ELA Submission by Johnson & Minear - Looking Forward to Challenges

8/13/2019 ELA Submission by Johnson & Minear - Looking Forward to Challenges

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Looking Forward to the Challenges of

Meeting the Civil Rights of Student Athletes

with Disabilities

Cinda Johnson, Ed.D, Associate Professor and Director of Special Education Graduate

Program, Seattle University College of Education

Jonathan M. Minear, J.D., Associate, Helsell Fetterman LLP, Seattle, Washington


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A. Introduction

American children and adolescents are notorious couch potatoes. 1 Unfortunately, these low levels

of physical activity correspond to higher rates of inactivity, obesity, and other health problems in

adulthood.

Children and youth with physical and developmental disabilities engage in even less physical

activity4.5 times less activity than their peers without disabilities, according to a June 2010

report by the U.S. Government Accountability Office (GAO).2

This report noted that, despitelegislation requiring states and schools to provide equal access, opportunities for physical activity

are limited for children and youth with disabilities. 3 Children with disabilities experience lower

levels of cardio-respiratory fitness, lower levels of muscular endurance, and higher rates of obesity

than typical children.4 For too many students with disabilities, the only exercise they get is

travelling from room to room, and from buildings to vehicles and back again. In addition to the

obvious health benefits, youth participation in athletics promotes self-confidence and peer

acceptance,5 which are especially important for individuals with disabilities, who often have fewer

friendships and belong to much smaller social networks.6

On January 25, 2013, the U.S. Department of Educations Office for Civil Rights (OCR)7 issued

a Dear Colleague Letter to all schools receiving federal fundingnamely, elementary, secondary

1 In 2009, less than one quarter of American children participated in at least one hour of physical activity on any of

the previous seven days. SeeU.S. Department of Education, Office of Special Education & Rehabilitative Services,

Office of Special Education Programs, Creating Equal Opportunities for Children and Youth with Disabilities toParticipate in Physical Education and Extracurricular Athletics, Washington, D.C. 2011, at 1.2 Id.3 Id.4 SeeNancy A Murphy, Paul S. Carbone & the Council on Children with Disabilities, Promoting the Participation of

Children with Disabilities in Sports, Recreation, & Physical Activities, 121 PEDIATRICS1057, 1057 (2008).5 SeeKatie M Burroughs,Learning Disabled Student Athletes: A Sporting Chance under the ADA?, 14 J. CONTEMP.

HEALTH L. & POLY57, 62-63 (Fall 1997).6 SeeJeffrey J. Martin, Psychosocial Aspects of Youth Disability Sport, 23 ADAPTEDPHYSICALACTIVITYQ. 65, 67

(2006).7 OCR investigates complaints of discrimination on the basis of race, color, national origin, sex, disability, or age

under various federal laws, including Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 701 et seq.,and Title

II of the Americans with Disabilities Act, 42 U.S.C. 12101 et seq.(ADA).


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and post-secondary educational institutions.8 This communication was designed to clarify

schools existing legal obligations to provide equal opportunities in athletics to students with

disabilities. As explained in greater detail below, OCR interprets existing federal law to require

school districts to make reasonable modifications and accommodations that allow more

opportunities for students with disabilities. Importantly, students are not guaranteed a spot on the

team under this policy. Rather, OCR advises educators to use various principles highlighted in

this guidance letter to examine whether such students are being unlawfully excluded from sports

and athletic activities.9

B. Brief Overview of Section 504 of the Rehabilitation Act

Federal statutes10 define the various types of disabilities that trigger protection for individuals with

disabilities. Generally speaking, these laws apply to people who are substantially impaired in

carrying out one or more major life activities, are perceived to be impaired, or have a record of

impairments.11 These statutes typically require that such people are provided services in the least

restrictive environment (LRE). Formerly known as mainstreaming or integration, LRE means

8 Typically, athletics are far more competitive at the post-secondary level, and this paper focuses on organized athletics

at the elementary and secondary schools.9 It is important to recall that students with disabilities were discriminated against during the early and middle part of

the 20th century through exclusion and classifying students who did not have disabilities (and frequently were from

culturally or linguistically diverse groups). In 1975, Congress passed the Individuals with Disabilities Act, 20 U.S.C.

