra refers to Xavier Becerra, who is the serving, who was the serving Secretary of the
Health and Human Services of the Biden administration. So again, on September 26, 2024, 17 stakes
led by Texas filled a lawsuit against these new regulations.
And those states are going to list them. So if you want take paper and pencil, pencil and paper. Here
we go. We got Alabama, Alaska, Arkansas, Florida, Georgia, Indiana, Iowa, Kansas, Louisiana,
Missouri, Montana, Nebraska, South Carolina, South Dakota, Utah and West Georgia.
So these states argue that this rule unlawfully changes the terms of section 504 and the ADA and
exposing them, exposing these states the potential to lost federal funding and conflicting legal
obligations.
So the plaintiffs assert that the rule, these new rules by the Biden administration contradicts federal
law which excludes gender identity disorders not resulting from physical impairments from being
defined as disabilities.
This referring to gender dysphoria.
So this is one sticky issue, the issue of gender dysphoria. And the other sticky issue in this court case
that these 17 states are feeling a lawsuit about is that the requirements to provide services in the
most integrated setting and these that prohibits acting resulting on serious risk of institutionalization.
And these states are saying that exceeds the Health and Human Service authority.
So but here is the kick, okay?
They're using these two updates, the gender dysphoria and the integration rule,
to argue that 544 is unconstitutional. So put that on the back burner. I'm going to unpack those three
things. Gender dysphoria, the integration cause and how that plays out on going broader and more
powerful to say 504 is unconstitutional.
And I'm going to unpack that in a minute. But before I want to also give an update because this is not
something that happened just in September, because now in February, now with the,
with the Trump administration on February 19, these states, together with the President Trump
Department of Justice file a joint status response.
So what does mean that they updated the complaint and this filing does not change anything about
the case,
even they doubled down on it.
That means that the claims of Becerra remain unchanged, including the broad attacks on 504.
And if all states, these all states make clear that we continue to pursue the original claims and no
state has withdrawn from the lawsuit at this time.
So this is a very important and timely issue that continues to be pending and we are going to unpack
it. So let's start talking about these two main points,
the sticking points.
Let's start with gender dysphoria issues.
So, Dave, can you give us a quick intro of why gender dysphoria has become a sticking point?
David DeMatthews: One part of the update extended protections to individuals with gender
dysphoria. Specifically, the update clarified that gender dysphoria could be considered a disability
under section 504, therefore adding additional protections to transgender individuals.
This specific part of the update was was met with both support and opposition.
Texas Attorney General Ken Paxton and the 16 others and 16 other states state attorneys general
took issue with and objected to this update. They challenged the update in court,
which is pending, and specifically the inclusion of gender dysphoria as a protected disability under
section 504.
They argue that this update overstepped federal authority.
Yet they also raise concerns about spending requirements associated with section 504 more broadly
and making accommodations for people with disabilities.
Federico Waitoller: So as Dave mentioned, one of the sticking points, one of the core issues with the
Becerra case is the issue of gender dysphoria.
The Biden administration added gender dysphoria as part of the disability definition under section 504
and the Americans with Disability Act.
But the plaintiffs state that gender dysphoria cannot be considered a disability under 504 because 504
explicitly exclude from the category of disability any gender identity disorders not resulting from
physical impairments.
So this is important point, and this is one of the main arguments of the plaintiffs. Again, we cannot
consider dysphoria as part of a disability within 544 because 544 is explicitly about not including
gender identity disorders not resulting from physical impairment.
So that's the third issue.
The second issue,
it's that they assert that gender dysphoria cannot be confirmed or denied by any physical test,
implying that does not result from physical impairment. Right. We go back to that clause of 544 saying
that gender identity disorders not resulting from physical impairment should not be included.
Therefore, the plaintiff argue it should be excluded from the definition of disability. That's another
sticking point. The other argument from the plaintiffs is that this is an unlawful expansion of Section
504.
They contend that the updated rule unlawfully alters the express terms of section 544 and the
Americans with Disability act, including by including gender dysphoria. This is an overextension of
federal decisions.
The last one it also from the plaintiffs. They argued that the broad scope and retroactive application of
these rules will impose unfair burdens to the states.
