Can the New Mexico Commission for the Blind use Title VII Part B federal funds and Social Security reimbursements for independent living services, and do the Statewide Independent Living Council's proposed public-comment policies violate the First Amendment?
Plain-English summary
Greg Trapp, Executive Director of the New Mexico Commission for the Blind (CFB), asked the AG four questions about federal funding and the First Amendment. The AG addressed all four in a revised opinion (replacing an earlier opinion withdrawn after new information surfaced).
1. Can CFB use Title VII Part B federal funds for independent living services for visually impaired New Mexicans under 55? Yes. Part B funds are intended for independent living for people with significant disabilities. The federal regulations contemplate use by state agencies (including CFB), not just by Centers for Independent Living. CFB can receive Part B funds for this purpose.
2. Is receipt of Part B funds a prerequisite for CFB to use Social Security reimbursements for independent living services? No. The state as a whole receives Part B funds, even when CFB itself does not. Social Security reimbursements (a type of "program income") can be used for independent living services as long as the state-level program is federally subsidized. In practice, CFB must remit the reimbursements to the New Mexico Vocational Rehabilitation Division (the state's "designated state entity") and the Division can then transfer them back to CFB for independent living use.
3. Can CFB use other federal vocational rehabilitation program income (beyond Social Security reimbursements) for independent living? No. Federal regulations limit other program income to vocational rehabilitation purposes. Only the Social Security reimbursements can be transferred to independent living.
4. Do the Statewide Independent Living Council's proposed public-comment policies violate the First Amendment? Yes. Several policies protect SILC members and staff from negative speech but not the public from similar language, and the policies allow praise but not criticism of SILC. That is viewpoint-based discrimination, which is not constitutionally permissible. The policies need to be amended to provide symmetry between attacks on SILC members and attacks on the public, and to be limited to genuinely permissible categories like fighting words or irrelevant personal attacks.
What this means for you
If you administer a state agency receiving federal vocational rehabilitation funds
You can use Part B funds for independent living services if you are an authorized service provider under the federal regulations. State agencies are explicitly recognized as eligible recipients (45 C.F.R. § 1329.10(b)(4) supports increasing the "capacities of public or nonprofit agencies and organizations and other entities").
If you also generate program income (like Social Security reimbursements for vocational rehabilitation work that helps SSDI/SSI recipients become employed), the reimbursements have flexible uses. You can apply them to independent living programs through your state's designated state entity. Other program income (consumer copays, insurance reimbursements) is more restricted, generally limited to vocational rehabilitation.
If you sit on a state board or council that holds public meetings with public comment
Read the First Amendment portion of this opinion carefully. Two specific lessons:
- Symmetry of protection. If your policy protects board members and staff from "abusive language" or "personal attacks," it must protect the public from the same. Otherwise, the policy is not viewpoint-neutral.
- No "praise-only" rules. A policy that bans negative comments while allowing positive ones is the textbook viewpoint-based restriction the Griffin v. Bryant (D.N.M. 2014) case struck down.
Permissible time, place, or manner restrictions exist (length of comments, irrelevance, fighting words). Substantive restrictions on viewpoint do not survive constitutional review.
If you are a member of the public who has been silenced at a public meeting
This opinion strengthens your hand. If a public body in New Mexico has policies restricting "negative" speech about its members or staff while allowing positive speech, the policy is unconstitutional. You can challenge it under the First Amendment, and Griffin v. Bryant is direct precedent.
If you are a federal grant administrator or auditor
The opinion clarifies how state agencies that are not Centers for Independent Living can still receive Part B funds. The federal framework contemplates this. State agencies need to comply with the same reporting and oversight rules as CILs.
If you are a SILC chair or staff member
Revise the public-comment policies. The opinion gives a roadmap:
- Make protections symmetrical (members and public both protected from genuinely abusive language).
- Limit substantive restrictions to constitutionally permissible categories: fighting words, irrelevant personal attacks, threats, true incitement, obscenity, defamation.
- Allow time, place, and manner restrictions that are content-neutral (length, repetition, off-topic).
- Eliminate "praise-only" or "decorum-favoring SILC" framing.
Common questions
Q: What is Part B of Title VII of the Vocational Rehabilitation Act?
A: 29 U.S.C. §§ 796e-0 to -796e-3. The provisions fund state programs for independent living services for individuals with significant disabilities, regardless of age.
Q: What are Centers for Independent Living (CILs)?
A: Local nonprofit organizations that provide independent living services. Most Title VII Part B funds typically go to CILs. State agencies like CFB can also be eligible recipients under the regulations.
Q: What is "program income"?