1400 et seq. (IDEA), which opened public schools to all students with disabilities and made a right to special

education. Since then, Congress has expanded the group of students to birth through age twenty-one. IDEA includes

a zero-reject principle that clearly benefits all children with disabilities, no matter how severe the disabilities.10 Depending on the particular situation, a variety of federal laws may apply to students participation in athletic

events, including Title II of the ADA, the IDEA, and Section 504 of the Rehabilitation Act of 1973. This paper focuses

on Section 504 of the Rehabilitation Act, just as OCRs Dear Colleague Letter does. In addition, a patchwork of state

and local laws supplement federal antidiscrimination laws and provide additional protections to people with

disabilities. For example, in 2008, Maryland passed a law that requires local boards of education to develop policiesto include students with disabilities in all curricular and extracurricular physical education and athletic programs. See

http://www.mdlclaw.org/wp-content/uploads/2010/09/Fitness-and-Athletic-Equity-Law-For-Students-with-

Disabilities.pdf. A discussion of state and local laws goes well beyond the scope of this brief paper. Interested readers

should consult qualified counsel to determine if there are heightened legal requirements in their jurisdiction.11 Unlike other groups protected by federal and state laws, such as women, racial minorities, and persons over a certain

age, individuals with disabilities are not always easy to define. Even antidiscrimination statutes define disabilities

differently. For example, some school-aged children with disabilities may be covered by Section 504 or the ADA,

but are not entitled to special education under IDEA. That is because IDEA limits disability to the following

conditions: intellectual disability; hearing impairments including deafness; speech or language impairments; visual

impairments including blindness; emotional disturbance; orthopedic impairments; autism; traumatic brain injury;

other health impairments; specific learning disabilities; and developmental delays for children under the age of nine.

See20 U.S.C. 1401(3); 34 C.F.R. 300.8.


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that services are provided to students, alongside other students who do not have disabilities, unless

there are compelling reasons to justify separate treatment. The presumption of inclusion is only

set aside if the student cannot benefit from being educated with students without disabilities and

only after the student has been provided supplementary aids and services in the general education

setting. General education has three dimensions: the academic curriculum, extracurricular

activities, and nonacademic activities. Schools must ensure that students with disabilities may

participate in recess, athletics, recreational, and other nonacademic activities to the maximum

extent appropriate for each student with disabilities.

Forty years ago, Congress enacted the Rehabilitation Act of 1973 (29 U.S.C. 701 et seq.) as acomprehensive federal program to empower individuals with disabilities to maximize

independence, and inclusion and integration into society, through the guarantee of equal

opportunity. 29 U.S.C. 701(b)(1)(F). Lawmakers found that disability is a natural part of the

human experience and in no way diminishes the right of individuals to enjoy full inclusion and

integration in the social, cultural, and educational mainstream of American society. 29 U.S.C.

701(a)(3)(F). Nevertheless, Congress determined that individuals with disabilities continually

encounter various forms of discrimination in such critical areas as education [and] recreation.

29 U.S.C. 701(a)(5).

Section 504 of the Rehabilitation Act mandates nondiscrimination and reasonable

accommodation.12 This law seeks not only to curb conduct fueled by discriminatory animus,

but also to right the result of apathetic attitudes rather than affirmative animus.13 The Act and

related regulations require entities receiving federal funding to provide auxiliary aids that afford

handicapped persons equal opportunity to obtain the same result, to gain the same benefit, or to

reach the same level of achievement as others. 45 C.F.R. 84.4(b)(2). This law applies to

recipients of federal financial assistance and to entities that receive funds indirectly through

another recipient. See 34 C.F.R. 104.3. Because all states receive federal funding for public

12 No otherwise qualified individual with a disability shall, solely by reason of her or his disability, be excluded

from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity

receiving [f]ederal financial assistance. 29 U.S.C. 794(a).13 Powers v. MJB Acquisition Corp., 184 F.3d 1147, 1152 (10th Cir. 1999) (quoting Alexander v. Choate, 469 U.S.

287, 296, 105 S. Ct. 712, 83 L. Ed. 2d 681 (1985)).


