[blindkid] SAT question

Sun May 18 18:00:20 UTC 2014

Vejas,

Great questions! First thing, this is NOT intended as legal advice, and no
attorney-client relationship has formed between us or with any other reader
of this email communication.

Now, to your actual question: If the class is provided by a public school
during school hours, it is part of the school curriculum, and if you need
special education services (such as braille transcription), the school must
provide those services in order to ensure that you have access to FAPE (a
free appropriate public education). If the class is sponsored by the
district after hours, I would argue that it falls into the same category of
"extracurricular activities" that athletics does. This is great, because
the January 13, 2013, Dear Colleague Letter from the Office of Civil Rights
of the U.S. Department of Education has made it clear that students with
disabilities (whether or not IDEA-qualified) are entitled to ACCESS to
extracurricular activities.

While the letter centered on sports, the legal theory which permeates it
relies on the protections afforded to students with disabilities under
Section 504 (which is must LESS stringent than IDEA identification is). The
relevant federal regulation, 34 C.F.R. section 104.34 reads: "(a) Academic
setting. A recipient to which this subpart applies shall educate, or shall
provide for the education of, each qualified handicapped person in its
jurisdiction with persons who are not handicapped to the maximum extent
appropriate to the needs of the handicapped person. A recipient shall place
a handicapped person in the regular educational environment operated by the
recipient unless it is demonstrated by the recipient that the education of
the person in the regular environment with the use of supplementary aids
and services cannot be achieved satisfactorily. Whenever a recipient places
a person in a setting other than the regular educational environment
pursuant to this paragraph, it shall take into account the proximity of the
alternate setting to the person's home.
(b) Nonacademic settings. In providing or arranging for the provision of
nonacademic and extracurricular services and activities, including meals,
recess periods, and the services and activities set forth in §
104.37(a)(2), a recipient shall ensure that handicapped persons participate
with nonhandicapped persons in such activities and services to the maximum
extent appropriate to the needs of the handicapped person in question.
(c) Comparable facilities. If a recipient, in compliance with paragraph (a)
of this section, operates a facility that is identifiable as being for
handicapped persons, the recipient shall ensure that the facility and the
services and activities provided therein are comparable to the other
facilities, services, and activities of the recipient."

Now, if the class is offered by a non-school entity, the waters muddy a
bit, and the inquiry becomes more fact-dependent. Please contact me
off-list if this is the issue. If, however, the class is offered by the
school either during or after school, the district has a duty to make it
accessible. For you, this would include providing braille transcription and
tactile diagrams of printed material used in the class.

I hope this has been helpful. Please see a link to and the text of the OCR
Dear Colleague Letter below.

Carlton

From:
http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201301-504.html

January 25, 2013

Dear Colleague:

Extracurricular athletics—which include club, intramural, or
interscholastic (*e.g.,*freshman, junior varsity, varsity) 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.1<http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201301-504.html#ftn1>
These
benefits can include socialization, improved teamwork and leadership
skills, and fitness. Unfortunately, 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.2<http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201301-504.html#ftn2>

To ensure that students with disabilities consistently have opportunities
to participate in extracurricular athletics equal to those of other
students, the GAO recommended that the United States Department of
Education (Department) clarify and communicate schools’ responsibilities
under Section 504 of the Rehabilitation Act of 1973 (Section 504) regarding
the provision of extracurricular athletics. The Department’s Office for
Civil Rights (OCR) is responsible for enforcing Section 504, which is a
Federal law designed to protect the rights of individuals with disabilities
in programs and activities (including traditional public schools and
charter schools) that receive Federal financial
assistance.3<http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201301-504.html#ftn3>

In response to the GAO’s recommendation, 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, and discusses the provision of separate or
different athletic opportunities. The specific details of the illustrative
examples offered in this guidance are focused on the elementary and
secondary school context. Nonetheless, students with disabilities at the
postsecondary level must also be provided an equal opportunity to
participate in athletics, including intercollegiate, club, and intramural
athletics.4<http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201301-504.html#ftn4>

*I. Overview of Section 504 Requirements*

To better understand the obligations of school districts with respect to
extracurricular athletics for students with disabilities, it is helpful to
review Section 504’s requirements.

