On January 25, 2013, the United States Department of Education (Office of Civil Rights) issued a detailed opinion letter setting forth its position about schools' obligations with respect to extracurricular athletics and activities for students with disabilities under section 504 of the Rehab Act. For purposes of Section 504, a person with a disability is a person who:
- has a physical or mental impairment that substantially limits one of more major life activities;
- has a record of such an impairment; or
- is regarded as having such an impairment.
29 U.S.C. section 705(9)(B), (20)(B) (as amended by the Americans with Disabilities Act Amendments Act of 2008); 34 C.F.R. section 104.3(j).
A summary of the recent opinion letter of the U.S. Dept. of Ed. is that School Districts which receive public funding:
- may require a level of skill or ability of a student in order to participate in activities so long as the selection or competition criteria are not discriminatory.
- may not deny a qualified student with a disability the opportunity to participate in or benefit from an aid, benefit, or service;
- may not offer as an option participation in another aid, benefit, or service that is not equal or effective as that afforded others;
- many not provide different or separate aide, benefits or services unless such action is necessary to provide a qualified student with aid, benefits, or services that are as effective as those provided to others;
- may not otherwise limit a qualified individual in the enjoyment of any right, privilege, advantage or opportunity enjoyed by others receiving an aid, benefit or service.
- must adopt a grievance procedure that incorporates due process standards for equitable resolution of complaints alleging violations of Section 504 regulations;
- are obliged to comply with Section 504 protections and Department regulations regardless of any association, organization, club, or league that would render the stuetn ineligible to participate; and
- are in violation of Section 504 if it provides "significant assistance" to any association, organization, club, league or other third party that discriminates on the basis of disability.
Examples of violations provided in the letter include:
Example 1: While in middle school, a student participated in her school's lacrosse club. As she entered the 9th grade in high school, she tried out and was selected as a member of the high school team. The coach is aware of the student's disability yet believes this disability would hamper the student's ability to play under the time constraints and pressures of the actual game. The coach makes a decision never to play the student in games. Such a decision without evidence that the time constraints and time pressure negatively impacts the student or team results in a violation.
Example 2: A student qualifies for the school's track team and is able to race as long as a visual cue is used to start the race. Many schools use a visual cue but the district refused the student's request to use it at all meets because the district was worried that the visual cue would distract other runners. Two districts responded that their students could adjust easily to the visual cue but the district held it's position that no visual cues could be used. The student was told he could not participate in the meet. The refusal to use visual cues absent a showing of detrimental distraction would be considered a violation.
Example 3: A student with one hand wants to participate on the school's swim team and otherwise qualifies for the team based upon speed. The student asked the district to waive the "two hand" touch requirement at the end of a lane and allow her to instead use a "one hand" touch. The district refused the request because it believed the exception would give her an unfair advantage over the other swimmers. The district's refusal constitutes a violation unless the district provides evidence that the "one hand" touch gave the swimmer an unfair advantage and that other modifications could not be used.
Example 4: A student with diabetes who does not qualify for services under the IDEA qualifies for support under Section 504. The student has support during the school day to monitor glucose testing. The student asked to participate in the school-sponsored gymnastics club but needs help with glucose testing during the club's activities. The school's position is that such support is not warranted because the gymnastics club is an extracurricular activity. The position of the U.S. Dept. of Ed. is that such a position would be deemed a violation of Section 504 unless the district can show the student's request would result in a "fundamental alteration" of the program.
For more information on how to create accessible extracurricular activities in your district, please read "Creating Equal Opportunities for Children and Youth with Disabilities to Participate in Physical Education and Extracurricular Athletics" (U.S. Dept. of Ed., August 2011).
For more information about the application of Title IX, please read "Documents - Title IX".
For questions generally, please consider visiting the Office of Civil Rights for the U.S. Department of Education at: http://www2.ed.gov/about/offices/list/ocr/publications.html