This post provides a very quick overview of why I think the regulations implementing Titles II and III of the Americans with Disabilities Act, 42 U.S.C. §§ 12131 – 12189, and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, will survive largely intact in the wake of the recent Supreme Court decision in Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024), overruling the 1984 decision in Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837 (1984). This comes with the caveat that, in a sense, nothing is safe: the Court does not seem bound by even its own recent precedent. But starting from the premise that they meant what they said in Loper Bright – at least for now! – I believe we can continue to rely on Section 504, Title II, and Title III regulations (the “Regulations”).
That said, it seems likely that our opposing counsel – especially private counsel – will sense the opportunity for delay and billable hours offered by dispositive motions premised on the counterfactual demise of these regulations. The goal of this overview is to provide a quick research guide to opposing these motions. As a side effect, I’m hoping it provides a bit of reassurance to my beloved community in the current stressful legal environment.
With this post comes an offer of help: if you face a motion to dismiss or for summary judgment challenging one or all of the Regulations under Loper Bright, I would be happy to kibitz or, if appropriate, file an amicus brief. Indeed, some of the research below came from an amicus brief I co-wrote with an amazing team of colleagues including Claudia Center, Karla Gilbride, Arlene Mayerson, Susan Mizner, Carly Myers, and Justin Ormand. Any errors and of course all of the snark are mine.
CW: This post provides a starting point for research only. It is by no means complete and I will likely continue to update it, especially if I get useful feedback from the community. Always cite check your work!
Summary
Chevron, very roughly speaking, required courts to defer to agency interpretations of ambiguous statutory language. Loper Bright overruled this holding, stating that “[c]ourts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the APA requires.” Id. slip op. at 35, 144 S. Ct. at 2273. That said, Loper Bright did two things that will help ensure the continued viability of the Regulations. First, it recognized that Congress could expressly delegate authority to an agency to promulgate regulations, which authority the Court would respect “consistent with constitutional limits,” id.; and second, it stated that it did not “call into question” the holdings in earlier cases that “relied on the Chevron framework” to hold that “specific agency actions are lawful,” id. slip op. at 34, 144 S. Ct. at 2273.
Starting in 1968 with the Architectural Barriers Act, and continuing through the Rehabilitation Act of 1973, its several re-enactments, and the Americans with Disabilities Act of 1990, Congress has enacted strong protections for the rights of people with disabilities to architectural and programmatic access in recipients of federal funding, federal and state government agencies, and private businesses. In so doing, it has explicitly delegated to a number of federal agencies the authority to issue regulations implementing these statutes. In addition, these statutes have been enacted and re-enacted either expressly incorporating and endorsing or implicitly adopting those agency regulations. Finally, Supreme Court and circuit court cases since the early 1980s have acknowledged the legal force of these regulations and adopted their interpretations of their respective statutes, both in reliance on Chevron and on independent grounds.
In the short period of time since the Loper Bright decision, it has been harnessed by several conservative courts to enjoin Biden Administration regulations protecting trans individuals. The decisions have relied on Loper Bright’s holdings that courts are uniquely tasked with interpreting statutory language and that “‘every statute’s meeting is fixed at the time of enactment,’” id. slip op. at 22, 144 S. Ct. at 2266, to reach the conclusion that “sex” at the time Title IX[1] was enacted “meant only a person’s biological sex – ‘an immutable characteristic determined solely by the accident of birth.’”[2] Texas v. Becerra, No. 6:24-CV-211-JDK, 2024 WL 3297147, at *6 (E.D. Tex. July 3, 2024) (internal citation omitted); see also Kansas v. U.S. Dep’t of Educ., No. 24-4041-JWB, 2024 WL 3273285, at *8 (D. Kan. July 2, 2024) (same); Tennessee v. Becerra, No. 1:24CV161-LG-BWR, 2024 WL 3283887, at *7 (S.D. Miss. July 3, 2024) (same, interpreting the Affordable Care Act regulations which incorporate by reference Title IX’s definition).