Under the Department’s Section 504 regulations, a school district is
required to provide a qualified student with a disability an opportunity to
benefit from the school district’s program equal to that of students
without disabilities. For purposes of Section 504, a person with a
disability 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.5<http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201301-504.html#ftn5>
With
respect to public elementary and secondary educational services,
“qualified” means a person (i) of an age during which persons without
disabilities are provided such services, (ii) of any age during which it is
mandatory under state law to provide such services to persons with
disabilities, or (iii) to whom a state is required to provide a free
appropriate public education under the Individuals with Disabilities
Education Act (IDEA).6<http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201301-504.html#ftn6>

Of course, simply because a student is a “qualified” student with a
disability does not mean that the student must be allowed to participate in
any selective or competitive program offered by a school district; school
districts may require a level of skill or ability of a student in order for
that student to participate in a selective or competitive program or
activity, so long as the selection or competition criteria are not
discriminatory.

Among other things, the Department’s Section 504 regulations prohibit
school districts from:

   - denying a qualified student with a disability the opportunity to
   participate in or benefit from an aid, benefit, or service;
   - affording a qualified student with a disability an opportunity to
   participate in or benefit from an aid, benefit, or service that is not
   equal to that afforded others;
   - providing a qualified student with a disability with an aid, benefit,
   or service that is not as effective as that provided to others and does not
   afford that student with an equal opportunity to obtain the same result,
   gain the same benefit, or reach the same level of achievement in the most
   integrated setting appropriate to the student’s needs;
   - providing different or separate aid, benefits, or services to students
   with disabilities or to any class of students with disabilities unless such
   action is necessary to provide a qualified student with a disability with
   aid, benefits, or services that are as effective as those provided to
   others; and
   - otherwise limiting a qualified individual with a disability in the
   enjoyment of any right, privilege, advantage, or opportunity enjoyed by
   others receiving an aid, benefit, or
service.7<http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201301-504.html#ftn7>

The Department’s Section 504 regulations also require school districts to
provide a free appropriate public education (Section 504 FAPE) to each
qualified person with a disability who is in the school district’s
jurisdiction, regardless of the nature or severity of the person’s
disability.8<http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201301-504.html#ftn8>

A school district must also adopt grievance procedures that incorporate
appropriate due process standards and that provide for prompt and equitable
resolution of complaints alleging violations of the Section 504 regulations.
9<http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201301-504.html#ftn9>

A school district’s legal obligation to comply with Section 504 and the
Department’s regulations supersedes any rule of any association,
organization, club, or league that would render a student ineligible to
participate, or limit the eligibility of a student to participate, in any
aid, benefit, or service on the basis of
disability.10<http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201301-504.html#ftn10>
Indeed,
it would violate a school district’s obligations under Section 504 to
provide significant assistance to any association, organization, club,
league, or other third party that discriminates on the basis of disability
in providing any aid, benefit, or service to the school district’s students.
11<http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201301-504.html#ftn11>
To
avoid violating their Section 504 obligations in the context of
extracurricular athletics, school districts should work with their athletic
associations to ensure that students with disabilities are not denied an
equal opportunity to participate in interscholastic
athletics.12<http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201301-504.html#ftn12>

*II. Do Not Act On Generalizations and Stereotypes*

A school district may not operate its program or activity on the basis of
generalizations, assumptions, prejudices, or stereotypes about disability
generally, or specific disabilities in particular. A school district also
may not rely on generalizations about what students with a type of
disability are capable of—one student with a certain type of disability may
not be able to play a certain type of sport, but another student with the
same disability may be able to play that sport.

*Example 1*: A student has a learning disability and is a person with a
disability as defined by Section 504. While in middle school, this student
enjoyed participating in her school’s lacrosse club. As she enters the
ninth grade in high school, she tries out and is selected as a member of
the high school’s lacrosse team. The coach is aware of this student’s
learning disability and believes that all students with the student’s
particular learning disability would be unable to play successfully under
the time constraints and pressures of an actual game. Based on this
assumption, the coach decides never to play this student during games. In
his opinion, participating fully in all the team practice sessions is good
enough.

