Rehabilitating Section 504


National Council on Disability


February 12, 2003

National Council on Disability 

1331 F Street, NW, Suite 850 

Washington, DC 20004 

Rehabilitating Section 504 

This report is also available in alternative formats and on NCD’s award-winning Web site at 

www.ncd.gov. 

Publication date: February 12, 2003 

202-272-2004 Voice 

202-272-2074 TTY 

202-272-2022 Fax 

The views contained in this report do not necessarily represent those of the Administration as this 

and all NCD reports are not subject to the A-19 Executive Branch review process. 
Letter of Transmittal 

February 12, 2003


The President


The White House


Washington, DC 20500


Dear Mr. President:


On behalf of the National Council on Disability (NCD), I am submitting a report entitled Rehabilitating


Section 504. This report is one of a series of independent analyses by NCD of federal enforcement of


civil rights laws.


The series grew out of NCD’s 1996 national policy summit, attended by more than 300 disability


community leaders from diverse backgrounds, who called upon NCD to work with federal agencies to


develop strategies for greater enforcement of existing disability civil rights laws. This report looks at the


Section 504 of the Rehabilitation Act of 1973 enforcement activities of five key federal agencies: the


Department of Education, the Department of Labor, the Department of Health and Human Services, the


Department of State, and the Department of Justice. NCD's findings reveal that while the Federal


Government has consistently asserted its strong support for the civil rights of people with disabilities, the


federal agencies charged with enforcement and policy development under Section 504 have, to varying


degrees, lacked any coherent and unifying national leadership, coordination, accountability, and funding. 


This report provides a blueprint for addressing the shortcomings that have hindered Section 504


compliance and enforcement until now. Among the various strategies and approaches to improve Section


504, NCD recommends that the Federal Government conduct periodic and thorough Section 504 self-


evaluations; improve data collection and dissemination of data about Section 504 enforcement efforts;


bolster Department of Justice resources and guidance to federal agencies on Section 504 enforcement;


and apply successful practices in Section 504 technical assistance and enforcement used by federal


agencies.


NCD stands ready to work with our sister agencies and other stakeholders inside and outside the


government to develop these strategies. We look to the next decade of enforcement with anticipation that


the promise of Section 504 can and will be realized.


Sincerely,


Lex Frieden


Chairperson

(The same letter of transmittal was sent to the President Pro Tempore of the U.S. Senate and the Speaker 

of the U.S. House of Representatives.) 

ii


National Council on Disability Members and Staff 

Members 

Lex Frieden, Chairperson


Patricia Pound, First Vice Chairperson


Glenn Anderson, Ph.D., Second Vice Chairperson


Milton Aponte


Robert R. Davila, Ph.D.


Barbara Gillcrist


Graham Hill


Joel I. Kahn


Young Woo Kang, Ph.D.


Kathleen Martinez


Carol Hughes Novak


Marco Rodriguez


David Wenzel


Linda Wetters


Kate Pew Wolters


Staff 

Ethel D. Briggs, Executive Director


Jeffrey T. Rosen, General Counsel and Director of Policy


Mark S. Quigley, Director of Communications


Allan W. Holland, Chief Financial Officer


Julie Carroll, Attorney Advisor


Joan M. Durocher, Attorney Advisor


Martin Gould, Ed.D., Senior Research Specialist


Gerrie Drake Hawkins, Ph.D., Program Specialist


Pamela O’Leary, Interpreter


Brenda Bratton, Executive Assistant


Stacey S. Brown, Staff Assistant


Carla Nelson, Office Automation Clerk


iv 

Acknowledgments 

This report is the product of a team effort and incorporates the work of several people. The 

preliminary research, interviews, and document acquisition were conducted through a contract 

with Ardinger Consultants & Associates, Inc. This initial work was undertaken in an attempt to 

create a comprehensive report regarding the implementation and enforcement of Section 504 

across a number of federal agencies. Because of the unevenness of some agencies’ data and 

record systems, however, it was necessary to scale back the scope of the work to produce a 

snapshot view instead. 

Bonnie Milstein, Michele Magar, and Sara Pratt handled the task of assisting the National 

Council on Disability (NCD) in refining the preliminary research results and findings to produce 

a draft report. 

Finally, NCD would like to thank the federal agency personnel who gave their time during the 

development of this report. Our appreciation is extended to the staff of the Department of Health 

and Human Services, the Department of Education, the Department of Labor, the Department of 

Justice, and the Department of State. These federal agency personnel answered many questions, 

gathered documents, and shared data with the research team. In addition, they reviewed 

preliminary drafts of the contents of this document for technical accuracy. 

vi 

Contents


Page 

Executive Summary ........................................................... 1 


Introduction ................................................................. 13


Chapter I—The Origins of Section 504: The Initial Promise of 


Disability Rights .................................................... 15


Chapter II—The Agencies’ Administration of Their Section 504 


Programs ......................................................... 25


Chapter III—Administrative Enforcement of Section 504 ............................. 65


Recommendations ............................................................ 93


Conclusions ................................................................. 99


Appendix—Mission of the National Council on Disability ........................... 101


viii


EXECUTIVE SUMMARY 

Our forefathers and mothers came to this country because we 

offered unique legal guarantees of equal opportunity. They got 

rich, and America got rich. Every time we expanded our civil rights 

to include another oppressed minority, America got richer. 

America is not rich in spite of civil rights. America is rich because 

of civil rights. 

Justin W. Dart, Jr. 

Section 504 of the 1973 Rehabilitation Act is acknowledged as the first national civil rights law 

to view the exclusion and segregation of people with disabilities as discrimination and to declare 

that the Federal Government would take a central role in reversing and eliminating this 

discrimination. Section 504, which prohibits federal agencies and federally funded programs 

from discriminating on the basis of disability, was designed to promote and expand opportunities 

for persons with a broad range of disabilities and offer broad-based protection from unwarranted 

discrimination stemming from prejudice, social stigmas, and negative assumptions about their 

ability to fully participate in the mainstream of society. 

Although there is some mystery as to how the language of Section 504 became part of what was 

clearly intended to be a funding bill, Section 504 would soon become the most important and 

embattled provision in the entire Rehabilitation Act. Once the legislation was passed, the pivotal 

question became whether Section 504 would be enforced with strong administrative rules. It took 

nearly four years with months of demonstrations and intense lobbying efforts before a relatively 

tough set of government-wide coordinating regulations was published by the U.S. Department of 

Health, Education and Welfare (HEW) on April 28, 1977. Effective government-wide 

enforcement efforts were further delayed when, in 1980, President Jimmy Carter issued 

Executive Order 12250, which transferred lead agency authority to the Department of Justice 

(DOJ). DOJ reissued government-wide enforcement regulations on August 11, 1981, without 

changing the original HEW regulations. Because the issuing of the government-wide regulations 

was exceedingly slow, many federal agencies consequently delayed issuing their own 

1 
regulations, and, in some cases, legal action was required to compel their issuance of Section 504 

regulations. 

The supposed remedy for segregated public services and programs and the instrument for 

enforcing nondiscrimination, the Rehabilitation Act and its contemporaneously enacted 

regulations, unfortunately, were virtually dead on arrival. Because of the lack of sufficient 

resources, leadership, implementation, and enforcement of Section 504 and the trend of the 

courts to narrow the protections and scope of disability civil rights, as well as misportrayals by 

the media about the supposed overreaching of these laws, what once was the centerpiece of 

independence for persons with disabilities has become an afterthought. 

This report is one of a series of independent analyses by the National Council on Disability 

(NCD) of federal enforcement of civil rights. It specifically focuses on the work that the 

Departments of Labor, Education, State, and Health and Human Services have done to ensure 

that recipients of their funding follow Section 504. For the Departments of Education, Health and 

Human Services, and Labor, the report analyzes the commitments that these agencies made in 

their recent report to the President on their activities in response to the Supreme Court’s decision 

in Olmstead, in the context of their Section 504 enforcement histories. In addition, it reviews the 

role that DOJ has played through its Section 504 coordination responsibilities and the impact that 

this coordination work has had on the agencies’ planning and management activities. Though 

NCD set out to create a comprehensive assessment of the Section 504 activities of the federal 

agencies covered in this report, the drastic unevenness of their Section 504 programs and data 

and record systems required NCD to scale back the scope of the work to produce a snapshot view 

instead. 

Why Section 504 Still Matters 

NCD’s evaluation of the effectiveness of Section 504 enforcement comes at an apt time. Many 

persons with disabilities and their advocates have become concerned that federal agencies, in 

2 
shifting their primary focus to recent laws such as the Americans with Disabilities Act (ADA), 

have left Section 504 behind. Indeed, NCD has heard a number of federal civil rights staff justify 

the lapse of Section 504 implementation on the basis that their ADA enforcement programs 

obviate such need. 

Why should interested parties care about Section 504 enforcement now that the ADA exists? 

There are several reasons why the Federal Government should vigorously enforce Section 504 in 

conjunction with the ADA: 

Section 504 covers a number of entities and federally funded activities not


reached by the ADA. 


Section 504 is intended to make certain that tax dollars will not be used to


establish, promote, or reinforce discrimination against people with disabilities. 


DOJ is selective about the disability rights cases it pursues, often prosecuting only


the most egregious cases or those that are likely to have a significant impact in a


particular area. Thus, it is necessary to ensure that other federal agencies’ Section


504 enforcement programs serve as an available and muscular tool in combating


disability discrimination. 


Government enforcement of Section 504 is particularly important in light of


recent Supreme Court decisions that limit the scope of private civil rights


enforcement. In Board of Trustees of the University of Alabama v. Garrett, the


Supreme Court found that the ADA does not permit individuals to recover money


damages when a state violates Title I of the ADA. 


Thus, people with disabilities continue to look to, and must rely upon, effective enforcement of 

Section 504 to be able to access important federal programs and services that are crucial to their 

independence and success. 

Where Do We Stand? 

3 
There is little disagreement that persons with disabilities are far better off now than they were at 

the time Section 504 was originated. As this study of the five federal agencies demonstrates, 

from time to time real progress is achieved and laudable efforts are being made on behalf of 

persons with disabilities. In spite of these efforts, however, the anticipated results have not been 

brought about. NCD finds that several decades after the publication of the regulations, the five 

agencies present a very mixed record of Section 504 enforcement. Several general themes 

emerge from NCD’s research findings: 

Agencies have not maintained consistency in their Section 504 programs’


operational leadership and have given a low priority to the enforcement of Section


504, and there are significant differences in their enforcement efforts.


One of the weakest points in terms of Section 504 enforcement lies in the fact that


none of the agencies examined for this report have initiated funding terminations


to enforce Section 504 against grantees that violate the law. Congress provided


this remedy to give federal agencies the leverage they needed to force recalcitrant


grantees to stop using tax dollars in discriminatory ways and to otherwise


encourage voluntary compliance with the law. It is likely that the Federal


Government would be much further along the road to eliminating discrimination


based on disability had it used the full arsenal and range of remedies provided by


Congress. 


Agencies have given low priority to collecting and analyzing Section 504 program


data, and there are major differences in their data efforts. None of the agencies


have developed information systems that comprehensively collect, aggregate, or


summarize detailed information about complaints or compliance reviews and their


outcomes. This information is important both to the public and to consumers and


recipients. 


Agencies have not received and have not been able to devote sufficient funding


and resources to their Section 504 programs.


4 
All five agencies, with the exception of the Department of State, have invested 

significant resources in providing written and verbal technical assistance to their 

grant recipients. 

With respect to these general themes, the following information reflects some of the findings for 

each of the federal agencies reviewed for this report. 

Department of Health and Human Services 

On the basis of the data that the Department of Health and Human Services (HHS) provided to 

NCD, there appears to be a strong correlation between appropriations and complaint numbers. 

When funding and staff levels for HHS dipped in the mid-1990s, so did the level of their 

complaint and compliance work. Conversely, in later years, when HHS appropriations increased 

for civil rights enforcement, staffing numbers increased and so did the amount of work 

performed. However, the number of complaints and compliance reviews processed did not 

increase in exact proportion to staffing levels. 

The HHS Office for Civil Rights has a wide array of technical assistance materials available 

online. The HHS Web site contains references to a large number of technical assistance 

materials, including complaint filing information, fact sheets, regulations, and case summaries, 

and the information is easily accessed from the HHS home page through a drop-down search 

menu that includes “civil rights” and “disabilities.” 

Department of Education 

The Department of Education (ED) is another large enforcement agency that provided sufficient 

data on which to base conclusions, showing a similar but not as strong a correlation between 

appropriations and complaint numbers. 

5 
ED has a civil rights enforcement budget that is more than two and a half times that of HHS and 

staff levels that are three and a half times the staff level of HHS. ED also receives about twice the 

number of complaints that HHS receives. ED’s proportionately greater resources for enforcement 

explain in part its prompt enforcement timeframes and its ability to broaden its enforcement 

strategies. 

ED has demonstrated noteworthy and successful efforts to shorten the time it takes to conduct 

investigations. Quicker investigations and resolutions result in increased confidence in the 

investigation process, both by potential complainants and by recipients of funding. 

Department of Labor 

The Department of Labor (DOL) has essentially seen no increase in funding and no increase in 

enforcement activity. The number of staff at DOL devoted to enforcement has dropped from 61 

to a projected 48, a decrease of 21 percent. DOL’s complaint filings have also dropped and show 

no evidence of a rebound. 

DOL’s list of reasonable accommodation technical information, provided by its Office of 

Disability Employment Policy (ODEP), deserves special mention for its usefulness, as does the 

agency’s Job Accommodation Network. 

Department of State 

The Department of State has never had a Section 504 federally assisted program. It has not 

allocated any resources to determine whether the recipients of its grant funds comply with any of 

the civil rights laws. 

Department of Justice 

6 
DOJ reorganized its enforcement of disability rights in 1995 by moving most of its Section 504 

enforcement program to the agency’s Disability Rights Section (DRS). The benefit of this 

reorganization was that DRS could enforce both Title II of the ADA and Section 504 against 

noncomplying state and local government agencies. However, the reorganization did not result in 

DRS’s using the fund termination provisions of Section 504 with the agency’s own grant 

recipients (primarily court administration, criminal justice, and corrections programs). Instead, 

DOJ left those programs within the purview of its own Office for Civil Rights (OCR), which has 

no effective Section 504 program. 

DOJ has government-wide disability rights coordination and review responsibilities that it has 

not effectively fulfilled. It has not provided critical and effective leadership through the 

Interagency Disability Coordinating Council (IDCC), which has never met. While DOJ has 

published investigation and block grant review guidance and has worked with agencies on 

individual policies and cases, it has not provided or required the kind of guidance that would 

have generated government-wide civil rights enforcement data. 

Recommendations 

1. Conduct periodic and thorough Section 504 self-evaluations. 

The agencies that are the subject of this report should routinely reevaluate programs using selfevaluation(s) that identify challenges to full participation by people with disabilities in their 

programs, policies, regulations, and practices. Moreover, all the agencies should assess 

legislation they propose, policies they intend to publish, and regulations they draft to ensure that 

each affirmatively furthers the goals of Section 504. 

2. Improve data collection and dissemination of data about Section 504 enforcement 

activities. 

7 
People with disabilities want to easily read data about agency 504 compliance. Such data include 

complaint filings and compliance reviews initiated, specific Section 504 issues and trends in 

complaint and compliance reviews, and outcomes and enforcement actions. Routinely reporting 

504 activities on agency Web sites would publicize Section 504 and ADA accomplishments. 

DOJ should support and assist agencies in developing and implementing more effective data 

collection systems. 

3. Use funding sanctions to enforce Section 504. 

Congress included an effective remedy to address discrimination on the basis of disability by 

recipients of federal funds. Thus far, the agencies studied in this report have not used funding 

sanctions to bring recipients into compliance with Section 504, although notice of the possibility 

of sanctions is generally given as part of agency enforcement processes. To combat disability 

discrimination in the most effective way possible, federal agencies should use their sanctioning 

authority, including making recipients ineligible to apply for continued or new funding while 

they are not in compliance with federal civil rights laws. This strategy could effectively be 

incorporated into Notices of Funding Availability and program eligibility requirements, so that 

no recipient or potential recipient can be funded while a preliminary or final finding of 

noncompliance was pending. This strategy should become an integral part of agency Section 504 

enforcement efforts. Agencies should also develop and apply a range of sanctions to help bring 

recipients of federal funds into compliance with Section 504. Additionally, agencies should 

publicize their efforts to maximize deterrence of violations of the rights of people with 

disabilities. 

4. Direct agency civil rights enforcement by the assistant secretary. 

HHS and DOL should review the impact of ED’s decision to have an assistant secretary lead its 

OCR as a way of improving the visibility and enforcement of Section 504 within each agency’s 

funding programs. 

8 
5. Increase funding for Section 504 enforcement. 

This administration should continue to improve its efforts to increase funding for civil rights 

enforcement. Presidential budget requests and congressional appropriations for federal agency 

civil rights enforcement should be adequate to staff those agencies to conduct effective civil 

rights enforcement and compliance. Adequate staffing is the most critical factor in providing 

prompt and effective enforcement of Section 504. When appropriations—and staffing—drop, the 

number of complaints investigated drop. 

None of the three agencies has provided sufficient staff, resources, or stature within their 

departments, or coordination with other civil rights offices, for effective Section 504 programs. 

6. Improve leadership and guidance to agencies on Section 504 enforcement. 

The IDCC was created to provide critically needed leadership of disability rights enforcement 

throughout the Federal Government, but it has ceased to function. DOJ should revive the IDCC. 

DOJ should provide substantive guidance to agencies to help them enforce Section 504, 

including basic training and technical assistance, updates on key court decisions, guidance on 

investigation and resolution of Section 504 complaints, and information to help agencies conduct 

effective Section 504 compliance reviews. DOJ should create guidance specific to Section 504 

enforcement that builds on the agency’s manuals on enforcement of Title VI and Title IX. DOJ 

should use its authority under Executive Order 12550 to review and comment on agency Annual 

Implementation Reports, assess progress in agency activities, and make recommendations for 

improvements. DOJ should also create and make publicly available summaries of the 

information reported by federal agencies in their Annual Implementation Reports, as well as 

highlights of the Federal Government’s enforcement of Section 504 compiled from other agency 

reports. 

9 
7. Apply successful practices in Section 504 technical assistance and enforcement used by 

federal agencies. 

During the course of its study, NCD encountered a number of successful practices that should be 

reviewed by other federal agencies. For instance, the HHS Web site is exemplary and should be 

emulated in how it provides relevant Section 504 information in a user-friendly format. The HHS 

online material is rich in detail and includes helpful case studies and links to other relevant Web 

sites. Agencies should also review and consider including in their Web sites information similar 

to that provided by ED’s technical assistance guidance to recipients and DOL’s list of reasonable 

accommodation information resources. In addition, ED has successfully expanded its Section 

504 program resources and effectiveness in a number of innovative ways. For example, it has 

encouraged parents and students to monitor recipients’ implementation of compliance 

agreements and asked them to suggest changes to compliance agreements that have made them 

produce better results for students with disabilities. It has also established an intranet service that 

makes available policies, decisions, law review articles, regulations, handbooks, manuals, and 

letters for civil rights staff from different offices to facilitate their communication with each other 

for the purpose of expanding and improving the approaches they adopt to address common and 

novel discrimination issues. This type of flexibility and creativity has the potential to improve 

each federal agency’s Section 504 enforcement program. 

Conclusion 

NCD’s report describes the successes, the weaknesses, and the failures of five agencies’ Section 

504 enforcement programs over the past three decades. Our research highlights some efficient 

practices in the agencies’ implementation and enforcement of Section 504 that should be 

carefully studied and more widely adopted to remedy the unevenness across the Federal 

Government in Section 504 programs. While it is beyond doubt that Section 504 matters, it is 

troubling that federal agencies have shown a lack of clear commitment to ensure that Section 504 

can be vigorously integrated into federal agencies’ newest mode of operations as evidenced by 

10 
their recent stated commitments to Olmstead and the New Freedom Initiative. NCD’s report 

contains recommendations that should be implemented in a timely manner by these agencies, 

DOJ, and Congress in order to ensure the effective, meaningful, and uniform enforcement of 

Section 504, which has benefited least from the national commitment to its civil rights laws. 

Implementation of these recommendations will help to correct this historic oversight. 

11 

INTRODUCTION 

As a remedy for segregated public services, the Rehabilitation Act 

and its contemporaneously enacted regulation have been 

practically a dead letter. 