A: Federal regulations define it as gross income generated by a federally-supported activity, including consumer payments, insurance reimbursements, and Social Security reimbursements for vocational rehabilitation. Most program income must stay in vocational rehabilitation. Social Security reimbursements specifically can also be used for independent living and a few other purposes.
Q: Why does the Constitution protect "abusive" speech at public meetings?
A: It does not. The First Amendment allows restrictions on truly unprotected speech (true threats, fighting words, incitement, defamation, obscenity). What the Constitution prohibits is content- or viewpoint-based restrictions on protected speech, especially when applied asymmetrically (board members protected, public not).
Q: Did the AG say SILC must allow ANY speech at all?
A: No. The AG explicitly notes that "off-topic" comments (e.g., about Middle East policy at a SILC meeting) can be restricted. Time, place, and manner restrictions are permissible, including length limits and topic relevance. The First Amendment problem is policies that protect SILC's reputation while leaving the public's reputation exposed.
Background and statutory framework
Federal funding context. The Vocational Rehabilitation Act has multiple titles. Title I funds vocational rehabilitation. Title VII Chapter 1 Part B funds independent living for adults with significant disabilities. Title VII Chapter 2 funds independent living specifically for older blind individuals (over 55). The funding is allocated to states with approved plans, and state plans require designation of a "designated state entity" (DSE) to receive and account for the money. New Mexico's DSE is the Division of Vocational Rehabilitation of the Public Education Department.
Commission for the Blind structure. The CFB was created by the Commission for the Blind Act, NMSA 1978 §§ 28-7-15 to -23 (1986). It is mandated to "apply for and receive money from any state or federal agency to be used for purposes relating to blindness." It maintains training centers for "vocational, industrial and other training of eligible blind persons" and "orientation and assistance for the adjustment of blind persons" (§ 28-7-17(D)). The "orientation and assistance" language supports CFB's authority to provide independent living training.
SILC structure. The Statewide Independent Living Council is required by federal law (29 U.S.C. § 796d) for states that receive Part B funds. The SILC plays a coordinating role but cannot directly provide services. Its policies on public comment at meetings are the subject of the First Amendment portion of this opinion.
First Amendment analysis. Public meetings of governmental bodies are "limited public forums" under Griffin v. Bryant (D.N.M. 2014). Restrictions in limited public forums must be "viewpoint-neutral and reasonable." A village ordinance saying "no negative mention will be made of any Village personnel, staff or the Governing Body" was struck down in Griffin because it (1) shielded government employees from negative mention but not private citizens, and (2) allowed praise but not criticism. The SILC policies have the same problems and are unconstitutional as drafted.
Citations and references
Federal law:
- 29 U.S.C. §§ 796e-0 to -796e-3 (Title VII Part B Independent Living)
- 29 U.S.C. § 728 (Social Security reimbursement use)
- 34 C.F.R. § 361.63 (Program income)
- 45 C.F.R. § 1329.10(b) (Permitted Part B uses)
State law:
- NMSA 1978 §§ 28-7-15 to -23 (Commission for the Blind Act)
Cases:
- Counterman v. Colo., 600 U.S. 66 (2023) (categories of unprotected speech)
- Griffin v. Bryant, 30 F. Supp. 3d 1139 (D.N.M. 2014) (limited public forum, viewpoint neutrality)
Source
- Landing page: https://nmdoj.gov/publications/opinions/
- Original PDF: https://nmdoj.gov/wp-content/uploads/Attorney-General-Opinion-2026-08-REVISED-2.pdf
Original opinion text
March 31, 2026
OPINION OF RAÚL TORREZ
Attorney General
Opinion No. 2026-08
To: Greg Trapp, Executive Director, N.M. Commission for the Blind
Re: REVISED 1 Attorney General Opinion – Federal Funding and Constitutional Issues Pertaining to the New Mexico Commission for the Blind (CFB) and the Statewide Independent Living Council (SILC)
[Note: This opinion replaces Opinion 2025-14, withdrawn after new information came to light.]
Questions Presented
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Is the CFB permitted to utilize funds provided by the federal government, pursuant to Title VII, Part B, of the Vocational Rehabilitation Act, to provide independent living services for visually impaired New Mexicans?
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Is the receipt of Part B funds a prerequisite for CFB's use, to provide independent living services to visually impaired individuals, of reimbursement funds paid by the Social Security Administration?
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Other than the money from the Social Security Administration, can CFB use other federal vocational rehabilitation program funds ("program funds") to provide independent living services under Title VII, Part B, of the Vocational Rehabilitation Act?
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Do the Recommended SILC Policies pertaining to public participation and comment and conduct at public meetings violate the First Amendment to the United States Constitution?
Short Answers
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The New Mexico Commission for the Blind is an appropriate recipient of funds for independent living initiatives under Title VII, Chapter 1, Part B of the federal Vocational Rehabilitation Act, for the purpose of providing services relating to independent living for individuals under the age of 55.
