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Ruth Colker The Death of Section 504 The passage of the Americans with Disabilities Act1 (ADA) was a signi‹cant and positive development for the law of disability discrimination. The ADA strengthened the rights that already existed under Section 504 of the Rehabilitation Act of 19732 by extending those rights to the private sector.3 Because Section 504 and the Individuals with Disabilities Education Act4 already provided protection for students with disabilities,5 the ADA’s primary impact has been on the law of employment and accessibility.6 In theory, the ADA should have had little impact on institutions already covered by Section 504 other than to increase publicity about the existence of the rights of individuals with disabilities. Section 504 was the model for drafting the ADA;7 the similarities are particularly striking with regard to coverage of the public sector.8 The Section 504 regulations often became the text of the ADA itself. Codifying these preexisting rights certainly could have had the effect of increasing voluntary compliance with these rights. The nature of the rights, themselves, however, should have been largely unchanged. In fact, Congress expressly dictated that the preexisting rights under Section 504 should be the “›oor” in determining the meaning of the ADA.9 In this essay, I shall argue that the passage of the ADA had an unexpected consequence–it resulted in the narrowing of the rights that had been understood to exist under Section 504.10 Section 504 covered two broad areas of the law—the law of employment for individuals employed by entities receiving federal ‹nancial assistance and the law of education for students attending primary, secondary, or higher education. The effect on the law of employment, which I discuss in the next section, has been immediate and dramatic. The effect on the law of education, which I will discuss subsequently , cannot yet be fully documented; however, recent decisions suggest that those rights may also soon be limited. Thus, I will argue that passage of the ADA has resulted in the demise, if not the death, of Section 504. The Supreme Court’s decision in Trustees of the University of Alabama v. Garrett11 makes the phenomenon I examine here even more signi‹cant. It is ironic indeed that passage of the ADA may well have led to the substantial 323 dilution of the preexisting rights under Section 504, while Title I of the ADA has been found unconstitutional insofar as it permits private suits for damages against state employers. The Law of Employment In two previous articles, I reported appellate outcome statistics for ADA employment discrimination cases.12 Table 1 reports my ADA data from January 1994 through July 30, 1999.13 These data re›ect a strong prodefendant trend for appellate outcomes in employment cases that are available on Westlaw. Since the appellate courts began to hear employment discrimination cases under the ADA, defendants have had successful outcomes in 86.5 percent of the cases.14 This ‹gure does not mean that defendants, in fact, are winning 86.5 percent of all ADA employment discrimination cases. It merely means that defendants are prevailing in 86.5 percent of ADA appellate, employment discrimination cases that are available on Westlaw for the time period under investigation . At a minimum, it suggests that the plaintiff bar is overpredicting their chance of success on appeal, because they are expending ‹nancial resources to appeal cases that have a limited chance of success. The appellate courts, therefore, seem to evaluate their cases more negatively than plaintiffs expect. Many explanations can be offered for the prodefendant trend in the ADA data, and I have considered such explanations in previous articles. One way to understand this data is to say that plaintiffs’ lawyers have acted irrationally—that they have made decisions to appeal cases out of a false sense of potential success. Because most lawyers take ADA cases on a contingency fee basis, it makes little sense for a lawyer to pursue meritless litigation on appeal. One would expect that economic forces would cause plaintiffs’ lawyers to make more conservative judgments on appeal, so that the plaintiff success rate would come closer to the 50 percent ‹gure that should prevail in a rational system of litigation. It is unlikely that plaintiffs’ lawyers have deliberately miscalculated their chance of success. Thus, one might ask what factors may be causing them to overpredict their chance of success on appeal. One factor may be a relatively successful experience under another, similar statute. Hence...

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