February 5, 2013
The United States Department of Education’s Office for Civil Rights (OCR) issued a Dear Colleague Letter on January 25, 2013, clarifying school districts’ responsibility to ensure that students with disabilities have equal opportunities to participate in extracurricular athletics under Section 504 of the Rehabilitation Act of 1973 (Section 504). The letter was issued following a Government Accountability Office (GAO) report which found that students with disabilities are not being afforded an equal opportunity to participate in extracurricular athletics in public elementary and secondary schools.
Section 504 prohibits discrimination on the basis of disability in any federally funded education program or activity. Section 504 regulations make clear that students with disabilities cannot be excluded from participation in, denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance. Section 504 also requires public education agencies to provide a free appropriate public education to each qualified student with a disability, regardless of the nature or severity of the disability. Thus, to avoid violating their Section 504 responsibilities, school districts must ensure that students with disabilities are given an equal opportunity to participate in interscholastic athletics.
OCR provides three specific examples in which students with disabilities are denied equal access to extracurricular athletics: (1) denial based on generalizations and stereotypes; (2) failure to provide equal opportunities for participation; and (3) offering separate or different athletic opportunities.
Regarding example one, a student with a disability cannot be denied an opportunity to participate in athletic activities solely because of reliance on generalized characteristics that are associated with the particular disability (e.g., students with cerebral palsy are not able to play baseball). Rather, school districts must view each student as an individual, and preconceived ideas about what limitations are imposed on an individual with a particular disability cannot be considered.
Next, school districts are responsible for providing reasonable modifications unless doing so would fundamentally alter the nature of the extracurricular athletic activity or provide the student receiving the modification with an unfair advantage. Therefore, school districts must make reasonable modifications to policies, procedures, and practices when necessary to ensure equal opportunity for participation (e.g., reasonable modification may include a visual start cue, such as a light that flashes simultaneously when the starter pistol sounds, for a hearing impaired student on the track team or a one-hand touch for a student with one hand on the swim team). Again, in order to comply with this responsibility school districts must engage in an individualized inquiry to determine whether the modification, aid, or service is necessary. If a specific modification is necessary but constitutes a fundamental alteration (e.g., adding an extra base in baseball), school districts are then required to consider whether other appropriate modifications are available. Providing equal opportunities for participation in athletic activities may mean providing the same supports and aids that are available to students during the regular school day (e.g., glucose testing and insulin administration for a student with diabetes).
In general, providing unnecessarily separate or different extracurricular athletics has been viewed as discriminatory. However, in instances where students with disabilities cannot participate in the school district’s existing extracurricular athletic programs even with modifications or aids and services, separate or different extracurricular athletics may be necessary. Specifically, students with disabilities should have an equal opportunity to receive the benefits of extracurricular athletics, and therefore school districts must offer additional athletic opportunities for students with disabilities when equal opportunities cannot be provided within the existing programs. When it is necessary to provide disability-specific teams, OCR recommends that educational agencies consider the following: (1) developing district-wide or regional teams; (2) offering co-ed teams; and (3) offering “allied” or “unified” sports teams that include both students with and without disabilities.
Thus, educational agencies are obligated to consider the participation of students with a disability in existing extracurricular athletics on an individual basis. In the event that all considered modifications, aids, or services would fundamentally alter the activity, school districts are advised to work with their students, families, communities, advocacy organizations, and athletic associations to create additional opportunities for students with disabilities.
Finally, OCR notes that responsibilities under Section 504 “supersede any rule of any association, organization, club, or league that would render a student ineligible to participate, or limit the eligibility of a student to participate, in any aid, benefit, or service on the basis of disability.” Accordingly, it is imperative that school districts consider the individual needs of students with disabilities and not deny participation based upon the policies and procedures of athletic associations, organizations, clubs, or leagues.
Following the GAO report and Dear Colleague Letter, extracurricular sports are likely to be scrutinized to ensure equal opportunities for participation. The Dear Colleague Letter provides useful guidance for school districts to ensure equal access to extracurricular athletics and suggestions for districts to proactively avoid liability for disability discrimination.
For further detailed information regarding OCR’s Dear Colleague Letter, Section 504, or other relevant anti-discrimination laws, please feel free to contact one of our eight offices located statewide. You can also visit our website, follow us on Facebook, or download our Client News Brief App.
Ricardo R. Silva
San Diego Office
Los Angeles Office
©2013 Lozano Smith
As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.