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education, all are subject to the requirements, as are local school districts, which states fund

indirectly.14

C. OCRs Dear Colleague Letter

OCRs guidance letter addresses three related topics.

1. Stereotypes

First, schools may not operate their athletic programs on the basis of generalization or stereotypesabout the capabilities of students with disabilities. OCR explains, for example, that a coach should

not bench a student with a learning disability just because the coach assumes that disability would

make the student ineffective in actual games.

This requirement points out the distinction between situations (1) where a disability physically

prevents an athlete from participating and (2) where a disability causes others to limit that athletes

participation based on their own prejudices or ill-defined concerns. Even well-meaning

administrators or coaches may want to exclude such students for fear of injury; however, without

medical support that participation is too risky, such exclusion violates Section 504.

As an example of extraordinary achievement, Anthony Robles was born without a right leg from

the hip down, but in college he went on to become the 2010-11 NCAA individual wrestling

14 Because these statutes have relatively difficult legal standards to meet, and because the federal government lacks

sufficient recourses to litigate more than a handful of discrimination cases, attorneys representing students with

disabilities have begun filing suit under alternative legal theories. One such alternative is the False Claims Act, 31

U.S.C. 3729-3733 (FCA). This law provides for a private right of action against federal government contractors

or grant recipients when they violate the terms of their contracts or grants, which often require a certification of

compliance with federal antidiscrimination laws. See Ralph C. Mayrell, Blowing the Whistle on Civil Rights:

Analyzing the False Claims Act as an Alternative Enforcement Method for Civil Rights Laws, 91 TEX. L. REV. 449

(2012), available athttp://www.texaslrev.com/wp-content/uploads/Mayrell.pdf. Under the FCA, civil liability may

be based on such a false-certification theorythat is, where a defendant knowingly makes, uses, or causes to be

made or used, a false record or statement material to a false or fraudulent claim. 31 U.S.C. 3729(a)(1)(B).


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national championship in the 125-pound weight class, routinely defeating opponents without

physical disabilities.15 He did not wrestle under any modified rules.

2. Reasonable Modifications and Aids

Second, schools must make reasonable modifications and provide aids and services necessary to

ensure an equal opportunity to participate in athletics, unless doing so would fundamentally alter

the program. OCR explains that, under some circumstances, schools with track programs should

offer visual cues in addition to starter pistols, in order to accommodate athletes who are hearing-

impaired and otherwise qualified to compete. As a second example, OCR explains that, undersome circumstances, schools with swimming programs should waive the two hand touch rule to

allow one-handed swimmers to compete. As a final example, OCR explains that school personnel

should provide diabetic elementary-school students with glucose testing and insulin administration

so they can participate in extracurricular gymnastics.

A modification might constitute a fundamental alteration if it alters such an essential aspect of the

game or activity that it would be unacceptable even if it affected all competitors equally, or if it

gives a particular player with a disability an unfair advantage over others. If a requested

modification would constitute a fundamental alteration, the school district is still required to

determine if other modifications are available that would permit the students participation.

According to OCR, a school districts obligation to comply with Section 504 supersedes any rule

of an association, organization, club, or league that might prohibit a student from participating, or

limit the eligibility of a student to participate, on the basis of disability. While students with

disabilities are not guaranteed spots on teams, they should be given opportunities to compete for

those spots. This requirement addresses the fact that, as a group, students with physical disabilities

have fewer opportunities to participate in extracurricular athletics than students with intellectual

disabilities, at least partly because fewer programs are designed or adapted to fit the needs of

15 See http://anthonyrobles.com/bio.html; http://en.wikipedia.org/wiki/Anthony_Robles. A video of Mr. Robless

championship match is available at http://www.youtube.com/watch?v=c5W4RZq1NRg. As another example, Jim

Abbot is a baseball pitcher without a right hand who played Major League Baseball from 1989 to 1999. See

http://www.jimabbott.net/biography.html?submenuheader=0.


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students with physical disabilities.16 All of these determinations must be made by a team and on

a case-by-case basis.

