By: Brittany Flaherty Theis
On January 25, 2013, the Office of Civil Rights (“OCR”) of the U.S. Department of Education issued a Dear Colleague Letter (“Letter”) to provide guidance to school districts regarding the participation of students with disabilities in extracurricular athletic opportunities. The Letter has received significant attention within legal and educational communities. Although all sources agree that protecting students from discrimination during extracurricular athletics is important, many question the impact of the Letter and OCR’s role in promulgating such guidance.
The Letter addresses three main areas related to the participation of students with disabilities in extracurricular athletic opportunities. First, the Letter reiterates that school districts may not base decisions on generalizations or stereotypes about disabilities. For example, a coach cannot decide a student with a learning disability can participate in practice but not in games based only upon a generalization about students with disabilities. However, the Letter does not give students with or without disabilities a blanket right to participate in all athletic events. The coach could decide the student cannot play in an upcoming game based on the student’s performance during practice according to the same criteria the coach uses for all players.
Next, the Letter explains that school districts that offer extracurricular activities must do so in a manner that affords qualified students with disabilities an equal opportunity to participate. To do so, school districts may need to make reasonable modifications and provide 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 of its program. Again, the Letter made clear that districts can require a level of skill or ability for participation in a competitive activity. According to the Letter, the school district must first engage in an individualized inquiry into whether the modification is necessary. If so, the district must allow the modification, unless it alters such an essential aspect of the activity that it would be unacceptable even if it affected all competitors equally.
Third, the Letter urges school districts to create additional opportunities for students with disabilities when the interests and abilities of some students with disabilities cannot be fully and effectively met by existing extracurricular athletic programs. It is this component that has been met with the most concern. The Letter encourages schools to be flexible when developing programs to consider the unmet interests of students with disabilities. Such programs could include wheelchair tennis or wheelchair basketball and might require district-wide or regional programs, co-ed teams, or “allied” teams that incorporate students with and without disabilities.
The National School Board Association (“NSBA”) responded on May 21, 2013, by requesting clarification of the contents of Letter, stating that the NSBA shares the Department of Education’s concern for protecting all students from discrimination, and urging the OCR to reach out to school boards and educators before issuing wide-reaching guidance that can be construed as statements of agency policy. The NSBA also expressed concern that the Letter could cause uncertainty in the courts and invite misguided litigation. Additionally, in a press release dated May 22, 2013, the NSBA explained that it believed the OCR should “clarify that its ‘guidance’ is merely a menu of suggested options for school districts and not a statement of new requirements subject to federal enforcement.”
As the NSBA states, without a response from the OCR, the impact of the January 25, 2013 Dear Colleague Letter is uncertain and likely to lead to litigation. However, the recommendations (or requirements) within the Letter should guide school districts’ decisions regarding their extracurricular athletics. Any developments related to the Dear Colleague Letter will be posted to the News & Knowledge Blog and on Twitter (@WhittLaw and @BFlahertyTheis). If you have any questions regarding your district’s extracurricular athletics programs, please contact Whitt Law Attorney Brittany Flaherty Theis.
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