Looking Forward to the Challenges of Meeting the Civil Rights of Student Athletes with Disabilities

Jonathan M. Minear, J.D. Attorney, Helsell Fetterman LLP Seattle, Washington Cinda Johnson, Ed.D. Associate Professor, Seattle University

The Problem
Children and adolescents are getting less exercise than ever before. Low levels of physical activity correspond to higher rates of inactivity, obesity, and other health problems in adulthood.

June 2010 report by the U.S. Government Accountability Office Center for Disease Control and Prevention, http://www.cdc.gov/obesity/index.html

Issues, continued

Copyright by FBellon Republished under terms of the Creative Commons Attribution 2.0 Generic License http://en.wikipedia.org/wiki/File:Computadoras_y_Obesidad.jpg

Issues, continued
Children and youth with physical and developmental disabilities engage in even less physical activity 4.5 times less activity than their peers without disabilities. Students with physical and developmental 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 students with disabilities.

Federal Law - Least Restrictive Environment

General education has three dimensions: the academic curriculum, extracurricular activities, and nonacademic activities. Presumption of inclusion is only set aside if the student with disabilities cannot benefit from being educated with students without disabilities and only after that student has been provided supplementary aids and services in the general education setting.

Section 504 of the Rehabilitation Act of 1973

Forty years ago, Congress enacted the Rehabilitation Act of 1973 as a comprehensive federal program to empower individuals with disabilities. Section 504 of the Rehabilitation Act mandates nondiscrimination and reasonable accommodation. Entities that receive federal funds directly or indirectly (like schools) must provide aids that afford equal opportunities to people with disabilities.

PGA Tour, Inc. v. Casey Martin

Casey Martin was a successful professional golfer in the 1990s and 2000s. Birth defect in right leg that prevented him from walking the full golf course.

He sued the PGA Tour under the Americans with Disabilities Act for the right to use a golf cart during competition.
In 2001, the US Supreme Court held that the Tour could not lawfully deny him the option to ride in the cart between shots.

OCRs Dear Colleague Letter dated 1/25/13

Department of Educations Office for Civil Rights (OCR) According to OCR, the purpose of its letter was to clarify existing legal obligations to provide equal opportunities in athletics to students with disabilities. Directs school districts to make reasonable modifications and accommodations for students with disabilities that allow more opportunities to participate. Explains that a school districts obligation to comply with Section 504 and its regulations supersedes any rule of any 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.

Three Main Parts of OCRs Guidance Letter

1. Stereotypes and Generalizations
2. Equal Opportunities (Reasonable Modifications v. Fundamental Alterations)

3. Separate or Different Opportunities

1. Stereotypes
Schools may not operate their athletic programs on the basis of generalization or stereotypes about the capabilities of students with disabilities. No students are not guaranteed a spot on the team.
Example: Lacrosse player with learning disabilities

1. Stereotypes, continued

Anthony Robles, 2010-11 NCAA Wrestling Champion, 125 lb weight class

Copyright Unknown http://lobshots.wordpress.com/2011/03/21/man-crush-of-the-week-one-legged-wrestler-anthony-robles/

2. Equal Opportunities
Equal opportunities in athletics may require modifications.
Reasonable modifications v. fundamental alterations
Schools must make modifications that are reasonable, but need not make modifications that constitute fundamental alterations to the program.

OCR says a modification might be 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.

2. Equal Opportunities, continued

If a student requests a modification that goes too far (i.e., constitutes an improper fundamental alteration), the school must look for other, less-drastic modifications would allow the students participation. Schools should not deny requests for aids or services after school hours because OCR has stated that it would rarely, if ever, agree that those requests fundamentally alter the schools education program.

2. Equal Opportunities, continued

Oscar Pistorius Olympian

Copyright by Erik van Leeuwen - Republished under terms of GNU Free Documentation License. http://en.wikipedia.org/wiki/File:Oscar_Pistorius_2_Daegu_2011.jpg

2. Equal Opportunities, continued

John Olerud MLB First Baseman

Copyright Unknown - Republished under terms of Creative Commons Attribution ShareAlike 3.0 License. http://en.wikipedia.org/wiki/File:John_Olerud.JPG

2. Equal Opportunities, continued

Highly individualized fact-specific inquiry. Examples: Hearing-impaired track and field athlete

One handed swimmer

Gymnast with diabetes

3. Separate or Different Opportunities

According to OCR, where reasonable modifications would not permit students with disabilities to participate in existing athletics programs, schools should work to create separate or different programs.
Example: wheelchair basketball, etc.

OCR is encourages that schools take this step.

Takeaways from the Letter

Primarily, OCR is signaling that it will set a high burden for schools to establish that they appropriately conducted their individualized determinations about requested modifications. OCR warns school districts not to rely on state athletic conference requirements that run afoul of Section 504 or other federal law.

Takeaways from the Letter, continued

Funding is an important question.
In opining what school districts should be doing, like creating new equally-funded adaptive sports leagues, OCR walks the line of creating an unfunded federal mandate.

Takeaways from the Letter, continued

OCRs position that these regulations supersede any rule of any association will likely be problematic in its application to students with physical disabilities, rather than mental disabilities. Many sports rules are designed to ensure a players safety and should carefully considered before eliminated in an effort to accommodate students with physical disabilities.

Takeaways from the Letter, continued

The letter discusses how that students with disabilities need the opportunity to benefit from athletic programs.
Does that mean to establish an affirmative obligation on schools to enroll such students in one or more extracurricular sports activities? Probably not, but unclear.

Preparing to Meet Expectations

Educate staff on uncertain, shifting legal standards
Stimulate and support inter-departmental collaboration Form a review committee

Craft IEPs with precision

Explore new athletic options

Proposed Case Study

Student who is diagnosed with autism has participated trackand-field team, throwing in the shot put competition. Disability is most apparent in social situations and with peers. Behaviors that are exacerbated when he becomes anxious during transitional events, like riding a bus to a track and field event and when waiting with peers before his event. With an adult nearby providing him directions and support, he is able to appropriately wait for his event. Thoughts?

Contact Information
Jonathan Minear, J.D.
jminear@helsell.com
206-689-2161

Karen Kalzer, J.D.

kkalzer@helsell.com 206-689-2125

Cinda Johnson, Ed.D.

cinda@seattleu.edu
206-296-5888