I do not believe the regulations implementing Section 504, Title II, or Title III face similar risk. While these statutes contain broad terms like “discrimination” which the regulations interpret in great detail – and which inaccessible programs and businesses will almost certainly argue are ambiguous – earlier versions of many those regulations were explicitly incorporated into statutory language and acknowledged as definitive in legislative history – “fixing” at least the ADA’s meaning “at the time of enactment,” Loper Bright, slip op. at 22, 144 S. Ct. at 2266. In addition, Congress has repeatedly and expressly delegated authority to various agencies to promulgate implementing regulations, and has enacted and re-enacted the relevant statutes without disturbing settled regulatory interpretation.
Statutory History: Delegation of Authority
Congress has – in statutory language – expressly delegated authority to a number of agencies to promulgate disability rights regulations.
The earliest example of this is the Architectural Barriers Act (“ABA”) in 1968, Pub. L. No. 90-480, 82 Stat. 718 (1968) (codified at 42 U.S.C. ch. 51), mandating the promulgation of “standards for the design, construction, and alteration” of buildings constructed, altered, leased by, or financed by the federal government to ensure access for people with disabilities. 42 U.S.C. §§ 4151-4152. The statute assigned responsibility for promulgation of standards to the General Services Administration (“GSA”) and to the Departments of Housing and Urban Development (“HUD”) and Defense (“DoD”) – all in consultation with the Department of Health, Education, and Welfare (“HEW”). Pub. L. No. 90-480, §§ 2-4.
In 1973, Congress passed the Rehabilitation Act. Section 504 of that statute contains the landmark prohibition on disability discrimination by recipients of federal funding. Pub. L. No. 93-112, § 504, 87 Stat. 355 (1973) (codified at 29 U.S.C. § 794). Section 502 created the Architectural and Transportation Barriers Compliance Board (“Access Board”) and delegated to it the task of ensuring compliance with standards issued by the GSA, HUD, and DoD pursuant to the ABA. Id. § 502. The 1978 amendments to the Rehab Act specifically delegated to the Access Board authority to establish standards to implement the ABA. Pub. L. 95-602, § 502, 92 Stat. 2955 (1978) (codified at 29 U.S.C. § 792(c)(A)).
In 1978, Congress also amended Section 504, expanding it beyond recipients of federal funding to prohibit disability discrimination by federal agencies. In so doing, it expressly instructed each agency to promulgate implementing regulations and to submit the regulations to the appropriate authorizing committees in Congress:
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 submitted 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.
29 U.S.C. § 794(a).
Finally, the Americans with Disabilities Act of 1990 expressly delegated authority to the Department of Justice (“DOJ”), the Department of Transportation (“DOT”), and the Access Board to promulgate implementing regulations. 42 U.S.C. §§ 12134, 12143, 12149, 12164, 12186, 12201. This delegation — which included specific reference to existing regulations — is discussed below.
Regulatory History: Consistent Interpretation
[Accessibility note: the linked copies of the older regulations are Westlaw’s scans from the Federal Register. Though they are OCR’d, I’m guessing they’ll be challenging for a screen reader. It was the only source I could find for old Federal Registers.]
The first regulations implementing Section 504 were promulgated by HEW on May 4, 1977. 42 Fed. Reg. 22676 (“HEW Regulations”). That agency first proposed these regulations in May 1976 after consulting with the relevant committees of both the House and Senate.[3] Senate hearings in that year expressly considered the scope and effectiveness of the proposals.[4] In January 1977, first HEW Secretary Mathews[5] and then HEW Secretary Califano[6] provided each member of Congress with copies of the proposed regulations and solicited their comments. Following the final promulgation of those regulations, a House subcommittee conducted further hearings on the implementation of Section 504.[7]
Following issuance of the 1977 HEW Regulations, and pursuant to Executive Order 11914, 41 Fed. Reg. 17871 (Apr. 28, 1976), that agency issued regulations that were to “coordinate governmentwide enforcement of section 504.” 43 Fed. Reg. 2132 (Jan. 13, 1978) (“HEW Coordination Regulations”). These Coordination Regulations largely tracked the original 1977 HEW Regulations. In 1981, the HEW Coordination Regulations were transferred to the DOJ, 46 Fed. Reg. 40686 (Aug. 11, 1981) and are currently codified at 28 C.F.R. pt. 41 (“DOJ Coordination Regulations”).
