U.S. Department of Education Guides School Districts in Providing Equal Opportunities to Student-Athletes with Disabilities
Earlier this year, the Department of Education’s Office for Civil Rights (“OCR”) issued guidelines clarifying school districts’ existing legal obligations to provide students with disabilities equal access to extracurricular athletic activities.1 The OCR noted that because extracurricular athletics are an important component of an overall education program, it is important that students with disabilities are given equal access to these activities. Athletics promote socialization, teamwork, leadership, and fitness, particularly in students with disabilities.2 Students with disabilities who are not given equal opportunities to particulate in athletics in elementary and secondary schools may be at an unfair advantage; and school districts that violate these guidelines may be in violation of federal laws designed to protect the rights of individuals with disabilities in school programs and activities.3 The new guidelines do not add requirements to federal laws, but are intended to assist public elementary and secondary schools in ensuring they are in compliance with laws and offering student athletes with disabilities equal access to extracurricular activities.4
School districts, athletic associations, and families of student athletes with disabilities should take note of OCR’s Guidelines:
1. Know Federal Laws Requiring Equal Treatment.
Under Section 504 of the Rehabilitation Act of 1973 (“Section 504”), a school district must offer qualified students with disabilities access to programs equal to that of students without disabilities. A student with a disability is one who (1) has a physical or mental impairment that substantially limits one or more major life activities; (2) has a record of such an impairment; or (3) is regarded as having such an impairment.5 Students are qualified to receive equal access if other individuals their age receive educational services, if state law mandates services to students with disabilities their age, or if they are entitled to free public education under the Individuals with Disabilities Education Act (“IDEA”).6
However, this does not mean a school district must allow every qualified student with a disability access to every competitive program. A school district is allowed to require that a student have a particular skill level or ability to participate in the program, so long as the selection or competition criterion is not discriminatory. Furthermore, a school district cannot assist an association, organization, club, league, or other third party that discriminates against the district’s students on the basis of disability. The OCR suggests that in order to comply with federal laws, school districts should work with their athletic associations to ensure students with disabilities are allowed an equal opportunity to participate in interscholastic athletics.7
2. Do not Act on Generalizations and Stereotypes.
The OCR advises that a school district must operate its programs and activities without generalizations, assumptions, prejudices, or stereotypes about disabilities. This includes not relying on generalizations about what a student with a disability may be capable of. The OCR gives the example of a lacrosse coach refusing to allow a student with a learning disability the opportunity to play in games because he believes students with this type of disability cannot play successfully under time constraints and pressure. This type of generalization leads to denying the student an equal opportunity to participate on an athletic team and would be in violation of federal laws. The student does not automatically have a right to play in games, but the coach’s decision on whether or not the student plays in games cannot be based on generalizations or stereotypes. He must decide who plays based on the same criteria used for all players equally.
3. Ensure Equal Opportunity for Participation.
Qualified students with disabilities must be afforded an equal opportunity for participation in all extracurricular athletics that a school district offers.8 This means school district must offer reasonable modifications and aids or services if necessary as long as doing so would not fundamentally alter the program or would not pose a safety concern.9 This requires school districts should undergo a two-part examination: (1) Is a modification necessary? (2) Would the modification fundamentally alter the athletic activity? Fundamental alterations may include those that would significantly affect the game itself or give the disabled student an unfair advantage over others. If a modification would fundamentally alter the activity, then the school district should look for other available modifications.
4. Offer Separate or Different Athletic Opportunities only when Necessary.
Overall, school districts must work to ensure that students with disabilities are allowed equal participation in activities alongside students without disabilities. The OCR finds unnecessarily separate or different services discriminatory and urges school districts to work with athletic associations to ensure equal participation and modifications when reasonable. However, if reasonable modifications or aids and services are not available, then school districts should create separate or different athletic opportunities for those students with disabilities. If there are not enough students with disabilities to field a team, school districts should consider (1) developing district-wide or regional teams; (2) mixing male and female students on one team; (3) offering “allied” or “unified” sports teams on which students with disabilities participate with students without disabilities.10 However, OCR clarifies that a qualified student with a disability who would be able to participate in existing athletics programs, with or without modification, may not be denied that opportunity, nor limited to separate or different opportunities.
