OCR's New Guidance: a "Title IX" for Students with Disabilities

Yesterday, the Department of Education's Office for Civil Rights announced new guidance for public elementary and secondary schools regarding their obligation to provide athletic opportunities for students with disabilities.  Public schools are subject to the 1973 Rehabilitation Act, Section 504 of which prohibits federally funded programs from discriminating against or excluding individuals on the basis of disability.  While the Department of Education's regulations implementing 504 call for equal opportunity for students with disabilities to participate in extracurricular activities and athletics, yesterday's guidance clarifies what schools must do under the law to include students with disabilities in athletic programs.

First, the guidance prohibits schools from limiting athletic opportunities due to generalizations and stereotypes about students with disabilities.  For example, it would be unlawful for a high school coach to exclude a player based on her learning disability, on the belief that all students with learning disabilities are incapable of handling both schoolwork and sports.  Instead, the coach must use the same criteria for eligibility that apply to other students.

Second, schools must make reasonable modifications to existing athletic programs, where doing so would enable the participation of a students with disabilities without altering the fundamental nature of the program or put students' safety at risk.  As an example of a reasonable modification, OCR describes a track competition where the schools agree that the race start will be signaled by a visual cue along with the starting gun, in order to accommodate a student whose hearing is impaired.

Finally, where schools cannot accommodate students' participation in existing athletic programs, they must create additional athletic opportunities for students with disabilities.  When individual schools do not have a sufficient number of students with disabilities to field a team, they should consider district-wide or regional teams, co-ed teams, and "allied" or "unified" teams that allow students with and without disabilities to participate together.

Advocates for students with disabilities have expressed their hope that this guidance will do for them what Title IX has done for women and girls: end the presumption that they are incapable and uninterested in participating in sports, and expand the opportunities available for them to do so. Like Title IX, I expect this new guidance will trigger concern that accommodating students with disabilities will detract from existing opportunities.  But the fears that Title IX would cut into boys' athletic opportunity have not panned out. So if the Title IX analogy is correct, we'll see continued expansion of sports for all students, regardless of sex and regardless of disability.