Timothy M. Cook, The Americans with Disabilities Act: The Move To 

Integration, 64 Temple Law Review 393, at 394 (1991) 

In 1973, Americans with disabilities tied their hopes for equal access to government programs to 

the passage of a little-noticed provision in the Rehabilitation Act that barred discrimination on 

the basis of disability by recipients of federal funds. It took a nationwide sit-in at U.S. 

Department of Health, Education and Welfare (HEW) buildings by people with disabilities in 

1977, including a month-long occupation in San Francisco, to persuade the Federal Government 

to issue regulations implementing Section 504 of the Rehabilitation Act. Since then, every 

executive agency has implemented its mandate to bar discrimination against people with 

disabilities by issuing regulations that describe what constitutes discrimination based on 

disability and that set mandates for grantees. However, there have been wide discrepancies in 

what the agencies have done to enforce their regulations and to ensure compliance with the law. 

The National Council on Disability (NCD) has issued this report to provide a snapshot view of 

how five federal agencies have implemented America’s promise to rid society of discrimination 

against people with disabilities. It examines the initial hopes of disability rights advocates who 

worked to secure the implementation of Section 504, and how these federal agencies defined and 

developed their nondiscrimination mandate. 

This report focuses specifically on the work that the Departments of Labor, Education, State, and 

Health and Human Services have done to ensure that recipients of their funding follow Section 

504. For the Departments of Education, Health and Human Services, and Labor, the report 

analyzes the commitments that these agencies made in their recent report to the President on their 

13 
activities in response to the Supreme Court’s decision in Olmstead, in the context of their Section 

504 enforcement histories. In addition, it reviews the role that the Department of Justice (DOJ) 

has played through its Section 504 coordination responsibilities, and the impact that this 

coordination work has had on the agencies’ planning and management activities. 

In preparation for this report, NCD requested Section 504-specific data from the subject agencies 

about complaints and compliance reviews. Among the data requested were the numbers of 

complaints filed and compliance reviews initiated, the outcomes of these enforcement-related 

activities, details of settlements, and other information about agency enforcement activities, 

including staffing and budget figures. When this information was not provided by the agencies, 

publicly available sources such as budget submissions, annual reports to Congress, and agency 

Web sites were consulted. Additional information was culled from each subject agency’s 

response to the Government Performance and Results Act. 

The subject agencies were then given the opportunity to review and respond to preliminary drafts 

of this document for technical accuracy and engage in an ongoing dialogue with NCD about the 

findings and recommendations. Their responses were incorporated. 

The report concludes by comparing each agency’s performance in the areas of complaint 

investigation and resolution, conduct of compliance reviews, agency information on enforcement 

and compliance issues, and agency resources for enforcement and compliance. 

Finally, it recommends ways that agencies might better meet the original goals and expectations 

of the legislation and those whom the legislation was passed to protect. 

14 
CHAPTER I


THE ORIGINS OF SECTION 504:


THE INITIAL PROMISE OF DISABILITY RIGHTS


One of the nation’s first laws barring discrimination based on disability was enacted without 

fanfare and with little notice. No hearings were held, no debate took place on the floor of either 

house of Congress, and the name of the provision’s author has long been forgotten.1 

The Rehabilitation Act of 1973 was a spending bill that authorized $1.55 billion in aid to people 

with disabilities. Section 504 of the Act simply made it illegal for recipients of federal funds to 

discriminate on the basis of disability. It was modeled on the language of Title VI of the Civil 

Rights Act of 1964,2

 which barred recipients of federal funds from discriminating on the basis of 

race, color, or national origin.3

 Section 504 states: 

No otherwise qualified individual with a disability in the United States...shall, solely by 

reason of...disability, be excluded from the participation in, be denied the benefits of, or 

be subjected to discrimination under any program or activity receiving federal financial 

assistance or under any program or activity conducted by any Executive agency or by the 

United States Postal Service. 29 U.S.C. 794. 

To appreciate the significance of Section 504, it is useful to consider the genesis of Title VI. 

More than a century after the adoption of the Fourteenth Amendment, racial and ethnic 

minorities remained largely excluded, segregated, and stigmatized. Congress therefore adopted a 

radically different approach to civil rights in 1964. It enacted laws that tied civil rights 

enforcement to the expenditure of federal funds. From 1964 onward, it has been a federal civil 

1

 Shapiro, Joseph P., No Pity: People with Disabilities Forging a New Civil Rights Movement, Random House, Times Books, 

New York, 1993, at p. 65. 

2 Pub. L. No. 88-352, 78 Stat. 241 (codified as amended in scattered sections of 42 U.S.C.). 

3 42 U.S.C. Section 2000d states that “No person in the United States shall, on the ground of race, color, or national origin, be 

excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving 

federal financial assistance.” 

15 
rights violation to use federal funds in ways that exclude, deny benefits to, or discriminate 

against anyone on the basis of their race, color, or national origin. 

The second major change in civil rights enforcement initiated by Title VI was that, unlike 

constitutional violations, the 1964 Civil Rights Act prohibited unintentional acts of 

discrimination as well as intentional acts. Thus, a hospital conglomerate that adopted a racially 

neutral physician staff privilege policy that resulted in racially segregated hospitals might be in 

violation of the 1964 Act.4

 Similarly, employment agencies that used racially neutral screening 

standards for job applicants that resulted in disproportionately lower job referrals to racial 

minorities than to white applicants could be subject to enforcement actions. 

In other words, recipients of federal funds may not use practices and policies that have a 

disproportionate, adverse impact on the classes of people protected by the federal civil rights 

laws. If they do use such practices and policies, courts have required recipients to show that they 

were pursuing a valid business objective and that there are no alternative methods of fulfilling the 

objective that have a less discriminatory impact.5 

Congress used this approach to civil rights enforcement to protect people with disabilities in 

1973 when it amended the Rehabilitation Act to include Section 504. That section adopted the 

language of the 1964 Civil Rights Act and prohibited the use of federal funds to exclude, deny 

benefits to, or discriminate against any otherwise qualified handicapped individual in the United 

States.6 The U.S. Supreme Court later confirmed that Section 504, like the 1964 Civil Rights Act, 

prohibited unintentional as well as intentional discrimination.7 

4

 The hospital conglomerate would be in violation of Title VI unless it could show that its staff privileges policy was needed to 

fulfill its hospitals’ mission and that there was no less discriminatory way of meeting that goal. See footnote 5. 

5 Elston v. Talladega County Bd. of Educ., 997 F.2d 1394 (11th Circuit, 1993). 

6 29 U.S.C. 794. 

7

Alexander v. Choate, 469 U.S. 287 (Supreme Court, 1985) at 297. 

16 
To implement Section 504, Congress authorized HEW to issue regulations. Yet four years after 

its passage, Section 504 remained little more than an intriguing piece of legislation. Concerned 

about potential costs, the Federal Government had failed to issue regulations implementing the 

law. 

On April 3, 1977, demonstrators with disabilities held a candlelight vigil at the home of HEW 

Secretary Joseph Califano to demand that he issue the draft regulations without gutting them. 

Forty-eight hours later, demonstrators took over Califano’s office in the nation’s capital and held 

protests at eight HEW regional offices. The HEW secretary reacted by cutting off telephone 

access and refusing to allow food distribution to demonstrators, effectively forcing them to 

abandon their efforts after 28 hours. 

Califano had no such success in San Francisco, where advocates had also occupied the HEW 

office. After enduring six days without access to telephones, attendants, or food, demonstrators 

won the support of Representative Phillip Burton, who ordered guards to allow food to reach 

demonstrators and to install three pay phones for use by protestors. A week later, San Francisco 

Mayor George Moscone defied federal officials by delivering 20 air mattresses and shower hose 

sprays to the occupied offices. The Black Panthers prepared food donated by local supermarkets, 

and community support continued to grow. 

After 12 days had passed with demonstrators showing no inclination to leave, Burton and 

Representative George Miller held a congressional hearing in the building. There, protesters 

learned that Califano was weighing changes to the original unpublished draft regulations that 

would result in “separate but equal” accommodations for people with disabilities.8

 The news 

served only to strengthen the resolve of demonstrators. 

On April 28, 1977, after disability rights advocates had occupied the San Francisco office of 

HEW for nearly a month, Califano signed the Section 504 regulations without weakening the 

8

 Shapiro, Joseph P., No Pity: People with Disabilities Forging a New Civil Rights Movement, supra at 68. 

17 
provisions. In addition to issuing regulations for recipients of HEW funds, Califano also issued 

model regulations for all other executive agencies to use to draft regulations that would apply to 

their own programs. Today, every executive agency has its own set of 504 regulations and must 

ensure that its grantees comply with Section 504. 

A. Self-Evaluations 

The framers of the Section 504 regulations required that each recipient of federal financial 

assistance conduct a self-evaluation,9 with the assistance of individuals with disabilities, to 

identify and correct practices and policies inconsistent with the goals of Section 504. The notion 

of requiring self-evaluations grew from testimony offered at 20 public hearings throughout the 

country that HEW conducted before issuing its regulations. One of the persistent themes of those 

who testified was that public and private providers made assumptions about the role of disability; 

the medical nature of all disability-related activities, benefits, and services; and what people with 

disabilities needed and wanted and what was good for them. 

In addition to the aim of identifying and correcting discrimination, self-evaluations were also 

adopted to change the attitudes that underlay these assumptions. HEW adopted the 

recommendation of witnesses who asked that providers be required to review all of their policies 

and practices through the eyes of people with disabilities. Their hope was that such an assisted 

9

 All federal agencies and all states, cities, and others who receive federal funds are also required to conduct self-evaluations, as a 

result of Congress’s expansion of Section 504 in 1978. The 1984 Justice Department regulations (which succeeded the original 

HEW regulations) that apply to federal agencies read as follows: 

Sec. 39.110 Self-evaluation 

(a) The agency shall, by October 11, 1985, evaluate its current policies and practices, and the effects thereof, 

that do not or may not meet the requirements of this part, and, to the extent modification of any such policies and 

practices is required, the agency shall proceed to make the necessary modifications. 

(b) The agency shall provide an opportunity to interested persons, including handicapped persons or 

organizations representing handicapped persons, to participate in the self-evaluation process by submitting comments 

(both oral and written). 

(c) The agency shall, until October 11, 1987, maintain on file and make available for public inspection: 

(1) A description of areas examined and any problems identified, and 

(2) A description of any modifications made. 

28 CFR 39.110. [emphasis added] 

18 
self-evaluation might give the public and private providers an understanding that if buses had 

lifts, passengers with mobility impairments could travel to work, to school, to nightclubs. Service 

providers had difficulty envisioning how people with disabilities could live independently, ride 

buses, and contribute to society. In fact, the term “wheelchair-bound” continues to be used today, 

even by those who no longer believe the quality of a wheelchair user’s life is so diminished that it 

can be aptly described by her seat. 

B. Scope of Program Access 

One of the central themes of the Federal Government’s Section 504 regulations is that recipients 

of federal funds must ensure that their programs, as a whole, both meet the needs of their 

beneficiaries with disabilities and do not discriminate against them. The regulations require that 

program benefits and services be delivered in the most integrated setting appropriate to the needs 

of qualified individuals with disabilities. As time has shown, understanding what “program as a 

whole” means, in 504 and ADA terms, has been difficult for federal fund recipients. Several 

years ago, a related version of this concept became the focus of a U.S. Supreme Court decision. 

In the late 1970s, HEW’s Office for Civil Rights (OCR) demanded that every college and 

university sign an Assurance of Compliance with the federal civil rights laws. Grove City 

College refused, saying that it did not receive any federal funds. In Grove City College v. Bell,

10 

the Supreme Court ruled that because the college accepted federally funded student scholarships, 

it had to comply with civil rights laws. However, the Court limited that obligation by holding that 

only the business office, which was the part of the college that actually received the scholarship 

funds, had to meet the civil rights obligations at issue. None of the other parts of the college had 

to ensure that their courses, dormitories, health services, or any of their programs were provided 

10 Grove City College v. Bell, 465 U. S. 555 (Supreme Court, 1984). 

19 
without discrimination on the basis of race, color, national origin, religion, age, disability, or 

gender.11 

Congress rejected the Supreme Court’s interpretation by enacting the Civil Rights Restoration 

Act of 1987.12 The Act imposed federal civil rights responsibilities on every part of an agency if 

any of its parts received federal funding. For Grove City College, that meant that the college’s 

acceptance of federally funded student scholarships triggered civil rights obligations in every 

program, practice, and policy it conducted or adopted. 

The program-wide requirement of Section 504 provides substantial flexibility to schools and 

other federal fund recipients. If a college has three antiquated but similar dormitories, the college 

is not required to make all three buildings accessible. As long as its dormitory program meets the 

needs of all of its students with mobility impairments and simultaneously provides its other 

programs in the most integrated setting, the college may make only one or two of its dorms 

structurally accessible, rather than all three. 

Viewing the situation from a broader perspective, colleges will find many practices, policies, and 

buildings that inhibit their ability to deliver their education program in the most integrated setting 

that is appropriate. What the Section 504 regulations permit colleges to do is to identify and 

correct the barriers that are likely to bring the program as a whole into compliance with the law, 

without correcting every barrier. 

It is important to note, however, that the “program-wide” requirement applies both to 

architectural access and to programmatic access. A recipient of federal funds may not, for 

example, justify one inaccessible program by increasing the accessibility of another program. 

More concretely, a federally funded employer may not refuse to hire otherwise qualified people 

11 Gender was added to the civil rights laws that applied to education through Title IX of the General Education Provisions Act of 

1973 and to employment practices through Title VII of the 1964 Civil Rights Act. 

12 The Civil Rights Restoration Act is codified at 20 U.S.C. § 1687, 29 U.S.C. § 794, 42 U.S.C. § 2000d-4a, and 42 U.S.C. § 

6101. 

20 
with visual impairments simply because he provides marketing materials to potential clients in 

Braille. 

C. Why Section 504 Still Matters 

Why should interested parties care about Section 504 enforcement now that the Americans with 

Disabilities Act (ADA) exists? There are several reasons why the Federal Government should 

continue to enforce Section 504, in spite of the apparently broader coverage of the ADA. 

First, and most important, Section 504 is based on the premise that tax dollars will not be used to 

establish, promote, or reinforce discrimination against people with disabilities. Entities that 

violate Section 504 risk termination of their federal monies by the agency that issued the funds. 

In contrast, the ADA has no funding termination remedy. Moreover, DOJ is the only agency that 

has independent litigating authority to enforce Title II of the ADA, including alternative means of

dispute resolution. It does not have the authority to limit the timing or the amount of federal financial 

assistance, or to condition such funds on compliance with Section 504. Only the federal grant 

agencies have this authority. 

Conditioning receipt of federal funds is important for another reason: It requires grant program 

staff to develop ongoing relationships with grantees. Agency staff are best positioned to learn 

how their agency’s funds are used, especially because of the recent trend by state and local 

governments to adopt annual and multiyear plans that explain how they intend to use the federal 

funds they expect to receive. 

Because of this knowledge, the funding agencies have the authority and the ability to influence 

their recipients’ choices of how to spend their federal dollars. Recipient cities, for example, have 

used their federal funds to create separate recreation activities or swimming classes, for example, 

for children with disabilities; to deny participation in employment programs to applicants who 

take medications for psychiatric disabilities; and to place public benefit programs in inaccessible 

buildings. Each of these decisions is likely to be or to lead to a violation of both Section 504 and 

21 
the ADA. However, only the funding agency can withhold the amount of funding that is 

equivalent to the amount that would support the illegal activity. It can do much more, of course, 

but often the threat of temporarily withholding even a portion of the funds is enough to persuade 

the city to rethink its plans. 

Second, agency staff have ongoing communications with recipients. Rarely do recipients contact 

an OCR for information or technical assistance. They direct their questions to the program 

funding staff, with whom they have relatively frequent conversations. To maximize enforcement, 

civil rights policies, practices, and goals must be incorporated into the programs that receive 

federal funds. That is much more likely to happen if both the funding and recipient staff 

understand the civil rights laws and how to identify when federal funds are being used to 

discriminate. If the funding agencies do not enforce Section 504, there is little or no opportunity 

for this type of education to occur. 

Third, DOJ will never have sufficient resources to litigate each of these types of 504/ADA 

violations, and for those it does pursue, it must pursue them through time- and resourceconsuming litigation. As a result, DOJ is selective about cases it pursues, often prosecuting only 

the most egregious cases or those that are likely to have a significant impact in a particular area. 

Less precedent-setting but equally meritorious enforcement of Section 504 violations is done 

only by federal funding agencies. 

Fourth, Section 504 covers a number of entities that are not reached by the ADA. For example, 

the ADA covers only housing that is funded or operated by state and local governments. In 

contrast, Section 504 covers housing that is built or operated by other types of entities that 

receive federal funds, such as housing run by nonprofits. 

Finally, government enforcement of Section 504 is particularly important in light of recent U.S. 

Supreme Court decisions that limit the scope of private civil rights enforcement. In Alexander v. 

22 
Sandoval,13 the Supreme Court held that only the Federal Government, not private individuals, 

could use Title VI of the 1964 Civil Rights Act to challenge discrimination on the basis of 

disparate impact. However, it would be illogical to read the constraint articulated in Sandoval to 

apply to Section 504. Section 504 clearly does not prohibit only intentional discrimination, since 

much of the conduct that Congress sought to alter in passing the Rehabilitation Act would be 

difficult if not impossible to reach were the Act construed to proscribe only conduct fueled by a 

discriminatory intent. Despite superficial associations of Section 504 and ADA Title II with some 

aspects of Title VI, Section 504 and Title II of ADA differ in important respects that make the 

reasoning and analysis of the majority in Sandoval inapplicable.14 The ability to challenge 

disparate impact discrimination is critical to addressing bias against people with disabilities, 

particularly when intentional discrimination is difficult to prove. 

In Board of Trustees of the University of Alabama v. Garrett,15 the Supreme Court found that the 

ADA does not permit individuals to recover money damages when a state violates Title I of the 

Act. However, the Federal Government may still recover such damages against states. As the 

Supreme Court continues to limit the ability of individuals to use the nation’s civil rights laws, 

the Federal Government’s enforcement of Section 504 is more important today than ever before. 

D. Conditioning Federal Funds 

Though all federal agencies have developed procedures by which federal funds may be 

terminated for failure to comply with Section 504, few have actually pursued termination as a 

13 532 U.S. 275 (Apr. 24, 2001). 

14 National Council on Disability (August 17, 2001), The Sandoval Ruling, available at 

http://www.ncd.gov/newsroom/publications/sandoval.html. 

15 531 U.S. 356 (Feb. 21, 2001). 

23 
remedy. One reason may be that Congress attached an onerous process that federal agencies must 

follow to terminate funds.16 

Although the law creates a burdensome process for fund termination, it remains perhaps the 

single most effective way to remedy discrimination. If it were used to address the most egregious 

cases of discrimination, it would create a powerful deterrent that would likely improve voluntary 

compliance with Section 504 by other federal grantees. By including it in the statute, lawmakers 

envisioned that less powerful remedies would not always prove sufficient to root out 

discrimination on the basis of disability. But the use of this remedy requires leadership and 

political will. For now, funding termination remains a powerful tool that has yet to be tapped by 

the agencies that are studied in this report. Just as clearly, federal agencies need to develop a 

range of effective sanctions that can also be used when necessary. 

E. Meeting the Promise 

Of course, whether Section 504 achieves its purpose of eliminating disability discrimination by 

recipients of federal funds depends in large part on how well federal agencies enforce the law. 

The next chapters of this report examine the Section 504 enforcement records of five federal 

agencies, and the final chapter recommends ways that each agency can move closer to fulfilling 

the promise of this groundbreaking statute. 

16 All of the agencies’ Section 504 regulations adopted the Title VI administrative procedures. See, for example, the Department 

of Education’s Title VI Regulation at 34 CFR Sections 100.6-100.10 and 104.61. In addition to a full due process hearing and the 

secretary’s approval of the termination decision, the secretary is required to file “with the committees of the House and Senate 

having legislative jurisdiction over the program or activity involved a full written report of the circumstances and the grounds for 

such action” 34 CFR 100.9(c). This requirement does not appear in the Department of Labor’s Section 504 regulations. 29 CFR 

Section 32.46(c). 

