Americans with Disabilities Act Archives – Southern California Law Review

Transforming Special Education Litigation: The Milestone of Perez v. Sturgis Public Schools

April 2025April 2025Isabelle Yuan*

In March 2023, the Supreme Court issued a landmark decision in Perez v. Sturgis Public Schools, which held that individuals seeking compensatory damages under federal anti-discrimination laws, like the Americans with Disabilities Act, no longer need to satisfy the administrative exhaustion requirement in the Individuals with Disabilities Act (“IDEA”). Under IDEA, all students with disabilities are entitled to a free appropriate public education, which means that students with disabilities are entitled to individualized education services that meet their needs. In Perez, the plaintiff, Miguel Luna Perez, was a deaf student who alleged that the Sturgis Public Schools discriminated against him by not providing proper accommodations, such as a qualified sign language interpreter in his classes. The district court and the Sixth Circuit dismissed the plaintiff’s claims because of an IDEA provision that requires the plaintiff exhaust all administrative procedures before seeking relief in court. The Supreme Court reversed the Sixth Circuit decision, reasoning that the exhaustion requirement did not apply to Perez as he sought compensatory damages, which are unavailable under IDEA. This ruling means that families can now directly hold schools financially accountable for IDEA violations. This Note discusses Perez’s profound impact on the special education landscape. The greater accessibility for families to litigate will ideally lead to greater accountability and IDEA compliance as schools strategize to avoid litigation and paying costly compensatory damages. Although this decision is a victory for students with disabilities, a major downside of Perez is that paying compensatory damages increases schools’ financial strain and may hinder their abilities to address systemic issues in their special education framework. To ensure that school districts can properly address structural issues and adequately support students with disabilities post-Perez, this Note argues for clearer IDEA guidelines and robust monitoring systems. There are many uncertainties that follow in the wake of Perez, but the decision has the potential to encourage much-needed progress in special education services nationwide.

INTRODUCTION

In March 2023, the United States Supreme Court delivered a landmark decision for students with disabilities. The Court unanimously ruled in Perez v. Sturgis Public Schools that a student with a disability is not required to exhaust the administrative due process procedures under the Individuals with Disabilities Education Act (“IDEA”) before seeking monetary damages under the Americans with Disabilities Act of 1990 (“ADA”) or other federal antidiscrimination laws.¹ Under IDEA, students with disabilities are required to receive a “free and appropriate public education,” but money damages are not available as relief.²

IDEA mandates that students with disabilities receive a free appropriate public education (“FAPE”), which includes providing special education and related services from preschool through secondary school that meet state educational agency standards and conform with the student’s individualized education program (“IEP”).³ An IEP is a written statement developed by a local educational agency, like a school district. It is a collaboration between a child’s parents and school personnel to identify a student’s needs and to develop a plan to achieve educational goals.⁴ Parents are intended to play “a significant role” in the IEP process.⁵ IEPs also prescribe the types of supplementary services the student will receive, along with an explanation of whether the child is able to participate in regular classes with nondisabled children.⁶

Three main federal laws exist to protect children with disabilities: IDEA,⁷ the ADA,⁸ and section 504 of the Rehabilitation Act of 1973 (“section 504”).⁹ Both IDEA and section 504 confer a right to FAPE, though the two have distinct conceptions of the meaning.¹⁰ Though the ADA does not contain a FAPE obligation, its regulations are mandated to be consistent with all section 504 regulations, so it does not undermine section 504’s FAPE obligation.¹¹ The ADA was enacted twenty-five years after IDEA to “provide a clear and comprehensive national mandate” to address pervasive discrimination against individuals with disabilities in areas such as “employment, housing, public accommodations, [and] education . . . .”¹² The ADA mandates that employers and public entities make reasonable modifications to their policies or facilities to accommodate individuals with disabilities. Section 504 is an antidiscrimination statute that also protects individuals with disabilities from being denied benefits or excluded from participation in any program receiving federal funding, including public schools.¹³

IDEA, the ADA, and section 504 all define “disability” differently, although there are overlaps among them. In this Note, “students with disabilities” refers to students who qualify under IDEA. IDEA defines a student with a disability as a child, aged between three to twenty-one, “with intellectual disabilities, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance, . . . orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities” who thereby “needs special education and related services.”¹⁴ The ADA’s definition for “disability” is more stringent, as an individual must have “a physical or mental impairment that substantially limits one or more major life activities” and a record of the impairment.¹⁵ Section 504 incorporates part of the ADA definition, but requires that an individual with a disability have a physical or mental impairment that “results in a substantial impediment to employment” and can benefit from vocational rehabilitation services.¹⁶ The ADA and section 504 operate similarly to prohibit discrimination on the basis of disability in programs that receive federal funding.¹⁷ So, although IDEA and ADA both provide relief for individuals with disabilities, they function differently; the ADA addresses broader discrimination in major areas of public life like employment and public accommodations, while IDEA is focused only on special education services in public education.¹⁸ Importantly, the different “disability” definitions mean that a person who receives special education services under IDEA does not necessarily have a disability recognized under the ADA and section 504.¹⁹

In Perez v. Sturgis Public Schools, Miguel Luna Perez, a deaf student in Michigan, faced significant challenges in his education. Perez attended schools in the Sturgis Public School District (“SPSD”) and was entitled to a sign language interpreter during class.²⁰ Although the school provided him with a classroom aide, Perez’s assigned aide was unqualified to teach sign language.²¹ As Perez neared high school graduation, the school informed his parents that he did not fulfill his diploma requirements and would not graduate, which prompted Perez to file a complaint with the Michigan Department of Education.²² Perez alleged that SPSD denied him an adequate education in violation of IDEA, the ADA, section 504, and two other disability laws.²³ SPSD and Perez agreed to a settlement that included post-secondary compensatory education and sign language instruction for Perez.²⁴ Perez subsequently sued SPSD in federal district court.²⁵ The Western District of Michigan dismissed Perez’s ADA claim, citing his failure to exhaust administrative proceedings because he had settled his IDEA claim—a decision the Sixth Circuit affirmed.²⁶

The central question before the Supreme Court in this case was whether IDEA and the ADA required a student to exhaust administrative proceedings against the school district, even when such proceedings would not provide the relief sought.²⁷ The Court’s unanimous opinion held that an ADA lawsuit seeking compensatory damages could proceed without exhausting the administrative processes of IDEA because the remedy sought under the ADA was not one provided by IDEA.²⁸ Perez is important because it changes the landscape of special education law, opening the door for families to seek compensatory damages without undergoing an extensive exhaustion process. Rather than being forced to participate in due process hearings, families can readily hold school districts financially accountable for IDEA noncompliance.

This ruling will have significant implications for the rights of children with disabilities and how school districts handle future litigation. One implication is that the process for seeking compensatory damages from school districts became more streamlined, since families may bypass IDEA’s exhaustion requirement. Previously, the burden of exhausting IDEA’s administrative procedures was a deterrent for families seeking remedies under federal statutes like the ADA and section 504. Another implication is that the rights of students with disabilities are enhanced, as families have more leverage when negotiating settlements with school districts. Families may feel more empowered by the possibility of receiving monetary damages that will offset their litigation costs and propel school districts to address their inadequate special education programs. The availability of compensatory damages will likely lead to an increase in the number of cases brought against school districts.

However, there may be unforeseen negative consequences of increased family advocacy: prolonged legal battles and compensatory damage payouts may strain school districts’ resources and divert attention away from students. School districts that are already struggling financially might experience a further breakdown in their special education services as reduced funding and resources prevent them from addressing the educational needs of students. It may be that some families will receive rightful compensation while other students with disabilities struggle against systemic issues in the administration of special education programs exacerbated by the effects of the Perez decision.

This Note proposes that the Supreme Court’s decision in Perez will have far-reaching consequences for the families of students with disabilities and school districts’ approaches to litigation, as well as policy implications for educational agencies in the implementation of special education services under IDEA. Part I of this Note offers an overview of IDEA’s history, the statute’s requirements and procedural framework, and an explanation of IDEA’s exhaustion requirement that is central to the discussion in Perez. Also, Part I offers a brief explanation of the ADA and section 504 in relation to IDEA and the standards for receiving compensatory damages through these laws. Part II discusses a few important Supreme Court cases that litigated standards and definitions under IDEA. To fully understand the importance of the Perez decision, it is important to contextualize Perez alongside other IDEA cases heard by the Supreme Court. Part III explores the background and discussion of Perez and its implications for future special education litigation. Finally, Part IV explores potential consequences of the Perez decision and offers policy recommendations on how educational agencies can better meet IDEA requirements and address the needs of students with disabilities.

I. FOUNDATIONS OF SPECIAL EDUCATION LAW

This Part provides background information about the creation of IDEA and a detailed explanation of the statute’s intentions, procedural framework, and enforcement through state educational agencies. This Part also briefly explains IDEA’s exhaustion requirement, which is central to Perez. The final Section of this Part describes the process and standards for a party bringing a discrimination claim for money damages under the ADA and section 504, since compensatory damages are unavailable under IDEA.

A. History of IDEA

Beginning with the Civil Rights Movement, advocates for students with disabilities argued that the exclusion of students with disabilities from schools was a denial of equal educational opportunities analogous to racial segregation in schools.²⁹ Advocacy organizations and parents sued states, alleging that inappropriate educational services violated the Constitution.³⁰ Congress responded by enacting the Elementary and Secondary Education Act of 1965, in which the federal government provided funding to educate students below the poverty line and improve the education of students with disabilities in public schools.³¹ In 1970, the Education of the Handicapped Act (“EHA”) was passed and provided grant funding for higher education institutions to develop special education teacher training programs.³² Two 1972 cases, Pennsylvania Ass’n for Retarded Children (PARC) v. Pennsylvania and Mills v. District of Columbia, are considered to be the most notable cases in special education and foundational to the ideas in IDEA.³³ In PARC, the district court approved an amended consent agreement that obligated the state of Pennsylvania to place every child with a disability “in a free, public program of education and training appropriate to the child’s capacity.”³⁴ In Mills, the district court held that the District of Columbia public school system must utilize their financial resources so “that no child is entirely excluded from a publicly supported education consistent with [their] needs and ability to benefit therefrom,” especially for students with disabilities.³⁵ Though PARC and Mills are most frequently referenced, there were more than thirty federal cases during this period in which courts upheld the same principles outlined in PARC and Mills.³⁶

In the early 1970s, only 3.9 million of the 8 million children with documented disabilities in the United States had access to an adequate education.³⁷ In 1975, President Gerald Ford signed into law an amendment to the EHA, the Education for All Handicapped Children Act (“EAHCA”).³⁸ The EAHCA’s purpose was to ensure that students with disabilities received a FAPE, to protect the rights of students and parents, and to assist states and school districts in providing services.³⁹ The EAHCA’s enactment was significant because it marked the first time that a FAPE was memorialized in the law.⁴⁰

In 1990, amendments were passed to the EAHCA, and the law was renamed as the Individuals with Disabilities Education Act, as it is known today.⁴¹ IDEA’s purpose is to ensure that every child with a disability received a FAPE.⁴² Importantly, IDEA provides funding to states and school districts that comply with its mandates.⁴³ The combination of IDEA’s function and purpose make it both an educational grant program and a civil rights statute, rendering it a unique piece of legislation. In 1997, amendments restructured IDEA into four parts: (1) general provisions; (2) assistance for all children with disabilities; (3) infants and toddlers with disabilities; and (4) national activities to improve the education of students with disabilities.⁴⁴

B. Inside IDEA

1. IDEA Requirements and Procedural Framework

IDEA contains an administrative framework that was intended to ensure that parents of students with disabilities have enforceable opportunities to participate in all aspects of their children’s education.⁴⁵ The Supreme Court has made it clear that IDEA guarantees a substantively adequate program to all eligible students with disabilities, which is satisfied when a child’s IEP sets out an educational program that reasonably allows the child to receive educational benefits and advance from grade to grade.⁴⁶ IDEA is centered around the provision of a FAPE, which must be made in conformity with the IEP.⁴⁷ IDEA does this by guaranteeing a FAPE in the least restrictive environment (“LRE”) for all students with disabilities and through the creation and implementation of IEPs.⁴⁸ A FAPE in conformity with an IEP must be specially designed to meet the unique needs of a child with a disability and include any related services that would benefit the child.⁴⁹ All states covered by IDEA must provide a child with a disability with special education and related services as prescribed by his IEP.⁵⁰ IDEA defines “special education” as specially designed instruction to meet the unique needs of a child with a disability, and “related services” as the support services required to assist a child to benefit from that instruction.⁵¹ These services can include speech-language pathology, interpreters, occupational therapy, and counseling services.⁵²

A FAPE must “have been provided at public expense, under public supervision and direction, and without charge” at an appropriate level of education that meets state standards.⁵³ The LRE means that, to the “maximum extent appropriate,” children with disabilities are to be educated with children who are not disabled in a regular classroom setting, and that removal of children with disabilities from the regular classroom environment occurs only in cases of severe disability or when supplementary services “cannot be achieved satisfactorily.”⁵⁴

