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Issue 1




History Lessons

Signing the Section 504 rules:
More to the story.

By David Pfeiffer

On Sunday, April 28, on National Public Radio's Weekend Edition, reporter Joseph Shapiro revisited the nation's longest sit-in at a federal building, with interviews of the original demonstrators and archival audiotapes.

Jim Cherry wrote an interesting account of how his lawsuit helped force the U.S. Department of Health, Education and Welfare (HEW) to write regulations to implement Section 504 of the Rehabilitation Act of 1973. Section 504 was the first explicit statement in a statute of the civil rights of people with disabilities. His lawsuit was indeed a major part of the events which led to the implementation of Section 504 -- but there is more to the story.

It seems incredible today that Section 504 was an inconspicuous part of the statute which brought it into life as a federal law. In 1972, Sen. Hubert Humphrey, a Democrat from Minnesota, wanted to amend the Civil Rights Act of 1964 to include people with disabilities. Sen. Humphrey had a grandchild with Down Syndrome and had learned firsthand of the discrimination faced by people with disabilities. He was determined to put an end to such discrimination as he had helped to do in 1964 with regard to people of color and women.

However, in 1972 as today, Congressional leaders who favor the Civil Rights Act of 1964 feared bringing it to the floor of the Senate for amendments, worried that opponents would change it so much as to destroy its impact. Humphrey was finally persuaded to have his disability antidiscrimination protections included in the Rehabilitation Act of 1972 instead -- the first rehabilitation statute to avoid the title "vocational rehabilitation." Congress passed the bill, but only after a bitter battle -- the most contentious part of the legislation was providing financial assistance to the state rehabilitation agencies so that persons too severely disabled to work (or so it was thought) could live independently. The Nixon administration strongly opposed this provision as a waste of money.

When the bill reached the Nixon's desk, he let it sit. The President has to sign or veto legislation within ten days, or else it becomes law without his signature. However, Congress must be in session for this to happen. The President can "pocket veto" a bill when Congress has adjourned by not doing anything. This is what Nixon did. The legislation died.

The new Congress convened in January 1973 and proponents of the Act reintroduced it. It still contained the provision for funding independent living, and it still had Section 504 in it. A bitter battle again ensued, but what was now called the Rehabilitation Act of 1973 passed Congress and was sent to the President to sign or veto in March. He vetoed it, because of the costs associated with independent living. There had never been any mention of Section 504 in public discussion of the Act at all.

Not having the votes to pass the Act over the President's veto, its proponents set to work again. They removed the funding for independent living and substituted much less funding for a study of whether independent living would be fiscally responsible. Section 504 remained in the Act, still virtually unnoticed.

On September 26, 1973, Nixon signed this version of the Rehabilitation Act of 1973 into law. It was viewed by most observers an evolution of the Smith-Fess act of 1920, which funded state assistance to people with disabilities for their vocational rehabilitation. The U.S. Department of Health, Education and Welfare was designated as the lead agency for writing the implementing regulations.

These regulations were written by HEW in conjunction with other concerned federal agencies, except for the Section 504 regulations. As Cherry writes in his article, it was HEW's position that Section 504 was a policy statement which did not require implementation. Cherry and others disagreed. Cherry began to lobby HEW to write the regulations; leaders in the newly-formed American Coalition of Citizens with Disabilities were urging HEW officials to do the same thing. Evidently they never knew of each other's activities.

To get support for his position, Cherry contacted rehabilitation providers for support. These groups got federal and public funds. Since civil rights and rehabilitation procedures were in conflict, then as now, they refused to back him. Cherry then proceeded to sue HEW.

With pro bono legal assistance from the Institute for Public Representation of the Georgetown University Law Center and the backing of his Louisville, KY, hometown Action League for Physically Handicapped Adults, Cherry filed suit in the federal district court of the District of Columbia. He paid the court costs out of his veteran's disability pension. Ragged Edge editor Mary Johnson was president of ALPHA at that time.

