Know Your Rights: Disability in Sports

OVERVIEW

The Office for Civil Rights (OCR) of the U.S. Department of Education issued a Dear Colleague Letter on January 25, 2013 clarifying elementary, secondary, and postsecondary level schools’ responsibilities under the Rehabilitation Act of 1973 (Rehab Act) to provide extracurricular athletic opportunities for students with disabilities.[1] The guidance clarifies when and how colleges and universities must include students with disabilities in mainstream intercollegiate athletics programs, defines what true equal treatment of student athletes with disabilities means, and urges and provides a road map for schools to create adapted intercollegiate athletics programs for students with disabilities.

The Office for Civil Rights (OCR) Dear Colleague Letter on January 25, 2013 is not a new mandate, but a clarification of the existing regulations and statue under the Rehabilitation Act of 1973 (Rehab Act) to provide interscholastic, club, and intramural athletics for students with disabilities.[2] The Rehab Act protects the rights of students with disabilities from discrimination in educational programs and activities in colleges and universities. The Rehab Act requires that students with disabilities be provided equal opportunity for participation in interscholastic, club, and intramural athletics programs offered or sponsored by a school. To better understand the obligations of institutions with respect to interscholastic athletics for students with disabilities, it is helpful to review the Rehab Act’s requirements.

THE REHABILITATION ACT OF 1973

Under the Rehab Act, an institution is required to provide a qualified student with a disability an opportunity to benefit from the institution’s athletics program equal to that of students without disabilities. Generally, to establish an institution has denied an athlete equal opportunity under the Rehab Act, an athlete with a disability must establish that: (a) He/She has a disability; (b) He/She is otherwise qualified to participate in the athletics program, activity, or benefit in question; (c) He/She was excluded from the athletics program, activity, or benefit solely on the basis of the disability; and (d) This denial was discriminatory because He/She could not be accommodated with reasonable accommodations.

A. ATHLETE WITH A DISABILITY

For purposes of the Rehab Act, a person with a disability is one who (1) has a physical or mental impairment that substantially limits one or more major life activities or major bodily functions; (2) has a record of such an impairment; or (3) is regarded as having such an impairment.[3]

The central inquiry under this framework is whether or not the impairment impacts a major life activity. Major life activities include performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, working, and caring for oneself plus school-related activities such as learning, reading, concentrating, thinking, and communicating. Major life activities also include major bodily functions including functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions. The coverage is quite broad, but the coverage does not include impairments of a temporary nature, so an impairment that impacts a student or is expected to impact a student for six months or less would not be considered a disability under 504. For the student athlete, the courts have held that participation in sports is not a major life activity as defined by the Rehab Act.[4] Therefore, in order for a student athlete to qualify as having a disability, the disabling condition must impact areas of his or her life beyond sports.[5]

B. OTHERWISE QUALIFIED

In addition to demonstrating the existence of a disability to establish a case of discrimination under the Rehab Act, an athlete also must demonstrate that he or she is otherwise qualified to participate in the interscholastic athletics program.[6] With regard to educational programs, the term “qualified” means that the student is capable of fulfilling the essential functions and requirements of the program, with or without the provision of “reasonable modifications”. For the student athlete, this means that he or she must prove that he or she is qualified to participate in interscholastic athletics programs before we take into consideration whether his or her disability is a factor in participating.[7] Thus, with or without reasonable accommodations, student-athletes with disabilities must meet the essential eligibility requirements for participation in school interscholastic athletics.[8]

C. EXCLUDED BECAUSE OF DISABILITY

To demonstrate discrimination under the Rehab Act, an athlete must demonstrate that he or she is excluded from participation in an institution’s athletic programs on the basis of his or her disability. A coach ultimately determines the roster for the team, and thus legitimate non-discriminatory factors, such as insufficient skill level, skill development, bad team chemistry or other performance-based criteria, could explain grounds for a denial. However, where the exclusion is made solely on the basis of disability, it could be grounds for a discrimination claim under the Rehab Act.

D. DISCRIMINATORY EXCLUSION

Finally, to establish a case of discrimination under the Rehab Act, a student athlete must demonstrate that his or her exclusion from the institution athletic program was discriminatory. Generally, exclusion is discriminatory when the student athlete could have participated in the interscholastic athletics program with reasonable accommodations.