5. Review all Policies and Procedures and Ensure Compliance.
What do these OCR Guidelines mean for school districts and families? School districts should review all policies and procedures regarding extracurricular athletic activities and ensure these policies will afford students with disabilities equal opportunities. For example, if the gymnastics team has a zero tolerance policy for absences, but a diabetic student must be allowed a modified practice schedule to accommodate glucose testing and insulin administration, then the zero tolerance policy must likely be modified. If the district swim meet rules require a “two-hand touch” finish, but a one-handed swimmer with the required swimming ability wishes to compete, then the district will have to consider whether or not it must permit her to finish with a “one-hand touch.” The school district does not need to make modifications that will fundamentally alter an activity or give a student with a disability an unfair advantage, but it must ensure that all reasonable modifications are explored. School districts should also ensure that athletic associations and coaching staff are properly trained on OCR Guidelines and that they understand they cannot decide who makes a team or who plays on a team based on generalizations, assumptions, prejudices, or stereotypes about disabilities.
If families of students with disabilities believe a school district is in violation of federal laws mandating equal opportunities for student athletes with disabilities, they may file a complaint with OCR or in court.11 However, families are encouraged to first work with their school district to develop reasonable modifications or alternatives. On April 24, 2013, OCR also issued guidelines reminding school districts that it is unlawful under federal civil rights laws to retaliate against an individual who complains that a right or privilege secured by the law has been violated.12 This means if a student or parent complains about violations or participates in an OCR investigation or proceeding, the school district cannot retaliate against that student or parent.
The OCR Guidelines have created some concerns among school districts, and the National School Boards Association (“NSBA”) has requested clarification from OCR regarding Section 504 and the ways in which OCR Guidelines may be enforced and implemented. However, currently, school districts must comply with the current OCR Guidelines and should continue working with students, families, community and advocacy organizations, athletic associations, and other interest parties to ensure equal opportunities to students with disabilities.
1 United States Department of Education Office for Civil Rights, Dear Colleague Letter (January 25, 2013), available at http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201304.pdf [hereinafter “OCR Guidelines”].
2 Id. at 1, citing United States Government Accountability Office, Students with Disabilities: More Information and Guidance Could Improve Opportunities in Physical Education and Athletics, No. GAO-10-519, at 1, 31 (June 20010), available at httyp://www.gao.gov/assets/310/305770.pdf. The guidelines cover all public extracurricular athletics, including club, intramural, or interscholastic (e.g., freshman, junior varsity, varsity), at all education levels.
3 See Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a), (b) (protecting students with disabilities at traditional public and charter schools that receive Federal funding); Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12201(a) (prohibiting disability discrimination in public school districts, regardless of whether they receive Federal funding).
4 The OCR’s Guidelines include examples specifically tailored to elementary and secondary schools, but the Guidelines also apply to postsecondary institutions that must ensure equal opportunity in athletics, including intercollegiate, club, and intramural opportunities. OCR Guidelines, at 2.
5 29 U.S.C. § 705(9)(B), (20(B).
6 34 C.F.R. § 104.3(I)(2).
7 An interscholastic athletic association is subject to Section 504 if it receives Federal funding or if its members are recipients of Federal funding. OCR Guidelines, at 5, n.12.
8 34 C.F.R. § 104.37(a), (c).
9 34 C.F.R. § 104.4(b)(1).
10 The OCR notes the Department’s Office of Special Education and Rehabilitative Services has issued a guidance document on this topic. See Creating Equal Opportunities for Children and Youth with Disabilities to Participate in Physical Education and Extracurricular Athletics (August 2011), available at http://www2.ed.gov/policy/speced/guid/idea/equal-pe.pdf.
11 34 C.F.R. § 104.61 (incorporating 34 C.F.R. § 100.7(b)); Barnes v. Gorman, 536 U.s. 181, 185 (2002).
12 United States Department of Education Office for Civil Rights, Dear Colleague Letter (April 24, 2013), available at http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201304.html.