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November 08, 2024

QUESTION PRESENTED

Does 45 C.F.R. Part 1624 “Prohibition Against Discrimination on the Basis of Disability” include LSC grantee governing body members within its protections?

BRIEF ANSWER

Yes. The language in § 1624.4(a) states that no qualified person with a disability shall be excluded from “participation in, be denied benefits of, or otherwise be subject to discrimination by any legal services program…” The term “participation in” is a broad term that can reasonably be interpreted to extend to anyone who “participates in” a legal services program, whether that participation involves governing board membership, employment, or client services. Furthermore, nothing in the Part 1624 regulatory history indicates that LSC intended to exclude governing body members, so LSC believes it is appropriate to interpret the language to include them.

BACKGROUND

During LSC’s regulatory review process, current and former LSC grantee governing board members raised the concern that LSC regulations do not explicitly name governing body members in its application of disability discrimination protections. The regulation in question, 45 C.F.R. Part 1624, applies by its terms to applicants for legal assistance, grantee clients, applicants for employment, and grantee employees. Because many client-eligible grantee governing body members are persons with disabilities, some members felt expanding Part 1624 was necessary to ensure they are afforded the same opportunities to be selected for and participate in grantee governing body activities as persons who do not have disabilities.

In 2024, LSC published a Request for Information in the Federal Register regarding Part 1624 and held multiple open listening sessions to gather public opinion on the issue. LSC management ultimately decided not to pursue rulemaking to explicitly include governing body members within Part 1624, because the existing language is already sufficiently broad to cover governing board members. Management thus reasoned that a regulatory change would be redundant and not provide any tangible change or benefit that could not be achieved through interpretive guidance. In sum, the language in Part 1624 and analogous case law supports the conclusion that the provision encompasses all who participate in a legal services program, regardless of how they participate.

APPLICABLE LAW

As recipients of federal assistance, LSC grant recipients are subject to the non-discrimination requirements of Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794 and with sections 1007(a)(1) and (3) of the ���˶��� Act, as amended, 42 U.S.C. § 2996f(a)(1), (3). Because LSC is not an agency, department, or instrumentality of the Federal government and thus not obligated to enforce Section 504 directly, LSC chose to adopt Part 1624 in 1979 to implement the non-discrimination requirements of Section 504.

The LSC Act and LSC’s fiscal year 1996 appropriations legislation outline the requirements for recipients to remove impediments that may hinder persons with disabilities from receiving legal assistance, services, or employment from a legal services program. In accordance with Section 504 of the Rehabilitation Act, the requirements of Part 1624 also apply to any responsibilities legal services programs may have under applicable requirements of the Americans with Disabilities Act and applicable regulations of the Department of Justice and the Equal Employment Opportunity Commission.

The relevant sections of Part 1624 are §§ 1624.3, paragraphs (c)(1) and (d)(1)(2), and 1624.4, paragraphs (a), (b), (e), and (f). The regulations state:

§ 1624.3 Definitions

(c)(1) Person with a disability means any person who:

(i) Has a physical or mental impairment which substantially limits one or more major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment;

(d) Qualified person with a disability means:

(1) With respect to employment, a person with a disability who, with reasonable accommodation, can perform the essential functions of the job in question;

(2) with respect to other services, a person with a disability who meets the eligibility requirements for the receipt of such services from the legal services program.

§1624.4 Discrimination prohibited.

(a) No qualified person with a disability shall, on the basis of disability, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination by any legal services program, directly or through any contractual or other arrangement.

(b) A legal services program may not deny a qualified person with a disability the opportunity to participate in any of its programs or activities or to receive any of its services provided at a facility on the ground that the program operates a separate or different program, activity or facility that is specifically designed to serve persons with disabilities.

(e) A legal services program shall take reasonable steps to ensure that communications with its applicants, employees, and beneficiaries are available to persons with impaired vision and hearing.\

(f) A legal services program may not deny persons with disabilities the opportunity to participate as members of or in the meetings or activities of any planning or advisory board or process established by or conducted by the legal services program, including but not limited to meetings and activities conducted in response to the requirements of 45 CFR part 1620.

ANALYSIS

Governing body members are not explicitly named as a protected group within the definitions outlined in Part 1624 of “person with a disability” and “qualified person with a disability.” However, members who are persons with disabilities as defined by the section logically fit under the umbrella of protections because the definitions are not predicated on the type of interactions they have with legal service programs or in what capacity. Section 1624.3(d)(1) does define protected persons with respect to employment matters, but (d)(2) then serves as a catchall for participants who engage in “other services” from legal services programs. Governing body members receive services from the legal services programs they lead because they receive board-specific training, education, communications, and materials necessary to complete their duties. If the member has an applicable disability, then they are considered a protected person under §1624.3.

At least one court has interpreted “qualified persons with a disability” to include adjacent groups not explicitly listed within disability regulation protections. In Rothschild v. Grottenthaler, the U.S. District Court for the Southern District of New York found that under provisions of section 504 of the Rehabilitation Act, a public school district that received federal financial assistance must provide sign-language interpreter services, at school district expense, to deaf parents of non-hearing impaired children at certain school-initiated activities. Rothschild v. Grottenthaler, 907 F.2d 286 (2d Cir. 1990). On appeal, the school district and Superintendent Grottenthaler argued that as parents, the Rothschilds were not “otherwise qualified” to participate in or benefit from any activity offered by the school district because they are not eligible to receive educational services under 34 C.F.R. § 104.3(k)(2). They argued that none of the provisions related to Part 104.3(k) address the rights of persons, such as parents, not actually receiving educational services. The Court found that the school district's proposed interpretation of Part 104.3(k) was inconsistent with its plain language:

Regulation 104.3(k) does not define ‘qualified handicapped person’ with regard to the category of institution receiving federal financial assistance, but rather the category of service offered by the recipient institution. The fact that a particular recipient institution is primarily engaged in the provision of one category of service does not exempt it from Regulation 104.3(k) in its provision of other services. Thus, while the School District is subject to section 504 in providing educational services, that is not the only area in which it must refrain from discrimination on the basis of handicap. (emphasis added).

Rothschild v. Grottenthaler, 907 F.2d 286 (2d Cir. 1990).

The Court found that the Rothchilds were entitled to "meaningful access to the activities" the school district offered even though they did not actually receive educational services. Similarly, LSC interprets Part 1624 to extend disability protections to governing body members even though they do not specifically receive legal assistance services from the organizations they serve.

Furthermore, § 1624.4(f) specifically prohibits a legal services program from denying a person with a disability the opportunity to participate as “members of or in the meetings or activities of any planning or advisory board.” While those types of boards are not defined in the regulation, it logically flows that such programs cannot discriminate against governing board members with disabilities either.

CONCLUSION

In conclusion, for the reasons stated above, LSC interprets Part 1624 as extending the prohibitions against discrimination on the basis of disability to LSC grantee governing body members.
For any requestions regarding this issue, please contact Brittany Sims Nwankwoala, Assistant General Counsel, at 202-295-1599 or nwankwoalab@lsc.gov.

WILL A. GUNN

Vice President for Legal Affairs and General Counsel

STEFANIE K. DAVIS

Deputy General Counsel for Regulations and Ethics Officer

BRITTANY SIMS NWANKWOALA 

Assistant General Counsel