What constitutes a reasonable accommodation in the context of athletics has been the subject of much discussion and debate. The January 2013 Dear Colleague Letter helps answer these questions.

SUMMARY OF OCR DEAR COLLEAGUE LETTER

A. ENSURE EQUAL OPPORTUNITY FOR PARTICIPATION

The Dear Colleague Letter clarifies that in order to include students with disabilities to the fullest extent possibly in mainstream interscholastic athletics programs, institutions must provide reasonable accommodations upon the request of a student with a disability. This may include the modification of existing policies, practices, or rules.

An accommodation is considered reasonable under the law if it is necessary for the student to be able to participate and the modification or waiver of the policy, practice, or rule would not fundamentally alter the nature of the sport or activity. A modification of a competition rule would be fundamental and therefore not reasonable if:

The modification changes the essential nature of the sport or activity[9], or
Gives the person with a disability a competitive advantage over non-disabled competitors.[10]

In making determinations of requested accommodations, the athletic program must conduct an individualized assessment of a student with a disability to determine whether the requested modification given the student’s individual circumstances would be a fundamental alteration. An individualized assessment means that the Institution will evaluate a student with a disability based on the specific nature of their disability and the specific accommodations they need to participate in sport program.[11]

Additionally, to provide for equal opportunities, the interscholastic athletics program must conduct individualized assessments of a student with a disability to determine how they can modify existing policies, practices or rules in order to include a student with a disability in the athletic programming.[12]

B. OFFERING SEPARATE OR DIFFERENT ATHLETIC OPPORTUNITIES

In addition to the provision of equal access to services in mainstream programs, the Dear Colleague Letter further clarifies that institutions should expand opportunities for students with disabilities such as adding separate events within existing sports or creating adapted programs for students with disabilities who cannot participate in the mainstream athletic programs even with reasonable accommodations. These expanded opportunities must be offered and supported using non-discriminatory criteria for distribution of resources as the institution’s mainstream athletic programs.

C. GRIEVANCE PROCEDURES AND PROHIBITION OF GENERALIZATIONS AND STEREOTYPES

The Dear Colleague Letter further highlights that an educational institution may not operate its program or activity on the “basis of generalizations, assumptions, prejudices, or stereotypes about disability generally, or specific disabilities in particular.”[13] Institutions cannot rely on generalizations of what students with disabilities are capable of to determine their participation in sports. Coaches must use the same criteria for determining playing time of students with disabilities as for students without disabilities.

Additionally, the Dear Colleague Letter requires institutions create grievance procedures to provide due process and the quick resolution of student’s complaints under the Rehab Act. [14]

Addendum A: DEFINITIONS

(1) “Student with a disability” refers to a student who meets the definition of a person with a disability as defined by the Rehabilitation Act of 1973 or, where state law provides a broader definition of disability than does the Rehabilitation Act, a student who meets the definition of a person with a disability under state law. This definition is applicable to various disabilities and can include students who are deaf or hard of hearing, students with autism, students with orthopedic impairments such as cerebral palsy or spina bifida, students with intellectual disabilities, and students with other disabilities.[15]

(2) “Athletic programs” means any athletic activity held on the premises of or sponsored by any educational institution receiving federal funds. Athletic programs include varsity, club and intramural squads.

(3) “Mainstream athletic programs” refers to athletic and sport activities that are developed and offered by a school at the interscholastic, club or intramural level. A student with a disability shall have the opportunity to try out to participate in mainstream athletic programs with or without an accommodation.

(4) “Adapted athletic programs” means athletic programs that are specifically designed and developed for students with disabilities. These programs may contain certain policies and specific rules to permit the participation of those without disabilities alongside students with disabilities.

(5) “Allied Sports” means athletic programs that are specifically designed and developed to combine and include groups of students with and without disabilities together.

(6) “Unified Sports” is a trademark of Special Olympics International and includes sport activities that match student-athletes with intellectual disabilities with student-athletes without intellectual disabilities.

