School districts that do not provide deaf students "a visual cue" alongside a starter pistol to enable them to compete on the track team or create basketball and tennis leagues for students in wheelchairs will be in violation of federal law and could lose government funding.
On Friday, the Obama administration declared disabled students "have the right" to "an equal opportunity to participate in their schools' extracurricular activities." In essence, the Obama administration established the right for disabled students to play wheelchair basketball or wheelchair tennis.
The U.S. Department of Education sent a guidance letter to schools, school districts, and universities informing them of the new mandate, which noted that a "2010 report by the U.S. Government Accountability Office found that many students with disabilities are not afforded an equal opportunity to participate in athletics, and therefore may not have equitable access to the health and social benefits of athletic participation."
Seth Galanter, the Department’s Acting Assistant Secretary for Civil Rights, said the Department’s Office for Civil Rights (OCR) will enforce Section 504 of the Rehabilitation Act of 1973. He specifically noted that the Act was 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.”
If school districts and universities do not provide accommodations the OCR deems sufficient, they could lose federal funding. The mandate is being compared to Title IX, which deemed that no person should be excluded on the basis of sex from participation in, "denied the benefits of," or "subjected to discrimination under any education program or activity receiving federal financial assistance."
The Department of Education said, for instance, that schools that do not allow "a visual cue alongside a starter pistol to allow a student with a hearing impairment who is fast enough to qualify for the track team the opportunity to compete" would be in violation of federal law. Track athletes have in the past complained such visual cues could be distracting.
Further, the Department suggested schools should waive a swimming rule requiring the "two-hand touch" finish in swim events "so that a one-armed swimmer with the requisite ability can participate at swim meets."
Michael J. Petrilli, executive vice president of the Thomas B. Fordham Institute, wrote that it boggled his mind that the Obama administration, “without an ounce of public debate or deliberation, without an iota of Congressional authorization or approval, could declare by fiat that public schools nationwide must provide such programs or risk their federal education funding.”
He called the Obama administration’s actions a “regulatory rampage,” an “executive overreach,” and an “enormous unfunded mandate.”
“The step that federal officials are taking today will have wide-ranging consequences for decades to come,” Petrilli said. “It potentially puts school districts on the hook for billions of dollars in new spending.”
The guidance also notes the "law does not require that a student with a disability be allowed to participate in any selective or competitive program offered by a school district, so long as the selection or competition criteria are not discriminatory."
However, Galanter emphasized that school districts must ensure that even disabled students who cannot participate in a district’s “existing extracurricular athletics program – even with reasonable modifications or aids and services – should still have an equal opportunity” to play sports, in essence creating a right for disabled students to play in separate or parallel leagues.
“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,” Galanter wrote in the guidance letter to schools and school districts across the country.
In addition, the Department of Education encourages schools to develop ways for disabled students to play competitive sports even “when the number of students with disabilities at an individual school is insufficient to field a team.”
“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,” the guidance letter reads.
The Department suggested school districts can collaborate on “district-wide or regional teams for students with disabilities as opposed to a school-based team,” “mix male and female students with disabilities on teams together,” or offer “allied” or “unified” sports teams “on which students with disabilities participate with students without disabilities.”
Petrilli, of the Thomas J. Fordham Institute, acknowledged that the American people “are a compassionate lot” and would “support the notion that kids with disabilities should get to play sports.”
He concluded, though, that elected representatives should ultimately decide how kids with disabilities should get access to sports instead of “faceless bureaucrats in the Office of Civil Rights.”