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Leveling the Playing Field or Leveling the Players?

By: Kathleen A. Sullivan, Patricia J. Lantz, and Perry A. Zirkel

Schools are faced with a growing body of case law outlining the legal limits regulating the participation of students with disabilities in interscholastic sports. This article provides a systematic synthesis, including jurisdictional differences, of the agency and court rulings that apply Section 504, the Americans with Disabilities Act, and the Individuals with Disabilities Education Act to interscholastic athletics. This comprehensive framework also provides insight into how these federal statutes likely pertain to the participation of students with disabilities in other extracurricular activities. The article concludes with recommendations for prudent professional practice.

School personnel must understand and comply with a comprehensive framework of federal and state statutes and regulations addressing the rights of persons with disabilities. A pair of federal mandates, Section 504 of the Rehabilitation Act of 1973 (Section 504; 1994) and the Americans with Disabilities Act (ADA; 1994), extend school district responsibility and potential liability beyond special education to a wider segment of students and to extracurricular activities. In addition, Section 504 and the ADA prohibit districts from having relationships with organizations that discriminate against people with disabilities; therefore, schools must be aware of the conduct of entities with whom they have a contractual relationship. For example, many secondary schools belong to state athletic associations that have the responsibility for promulgating rules designed to promote fair athletic competition. Although perhaps not intentionally, these athletic associations' regulations sometimes exclude students with disabilities from participation. The published court cases to date have primarily focused on athletic associations; however, the analyses and outcomes from these cases provide practical lessons for school districts both on the playing field and in the classroom.

In a relatively extensive body of case law, the courts have split on the issue of students with disabilities' right to participate in interscholastic sports programs, with the majority upholding the rules of athletic associations. In contrast, the courts have tended to view more strictly school district polices and actions affecting students with disabilities. This article examines these cases for implications and applications to regular practice, particularly with regard to students with disabilities in extracurricular activities. The first part outlines the statutory framework governing students with disabilities' participation in interscholastic sports. The second part synthesizes the pertinent case law. Finally, the third part consists of recommendations for practice.

Statutory framework

A triad of federal statutes offers protection against discrimination to students with disabilities. The Individuals with Disabilities Education Act mandates and provides funding for certain special education services. Section 504 and the ADA are civil rights statutes that offer protection from discrimination and accommodations to individuals with disabilities.

Individuals with Disabilities Education Act

The Individuals with Disabilities Education Act (IDEA) applies to students ages 3 to 21 who are identified as eligible under 1 or more of 13 categories of disabilities. Generally, the IDEA requires schools to identify and provide a free appropriate education to eligible students. More specifically, the IDEA's regulations provide that school districts "shall take steps to provide nonacademic and extracurricular services in such manner as necessary to afford children with disabilities an equal opportunity for participation in those services and activities." Although the IDEA's language provides a potential basis to challenge exclusion of students with disabilities from participation in extracurricular activities, most such litigants have based their suits on Section 504, the ADA, or a combination of these two civil rights statutes.

Section 504

Section 504 applies to all agencies that receive federal funding thus including virtually every public school system in the United States. The relevant part of this statute provides that:

...no otherwise qualified individual with a disability ... shall, solely by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.

Its pertinent regulations reiterate the IDEA's extracurricular directive and add reinforcing language specific to athletics.

In a lawsuit under Section 504, students must prove four things. First, they must show that they have a disability as defined by the act. Both Section 504 and the ADA define persons as having a disability if they have a mental or physical impairment, or have a record of or are regarded as having such an impairment, that substantially limits a major life activity. Second, students must show that they are "otherwise qualified" to participate in interscholastic activities with, if necessary, "reasonable accommodations." This second element contains two legally complex terms that form the crux of most cases and, as such, are best understood in the context of actual cases. Accordingly, explanatory discussion is contained in the second section of this article. Third, students must show that the allegedly discriminatory organization has excluded the students from participation solely because of their disability. Finally, students must demonstrate that the defendant organization receives federal financial assistance (Dennin v. Connecticut Interscholastic Athletic Conference, Inc., 1996; Johnson v. Florida High School Activities Association, 1995). These four elements create the basic structure for Section 504 cases brought by students with disabilities.