And this is very important because this is going to be one of the leverage points that we're going to
discuss in a little bit in which they claim that this make 504 in itself unconstitutional.
This idea you can change and have retroactive application of these new 504 requirements. So this is
the arguments of the plaintiffs. So how does the defense respond to that? Two main things.
The defense references the four secret courts decision which recognized that gender dysphoria can
qualify as a disability under 504 and the ADA. This decision by the 4th Circuit Court acknowledges
that gender dysphoria characterizes by significant distress due to discrepancy between one's
assigned sex at birth and one gender's identity.
And this can substantially, and this is important, this can substantially limit major life activities,
therefore fitting the disability criteria under 504. There is one more argument that the defense uses to
rationalize the decision to include gender dysphoria in 544 and ADA.
And that is that they argue with that the recognizing gender dysphoria as a disability aligns with more
contemporary medical understandings that we didn't have before when that rule about 544 about not
including gender disorders was established.
And this is based on the condition identified in a DSM4.5 that is associated with clinical significance
distress or impairment in social, occupational or other important areas of functioning. Thus it has an
impact on the functioning of the person experiencing gender dysphoria.
This medical recognition supports its classification as a disability under federal anti discrimination
laws. So again the defense saying that this is in alignment with legal proceedings according to the 4th
Circuit Court that declare gender dysphoria can be substantially limit major life activities and therefore
can be a disability and also more consistent with medical standards.
So here we have the first sticking point. The first issue of the Becerra case and pact. But there is
another issue and that issue is the integration mandate.
So before talking about the integration mandate, let me do a parenthesis here and say how difficult is
to pronounce the fourth Circuit chord for a non English speaker like me.
I literally need to do a yoga position with my tongue and I still pronounce it pretty badly. So apologize
for all that I close parenthesis and let's keep talking about the integration mandate.
So this integration mandate that was expanded by the Biden Administration requires that the
recipients of federal financial assistance administer programs or activities in the most integrated
setting appropriate to the needs of the qualified person with a disability.
Here the most integrated setting is defined as a setting that provides individuals with disabilities the
opportunity to interact with non disabled persons to the fullest extent possible. Very similar to LRE in
IDEA to expand on that these most integrated settings supposed to allow individuals to live, work and
receive services in the greater community similar to individuals without disabilities.
It also requires that these services are located in mainstream society and offer access to community
activities and opportunities at the time and frequencies on the individual choosing. And this is the idea
of providing individuals with disabilities choices in their daily life activity.
And this final rule on the integration mandate, it's not something new. It didn't come out of the bloom.
This class is rooted in the Supreme Court decision in Olmsted from 1999 which emphasized the
importance of the community integration for individuals with disabilities.
Now the plaintiffs argue that this definition of the integration class, which emphasizes opportunities for
individuals with disabilities to interact with non defensible persons in the mainstream society, is overly
restrictive and exceeds the statutory Authority of the U.S.
department of Health and Human Services. The plaintiffs also state that this definition of of the
integration mandate is not sufficiently connected to a federal interest on disability. And this is more
important and imposes an undue burden on states.
Okay, but here's the juiciest part of this court case.
Because in the Becerra case, the states are not just requesting to withdraw from this Phoria disorder
class or the integration mandate. They're actually arguing that Section 504 is unconstitutional. So
they're using this recently made changes to declare to ask the court to declare 504 to be
unconstitutional.
And this is for these reasons that they are stating to make their case that 504 is unconstitutional. The
first one is based on coercion. The plaintiffs claims that section 504 impose coercive conditions on
states by requiring them to comply with federal disability regulations in order to receive federal
funding.
They arguing that this coercion violates the spending class of the US Constitution. So here we got to
do a little parenthesis and explain what is the spending class in the US Constitution?
The spending class in the US Constitution is what it grants Congress the power to collect taxes and
spend money for the general Welfare of the United States. This spending class enabled Congress to
influence state policies by attaching conditions to the federal policy like 504.
We'll give you this money if you comply with this. If you don't comply, you cannot have this money.
However, there are limits on how Congress can use this power, especially regarding coercion.
There is an anti coercion principle in the spending class that states that in which states accept federal
funds, but that the conditions attached at them are voluntary. Okay, so the plaintiffs is saying 504 is
unconstitutional because it's exercising coercion for us to accept this funding.
