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U.S. Department of Education's "Dear Colleague" Letter Spotlights Opportunities for Students With Disabilities to Participate in Athletics

By Mark W. McInerney / Feb 27, 2013

On January 25, 2013, the United States Department of Education's Acting Assistant Secretary for Civil Rights, Seth M. Galanter, issued another of the Department's "Dear Colleague" guidance letters, urging schools and districts that receive federal funding to afford students with disabilities, as defined by Section 504 of the Rehabilitation Act of 1973, equal opportunities to participate in club, intramural and interscholastic athletics in public elementary and secondary schools.  While a disability advocate was quoted as predicting that this guidance "will do for students with disabilities what Title IX did for women and girls," the new directive is neither law nor as sweeping as Title IX.  It nevertheless raises issues that school districts must consider.

The guidance begins with a restatement of the general Section 504 principle that "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."  It goes on to point out, however, that this requirement does not mean that all students with a disability must be placed on a team; rather, "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, so long as the selection or competition criteria are not discriminatory."  Grievance procedures must be in place, and due process provided, for students who claim that they are subject to discrimination.

In determining whether a student with a disability is to be placed on a team, a district's obligation not to discriminate "supersedes any rule of any association, organization, club or league that would render a student ineligible to participate, or limit the eligibility of a student to participate, in any aid, benefit or service on the basis of disability."  Indeed, says the guidance, a district would violate Section 504 if it were part of an association that so discriminated.  The full ramifications of these comments are unclear.  Arguably, however, if a Michigan High School Athletic Association or league regulation, or even the rules of a sport, were found to discriminate against students with disabilities, each constituent district could likewise be found to be in violation of Section 504.

Elsewhere, the guidance suggests that districts have an affirmative obligation to make modifications or provide aids or services necessary to permit a student with a disability to participate, unless to do so would constitute a fundamental alteration to the district's program.  For  example, the guidance indicates that Section 504 would require a track athlete with a hearing impairment to be provided with the aid of a visual cue to start a race if he or she cannot hear a starter's pistol by which races are traditionally begun.  For further example, the guidance predicts that discrimination would likely be found if a swimmer without a hand were not permitted to participate because he or she is unable to perform a "two hand touch" required at the end of swim races in certain strokes, unless the district could show that this accommodation would give that swimmer an unfair advantage over other swimmers.  These illustrations indicate the high expectations sought to be imposed on school districts by this guidance.

The guidance emphasizes that, in determining whether some sort of modification or aid is required, and in deciding whether a student with a disability will be placed on a team or otherwise permitted to participate, districts are required to engage in an "individualized inquiry," evaluating the abilities and needs of each particular student.  Districts - and individual coaches or administrators - may not rely on generalizations or stereotypes about the capabilities of students with a particular type of disability.  As the guidance points out, one student with a particular disability may not be able to play a certain sport, while another student with the same disability may be able to play that sport, with or without assistance.

While the guidance emphasizes that its goal is to provide students with disabilities a fair chance to participate in athletics along with students who are not disabled, it raises the possibility that, where the district's existing program cannot effectively meet the needs of students with disabilities, the district may be required to create additional opportunities for those students, separate or different from those offered to students without disabilities.  This represents a fairly distinct departure for the Department.  The guidance speaks about the formation, for example, of wheelchair tennis or wheelchair basketball teams, perhaps on a district-wide, co-educational or even regional basis since most schools will not have enough students to form a team.

A guidance from the Department of Education does not have the force of law or even of formally-adopted regulations.  Rather, it serves to provide the Department's views of how districts should govern themselves, and often signals new emphasis by the Department in its enforcement activities.  As a result, districts should keep in mind in the operation of their athletic programs whether students with disabilities are being given fair and reasonable chances to participate, and consider providing assistance to such students where doing so will not result in fundamental and overly-burdensome changes in the programs.

If you have questions about this or other issues, please contact your Clark Hill Education Law attorney.