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Boosting Inclusion for Students with Disabilities

A look at the law when considering these students in extracurricular activities and athletics.

Administrators in public schools are undoubtedly familiar with their duties under federal law to serve students with disabilities in the educational program. Far fewer, however, are aware of their legal obligations to these same students in after-school athletics and extracurricular activities.

Are students with disabilities entitled to participate in athletics and other afterschool activities? If so, what types of services and accommodations should school officials and coaches provide? These questions often leave administrators in a quandary. But the failure to suffi ciently work through these issues leaves school districts vulnerable to costly litigation. In addition to juggling the complicated legal issues related to serving students with disabilities who participate in athletics and extracurricular programs, many administrators are taking aggressive steps to promote healthy school communities by implementing body mass index (BMI) surveillance and screening measurement programs (see main story). While these programs offer an innovative approach to encouraging good health, they raise additional issues for busy administrators. Here are some district obligations, common traps for the unwary, and practical ways to comply with the law.

Legal Obligations

Section 504, Rehabilitation Act of 1973 Section 504 requires school districts to provide athletics and extracurricular activities in such a manner as is necessary to afford a student with a disability an equal opportunity to participate in such activities. Providing an equal opportunity may require school districts to provide reasonable accommodations, such as sign language interpreters or modified drills, to students who are otherwise qualified for participation.

Individuals with Disabilities Education Improvement Act.

IDEIA requires public schools receiving federal funding to identify eligible students with disabilities and to provide those students with special education and related services. Each student receiving services under IDEIA is entitled to a free appropriate public education, which is detailed in the student’s individualized education program (IEP). The student’s IEP—created by a team of school professionals, the student’s parent(s), and perhaps others—includes the modifications or supports that will be provided to enable students to participate in extracurricular and nonacademic activities with other children. Generally, participation in athletics and extracurricular activities is not an essential aspect of a free appropriate public education.

In some circumstances, however, participation in athletics and extracurricular activities may be necessary for the child to benefit from the child’s educational program. For instance, a student with an emotional disability may require participating in athletics to develop a positive self-image and acquire social and emotional skills. In these instances, the child’s IEP may specify that the child participate in certain athletic programs and/or extracurricular activities.

Americans with Disabilities Act.

ADA prohibits public entities, including public schools, from excluding otherwise qualified students with disabilities from participating in athletics and extracurricular activities based on disability.

Family Educational Rights and Privacy Act.

FERPA requires educational institutions that receive federal funding, including public schools, to protect the confi dentiality of student education records and the personally identifiable information contained in them, and to provide parents and eligible students access to these records. Thus, student IEPs, athletic records, and BMI screening records are subject to FERPA protections.

Policy Pitfalls and Solutions

Schools can and do meet these mandates every day, but these common pitfalls can be costly for the unwary.

Inflexible transfer requirements.

Rules governing athletic participation typically impose a period of ineligibility for students who transfer from one school district to another. Under these rules, students may be required to sit out of athletics for up to a year. If a student with a disability has an IEP that contains participation in athletics and the student is required to sit out, the school district (together with the athletic association imposing the rule) may be unintentionally violating the student’s rights under the IDEIA. Thus, transfer requirements should allow for exceptions for students whose IEPs call for participation in athletics.

Excluding students based on fear.

Often when students with medical conditions or physical disabilities try out for sports, well-meaning administrators and coaches err on the side of caution and restrict these students from participating because they fear the students will get hurt. In some circumstances, however, exclusion from athletics in this way will violate a student’s Section 504 rights. For instance, if a student with only one kidney is excluded from wrestling based solely on the coach’s fear of injury to the remaining kidney, the student’s Section 504 rights may be violated.

Generally, participation in athletics and extracurricular activities are not an essential aspect of a free appropriate public education.

On the other hand, where there is significant medical support that participation in a particular activity may be too risky for a student based on his or her medical history—for instance, a student who has undergone numerous heart surgeries—it may be prudent for school officials and coaches to exclude the student from participating in rigorous contact sports, such as football or wrestling.