So that's number one.
Number two,
the plaintiffs asserts that section 504 is not sufficiently connected to federal interest in disability. They
argue that these law's requirements go way beyond what is necessary to address disability
discrimination and is imposing huge undue burdens on states.
And the final reason, it's something around retroactivity. That means the plaintiffs contain that section
504 imposes retroactive conditions on states, remember? So that the Biden administration added
those classes to 504.
So the state saying, you cannot help me accountable for that because I accepted already funding
without those conditions. So let me rephrase that. The states must comply with new regulations that
were not in place when the initial accepted federal funds were accepted by the states.
So the plaintiffs are arguing that this retroactivity is unfair and unconstitutional. So These are the three
main arguments that the plaintiffs are using to declare 544 as unconstitutional.
So we could argue that either the issues around gender dysphoria or the integration class are used as
leverage points to achieve something much, much, much more, more important, and I would say
dangerous,
that is the dismantle of civil rights protections for social groups. In this case, people with disabilities,
in this case dismantling 504, declaring it unconstitutional.
So what happened if I achieved this goal? Well, here again, Professor Dave demathius help us to
answer this.
David DeMatthews: If that Lawsuit succeeds, section 504 of the Rehabilitation act could potentially
be invalidated, which would effectively undermine decades of progress by the disability rights
community with a sweeping negative impact extending far beyond the initial concern focused on
individuals with gender dysphoria.
A ruling against Section 504 could lead to increased segregation of all individuals with disabilities in
many or all of our major institutions and negatively shape the future of disability rights in our nation for
years to come.
The lawsuit is currently ongoing in the U.S. district Court of Northern District of Texas, and the
likelihood of the lawsuit's success is uncertain. Obviously, the political climate the composition of the
courts and the extent to which the public and advocacy groups mobilize to shape public opinion can
play a key,
key role.
Federico Waitoller: So the stakes are high,
very high, with far reaching consequences that will affect not just education, but all social spheres of
life for children,
youth and people with disabilities. And as they mentioned, it will be shaped by the extent to which the
case face opposition by disability rights advocates. So it's very important that we stay educated and
involved.
But I also want to contextualize this case in broader efforts to deregulate services for students with
disabilities.
So ask Dave to expand on the current context in Texas that provides the background for this court
case. In other words, why is this court case occurring right now? Dave.
David DeMatthews: This case is happening at a time of significant political contentiousness within
our state, within Texas, especially as it relates to an important critical institution that Section 504 also
covers, that's our public schools and education institutions.
As a backdrop for listeners to know, Texas has long had problems protecting the rights of children
with disabilities within its own public school system, including systemic failures to implement the
Individuals with Disabilities act around our nation's federal special education law.
For more than a decade, the state maintained an illegal special education cap of 8.5% of enrolled
students, which led to the delay or denial of special education to countless eligible students with
disabilities.
The state has also made illegal cuts to special education funding and has struggled to address
special education teacher and educational psychologist shortages for decades.
The state legislature has also failed to raise the basic per pupil funding allotment for over six years,
despite the significant rise in the cost of living in Texas and inflation stemming from the COVID 19
pandemic and broader economic uncertainties that persist into the Trump administration.
This issue continues to be highly relevant during the Trump administration, given both the regular
threat and application of tariffs on key trading partners.
So the failure to pass a measure to more adequately fund Texas public schools has been partly to do
with a faction of elected Republican officials and their tireless effort to pass a large statewide private
school voucher program.
Historically, a bipartisan coalition of Texas Democrats and Republicans in the legislature have
blocked vouchers given their poor track record and increasing student performance, as well as
concerns that they are expensive, that they benefit only wealthy and urban suburban parents, and
that they defund public schools that are vital to Texas communities,
particularly in more rural parts of the state.
However, the current governor helped raise millions of dollars to oust rural Republicans that voted
against private school vouchers, including from some outside sources like Jeff Yass of Pennsylvania.
The DeVos family of Michigan and large national PACs.
Some of the efforts to push out conservative Republicans who did not support vouchers were
successful.
