The Lost Promise of Disability Rights

Claire Raj*

Children with disabilities are among the most vulnerable students in public schools. They are the most likely to be bullied, harassed, restrained, or segregated. For these and other reasons, they also have the poorest academic outcomes. Overcoming these challenges requires full use of the laws enacted to protect these students’ affirmative right to equal access and an environment free from discrimination. Yet, courts routinely deny their access to two such laws—the Americans with Disabilities Act (ADA) and section 504 of the Rehabilitation Act of 1973 (section 504).

Courts too often overlook the affirmative obligations contained in these two disability rights laws and instead assume that students with disabilities’ only legal recourse is the Individuals with Disabilities Education Act (IDEA). Regrettably the IDEA is not capable of remedying all the harms students endure. In fact, the IDEA, by its terms, extends to only a subset of students with disabilities. Even so, courts force all students to exhaust the IDEA’s administrative procedures before invoking remedies under the other two disability rights laws. By narrowly construing antidiscrimination principles and ignoring the affirmative obligations contained in disability rights laws, courts unduly restrict students’ protections under these laws.

This Article solves that problem by explaining and clarifying the nuance that drives confusion in this area: the difference between the IDEA’s guarantee of a free appropriate public education and the ADA and section 504’s guarantee of equal access to public education. With that distinction clear, this Article disaggregates the types of claims that are most often erroneously obstructed by the IDEA’s exhaustion clause and then creates a framework that would allow courts to analyze and correctly apply the exhaustion clause. In doing so, it hopes to remove these laws from the IDEA’s shadow and renew their promise of equal access to educational opportunity.

* Assistant Professor, University of South Carolina School of Law. Many thanks to the participants of the AALS Conference on Clinical Legal Education Works-in-Progress session for their insightful feedback on this project. Thank you to my colleagues at the University of South Carolina School of Law for their invaluable feedback, in particular Emily Suski and Ann Eisenberg. Finally, a huge thank you to Alicia Moss, my hardworking research assistant.