ragged edge magazine online



Issue 4

July, 2001


More on Jim Cherry from iCan



Cherry v. Mathews:
25 years and counting

By James L. Cherry, J.D., Ph.D.

photo of turtle on a log Most of us have heard the story of the month-long sit-ins that are said to have forced the signing of the Section 504 rules back in 1977. But there's another story -- the story of how the rules got written in the first place. That happened because of a lawsuit -- Cherry v. Mathews. That story has never been published.
Until now.

Section 504 a 'safety net' today

IN 1970 WE HAD no right to education, to employment, to transportation, to housing or to voting. There were no civil rights laws for us, no federal advocacy grants. Few people looked beyond our medical needs.

Section 504 , the first "civil rights act" for persons with disabilities, was modeled after Title VI of the Civil Rights Act of 1964 that prohibited discrimination against persons in federally funded programs on the basis of race, religion, national origin and creed. "Handicapped persons" were not protected from discrimination by that 1964 law.

The Rehabilitation Act which President Nixon signed into law in September, 1973, had at its end a Section 504, which had been stealthily included because the efforts to add "handicapped persons" to Title VI had failed. It reads, "No otherwise qualified handicapped individual . . . shall by reason of his handicap; be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." The section was designed to prevent discrimination against "handicapped persons" in federally funded programs government-wide. Entities covered by Section 504 include state and local governments, schools, universities, hospitals, social service agencies, legal services offices, public housing, parks and much more.

Within a few months of enactment of Section 504, I inquired about the timeline for issuance of the 504 regulation. At the time I was a research patient at the National Institutes of Health (N.I.H.) in Bethesda, Maryland.

The responses I got from the U.S. Dept. of Health, Education and Welfare, whose job it should have been to issue the rules, were negative. DHEW contended that they had no explicit legal duty to issue a regulation under Section 504. Section 504 contained only 44 words and the legislative history was almost non-existent. DHEW spokespersons argued to me that Section 504 was a mere "policy statement" and required no regulatory action.

I aggressively disagreed. I didn't see mere "policy" -- I saw legal rights and power; and I wanted both.

While doctors worked on unraveling the mysteries of the unspecified muscle illness that had rendered me quadriplegic, I worked on DHEW from my hospital room at NIH.

After wrangling with DHEW for months, I started contacting national disability groups and a few disabled persons in the Washington, DC area to pursue litigation against DHEW. None were interested. In fact, some were hostile toward me when I mentioned that Section 504 would provide civil rights for "handicapped persons." The mere mention of the connection between Section 504 and Title VI of the Civil Rights Act of 1964 proved to be a real flashpoint. The national groups' primary efforts were directed toward fundraising, including obtaining federal funds, and providing rehabilitation-type services. The clash between a rehabilitation ideology and civil rights was real. I felt that civil rights programming should be an integral part of the rehabilitation process -- I have always felt that advocacy was great therapy: it energizes, enables and empowers -- but my viewpoint was not accepted at the time.

Between medical procedures as a research patient and my fight with the cancer that doctors discovered I had, I focused upon the fight to get a regulation for Section 504. I pursued pro bono legal counsel in the Washington, DC area and after many contacts I had the good fortune to contact the Institute for Public Representation (INSPIRE) at Georgetown University Law Center in Washington, DC; they took my case in early 1975.

INSPIRE researched my case, created legal briefs and filed legal petitions with DHEW for almost a year before we decided to sue DHEW.

When I couldn't get a national group to join me in a court case, I asked members of the Action League for Physically Handicapped Adults -- ALPHA -- in my hometown of Louisville, Kentucky to join me as co-plaintiff. They agreed, and we launched the Section 504 case.

The Cherry v. Mathews suit was filed on Friday, February 13, 1976, and the court battle ensued. I paid the court costs from my veteran's disability pension.

David Mathews, Secretary of HEW, was the target of my federal lawsuit. He was a rising star as the youngest president of the University of Alabama before being named DHEW Secretary. As DHEW's Secretary he was responsible for implementing the Rehabilitation Act of 1973.

