February 12, 2003

National Council on Disability
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Washington, DC 20004

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Publication date: February 12, 2003

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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.)

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

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.

CONTENTS

Executive Summary

Introduction

Chapter I--The Origins of Section 504: The Initial Promise of Disability Rights

Chapter II--The Agencies' Administration of Their Section 504 Programs

Chapter III-- Administrative Enforcement of Section 504

Recommendations

Conclusions

Appendix--Mission of the National Council on Disability

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 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 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?

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.

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.

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

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 self- evaluation(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 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.

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.

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 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.

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 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.

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.

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, which barred recipients of federal funds from discriminating on the basis of race, color, or national origin. 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 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. 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.

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. The U.S. Supreme Court later confirmed that Section 504, like the 1964 Civil Rights Act, prohibited unintentional as well as intentional discrimination.

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

Congress rejected the Supreme Court's interpretation by enacting the Civil Rights Restoration Act of 1987. 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 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 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 resource-consuming 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. Sandoval, 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. 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, 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 remedy. One reason may be that Congress attached an onerous process that federal agencies must follow to terminate funds.

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.

A. Introduction

1. The Federal Financial Assistance Strategy

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;

2. Reassure reluctant federal agencies that they did have the authority to prohibit discrimination in their assistance programs;

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";

5. Prevent discriminatory uses of federal assistance from "defeating the program's congressionally imposed objective"; 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 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, the U.S. Department of Health and Human Services (HHS) has had extraordinary power to enforce the nondiscrimination provisions of Section 504. 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. 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.

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 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).

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.

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. 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.

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, 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.

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.

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. 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 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. 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. The Court ruled that unnecessary institutionalization of qualified individuals with disabilities was a form of discrimination 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 decision 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." 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 agency-wide 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." 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. 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 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; established an Olmstead addition to the HHS Web site; 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." 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.

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 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.

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." 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 the enforcement program was balanced to address all issues for which OCR had responsibility." 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.

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."

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.

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.

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. For example, the MOU might require the Post-Secondary Office to (a) determine how many of its grantees had conducted self-evaluations and fulfilled the goals of the resulting Transition Plans, as required by Section 504, 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" 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."

3. Issue Networks

A novel result of OCR's shift of resources has been the creation of "issue networks." 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.

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 508 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.

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.

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 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.

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." 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.

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."

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." As the Department describes the project, its focus is on helping states develop five-year 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."

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. 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.

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." The Department of Education knows how to enforce Section 504, and it should demonstrate that capacity in its Olmstead activities.

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, 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).

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 VII 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 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."

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. 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. By 1994, the number of full-time 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. 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.

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.

DOL distributes most of its federal financial assistance through continuing state programs. 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 1984 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.

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, 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. 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 Section 188 of the Workforce investment Act of 1998." 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...." According to CRC staff, assessment of the MOA is a paper review, limited to determining whether the MOA includes all the required documentation. 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 I-financially assisted programs will operate in a nondiscriminatory manner.

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 long-distance 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.

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. The same could be said for Section 504. In fact, the WIA replaced the JTPA program in 1998, and DOL published a final implementing rule on November 12, 1999.

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.

The one prominent Section 504 provision that the WIA regulations do not include is the self-evaluation requirement. 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