ADA

Passed in 1990 to move beyond the prerequisite of federal financial assistance, the ADA not only duplicates Section 504's prohibition of discrimination by public entities but also prohibits disability discrimination by private entities that are places of public accommodation." The ADA contains three different sections, or "titles," that apply to different types of organizations. Title II of the ADA applies to public entities, such as school districts, and uses language virtually identical to Section 504's discrimination prohibition:

[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.

Title III of the ADA prohibits discrimination against individuals with disabilities by private entities that are "places of public accommodation," expressly including private schools. The significant language of Title III states that "[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations." To sue a covered entity successfully under either title of the ADA, under four-pronged frameworks much like Section 504, the primary essential elements that plaintiff students must prove are that they are "otherwise qualified" with, if necessary, reasonable accommodations; and that the entity impermissibly excluded the students because of their disability (Johnson v. Florida High School Activities Association, 1995; Pottgen v. Missouri State High School.)

Comparison

The most significant distinction among the three statutes is that the definition of disability in Section 504 and the ADA is much broader than that in the IDEA. For example, the IDEA is limited to 13 classifications, whereas Section 504 and the ADA extend to a wide array of impairments that limit learning or another major life activity. Similarly, the IDEA only covers students who require special education, whereas Section 504 and the ADA extend to certain students in general and higher education. Consequently, all students who qualify under the IDEA also fall within the antidiscrimination protections of Section 504 and the ADA, whereas all students who qualify under Section 504 and the ADA are not necessarily IDEA-eligible. For example, students with deafness are specifically covered by the IDEA and are also covered by Section 504 and the ADA because deafness is a physical impairment that substantially limits the major life activity of hearing. In contrast, students with asthma are not specifically covered by the IDEA 1. However, they are likely to be covered under Section 504 and the ADA because asthma is a physical impairment that may substantially limit the major life activity of breathing.

Similarly, a second major difference among the three statutes is the institutional scope of their coverage, causing students usually to bring suit under both Section 504 and the ADA. The students use this strategy to ensure that they activate all of the statutes that may impose legal requirements and liability on allegedly discriminatory organizations. Courts have uniformly rejected athletic association arguments that they are not covered by either Section 504 or the ADA (e.g., Dennin v. Connecticut Interscholastic Athletic Conference, Inc., 1996; Pottgen v. Missouri State High School Activities Association, 1994). Some courts have reasoned that the federal funds flowing to athletic associations through school districts, though they flow indirectly, are sufficient to subject them to the rules and regulations of Section 504 (Beatty v. Pennsylvania Interscholastic Athletic Association, 1996; Dennin v. Connecticut Interscholastic Athletic Conference, 1996; Pottgen v. Missouri State High School Activities Association, 1994; Sandison v. Michigan High School Athletic Association, Inc., 1994/1995). Several courts have reasoned that public schools delegate sufficient authority to state athletic associations to render the associations themselves instrumentalities of the state, thus requiring the associations to comply with the requirements made of public entities under Title 11 of the ADA (Dennin v. Connecticut Interscholastic Athletic Conference, Inc., 1996; Hoot v. Milan Area Schools, 1994; Johnson v. Florida High School Activities Association, 1995; Pottgen v. Missouri State High School Activities Association, 1994; Sandison v. Michigan High School Athletic Association, Inc., 1994-1995). Alternatively, at least one court has found that athletic associations provide public accommodations by managing and sponsoring athletic competitions and tournaments, thus bringing them under Title III of the ADA (Dennin v. Connecticut Interscholastic Athletic Conference, Inc., 1996). Although differing on the analysis and perhaps the applicable statute, all courts have found athletic associations to fall within the provisions of either Section 504 or the ADA.

A third major difference between the IDEA and Section 504/ADA lies in the places or legal forums available to individuals seeking a remedy. Under the IDEA, there is only one route by which to pursue a remedy, and it is relatively narrow. More specifically, students must typically first pursue a due process hearing (Hall v. Atlanta Public School System, 1997). Due process hearings occur in administrative forums, not courts, overseen by an impartial decision maker. In legal terms, students generally are required to "exhaust" the remedy of due process before resorting to court action. Whether at the hearing or court level, legally technical boundaries govern students' abilities to raise a claim regarding interscholastic athletics under the IDEA. In an unpublished opinion, a federal district court held that when a student's IEP includes participation in interscholastic athletics, this IEP provision creates a right protected by the IDEA to the extent that it entitles the student to pursue a due process hearing (TH. v. Montana High School Association, 1992). Confirming this view, a state appellate court in the same jurisdiction concluded that when interscholastic participation was not in the student's IEP, the student had no recourse under the IDEA (J.M. v. Montana High School Association, 1996).