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Receipt of Part B funds by the Commission for the Blind is not a prerequisite for the Commission's use, for independent living services, of reimbursements from the Social Security Administration for its vocation rehabilitation work.
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Other than Social Security reimbursements, the Commission cannot use program income earned by vocational rehabilitation projects to fund independent living services.
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Some of the Statewide Independent Living Council's recommended policies regarding public comment and the conduct of meetings violate the First Amendment to the United States Constitution, because they are not viewpoint neutral.
Background
The questions asked of this office in this request generally concern the funding of the New Mexico Commission for the Blind (CFB), and which federal funding sources can be used to fund services to help visually impaired New Mexicans who are under the age of 55 to live independently. These services include instruction on how to travel using a white cane, how to read Braille, how to cook without vision, and how to use assistive technology apps for computers and smartphones, as well as the provision of video magnifiers and other adaptive technology.
The CFB was created by the Commission for the Blind Act, NMSA 1978, Sections 28-7-15 to -23 (1986). The CFB is mandated to "apply for and receive money from any state or federal agency to be used for purposes relating to blindness." Among these duties is to "establish, equip and maintain a center with qualified instructors for vocational, industrial and other training of eligible blind persons. The center shall also provide for orientation and assistance for the adjustment of blind persons."
Since the 1980s, the CFB has utilized funding from the federal government provided pursuant to Title VII, Chapter 1, Part B, of the Vocational Rehabilitation Act, 29 U.S.C. §§ 796e-0 to -796e-3. Significantly, this Part B money is the only source of funding under the Vocational Rehabilitation Act that can be used to provide independent living services to visually impaired individuals under the age of 55.
The Part B funding is allocated to the states with approved plans based on their populations. The State receives $348,060 in Part B funds. Of this, 18 percent, or approximately $60,000, is earmarked for the CFB. The remaining 82 percent is distributed to the centers for independent living.
In addition, the CFB makes use of "program income," which is defined, in the context of vocational rehabilitation, as "gross income received by the State that is directly generated by a supported activity under this part or earned as a result of the Federal award during the period of performance." 34 C.F.R. § 361.63(a). For the purposes of this Opinion, the important form of "program income" is that earned from the Social Security Administration.
The SILC has meetings on a regular basis that allow for public comment. However, certain policies have been recommended that would subject this right to public comment to certain restrictions. These policies, while appearing to support the noble goal of increasing the decorum at meetings, contain potentially content-dependent restrictions on speech, raising potential First Amendment concerns.
Analysis
1. Part B Funding to CFB
As noted above, Part B of Chapter 1 of Title VII the Vocational Rehabilitation Act funds the state program for independent living for individuals with significant disabilities, regardless of the person's age or the nature of the disability. Under the statute, the State is authorized to use Part B funds for the seven listed purposes in 45 C.F.R. § 1329.10(b), most of which clearly encompass the services provided by CFB. Although the Department of Vocational Rehabilitation, as the DSE, is generally not permitted to directly provide independent living services, there is no reason why other state agencies are not permitted to provide such services. The regulations pertaining to Part B define the term "service provider" broadly. The list of permissible uses for Part B funds specifically includes increasing the "capacities of public or nonprofit agencies and organizations and other entities." 45 C.F.R. § 1329.10(b)(4). This indicates that the use of Part B funds by state agencies was explicitly contemplated by the federal government.
In conclusion, Plan B funds are to be used to provide independent living services to individuals with significant disabilities. They may be utilized by the centers for independent living, they also may be used by other entities, including CFB. CFB may use these funds to provide independent living services to visually impaired individuals under the age of 55.
2. Part B Funding to CFB as Prerequisite to Receiving Funds from the Social Security Administration
The next question posed to this office is whether receipt of Part B Funding is a prerequisite for using money paid by the Social Security Administration for reimbursement for vocational rehabilitation. As noted above, the regulations governing "program income" specifically allow this reimbursement, a subset of "program income," to be used for certain non-vocational rehabilitation purposes, including services for independent living under Title VII of the Vocational Rehabilitation Act. The argument that receipt of Part B funding is a prerequisite for receipt of program income from the Social Security Administration appears to be based on a portion of the regulation that states that "the State must use program income to supplement Federal funds that support program activities that are subject to this part." 34 C.F.R. § 361.63(c)(3)(i).
However, the paragraph does not require that any particular agency needs to use program income to supplement federal funds, only that the State as a whole needs to do so. Whether or not CFB receives Part B funds, the State of New Mexico does receive such funding. Thus, even if CFB itself does not receive Part B funds, the State's Independent Living Program, as a whole, is federally subsidized. Thus, CFB can utilize Social Security reimbursements for independent living services without receiving Part B funding.
