Season 2: Episode 10: Extracurricular Activities for Children with Disabilities Under Section 504

Rounding out our series on Section 504, Kathy chats with Lisa and Miriam about nonacademic and extracurricular activities for children with disabilities. What does the term “extracurricular” include? What are districts’ obligations to accommodate children with disabilities who want to participate in standard team sports? What might try-outs look like for a student who requests such an accommodation? Join us for an insightful and interesting discussion of the challenges school districts face.

View Podcast Transcript

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Miriam: Welcome back to Class Act Updates in Education Law. I’m Miriam.

Lisa: I’m Lisa.

Miriam:  We’re attorneys at Walter | Haverfield, we practice school law. Every few weeks, we get together and we talk about recent legal developments in the field of education that are relevant to school boards, administrators, teachers, just anybody who works with the kids in the schools.

Lisa: Over the last several episodes, we’ve spent time talking about Section 504 laws, including evaluations of students, developing accommodation plans, touched on discipline for those students. Today, we want to dive in just a little further on a specific topic about non-academic and extracurricular activities and Section 504 laws, and how those kind of interplay.

Miriam: Again, we have Kathy Perrico joining us, a partner at Walter | Haverfield.

Lisa: Hi, Kathy!

Kathy: Hello.

Miriam: She often advises school districts on issues related to students with disabilities. Thanks for joining us again.

Lisa:  Kathy, let’s just start off right away. What obligations do school districts have towards children with disabilities who want to participate in extracurricular activities?

Kathy: Well, I’m not going to let you dive in quite that narrow quite that fast.

[laughter]

Kathy: Let’s just back up and talk about a little bit of the interface between IDEA and Section 504. Because I want to start by reading exactly how broad the Department of Education regulations define non-academic and extracurricular services and activities, and just alert people that that definition has kind of been brought down, at least in Ohio, into IDEA law. So, it’s a little too narrow to just think about extracurricular activities in terms of football, or track or chess club. The actual definition includes counseling services, physical recreation athletics, transportation, health services, recreational activities, special interest groups or clubs sponsored by the school district- and that’s important, I do want to come back to that later so don’t let me forget- referrals to agencies that provide assistance to handicapped persons. That’s in the definition. And the employment of students, including both employment by the board and assistance in making available outside employment.

Lisa: As you said that’s a pretty broad list.

Kathy: It’s incredibly broad and we’re not going to touch on most of it, but I just wanted to make sure that we threw that out there. That this is not as narrow, as like I said before, football and golf.

Lisa: Right, but those are going to be good ways we can give you examples today. You’ll probably hear us talk about sports, and clubs and things like that, for example purposes.

Kathy: Correct. Again, this is going to be a leveling of the playing field analysis, but I do- might as well just jump right into what I said before; the services provided by the district. So, one of the things that you want to pay attention to is what district-sponsored programs are being run? One of the mistakes that I see districts make is failing to provide accommodations or level the playing field in, for example, Latchkey-type program, which there would be no obligation for the district to do that if it is a private entity running the program and simply renting space in the building. If on the other hand, it is a district-sponsored, district-funded, district employees staffed Latchkey-type program, Section 504 would come into play and you would have to provide accommodations for that setting as well.

Miriam: Interesting, so like an after-school homework club or homework activity, the school district has to provide accommodations for children who have disabilities under Section 504 for that as well?

Kathy: Correct.

Miriam: So really districts, you’re on the hook if it’s a program you’re providing basically.

Kathy: Correct.

Miriam:  In terms of sports, what does Section 504 require of school districts when students with disabilities want to participate in standard team sports?

Kathy: Well, much like we talked about in the last episode or last two episodes, districts have to ensure that disabled students participate in those non-academic and extracurricular activities and services to the maximum extent appropriate to the needs of that person.

Miriam: Okay, but practically speaking, let’s say it’s an activity or sport where the child- student needs to try out for the team but they have a disability. How does the school district handle that?

Kathy: Well, what you need to do is have accommodations that don’t rise the level of fundamentally altering the nature of the events or the activity but that still allow that equal opportunity for participation. Even if it is a cut sport as opposed to a no-cut sport that doesn’t necessarily mean that you might not have to accommodate the requirements for entrance.

Miriam: Okay.

Lisa: So basically the tryout process can’t, in and of itself, be discriminatory?

Kathy: Correct.

Lisa: The student has to be able to at least try out to see if there is a reasonable way for them to meet the qualifications.

Kathy: Correct, so one off the cuff example that comes to mind is, let’s say that there was a vocal program after school and all of the students were going to be allowed to have the music with them when they were auditioning through singing, but you had a student with a visual impairment who needed an enlarged sheet or something along those lines. You couldn’t say, “Well, if you can’t make it with the sheet we’re giving you then your cut.” You have to provide that accommodation and that was a very, I think, oversimplified example but it was the first one that came to mind.