Alternatively, one hearing officer found a student's participation in interscholastic athletics to be within his jurisdiction if the student demonstrated either that "his IEP included football as a part of his educational placement or that he needed to participate in football to benefit from his education and that the District's failure to allow him to do so denied him an appropriate education" (Hacienda La Puente Unified School District 1997). This decision provides another narrow avenue to IDEA protection. Thus, a student with a disability faces a steep uphill slope to pursue participation in interscholastic athletics under the IDEA; expressing this right in an IEP is unusual and entitles the student to a hearing only, not necessarily to prevailing. In the absence of such IEP language, proving that participation in interscholastic athletics is necessary to benefit from otherwise adequate special education imposes a heavy legal burden.

In contrast, under Section 504 and Title II of the ADA, students have the right to request a due process hearing, seek judicial review, and file a complaint with the Office for Civil Rights (OCR). OCR evaluates students' complaints, conducts further investigations when warranted, and ultimately can take steps to terminate federal funding if it finds significant violations, such as egregious systemic discrimination. The usual result of an OCR investigation is a letter of finding that explicates and confirms the negotiated resolution of the case. A comparable administrative remedy via the attorney general is available to complainants under Title III of the ADA. Based on the broader coverage of institutions, students, and issues, Section 504 and the ADA have provided the basis for most suits challenging athletic association rules. Most of the published decisions to date have been issued by courts and, to a lesser extent, by OCR.

Case law synthesis

Under Section 504 and the ADA, students challenging exclusion from interscholastic athletics under either statute usually find that their cases hinge on the same key elements: (a) They are otherwise qualified to participate in the programs; and (b) the waiver of the contested rule is a reasonable accommodation (Johnson v. Florida High School Activities Association, 1995; Sandison v. Michigan High School Athletic Association, Inc., 1994).

Under Section 504, neither the regulations nor the statute provide a definition of "otherwise qualified." In the landmark case from the higher education context, the Supreme Court established that an "otherwise qualified individual" is "one who is able to meet all of a program's requirements in spite of his [disability]" (Southeastern Community College v. Davis, 1979, p. 406). The ADA codified this interpretation in its definition, which reads, "an individual with a disability who with or without reasonable modifications to rules, policies, or practices ... meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity." Despite the apparent clarity of this definition, the cases discussed below demonstrate how courts differ in their application of this standard depending on the specific athletic association rules and the accompanying individual facts.

The otherwise qualified individual standard is closely intertwined with the second factor critical to a student's case, that the student's requested exception is a "reasonable accommodation." The Supreme Court has interpreted reasonable accommodations as those that do not require organizations "to lower or to effect substantial modifications of standards to accommodate" students with disabilities (Southeastern Community College v. Davis, 1979, p. 413) and that do not "impose undue financial and administrative burdens or require a fundamental alteration in the nature of the program" (School Board of Nassau County v. Arline, 1987). The pertinent case law is synthesized below in terms of the type of rule.

Age-19 rules

Age-19 rules exclude students who turn 19 before some designated date, usually the start of school, from participating in interscholastic activities. As a result of repeating grades, many students with disabilities are older than their classmates and often over 18 by their last year in high school. The athletic associations have uniformly argued that the age rule is essential because it serves three purposes:

  1. to ensure the safety of younger athletes;
  2. to reduce the competitive advantage to teams using older athletes; and
  3. to discourage students and coaches from intentionally delaying education for athletic purposes (e.g., Pottgen v. Missouri State High School Activities Association, 1994).

Courts follow one of two possible lines of analysis based on acceptance or rejection of the athletic associations' contention that the age-19 rule is an essential part of their program. The majority of courts have accepted athletic associations' "essentiality" arguments, thereby denying the students' claims for a legal remedy (Beatty v. Pennsylvania Interscholastic Athletic Association, 1996; Cavallaro v. Ambach, 1983; M.H. v. Montana High School Association, 1996; Reaves v. Mills, 1995; Sadler v. University Interscholastic League, 1991; Sandison v. Michigan High School Athletic Association, 1995). For example, in one of the precedent-setting cases, Pottgen v. Missouri State High School Activities Association (1994), the court found that the age-19 requirement was essential, and thus its waiver would constitute a fundamental alteration of the program. Because no other reasonable accommodation existed -- the student, who had been retained for 2 years in elementary school due to a learning disability, clearly could not meet the age restriction -- the court concluded that he was not an otherwise qualified individual, that is, one able to meet the all of the program's requirements, under Section 504. Finally, as the courts before and after Pottgen have routinely done, the court explained that the similarity between the Section 504 and the ADA meant that the court's reasoning also applied to defeat the student's ADA claim.

