Disability Affirmative Action in the Age of DEI Rollback
By Lucas Garcia-Rogers
The rollback of Diversity, Equity, and Inclusion (DEI) programs in federal and state contexts has significantly reshaped the landscape of affirmative action. While race- and sex-based affirmative action have understandably taken center stage—especially after Students for Fair Admissions v. Harvard (2023), which intensified the dismantling of race-conscious admissions—disability-based affirmative action has been encountering a quieter form of retrenchment. This retrenchment has not arrived through a sweeping constitutional strike; rather, it emerges as enforcement budgets shrink and institutional energy wanes.
Unlike initiatives that lean on a constitutional “diversity rationale,” disability-based affirmative action finds its legal anchor in Sections 501 and 503 of the Rehabilitation Act of 1973. Because these requirements arise by statute, and thus typically only trigger rational basis scrutiny (instead of strict scrutiny), disability-based affirmative action enjoys a form of insulation that race-conscious programs currently lack. It is not a discretionary preference; it is a binding mandate for federal agencies and contractors.
However, even the strongest statutory mandates can lose traction if audits, staffing, and political will all begin to wither. As enforcement arms scale back, compliance obligations can devolve into mere formalities, effectively eroding the substance of disability-based affirmative action. The courts might not be on the verge of toppling it, but passive neglect can be just as destructive.
In an era where DEI initiatives face growing hostility, the future of disability inclusion hinges less on whether the law itself stands and more on whether agencies, contractors, and oversight bodies have the resources and commitment to keep these mandates alive in practice. If disability-based affirmative action is to remain truly impactful, it must be maintained not just as a legal rule but as an ongoing regulatory and political priority—one that insists on genuine follow-through, rather than symbolic compliance.
Disability-based affirmative action operates at the juncture of constitutional equal protection and statutory mandates. Unlike race- or sex-based initiatives—which tend to rely on either diversity or remedial justifications and often must satisfy the highest levels of judicial scrutiny—disability-based programs derive their authority from explicit congressional commands. This statutory anchor shapes both their relative resilience and the practical routes for carrying them out.
From a constitutional perspective, City of Cleburne v. Cleburne Living Center (1985) sets the starting point. There, the Court declined to treat disability as a suspect or quasi-suspect classification. Instead, it used rational basis review, meaning that governmental distinctions based on disability merely require a reasonable relation to a legitimate objective. This approach departs significantly from the stricter tests applied to race or gender classifications. Later decisions entrenched this stance. In Board of Trustees of the University of Alabama v. Garrett (2001), the Court concluded that Congress could not, under Section 5 of the Fourteenth Amendment, subject states to private damages suits under Title I of the Americans with Disabilities Act. That holding reaffirmed that disability classifications warrant only rational basis scrutiny, thereby constraining the direct constitutional remedies for disability discrimination but placing more weight on statutory enforcement.
Oddly enough, this lower threshold of scrutiny has effectively shielded disability-based affirmative action from the same judicial headwinds that have undermined race-conscious policies. Adarand Constructors, Inc. v. Peña (1995) imposed strict scrutiny on federal racial classifications, insisting on a compelling interest and narrow tailoring. More recently, Students for Fair Admissions v. Harvard (2023) spotlighted just how vulnerable race-based initiatives remain under rigorous constitutional review. Disability-related measures, on the other hand, seldom trigger such heightened examination.
This doctrinal difference carries tangible consequences. Under Sections 501 and 503 of the Rehabilitation Act, federal agencies and contractors have a statutory obligation to affirmatively employ qualified individuals with disabilities—no “compelling interest” required, and no need to prove a history of intentional discrimination. If a policy is rationally related to the aim of workplace inclusion in federally governed spaces, it’s presumed constitutionally valid. That presumption also confers broader leeway for administrative bodies to implement and enforce these obligations, lowering the risk of being struck down by courts.
Importantly, the requirements of the Rehabilitation Act go beyond mere policy aspirations. Section 501 mandates affirmative employment actions within federal agencies, while Section 503 extends that same duty to federal contractors. Regulations codified in Title 41 of the Code of Federal Regulations direct covered entities to devise formal affirmative action plans, track relevant hiring data, and engage in proactive outreach. In contrast, many race-based initiatives rely on discretionary frameworks and navigate narrower constitutional pathways. In the disability context, though, these mandates are legally binding rather than optional, underscoring the robust statutory foundation on which disability-based affirmative action stands.
Despite its doctrinal staying power, disability-based affirmative action is showing signs of erosion that originate not in the courts but in a steady decline of administrative enforcement capacity. The Office of Federal Contract Compliance Programs (OFCCP)—the federal agency primarily charged with overseeing contractor compliance—has grappled with shrinking budgets, reduced staff, and evolving political directives. These shifts create a growing gulf between statutory mandates and on-the-ground enforcement.
One of the clearest markers of this institutional retrenchment is the decline in the number of compliance evaluations OFCCP conducts among federal contractors. As new leadership and administrative priorities take hold, robust enforcement has increasingly given way to voluntary compliance models, weakening the external pressure that once incentivized contractors to fulfill their obligations under Section 503 of the Rehabilitation Act. Meanwhile, the resources available for technical assistance and outreach—traditionally critical for helping employers understand and implement disability-inclusive policies—have also diminished. In certain cases, agencies have shifted attention to broader diversity initiatives, leaving disability-specific mandates sidelined.
The consequences of this pullback are tangible. Contractors that once adopted outreach, recruitment, and accommodation measures in response to regulatory scrutiny may now see those measures as discretionary. Absent the tangible threat of audits or sanctions, what were once enforced duties risk becoming mere suggestions. The statutory framework itself remains intact, but the institutional levers that once operationalized it are increasingly absent.
