Rehabilitation Act Redux

Abstract

The Americans with Disabilities Act ("ADA") was hailed as an "emancipation proclamation" for people with disabilities at the time of its passage in 1990. Since then, a number of Supreme Court opinions have significantly limited the scope and effectiveness of the ADA. Among the most significant of these limitations resulted from the Court's 2001 holding in the case of University of Alabama v. Garrett that Title I of the ADA did not validly abrogate the sovereign immunity of the states. Three years later, in Tennessee v. Lane, the Court upheld Title II of the ADA, but only on an as-applied basis. Lane's as-applied approach, while favorable to its individual litigants, renders it highly likely that some applications of Title II will ultimately be subject to successful sovereign immunity attack.

For obvious reasons, these developments have generated substantial concern within the disability rights and academic communities regarding the adequacy of alternate legal protections for individuals with disabilities. Despite this widespread concern, most of the legal scholarship that has addressed post-2001 legal protections for individuals with disabilities has discussed the ADA's predecessor, § 504 of the Rehabilitation Act, in a cursory fashion, if at all. This relatively skimpy treatment of the Rehabilitation Act's protections has left a fairly substantial gap in the understanding of whether the Rehabilitation Act may serve as an adequate substitute for the ADA in the area of public employment and services.

This article fills this gap in existing legal scholarship by providing a detailed comparison of the substantive reach of § 504 of the Rehabilitation Act and of the ADA. The article ultimately concludes that in nearly all respects, § 504 of the Rehabilitation Act should provide an adequate substitute for the ADA in bringing claims against state and local government actors.

Keywords: Sovereign Immunity, ADA, Rehabilitation Act, Disability, Discrimination, Federalism