The United States Department of Education’s Office for Civil Rights (OCR) recently issued guidance, in the form of a “Dear Colleague” letter, underscoring the importance of providing students with disabilities equal opportunity to participate in extracurricular athletics pursuant to Section 504 of the Rehabilitation Act of 1973. The OCR issued this guidance in response to a United States General Accounting Office (GAO) report finding that students with disabilities are not being offered an equal opportunity to participate in extracurricular athletics such as club, intramural and interscholastic athletic programs in public elementary and secondary schools.
As part of its guidance, OCR made clear that Section 504 extends beyond the school day and that a school district’s responsibilities pursuant to Section 504 include providing disabled students with an equal opportunity to participate in athletic programs. According to OCR, however, a student is not entitled to participate in any selective or competitive athletic program simply because the student is a “qualified” student with a disability under Section 504. School districts may still require a level of skill or ability of a student in order for the student to be able to participate in a selective or competitive program or activity, as long as the selection criteria are not discriminatory.
OCR highlighted that school districts must be careful to avoid violating Section 504 obligations by supporting or assisting any organization, club, league or other third party that discriminates on the basis of disability. OCR was careful to point out that the requirements of Section 504 supersede the rules of any club, association, organization or league that would limit a disabled student’s ability to participate, and therefore recommended that districts collaborate with local and state athletic associations to ensure disabled students are not being denied an equal opportunity to participate in interscholastic athletic programs.
School districts must also be aware that students with the same disability may have different capabilities; therefore, districts must be careful not to act based on generalizations or stereotyping students with disabilities, whether such generalizations and stereotypes are based on disability generally or based upon a specific disability. In determining a disabled student’s eligibility to participate, school districts must engage in an individualized inquiry with regard to each student with a disability. Additionally, school districts must make reasonable modifications and provide aids and services necessary to ensure that disabled students have an equal chance to participate in extracurricular athletics, unless the district can show that doing so would fundamentally alter the athletic program. OCR defines a fundamental alteration as altering “such an essential aspect of the activity or game that it would be unacceptable even if it affected all competitors equally.” According to OCR, a reasonable modification might be to utilize a visual cue simultaneous with a starter pistol for a hearing impaired student participating in track; an unreasonable modification might be adding an extra base in baseball. Such reasonable modifications and aids and services must be considered in the district’s individualized assessment of each disabled student’s eligibility to participate in extracurricular athletics.
OCR cautions that “unnecessarily” offering separate athletic programs for students with disabilities may be viewed as discriminatory when there is an existing athletic program for the same sport and the disabled student is not provided with an equal opportunity to participate — with or without reasonable modifications or aids and services. Even when a school district determines that a student with a disability cannot participate in existing athletic programs with reasonable modifications, districts need to ensure that they are offering opportunities for participation to accommodate the interests and abilities of its disabled students. In such cases, OCR encourages the creation of athletic opportunities for disabled students such as wheelchair basketball, whenever feasible. Where there are not enough disabled student athletes to form a team, school districts are encouraged to consider regional or district-wide teams or “allied” or “unified” sports teams.
In light of this OCR guidance, it is important to note that school districts may still adopt bona fide safety standards needed to implement extracurricular athletic programs. In considering student safety, however, the district must consider whether reasonable modifications or aids and services will make the student’s participation in athletics safe.
The full text of the Dear Colleague letter can be found here.