On January 25, 2013, the Department of Education, Office for Civil Rights (OCR) released a “Dear Colleague” Letter  providing guidance on OCR’s interpretation of the obligations of schools under Section 504 to provide students with disabilities an equal opportunity to participate in extracurricular athletics. 

The Letter reminds schools that providing an equal opportunity to participate may require the provision of aids and services as well as certain adjustments to the district’s policies, practices and procedures.   Schools may not deny participation in extracurricular athletic activities based solely on a student's disability or on general perceptions of that disability.   Instead, schools must make an individual inquiry as to the specific nature of the student’s abilities/disabilities and the services, aids or adjustments that may be required to facilitate the student’s participation.

 A school’s obligation to include disabled students in specific athletic activities, however, is not without certain limitations.  For example:

1. Schools may decline to make adjustments to policies, practices, and procedures or to provide aids or services if doing so would “fundamentally alter” the program.   (Note:  While the Letter’s uses the term “modification” to refer to necessary adjustments, the Letter then specifies that no fundamental alteration can be required.  Thus, the adjustments contemplated appear to fall within the parameters of “reasonable accommodations” typically used by schools in considering their obligations under Section 504.)  
2. Schools may require all students, regardless of disability, to possess a level of skill or ability for participation in a competitive activity.  Thus a student with a disability is not guaranteed a place on a team for which others must try out, but instead must be provided aids, services and/or adjustments that allow him to compete on an equal basis.   
3. Schools are entitled to establish bona fide safety requirements for all students.  A school has no obligation to allow a disabled student to participate in an activity if that participation would present a safety concern even with the provision of adjustments or aids and services.
4. Schools are not required to allow a student with a disability to participate in a particular extracurricular activity if adjustments, aids or services necessary to such participation provide the disabled student with an unfair advantage over other students and would, therefore, fundamentally alter the character of the competition, even if it has only a peripheral impact on the activity itself.

The Letter also describes OCR’s view that Section 504 not only requires schools to provide students with disabilities with an equal opportunity to participate in existing activities, but also imposes an obligation to create additional opportunities for their participation.    The Letter asserts that when a student with a disability is unable to participate in extracurricular athletics with or without aids, and services, and adjustments, the school is obligated to create alternative activities and to support such activities on an equal basis.  OCR suggests that where a limited number of students does not allow for the fielding of a specialized team, the district should seek to join with other districts to offer teams such as wheelchair basketball, or to provide mixed gender teams or “allied” or “unified” teams that mix disabled and non-disabled students together on a team.  

As part of its obligations under Section 504, schools are prohibited from providing significant assistance to any association, organization, club, league or other third party that discriminates against individuals on the basis of disability in the provision of any aid, benefit or services to the students it serves.  In addition, for any decision made under Sections 504, whether relating to academics or extracurricular activities, all schools must have in place a grievance procedure that provides for appropriate due process and prompt and equitable resolution of complaints arising from alleged Section 504 violations.

Schools are encouraged to review the Letter in full, as it provides various fact patterns typically encountered by schools, along with OCR’s analysis of the school’s obligations under 504 in the circumstances presented.   In addition, schools are encouraged to seek assistance from their local school district counsel for further interpretation and guidance on Section 504.