Political resistance only compounds these issues. As various state and federal actors target DEI programs for elimination, disability-related initiatives can get swept into larger battles over affirmative action. Even though the legal distinctions are often clear—Section 503’s statutory basis versus the diversity rationale for race- or sex-based policies—public debates and political pressures frequently blur those lines. Agencies, wary of igniting controversy or provoking litigation, may retreat from proactive enforcement rather than risk becoming a lightning rod. The chilling effect arises less from court rulings and more from a combination of budget cuts, vague guidance, and political caution. Ironically, the statutory underpinnings that make disability-based affirmative action more constitutionally secure also leave it more vulnerable to quiet defunding or deprioritization.
Turning the tide requires more than an affirmation of statutory obligations. It calls for legal and policy strategies that revitalize dormant mandates and compel agencies to fulfill their regulatory responsibilities—ensuring that the durability of disability-based affirmative action translates into meaningful, day-to-day protections.
Although disability-based affirmative action benefits from a certain degree of legal insulation, its actual efficacy hinges on mechanisms that can transform dormant mandates into tangible enforcement. Given that Section 503 and its implementing regulations are unlikely to be struck down by the courts, the central challenge becomes one of compelling agency engagement in the face of bureaucratic inaction. Here, administrative law—and specifically the Administrative Procedure Act (“APA”)—offers critical pathways for ensuring that statutory obligations do not languish.
Under the APA, federal agencies are required to execute their statutory duties in a manner that is “neither arbitrary nor capricious.” When an agency significantly scales back its enforcement efforts without formal rulemaking or explanation, affected stakeholders can argue that the agency is effectively abdicating its statutory responsibilities. By framing the issue as one of administrative accountability, rather than constitutional mandate, advocates can sidestep the equal protection debates that have repeatedly undone race-conscious programs.
Litigation grounded in the APA can fulfill several goals. It can force agencies to publicly justify enforcement rollbacks, require them to maintain oversight structures, and reveal informal pressures behind shifts in institutional behavior. Suppose, for example, that the OFCCP drastically reduces compliance evaluations for Section 503-covered contractors without articulating a coherent rationale. In that situation, litigants might allege that such a move is arbitrary and capricious or contrary to law, potentially prompting judicial scrutiny and spurring the agency to reinvigorate its oversight—long before any final ruling is even issued. The specter of discovery and negative publicity alone can encourage agencies to restore at least a baseline level of enforcement, especially when political attention is already focused on civil rights issues.
Still, judicial review of agency inaction faces its own constraints. Courts have historically been reluctant to interfere with enforcement discretion, particularly in resource-constrained settings. However, courts have also recognized limits to that discretion, especially when agencies fail to follow their own rules or when statutory mandates are rendered meaningless through systematic non-enforcement. In Heckler v. Chaney (1985), the Court acknowledged a presumption against reviewability of agency inaction but left open the possibility of review when an agency “has ‘consciously and expressly adopted a general policy’ that is so extreme as to amount to an abdication of its statutory responsibilities.”
Moreover, litigation need not result in sweeping judicial remedies to be effective. The process of filing suit, securing discovery, and obtaining judicial scrutiny can exert reputational and institutional pressure on agencies. Even the mere threat of litigation can incentivize compliance, particularly in politically sensitive moments when public attention is heightened around issues of civil rights enforcement. Disability rights organizations, unions, and advocacy groups thus play a critical role not only as litigants but as watchdogs capable of restoring institutional urgency.
Beyond the APA, other legal strategies may include mandamus actions to compel agency performance of non-discretionary duties, Freedom of Information Act (FOIA) requests to uncover internal enforcement decisions, and state-level litigation where contractors receive public funds. These tools offer procedural footholds for activating mandates that risk becoming symbolic. In sum, legal durability is not self-executing. Statutory mandates, while resilient on paper, require institutional actors to interpret, implement, and defend them. Administrative law offers a bridge between legal obligation and regulatory reality—one that must be strategically utilized if disability-based affirmative action is to survive the pressures of DEI retrenchment.
Ideally, disability-based affirmative action presently stands as one of the sturdiest legal pillars of inclusive employment policy in the federal system. Its solidity does not rely on broad diversity arguments or theories of remedial justice, but on a clear statutory mandate. Under Sections 501 and 503 of the Rehabilitation Act, these obligations aren’t just options—they’re requirements. Coupled with the relatively lenient constitutional review afforded to disability classifications, this structure provides a formidable shield against many challenges that have unraveled other affirmative action policies.
Yet, as this piece has emphasized, even ironclad statutory language can be eroded by inertia. When agencies scale back oversight, when audits fade, when contractors face minimal consequences for noncompliance, what exists on paper risks becoming a hollow promise. To keep disability-based affirmative action not just alive but effective, vigilance is key. Regulatory bodies must be properly resourced and obligated to enforce. Legislatures must supply the clarity and support needed to ensure meaningful compliance. Courts must remain open to reactivating stalled mandates when agencies stumble. And the public must recognize that disability inclusion is not a courtesy, but a statutory imperative reflecting decades of commitment to workplace equity.
In a political climate increasingly skeptical of DEI, the lasting viability of affirmative action may turn on those programs that combine constitutional stability with undeniable statutory grounding. Disability-based affirmative action fits that description. Ultimately, its endurance hinges on the very advocacy, institutional follow-through, and legal engagement necessary to uphold the fundamental goals ofSections 501 and 503: ensuring that individuals with disabilities are guaranteed genuine, enforceable opportunities in every corner of the workforce.
