Sua Sponte: OCR’s response to NSBA’s request that it clarify the DCL on athletic opportunities for disabled students
The Office of Civil Rights issued a “Dear Colleague Letter” (DCL) on January 25, 2013, providing guidance to schools regarding their responsibility, under Section 504 of the Rehabilitation Act of 1973, to ensure that students with disabilities have an equal opportunity to participate in extracurricular athletics.
Concerned that without clarification on OCR’s part the DCL would “cause uncertainty in the courts and invite misguided litigation,” Francisco Negrón, the National School Boards Association’s General Counsel, sent a response to U.S. Department of Education Acting Assistant Secretary for Civil Rights Seth Galanter on May 21, 2013. Mr. Negrón’s letter asked OCR to clarify three areas of the DCL: (1) The Expansion of OCR’s View of Its Authority Under Section 504; (2) Its Confusing Blend of OCR Enforcement Standards; and (3) The Need for Clarity in the DCL’s Ultimate Conclusions.
OCR’s response was two-fold. Initially, Deputy Assistant Secretary for Policy John K. DiPaolo initiated a conference call, held on August 7, 2013, between OCR staff and NSBA staff to discuss the DCL and NSBA’s concerns. Mr. DiPaolo then followed up with a formal written response to Mr. Negrón’s letter, dated December 16, 2013. Mr. DiPaolo’s response is organized into four topics: (1) equal opportunity; (2) individualized inquiry; (3) FAPE and equal opportunity to participate; and (4) creation of new athletic opportunities. Mr. DiPaolo’s response is summarized below.
1. Equal Opportunity
One of NSBA’s concerns was that the DCL expanded Section 504 law beyond existing statute and regulations and created new rights and responsibilities.
Mr. DiPaolo’s response stresses that “[t]he DCL does not announce new obligations or rules, but rather clarifies how OCR applies…provisions of the Department of Education’s regulations under Section 504 of the Rehabilitation Act of 1973 that …have been in force since the regulations were first promulgated in 1973.” Citing 34 C.F.R. 104.37, Mr. DiPaolo states that current regulations “require 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.”
Mr. DiPaolo added some clarity to the issue of “what constitutes equal opportunity?” by providing examples of issues and considerations that are not part of a school district’s equal opportunity obligations. Mr. DiPaolo’s response states:
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, Mr. DiPaolo stated that the school district’s “equal opportunity” obligation means that 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.”
Thus the scope of an individualized inquiry becomes significant, and Mr. DiPaolo addressed this subject next.
2. Individualized Inquiry
NSBA’s response to the Dear Colleague Letter questioned whether the DCL was requiring that the individualized inquiry be undertaken by the school’s 504 team and, if so, whether the team composition needed to change.
Mr. DiPaolo’s response did not address this question definitively. Mr. DiPaolo set out examples of circumstances when a 504 team decision was not needed, and in so doing implied that there may be circumstances when a 504 team decision would be required. Mr. DiPaolo wrote: “[The individualized inquiry] does not necessarily mean, however, that the Section 504 team [] must convene when a student with a disability wishes to take part in extracurricular athletics. (emphasis in original). In some circumstances, the inquiry could amount to something as straightforward as a coach or athletic staff member consulting with the student and student’s parent’s parents to determine what reasonable modifications could be provided to give the student an equal opportunity to participate in the activity. In other circumstances, a district athletics official might be brought into the conversation to address adaptations to standard rules or practices in district competitions[]; or a student’s teacher might advise on a coaching modification that could support a student with a developmental disability to participate on a team for which she had the requisite athletic ability.”
Mr. DiPaolo added: “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.”
It seems from Mr. DiPaolo’s response that informal practices are sufficient when the outcome is school-provided modifications or aids and services that allow the student’s participation. But what about in circumstances where the student is denied participation? Would OCR expect a more formal process then, i.e., a 504 team decision made in conformity with the all procedures required by law? Since an OCR investigation under Section 504 typically focuses on a school district’s compliance with the process requirements of the law, and not on the substantive outcome, the sufficiency of the district’s process—in OCR’s view—becomes critical.
Since Mr. DiPaolo does not say that an informal process will suffice in all circumstances or that a 504 team review will never be required, school districts should not assume that an informal process will always comply with OCR’s interpretation of a school district’s obligation to make an individualized inquiry or to otherwise comply with Section 504. 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 504 team process, including notice and the provision of procedural rights, when experience and good judgment indicate it would contribute to the quality of the decision making or the defense of the school’s compliance with 504.
3. FAPE and Equal Opportunity to Participate
NSBA’s response questioned whether OCR was establishing new requirements under the Individuals with Disabilities Act (which OCR does not enforce) and stating that athletic participation was a requirement of FAPE. NSBA’s concern stemmed from this passage in OCR’s Dear Colleague Letter: “In general, OCR would view a school district’s failure to address participation or requests for participation in extracurricular athletics for a qualified student with a disability with an IEP in a manner consistent with IDEA requirements as a failure to ensure Section 504 FAPE and an equal opportunity for participation.” Page 4, Fn 8.
Mr. Di Paolo answered NSBA’s questions clearly:
“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.)
4. Creation of New Athletic Opportunities
In NSBA’s response to the DCL, Mr. Negrón asked OCR to address whether the department was requiring school districts to create new, separate, or different athletic opportunities for disabled students.
Mr. DiPaolo’s response contains good news, but also some worrisome news, for school district budgets and implementation plans. On the question of a school district’s obligation to create new, separate, or different athletic opportunities for disabled students, Mr. DiPaolo answers with a definite “no”. Mr. DiPaolo wrote that while OCR urges school districts to add additional opportunities or activities for such students, “it is not OCR’s view that a school district is required to do so.”
Mr. DiPaolo went on, however, to state OCR’s view that any new or separate athletic opportunities must be equal to the district’s other athletic programs. Mr. DiPaolo states: “If a school district voluntarily wishes to provide such separate activities, those must be supported equally as compared with the school district’s other athletic activities.” For example, Mr. DiPaolo wrote, “if a school district created a varsity wheelchair lacrosse activity, OCR would look to the supports provided to other varsity teams as a benchmark for what might be appropriate for the adapted varsity activity.” School districts across the nation are adding programs that create athletic opportunities for disabled students. Unified and allied programs are some of the more popular, and they have proven to be very successful. It is hoped that OCR’s criteria–that these separate programs “must be supported equally as compared with the school district’s other athletic activities”–will not have the effect of shutting down or stalling the implementation of these activities.
