Extracurriculars and Disabled Students

New Legal Issues Related to Disabled Students and Activities

Karen HaaseHarding & Shultz

(402) [email protected]

H & S School Law@KarenHaase

OCR issued Dear Colleague letter on 1/25/13

Does not change the law or the regulations

Indicates an area of increased attention

Plaintiffs’ lawyers take their cues from OCR

OCR’s "Dear Colleague" Letter (1/25/13)

What are we talking about?

“Extracurricular athletics – which include club, intramural, or interscholastic (e.g., freshman, junior varsity, varsity) athletics at all education levels – are an important component of an overall education program”

What are we talking about?

OCR’s focus here is on athletics Principles apply to all activities • Clubs• Fine arts• Before & after school programs • Field trips

Applies to colleges as well

OCR’s "Dear Colleague" Letter

Overview of 504 Requirements• School district required to provide qualified

student with a disability an opportunity to benefit from the school district’s program equal to that of students without disabilities• Defines “disability”• Defines “qualified”

(IDEA slides at the end)

Section 504• Students with disabilities shall

receive “equal opportunity” to participate in nonacademic and extracurricular activities

• May include: counseling, athletics, transportation, health services, clubs, and employment services


“Of course, simply because a student is a ‘qualified’ student with a disability does not mean that the student must be allowed to participate in any selective of competitive program offered by a school district. . . .”

McDowell Schools 55 IDELR 82 (OCR 2010)

• Cheerleading tryouts‾ Student had growth hormone

deficiency‾ 24 tried out for 12 spots‾ 5 impartial judges and an

extensive rubric‾ Student scored lowest of 24

• OCR found no discrimination‾ Students must be given

reasonable accommodations, but must meet performance standards

‾ Grading was tied to performance standards (i.e. essential functions)

McDowell Schools 55 IDELR 82 (OCR 2010)


“. . . school districts may require a level of skill or ability of a student in order for that student to participate in a selective or competitive program or activity so long as the selection or competition criteria are not discriminatory”

Maryville City 25 IDELR 154 (OCR1996)

Baseball tryouts‾ Student has Tourette's‾ Coach evaluated on speed,

balance, coordination, catching, hitting, etc.

‾ Two openings on team, student finished 8/14

Maryville City 25 IDELR 154 (OCR1996)

Parents argued that coach knew of behavioral issues and discriminated against student

OCR ‾ Coach used clear metrics‾ Student had “equal opportunity”‾ No evidence of discrimination

other than allegations

Marion County (FL) Sch. Dist. 37 IDELR (OCR 2001)

Student with unspecified disabilities trying out for cheerleading

Asked to videotape sponsor’s instructions and demonstrations

OCR: school must accommodate

Legal obligation to comply with 504 “supersedes any rule of any association, organization, club or league that would render a student ineligible to participate or limit the eligibility of a student to participate….”

would violate obligations under Section 504 to belong to an organization that discriminates on the basis of disability


Columbus Public Schs. Dist., 107 LRP 35600 (OCR 2006)

The student held back in kindergarten due to LD, competed in swim and cross country teams beginning in 9th grade

District excluded during senior year because she turned 19

District relied on NSAA’s rule Parents sued the district

Columbus Public Schs. Dist., 107 LRP 35600 (OCR 2006)

OCR: ruled for district Student "was denied these

opportunities based on her age, not her disability."

District treated all students the same "regardless of whether they have a disability."

Washington v. Indiana HSAA, 31 IDELR 6 (7th Cir. 1999)

LD student dropped out of school; then returned after a year

Sought waiver of eight-semester rule (not age)

IHSAA denied request Kid and school sued ISHAA: student excluded by

passage of time, not disability

Washington v. Indiana HSAA, 31 IDELR 6 (7th Cir. 1999)

7th Cir:• Waiver would be reasonable• Disproportionate impact • Waiver would fundamentally

alter; had waived in past• student would suffer irreparable

harm “by virtue of lost academic desire”

Lyon v. Ill. HSA, 60 IDELR 161 (N.D. ILL. 2013)

High wrestler with ADHD and bipolar disorder

Challenged eight-semester rule his senior year

Granted TRO Injunction denied by different

judge 15 days later


Student wrestled 4 years in a row Initial request for waiver relied on

financial and personal problems, and not disability

Distinguished Washington because here student didn’t miss a whole year


“[I]f the Court were to allow Matthew to wrestle for a fifth year, despite the fact that he has already wrestled for four years, this would in effect be granting a privilege to Matthew that other students, disabled or not, do not enjoy. This belies the purpose of the ADA.”