*Analysis*: OCR would find that the coach’s decision violates Section 504.
The coach denied this student an equal opportunity to participate on the
team by relying solely on characteristics he believed to be associated with
her disability. A school district, including its athletic staff, must not
operate on generalizations or assumptions about disability or how a
particular disability limits any particular student. Rather, the coach
should have permitted this student an equal opportunity to participate in
this athletic activity, which includes the opportunity to participate in
the games as well as the practices. The student, of course, does not have a
right to participate in the games; but the coach’s decision on whether the
student gets to participate in games must be based on the same criteria the
coach uses for all other players (such as performance reflected during
practice sessions).

*III. Ensure Equal Opportunity for Participation*

A school district that offers extracurricular athletics must do so in such
manner as is necessary to afford qualified students with disabilities an
equal opportunity for
participation.13<http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201301-504.html#ftn13>
This
means making reasonable modifications and providing 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.14<http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201301-504.html#ftn14>
Of
course, a school district may adopt bona fide safety standards needed to
implement its extracurricular athletic program or activity. A school
district, however, must consider whether safe participation by any
particular student with a disability can be assured through reasonable
modifications or the provision of aids and
services.15<http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201301-504.html#ftn15>

Schools may require a level of skill or ability for participation in a
competitive program or activity; equal opportunity does not mean, for
example, that every student with a disability is guaranteed a spot on an
athletic team for which other students must try out. A school district
must, however, afford qualified students with disabilities an equal
opportunity for participation in extracurricular athletics in an integrated
manner to the maximum extent appropriate to the needs of the
student.16<http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201301-504.html#ftn16>
This
means that a school district must make reasonable modifications to its
policies, practices, or procedures whenever such modifications are
necessary to ensure equal opportunity, unless the school district can
demonstrate that the requested modification would constitute a fundamental
alteration of the nature of the extracurricular athletic activity.

In 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. 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). Alternatively, 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. Even if a
specific modification would constitute a fundamental alteration, the school
district would still be required to determine if other modifications might
be available that would permit the student’s participation.

To comply with its obligations under Section 504, a school district must
also provide a qualified student with a disability with needed aids and
services, if the failure to do so would deny that student an equal
opportunity for participation in extracurricular activities in an
integrated manner to the maximum extent appropriate to the needs of the
student.17<http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201301-504.html#ftn17>

*Example 2*: A high school student has a disability as defined by Section
504 due to a hearing impairment. The student is interested in running track
for the school team. He is especially interested in the sprinting events
such as the 100 and 200 meter dashes. At the tryouts for the track team,
the start of each race was signaled by the coach’s assistant using a visual
cue, and the student’s speed was fast enough to qualify him for the team in
those events. After the student makes the team, the coach also signals the
start of races during practice with the same visual cue. Before the first
scheduled meet, the student asks the district that a visual cue be used at
the meet simultaneously when the starter pistol sounds to alert him to the
start of the race. Two neighboring districts use a visual cue as an
alternative start in their track and field meets. Those districts report
that their runners easily adjusted to the visual cue and did not complain
about being distracted by the use of the visual cue.

After conducting an individualized inquiry and determining that the
modification is necessary for the student to compete at meets, the district
nevertheless refuses the student’s request because the district is
concerned that the use of a visual cue may distract other runners and
trigger complaints once the track season begins. The coach tells the
student that although he may practice with the team, he will not be allowed
to participate in meets.

*Analysis*: OCR would find that the school district’s decision violates
Section 504.

While a school district is entitled to set its requirements as to skill,
ability, and other benchmarks, it must provide a reasonable modification if
necessary, unless doing so would fundamentally alter the nature of the
activity. Here, the student met the benchmark requirements as to speed and
skill in the 100 and 200 meter dashes to make the team. Once the school
district determined that the requested modification was necessary, the
school district was then obligated to provide the visual cue unless it
determined that providing it would constitute a fundamental alteration of
the activity.

