School Board Notes • January 29, 2013 • Vol. XXXVI No. 25

USDOE Addresses Disabled Students’ Access to Sports

The U.S. Department of Education issued a letter on Jan. 25 clarifying school districts’ legal responsibilities to give students with disabilities equal access to extracurricular athletics.

In the letter, the department’s Office of Civil Rights (OCR) encouraged school districts to work with their state athletic associations to ensure that students with disabilities are not denied equal opportunities to participate in interscholastic athletics.

The letter noted that school districts that offer extracurricular athletics must do so in a way to allow qualified students with disabilities an equal opportunity to participate. A school district must make reasonable modifications to its policies, practices and procedures to provide aids and services when necessary to ensure an opportunity for equal participation, unless the district can demonstrate that doing so would fundamentally alter the nature of the sport.

Reasonable Accommodations The OCR provided examples of reasonable accommodations, including allowing a visual cue to be used simultaneously with a starter pistol for a track and field runner with a hearing disability, or waiving the "two-hand-touch" rule for a swimmer who was born with only one hand to allow the swimmer to finish with a one-hand touch.

According to the OCR, equal opportunity does not mean that every student with a disability must be guaranteed a spot on an athletic team for which students must try out. A level of skill or ability for participation may be required, as long as it is not discriminatory.

Creating Additional Opportunities The OCR further advised that where the interests and needs of some students with disabilities cannot be fully met by the school district’s existing extracurricular athletic program, the school district should create additional opportunities for those students. Examples include disability-specific events, such as wheelchair racing in track and field, and disability-specific teams such as wheelchair tennis or wheelchair basketball.

When the number of students with disabilities at a specific school is insufficient to field a team, a school district could provide competitive experiences by developing district-wide or regional teams for students with disabilities; mixing male and female students with disabilities on the same team; and offering "allied" or "unified" teams where students with disabilities participate with students without disabilities.

Existing New Jersey Mandates New Jersey already had requirements in place for school districts to provide opportunities for participation in athletics by students with disabilities.

In 2009, the state Legislature adopted P.L. 2009, c. 109, which directed the New Jersey State Interscholastic Athletic Association (NJSIAA), in consultation with the American Association of Adapted Sports Programs, to establish interscholastic athletic programs for student-athletes with physical disabilities or visual impairments who are already participating in an adapted athletic program developed by a school district. NJSIAA requires any coach of an adapted athletic program to receive training specific to that program.

In June 1994, the state commissioner of education held that that the NJSIAA did not violate federal statutory or constitutional law by denying a wheelchair-bound student's application to participate with able-bodied students in interscholastic track and field events, as the essential nature of wheelchair racing was different from running. NJSIAA includes wheelchair racing as part of its spring track and field championships.

While New Jersey has made strides toward providing equal opportunities for students with disabilities to participate in school athletic programs, this latest guidance from the federal government would appear to be broader in scope than the existing New Jersey legislation.

The OCR guidance is reminiscent of the Title IX expansion of athletic opportunities for girls and women some four decades ago, and it will have significant implications for school districts in the areas of student participation, program staffing, facilities needs, transportation, and overall extracurricular costs.

School boards are encouraged to consult with their school attorney for the impact on their particular schools and districts.