The Office of Civil Rights (OCR), in a letter dated December 16, 2013, clarified the issues surrounding the rights of students with disabilities for an equal opportunity to participate in extracurricular activities by addressing four topics:  (1) equal opportunity; (2) individualized inquiry; (3) FAPE and equal opportunity to participate; and (4) creation of new athletic opportunities.

Equal Opportunity:  At the outset, there is no expansion of Section 504 beyond what currently exists in the law, only clarification. The law states “that school districts provide students with disabilities an equal opportunity to participate in and benefit from the district’s nonacademic services, including their existing extracurricular athletic opportunities.”

Equal Opportunity Does Not Mean:

  • Every student with a disability has a right to be on an athletic team.
  • School districts must create separate or different activities just for students with disabilities.
  • Compromising student safety.
  • Changing the nature of selective teams.  Students with disabilities have to compete with everyone else and legitimately earn their place on the team.
  • Giving a student with a disability an unfair advantage over other competitors.
  • Changing essential elements that affect the fundamental nature of the game.

In many situations, a disabled student will be able to participate in the school’s athletic activities without any individual consideration of his or her disability.  When there is a question concerning a student’s disability, the school district “must make an individualized inquiry to determine if reasonable modifications could be made, or aids or services provided, that would allow [the student] an equal opportunity for participation.”

Individualized Inquiry:  OCR advises that “what is called for is a reasonable, timely, good-faith effort by the individuals with the appropriate knowledge and expertise to determine whether there are reasonable modifications or aids and services that would provide that student with equal access to the particular activity.”  This may require a reconvening of the Section 504 team or making a simple inquiry by the coach or an athletic staff member to the student and student’s parents to determine what reasonable modifications could be provided to give the student an equal opportunity to participate in the activity.  However, be cautioned that the informal process may not always suffice when a student is denied participation.  OCR focuses on compliance with process requirements, not on the substantive outcome, so the process implemented by the school is critical.  Until OCR issues definitive guidance on this subject, school districts would be wise to make process decisions on a case-by-case basis, and to utilize the complete Section 504 team process, including notice and the provision of procedural rights.  Process compliance, rather than informal inquiry, is more likely to improve the quality of the decision-making and the future defense of the school’s compliance with Section 504.

FAPE and Equal Opportunity to Participate:  Addressing the concern that athletic participation would now be perceived as a new requirement of FAPE, OCR stated:

“OCR is not, however, articulating a legal requirement under Section 504 that such IEPs must address participation in extracurricular athletics….Furthermore, OCR is not stating that Section 504’s FAPE provisions require that a student’s participation in nonacademic services, e.g., extracurricular activities, be addressed by the Section 504 team as part of delivering FAPE.” (emphasis in original.)

Creation of New Athletic Opportunities: Addressing the concern that OCR was requiring school districts to create new, separate or different athletic opportunities for disabled students, OCR answers with a definite “no.”  If, however, school districts choose to create new and separate athletic opportunities, they must be equal to the school district’s other athletic programs.

As with any other Section 504 compliance issue, advice from your Solicitor is critical.  OCR’s clarification as to what “equal opportunity does not mean” with respect to athletic opportunities and that OCR is not requiring School Districts to create new athletic programs for disabled students is beneficial.  However, it is clear that the law does require an equal opportunity for disabled students to participate and benefit from athletic opportunities.  It is strongly recommended that this be accomplished through the Section 504 team process.  This will provide the District with the best possible opportunity to defend its decisions in the event the disabled student does not make the team.

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Alfred C. Maiello
Alfred Maiello

Alfred C. Maiello is the founding member of MBM and has represented area school districts as solicitor for 50 years. He counsels school districts and educational institutions on leading developments in school law and guiding them through their day-to-day and long-term challenges.