(7) Varsity Athletic Programs refers to athletic programs developed and operated by a school athletic department or office designed to provide competitive sport participation opportunities for the student population. Selection for such teams may be based on athletic skill and performance, but the opportunity is available to all students.

(8) Club Sports or Athletic Programs refers to athletic activities developed and operated by a recognized student organization at a school, which is designed to promote and develop interest in a particular sport or physical activity. Club sports may be instructional, non-competitive, or competitive.

(9) Intramural or Club Recreational Programs refers to a wide-range of athletic activities, physical activities, and wellness activities developed and operated by a school offered to the entire student population as an integral part of the educational experience. Intramural programs may be instructional, non-competitive, or competitive.

Addendum B: REFERENCES

[1] “Dear Colleague Letter.” Office for Civil Rights. January 24, 2013. (retrieve at http://www2.ed.gov/about/offices/list/ocr/docs/dcl-factsheet-201301-504.html).

2 42 U.S.C. § 12102 (2008), referenced in 29 U.S.C. § 705(20)(B) (2000).

[4] For example, in Knapp v. Northwestern University, the Court of Appeals for the Seventh Circuit held that Northwestern University did not violate the Rehab Act when it prohibited a student with a heart condition from playing intercollegiate basketball.[4] The court held that the student did not meet the definition of disability under the Rehab Act because his heart condition only limited his eligibility to participate in intercollegiate athletics, which was not a major life activity.

[5] For example, athletes with mobility impairments, like prostheses, or significant learning disabilities most likely would qualify as having a disability under the statute because their disabling condition impacts a major life function, (e.g. walking, learning, etc.) beyond participation in sports.

[6]See 42 U.S.C. § 12131(2) (2000) (defining “qualified individual with a disability”).

[7] For example, a student with a disability (e.g. diabetic) who decided during her 5^th year of college that she wanted to try-out for the softball team would not be otherwise qualified since her 4 year eligibility time period had expired. Thus, even though she does have a disability, she is not otherwise qualified for the athletics program, thus, her disability is a not a factor in excluding her from participation. Another example would be a student with ADHD tries out for the men’s basketball team but cannot dribble or shoot, he would not be otherwise qualified for the program.

[8] Se. Cmty. Coll. v. Davis, 442 U.S. 397, 405 (1979). While the “mere possession of a handicap is not a permissible ground for assuming an inability to function,” the Supreme Court has held that a school may require an individual with a disability to possess “reasonable physical qualifications” to participate in an educational program.

[9] Whether a rule is an essential rule must be determined on a case by case basis. Simply because a rule seems to be a substantively defining rules of competition, that does not make the rule an essential rule that if modified would fundamentally alter the nature of the sport or activity.

The PGA Tour’s rule that competitors must walk the golf course during play was not considered essential to the game of golf (even though it was a substantive rule defining aspects of the competition) because the game of golf test’s ones shot making skills, not walking skills. Walking was not essential to the game of golf even though the PGA thought it was an important rule for their competition. Similarly, permitting wheelchair racers to race alongside (not in competition with) other track athletes does not fundamentally alter an essential aspect of racing which is to cover a certain distance and reach the finish line in the fastest time possible.

[10] The burden is on the institution to prove that waiver of the rule under the individual circumstances of the student with a disability would give him or her a competitive advantage. For example, an amputee swimmer who requested to wear a prosthetic fin during swim competitions would have a competitive advantage over the swimmers without disabilities.

10 Ideally, these assessments can be done informally between a student athlete and coach in order to best address how to integrate them into play. (It is recommended where these accommodations are provided, coaches share documentation of the accommodation with the athletic director)

[13] Dear Colleague Letter.

[14] An institution’s commitment to fairness and inclusion are integrated into these two requirements of the Dear Colleague letter. Fairness provides for notice to students with disabilities of our responsibilities under Section 504, the individual assessment, and an established grievance and appeal procedure. Inclusion provides for avoiding stereotypes, generalizations, and paternalistic notions of abilities, and instead creating a culture where opportunity is available to every student equally.

[15] For additional information on the definition of disability see OCR’s 2012 Dear Colleague Letter and Frequently Asked Questions Document at www.ed.gov/ocr/letters/colleague-201109.html and www.ed.gov/ocr/docs/dcl-504faq-201109.html.