School Sports and Interscholastic Programs in Full Swing: Recognizing when Section 504 Applies

Section 504 of the Rehabilitation Act of 1973 (“Section 504”), through its implementing regulations in Subpart D, requires that students with disabilities have the opportunity to equally participate in extracurricular activities, including after school sports and interscholastic programs. The Section 504 regulations specifically outline a school district’s obligation to provide extracurricular activities in “such a manner as is necessary to afford students with a disability an equal opportunity for participation in such services and activities.” (34 C.F.R. 104.37(a)(1).)

As a general matter, Section 504 applies on its face to “any program or activity receiving Federal financial assistance.” (29 U.S.C. 794.)  Federal financial assistance is defined in the Section 504 regulations as “any grant, loan, contract (other than a procurement contract or contract of insurance or guaranty), or any other arrangement by which the [Department of Education] provides or otherwise makes available assistance in the form of: (1) Funds…” (34 C.F.R. 104(h).) Thus, a school district will be considered a “recipient district” for purposes of compliance with Section 504 obligations if it is receiving any type of federal financial assistance or funds.

Indeed, not every alleged discriminatory action of an interscholastic association or sports program is imputed to the school district. Particularly, a recipient school district may be held liable for the alleged discriminatory actions of an interscholastic association if that school district is found to have provided “significant assistance” to the interscholastic athletic association that is found to have discriminated against a student on the basis of his/her disability. (34 C.F.R. 104.4(b)(1)(v).) Particularly, Section 504 identifies as a form of prohibited discrimination providing “significant assistance to any agency, organization, or person that discriminates on the basis of [disability] in providing any aid, benefit, or services…”  This section prohibits a recipient district from supporting another entity or person, including athletic associations, who subjects participants in the recipient's program to discrimination on the basis of disability.

To determine whether a school district is providing substantial assistance to such a program, one must examine whether the school district is affording that program with any aide, benefit, or service.  Specifically, the Office for Civil Rights (“OCR”) reviews whether a school district has provided such assistance to a private entity on a case-by-case basis. When making such a determination, OCR looks to a number of factors including (1) direct financial support; (2) indirect financial support; (3) palpable resources such as staff and materials; and (4) any intangible benefits such as marketing for the program or approval of policies. (Irvine Unified School District (OCR 1993) 19 IDELR 883.)

Interscholastic athletic associations are also mandated to comply with the requirements of Section 504 when they are direct or indirect recipients of federal funds.  Specifically, the district court in Dennin v. Connecticut Interscholastic Athletic Conference, Inc. (D. Conn. 1996) 23 IDELR 704, deemed the interscholastic athletic association to be receiving indirect federal financial assistance subject to Section 504 when the association received fees paid by public school districts to delegate a portion of their responsibility for regulation of interscholastic activities.  In the Dennin case, the Connecticut Interscholastic Athletic Conference (“CIAC”) received federal financial assistance indirectly through fees paid by 150 public school districts that received federal assistance.  These fees are received indirectly by the CIAC from its member school districts that delegated to the CIAC a portion of their responsibilities for regulation of interscholastic activities. The court also noted that various competitions sponsored by the CIAC took place in facilities receiving federal financial assistance and the teams competing in association events were coached by school district personnel.  Accordingly, the court found that the athletic association was an instrumentality of its member school districts because they had delegated authority to direct and control their athletic programs.  Similarly, an interscholastic association may be deemed an arm of a school district when the school district plays a substantial role in determining and enforcing association policies.  (See Rhodes v. Ohio High School Athletic Ass’n (N.D. OH 1996) 24 IDELR 936.)

Once a school district recognizes that Section 504 applies, it should take the steps necessary to ensure students with disabilities receive an equal opportunity to participate in athletic programs as those of their nondisabled peers.  This means school districts should provide reasonable accommodations and modifications necessary to guarantee that students with disabilities have an equal opportunity to participate in such programs.  For example, a reasonable accommodation may even include the provision of a separate division for students with similar disabilities. (See Badgett v. Ala. High Sch. Ath. Ass'n (N.D. AL. 2007) 34 NDLR 202.)

In certain circumstances, a school district may deny participation in an athletics program if the school district can show that the modification would represent a fundamental alteration to that program.  A fundamental alteration will be deemed to have occurred when it modifies an essential aspect of the activity or game such that it would be unacceptable even if it affected all participants or competitors equally.  By way of example, adding an extra base in baseball would rise to the level of a fundamental alteration, while using a visual cue to signal the start of the 200-meter dash would not fundamentally alter a track meet or give a student with a hearing impairment an unfair advantage over other runners. (Dear Colleague Letter (OCR 2013) 60 IDELR 167.)

To avoid violating Section 504 obligations in the context of extracurricular activities and athletics, school districts should work with their athletic associations or private after school providers to ensure that students with disabilities are not denied an equal opportunity to participate.  School districts should also be mindful that liability could arise in situations in which the school district is providing significant assistance to other entities or persons who are operating such programs in a discriminatory manner.

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