OCR Letter: Educational Institutions Should Develop Broad Opportunities to Include Students with Disabilities in Extracurricular Athletic Activities

On January 25, 2013, the United States Department of Education’s Office for Civil Rights (“OCR”) issued a Dear Colleague Letter which expanded the extent to which public school districts must provide students with disabilities opportunities in extracurricular athletic activities. While the Dear Colleague Letter focuses exclusively on public elementary and secondary schools, OCR has stated that students with disabilities at colleges and universities must also be provided an equal opportunity to participate in athletics including intercollegiate, club and intramural athletics.

The fundamental theme of the letter is that Section 504 of the Rehabilitation Act of 1973 requires school districts to provide students with disabilities opportunities in extracurricular athletics equal to those of non-disabled students.  OCR insinuated that school districts across the country are failing to meet such obligations and provided several examples of such discriminatory conduct, including the following:

• A district may not act on a generalization or stereotype when determining a disabled student’s ability to participate in extracurricular athletics.  Instead, the decision should be based upon the same criteria used for all other student-athletes.  For example, a coach may not refuse to play an athlete with a learning disability in a game based upon a stereotype that the athlete will not understand the rules of the game or the strategy being implemented.

• A district may not refuse to provide an accommodation for an extracurricular-athletic activity unless the requested accommodation fundamentally alters the nature of the activity, either by altering an essential aspect of the activity or by giving a disabled athlete an unfair advantage, thereby altering the character of the competition.  Each determination must be fact specific, based on the student’s needs and the activity at issue.

• If a student with a disability requires certain aids and services (e.g., glucose testing and insulin) during the school day, a school district generally may not refuse to provide the same aids and services during an extracurricular-athletic activity.  As indicated above, the district would be permitted to refuse the aids and services only if they somehow fundamentally altered the activity.

Most notably, despite the unequivocal duty of school districts to provide equal opportunities to students with disabilities, OCR acknowledged that some students may be unable to participate in existing extracurricular-athletic activities, even with reasonable accommodations or modifications.  OCR explained, however, that under Section 504, these students remain entitled to an equal opportunity to participate in extracurricular athletics, just like their non-disabled peers.  OCR, therefore, advised school districts to offer separate athletic activities to students with disabilities in such instances.

While noting that “unnecessarily separate or different services is discriminatory,” OCR “encourage[d] school districts to work with their community and athletic associations to develop broad opportunities to include students with disabilities in all extracurricular athletic activities.”  The letter continued as follows:

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 continued by providing several examples of such alternative athletic opportunities.  First and foremost, schools may create disability-specific teams, presumably in disability-specific leagues, such as for wheelchair basketball.  Alternatively, when a district’s enrollment cannot support a disability-specific team, the district may develop or support regionally-based teams, dual-gender teams, or “allied” or “unified” teams on which students with and without disabilities participate together.

Based on OCR’s guidance and given that that most school districts will be unable to create or continually support disability-specific teams from their student population (i.e., to support a team, an individual district will presumably need a requisite number of disabled students with similar needs and abilities, within the same age range), there will be significant pressure on school districts to locate or develop new alternative athletic opportunities for students with disabilities, such as the regionally-based teams suggested by OCR.  While there may be challenges associated with offering such opportunities, OCR has made it clear that districts are obligated to provide them going forward.

If you have any questions about the matters in this legal alert or any other legal issues, contact Jeffrey J. Weiss at (716) 200-5141 / jweiss@harrisbeach.com, David W. Oakes at (585) 419-8727 / doakes@harrisbeach.com, Douglas E. Gerhardt at (518) 701-2738 / dgerhardt@harrisbeach.com, Susan E. Fine at (516) 880-8377 / sefine@harrisbeach.com, or Joanna L. Silver at (212) 313-5445 / jsilver@harrisbeach.com or the Harris Beach attorney with whom you usually work.

This alert does not purport to be a substitute for advice of counsel on specific matters.

Harris Beach has offices throughout New York State, including Albany, Buffalo, Ithaca, New York City, Niagara Falls, Rochester, Saratoga Springs, Syracuse, Uniondale, White Plains and Yonkers, as well as Newark, New Jersey, and New Haven, Connecticut.