In contrast, a minority of courts have rejected the associations' essentiality arguments for an age-19 rule and, instead adopted an individualized analysis approach (Dennin v. Connecticut Interscholastic Athletic Conference, Inc., 1996; John - son v. Florida High School Activities Association, Inc., 1995; University Interscholastic League v. Buchanan, 1993). In these cases the courts have used a waiver approach based on such individualized factors as the student's size, ability, and resulting competitive advantage. For example, in one of the decisions that firmly grounded this competing line of cases, a federal trial court ruled that the organization must determine, on a case-by-case basis, that waiving the rule would undermine its purposes of safety and fairness (Johnson v. Florida High School Activities Association, Inc., 1995). In Johnson, the court found that the student was not larger than the other football players and, thus, that his participation did not exacerbate safety concerns. Next, the court determined that the student was of average ability level with no more experience than the other players; therefore, his participation did not provide undue competitive advantages.

Peripheral cases lend further definition of the scope of the minority view. Some state athletic associations have adopted waiver procedures incorporating the factors used by the minority courts (J.M. v. Montana High School Association, 1994). Also, subsequent to a Texas court's ruling that mandated the waiver approach (University Interscholastic League v. Buchanan, 1993), OCR concluded that whereas an individual analysis may warrant waiver of an age rule, no requirement exists that the student should be allowed to play for more than 4 years (University Interscholastic League, 1994).

In summary, students' success in legal challenges to age-19 rules hinge on the courts' determination of whether the rule is essential to the program. A slim majority of courts accept schools' and associations' contentions that the rules are necessary to protect students and retain competitive advantages, with several of the remaining decision makers requiring an analysis considering the rule as applied to the individual student's situation. Table 1 presents a comprehensive chronological listing of the case law specific to age-19 rules.

Maximum participation rules

Maximum participation rules exclude students who have spent more than eight semesters in school or four seasons in the sport. Athletic associations have used the same arguments to substantiate these restrictions as they have to support the age-limit rules. In contrast to the split in the age-19 decisions, until 1998 athletic associations had been successful in every one of the admittedly limited published court opinions to date. In their assessment of these rules, the courts have been particularly swayed by the associations' arguments regarding the rules' ability to deter individuals from delaying students' education in order to gain competitive advantage.

For example, in McPherson v. Michigan High School Athletic Association, Inc. (1997), the Sixth Circuit denied a waiver request by a student who experienced significant difficulties in high school and was only identified with attention deficit/hyperactivity disorder at the beginning of his ninth semester in high school. The athletic association convinced the court that the rule was "essential to preserving the philosophy that students attend school primarily for the classroom education and only secondarily to participate in interscholastic athletics" (p. 456). Further, the court echoed judicial opinions on the age rules when it determined that waiver of the rule would constitute a fundamental alteration of the program; forcing the association to consider individual waiver requests would impose on it an "immense financial and administrative burden"' (p. 462). Citing McPherson and identifying the facts as virtually identical, the Sixth Circuit subsequently denied another student's request for a preliminary injunction preventing enforcement of the athletic association's eight-semester rule (Frye v. Michigan Athletic Association, 1997).

View TABLE 1. Age-19 Rules (70kb PDF)*

In two other cases based on maximum participation rules, the courts denied relief to the students, but on slightly different grounds. Under Section 504 and the ADA, an Ohio federal district court denied relief in reliance on the simple reasoning that the maximum participation rule was based on passage of time, not disability (Rhodes v. Ohio High School Athletic Association, 1996). Under the IDEA, another court rejected a student's claim that the exclusion violated his statutory rights because the student did not have a written, formal IEP that provided for his participation in interscholastic athletics (J.M. v. Montana High School Association, 1996).