Miriam: Yes, that seems reasonable. That seems logical.

Lisa: Can you think of an example on the other end of the spectrum of what would not be reasonable and would fundamentally alter the process?

Kathy:  One that comes to mind- I think I could actually argue both ways- but let’s say speech and debate. You have a student who’s non-verbal but can adequately articulate thoughts efficiently and promptly through the use of a speech-generating device.

Miriam: That’s interesting.

Kathy: Again, as I said, you could argue that both ways. I think you could argue that that fundamentally alters the nature of the oral discourse for speech and debate club, but you could also say that, “Well, it’s still a verbal discourse, just coming about in two different formats.” Saying that the student doesn’t have to be able to get over the high jump bar that would be a clear fundamental altering of the nature of the event if you were to change the height just for one student.

Miriam: Okay.

Lisa: That’s probably a clear example for altering the nature of what the sport is intended to do.

Kathy: Right.

Miriam: Do you have a track and field story that you want to tell us?

Kathy:  It’s one of the easier ones that comes to mind in terms of– I actually have a few. I have cross country, I have two different track ones.

Miriam: Go for it.

Kathy: When you have a student who has made the track team– For example, but let’s say they’re  a student with a significant hearing impairment and/or are deaf, you might have two instead of triggering literally the race with a starter pistol, you might have to have a strobe or a flash that the student with the hearing impairment can see. Another situation came up in relation to cross country and a student with a cognitive disability that was physically able to run and largely keep up, but the concern was when we’re practicing on courses, how does the student- how can we ensure that the student knows which trails to follow, stay with the group if they’re behind or ahead. So, there you have to look at, do you have one of the coaches run? Or do you have the student practice distance running in a separate format as opposed to on the trails? Then if their time qualifies for the meet, then you’d have to look harder at that issue.

There were some guidance documents issued from OCR on this topic and it correlated in time with a specific case involving a wheeled athlete in track. And whether or not the Ohio High School Athletic Association could put parameters on public school districts and if they followed those, whether they would be guilty of disability-based discrimination. In that particular situation, there was a student who was a wheeled athlete as opposed to what I think OCR began to call the other students as footed athletes, I didn’t love that-

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Kathy: -because clearly, the athlete in a wheelchair had feet as well. But for ease of reference today, in the hypothetical situation based on somewhat- loosely based on real-life that we’re talking about, the district followed guidance and didn’t let the wheeled athlete participate in the same heats as the footed athletes. What OCR ultimately did in this guidance document was said, you can’t just blindly adhere to rules and regulations. You have to individually analyze whether you’re fundamentally altering the nature of the events, whether there are safety concerns. What is it about this event that legitimately or not would preclude the wheeled student from participating in the same heats as footed athletes? And so, it turns out this was a student who did actively race both in district and on his free time and given that he was in a wheelchair, certain events, it would have created an unfair advantage because he would have gained momentum. So, after a certain distance, it would have been unfair to the other athletes to have mixed heats because of that unfair advantage. But for the lower distances, there was no unfair advantage. In terms of safety concerns, he was absolutely able to keep his racing wheelchair in his lane. But to the extent that there were any issues with the student crossing lanes, the accommodation there is two separate the runners, even if you had to add an extra heat to that event, put a lane separating them. That way there’s no worry about crossover, or bumping or any injury to other students.

Lisa: I think that example is a really good one about the individual analysis that districts do need to undertake when considering these modifications and accommodations, and whether or not they’re appropriate. We can’t just take a blanket view. It really needs to look at the student, what the activity is and really individualize the analysis.

Miriam: So again, if the modification would fundamentally alter the nature of the sport then the district is not required to provide that?

Kathy: Correct. They can also offer separate events, separate opportunities. One example that comes to mind here is if you had enough- or you had a multi-district league that you could put together of wheelchair-bound students for basketball. You could do that as opposed to altering the nature of basketball itself by having a wheelchair-bound student participating in a regular game.

Miriam: So are school districts just allowed to do that or are there any qualifications or limitations on that?

Kathy: Well, you can only do the separate activity when participation in the existing activity, with the use of supplementary aids and services in that regular environment, can’t be achieved satisfactorily and only if no qualified disabled student is denied the opportunity to compete for teams or participate in courses that are not separate or different.

Lisa: But under those conditions, OCR actually encourages this practice of creating activities if there aren’t ones available otherwise?

Kathy: Correct.

Miriam: That’s nice.