Though he has encountered significant legal trouble in his personal life this year, Oscar Pistorius

would be a good example of this reasonable modifications principle in athletics. His carbon-

fiber, flexible prosthetics allowed him to become the first amputee to win an able-bodied world

track meet in the 2011 World Championships and the first double-leg-amputee to participate in the

Olympics.17 School districts need not actually provide students with prosthetics. However,

coaches should not exclude students using prosthetics unless their use fundamentally alters the

competition (and decisions by the worlds sporting bodies suggest that coaches should allow

student athletes to use aids of this type).

Notably, OCR cites only limited judicial support for these reasonable modification requirements,

namely, two U.S. Supreme Court decisions regarding Section 504. And OCRs cited regulations

provide only indirect support. Interestingly, OCR did not cite the case ofPGA Tour, Inc. v. Martin,

532 U.S. 661, 121 S. Ct. 1879, 149 L. Ed. 2d 904 (2001), a Supreme Court opinion holding that

use of a golf cart was not a modification that would fundamentally alter the nature of the PGAs

tournament and waived the walking requirement pursuant to Title III of the ADA. 18 Nonetheless,

the specified steps for individualized inquiry largely fit the applicable judicial precedent.

3. Creating New Opportunities

The final part of the letter discusses providing and arranging for separate or different opportunities

for students with disabilities. Borrowing from Title IX, which OCR also enforces, the letter says

that, where reasonable modifications would not permit students with disabilities to participate in

16 U.S. Govt Accountability Office, GAO-10-519,Students with Disabilities: More Information and Guidance Could

Improve Opportunities in Physical Education and Athletics, at 22 (2010),available atwww.gao.gov/product/GAO-

10-519.17 http://en.wikipedia.org/wiki/Oscar_Pistorius. He competed in the 2012 Olympic Games in London.18 TheMartin Court indicated that its decision was narrow and that it was not deciding the definition of necessary

in the context of the ADA because the PGA Tour had already conceded that Mr. Martins requested modification was

both reasonable and necessary. 532 U.S. at 683 n.38. The narrow dispute before the Court then was whether

allowing Martin to use a golf cart, despite the walking requirement that applies to the PGA Tour is a modification

that would fundamentally alter the nature of the golf tournament. Id.at 682.


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existing athletics programs, schoolsshouldwork with their community or athletic associations to

create additional opportunities for those students by offering separate or different athletic

activities. OCR suggests that creating disability-specific teams for sports, such as wheelchair

tennis or wheelchair basketball, is appropriate to stay in compliance with federal law. Where there

are too few such students at a school, school districts should (1) develop district-wide or regional

teams, (2) mix male and female students with disabilities on teams together, or (3) offer allied

or unified sports teams alongside students without disabilities.

The controversy over this third section appears to be largely misplaced because it merely

encourages school districts to take such actions, while the first two sections discuss requirementsunder Section 504. OCR makes clear that this encouraged option only applies as a last resort

specifically, only after exhausting the first two steps.

4. Takeaways from OCRs Letter

OCR provides some common-sense examples of reasonable modifications and accommodation

but does not address other, more difficult situations. For example, students with disabilities who

break school rules generally cannot be expelled if their misconduct is a result of their disabilities.

But should such a student who broke team rules be permitted to remain on the team if his or her

behavior was linked to a disability? What if his or her oppositional behavior caused him or her to

miss practices? Would OCR then require schools to waive compliance with these rules because

the waiver would not fundamentally alter the sport?

The guidance letter suggests that OCR would likely answer these questions in the affirmative:

OCR would rarely, if ever, find that providing needed aids and service for extracurricular

athletics constitutes a fundamental alteration under Section 504. Letter, p. 7-8 n.17. Additionally,

OCR states, Although a school district may also raise the defense that a needed modification or

aid or service would constitute an undue burden to its program such a defense would rarely, if

ever, prevail in the context of extracurricular activities. Id. Here, OCR appears to set a high

burden for schools to establish that their individualized determinations were appropriate.


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School districts should not rely upon state athletic conference requirements if they appear to

exclude students based on physical or mental disabilities. Instead, the guidance letter suggests

schools have an affirmative duty to contest a conference requirement that does not comport with

Section 504. For example, some state high school athletic associations limit the age of student

athletes to 18; others limit students to four years of participation. But students with disabilities

frequently take longer to complete high school and may have been held back one or more years

this type of eligibility rule appears to be the type of requirement that schools should consider

contesting, even though past legal cases have largely upheld age eligibility rules.

