Did seventeen states just move to gut children’s disability protections by accident?
Understanding the new lawsuit from 17 state Attorneys General, amidst a sea of confusion.
Confusion has been swirling about a new lawsuit filed by 17 Attorneys General – largely because some of the AGs seem confused about their own filing.
(Some background: Section 504 is a national law that protects the right to equal access for individuals with disabilities. In schools, 504 protections are used by advocates to secure accommodations for students with dyslexia and other learning differences. Missy Purcell explains 504 Plans and how they differ from IEPs in this column, and Understood offers a detailed comparison.)
During the Biden administration, the federal definition of disability was expanded to include “gender dysphoria.” The Texas Attorney General filed a lawsuit seeking to challenge that change, and by all accounts, the original lawsuit focused only on this narrow gender-related matter.
But when sixteen other state Attorneys General (AK, AL, AR, FL, GA, IN, IA, KS, LA, MO, MT, NE, SC, SD, UT and WV) joined the suit, they added an amendment seeking to declare Section 504 unconstitutional.
Anyone reading the filing could see this clearly:
If the lawsuit prevails as-written, 504 protections would be eliminated, impacting disabled Americans of all ages, including children with learning differences like dyslexia.
The lawsuit is unambiguous, yet AGs have been claiming otherwise. In a widely-shared post on X, the Arkansas AG proclaimed, “our lawsuit does NOT seek to eliminate Section 504.” The Iowa AG made a similar claim to reporters. Lawmakers have picked up that narrative; Georgia Senator Scott Hilton put out a video to reassure parents that 504 protections were not at risk.
Except the lawsuit says what it says. As one legal scholar put it, “The words are the words. This is filed in a federal court.”
It’s wild to see leader after leader making inaccurate claims about the actual filing.
One has to wonder… Did a bunch of AGs accidentally sign onto this lawsuit believing it was simply the narrower Texas suit about gender – hence the proclamations to that effect? Could they really have been unaware that the language of their own lawsuit eviscerates federal disability protections?
Or were they fully aware, and think they can spin away the facts of their own filing?
One theory is that AGs are playing a game of tactical overreach, asking for overly-broad remedies in order to prevail on the narrower gender matter. Some are describing this as a standard legal tactic. I wouldn’t know. I do know that gambling with popular protections for vulnerable children is terrible optics – and bad politics.
Parent advocates have been quick to mobilize. Georgia parents wrote open letters and held a weekend press conference. Ohio literacy advocates organized a petition that had 1,500 signatures in just over a day, and Florida and California petitions quickly followed. Now, a national petition is gaining steam. I signed it, and I hope you’ll join me.
Already, the South Carolina AG is distancing himself from the lawsuit, following a groundswell of opposition. His office shared that “since Monday, February 10, they have received 939 emails and calls opposing the lawsuit, and none in support of it.”
These AGs surely underestimated the pushback they would receive from parents, which is a big political misread. Dyslexia Moms are fierce advocates. In recent years, they have organized in every state. Their advocacy fueled literacy legislation in 45 states between 2019 and 2022, the clearest sign that their advocacy is nonpartisan/bipartisan.
Advocate Missy Purcell, who has been vocal about the lawsuit, put it best: “They are foolish for messing with parents of kids with special needs, because we are fighters. We fight for kids every day.”
School leaders are bound to have concerns, too, because the loss of 504s will just increase their costs in serving students with special needs. Observers are predicting a rise in the use of IEPs, which are more costly for schools, if 504 protections go away.
This issue will be one to watch. I’ll keep this post updated with major developments.
2/22 UPDATE: In the wake of a growing public backlash about the lawsuit, the AGs have filed a joint status report, to clarify that “they have never moved—and do not plan to move—the Court to declare or enjoin Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, as unconstitutional on its face.” The report also says they are not looking to “enjoin the disbursement of funds from the Department on the basis that the statute is unconstitutional.”
That’s progress, and the AGs are working overtime in the media to persuade us about their intentions. I wonder: why don’t they just amend the filing? A status report and a bunch of interviews to say, “We don’t mean to ask for the thing we asked for in that court filing” is not the reassurance I’d like on this consequential issue.