The federal Office for Civil Rights (OCR) issued a “Dear Colleague Letter” on January 25, 2013, that seemed to require school districts to offer alternative sports options for children with disabilities. OCR is charged with enforcing Section 504, among other laws.  The letter suggested that wheelchair basketball, for example, might need to be offered when a wheelchair-bound child cannot be accommodated in the existing basketball program.  Controversy ensued, and ERF advised clients that there is no requirement to create new activities to provide opportunities for those who cannot be reasonably accommodated in existing activities.  This month OCR issued a letter that confirms ERF’s earlier advice.  OCR’s letter explains that it does not believe that Section 504 requires the creation of new activities for children with disabilities (essentially rescinding its earlier guidance).

In its earlier letter, OCR wrote that:

“Students with disabilities who cannot participate in the school district’s existing extracurricular athletics program – even with reasonable modifications or aids and services – should still have an equal opportunity to receive the benefits of extracurricular athletics. When the interests and abilities of some students with disabilities cannot be as fully and effectively met by the school district’s existing extracurricular athletic program, the school district should create additional opportunities for those students with disabilities.

“In those circumstances, a school district should offer students with disabilities opportunities for athletic activities that are separate or different from those offered to students without disabilities. These athletic opportunities provided by school districts should be supported equally, as with a school district’s other athletic activities.”

It went on to explain that when there are not sufficient wheelchair bound athletes to support an activity a district could work with other districts to form a joint team, form co-ed teams, or encourage non-disabled students to participate.  Beyond the logistics and time required by this mandate, districts were alarmed by the cost of funding new programs even as they are being forced to cut funding for existing programming.

With its recent letter OCR unequivocally steps back from the requirements set forth in its prior letter.  It writes that while a district might choose to create new programs for children with disabilities, “it is not OCR’s view that a school district is required to do so.”  Pressure from school districts and the organizations that work for and support them clearly had a significant role in forcing OCR to rethink its earlier letter.  In fact, the letter earlier this month was in response to a request by the National School Boards Association for clarification.  The new letter is being reported here not only because it puts to rest any notion that districts must create separate sports for children with disabilities, but also because it shows that school districts can effectively lobby for change.  At a time of unprecedented new requirements and unfunded mandates this is an important lesson.

Both OCR letters on extracurricular activities are also a good reminder about the importance and scope of Section 504.  This law is meant to “level the playing field” for children with disabilities.  It applies to a broad range of disabilities – far more than those covered by IDEA.  It also applies to all services, activities, and benefits offered by a school district.  Regarding extracurricular activities, a qualified child with a disability has a right to reasonable accommodations to allow the child to try out for and participate in sports.  Precisely what this means depends on the facts of each case, but suffice it to say that schools need to be creative about developing, and committed to providing, equal opportunities to children with disabilities both in the classroom and on the playing field.  Please contact a member of our Special Education Practice Team for assistance in complying with Section 504.