The United States Department of Education’s Office for Civil Rights (OCR) has sent a letter to school officials across the United States advising school districts, and colleges, that they must give disabled students equal access to extracurricular activities.
The “Dear Colleague Letter” (DCL) was written by Acting Assistant Secretary for Civil Rights Seth Galanter. Located here, the letter reads that schools should provide “reasonable modifications” to allow disabled students to participate.
The Department provided a couple examples of such modifications:
The allowance of a visual cue alongside a starter pistol to allow a student with a hearing impairment who is fast enough to qualify for the track team the opportunity to compete.
The waiver of a rule requiring the “two-hand touch” finish in swim events so that a one-armed swimmer with the requisite ability can participate at swim meets.
The impetus for the change may have been a 2010 Government Accountability Office (GAO) investigation, which found that students with disabilities participated in athletics “at consistently lower rates than students without disabilities.” Historic in nature, the report suggested that the Obama administration had not given schools enough “information or guidance on (physical education) or extracurricular athletics for students with disabilities.”
Among the passages in the OCR’s letter is this: “A school district’s legal obligation to comply with Section 504 and the Department’s regulations 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.”
The DCL cautioned school districts about operating their “program or activity on the basis of generalizations, assumptions, prejudices, or stereotypes about disability generally, or specific disabilities in particular. A school district also may not rely on generalizations about what students with a type of disability are capable of—one student with a certain type of disability may not be able to play a certain type of sport, but another student with the same disability may be able to play that sport.”
In a statement, Education Secretary Arne Duncan said that the “guidance will help schools ensure that students with disabilities have an equal opportunity to benefit from the life lessons they can learn on the playing field or on the court.”
Some have compared the edict to the enactment of Title IX in 1972, the landmark legislation that ensures equal athletic opportunities for women.
Many high school officials are looking for the meaning in the DCL.
“I’m not sure we know yet where we are (in terms of what this means),” Bert Borgmann, assistant commissioner of the Colorado High School Activities Association, told the Denver Post. “In terms of implementation, we’re a member-driven association, so the schools would have to come to us and ask us if they wanted to create, say, a state tennis championship for unified kids. That would be a big process, involving lots of people and lots of kids. But the national federation for high schools supports this and we do, too. We’re looking forward to seeing how things work out.”
Impact Seen on Collegiate Athletics
The Department’s Office for Civil Rights suggests that its enforcement efforts will extend to higher education as well.
“Although it is focused on K-12, you will note that it includes a statement that the principles apply to colleges and universities,” Janet Judge of Sports Law Associates told Hackney Publications.
The Chronicle of Higher Education interviewed Jeffrey H. Orleans—a senior associate with Alden & Associates —about the letter’s impact on colleges. He said that “assuming they begin to define what’s needed as extensively for colleges and universities as they have for K-12 here, and actually enforce it, this is a new set of activities and scrutiny that we will have to define and provide and fund. I think that’s the first change: This new activity will have to be financed.”
Later in the interview, he elaborated on that point.
“The real cost will come in sports that are separate for disabled athletes—wheelchair basketball, for example, or modified ice hockey,” he told the paper. “Whenever we’re talking about creating new teams with coaches and equipment and travel—even if the existing facilities are completely adequate—there’s a cost of new teams.
“One thing the guidance is silent on—because it’s not applicable in K-12—is the question of athletic scholarships. I don’t know how OCR intends to answer that, but that obviously has a cost implication.”
‘Most Noteworthy Component of Letter’
Expanding on the cost aspect, the law firm of Hodgson Russ LLP wrote that “the most noteworthy component of the letter is OCR’s comment that schools may need to start developing parallel or different athletic opportunities for disabled students. Even though it is ideal for a disabled student to participate in the school’s regular sports program, OCR recognizes that this may not be possible for some students. In this regard, OCR says, ‘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. When the interests and abilities of some students with disabilities cannot be as 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.’
“OCR then states that schools should offer athletic activities that are ‘separate or different’ than those offered through the normal athletic program, and that the activities for disabled students should be ‘supported equally.’ To illustrate this new requirement, OCR references the availability of wheelchair basketball and tennis in some school districts. OCR also notes that while one school may not have enough disabled students to field an entire team, schools should look to develop “district-wide” or “regional teams” for this purpose. OCR also suggests that schools could develop male/female teams, or offer ‘allied’ sports teams (where disabled and nondisabled students compete together).
“In light of the OCR’s letter, school districts should now re-examine their athletic programs and identify the extent to which disabled students are participating in athletic activities. To the degree that a school determines that many disabled students are not participating in these activities, schools should consider creating new programs specifically tailored toward disabled students, either within the district itself or in conjunction with neighboring school districts. In either respect, OCR’s guidance imposes new and significant requirements for school districts.”
