The National School Boards Association (NSBA) is calling on the U.S. Department of Education’s Office of Civil Rights (OCR) to elaborate on its guidance relating to students with disabilities and their participation in school sports.
Specifically, the NSBA, which represents state associations of school boards and their more than 90,000 local school board members, issued a letter urging OCR to reach out to school boards and educators before issuing wide-reaching guidance that can be construed as statements of agency policy. Among other things, NSBA warned OCR that the guidance issued through a Jan. 25, 2013 “Dear Colleague Letter,” could “cause uncertainty in the courts and invite misguided litigation,” according to NSBA Executive Director Thomas J. Gentzel.
“School boards are committed to safely accommodating students with disabilities in athletic programs, ” said Gentzel. “We encourage the U.S. Department of Education’s Office of Civil Rights to work with us to find mutually workable, realistic, and practical solutions to implement existing laws.”
NSBA asked OCR to clarify several areas in the “Dear Colleague” letter that suggest the agency is “taking a more expansive view of its authority to enforce Section 504 of the Rehabilitation Act, including its guidance on individual student assessments for sports.” NSBA also urged OCR to clarify that it is not adding new requirements nor establishing a new enforcement standard.
“The OCR should clarify that its ‘guidance’ is merely a menu of suggested options for school districts and not the statement of new requirements subject to federal enforcement,” said NSBA’s General Counsel Francisco M. Negrón, Jr. “Recent similar guidance has resulted in confusion in the courts about applicable legal standards.”
This “expansion of executive authority under the guise of agency guidance” is one concern cited by NSBA in its support of the “Local School Boards Governance and Flexibility Act,” (HR 1386). That bill “aims to ensure the Department of Education’s actions are consistent with federal law and are educationally, operationally, and financially supportable at the local level. To prevent regulatory overreach into local school board matters, the bill would also require the Department of Education to follow specific steps before promulgating , rules, grant requirements, guidance documents, and other regulatory materials.”
In a response to the media, OCR officials acknowledged receiving the letter from the NSBA.
“We are currently reviewing the letter so that we may respond appropriately,” according to the spokesman. “Since the issuance of (the January letter), OCR has received positive feedback from a number of school districts, athletic associations and directors, parents and students, and others, who have expressed a desire to move forward consistent with the letter so that students with disabilities have an equal opportunity to participate in athletic programs and activities.”