On the whole, readers should be mindful that OCR largely interprets Section 504 based on federalregulations (not statutes) and through the lens of a civil rights agency. By contrast, federal and

state courts have grounded decisions in statutory language and case law, resulting in generally less

plaintiff-friendly outcomes.19 This letter signals the agencys priorities and perspectives but is

generally not binding on the courts, except for certain circumstances, such as appellate review

of agency decisions. To the extent that OCRs interpretations do not fit judicial precedent, they

are unlikely to significantly impact litigation. That said, OCR has broad investigatory powers and

the power to sanction public schools, including possible termination of federal funding, and these

interpretations will guide OCRs own process for complaint resolution.

In sum, OCRs letter serves primarily as a public reminder and reinforcement of policy priorities.

The letter represents the federal governments efforts to push reform in a particular direction, not

an expansion of actual federal law, which is passed by Congress.20

19 For example, in a 1992 unpublished opinion, a federal district court judge in Montana ruled: Generally speaking,

a student has no constitutional right to participate in interscholastic sports; it is a privilege which may be withdrawn

by the school or by a voluntary association whose rules the school has agreed to follow. T.H. v. Montana High Sch.Assn, No. CV 92150BLGJFB, 1992 WL 67282 at *4 (D. Mont. Sept. 24, 1992). However, [w]hen participation

in interscholastic sports is included as a component of an IEP as a related service, see 20 U.S.C. 1401(1), (17), the

privilege of competing in interscholastic sports is transformed into a federally protected right. T.H. v. Montana

High Sch. Assn, No. CV 92150BLGJFB, 1992 WL 67282 at *4 (D. Mont. Sept. 24, 1992). In 1996, a federal

district judge in Connecticut reached these conclusions in a similar case. See Dennin v. Conn. Interscholastic Athletic

Conference, Inc., 913 F. Supp. 663, 671 (D. Conn.), vacated as moot, 94 F.3d 96 (2d Cir. 1996).20 OCR denies that its interpretation goes beyond existing federal law. For example, the agencys Fast Facts

summary says, No, the Guidance [Letter] does not add new legal requirements. It explains existing legal

requirements and provides examples to inform school districts and other covered entities about how OCR evaluates

whether they are complying with their legal obligations. Dear Colleague Letter: Students with Disabilities in

Extracurricular Athletics (January 25, 2013), Background and Fast Facts, page 1, available at

http://www2.ed.gov/about/offices/list/ocr/docs/dcl-factsheet-201301-504.pdf.


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D. Case Studies for Application of OCRs Guidance Letter

Case: A twelve-year old student who is diagnosed with Autism has participated with his middle

school track-and-field team, throwing in the shot put competition. Now sixteen, the student has

skills in this event and wants to try out for the high school team. His disability is most apparent

in social situations and with peers, evident in behaviors that are exacerbated when he becomes

anxious during transitional events. For example, these behaviors occur when riding a bus to a

track and field event and when waiting with peers prior to the start of his event. With an adult

nearby who provides him directions and support, he is able to appropriately wait for his event.Transportation has been more difficult for him, and it has been suggested that he not ride the bus

with teammates.

Case: A student who is deaf has grown up playing basketball with her parents and siblings. Her

family is fluent in sign language. She attends her local school and is the only child with a hearing

loss or deafness. She would like to try out for her high school basketball team but was told that

this would not be possible because there is only one interpreter available and she already works

full time for the school district as this students interpreter. They cannot hire her for additional

time beyond the school day. The coach does not know sign language and has decided the student

does not qualify for services that would allow her to play basketball on the high school team.

Instead, the coach suggested that the student contact the Special Olympics to see if there was a

team on which she could play.

Case: An eight-year-old suffered an injury to his spinal cord, leaving him paralyzed from the waist

down. After intensive physical therapy, he is much more mobile in a wheelchair. In middle school,

he played racquetball with his friends at the local gym. He found that, like other wheelchair

racquetball players, it is impossible for him to routinely return serves before the ball bounces a

second time, which is contrary to the rules. However, when allowed to return service after the ball

bounces twice, he can outmatch most of his friends. When he gets to high school, he tries out for

the racquetball team, but the coach does not let the student to try out for the team unless he agrees

to play by the same rules.


