In response to a report from the Government Accountability Office (GAO) finding students with disabilities are not receiving an equal opportunity to participate in extracurricular athletics, the Office for Civil Rights (OCR) issued a “Dear Colleague” letter on January 25, 2013. The letter does not create new obligations, but reiterates and clarifies the responsibilities of public school districts under Section 504 of the Rehabilitation Act of 1973 (Section 504) with respect to extracurricular activities.

Under Section 504, public school districts must ensure that qualified students with disabilities are given an opportunity to benefit from a district’s extracurricular programs “equal to that of students without disabilities.” As a practical matter, this means:

  • Extracurricular programs can still require students to demonstrate a level of skill or ability to participate through a tryout process – provided thatandnbsp;allpotential team members are required to try out.
  • A qualified student with a disability must be given the opportunity to try out if he/she meets the criteria for doing so (e.g., has the required grade point average, etc.). Failure to allow a qualified student with a disability the opportunity to try out is discrimination and violates Section 504.
  • District personnel cannot act on generalizations and stereotypes about the capabilities of students with disabilities. OCR gives the example of a lacrosse coach who will not play a student with a learning disability because the coach feels the disability renders the student unable to deal with the pressures of an actual game.
  • Districts are required to provide “reasonable modifications” and provide necessary aids and services to qualified students with disabilities, unless the district can show that doing so would result in a “fundamental alteration” to the program or create a health or safety hazard for other students or the student with a disability.
    • A “fundamental alteration” either: a) alters an essential aspect of the activity or game so that it would be unacceptable even if it affected all competitors equally; or b) has a peripheral impact on the activity or game itself but could give the particular player with a disability an unfair advantage over others and, therefore, it fundamentally alters the character of the competition.
    • For example, widening the holes on a golf course would affect all players equally but would fundamentally alter the nature of the game.
  • Any rule promulgated by an extracurricular association, organization, club or league using school district property that renders a student ineligible to participate on the basis of disability is superseded by the district’s obligations under Section 504. Providing assistance to organizations that use discriminatory practices could constitute a Section 504 violation.

OCR recognizes that even if a district adheres to the guidance set forth above, there may still be circumstances where students with disabilities cannot participate in existing programs, even with reasonable modifications, aids and services. In these situations, OCR encourages districts to create additional extracurricular activities for those students. However, there is no requirement that school districts create additional extracurricular activities.

In response to the “Dear Colleague” letter, school districts should consider:

  • Reviewing current policies to ensure compliance with the guidance in the Dear Colleague letter and with Section 504 requirements generally.
  • Looking at how extracurricular programs operate in practice to ensure students with disabilities are indeed getting an equal opportunity to participate. A well-crafted policy serves no purpose if it is not being followed.
  • Educating school staff on the “equal opportunity” requirement of Section 504 and the danger of making decisions based on stereotypes rather than objective evidence.
  • Creating extracurricular activities for those students with disabilities who cannot participate in current programs. This could include discussions with nearby districts about forming regional teams.
  • Ensuring that no organizations receiving district assistance discriminate on the basis of disability and that these groups understand that receiving district assistance requires Section 504 compliance.

If your district has questions about the “Dear Colleague” letter or whether its policy and/or practices are compliant with Section 504, please contact a member of Walter | Haverfield’s Education Services Group.