24 
CHAPTER II


THE AGENCIES’ ADMINISTRATION OF


THEIR SECTION 504 PROGRAMS


A. Introduction 

1. The Federal Financial Assistance Strategy17 

The proponents of Section 504 embraced the federal financial assistance strategy of Title VI of 

the 1964 Civil Rights Act. They knew that disability discrimination was so ingrained in the 

country’s consciousness and so thoroughly cloaked in the mantle of beneficent charity that only a 

dramatic approach to enforcement was likely to work. The 1964 Civil Rights Act provided the 

model: to condition all federal grant dollars on compliance with the nondiscrimination mandate. 

Section 504 simply substituted the words “solely on the basis of handicap” to describe the type of 

discrimination barred in place of the words “race, religion, color and national origin” contained 

in Title VI. 

The reasons that the Civil Rights Act supporters chose to condition federal grant funds were 

equally valid for eradicating disability discrimination. The reasons were as follows: 

1. Codify the illegality of funding “separate but equal” programs and invalidate the 

federal statutes that permitted the funding of such programs;18 

2. Reassure reluctant federal agencies that they did have the authority to prohibit 

discrimination in their assistance programs; 

17 To reiterate, a review and evaluation of the agencies’ federally conducted activities was beyond the scope of this snapshot 

report on Section 504 activities. 

18 U.S. Commission on Civil Rights, federal Title VI Enforcement to Ensure Nondiscrimination in Federally Assisted Programs, 

June 1996, p. 24. The Section 504 regulations do permit a few congressionally authorized and funded separate programs, such as 

Gallaudet University, which primarily serves deaf and hard of hearing students, and Housing Opportunities for Persons with 

AIDS. 

25 
3. Eliminate repeated debates about prohibiting discrimination in every bill that extended 

federal assistance; 

4. Establish an “effective alternative to litigation” and to its “arduous route”;19 

5. Prevent discriminatory uses of federal assistance from “defeating the program’s 

congressionally imposed objective”;20 and 

6. Halt the rampant discrimination in the states’ implementation of federal programs. 

The federal agencies reviewed for this report varied widely in their efforts to address the goals of 

Section 504 during the 1990s. The Departments of Health and Human Services and Education 

were the most effective in enforcing their grants’ nondiscrimination provisions. For these 

agencies, administrative enforcement did effect change, often without the necessity of litigation. 

In contrast, litigation remained the primary enforcement tool for the Department of Justice, while 

for the Departments of Labor and State, the Section 504 program was never adequately 

supported, funded, or staffed to achieve its original goals. 

2. Internal Agency Support for a Section 504 Enforcement Program 

While there are obvious benefits to be gained by conditioning grants with civil rights 

requirements, this approach presents a basic conundrum: How can any agency that funds 

programs and invests enormous amounts of time, personnel, and administrative support to ensure 

the success of the programs simultaneously police the program’s compliance with its civil rights 

obligations? In other words, how can an agency simultaneously promote and police the programs 

it funds? 

For some of the agencies, the answer was to establish a civil rights program, require recipients to 

sign assurances that they would comply with their civil rights obligations, and expect the funding 

and enforcement programs to operate as distinct entities. Both the Departments of Labor and 

19 Id. at p. 25. 

20 Id. 

26 
State have used this approach, at least with regard to their Section 504 programs. The 

Departments of Health and Human Services and Education did not. What follows is an analysis 

of each agency’s Section 504 enforcement program. 

B. The Department of Health and Human Services 

1. Reviving the Office for Civil Rights and Expanding Department-wide Coordination 

As the largest grant-making agency in the Federal Government,21 the U.S. Department of Health 

and Human Services (HHS) has had extraordinary power to enforce the nondiscrimination 

provisions of Section 504.22 When its programs were part of the Department of Health, Education 

and Welfare (HEW), HHS played the critical role of issuing the first Section 504 regulations, as 

well as model regulations for all other federal agencies. HEW was also lead agency for the 

enforcement of Section 504.23 In 1980, HEW’s programs were divided between the new 

Departments of Health and Human Services and Education. As a result, both agencies began with 

Section 504 programs and implementing regulations as well as several HEW staff who had been 

part of the original Section 504 enforcement efforts. An analysis of the Federal Government’s 

civil rights enforcement efforts during the 1980s is not within the scope of this report, but their 

“dramatic decline” has been well documented.24 

From 1990 to 2000, HHS took several steps to revive its civil rights program and, in doing so, 

enhanced its enforcement program in ways that other agencies did not. As a result, HHS was 

better prepared than it would otherwise have been to respond to the Supreme Court’s landmark 

21 In fiscal year (FY) 1996, HHS grant outlays were $319.8 billion. 

22 In FY 2000, HHS spent $73.5 billion on programs serving people with disabilities: Medicaid, Medicare, Social Services Block 

Grant, Substance Abuse Block Grant, and Older Americans Act grants. HHS Report to the President on E.O. 13217, Delivering 

on the Promise, Self-Evaluation to Promote Community Living for People with Disabilities, p. I-1. 

23 Executive Order 11914, 41 Fed. Reg. 17871, April 28, 1976. The Executive Order required HEW to issue general standards for 

other federal departments and agencies to follow in their Section 504 regulations. 

24 See, e.g., Report of the Citizens’ Commission on Civil Rights, One Nation, Indivisible: The Civil Rights Challenge 

for the 1990’s, Chapter II, Washington, D.C., 1989. 

27 
disability decision, Olmstead v. L.C., in 1999. These practices included interagency Memoranda 

of Understanding (MOUs) describing how HHS’s Office for Civil Rights (OCR) and HHS 

regulatory programs would coordinate their work; OCR’s outreach to disability advocacy 

organizations; and HHS’s incorporation of civil rights objectives in its department-wide planning 

pursuant to the Government Performance and Results Act of 1993 (GPRA).25 

The goal of GPRA was to institute planning and evaluation standards in federal agency programs 

to make them more accountable to the public. For the first time, GPRA required agencies to 

develop five-year strategies and to publish annual reports describing how they were meeting 

department-wide goals and to what extent they were meeting their goals. As the General 

Accounting Office (GAO) explained: 

The Results Act seeks to shift the focus of federal management and decision-making from 

staffing, activity levels, and tasks completed toward results. Under the Results Act, 

federal agencies must develop (1) strategic plans by September 30, 1997; (2) annual 

performance plans for fiscal year 1999 and beyond; and (3) annual performance reports 

beginning on March 31, 2000.26 

Unlike the other agencies reviewed for this report, HHS incorporated its civil rights program and, 

in particular, its disability rights program into its planning processes in significant and 

meaningful ways.27 For example, HHS identified input from advocacy groups as an important 

source of information for planning and enforcement purposes. Other agencies may have relied on 

and valued input from the public through advocacy groups, but none of their Strategic Plans 

reflected that information. 

25 31 U.S.C. Sec. 1116. 

26 GAO Report: The Results Act: Observations on the Department of Health and Human Services’ April 1997 Strategic Plan, 

7/11/97, GAO/HEHS-97-173R. For GAO Reports, see http://www.gao.gov. 

27 Both the Departments of Education and Labor included their Section 504 enforcement program in their Strategic Plans, but in 

ways that reflected less coordination between the enforcement offices and the funding programs. 

28 
Even before its GPRA review and planning, and perhaps in at least partial response to highly 

critical reports by the Citizens’ Commission on Civil Rights about HHS’s civil rights program,28 

HHS issued a Civil Rights Plan in 1995 that established three goals for OCR: 

(1) Leading in the creation and evolution of a Department-wide civil rights 

program, (2) increasing nondiscriminatory access to and participation in HHS 

programs, and (3) redeveloping OCR’s infrastructure and investing in its staff.29 

By developing this plan, HHS recognized that its coordination of civil rights activities and its 

enforcement program were in need of significant upgrading in almost every area. HHS made 

major improvements in its civil rights program overall, including its enforcement of Section 504. 

One of the most promising strategies that the agency adopted was to develop MOUs between 

OCR and HHS grant programs. As of the date of this report, OCR reports having developed such 

MOUs with the Administration for Children and Families, the Administration on Aging, the 

Centers for Disease Control and Prevention, the Agency for Toxic Substances Disease Registry, 

and the Food and Drug Administration. Each MOU is tailored to meet the distinct mission of the 

agency. Each participating grant program acknowledges its civil rights and Section 504 

responsibilities. Each MOU includes the following paragraph: 

In carrying out this responsibility, [the program] will ensure that there are no barriers that 

tend to exclude people from the benefits of its programs because of race, color, national 

origin, disability, age and sex under limited circumstances. The purposes of the activities 

undertaken by [the program] are to help prevent discrimination before it occurs and to 

assist recipients’ compliance with the civil rights authorities prior to initiation of formal 

reviews or complaint investigations by OCR. 

To ensure their continuing vitality, the MOUs spell out the reciprocal obligations of OCR and the 

subagency. 

28 Citizens’ Commission on Civil Rights, supra, Chapter XV. Also see later Citizens’ Commission Reports. The U.S. Commission 

on Civil Rights Report of 1996, supra, reported systemic problems with HHS’s civil rights enforcement programs, indicating that 

it took HHS several years to make significant improvements in its civil rights program. 

29 Office for Civil Rights, GPRA Annual Performance Plan, p. 1, at http:/www.hhs.gov/ocr/swagenda.htm; Id. at p. 221 (1995). 

29 
Since there is never sufficient funding for any civil rights office to review every grantee’s 

compliance with the civil rights laws, the benefit of obtaining the grantor’s cooperation in 

understanding and enforcing these responsibilities is immeasurable. These MOUs were signed in 

2000 and 2001, and it is too early to assess their impact.30 But the goals, the development of 

“contracts” between OCR and the grantor agencies, and HHS’s response to GPRA pressures to 

operate all of its various programs in a coordinated way have the potential for promoting 

important, institution-wide change. OCR’s development of similar MOUs with all HHS offices 

would reinforce this approach. 

A second promising change in the HHS civil rights operation has been the Department’s 

automation of its Medicare Pre-Grant Award system. Although OCR has conducted pre-grant 

reviews of facilities that participate in Medicare since the inception of the Medicare program in 

the 1960s, the use of the Automated Pre-Grant process began in October 1998. Many of the 

questions concern Section 504 issues: 

communication with persons who have sensory or speech impairments; 


provision of auxiliary aids to persons with sensory, manual, or speech


impairments; 


grievance procedures for disability discrimination allegations;


Section 504 coordination; and 


Section 504 self-evaluation.


HHS gathers information about non–Medicare recipients’ compliance with civil rights laws 

through complaint investigations, compliance reviews, and technical assistance and outreach 

activities, as do the Departments of Education, Labor, and Justice. These data collection 

methods, while important, produce less consistent and less comprehensive civil rights data than 

does the automated Medicare system. Adding a similar automated system to the approaches that 

30 A clearly positive result of the MOU is OCR’s published guidance to Temporary Assistance for Needy Families (TANF) 

agencies regarding their Section 504 and ADA responsibilities. See “Prohibition Against Discrimination on the Basis of 

Disability in the Administration of TANF” at www.hhs.gov/ocr/prohibition.html. 

30 
HHS already uses to enforce the civil rights obligations of its non–Medicare recipients would 

enhance the agency’s ability to implement its enforcement goals with all of its grantees, as well 

as serving as a model for other federal civil rights agencies. 

Third, federal agencies have long been criticized for not communicating with disability advocacy 

organizations and for being inaccessible when such organizations attempt to bring critical civil 

rights issues to their attention. The criticism has been leveled against both offices for civil rights 

and grant program offices. HHS has specifically included contact with advocacy groups in its 

GPRA plans. For example, in its fiscal year 1999 Annual Performance Plan, OCR mentions 

working with advocacy groups to identify data needs, provide technical assistance, and identify 

recipients of HHS funds for review in all HHS programs. 

OCR indicated that it planned to increase its outreach to and partnership activities with advocacy 

organizations to enhance their access to OCR’s planning processes. OCR increased its numbers 

to 20 partnerships and 26 outreach activities in the context of the Temporary Assistance for 

Needy Families (TANF) program in 1999–2000. In 2000–2001, OCR increased its outreach 

efforts and partnerships to 35 partnerships and 41 outreach activities.31 These rising numbers 

provide hope that OCR will leverage its resources by enhancing the ability of consumers and 

advocates to achieve better compliance with Section 504. 

2. HHS Response to the Olmstead Decision 

The most dramatic and encouraging actions that HHS took during the 1990s were in response to 

the U.S. Supreme Court’s decision in Olmstead v. L.C.32 The Court ruled that unnecessary 

institutionalization of qualified individuals with disabilities was a form of discrimination 

31 FY 2001 Performance Report at Section 2.1.2, Goal I.D. Also see OCR FY 2003 final GPRA Annual Performance Plan, FY 

2002 final Revised GPRA Annual Performance Plan.. 

32 119 S.Ct. 2176 (1999). The plaintiffs were two women with mental and physical disabilities who had entered Georgia’s state 

mental hospital voluntarily. When their medical team and they agreed that it was time for them to leave, the discharge planning 

committee disagreed, saying that the state’s community placement program was full, and there were no placements available for 

the plaintiffs. 

31 
prohibited by the ADA. The Court held that states were required to provide community-based 

services for persons with disabilities who would otherwise be entitled to institutional services 

when (a) treatment professionals reasonably determined that such placement was appropriate; (b) 

the affected persons did not oppose such treatment; and (c) the community placement could be 

reasonably accommodated, taking into account the resources available to the state and the needs 

of others who were receiving state-supported services. Although the opinion did not preclude the 

existence of waiting lists for community programs, it made clear that waiting lists had to move at 

a reasonable pace so that those who could leave the institution had a real chance of doing so. 

Since 76,000 people were in state mental hospitals nationwide at the time of the decision33 and 

many thousands more in other types of institutions, the Court’s decision constituted a 

groundbreaking directive to the states to administer their services, programs, and activities “in 

the most integrated setting appropriate to the needs of qualified individuals with disabilities.”34 

This ADA standard replicates the Section 504 regulation and, although the Court did not mention 

Section 504, its decision affected compliance with both laws. 

Instead of OCR’s routinely issuing an analysis of the case, the decision prompted an agencywide response. First, Secretary Donna Shalala sent a letter to the governors of all the states, 

alerting them to the decision and describing the ruling as reflecting “a shared belief that no 

person should have to live in a nursing home or other institution if he or she can live in his or her 

community.”35 This letter indicated that HHS would be actively providing technical assistance 

and support to comply with the desegregation mandate. It reminded the states that HHS had made 

available an additional $2 million for “deinstitutionalization” and “community-based services” 

actions eight months earlier.36 Next, the directors of both OCR and the Health Care Finance 

Administration (HCFA; now the Center for Medicaid and Medicare Services) sent a joint letter to 

33 Bazelon Center for Mental Health Law, Under Court Order: What the Community Integration Mandate Means for People with 

Mental Illnesses, August 15, 2000, at p. 3 (http://www.bazelon.org/lcruling.html). 

34 28 CFR Sec. 35.130(d). 

35 “Dear Governor” letter from Donna Shalala, Secretary, HHS, January 14, 2000. 

36 Tim Westmoreland, Director, Health Care Finance Administration, HHS, to State Medicaid Directors, April 28, 2000. 

32 
all state Medicare and Medicaid agencies concerning Olmstead. The letter included specific 

suggestions as to how the states could analyze their programs to determine whether they were in 

compliance with the decision and with the ADA and Section 504 regulations. 

HHS followed these initial letters with four more jointly issued technical assistance letters;37 

established an Olmstead addition to the HHS Web site;38 began working closely with the 

Departments of Justice and Education; and attempted to work with the Department of Housing 

and Urban Development to develop a government-wide strategy to help the states meet their 

disability rights obligations. 

HHS’s response was unusually thorough but appropriate. HCFA’s programs had subsidized the 

institutionalization of tens of thousands of individuals with disabilities. For the first time since 

the enactment of Section 504, one federal agency acted to focus and coordinate the work of its 

enforcement and granting arms toward altering decades of Medicaid policies and practices that 

had created “a significant barrier to the community integration of individuals with disabilities.”39 

HHS could have waited to receive civil rights complaints from individuals who believed that 

their states were not complying with the Court’s decision, as federal agencies have done since the 

first Section 504 regulations were published. Instead, HHS responded in a much more forceful, 

proactive, and effective way. 

When OCR did begin to receive administrative complaints that state agencies were not 

complying with Olmstead, OCR attempted conciliation in every case, in part by getting state and 

local agency respondents to convene appropriate stakeholders to do Olmstead planning while 

holding in abeyance the usual investigation and enforcement efforts available to OCR. This new 

approach resulted in the respondents’ focus on root problems in many of the cases. 

37 The letters can be found at http://cms.hhs.gov/olmstead/smdltrs.asp. 

38 See http://www.hhs.gov/ocr/mis.html. 

39 Letter from Robinsue Frohboese, Principal Deputy Director, Office for Civil Rights, DHHS, to Jeffrey Rosen, General 

Counsel, National Council on Disability, September 27, 2002. 

33 
HHS’s Olmstead efforts were reinforced on June 19, 2001, by the White House’s issuance of 

Executive Order 13217, Community-Based Alternatives for Individuals with Disabilities. The 

President appointed the secretary of HHS to take the lead in working with the Departments of 

Justice, Education, Labor, and Housing and Urban Development and the Social Security 

Administration “to ensure that the Olmstead decision is implemented in a timely manner.” 

Specifically, the Order required the agencies to work with the states; to evaluate the agencies’ 

own federal programs, practices, regulations, and statutes; and to issue a report to the President. 

The Order also required HHS and DOJ to “fully enforce Title II of the ADA,” which outlaws 

disability discrimination in state and local programs. Since Title II incorporates and expands 

Section 504, this was the first Executive Order that focused on helping states comply with the 

two laws and that required each of the named agencies to review its own programs for the 

purpose of “removing barriers that impede opportunities for community placement.” 

In response, each of the agencies conducted the required evaluation and contributed to the final 

Report to the President. HHS’s evaluation constituted a serious assessment of its own programs, 

identified ways in which its programs contributed to unnecessary institutionalization, and 

reported how the Department responded to its own findings. Two of these responses are 

particularly relevant to this report. One was HHS’s creation of the Office on Disability and 

Community Integration (ODCI). Its purpose is to “serve as the focal point within the Department 

for disability issues, including the coordination of disability science, policy, programs and special 

initiatives within the Department and with other agencies.” To assist the ODCI, HHS also created 

a Disability Advisory Committee that includes individuals with disabilities, family members, 

advocacy organizations, providers, and state and local government officials. 

Since these HHS components are brand-new, it is too early to determine what impact they will 

have on the agency’s Section 504 and ADA Title II enforcement programs. However, these are 

promising developments, particularly since many people with disabilities, especially those who 

are low and very low income, depend on HHS programs. Enforcing Section 504’s requirements 

34 
can only improve as HHS becomes more effective and proactive in monitoring its own programs 

to ensure that their focus is integration. 

Finally, HHS also recommended that the President formalize the Interagency Council on 

Community Living (ICCL). HHS convened the Council to accomplish the Executive Order tasks 

and recommended that it be expanded to include other relevant agencies, such as the Equal 

Employment Opportunity Commission (EEOC) and the Internal Revenue Service (IRS). If made 

permanent, the ICCL might accomplish the work originally envisioned for the moribund 

Interagency Disability Coordinating Council (IDCC), created by Section 507 of the 

Rehabilitation Act in 1973.40 

C. The Department of Education 

1. Readjusting Enforcement Strategies 

Until 1993, the Department of Education’s civil rights program focused on complaints. OCR 

reported to Congress that “nearly 90 percent of OCR resources were spent in a complaint 

mode.”41 At that time, and throughout the 1990s, more than 50 percent of the complaints received 

by OCR concerned discrimination based on disability. That meant that OCR staff were spending 

the majority of their time resolving disability complaints filed on the basis of Section 504 and/or 

the ADA. 

Though focusing the majority of OCR’s resources on disability was potentially good news for the 

disability community, it raised serious questions among OCR leadership and staff “about whether 

40 Later in this chapter, the report addresses the Department of Justice’s failure to convene the IDCC during most of the past 

decade. It is worth assessing whether the ICCL should replace the IDCC, and whether HHS is better positioned to coordinate the 

activities of the IDCC than the Department of Justice is. 

