OCR Reminds Districts That They must Provide Disabled Students with Equal Opportunities in Athletics

Feb 4, 2013

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On January 25, 2013 the U.S. Department of Education Office for Civil Rights (“OCR”) issued a “Dear Colleague” letter reminding public school districts of their existing obligation to provide disabled students an equal opportunity to participate with non-disabled peers in all extracurricular athletic activities. While this obligation pursuant to Section 504 of the Rehabilitation Act of 1973 (“Section 504”) is not new, OCR felt guidance was necessary in light of a 2010 report issued by the U.S. Government Accountability Office finding that disabled students are not being afforded an equal opportunity to participate in extracurricular athletics in public elementary and secondary schools.

The “Dear Colleague” letter, which builds upon a Department of Education resource document issued in August 2011[1], begins with an overview of Section 504 requirements. In particular, OCR reminds districts that the provision of a free appropriate public education under Section 504 “may include services a student requires in order to ensure that he or she has an equal opportunity to participate in extracurricular and nonacademic activities.” DCL, fn 8. See 34 C.F.R. §104.33. OCR notes that this obligation supersedes any rule of any association, organization, club or league that limits student eligibility for participation. Accordingly, OCR advises that districts work with their athletic associations to ensure that disabled students receive equal opportunities to participate in interscholastic athletics.

To provide disabled students with equal opportunities, OCR recommends that districts not act on generalizations and stereotypes when deciding whether a student with a particular disability may participate in athletic activities and instead engage in an individualized inquiry for each disabled student to determine whether his or her participation can be assured through reasonable modifications or the provision of aids or services. Note that while districts may set requirements as to skill, ability and other benchmarks for athletic participation, they must provide reasonable modifications to disabled students unless doing so would fundamentally alter the nature of the activity or an essential aspect of the competition.

By way of example, OCR posits the situation where a high school student born with only one hand seeks to participate on the school swim team. While the student in question has the requisite swimming ability to make the team, she cannot comply with the “two-hand touch” finish rule, so she asks the school to waive the rule and allow her to finish with a “one-hand touch”. If eliminating the two-hand touch rule in its entirety would give the disabled student an unfair advantage, then the school is not required to provide the student with her requested accommodation. OCR surmises, however, that the school could have the student touch with one hand while requiring that her other arm be simultaneously stretched forward. Such a modification would allow the student to participate in the swim team while not giving her an unfair advantage over others, and thus constitute a reasonable accommodation. Other examples of reasonable accommodations that OCR discusses are providing a visual cue to a deaf student to signal the start of a track event (as opposed to using only a starting gun), and providing a diabetic student with assistance with glucose testing and insulin administration so that he or she can participate in extracurricular athletics[2].

When the provision of a reasonable accommodation will not allow disabled students to participate in existing extracurricular athletic programs, OCR recommends that districts “create additional opportunities for those students with disabilities.” DCL, page 11. If enough interest within an individual school does not exist to create a separate athletic program, OCR suggests that districts look to develop district-wide or regional teams for disabled students, or offer “allied” sports where disabled and nondisabled students participate together. OCR cautions, however, that the provision of unnecessarily separate programs would be considered discriminatory.

The “Dear Colleague” letter comes on the heels of a settlement agreement reached between the Illinois High School Association (“IHSA”) and Equip for Equality who, along with Attorney General Lisa Madigan, sued the IHSA in federal court in May 2012 on behalf of disabled Fenwick High School athlete Mary Kate Callahan. Callahan, who has lower limb paralysis, is among the best adaptive athletes in the state but was unable to qualify for state swimming and track meets under standards set for nondisabled student athletes. The suit alleged that the IHSA discriminated against disabled students based on the lack of separate IHSA standards for disabled student athletes “despite the wide use of such standards in other states and in disability sports programs, including the Paralympics.” See page 2 of Plaintiffs’ Complaint, available online at: www.equipforequality.org/resourcecenter/callahan_complaint_05162012.pdf. The suit also alleged that the IHSA violated Section 504 by failing to conduct an individualized assessment of Callahan’s ability to participate in IHSA state events, and by failing to engage in the interactive process to determine if any reasonable accommodations or modifications would enable her participation. The parties reached a settlement agreement in September 2012 whereby the IHSA agreed to offer four swimming events for disabled athletes during IHSA post-season Sectional and State meets and to adopt two qualification standards for disabled student athletes. The IHSA also agreed to implement procedures through which member schools can request reasonable accommodations for disabled student athletes. Since the lawsuit was initiated, the IHSA Board has approved terms and conditions for disabled athlete programs in some sports, including wheelchair basketball, boys swimming, girls swimming and diving, and boys and girls cross country.

Based on the above, it is imperative that public school districts engage in an interactive process with the parents/guardians of all disabled students seeking to participate in extracurricular athletics to determine: 1) whether the student is a qualified handicapped person pursuant to Section 504 (inclusive of IDEA eligible students); and, if so, 2) what accommodations will allow the student an equal opportunity to participate without fundamentally altering an essential aspect of the activity or creating an unfair advantage for the disabled student in the activity.

Maryam T. Brotine, an associate in the firm’s Chicago office, prepared this Law Alert.

[1] See Creating Equal Opportunities for Children and Youth with Disabilities to Participate in Physical Education and Athletics, available online at: www2.ed.gov/policy/speced/guid/idea/equal-pe.pdf.

[2] Accommodations for diabetic students to allow them to participate in extracurricular activities, including athletics, are also required in Illinois pursuant to the Care of Students with Diabetes Act, 105 ILCS 5/45 et seq.