New Federal Policy Could Bring Substantial Changes for Students with Disabilities

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On January 25, 2013, the U.S. Department of Education’s Office for Civil Rights issued important guidance to schools receiving federal funding.  This guidance clarifies schools’ existing legal obligations to provide equal opportunities in athletics to students with disabilities as part of the wider effort to avoid such discrimination.  This “Dear Colleague Letter” links schools’ legal responsibilities under Section 504 of the Rehabilitation Act of 1973 with three broad requirements.

First, schools may not operate their athletic programs on the basis of generalizations or stereotypes about the capabilities of students’ with disabilities.  For example, a coach should not bench a student with a learning disability just because the coach assumes that disability would make the student ineffective in actual games.

Second, schools must make reasonable modifications and provide aids and services necessary to ensure an equal opportunity to participate in extracurricular athletics, unless doing so would fundamentally alter the program.  For example, under some circumstances, schools with track programs should offer visual cues in addition to starter pistols, in order to accommodate deaf athletes who are otherwise qualified to compete.  As a second example, under some circumstances, schools with swimming programs should waive the “two hand touch” rule to allow one-handed swimmers to compete.  As a third example, school personnel should provide diabetic elementary-school students with glucose testing and insulin administration so they can participate in extracurricular gymnastics.  While students with disabilities are not guaranteed spots on teams, they should be afforded opportunities to compete for those spots under this policy.

Finally, where reasonable modifications would not permit students with disabilities to participate in existing athletics programs, schools should create additional opportunities for those students by offering separate or different athletic activities.  The letter suggests that creating disability-specific teams for sports, such as “wheelchair tennis” or “wheelchair basketball,” is appropriate to stay in compliance with federal law.  Where there are too few such students at a school, school districts should (1) develop district-wide or regional teams, (2) mix male and female students with disabilities on teams together, or (3) offer “allied” or “unified” sports teams alongside students without disabilities.

Some disability advocates are praising this policy change as a landmark moment for students with disabilities and commend the Administration’s position that access to interscholastic, intramural, and intercollegiate athletics is a civil right.  Others in the education community worry that this guidance will require expensive compliance and open schools up to substantial, new liabilities.  While the guidance letter gives examples for primary and secondary schools, its principles apply to colleges as well.  These obligations supersede any rule of any association, organization, club, or league that would limit the eligibility of students with disabilities to participate.  Importantly, this letter specifically permits students who believe they have been subjected to discrimination to file suit in court, or to file a complaint with the Office of Civil Rights.

In our view, this new guidance could ultimately bring sweeping changes for students with disabilities.  However, it is still far too early to tell, especially in this uncertain economic climate.  With no compliance dates set forth, this order will likely be enforced piecemeal, as cases make their way through the court system and before the Office of Civil Rights.

We will continue to track these developments for our clients.  

Read Secretary of Education Arne Duncan’s blog post discussing this letter

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