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with the branch of government that created this problem—Congress. After discussing remedies
for the courts to apply, this section will describe how Congress can fix the ambiguities in the
language of the Act to ensure clearer interpretation and implementation under the IDEA. Lastly,
parental resources will be discussed to emphasize that no solution is successful without the
involvement of the parents of the child with disabilities.
A. Comparison to How Courts Handle Americans with Disabilities Act Claims
One possible solution for courts to use as they wait on Congress is to apply the standards
used in workplace accommodations to cases involving the IDEA. Title I of the Americans with
Disabilities Act of 1990 (ADA) prohibits the states and other employers from “discriminating
against a qualified individual with a disability because of that disability . . . in regard to . . . terms,
conditions, and privileges of employment.”207 Employers violate the statute when they do not
make “reasonable accommodations to the known physical or mental limitations of an otherwise
qualified individual with a disability . . . unless such covered entity can demonstrate that the
accommodation would impose an undue hardship on the operation of the business of such covered
entity.”208 Through litigation, what qualifies as a “reasonable accommodation” has been somewhat
In Board of Trustees of the University of Alabama v. Garrett, for example, the Court held
that the Fourteenth Amendment does not require the states “to make special accommodations for
the disabled, so long as their actions towards such individuals are rational.”209 Likewise, in
Tennessee v. Lane, a case involving two people in wheelchairs who needed access to a courthouse
with no wheelchair ramp, the Court held that Title II of the ADA prevented discrimination against
a disabled person by public entities.210 This holding required the government to ensure that an
individual be able to participate in or take part in the benefits of any service, program or activity
conducted by a public body without discrimination because of their disability.211
Applying these standards to the accommodations under the IDEA, a school is a public
entity and would thus be prohibited from discriminating against a disabled student. The school
would need to ensure that the disabled student be able to participate in or take part in the benefits
of any service, program or activity conducted by the school without discrimination because of their
disability. However, it would not be required to make special accommodations so long as the
school’s actions toward the individual were rational. More accurately, the school is not required
to make accommodations that would place an undue hardship on the other students’ ability to
receive a free appropriate education.
A judge could then apply a balancing test to the substantive prong of Rowley. Instead of
trying to deal with the ambiguity of the terms “some” and “meaningful” in defining whether an
educational benefit was provided, the focus would be on reasonableness—a standard the courts
are much more familiar with. Reasonableness appeals to both our heart and our head. Instead of
the IEP needing to provide a child with a benefit, the question could be, “has the school made
reasonable accommodations to provide the child with a FAPE under the IDEA?” What is
207 Americans with Disabilities Act of 1990, 42 U.S.C. § 12112(a) (2012).
208 42 U.S.C. § 12112( 5)(a)-(b)( 5)(A).
209 Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 367 (2001).
210 Tennessee v. Lane, 541 U.S. 509, 513 (2004).
211 Id. at 529.