Most recently, a federal district court in Oregon granted a motion for preliminary injunction and prohibited the athletic association from enforcing its eight-semester rule and rendering a student ineligible to compete in athletics during his fifth year in high school. (Bingham v. Oregon School Activities Association, 1998; see 2. The court applied an individualized analysis considering the plaintiff student's age and athletic experience to find that the student's participation would not constitute a fundamental alteration of the program. Perhaps a more important practical point from the case was the court's attention to the possibility that the student's participation pending the outcome of the case could result subsequently in sanctions in the form of victories negated by the athletic association. In this case, the court prohibited the athletic association from later sanctioning the high school for complying with the court's order. Though this single case is insufficient to constitute a new judicial trend, it does lend some support to future student challenges of maximum participation rules.

In summary, athletic associations and schools prevailed in all but one challenge to rules that restrict students' abilities to participate in interscholastic sports for more than a certain number of years or semesters. As compared to the age- 19 rules cases, the courts deciding maximum participation rules cases have accepted more readily the arguments that these rules are essential to ensuring student safety and maintaining incentives to advance students' education over competitive advantage. Table 2 presents a chronological listing of the case law specific to maximum participation rules.

Academic eligibility rules/policies

Both athletic associations and school districts have established academic requirements for participation in interscholastic athletics. Under minimum credit rules, students must usually earn a minimum number of credits during the preceding marking period. Under no pass-no play rules, students may be excluded for failure to earn passing marks or a satisfactory cumulative grade-point average.

In a case challenging a minimum-credit requirement, a student earned only half the necessary academic credits and received a .981, out of a possible 4.00, grade-point average (Hoot v. Milan Area Schools, 1994). Following an ADHD diagnosis that resulted in Ritalin drug therapy, the student made the honor roll with a 3.39 grade-point average. Although the school district recognized partial responsibility for the failure to diagnose the student and restored the unearned credits, the association refused to honor the restored credits or grant a waiver of the requirement. Rejecting the athletic association's motion for summary judgment, a legal request for a judicial decision before jury consideration, the court ordered a trial to allow a jury to determine if the student was "otherwise qualified" to participate -- in other words, to determine if waiver of the rule constituted a reasonable accommodation 3.

In another similar case, a student filed an OCR complaint naming not only the school district but also the athletic association for excluding him under academic and attendance eligibility requirements (Susquehanna Township (PA) School District, 1993). OCR concluded that the district and association applied the rules uniformly to students with and without disabilities, thus offering an equal opportunity for students with disabilities to participate in extracurricular activities.

In summary, academic performance-based standards such as no pass-no play rules require a different analysis than the previous categories of rules. Athletic associations' arguments about the essentiality of the rule based on safety and competitive advantage concerns are not importable to these cases. However, the associations have found success with arguments that the rule is "neutral," meaning the rule is applied equally to students with and without disabilities, and therefore not discriminatory. Table 2 presents a chronological listing of the case law specific to academic eligibility rules and policies.

Paired-organ decisions

The previous categories dealt with rules that the associations or districts attempted to justify on grounds of protecting other students' safety and competitive advantage, whereas paired-organ policies are generally spontaneously created by districts that justify the requirement that students have both of any typically paired organ (e.g., eyes, kidneys) in order to participate as necessary to protect the individual student's safety. Unlike the decisions in the other cases, the majority of decisions on paired-organ policies held in favor of the student.

Section 504 provides that the exclusion of students with disabilities from a school activity is not improper if there exists "substantial justification" for the school's policy (Grube v. Bethlehem Area School District, 1982). Quoting the foundational Supreme Court decision in Southeastern Community College v. Davis (1979, p. 406), the Grube court stated the "mere possession of a [disability] is not a permissible ground for assuming an inability to function in a particular context" (p. 283). With this perspective, the court held the district's decision to forbid a student with one kidney from playing football was without substantial justification, because it was based only on the existence of the student's medical condition and conflicting medical opinions about the safety risks to the student. Forcefully articulating a similar, and arguably higher, standard, the court in Poole v. South Plainfield Board of Education (1980) stated that "[t]he purpose of Section 504, however, is to permit [students with disabilities] to live life as fully as they are able, without paternalistic authorities deciding that certain activities are too risky for them" (pp. 953-954). Both the Grube and Poole courts ruled in favor of the student, with one granting an injunction permitting the student to participate in interscholastic athletics and the other ordering a trial on the remaining issues 4.

