THE LOST PROMISE OF DISABILITY RIGHTS.

• Author: Raj, Claire

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.

Table of Contents Introduction I. An Assortment of Rights: Laws Protecting Educational Rights of Students with Disabilities A. The Individuals with Disabilities Education Act (IDEA) B. Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act C. FAPE's Dual Meaning II. A Misperception of Rights: Applying the IDEA'S Exhaustion Clause A. Congress's Clarification of Disability Rights B. Lower Courts Continue to Restrict Rights C. The Supreme Court Examines Exhaustion 1. Fry: What the Supreme Court Said 2. Fry: What the Supreme Court Left Unsaid a. Disability Rights Laws Contain a Distinct FAPE Right b. Plain Language Matters c. The Past Is Not Prologue III. A Restriction of Rights: Lower Courts' Confusion Continues A. IDEA-Ineligible Students Are Forced to Exhaust B. Dually Eligible Students Are Forced to Exhaust C. Courts Misconstrue Preclusion 1. Conflating FAPE with Disability Discrimination 2. Requiring Intent to Recover Damages IV. A Resurrection of Rights: Disaggregating Claims A. Students with Eligibility Under Section 504 and the ADA B. Students with Eligibility Under All Laws 1. Infliction of Physical or Emotional Harm 2. Exclusion from the Educational Program 3. Denial of Equal Access Conclusion Introduction

Two of the nation's most important civil rights laws affecting students with disabilities--the Americans with Disabilities Act (ADA) and section 504 of the Rehabilitation Act of 1973 (section 504)--have long been mischaracterized as purely antidiscrimination statutes. (1) As a result, vital components of their protective regime go overlooked. (2) Both statutes certainly forbid schools from taking actions that would treat students with disabilities differently than their peers. (3) In truth, this antidiscrimination principle is the bedrock upon which both laws stand. (4) But schools and courts are missing the breadth of key affirmative rights these laws extend to students, and thus, the principles embodied in these important laws remain underrealized. (5)

These laws' antidiscrimination components, which this Article will refer to as the "disability rights laws," (6) are too often narrowly construed as only requiring freedom from negative treatment. (7) While that definition may generally suffice outside of schools, within the context of education, antidiscrimination means not only refraining from harm but also taking affirmative actions to ensure equality between students with disabilities as compared to their nondisabled peers. (8) These affirmative obligations are typically over shadowed by the much larger and more comprehensive law at the intersection of education and disability--the Individuals with Disabilities Education Act (IDEA). (9) The IDEA extends both procedural and substantive rights to eligible students with disabilities. (10) Courts and scholars generally conceptualize the IDEA as the sole dictator of public schools' obligations to eligible students with disabilities. (11) This leaves section 504 and the ADA as underdeveloped and underused afterthoughts. (12) Critically, some courts go as far as precluding students from invoking their rights under the disability rights laws at all. (13)

Failing to fully grasp the scope and interaction of these three disability laws, courts routinely strip section 504 and the ADA of their original congressional intent. First, courts erroneously force students to exhaust their IDEA rights before bringing a claim under section 504 or the ADA. (14) Second, courts misconstrue schools' affirmative obligations under disability rights laws and impose unfounded limits on schools' duties to students with disabilities. (15) Finally, courts require plaintiffs to demonstrate intent to assert claims under section 504 and the ADA when no such showing is actually needed. (16) While the last two impediments to the viability of section 504 and the ADA have been explored by scholars, courts' continued misapplication of the IDEA'S exhaustion clause is ripe for discussion. (17) This Article is the first to offer a comprehensive examination of misplaced restrictions on disability rights claims and identify a novel approach for sorting and analyzing such claims that is consistent with congressional intent. (18)

Courts' confused application of the IDEA'S exhaustion clause is, in many respects, understandable. The IDEA requires plaintiffs to exhaust the statute's administrative remedies prior to filing claims under other applicable laws. (19) But, exhaustion is only triggered when a plaintiff seeks a remedy for the denial of a "free appropriate public education" (FAPE) as guaranteed by the IDEA. (20) What most courts miss, however, is that disability rights laws also contain a right to FAPE and that while obligations under all three laws overlap, they are not entirely coextensive. Thus, a necessary first step--and one completely ignored by most courts--is identifying which FAPE right the plaintiff intends to invoke.

FAPE, as defined in the IDEA, is a substantive standard of education owed to eligible students with disabilities. (21) More specifically, schools are tasked with providing an educational program individually tailored to enable a child to make progress appropriate in light of the child's circumstances. (22) Hence, the IDEA'S FAPE obligation is inward looking. It tasks schools with evaluating a child's individual needs and developing a program of special education and related services designed to address those needs in an effort to ensure progress toward individualized goals. (23) While its many protections undoubtedly help to safeguard students with disabilities' educational rights, the law has limits. It is, in part, these very limits that make access to section 504 and the ADA so vital.

Critically, the disability rights laws impose a separate FAPE obligation on schools, and this obligation is outward looking. That is, the laws obligate schools to meet the needs of students with disabilities "as adequately as" the needs of nondisabled students. (24) Thus, the standard is a comparative one, requiring schools to take stock not just of an individual child's needs but also of her peer's educational access to determine whether equal access to the educational program is being achieved. (25) These laws require schools to provide students with disabilities the educational support and services necessary to ensure equal access to educational opportunity. (26) To be clear, section 504's FAPE regulation does not demand equal educational outcomes, but it does demand equality of access. (27) In short, the IDEA'S FAPE obligation demands adequacy while the disability rights laws demand equality.

The IDEA'S exhaustion clause was not designed to eliminate students' rights to these distinct forms of FAPE or preference one over the other. (28) In fact, Congress enacted the current exhaustion clause as a repudiation of an earlier Supreme Court ruling that declared the IDEA to be the "exclusive avenue" through which a plaintiff could pursue disability-based discrimination in an educational program. (29) The statute's plain language unambiguously states that nothing in the IDEA should be read to restrict or limit the rights or remedies available under those laws or other federal laws protecting the rights of children with disabilities, except that plaintiffs "seeking relief that is also available under [the IDEA]" must first exhaust IDEA'S administrative remedies. (30)

In an effort to resolve ongoing uncertainties, the Supreme Court recently explored the contours of the IDEA's exhaustion clause in Fry v. Napoleon Community Schools, (31) Unfortunately, the majority's opinion may have actually produced more confusion than clarity. (32) While the Fry Court recognized that some students were needlessly being prevented from asserting claims under section 504 and the ADA, it ultimately gave the disability rights laws too cramped a reading. It directed courts to focus on the "gravamen[] of the...