Articles

A NEW START DOWN AN OLD ROAD TOWARD SUBSTANTIVE VOTER EQUALITY FOR PEOPLE WITH DISABILITIES
Tyle Creighton

This article proceeds in three parts. Part I summarizes the history of voting with a disability and outlines the main federal statutes related to voting rights for individuals with disabilities. Part II explains how federal courts initially narrowed the guarantee of the ADA and the Rehab Act to mere technical equality in a way that denied equal dignity and treatment when voting with a disability. It then analyzes a more recent line of cases that backs away from this early case law to expand the reach of the ADA and Rehab Act to also ensure substantive equality and a fuller, more robust right to vote with a disability. Part III then speculates about broader adherence to a mandate of substantive equality throughout the federal judiciary.

EXHAUSTION OF SECTION 504 AND ADA CLAIMS UNDER THE IDEA: RESOLVING THE CONFUSION
Perry A. Zirkel

The history of the sister statutes of Section 504 of the Rehabilitation Act (“§ 504”) and the Americans with Disabilities Act (“ADA”) and their relationship to the Individuals with Disabilities Education Act (“IDEA”) has been convoluted, culminating in particular confusion in applying the long-standing exhaustion doctrine, which requires completion of the available administrative process before going to court. For many years, this issue, particularly the application of the IDEA’s exhaustion provision for § 504/ADA and other non-IDEA claims, has accounted for a significant segment of the burgeoning litigation in special education. Adding to the significance of this provision, the relatively recent Supreme Court decision in Fry v. Napoleon Community Schools interpreted it as requiring exhaustion of any non-IDEA claims that hinge on the denial of a free appropriate public education (“FAPE”) under the IDEA.

The purpose of this Article is to identify the successive major intersections in the roadmap history of § 504/ADA and the IDEA that culminate in a clarifying pair of recommendations for applying the IDEA’s exhaustion provision to claims under § 504 or the IDEA. The first part of the Article provides a foundational overview of the respective contours of § 504, the ADA, and the IDEA. The second part traces the aforementioned major intersections in relation to litigation in the P–12 school context. The final part sets forth the two overall recommendations for judicial application of the IDEA’s exhaustion provision to § 504 and ADA claims in this context. These recommendations target interpretive problems that arose before and continue after Fry, and thus neither depend on nor address the contours of the Supreme Court’s ruling.