41 Department of Education, Office for Civil Rights, Annual Report to Congress – FY1993, p. 10. In its comments on the draft of 

this report, the Department indicated that its OCR staff spent the remainder of the time conducting compliance reviews and 

providing technical assistance. Letter from Gerald A. Reynolds, Assistant Secretary for Civil Rights, to Jeffrey T. Rosen, General 

Counsel/Director of Policy, National Council on Disability, October 9, 2002, attachment. 

35 
the enforcement program was balanced to address all issues for which OCR had responsibility.”42 

They were concerned that if OCR remained a complaint-driven agency, it would not be able to 

fulfill its obligations to enforce the race, national origin, age, and sex discrimination statutes.43 

To facilitate a responsible civil rights enforcement program that did not “overemphasize” 

disability complaints and therefore was not complaint driven, OCR made several organizational 

changes. It radically altered its program and decentralized the location of its staff; improved and 

increased its outreach and training program; emphasized its reliance on parents, students, and 

community groups to identify civil rights issues and monitor compliance agreements; and 

reinforced its technical assistance communications and publications. These changes led the U.S. 

Commission on Civil Rights to find that “the organizational structure of external civil rights 

enforcement at the U.S. Department of Education is exemplary.”44 

2. Organizational Restructuring 

Between 1994 and 1996, OCR reduced its Washington staff by 44 percent and increased the 

number of staff in the field. Eighty-eight percent of OCR’s staff were placed in four enforcement 

divisions--eastern, southern, midwestern, and western--and the divisions included 12 

enforcement offices. OCR changed the role of headquarters staff so that their work became 

providing headquarters support to field staff, making it easier for field staff to enforce the civil 

rights laws, provide technical assistance to recipients, and work with community advocates and 

families. In addition, headquarters staff were responsible for coordinating OCR’s civil rights 

work within the Department and among other federal agencies.45 

42 Id. 

43 “This approach did not adequately address the variety of civil rights problems faced by vulnerable groups in the United States 

unable or afraid to complain. For example, LEP [limited English proficiency] students were largely unserved by the OCR 

complaint process.” Department of Education, Office for Civil Rights, Annual Report to Congress, FY 1993, p. 10. 

44 U.S. Commission on Civil Rights, supra, at p. 209. 

45 Department of Education, Fiscal Year 2000, Justifications of Appropriation Estimates to the Congress, Vol. II, pp. 9–11. 

36 
From its inception in 1980, OCR’s structure has been different from that of other agencies in two 

ways. The head of the agency is not a director but an assistant secretary. Many of the original 

staff had worked at HEW. They had learned how difficult it was to integrate civil rights issues 

into the funding programs. Therefore, the Education Department began its existence with a 

commitment to treat civil rights with the same level of importance as all the other parts of the 

agency that were headed by assistant secretaries. The benefit of this approach has been that OCR 

has continuously worked closely with the programs that focus on disability issues, such as the 

ones sponsored by the Office of Special Education and Rehabilitative Services (OSERS) and the 

Office of Elementary and Secondary Education.46 

One benefit that students with disabilities have derived from this structure has been the issuance 

of “Dear Colleague” letters to state and local education agencies from the assistant secretaries of 

both OCR and OSERS. One such letter, sent in 1997, addressed the importance of including 

students with disabilities in national reading and math assessments. The letter explained both the 

civil rights and programmatic issues and recommended practices. A similar letter, issued on July 

25, 2000, addressed school harassment based on disability. It defined the issue; provided 

guidance and recommended actions; explained how harassment might violate Section 504, the 

Individuals with Disabilities Education Act (IDEA), and the ADA; and offered technical 

assistance. 

Given the close relationships between the funding programs and OCR and OCR’s shrinking staff 

size, an additional approach for OCR to explore is the development of MOUs with its funding 

partners, like the ones HHS developed.47 For example, the MOU might require the PostSecondary Office to (a) determine how many of its grantees had conducted self-evaluations and 

46 Titles and organizational standing often count for less than does departmental leadership, however, as was clear in the 

Department of Health and Human Services response to the Olmstead decision, for example. See supra at pp. 30–33. 

47 See supra at p.28. 

37 
fulfilled the goals of the resulting Transition Plans, as required by Section 504,48 and (b) develop 

materials and technical assistance guidance for its grantees, with guidance from OCR. 

The second difference between OCR’s organization and that of other agencies also resulted from 

HEW experience. There, as in many agencies, the civil rights office depended on the Office of 

General Counsel for all its legal needs, from the most mundane questions on legal standing to 

approval for issuing a letter of findings determining whether the recipient was in compliance. 

When the Department of Education was created in 1980, it had its own legal staff. Most 

reviewers agree that one reason OCR was able to process its complaints more efficiently, refer 

more cases to the Department of Justice, and respond more quickly and effectively to 

enforcement issues than were other agencies was because OCR was able to identify and resolve 

legal issues without requesting assistance from a separate office. While OCR had coordinated 

closely with its General Counsel’s Office, it was not dependent on it for regulation and policy 

development. This organization reduced delays in producing publications and, more important, 

reflected input by staff whose focus and experience were based on actual civil rights enforcement 

experience. 

OCR still maximizes the benefit of having its own legal staff by having its lawyers work with 

investigators and other program staff to conduct compliance reviews and assess the compliance 

status of the funding recipients. In OCR’s 12 enforcement offices, “case resolution teams”49 

consist of attorneys, investigators, and support staff. “The teams have authority, with minimal 

levels of review, to reach final determinations in all but a small number of OCR cases.”50 

48 In comments on the draft of this Report, supra, fn. 41, Assistant Secretary Reynolds objected to this recommendation, saying, 

“OCR is the only office in Education that can determine compliance.” While that is true, the recommendation was that the 

granting office include questions that require only yes and no answers, such as, “Has your education institution conducted a 

Section 504 self-evaluation and, if so, when?” Some of the benefits of the granting agency’s including such questions are that it 

can provide critical information to OCR; the funding agency could include the questions in documents that it sends in the normal 

course of the grant process; and it could increase the funding staff’s understanding of Section 504 requirements. 

49 Department of Education, Fiscal Year 2000, supra, fn. 45, at p. Y-9. 

50 Id., at p. Y-10. 

38 
3. Issue Networks 

A novel result of OCR’s shift of resources has been the creation of “issue networks.”51 When 

OCR changed from a complaint-driven agency, it chose to expand and strengthen its community 

and internal communication networks so it could focus its resources on the civil rights issues that 

were of most concern to the public and the agency’s civil rights staff. The OCR-OSERS letter on 

harassment of students with disabilities, for example, resulted from conference calls between 

OCR and OSERS staff, and calls and letters from students, parents, and disability advocates. 

Before drafting the letter, OCR and OSERS held a focus group to gain more information about 

the problem from those directly affected. 

It would be useful for OCR to publicize any other actions it has taken to respond to this problem 

and to publicize any investigations, administrative enforcement actions, or consultations with 

DOJ that it has undertaken regarding prosecuting harassment complaints. The purpose of the 

reorganization was to help OCR become more effective in its ability to respond quickly and 

effectively to civil rights problems when they arose. OCR’s ability to publicize and explain the 

civil rights aspects of student harassment—a current topic of substantial public interest—would 

be one measure of the reorganization’s success. 

The “networks” that OCR has established include the Disability Network, the Testing Network, 

and the Minorities in Special Education Network. The remaining networks focus on the 

education of gifted and talented students, racial harassment/discipline, education of limited 

English proficient students, and elementary and secondary school racial desegregation. 

Participants in the networks include staff from each of the field and headquarters offices that 

work on Section 504 and ADA enforcement. When appropriate—as with the testing issue that 

was the subject of the OCR-OSERS letter mentioned above—the Disability and Testing 

Networks conduct joint calls. These calls help staff learn from each other and create a 

coordinated approach to overarching problems. 

51Id., at p. Y-21. 

39 
During fiscal year (FY) 2000, the calls included the following subjects: the application of the 

Family Educational Rights and Privacy Act to disability complaint investigations; recent court 

decisions on sovereign immunity; Section 50852 technology advances; homeless children with 

disabilities; and postsecondary academic adjustments and services. The last two calls were 

conducted by OCR but consisted of presentations by officials of the Association of Higher 

Education and Disability, representatives of Educational Services to Homeless Children with 

Disabilities in Baltimore, and the Women’s Collective in Washington, D.C.53 

The Disability Network maintains an intranet site that can be accessed by all OCR staff. The site 

includes links to significant court decisions, laws, and regulations; relevant law review articles; 

and technical assistance presentations. This site is reinforced with a quarterly newsletter, The 

Disability Networker, that discusses developments in OCR cases, as well as court decisions and 

other relevant and useful news. 

Few agencies, much less their offices for civil rights, have designed systems such as ED’s 

networks to incorporate the expertise and vision of disability advocates outside the agency and 

make them available to line staff. The potential benefit of such interchange is obvious. The 

question that it raises, however, is how well OCR has succeeded in using this “outsider” focus 

and internal coordination to increase staff competence and the agency’s ability to avert and 

resolve violations of Section 504.54 

It is important to note, however, that OCR has taken unusual steps to implement its goals. For 

example, when its Seattle office addressed harassment in the schools, it worked with a state 

52 Congress added Section 508 to the Rehabilitation Act in 1998. It is codified at 29 U.S.C. 794d. Section 508 requires that 

federal agencies’ electronic and information technology be accessible to people with disabilities, including employees and 

members of the public. For information, see http://www.usdoj.gov/crt/508.html. 

53 Description of OCR’s training activities and accomplishments prepared for NCD and provided on June 1, 2001, by Rhonda 

Weiss, U.S. Department of Education, to Robert Ardinger. 

54 In his letter to Jeffrey Rosen, supra at fn. 41, OCR Assistant Secretary Reynolds indicated that “[t]he draft report could be read 

to suggest a greater role of members of outside organizations than is accurate. While networks sometimes invite individuals from 

outside organizations to address the networks as guest speakers, the networks do not regularly interact with outside organizations 

and such individuals are not members of the network; the membership of the networks includes OCR staff only.” 

40 
Office of Education to develop a Web site that would include all available laws, regulations, and 

policies on harassment, as well as policies and links to self-evaluation resource materials. For 

students with disabilities, who have always been an easy target of harassment, this kind of 

federal-state partnership could be dramatic and empowering. 

4. Monitoring Civil Rights, by OCR and by the Community 

As difficult and time-consuming as it sometimes is for civil rights agencies to investigate a 

complaint or conduct a compliance review, issue a letter of findings, and structure a settlement or 

a voluntary compliance agreement, effective civil rights enforcement requires an additional step. 

Achieving full and lasting relief requires monitoring the settlement or agreement designed to 

correct noncompliance. OCR addressed this issue, too, in its restructuring. It added the task of 

monitoring resolution agreements to its Strategic Plan and Annual Performance Plans and listed 

monitoring as a separate activity to which it would devote its resources. As an example of its 

success, OCR reported that it monitored 2,083 complaint resolution agreements and 807 

compliance review resolution agreements in 1999.55 

What is novel about OCR’s monitoring its agreements is that the agency has actively sought the 

assistance of parents. Beginning in 1993, OCR determined that it would strengthen its 

partnership with students and parents, partly to expand the reach of its technical assistance efforts 

and partly to “help others to learn to solve their problems of securing equal access to quality 

education.”56 Encouraging beneficiaries to help ensure that their schools comply with civil rights 

agreements is a very effective way for OCR to maximize its resources, and it is consistent with 

OCR’s turning to its beneficiary community and to the Department’s recipients for help in 

identifying discrimination and technical assistance needs. 

55 Department of Education, Office for Civil Rights, FY 1999 Annual Report to Congress, p. 12. 

56 Department of Education, Office for Civil Rights, FY 1993 Annual Report to Congress, p. 10. 

41 
In 1999, OCR refined its monitoring activities further. In addition to tracking a recipient’s 

compliance with complaint resolution agreements, OCR started to focus “not only on whether the 

recipient has taken the specific steps required in its agreement, but also on whether those steps 

have achieved goals established for the compliance activity and improved students’ access to 

high quality education.”57 

This is possibly the best argument that OCR could make for moving away from being a 

complaint-driven office. Rather than investigating similar complaints from a variety of sources 

and solving each of them individually and repeatedly, OCR has adopted a much more 

sophisticated approach to civil rights enforcement. Reviewing whether an agreement actually 

accomplishes a Section 504 goal on a case-by-case basis is unique among civil rights agencies. 

Having the flexibility to work with a recipient to modify agreements and generate better 

outcomes for students is a goal that every civil rights agency should adopt; it places the emphasis 

on results over process. 

5. The Department of Education’s Response to Olmstead 

Like HHS, the Department of Education (ED) responded to Olmstead when it was decided in 

1999. According to its Executive Order 13217 Self-Evaluation, OSERS took the lead for ED’s 

response to the Olmstead decision. OSERS created a joint project with the Department of Labor 

and HHS “to promote grass-roots advocacy in support of home/community-based waivers under 

Medicaid.”58 As the Department describes the project, its focus is on helping states develop fiveyear plans “for providing supports and services for people with significant disabilities” that 

include “strong consumer-directed home and community-based services for persons with 

disabilities.”59 

57 Department of Education, Office for Civil Rights, FY 1999 Annual Report to Congress, pp. 11–12. 

58 “Delivering on the Promise: U.S. Department of Education Self-Evaluation to Promote Community Living for People with 

Disabilities,” Report to the President on Executive Order 13217, http://www.hhs.gov/newfreedom/final/edinit.html, III, p.1. 

59 Id., at pp. 1–2. 

42 
ED’s Olmstead response lists nine additional efforts, eight of which are led by program 

components of the agency. The ninth effort, led by OCR, is not focused on enforcement but 

rather on “targeted technical assistance and training initiatives” and the preparation of “a 

resource document in the area of transition from secondary school to post-school opportunities.” 

Nowhere does the OCR report refer to any compliance reviews or enforcement actions, either 

past or future, that would reinforce ED’s collaborative activities with states, parents, and 

advocates or that would ensure that its recipients are complying with relevant statutory and 

regulatory mandates.60 In fact, the only mention of civil rights enforcement in support of 

Olmstead activities comes in the description of protection and advocacy activities, which are 

funded by the Department’s Rehabilitative Services Administration.61 

The Office for Civil Rights is responsible for ensuring that the schools, universities, state 

vocational rehabilitation agencies, nonprofit organizations, assistive technology providers, 

businesses, and others that the Department describes as being involved in its Olmstead efforts 

conduct their activities so that they are accessible to beneficiaries with disabilities. Recipients 

whose policies deny services to those on psychiatric medication or whose services are located in 

inaccessible sites, for example, impede the ability of students and workers with disabilities to 

obtain education and employment services and benefits, in violation of Section 504 regulations 

and the ADA. It is both puzzling and worrisome that ED’s report to the President mentions 

nothing about how it intends to enforce the regulations and statutes it cites as supporting its 

Olmstead efforts. It is particularly troubling that OCR’s discussion of its Olmstead actions, as 

encouraging as they sound, does not include any mention of enforcement activities, other than 

stating that OCR “vigorously enforces...the ADA and Section 504.”62 The Department of 

Education knows how to enforce Section 504, and it should demonstrate that capacity in its 

Olmstead activities. 

60 Id., at pp. 10–12. 

61 Id., at pp. 5–6. 

62 Federal Agency Actions to Eliminate Barriers and Promote Community Integration, p. 24, 

http://www.hhs.gov/newfreedom/final.html. 

43 
D. The Department of Labor 

1. The Civil Rights Center: A Minimalist Approach 

When Congress expanded the Rehabilitation Act in 1973 to include disability rights, it covered 

recipients of federal financial assistance through Section 504 and contractors doing business with 

the Federal Government through Section 503. The Department of Labor (DOL) was designated 

as the lead agency to promulgate regulations under Section 503 of the Rehabilitation Act,63 and it 

assigned Section 503 responsibilities to its Office of Federal Contract Compliance (OFCCP), 

which had been responsible for working with contractors to enforce its other civil rights laws. To 

enforce the civil rights laws that applied to the recipients of the DOL’s grant programs, it created 

the Office for Civil Rights, which was renamed the Directorate of Civil Rights in the early 1980s 

and renamed again in the mid-1990s as the Civil Rights Center (CRC).64 

From its inception, CRC has had limited funding and a small staff. It has had to stretch its 

resources to administer the agency’s Title VII65 employment discrimination program for DOL 

employees. Unlike the Offices for Civil Rights in HHS and ED, CRC has never had regional 

staff, with the exception of one staff person in each regional office, who is responsible for 

internal Title VII implementation. All Section 504 investigations, technical assistance, 

compliance reviews, prefunding award reviews, and regulatory and policy development have 

been conducted in Washington, D.C. CRC has no separate policy office. It rarely works with 

OFCCP; the two offices consult each other only when they receive Section 503 and 504 

complaints that are filed against the same entity or when compliance review efforts are directed 

against entities that both contract with DOL and receive federal financial assistance from one or 

63 Executive Order 11914. 

64 Letter from Patrick Pizzella, Assistant Secretary for Administration and Management, Department of Labor, to Jeffrey Rosen, 

General Counsel/Director of Policy, National Council on Disability, October 4, 2002. 

65 Title VII of the Civil Rights Act of 1964 prohibits discrimination against employees on the basis of race, color, national origin, 

religion, and sex. 

44 
more of its programs. Joint training is limited to “almost every year, [when OFCCP] conducts a 

workshop(s) at CRC’s annual national equal opportunity training conference.”66 

During the 1980s, CRC spent the majority of its resources on complaints and compliance 

reviews. For example, the office spent only $10,000 on technical assistance activities in 1988.67 

While the budget for the office increased during the 1980s, the additional funds supported 

internal, DOL employee Title VII complaint processing. The budget for enforcement of all of the 

civil rights laws affecting recipients dropped to a low of $1.9 million in 1988. Similarly, the size 

of the enforcement staff dropped from 66 in 1981 to 32 in 1988.68 By 1994, the number of fulltime enforcement staff had risen from 32 to only 34, and CRC’s budget had increased to $2.5 

million. By 2002, DOL’s budget request for all of CRC’s activities, including its internal Title 

VII program, was $5.8 million.69 Since the Title VII program absorbed at least half of CRC’s 

resources, the budget to enforce recipients’ civil rights obligations would be no higher than $2.9 

million, or slightly more than the 1994 budget. In contrast, OFCCP’s budget request was for 

$76.2 million.70 

CRC conducted no prefunding award grant fund reviews in the early 1990s, and no post-award 

desk audits in 1992 and 1993, despite an increase in the number of cities and counties that newly 

became DOL program recipients when Congress enacted the Job Training Partnership Act 

(JTPA), providing federal funds for job training and placement services. The 1990 passage of the 

ADA also increased CRC’s workload.71 

66 Letter from Patrick Pizzella, supra, at fn. 64. 

67 U.S. Commission on Civil Rights, at p. 356. 

68 Id. 

69 Department of Labor Budget Overview FY 2002, 8/24/2001; 

http://www.dol.gov/dol/_sec/public/Budget2002/budgetfy2002.htm. 

70 Id. The size of OFCCP’s staff and budget were 11 times those of CRC every year during the 1990s. 

71 U.S. Commission on Civil Rights, p. 358. 

45 
DOL distributes most of its federal financial assistance through continuing state programs.72 This 

fact, combined with CRC’s small size and few resources, has resulted in its reliance on Methods 

of Administration (MOA) documents. Required by both the JTPA in 198473 and the Workforce 

Investment Act (WIA) in 1998, the MOA 

is a document that describes the actions an individual State will take to ensure that its 

WIA Title I-financially assisted programs, activities, and recipients are complying, and 

will continue to comply, with the nondiscrimination and equal opportunity requirements 

of WIA and its implementing regulations.74 

One potential benefit of the MOA approach was that it required states to employ equal 

opportunity staff and train them to be able to identify discrimination, conduct investigations, and 

obtain corrective action and sanctions. When CRC focused its attention in 1994 on the MOA 

requirement in the JTPA regulations, nine years after DOL published the regulatory 

requirement,75 the Civil Rights Center required every state to submit an MOA so that CRC could 

review them for compliance with CRC’s detailed guidance. 

The CRC issued a letter finding at least one state recipient of JTPA funds in noncompliance with 

Title VI for not having submitted an MOA.76 This was apparently the only time that CRC found a 

state out of compliance with its MOA from 1984 until 2000. On August 25, 2000, after Congress 

replaced the JTPA with the Work Incentives Improvement Act, DOL published its “State 

Guidance for Developing Methods of Administration Required by Regulations Implementing 

72 Id., at p. 366. Since the U.S. Commission on Civil Rights Report in 1996, Congress replaced the JTPA in 1998 with the WIA, 

which is one of the job training statutes that the Department of Labor funds and operates, with the states, as a continuing state 

program. Other continuing state programs that receive federal financial assistance from the Department are the Veterans’ 

Employment and Training Services, Unemployment Insurance Services, and Welfare to Work programs. 