Granted TRO Injunction denied 15 days later e could show that but for his

disability, he would have been eligible to play sports in his junior year. That student dropped out of school for a full year. Unlike the athlete in Washington, in addition to wrestling three full seasons in 9th, 10th, and 12th grades, this student wrestled for four months during his junior year until he became academically ineligible to continue. Thus, regardless of the teen's disability, the IHSA's four-year rule made him ineligible to wrestle. Because the student, therefore, couldn't establish that he was "otherwise qualified" to participate in wrestling, the court denied his request for a preliminary injunction.


A school district may not operate its program or activity on the basis of generalizations, assumptions, prejudices or stereotypes about disability….

E.g. 1: coach who believes that all LD students would fail in actual game; decides never to play this student during games

Charlotte-Mecklenburg (NC) Schs, 113 LRP 18233 (OCR 2013)

MMR student in self-contained SpEd Program (SAC)

SAC students excluded from regular ed field trips

SAC students excluded from dances unless parents chaperoned


Field Trips• SAC students went on numerous

trips designed for them• No evidence re SAC

participation in gen. ed. trips• Parent didn’t respond to request

for info• OCR: school warned


Dances• SAC students could not attend

without parent • School must provide supervision• SAC-specific dance not enough• Fear of harassment insufficient

reason to exclude • Found violation


School district that offers extracurricular athletics must do so in a matter that is necessary to afford qualified students with disabilities an equal opportunity for participation

This means making reasonable modifications

May adopt bona fide safety standards

In considering whether a modification is necessary, school must engage in “individualized inquiry” to determine whether the modification is necessary.

“If modification is necessary, the school must allow it unless doing so would result in a fundamental alteration of the nature of the extracurricular athletic activity.”


If a specific modification would constitute a fundamental alteration, the school district would still be required to determine if other modifications might be available that would permit the student’s participation

E.g.2: hearing impaired track student entitled to visual cue, regardless of concern for other runners


Student had panic attacks Participated in swim team Parents requested that she be

allowed to leave the pool during practice and competitions

S.S. v. Whitesboro Cent. Sch. Dist.. 58 IDELR 99 (NDNY 2012)

Court: There is no reasonable accommodation that a swim team coach could make for an athlete who is suddenly and sporadically afraid of the water and thus has to exit the pool during practices and competitions


Ability to enter and stay in the pool is an essential requirement of being a swim team member

Allowing the student to do otherwise would fundamentally alter the nature of the swim team program


Northshore Sch. Dist.48 IDELR 199 (OCR 2006)

• Cheerleader fell below 2.8 GPA• School policy deemed her ineligible• Parents claimed discrimination• OCR focused on 2 issues‾ Was GPA policy a necessary

function for cheerleading?‾ Would modifying the policy

“fundamentally alter” program?

OCR:• Not necessity: 2.8 Minimum was

arbitrary, higher than athletic requirement

• Fund. Alter: 2 other district H.S.’s considered exceptions, and student was in regular ed. classroom; disab. affected grades

Northshore Sch. Dist.48 IDELR 199 (OCR 2006)

E.g.3: swimmer with one hand; two-hand touch; • OCR would find that one-handed touch

would not fundamentally alter• Even if it did constitute a fundamental

alteration, school district would be required to consider other modifications

E.g.4: diabetic in after school gymnastics club


Badgett v. Alabama HSAA,

High school student with cerebral palsy sought to race wheelchair in interscholastic track events

AHSAA• modification would fundamentally alter

activity • Concerns re administration and fairness

to other students

Badgett v. Alabama HSAA,

Court: ruled for AHSAA• [The student] is asking the court to

equate wheeling with running and jumping despite the fact that wheeling is a distinct discipline. • To eliminate running and jumping . . .

would fundamentally alter the nature of the…activity.