IDEA requires school districts to develop an IEP for each child with a disability.⁵⁵ Parental concerns regarding their child’s education must be considered by the team.⁵⁶ States are required to oversee this process and ensure that parents of a child with a disability are involved in the IEP discussion and any decisions about the educational placement of their child.⁵⁷ A student’s IEP must state the special education and related services that will be provided so that the child may advance toward achieving the annual goals set in their IEP.⁵⁸ An IEP must also state the child’s current levels of academic achievement and functional performance, while explaining how the child’s progress toward achieving their annual goals will be measured.⁵⁹ Based on these goals, an IEP will prescribe the special education and related services that will be provided.⁶⁰

IDEA has a comprehensive enforcement scheme that requires states to establish and maintain procedural safeguards to ensure that students with disabilities are receiving their basic right to education—a FAPE.⁶¹ State and local compliance with IDEA is monitored by federal review.⁶² Procedural safeguards are in place to “guarantee parents both an opportunity for meaningful input into all decisions affecting their child’s education and the right to seek review of any decisions they think inappropriate.”⁶³ For example, states are mandated to provide an opportunity for parents to examine all relevant school records.⁶⁴ Whenever parents have complaints about the adequacy of their child’s education, like in the development of their IEP, the involved state must provide an opportunity for the party to present a complaint “with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child.”⁶⁵

Once a party presents a complaint, a review process begins, in which the parents of the child with a disability discuss their complaint with the local educational agency in a preliminary meeting and the parties work to reach a resolution.⁶⁶ If the agency fails to resolve the complaint to the parent’s satisfaction within thirty days, the party may request an impartial due process hearing, which can be conducted by either the local educational agency or the state educational agency.⁶⁷ A due process hearing is overseen by an impartial hearing officer who considers sworn testimony and evidence to make a decision.⁶⁸ The hearing officer’s decision must be made on substantive grounds based on a determination of whether the child received a FAPE.⁶⁹ For a hearing officer to be “impartial,” they must not be an employee of the state educational agency or the child’s school district.⁷⁰ The officer may find a violation of a FAPE only if the procedural inadequacies “impeded the child’s right to a free appropriate public education,” “significantly impeded the parents’ opportunity to participate in the decisionmaking process,” or deprived the child of educational benefits.⁷¹ Notably, decisions made in due process hearings are binding on both parties, though parties may appeal a decision of the local educational agency to the state educational agency.⁷² Once the state educational agency reaches a decision, the aggrieved party may bring an action in state or federal district court.⁷³ The court will then review the administrative record, with supplementary evidence submitted at the request of a party, before granting “such relief as the court determines is appropriate” to the prevailing party.⁷⁴

IDEA does not grant compensatory damages, but it does provide for discretionary attorneys’ fees.⁷⁵ Most IDEA remedies have been equitable remedies, such as tuition reimbursement or injunctive relief.⁷⁶ Courts have also been given broad discretion in providing equitable relief that it finds appropriate and consistent with the purposes of IDEA, ADA, and section 504.⁷⁷ A court or hearing officer may require an educational agency to reimburse the parents of a child with a disability for the cost of private school enrollment if the school district cannot adequately provide a FAPE.⁷⁸

Once a state accepts IDEA’s financial assistance, an eligible child under the statute has a substantive right to a FAPE.⁷⁹ IDEA has six categories of mandates that states must meet to receive funding: (1) educational agencies must provide services to all qualified students with disabilities, regardless of the severity of their disabilities; (2) educational agencies must evaluate each student with a disability that requests a FAPE; (3) all students with disabilities aged between three and twenty-one who need special education and related services must receive a FAPE; (4) students with disabilities must be educated in the general classroom or the LRE as much as possible; (5) several procedural safeguards must be followed to guarantee a FAPE; and (6) parents must be involved at every stage of the process.⁸⁰

2. State Responsibilities Under IDEA

In the United States, Congress does not have constitutional authority over education, so it exerts pressure on states using its spending powers,⁸¹ particularly by offering federal funding to state and local agencies that meet IDEA conditions.⁸² This funding allows the federal government to oversee state educational authorities, such as state departments of education. State educational authorities then oversee local educational authorities, which are responsible for the implementation of IDEA mandates in schools.⁸³ But IDEA serves only as a floor for student rights, and many states have established their own statutes to further expand upon federal mandates in the special education context. These state laws play a critical role in shaping the law for students with disabilities, so the landscape of disability-rights law can vary significantly from one jurisdiction to another. For example, what a student must do to exhaust IDEA administrative requirements before bringing a lawsuit depends on each state’s rules. IDEA allows states to choose between a one- or two-tiered system for administrative review. In a one-tiered system, a state educational agency decides a student’s case.⁸⁴ In a two-tiered system, a local educational agency decides the case before a party can appeal for an impartial hearing conducted by the state educational agency; all of which must happen before a civil action may be brought in a state or federal district court.⁸⁵

Under IDEA, state and local departments of education receive federal financial assistance if they provide a FAPE for children with disabilities.⁸⁶ A state may provide educational benefits that exceed those required by IDEA, with the state standards being equally enforceable through IDEA.⁸⁷ A state must certify to the Secretary of Education that it has policies and procedures that will meet IDEA’s conditions, especially IDEA’s principal obligation to provide a FAPE to all eligible students with disabilities.⁸⁸ A local educational agency or school district is eligible to receive a share of the state’s federal funding if it has policies and programs that are consistent with the state’s policies.⁸⁹ Thus, a school district’s obligations under IDEA are dependent on the state’s formal procedures and obligations, which must align with IDEA.

3. Section 1415(l): IDEA Exhaustion Requirement

In § 1415(l) of IDEA (“section 1415(l)”), the statute requires that parties first exhaust administrative remedies before filing a complaint in state or federal court regarding the denial of a FAPE.⁹⁰ As the Supreme Court explained in Weinberger v. Salfi,

Exhaustion is generally required as a matter of preventing premature interference with agency processes, so that the agency may function efficiently and so that it may have an opportunity to correct its own errors, to afford the parties and the courts the benefit of its experience and expertise, and to compile a record which is adequate for judicial review.⁹¹

The exhaustion doctrine is also premised on the idea “that [educational] agencies, not the courts, ought to have primary responsibility for the programs that Congress has charged them to administer.”⁹² Although courts have discretion in their decision to rule on exceptions to the exhaustion requirement, the “[a]pplication of the doctrine to specific cases requires an understanding of its purposes and of the particular administrative scheme involved.”⁹³

In analyzing whether an exception to the rule should be granted, courts previously considered whether the purposes of exhaustion would be served by requiring plaintiffs to exhaust administrative remedies.⁹⁴ Congress’s aim was to allow educational agencies and parents to work together in developing a child’s IEP.⁹⁵ Requiring the exhaustion of administrative processes allows for an exploration of the educational issues at hand, a complete consideration of the factual record, and the opportunity for educational agencies to correct the problems in their special education programs.⁹⁶

There have been exceptions to the exhaustion requirement in certain situations, though the accepted exceptions differ across circuits.⁹⁷ Before the Perez decision, courts recognized that there were instances in which the exhaustion requirement did not further the goals of IDEA and excused exhaustion, but only “in cases of futility and inadequacy.”⁹⁸

C. The ADA and Section 504 of the Rehabilitation Act

The ADA and section 504 of the Rehabilitation Act of 1973 are federal statutes focused on preventing discrimination against individuals with disabilities.⁹⁹ Section 504 applies to all organizations that receive federal funding, which includes public schools.¹⁰⁰ Prior to section 504, neither federal, state, nor local law protected people with disabilities from discrimination in schools.¹⁰¹ The ADA extends to secular private schools that do not receive federal funding.¹⁰² The ADA was enacted twenty-five years after IDEA “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.”¹⁰³ The ADA covers a broader range of areas than IDEA since it focuses on all types of discrimination individuals face in areas such as employment, housing, and health services, in addition to education.¹⁰⁴ Title II of the ADA forbids any public entity, including schools, from discriminating based on disability,¹⁰⁵ and section 504 applies the same prohibition to any federally funded program.¹⁰⁶ The Supreme Court has interpreted section 504 as “demanding certain ‘reasonable’ modifications to existing practices in order to ‘accommodate’ persons with disabilities.”¹⁰⁷

Unlike IDEA, both the ADA and section 504 authorize individuals to seek redress for violations of their rights by bringing suits for money damages.¹⁰⁸ The available remedies under section 203 of the ADA are the same remedies available under section 504 of the Rehabilitation Act, which are also the same remedies available under Title VI of the Civil Rights Act of 1964.¹⁰⁹ Based on that statutory language, the Supreme Court has found that “the remedies for violations of § 202 of the ADA and § 504 of the Rehabilitation Act are coextensive with the remedies available in a private cause of action brought under Title VI of the Civil Rights Act of 1964.”¹¹⁰

Although the ADA is intended to protect individuals with disabilities, many people have been refused coverage.¹¹¹ Many courts have ruled that plaintiffs were not covered under the ADA’s definition of “disability,” as they did not fulfill any of the ADA’s three requirements of having “a physical or mental impairment that substantially limits one or more major life activities,” having “a record of such an impairment,” or “being regarded as having such an impairment.”¹¹² The narrow interpretation of the definition has shrunk the number of people in this protected class.¹¹³

The standard for obtaining compensatory damages under the ADA or section 504 is substantial. Different circuits have adopted similar requirements to establish a discrimination case under either the ADA or section 504.¹¹⁴ To establish a disability discrimination claim under the ADA or section 504, a plaintiff must demonstrate that a student is a “qualified individual with a disability”; “was excluded from participation in,” or otherwise discriminated against by “a public entity’s services, programs or activities”; and that exclusion or discrimination was the result of the student’s disability.¹¹⁵ Claims for compensatory damages under the ADA require a finding of intentional discrimination or an intentional denial of benefits, such as deliberate indifference from a school district.¹¹⁶ For example, in the Ninth Circuit, to prevail on a section 504 claim, a plaintiff must establish that (1) they have a disability; (2) they were otherwise qualified to receive a benefit; (3) they were denied the benefit solely because of their disability; and (4) the program receives federal financial assistance.¹¹⁷ To receive compensatory damages, a plaintiff must additionally prove intentional discrimination, such as showing deliberate indifference.¹¹⁸

II. JUDICIAL MILESTONES IN SPECIAL EDUCATION

This Part gives a brief overview of a few important IDEA cases in which the Supreme Court has decided individual disputes between children and their schools. It also aims to contextualize the Supreme Court’s decision in Perez by highlighting the Court’s role in clarifying IDEA provisions and its consistent deference to parents advocating for their children’s educational rights. Finally, this Part explains Fry v. Napoleon Community Schools, which is the last IDEA case the Supreme Court heard before Perez and addresses related questions about IDEA’s exhaustion requirement.

In Board of Education v. Rowley, the Supreme Court interpreted the term “appropriate” in IDEA’s statutory construct pertaining to FAPE.¹¹⁹ The Court rejected lower court decisions that required educational achievement to a child’s “full potential,” instead concluding that one of the main functions of IDEA was to create “access to specialized instruction and related services which are individually designed to provide educational benefit to” a child with disabilities.¹²⁰ The Court interpreted “appropriate” to establish a “basic floor of opportunity” that required school districts to provide disabled children with an “educational benefit.”¹²¹ This case has been extremely important in clarifying the level of service school districts are required to provide to students.