In this example, OCR would find that the evidence demonstrated that the use
of a visual cue does not alter an essential aspect of the activity or give
this student an unfair advantage over others. The school district should
have permitted the use of a visual cue and allowed the student to compete.

*Example 3*: A high school student was born with only one hand and is a
student with a disability as defined by Section 504. This student would
like to participate on the school’s swim team. The requirements for joining
the swim team include having a certain level of swimming ability and being
able to compete at meets. The student has the required swimming ability and
wishes to compete. She asks the school district to waive the “two-hand
touch” finish it requires of all swimmers in swim meets, and to permit her
to finish with a “one-hand touch.” The school district refuses the request
because it determines that permitting the student to finish with a
“one-hand touch” would give the student an unfair advantage over the other
swimmers.

*Analysis*: A school district must conduct an individualized assessment to
determine whether the requested modification is necessary for the student’s
participation, and must determine whether permitting it would fundamentally
alter the nature of the activity. Here, modification of the two-hand touch
is necessary for the student to participate. In determining whether making
the necessary modification – eliminating the two-hand touch rule – would
fundamentally alter the nature of the swim competition, the school district
must evaluate whether the requested modification alters an essential aspect
of the activity or would give this student an unfair advantage over other
swimmers.

OCR would find a one-hand touch does not alter an essential aspect of the
activity. If, however, the evidence demonstrated that the school district’s
judgment was correct that she would gain an unfair advantage over others
who are judged on the touching of both hands, then a complete waiver of the
rule would constitute a fundamental alteration and not be required.

In such circumstances, the school district would still be required to
determine if other modifications were available that would permit her
participation. In this situation, for example, the school district might
determine that it would not constitute an unfair advantage over other
swimmers to judge the student to have finished when she touched the wall
with one hand and her other arm was simultaneously stretched forward. If
so, the school district should have permitted this modification of this
rule and allowed the student to compete.

*Example 4*: An elementary school student with diabetes is determined not
eligible for services under the IDEA. Under the school district’s Section
504 procedures, however, he is determined to have a disability. In order to
participate in the regular classroom setting, the student is provided
services under Section 504 that include assistance with glucose testing and
insulin administration from trained school personnel. Later in the year,
this student wants to join the school-sponsored gymnastics club that meets
after school. The only eligibility requirement is that all gymnastics club
members must attend that school. When the parent asks the school to provide
the glucose testing and insulin administration that the student needs to
participate in the gymnastics club, school personnel agree that it is
necessary but respond that they are not required to provide him with such
assistance because gymnastics club is an extracurricular activity.

*Analysis*: OCR would find that the school’s decision violates Section 504.
The student needs assistance in glucose testing and insulin administration
in order to participate in activities during and after school. To meet the
requirements of Section 504 FAPE, the school district must provide this
needed assistance during the school day.

In addition, the school district must provide this assistance after school
under Section 504 so that the student can participate in the gymnastics
club, unless doing so would be a fundamental alteration of the district’s
education program. Because the school district always has a legal
obligation under IDEA to provide aids or services in its education program
to enable any IDEA-eligible students to participate in extracurricular
activities,18<http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201301-504.html#ftn18>
providing
these aids or services after school to a student with a disability not
eligible under the IDEA would rarely, if ever, be a fundamental alteration
of its education program. This remains true even if there are currently no
IDEA-eligible students in the district who need these aids or services.

In this example, OCR would find that the school district must provide
glucose testing and insulin administration for this student during the
gymnastics club in order to comply with its Section 504 obligations. The
student needs this assistance in order to participate in the gymnastics
club, and because this assistance is available under the IDEA for
extracurricular activities, providing this assistance to this student would
not constitute a fundamental alteration of the district’s education program.
19<http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201301-504.html#ftn19>

*IV. Offering Separate or Different Athletic Opportunities*

As stated above, in providing or arranging for the provision of
extracurricular athletics, a school district must ensure that a student
with a disability participates with students without disabilities to the
maximum extent appropriate to the needs of that student with a
disability.20<http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201301-504.html#ftn20>
The
provision of*unnecessarily* separate or different services is
discriminatory.21<http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201301-504.html#ftn21>
OCR
thus encourages school districts to work with their community and athletic
associations to develop broad opportunities to include students with
disabilities in all extracurricular athletic activities.

