Mind the Gap: Time to Rehabilitate Section 504 to Prohibit Disparate Impact Discrimination

Section 504 of the Rehabilitation Act of 1973 is a landmark civil rights statute that prohibits disability-based discrimination by recipients of federal funding.While the statute plays a crucial role in protecting the rights of people with disabilities in the United States, the scope of the discrimination it prohibits remains unsettled.Amid growing judicial skepticism, executive rollbacks of diversity and inclusion initiatives, attacks on disparate impact theory and the erosion of administrative enforcement mechanisms, the statute's continued viability as a tool for challenging disparate impact discrimination is at risk.This Article argues that disparate impact liability under § 504 is essential for addressing the often unintentional, but harmful exclusion of individuals with disabilities, frequently resulting from acts of "thoughtlessness, indifference and benign neglect."It explores the ambiguity regarding whether § 504 provides a private right of action for disparate impact claims, addresses the critical role of agency enforcement and examines the growing threats posed by the broad exercise of executive power and judicial and administrative retrenchment.In conclusion, the Article calls for urgent Congressional action to amend § 504 or enact clarifying legislation.Recognizing that federal reform may not be forthcoming, the Article also suggests alternative strategies, including state-level legislation and grassroots advocacy, as means to preserve and advance the protections that disparate impact theory affords to people with disabilities.