In what seems a surprising move to many, particularly for the Obama Administration, the Department of Education Office of Civil Rights (“OCR”) has backed away from last year’s strong policy statement on access to extracurricular athletics for disabled students. In a “Dear Colleague” Letter (“DCL”) issued on December 16, 2013, OCR announced that school districts (and, by extension, other educational institutions that receive federal funds) are not required to create new extracurricular athletics opportunities for students with disabilities who can’t participate in existing programs even with reasonable modifications or aids and services.
To appreciate the significance of this statement, consider the background. OCR issued a DCL on January 25, 2013 to clarify the obligations of public elementary and secondary schools under Section 504 of the Rehabilitation Act to provide students with disabilities an equal opportunity to participate in extracurricular athletics. That letter, available here, reviewed the requirements of Section 504 and attempted to explain how the legitimate criteria of talent and skill that may determine whether a student is selected for a team can coexist with the obligation to “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.”
As examples of accommodations that would be required, OCR offered the hearing-impaired runner who could use a visual cue, rather than the sound of a gun, to start a race, and the one-handed swimmer who might need a modification of a rule requiring a two-handed touch in order to participate. OCR also declared that decisions about a student with a disability’s participation should not be based on stereotypes, but on individualized inquiry into the capabilities of each specific student. Such examples are not, perhaps, highly controversial. But OCR then went on to say that students with disabilities who cannot participate in existing sports programs even with accommodations should still have an equal opportunity to receive the benefits of extracurricular activities, and that school districts “should” therefore create “disability-specific teams for sports such as wheelchair tennis or wheelchair basketball,” on a district-wide or regional basis if necessary.
The January 25, 2013 DCL caused a stir in the scholastic and collegiate athletics communities. Across the country, school districts, athletics conferences, colleges and universities began to consider whether they were meeting the standards laid out in the letter, and some began at least tentatively to plan additional opportunities for students with disabilities, including disability-specific competitions. The National School Boards Association, in a May 21, 2013 letter to OCR, sought clarification on several points, but few expected OCR to retreat significantly from the position it had taken.
Thus it was surprising when OCR issued its December 16, 2013 DCL in response to the NSBA inquiry, announcing among other things that “it is not OCR’s view that a school district is required to” create new extracurricular sports opportunities specifically for students with disabilities. OCR then made the provision of athletic activities specifically for such students even more challenging when it added that “[i]f a school district voluntarily wishes to provide such separate activities, those must be supported equally as compared with the school district’s other athletic activities.” (So if, for example, a district’s varsity basketball program entails a 20-game season for each team, would a wheelchair basketball program also have to have a 20-game season or be judged discriminatory?)
Advocates for students with disabilities doubtless are discouraged by this development. School officials may be disappointed, relieved, or perhaps both. It’s unclear how the issue will play out as time goes on, but it is sure to require further attention from OCR and, perhaps, the courts.