Students with disabilities who cannot participate in the school district’s
existing extracurricular athletics program – even with reasonable
modifications or aids and services – should still have an equal opportunity
to receive the benefits of extracurricular athletics. When the interests
and abilities of some students with disabilities cannot be as fully and
effectively met by the school district’s existing extracurricular athletic
program, the school district should create additional opportunities for
those students with disabilities.

In those circumstances, a school district should offer students with
disabilities opportunities for athletic activities that are separate or
different from those offered to students without disabilities. These
athletic opportunities provided by school districts should be supported
equally, as with a school district’s other athletic activities. School
districts must be flexible as they develop programs that consider the unmet
interests of students with disabilities. For example, an ever-increasing
number of school districts across the country are creating
disability-specific teams for sports such as wheelchair tennis or
wheelchair basketball. When the number of students with disabilities at an
individual school is insufficient to field a team, school districts can
also: (1) develop district-wide or regional teams for students with
disabilities as opposed to a school-based team in order to provide
competitive experiences; (2) mix male and female students with disabilities
on teams together; or (3) offer “allied” or “unified” sports teams on which
students with disabilities participate with students without
disabilities.22<http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201301-504.html#ftn22>
OCR
urges school districts, in coordination with students, families, community
and advocacy organizations, athletic associations, and other interested
parties, to support these and other creative ways to expand such
opportunities for students with
disabilities.23<http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201301-504.html#ftn23>

*V. Conclusion*

OCR is committed to working with schools, students, families, community and
advocacy organizations, athletic associations, and other interested parties
to ensure that students with disabilities are provided an equal opportunity
to participate in extracurricular athletics. Individuals who believe they
have been subjected to discrimination may also file a complaint with OCR or
in court.24<http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201301-504.html#ftn24>

For the OCR regional office serving your area, please visit:
http://wdcrobcolp01.ed.gov/CFAPPS/OCR/contactus.cfm, or call OCR’s Customer
Service Team at 1-800-421-3481 (TDD 1-877-521-2172).

Please do not hesitate to contact us if we can provide assistance in your
efforts to address this issue or if you have other civil rights concerns. I
look forward to continuing our work together to ensure that students with
disabilities receive an equal opportunity to participate in a school
district’s education program.

Sincerely,

/s/

Seth M. Galanter
Acting Assistant Secretary for Civil Rights

[image: http://www2.ed.gov/images/ed_c_dline.gif]

1<http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201301-504.html#note1>
United
States Government Accountability Office, *Students with Disabilities: More
Information and Guidance Could Improve Opportunities in Physical Education
and Athletics*, No. GAO-10-519, at 1, 31 (June 2010), *available at*
http://www.gao.gov/assets/310/305770.pdf.

2<http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201301-504.html#note2>
* Id.* at 20-22, 25-26.

3<http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201301-504.html#note3>
29
U.S.C. § 794(a), (b). Pursuant to a delegation by the Attorney General of
the United States, OCR shares in the enforcement of Title II of the
Americans with Disabilities Act of 1990, which is a Federal law prohibiting
disability discrimination in the services, programs, and activities of
state and local governments (including public school districts), regardless
of whether they receive Federal financial assistance. 42 U.S.C. § 12132.
Violations of Section 504 that result from school districts’ failure to
meet the obligations identified in this letter also constitute violations
of Title II. 42 U.S.C. § 12201(a). To the extent that Title II provides
greater protection than Section 504, covered entities must comply with
Title II’s substantive requirements. OCR also enforces Title IX of the
Education Amendments of 1972, which prohibits discrimination on the basis
of sex in education programs that receive Federal financial assistance. 20
U.S.C. § 1681. For more information about the application of Title IX in
athletics, see OCR’s “Reading Room,” “Documents – Title IX,” at
http://www.ed.gov/ocr/publications.html#TitleIX-Docs.

