More on the Currency Opinion

Orin Kerr at the Volokh Conspiracy criticizes the currency case. Here's the crux of his analysis:

The Supreme Court's decision in Choate requires that the government program must provide "meaningful access to the benefit that the grantee offers," not meaningful use of any benefit that originated with the grantee. Going back to the statutory text, the question is whether the disabled person is "denied the benefits of" the federal program. But the visually impaired are not denied the benefits of federal currency, and are not denied meaningful access to currency. They can obtain currency like anyone else, and they can spend it like anyone else. Rather, their use of the currency that is provided under a federal program is more difficult for them than for people with sight. This may be troubling as a policy matter; changing the currency to help the blind may be a good idea. But it's not clear to me that it is needed to give visually impaired persons "meaningful access" to currency.

I don't know Orin particularly, but I'm a big admirer of his work and have always found him to be thoughtful and careful. In this case, though, I think he's wrong. For one thing, I think the "meaningful access"/"meaningful use" line he tries to draw is a line that slices the baloney awfully thin. The whole point of paper money is that it will be used; if it's harder for people with disabilities to use, their access to paper money isn't as meaningful. In Choate, everyone got the same 14 days of inpatient hospitalization, disabled or not. And while the plaintiffs with disabilities needed more hospitalization than that, during the 14 days they received the same benefit from that hospitalization as did the nondisabled. Here, though, people with some disabilities get less benefit from the paper money, simply because of the contingent choices the government has made about how to design it. That seems to be exactly the kind of thing that the "reasonable accommodation" requirement -- which Choate acknowledges -- was designed for.

Moreover, the statutory text goes beyond "deni[als of] the benefits of" programs or activities. It also prohibits the federal government from "subject[ing people with disabilities] to discrimination" -- and "discrimination" is a term that is defined in the Rehab Act case law as incorporating a requirement of reasonable accommodation. So I don't think you can say that the statute reaches only denials of all benefit.