DHEW's not-so-surprising answer to my complaint was to contend that they had no legal duty to issue Section 504 regulations. The U. S. District Court heard various motions and arguments in the ensuing months in early 1976.

The Cherry v. Mathews case was decided in my favor on July 19, 1976. U. S. District Court Judge John Lewis Smith ruled for me and ordered DHEW to develop the Section 504 regulation to prohibit discrimination against "handicapped persons" in any federally funded program.

There was no media of the Cherry decision, except one small article in the New York Times. I pursued no media because a lot of progress was being made "flying under the radar." I was accustomed to aggressively pursuing local media in Louisville where we were trying to gain compliance and enforcement of state laws that were being ignored; however, the development of the Section 504 regulation was at a delicate stage and I didn't want to alert a strong opposition.

The decision to keep quiet about my court victory was nothing more than a tactical decision in a larger strategy, because I realized that there was no real power, except the court, to back me if something went wrong. I didn't want DHEW to come under some outside pressure and appeal my case to the U. S. Court of Appeals. They didn't appeal, and DHEW remained under the federal court order in the Cherry case to develop and publish the Section 504 regulation. Sometimes, silence is golden.

The DHEW bureaucrats scurried around Washington crafting a version of the court-ordered regulation and tried to create some political opposition in Congress, but their efforts failed.

In January, 1977, Mathews refused to sign the prepared regulation, and we went back to the U. S. District Court, where he was held in contempt of court for refusing to follow the Cherry court order. Later that month, Jimmy Carter was sworn in as President and Joseph Califano was confirmed as Secretary of DHEW.

We then had friends in the right position. Joseph Califano was a personal friend and former law partner with Victor Kramer, my attorney and Director of INSPIRE. Joseph Califano started to assemble his all-new team at DHEW and began to review the Section 504 regulation.

But before he could finish his review and sign the new rule, disabled persons staged a sit-ins at DHEW offices in DC and around the country.

My attorneys were perplexed over the development. INSPIRE had performed pro bono legal work for over two years (and I had pursued the 504 idea for over four years), but before the final victory we were subjected to protest demonstrations. Why? Some claimed the draft regulation was being weakened by Califano. But an entire legal team at INSPIRE was working on my case with the new and friendly DHEW review team, and we had no such concerns.

The protests delayed the signing of the Section 504 regulation, but they were finally signed and became effective on May 4, 1977.

It is difficult to give credit to all of the people who played an interactive role in the development of Section 504, and who today continue to work for its enforcement compliance, although the Disability Rights Education and Defense Fund was notable in the early years, and later ADAPT emerged to pursue enforcement of the Section 504 regulation requiring access to buses. ADAPT was born to protest and their efforts have yielded positive progress in many ways as they have channeled the frustrations of many disenfranchised persons. And Georgetown's Institute for Public Representation continues to work on disability rights issues under the leadership of Doug Parker; Professor Parker was one of the young lawyers who in 1976 and 1977 worked on my case.

Over a decade later the Americans with Disabilities Act was built upon the foundation created by the Section 504 regulation. There would be no ADA as we know it today without the Section 504 regulation, and there would not be a Section 504 regulation without Cherry v. Mathews.

The official histories of Section 504 talk about the sit-ins and demonstrations. But to understand the full history of the law, maybe this story will help: "If you are out in a field walking along a fencerow and come upon a turtle sitting atop a post, you realize one thing -- the turtle didn't get there by itself."

Jim Cherry continues his advocacy work in Georgia as chair of the 700-member Association of Georgians with Disabilities, which makes assistive technology loans.

Editor's note: Signing the legal papers for The Action League for Physically Handicapped Adults, who joined with Cherry in his lawsuit, was none other than Ragged Edge editor Mary Johnson, who at the time was president of ALPHA.


Section 504 a 'safety net' today

Section 504 is alive today -- and necessary as ever. Patricia Garrett lost her case before the U.S. Supreme Court last February under the Americans with Disabilities Act -- but could be afforded a safety net by Section 504.

Unfortunately, the state of Arkansas has asked the high court to review the constitutionality of Section 504 as well.


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