Raytown (MO) C-2 Sch Dist,

6 year old with autism Parent wanted him to stay in

aftercare program Program excluded students who

required toileting assistance, a separate location due to behavioral issues, and one-to-one assistance


District: having additional assistance available for BD students fundamentally altered the program

OCR district's rationale a pretext for discrimination


Adding “supervision and services does not fundamentally alter the nature of a program designed to provide supervision for children,"

Children with disabilities cannot be categorically excluded from voluntary day care programs run by public school districts


FN 17: Although a school district may also raise the defense that a needed modification . . . would constitute an undue burden to its program. . . such a defense would rarely, of ever, prevail in the context of extracurricular athletics

Neither fundamental alteration nor undue burden a defense under IDEA (IDEA slides at the end)

High school student with cerebral palsy, ADHD, ODD, other disabilities

Student’s IEP included transition goal of participating in extracurricular and community activities

Maple Lake Sch. Dist.108 LRP 21568 (Minn. SEA 2007)

IEP team offered to introduce student to basketball coach and invited him to help out as team manager

Coach included; student successful Student was not allowed to travel on the

team bus to away games Per District policy, only competing

athletes were allowed to ride bus to away games


ALJ found that District took appropriate steps to provide extracurricular services and activities to student as necessary to afford him an equal opportunity for participation in those services and activities

District not required to transport to away games because was receiving benefit from home games



Students who cannot participate in the existing extracurricular athletics program should still have an equal opportunity to receive the benefits of extracurricular athletics

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."

IDEA• IEP must include‾ Statement of services and aids‾ Program modifications‾ With specific reference to

participation in extracurricular and nonacademic activities

‾ NOT required to be tied to FAPE

IDEA• IEP team must‾ Consider supplementary aids,

support, modifications‾ Afford children with disabilities

an equal opportunity to participate

IDEA• IEP team must‾ “[Ensure] that each child with a

disability participates with nondisabled children . . . to the maximum extent appropriate to the needs of the child.”

5th-grader autism & Tourette syndrome Parents requested supplementary aids and

services for student to participate in extracurricular/nonacademic activities: • adult supervision after the activity until Student

could be picked up• access to cell phone during the activity• ability to miss some games/practices to manage

health concerns/stress

Ind Sch Dist 12,v. Minn Dep Ed (Minn. 2010)

ED held that district violated IDEA by failing to convene an IEP meeting to discuss supplementary aids/services

App. Ct upheld ED’s decision in part, but held that IEP need only include supplementary aids/services necessary for participation in activities required for the child’s education


Minnesota Supreme Court reversed in part, holding that an IEP’s contents are not restricted to extracurricular/nonacademic activities required to educate a student


Minn. Sup. Court reasoned:“Requiring disabled students to prove an educational benefit, when nondisabled students need not, does not afford disabled students an equal opportunity to participate in extracurricular and nonacademic activities. Thus, the court of appeals’ holding violates the ‘equal opportunity’ for participation in extracurricular and nonacademic activities required by the plain language of section 300.107.”


6th grader with autism IEP encouraged but didn’t incorporate

extracurriculars School doesn’t provide transportation

for extracurriculars Parents sued for extracurriculars and

transportation in IEP

South Plainfield BOE113 LRP 16932 (NJ 2013)

Hearing Officer:•No evidence that extracurriculars

necessary for meaningful educational progress• Student receiving socialization during

school day• Student receiving FAPE

South Plainfield BOE113 LRP 16932 (NJ 2013)

New Legal Issues Related to Disabled Students and Activities

Karen HaaseHarding & Shultz

(402) [email protected]

H & S School Law@KarenHaase

Extracurriculars and Disabled Students

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