Amy Rowley, a deaf student, attended public school and received services under the then EAHCA.¹²² When Rowley’s parents requested that the school provide her with a sign language interpreter, school officials refused, maintaining that the services she had already received were sufficient for her needs.¹²³ Rowley received speech and language therapy and had an audio amplification system, which the school argued was sufficient due to Rowley’s passing grades.¹²⁴ Rowley’s parents filed an administrative complaint based on the school’s refusal to provide her with a sign language interpreter, which resulted in a favorable decision for the school district. The federal district court then ruled in the parents’ favor, which was affirmed by the Second Circuit.¹²⁵ The school district appealed to the Supreme Court, which discussed two central questions: “What is meant by the [EAHCA’s] requirement of a ‘free appropriate public education’? And what is the role of state and federal courts in exercising the review granted by [EAHCA]?”¹²⁶

The Court’s majority opinion looked at the Congressional intent of the EAHCA, which focused on remedying the exclusion of children with disabilities from normal school environments. Justice Rehnquist wrote that “the intent of the Act was more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside.”¹²⁷ The Court explained that a school’s obligation was satisfied by providing the basic floor of services rather than the maximum needed for a child to succeed, since that would go farther than what the Court believed Congress intended.¹²⁸ Notably, the Court also declared that a court had the authority to grant whatever relief it deemed appropriate under the EAHCA where a school failed to satisfy procedural obligations, but emphasized that this authority was limited to procedural compliance rather than imposing substantive educational standards.¹²⁹ The Court’s decision in Rowley had practical implications for district courts, as many were guided by the two questions the Rowley Court posited: “First, has the State complied with the procedures set forth in the [EAHCA]? And second, is the individualized educational program developed through the [EAHCA’s] procedures reasonably calculated to enable the child to receive educational benefits?”¹³⁰ Courts have used these two questions to determine whether school districts have done enough for students, and maintain that they may not substitute any preferred policies over the school’s discretion.¹³¹ The Rowley Court also recognized that states have the primary responsibility for developing and executing educational programs and determining educational policies since “courts lack the ‘specialized knowledge and experience’ necessary to resolve ‘persistent and difficult questions of educational policy.’ ”¹³²

In Endrew F. v. Douglas County School District RE-1, the Supreme Court clarified its position on IDEA’s FAPE provision, finding that an IEP must be “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”¹³³ A child with disabilities should still have the opportunity to be educated in a regular classroom that will “ ‘enable the child to achieve passing marks and advance from grade to grade.’ ”¹³⁴ In Endrew, the parents of a fifth-grade student with autism sought reimbursement of tuition costs for placement in a private school.¹³⁵ His parents were dissatisfied with his progress in public school because his IEP goals carried over year-to-year and he failed to make progress in his learning.¹³⁶ Endrew’s parents filed a complaint with the Colorado Department of Education seeking reimbursement, which required them to demonstrate that the school district had not provided Endrew with a FAPE.¹³⁷ The district court felt that modifications to Endrew’s IEP each year were “sufficient to show a pattern of, at the least, minimal progress.”¹³⁸ The district court explained that minimal progress was all that the Rowley standard required of a school district.¹³⁹ The Tenth Circuit affirmed the lower court’s decision, agreeing that special education services only need to allow a student with disabilities to make “some progress.”¹⁴⁰

The Supreme Court stated that, “To meet its substantive obligation under IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”¹⁴¹ The Court felt that an IEP was designed to create a plan for “pursuing academic and functional advancement,” which connected with IDEA’s purpose to help prevent the exclusion of children with disabilities in classrooms.¹⁴² Thus, a student offered an education that merely allowed some progress “can hardly be said to have been offered an education at all.”¹⁴³ The Court refrained from creating a bright-line test for determining what “appropriate progress” meant, reasoning that it should be determined depending on each unique child.¹⁴⁴

Parents of students with disabilities “often do not feel they are empowered when the [IDEA] system fails them,” as litigation is not an accessible avenue for everyone.¹⁴⁵ In Endrew, Endrew’s parents first paid for private specialized schooling before filing a complaint seeking reimbursement from the state,¹⁴⁶ requiring them to pay for expert witnesses and an attorney.¹⁴⁷ IDEA litigation is a lengthy process with a difficult standard for many families to meet. Endrew had to prove that the school district did not allow him to make appropriate progress on his IEP. To meet that standard, he needed professional experts who could attest to the progress he was capable of making and what services he needed to make that amount of progress beyond what the school district provided. Without the means for litigation costs and private education, Endrew would not have been able to present evidence of his progress. His case illustrates how difficult IDEA due process procedures are for parents who lack the means, agency, or understanding to navigate the process.

In Fry v. Napoleon Community Schools, the Supreme Court clarified the procedure that applies when a plaintiff files a complaint under a statute other than IDEA, finding that IDEA’s exhaustion requirement is “not necessary when the gravamen of the plaintiff’s suit is something other than the denial of IDEA’s core guarantee” of a FAPE.¹⁴⁸ There was confusion in lower courts about how to determine whether a complaint qualified as a claim under IDEA or under the ADA, section 504, or other federal laws.¹⁴⁹ In Fry, the parents of a kindergartener with cerebral palsy sought permission to let their daughter bring her service dog to school.¹⁵⁰ The school district denied the request because she already received similar services and a service dog would be “superfluous.”¹⁵¹ The parents first filed a complaint with the U.S. Department of Education’s Office for Civil Rights, alleging ADA and section 504 violations, which resulted in a favorable decision for the parents.¹⁵² The parents then brought these actions against the school district, seeking monetary and declaratory relief due to the school’s denial of their daughter’s right to equal access.¹⁵³ The district court dismissed their action pursuant to section 1415(l) of IDEA because the parents failed to exhaust their administrative remedies under IDEA.¹⁵⁴ The Sixth Circuit affirmed the district court’s decision because, when the injuries alleged relate to the child’s education and there is a remedy available through IDEA, “waiving the exhaustion requirement would prevent state and local educational agencies from addressing problems they specialize in addressing . . . .”¹⁵⁵

The Supreme Court examined section 1415(l)’s exhaustion requirement, finding that it “hinges on whether a lawsuit seeks relief for the denial of a FAPE.”¹⁵⁶ If a lawsuit alleges a denial of a FAPE, then it cannot circumvent section 1415(l), even if the plaintiff sues under a different federal law.¹⁵⁷ However, the Court did specify that if a lawsuit is brought under a different federal law and “the remedy sought is not for the denial of a FAPE, then exhaustion of IDEA’s procedures is not required.”¹⁵⁸ This is because an administrative hearing under IDEA could not provide any relief, even if the claim originates from the mistreatment of a child with disabilities.¹⁵⁹

While Fry clarified certain aspects of the exhaustion requirement, the issue of monetary damages under IDEA remained unsettled, as circuit courts were divided on whether courts could excuse exhaustion.¹⁶⁰ Congress had crafted IDEA “exhaustion requirement to be flexible so that meritorious cases would get a judicial hearing, [but] many courts have applied the rule rigidly, barring cases even when the plaintiffs present persuasive reasons for excusing exhaustion.”¹⁶¹ Fry left an unresolved issue regarding IDEA’s exhaustion requirement, meaning that the plaintiffs continued to be barred when trying to seek compensatory damages under the ADA or section 504 when they failed to first exhaust their options. Had the Court answered the question then, school district responses likely would have handled IDEA complaints with more care and screened them for potential ADA and section 504 violations.

III. PEREZ V. STURGIS PUBLIC SCHOOLS: A TURNING POINT IN DISABILITY RIGHTS ADVOCACY

Part III delves into Perez, explaining how the petitioner, Miguel Luna Perez, faced educational neglect and misrepresentation from his school district before pursuing an ADA claim for emotional distress. Perez establishes a precedent for families to pursue claims under federal laws like the ADA and section 504 without exhausting IDEA procedures, offering new legal avenues for students with disabilities. This Part argues that this decision will have significant repercussions for special education litigation, as it enhances families’ leverage in legal disputes and places financial strain on school districts’ budgets and abilities to provide special education services.

A. Discussion of Perez v. Sturgis Public Schools

Petitioner Miguel Luna Perez was a deaf student who attended schools in Michigan’s Sturgis Public School District from ages nine to twenty.¹⁶² Perez was an individual who qualified as having a disability under IDEA and the ADA because he had a physical and mental impairment that substantially limited multiple major life activities, like hearing and speaking.¹⁶³ Perez claimed that SPSD was required to provide an aide to translate classroom instruction and that his aides were unqualified sign language interpreters.¹⁶⁴ SPSD made multiple misrepresentations to Perez and his parents, including his academic achievements by inflating his grades, that his aides knew sign language, and that he had access to the same educational services as his peers.¹⁶⁵ Perez claimed that, in March 2016, just months before his high school graduation, SPSD informed him and his parents that he would not receive a high school diploma and instead would receive a “certificate of completion.”¹⁶⁶

This prompted Perez and his family to file an administrative due process claim with the Michigan Department of Education.¹⁶⁷ Perez and SPSD reached a settlement that included payment for additional schooling at the Michigan School for the Deaf, sign language instruction for Perez and his family, and payment of the family’s attorneys’ fees.¹⁶⁸ The settlement gave Perez what he was entitled to under IDEA, but there was another legal problem—SPSD also violated Perez’s rights under the ADA.

Perez subsequently sued in the Western District Court of Michigan, seeking compensatory damages for emotional distress under the ADA.¹⁶⁹ SPSD moved to dismiss, claiming that under section 1415(l) of IDEA, Perez was barred from bringing his ADA claim until he exhausted IDEA’s administrative procedures.¹⁷⁰ The district court agreed with SPSD’s argument and dismissed the suit, which the Sixth Circuit affirmed due to circuit precedent that previously addressed the issue.¹⁷¹ The Sixth Circuit opinion stated that, because Perez settled his IDEA claim, he was “barred from bringing a similar case against the school in court—even under a different federal law.”¹⁷² The Sixth Circuit found that federal law requires families to first exhaust IDEA’s administrative procedures as if the action was brought under IDEA, even if they were suing under another statute.¹⁷³ Because Perez’s core complaint was that SPSD denied him a FAPE, his suit sought relief that was available under IDEA, meaning he had to complete IDEA’s exhaustion requirements even if he wanted to bring a separate ADA claim.¹⁷⁴

The case was then brought before the Supreme Court, and the central question concerned “the extent to which children with disabilities must exhaust the[] administrative procedures under IDEA before seeking relief under other federal antidiscrimination statutes, such as the [ADA].”¹⁷⁵ There had been circuit splits on the interpretation of section 1415(l), so the Court finally decided to address this issue.¹⁷⁶ Previously, the Court declined to address this issue in Fry, articulating that “we leave for another day a further question about the meaning of § 1415(l): Is exhaustion required when the plaintiff complains of the denial of a FAPE, but the specific remedy she requests—here, money damages for emotional distress—is not one that an IDEA hearing officer may award?”¹⁷⁷

Here, the Court examined two features in section 1415(l): first, that IDEA is not meant to restrict an individual’s ability to seek remedies under the ADA or “ ‘other Federal laws protecting the rights of children with disabilities,’ ”¹⁷⁸ and second, that a qualification in the statute prohibits certain lawsuits with the language, “except that before the filing of a civil action under such laws seeking relief that is also available under [section 1415(l)], the procedures under subsections (f) and (g) shall be exhausted . . . .”¹⁷⁹ The preceding subsections (f) and (g) discuss children’s rights to due process hearings and the ability to appeal decisions to state educational agencies.¹⁸⁰

Perez interpreted the statute to require exhaustion of the administrative processes discussed in subsections (f) and (g) only to the extent he pursued a suit for remedies IDEA provided.¹⁸¹ Perez argued that this reading would not “foreclose[] his . . . claim because his ADA complaint [sought] only compensatory damages, a remedy everyone before [the Court] agree[d] IDEA cannot supply.”¹⁸² In contrast, SPSD interpreted the statute “as requiring a plaintiff to exhaust subsections (f) and (g) before [they] may pursue a suit under another federal law if that suit seeks relief for the same underlying harm IDEA exists to address.”¹⁸³ This reading would have prevented Perez from bringing his ADA suit because it stemmed from a FAPE violation, which is a harm IDEA addressed.¹⁸⁴ And Perez had already settled his administrative complaint instead of exhausting the administrative processes in subsections (f) and (g), so he would have been foreclosed from his ADA suit.¹⁸⁵

The Court found Perez’s interpretation comported more consistently with IDEA, particularly with section 1415(l)’s use of “remedies,” which treated it synonymously with “relief.”¹⁸⁶ The first clause discusses remedies, the dictionary definition of which is an enforcement of rights like money damages or an injunction.¹⁸⁷ The statute reads that “[n]othing in this chapter shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990, title V of the Rehabilitation Act of 1973, or other Federal laws protecting the rights of children with disabilities,” so it should be construed that IDEA does not restrict or limit the availability of remedies like money damages under federal statutes, including the ADA.¹⁸⁸ The Court noted that there is an exception to this rule, which prevents individuals from seeking redress under other federal laws unless they exhaust the administrative procedures.¹⁸⁹ But the exception “does not apply to all suits seeking relief that other federal laws provide.”¹⁹⁰ The statute requires the exhaustion of administrative processes to apply only to lawsuits that seek relief that is also available under IDEA.¹⁹¹ Thus, the Court concluded that the exception did not bar Perez from his ADA suit, because he sought compensatory damages—a form of relief that IDEA does not provide.¹⁹² This interpretation required the Court to treat “remedies” and “relief” synonymously, which the Court found IDEA did in various places.¹⁹³ For example, the second clause in section 1415(l) refers to “seeking relief,” which complements how a plaintiff’s complaint includes “a demand for the relief sought.”¹⁹⁴