View Table 2. Other Interscholastic Athletic Eligibility Decisions (63kb PDF)*

In contrast, an earlier decision accepted the school's expressed concerns for the students' safety and ultimately ruled against the students (Kampmeier v. Nyquist, 1977). Although the students presented some medical testimony minimizing the potential risks to the students, the court found that the students failed to show that the school's decision was without substantial justification.

In summary, the scattering of cases concerning student challenges to paired-organ policies reveals no clear pattern of judicial decision making. Notably, although cases by students with disabilities in general are increasing, the majority of paired-organ cases were brought in the late 1970s and early 1980s.

However, school districts' exclusion of students from participation based on safety concerns is creating new case law. In a recent case, a court granted a preliminary injunction prohibiting a school district from restricting a student with autism's participation on her junior varsity softball team to practices and from excluding her from team play and games (Inskip v. Astoria School District, 1999; see Note 2). The court's ruling that the school district failed to make a threshold showing that the student's participation created a reasonable probability of substantial risk to herself or others likely resulted in part from the student's medical evidence indicating that her participation was not a threat to herself or others. Thus, students who present medical opinion testimony to support their position continue to prevail over school district decisions based on perhaps heartfelt, but unsubstantiated, safety concerns. Table 2 presents a chronological summary of this category.

Other district decisions

In addition to disputes arising over formal written policies or rules, districts face administrative complaints and lawsuits arising from their ad hoc decisions regarding students with disabilities' participation in interscholastic athletics. For example, a school district provided an interpreter for a student with total hearing loss for academic classes, but failed to provide an interpreter for extracurricular activities, which included her participation on the basketball team (Lambert v. West Virginia State Board of Education, 1994). The court ordered the district to provide the services, flatly rejecting the district's purported justification that the student's request to her coach for an interpreter was inadequate. Also blowing the whistle on a district for dropping the ball, OCR found that a district denied a student the opportunity to participate in interscholastic athletics not only by failing to develop a Section 504 plan for the student but also by allowing the coach alone to determine that the student's disability made him ineligible to participate at all (Alpena (AR) Public School District,1984).

In contrast, OCR has dismissed complaints where the school district offered the student a fair opportunity to try out for a team (Maryville City School District, 1996), and where the school's conduct complied with antidiscrimination provisions despite the absence of a written policy (Rockdale County (GA) School District, 1995). Also, OCR held a school district's refusal to allow a student with disabilities to participate in physical education until it received information from the parents about the child's abilities was legitimate and nondiscriminatory (Portsmouth Public Schools, 1996). In summary, school district authorities must pay careful attention to their formal policies and contractual relationships with other entities, but they must also ensure that their informal decisions comply with the laws' two main mandates of antidiscrimination and individualized consideration of students with disabilities.

Recommendations for practice

Despite the lack of a clear, black-and-white trend among these various categories of cases, they do provide the basis for prudent practices and guidelines. With regard to interscholastic athletics and other extracurricular activities, school administrators and special educators may find that some eligibility decisions lie beyond their control. However, as resource persons for general educators, administrators, and school boards, special educators must be cognizant of both legal requirements and best practices.

The recommendations that follow extend beyond legal minimums for many reasons. First, the law governing athletic participation of students with disabilities is fluid because of the split in court decisions and the far-reaching potential of applicable regulations. Second, many jurisdictions have not generated pertinent case law, thus leaving schools in other jurisdictions at risk if they do not make cautious decisions and allow a margin for error. Third, some potential claims under this quilt created by overlapping statutory coverage are still unsettled, as cases resolved under one statute do not necessarily determine the result of claims available under the other two statutes. Finally, prudent practice often includes not just legal requirements, but also professional norms. As with any general legal guidance, administrators should not use this discussion as a substitute for consultation with an attorney when necessary. These recommendations apply not only to interscholastic athletics, but also more generally to field trips and similar school activities. In each case, they are written for school district authorities.

  1. Work cooperatively with athletic associations to advocate and develop sound waiver policies.

    As membership organizations, athletic associations depend on schools for their existence. Accordingly, schools should insist that these associations promote the best interests of students by developing policies and procedures that are not so rigid as to disallow justifiable individuals from participation. "General education" thinking, which is so extremely group-oriented in athletics, can benefit from a careful dosage of "special education" individualization, without letting the exception swallow the rule or the rule exceed its underlying reason.