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E. Preparing to Meet the Department of Educations Expectations

It is still too early to know how OCRs new requirements and recommendations will meaningfully

affect school districts. Even in this period of relative uncertainty, there are several straightforward

steps that districts can take to prepare.

1. Educate staff on developing law.

Problems arise when administrators and coaches do not know the school districts legal obligationsto students with disabilitiesboth inside and outside the classroom.21 School districts should

ensure that personnel can spot and avoid problems before they start. Where available, training

should include examples of athletes with disabilities who have successfully competed in sports

with and without reasonable modifications and accommodations. Though athletic programs have

traditionally focused on pure competition between students, retooling these programs to focus on

improvements by individual students should boost the participation and health of all students. 22

2. Stimulate inter-departmental collaboration.

In addition to training, it is important to create and develop a culture where coaches work with the

special education department to include students with disabilities in athletic programs. Coaches

should attend at least some IEP meetings because they have direct experience with student athletics

and will be expected to assist with implementing some decisions made in those meetings. This

partnership provides the best opportunity for success for the student and staff.

21 Allison Fetter-Harrott, Amy M. Steketee, Mary Dare, Boosting Inclusion for Students with Disabilities, District

Administration (September 2008),available at

http://www.districtadministration.com/article/boosting-inclusion-students-disabilities. This paper expands on certain

recommendations by these authors, whose insight continues to be valuable following OCRs recent policy letter.22 See U.S. Department of Education, Office of Special Education & Rehabilitative Services, Office of Special

Education Programs,Creating Equal Opportunities for Children and Youth with Disabilities to Participate in Physical

Education and Extracurricular Athletics, Washington, D.C. 2011, at 9.


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3. Form a review committee.

Schools should establish a committee to review students requests for exceptions to athletic

eligibility requirements. The committee should make individualized decisions and review any

exceptions for reasonableness and necessity. If a student is excluded from a sport due to the risk

of injury, the exclusion must not be grounded in unfounded fears or stereotypes about the students

medical condition or disability. Like the teams designing the accommodations and support, this

committee should include personnel from both the athletic and special education departments.

4. Craft IEPs with precision.

When educators include athletics and extracurricular activities in a students IEP, the privilege of

participating in these activities becomes a federally-protected right. Educators who develop IEPs

should carefully consider whether such participation is essential or simply encouraged before

adding it to an IEP.

Of course, securing adequate funding continues to be a major challenge in providing

comprehensive services for students with disabilities. Although the expense of services cannot

drive the IEP or 504 teams decisions, it is a source of concern in local school districts with budgets

constrained by the economic downturn. It may be determined that these student athletes will

receive services and accommodations but not the most expensive alternative. Reasonable

alternatives that provide support for the student should be considered. Reasonable

accommodations take into account not only the expense but the practical and reasonable services

and supports that are determined by the team.

5. Explore new athletic options.

Some students with disabilities may not be able to participate in any organized athletics program

at the school, even with reasonable accommodations and supports. Based on OCRs letter, schools

should begin to explore new ways to engage these students with creative opportunities to boost

physical activity and support social interactions with peers, including adaptive and Paralympic-


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style sports like wheelchair basketball,23 adaptive soccer,24 goalball,25 and even adaptive

cheerleading squads.26

23 http://en.wikipedia.org/wiki/Wheelchair_basketball. Wheelchair basketball is one of the most popular sports for

athletes with various disabilities.24 http://en.wikipedia.org/wiki/Paralympic_football. Adaptive soccer, also known as Paralympic football, is an

adaptation for athletes with visual impairments such as blindness and is played with modified FIFA rules.25 http://en.wikipedia.org/wiki/Goalball. Goalball is a team sport in which teams of three blind and blindfolded

participants try to roll or throw a large ball with bells inside into the opponents goal. Players must use the sound of

the ball to judge the position and movement of the ball.26 For readers who are interested in learning more, Disabled Sports USA is one example of several organizations

nationwide that offers information about sports and athletic opportunities for people with disabilities. See

http://www.disabledsportsusa.org/.

ELA Submission by Johnson & Minear - Looking Forward to Challenges

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