SPSD then responded by raising Fry as precedent.¹⁹⁵ However, Fry “went out of its way to reserve rather than decide [the] question” brought up in Perez, so it did not advance the school district’s argument.¹⁹⁶ In Fry, the Court held that IDEA’s exhaustion requirement does not apply unless a plaintiff seeks relief for a denial of a FAPE, since that is the only relief available from IDEA.¹⁹⁷ The Court found that Perez presented an analogous situation but ultimately asked a different question about whether a plaintiff needs to exhaust the administrative remedies when they are seeking a remedy that IDEA does not provide.¹⁹⁸ Similar to the Court’s answer in Fry, a plaintiff does not need to exhaust administrative processes under IDEA in this situation.¹⁹⁹ SPSD argued that Congress had practical reasons for requiring exhaustion, no matter the plaintiff’s preferred remedy, because exhaustion enables agencies to exercise their “special expertise” and promotes efficiency.²⁰⁰ The Court found SPSD’s argument “unclear” and that it was a “mistake[] to assume . . . that any interpretation of a law” that better serves its presumed objectives “must be the law,” as laws are the result of “compromise[s],” and no law relentlessly pursues its purposes.²⁰¹ Moreover, the Court reasoned that Congress might have aimed to ease the demand for administrative exhaustion when a plaintiff seeks a remedy available under IDEA but allow an exemption from exhaustion when a plaintiff seeks a remedy that IDEA cannot provide.²⁰² The Court found Perez’s argument more persuasive, reversed the decision of the Sixth Circuit, and remanded the case so Perez could proceed with his ADA lawsuit in district court.²⁰³

B. Perez’s Impact on Special Education Litigation

The Perez decision will impact how school districts and other educational agencies approach and settle IDEA complaints in the future. Families now have more leverage against school districts because they are not barred from seeking compensatory damages for failure to exhaust administrative procedures. School districts will likely approach settlement discussions differently, knowing that families now have an opportunity to be awarded compensatory damages. Although families may have more leverage during negotiations, a potential consequence could be that the Perez decision may lead to greater financial strain on school districts, which would prevent other students with disabilities from receiving their basic educational rights. School districts should anticipate an increase in the number of cases litigated because students can now “bypass [the] often slow-moving administrative proceedings under IDEA when their chief claim is for damages under other federal laws . . . .”²⁰⁴

It is worth noting that, due to systemic issues within school districts and state departments of education, even when families are awarded compensatory remedies, educational agencies may not disburse payments promptly or at all. For example, in New York City, parents of children with disabilities have sought the enforcement of orders from impartial hearings entered pursuant to IDEA, which the state department of education has failed to execute due to limited resources.²⁰⁵ In LV v. New York City Department of Education, parents sued the New York City Department of Education (“NYC DOE”) for failure to implement orders, such as funding tuition programs.²⁰⁶ The parents alleged that the NYC DOE had a “systemic problem” due to its failure to maintain a dedicated system for the timely enforcement of the orders, which deprived the plaintiffs of their right to a FAPE.²⁰⁷ In 2008, a settlement agreement between the parents and the NYC DOE was approved.²⁰⁸ Under the settlement, the NYC DOE was required to implement all impartial hearing orders within the time frame stipulated in the order or thirty-five calendar days after the order date if no time limit was specified.²⁰⁹ However, the NYC DOE failed to comply with the settlement terms for more than a decade. A Special Master was appointed in 2021 to investigate the NYC DOE’s delays in the implementation of the orders. In March 2023, the Special Master issued a report after conducting interviews with the plaintiffs, families, school staff, and NYC DOE staff.²¹⁰

The report highlighted that impartial hearings and orders have reached an all-time high in New York City, with the increased volume of requests attributable to the COVID-19 pandemic.²¹¹ It was recommended that the NYC DOE address its staffing crises in the short term and then digitalize its orders for better organization.²¹² One reason the NYC DOE provided for its inability to implement orders was due to NYC DOE staffing shortages.²¹³ The Special Master report was extremely detailed and included many short- and long-term action steps for the NYC DOE, including forty-one required steps that the NYC DOE had to take within a year. There were suggestions for the hiring, training, and retention of staff in the Implementation Unit, which oversees implementing decisions from impartial hearings, while other changes included creating a structure for parents to contact the NYC DOE when their orders are not implemented, providing a support hotline, and building better technology systems to implement orders.²¹⁴

Although this is a victory for families of students with disabilities in New York City, it comes after a decade of inaction by the NYC DOE. This was due to systemic failures on multiple levels, which is not uncommon in school districts and state educational agencies around the country. This is just one example of how structural issues in a system and a consistently underfunded agency will lead to ineffective educational opportunities. LV v. New York City Department of Education is an example of the persistent challenges in ensuring the effective implementation of special education remedies, even when the law provides for a favorable solution. Students legally entitled to reimbursements or tuition assistance from a school district remained in complex litigation for years to accomplish their goals. The tuition some of the plaintiffs requested was only a few thousand dollars, but the NYC DOE was so ill-equipped at executing orders that it remained noncompliant for years. Unfortunately, there is no simple solution for the NYC DOE’s structural issues. Rather, the NYC DOE faces a complex undertaking as it will need to upgrade its infrastructure and rehaul its staff to better respond to the influx of settlements that have piled up and the new hearings that are coming down the horizon.

This case is illustrative of how receiving monetary compensation is important and helpful for students with disabilities to receive a FAPE under IDEA, but a compensatory remedy might not yield anything substantial. The NYC DOE was bound by court orders, but the plaintiffs in LV still waited more than a decade for compensation. And it is unclear whether the recent judicial order will actually result in greater implementation of orders for other students with disabilities. It seems likely that students with disabilities will continue to endure neglect in the system if the state and educational agencies do not have proper mechanisms in place to provide students with their remedies. The NYC DOE manages the largest public school system in the nation, with a 2023–2024 school year budget of $37.5 billion.²¹⁵ Even as the NYC DOE likely has more resources than other school districts, it still struggles with the volume of orders and order implementation. As more decisions ordering monetary remedies are made post-Perez, school districts and state education departments will need to upgrade their infrastructure to deal with outstanding orders and future settlements. Another concern is whether there is funding and leadership dedicated to making those changes. At schools that struggle with leadership turnover among superintendents or principals, this can lead to inconsistency with vision and changing priorities affecting staff effectiveness and cohesiveness and making it even more difficult to train staff and support teachers in developing strong relationships with students.²¹⁶ Educational agencies should take the Perez decision seriously and take LV as a precautionary tale for judicial orders that compel major changes to address structural issues in regard to special education programs and the rights of students with disabilities.

In recent cases decided in the months following the Perez decision, courts have put together IDEA statute and the precedents from Fry and Perez to evaluate suits against public schools for alleged violations of IDEA, the ADA, or other antidiscrimination statutes. In Dale v. Suffern Central School District, the Southern District of New York found that the plaintiffs were not required to exhaust administrative remedies because the plaintiffs sought “a form of relief that IDEA cannot provide—specifically, compensatory damages,” and because exhaustion was not required in the circumstances because of the ruling precedent of Perez.²¹⁷ In Roe v. Healey, a First Circuit case decided in August 2023, the district court below found that plaintiffs were required to exhaust all their FAPE-related claims first, which included claims under IDEA, associated Massachusetts regulations, section 504 of the Rehabilitation Act, the ADA, and the Fourteenth Amendment (enforced through § 1983).²¹⁸ The Fifth Circuit now looks at whether a complaint concerns a denial of a FAPE.²¹⁹ If it does not concern the denial of a FAPE, then administrative exhaustion is not necessary.²²⁰ If the complaint concerns a denial of a FAPE, the court then looks to the relief sought, and if IDEA cannot provide the relief sought, like compensatory damages, the plaintiff does not need to exhaust IDEA’s administrative requirements.²²¹ Courts appear to be applying Perez consistently and are not barring plaintiffs from seeking relief for a FAPE violation that is not provided by IDEA, even if they have not exhausted the administrative procedures pursuant to section 1415(l).²²² At the very least, Perez clarified a confusing question for district and circuit courts left previously unanswered in Fry, so there is greater clarity for families seeking relief under IDEA or other antidiscrimination statutes.

IV. BEYOND PEREZ: IMPLICATIONS AND CHALLENGES IN SPECIAL EDUCATION POLICY

This Part explores the policy implications of the Perez decision, including whether this decision may cause more harm than benefit. It examines the advantages of allowing compensatory damages for families of children with disabilities, while also weighing the significant financial burdens such damages could impose on school districts. This Part also underscores the need for more explicit and accessible IDEA guidelines, so school districts can better understand and fulfill their obligations under IDEA.

A. Implications of the Perez Decision

IDEA’s exhaustion requirement applies to suits alleging violations under IDEA and to “civil action[s] under [other] laws seeking relief that is also available under [chapter 33].”²²³ Prior to the Perez decision, plaintiffs alleging a denial of a FAPE and requesting a remedy that IDEA did not provide still had to exhaust administrative remedies under IDEA.²²⁴ However, now the Perez Court has opened up the possibilities for families of children with disabilities by allowing them to pursue money damages under different federal laws, even when they are seeking a denial of a FAPE. Following this decision, district courts and courts of appeal have issued decisions citing and applying Perez, acknowledging that exhaustion is required only if the plaintiff seeks relief that is available under IDEA.²²⁵ However, plaintiffs attempting to argue that the exhaustion requirements are no longer relevant in IDEA suits will likely still be unsuccessful, since Perez applies only to plaintiffs who bring suits under a separate federal law besides IDEA and for compensatory damages that IDEA does not provide.²²⁶ Various circuit courts have remanded matters to district courts so they can apply the Perez ruling.²²⁷

While it appears beneficial for families of children with disabilities to receive compensatory damages for inadequate educational opportunities under IDEA, the traditional remedies offered for IDEA noncompliance may be more appropriate for various reasons. For example, when a school district fails to comply with IDEA, restructuring the education system to provide adequate services for its students in the future seems more reasonable than offering a sum of money. Although there is an argument that financial penalties can motivate substantial changes from educational agencies, this approach overlooks the systemic problems within a school district and potential oversight from the state educational agency. In addition, the increased focus on litigation now that parents can bypass administrative procedures, will divert resources from addressing structural issues in school districts’ special education programs, especially given the potential for increased non-meritorious litigation to seek money damages after the Perez decision. The aggregate effect of school districts paying compensatory damages and dedicating more time toward lawsuits could detract attention from students, leaving school districts unable to enhance their special education services and at risk of providing reduced educational quality with reduced financial resources at their disposal.

The NYC DOE published data that showed that 37% of preschoolers with disabilities did not receive their mandated special education services in the 2021–2022 school year.²²⁸ More than 6,500 preschoolers who needed speech therapy did not have one session in the entire school year.²²⁹ Advocates for Children of New York, a non-profit dedicated to helping at-risk students receive a high-quality education, recommends New York City invest $50 million into the city’s upcoming budget to increase preschool special education services.²³⁰ That investment would go into hiring more teachers, increasing pay, and providing services similar to those recommended by the Special Master in LV.²³¹ With thousands of students struggling in school districts to access their services, and even more students potentially not being identified as needing services, it is concerning that, following Perez, more money might be paid out to plaintiffs, while less money goes toward special education services.

Another avenue school districts should turn toward is the Office of Special Education and Rehabilitative Services’ Office of Special Education Programs (“OSEP”), which provides discretionary grant awards.²³² In the 2023 fiscal year, OSEP provided over $110 million under IDEA to fund new programs to help educate children with disabilities.²³³ This includes hiring and training special education staff, early intervention services, and technical assistance to help states meet IDEA data collection.²³⁴ Investment in infrastructure and staffing will help school districts avoid lawsuits in the first place and avoid violating IDEA by providing inadequate special education services or failing to identify and track students with disabilities.

Another effect the Perez decision may have on educational agencies is in their assessment and implementation of IEPs and other accommodations for students with disabilities. School districts and states must account for the possibility of being sued under the ADA and other federal laws regarding equal access. Student requests should be addressed not just through IDEA’s lens but also through the lenses of the ADA and section 504. Failure to do so will leave educational agencies open to greater liability now that the remedy of money damages is accessible to students and families. School districts that are most vulnerable to increased lawsuits are clearly those with longstanding violations of students’ FAPE. For school districts that are diligent about abiding by IDEA’s requirements and providing proper FAPE to their students who require accommodations, the implications of Perez will not be as intense.

The Perez decision allows students with disabilities to bring discrimination claims under the ADA to receive compensatory damages, but plaintiffs will need to prove their discrimination claims. While this presents an enormous opportunity for students like Perez to have their day in court, plaintiffs still need to prove intentional discrimination to receive monetary claims under the ADA.²³⁵ The bar to receive monetary damages under either the ADA or section 504 remains high²³⁶ because proving intentional discrimination is difficult.²³⁷ Plaintiffs have to demonstrate that school districts were “deliberately indifferent to [a] student’s rights, exercised gross misjudgment, or acted in bad faith.”²³⁸ So, although it seems like there will be an uptick in lawsuits against educational agencies post-Perez, that does not mean that plaintiffs will prevail and actually receive monetary damages.