  2. Develop district policies and procedures to facilitate individualized decision making for the exceptions.

    For major activities , such as athletics, schools would be wise to establish a committee representing different perspectives: parents, teachers, administrators, coaches, and community members, as well as physicians and students when appropriate. The committee would consider students with disabilities' requests for modification of programs or waivers of exclusionary requirements by (a) looking at whether the prohibitive rule or policy excludes the students because of a disability, (b) assessing the severity of disability, in order to determine the extent of exception or accommodation required, and (c) weighing the counterbalancing notion of the degree of alteration the exception requires and the impact of such an accommodation on the integrity of the program.

  3. Streamline, but maintain the considered, individualized aspects of the decision-making process for lower stakes decisions.

    Not every decision requires a committee, of course, but students with disabilities are entitled to reasonable accommodations that sometimes take the form of exceptions to class or minor school rules. High stakes or high emotion decisions, like athletics, may require more input, but teachers should make many of the lower stakes decisions regarding children with disabilities. Importantly, teachers should follow the same well-reasoned process. Some examples of such decisions are exceptions to discipline rules in a classroom or accommodations for a field trip. Teachers should consider possible narrow exceptions when a student has a disability by determining if a relationship exists between the rule and the student's disability, and, if so, allowing the severity of the disability to determine the degree of exception required. Special educators must help general educators understand that firm-but-fair rules are an oxymoron as applied to students with special needs; treating everyone alike can be a form of discrimination, depending on the degree and relationship of the child's impairment.

  4. Keep the channels of communication and dispute resolution open with the parents.

    Only in a very few cases do students name the school district as a defendant because the school often sympathizes with the students, or recognizes their possible contributions to the team, and attempts to assist the students in winning the right to participate. As the field of special education law explodes, districts need to optimize their relationships with the parents and advocates of students with disabilities. Having internal dispute resolution mechanisms in place, such as grievance procedures for disability discrimination and mediation as an intervening strategy, complements the external dispute resolution forums, such as due process hearings under the IDEA and Section 504/ADA as well as the OCR complaint investigation process under Section 504/ADA. Exhausting such remedies successfully rather than overreliance on the courts is in both the districts' and the parents' interest.

  5. Include provisions for participation in extracurricular activities in IEPs or Section 504 plans only when necessary.

    Reciting advice from a previous federal court decision (TH. v. Montana High School Association, 1992, p. 13), the Montana Supreme Court strongly encouraged.

    "...schools developing IEPs under the IDEA, to exercise prudence when including as a component of an IEP any activity for which a student is ineligible because of [an athletic association] age rule or any other factor beyond the control of the schools. By doing so, the school is potentially making a promise it simply cannot keep, and is setting students ... up for disappointment and failure when and if valid restrictions on eligibility are ultimately enforced (J.M. v. Montana High School Association, 1994, p. 125)."

    In any event, the standard, as it is for any related service, is that the activity must be necessary for the student to benefit from his or her individual educational program.

  6. Develop alternative ways for students to participate meaningfully in extracurricular or other activities. In many of the court decisions, the judges suggested other ways the school could have provided a commensurate experience for the student. For example, one suggested way is for a school to permit eighth-grade students to play on a high school team if they will be ineligible as high school seniors (Pottgen v. Missouri State High School Activities Association, 1994/1995). Another judicial suggestion is for a school to preserve and enhance students' self-esteem gains, often given as a reason the participation, by allowing students to participate in practices or as assistant coaches (Cavallaro v. Ambach, 1983). Schools must be cautious, however, that they use these suggestions only when no other reasonable accommodations are available and not in lieu of offering students with disabilities an equal opportunity to participate as guaranteed by the statutes' implementing regulations.

Conclusion

School officials cannot overestimate the importance of understanding and complying with federal regulations governing students with disabilities, including those regarding their participation in interscholastic activities. The three major statutes -- the IDEA, Section 504, and the ADA -- establish a relatively complex matrix of school district responsibility and potential liability to students with disabilities. In addition to the statutes, case law emerging from the federal courts and agencies, such as OCR, provides practical lessons for school administrators. Due to the legal ambiguities and jurisdictional differences existent in this area of disability law, school staff, officials, attorneys, and other interested persons must take precautionary measures, not only to protect themselves from liability but also to better serve their students, while waiting for the law and its accompanying requirements to crystallize.

References

References

Click the "References" link above to hide these references.

Alpena (AR) Public School District, EHLR 257:565 (Office for Civil Rights 1984).

Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq.

