OCR's New Guidance: a "Title IX" for Students with Disabilities

Yesterday, the Department of Education's Office for Civil Rights announced new guidance for public elementary and secondary schools regarding their obligation to provide athletic opportunities for students with disabilities.  Public schools are subject to the 1973 Rehabilitation Act, Section 504 of which prohibits federally funded programs from discriminating against or excluding individuals on the basis of disability.  While the Department of Education's regulations implementing 504 call for equal opportunity for students with disabilities to participate in extracurricular activities and athletics, yesterday's guidance clarifies what schools must do under the law to include students with disabilities in athletic programs.

First, the guidance prohibits schools from limiting athletic opportunities due to generalizations and stereotypes about students with disabilities.  For example, it would be unlawful for a high school coach to exclude a player based on her learning disability, on the belief that all students with learning disabilities are incapable of handling both schoolwork and sports.  Instead, the coach must use the same criteria for eligibility that apply to other students.

Second, schools must make reasonable modifications to existing athletic programs, where doing so would enable the participation of a students with disabilities without altering the fundamental nature of the program or put students' safety at risk.  As an example of a reasonable modification, OCR describes a track competition where the schools agree that the race start will be signaled by a visual cue along with the starting gun, in order to accommodate a student whose hearing is impaired.

Finally, where schools cannot accommodate students' participation in existing athletic programs, they must create additional athletic opportunities for students with disabilities.  When individual schools do not have a sufficient number of students with disabilities to field a team, they should consider district-wide or regional teams, co-ed teams, and "allied" or "unified" teams that allow students with and without disabilities to participate together.

Advocates for students with disabilities have expressed their hope that this guidance will do for them what Title IX has done for women and girls: end the presumption that they are incapable and uninterested in participating in sports, and expand the opportunities available for them to do so. Like Title IX, I expect this new guidance will trigger concern that accommodating students with disabilities will detract from existing opportunities.  But the fears that Title IX would cut into boys' athletic opportunity have not panned out. So if the Title IX analogy is correct, we'll see continued expansion of sports for all students, regardless of sex and regardless of disability.

Court Applies Title IX Standards to Harassment of Student With HIV

A recent decision from an Indiana federal district court applied Title IX's standard for institutional liability for peer harassment to a cause involving students' harassment of a fellow student who is HIV positive. Parents of P.R., a middle school student, sued the school claiming that its failure to address the harassment violated the Americans With Disabilities Act and the Rehabilitation Act. Consistent with other courts, the court borrowed the "deliberate indifference" requirement from case law interpreting Title IX, reasoning that the
Title IX's standards for imposing institutional liability for peer harassment should apply to ADA/Rehabilitation Act suits as well, owing to the similarities between the statutes. Where Title IX operates to ensure that no person is excluded from or discriminated against because of sex by federally-funded schools, the ADA and Rehabilitation Act ensure that person is excluded from or discriminated against because of disability in public programs.

After borrowing Title IX's peer harassment standard, the court proceeded to apply the standard to the allegations in the case. Ultimately, it concluded that the school could not be liable because it responded appropriately to each of the three alleged instances of harassment when they occurred. School officials met with offending individuals, and in one case, a student's parents. When the offender was a school employee (a coach who asked, seemingly innocently but with acknowledged insensitivity, whether P.R. had AIDS), the offender was admonished and apologized. None of the offenders re-offended, suggesting that the school's response was appropriate.

While ultimately this school district was held not to be liable for peer harassment of a student with HIV, the decision should help put schools on notice that they must be as diligent protecting student from harassment based on disability as they are required to be about harassment based on sex.

Decision is: P.R. ex rel. Rawl v. Metropolitan Sch. Dist. of Washington Township, 2010 WL 4457417 (S.D. Ind. Nov. 1., 2010).

City of Nashville Pays > $1 Million to Victim of School Bus Assault

The City of Nashville recently settled with a parent and the Department of Justice, whose lawsuit challenged the school district's failure to protect the plaintiff's 9 year old, autistic son from peer-on-peer sexual assault on the school bus provided to children with special needs. Last July, a federal district court denied the city's motion for summary judgment on several claims, including a Title IX claim, after determining that prior instances of assault on special needs school buses -- including by the perpetrator of assault in the instant case -- could be viewed as having put the city on notice of the risk to the plaintiff's son. Under the settlement, the city will pay $1.475 million to the victim to compensate him for damages resulting from the assault, including severe post-traumatic stress disorder. The city must also take preventive measures to protect students going forward, including staffing bus monitors on special needs buses, screening procedures to ensure that students are not assigned to buses where they would be at risk, expediting investigation of sexual harassment claims by students with disabilities, and improving communication between transportation officials and school personnel.

Decision on summary judgment is here: Lopez v. Municipal Gov't of Nashville, 646 F.2d 891 (M.D. Tenn. 2009).

A Title IX for Disabled Athletes?

In July, political efforts to enhance opportunities for disabled student-athletes reached two noteworthy milestones.

First, a law in Maryland requiring schools to provide equal access to sports and physical education classes to disabled athletes -- the first of its kind -- went into effect. The Fitness and Athletics Equity for Students with Disabilities Act gives Maryland schools three years to figure out ways to ensure participation opportunities for athletes like Tatyana McFadden, a wheelchair athlete who became the issue's public face after she sued for the right to participate in on her high school's track & field team, as well as to make equipment and facilities accessible. The only limitation on schools' obligation applies when inclusion "presents an objective safety risk" to the student or others or "fundamentally alters the nature" of the class or athletic programs. Advocates of the new legislation, including McFadden's mother, are calling the law the Title IX for disabled athletes. And, it seems, the opposition to the law will also strike a chord familiar to Title IX advocates, as some are concerned that the inclusion mandate could dilute the opportunities for 'real' athletes (those with "championship aspirations" in the words of this columnist).

After Maryland's law, the second milestone in the area of disability rights occurred when both houses of Congress held briefings on whether a law like Maryland's should apply on the national level. Aimee Mullins, president of the Women's Sports Foundation, analogized the likely effect of such a law to that of Title IX, testifying that "a similar law for the disabled could have the same impact." Advocates acknowledge that their political efforts are only at the "starting point" but suggest that a good first step would be for the Government Accountability Office to conduct a study of discrimination against disabled athletes in phys ed and scholastic sports -- something that the office routinely does in the area of gender.

Can Title IX benefit disabled athletes?*

This editorial briefly asks this question, wondering where the opportunities are for disabled athletes in the educational system and suggests that instead of being placed under special education, activities like wheelchair basketball should be under athletics like other sports. Or it recommends making sports into club activities which include disabled athletes. It is an interesting discussion--one that is not raised nearly enough--especially when we are speaking of student-athletes instead of elite level athletes who compete at the national and international levels.

*The answer is likely, no. What the editorial really illustrates is that a law that perhaps combines the philosophies of both Title IX and the Americans with Disabilities Act might be beneficial to disabled athletes.