By Mary S. Gerbig
Athletic opportunities provide important health and social benefits to students, particularly those with disabilities. However, a federal government report found that students with disabilities are not being afforded an equal opportunity to participate in extracurricular athletics in public schools. That has prompted the U.S. Department of Education’s Office for Civil Rights (OCR) to issue new guidelines to assist schools in ensuring that students with disabilities have equal opportunities to participate in athletics as students without a disability.
The OCR guidelines say school districts must offer extracurricular athletics in a way that give qualified students with disabilities an equal opportunity to participate or provide reasonable modifications, aids and services, unless that would fundamentally alter the sports program. The guidelines further state that a school district, including the staff members in the athletic department, must not operate on generalizations or assumptions about a disability or how a particular disability limits any particular student. One student with a certain disability may not be able to participate in a certain sport, but another student with the same disability may be able to play that sport. The main point is that decisions regarding students with disabilities participating in athletics must be made on an individualized basis and not based on generalizations or stereotypes.
While the OCR guidelines discuss equal opportunity for students with disabilities, the OCR is quick to point out that it doesn’t mean that every student with a disability is guaranteed a spot on a particular team. Districts can certainly require certain skill or ability levels to participate in a competitive program. Districts, however, must afford qualified students with disabilities an equal opportunity to participate and must make reasonable modifications to its policies, practices and procedures to ensure equal opportunity. For example, if a student with a disability requires a modified practice schedule to accommodate medication or medical treatment, such as students with diabetes monitoring and regulating insulin, the district athletic policies cannot contain zero tolerance absence requirements.
When the interests and abilities of students with disabilities cannot be fully met by a district’s existing athletic programs, even with reasonable modifications or aids, the district should consider creating additional opportunities for those students. Separate teams or activities for students with disabilities are not mandated, but the district should consider options which may include working with other schools or districts or finding adaptive programs that already exist in the community. If a student does not meet the criteria to participate in a certain sport, consideration can be given to have the student serve as a team manager or work out with the team during practices.
The new guidelines will have school districts throughout the country looking closely at the way they provide opportunities for student-athletes with disabilities. With the encouragement of the Office for Civil Rights, creative ways to expand extracurricular opportunities for students with disabilities will be supported.
On April 24, 2013, the OCR also issued guidance to remind schools that federal civil rights laws make it unlawful to retaliate against an individual for the purpose of interfering with any right or privilege secured by these laws. For example, if an individual, such as a coach, teacher, student or parent, complains formally or informally to a school about a potential civil rights violation or participates in an OCR investigation or proceeding, the school district is prohibited from retaliating due to the complaint or participation in an investigation.
OCR can require a school district to ensure compliance through the use of various methods such as training for employees, adopting communication strategies for ensuring that information concerning retaliation is conveyed to employees, and implementing a public outreach strategy to reassure the public that the school is committed to complying with the prohibition against retaliation.
OCR’s new guidelines in these areas have created some concerns and questions regarding the scope and implementation of its guidance. In order to address these concerns, the National School Boards Association (NSBA) recently requested clarification from OCR regarding the scope of Section 504 and the applicable enforcement standards. However, pending any further clarification, schools will be expected to comply with the recent guidance as issued by OCR.
As school districts prepare for the start of their fall sports programs, the summer months provide the opportunity to review the athletic and extracurricular programs in light of the new OCR guidance. Programs and policies should be reviewed to determine the extent they either promote or impede the participation of students with disabilities both for compliance and to prepare in the event of a complaint or audit. School districts should take the following proactive measures: 1) review the community or regional opportunities for students with disabilities to participate in athletics; 2) review practices and procedures to ensure that the educational and extracurricular environments provide equal educational opportunities which are free from discrimination and retaliation; 3) take steps to ensure that all parents and students are fully informed of the extracurricular opportunities; and 4) review and modify complaint procedures to comply with federal and state pupil nondiscrimination laws, as well as the OCR guidance.
If you have any questions regarding this article, please contact your Davis & Kuelthau attorney or Mary S. Gerbig at 920.431.2242 / mgerbig@dkattorneys.com.