The suit Cherry v. Mathews was filed on February 13, 1976. HEW contended that they were not legally bound to issue any regulations regarding Section 504. The court disagreed, ruling in Cherry's favor July 19. Not wanting HEW to appeal the decision, Cherry kept quiet; as he wrote in his Ragged Edge article, he purposefully avoided going to the media. Administrators in HEW did draw up some regulations, according to Cherry, which HEW Secretary David Mathews refused to sign.

In fact, draft regulations on Section 504 were in existence by May 1975, nine months before Cherry filed his court case. HEW did not want to reveal this fact to the Court because it would weaken their case.

On January 18, 1977, two days before he was to leave office, HEW Secretary Mathews was directed by the federal district court to sign the regulations. On appeal the next day, Mathews argued that in one day he would no longer be Secretary; it was properly Sec. Joseph Califano's responsibility now. The appellate court agreed.

Califano, "a personal friend and former law partner" of Cherry's own attorney, as he wrote, began his own review of Section 504 and the regulations written earlier. Cherry was puzzled when protests occurred in April 1977, almost four full years after the law's signing. He acknowledges that some felt the regulations were being weakened by Califano, but since his lawyers were working with Califano's HEW team Cherry and his lawyers "had no such concern."

Richard Scotch, in his book From Goodwill to Civil Rights: Transforming Federal Disability Policy ( second ed. 2001) gives more insight into Mathews' reluctance during 1976 in signing the regulations. An indecisive man by nature (reports Scotch), Mathews was concerned about the costs of implementing 504 -- and, says Scotch, he did not like the idea of people who were receiving rehabilitation assistance challenging their providers on the basis of civil rights. Those in higher education were worried about the costs of removing barriers as well, and forcefully expressed their views to Mathews, who had headed the University of Alabama.

After taking office as Secretary of HEW, Califano delayed as well, reports Scotch. Officially it was to "study the matter"; but in truth Califano, like Mathews, did not fully support the radical idea that people with disabilities had civil rights, nor, says Scotch, did he like including drug addicts and alcoholics as disabled.

The process dragged on through February and March of 1977.

The ACCD Board voted that if the regulations were not signed by April 4 in the form they were in when Califano took office, there would be nonviolent demonstrations in HEW offices nationwide; demonstrations in San Francisco and Washington, D.C., would be large, they warned.

On Tuesday, April 5, 1977, the demonstrations began. In Boston, I led the demonstrations (at the time I was State Director for the White House Conference on Handicapped Individuals and a full-time university professor); both Sen. Ted Kennedy and House Speaker Tip O'Neill supported us. We left the HEW regional offices after making our point that it was past time for the signing of the regulations; demonstrators in most other HEW regional headquarters left after a short time as well.

In most other HEW Regional headquarters they also left. However, demonstrators at the HEW office in San Francisco, and at HEW headquarters in Washington, DC, continued to hold their positions, and the Carter Administration did not want the embarrassment of arresting "the deaf, the blind, and the crippled." There were conversations going on between ACCD leaders and the HEW. The demonstrators remained in the two offices until April 28, when Califano finally signed the Section 504 regulations.

Califano signed the regulations for yet another reason: On May 23, the White House Conference on Handicapped Individuals was scheduled to convene in Washington; over 3,000 persons with disabilities and their supporters were expected in town -- many of them well-briefed on the events; many who had demonstrated at HEW regional offices on April 5. If the regulations had not been signed by the time they arrived, they would have joined their fellows in the long demonstration at Califano's office -- to the embarrassment of the Carter administration.

The disability community was elated with their victory. The regulations contained most of what they considered to be essential. The regulations left out some of what opponents considered bad. It was a good outcome which laid the groundwork for the further development of the civil rights of people with disabilities.

David Pfeiffer is Resident Scholar at the Center on Disability Studies at the University of Hawaii at Manoa, and editor of Disability Studies Quarterly (DSQ).

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