Beatty v. Pennsylvania Interscholastic Athletic Association, 24 IDELR 1146 (M.D. Pa. 1996).

Bingham v. Oregon School Activities Association, 24 F. Supp.2d I I 10 (D. Or. 1998).

Cavallaro v. Ambach, 575 F. Supp. 171 (W.D. N.Y. 1983).

Dennin v. Connecticut Interscholastic Athletic Conference, Inc., 913 F. Supp. 663, (D. Conn. 1996), vacated as moot, 94 F.3d 96 (2d Cir. 1996).

Frye v. Michigan Athletic Association, 26 IDELR 432 (6th Cir. 1997).

Grube v. Bethlehem Area School District, EHLR 554:280 (E.D. Pa. 1982).

Hacienda La Puente Unified School District, 27 IDELR 885 (Cal. State Education Agency 1997).

Hall v. Atlanta Public School System, 112 F.3d 1173 (1 1th Cir. 1997).

Hoot v. Milan Area Schools, 853 F. Supp. 243 (E.D. Mich. 1994).

Individuals with Disabilities Education Act Amendments of 1997, 20 U.S.C. § 1400 et seq.

Individuals with Disabilities Act of 1990. 20 U.S.C. § 1400 et seq.

Inskip v. Astoria School District, 30 IDELR 398 (D. Or. 1999).

J.M. v. Montana High School Association, 875 P.2d 1026 (D. Mont. 1994).

Johnson v. Florida High School Activities Association, Inc., 899 F. Supp.579n (M.D. Fla. 1995), vacated as moot. 102 F.3d 1172 (1 I th Cir. 1997), appeal after remand, 103 F.3d 720 (11 Cir. 1997).

Kampmeier v. Nyquist. 553 F.2d 296 (2d Cir. 1977).

Lambert v. West Virginia State Board of Education, 447 S.E. 2d 901 (W. Va. 1994).

Maryville City (TN) School District, 25 IDELR 154 (Office for Civil Rights 1996).

M.H. v. Montana High School Association, 25 IDELR 42 (D. Mont. 1996).

McPherson v. Michigan High School Athletic Association. Inc., 119 F.3d 453 (6th Cir. 1997).

Poole v. South Plainfield Board of Education, 490 F. Supp. 948 (D. N.J. 1980).

Portsmouth Public Schools, 25 IDELR 80 (Office for Civil Rights 1996).

Pottgen N. Missouri State High School Activities Association, 857 F. Supp.654, E.D. Mo. 1994). rev'd on other grounds, 40 F.3d 926 (8th Cir. 1995).

Reaves 904 F. Supp. 120 (W.D. N.Y. 1995).

Rhodes v. Ohio High School Athletic Association, 939 F. Supp. 584 (N.D. Ohio 1996).

Rockdale County (GA) School District, 22 IDELR 1047 (Office for Civil Rights 1995).

Sadler v. University Interscholastic League, Docket No. A-9 I -CA-836 (W.D. Tex. Nov. 25, 1991).

Sandison v. Michigan High School Athletic Association. Inc.. 863 F. Su p. p 483 (E.D. Mich. 1994), rev'd in part, 64 F.3d 1026 (6th Cir. 1995).

School Board of Nassau County v. Arline, 480 U.S. 273 (1987).

Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (1994).

Southeastern Community College v. Davis, 442 U.S. 397 (1979).

Susquehanna Township (PA) School District, 20 IDELR 35 (Office for Civil Rights 993).

T.H. v. Montana High School Association, No. CV-92-150-BLG-JFB D. Mont. September 24, 1992).

University Interscholastic (TX) League, 28 IDELR 206 (Office for Civil Rights 1997).

University Interscholastic League v. Buchanan, 848 S.W. 2d 298 (Tex. App. 1993).

Endnotes

Endnotes

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  1. Such a student may be eligible under the IDEA, not as part of a specifically enumerated category, but rather under the "catch-all" category of "otherwise health impaired." This category activates an additional analysis under which some, but not all, students with asthma may be found IDEA-eligible.
  2. Due to publishing deadlines, this case is not included in the table.
  3. The litigants most likely settled before the jury decided the case as no published decision addresses the ultimate outcome.
  4. Neither case resulted in a subsequent, final decision. Most likely, the student challenging the policy graduated or the parties negotiated a resolution.

Lehigh University, Education, Vol. 33/NO. 4/2000 pp. 258-267

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