Updated – Several states have submitted a status update in a lawsuit that puts at risk the federal 504 plan. The 504 is a civil rights tool. Many U.S. families use it to ensure equal access to public education for students with food allergies and asthma.
The suit, called Texas v. Becerra, involves 17 states and seeks to end accommodations for students with disabilities that have been in place for decades.
“If Section 504 of the Rehabilitation Act is eliminated, millions of children could lose critical protections, worsening health and education disparities,” Kenneth Mendez, tells Allergic Living. He is president and CEO of the Asthma and Allergy Foundation of America (AAFA).
The states involved in the lawsuit are suing the U.S. government. In the suit, filed in September 2024, they claim that Section 504 is unconstitutional.
However, in a required status update submitted to the court on February 19, 2025, the plaintiffs address their stand on the constitutionality of 504 plans. “Plaintiffs clarify that they have never moved – and do not plan to move – the Court to declare or enjoin Section 504 … as unconstitutional on its face,” the update states.
But the claim that the states involved never moved to have Section 504 declared unconstitutional, “is an unfathomable statement,” says disability rights attorney Mary Vargas. In her view, “this appears to be a word game that is misleading at best.”
504 Plan Lawsuit’s Allergy Impact
In two counts of the complaint, the states explicitly ask the court to declare Section 504 unconstitutional, she notes. Vargas, a partner in the firm Stein & Vargas LLP, points out the status update does not alter the original complaint’s text.
“They have represented to the court that they have not moved to enjoin or declare section 504 unconstitutional,” she says. “But this is the exact relief sought in the complaint.”
Attorneys general from the 17 states involved filed the lawsuit in the fall of 2024 in the U.S. District Court for the Northern District of Texas. In the February 19 status update, the states also asked for more time to file motions in the case, which the judge approved. The next status update will be April 21, 2025.
The states involved are: Alaska, Alabama, Arkansas, Florida, Georgia, Indiana, Iowa, Kansas, Louisiana, Missouri, Montana, Nebraska, South Carolina, South Dakota, Texas, Utah, and West Virginia.
AAFA reminds the food allergy and asthma communities in an “Action Alert” that the claim in the plaintiffs’ status update does not remove the threat to 504 plans. “The lawsuit has not been amended, and the original constitutional challenge to Section 504 has not been withdrawn,” AAFA says.
Under the Rehabilitation Act of 1973 and further clarified by the ADA, the 504 plan ensures students with disabilities equal access to education in publicly funded schools. Students with food allergies often qualify as having a disability under the ADA. This is because food allergies can affect eating and breathing, which Title II of the ADA calls “major life activities”.
504 Plan Lawsuit‘s Broad Reach
Many families navigating food allergies and asthma rely on 504 plans to provide the basis of a student’s accommodations. For example, identifying where an auto-injector or inhaler is kept, staff training for identifying an allergic reaction, and how food is handled in the classroom.
“AAFA is closely monitoring this lawsuit, which could have serious implications for 504 plans that protect our community of students with food allergies and asthma,” Mendez says.
The plaintiffs’ argument in Texas v. Becerra targets specific gender identity protections added to the disability law by the Biden administration in May 2024. However, the states’ lawsuit appears to put the entire Section 504 in jeopardy.
Count 3 of the suit calls The Rehabilitation Act “not constitutional.” The states make this claim because the act attaches disability conditions, which can be changed, to the release of federal funds for pre-existing programs.
The plaintiffs’ suit demands a declaration that Section 504 is unconstitutional. They further seek “permanent injunctive relief against Defendants enjoining them from enforcing Section 504.”
How to Make Your Voice Heard
Members of the food allergy community are voicing concern about the chance that protections provided under Section 504 for equal access to education and healthcare could be eliminated.
For example, members of food allergy support groups, such as NNMG Food Allergic Families Forum, are discussing the 504 plan lawsuit on social media. They are worried about protecting their children’s rights, and wondering what to do about it.
The Disability Rights, Education and Defense Fund (DREDF), a civil rights law and policy center, provides information about the lawsuit and how to help. Its website provides: a list of state attorneys general and their contact information, along with a sample email to send.
If you live in one of the states involved in the case, you can contact your attorney general to ask them to exit the case. Residents in other states can also contact their attorneys general to ask them to support the law.
AAFA’s Mendez stresses that it’s helpful to speak up. AAFA has posted its “Action Alert” post, with information on how to take action. The nonprofit urges community members to “keep up the pressure to safeguard disability rights in education.”
“For now, these protections remain in place,” Mendez says. “But we urge parents to take action – contact state and federal leaders to defend the 504.” AAFA says it will continue to provide updates and advocacy opportunities.
Article updated February 21, 2025.
Related Reading:
Food Allergies at School: the Plans and Laws to Keep Kids Included
Food Allergy Mom Video: Creating a School 504 Plan
