OCR Looks at Athletics

1. OCR Looks at Athletics Jim Walsh

2. What Happened? • The Department of Education’s OCR issued a “Dear Colleague” letter on January 25, 2013. • The subject: participation of students with disabilities in athletics.

3. The Headline • The letter does not break new ground. Neither the law nor the regulations have changed. • But this clearly indicates an area of increased attention. • This is a good time to review policies and practices.

4. What Are We Talking About? • The letter defines “extracurricular athletics” to include club and intramural activities, as well as JV and varsity interscholastic activities. • While the letter focuses on athletics, the same standards apply to other extracurricular activities such as band, choir, drama, robotics, etc.

5. Starting Point • You must provide an “opportunity to participate.” • The activities offered must be equal to that offered to non-disabled students. • The activity must be in the “most integrated setting appropriate to the student’s needs.”

6. Let’s Break That Down • You must provide opportunities that are “as effective as that provided to others” and that will “afford that student with an equal opportunity to OBTAIN THE SAME RESULT, GAIN THE SAME BENEFIT, OR REACH THE SAME LEVEL OF ACHIEVEMENT….” • And……

7. Most Integrated • This must be done “in the MOST INTEGRATED SETTING appropriate to the student’s needs.” • Providing “different” or “separate” aids, benefits and services can be done only when “necessary to provide…..aids, benefits, or services that are AS EFFECTIVE as those provided to others.”

8. “Section 504 FAPE” • OCR declares that 504-eligible students are entitled to “FAPE.” This is a point of contention, but this has been OCR’s view for a long time. • And here they say: “Section 504 FAPE may include services a student requires in order to ensure that he or she has an equal opportunity to participate in extracurricular and other nonacademic activities.”

9. Trump Card • Your duty under 504 supersedes the rules of other organizations. • So if the country club refuses to accommodate students with disabilities, you cannot do business with the country club. • You cannot provide “significant assistance” to organizations that discriminate on the basis of disability.

10. “I’ll Put Her On the Team, But She’s Not Going to Play.” • OCR directly addresses this attitude and says that it violates 504. • “The student…does not have a right to participate in the games; but the coach’s decision [about playing] must be based on the same criteria the coach uses for all other players (such as performance reflected during practice sessions).”

11. What Does “Non-Discrimination” Mean? • Schools must offer “reasonable modifications” and provide “those aids and services that are necessary to ensure an equal opportunity.” • You must do this unless you can show that the modification would “fundamentally alter” the program. • Safety standards are OK, but also subject to reasonable modification.

12. How to “Reasonably Modify” • The key is individualized analysis. • First question: is the modification “necessary” for the student to participate? • If so: would the modification “fundamentally alter” the activity? • If it would, you then assess whether other modifications might work.

13. What’s a Fundamental Alteration? • It would be a “fundamental alteration” if it “alters such an essential aspect of the activity or game that it would be unacceptable even if it affected all competitors equally (such as adding an extra base in baseball).” • It would be a “fundamental alteration” if it gives the student with a disability an unfair advantage.

14. Examples: The Deaf Sprinter • Starting a sprint with a visual cue for a deaf runner would not fundamentally alter the activity, even though some runners might find it distracting.

15. Example: The One Handed Swimmer • If eliminating the “two-hand touch” rule would give this swimmer a competitive advantage, then it would “fundamentally alter” the program. School would not have to do it. • But school would have to consider other possible modifications.

16. Competitive Activities • “Schools may require a level of skill or ability for participation in a competitive program or activity; equal opportunity does not mean, for example, that every student with a disability is guaranteed a spot on an athletic team for which other students must try out.” • Measure the student’s ability—not the disability.

17. Aids and Services • To satisfy your duty under 504, you must provide those “aids and services” that the student needs in order to have an equal opportunity. • OCR believes that doing so will “rarely, if ever” amount to an “undue burden.” • So the argument that it costs money will “rarely, if ever” succeed.

18. Example: The Student with Diabetes • 504 student with diabetes receives assistance with glucose/insulin during the school day. • Same service must be provided after school to enable the student to participate in gymnastics club.

19. IDEA Kids—504 Kids • OCR will expect you to treat 504 students the same as IDEA-eligible students with respect to aids and services in extracurricular activities. • How to do this? • SEE NEXT SLIDE!

20. ARDs and 504 Teams • The IEP must include a statement of the aids, services and modifications a student needs “to participate in extracurricular and other nonacademic activities.” • So: first, ask the student/parent what activities student would like to participate in; then ARDC or 504 Team identifies needed aids, services, modifications.

21. What Is the Role of the Coach? • Decisions about what the student needs must be made by ARDC or 504 Team—not the coach. • But coach’s input would be important re: safety, and “fundamental alteration.” • Important. Not necessarily decisive.

22. Separate Activities • Students who cannot participate in athletics, even with modifications, “should still have an equal opportunity to receive the benefits of extracurricular athletics.” • In that case, the school “should create additional opportunities” for these students.

23. Key Reminders • All of the above applies to students identified with a disability under either IDEA or 504. • Review your policies and procedures. • Review contracts with outside organizations. • Provide training for coaches, sponsors, leaders of ARD Committees and 504 Teams.

24. And If You Do…. • “These athletic opportunities provided by school districts should be supported equally, as with a school district’s other athletic activities.” • If there are enough students, you can field a team; if not, you can work with other schools, or mix boys and girls, or offer “allied” or “unified” sports teams.

25. Contact JIM WALSH Walsh, Anderson, Gallegos, Green & Treviño, P.C. P.O. Box 2156 Austin, Texas 78768 Phone: 512-454-6864 Fax: 512-467-9318 Email: jwalsh@wabsa.com Web: www.WalshAnderson.com Twitter: http://twitter.com/JWalshtxlawdawg

26. The information in this handout was created by Walsh, Anderson, Gallegos, Green and Treviño, P.C. It is intended to be used for general information only and is not to be considered specific legal advice. If specific legal advice is sought, consult an attorney.