4<http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201301-504.html#note4>
34
C.F.R. §§ 104.4, 104.47. The U.S. Department of Education has determined
that this document is a “significant guidance document” under the Office of
Management and Budget's Final Bulletin for Agency Good Guidance Practices,
72 Fed. Reg. 3432 (Jan. 25, 2007). OCR issues this and other policy
guidance to provide recipients with information to assist them in meeting
their obligations, and to provide members of the public with information
about their rights under the civil rights laws and implementing regulations
that we enforce. OCR’s legal authority is based on those laws and
regulations. This letter does not add requirements to applicable law, but
provides information and examples to inform recipients about how OCR
evaluates whether covered entities are complying with their legal
obligations. If you are interested in commenting on this guidance, please
send an e-mail with your comments to OCR at ed.gov, or write to us at the
following address: Office for Civil Rights, U.S. Department of Education,
400 Maryland Avenue, SW, Washington, DC 20202.

5<http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201301-504.html#note5>
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). For additional
information on the broadened meaning of disability after the effective date
of the 2008 Amendments Act, see OCR’s 2012 Dear Colleague Letter and
Frequently Asked Questions document, available at
http://www.ed.gov/ocr/letters/colleague-201109.html, and
http://www.ed.gov/ocr/docs/dcl-504faq-201109.html.

6<http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201301-504.html#note6>
34
C.F.R. § 104.3(*l*)(2).

7<http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201301-504.html#note7>
34
C.F.R. § 104.4(b)(1)(i)-(iv), (vii), (2), (3). Among the many specific
applications of these general requirements, Section 504 prohibits
harassment on the basis of disability, including harassment that occurs
during extracurricular athletic activities. OCR issued a Dear Colleague
letter dated October 26, 2010, that addresses harassment, including
disability harassment, in educational settings. *See *Dear Colleague
Letter: Harassment and Bullying, available at
http://www.ed.gov/ocr/letters/colleague-201010.html. For additional
information on disability-based harassment, see OCR’s Dear Colleague
Letter: Prohibited Disability Harassment (July 25, 2000), available at
http://www.ed.gov/ocr/docs/disabharassltr.html.

8<http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201301-504.html#note8>
34
C.F.R. § 104.33(a). Section 504 FAPE may include services a student
requires in order to ensure that he or she has an equal opportunity to
participate in extracurricular and other nonacademic activities. One way to
meet the Section 504 FAPE obligation is to implement an individualized
education program (IEP) developed in accordance with the IDEA. 34 C.F.R. §
104.33(b)(2). Because the IDEA is not enforced by OCR, this document is not
intended as an explanation of IDEA requirements or implementing
regulations, which include the requirement that a student’s IEP address the
special education, related services, supplementary aids and services,
program modifications, and supports for school personnel to be provided to
enable the student to, among other things, participate in extracurricular
and other nonacademic activities. 34 C.F.R. § 300.320(a)(4)(ii). In
general, OCR would view a school district’s failure to address
participation or requests for participation in extracurricular athletics
for a qualified student with a disability with an IEP in a manner
consistent with IDEA requirements as a failure to ensure Section 504 FAPE
and an equal opportunity for participation.

9<http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201301-504.html#note9>
34
C.F.R. § 104.7(b).

10<http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201301-504.html#note10>
34
C.F.R. § 104.10(a), 34 C.F.R. § 104.4(b)(1).

11<http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201301-504.html#note11>
34
C.F.R. § 104.4(b)(1)(v); 34 C.F.R. pt. 104, App. A § 104.4 at 367 (2012).

12<http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201301-504.html#note12>
OCR
would find that an interscholastic athletic association is subject to
Section 504 if it receives Federal financial assistance or its members are
recipients of Federal financial assistance who have ceded to the
association controlling authority over portions of their athletic program. *Cf.
Cmtys. for Equity v. Mich. High Sch. Athletic Ass’n, Inc.*, 80 F.Supp.2d
729, 733-35 (W.D. Mich. 2000) (at urging of the United States, court
finding that an entity with controlling authority over a program or
activity receiving Federal financial assistance is subject to Title IX’s
anti-discrimination rule). Where an athletic association is covered by
Section 504, OCR would find that the school district’s obligations set out
in this letter would apply with equal force to the covered athletic
association.

