By William P. Miles, Jr.

On January 25, 2013, the Department of Education’s Office for Civil Rights (“OCR”) published guidance to schools regarding their obligation to provide equal access to extracurricular athletic opportunities to students with disabilities under Section 504 of the Rehabilitation Act of 1973.   Section 504 generally requires that schools receiving federal financial assistance must offer students with disabilities equal access to school’s programs as they do to students without disabilities.

The guidance reiterates that schools must offer extracurricular athletics so that students with disabilities are afforded an equal opportunity to participate and that this obligation requires the school to make reasonable modifications and to provide auxiliary aids and services that are necessary to ensure equal opportunity to participate.  Schools are not required to take actions that would fundamentally alter the character or nature of its programs, however (e.g., adding an extra base in baseball or providing a student with a disability an unfair advantage over non-disabled athletes).

The guidance provides two examples of how a school might be required to reasonably modify an athletic event to provide equal access:

  • Allowing a visual cue alongside a starter pistol to allow a student with a hearing impairment who is fast enough to qualify for the track team the opportunity to compete;
  • Waiving a rule requiring the “two-hand touch” finish in swim events so that a one-armed swimmer with the necessary ability can participate at swim meets.

As an example of a service that a school may need to provide, the guidance explains that if a student has diabetes and needs trained personnel to provide glucose testing and insulin administration during the extracurricular activity, the school may need to make such personnel available.

Finally, the guidance urges school districts to work with community organizations to increase athletic opportunities for students with disabilities, such as wheelchair basketball or wheelchair tennis, which may be outside of the existing extracurricular athletic program.

The guidance is a reminder that schools must not make assumptions about a student with a disability’s ability to compete in sports.  In light of the OCR’s focus on these issues, schools confronted with these sometimes difficult issues should always engage in an individualized inquiry to determine whether a requested modification is necessary.  If the modification is necessary, the school must allow it unless doing so would result in a fundamental alteration of its program.  Even if the school makes such a determination, the school must consider and implement any other modifications that would allow the student to participate.