However, the requirement that the State use Social Security program income to supplement State programs funded under Title VII creates certain procedural requirements. In order to use social security reimbursements to subsidize Part B activities, such as independent living services for visually impaired individuals under the age of 55, CFB must remit these reimbursements to the New Mexico Vocational Rehabilitation Division. Because the social security reimbursements must be used to supplement Part B funds if they are to pay for independent living services, they must be funneled through the only state agency that is permitted to administer Part B funds. That agency is the Vocational Rehabilitation Division, as the DSE. However, the Vocational Rehabilitation Division can repay the funds to CFB for independent living services, if it determines that this repayment is appropriate.
3. Use of Program Income, Other than Social Security Reimbursement, for Title VII Services
The answer to the next question is fairly straightforward: while Social Security reimbursements for vocational rehabilitation services can be transferred to the Title VII independent living program, can other program income generated by vocational rehabilitation services be transferred to the Title VII program. According to the relevant federal regulation, "[e]xcept as provided in paragraph (c)(2) of this section, program income, whenever earned, must be used for the provision of vocational rehabilitation services and the administration of the vocational rehabilitation services portion of the Unified or Combined State Plan." 34 C.F.R. § 361.63(c)(1). Paragraph (c)(2) simply refers to the Social Security reimbursements described above. Therefore, the answer is clear: the only vocational rehabilitation program income that can be used for Title VII activities is Social Security reimbursement, and all other program income must be used for vocational rehabilitation activities.
4. Free Speech Issues Raised by the SILC Policies
Finally, this office has been asked to opine regarding the First Amendment issues raised by the recommended SILC policies regarding public comment at its meetings.
"From 1791 to the present, the First Amendment has permitted restrictions upon the content of speech in a few limited areas." Counterman v. Colo., 600 U.S. 66, 73 (2023). These categories include incitement, defamation, obscenity, and true threats.
Restrictions on protected speech are evaluated using different tests depending on the manner of the restriction. For instance, a "time, place, or manner" restriction may be acceptable, as long as it is "reasonable, content-neutral, and narrowly tailored to effectuate a significant government interest." Griffin v. Bryant, 30 F. Supp. 3d 1139, 1181 (D.N.M. 2014). In Griffin, the U.S. District Court for the District of New Mexico considered a village ordinance governing public comment at village Governing Body meetings stating that "no negative mention will be made of any Village personnel, staff or the Governing Body." The court noted that this was not a proper "time, place, or manner" restriction, because it was not content-neutral. Thus, it would be analyzed "under the usual framework for speech restrictions in a limited public forum, which is that it must be viewpoint-neutral and reasonable." However, the ordinance in question failed that test. "First, it shield[ed] government employees from negative mention, but not private citizens—including the other citizens present at the Governing Body meeting." Second, and more serious, the ordinance "allow[ed] praise but not criticism of the Governing Body and its employees."
Based on the above, the policies in question need to be altered in order to be constitutional. Like the village at issue in Griffin, meetings of the SILC are a limited public forum. While the restrictions on speech during these meetings are not content-neutral, that alone is not fatal to their constitutionality. For instance, it would not be appropriate to utilize a SILC public comment period to discuss the situation in the Middle East. Further, much of what was banned by the policies would encompass incitement and threats, which, as discussed in Counterman, are not constitutionally protected.
However, the restrictions are clearly not viewpoint neutral, as, in several locations, they protect SILC members and staff from derogatory, demeaning and bullying language, but say nothing about protecting others from such language or preventing praise of the SILC members. The policies could be amended to pass constitutional muster, if the restrictions were amended to provide symmetry between attacks on SILC members and attacks on the public, and if the restrictions could be clarified to be limited permissible examples of a "no negative mention" rule. However, they are not constitutional as written.
Conclusion
The New Mexico Commission for the Blind may receive federal funding under Part B of Chapter 1 or the Title VII of the Vocational Rehabilitation Act to provide independent living services to visually impaired individuals under the age of 55. However, receipt of such Part B funding is not a prerequisite for the Commission to receive, and utilize for independent living services, reimbursement from the Social Security Administration for vocational rehabilitation projects. Such rehabilitation is the only "program income" derived from vocational rehabilitation programming that can be used to provide independent living services. Finally, the recommended policies of the Statewide Independent Living Council, to the extent that they concern public comment, do not pass constitutional muster, as they are viewpoint-dependent restrictions on speech.
Please note that this opinion is a public document and is not protected by the attorney-client privilege. It will be published on our website and made available to the general public.
RAÚL TORREZ
ATTORNEY GENERAL
/s/ Lawrence M. Marcus
Lawrence M. Marcus
Assistant Solicitor General