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Federal Opinion

OCR’s Bizarre Disabilities & Sports Ruling: When Good Intentions Run Amok

By Rick Hess — January 28, 2013 2 min read
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Nothing frustrates me quite as much as well-intentioned people ignoring reality and sparking massive unintended consequences in the name of “doing the right thing.” Well, here we go again. In a jaw-dropping exercise in magical thinking, the Department of Education opted last week to impose vast new burdens on K-12 schools and systems in the name of equal opportunity.

Here’s the story, aptly summarized by Fordham’s Mike Petrilli in a terrific post:

At issue is the 1973 Rehabilitation Act's insistence that public schools not discriminate against students with disabilities. Longstanding regulations clarify that this requirement applies to extracurricular activities, too. A 2010 Government Accountability Office report highlighted confusion in the field about what exactly was expected of schools, particularly with regards to participation in sports, and urged the Department of Education to clarify the issue by publishing new 'guidance.'"

In practice, ED’s Office of Civil Rights (OCR) didn’t merely clarify. Instead, it went way the hell over the rainbow in a well-meaning but bizarre effort to create vast new vistas of obligation and (inevitably) litigation. OCR declared:

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. In 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."

And ED did all this, in what’s become a not-so-terrific routine, without even a hint of congressional blessing--much less anything so gauche as statutory guidance.

Now, I’m not going to bother opining on all the potential problems with this. Petrilli has already done an exemplary job on that score-so, if you’re interested, go check out his piece. Rather, I just want to float five questions that I would dearly love someone at OCR to address:

1] Does “opportunities for athletic activities that are separate or different from those offered” to other students mean that every school which sponsors an archery team needs to offer a parallel program for blind archers and that every school which sponsors a football team needs to devise a parallel football program for students who don’t have the use of their legs? (Sure seems like that’s the implication, to my reading.)

2] If that’s not the implication, aren’t we opening the door to litigation when families of special needs children sue because they think the alternative “opportunities” are cruddy, watered-down and “separate and unequal”? If so, doesn’t experience teach that the result will be reams of new regulations and red tape dictating spending, staffing, and everything else, and the joyous bureaucratic reporting and monitoring that follows?

3] Does “supported equally” mean, à la Title IX, that a school has to spend as much money on these programs as on its traditional extracurricular programs?

4] Given that districts have been paring budgets for extracurricular athletics for the past several years, are they supposed to make additional cuts in order to fund these programs--or is the expectation that cuts will be made to academic programs or special education services in order to free up the substantial dollars implied by OCR’s dictate?

5] Will schools and school systems be legally liable if someone decides they have not figured out how to fully comply? (I presume yes.) If that’s the case, what’s to stop the industry of special education attorneys from filing a wave of nuisance lawsuits that seize on the massive ambiguities created by this exercise in “clarification”?

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