Pursuant to the 1978 amendment to Section 504 that required each agency to issue regulations implementing that statute as to the activities of that agency, over 100 sets of regulations have been promulgated by over 90 agencies implementing that statute as to both the agencies themselves (“agency regulations”) and recipients of their funding (“recipient regulations”). And pursuant to the requirement that agency regulations be submitted to Congress, 29 U.S.C. § 794(a), congressional committees have had the opportunity to review at least 70 sets of Section 504 regulations. All of these regulations are based on and very similar to the HEW (now DOJ) Coordination Regulations. A working chart of these regulations was included as an appendix to the amicus brief referenced above.
Finally, pursuant to the instructions in the statutory text of the ADA, the DOJ, the DOT, and the Access Board have issued regulations implementing that Act.
Statutory Language Referencing and Instructing Consistency with Existing Regulations.
In passing the Americans with Disabilities Act, Congress not only expressly delegated authority to the DOJ, the DOT, and the Access Board, it took the further step of instructing those agencies to issue regulations consistent with existing regulations, effectively endorsing and incorporating those regulations.
Title II of the ADA instructed the DOJ to issue regulations consistent with the 1978 HEW Coordination Regulations and the (presumably then-applicable 1990) DOJ agency regulations:
Except for “program accessibility, existing facilities”, and “communications”, regulations under subsection (a) shall be consistent with this chapter and with the coordination regulations under part 41 of title 28, Code of Federal Regulations (as promulgated by the Department of Health, Education, and Welfare on January 13, 1978), applicable to recipients of Federal financial assistance under section 794 of Title 29. With respect to “program accessibility, existing facilities”, and “communications”, such regulations shall be consistent with regulations and analysis as in part 39 of title 28 of the Code of Federal Regulations, applicable to federally conducted activities under section 794 of Title 29.
42 U.S.C. § 12134(b). The statute directed the DOJ to issue regulations implementing Title III that were consistent with minimum accessibility guidelines to be issued by the Access Board:
Standards included in regulations issued under subsections (a) and (b) shall be consistent with the minimum guidelines and requirements issued by the Architectural and Transportation Barriers Compliance Board in accordance with section 12204 of this title.
Id. § 12186(c). It then instructed the Access Board to issue regulations consistent with its earlier Minimum Guidelines and Requirements for Accessible Design:
[T]he Architectural and Transportation Barriers Compliance Board shall issue minimum guidelines that shall supplement the existing Minimum Guidelines and Requirements for Accessible Design for purposes of subchapters II and III of this chapter.
Id. § 12204(a). Both Titles II and III of the ADA also delegate to the DOT the task of promulgating regulations relating to public and private transportation services. 42 U.S.C. §§ 12143(b), 12149(a), 12164(a), 12186(a).
Finally — and most significantly — the ADA directs that the statute as a whole is not to be construed to apply a lower standard than that of the Section 504 regulations:
Except as otherwise provided in this chapter, nothing in this chapter shall be construed to apply a lesser standard than the standards applied under title V of the Rehabilitation Act of 1973 (29 U.S.C. 790 et seq.) or the regulations issued by Federal agencies pursuant to such title.
Id. § 12201(a).
While there is a good deal of caselaw addressing the situation that occurs when Congress re-enacts a statute against the backdrop of consistent regulatory interpretation, see infra, there is surprisingly little addressing the much more compelling situation in which a new or re-enacted statute explicitly refers to earlier regulations, instructing future regulations to conform. The key Supreme Court case, widely cited, is United States v. Board of Commissioners of Sheffield, Ala., which held, “[w]hen a Congress that re-enacts a statute voices its approval of an administrative or other interpretation thereof, Congress is treated as having adopted that interpretation, and this Court is bound thereby.” 435 U.S. 110, 134 (1978) (Emphasis added.)