73 29 CFR 37.54. Also see Supplementary Information, 29 CFR Part 37, “State Guidance for Developing Methods of 

Administration Required by Regulations Implementing Section 188 of the Workforce Investment Act of 1998,” 65 Fed. Reg. 

51983 (8-25-2000). 

74 Id., at 51984. 

75 U.S. Commission on Civil Rights, p. 367. 

76 Id., at p. 368. It is unclear whether CRC found the state in violation of Title VI only or of all of its civil rights obligations, and 

what the outcome of the finding was. 

46 
Section 188 of the Workforce investment Act of 1998.”77 According to Patrick Pizzella, Assistant 

Secretary for Administration and Management, “The CRC initially rejected a substantial number 

of MOAs submitted by States pursuant to the WIA nondiscrimination regulations.... In addition, 

we understand that CRC required at least some such States to sign Conciliation Agreements to 

accompany their amended MOA’s....”78 According to CRC staff, assessment of the MOA is a 

paper review, limited to determining whether the MOA includes all the required 

documentation.79 Severely limited resources and insufficient staff prevent CRC from conducting 

on-site assessments. Instead, as the Guidance makes clear, it is the governor’s responsibility to 

review the state’s MOA every two years and to notify CRC when the state modifies its MOA. 

Once CRC approves the MOA, it is the responsibility of the state to enforce it. As the Guidance 

explains, 

...the MOA is intended to be a document that State and local level staff and management, 

through the EO [Equal Opportunity] Officer, can consult when determining appropriate 

steps to take when confronted with an EO issue....It has been CRC’s intent that the MOA 

be a living document, a guide describing how the State will ensure that its WIA Title Ifinancially assisted programs will operate in a nondiscriminatory manner.80 

Although the Guidance and the regulations indicate that a state’s failure to follow the dictates of 

its own MOA might subject the state to a finding of noncompliance and the conditioning or loss 

of federal funds, in truth, CRC does not have the resources or staff to conduct on-site reviews. It 

would be appropriate for GAO or a similar investigative body to determine whether CRC’s longdistance oversight and the states’ willingness and ability to comply with the WIA regulations and 

guidance are sufficient to generate compliance with Section 504, the additional disability 

provisions of the WIA, and all the other civil rights laws covered by the MOA. 

77 65 Fed. Reg. 51984 (8-25-2000). 

78 Letter from Patrick Pizzella, supra at fn. 64. 

79 Letter from Annabelle T. Lockhart, Director of Civil Rights Center, Department of Labor, to Barbara Stewart of Ardinger 

Consultants and Associates, March 2, 2001, at p. 1. 

80 State Guidance, supra at fn. 73, p. 51990. 

47 
2. Creating Consistent Enforcement Standards 

In its 1996 report on federal enforcement of Title VI (which bars discrimination based on race, 

color, and national origin), the U.S. Civil Rights Commission found that DOL’s JTPA 

regulations were more extensive, more comprehensive, and more specific about recipients’ 

obligations than were its race discrimination regulations applicable to other DOL grantees. The 

Commission recommended that DOL either update its Title VI regulations to make them 

consistent with the JTPA regulations or make the JTPA regulations applicable to all of DOL’s 

grant programs.81 The same could be said for Section 504. In fact, the WIA replaced the JTPA 

program in 1998,82 and DOL published a final implementing rule on November 12, 1999.83 

The sections of the WIA regulations that address disability discrimination are far more extensive, 

comprehensive, and specific than are the Section 504 regulations, and they are an improvement 

over the JTPA regulations. Not only do they incorporate the amendments to the Rehabilitation 

Act and the requirements of the ADA, they also incorporate best practices that have been 

developed by disability organizations and individuals over the course of the past 20 years. 

If all the DOL recipients are included in the WIA and are required to comply with the WIA 

regulations, the differences between the stronger and more comprehensive disability 

nondiscrimination regulations of the WIA and those of Section 504 would be theoretical. 

However, as that is not the case, it is incumbent on the Department to republish its Section 504 

regulations to include the more expansive provisions of the WIA regulations. Otherwise, it will 

perpetuate an unfair and confusing two-class system under which beneficiaries of WIA programs 

have greater protections than do beneficiaries of other DOL programs. 

81 Id., at p. 376. 

82 29 U.S.C. 2801 et seq. 

83 29 CFR Part 37. 

48 
The one prominent Section 504 provision that the WIA regulations do not include is the selfevaluation requirement.84 On the basis of DOL guidance, recipients of WIA funds might be led to 

believe that they are not required to conduct self-evaluations, and they would be reinforced in 

their belief by the statements of Assistant Secretary for Administration and Management Patrick 

Pizzella. In correspondence with NCD, the assistant secretary interprets the Department’s Section 

504 regulations as requiring only those entities that were recipients in 1980, when the regulations 

were published, to conduct self-evaluations.85 Although DOL documents make it clear that this is 

not Department policy,86 it would behoove the Disability Rights Section of the Department of 

Justice to resolve the conflict within DOL and to recommend that it clarify to its recipients that 

Section 504 continues to require self-evaluations and Transition Plans. 

In spite of a lack of resources, the CRC Section 504 enforcement program does have a 

computerized case-tracking system. CRC monitors all its conciliation agreements and keeps the 

cases open until the recipient meets all the terms of the agreements. However, NCD received 

conflicting information as to whether CRC seeks relief that would make the complainant 

“whole” by, for example, seeking out-of-pocket expenses and monetary relief for pain, suffering, 

or humiliation. Such relief is consistent with DOJ guidance and is sought by other civil rights 

84 29 CFR 32.6c. 

85 Pizzella asserted in a letter to NCD that the self-evaluation requirement applied to DOL’s recipients only at the time it 

published its Section 504 regulation, and “no language in the regulation indicates that any recipient has been required to conduct 

a self-evaluation since 1981.” Letter from Patrick Pizzella, Assistant Secretary for Administration and Management, to Jeffrey 

Rosen, General Counsel/Director of Policy, NCD, April 19, 2002, p.15. See also Letter from Assistant Secretary Patrick Pizzella, 

October 4, 2002, supra at fn. 64, pp. 4–5. 

While the fact, as stated, may be true, the interpretation of the regulatory requirement is incorrect and conflicts with other DOL 

statements as well as with binding guidance from DOJ. The letter also asserts that the Methods of Administration regulations at 

65 FR 51983, 51987 require states to give DOL “any evaluation conducted to determine the programmatic or architectural 

accessibility of a WIA Title I-financially assisted program or activity....” Id., at p. 25. That description also contradicts Section 

504’s requirement (not recommendation or suggestion) that recipients conduct self-evaluations. 

86 See, e.g., U.S. Department of Labor, Section 504 Compliance Handbook, pp. 17–18 (Thompson Publishing Group, Inc. July 

2001). The Civil Rights Center endorsed this handbook and indicated to NCD that it uses it as a reference and for training 

purposes. 

49 
offices. CRC Director Annabelle Lockhart reported that her office did not seek make whole 

relief.87 Pizzella indicated the opposite in his comments on the draft version of this report.88 

With regard to compliance reviews, CRC did not seek the involvement of community 

organizations or disability advocacy agencies. This practice differs from the approaches adopted 

by HHS and ED. In another departure from enforcement practices used by HHS and ED, CRC 

ceased all compliance review work with the exception of WIA MOA reviews, beginning in 2000. 

Apart from those paper reviews, CRC focused its efforts on training and technical assistance, 

also aimed primarily at WIA participants. Since it is apparent from the Department’s Strategic 

Plans and Olmstead Report that many of the Department’s offices have been addressing training 

and technical assistance needs related to the WIA, CRC could, instead, emphasize its civil rights 

enforcement mission in its work. 

CRC, unlike the Department of Education’s OCR, does not have its own lawyers and depends on 

DOL’s Office of the Solicitor to enforce findings of civil rights violations. The Solicitor receives 

few referrals from CRC, which is consistent with CRC’s emphasis on training and technical 

assistance. Without an active Section 504 enforcement program, DOL’s grantees have less 

incentive to comply voluntarily with the law. If an individual beneficiary or an advocacy group 

identifies discriminatory practices and files an administrative complaint with CRC, the 

Department will learn that its recipient may be violating Section 504. That is too haphazard a 

way to ensure that federal tax dollars are being spent lawfully. 

When asked what would improve CRC’s ability to respond to Section 504 enforcement matters, 

Lockhart answered that both recipients and DOL program staff needed more training about 

Section 504 obligations. Lockhart did not identify any Section 504 enforcement operations that 

the agency believed were particularly successful or that could serve as a model for other 

87 Id., Letter from Annabelle Lockhart to Barbara Stewart of Ardinger Consultants, supra at fn.79, question #11(b). 

88 Pizzella, in his comments on the draft of this report, indicated the opposite--that CRC does, as a matter of policy and practice, 

provide make-whole relief, including compensatory and punitive damages. See Letter from Assistant Secretary Patrick Pizzella, 

October 4, 2002, supra at fn. 64, p. 3. 

50 
agencies. She identified a lack of resources, in terms of both dollars and personnel, as being the 

major impediment to more effective Section 504 enforcement.89 

3. DOL’s response to Olmstead and Executive Order 13217 

Although the Department of Labor’s CRC has backed away from Section 504 enforcement 

programs, it and several other DOL offices are investing extensive resources into technical 

assistance and interagency coordination and collaboration programs on behalf of people with 

disabilities. This is nowhere more clear than in its Olmstead Report to the President. CRC is 

mentioned twice in the report, both times as providing technical assistance and training support 

in furtherance of the Department’s WIA initiatives. Both as administrator of DOL’s Equal 

Employment Office and as the Department’s Section 504 enforcement office, the Civil Rights 

Center has been and will be in the position of collecting information that would support the 

development of enforcement strategies. Nothing in the Olmstead Report suggests that CRC is 

fulfilling this role. 

For example, the Department’s Olmstead Report says that CRC will conduct “disability-focused 

reviews and evaluations” of Section 504 and the other nondiscrimination obligations of the 

WIA.90 However, instead of using the reviews for the purpose of bringing WIA participants into 

compliance, DOL plans to use them “to identify further areas in which federal training and 

technical assistance activities are needed to eliminate barriers and to prevent disability 

discrimination in the WIA programs.”91 In other words, DOL will not emphasize the enforcement 

of Section 504, or of any of the civil rights laws, in the WIA programs. 

89 Letter from Annabelle Lockhart to Barbara Stewart, supra at fn. 79, question #29. 

90 U.S. Department of Labor, Report to the President on Executive Order 13217, III. Actions and Recommendations, p. 8 

(http://www.hhs.gov/newfreedom/final/dolaction.html). 

91 Id. 

51 
CRC will also participate in “listening sessions.” These listening sessions will bring CRC in 

contact with people with disabilities, employers, parents and family members, providers of 

employment supports and services, and “other relevant stakeholders...about changes needed to 

ensure meaningful and effective service delivery to people with significant disabilities.”92 These 

are precisely the beneficiaries of the DOL programs who know how the programs are not 

working and, with the help of CRC, could identify which of the malfunctions are the result of 

discrimination that CRC was created to address. That, however, is not the purpose for including 

CRC in the meetings, according to the Olmstead Report. Nor is there any indication that CRC 

plans to investigate, let alone prosecute, any evidence of Section 504 noncompliance that arises 

in these listening sessions. 

On the other hand, DOL’s technical assistance, collaboration, and coordination plans, as 

described in its Olmstead Report, are both resource intensive and coordinated throughout the 

Department. Although enforcement has proven to be a necessary component of federal efforts to 

bring people with disabilities into the mainstream, technical assistance and training are also 

important, and DOL is building on a history of technical assistance activity in the disability field. 

It has collaborated with the President’s Committee on the Employment of People with 

Disabilities (PCEPD) since the committee’s establishment in 1945, and its Job Accommodation 

Network (JAN) has long provided very good technical assistance and outreach materials about a 

wide range of reasonable accommodation options at worksites to employers, job seekers with 

disabilities, and employees. The JAN has a toll-free number and a user-friendly Web site that 

describes resources for technical assistance, funding, education, and services related to the 

employment of people with disabilities. 

Its Office of Disability Employment Policy (ODEP) has accomplished most of DOL’s more 

recent work on behalf of people with disabilities. Created by Congress in 1998, ODEP replaced 

the PCEPD. ODEP’s mission is 

92 Id. 

52 
[t]o increase opportunities for adults and young people with disabilities by expanding 

access to training, education, employment supports, assistive technology, integrated 

employment, entrepreneurial development, and small business opportunities. It also 

builds partnerships with employers and state and local agencies to increase awareness of 

the benefits of hiring people with disabilities, and to facilitate the use of effective and 

lawful strategies for such hiring. 93 

In contrast to CRC’s $5.8 million budget for FY 2002, ODEP’s budget is $38.1 million. Judging 

by its funding decisions, DOL has apparently decided that ODEP, not CRC or even the Office of 

Federal Contract Compliance, has the primary responsibility for furthering the Department’s 

interests in the disability field. This is clear not only from its funding allocations, but from 

DOL’s decision to assign the lead to ODEP, and not CRC, on any revisions of the Section 504 

regulations. 

That said, DOL has developed thoughtful and potentially groundbreaking approaches for helping 

people with mental and physical disabilities be successful in finding, getting, and keeping jobs. 

DOL’s Olmstead Report reflects a clear understanding of the barriers to employment that exist 

and a commitment to spending the resources to address them. For example, the report discusses 

“customized employment,” tailored to each individual’s needs; an emphasis on integrated 

employment; and expanding the network of collaborations that are the foundation of DOL’s OneStop Employment Centers. The collaborations would include nonemployment entities that 

support the participation of many people with disabilities in the workforce, such as state 

Medicaid agencies and community mental health centers, ED’s Office of Special Education 

Programs, and relevant offices in Housing and Urban Development and the Department of 

Transportation.94 

The self-evaluation that DOL conducted as part of its Olmstead Report did, like HHS’s selfevaluation, help the agency identify ways to make its programs more accessible to people with 

93 Letter from Patrick Pizzella, Assistant Secretary for Administration and Management, Department of Labor, to Jeffrey Rosen, 

General Counsel/Director of Policy, National Council on Disability, April 19, 2002, p.4. 

94 U.S. Department of Labor, Report to the President on E.O. 13217, at pp. 6–10. 

53 
disabilities. For example, the report says that DOL’s Pension and Welfare Benefits 

Administration will expand its “education campaigns and...outreach...to address specific 

information and questions to assist Americans with disabilities” in such areas as health benefits, 

pensions, and other retirement benefits.95 

The DOL self-evaluation identifies plans to (a) help youth transition into the workforce, (b) work 

more closely with advocacy and community organizations, and (c) increase the employment of 

individuals with psychiatric disabilities, the supply of personal care assistants, and the use of 

technology in job finding and job retention.96 DOL follows the discussions of the barriers in each 

of these areas with specific proposals and work plans that suggest both a willingness to change 

the agency and excitement about increasing the employment of individuals with disabilities. 

Unlike that of HHS, DOL’s self-evaluation addresses its future plans with respect to Olmstead 

but does not effectively assess the agency’s own programs, their institutional biases, and the 

barriers they create for individuals with disabilities. But, if DOL Secretary Elaine Chao is serious 

about directing “each DOL agency to aggressively implement the policies and programs 

contained in this response to President Bush’s Executive Order,”97 she must also make effective 

demands on states and other recipients to adhere to the disability-related goals of the WIA and 

create a serious Section 504 enforcement program to accomplish the goals of the WIA. Whether 

or not that will happen is not clear. Whether or not the effort to accomplish the goals of the 

statute also reveals the need to generate a serious Section 504 enforcement program is even less 

clear. 

95 Id. at pp. 11–12.


96 Id., passim.


97 Id., “Self-Evaluation to Promote Community Living for People with Disabilities, II. Barriers and Efforts to Date,” p. 5.


54 
E. The Department of State 

In 1996, NCD raised serious concerns about the Department of State’s treatment of disability 

issues, both in substantive policies and in the administration of its programs. As NCD reported, 

The study found that the United States does not have a comprehensive foreign 

policy on disability. Those responsible for creating and implementing U.S. 

overseas policies and programs generally lack awareness of disability issues, 

cannot articulate our national policies with respect to people with disabilities, do 

not incorporate the interests of people with disabilities into U.S. foreign policy 

objectives, and do not see the importance of U.S. disability advances and 

achievements for people with disabilities in other countries.98 

Although it may not seem apparent to many, the Department of State (State) funds domestic as 

well as foreign programs, including research, training, and cultural exchanges. It therefore has an 

obligation to enforce Section 504.99 Nonetheless, State has yet to create a Section 504 

enforcement program. The obligation to create such a program has been placed in the agency’s 

Office of Civil Rights (OCR). However, OCR describes its responsibilities as enforcing 

nondiscrimination in employment within the agency, and OCR’s Director also serves as Director 

of Equal Employment Opportunity for the Department. The OCR Web page does not mention 

Section 504, the ADA, or any statutes other than those related to employment. 

When NCD asked the Department of State about its Section 504 enforcement program, State 

officials responded by saying that the agency relied on EEOC’s Management Directive 110100 for 

complaint investigation guidance. The only Section 504-related document that State provided to 

NCD, in addition to its 504 regulations, was the Policies and Procedures Directive on BarrierFree Accessibility and Barrier-Free Accessibility ACTION PLAN and POLICY 

98 National Council on Disability, Foreign Policy and Disability, August 1, 1996. Located at 

http://www.ncd.gov/newsroom/publications/foreign.html. 

99 The grant-funding statutes that State administers include Section 503 of the Foreign Service Act of 1980, 22 U.S.C. Sec. 3983; 

the Mutual Educational and Cultural Exchange Act of 1961, as amended, 22 U.S.C. Sec. 2451, et seq.; the Soviet-Eastern 

European Research and Training Act of 1983, as amended, 22 U.S.C. Sec. 4501, et seq.; and Section 703 of the Foreign Service 

Act of 1980, 22 U.S.C. Sec. 4022. 

100 http://www.eeoc.gov. 

55 
IMPLEMENTATION PLAN.101 When it submitted its answers to NCD in March 2001, State 

indicated that it was in the process of creating a Section 504 Web site. As of November 2002, the 

Web site did not exist. 

Though the State Department has compliance review procedures, it has never conducted a 

Section 504 compliance review of any recipient of the agency’s federal financial assistance. 

Instead, the agency uses the term “compliance review” to describe its analysis of a State 

Department building’s structural accessibility.102 

State receives no funding earmarked for Section 504 activities. In response to NCD’s questions, 

the Department said that it had never communicated with its recipients and consumers about 

Section 504 enforcement but that its officials “are now considering that question.”103 

Acknowledging the small size of the agency’s civil rights staff, the officer indicated that to obtain 

a meaningful program, State was likely 

to identify other federal agencies with larger programs and delegate our 

compliance and enforcement activities to those agencies. If none exist, the 

Department must conduct its own compliance reviews and enforcement 

activities....The Department has an MOU with the Department of Education 

regarding federal financial assistance to education institutions.104 

Since the Department does provide federal financial assistance through various grant programs, 

and since it has published Section 504 regulations, it is required to fulfill the mandates of its own 

regulations. The fact that it does not do so has a direct bearing on the lives of tens of thousands 

of people. Some of these are employees, students, and parents who are involved with the 

Department of State’s American-Sponsored Elementary and Secondary Schools Program. During 

101 The written answers said that the document was attached, but it wasn’t. It was not possible to find it on State’s Web site, 

http://www.state.gov. 

102 Although federal agencies are required to ensure nondiscrimination on the basis of disability in programs they conduct directly 

as well as those they fund, the former is beyond the scope of this report. 

103 Supra, fn. 101, at question 24. 

104 Supra, fn. 101, at questions 29 and 30. 

56 
the 2001–2002 academic year, the Department’s Office of Overseas Schools assisted 182 

schools, where 5,334 of the employees were Americans employed by the Department and 28,854 

of the children were children of State Department officials.105 While the Department might 

deliver information about civil rights generally and disability rights in particular, its Web page 

does not include any information about how an employee would ask for a reasonable 

accommodation or whether American-sponsored schools are accessible to students who use 

wheelchairs. 

