Aug. 7, 2013 – Athletic opportunities provide important health and social benefits to students, but a federal government report found that students with disabilities do not have an equal opportunity to participate in extracurricular athletics in public schools.
That has prompted the U.S. Department of Education’s Office for Civil Rights (OCR) to issue new guidelines to ensure that students with disabilities have an equal opportunity to participate in athletics.
Under the guidelines, extracurricular athletic programs must give qualified students with disabilities an equal opportunity to participate or provide reasonable modifications, aids and services, unless that would fundamentally alter the sports program.
The guidelines further state that a school district, including the staff members in the athletic department, must not operate on generalizations or assumptions about a disability or how a particular disability limits any particular student.
This article explains the guidelines in more detail, noting what school districts must do to comply as the fall sports season fast approaches. For lawyers who counsel school districts, this is a good time to encourage school athletic policy reviews.
Individualized Assessments and Modifications
Decisions regarding students with disabilities participating in athletics must be made on an individualized basis and not based on generalizations or stereotypes.
While one student with a certain disability may not be able to participate in a certain sport, another student with the same disability may be able to play that sport. Athletic programs cannot make assumptions about certain disabilities.
com mgerbig dkattorneys Mary Gerbig (Marquette 1994) is a shareholder at the Green Bay office of Davis & Kuelthau S.C. She counsels numerous school districts throughout Wisconsin on general school law and special education, and also provides counsel to public and private sector employers on a variety of labor and employment matters. She can be reached at (920) 431-2242 or by com mgerbig dkattorneys email.
While the guidelines discuss equal opportunity for students with disabilities, the OCR is quick to point out that equal opportunity does not mean that every student with a disability is guaranteed a spot on a particular team. Districts can certainly require certain skill or ability levels to participate in a competitive program.
Competitive “cut sports” can have criteria for “making the team.” Schools can test for ability but cannot have criteria that screens out for a disability. For example, if a one-handed swimmer tries out for the swim team, there can be a test for making the team.
If the test looks at how fast the swimmer can swim the length of the pool, the swimmer can compensate by the use of the other strong arm, leg or feet motions. A test looking at the use of just the arm strokes may screen the person out on the basis of disability.
In addition, school districts must make reasonable modifications to its policies, practices and procedures to ensure equal opportunity. For example, if a student with a disability requires a modified practice schedule to accommodate medication or medical treatment, such as students with diabetes monitoring and regulating insulin, the district athletic policies cannot contain zero tolerance absence requirements.
Focus of OCR Review
If a school district or higher education agency is subject to an OCR complaint investigation, the process will include a focus on the following:
Whether the school uses a standard rubric for determining the cuts for the team; whether there is documentation of the standards or criteria for making the team, and how the criteria is applied; and whether there was an exploration of accommodations and modifications, such as using a touch start for students with a vision impairment who participate in wrestling or swimming, and a change in policies where appropriate.
Creating Opportunities, Preventing Retaliation
When the interests and abilities of students with disabilities cannot be fully met by a district’s existing athletic programs, even with reasonable modifications or aids, the district should consider creating additional opportunities for those students. The new guidelines will have school districts throughout the country looking closely at the way they provide opportunities for student-athletes with disabilities.
Creating separate teams or activities for students with disabilities is not mandated, but school districts may consider options that include working with other schools or districts or finding adaptive programs that already exist in the community.
If a student does not meet the criteria to participate in a certain sport, school districts can consider alternatives for participation, such as team management positions or participation during team practices.
On April 24, 2013, the OCR also issued guidance to remind schools that federal civil rights laws make it unlawful to retaliate against an individual for the purpose of interfering with any right or privilege secured by these laws.
For example, if an individual, such as a coach, teacher, student or parent, complains formally or informally to a school about a potential civil rights violation or participates in an OCR investigation or proceeding, the school district is prohibited from retaliating due to the complaint or participation in an investigation.
The OCR can require a school district to ensure compliance through the use of various methods such as training for employees, adopting communication strategies for ensuring that information concerning retaliation is conveyed to employees, and implementing a public outreach strategy to reassure the public that the school is committed to complying with the prohibition against retaliation.
School Policy Review
As school districts prepare for the start of their fall sports programs, the summer months provide the opportunity to review the athletic and extracurricular programs in light of the new guidelines. Programs and policies should be reviewed to determine the extent to which they either promote or impede the participation of students with disabilities both to ensure compliance and to prepare in the event of a complaint or audit.
School districts should take the following proactive measures:
- Review the community or regional opportunities for students with disabilities to participate in athletics;
- Review practices and procedures to ensure that the educational and extracurricular environments provide equal educational opportunities which are free from discrimination and retaliation;
- Take steps to ensure that all parents and students are fully informed of the extracurricular opportunities; and
- Review and modify complaint procedures to comply with federal and state pupil nondiscrimination laws, as well as the Office for Civil Rights guidelines.
The new guidelines in these areas have created some concerns and questions regarding the scope and implementation of its guidance.
In order to address these concerns, the National School Boards Association (NSBA) recently requested clarification from the Civil Rights Office regarding applicable enforcement standards. However, pending any further clarification, schools will be expected to comply with the recent guidance as issued by the Office for Civil Rights.
Mary Gerbig’s article is intended for informational purposes only, does not represent the views of Davis & Kuelthau S.C., and should not be construed as legal advice.