By D|K’s School and Higher Education Law Team
On January 25, 2013, the U. S. Department of Education, Office of Civil Rights (OCR), issued guidance related to the participation of students with disabilities in extracurricular athletics. The guidance raised a variety of questions for school districts related to the scope of the guidance. The National School Boards Association (NSBA) issued a formal letter to the OCR on May 21, 2013 seeking to clarify the guidance in terms of its application in four basic areas: Equal opportunity, individualized inquiry, equal opportunity in the context of the Individuals With Disabilities Act and the creation of new athletic opportunities. Davis & Kuelthau discussed the OCR guidance in a June 2013 Client Alert after the OCR publically acknowledged the concerns raised by the NSBA and other professional education associations. On December 16, 2013, the OCR issued its formal response to the NSBA letter and provided clarification of its original guidance. The following is a summary of the four areas addressed in that response.
34 C.F.R. § 104.37 requires school districts to provide students with disabilities an equal opportunity to participate in the district’s non-academic services, including existing extra-curricular athletic activities. Under this provision, a district must not exclude a student with a disability based on stereotypes and assumptions about the student, but must consider each student individually. In order to ensure equal access, a district must make an individualized inquiry to determine if reasonable modifications could be made, or aids and services provided that would allow those students an equal opportunity to participate. Examples include using a light along with a starter pistol so a deaf runner could compete, or administering insulin so a student with diabetes can take part in after-school gymnastics.
What equal opportunity does not mean under the law, as confirmed by OCR in the new guidance, is compromising student safety or changing the nature of selective teams. This means students with disabilities must compete with everyone else and legitimately earn their place on a team. The law does not give a student with a disability an unfair advantage over other competitors, nor does it change essential elements that affect the fundamental nature of the game.
In response to the NSBA’s questions, OCR clarified that conducting an individualized inquiry to determine if reasonable modifications or necessary aides and services would provide a student with a disability an equal opportunity to participate does not mean the Section 504 team must convene when a student wishes to take part in an activity. The inquiry could be as straightforward as a coach or staff member consulting with a student and the student’s parents to determine what reasonable modifications could be provided for the student to participate, or a district’s athletics official might be brought into the conversation to address adaptations to the district’s standard rules or practices for competitions (i.e., the example of using a light along with a starter pistol). Individuals with knowledge and expertise should provide a reasonable, timely, good-faith effort to determine whether there are realistic modifications or aids and services that would provide a student with equal access to an activity.
FAPE and Equal Opportunity to Participate
An IEP of a student covered by the Individual with Disabilities Education Act, 20 U.S.C. § 1400, may include provisions that relate to a student’s participation in extra-curricular activities. As such, failure to provide the services as set forth in the IEP could constitute non-compliance with Section 504. However, OCR is not articulating in its guidance a legal requirement under Section 504 that the IEP must address participating in extra-curricular athletics, nor is it stating Section 504’s FAPE provisions require that a student’s participation in non-academic services be addressed by the Section 504 team as part of delivering FAPE.
Creation of New Athletic Opportunities
Although a district is not required to create additional opportunities to students who are unable to participate in the district’s existing extra-curricular athletics programs, even with reasonable modifications or aids and services, the guidance urges districts to consider that alternative. If a district voluntarily chooses to provide separate activities, those activities must be supported equally as compared with the district’s other athletic activities. For example, if a district created a varsity wheelchair lacrosse activity, OCR would look to the supports provided to other varsity teams as a benchmark for what might be appropriate for the adapted varsity activity.
Given the fact-specific and individualized analysis in this area, application of the guidance will no doubt raise questions and concerns. The attorneys at Davis & Kuelthau, s.c. are prepared to assist school district officials with the individualized analysis and decision making. If you have any questions, please contact your Davis & Kuelthau, s.c. attorney or the author.