On January 25, 2013, the Office of Civil Rights of the U.S. Department of Education (OCR) issued a “Dear Colleague Letter” instructing school districts on their responsibilities to serve students with disabilities in extracurricular athletic programs. Through a series of examples and explanations, the Dear Colleague Letter clarifies the types of accommodations and services required to be provided to students with disabilities in school district extracurricular athletic activities under Section 504 of the Rehabilitation Act of 1973. It also “urges” school districts to expand opportunities for students with disabilities who are not otherwise qualified to participate in a school district’s existing extracurricular athletics program.
In the new guidance, OCR states that while a school district is entitled to set requirements for its athletic activities as to skill, ability, and other benchmarks, it must provide necessary aids, services, or reasonable modifications for students with disabilities, unless doing so would fundamentally alter the nature of the activity. The Dear Colleague Letter reviews the basic obligations under Section 504 and includes the following guidance regarding school districts’ obligations when serving students with disabilities in extracurricular athletic programs:
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A school district, including its athletic staff, must not base decisions regarding a student’s participation on stereotypes or assumptions about how the disability may limit the student. A coach’s decision on whether a student gets to participate in games must be based on the same criteria the coach uses for all other players.
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School districts must make reasonable modifications and provide those aids and services that are necessary to ensure a student with a disability has an equal opportunity to participate in an athletic program, unless the school district can show that doing so would be a fundamental alteration to its program.
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When considering whether a reasonable modification is legally required, a school district must first engage in an individualized inquiry to determine whether the modification is necessary.
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If the modification is necessary, the district must allow it unless doing so would result in a fundamental alteration of the nature of the extracurricular athletic activity.
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A modification might constitute a fundamental alteration if it alters such an essential aspect of the activity or game that it would be unacceptable even if it affected all competitors equally, or if it gives a particular player with a disability an unfair advantage over others.
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If a requested modification would constitute a fundamental alteration, the school district is still required to determine if other modifications are available that would permit the student’s participation.
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A school district’s legal obligation to comply with Section 504 supersedes any rule of an association, organization, club, or league that might prohibit a student from participating, or limit the eligibility of a student to participate, on the basis of disability. In other words, if an athletic association has a rule that would limit a student’s eligibility to participate on a team on the basis of the student’s disability, a school district’s obligation to comply with Section 504 would supersede that rule. Thus, the school district would still be obligated to conduct an individualized assessment to determine whether any modifications for that student are necessary under Section 504 to enable that student to participate. (See recent FR Alert, “IHSA Under Pressure to Provide Accommodations to Student Athletes with Disabilities”) for more information on the applicability of Section 504 to athletic associations like IHSA.)
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Providing significant assistance to any association, organization, or other third party that discriminates on the basis of disability by not providing a necessary aid, benefit, or service to the school district’s students would also violate a school district’s obligations under Section 504. For example, a school district may not permit an outside organization to use its facilities to host an after-school basketball camp for school district students if that organization does not agree to provide necessary accommodations to qualified students with disabilities.
In addition to setting forth examples and explanations regarding school districts’ obligations under Section 504, OCR also encourages school districts to work with their community or athletic associations to develop broad opportunities to include students with disabilities in all extracurricular athletic activities. The Dear Colleague Letter states that when students with disabilities cannot participate in the school district’s existing extracurricular activities program, even with reasonable modifications or aids and services, school districts should offer students with disabilities opportunities for athletic activities that are separate or different from those offered to students without disabilities. Examples include a district-wide or regional team for students with disabilities, a co-ed team for students with disabilities, or unified sports teams consisting of students with disabilities and students without disabilities. Importantly, this particular part of the guidance encourages school districts to take such actions and states that districts should provide such opportunities, while all other portions of the Dear Colleague Letter describe what school districts must do under Section 504.
The Dear Colleague Letter clarifies many questions that school districts often have when serving students with disabilities in extracurricular athletic programs. It also, however, raises certain questions regarding the intended scope of the guidance, including the implications regarding separate programs for students with disabilities.
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