State’s MOU with the Department of Education might be the reason that the Department of State 

has no Section 504 program. In 1966, State and HEW signed an MOU through which State 

delegated its Title VI (race, national origin, and color discrimination) responsibilities to HEW.106 

In 1980, the Departments of Education and Health and Human Services replaced HEW, which 

ceased to exist. Ten years later, in 1990, the Department of State redelegated its Title VI 

responsibilities and, for the first time, its Section 504 federally assisted responsibilities to the 

Department of Education.107 ED agreed to be responsible for all “pre-approval and post-approval 

reviews, complaint investigations, and actions to resolve noncompliance of the education 

institutions” that received grants from State.108 The MOU describes the roles that each agency 

agrees to play in the case of administrative and judicial enforcement, as well as the documents 

and support that the agencies agree to provide. 

Judging only by the Department of State’s responses to NCD about its Section 504 program, the 

Department has little understanding of and may have had little actual contact with the 

105 www.state.gov/m/a/os/1253.htm 

106 Since Congress had not yet enacted Section 504 (1973), Section IX (1973 – sex discrimination in education), the Education of 

the Handicapped Act (1975 – superseded by the IDEA, Individuals with Disabilities in Education Act), or the Age 

Discrimination and Age Discrimination in Employment Acts (1975), the State Department did not delegate any responsibilities 

under any of those laws in 1966. 

107 Nondiscrimination in federally assisted programs; Enforcement Coordination Agreements Between State and Justice 

Departments, May 23, 1990, 55 Fed. Reg. 21217, 1990 WL 339628. 

108 Id. 

57 
Department of Education in connection with the Section 504 MOU. If the only recipients of 

State’s grant funds are education institutions, there is good reason that it never developed a 

federally assisted Section 504 program. That was not, however, the Department’s answer to 

NCD’s questions. However the MOU works, though, State is ultimately responsible for ensuring 

compliance with Section 504. 

The Department does not indicate that it provides information on the disability rights laws to its 

employees or their family members, or any materials that explain the elements of a Section 504 

complaint or a description of how to file and to pursue a complaint, nor has it indicated that it 

converts any of its printed materials into Braille or tape. State has not allocated funds, staff, or 

other resources to accomplish the varied tasks that are the responsibility of federal grant agencies. 

F. The Department of Justice 

1. Federally Funded Justice Programs 

The Department of Justice (DOJ) is best known as an enforcement agency. It also administers 

programs that award grants to courts, police departments, jails and prisons, and other entities in 

state and local justice systems. The Bureau of Justice Assistance (BJA) in the Office of Justice 

Programs (OJP) contributes to the funding of most, if not all, state and local agencies and 

institutions involved with law enforcement and the administration of justice. DOJ administers 

separate funds for state and local juvenile justice programs through the Office of Juvenile Justice 

and Delinquency Prevention (OJJDP). Both BJA and OJDDP administer a combination of block 

grant funds, discretionary funds, and formula grants.109 

109 See OJJDP Fact Sheet, April 1998 #76, www.ncjrs.org/ojjhome.htm, and Bureau of Justice Assistance Fact Sheet, April 2000, 

www.ojp.usdoj.gov/BJA. 

58 
In 1995 the Assistant Attorney General for Civil Rights created the Disability Rights Section 

(DRS)110 to enforce and to provide technical assistance throughout the Federal Government on all 

Section 504 and ADA matters.111 Responsibility for enforcing the Section 504 obligations of DOJ 

funding recipients was also transferred to DRS. 

DRS has enforced Section 504 only on a case-by-case approach, either on the basis of an 

individual complaint or as a “pattern and practice” case. It has not conditioned or threatened to 

terminate the funds of any of the BJA or OJP grant recipients because of Section 504 violations, 

although it has done so for the violation of non–civil rights requirements. For example, BJA has 

withheld funds for the construction of jails and prisons from states that did not establish a 

registry of “sexually violent predators.”112 

Many of the cases filed by DRS have involved state and local corrections agencies, requiring 

specific jails to become wheelchair accessible, police departments to hire sign language 

interpreters, and courthouses to provide materials to jurors on tape and in Braille.113 As important 

as these victories have been, each has resulted in the correction of a single Section 504 violation 

by a single department of the entity receiving DOJ funds, rather than broad-based systemic 

reform by ensuring compliance throughout the entity’s programs. Neither DRS nor OCR has ever 

attempted to withhold federal funds from grantees that violated Section 504. If DOJ does not 

110 The Department of Justice’s Office for Civil Rights does not have sufficient resources to investigate complaints alleging a 

pattern and practice of discrimination on the basis of disability; complaints alleging employment discrimination; complaints 

involving prisoners with HIV and AIDS; or complaints raising complex legal issues under Title II of the Americans with 

Disabilities Act and Section 504. These responsibilities were transferred first to the Office of Coordination and Review and then, 

in 1995, to the Disability Rights Section. Ninth Report to the President on Executive Order 12250, 10-1-94 – 9-30-96, 

September 28, 1998, at p. 30. 

111 Ninth report to the President on Executive Order 12250, 10/1/94 – 9/30/96, September 28, 1998, at p. 19. Apparently, DOJ 

does not keep separate Section 504 enforcement statistics. According to the Civil Rights Division’s 1996–1997 Report to the 

Rehabilitative Services Administration (RSA) (Department of Education), the Civil Rights Division (CRD) says that it does not 

“directly implement Section 504” but that most federal grantees are subject to Title II or III of the ADA, and therefore DRS’s 

“development of the legal requirements under the ADA will directly affect the nondiscrimination obligations of these entities” (p. 

104). The Rehabilitation Services Administration apparently agrees, as it ceased reporting numbers of Section 504 enforcement 

actions in 1998 and did not request submissions from DOJ for any reports after the 1997 entry (e-mail to Bonnie Milstein, one of 

the NCD report authors, from Joseph F. Talian, CRD, RSA, 8-28-02). 

112 Bureau of Justice Fact Sheet, supra at n. 50, at pp. 3,4. 

113 Ninth Report to the President on Executive Order 12250, 10/1/94 – 9/30/96, September 28, 1998, at p. 30. 

59 
have the political authority to threaten to withhold all of a state’s criminal justice funds until the 

state embarks on a plan to provide sign language interpreters in all its jails and prisons, DOJ will 

continue to have difficulty persuading the civil rights offices of other federal agencies to enforce 

their Section 504 regulations as forcefully and effectively as possible. 

In light of DOJ’s role as the nation’s lead law enforcement agency, it should provide a model of 

effective civil rights enforcement. Where DRS can demonstrate that the proven Section 504 

violations affect more than a single courthouse, prison, jail, or probation department, DOJ could 

greatly expand the reach of its victories by requiring states to address systemic violations of 

Section 504. One of the reasons Title VI and Section 504 were adopted was to replace “litigation 

and its arduous route” with administrative enforcement.114 DOJ has yet to accomplish this goal in 

its enforcement of Section 504. 

2. Coordinating Federal Civil Rights Enforcement: Executive Order 12250 

In addition to enforcing Section 504 among its own grantees, DOJ is also responsible, under 

Executive Order 12250, for coordinating disability rights enforcement throughout the Federal 

Government. DOJ has had the responsibility of enforcing Executive Order 12250 to ensure that 

federal agencies follow a consistent approach in their enforcement of civil rights laws. Until 

1995, DOJ’s Office of Coordination and Review provided this coordination on all such laws, 

including Section 504. Its primary focus during the 1990s was on the development and review of 

regulations, since all civil rights regulations require DOJ approval before publication. It also 

worked on a prototype Section 504 regulation that incorporated the changes made in the law 

through the Civil Rights Restoration Act and various amendments to the Rehabilitation Act; 

worked on Architectural Barriers Act matters; collected agency civil rights workload and 

performance data; reviewed civil rights implementation plans; and provided technical assistance 

to the agencies, including the DOJ litigation and appeal sections.115 

114 U.S. Commission on Civil Rights, at p. 25. See fn. 28, 1996 Report. 

115 Id. passim. 

60 
While the Office of Coordination and Review provided valuable assistance to the other federal 

agencies in each of these areas, it did not coordinate the enforcement of Section 504 throughout 

the Federal Government, as required under Section 507 of the Rehabilitation Act. Congress 

amended Section 507 in 1993 by renaming the Interagency Coordinating Council the Interagency 

Disability Coordination Council (IDCC). Congress also added the Departments of Transportation 

and Housing and Urban Development to the Council and expanded its—and 

DOJ’s—responsibilities “to include monitoring and coordinating all efforts of the federal 

agencies concerning the rights of individuals with disabilities (e.g., the ADA as well as Title V of 

the Rehabilitation Act).”116 Apart from notifying the member agencies of these changes and 

asking them to designate representatives, the Department did not take any other action for the 

next nine years. In fact, DOJ has yet to convene its first meeting of the IDCC. 

It is clear from its Executive Order 12250 Reports to the President that DOJ’s DRS has 

performed its oversight responsibilities outside the IDCC. Without the IDCC meetings, DOJ 

could not discuss and coordinate government-wide disability rights enforcement issues 

simultaneously with assistant secretaries of the IDCC’s member agencies. That was the goal of 

Section 507, and it was not met. Further, by not convening the meetings, DOJ has stymied the 

role that Section 507 envisioned for NCD: to provide advice, recommendations, and suggestions 

for agency studies. The fact that DRS actively meets with agencies about their technical 

assistance activities but does not convene meetings on enforcement matters, through the IDCC or 

otherwise, reflects the degree to which the Federal Government chooses to emphasize 

collaboration and education over enforcement. 

DOJ does a better job coordinating government-wide technical assistance on the ADA. DOJ’s 

DRS chairs an ADA Technical Assistance Coordinating Committee of 17 agencies. The 

Committee discusses issues of common interest and exchanges information on the agencies’ 

technical assistance activities and initiatives.117 In addition, DRS has worked with federal 

116 Id., at p. 13. 

117 Id., at p. 41. 

61 
agencies on an individual basis to ensure that each agency’s policies and regulations conformed 

to those of DOJ. For example, DRS issued policy instruction in 1995 to the Department of 

Agriculture (USDA) regarding USDA’s guide to feeding children with special health care needs 

in schools.118 

With more funding than any federal civil rights office has ever received from Congress, and with 

a dedicated and very experienced staff, DRS produced the ADA regulations and guidance 

manuals on Title II and Title III in a remarkably short time. It developed and distributed close to 

two million ADA documents to the public, fielded thousands of phone calls through its ADA 

hotline, worked with the IRS to notify six million businesses about the ADA in an IRS mailing, 

organized public hearings, distributed millions of dollars in grant funds for education projects, 

and conceived and implemented other outstanding outreach and technical assistance activities, 

shortly after the passage of the ADA.119 

Executive Order 12250 requires each federal agency to submit to DOJ Annual Civil Rights 

Implementation Reports that describe their efforts to enforce the civil rights obligations of their 

grantees. The DRS and the Office of Coordination and Review have not received complete 

reports from the agencies that are the subject of this report, nor are they able to provide a 

complete set of agency reports they did receive. The Annual Civil Rights Implementation 

Reports that are available are notable for their dissimilarities. Some are testaments to the work 

that has been done by the agency, and, in some instances, the only place where detailed 

complaint and compliance data are reported. Other agency reports can only be described as 

minimal and perfunctory, and some reports contain data that are inconsistent with data found 

elsewhere, such as budget and staffing figures. 

There is little evidence that DOJ has spent time reviewing the reports or the substantive work 

they reflect, even to the extent of asking for clarification or additional information. The agency 

118 Id., at p. 41.


119 Department of Justice Report to the President pursuant to E.O. 12250, January 19, 1993, at p. 10.


62 
reports provide a telling profile of the work that has or has not been done by the agency during 

the previous year. Examining the reports for progress made, for deficiencies, for best practices, or 

for areas where DOJ could usefully provide coordination or technical assistance and providing 

feedback on these issues to the agencies would be a useful function for DOJ to perform. DOJ 

could also provide a summary of some of the best work being done by the enforcing agencies, 

provide updates on court decisions interpreting Section 504, and help agencies that lag behind 

others in enforcement, compliance, training, or technical assistance abilities. 

In addition, DOJ could provide other helpful coordination services. Its manual about enforcement 

activities under Title VI of the 1964 Civil Rights Act has been a useful resource for many 

agencies.120 It should develop additional materials specific to Section 504 compliance. DOJ could 

also develop core training about Section 504 compliance basic skills, such as investigator 

strategies, conduct of compliance reviews, and so forth, to avoid having each agency replicate the 

same kind of training. Agencies could then use their limited resources to develop advanced 

training on enforcement and compliance activities specific to their programs. 

3. The DOJ Response to Olmstead and E.O. 13217 

In response to the Olmstead Executive Order, DOJ conducted an effective review of its own 

grant, litigation, and administrative programs to determine whether they promoted or impeded 

the goals of the ADA. DOJ also identified new litigation and education plans to respond to 

deinstitutionalization and integration barriers that it discovered from members of the public, 

other agencies, and their own litigation. 

120 DOJ makes available its Title VI and Title IX legal manuals on line at www.usdoj.gov/crt/cor/coord/invmanual.htm, as well as


information about identification of sources of federal financial assistance. Similar documents for Section 504 compliance are not


available. A manual for enforcement of Title VI in block grant programs can be found at


www.usdoj.gov/crt/cor/12250.htm. Both documents state that they are applicable to all the civil rights laws that cover recipients


of federal funds, including Section 504.


63 
For example, DOJ stated that “a lack of awareness of the ADA’s requirements contributes to the 

problem of unnecessary institutionalization.”121 As a result, DOJ proposed new technical 

assistance actions that “address the types of community services that are critical to sustaining 

persons with disabilities in community-based settings.

122 DOJ’s self-evaluation also identified 

barriers that limit the technical assistance and enforcement capacities of its Civil Rights of 

Institutionalized Persons Act office, its Housing and Civil Enforcement office, and its 

Corrections and Community Relations programs. While the Olmstead Report also listed the 

actions that the Department proposed to take to address these barriers, there were few specifics, 

no numbers, and no timetables. Nor did the report include adequate discussion about the 

Department’s plans to employ its coordination authority and persuade other federal agencies to 

expand their civil rights programs beyond technical assistance activities. 

If the only consequence of violating Section 504 is receipt of technical assistance to help an 

entity obey the law, there is little incentive in bothering with voluntary compliance, or even 

learning what the law requires. Congress understood that funding termination was a powerful 

tool to ensure compliance. Unfortunately, that is a tactic that DOJ and the other agencies 

discussed in this report have not successfully adopted. 

121 U. S. Department of Justice, Self-Evaluation to Promote Community Living for People with Disabilities, Report on Executive 

Order 13217, www.hhs.gov/newfreedom/final/dojfinal.html, at p.16. 

122 Letter from Ralph Boyd, Jr., Assistant Attorney General, Civil Rights Division, to Jeffrey Rosen, NCD General Counsel and 

Director of Policy, October 2, 2002, p. 2, commenting on the draft of this report. 

64 
CHAPTER III


ADMINISTRATIVE ENFORCEMENT OF SECTION 504


Each of the five federal agencies examined in this Report is charged with the responsibility of 

enforcing Section 504. Each has adopted federal regulations describing the obligations of 

recipients of federal financial assistance, prohibited practices, and agency processes for enforcing 

the law.123 

The most common form of Section 504 enforcement is the investigation of complaints filed with 

the agency by individuals who claim to have been discriminated against by one or more 

recipients of federal financial assistance. Enforcement of complaints requires an agency to 

provide staff support for an intake and prospective complainant counseling function, for 

information-gathering about the recipient or recipients involved in the complaint, and for the 

conduct of investigations, including substantial travel costs associated with on-site 

investigations. Staff must also identify possible discrimination, conduct data collection and 

analysis, and research judicial and administrative decisions that outline the law’s application in 

particular situations. In addition, the investigative function requires an ability to identify issues 

and gather information that is relevant to resolving complaints. 

When the investigation results in the identification of civil rights violations, staff typically 

develop proposals that address statutory or regulatory deficiencies and negotiate resolutions. 

Where necessary, Section 504 enforcement can include the imposition of sanctions or referrals to 

DOJ for litigation. Those referrals typically require the preparation of detailed written findings of 

a violation, provide an opportunity for a recipient or recipients to respond, and, in the absence of 

an agreed-upon resolution of the complaint, require a final agency determination that the law has 

been violated. 

123 To reiterate, a review and evaluation of the agencies’ federally conducted activities was beyond the scope of this snapshot 

report on Section 504 activities. 

65 
Agencies that enforce Section 504 may also conduct agency-initiated reviews of the performance 

of a recipient. In contrast to complaint investigations, which are generated by external 

complaints, compliance reviews are typically initiated by the agency. In some instances, these 

reviews are characterized as “preventive” reviews and are described by the agency as a form of 

technical assistance. In other instances, the reviews are aimed at enforcement and may be agencygenerated, entail a broad look at a recipient’s conduct based on individual complaints, or be 

based on reports that describe problems that do not fit the usual complaint parameters.124 

The key resources that a civil rights office needs to enforce any civil rights law are enough staff 

and resources to support sometimes complex and lengthy investigations. In addition, there should 

be sufficient resources to support the more discretionary functions of compliance reviews and 

education and outreach. If there are insufficient funds for enforcement, priority is often given to 

complaints, leaving little or no funds for compliance reviews, which are a discretionary agency 

function. If enforcement funding is inadequate, there may not be enough money available to train 

and manage staff, conduct efficient investigations, or educate recipients and the public about the 

law. 

This chapter will review the performance of the agencies that are the subject of this report in the 

following key areas: complaint investigation and resolution, conduct of compliance reviews, 

agency information on enforcement and compliance issues, and agency resources for 

enforcement and compliance.125 NCD requested Section 504-specific data from all the agencies 

about complaints and compliance reviews. Among the data requested were the numbers of 

complaints filed and compliance reviews initiated, the outcomes of these enforcement-related 

activities, details of settlements, and other information about the agency’s enforcement activities, 

124 Some agencies also conduct pre-grant award or other reviews of funding applications for civil rights compliance. Although 

this can be a significant workload responsibility within an individual agency, it amounts to internal, not external, enforcement of 

civil rights obligations, and for that reason it is not examined in detail in this report. 

125 Each of the agencies evaluated in this report was asked to provide detailed information about its complaint processing and 

compliance review information, both in general and with respect to Section 504 enforcement activity. In a number of cases, this 

information was not provided. Where the information was found in other published documents, such as budget submissions or 

agency reports to Congress or to the Department of Justice, it has been included. 

66 
including staffing and budget numbers. When this information was not provided by the agencies, 

publicly available sources, including budget submissions, annual reports to Congress, and agency 

Web sites, were reviewed and relevant information from those sources, if available, was 

incorporated into this report. Only the Department of Education appeared to have a centralized 

database capable of generating detailed information on subjects such as the number or percentage 

of cases in which the agency found violations and negotiated settlements, complaints were 

withdrawn, or the agency took other action. The Department of Health and Human Services 

(HHS) states that it is developing such a system. 

A. Complaint Investigations 

1. The Department of Health and Human Services Office of Civil Rights 

In FY 2001, HHS awarded over $44 billion to 230,000 recipients.126 In the past 10 years, HHS’s 

Office of Civil Rights (OCR) has conducted, on average, slightly more than 2,000 complaint 

investigations annually regarding all civil rights obligations of grantees, including Section 504. 

The overall agency workload is an important consideration in evaluating agency efforts, as 

competing priorities may affect an agency’s ability to enforce Section 504. 

Complaints filed with HHS dipped significantly during the mid-1990s, with only 1,548 

complaints filed in FY 1998, down from 2,222 in FY 1994. The number of complaints filed has 

risen steadily since FY 1999, with a projected 2,253 complaints anticipated during FY 2003. 

126 HHS Annual Implementation Report to the United States Department of Justice pursuant to Executive Order 12550, FY 2001. 

67 
Complaints Filed with HHS Office of Civil Rights 

Fiscal Year Number of Complaints Filed 

1994 2,222 

1995 2,094 

1996 1,827 

1997 1,741 

1998 1,548 

1999 1,950 

2000 2,185 

2001 2,148 

2002 2,200 (estimated) 

2003 2,253 (estimated) 

Source: FY 1997, 1998, 1999, 2000, 2001, 2002, 2003 Budget Submissions to Congress 

HHS provided data relating to its handling of Section 504 complaints for all but two years since 

1994. The number of Section 504 complaints filed dropped during fiscal years 1998 and 1999; it 

has since slightly rebounded but has not returned to the high of 1994. In every year reported, 

HHS closed more Section 504 complaints than it opened. 