It is more likely that families can leverage this change into receiving larger settlement payouts from school districts, since they can threaten to escalate their claims from negotiations to court.²³⁹ Perry A. Zirkel, a special education law expert and law professor, expressed that the special education field remains “entirely unaffected” because the chances of courts awarding money damages for ADA or section 504 lawsuits “remain very strongly against the parents.”²⁴⁰ Zirkel does acknowledge, however, that after Perez, there will likely be more litigation that increases court congestion and parents’ leverage during settlement negotiations.²⁴¹ Another reason Perez strengthens families’ positions is that attorneys for school districts view litigating IDEA claims as overly cumbersome and in need of major reform.²⁴² Even when school districts prevail, they must pay substantial attorney’s fees for trial preparations and attending hearings, while special education teachers must spend time attending additional IEP meetings, interviewing with attorneys, and preparing to testify—all of which takes them away from their normal classroom responsibilities.²⁴³ Even if a parent’s complaint is frivolous, school districts sometimes agree to parental demands simply because a school district’s own attorney’s fees would likely be greater to litigate than the requested changes to IEPs or compensatory education.²⁴⁴

On the other hand, the ADA could help alleviate financial difficulties with litigation, as judges could award monetary remedies along with discretionary attorney’s fees.²⁴⁵ This potential source of funding could change lawyers’ strategies to bring ADA claims against school districts simultaneously with a due process hearing over IDEA complaints. Special education lawyers could also work on a contingency fee basis now that monetary damages are available. The decision to litigate in court is a personal one, however, and even with monetary damages, families may be reluctant to pursue that avenue.

Another critical factor to consider is the financial constraints and pressure on school districts Perez may cause. There is a strong possibility that allowing compensatory damages and having school districts pay out monetary awards to families will affect school districts’ ability to provide adequate special education services. School districts often operate under tight budgets, with funds allocated across various departments and needs. Because more parents have begun requesting services from school districts under the ADA and section 504, aggregate costs for accommodations like special transportation, testing accommodations, and publicly provided education at private schools have compounded.²⁴⁶ With budget constraints and added costs from litigation and monetary damages, fulfilling all IDEA requirements following Perez could overwhelm school budgets.²⁴⁷ This could lead to the trimming of other operational expenses or essential educational services, like school psychologists, speech pathologists, and extracurricular teachers. Diverting funds from valuable programs for children is a concern, especially because districts in lower-income areas will likely be affected at disproportionate rates. School districts primarily rely on local property taxes, state funding, and federal assistance for their budgets, so the financial ability to comply with IDEA procedures might not be feasible for school districts, even those that want to eradicate the educational inequities that students with disabilities experience. Another possibility is that school districts might be able to wield their insurance coverage effectively, depending on their coverage, to cover or defend against an ADA claim.²⁴⁸ This could reduce litigation costs and help offset higher settlement payouts to plaintiffs for school districts, but it depends on the insurance coverage plan and whether premiums might increase with more claims submitted.

B. Challenges in Policy Implementation and Compliance

School districts should not use an unclear statute as an excuse for their failure to provide adequate learning, however. The long-term harm caused to Perez by SPSD could have been mitigated if SPSD simply provided a certified sign language interpreter from the beginning. Even if IDEA standards are confusing, SPSD should have informed Perez’s family about his actual performance and not given inflated grades. There was a serious violation of Perez’s basic education for twelve years, and such egregiousness in school districts must be prevented. The lack of following basic standards of practice for deaf students in Perez is unacceptable considering there is usually guidance available from each state’s department of education.²⁴⁹ For example, SPSD could have reached out to the Michigan Department of Education Low Incidence Outreach to receive resources about serving students with hearing or visual disabilities.²⁵⁰

Even though there may be financial strain on school districts, it is still essential for school districts to strengthen their special education staff, services, and administration, not merely to avoid lawsuits and financial penalties following Perez, but to genuinely meet the needs of students with disabilities. To reduce the risk of litigation and ensure effective compliance, there is a pressing need for clear, specific guidelines detailing the standards school districts must meet under applicable statutes. That is an imperative issue that Congress should address in the near future, now that Perez has been decided. The National Council on Disability (“NCD”), an independent federal agency, was created to provide recommendations that promote disability policies, programs, and procedures that enhance the lives of individuals with disabilities.²⁵¹ Congress should rely more on the NCD’s recommendations and have the NCD host forums and publish more reports about how to improve IDEA implementation for school districts. Clarifying these compliance standards would provide much-needed direction for school districts, helping them fulfill their legal obligations to students with disabilities and reducing the likelihood of costly legal battles.

Although there is potential for Perez to compel school districts that do not currently meet IDEA requirements to reform their special education programs, the statute’s broad and not-well-defined framework presents additional challenges to effectively complying with IDEA.²⁵² The statute’s ambiguity can lead to varied interpretations of what it requires, which is especially challenging for school districts with limited resources that already struggle to determine what services need to be rendered from convoluted state and IDEA legislation. School districts also need well-trained, qualified professionals available to provide services to students with disabilities, another challenge for districts with limited budgets, as it is difficult to attract and retain talent with low salaries. Training and professional development for the latest requirements in special education law specific to a school district’s city or state is also costly. For successful IEP implementation, there needs to be continuous monitoring and evaluation of students with disabilities in their regular classrooms and during their services. Overworked special education teachers may struggle to manage observations and oversee regular IEP meetings. Limited resources can easily result in poor infrastructure and ineffective tracking of student performance and students with disabilities.

Increased advocacy for state and federal funding to address IDEA noncompliance and ease the burden of responding to an influx of complaints could ease the pressure on school districts. There should also be clearer guidelines and frameworks for districts to better understand and implement IDEA requirements. Establishing a state-level advisory body, for example, can offer guidance and assistance for the state-specific rules, in addition to IDEA procedures. Congress may also choose to address this situation through amendments to IDEA or when IDEA is reauthorized.²⁵³

Race and socioeconomic status are also important considerations for the impact of Perez on students with disabilities. Students of color are generally overrepresented in special education settings, in which they are “disproportionately labeled in ‘soft’ disability categories such as emotionally disturbed, [and] ADHD . . . .”²⁵⁴ Once labeled in those categories, those children often “receive differential access to high-quality education, are not tracked toward college, experience higher rates of suspension and expulsion, and are disproportionately represented in juvenile justice prisons.”²⁵⁵ In 1997, a reauthorization and amendment to IDEA acknowledged the problem of overrepresentation of minority students in special education classes, specifically that “[s]tudies have found that schools with predominately White students and teachers have placed disproportionately high numbers of their minority students into special education.”²⁵⁶ A major weakness in the due process model is that parents who have little agency in the process, like those with limited sophistication in educational advocacy and access to legal representation, struggle to advocate on behalf of their children.²⁵⁷

Additionally, even though families have the option to sue, it is expensive to hire a private attorney to sue a school district, and a family’s socioeconomic means often influences the outcome.²⁵⁸ In Endrew, Endrew’s parents paid for expert witnesses in addition to their lawyer and initially funded a private, specialized education before pursuing reimbursement.²⁵⁹ Endrew had to demonstrate that the school district prevented him from making the necessary progress toward his IEP. If Endrew’s family did not have the funds to cover the fees of the lawsuit and private schooling, he would not have been able to demonstrate his progress. Low-income parents can hardly be expected to undergo this financial burden without a guarantee, since money damages might not offset the cost of expensive litigation. Not to mention, their child might continue to fall further behind while the legal proceedings unfold. As an overwhelming percentage of children with disabilities who qualify for IDEA services are low-income, it is unclear whether more parents will go through with litigation, even with the potential for compensatory damages, simply due to a lack of legal sophistication or limited resources.²⁶⁰

C. Strategic Approaches and Systemic Changes in Special Education

In July 2023, the U.S. Department of Education released guidance to help states address and better understand IDEA requirements, focused on providing students with a FAPE.²⁶¹ “With this guidance, States will have the information necessary to exercise their general supervision responsibilities under IDEA and ensure appropriate monitoring, technical assistance . . . , and enforcement regarding local programs.”²⁶² The guidance is thorough in identifying noncompliance, while outlining the timeline for correcting noncompliance, the enforcement actions a state must take if a program does not meet IDEA requirements, and the proper way to monitor local educational agency programs.²⁶³ States bear the primary responsibility of ensuring that districts are adequately serving students under IDEA through “general supervision,” so better state oversight of local school districts is critical to ensuring that schools meet their obligations to students with disabilities.²⁶⁴

The federal guidance recommends that each state set up a robust monitoring system that “swiftly identifies and corrects noncompliance; increases accountability through the collection of timely and accurate data; and ensures the full implementation of IDEA to improve functional outcomes.”²⁶⁵ This guidance came out after OSEP identified a failure of multiple states to comply with IDEA, so OSEP is providing “accessible and actionable information” for states to exercise their duties to help protect the rights of students with disabilities.²⁶⁶ Between 2014 and 2023, on average, only seven states received the “meets requirements” determination in accordance with IDEA statute for Part B responsibilities regarding providing a FAPE.²⁶⁷ OSEP released this guidance to increase accountability by strengthening states’ general supervision programs to improve compliance. Ideally, this new guidance will take the onus off parents filing formal complaints as more states bolster their oversight mechanisms.

This guidance is another step in the right direction, especially after Perez, because it forces states to take more aggressive actions against noncompliant school districts. Notably, the guidance notes that allegations about IDEA violations can come from media reports, feedback sessions, and other areas beyond the normal formal-complaint setting.²⁶⁸ Now, a school district cannot be found in compliance with IDEA until they have completely resolved the issue that was raised, and school districts must address noncompliance as soon as possible and no later than a year after it is flagged.²⁶⁹ Monitoring ensures that school districts are following IDEA requirements, but OSEP will need to take action beyond issuing guidance for school districts to truly start remedying their IDEA noncompliance.

School districts now face the challenge of adapting to a new legal environment, in which IDEA’s due process procedures may no longer serve as an efficient and exclusive avenue to address the needs of students with disabilities, but as a potential battleground for financial claims. As more complaints and cases are heard in district courts, the Perez decision will likely be a reckoning for school districts with a history of neglecting students with disabilities. This will hopefully provide enough financial incentive for those school districts and state education departments to shore up their management and oversight of special education services. Like the NYC DOE’s new plan, other educational agencies should consider evaluating areas for improvement in their own special education services to avoid litigation and provide an inclusive classroom environment for students with disabilities that IDEA was created to address. Educational agencies are also likely to place greater care in crafting settlements to comprehensively address all issues that families are alleging, so there is greater potential for children with disabilities to access a broader range of remedies and legal protections. There is great potential for the Perez decision to initiate comprehensive and thoughtful change for the treatment and schooling of students with disabilities in classrooms, as educational agencies elect to avoid costly litigation and expensive compensatory damages in favor of addressing systemic issues within their schools.

CONCLUSION

As Justice Gorsuch stated, the Perez decision “holds consequences not just for Mr. Perez but for a great many children with disabilities and their parents.”²⁷⁰ Perez’s heartbreaking story about attending SPSD for over a decade with unqualified interpreters, leaving him unable to understand material or even learn sign language properly, is unfortunately just one of the many stories of students with disabilities who have been failed by their school systems. The Court’s unanimous decision removes unnecessary burdens and clarifies the requirements and remedies that are available for children with disabilities and their families when they pursue litigation against school districts.²⁷¹ The Court explained that a student with a disability need not first exhaust the administrative requirements of IDEA before filing a lawsuit seeking compensatory damages under the ADA or other federal antidiscrimination laws, since IDEA cannot provide those remedies. Though the lasting effects of this decision are yet to be seen, there are practical implications for school districts effective immediately, including a greater urgency to be responsive to parent concerns and student needs, abide by IDEA procedures, and implement student IEPs effectively. At the very least, the special education world can feel cautiously optimistic that Perez will help more students be made whole by the legal system and by educators who ensure that students with disabilities’ unique needs are met. After all, there were approximately 7.6 million children receiving services under IDEA in the 2022–2023 school year, so Perez has far-reaching implications.²⁷²

While this decision empowers families by holding school districts financially accountable, school districts’ ability to provide adequate special education services may be hindered if schools spend more time battling litigation and paying money damages. Nonetheless, this unanimous decision preserves IDEA’s clear purpose of allowing students with disabilities to receive a FAPE as soon as possible and to preserve their legal rights under other federal statutes.²⁷³ Perez is momentous because, as Justice Kagan acknowledged, oftentimes, it is “the parents [of students with disabilities] that have the greater incentive to get the education fixed for their child[ren],” and this decision allows students with disabilities to receive everything they are entitled to under IDEA and also receive compensatory damages under the ADA.²⁷⁴ The decision underscores the need for school districts to address structural problems that prevent students with disabilities from access to their rightful educational opportunities. As school districts grapple with Perez, we will surely see whether the Court’s holding delivers financial redress to children with disabilities who are discriminated against, suffer harm from, and have claims under both IDEA and the ADA, and how the future landscape of special education is transformed as a result.

98 S. Cal. L. Rev. 473

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Isabelle Yuan*

* Executive Senior Editor, Southern California Law Review, Volume 98; J.D. Candidate 2025, University of Southern California Gould School of Law; B.A. History 2020, Wellesley College. Many thanks to the editors of the Southern California Law Review for their thoughtful feedback. Thank you also to Maia Lee and William Wang for their invaluable guidance and support. All mistakes are my own.

