Education Week - February 6, 2013 - 27

EDUCATION WEEK

FEBRUARY 6, 2013

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Sports-Access Guidance Buoys Some, Riles Others
sports offerings cannot not be reasonably modified.
The National School Boards
Association—which, separately,
intends to press for federal legislation to curb what it sees as Education Department overreach into
local school policy—has yet to take
a formal position on the newly issued guidelines.
But Reginald M. Felton, the assistant executive director for congressional relations for the Alexandria,
Va.-based nsba, said: “Where local
school districts would have a problem is if it’s a mandate.”
The right to participation in
sports by students with disabilities has been established for years.
The Rehabilitation Act of 1973,
specifically Section 504 of that law,
extends civil rights to people with
disabilities in programs and activities that receive federal funding,
which includes regular public and
charter schools.
Despite the law’s long standing,
the specific requirements were still
unclear to some schools, according
to a 2010 report from the Government Accountability Office, the congressional watchdog agency.

District-Level Questions
Investigators said they heard
questions from local school officials about whether having a student with disabilities as a team
manager would count as sports
participation, the gao reported.
Some administrators wondered
if they could meet the law’s standards by providing an opportunity for students to participate in
a noncompetitive event. Others
asked whether after-school activities were included in the policy.
The gao report said the lack of
clarity “serves as a disincentive for
schools to take proactive steps.”
Districts may not know that
they’re out of compliance with the
law until a parent complains, the
gao report also states.
Picking up on those points, the
office for civil rights’ guidance offers specific examples:
• A coach who bars a student with
a learning disability from lacrosse
competitions because of generalized
beliefs about such disabilities violates Section 504.
• Providing a visual cue in addition to a starter pistol so a deaf runner can participate in track meets
is a reasonable modification.
• Providing health services, such

David Walter Banks for Education Week

CONTINUED FROM PAGE 1

as blood-sugar monitoring, is a
part of a school’s responsibility
during after-school activities if it
provides that same service for a
student during the school day.
What alarmed some commentators, however, was the department’s statement toward the end
of the guidance that if a school
was unable to offer reasonable
modifications in its existing programs, “the school district should
create additional opportunities for
those students with disabilities.”
Michael J. Petrilli, the executive
vice president of the Thomas B.
Fordham Institute, a Washington
think tank, wrote in a Huffington
Post commentary that the department was creating “a right to
wheelchair basketball.”
“Talk about executive overreach!
Talk about a regulatory rampage!
Talk about an enormous unfunded
mandate!” wrote Mr. Petrilli, who
served in the department during
the administration of President
George W. Bush.
The notion that the ocr guidance amounted to costly new policy was bolstered by enthusiastic
comments from disability-rights
advocates, who said that the document was akin to Title IX, the
landmark 1972 law that prohib-

ited sex discrimination in federally funded education programs
and spurred new opportunities
for female students in school and
college sports.

No New Requirements
Seth M. Galanter, the acting assistant secretary for civil rights,
said that the guidance neither
breaks new ground nor mandates
new policy for the states that did
not previously exist. During an
interview, he pointed to a footnote
in the guidance that says it is not
adding requirements to applicable
law.
Mr. Galanter also said that
while the bulk of the guidance
document offers examples of
where the civil rights office would
or would not find violations, the
portion that talks about offering
different or separate activities
does not prescribe any penalties.
“The guidance does not say that
there is a right to separate or parallel sports programs,” Mr. Galanter
said. Instead, the guidance urges—
but does not require—that when
inclusion is not possible, school districts find other ways to give students with disabilities the opportunity to take part in extracurricular
athletics, he said.
Mr. Galanter added: “Reading
one piece in isolation is not how
we intended the document to be
read.”
The ocr is not the final voice on
issues related to Section 504 and
student participation in sports,

Coach Len Boudreaux works
with Sam Millikan, left, and
Keitra Douglas at Gwinnett
Heat wheelchair-basketball
practice at the Monarch
School in Duluth, Ga.

