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3000 DJ 171-32-0 January 21, 1994

Mr. Roger T. Boes Boes Iron Works, Inc. 2321 Perdido Street New Orleans, Louisiana 70119-7538 Dear Mr. Boes: This responds to your letter to President Clinton concerning eligibility of individuals with disabilities for "minority status classification" under the Americans with Disabilities Act (ADA). The ADA authorizes the Department of Justice to provide technical assistance to individuals and entities having rights or obligations under the Act. This response provides informal guidance to assist you in understanding the ADA's requirements. It does not, however, constitute a legal interpretation and is not binding on the Department. Your inquiry appears to concern the exclusion of individuals with disabilities from the classes of individuals eligible for minority set aside programs. This exclusion would not necessarily constitute a violation of the ADA or of section 504 of the Rehabilitation Act of 1973, as amended, which applies to federally assisted as well as federally conducted programs and activities. Title II of the ADA and the Department of Justice implementing regulation, 28 C.F.R. pt. 35 (copy enclosed), prohibit a public entity from discriminating on the basis of disability against a qualified individual with a disability in the benefits and services it provides. 28 C.F.R. 35.130 (a). A "qualified individual with a disability" is one who meets the essential eligibility requirements for the receipt of services or

participation in the program or activity provided by the public entity. The ADA does not limit the authority of a public entity to establish eligibility requirements that are unrelated to disability, so long as those requirements do not exclude qualified individuals with disabilities. The exclusion of individuals with disabilities from a "set aside" established for particular classes of individuals, such as racial, ethnic, or other minority groups, would not be discriminatory, unless individuals with disabilities who are also members of the particular classes covered by the set aside are excluded because of their disabilities. (Such an exclusion of an individual who is "qualified" because he or she meets the eligibility requirement of membership in a covered group could violate the ADA.) We understand your position to be that the failure to include business owners with disabilities is discriminatory because those business owners are "disadvantaged" by their disabilities in the same way as others are disadvantaged by their membership in the covered groups. This argument is premised on the assumption that, in establishing a preference for particular classes of "disadvantaged" business owners, the State is obligated to include all categories of business owners that are similarly "disadvantaged." The ADA does not establish such an obligation. It does not prohibit State and local governments from establishing eligibility criteria that target specific groups as intended beneficiaries, based on the goals and purpose of authorizing legislation, so long as the program does not exclude or discriminate against persons with disabilities because of their disability. Of course, if you seek to have the programs in question amended or revised to include the specific groups you represent as eligible for services or benefits, you should contact the agencies administering these programs and the appropriate legislative bodies that authorize them. I hope this information is helpful. Sincerely,

Stewart B. Oneglia

Chief Coordination and Review Section Civil Rights Division Enclosure