The Third Circuit applied this principle in the context of the ADA in Helen L. v. DiDario, holding:
Moreover, because Congress mandated that the ADA regulations be patterned after the section 504 coordination regulations, the former regulations have the force of law. When Congress re-enacts a statute and voices its approval of an administrative interpretation of that statute, that interpretation acquires the force of law and courts are bound by the regulation. … The same is true when Congress agrees with an administrative interpretation of a statute which Congress is re-enacting. … Although Title II of the ADA is not a re-enactment of section 504, it does extend section 504’s anti-discrimination principles to public entities. Furthermore, the legislative history of the ADA shows that Congress agreed with the coordination regulations promulgated under section 504.
46 F.3d 325, 332 (3d Cir. 1995) (citing Board of Commissioners; emphasis added; internal citations omitted.) That “[m]oreover” is significant, as this passage follows a Chevron analysis and suggests (properly) that this is an independent ground on which to defer to the 504 Coordination Regulations. See also Hikvision USA, Inc. v. Fed. Commc’ns Comm’n, 97 F.4th 938, 947 n.5 (D.C. Cir. 2024) (Congress enacted a statute explicitly incorporating a list of banned equipment previously identified by the FCC; quoting Board of Commissioners; holding, “The same principles apply with even greater force here, where Congress so clearly intended to incorporate the existing” list).
Significance of Re-enactment
Congress has re-enacted Section 504 on numerous occasions and the ADA once since their original passage, at no time calling into question the interpretation in the then-applicable regulations. When this occurs, the regulations are entitled to deference under the legislative re-enactment doctrine. See, e.g. Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 846 (1986) (“It is well established that when Congress revisits a statute giving rise to a longstanding administrative interpretation without pertinent change, the ‘congressional failure to revise or repeal the agency’s interpretation is persuasive evidence that the interpretation is the one intended by Congress.’” (emphasis added; quoting NLRB, infra)); Lorillard v. Pons, 434 U.S. 575, 580 (1978) (“Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it re-enacts a statute without change” (emphasis added)); NLRB v. Bell Aerospace Co. Div. of Textron, 416 U.S. 267, 274–75 (1974) (“In addition to the importance of legislative history, a court may accord great weight to the longstanding interpretation placed on a statute by an agency charged with its administration. This is especially so where Congress has re-enacted the statute without pertinent change. In these circumstances, congressional failure to revise or repeal the agency’s interpretation is persuasive evidence that the interpretation is the one intended by Congress. We have also recognized that subsequent legislation declaring the intent of an earlier statute is entitled to significant weight.”).
Legislative History: Additional Support
In the legislative history of the 1974 amendments to the Rehabilitation Act, Congress stated that Section 504 “does not specifically require the issuance of regulations or expressly provide for enforcement procedures, but it is clearly mandatory in form, and such regulations and enforcement are intended.” S. Rep. No. 93-1297 (1974), as reprinted in 1974 U.S.C.C.A.N. 6373, 6390 (emphasis added). That Report directed that federal agencies cooperate in “developing standards and policies” for Section 504, and directed HEW to coordinate this effort. Id. at 6391.
In the legislative history of the 1978 re-enactment, Congress specifically referred to the HEW Coordination Regulations and noted that, in light of these regulations, the “amendment codifie[d] existing practice as a specific statutory requirement.” S. Rep. No. 95-890 at 19 (1978). The report also explained that the remedies provision was “designed to enhance the ability of handicapped individuals to assure compliance with . . . [Section 504] and the regulations promulgated thereunder.” Id. at 18.
In the legislative history of the ADA, Congress explained that the purpose of Title II was to “make applicable the prohibition against discrimination on the basis of disability, currently set out in regulations implementing section 504 of the Rehabilitation Act of 1973, to all programs, activities, and services” of state and local government, H.R. Rep. No. 101-485(II) at 84 (1990), as reprinted in 1990 U.S.C.C.A.N. 303, 366. That legislative history further explained why Title II contained less detail than Title I or Title III:
The Committee has chosen not to list all the types of actions that are included within the term “discrimination”, as was done in titles I and III, because this title essentially simply extends the anti-discrimination prohibition embodied in section 504 to all actions of state and local governments. The Committee intends, however, that the forms of discrimination prohibited by section 202 [that is, title II] be identical to those set out in the applicable provisions of titles I and III of this legislation.
