# 120


II - 3.3000                               January 21, 1994


DJ 171-32-0





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