Because Section 504 covers public institutions, including schools, while the ADA applies to private organizations, most of the case law focuses on the former. Insofar as the individualized education programs of students covered by the Individuals with Disabilities Education Act (IDEA) may address extracurricular activities but do not mandate these students’ inclusion on teams, it has been subject to little litigation.
This column thus focuses on the two laws generating controversy, Section 504 and the ADA, along with litigation on their application, before offering policy recommendations on the rights of students with disabilities who wish to participate in sports.
Section 504 and the ADA
As noted, both Section 504 and the ADA obligate officials in programs receiving federal
financial assistance to provide reasonable accommodations for otherwise qualified students to participate in athletic events, meaning they can participate with these modifications. However, both laws grant officials three defenses to limit or avoid making accommodations for students.
First, officials need not make accommodations resulting in “a fundamental alteration in the nature of a program.” Second, educators do not have to make modifications that would impose “undue financial burdens on their budgets.” Third, officials can exclude otherwise qualified students from activities when their presence creates substantial risks of injuries to themselves or others. Because litigation has emerged in three key areas, age restrictions, transfer rules, and skill levels, the column highlights relevant litigation on these issues.
Section 504 and the ADA obligate officials in programs receiving federal financial assistance to provide reasonable accommodations for otherwise qualified students to participate in athletic events…
Litigation on age restrictions in sports has had mixed results. Under Section 504, the ADA, and IDEA, some courts ordered school boards and athletic associations to eliminate or consider waiving age limitations to allow older students who repeated grades due to their learning disabilities to participate because this was a common practice absent safety concerns.
Conversely, other courts upheld athletic association age restrictions designed to prevent teams with older students from having unfair competitive advantages and due to safety concerns. Yet other courts refused to extend eligibility to a fifth year, finding that the duration of competition rules are essential eligibility requirements.
Students who transfer or move solely to play on “better” teams are usually ineligible to participate for a year after the move/transfer. The Sixth Circuit, though, affirmed that when a student-athlete in Tennessee transferred to a nonpublic school solely to access needed special education services, his team’s ordered forfeiture of the games in which he played violated Section 504.
Not surprisingly, student-athletes must prove they are otherwise qualified to participate by meeting ability standards before receiving accommodations. A federal trial court in Indiana and the Seventh Circuit rejected a student’s Section 504 and IDEA claims when he was cut from his high school’s basketball team because he failed to prove he had the skill to participate. The Supreme Court refused to hear an appeal.
If students have the skills and are otherwise qualified to participate, officials must afford them reasonable accommodations. For instance, West Virginia’s highest court decided that under Section 504, a student with a hearing impairment who relied on the assistance of a sign language interpreter for academic subjects was entitled to the same help during her basketball games because she had trouble understanding the coach’s directions.
Policy writing and revising teams should include representatives of key constituencies such as the SBO, a board member, the board attorney, the athletic director, coaches, teachers, an administrator, a team doctor, a school nurse, a parent, and perhaps an upper-level high school student to ensure a variety of perspectives.
When accommodating students with disabilities, education leaders and policy-writing teams may wish to keep the following suggestions in mind. Policies should:
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Acknowledge that students can be denied accommodations imposing fundamental alterations like activities, causing undue financial burdens, and/or creating substantial risks of injuries to themselves or others.
Policies should be reviewed annually to ensure compliance with the latest updates in the law.