Newsletters


Contact Sections @:

8000 Weston Parkway
Cary, NC 27513
(919) 677-0561
1-800-662-7407
sections@ncbar.org

Education Law Section Website › Newsletters › Education Law, April 2013 › U.S. Department of Education Extends Disabled Students’ Civil Right to Interscholastic and Intramural Athletic Events

U.S. Department of Education Extends Disabled Students’ Civil Right to Interscholastic and Intramural Athletic Events

Article Date: Tuesday, April 02, 2013

Written By: Aaron James Longo

On Jan. 24, 2013, the U.S. Department of Education announced a new directive mandating that students with disabilities be included in sports programs or equal alternative options.1  Under this new directive, schools are required to make “reasonable modifications” for students with disabilities to allow them to participate in interscholastic athletic events.  If those modifications would fundamentally alter a sport or give the student an unfair advantage, schools must create parallel athletic programs that have comparable standing to mainstream athletic programs.  Also, while the directive is aimed at elementary and secondary schools, it unambiguously states that access to interscholastic, intramural and intercollegiate athletics is a right, and its principles are applicable to institutions of higher education.  

In a statement announcing the new directive, Education Secretary Arne Duncan stated that “[s]ports can provide invaluable lessons in discipline, selflessness, passion and courage, and this 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.”2  According to officials, the purpose of the directive is not to change sports traditions or mandate that spots on athletic teams be allocated to disabled students.  Instead, the directive is intended to enforce the principle that disabled students should not be excluded because of a disability.  The U.S. Department of Education did not provide a deadline for schools to comply with this new directive.

On Jan. 25, 2013, the U.S. Department of Education’s Office for Civil Rights held a conference call to discuss the new directive.  Deputy Secretary of Education Seth Galanter stressed the following points:

• The goal of the directive is to increase disabled students’ opportunities and inclusion in athletic events;

• Individual assessments are necessary - no generalizations;

• If reasonable accommodations can be provided that do not change the nature of the game or activity, schools and districts should go in that direction;

• Aids and services to disabled students that are provided during the school day should also be provided to students who participate after school in extracurricular athletic events;

• If it is not possible to include disabled students on athletic teams without creating an unfair advantage, schools and districts can look into combining students from different schools when formulating teams.  Also, schools and districts are encouraged to look into creating unified teams (i.e. teams made up of male and female students); and

• Schools and state associations are still allowed to apply bona fide safety standards.

Consistent with Secretary Duncan’s statements and Acting Assistant Secretary Galanter’s communications, the U.S. Department of Education provides three main themes to consider when implementing this directive.  Along with these themes, the directive also provides hypotheticals that highlight decisions that could potentially run afoul of a disabled student’s civil rights.  
First, schools and coaches should avoid generalizations and stereotypes.  The directive provides the example of a student with a learning disability:  The coach believes the learning disability will not allow the student to perform successfully given the time constraints and pressure of a game situation.  So while the student fully participates in practice, the coach does not play the student in a game.  If an OCR complaint is filed in this situation, the U.S. Department of Education would find that the student’s civil rights had been violated.  Coaches and schools cannot operate under generalized assumptions about disabilities.  Instead, the lesson is that everyone who deserves playing time should play, regardless of disability.  What is important to note here is that the directive specifically states that disabled students are not entitled to playing time, or even making the team, if the student does not possess the requisite skills and ability.  The directive merely states that if the student has the requisite skills and ability, the student’s disability cannot prevent participation.
Second, school districts must ensure equal opportunity for disabled students to participate in interscholastic and intramural athletics.  In other words, school districts must make reasonable modifications and provide any necessary aids or services to disabled students so that they have the same opportunity to participate as non-disabled students do.  To determine whether a reasonable modification exists, the school district must first make an individualized inquiry to determine whether a modification is necessary.  If so, the school district must determine whether the modification would fundamentally alter an essential aspect of the sport.  If not, then the school district must make the alteration and/or provide the necessary aids and services that allow the disabled student to participate.

The exceptions to this requirement are situations in which the modification would fundamentally alter any aspect of the sport (e.g., providing a fifth base in baseball) or legitimate safety standards would prevent the reasonable modification from being enacted.  School districts have the burden to show that no reasonable modification or aids/services exist.  Examples of reasonable modifications include: (1) providing a visual cue for a deaf student at the beginning of a race, (2) waiving the requirement at a swim meet that a racer touch the wall with both hands where the student has only one hand, and (3) providing glucose testing and administration assistance to a student with diabetes during athletic events.  Again, the student must still have the requisite skill to participate, and the modification must not alter a fundamental aspect of the sport.  

The third theme addresses the situation where modifications are not possible without fundamentally altering a particular aspect of a sport or contravening legitimate safety rules.  In that situation, the directive mandates that school districts must provide additional opportunities for disabled students to participate in interscholastic and intramural athletics.  The directive mandates that these additional opportunities are also required where disabled students simply do not have the requisite skill level to participate.  Moreover, the school district must support, i.e. fund, these additional opportunities at the same level as the regular athletic program.  School districts, and the associations that organize athletic competitions on behalf of school districts, should waive gender and residency rules, when necessary, to ensure there are enough students for multiple teams and a league schedule.

This third theme is consistent with efforts in the many states that already offer such programs.  In Maryland, a 2008 law requires schools to create equal opportunities for students with disabilities to play on traditional athletic teams.3  At least twelve other states have also enacted similar measures.4  In Minnesota, state titles are awarded to disabled students in many sports.5  The Illinois High School Association has also created special divisions for students with disabilities in more individualized sports such as swimming, bowling and track and field.6  The new directive aims at making programs like these available in all levels of education nationwide.

In sum, the U.S. Department of Education’s directive strives to ensure disabled students have the same opportunity to participate in interscholastic athletics as non-disabled students do.  It is up to the school districts to determine how best to meet that mandate.  •


End Notes
1. Letter from Seth M. Galanter, Acting Assistant Secretary, United States Department of Education, Office for Civil Rights (Jan. 25, 2013) (available at http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201301-504.pdf).
2. Press Release, United States Department of Education, U.S. Department of Education Clarifies Schools’ Obligation to Provide Equal Opportunity to Students with Disabilities to Participate in Extracurricular Athletics (Jan. 25, 2013) (available at http://www.ed.gov/news/press-releases/us-department-education-clarifies-schools-obligation-provide-equal-opportunity-s).
3. See Fitness and Athletic Equity Act for Students with Disabilities, MD. CODE ANN., EDUC. § 7-4B-02 et seq.
4. See Mary Pilon, Forging Path to Starting Line for Younger Disabled Athletes, N.Y. TIMES, Jan. 15, 2013 at A1.
5. See Minnesota State High School League’s Activity Programs and Participants, http://www.mshsl.org/mshsl/news/Participation.pdf?ne=11.
6. See Illinois High School Association, http://www.ihsa.org.


Aaron Longo is currently Counsel at McGuireWoods LLP and works out of their Charlotte, NC and Charlottesville, VA offices.  He has been advising elementary and secondary schools  as well as colleges and universities for approximately 10 years.  Aaron also advises clients on labor and employment matters.  Prior to law school, Aaron received a Master’s in Education and taught elementary school for 5 years in both public and private schools.  He received a law degree from the University of Virginia School of Law.

Views and opinions expressed in articles published herein are the authors' only and are not to be attributed to this newsletter, the section, or the NCBA unless expressly stated. Authors are responsible for the accuracy of all citations and quotations.