Word reminder USDE to students with disabilities (Part III)

III. Ensure Equal Opportunity for Participation
A school district that offers extracurricular athletics must do so in such manner as is
necessary to afford qualified students with disabilities an equal opportunity for
participation.13 This means making reasonable modifications and providing those aids
and services that are necessary to ensure an equal opportunity to participate, unless the
school district can show that doing so would be a fundamental alteration to its
program.14 Of course, a school district may adopt bona fide safety standards needed to
implement its extracurricular athletic program or activity. A school district, however,
must consider whether safe participation by any particular student with a disability can
be assured through reasonable modifications or the provision of aids and services.15


Students with disabilities in extracurricular athletics
Schools may require a level of skill or ability for participation in a competitive program
or activity; equal opportunity does not mean, for example, that every student with a
disability is guaranteed a spot on an athletic team for which other students must try out.
A school district must, however, afford qualified students with disabilities an equal
opportunity for participation in extracurricular athletics in an integrated manner to the
maximum extent appropriate to the needs of the student.16 This means that a school
district must make reasonable modifications to its policies, practices, or procedures
whenever such modifications are necessary to ensure equal opportunity, unless the
school district can demonstrate that the requested modification would constitute a
fundamental alteration of the nature of the extracurricular athletic activity.
In considering whether a reasonable modification is legally required, the school district
must first engage in an individualized inquiry to determine whether the modification is
necessary. If the modification is necessary, the school district must allow it unless doing
so would result in a fundamental alteration of the nature of the extracurricular athletic
activity. A modification might constitute a fundamental alteration if it alters such an
essential aspect of the activity or game that it would be unacceptable even if it affected
all competitors equally (such as adding an extra base in baseball). Alternatively, a
change that has only a peripheral impact on the activity or game itself might
nevertheless give a particular player with a disability an unfair advantage over others
and, for that reason, fundamentally alter the character of the competition. Even 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.


—Students with disabilities in extracurricular athletics
To comply with its obligations under Section 504, a school district must also provide a
qualified student with a disability with needed aids and services, if the failure to do so
would deny that student an equal opportunity for participation in extracurricular
activities in an integrated manner to the maximum extent appropriate to the needs of
the student.17
Example 2: A high school student has a disability as defined by Section 504 due to a
hearing impairment. The student is interested in running track for the school team. He
is especially interested in the sprinting events such as the 100 and 200 meter dashes. At
the tryouts for the track team, the start of each race was signaled by the coach’s
assistant using a visual cue, and the student’s speed was fast enough to qualify him for
the team in those events. After the student makes the team, the coach also signals the
start of races during practice with the same visual cue. Before the first scheduled meet,
the student asks the district that a visual cue be used at the meet simultaneously when
the starter pistol sounds to alert him to the start of the race. Two neighboring districts
use a visual cue as an alternative start in their track and field meets. Those districts
report that their runners easily adjusted to the visual cue and did not complain about
being distracted by the use of the visual cue.
After conducting an individualized inquiry and determining that the modification is
necessary for the student to compete at meets, the district nevertheless refuses the
student’s request because the district is concerned that the use of a visual cue may
distract other runners and trigger complaints once the track season begins. The coach
tells the student that although he may practice with the team, he will not be allowed to
participate in meets.


Students with disabilities in extracurricular athletics
Analysis: OCR would find that the school district’s decision violates
Section 504.
While a school district is entitled to set its requirements as to skill, ability,
and other benchmarks, it must provide a reasonable modification if
necessary, unless doing so would fundamentally alter the nature of the
activity. Here, the student met the benchmark requirements as to speed
and skill in the 100 and 200 meter dashes to make the team. Once the
school district determined that the requested modification was
necessary, the school district was then obligated to provide the visual cue
unless it determined that providing it would constitute a fundamental
alteration of the activity.
In this example, OCR would find that the evidence demonstrated that the
use of a visual cue does not alter an essential aspect of the activity or give
this student an unfair advantage over others. The school district should
have permitted the use of a visual cue and allowed the student to
compete.
Example 3: A high school student was born with only one hand and is a student with a
disability as defined by Section 504. This student would like to participate on the
school’s swim team. The requirements for joining the swim team include having a
certain level of swimming ability and being able to compete at meets. The student has
the required swimming ability and wishes to compete. She asks the school district to
waive the “two-hand touch” finish it requires of all swimmers in swim meets, and to
permit her to finish with a “one-hand touch.” The school district refuses the request
because it determines that permitting the student to finish with a “one-hand touch”
would give the student an unfair advantage over the other swimmers.
Analysis: A school district must conduct an individualized assessment to
determine whether the requested modification is necessary for the
student’s participation, and must determine whether permitting it would
fundamentally alter the nature of the activity. Here, modification of the
two-hand touch is necessary for the student to participate. In
determining whether making the necessary modification – eliminating
the two-hand touch rule – would fundamentally alter the nature of the
swim competition, the school district must evaluate whether the
requested modification alters an essential aspect of the activity or would
give this student an unfair advantage over other swimmers.


Students with disabilities in extracurricular athletics
OCR would find a one-hand touch does not alter an essential aspect of
the activity. If, however, the evidence demonstrated that the school
district’s judgment was correct that she would gain an unfair advantage
over others who are judged on the touching of both hands, then a
complete waiver of the rule would constitute a fundamental alteration
and not be required.
In such circumstances, the school district would still be required to
determine if other modifications were available that would permit her
participation. In this situation, for example, the school district might
determine that it would not constitute an unfair advantage over other
swimmers to judge the student to have finished when she touched the
wall with one hand and her other arm was simultaneously stretched
forward. If so, the school district should have permitted this modification
of this rule and allowed the student to compete.
Example 4: An elementary school student with diabetes is determined not eligible for
services under the IDEA. Under the school district’s Section 504 procedures, however,
he is determined to have a disability. In order to participate in the regular classroom
setting, the student is provided services under Section 504 that include assistance with
glucose testing and insulin administration from trained school personnel. Later in the
year, this student wants to join the school-sponsored gymnastics club that meets after
school. The only eligibility requirement is that all gymnastics club members must attend
that school. When the parent asks the school to provide the glucose testing and insulin
administration that the student needs to participate in the gymnastics club, school
personnel agree that it is necessary but respond that they are not required to provide
him with such assistance because gymnastics club is an extracurricular activity.
Analysis: OCR would find that the school’s decision violates Section 504.
The student needs assistance in glucose testing and insulin
administration in order to participate in activities during and after school.
To meet the requirements of Section 504 FAPE, the school district must
provide this needed assistance during the school day.
In addition, the school district must provide this assistance after school
under Section 504 so that the student can participate in the gymnastics
club, unless doing so would be a fundamental alteration of the district’s
education program. Because the school district always has a legal
obligation under IDEA to provide aids or services in its education program
to enable any IDEA-eligible students to participate in extracurricular

activities,18 providing these aids or services after school to a student with
a disability not eligible under the IDEA would rarely, if ever, be a
fundamental alteration of its education program. This remains true even
if there are currently no IDEA-eligible students in the district who need
these aids or services.
In this example, OCR would find that the school district must provide
glucose testing and insulin administration for this student during the
gymnastics club in order to comply with its Section 504 obligations. The
student needs this assistance in order to participate in the gymnastics
club, and because this assistance is available under the IDEA for
extracurricular activities, providing this assistance to this student would
not constitute a fundamental alteration of the district’s education
program.19