13<http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201301-504.html#note13>
34
C.F.R. § 104.37(a), (c).

14<http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201301-504.html#note14>*
See
Alexander v. Choate*, 469 U.S. 287, 300-01 (1985) (Section 504 may require
reasonable modifications to a program or benefit to assure meaningful
access to qualified persons with disabilities); *Southeastern Cmty. Coll.
v. Davis*, 442 U.S. 397 (1979) (Section 504 does not prohibit a college
from excluding a person with a serious hearing impairment as not qualified
where accommodating the impairment would require a fundamental alteration
in the college’s program).

15<http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201301-504.html#note15>
34
C.F.R. § 104.4(b)(1).

16<http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201301-504.html#note16>
34
C.F.R. § 104.37(a), (c); 34 C.F.R. § 104.34(b); 34 C.F.R. §
104.4(b)(1)(ii).

17<http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201301-504.html#note17>
34
C.F.R. § 104.37(a), (c); 34 C.F.R. § 104.34(b); 34 C.F.R. §
104.4(b)(1)(ii). Although a school district may also raise the defense that
a needed modification or aid or service would constitute an undue burden to
its program, based on OCR’s experience, such a defense would rarely, if
ever, prevail in the context of extracurricular athletics; for this reason,
to the extent the examples in this letter touch on applicable defenses, the
discussion focuses on the fundamental alteration defense. To be clear,
however, neither the fundamental alteration nor undue burden defense is
available in the context of a school district’s obligation to provide a
FAPE under the IDEA or Section 504. *See* 20 U.S.C. § 1414(d)(1); 34 C.F.R.
§ 104.33. Moreover, whenever the IDEA would impose a duty to provide aids
and services needed for participation in extracurricular athletics (as
discussed in footnote 8 above), OCR would likewise rarely, if ever, find
that providing the same needed aids and services for extracurricular
athletics constitutes a fundamental alteration under Section 504 for
students not eligible under the IDEA.

18<http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201301-504.html#note18>
20
U.S.C. §§ 1412(a)(1), 1414(d)(1)(A)(i)(IV)(bb); 34 CFR §§
300.320(a)(4)(ii), 300.107, 300.117; *see also *footnotes 8 & 17, above.

19<http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201301-504.html#note19>
34
C.F.R. § 104.37.

20<http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201301-504.html#note20>
34
C.F.R. § 104.34(b).

21<http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201301-504.html#note21>
34
C.F.R. pt. 104, App. A § 104.4 at 367 (2012); 34 C.F.R. pt. 104, App. A §
104.37 at 376 (2012).

22<http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201301-504.html#note22>
The
Department’s Office of Special Education and Rehabilitative Services issued
a guidance document that, among other things, includes suggestions on ways
to increase opportunities for children with disabilities to participate in
physical education and athletic activities. That guidance, *Creating Equal
Opportunities for Children and Youth with Disabilities to Participate in
Physical Education and Extracurricular Athletics*, dated August 2011, is
available athttp://www2.ed.gov/policy/speced/guid/idea/equal-pe.pdf.

23<http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201301-504.html#note23>
It
bears repeating, however, that a qualified student with a disability who
would be able to participate in the school district’s existing
extracurricular athletics program, with or without reasonable modifications
or the provision of aids and services that would not fundamentally alter
the program, may neither be denied that opportunity nor be limited to
opportunities to participate in athletic activities that are separate or
different. 34 C.F.R. § 104.37(c)(2).

24<http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201301-504.html#note24>
34
C.F.R. § 104.61 (incorporating 34 C.F.R. § 100.7(b)); *Barnes v. Gorman*,
536 U.S. 181, 185 (2002).

-- 
Carlton Anne Cook Walker
Attorney at Law
President, National Organization of Parents of Blind Children
Teacher of Students with Blindness/Visual Impairment
105 Creamery Road
Boiling Springs, PA   17007
Voice: 717-658-9894
Twitter: braillemom

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