Id. (emphasis added).
Key Provisions of Early Regulations
The regulations that Congress expressly recognized in the text of the ADA – the 1978 HEW Coordination Regulations, the 1990 DOJ regulations, and the MGRAD – include many of the principles that remain crucial to enforcing Section 504 and Titles II and III, including (but of course not limited to) the following. Note: citations are to the regulations incorporated by reference in the ADA, 42 U.S.C. § 12201(a); materially identical requirements can be found throughout Section 504 regulations starting in 1977.
- Prohibition on denying opportunity to participate, providing unequal opportunity, providing benefit that is not as effective as that provided to others, or providing different or separate benefits. 45 C.F.R. § 85.51(b)(1)(1978).
- Prohibition on using criteria or methods of administration that have a discriminatory effect. Id. § 85.51(b)(3).
- Prohibition on doing those things “directly or through contractual, licensing, or other arrangements.” Id.
- Requirement that programs and activities be administered in “the most integrated setting appropriate.” Id. § 85.51(d).
- Requirement of auxiliary aids to ensure effective communication, including giving primary consideration to the request of the disabled person. 28 C.F.R. § 39.160(a).
- Requirement of accessibility in new construction and alterations. 45 C.F.R. §§ 85.58.
- Requirement of program access in existing facilities. 28 C.F.R. §§ 39.149 – 39.151.
- Detailed accessibility standards governing new construction and alterations. MGRAD, 47 Fed. Reg. 33862 (August 4, 1982) (originally codified at 36 C.F.R. pt. 1190 (1983)).
- Note that the right to reasonable accommodations under Section 504 was established by the Supreme Court itself. Alexander v. Choate, 469 U.S. 287, 301 (1985).
I believe these principles now have the force of law.
Cases Expressly Deferring to HEW, DOJ, and Other Regulations
There are a number of Supreme Court and circuit court decisions deferring to the HEW and DOJ Section 504 regulations, in some cases recognizing that they have the status of law. The earliest of these, Consolidated Rail Corp. v. Darrone, noted that, in passing the 1978 amendments to the Rehab Act “Congress incorporated the substance of [HEW’s] regulations into the statute.” 465 U.S. 624, 634 n.15 (1984); see also School Board of Nassau County, Fla. v. Arline, 480 U.S. 273, 279–80 (1987) (“As we have previously recognized, these [HHS] regulations were drafted with the oversight and approval of Congress … they provide ‘an important source of guidance on the meaning of § 504.’” (Internal citations omitted)). In the seminal case of Alexander v. Choate, the Court explained that “those charged with administering the [Rehabilitation Act] [have] substantial leeway to explore areas in which discrimination against the handicapped posed particularly significant problems and to devise regulations to prohibit such discrimination.” 469 U.S. at 304 n.24.
Two more recent Supreme Court cases interpreting and applying Titles II and III of the ADA recognize the history and status of the regulations implementing those provisions. Bragdon v. Abbott addressed the question whether asymptomatic HIV fell under the ADA’s definition of disability. The case relied on the instruction in 42 U.S.C. § 12201(a) that the ADA may not be construed to apply a lesser standard than Section 504 or any of its implementing regulations to hold that this “directive requires us to construe the ADA to grant at least as much protection as provided by the regulations implementing the Rehabilitation Act.” 524 U.S. 624, 631-32 (1998); see also id. (citing Darrone and holding that the HEW Coordination Regulations “are of particular significance.”)
The Bragdon Court also relied on the “consistent course of agency interpretation before and after enactment of the ADA. Every agency to consider the issue under the Rehabilitation Act found statutory coverage for persons with asymptomatic HIV.” Id. at 642. The Court concluded: “[t]he uniform body of administrative and judicial precedent confirms the conclusion we reach today as the most faithful way to effect the congressional design.” Id. at 645. This latter analysis relied on Chevron, but should in theory be covered by Loper Bright’s reassurance that the Court would not “call into question prior cases that relied on the Chevron framework.” Id. 144 S. Ct. at 2273.
