In a “Dear Colleague” guidance letter (“Guidance”), issued January 25, 2013, the United States Department of Education, Office of Civil Rights (“OCR”) made clear that schools at all levels must provide disabled students equal opportunity to participate in extracurricular athletics. To meet this obligation, a school must make any reasonable modification to its athletic program which would allow the disabled student an equal opportunity to participate, unless doing so would result in a fundamental alteration of the program.
The Guidance was issued in response to a Government Accountability Office report which found that participation in extracurricular athletics provides important health and social benefits to persons with disabilities, but also concluded that disabled students are not being afforded an equal opportunity to participate. The OCR is the responsible for enforcing Section 504 of the federal Rehabilitation Act of 1973, which protects the rights of disabled individuals in programs and activities that receive federal funding. Under Section 504, a disabled person is “one who (1) has a physical or mental impairment that substantially limits one or more major life activities; (2) has a record of such an impairment; or (3) is regarded as having such an impairment.”
The OCR Guidance notes that a school’s obligations under Section 504 to provide equal access to athletics “supersedes any rule of any association, organization, club or league that would render a student ineligible to participate, or limit [such eligibility] … on the basis of disability. In fact, a school will violate Section 504, potentially jeopardizing its federal funding, if it assists such an association that discriminates.
Schools may not act on stereotypes.
The Guidance says that a school may not restrict access to its athletic programs based on generalizations about what students with a type of disability are capable of but must, instead, determine on an individual basis whether each disabled student is able to meet the requirements for participation in the extracurricular athletic activity. For example, a basketball coach would violate Section 504 if, after selecting a disabled student as a member of the team, the coach decides never to play the student in a game based on the assumption that persons with that disability cannot play successfully under the pressures and time constraints of a game. The Guidance indicates that the coach should have given the disabled student an equal opportunity to play in the games. Of course, such an opportunity does not entitle the student to play in games if the student, in fact, is not qualified to do so. It merely requires that the decision not to play the student be based on “the same criteria the coach uses for all other players,” not on stereotypes.
In order to offer disabled students equal opportunity to participate in its athletic programs, a school must “mak[e] reasonable modifications and provid[e] those aids and services that are necessary to ensure an equal opportunity to participate, unless the school district can show that doing so would be a fundamental alteration to its program.” What constitutes a “reasonable modification” and what is a “fundamental alteration” are critical issues.
According to the Guidance, “[i]n considering whether a reasonable modification is legally required, the school district must first engage in an individualized inquiry to determine whether the modification is necessary. If the modification is necessary, the school district must allow it unless doing so would result in a fundamental alteration of the nature of the extracurricular athletic activity.” There are two ways in which a modification may fundamentally alter the athletic activity. First, “[a] modification might constitute a fundamental alteration if it alters such an essential aspect of the activity or game that it would be unacceptable even if it affected all competitors equally (such as adding an extra base in baseball).” Second, “a change that has only a peripheral impact on the activity or game itself might nevertheless give a particular player with a disability an unfair advantage over others and, for that reason, fundamentally alter the character of the competition.” The burden is on the school district to show any such fundamental alteration.
Thus, the Guidance says that a school track program must accommodate a deaf student by using a visual cue to signal the start of races rather than the usual starting gun, because doing so does not alter the nature of the competition, nor does it give the disabled student an advantage over other participants.
In another example, the Guidance considers whether a school must accommodate a one handed swimmer by waiving the rule requiring that swimmers finish the race by touching the pool wall with two hands. Such a modification is necessary if the disabled swimmer is to participate, so the decisive issue is whether such a waiver would fundamentally alter the swimming program. The Guidance states that while OCR would not regard waiving the two hand rule as changing an essential aspect of the swim race, the school must evaluate whether such a waiver would give the disabled swimmer an unfair advantage. If so, the school is not required to make the requested modification, but must still consider whether other modifications might permit the disabled swimmer to participate.
Separate or different athletic opportunities.
The Guidance further states that, where it is not possible to modify an existing athletic program to permit disabled students to participate, the school should offer additional athletic opportunities to them by creating programs that are separate or different from those offered to non-disabled students. When there are too few disabled students at a school to field a team, the Guidance suggests that a schools unite to create district-wide teams, mix male and female students, or create teams that mix disabled students with students without disabilities.
The Guidance is clearly an important step forward for disabled athletes. It also presents major challenges for educators. It remains to be seen how the OCR interprets and enforces the right of disabled students to equal opportunity athletic participation.
 29 U.S.C. § 705(9)(B), (20)(B) (as amended by the Americans with Disabilities Act Amendments Act of 2008); 34 C.F.R. § 104.3(j).
 Guidance, citing 34 C.F.R. § 104.10(a), 34 C.F.R. § 104.4(b)(1).
 Guidance, citing 34 C.F.R. § 104.4(b)(1)(v); 34 C.F.R. pt. 104, App. A § 104.4 at 367 (2012).