On January 25, 2013, the U.S. Department of Education's Office for Civil Rights (OCR) issued a Dear Colleague Letter (DCL) notifying schools that students with disabilities must be afforded equal access to extracurricular athletics. The DCL comes after the U.S. Government Accountability Office (GAO) published a report noting the positive impact that extracurricular athletics has on students, especially those with disabilities. In its report, the GAO determined that public elementary and secondary students with disabilities are not being provided an equal opportunity to participate in extracurricular athletics, and suggested that the U.S. Department of Education communicate the duties of each school district, with respect to extracurricular athletics, under Section 504 of the Rehabilitation Act of 1973.
Under Section 504, districts must provide qualified students with disabilities an equal opportunity to participate in district programs. Section 504 defines a "person with a disability" as one who "(1) has a physical or mental impairment that substantially limits one or more major life activities; (2) has a record of such impairment; or (3) is regarded as having such an impairment." In addition, it notes that "qualified," in relation to public elementary and secondary education services, is a person "(1) of an age during which persons without disabilities are provided such services; (2) of any age during which it is mandatory under state law to provide such services to persons with disabilities; or (3) to whom a state is required to provide a free appropriate public education under the Individuals with Disabilities Education Act."
Generalizations and stereotypes
Districts may not use generalizations, assumptions, prejudices, or stereotypes about disabilities in general or specific disabilities when operating programs or activities. In addition, districts may not rely on generalizations with respect to what students with certain disabilities are capable of doing when it comes to playing sports.
Ensuring equal opportunity
The DCL states that districts that provide extracurricular athletics, which include club, intramural or interscholastic athletics at all education levels, must provide qualified students with disabilities an equal chance to participate. Districts must make reasonable modifications as well as provide any aids and services that are necessary to ensure an equal opportunity to participate in extracurricular athletics, unless the district can show that doing so would fundamentally alter the athletic program.
The DCL is not prohibiting districts from adopting safety standards or requiring a certain level of skill or ability to participate in their athletic programs. However, equal opportunity does not mean that every student with a disability must be guaranteed a spot on an athletic team. Districts must take into account whether a student with a disability can be guaranteed safe participation with a reasonable modification or the provision of aids and services.
Districts must determine on a case-by-case basis whether a modification is necessary. If it is, the modification must be permitted unless it would fundamentally alter the nature of the extracurricular athletic activity. OCR noted that a fundamental alteration might occur if the modification "alters such an essential aspect of the activity or game that it would be unacceptable even if it affected all competitors equally." One example given by OCR was adding another base to the field in baseball. Even a change that has a peripheral impact may provide an unfair advantage to a player with a disability, and, as a result, cause a fundamental alteration to the character of the competition. If it is determined that a modification would be considered a fundamental alteration, the district must decide whether the disabled athlete would be able to participate in the activity if another modification were available.
Offering separate or different athletic opportunities
The DCL notes that the provision of unnecessarily separate or different services is discriminatory. Districts should work with their community and athletic associations to establish opportunities to integrate students with disabilities into current athletic programs. If districts are unable to integrate students with disabilities into their current athletic programs, they should offer students with disabilities opportunities for athletic programs that are separate or different from the opportunities offered to students without disabilities. All athletic opportunities should be supported equally. Lastly, the DCL states that districts must be flexible when developing programs regarding the "unmet interests of students with disabilities," and suggests that districts should work with others to increase the opportunities for students with disabilities.
The National School Boards Association (NSBA) recently submitted a letter of concern to OCR and requested clarification over certain areas of the DCL. NSBA's areas of concern deal with: (1) the expansion of OCR's view of its authority under Section 504; (2) the confusing blend of OCR enforcement standards; and (3) the need for clarity of ultimate conclusions in the DCL.
If you have questions, please contact OSBA's legal services division or your board counsel. A copy of the January 25, 2013 Dear Colleague Letter is available at: http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201301-504.pdf