A year later, the Court addressed the Title II regulations in Olmstead v. L.C. ex rel. Zimring, the case establishing that “[u]njustified isolation . . . is properly regarded as discrimination based on disability.” 527 U.S. 581, 597 (1999). The Court noted Congress’s instruction to the DOJ to issue regulations implementing Title II that were consistent with the HEW and DOJ Coordination Regulations. Id. at 591-92 (citing 28 C.F.R. § 41.51(d)). While the Court noted that it was not determining the validity of the regulations – as neither party challenged them – it held, “[b]ecause the [DOJ] is the agency directed by Congress to issue regulations implementing Title II . . . , its views warrant respect.” Crucially for the purposes of this post, the Court went on to hold that it “need not inquire whether the degree of deference described in Chevron . . . is in order; ‘[i]t is enough to observe that the well-reasoned views of the agencies implementing a statute “constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.”’” Id. 597-98 (internal citations omitted).
A number of circuit courts have also noted the statutory and regulatory history in deferring to the DOJ’s ADA regulations. See, e.g., Shotz v. City of Plantation, Fla., 344 F.3d 1161, 1179 (11th Cir. 2003) (“Congress expressly authorized the Attorney General to make rules with the force of law interpreting and implementing the ADA provisions generally applicable to public services. See 42 U.S.C. § 12134(a). The DOJ issued its rules contemporaneously with its implementation of these provisions, using conventional notice-and-comment rulemaking procedures. … The resulting rules are therefore entitled to controlling weight unless they are procedurally flawed, substantively arbitrary and capricious, or plainly contradict the statute. … As such, the relevant DOJ rule interpreting the ADA’s anti-retaliation provision, 28 C.F.R. § 35.134, commands that same level of deference.”); Helen L., 46 F.3d at 332 (“[B]ecause Congress mandated that the ADA regulations be patterned after the section 504 coordination regulations, the former regulations have the force of law); Marcus v. Kansas Dep’t of Revenue, 170 F.3d 1305, 1306 n.1 (10th Cir. 1999) (same, quoting Helen L.); see also Messier v. Southbury Training Sch., 916 F. Supp. 133, 141 (D. Conn. 1996) (“Additionally, when Congress, in enacting a statute, explicitly approves of prior administrative interpretations of a law, Congress is treated as having adopted such interpretations. … Thus, Congress’s instruction to the Attorney General to promulgate regulations under the ADA consistent with those promulgated under Section 504 indicates congressional approval of the above-cited specific prohibitions.”)
Conclusion
For these reasons, I believe that the 1977 and 1978 HEW Regulations, the 1990 DOJ agency regulations, and the MGRAD have the force of law. As noted above, these regulations cover a great deal of the territory we need to enforce the ADA and Section 504. Later regulations — the original Title II and Title III regulations, the 2010 DOJ regulations, and unpublished regulations such as web accessibility, medical equipment, furniture and equipment, and the PROWAG — were all promulgated (or are in the process of being promulgated) pursuant to an express delegation and all are interpretations of Section 504 and the ADA that are consistent with previous regulations that were incorporated into the statute and that have been in effect since 1977. They should have similar status to those earlier regulations.
[1] Title IX of the Education Act of 1972, 20 U.S.C. § 1681(a) (“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance”).
[2] The fact that this definition does not mean what conservative courts think it means – that it does not extract them from the definitional conundrum in which they have placed themselves – must be left for a different post by a writer better versed in this area. Paging Kyle Velte.
[3] Hearings on Rehabilitation of the Handicapped Programs, 1976, before the Subcommittee on the Handicapped of the Senate Committee on Labor and Public Welfare, 94th Cong., 2d Sess., 1491, 1503-04 (1976) (hereinafter cited as “1976 Senate Hearings”.)
[4] 1976 Senate Hearings 323 (Rep. Dodd), 1502 (Sen. Williams), 1511 (Sen. Williams).
[5] Hearings on Review of Programs for the Handicapped 1976, before the Subcommittee on the Handicapped of the Senate Committee on Human Resources, 95th Cong., 1st Sess. 73 (1977).
[6] Id. at 76.
[7] Id. at 295-6.