Special Education, Legal & Planning
What You Need to Know About Students with Special Needs and Participation in Interscholastic AthleticsIs your child with a physical or learning disability being denied an equal opportunity to participate in Interscholastic Athletics? Here is a detailed guide on what obligations your child's school has when it comes to athletic activities.
The Benefits of AthleticsEveryone agrees that physical education and athletics are an important educational component for every child. Participation in sports and extracurricular activities provide important health and social benefits to all students, even more importantly to students with disabilities. The benefits include heightened self-esteem, understanding the importance of teamwork, sensory relief, fitness, and mental and physical health. Knowing the overall importance of children with disabilities participating, it was disheartening to learn that the U.S. Government Accountability Office (“GAO”) determined that students with disabilities are not being afforded an equal opportunity to participate in extracurricular athletics in public elementary and secondary schools.
Enforcement of Section 504With federal laws being violated by public school districts, the GAO recommended that the United States Department of Education, the Department responsible for enforcement of Section 504, issue guidance to provide an overview of the obligations of public elementary and secondary schools under Section 504. The overview discusses the regulations that require students with disabilities to have an equal opportunity for participation in nonacademic and extracurricular services and activities. The guidance letter issued by the Department of Education also discusses the provision of separate or different athletic opportunities for students with disabilities under Section 504. This article uses portions of the language of that Letter to answer questions that families have.
What is Section 504?Section 504 is officially titled: Section 504 of the Rehabilitation Act of 1973. Under the Rehabilitation Act of 1973, Congress gave the Department of Education the authority to issue regulations pursuant to Section 504. Under the Department’s Section 504 regulations, 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. For purposes of Section 504, a person with a disability is one who:
- Has a physical or mental impairment that substantially limits one or more major life activities
- Has a record of such an impairment
- Is regarded as having such an impairment.
- Is of an age during which persons without disabilities are provided such services
- Is of any age during which it is mandatory under state law to provide such services to persons with disabilities
- Or to whom a state is required to provide a free appropriate public education under the Individuals with Disabilities Education Act (IDEA).
Does This Mean that My Child With A Disability Automatically Makes the Team?Just because a student is a “qualified” student with a disability does not mean that the student must be allowed to participate in any selective or competitive program offered by a school district; 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.
What If My Child With A Disability has the Required Level of Skill to Compete But Needs Assistance?An example of students with disabilities with the requisite skill to compete but needing assistance would be a student with a hearing impairment. The student can compete at the level of competition but needs an interpreter to assist him or her in communicating with coaches and teammates. Another example would be a student who has the required skills to participate at the level of competition, but needs an aide who can break down the coaches lessons or plays into a methodology into which that student learns best.
What Schools Cannot DoThe Section 504 Regulations prohibit school districts from:
- denying a qualified student with a disability the opportunity to participate in or benefit from an aid, benefit, or service;
- affording a qualified student with a disability an opportunity to participate in or benefit from an aid, benefit, or service that is not equal to that afforded others;
- providing a qualified student with a disability with an aid, benefit, or service that is not as effective as that provided to others and does not afford that student with an equal opportunity to obtain the same result, gain the same benefit, or reach the same level of achievement in the most integrated setting appropriate to the student’s needs;
- providing different or separate aid, benefits, or services to students with disabilities or to any class of students with disabilities unless such action is necessary to provide a qualified student with a disability with aid, benefits, or services that are as effective as those provided to others; and
- otherwise limiting a qualified individual with a disability in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving an aid, benefit, or services
Can a School Preclude Students With Specific Disabilities from Participating in Activities or Sports?A school district may not operate its 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 as 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. A coach cannot unilaterally decide that all students with learning disabilities are not allowed to play or would not be able to compete under the pressure. A student’s abilities must be judged individually and not be based on preconceived notions of what students as a whole with a specific disability can achieve. The student, of course, does not have a right to participate in the games; but the coach’s decision on whether the student gets to participate in games must be based on the same criteria the coach uses for all other players (such as performance reflected during practice sessions).
What is the School Required to do to Ensure the Equal Opportunity to Participate in athletics and extracurricular activities?A school district that offers extracurricular athletics must do so in such manner as is necessary to afford qualified students with disabilities an equal opportunity for participation. This means making reasonable modifications and providing those aids and services that are necessary to ensure an equal opportunity to participate, unless the school district can show that doing so would be a fundamental alteration to its program. Of course, a school district may adopt bona fide safety standards needed to implement its extracurricular athletic program or activity. A school district, however, must consider whether safe participation by any particular student with a disability can be assured through reasonable modifications or the provision of aids and services.
Equal Skills Are NecessarySchools may require a level of skill or ability for participation in a competitive program or activity; equal opportunity does not mean, for example, that every student with a disability is guaranteed a spot on an athletic team for which other students must try out. A school district must, however, afford qualified students with disabilities an equal opportunity for participation in extracurricular athletics in an integrated manner to the maximum extent appropriate to the needs of the student. This means that a school district must make reasonable modifications to its policies, practices, or procedures whenever such modifications are necessary to ensure equal opportunity, unless the school district can demonstrate that the requested modification would constitute a fundamental alteration of the nature of the extracurricular athletic activity.
Making The Necessary ModificationsIn considering whether a reasonable modification is legally required, the school district must first engage in an individualized inquiry to determine whether the modification is necessary. If the modification is necessary, the school district must allow it unless doing so would result in a fundamental alteration of the nature of the extracurricular athletic activity. A modification might constitute a fundamental alteration if it alters such an essential aspect of the activity or game that it would be unacceptable even if it affected all competitors equally (such as adding an extra base in baseball). Alternatively, a change that has only a peripheral impact on the activity or game itself might nevertheless give a particular player with a disability an unfair advantage over others and, for that reason, fundamentally alter the character of the competition. Even if a specific modification would constitute a fundamental alteration, the school district would still be required to determine if other modifications might be available that would permit the student’s participation.
Does My Child’s 504 Plan Carry Over to Sports?To comply with its obligations under Section 504, a school district must also provide a qualified student with a disability with needed aids and services, if the failure to do so would deny that student an equal opportunity for participation in extracurricular activities in an integrated manner to the maximum extent appropriate to the needs of the student.
Separate or Different Athletic OpportunitiesIn providing or arranging for the provision of extracurricular athletics, a school district must ensure that a student with a disability participates with students without disabilities to the maximum extent appropriate to the needs of that student with a disability. The provision of unnecessarily separate or different services is discriminatory. The Office of Civil Rights encourages school districts to work with their community and athletic associations to develop broad opportunities to include students with disabilities in all extracurricular athletic activities. 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.
Creating additional athletic opportunities for students with disabilitiesIn those circumstances, a school district should offer students with disabilities opportunities for athletic activities that are separate or different from those offered to students without disabilities. These athletic opportunities provided by school districts should be supported equally, as with a school district’s other athletic activities. School districts must be flexible as they develop programs that consider the unmet interests of students with disabilities. For example, an ever-increasing number of school districts across the country are creating disability-specific teams for sports such as wheelchair tennis or wheelchair basketball. When the number of students with disabilities at an individual school is insufficient to field a team, school districts can also:
- Develop district-wide or regional teams for students with disabilities as opposed to a school-based team in order to provide competitive experiences
- Mix male and female students with disabilities on teams together
- Offer “allied” or “unified” sports teams on which students with disabilities participate with students without disabilities. The OCR urges school districts, in coordination with students, families, community and advocacy organizations, athletic associations, and other interested parties, to support these and other creative ways to expand such opportunities for students with disabilities.