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"Play Ball!" Understanding OCR's "Dear Colleague" Letter about Students with Disabilities in Athletics

Karen Haase Harding & Shultz (402) 434-3000 khaase@hslegalfirm.com H & S School Law @KarenHaase

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

 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

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 (1/25/13)

 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 issues

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

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

“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 or competitive program offered by a school district. . . .”

OCR’s Letter to NSBA (12/18/13)

Providing equal opportunity does not mean  Compromising student safety  Changing selective teams  Giving disabled students an unfair advantage  Changing elements affecting fundamental nature of the game

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

McDowell Schools 55 IDELR 82 (OCR 2010)

• 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)

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

“. . . 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”

OCR’s Letter to NSBA (12/18/13)

“… students with disabilities have to compete with everyone else and legitimately earn their place on the team.”

Pine-Richland (PA) School District 113 LRP 32050 (OCR 2013)

 Varsity hockey tryouts ‾ Club team, but school supported ‾ Student has Asperger's and anxiety disorder ‾ Great stats on JV junior year ‾ School psych called meeting to discuss student’s stress ‾ Didn’t make varsity team senior year

Pine-Richland (PA) School District 113 LRP 32050 (OCR 2013)

 Parents argued that coaches knew of prior issues and discriminated  OCR ‾ 13 of the 43 players who tried out were verified; 5 made the team ‾ Coaches used clear metrics and were unanimous ‾ No evidence of discrimination other than allegations

Marion County (FL) Sch. Dist.

37 IDELR 13 (OCR 2001)

 Student with unspecified disabilities trying out for cheerleading  Asked to videotape sponsor’s instructions and demonstrations  OCR: school must accommodate

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

 Legal obligation to comply with 504 “supersedes any rule of any association . . . 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

Columbus Public Sch. 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 Sch. 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, 181 F.3d 840 (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, 181 F.3d 840 (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 school wrestler with ADHD and bipolar disorder  Challenged eight-semester rule his senior year  Granted TRO  Injunction denied by different judge 15 days later

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

 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

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

“[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.�

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

 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

Blissfield (MI) Community Schools, 62 IDELR 95 (OCR 2013)

 Student with Angelman syndrome  Parent signed up for cheerleading tryouts (other activities discussed)  Coach did not • Contact over summer about conditioning • Notify of squad meetings • Notify of practices • Did contact every other student

Blissfield (MI) Community Schools, 62 IDELR 95 (OCR 2013)

 Coach • Contacted MS cheer sponsor who told coach student wouldn’t be attending HS • Article in local paper that student wasn’t attending full time  Numerous witnesses shared coach’s mistaken opinion  OCR found violation

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

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

 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

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

 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

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

 Schools that offer athletics must do so in a way that gives qualified students with disabilities an equal opportunity for participation  This means making reasonable modifications  May adopt bona fide safety standards

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

 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.”

OCR’s Letter to NSBA (12/18/13)

Individualized inquiry is key  “This does not necessarily mean that the Section 504 team…must convene….”  “What is called for is a reasonable, timely, good faith effort . . . To determine whether there are reasonable modifications. . .”

Mattituck-Cutchogue (NY) Union Free SD, 113 LRP 27884 (OCR 2013)

 Student with anxiety disorder • School had asked to evaluate for 504, parents declined • “informally accommodated” • Student signed up for DC trip • Student hospitalized for several weeks

Mattituck-Cutchogue (NY) Union Free SD, 113 LRP 27884 (OCR 2013)

 Student with anxiety disorder • School had asked to evaluate for 504, parents declined • “informally accommodated” • Student signed up for DC trip • Student hospitalized for anxiety • Principal wouldn’t let her go on trip upon her release from hospital

Mattituck-Cutchogue (NY) Union Free SD, 113 LRP 27884 (OCR 2013)

 OCR • School “regarded as” disabled • Student was excluded based on school’s perceptions about the Student's fitness to participate • Decision not made by “a group of knowledgeable persons”

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

 If a specific modification would constitute a fundamental alteration, district still must 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

S.S. v. Whitesboro Cent. Sch. Dist.

58 IDELR 99 (NDNY 2012)

 Student had panic attacks  Participated in swim team  Requested modification: to leave the pool during practice and competitions  Coach: doesn’t “get paid to baby-sit." could "tell when the student was faking”

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

S.S. v. Whitesboro Cent. Sch. Dist.

58 IDELR 99 (NDNY 2012)

 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)

 Student wanted to try out for cheer squad  GPA too low under school policy  OCR focused on 2 issues  Was GPA policy a necessary function for cheerleading?  Would modifying the policy “fundamentally alter” program?

Northshore Sch. Dist.

48 IDELR 199 (OCR 2006)

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

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

 E.g.3: swimmer with one hand; twohand touch; • One-handed touch would not fundamentally alter • Even if it did, school district would be required to consider other modifications  E.g.4: diabetic in after school gymnastics club

Badgett v. Alabama HSAA, 107 LRP 26900 (N.D. Ala. 2007)

 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, 107 LRP 26900 (N.D. Ala. 2007)

 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, 53 IDELR 239 (OCR 2009)

 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

Raytown (MO) C-2 Sch Dist, 53 IDELR 239 (OCR 2009)

 District: having additional assistance available for BD students fundamentally altered the program  OCR district's rationale a pretext for discrimination

Raytown (MO) C-2 Sch Dist, 53 IDELR 239 (OCR 2009)

 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

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

 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 an IDEA defense

Maple Lake Sch. Dist.

108 LRP 21568 (Minn. SEA 2007)

 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 bball 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

Maple Lake Sch. Dist.

108 LRP 21568 (Minn. SEA 2007)

 ALJ: • District took appropriate steps to provide extracurricular services and activities to student as necessary • District not required to transport to away games because student was receiving benefit from home games

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

 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

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

“. . . 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. . .”

OCR’s Letter to NSBA (12/18/13)

 “. . .the guidance urges school districts to create additional opportunities. . . . It is not OCR’s view that a school district is required to do so.”  If school district does create separate activities, they must be supported equally

Practical Pointers • • • • • • •

Make Individualized Decisions Be proactive Document Discussions Chose Your Words Wisely Include and Inform Staff Review Field Trips and Dances Be Aware of Community Opportunities

"Play Ball!" Understanding OCR's "Dear Colleague" Letter about Students with Disabilities in Athletics

Karen Haase Harding & Shultz (402) 434-3000 khaase@hslegalfirm.com H & S School Law @KarenHaase