treatment, but it's much bigger than that. If the past red alerts were like fire alarms in your building, this is more like a tsunami alert for your town. Picture two ordinary scenes.
A city builds a new city hall but "forgets" to install a ramp to the front door.
A man walks into the public library with his guide dog and is turned away under a "no animals" policy.
The Legal House of Cards that Donald is Building
how we got here, because understanding the legal house of cards supporting it also reveals how it can be knocked down. After all, there is a perverse logic supporting this effort.
Almost everything the administration does to dismantle civil rights stems from the Supreme Court's decision in Students for Fair Admissions (SFFA) v. Harvard, 600 U.S. 181 (2023). In that case, the Supreme Court struck down race-conscious college admissions as violating the Equal Protection Clause. From there, the administration takes three leaps of legal logic, each stacked on the last, running from a college admissions case to a wheelchair ramp. Let's look at each one and why it's nonsense.
Logical Leap #1: SFFA means that every racial diversity program is illegal. Through Executive Orders 14151 and 14173, the administration has dismantled the federal government's diversity, equity, and inclusion programs and publicly threatened state and private ones, treating every such effort as an unlawful racial preference. At the heart of both orders is the SFFA case. Why that's nonsense: SFFA condemned racial classifications—not the goal of fighting discrimination or general DEI programs. It's a long stretch to compare diversity and inclusion training to racial classification that favors one group over another.
Logical Leap #2: Federal regulations preventing racial discrimination need to be based on intent. We discussed this leap . A quick recap: in Alexander v. Sandoval, 532 U.S. 275 (2001), the Supreme Court held that a private plaintiff could not sue for racial discrimination under Title VI without proving intentional discrimination, and so the Department of Justice required intentional discrimination in its Title VI regulation. Why that's nonsense: Sandoval focused only on who could go to court and what they had to prove. The Court expressly assumed the Title VI regulations were valid. Converting "you cannot privately enforce these regulations" into "these regulations are invalid, so we may delete them" is a major logical leap.
Logical Leap #3: Section 504 and its regulations must require intent. This is the biggest leap of them all and the one that can hurt the most. The Department of Commerce has placed a rule on the regulatory agenda () to amend its Section 504 regulations so that they "conform with the strict causation standard established in 29 U.S.C. 794(a)" and "remove ambiguous provisions animated by a theory of disparate-impact liability." This may appear to be just an expansion of the Department of Energy's attempt to rescind its Section 504 new construction regulation (an example of a requirement that does not require intent), which , now in different clothes. This attempt, however, shows the administration's real intent—to completely take apart Section 504. No more new construction requirements. No requirement for auxiliary aids or services. No requirement to make reasonable modifications of policies. Nothing forward-looking or preventative. Why that's nonsense: First, the Supreme Court never extended Sandoval to Section 504. In fact, the Supreme Court has gone the opposite way and repeatedly held that nothing in disability rights legislation requires regulations to be based on intent. See Alexander v. Choate, 469 U.S. 287, 296–97 (1985) (rejecting any reading of Section 504 that would "proscribe only conduct fueled by a discriminatory intent," and recognizing that the Act reaches discrimination "by effect as well as by design"); see also Tennessee v. Lane, 541 U.S. 509, 531–33 (2004) (upholding as a "reasonable prophylactic measure" Title II's requirement that States remove "architectural and other barriers to accessibility"); Olmstead v. L.C., 527 U.S. 581, 597 (1999) (enforcing the "integration regulation" and holding unjustified institutionalization to be discrimination "by reason of" disability, without any showing of intent). Second, even putting Section 504 aside, Sandoval and its critique of disparate impact have nothing to do with whether an agency can create intent-free prophylactic or preventative requirements in regulations. If anything, Sandoval can be used to support the argument that such regulations are valid. After all, disparate impact is a backward-looking idea: it asks whether a policy already in place produced an unjustified exclusionary effect. It isn't logical to apply it in the opposite direction and say that it prohibits forward-looking
Next in Their Sights: Title II and the Whole ADA
, Section 504 borrows its enforcement scheme from Title VI (29 U.S.C. § 794a(a)(2)), and Title II of the ADA in turn borrows its scheme from Section 504 (42 U.S.C. § 12133). The administration has and is now attacking Section 504. The handwriting is on the wall that Title II is next.
If Section 504 and Title II reach only intentional discrimination, then every affirmative, forward-looking duty in disability law loses its footing at once: the duty to build accessible new facilities, to make existing programs accessible, to provide effective communication, to let a guide dog past a "no animals" rule. All of them exist to prevent exclusion before it ever happens—every kind of exclusion, not only the intentional kind. What remains is a hollow shell: "it shall be illegal to intentionally discriminate against people with disabilities." That may catch the occasional bigot stupid enough to leave a smoking gun, but misses everyone else—and the wheelchair user at the new city hall and the man with the guide dog are told the same thing: no one meant to exclude you, but there is nothing in the regulations now to help you.
Don't believe me? It's already happening. Last month, the Department of Justice's Office of Legal Counsel issued a declaring that neither the ADA nor Section 504 contains an "integration mandate"—that Olmstead never really required states to serve people with disabilities in their communities rather than warehouse them in institutions, and that the regulations saying otherwise are "unlawful." In other words, the executive branch now claims to read the ADA, Section 504, and the Constitution better than the Supreme Court did in a decision that has stood for twenty-seven years. That opinion is , and it neatly aligns with the red states already asking the courts to declare Section 504 unconstitutional in Texas v. Kennedy. The government even concedes that its reading is "out of step with the common understanding of that decision within the federal courts"—yet it plans to stop enforcing Olmstead and rewrite the regulations anyway. So much for that oath that every single one of them took to huh? It's the same move I described for Section 504, now aimed at the ADA.
The Usual Call to Action
Disability organizations need to intervene to block these rulemakings. Disability rights groups, like the Disability Rights Education and Defense Fund and the National Federation of the Blind, need to push on the house of cards. While I've talked about the ridiculous logical leaps the administration used to get here, pushing on all the levers isn't the answer—instead, focus on its weakest point: rules like the new construction requirements have already been blessed by the courts, and they have nothing to do with disparate impact or intent.
Everyone needs to be ready to file comments. When the Energy Department floated its rescission of the building-accessibility rule as a "direct final rule," it drew more than twenty thousand comments. Even if the administration thinks it can conjure up a smokescreen of "fake law" to support its arguments, it can't outrun politics. And tens of thousands of vocal disability rights advocates is powerful politics. Say two things plainly to the Department of Commerce: (1) that its legal logic is a house of cards and (2) that the existing Section 504 regulations are important and mean the difference between a courthouse you can enter and one you cannot, between a ballot you can read and one you cannot, between a group home in the community and a bed in an institution.
There are more than eighty sets of Section 504 regulations across the federal government, and the Energy Department was the trial balloon. Now the Commerce Department is the second attempt. This battle will not arrive as a single dramatic showdown; it will unfold the way it already is—agenda items, "strict causation standards," conforming amendments, one agency at a time. The machinery is boring on purpose. But the Supreme Court has told us, for fifty years, what these statutes mean. The task now is to make the government listen.
Disclaimer
Nothing in this post should be interpreted as legal advice or as forming an attorney-client relationship. It is offered for educational purposes only. You should always contact a qualified attorney in your area to discuss your legal rights and responsibilities.
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