68 
HHS Section 504 Complaints 

Fiscal Year Number of Complaints Filed 

1994 689 

1995 Not Provided 

1996 Not Provided 

1997 380 

1998 295 

1999 311 

2000 409 

2001 404 

2002 363 

2003 Not Provided 

Source: Information provided to NCD, 2002 

Number of Complaints Resolved 

796


Not Provided


Not Provided


483


412


359


362


483


416


Not Provided


The rate at which agencies close complaints is an indicator of both efficiency and resources. Case 

closures ideally will roughly equal or exceed the number of complaints filed to prevent the 

development of a backlog of cases that remain open and to ensure that complaints are promptly 

investigated. Similar to the pattern seen in its complaint filings, the HHS numbers reflect a dip in 

its FY 1998 complaint closure rate. The number of complaints closed annually since FY 1998 

has increased. 

69 
Complaints Resolved by HHS Office of Civil Rights 

Fiscal Year Number of Complaints Resolved 

1994 2,231 

1995 2,358 

1996 1,996 

1997 1,901 

1998 1,644 

1999 1,758 

2000 1,749 

2001 2,138 

2002 2,320 (estimated) 

2003 2,291 (estimated) 

Source: FY 1997, 1998, 1999, 2000, 2001, 2002, 2003 Budget Submissions to Congress 

HHS projects that its OCR will have a backlog of 983 cases at the end of FY 2003. That number 

is 30 percent of the total number of complaints that OCR anticipates will be its annual workload 

in FY 2003 (3,224 cases). 

2. The Department of Education’s Office for Civil Rights 

In FY 2001, the Department of Education (ED) provided federal financial assistance to more than 

25,000 recipients, including approximately 15,000 local education agencies, 10,000 postsecondary institutions, 57 state education agencies, and 82 state rehabilitation agencies and their 

subrecipients. Federal financial assistance to these recipients amounted to over $37 billion.127 

ED’s OCR received almost 38,000 complaints under all its authorities during the period 1994-

2000, or an average of 5,244 complaints annually. As with HHS, the number of complaints filed 

127 The Department of Education’s Annual Implementation Report to the Department of Justice pursuant to Executive Order 

12550, FY 2000. 

70 
with ED dropped in the late 1990s, to 4,846 complaints filed in FY 1998 in comparison with 

5,229 in FY 1997 and 6,628 in FY 1999. ED has filed and investigated many more complaints 

than HHS, despite the fact that HHS disperses more funding and has more recipients. 

Complaints Filed with Department of Education 

Fiscal Year Number of Complaints Filed 

1994 5,302 

1995 4,981 

1996 4,828 

1997 5,229 

1998 4,846 

1999 6,628 

2000 4,897 

2001 Not Provided* 

2002 Not Provided 

*The number of complaints filed with the Department of Education in FY 2001 and 2002 

has not been found in any published documents. 

Source: Department of Education OCR’s 2000 budget justification 

ED was the only agency examined in this report to have detailed information readily available to 

the general public about its work on disability complaints. It publishes annually a breakdown of 

complaints by type, with disability complaints routinely comprising over 50 percent of its 

complaint workload. ED’s Section 504 complaint filings, unlike ED’s overall complaint 

numbers, did not drop in FY 1998, although overall its complaint filings during the period 

1996–1998 were down from 1995 levels. 

71 
Department of Education Section 504 Complaints 

Fiscal Year Number of Complaints Filed Number of Complaints Resolved 

1994 Not Provided 

1995 3,002 

1996 2,533 

1997 2,836 

1998 2,949 

1999 4,245 

2000 2,693 

2001 Not Provided 

2002 Not Provided 

Not Provided


3,428


2,996


3,032


2,901


3,296


4,208


Not Provided 


Not Provided


Source: Office for Civil Rights Annual Report to Congress, FY 1995–2000, available online at 

www.ed.gov/offices/OCR/congress.html, data sheet dated 12/12/2000 provided by Department of Education to NCD 

ED reports a high rate of complaint closures. In four of the six years for which data were 

available, it reported closing more Section 504 complaints in a fiscal year than were filed, thus 

making inroads into its case backlog. In the chart above, ED closed more Section 504 complaints 

than were filed in fiscal years 1995, 1996, 1997, and 2000. In addition, ED has reported for 

several years that it routinely closes nearly 80 percent of its complaints within 180 days from the 

date on which they are filed—an unusually efficient record for a federal agency. 

72 
Number of Complaints Resolved by ED 

Fiscal Year Number of Complaints Resolved 

1994 5,751 

1995 5,559 

1996 4,886 

1997 4,900 

1998 4,753 

1999 5,369 

2000 6,364 

2001 Not Provided 

2002 Not Provided 

Source: FY 1995–2000 OCR Annual Reports to Congress 

3. The Department of Labor’s Civil Rights Center 

In FY 2001, the Department of Labor (DOL) reported that it provided 1,036 grantees with a total 

of $40 billion of financial assistance.128 

Unlike the Departments of Education and Health and Human Services, DOL has two civil rights 

offices. DOL’s Office of Federal Contract Compliance Programs (OFCCP) is the better known of 

the two offices. It enforces Section 503 of the 1973 Rehabilitation Act, which bars federal 

contractors from discriminating on the basis of disability. The Civil Rights Center (CRC) 

enforces Section 504 against recipients of DOL’s grant funds. As noted in the previous chapter, 

OFCCP has 11 times the staff and resources of CRC. It also has more direct access to the 

Secretary. While a deputy assistant secretary heads OFCCP, a director, who reports to a deputy 

assistant secretary, heads CRC. From internal and external appearances, OFCCP has greater 

credibility and more importance in DOL than does its Section 504 office, CRC. 

Over the past 10 years, CRC has handled, on average, about 1,000 complaints annually against 

grant recipients alleging discrimination on the basis of race, color, national origin, religion, sex, 

128 DOL Annual Implementation Report submitted to the Department of Justice pursuant to Executive Order 12550, FY 2001. 

73 
and/or disability. The number of complaints filed has dropped every year since 1997. DOL did 

not produce data for the years preceding 1997. 

Number of Complaints Filed with DOL under All Civil Rights Laws 

Fiscal Year Number of Complaints Filed 

1994 Not Provided 

1995 Not Provided 

1996 Not Provided 

1997 1,224 

1998 1,232 

1999 984 

2000 818 

2001 766 

2002 Not Provided 

2003 Not Provided* 

*Information for FY 1994-1996 and 2002-2003 has not been found in any published document. 

Source: Information provided to NCD, 2001 

The CRC devotes most of its staff time and resources to fulfilling its role as DOL’s equal 

employment opportunity office. With its remaining resources, it enforces Section 504, the ADA, 

Title VI, Title IX, and the other civil rights laws that apply to recipients of the Department’s 

grants. This chart reflects the numbers of complaints that were filed with DOL under both 

Section 504 and Title II. 

74 
Complaints Filed with DOL under Section 504 and Title II 

Fiscal Year Number of Section 504/ADA Complaints Filed 

1994 Not Provided 

1995 Not Provided 

1996 Not Provided 

1997 40 

1998 31 

1999 36 

2000 25 

2001 33 

2002 Not Provided 

2003 Not Provided 

Source: Annual Implementation Plan filed with the United States DOJ pursuant to Executive Order 

12550, FY 1997–2000 

Information about the number of complaints and the number of Section 504/Title II complaints 

resolved during the past decade by DOL, and how they have been resolved, was not available 

from public sources. 

4. The Department of State’s Office of Equal Opportunity and Civil Rights 

In FY 2000, the Department of State reported that it had 313 recipients of federal financial 

assistance and provided federal financial assistance amounting to over $139 million.129 

Until October 1, 1999, the U.S. Information Agency (USIA) conducted enforcement of civil 

rights laws involving recipients of funding from the Department of State. At that time, civil 

rights enforcement responsibilities for recipients were assigned to the Office of Equal 

Opportunity and Civil Rights, which reported to the deputy secretary of state. These recipients 

129 Department of State Annual Implementation Report submitted to the Department of Justice pursuant to Executive Order 

12550, FY 2000. 

75 
did not include educational institutions, whose compliance with the civil rights laws had been 

delegated to the Department of Education, as discussed in Chapter 2. 

The Department of State has reported no federally assisted civil rights enforcement activity over 

the 10 years covered by this report. It effectively has no Section 504 enforcement program. The 

agency reports that it has had no formal Section 504 complaints filed against recipients during 

the period covered by this report. The lack of complaints likely reflects the agency’s lack of 

public education and outreach about the rights of people with disabilities under Section 504 

rather than a lack of discrimination against people with disabilities. 

Complaints Filed with the Department of State 

Fiscal Year Complaints Filed 

1994 0 

1995 0 

1996 0 

1997 0 

1998 0 

1999 0 

2000 0 

2001 0 

2002 0 

Source: Annual Implementation Plans filed with the United States DOJ 

pursuant to Executive Order 12550 

B. Compliance Reviews 

Agencies enforcing Section 504 have the authority to conduct proactive reviews of recipients’ 

compliance, or noncompliance, with Section 504. This authority is discretionary in the sense that 

it is not driven by complaints. Compliance reviews permit a comprehensive examination of the 

activities of a particular recipient for compliance with the law. A compliance review may be used 

76 
to identify hitherto undisclosed compliance issues, can provide an early alert about emerging 

problems, and can be used as a vehicle for training or technical assistance. 

It should not be overlooked, however, that compliance reviews may be, and sometimes are, used 

as an effective enforcement tool, carrying with them the possibility of a wide variety of sanctions, 

including suspension or termination of funding. Compliance reviews are an effective way to 

conduct systemic enforcement of the law without an individual complaint. Especially when 

victims of discrimination do not, or cannot, speak for themselves, compliance reviews help 

ensure that congressional intentions for civil rights laws are met. 

The Department of Health and Human Services has initiated, on average, 210 compliance 

reviews annually during each of the past 10 years. 

HHS Compliance Reviews Initiated 

Fiscal Year Total Compliance Reviews 

1994 203 

1995 122 

1996 181 

1997 328 

1998 301 

1999 287 

2000 317 

2001 137 

2002 201 (projected) 

2003 208 (projected) 

Section 504 Compliance Reviews 

Not Provided 

Not Provided 

Not Provided 

Not Provided 

Not Provided 

Not Provided 

Not Provided 

Not Provided 

Not Provided* 

Not Provided 

*The number of Section 504 compliance reviews conducted by HHS by fiscal year has not been identified in 

any published documents. 

Source: HHS Annual Budget Submissions to Congress, 1997, 1998, 1999, 2000, 2001, 2002, and 2003 

77 
The Department of Education has conducted, during the same 10-year period, an average of 100 

reviews annually under all the civil rights laws that it enforces, including Section 504. An annual 

average of only 11 of the compliance reviews have addressed Section 504 issues. The number of 

Section 504 compliance reviews is tiny in comparison with the number of entities that receive 

financial assistance from ED. As described earlier in the report, ED has embarked on other 

strategies that may have resulted in fewer compliance reviews in recent years, including 

compliance monitoring and broadening the scope of complaint investigations. 

Department of Education Compliance Reviews Initiated 

Fiscal Year Total Compliance Reviews Section 504 Compliance Reviews 

1994 144


1995 96


1996 146


1997 152


1998 102


1999 76


2000 47


2001 Not Provided 


2002 Not Provided 


2003 Not Provided 


Not Provided 


5


13


11


11


15


11


Not Provided 


Not Provided*


Not Provided


*The number of Section 504 compliance reviews initiated by Education by fiscal year has not been identified 

in any published documents. 

Source: Annual Implementation Report to DOJ pursuant to Executive Order 12550, FY 1994–2000 

Very few data are available about compliance activity at the Department of Labor. The data that 

were reported indicate minimal compliance activity, given DOL’s administration of over $40 

billion annually. 

78 
DOL Compliance Reviews Initiated 

Fiscal Year Total Compliance Reviews 

1994 Not Provided 

1995 Not Provided 

1996 Not Provided 

1997 Not Provided 

1998 Not Provided 

1999 0 

2000 0 

2001 Not Provided 

2002 Not Provided 

2003 Not Provided 

Section 504 Compliance Reviews 

Not Provided 


Not Provided 


Not Provided 


2


84


0


0


Not Provided 


Not Provided 


Not Provided 


Source: Annual Implementation Plan Submitted to DOJ pursuant to Executive Order 12550, FY 1998–2000 

The Department of State reports that it incorporates compliance reviews into inspections 

conducted by the Office of the Inspector General and field visits of Office of Building Operations 

staff. However, it is not clear that these “compliance reviews” are consistent with either the 

nature or the scope of the typical Section 504 compliance review conducted of recipients by other 

federal agencies. They are reviews of the agency’s own buildings to determine whether they 

comply with the accessibility standards of the Architectural Barriers Act, which is an aspect of a 

federal agency’s assessment of its own performance rather than of the performance of recipients. 

79 
State Department Compliance Reviews Initiated 

Fiscal Year Total Compliance Reviews 

1994 Not provided 

1995 Not provided 

1996 Not provided 

1997 Not provided 

1998 Not provided 

1999 Not provided 

2000 Not provided 

2001 22 

2002 46 

2003 30 (projected)


Source: Agency information provided to Robert Ardinger, July 2001


C. Data Collection Deficiencies 

Section 504 Compliance Reviews 

Not provided


Not provided


Not provided


Not provided


Not provided


Not provided


Not provided


22


46


30 (projected)


None of the agencies have developed information systems that comprehensively collect, 

aggregate, or summarize detailed information about complaints or compliance reviews and their 

outcomes. This information is important both to the public and to consumers and recipients. 

Among the information that should be readily available are the numbers of complaints and 

compliance reviews initiated, completed, and remaining for every fiscal year, which the agencies 

discuss in congressional budget submissions but which are not readily available publicly from 

any agency other than ED. Additionally, data routinely compiled should include the length of 

investigations and reviews, the issues or claims reviewed and findings on each, detailed 

information about findings of compliance and noncompliance made, and similarly detailed 

information about the ways complaints and compliance reviews are resolved. The Department of 

80 
Education was the only agency that provided detailed information about the length of time its 

investigations and reviews took. 

These data are important in assessing trends and themes in Section 504 issues, identifying the 

workload and the outcomes of cases, and assessing the quality and quantity of work done. The 

information is important to agencies for internal management purposes, but it is also critically 

important to consumers, advocates, and recipients, who rightfully expect to be informed about 

the types of enforcement activities being conducted and their outcomes. DOJ could provide 

useful assistance in developing technology that can be used by all the agencies.130 

D. Agency Guidance on Section 504 Enforcement Issues 

Civil rights agencies examined in this report offer a varying degree of information to the public 

about their work. This report reviews the information available through agency Web sites, 

because Web sites now contain much of the information that is available in written form from 

federal agencies as well as some information that is available only on the Internet. Agencies 

generally have written information that is available through local and regional offices, including 

information about how to file complaints. The agencies’ annual reports to Congress are also 

available publicly. Some of the agency Web sites were user-friendly, while others proved 

difficult to navigate. 

1. Department of Health and Human Services Office for Civil Rights 

The Department of Health and Human Services OCR has a wide array of technical assistance 

materials available online. The HHS Web site contains references to a large number of technical 

assistance materials (easily accessed through a drop-down menu that includes “civil rights” and 

“disabilities”), including complaint filing information, fact sheets, regulations, and case 

130 NCD has identified similar concerns about the data collection systems for Section 504 information at the Department of 

Housing and Urban Development. “Reconstructing Fair Housing,” November 2001, pp. 123–136, available at 

www.ncd.gov/newsroom/publications/fairhousing.html. 

81 
summaries, at www.hhs.gov/ocr/generalinfo.html and www.hhs.gov/ocr/selectacts. Notably, the 

case summaries include examples of HHS enforcement actions and summaries of several 

resolutions of Section 504 complaints. The civil rights resource page contains useful links to 

other federal enforcement agencies. In addition, the HHS Web site offers information on agency 

programs that serve people with disabilities and, in particular, on agency efforts to implement the 

New Freedom Initiative131 advanced by the Bush administration as a response to the Olmstead 

decision discussed in the previous chapter (www.hhs.gov/news/press/2002pres/disable.html). 

2. Department of Education Office for Civil Rights 

The Department of Education’s Web site has a number of technical assistance materials, 

including a short list of frequently asked questions, case decisions, and a useful description of 

OCR’s complaint investigation process, at www.ed.gov/offices/OCR/disabilityresources.html. 

ED also has technical assistance materials directed at recipients, including guidance on 

developing a nondiscrimination policy and developing effective grievance policies and other 

similar resources (www.ed.gov/offices/OCR/prevention.html). ED provides an online complaint 

form for electronic filing, but it was difficult to identify a mailing address for submission of 

paper complaints. 

ED uses a case resolution manual to guide its investigations. Available on its Web site at 

www.ed.gov/offices/OCR/docs/ocrcrm.html, the manual is a useful guide for parties to a 

complaint as well as the public about investigation activities. In general, however, ED’s material 

is less detailed than the material provided by HHS. 

131 The New Freedom Initiative is a comprehensive set of proposals to fulfill America’s promise to the 54 million Americans with 

disabilities. The initiative is intended to help Americans with disabilities increase access to innovative new technologies that help 

them participate fully in society, expand their educational opportunities, better integrate them into the workforce, and promote 

their full access to community life. For more information, go to www.whitehouse.gov/news/releases/20010201-3.html. 

82 
3. Department of Labor Civil Rights Center 

Although DOL’s Web site contains an extremely helpful list of reasonable accommodation 

technical assistance guidance at www.dol.gov/odep/pubs/publicat.htm, this guidance is 

developed in the employment context as part of DOL’s materials on compliance with Section 

503. In contrast, DOL has limited materials about compliance with Section 504. There are no 

Section 504 links readily available from DOL’s home page. There was no readily available 

information about filing Section 504 complaints, the investigation process, or the obligations of 

recipients. DOL’s Section 504 regulations are available online at 

www.dol.gov/dol/allcfr/OASAM/Title_29/Part_32/toc.htm. 

4. Department of State 

The Department of State’s home page has no evident link relating to civil rights obligations. A 

search for “Section 504,” “disability,” “complaint,” and “civil rights” yielded no useful results in 

the first 50 subjects identified from each search. Searches did not provide access to information 

about filing complaints against recipients, about disability rights, or about the obligations of 

recipients to comply with Section 504, or about the Department’s delegation of its Section 504 

enforcement responsibilities to the Department of Education. 

E. Agency Resources for Section 504 Compliance 

Two key resources are required for an effective civil rights enforcement program: adequate 

staffing and adequate funds to support enforcement. Civil rights compliance is a labor-intensive 

effort. Without sufficient staff, investigations and compliance reviews may be delayed or 

deferred. Financial resources are required to support investigations, pay for travel, provide 

training and technical assistance materials, underwrite new initiatives, and provide expertise that 

is not otherwise available to the agency. 

83 
The agency funding process is based on a combination of agency funding requests and 

congressional action on those requests. The budget process may permit as much as two years to 

pass between preliminary actions to develop a budget proposal and use of the funds. Because of 

inflation and the high costs associated with personnel salaries and benefits, such as health care, 

retirement, and cost-of-living increases--a flat-line appropriation likely represents a net loss of 

staff and resources. 

1. Department of Health and Human Services Office of Civil Rights 

Funding of the civil rights function at HHS over the past 10 years took a significant dip in the 

mid-1990s. In the past three years, it has noticeably increased. 

84 
HHS Appropriations ($ millions) 

Fiscal Year President’s Budget Request Congressional Appropriation 

1994 22.2 22.21 

1995 22.4 21.9 

1996 21.2 19.7* 

1997 21.8 20.0** 

1998 20.5 19.7 

1999 20.7 20.6 

2000 22.2 22.5*** 

2001 27.4 28.0 

2002 32.0 32 

2003 33.6 – 

*Including $330,000 transfer added on the Secretary’s authority after this appropriation. 

