Can a student with a disability be kept out of extracurricular activities because he or she may need accommodations, or because he or she may affect a team’s overall performance? The short answer is “No,” because school districts and charter schools must ensure that students with disabilities have equal opportunity to participate in extracurricular activities, which may include certain reasonable modifications.
The Individuals with Disabilities Act (IDEA) and Section 504 of the Rehabilitation Act of 1973 (Section 504) require school districts and charter schools to provide a qualified student with a disability appropriate aids and services to allow the student to participate in extracurricular activities. Specifically:
- The IDEA requires school districts and charter schools to take steps, “including the provision of supplementary aids and services determined appropriate and necessary by the child’s IEP team, to provide nonacademic and extracurricular services and activities in the manner necessary to afford children with disabilities an equal opportunity for participation in those services and activities” 34 C.F.R. § 300.107; and
- Section 504 requires that: “No otherwise qualified individual with a disability in the United States…shall, solely by reason of his or her disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.” 34 C.F.R. § 104.4(a).
On January 25, 2013, the U.S. Department of Education Office for Civil Rights (OCR) issued a “Dear Colleague Letter” that specifically addresses the accommodation of students with disabilities in extracurricular activities. One of the tenets in the Letter sets out that districts (and charter schools) should not act on generalizations and stereotypes when operating programs and activities. A school district also may not rely on generalizations about what students with disabilities are capable of, i.e., determining that one student with a certain type of disability may not be able to play a certain type of sport, but another student with the same disability may be able to play that sport.
Although OCR concluded that school districts and charter schools must ensure that students with disabilities have equal opportunity to participate in extracurricular activities, this does not preclude a district from establishing a level of skill or ability for participation in competitive activities or to ensure that student safety is maintained. However, districts and schools must make reasonable modifications to programs and policies to ensure students with disabilities have the opportunity to participate in extracurricular activities, unless districts are able to demonstrate that a modification would fundamentally alter the nature of the activity. Dear Colleague Letter, 113 LRP 3326 (OCR 2013).
When making a determination regarding a requested modification, school districts and charter schools must conduct an individualized review to ascertain if the requested modification would constitute a fundamental alteration to the program at issue. A fundamental alteration to a program might exist if:
- The modification “alters such an essential aspect of the activity or game that it would be unacceptable even if it affected all competitors equally”; or
- The modification would provide the disabled student an unfair advantage over the other participants.
If students with disabilities are unable to participate in programs offered by the district or charter school, even with reasonable accommodations and modifications, then the district or charter school should (but is not required to) offer students with disabilities opportunities for athletic activities that are separate or different from those offered to students without disabilities.
As an example, Billy is a student with a severe hearing disability. Billy would like to try out for the school track team; however, the coach is concerned that Billy will be unable to hear the starter horn and as a result have a slower pace, as well as not be able to hear his fellow runners while on the track. In conducting the individualized review, the district could consider the use of a light post at the start line to allow Billy to “see” when to start rather than relying on hearing the starter horn. The district could also determine whether it would be appropriate to provide Billy a running buddy or aide to ensure that Billy is able to safely maneuver the track during events. In any case, if the district is unable to accommodate Billy to allow him to participate safely on the district’s track team, the District should consider providing other opportunities for Billy to participate in athletic activities.
- Ensure district or school coaching staff are trained on the obligation to accommodate students with disabilities in extracurricular activities.
- Establish connections within the community to provide alternative activities for students with disabilities, i.e., Special Olympics.
For more information, you may access the U.S. Department of Education Office for Civil Rights (OCR) “Dear Colleague Letter” here:
This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice, please feel free to contact Kimberly R. Davis at 480.461.5387, log on to udallshumway.com, or contact an attorney in your area.