Affirmative Acting: The Role of Law in Casting More Actors With Disabilities (A Note in Five Acts)

May 2023May 2023Kira Patterson*

SETTING THE STAGE: INTRODUCTION

“Always find your light.” This is a common piece of advice given to theater artists, encouraging them to make sure they can be seen on stage.¹ But who gets the chance to grace the stage in the first place? Our society has recently begun to actively ask new questions about equity and visibility. In the context of theater, we have largely focused not on who is on the stage, but on how theater productions can be enjoyed equitably. To answer these questions, we have turned to effectuating and enforcing the standards set forth in the Americans with Disabilities Act (“ADA”).²

Over the thirty years since the ADA was passed, and even more concertedly following the Act’s 2008 amendments,³ theaters have begun to reserve sections of the house⁴ for patrons with wheelchairs and to renovate facilities to create ADA-compliant restrooms for audience members.⁵ However, while the ADA has prompted great strides in improving theatergoers’ ability to access productions, figuring out how to apply the ADA to the people on the stage is another question altogether.⁶

While audience accessibility is a tremendous step forward in ensuring that enjoyment of theater productions does not exclude people who cannot easily access and navigate unwelcoming spaces, the time has come to turn the spotlight back towards the stage. We need to turn our attention to creating and nurturing structures allowing for equal access for theater performers—specifically, for the purposes of this Note, those with disabilities. Pushes in the theater world to pinpoint and remedy gender and racial inequities have become much more prevalent in recent years,⁷ and rightfully so, but we must not leave those with disabilities out of the discussion. As it is, “disability is too often an afterthought, if it is thought of at all.”⁸

Indeed, Actors’ Equity Association (“AEA”), the union for actors and other theater makers,⁹ even reported that barely 1% of contracts they issued from 2016 to 2019 went to artists who self-reported living with a disability.¹⁰ AEA also estimated that about a quarter of Americans live with at least one disability.¹¹ If you compare these statistics (about 25% of Americans have disabilities, but only about 1% of theater jobs offered over the course of three years went to artists who reported living with disabilities), the problem should begin to crystallize: Why are we not seeing representation of people with disabilities on stage at the same rates as in society?

While data on disability representation on stage is scarce, we can look to data collected in theater’s more closely studied sister entertainment industries of television and film to get a sense of what levels of representation in the theater might look like. For instance, in the sphere of network television in 2018, only 22% of characters with disabilities were actually portrayed by an actor with the same disability; for streaming services, this number decreased to 20%.¹² The unfortunate result gleaned from this study and studies like it is that the overwhelming majority of characters with disabilities—at least in the context of film and television—continue to be portrayed by actors without disabilities.¹³ The first time an Emmy was awarded to a show starring people with disabilities was not until 2016,¹⁴ and the number of actors with disabilities who have ever won an Oscar can be counted on one hand.¹⁵ These statistics truly pull back the curtain on an entertainment industry that does not tend to value actors with disabilities.

There is reason to believe the statistics are just as grim in the theater. For instance, it was not until 2019 that an actor in a wheelchair (Ali Stroker) first won a Tony award (for her tremendous performance in a revival of the classic Broadway hit Oklahoma!).¹⁶ This lack of representation begs the question of why, as society finally begins to converse more openly about equity, “disability” is still so often excluded from the discussion.¹⁷

This Note will attempt to answer that question—and explore what role law could play in arriving at a solution—through a variety of lenses, including the ADA and employment discrimination law. It will set the proverbial stage by laying out the history of disability discrimination in theater and entertainment, after which it will discuss relevant federal and state sources of disability and employment law. The Note will then make the case—by looking at potential legal remedies¹⁸—that in the subjective world of theater, the way to increase representation of actors with disabilities on stage is not a simple legal fix; instead, it will likely take a combination of changes—attitudinal, legal, and otherwise—working in tandem in the theater industry to get more actors with disabilities on stage. And while making these moves in the direction of inclusion and equity on stages across the country would certainly advantage actors with disabilities, it would also benefit society at large: theater that reflects our tapestried reality “is simply better, richer, [and] more rewarding when it is by, for, and about all of us.”¹⁹

ACT I. HISTORY OF DISABILITY IN PERFORMANCE

All too often, actors with disabilities are excluded from the audition room; much—if not most—of the time, actors with disabilities do not get invited to audition at all, regardless of the disability status of the role in question.²⁰ And if the actor has made it into the audition room? That is only the first part of the journey. Next comes the actual casting of the role, where no matter how many talented actors have made it into the room to audition for a single part, only one person leaves with the job. Even once actors with disabilities make it through the door to get seen by the director, the odds are against them in terms of actually landing a role.

Recent Broadway shows that have main characters who have disabilities provide a good look into the regularity with which actors with disabilities get passed over for roles, while actors without disabilities gain more access to those roles. Broadway productions of relatively well-known shows that fit this description are not hard to find. The Curious Incident of the Dog in the Night-Time tells the story of a young man on the autism spectrum, and yet the 2015 Broadway production nonetheless cast an actor “without autism or any other disabilities” for the role.²¹ Wicked, over its yearslong and wildly popular Broadway run, never once filled the role of Nessarose, who uses a wheelchair, with an actress with physical disabilities.²² Likewise, all of the lead roles in recent productions of The Miracle Worker and Richard III, both of which focus on main characters with physical disabilities, were portrayed by actors without physical disabilities.²³

This practice of casting actors without disabilities in the roles of characters with disabilities has come to be known, in some circles, as “disability drag.”²⁴ In fact, a whole microcosm of scholarship has developed around this idea of disability drag, which also takes to task the various tropes that seem to be intertwined in the writing of most, if not all, characters with disabilities currently on stage and screen.²⁵ This area of academic investigation and rumination asks us to reframe the way we think about characters and people with disabilities: “What if their disability weren’t the thing to overcome but merely one element of one’s identity?”²⁶ Nonetheless, on the whole, society appears to turn away from asking itself such introspective questions, especially when the alternative involves making money by casting big-name actors.

None of this means that the world of creating theater is not making some strides on its own. For instance, Deaf West Theatre’s 2015 Broadway production of the musical Spring Awakening was produced and performed in both English and American Sign Language,²⁷ with a cast comprised of “25 deaf, hard of hearing and hearing actors and musicians.”²⁸ The show was met with great success and earned multiple Tony Award nominations, including one for the highly regarded Best Revival of a Musical,²⁹ even though it was a production of a type that Broadway had never seen before.

There are also smaller theater companies popping up that have been created with the explicit goal of promoting the work of artists with disabilities. For instance, the mission of the Phamaly Theatre Company in Denver, Colorado, is “to be a creative home for theatre artists with disabilities” as well as to “model a disability-affirmative theatrical process.”³⁰ Alie B. Gorrie, an actress with low vision, describes her reaction to attending a production “filled with disabled artists, singing, dancing, and actively defying disability tropes” at the Phamaly Theatre Company as the first instance where she felt like she truly belonged in the theater.³¹ The experience, however, left Gorrie with a lingering question: Why had it taken two decades of working in the theater industry for her to feel this sense of belonging?³² Which begs the broader question: How many people who dream of working in the theater industry have already been discouraged and turned away by the lack of access and opportunities?

Despite these steps forwards, it is apparent that sidelining actors who have disabilities deprives society of a wealth of talent. We have seen how powerful performances by actors with disabilities can be and how rewarding it can be to see them in the spotlight, as evidenced in a number of recent television shows. Consider RJ Mitte, an actor with cerebral palsy playing a character with the same disability on the hit AMC show Breaking Bad.³³ More recently, think of Lily D. Moore, an actress born with Down syndrome playing a fan-favorite character with the same diagnosis in Mindy Kaling’s Netflix series Never Have I Ever.³⁴ Therefore, the question we must now be asking is what legal solutions can be utilized to ensure that Mitte and Moore are not the “token” actors with disabilities, but instead just actors. And are those legal solutions alone enough?

ACT II. LEGAL BACKGROUND

Scene 1: The Americans with Disabilities Act

One lens through which to approach the problem returns our attention to the ADA. Signed into law in 1990,³⁵ and amended in 2008 to provide broader protections for people with disabilities,³⁶ the ADA provides for protection of individuals with “a physical or mental impairment that substantially limits one or more major life activities.”³⁷ The ADA has seen much success over the years: it has empowered people with disabilities to become their own best advocates³⁸ and has modernized our built environment to promote physical accessibility.³⁹ Specifically relevant here, though, is Title I of the ADA, which concerns employment discrimination.⁴⁰

Title I of the ADA prohibits employers (including theaters)⁴¹ from “discriminat[ing] against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.”⁴² Thus, discrimination against people with disabilities in the workplace is already prohibited by law in many circumstances, according to the ADA. There are, however, two distinct points that illustrate how far we have left to go and how far short the ADA has fallen in getting us there.

First, although the ADA requires an employer to make “reasonable accommodations” for employees with disabilities,⁴³ Congress did not give a clear-cut definition of what exactly counts as a “reasonable accommodation.”⁴⁴ Instead, Congress provided examples of accommodations that could be implemented to enable “qualified individual[s]” with disabilities to perform the “essential functions” of their jobs.⁴⁵ There are no statutory limitations—financial, quantitative, or otherwise—on what constitutes a “reasonable accommodation,” other than that an accommodation that would cause an employer’s business “undue hardship” is not “reasonable.”⁴⁶ Similarly, Congress did not provide further instruction on how to determine what constitutes “undue hardship.”

This lack of guidance from Congress means that implementing the ADA can easily “become a checklist of what is or isn’t provided.”⁴⁷ In other words, it can become the “absolute minimum you can do to avoid looking like a jerk”⁴⁸ or exposing yourself to liability. Sure, you may have a wheelchair ramp in place, but does that really work to make the actors in need of the accommodation feel welcome and unburdened in their artistic journey?

This Note argues that a wheelchair ramp here and there is not enough. Instead, for actors to truly feel welcomed into the space and able to practice their craft uninhibited, the theater must ask itself questions such as, “Are we putting an extra burden on our artists with disabilities by requiring them to perform while simultaneously navigating a world that is not built for them?” and “How are we ensuring that we are hiring actors with disabilities in the first place?”

Second, while enforcing the ADA may help to ease the strain disproportionately placed on the small group of actors with disabilities who have already made their way into the rehearsal hall, what about those who have yet to be cast? Able-bodied actors are routinely cast in roles portraying people with disabilities,⁴⁹ which diminishes the number of roles available for actors with those disabilities. Further, it often “simply never occur[s]” to casting directors “to cast, or even consider, actors with disabilities in roles that don’t specify whether a character is disabled or not.”⁵⁰

Even though we are taking steps towards creating a more inclusive culture, it does appear as though we are nonetheless collectively excluding people with disabilities from that equity-driven vision of our society—even with the assistance of the ADA. So, if the ADA as it currently operates does not seem fit to truly improve diversity onstage, are there other potential legal routes?

Scene 2: Title VII of the Civil Rights Act of 1964

When it comes to the world of preventing discrimination in employment, Title VII of the Civil Rights Act of 1964⁵¹ is undoubtedly the star of the show. Since the ADA may not, on its own, provide a way to ensure that more actors with disabilities get onstage, it is worth exploring another relevant legal avenue: employment discrimination law governed by Title VII. Congress formulated this broad new civil rights bill in 1963 and took final steps towards securing the bill’s passage in 1964.⁵² Title VII notably included language banning employment discrimination because of a person’s “race, color, religion, sex, or national origin.”⁵³ While Title VII does not apply to disability discrimination, it provides some guidance as to how the ADA might be amended to address the issues discussed here.

