On January 24, 2013, the U.S. Department of Education began distributing a directive mandating that students with disabilities be included in sports programs or equal alternative options. Under this new directive, schools are required to make “reasonable modifications” for students with disabilities to allow them to participate in interscholastic athletic events. However, if those modifications would fundamentally alter a sport or give the student an unfair advantage, schools must create parallel athletic programs that have comparable standing to mainstream athletic programs. Also, while the directive is aimed at elementary and secondary schools, it unambiguously states that access to interscholastic, intramural and intercollegiate athletics is a right and its principles are applicable to institutions of higher education.
Education Secretary Arne Duncan, in a statement announcing the new directive, stated that “[s]ports can provide invaluable lessons in discipline, selflessness, passion and courage, and this guidance will help schools ensure that students with disabilities have an equal opportunity to benefit from the life lessons they can learn on the playing field or on the court.” Education Department officials state that the purpose of the directive is not to change sports traditions or mandate that spots on athletic teams be allocated to disabled students. Instead, the directive is only intended to enforce the principle that disabled students should not be excluded because of their disability. The U.S. Department of Education did not provide a deadline for schools to comply with this new directive.
On January 25, 2013, the U.S. Department of Education’s Office of Civil Rights held a conference call to discuss the new directive. Deputy Secretary of Education Seth Galanter stressed the following points:
- The goal of the directive is to increase disabled students opportunities and inclusion in athletic events;
- Individual assessments are necessary- no generalizations;
- If reasonable accommodations can be provided that do not change the nature of the game, schools and districts should go in that direction;
- Aids and services to disabled students that are provided during the school day should also be provided to students who participate after school in extracurricular athletic events;
- If it is not possible to include disabled students on athletic teams without creating an unfair advantage, schools and districts can look into combining students from different schools when formulating teams. Also, schools and districts are encouraged to look into creating unified teams (i.e. teams made up of male and female students); and
- Schools and state associations are still allowed to apply bona fide safety standards.
The new directive is consistent with efforts in several states that already offer such programs. In Maryland, a 2008 law requires schools to create equal opportunities for students with disabilities to play on traditional athletic teams. In Minnesota, state titles are awarded to disabled students in six sports. The Illinois High School Association has created special divisions for students with disabilities in more individualized sports such as swimming, bowling and track and field. The new directive aims at making programs like these available in all levels of education nationwide.
McGuireWoods will continue to monitor these developments and provide further updates as the U.S. Department of Education’s directive is more widely disseminated. For further inquiries regarding this new directive and guidance on implementing measures to comply with the directive, please contact any member of McGuireWoods’ Education Law Team.