Some Skeptical of New Special Ed Guidance from OCR

The USDOE’s Office of Civil Rights released new guidance last month regarding how school districts must accommodate students with disabilities who wish to participate in extracurricular activities. The USDOE has assured that it only attempted to clarify the current obligations of schools under Section 504 of the Rehabilitation Act of 1973, which requires recipients of federal funds to provide reasonable accommodations to individuals with disabilities, and did not create any new obligations or requirements, but some are skeptical of the USDOE’s intentions and believe that the agency is overreaching.

The guidance was sparked by a 2010 study from the Government Accountability Office that found that students with disabilities were often not being afforded an opportunity to participate in extracurricular activities as required by law. The study found that many schools are still unsure of their obligations under Section 504, and as such, this uncertainty creates a disincentive for schools to take the proactive steps necessary to comply with the law.

By summarizing Section 504 and giving a few specific examples of possible fact scenarios that a school may be face, the guidance makes a few select points:

  1. School officials and coaches can’t rely on generalizations or stereotypes to exclude a student with disabilities from participating in an extracurricular activity or sport.
  2. Schools must afford qualified students with disabilities an equal opportunity to participate, which means providing the reasonable accommodations and aides necessary. This does not mean that a school can’t require a certain level of skill or ability, and if all students must try out for a spot on an athletic team, for example, students with disabilities are not guaranteed a spot either.
  3. If a student that requires a certain health-related service or accommodation during the school day wants to participate in an after-school activity, the school must continue to provide that service or accommodation after school hours so that the student may participate.
  4. School districts should offer additional or separate extracurricular activities for students with disabilities if the school’s existing extracurricular athletic program cannot meet the needs of those students. If a separate extracurricular program is unnecessary, then it is discriminatory, but if students with disabilities cannot participate in the school’s regular extracurricular program, then a separate program should be created and equally supported.

 

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