Challenging Federal Government Impunity: The Case of Disability Law

Abstract

The scope of federal government exemption from ordinary liability and judicial scrutiny is, highly contested. That contest has never been more important than right now, as the Trump Administration pushes legal and oversight boundaries, asserting its prerogative to disregard not just prior practice but statutory and regulatory control. This article addresses one key arena for the ongoing clash–civil rights litigation.

Section 504 of the Rehabilitation Act of 1973 forbids disability discrimination in the operation of federally assisted and federally conducted programs and activities—that is, programs funded by and programs operated by the federal government. That prohibition reaches not just intentional discrimination but refusals to offer reasonable accommodations to “assure meaningful access” to programs. The federal government’s immunity from damages for Section 504 violations leaves injunctive relief as the only litigation remedy for violations. Yet the government frequently argues—and courts have sometimes agreed—that when a federal agency declines or fails to obey the Rehabilitation Act’s statutory command, discriminating against people with disabilities, the victims of that discrimination have no recourse at all.

This Article rebuts this conclusion. Correctly understood, the Rehabilitation Act offers more than the federal government’s unenforceable promise not to discriminate. Injunctive lawsuits enforcing Section 504 must be allowed against federal actors, because there exist both a cause of action and a waiver of sovereign immunity. The immunity waiver is accomplished by the Administrative Procedure Act (APA), 5 U.S.C. § 702. The cause of action arises under any (or all) of three theories: Section 504; the courts’ inherent equitable authority; or the Administrative Procedure Act are each independently plausible sources.

The issue is important for its own sake—disability antidiscrimination requirements help millions of people, and where the federal government has declined to follow the law, injunctive enforcement by federal courts is a key safeguard (not to mention that the possibility of court enforcement casts a helpful shadow, promoting statutory compliance). More broadly, while overreliance on courts as civil rights saviors would be ill-advised, potential checks on government overreach are important to bolster. This Article contributes to that vital project.

Keywords: civil rights, disability, implied private rights of action, Section 504, federal impunity

JEL Classification: K41