Today Judge Robertson of the United States District Court in D.C. ordered the Treasury to redesign federal currency so it can be more easily handled by the blind and visually impaired. (lvHB) I have no background in the relevant area of law, but I thought I would take a quick look at the legal issues. My tentative conclusion: Judge Roberston's opinion doesn't strike me as persuasive.

  The relevant statute is the Rehabilitation Act of 1973, and particular Section 504, codified at 29 U.S.C. 794:

No otherwise qualified individual with a disability in the United States, as defined in section 706(8) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.

  In an opinion by Justice Marshall in Alexander v. Choate, 496 U.S. 287 (1985), the Supreme Court interpreted this to "require[] that an otherwise qualified handicapped individual must be provided with meaningful access to the benefit that the grantee offers." (emphasis added).

  The crux of Judge Robertson's opinion is that designing currency without special accomodations to the visually impaired denies them "meaningful acceess" to the benefit of currency:

[B]lind or visually impaired people cannot make effective use of American currency without help. There was a time when disabled people had no choice but to ask for help – to rely on the "kindness of strangers." It was thought to be their lot. Blind people had to ask strangers to push elevator buttons for them. People in wheelchairs needed Boy Scouts to help them over curbs and up stairs. We have evolved, however, and Congress has made our evolution official, by enacting the Rehabilitation Act, whose stated purpose is "to empower individuals with disabilities to maximize employment, economic self-sufficiency, independence, and inclusion and integration into society." 29 U.S.C. § 701(b)(emphasis added). It can no longer be successfully argued that a blind person has "meaningful access" to currency if she cannot accurately identify paper money without assistance.

  I am totally and completely new to this area, so maybe my take is way off. But Judge Robertson's analysis doesn't seem right to me. 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.

  Judge Robertson notes one case that seems at least somewhat on his side. He explains:

In United States v. Board of Trustees for University of Alabama, 908 F.2d 740 (11th Cir. 1990), federal regulations requiring the provision of sign-language interpreters for the hearing impaired were upheld, because, "in the case of a deaf student . . . all access to the benefit of some courses is eliminated when no signlanguage interpreter is present." Id. at 748.

  I agree that this case is at least somewhat analogous. Providing sign-language interpreters so deaf students can understand classes is something like providing mechanisms on currency to permit visually impaired individuals to identify currency. At the same time, I think there may be two relevant differences. First, it's unclear from the the 11th Circuit decision whether that court was giving this issue de novo review or Chevron deference. Second, a deaf person who has no interpreter and can't effectively read lips can't actually receive the communication of the class that are the government benefit. Access is effectively denied: The benefit is the class's communication of ideas, and a hearing-impaired student doesn't get that at all without an interpreter. In contrast, the visually impaired person still can obtain currency; he still has access to it. What he lacks is the ability to use the currency and manipulate it as effectively as a person with good vision. This is certainly unfortunate; as I mention above, it may be a good idea to change the currency for that reason. But I'm not sure that this means that the visually impaired person lacks "meaningful access" to the currency.

  Have I missed the legal boat? Am I placing too much emphasis on the distinction between "access" and "use," or on the definition of the government's "benefit"? I look forward to your comments.