The basic structure of a case alleging individual disparate treatment (also known as intentional discrimination) in one of the above categories has been crafted over time through case law by the Supreme Court. The so-called “burden-shifting” structure that has been created is set forth in the pivotal case of McDonnell Douglas Corp. v. Green.⁵⁴ First, a plaintiff who alleges disparate treatment under section 703(a)(1) of Title VII “because of such individual’s race, color, religion, sex, or national origin”⁵⁵ must prove their prima facie case that (1) they do indeed fall into one of those categories, (2) they applied for a job and were qualified, and (3) they were rejected by the employer.⁵⁶ Next, the employer has the chance to bring to light any “legitimate, nondiscriminatory reason” for having rejected the employee.⁵⁷ If the employer can do so, the burden shifts back to the plaintiff, who has an opportunity to prove that the “legitimate, nondiscriminatory reason” given by the employer was “pretext” for what in truth amounts to discriminatory animus.⁵⁸

Integral to this Note, however, is the language highlighted in section 703(e) of Title VII that an employer may protect itself from liability by presenting a particular affirmative defense.⁵⁹ The essence of this defense is that the employer asserts that it rightfully, and therefore legally, discriminated against this job applicant. The employer can do this by showing that it discriminated because of “religion, sex, or national origin”⁶⁰ if it can also show that “religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business.”⁶¹

This exception to the general rule, which is known as a “bona fide occupational qualification” (typically referred to as a “BFOQ”),⁶² can sometimes be used by employers to legally justify certain discrimination in hiring practices if that discrimination is based on religion, sex, or national origin. For example, in Dothard v. Rawlinson, an all-male prison asserted that it would be unsafe for women to become guards in their prisons.⁶³ Female job applicants hoping to become guards then sued the prison, claiming that they were not hired because of their sex.⁶⁴ The Supreme Court took the side of the prison, holding that while the applicants’ sex was the reason they were not hired, this discrimination was legal due to the BFOQ exception.⁶⁵ In other words, the prison was allowed to reject female applicants because of their sex due to the fact that having male guards was “reasonably necessary to the normal operation of that particular business.”⁶⁶

Conversely, in UAW v. Johnson Controls, Inc., the Supreme Court refused to grant an employer the use of a BFOQ.⁶⁷ Johnson Controls stated that it would not allow women to work in certain jobs at its manufacturing plant that involved lead exposure, citing an interest in preserving the women’s fertility.⁶⁸ In essence, Johnson Controls was asserting that being a man was a BFOQ that was required in order to get the job.⁶⁹ Here, the Supreme Court interpreted the BFOQ exception narrowly by ruling that the amorphous danger of harm to female employees’ fertility is not an appropriate use of the exception and that female employees who were qualified for the job could not be turned away simply on the basis of their sex.⁷⁰

As seen in Johnson Controls above, the BFOQ is not a free pass to discriminate against job applicants however an employer sees fit; Congress created the BFOQ exception to be used narrowly and “the courts have construed it as such.”⁷¹ It is not unreasonable, however, to imagine a scenario in which this affirmative defense could actually be used to benefit a particular group of job applicants. Consider a scenario in which an employer wants to have only Senegalese chefs work at a Senegalese restaurant, with the stated goal of “authenticity.” Here, the employer could use a national origin BFOQ to justify this hiring practice, with the end result being that a minority group (Senegalese chefs) gains greater access to job opportunities they otherwise may not have had. While perhaps counterintuitive, this Note will propose the use of a BFOQ not simply as a way to shield an employer from liability, but also as a way to encourage diversity in the hiring process.

Scene 3: Threshold Question—Employee or Independent Contractor?

It must be noted going forward that applying the ADA and Title VII to workers hinges on the workers’ classification as “employees,” as opposed to “independent contractors,” because the ADA and Title VII do not cover independent contractors.⁷² So what is the difference? The ADA and Title VII both provide the following definition of “employee”: “[A]n individual employed by an employer.”⁷³ Since that definition is not particularly elucidating, courts have often looked to the common law of agency for a less circular definition.⁷⁴ Among other factors, the Restatement (Second) of Agency defines an employee as the “servant” of an employer (the “master”).⁷⁵ This relationship is said to be formed when the master gains control over the servant’s performance of a service, and, in particular, when the master gains the right to control the “physical conduct” of the servant.⁷⁶ Conversely, then, an independent contractor is a worker whose physical conduct and general performance are not under the complete control of the master.⁷⁷

Many theaters officially classify the actors they hire as independent contractors, often primarily in order to take advantage of related tax benefits and to circumvent paying minimum wages, overtime, and workers’ compensation.⁷⁸ The argument theaters provide for this practice is that actors are temporary workers, typically only hired to perform in one show at a time, and that therefore being an actor is more akin to being a part of the “gig economy”⁷⁹ than being a part of a typical workplace. Theaters in this camp tend to paint a picture of their actors not as their so-called “servants” whose physical conduct they control, but instead as transient workers whose job is simply to put on a performance.

In reality, however, there is so much more to an actor’s responsibilities and interactions with a director. While actors may have moments of free decision-making throughout the process of preparing (“blocking”) a play, almost everything comes down to what the artistic director envisions. This is really an employee-employer relationship where the employer has full control over not only when and where rehearsals are held, but ultimately full control concerning when, where, and how an actor portrays their part.

Though employee classification is crucial for actors—as well as employees writ large—to achieve better legal protections, a deeper exploration of the distinction between employees and independent contractors and the implications of this divide for employment equity, particularly in the context of theater, is beyond the scope of this Note.⁸⁰ Thus, the remainder of this Note will assume for the sake of argument that actors are classified as employees, not as independent contractors. This classification allows for their protection by the ADA and Title VII.

ACT III. LEGAL REMEDY NO. 1: CREATING A NEW BFOQ

Scene 1: Creating a Race or Color BFOQ

Notably missing from the list of categories that can be used to assert a BFOQ defense⁸¹ are race, color, and disability. Over the past few decades, the bulk of relevant scholarship has focused on reasons Congress specifically did not include race or color as possible BFOQs.⁸² Relatedly, scholars have started to ask whether Congress erred in this omission, and some even go so far as to champion adding a race or color BFOQ.⁸³

More specifically, this question about a race or color BFOQ has recently been explored in the context of entertainment.⁸⁴ Do historically marginalized actors lack opportunities as a “result of illegal discrimination by the theater industry,”⁸⁵ or is it instead a product of artistic freedom and sound business decisions? Should the issue be relegated to the realm of First Amendment jurisprudence?⁸⁶

Legal scholars have often approached this question by looking at language used by the Equal Employment Opportunity Commission (“EEOC”).⁸⁷ The EEOC’s regulations⁸⁸ mention that a gender BFOQ could theoretically exist for hiring actors if deemed necessary for a play’s authenticity: “Where it is necessary for the purpose of authenticity or genuineness, the Commission will consider sex to be a bona fide occupational qualification, e.g., an actor or actress.”⁸⁹ The EEOC has thus explicitly “recognized that the entertainment industry is one place where discrimination might be necessary.”⁹⁰

The fact that use of a BFOQ has been considered by the EEOC as potentially useful (and lawful) in an entertainment context gives credence to the idea that it is permissible to legally discriminate, through the use of a BFOQ, in order to preserve a play’s primary functions of storytelling and authenticity.⁹¹ Therefore, “it seems reasonable to assume that where the characters are race-specific, race is a job requirement, and hence, should be a BFOQ exception.”⁹²

Scene 2: Creating a Disability BFOQ

So, could a disability BFOQ similarly be added to the ADA? The idea is not without precedent, at least in the realm of some states’ local laws. For instance, the Administrative Rules of Montana state that an employer may use a BFOQ “where the reasonable demands of a position require a distinction based on . . . physical or mental disability.”⁹³

But the question remains: Is the addition of a disability BFOQ really enough to make a difference? Or would it just perpetuate the status quo of allowing employers/artistic directors to keep employees/actors with disabilities off the stage? According to the University of Southern California Annenberg Inclusion Initiative, only 2.7% of characters with speaking roles in a survey of 900 popular movies from 2007 to 2016 were characters portrayed with a disability.⁹⁴ Assuming the trend holds true across the sister industries of stage and screen, these statistics show that a disability BFOQ probably could not effectuate all that much change. If only around 2–3% of characters are written to have disabilities, even if a majority of directors cast those roles with actors who have disabilities, we would have at most a 3% increase in the number of actors with disabilities getting cast. And there is no guarantee that any directors would even opt to utilize the disability BFOQ. Thus, the most progress a disability BFOQ could make would likely be marginal at best.

Furthermore, creating a disability BFOQ opens the door to possible misuse and abuse by employers. Indeed, use of a BFOQ, though it can be
co-opted for the benefit of a group of employees, is usually seen as an employer-friendly tactic. For example, an employer who does not want to hire actors with disabilities could use the BFOQ as a shield, asserting that such an actor with a disability could not serve “essential functions”⁹⁵ (such as deft movement across the stage) required of the job.

Scholarship at the forefront of this conversation seems to overwhelmingly come to the same conclusion: “[T]he fear that employers could misuse a generally applicable . . . BFOQ to shield invidious . . . discrimination is too great to warrant the enactment of such a provision.”⁹⁶ Given these potential setbacks, it becomes necessary to look at what other remedial legal options remain.

ACT IV. LEGAL REMEDY NO. 2: AFFIRMATIVE ACTION

Scene 1: Background

The concept of affirmative action, created during the civil rights movement in the United States, derives from a “paradox,” namely that “[o]nce we amended the Constitution and passed laws to protect people of color from being treated differently in ways that were harmful to them, the government had trouble enacting programs that treat people of color differently in ways that might be beneficial.”⁹⁷ We face a similar problem with regard to disabilities, in that in employment discrimination law’s noble effort to level the playing field, we must fight to create ways to treat people with disabilities that “might be beneficial”⁹⁸ as well.

From a statistical standpoint, affirmative action for race actually resulted in some of its intended effect; the years between 1974 and 1980 saw a 20% increase in the rate of minority employment in businesses relying on affirmative action (as compared to an increase of only 12% in companies without affirmative action plans in place).⁹⁹ Furthermore, there is still room for the affirmative action model to change over time, as “[t]here is no Brown v. Board of Education . . . for affirmative action, no well-established precedent.”¹⁰⁰ Thus, the door is left ajar for a new movement in which we use affirmative action tactics to make sure that more actors with disabilities are not only getting into the audition room, but also getting cast.

While decades of proof show that affirmative action has led to success, specifically in the context of school desegregation,¹⁰¹ the concept also comes with quite a bit of baggage.¹⁰² Scholars and laypeople alike have been arguing for years over whether “affirmative action for racial minorities disadvantages white people by virtue of their race.”¹⁰³ It is likely that this same argument would surface regarding whether affirmative action in the context of casting actors with disabilities disadvantages able-bodied actors. To this point, however, although there may be winners and losers in affirmative action, it has been determined that the practice is occasionally justified nevertheless.¹⁰⁴

In United Steelworkers v. Weber, the Supreme Court created precedent that some affirmative action regimes are, in fact, justified, and it laid out a test dictating when these regimes are constitutional.¹⁰⁵ While the Court’s opinion is perhaps not particularly clear in terms of where to draw that line,¹⁰⁶ it does provide us with a set of loose guidelines. In order for a plan to fall on the permissible side of that line, it must (1) be “designed to break down old patterns of . . . segregation and hierarchy,” (2) “not unnecessarily trammel the interests of” other employees or applicants, and (3) be a “temporary measure.”¹⁰⁷

These guidelines, specifically designed to apply to affirmative action in regard to racial segregation and discrimination, could easily be adapted to apply to disability as well. One could imagine guidelines for theater companies that (1) break down existing patterns of hierarchy in terms of casting actors without disabilities; (2) do not “unnecessarily trammel” the interests of actors without disabilities, who would retain plenty of chances to be cast; and (3) only last until such time that theaters understand and realize not only that diverse casting is a noble goal, but also that it makes sound economic sense. While this raises a different question as to how these guidelines would be implemented, as discussed below, there may actually be no need to adapt these guidelines because of the differences in statutory language between Title VII and the ADA.

Scene 2: Statutory Interpretation

Challenges to affirmative action in the context of ending racial segregation sometimes stem from a disgruntled white student who feels that a school’s admission policies are a zero-sum game (and thus, feels that their rights are being “unnecessarily trammel[ed]”).¹⁰⁸ For instance, in Fisher v. University of Texas, a white woman who was denied admission to the University of Texas sued on the grounds that the school’s admissions system was unconstitutional because it took race into account.¹⁰⁹ Ultimately, Justice Anthony Kennedy authored the close opinion in favor of the University of Texas, deciding that the university’s policy of considering race as one of a number of factors in admissions “met the standard of strict scrutiny”¹¹⁰ and was thus appropriate. While the final outcome of this case comes down on the side of the affirmative action plan being implemented by the university, it also demonstrates the very live and contentious idea that there are people who tend to feel they are being injured by affirmative action schemes at large.

The Court has maintained its belief that at least some affirmative action regimes could be unconstitutional because they “unnecessarily trammel”¹¹¹ other employees’ rights, and their authority on this matter comes from citing the text of Title VII itself: it is unlawful to “discriminate . . . because of . . . race” when hiring employees.¹¹² White students have long used this argument to say that they themselves were discriminated against because of their race (as a white person) when a Black student is admitted and there is an affirmative action regime in place at that university;¹¹³ the claim is one of “reverse racism.”¹¹⁴ Similar arguments have long been made by many white plaintiffs in the employment context: there have “recently [been] a number of headlines regarding ‘anti-white racism’ and there have been a variety of civil rights lawsuits filed by white employees . . . claiming race discrimination.”¹¹⁵

The language of the ADA, on the other hand, dictates only that a covered entity may not “discriminate against a qualified individual on the basis of disability.”¹¹⁶ The ADA itself provides limited guidance on whether an employer may or may not, for instance, discriminate in favor of a qualified individual on the basis of disability.¹¹⁷ In light of this difference in statutory language, it is possible that an affirmative action plan in the context of disability under the ADA may not even need to pass muster under the three-part Weber¹¹⁸ test described above. Further analysis of this distinction in language, although beyond the scope of this Note, is required to determine if theater companies would be within their rights to implement affirmative action regimes regarding hiring actors with disabilities.