**Including $475,000 transfer added on the Secretary’s authority after this appropriation. 

***Including $445,000 net transfer added on the Secretary’s authority after this appropri ation. 

Source: HHS budget information, FY 2003, documented by letter from Robinsue Frohboese, Principal Deputy Director, HHS 

Office for Civil Rights, to NCD, dated September 27, 2002 

During the same period, OCR staffing patterns dropped from their highest level in 1994, with a 

significant dip between 1998 and 2000, followed by recent staff increases. Levels of staff 

dedicated to complaint processing took a similar dip. Neither has returned to its 1994 levels. 

85 
HHS Staffing 

Fiscal Year OCR Staff 

1994 284


1995 259


1996 242


1997 232


1998 216


1999 210


2000 215


2001 223


2002 273 (projected)


2003 271 (projected)


Complaint Processing Staff 

141


145


129


84


74


79


74


83


96 (projected)


87 (projected)


Source: HHS Budget justifications, 1996–2003, information provided by HHS to NCD, August 2002 

2. Department of Education, Office for Civil Rights 

The Department of Education’s Office for Civil Rights budget request and appropriations, like 

that of HHS, dropped slightly in the middle of the 1990s. 

86

ED Appropriations ($ millions) 

Fiscal Year President’s Budget Request 

1994 56.6


1995 61.5


1996 62.8


1997 60


1998 61.5


1999 68


2000 73.3


2001 76


2002 79.9


2003 89.7 Projected


Congressional Appropriation 

56.6 

58.3 

55.3 

54.9 

61.5 

66


71.2 

75.8 

79.9 

Not Provided 

Source: Department of Education’s budget requests and justifications, FY 2003, 2002, 2000, and 1998


During the same period, OCR staff also dropped from a 1994 high of 821 staff to 681 staff in 

1997. Up to FY 2003 (projected), staff levels have not returned to their 1994 levels. 

87

ED Staffing 

Fiscal Year OCR Staffing 

1994 821 

1995 788 

1996 745 

1997 681 

1998 685 

1999 724 

2000 712 

2001 724 

2002 714 

2003 Not Provided 

Complaint Processing Staffing 

Not Provided 

Not Provided 

Not Provided 

Not Provided 

Not Provided 

Not Provided 

Not Provided 

Not Provided 

Not Provided 

Not Provided 

*Staffing numbers for complaint processing have not been located in any published documents. 

Source: Department of Education’s budget requests and justifications, FY 2003, 2002, 2000, and 1998 

3. Department of Labor Civil Rights Center 

The DOL’s Civil Rights Center has had a nearly flat-line budget over the past 10 years. Funding 

levels in 2001 reflect virtually no increase since 1994. 

88 
DOL Appropriations ($ millions) 

Fiscal Year President’s Budget Request 

1994 4.9 

1995 4.8 

1996 4.5 

1997 4.5 

1998 4.6 

1999 4.9 

2000 5.7 

2001 6.4 

2002 5.8 

2003 6.0 

Congressional Appropriation 

4.9 

4.8 

4.5 

4.5 

4.5 

4.9 

5.6 

5.8 

5.8 

Not Available 

Source: Letter from Patrick Pizzella, Assistant Secretary for Administration and Management, DOL to NCD, 

October 4, 2002 

Staffing of DOL’s civil rights function has not seen significant change since 1997. Given its 

static appropriation levels, this is unsurprising. Projected staff levels in 2002 do not meet even 

the minimal levels of 1994. 

89 
DOL Staffing 

Fiscal Year OCR Staff 

1994 61 

1995 60 

1996 56 

1997 52 

1998 47 

1999 52 

2000 53 

2001 53 

2002 50 

2003 48 

Source: DOL annual budget submissions, 1997 

4. Department of State 

Complaint Processing Staff 

Not Provided 

Not Provided 

Not Provided 

Not Provided 

Not Provided 

Not Provided 

Not Provided 

Not Provided 

Not Provided 

Not Provided 

–2003 

Astonishingly, the Department of State responded to NCD’s questions by saying that its OCR 

was fully funded and had available all necessary resources for Section 504 compliance. State’s 

nonexistent Section 504 enforcement program indicates otherwise. In fact, as discussed in 

Chapter 2, the Department of State delegated its Section 504 enforcement responsibilities to the 

Department of Education, with regard to the education institutions that constitute most if not all 

of State’s grantees. The Department’s assurance is not supported by the experience of other 

agencies that provide outreach and education about Section 504 and its obligations to people 

with disabilities. With no Section 504 complaints filed, in theory, State needs no Section 504 

enforcement funding at all. A more realistic assessment is that if State performed its outreach and 

education work more effectively, it would receive complaints that would require resources to 

investigate or to refer to the Department of Education. That is, if State were even performing its 

functions effectively, under its agreement with the Department of Education, the tiny resources 

that State devotes to Section 504 compliance would be inadequate. The requisite intent to 

develop an effective Section 504 program appears to be lacking at the Department of State. 

90 
State Department Appropriations ($ millions) 

Fiscal Year President’s Budget Request 

1994 Not Provided 

1995 Not Provided 

1996 Not Provided 

1997 Not Provided 

1998 Not Provided 

1999 1.0 

2000 Not Provided 

2001 Not Provided 

2002 Not Provided 

2003 0.800 (projected) 

Congressional Appropriation 

Not Provided 


Not Provided 


Not Provided 


Not Provided 


Not Provided 


Not Provided 


0.83


0.800


1.800*


Not Available


*Annual budget requests and appropriations were not provided by the Department of State despite requests and were not located 

in any published documents. 

Source: Information provided to NCD, 2002 

Staffing for State’s civil rights enforcement function has been almost nonexistent. 

91 
State Department Staffing 

Fiscal Year Civil Rights Staffing Complaint Processing Staffing 

1994 Not Provided Not Provided 

1995 Not Provided Not Provided 

1996 Not Provided Not Provided 

1997 Not Provided Not Provided 

1998 12 Not Provided 

1999 Not Provided Not Provided 

2000 Not Provided Not Provided 

2001 17 Not Provided 

2002 25 6 

2003 25 6

Source: Information provided to NCD, 2002


92


RECOMMENDATIONS 

1. Conduct periodic and thorough Section 504 self-evaluations. 

The agencies that are the subject of this report should routinely reevaluate programs using selfevaluation(s) that identify challenges to full participation by people with disabilities in their 

programs, policies, regulations, and practices. Moreover, all the agencies should assess 

legislation they propose, policies they intend to publish, and regulations they draft to ensure that 

each affirmatively furthers the goals of Section 504. 

2. Improve data collection and dissemination of data about Section 504 enforcement 

activities. 

People with disabilities want to easily read data about Agency 504 compliance. Such data 

include complaint filings and compliance reviews initiated, specific Section 504 issues and 

trends in complaint and compliance reviews, and outcomes and enforcement actions. Routinely 

reporting Section 504 activities on their Web sites would allow agencies to publicize Section 504 

and ADA accomplishments. 

DOJ should support and assist agencies in developing and implementing more effective data 

collection systems. 

3. Use funding sanctions to enforce Section 504. 

Congress included an effective remedy to address discrimination on the basis of disability by 

recipients of federal funds. Thus far, the agencies studied in this report have not used funding 

sanctions to bring recipients into compliance with Section 504, although notice of the possibility 

of sanctions is generally given as part of agency enforcement processes. 

94 
To combat disability discrimination in the most effective way possible, federal agencies should 

use their sanctioning authority, including making recipients ineligible to apply for continued or 

new funding while they are not in compliance with federal civil rights laws. This strategy could 

effectively be incorporated into Notices of Funding Availability (NOFAs) and program 

eligibility requirements, so that no recipient or potential recipient can be funded while a 

preliminary or final finding of noncompliance is pending. This strategy should become an 

integral part of agency Section 504 enforcement efforts. Agencies should also develop and apply 

a range of sanctions to help bring recipients of federal funds into compliance with Section 504. 

Additionally, agencies should publicize their efforts to maximize deterrence against violations of 

the rights of people with disabilities. 

4. Direct agency civil rights enforcement by the assistant secretary. 

HHS and DOL should review the impact of the Department of Education’s decision to have an 

assistant secretary lead its Office for Civil Rights as a way of improving the visibility and 

enforcement of Section 504 within each agency’s funding programs. In August 2001, State 

elevated the head of the Office of Civil Rights to an assistant secretary, with no discernable 

change in the visibility or enforcement of Section 504 for State’s federally assisted grant 

programs. 

5. Increase funding for Section 504 enforcement. 

This administration should continue to improve its efforts to increase funding for civil rights 

enforcement. Presidential budget requests and congressional appropriations for federal agency 

civil rights enforcement should be adequate to staff those agencies to conduct effective civil 

rights enforcement and compliance. Adequate staffing is the most critical factor in providing 

prompt and effective enforcement of Section 504. When appropriations—and staffing—drop, the 

number of complaints investigated drop. 

95 
Three of the agencies’ staffing levels should be restored, at a minimum, to their 1994 staffing 

levels by FY 2004. The recommended staffing level for HHS’ OCR is 284; for ED’s OCR, 821; 

and for DOL’s Civil Rights Center, 61. No recommendation for staffing for the Department of 

State’s Section 504 enforcement program for grantees can be made because to date it has been 

nonexistent. Because there is some correlation between the number of staff and the number of 

complaints and compliance reviews conducted and resolved, it is important that the agencies be 

funded and staffed at levels that will support all the enforcement work necessary to ensure 

compliance with Section 504 and protection of the rights of people with disabilities. While there 

is no clear “bright line” standard for staffing civil rights functions, this report recommends 

sustaining staffing at 1994 levels for a minimum of three years, followed by a comprehensive 

evaluation and analysis of the results accomplished with staffing levels that are more appropriate 

than the current low levels. 

The Departments of Labor, Justice, and State should evaluate their Section 504 programs 

according to their legislative mandates and the Government Performance and Results Act 

standards. None of the three agencies has provided sufficient staff, resources, or stature within 

their departments, or coordination with other civil rights offices, to have effective Section 504 

programs. The lack of Section 504 enforcement at the Department of State is so significant that 

the Department of Justice should undertake a review of the agency’s Section 504 activities, 

including its education and outreach, and make recommendations about strengthening its Section 

504 enforcement program. 

Agencies must be given enough resources to provide training and technical assistance for their 

staffs, for consumers, and for recipients. Limited resources should not require agencies to limit 

enforcement, or to choose between technical assistance and enforcement. 

96 
6. Improve leadership and guidance to agencies on Section 504 enforcement. 

The Interagency Disability Coordinating Council (IDCC) was created to provide critically 

needed leadership of disability rights enforcement throughout the Federal Government, but it has 

ceased to function. DOJ should revive the IDCC. DOJ should provide substantive guidance to 

agencies to help them enforce Section 504, including basic training and technical assistance, 

updates on key court decisions, guidance on investigation and resolution of Section 504 

complaints, and information to help agencies conduct effective Section 504 compliance reviews. 

DOJ should create guidance specific to Section 504 enforcement that builds on the agency’s 

manuals on enforcement of Title VI and Title IX. DOJ should use its authority under Executive 

Order 12550 to review and comment on agency Annual Implementation Reports, assess progress 

in agency activities, and make recommendations for improvement. DOJ should also create and 

make publicly available summaries of the information reported by federal agencies in their 

Annual Implementation Reports, as well as highlights of the Federal Government’s enforcement 

of Section 504 compiled from other agency reports. 

DOJ should perform a rigorous review of the Department of State’s lack of Section 504 

complaint and compliance activities and its education and outreach efforts to people with 

disabilities and make recommendations to State about improvements to its Section 504 

enforcement program. 

DOJ should address DOL’s misunderstanding of the self-evaluation requirement of the Section 

504 government-wide regulations, and should require DOL to issue a Notice to all of its 

recipients, clarifying their responsibility to conduct Section 504, or ADA, self-evaluations. 

The Department of Justice should involve its funding offices in its civil rights enforcement 

activities, ensuring that the funding office understands, supports, and enforces the systemic 

changes that are necessary when federal funds are involved in discriminatory activity. The 

97 
Disability Rights Section should ensure that the DOJ funding offices understand the 

requirements of Section 504 and the ADA. 

7. Apply successful practices in Section 504 technical assistance and enforcement used by 

federal agencies. 

During the course of its study, NCD encountered a number of successful practices that should be 

reviewed by other federal agencies. For example, other federal agencies should review the HHS 

Web site and consider producing relevant Section 504 information in a user-friendly format. 

Even such basic information as how to file a Section 504 complaint is not easily found on the 

other agencies’ Web sites. The HHS material is rich in detail and includes helpful case studies 

and links to other relevant Web sites. Agencies should also review and consider including in their 

Web sites information similar to ED’s technical assistance guidance to recipients and DOL’s list 

of reasonable accommodation information resources. In addition, ED has successfully expanded 

its resources and effectiveness in a number of ways. It has included disability experts in 

discussions of activities that the community perceives as disability discrimination. It has 

encouraged parents and students to monitor recipients’ implementation of compliance 

agreements. It has encouraged both school officials and parents to suggest changes to compliance 

agreements that have made them produce better results for students with disabilities. It has 

established an intranet service that makes policies, decisions, law review articles, regulations, 

handbooks, manuals, and letters available to all civil rights staff. It has made it possible for civil 

rights staff from different offices to communicate with each other for the purpose of expanding 

and improving the approaches they adopt to address common and novel discrimination issues. 

This type of flexibility and creativity has the potential to improve each federal agency’s Section 

504 enforcement program. 

98 

CONCLUSIONS 

Section 504 was enacted to ensure that federal agencies operated their programs and activities 

without discrimination based on disability. Congress also intended the federal agencies to 

address and correct the ways in which recipients of their funds were discriminating against 

individuals with disabilities. The agencies have had wide latitude to construct different types of 

Section 504 programs. Except for the Department of State, each of the agencies in this report 

established various types of enforcement, training, and technical assistance strategies to meet its 

Section 504 obligations. Some developed much better funded and more successful training and 

technical assistance programs than did others. 

The political risk to an agency when it threatens to withhold federal funds is real, and no civil 

rights office has been able to construct and implement an effective enforcement program without 

encouragement from the leadership of the agency itself, bolstered by support from the 

administration and members of Congress. That type of leadership, support, and dedication is not 

reflected. 

Civil rights enforcement, to be most effective, must be readily available to people with 

disabilities who believe that they may be victims of discrimination or feel discriminated against, 

and the results of enforcement actions that are taken must be easily known. Reporting to the 

public about the results accomplished on behalf of complainants and the changes accomplished 

through enforcement is limited, with only ED making information about its enforcement work 

available to the general public. 

Discrimination in federally funded activities must be effectively addressed. Without effective 

enforcement and program initiatives, the Federal Government remains complicit in advancing 

disability discrimination, because it lacks the tools to address that discrimination consistently and 

meaningfully. It is painfully clear that the availability of these tools depends on the level of 

political will that is exerted to counteract discrimination. Now is the time for that political will to 

100 
be exerted. Each of the agencies that has a Section 504 program has emphasized technical 

assistance and training over enforcement. The Department of Labor has created a new disability 

office and has funded it generously to provide technical assistance and training. HHS has created 

a new disability office to generate a more systemic, department-wide focus on disability issues 

and provide more technical assistance and training. ED has so limited its enforcement activities 

that it points to the state Protection and Advocacy Systems for examples of enforcement in its 

Olmstead Report. The Department of State has neither an enforcement nor a technical assistance 

Section 504 program. DOJ has focused its attention on the ADA, the Fair Housing Act, and the 

Civil Rights of Institutionalized Persons Act, while underemphasizing its government-wide 

coordination responsibilities and avoiding opportunities to enforce Section 504 through its own 

grant programs. 

Many of the agencies’ actions, including their technical assistance and training programs, have 

produced meaningful changes in the lives of individuals with disabilities and in the equally 

important perception of people with disabilities by the general public. But none of these activities 

substitutes for ending the expenditure of federal tax dollars on the establishment and perpetuation 

of disability discrimination. That requires more courage, more leadership, and more attention to 

the enforcement of our civil rights than people with disabilities have seen thus far. 

101 
APPENDIX


MISSION OF THE NATIONAL COUNCIL ON DISABILITY


Overview and Purpose 

The National Council on Disability (NCD) is an independent federal agency with 15 members 

appointed by the President of the United States and confirmed by the U.S. Senate. The overall 

purpose of NCD is to promote policies, programs, practices, and procedures that guarantee equal 

opportunity for all individuals with disabilities, regardless of the nature or significance of the 

disability, and to empower individuals with disabilities to achieve economic self-sufficiency, 

independent living, and inclusion and integration into all aspects of society. 

Specific Duties 

The current statutory mandate of NCD includes the following: 

•	 Reviewing and evaluating, on a continuing basis, policies, programs, practices, and 

procedures concerning individuals with disabilities conducted or assisted by federal 

departments and agencies, including programs established or assisted under the 

Rehabilitation Act of 1973, as amended, or under the Developmental Disabilities 

Assistance and Bill of Rights Act, as well as all statutes and regulations pertaining to 

federal programs that assist such individuals with disabilities, in order to assess the 

effectiveness of such policies, programs, practices, procedures, statutes, and regulations 

in meeting the needs of individuals with disabilities. 

•	 Reviewing and evaluating, on a continuing basis, new and emerging disability policy 

issues affecting individuals with disabilities at the federal, state, and local levels and in 

the private sector, including the need for and coordination of adult services, access to 

personal assistance services, school reform efforts and the impact of such efforts on 

individuals with disabilities, access to health care, and policies that act as disincentives 

for individuals to seek and retain employment. 

•	 Making recommendations to the President, Congress, the secretary of education, the 

director of the National Institute on Disability and Rehabilitation Research, and other 

102 
officials of federal agencies about ways to better promote equal opportunity, economic 

self-sufficiency, independent living, and inclusion and integration into all aspects of 

society for Americans with disabilities. 

•	 Providing Congress, on a continuing basis, with advice, recommendations, legislative 

proposals, and any additional information that NCD or Congress deems appropriate. 

•	 Gathering information about the implementation, effectiveness, and impact of the 

Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.). 

•	 Advising the President, Congress, the commissioner of the Rehabilitation Services 

Administration, the assistant secretary for Special Education and Rehabilitative Services 

within the Department of Education, and the director of the National Institute on 

Disability and Rehabilitation Research on the development of the programs to be carried 

out under the Rehabilitation Act of 1973, as amended. 

•	 Providing advice to the commissioner of the Rehabilitation Services Administration with 

respect to the policies and conduct of the administration. 

•	 Making recommendations to the director of the National Institute on Disability and 

Rehabilitation Research on ways to improve research, service, administration, and the 

collection, dissemination, and implementation of research findings affecting persons with 

disabilities. 

•	 Providing advice regarding priorities for the activities of the Interagency Disability 

Coordinating Council and reviewing the recommendations of this council for legislative 

and administrative changes to ensure that such recommendations are consistent with 

NCD’s purpose of promoting the full integration, independence, and productivity of 

individuals with disabilities. 

•	 Preparing and submitting to the President and Congress an annual report titled National 

Disability Policy: A Progress Report. 

103 
International 

In 1995, NCD was designated by the Department of State to be the U.S. government’s official 

contact point for disability issues. Specifically, NCD interacts with the special rapporteur of the 

United Nations Commission for Social Development on disability matters. 

Consumers Served and Current Activities 

Although many government agencies deal with issues and programs affecting people with 

disabilities, NCD is the only federal agency charged with addressing, analyzing, and making 

recommendations on issues of public policy that affect people with disabilities regardless of age, 

disability type, perceived employment potential, economic need, specific functional ability, 

veteran status, or other individual circumstance. NCD recognizes its unique opportunity to 

facilitate independent living, community integration, and employment opportunities for people 

with disabilities by ensuring an informed and coordinated approach to addressing the concerns of 

people with disabilities and eliminating barriers to their active participation in community and 

family life. 

NCD plays a major role in developing disability policy in America. In fact, NCD originally 

proposed what eventually became the Americans with Disabilities Act. NCD’s present list of key 

issues includes improving personal assistance services, promoting health care reform, including 

students with disabilities in high-quality programs in typical neighborhood schools, promoting 

equal employment and community housing opportunities, monitoring the implementation of the 

ADA, improving assistive technology, and ensuring that those persons with disabilities who are 

members of diverse cultures fully participate in society. 

Statutory History 

NCD was initially established in 1978 as an advisory board within the Department of Education 

(P.L. 95-602). The Rehabilitation Act Amendments of 1984 (P.L. 98-221) transformed NCD into 

an independent agency. 

104