Guidance on Athletics and Spec. Ed. Students Draws Sharply Split Response
A document from the U.S. Department of Education intended to clarify schools' responsibility to make sure students with disabilities have access to extracurricular sports has drawn sharply different opinions. Disability-rights advocates welcome the guidance, while critics say federal officials are pushing requirements that could place new financial burdens on districts.
The Education Department, for its part, now finds itself walking a line between stressing that schools must be aware of their legal obligations under decades-old law to open up all their programs to "reasonable modifications" and not stoking fears that it is overreaching its authority by creating new policy.
The 13-page document from the department's office for civil rights states that schools must make such modifications wherever possible for students with disabilities seeking to take part in extracurricular sports. In addition, the guidance says schools and districts should consider creating additional opportunities for students with disabilities if their current sports offerings cannot not be reasonably modified.
The National School Boards Association—which, separately, intends to press for federal legislation to curb what it sees as Education Department overreach into local school policy—has yet to take a formal position on the newly issued guidelines.
But Reginald M. Felton, the assistant executive director for congressional relations for the Alexandria, Va.-based NSBA, said: "Where local school districts would have a problem is if it's a mandate."
The right to participation in sports by students with disabilities has been established for years. The Rehabilitation Act of 1973, specifically Section 504 of that law, extends civil rights to people with disabilities in programs and activities that receive federal funding, which includes regular public and charter schools.
Despite the law's long standing, the specific requirements were still unclear to some schools, according to a 2010 report from the Government Accountability Office, the congressional watchdog agency.
Investigators said they heard questions from local school officials about whether having a student with disabilities as a team manager would count as sports participation, the GAO reported. Some administrators wondered if they could meet the law's standards by providing an opportunity for students to participate in a noncompetitive event. Others asked whether after-school activities were included in the policy.
The U.S. Department of Education has issued guidance to schools intended to help them make sure their sports programs offer equal opportunities to students with disabilities. Such equal opportunities are mandated under Section 504 of the Rehabilitation Act of 1973, a civil rights statute that prohibits discrimination based on disability.
Among the points the guidance makes:
• Schools and coaches are not to act on generalizations and stereotypes about disabilities when operating an extracurricular sports program.
• Schools must ensure equal opportunity for participation, which 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.”
• Schools that provide services during the school day to students with health problems or disabilities are also required to provide those services during extracurricular sports activities.
• Equal opportunity to participate does not mean equal access to teams; a student with a disability is not guaranteed a spot on a team based solely on his or her interest.
• School districts should create additional opportunities for students with disabilities if the existing athletic program, even with modifications, cannot meet the needs of such students with disabilities.
The GAO report said the lack of clarity "serves as a disincentive for schools to take proactive steps." Districts may not know that they're out of compliance with the law until a parent complains, the GAO report also states.
Picking up on those points, the office for civil rights' guidance offers specific examples:
• A coach who bars a student with a learning disability from lacrosse competitions because of generalized beliefs about such disabilities violates Section 504.
• Providing a visual cue in addition to a starter pistol so a deaf runner can participate in track meets is a reasonable modification.
• Providing health services, such as blood-sugar monitoring, is a part of a school's responsibility during after-school activities if it provides that same service for a student during the school day.
What alarmed some commentators, however, was the department's statement toward the end of the guidance that if a school was unable to offer reasonable modifications in its existing programs, "the school district should create additional opportunities for those students with disabilities."
Michael J. Petrilli, the executive vice president of the Thomas B. Fordham Institute, a Washington think tank, wrote in a Huffington Post commentary that the department was creating "a right to wheelchair basketball."
"Talk about executive overreach! Talk about a regulatory rampage! Talk about an enormous unfunded mandate!" wrote Mr. Petrilli, who served in the department during the administration of President George W. Bush.
The notion that the OCR guidance amounted to costly new policy was bolstered by enthusiastic comments from disability-rights advocates, who said that the document was akin to Title IX, the landmark 1972 law that prohibited sex discrimination in federally funded education programs and spurred new opportunities for female students in school and college sports.
No New Requirements
Seth M. Galanter, the acting assistant secretary for civil rights, said that the guidance neither breaks new ground nor mandates new policy for the states that did not previously exist. During an interview, he pointed to a footnote in the guidance that says it is not adding requirements to applicable law.
Mr. Galanter also said that while the bulk of the guidance document offers examples of where the civil rights office would or would not find violations, the portion that talks about offering different or separate activities does not prescribe any penalties.
"The guidance does not say that there is a right to separate or parallel sports programs," Mr. Galanter said. Instead, the guidance urges—but does not require—that when inclusion is not possible, school districts find other ways to give students with disabilities the opportunity to take part in extracurricular athletics, he said.
Mr. Galanter added: "Reading one piece in isolation is not how we intended the document to be read."
The OCR is not the final voice on issues related to Section 504 and student participation in sports, said Perry A. Zirkel, a professor of education and law at Lehigh University in Bethlehem, Pa., and an expert on Section 504 and the Individuals with Disabilities Education Act.
Courts also have weighed in on whether schools are discriminating against students with disabilities. And, while courts may find federal Education Department guidance persuasive, they are not bound by it, Mr. Zirkel said.
He cited a case decided in January by a federal court in Chicago. In that case, Lyon v. Illinois High School Association, a student who said he dropped out of school temporarily because of attention deficit hyperactivity disorder and other learning disabilities asked for a waiver to participate on his school's wrestling team, even though he had already wrestled for four years.
The U.S. District Court for the Northern District of Illinois denied the student's request, saying that the athletic association was not required to waive its four-year limit on participation to accommodate his disability.
Mr. Zirkel said that if that case had come before the OCR, the office likely would have limited its review to whether the school or athletic association had followed proper rules in making its decision, rather than trying to determine if that decision reflected a reasonable accommodation.
"The courts are the ones who make these determinations," Mr. Zirkel said. Except in extraordinary circumstances, the OCR "deftly ducks them," he said.
Supporters of the new guidance say that while they welcome it, schools and districts may still need logistical assistance as they make sure their sports programs offer full opportunities for participation.
Linda C. Hilgenbrinck, the national adapted-physical-education teacher of the year for 2012 and an employee of the 23,000-student Denton Independent School District in Texas, she said her school system has only sporadic sports competitions for students with disabilities.
"We have sprinklings of events, maybe once or twice a semester," said Ms. Hilgenbrinck, who said she strongly supported the department's move to offer the guidance.
Among the challenges for districts will be getting equipment for students and finding other teams to play, Ms. Hilgenbrinck said. When she coached a basketball team of deaf students, the team traveled thousands of miles in a season to find play other teams of deaf students, she said.
"I know one of the very first questions is, 'We know that we need to be doing this, but where are the funds going to come from? What about liabilities?' Those are good and valid questions," she said. But those questions should not stop districts from moving forward, she said. "These kids need the same opportunities."
Beverly Vaughn, the co-founder and executive director of the American Association of Adapted Sports Programs, in Atlanta, said that "some people say we can't have [a fully inclusive program] because they don't know how to do it."
"The good news is, when we show them how, the kids can thrive and compete and do very well athletically," Ms. Vaughn said. The department's guidance "is really just another milestone along the journey."
Vol. 32, Issue 20, Pages 1, 27Published in Print: February 6, 2013, as Athletics Guidance Aims for Level Field