Scene 3: Application

Given the analysis above, this Note proposes that theaters could help remedy the imbalance in casting practices by beginning to use an affirmative action model to bring more inclusivity into the casting room and onto the stage. If future analysis supports the above interpretation of the statutory text, this model does not have to live up to the Weber¹¹⁹ standards. Each theater company is unique, with its own set of structures and hierarchies already in place, so the most effective way for each individual theater company to utilize an affirmative action model would likely be best judged by the company itself. The 2020s appear to have ushered in a hunger for an increase in overall diversity,¹²⁰ and it is possible that some theaters would jump at the chance to create a scheme through which they could improve the diversity on their stages—if only because it would reflect well on the theater.

Perhaps one answer is a required training for theater companies throughout the country (likely in an online format) through which they could gain a better understanding of the necessities and risks associated with creating and implementing an affirmative action plan.¹²¹ Then, each theater company could come up with a plan that best fits its specific needs and goals. Implementation of these plans would likely require the creation of an organization to oversee these plans and establish accountability, as well as conduct periodic check-ins with each theater company to assess follow-through and commitment going forward. While this suggestion would involve significant resources (time, money, and otherwise), this Note has demonstrated how crucial it is to take affirmative steps in this arena to enact true change. Investing these resources would be a necessary first step.

However, clearly the nebulous idea of “using affirmative action in casting actors with disabilities” leaves a lot of details to be desired. Who would ensure that theaters truly implemented affirmative action measures? How would relevant statistics be tracked, given that each theater and, more granularly, each show has a completely different set of needs? What kind of penalties would be imposed if theaters chose not to follow their affirmative action plans? All of this is not to say that legal remedies would not move theater in the right direction, but given these difficult questions with no immediate answers, it seems clear that this proposed legal remedy is not enough on its own either. So, what options remain?

ACT V. A LOOK AT POTENTIAL QUASI-LEGAL AND NONLEGAL REMEDIES

Scene 1: Societal Shifts—Effects of the COVID-19 Pandemic

One force that has the potential to shift the way we as a society see entertainment and theater, and therefore theater creators, is the COVID-19 pandemic.¹²² Our society’s transition to the use of Zoom and other online platforms has greatly increased theater’s accessibility in a number of ways,¹²³ perhaps most notably in terms of the internet’s ability to transcend physical barriers and allow people from all around the world to watch a performance.¹²⁴

Additionally, many virtual productions are simply more affordable¹²⁵—both for audiences who no longer need to worry about issues such as transportation to and from the theater, costly parking, and the allure of overpriced theater snacks and drinks, and for theater companies that suddenly find themselves without the need for large, elaborate sets, accessible theaters, or a whole team of spotlight operators.

This shift has the possibility to push access for actors with disabilities in the right direction and could provide the movement with enough momentum to continue to embrace inclusivity and accessibility once we (presumably) reenter a less digital world. However, Deaf¹²⁶ theater artist Elbert Joseph has his doubts: “[O]nce we go back to being in person, are people going to be willing to continue [making theater accessible]? Because there is no more excuse.”¹²⁷ And he is right: we have now seen a digital landscape in which disability has proven to be much less of a barrier in the bid for access.¹²⁸

Writer and performer Katie Hae Leo, while acknowledging the importance of the ADA as it stands, believes that the COVID-19 pandemic has reminded society of the vulnerabilities associated with being a person with disabilities.¹²⁹ She adds that, although the pandemic may have established a precedent of creating more access for artists with disabilities, it will all be for naught unless we “codify some of those changes, and make sure that they become part of, at the very least[,] best practices and at the best, law.”¹³⁰

Now that we have seen, by way of the pandemic, that many accessibility measures are in reality quite easy to implement,¹³¹ the above legal proposals of adding a disability BFOQ to the ADA and implementing an affirmative action regime for casting actors with disabilities could come into play. When utilized in tandem with the lessons we have learned from being thrust into the virtual world during the pandemic, these legal solutions could help to create a theater landscape that is both welcoming and encouraging to theater artists with disabilities.

Additionally, while creating diversity onstage is a noble goal in and of itself, theater companies do have pure economic reasons to invest in increased representation. Looking back at theater’s sister industries, film and television, that exact understanding seems to be unfolding as the early 2020s progress. While statistics, as discussed above, show dismal rates of casting actors with disabilities over the years, both film and television have begun to make great strides in their bid for inclusivity on screen. Take, for instance, the critically acclaimed 2021 film CODA, which centers on a family with deaf adults and their hearing child.¹³² The deaf characters are all played by deaf actors,¹³³ and the story puts deafness at the heart of the viewer’s experience. The film even led to the first acting Oscar nomination (and win) ever for a deaf man, Troy Kotsur.¹³⁴ Kotsur told the New York Times via a sign language interpreter that the success of this film marks a wider understanding that we should no longer “think of deaf actors from a perspective of limitations.”¹³⁵ As film and television make these moves forward, and as theaters begin to grapple with the fact that more diverse casts could lead to more money and acclaim, hopefully theaters will begin to follow in the footsteps of their sister industries.

Scene 2: Building Upon Ongoing Diversity, Equity, and Inclusion Work

Since it appears that no one solution, legal or otherwise, is sufficient to meaningfully increase opportunities for actors with disabilities on stage, it is worth looking to other work that is already being done in the arena for inspiration. The initiatives currently taking shape, in theater and beyond, are known as Diversity, Equity, and Inclusion (“DEI”) initiatives.¹³⁶ DEI work, according to the International Labour Organization, can be responsible for an increase in innovation of up to 59% and an increase in understanding and assessment of consumer demand of up to 37%.¹³⁷

This wave of DEI work in workplaces around the country and beyond focuses on the tenets of “diversity” (the ways in which people differ from one another), “equity” (fair treatment and opportunity regardless of identity), and “inclusion” (providing a variety of people with power and decision-making authority).¹³⁸ However progressive a DEI mindset in a workplace might be, though, underrepresentation “remains a very real problem.”¹³⁹ A 2020 review of workplace diversity, for example, found that around 85% of top executives in the United States are white,¹⁴⁰ with similar statistics showing that the majority of top executives do not report having a disability.¹⁴¹

Even so, companies, including theaters, are now actively considering DEI initiatives; these initiatives tend to center on anti-racism and racial equity.¹⁴² Many theater websites boast initiatives to combat racism within their internal structures.¹⁴³ In addition to actively increasing representation of people of color in the workplace, these initiatives are shining a spotlight on the destructive effects of racism on the workplace. Imagine if this push for equity in terms of race could be harnessed and used through the lens of disability as well. This would bring awareness to the trials and tribulations of actors with disabilities, as this Note has detailed, and could help to create a society in which anti-ableism becomes central to the workplace.

Scene 3: Exploring Nontraditional Casting

Another potential route to getting more actors with disabilities on stage would be to follow the dictates of “nontraditional casting.”¹⁴⁴ Under the regime of nontraditional casting, in order to expand opportunities for
oft-overlooked actors, artists are cast in roles in which certain categories (such as gender, ethnicity, disability, and race) are not “germane to the character’s or the play’s development.”¹⁴⁵ The attempts at kickstarting nontraditional casting have been widespread; multiple major theater organizations banded together in the late 1980s to create a not-for-profit organization called the Non-Traditional Casting Project (“NTCP”).¹⁴⁶

The NTCP, as a part of its advocacy work, identified a few distinct types of nontraditional casting meant to act as “jumping-off points for the imagination,”¹⁴⁷ such as “societal casting,”¹⁴⁸ “cross-cultural casting,”¹⁴⁹ and “conceptual casting.”¹⁵⁰ These various categories are meant to serve as tools for creating opportunities for actors who may otherwise be passed over.

One further category to be addressed is “blind casting,” in which “actors are cast on the basis of their talent without regard to their physical attributes [and abilities or disabilities].”¹⁵¹ While the idea of blind casting may appear innocuous on the surface, and perhaps even look like a good solution, academic scholarship points us to the conclusion that even casting that is nondiscriminatory on its face leads to the same disparities on stage after all is said and done.¹⁵²

2020/aug/11/its-dangerous-not-to-see-race-is-colour-blind-casting-all-its-cracked-up-to-be [https://
perma.cc/ZB3H-GEWR] (quoting Diep Tran, an arts journalist specializing in diversity) (“Colour-blind casting is dangerous . . . [because] [i]t negates the very real structural hindrances that block actors of colour from the same opportunities as white actors—like low pay in the theatre industry, a lack of roles that are ethnically specific that actors of colour can play, and unconscious bias on the part of white theatres and casting directors.”). Furthermore, in the past, directors have gone so far as to use the idea of blind casting to do things such as cast white actors as characters of color, using the explanation that the white actors just happened to be best for the role.¹⁵³

Because of the potential harms of blind casting, scholars urge directors to consider “conscious casting” instead, where attributes and abilities/disabilities are taken into account to the extent that they interact with the plot lines and characters and affect the meaning of a play or movie.¹⁵⁴ Utilizing conscious casting from the nontraditional casting canon may prove another useful tool in the casting toolbox. However, the distinction between casting “blindly” and “consciously” is not always straightforward and still allows for a well-meaning director to make a blunder by casting actors in a way that sets forth an unintentional message.¹⁵⁵

Even so, conscious casting can and should be used in the context of casting actors with disabilities. Conscious casting could even be combined with the affirmative action plan discussed above; this could open the door to actors with disabilities not only playing characters with disabilities, but
able-bodied characters as well. Not only would this provide more job opportunities to actors with disabilities, but it would also allow directors to make purposeful statements through their casting about how our society views, and should or should not view, people with disabilities.

Making conscious casting an industry standard would signal to artistic and casting directors alike that diversity on stage could be a meaningful enhancement to their repertoire and the messages conveyed, and, as such, should be taken into account. It is true that some baggage might come along with this approach: it could require extra auditions to be held, extra outreach into various underrepresented communities, and extra thought put into how casting each actor affects how the play comes across to the audience.¹⁵⁶ Given the dramatic loss of talent caused by excluding actors with disabilities, however, this Note argues that the potential for positive outcomes far outweighs the baggage.

CURTAIN CALL: CONCLUSION

At the end of the day, representation on stage can (and should) inspire new generations of both activists and actors, but it appears as though there is no single legal solution that will be able to ensure or enforce that representation. Instead, if we hope that “[o]ne day, every American theatre will be a safe, equitable, and inclusive workplace filled with arts practitioners who represent and reflect the wonderful diversity of the human tapestry,”¹⁵⁷ we will need to source solutions from within the legal field as well as beyond.

This Note does not, by any means, cover the breadth of issues and possibilities left to be discovered and discussed in terms of getting better representation on theater stages. For instance, studies that have thus far been done about disability in film and television should be replicated for the stage in order to give us a more accurate picture of the issue as it applies to stage actors.¹⁵⁸ Also, further research beyond the scope of this Note may yield other creative and effective legal and nonlegal tactics that can be used to not only increase diversity onstage, but also to maintain it.

It is hopefully clear by now that there is a problem in the theater world that needs to be addressed. Not enough actors with disabilities are getting employed—or even getting the chance to prove that they should be employed. This issue has negative effects all around. Of course, it impacts actors with disabilities by lessening their opportunities to practice their craft. But it also affects society at large in a number of ways; representation of disabilities on stage can lead to a feeling of “belonging” for many people who have so often felt sidelined, and the art that gets created becomes more inclusive and authentic overall.

It should also be clear by now that there is not yet a simple solution to the above problem, in the law or in society. This cannot dissuade us, however, from fighting to ensure that actors with disabilities have the opportunity to perform on stage. It appears as though it will take a conglomeration of methods: the creation of a disability BFOQ; affirmative action based on disability; monetary and business incentives; ongoing DEI work; and conscious casting could all be pieces of the as yet unsolved puzzle. And while we are still missing puzzle pieces, we should begin by working with the methods we already have.

This Note has presented potential legal avenues for addressing the lack of opportunities for actors with disabilities in the theater industry and has concluded that using the law as a vehicle for improving the odds for these actors is probably not enough. Either way, casting more actors with disabilities is an issue that clearly requires immediate attention. After all, when it comes to the heart of the reason that all of this research and discussion is necessary in the first place, actress Ali Stroker put it best in her Tony Award acceptance speech: “This award is for every kid watching tonight who has a disability, who has a limitation or a challenge, who has been waiting to see themselves represented in this arena,” she said.¹⁵⁹ “You are.”¹⁶⁰

96 S. Cal. L. Rev. 483

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Kira Patterson*

* Senior Editor, Southern California Law Review, Volume 96; J.D. Candidate 2023, University of Southern California Gould School of Law; B.A. Drama and Psychology 2015, Tufts University. Thank you to my supportive, loving, wonderful friends and family for having my back throughout law school. Special thanks to my advisor, Dr. Orly Rachmilovitz, for her guidance during the note-writing process, and a final thank you to my mentors (also known as my parents), Barbara and Patrick Patterson, for inspiring me every day. This Note is dedicated to the memory of colleague and friend Jenny Lin.