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'Significant Guidance' on Student Athletes with Disabilities

JURIST Guest Columnist Perry A. Zirkel of Lehigh University says the US Department of Education's Office of Civil Rights' latest "Dear Colleague" letter, like its predecessor concerning bullying, serves primarily as a public reminder and reinforcement of a current priority rather than an expansion of legal requirements....

On January 25, 2013, the US Department of Education's Office for Civil Rights (OCR) issued a designated "significant guidance document" [PDF] specific to students with disabilities in extracurricular athletics. On the one hand, Chief Executive Terri Lakowski of Active Policy Solutions touted this "Dear Colleague" letter — which OCR addressed to school districts across the country — as representing "a landmark moment for students with disabilities" on par with what Title IX did for females in relation to interscholastic athletics and providing a "level of clarity [that] has been missing for years." On the other hand, some school district representatives engaged in noisy hand-wringing about OCR's message about supposed fiscal and administrative hardships, especially with regard to the avowed requirement for separate teams for students with disabilities.

The import of this latest OCR letter, as with many legal pronouncements, differs widely depending on the multiple perspectives in our national community. I offer here a brief analysis that fits within the intermediate range of neutral perspectives, with the understanding that acceptance as truly impartial defies the impassioned and adversarial views that such legal developments stimulate.

The OCR letter consists of three substantive parts after a brief introduction. The first part reminds districts that their programs and activities may not operate "based on generalizations, assumptions, prejudices, or stereotypes about disability generally, or specific disabilities in particular." Although Section 504 of the Rehabilitation Act of 1973, which is very brief, and the few pages of regulations for preschool, elementary and secondary education do not specifically address this point, it certainly squares with the purposes of the law. Indeed, Section 504's sister statute, the Americans with Disabilities Act (ADA), includes countering stereotypical assumptions as one of its stated purposes. Moreover, the single example that OCR provides in this part, which concerns a member of high school lacrosse team with a learning disability (LD) who does not get to play in any of the games solely because of the coach's knee-jerk perception about LD is cogent, albeit rather obvious.

The second substantive section emphasizes equal opportunities for participation in extracurricular activities, including making reasonable modifications and providing necessary aids and services. The cited judicial support is limited to two of the Supreme Court's Section 504 decisions, and the cited Section 504 regulations provide only indirect and incomplete support. Nevertheless, the specified systematic steps for an individualized inquiry — including whether the modifications and related aids/services are necessary and, if so, reasonable as compared with fundamental alterations — largely fits with the applicable litigation to date. The absence of the Supreme Court's decision in PGA Tour, Inc. v. Martin and the minimization of the alternative defense of undue hardship are likely due to OCR's enforcement posture. Similarly, the three examples that OCR provided in this part have partial, albeit uncited support in the Section 504 case law.

The final part of the letter discusses providing and arranging for separate or different opportunities for students with disabilities. The controversy concerning this section is largely ill-founded. First, OCR purposefully used language of recommendation, not requirement. The cited relevant federal policy for "significant guidance documents" prohibits the use of mandatory language where not describing a statutory or regulatory requirement. Second, OCR made clear that this encouraged option only applies as a last resort — specifically, only after exhausting the preceding equal opportunities steps. Thus, it only applies to students with disabilities for whom the district cannot fully and effectively meet their interests and abilities.

As an overall matter, certain concluding observations are in order. First, OCR's interpretations here and elsewhere are based largely on the Section 504 regulations with the relatively affirmative stance of a civil rights administering agency. In contrast, the courts have relied much more on the Section 504 and ADA legislation and prior pertinent case law, with generally less plaintiff-friendly outcomes. Second, this document only gives peripheral attention to interscholastic athletic associations, whereas these associations have been the defendants in most of the relevant court decisions to date. Third, this OCR document, like other such policy interpretations, signals the priorities and perspectives of the agency but is not binding on the courts. To the extent that its interpretations do not square with judicial precedents, they are not likely to have a significant effect on future litigation outcomes, but they will have a significant effect on OCR's complaint resolution and compliance review process.

In sum, OCR's latest "Dear Colleague" letter, like its predecessor concerning bullying, serves primarily as a public reminder and reinforcement of a current priority. It represents a positive and proactive use of the bully pulpit to stimulate reform in a normative direction, not as a dramatic expansion of legal requirements. Its characterization as a model of clarity only applies with careful qualifications. In addition to the aforementioned distinctions, the necessary qualifiers include the understanding that an individualized inquiry, the determination of essential eligibility requirements and the boundary between reasonable modifications, fundamental alterations or undue hardship are all clearly applicable and inevitably unclear. Similarly, the analogy to Title IX can only be limited, because (1) disability and gender do not present the same situation for extracurricular athletics or other educational opportunities; (2) concepts of reasonable modifications, related services/aids, and integrated v. separate teams apply differentially to them; and (3) Title IX has extensive regulations concerning this issue, whereas Section 504 does not. OCR's latest letter may purport to offer "significant guidance," but not as either of the two sides of the issue have characterized it.

Perry A. Zirkel is University Professor of Education and Law at Lehigh University. His research includes empirical and practical studies of special education law, with secondary attention to more general education law and current labor arbitration issues.

Suggested citation: Perry A. Zirkel, "Significant Guidance" on Student Athletes with Disabilities, JURIST - Forum, Mar. 15, 2013, http://jurist.org/forum/2013/03/perry-zirkel-student-athletes.php

This article was prepared for publication by Ben Klaber, a senior editor for JURIST's academic commentary service. Please direct any questions or comments to him at academiccommentary@jurist.org

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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