said Perry A. Zirkel, a professor
of education and law at Lehigh
University in Bethlehem, Pa., and
an expert on Section 504 and the
Individuals with Disabilities Education Act.
Courts also have weighed in on
whether schools are discriminating against students with disabilities. And, while courts may find
federal Education Department
guidance persuasive, they are not
bound by it, Mr. Zirkel said.
He cited a case decided in January by a federal court in Chicago.
In that case, Lyon v. Illinois High
School Association, a student
who said he dropped out of school
temporarily because of attention
deficit hyperactivity disorder and
other learning disabilities asked
for a waiver to participate on his
school’s wrestling team, even
though he had already wrestled
for four years.
The U.S. District Court for the
Northern District of Illinois denied the student’s request, saying
that the athletic association was
not required to waive its four-year
limit on participation to accommodate his disability.
Mr. Zirkel said that if that case
had come before the ocr, the office likely would have limited its
review to whether the school or

athletic association had followed
proper rules in making its decision, rather than trying to determine if that decision reflected a
reasonable accommodation.
“The courts are the ones who
make these determinations,” Mr.
Zirkel said. Except in extraordinary circumstances, the ocr
“deftly ducks them,” he said.
Supporters of the new guidance
say that while they welcome it,
schools and districts may still need
logistical assistance as they make
sure their sports programs offer full
opportunities for participation.
Linda C. Hilgenbrinck, the national adapted-physical-education
teacher of the year for 2012 and
an employee of the 23,000-student
Denton Independent School District
in Texas, she said her school system
has only sporadic sports competitions for students with disabilities.
“We have sprinklings of events,
maybe once or twice a semester,”
said Ms. Hilgenbrinck, who said
she strongly supported the department’s move to offer the guidance.

Local Challenges
Among the challenges for districts will be getting equipment
for students and finding other
teams to play, Ms. Hilgenbrinck
said. When she coached a basketball team of deaf students, the
team traveled thousands of miles
in a season to find play other
teams of deaf students, she said.
“I know one of the very first
questions is, ‘We know that we
need to be doing this, but where
are the funds going to come from?
What about liabilities?’ Those are
good and valid questions,” she
said. But those questions should
not stop districts from moving forward, she said. “These kids need
the same opportunities.”
Beverly Vaughn, the co-founder
and executive director of the American Association of Adapted Sports
Programs, in Atlanta, said that
“some people say we can’t have [a
fully inclusive program] because
they don’t know how to do it.”
“The good news is, when we
show them how, the kids can
thrive and compete and do very
well athletically,” Ms. Vaughn said.
The department’s guidance “is really just another milestone along
the journey.”
>>

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REF’S-EYE VIEW

Among the points the guidance makes:

n Schools that provide services during the school day to

The U.S. Department of Education has
issued guidance to schools intended
to help them make sure their sports
programs offer equal opportunities to
students with disabilities. Such equal
opportunities are mandated under
Section 504 of the Rehabilitation Act of
1973, a civil rights statute that prohibits
discrimination based on disability.

n Schools and coaches are not to act on

students with health problems or disabilities are also required to
provide those services during extracurricular sports activities.

iStockphoto_GeorgePeters

generalizations and stereotypes about disabilities when
operating an extracurricular sports program.
n Schools must ensure equal opportunity for

participation, which means “making reasonable modifications
and providing those aids and services that are necessary to
ensure an equal opportunity to participate, unless the school
district can show that doing so would be a fundamental
alteration to its program.”

n Equal opportunity to participate does not mean equal

access to teams; a student with a disability is not guaranteed
a spot on a team based solely on his or her interest.
n School districts should create additional opportunities

for students with disabilities if the existing athletic program,
even with modifications, cannot meet the needs of such
students with disabilities.
SOURCE: U.S. Department of Education

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Education Week - February 6, 2013

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