Academic journal article Texas Law Review

Current Case: American Council of the Blind V. Paulson-U.S. Currency and Disability-Discrimination Law*

Academic journal article Texas Law Review

Current Case: American Council of the Blind V. Paulson-U.S. Currency and Disability-Discrimination Law*

Article excerpt

I. Introduction

The United States is one of the only countries in the world that does not provide some nonvisual means of distinguishing its currency denominations.1 Most countries provide some distinguishing features on their paper currency, such as different sizes for different denominations or tactile features such as raised lettering or micro-perforation.2 Because the United States provides no such features, the 3.7 million Americans with severe visual impairments3 must resort to purchasing expensive electronic devices to distinguish between denominations; relying on (hopefully honest) cashiers and clerks to identify their money for them; or generally forgoing the use of paper currency in favor of debit or credit cards.

In American Council of the Blind v. Paulson,4 the D.C. Circuit held that, in light of these facts, the visually impaired lack "meaningful access" to U.S. currency5 and that this lack of meaningful access violates § 504 of the Rehabilitation Act6-the first and foundational federal law that protects the civil rights of the disabled in the United States.7 On remand, the D.C. District Court ordered the Treasury to redesign all U.S. paper currency to provide meaningful access to the visually impaired.8 Furthermore, the court ordered the Treasury to begin the redesign process immediately and to provide a public comment period after it completes a study of the best available options for redesigning currency, but before it decides on its final course of action.9

The decision has already been hailed as a landmark.10 It has also prompted widespread speculation as to the economic implications of requiring the Treasury to redesign U.S. currency.11 Though a significant currency redesign would be costly for the federal government, the D.C. Circuit held that the government had not proved that it would be unduly burdensome.12 Perhaps more significant are potential far-reaching economic effects on third parties, such as the $35 billion U.S. vending-machine industry.13

Given the considerable economic ramifications of the currency issue, the legal battle over Paulson is likely far from over. The Treasury chose not to appeal the D.C. Circuit's decision to the U.S. Supreme Court before undertaking the redesign process. This decision may signal that the Treasury intends to propose a rather modest redesign (or no redesign at all, opting instead for assistive technology for the blind). In that case, the legal issue would almost certainly be resolved via judicial review at the back end of the process, after the Treasury has sought public comment and developed its final proposal. Should this occur, it could be several years before Paulson's central question - whether and how the Treasury should be required to redesign its paper currency - is resolved.

This Note begins with the premise that the D.C. Circuit was correct in finding impermissible discrimination in the administration of U.S. currency. However, I argue that the ongoing currency controversy should be framed, discussed, and resolved on different terms: the basis of the resolution should be constitutional rather than statutory. Specifically, I argue that the currency question implicates individual due process rights and that the ongoing controversy should be conceived and resolved on those grounds.

My argument proceeds in three Parts. Part II analyzes the Paulson decision and its basis in the Rehabilitation Act of 1973. Part III asks why the currency controversy has thus far not been framed in constitutional terms. I argue that this is because the rights of the disabled have historically been legally conceptualized as "positive," welfare-type rights (which are not constitutionally protected) rather than as "negative" rights (which are constitutionally protected). Finally, in Part IV of this Note, I argue that the currency controversy can and should be conceived and resolved in terms of federal due process rights.

II. Paulson, the Currency Controversy, and Federal Disability Law

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