Kathy: One of the things I think it’s important to bring up, whether it’s on an IEP or whether it’s through a Section 504 plan, is the distinction that you need to make is having to provide the accommodations to level the playing field, versus whether participation in that non-academic and extracurricular activity is required for the provision of FAPE under either law.

Lisa: So, mostly what we’ve been talking about so far has been just whether or not you need to provide it for equal opportunity?

Kathy: Correct, and so almost always- I won’t give it a categorical always- but almost always, you won’t have a situation where a student needs to be on track or in chess club to receive FAPE under either IDEA or Section 504. So there you’re just going to have that anti-discrimination, leveling-the-playing-field filter on, but you’re not going to put the sports extracurricular or chess club accommodations into the IEP or the Section 504 plan. Because it’s not a necessary activity in order for that student to receive FAPE overall.

Lisa: Or if you do put it in the plan, you’re going to definitely want to distinguish that it’s there for that purpose and not for FAPE?

Kathy: Correct, and then re-document that distinction in the prior written notice.

Lisa: Okay, so through this discussion, we’ve talked about tryouts and things like that. Is there an obligation that any student with a disability has a right to be on a team, especially ones that are very selective or competitive?

Kathy: No, as long as you’ve made sure there’s nothing discriminatory about the entrance process, the cut process that you could have accommodated but failed to do.

Lisa: So, other than the activities we talked about like sports and things like that, I know some other activities in that broad definition you gave earlier, things like field trips come up, where we have to talk about and consider whether or not accommodations or modifications need to happen. Can you dive into that for a minute?

Kathy: Right. I think one of the key things to bring up, given the time of year that we’re here talking about this, is that Washington D.C. Field Trip.

Lisa: Those are really popular in Ohio.

Kathy: They are, and you’ve got to keep in mind that is an extracurricular if not a co-curricular for some districts. So, you have to make sure that students with disabilities have the equal opportunity to participate in and benefit from that extracurricular activity. So if that means a student needs an aide, the aide is going. If that means there’s medication administration that needs to be overseen by a nurse, the nurse might be going.

Lisa: I think this is a big pitfall that many districts fall into.

Kathy: You can’t say, “Well, parents, if you want your child to go, you’re going to have to come with and serve as the aide or administer the medication.”

Lisa: Absolutely, do not say that. [chuckles]

Miriam: But wait. Can school districts tell parents they need to come on field trips because of the child’s behavior-

Kathy: No. Oh, does it happen? Yes. Should it be happening? No.

Miriam: Okay. That’s good to know. And should this…

Kathy: That said- I’m sorry to cut you off- but there is a OCR opinion letter out there, I believe, or decision out there that did uphold a district enforcing a behavioral contract for participation in a- I think it was actually a Washington D.C. trip. The student with the disability had behavioral issues associated with that disability but the OCR, nevertheless, upheld preventing the student from going because the behavioral contract was violated.

Miriam: Interesting.

Lisa: Yes, so really analyze what needs to be done to provide these students these opportunities.

Miriam: This field trip, these accommodations, is that something that is also included in a Section 504 plan?

Kathy: If you do include that in the 504 plan again, you would want to very strongly distinguish that participation in the field trip or other non-academic event is not necessary for a FAPE.

Miriam: Okay, but should districts do that in general? If a child is obviously going to need accommodations for the field trips, that should be included with that notation. That this is separate from FAPE?

Kathy: I tend to favor putting it in prior written notices or another written document as opposed to the 504 plan itself.

Miriam: Okay.

Lisa: I do think it’s important to highlight that when you’re having the team together for these discussions about what goes into the plan, that you’re thinking about the year and what things are going to come up and having these conversations, so it’s not last minute you’re trying to figure it out or it’s not coming up when somebody made a decision and now parents upset, and you’re like, “Oh, no, what are we going to fix this?” Really try to be proactive in talking about these things. Especially, a D.C. field trip. Most districts know, “Okay, this grade is going on the field trip this year.” So, the team when they’re meeting should know that this needs to be a topic of discussion.

Miriam: Right. Thank you, Kathy. Thanks for joining us today.

Kathy: Thank you.

Miriam: Next time, we are going to talk about something exciting and interesting in the field of education law. Please, tune in to find out what it is and-

Lisa: Feel free to leave us comments and your feedback if there’s topics you’d like to hear us discuss. We’d love to hear from you.

Miriam: And of course, rate as highly on iTunes, Stitcher or whatever you get your podcasts. Have a great day!

Disclaimer: The content of this podcast is provided for general information purposes only. The podcast is not legal advice, does not create an attorney-client relationship and should not be relied upon in making legal decisions. Actions on legal matters should be taken only upon advice of legal counsel. Walter | Haverfield does not guarantee the accuracy of information contained in this podcast.

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