Equal Opportunities in Extracurricular Athletics for Students with Disabilities

Extracurricular athletics—which include club, intramural, or interscholastic athletics at all education levels—are an important component of an overall education program. The United States Government Accountability Office (GAO) published a report that underscored that access to, and participation in, extracurricular athletic opportunities provide important health and social benefits to all students, particularly those with disabilities. However, the GAO found that students with disabilities are not being afforded an equal opportunity to participate in extracurricular athletics in public elementary and secondary schools.

In response to GAO's findings, the United States Department of Education, Office for Civil Rights, released guidance to clarify schools’ responsibilities under Section 504 of the Rehabilitation Act of 1973, which requires schools to provide students with disabilities an equal opportunity to participate alongside their peers in after-school athletics and clubs.

The Rehabilitation Act provides that schools may not exclude students who have an intellectual, developmental, physical, or any other disability from trying out and playing on a team, if they are otherwise qualified. However, this does not mean that schools have to change the essential rules of the game. Schools are not required to do anything that would provide a student with a disability an unfair competitive advantage; but they do need to make reasonable modifications to ensure that students with disabilities get the very same opportunity to play as everyone else.

The guidance issued will help schools meet this obligation and will allow increasing numbers of kids with disabilities the chance to benefit from playing sports.

Specifically, this guidance:

·         Provides an overview of the obligations of public elementary and secondary schools under Section 504 and the Department’s Section 504 regulations.

·         Cautions against making decisions based on presumptions and stereotypes.

·         Details the specific Section 504 regulations that require students with disabilities to have an equal opportunity for participation in nonacademic and extracurricular services and activities.

·         Discusses the provision of separate or different athletic opportunities.

For more information please see the released guidance here.

Sirenia Jimenez, law clerk

OCR Receives Record Number of Special Ed Complaints

OCR has received more complaints in the past three years (2009-2011) than ever before regarding disability-related issues.  The US Department of Education's Office for Civil Rights ("OCR") enforces federal civil rights laws that prohibit discrimination based on race, national origin, sex, age, and disability.  However, during the period between 2009-2011, 55% of the complaints received by OCR dealt with disability-related issues.  The top disability-related complaint concerned FAPE, but other issues raised by complaints included retaliation, academic adjustments, denial of benefits, and harassment.

OCR's publication, "Disability Rights Enforcement Highlights," can be accessed here.

Meghan Covert Russell

Georgia School District Not Held Liable for Student's Suicide

This week the US District Court for the Northern District of Georgia ruled in favor of the Murray County School District on their motion for summary judgment in the case of Long v. Murray County School District.  The case has garnered national attention due to its focus on bullying.  Seventeen-year-old Tyler Lee Long ("Long"), who was diagnosed with Asperger's Syndrome, was the victim of severe, nearly constant bullying at his Georgia high school and eventually committed suicide.  Long's parents sued the Murray County School District alleging that their failure to intervene, investigate, correct, or train employees to adequately protect Tyler from bullying constituted deliberate indifference and was the cause of his decision to take his own life.

Long was subject to numerous instances of bullying throughout his time at Murray County High School, but often these instances were not observed by school staff nor reported to school staff.  Long's parents did email school staff with concerns about their son and school officials did respond by disciplining harassers and taking measures to prevent future harm.  However, Long's parents argued that the school's response failed to adequately address and stop the bullying.

Plaintiffs also alleged that the peer-on-peer harassment violated the ADA and Section 504 and that Long was discriminated against because of his disability.  Although the Court determined that Plaintiffs could potentially show that Long was (1) disabled, (2) harassed due to a disability, (3) that the harassment denied Long equal access to education, and (4) that the appropriate school officials had actual notice of the harassment, they were unable to show that (5) the Defendant's actions rose to the level of deliberate indifference.  According to the Court, "school officials will only be deemed deliberately indifferent if their response to the harassment or lack thereof is clearly unreasonable in light of the known circumstances."  The Court noted that "although Plaintiffs establish that Defendants should have done more to address disability harassment, Plaintiffs fail to meet the high bar of deliberate indifference and demonstrate that Defendants' response was clearly unreasonable."  The evidence showed that the District investigated and responded to each reported incident.

Although the District was not held legally liable for Long's death, the case is an important lesson to students and staff that bullying is very real danger that deserves serious attention in our schools.  Students should be encouraged to report any instances of bullying they observe to school staff.  School officials should actively investigate any reports of bullying and appropriately discipline students.  Additionally, it should be noted that as in this case, students with disabilities are often the targets of bullying.  If students with disabilities are being bullied, the student's IEP team may want to address this in the IEP, or create a safety plan for the student.   

The ruling is available in its entirety here.

Meghan Covert Russell

Legal Alert: Dear Colleague Letter, Clarifying 2008 ADA Amendments Act

On January 19, 2012, the US Department of Education’s (“DOE”) Office of Civil Rights (“OCR”) issued a Dear Colleague letter and Questions and Answers regarding the impact of the 2008 amendments to Americans with Disabilities Act (“ADA”) on public school districts.  These documents provide guidance on the requirements of the ADA and Section 504 of the Rehabilitation Act (“Section 504”) in light of the changes made by the 2008 ADA Amendments Act (“Amendments Act”).  Generally these amendments have the effect of broadening the definition of what constitutes a disability, and thus who will receive special education services from school districts.

For more information please see our complete Legal Alert here.

Meghan Covert Russell