Tag: constitutional

  • States drop Section 504 constitutional challenge

    States drop Section 504 constitutional challenge

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    Dive Brief:

    • A constitutional challenge against Section 504 of the Rehabilitation Act will no longer be pursued in a lawsuit filed by 17 states last year, according to a joint status report submitted by plaintiffs and defendants to the court earlier this month. 
    • Disability rights advocates and families with children who receive Section 504 accommodations in schools have raised concerns about the states’ lawsuit against the U.S. Department of Health and Human Services. That lawsuit, filed in September, challenges an HHS rule that includes gender dysphoria in the definition of a disability under Section 504 and originally argued that Section 504 was unconstitutional. 
    • While Section 504’s constitutionality is no longer being challenged, disability rights advocates say they are still on alert to legal proceedings and regulatory actions that would take away protections for transgender people with disabilities. 

    Dive Insight:

    The joint status report also notes that HHS, as defendants, are continuing to evaluate their position as a result of President Donald Trump’s Jan. 20 executive order shunning “gender ideology extremism.” The directive said U.S. policy will only recognize two sexes — male and female.

    The states’ lawsuit challenges a HHS rule finalized in May 2024 under the Biden administration that requires child care, preschool, elementary, secondary, postsecondary, and career and technical education programs to provide Section 504 services to students with gender dysphoria. The term describes the distress felt when one’s gender expression doesn’t match their gender identity.

    Additionally, on April 11, HHS published a clarification to the preamble of the Section 504 regulation, saying that the language concerning gender dysphoria “does not have the force or effect of law. Therefore, it cannot be enforced.” 

    Section 504 of the Rehabilitation Act of 1973 prohibits discrimination on the basis of disability in K-12 schools and colleges that receive federal funds. Students’ Section 504 accommodations can include academic, mental and physical supports.

    In a Feb. 14 update on its website, Disability Rights Education and Defense Fund said that if Section 504 were declared unconstitutional, it would be “a disaster for people with disabilities.”

    The states involved in the case are: Texas, Alaska, Alabama, Arkansas, Florida, Georgia, Indiana, Iowa, Kansas, Louisiana, Missouri, Montana, Nebraska, South Carolina, South Dakota, Utah and West Virginia. The lawsuit was filed in U.S. District Court Northern District of Texas.

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  • The government wants to financially bludgeon those seeking to defend constitutional rights

    The government wants to financially bludgeon those seeking to defend constitutional rights

    A new White House directive to heads of executive departments and agencies threatens to make it prohibitively expensive for Americans to defend the Constitution in court. The memo “directs” the departments and agencies to “demand” that courts make those seeking injunctions against federal actions “cover the costs … incurred if the Government is ultimately found to have been wrongfully enjoined.”

    The move could not be more transparent in attempting to scare off potential litigants challenging executive orders or other federal actions of questionable constitutionality.

    The White House deems this necessary because “activist organizations” are supposedly “inserting themselves into the executive policy making process” and have “obtained sweeping injunctions.” The administration claims Rule 65(c) of the Federal Rules of Civil Procedure mandates security bonds for all preliminary injunctions and temporary restraining orders to protect against the prospect of a later judicial ruling that the defendant was improperly enjoined.

    But this is misleading. That literal reading of the rule may make sense in the mine-run of private disputes, like claims in commercial contexts. But courts have long recognized exceptions for public-interest litigation, especially when it comes to those seeking to protect constitutional rights. In other words, “activist groups” like FIRE and the clients we proudly defend.

    Our free speech protections safeguard us from government incursion, they do not extend “rights” — that is, protection — to government actors.

    It’s bad enough Rule 65 already exempts “the United States, its officers, and its agencies” from the bond requirement if they win a preliminary injunction, and that the feds also avoid the obligation the Civil Rights Act imposes on state actors to pay attorney fees if a party sues to correct a constitutional violation and wins. But to insist on payment by a party challenging the constitutionality of government action — after that party has shown likelihood of succeeding on the claim, as is required for a preliminary injunction — clearly seeks to buck the case law on public interest litigation. In the name of disincentivizing challenges to constitutionally suspect federal action, no less. 

    And that’s just wrong — the government should not be in the business of financially punishing those who seek to vindicate their constitutional rights, or of erecting extra barriers to being able to do so. 

    FIRE made the same point in our recent friend-of-the-court brief filed with the U.S. Court of Appeals for the Ninth Circuit in U.S. News v. Chiu. In that case, San Francisco’s city attorney took issue with U.S. News’ annual hospital rankings and launched a “false advertising” investigation that included subpoenas demanding, among other things, that the publisher disclose its ranking methodology and supporting documents. 

    So U.S. News challenged the subpoenas in court as retaliation against its protected speech. But the city attorney sought to dismiss the case as a meritless “strategic lawsuit against public participation” (SLAPP) under California’s anti-SLAPP law and sought attorney fees, as the statute allows for prevailing defendants. Troublingly, the court bought it, dismissing the case and ordering U.S. News to pay. 

    Just one problem: Anti-SLAPP laws protect defendants from frivolous lawsuits alleging defamation or similar claims that are designed not necessarily to prevail, but to silence or punish the exercise of free speech rights. And state actors operating in official roles do not exercise free speech rights at all, but rather, government powers, as the Sixth Circuit recently reaffirmed. Our free speech protections safeguard us from government incursion, they do not extend “rights” — that is, protection — to government actors, which is who wield the powers from which protection is needed. Exactly like those the city attorney wielded in subpoenaing U.S. News.

    That’s why, when U.S. News appealed, FIRE’s  brief argued the district court was wrong to award fees in granting the city attorney’s anti-SLAPP motion. Giving government officials anti-SLAPP protection serves only to chill people from challenging unconstitutional and illegal government actions, thus threatening the very rights that anti-SLAPP laws seek to protect. 

    The White House’s new directive suffers from the same chilling problem. If agencies insist that courts make people put up or shut up by having to cover potentially ruinous federal governmental costs if they preliminarily succeed in challenging unconstitutional behavior, then naturally fewer plaintiffs (and organizations that represent them) will be willing and able to vindicate First Amendment rights in court. 

    That would leave all of us less free. 

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