Participation of Students with Disabilities in Extracurricular Athletics
On January 25, 2013, U.S. Department of Education, Office of Civil Rights (OCR) released a “Dear Colleague Letter” addressing participation by disabled students in extracurricular athletics. This memorandum highlights some of the principal points addressed in this letter.
Much of the contents of the letter will already be very familiar to most school athletics personnel. Section IV, addressing “separate or different” teams for certain children with disabilities is probably the most widely discussed part of the OCR Letter. It should be noted that OCR phrases these points as “shoulds” and not as legal “musts”. They are strong recommendations, but not legal mandates.
I General – Equal Opportunity to Participate
1. The laws and regulations concerning participation by disabled students apply at all levels of interscholastic and intramural athletics. A school district is required to provide a qualified student with a disability an opportunity to benefit from the school district’s program equal to that of students without disabilities.
2. Simply because a student is a “qualified” student with a disability does not mean that the student must be allowed to participate in any selective or competitive program offered by a school district. School districts may require a level of skill or ability of a student in order for that student to participate in a selective or competitive program or activity.
3. A school district’s legal obligation to comply with Section 504 supersedes any rule of any association, organization, club, or league that would render a student ineligible or limit the eligibility of a student to participate in any aid, benefit, or service on the basis of disability.
II A School May Not Act on Generalizations or Stereotypes about Disabled Students
1. A school district may not operate its program or activity on the basis of generalizations, assumptions, prejudices, or stereotypes about disability generally, or specific disabilities in particular.
III Reasonable Modifications; Aids and Services
1. A school district must afford qualified students with disabilities an equal opportunity for participation in an integrated manner to the maximum extent appropriate to the needs of the student. The provision of unnecessarily separate or different services is discriminatory.
2. This includes making reasonable modifications and providing those aids and services that are necessary to ensure an equal opportunity to participate, unless the school district can show that doing so would be a fundamental alteration to its program.
3. 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. A change that has only a peripheral impact on the activity or game itself might nevertheless give a particular player with a disability an unfair advantage over others and, for that reason, fundamentally alter the character of the competition.
4. A school district must provide a qualified student with a disability with needed aids and services if the failure to do so would deny that student an equal opportunity for participation in extracurricular activities in an integrated manner to the maximum extent appropriate to the needs of the student.
IV. A School Should Offer Separate or Different Athletic Opportunities for Students with Disabilities
1. Students with disabilities who cannot participate in the school district’s existing extracurricular athletics program – even with reasonable modifications or aids and services – should still have an equal opportunity to receive the benefits of extracurricular athletics.
2. When the interests and abilities of some students with disabilities cannot be fully and effectively met by the school district’s existing extracurricular athletic program, the school district should create additional opportunities for those students with disabilities.
3. In those circumstances, a school district should offer students with disabilities opportunities for athletic activities that are separate or different from those offered to students without disabilities. These athletic opportunities should be supported equally with a school district’s other athletic activities.
4. An increasing number of school districts across the country are creating disability-specific teams for sports such as wheelchair tennis or wheelchair basketball. When the number of students with disabilities at an individual school is insufficient to field a team, school districts can also: (1) develop district-wide or regional teams for students with disabilities; (2) mix male and female students with disabilities on teams together; or (3) offer “allied” or “unified” sports teams on which students with disabilities participate with students without disabilities.