NSBA asks OCR to clarify its guidance regarding disabled students participating in sports

The National School Boards Association (NSBA) is asking the U.S. Department of Education’s (ED) Office for Civil Rights (OCR) to clarify the guidance it issued earlier this year regarding the rights of students with disabilities to participate in sports in public schools, reports mlive.  The NSBA letter, in response to OCR’s guidance, was sent in May.  It states that NSBA shares the education department’s concern for protecting all students from discrimination in schools but urges OCR to “reach out to school boards and educators before issuing wide-reaching guidance that can be construed as statements of agency policy.”

NSBA’s response to OCR’s guidance, which was issued in the form of a “Dear Colleague Letter” (DCL) in January 2013, contends the guidance could “cause uncertainty in the courts and invite misguided litigation.”  “School boards are committed to safely accommodating students with disabilities in athletic programs,” said NSBA’s Executive Director Thomas J. Gentzel  in the press release accompanying NSBA’s response.  “We encourage the U.S. Department of Education’s Office of Civil Rights to work with us to find mutually workable, realistic, and practical solutions to implement existing laws.”

George A. Scott, director of education issues for the U.S. Government Accountability Office, said the guidance issued in January was the result of uncertainty among schools and school districts concerning their responsibilities to provide students with disabilities equal opportunities to participate in physical education and extracurricular athletics.

OCR officials are reviewing the recent letter from the school boards association.  “Last week, OCR received a nine-page letter from the National School Boards Association related to OCR’s January 2013 Dear Colleague Letter addressing equal access to extracurricular athletics for students with disabilities.  We are currently reviewing the letter so that we may respond appropriately,” said a spokesman for ED.  “Since the issuance of this letter, OCR has received positive feedback from a number of school districts, athletic associations and directors, parents and students, and others, who have expressed a desire to move forward consistent with the letter so that students with disabilities have an equal opportunity to participate in athletic programs and activities.”

The ED spokesman added, “OCR will continue to work with these groups as well as the NSBA to ensure that all students have access to the rewarding and enriching programs offered in our nation’s school districts.”

mlive, 5/31/13, Heather Jordan

[Editor's Note: NSBA's response to OCR's January 2013 DCL states that NSBA's concern is "that absent clarification, OCR’s expansive reading of the law in some aspects, and what now appears to be the blending of OCR enforcement standards to be applied in Section 504 matters, as stated in the DCL, will generate uncertainty in the courts about applicable standards; create confusion among school attorneys, educators, school officials and parents as to methods of implementation; invite misguided litigation that will needlessly drain precious school resources; and, create adversarial climates distracting schools from their overall educational mission." 

According to NSBA’s response letter, NSBA's concerns with the DCL fall into three main areas of inquiry:  

 I.      Expansion of OCR’s View of Its Authority Under Section 504

 II.    Confusing Blend of OCR Enforcement Standards

 III.  Need for Clarity in Ultimate Conclusions in DCL

In January 2013, Legal Clips summarized an article in USA Today reporting on OCR's Dear Colleague Letter.

The March/April edition of Inquiry and Analysis, published by the NSBA Council of School Attorneys, featured an article on this topic by Richard E. Kroopnick, Esquire entitled Section 504, OCR, and Extracurricular Athletic Activities: Confusion over the Rules of the Game.  Mr. Kroopnick is with the law firm of Lusk and Albertson, P.L.C., in Bloomfield Hills, Michigan.]

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