The Texas legislature is now in session and there is both a Senate and House bill focused on private
school vouchers. The governor and some lobbyists have claimed that they have the votes to pass
private school vouchers, but the authors of the bill now face disgruntled and booing crowds in their
districts across the state,
including in many of the most conserv parts of Texas.
I mentioned vouchers in relation to disability rights because the proposed Senate bill gives just a
fifteen hundred dollar added voucher for a child with a disability. But it also requires that families of
children with disabilities waive their federal protections under the Individuals with Disabilities
Education act in order to accept the voucher.
So just like we're seeing in the lawsuit around section 504, we're also seeing in Texas policies being
drafted that water down or even eliminate federal civil rights protections.
So in terms of the Individuals with Disabilities Education act, these protections that parents will have
to waive include due process when they disagree with decisions made by the school, the right to a
free and appropriate public education,
and even the right to having certified teachers providing evidence based instruction and services.
The House bill the House voucher bill is a little bit different. It provides funding for children with
disabilities up to $30,000 total, but also removes many rights from families.
It also is important to note that the cost of special education related services for students with
moderate or more severe disabilities far exceeds $30,000 a year and does require highly trained
school personnel.
And so neither of these bills are going to work for a large portion of families and students with
disabilities.
So I see these bills as disastrous overall for the public school system that will lose much needed
funds for all children regardless of whether or not they're a child with a disability.
Because researchers have found consistently that these large voucher programs in other states like in
Indiana, Ohio and Louisiana, they fail miserably and they lead to statistically significant negative
achievement outcomes for those students using vouchers.
And for students with disabilities, they will likely be rejected from virtually every private school given
the voucher is not sufficient to cover special education services.
So in a nutshell, these bills, if passed, will just be a perk for wealthy parents that further harms public
schools that are tasked with serving every child, including students with disabilities.
The one thing that I also want everyone to know is the saddest part about all of this is unlike a lot of
other states,
the Texas economy is strong. The state has a massive budget surplus and has the resources to make
an incredible investment in public education and in serving students with disabilities well.
And from the Texans I talk to of all political stripes, regardless of politics, whether they voted for
Trump or Harris, regardless of whether they live in urban communities or rural communities, they want
to see their public schools fund it.
They want to see teachers who are well paid. They want to see a high quality system of special
education that serves all students.
And so Texas is an interesting context right now.
It's unfortunate that the state is not making more progress,
but I think if anything it illustrates just how important state leadership is to public education and to
ensuring that every child, regardless of race or background or geography or disability, receives a high
quality education.
Federico Waitoller: Let's summarize what we learned today.
Today we learned about the case of Texas vs. Becerra concerning section 504 of the Rehabilitation
act of 1973. This lawsuit was filed by Texas and 16 other states challenging the inclusion of gender
dysphoria as a disability and the new definition of the integration clause under the updated section of
504 brought by the Biden administration as a response to some of the inequities they perceive during
COVID 19.
However, the states are using these changes around gender dysphoria and the integration class to
leverage and request that 504 be declared unconstitutional.
The stakes are high. We are in a key moment of American history where we need to stay educated
and involved to protect long fought civil rights protections for children, youth and adults with disability.
As Dave discussed with us, this is not happening in a vacuum. It's happening in a moment where
states and governments and other political influencers are trying to dismantle civil rights protections
for different social groups.
This is happening while voucher legislation are being expanded across the nation, particularly right
now in Texas.
504 is a sticking point. It's like a stick on the wheel for voucher programs. Why? Because private
schools are required to follow 504 legislation if they assert private funds. So again, this case of
Becerra is just another piece of a much bigger puzzle to dismantle civil rights protections and bring a
much stronger market agenda to deliver educational services for students with disabilities.
I thank you for being with me with the show today. I encourage you to check other episodes that are
related to today's episodes. For example, we have a great episode about the implications of the
Trump administration for special education with David Bateman and Mitchell Yell.
I encourage you to look at that. We made that episode before Trump assumed the presidency. So
there is some forcing implications there that I think you will enjoy or at least learn from.
And also, we have another episode on voucher programs that I think will be highly related to what we
talk today. That's it for today. Thank you for listening to us and help us to spread the word about the
show.
Take care.
Thank you for listening to Taipei. I hope you learned from this episode as much as I did. Please help
us to spread the word about the show.
See you next time.