Failing to give OK.

Public schools must ensure that students with disabilities receive the opportunity to participate equally in extracurricular and nonacademic activities. Equal participation may require the school provide certain accommodations and services. For instance, if a student’s IEP includes services from a sign language interpreter for academics, the student should also receive services from an interpreter for extracurricular activities if the student cannot participate equally without an interpreter.

Rigid requirements.

Consistency is almost always good policy. However, where students with disabilities are concerned, application of rigid age and academic requirements for participation in athletics and extracurricular activities can make a district vulnerable to a lawsuit.

For instance, many athletic and extracurricular policies require students to be under a certain age and to meet certain academic requirements. And when a student whose disability caused him to be held back for three years in elementary school is barred from playing football because he is “over-age,” or when a student with a learning disability is cut from the tennis team because she doesn’t meet the coach’s GPA expectations, school officials should consider he implications of these decisions arefully. Many building ainistrators and athletic directors are aware of a school district’s obligations under Section 504, IDEIA, and the ADA, and accordingly caution coaches before cutting students rom participation in athletics and extracurricular activities. But where coaches apply age and academic requirements rigidly without consideration of a student’s individualized circumstances, a district might unintentionally violate the law.

BMI programs that exclude.

Parent involvement in any school-based program is smart leadership. But parent involvement in a BMI program is absolutely essential. Typically, BMI screening programs are implemented to identify children at risk of developing weight problems. Screening programs offer promising possibilities, but programs that are not carefully designed run the risk of damaging student self-esteem, alienating parents, and violating students’ privacy rights under FERPA.

Pointers for Success

In most cases, pitfalls can be avoided by taking certain easy steps.

1. Train

Trouble starts when coaches and sponsors are not aware of the district’s obligations to students with disabilities. Ensure that all coaches and sponsors are trained on your district’s legal obligations, and teach them to spot and avoid problems before they start.

2. Foster teamwork

Create a culture where coaches and sponsors and the special education department can work together to efficiently Boosting Inclusion for Students with Disabilities Generally, participation in athletics and extracurricular activities are not an essential aspect of a free appropriate public education. meet student needs and to identify and implement accommodations. When appropriate, invite a student’s coach or sponsor to IEP meetings.

3. Clarify expectations

Coaches and sponsors should also be encouraged to identify the essential skills, including athletic skills, and eligibility requirements for participation in each sport or activity. These eligibility requirements must be related to the ability to participate in the program and should be applied neutrally to all students. At the same time, coaches and sponsors should make individualized determinations when considering an exception to an eligibility requirement.

4. Establish a committee

Consider establishing a committee to review requests for exceptions from eligibility requirements. Exceptions must be reviewed for reasonableness and necessity. Make sure that if a student is excluded based on risk of future injury, the exclusion is not based on unfounded fears or stereotypes about the student’s medical condition or disability. These decisions must be individualized and based on objective evidence, including reports from physicians.

5. Carefully craft IEPs

Well-meaning teachers and staff members sometimes include too much in a student’s IEP. Remind employees that when athletics and extracurricular activities are included as a component of a student’s IEP, the privilege of participating in these activities is transformed into a federally protected right. Encourage teachers and staff members who help develop IEPs to consider carefully whether participation in athletics and/or extracurricular activities is essential—or simply encouraged—before including it in a student’s IEP.

6. Involve parents

Before implementing any BMI screening program, it is advisable to involve parents in the process, and it is critical to obtain permission from parents before screening students. Every student screened should have an authorization form signed by a parent. Because the BMI data obtained about each particular student will likely qualify as an education record protected under FERPA, such records and information should be kept confidential and may only be shared with parents or an eligible student.

Allison Fetter-Harrott and Amy M. Steketee are former public school educators who practice school law at Baker & Daniels LLP in Indiana. Mary Jo Dare is a 30-year education veteran, former assistant superintendent for Indianapolis Public Schools, and now a senior advisor with B&D Consulting.