AG Hilgers: Nebraska won't seek to end fed Section 504 disability protections
Nebraska Attorney General Mike Hilgers. June 30, 2023. (Zach Wendling/Nebraska Examiner)
LINCOLN — The Nebraska Attorney General's Office said this week that AG Mike Hilgers would 'reevaluate Nebraska's involvement' in a lawsuit against a Biden-era rule if it threatens federal disability protections.
The September lawsuit, led by Texas Attorney General Ken Paxton and Republican attorneys general from 16 other states, including Nebraska, specifically targets a May 2024 rule from the former Biden administration that lists 'gender dysphoria' as a covered disability under Section 504 of the federal Rehabilitation Act.
Gender dysphoria, as defined in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, is the psychological distress someone has when their gender identity doesn't match their sex at birth.
Original complaint (Sept. 26)
Joint status update (Feb. 19)
The Texas-led lawsuit argues the federal rule exceeds statutory authority, is 'arbitrary and capricious' and unconstitutional.
A fourth argument argues Section 504 as a whole is unconstitutional. The rule offers services to thousands of Nebraskans, including students who are offered special education at a different threshold than specific individualized education programs (IEPs).
Statements from the Nebraska Attorney General's Office last week and as recent as Thursday said Hilgers joined the lawsuit against an effort to 'hijack' the federal protections and impose 'transgender ideology' across Nebraska.
Republican state AGs seek to clarify stance on disability law
The lawsuit argues that the final rule would increase costs and compliance requirements on Nebraska under Medicaid and employment, which could risk access to federal funding.
'The Final Rule imposes severe and irreparable harm on Nebraska by imposing various costs and attendant risks of administrative proceedings, investigations, lawsuits and compliance measures, as well as by creating a conflict between state laws and policies and federal regulation,' the September lawsuit states.
On Wednesday, the attorneys general filed a 'joint status report' to address President Donald Trump's administration and multiple Trump executive orders related to sex and gender, as well as the confirmation of U.S. Health and Human Services Secretary Robert F. Kennedy, Jr.
'Plaintiffs clarify that they have never moved — and do not plan to move — the court to declare to enjoin Section 504 of the Rehabilitation Act … as unconstitutional on its face,' the latest filing states. 'Plaintiffs have not sought and do not seek to enjoin the disbursement of funds from the [HHS] Department on the basis that the statute is unconstitutional.'
The AGs said Kennedy and his department are continuing to evaluate their position as Trump ordered federal agencies to not 'promote or otherwise inculcate gender ideology.'
GOP-led lawsuit that could dismantle disability protections draws public backlash
The Arc of Nebraska, which advocates for people with intellectual and developmental disabilities, testified against Hilgers' office budget over concerns about his participation in the lawsuit.
In a Thursday Facebook post, the organization said Hilgers clarified he would not move forward with the case if it eliminated Section 504, which the state AG's Office verified.
The Nebraska AG's Office statement reads: 'The primary purpose of the complaint is not to challenge Section 504 or threaten funding for Nebraskans with disabilities. The Attorney General will reevaluate Nebraska's involvement or take other appropriate action if the legal protection and funding provided by Section 504 becomes threatened.'
The Arc of Nebraska post states that 'while this isn't everything we want to see, it is a significant step forward.'
Leaders of the Nebraska State Education Association also met with Hilgers, who made similar commitments, the organization said in a Wednesday email to teachers statewide.
'NSEA will continue to monitor the situation and remains committed to preserving and expanding services for students with disabilities,' the email stated.
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