Meeting the Civil Rights of Student Athletes With Disabilities

8/13/2019 Meeting the Civil Rights of Student Athletes With Disabilities

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Looking Forward toChallenges of Mee

the Civil Rights of Athletes with Disa

Jonathan M. Minear, J.D.

Attorney, Helsell Fetterman LLP

Seattle, Washington

Cinda Johnson, Ed.D.

Associate Professor, Seattle Unive


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The Problem

Children and adolescents are getting less exercise t

before.

Low levels of physical activity correspond to higher

inactivity, obesity, and other health problems in adu

June 2010 report by the U.S. Government Accountability Office

Center for Disease Control and Prevention, http://www.cdc.gov/obesity/index.html


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Issues, continued

Copyright by FBellon Republished under terms of the Creative Commons Attribution 2.0 Generic License

http://en.wikipedia.org/wiki/File:Computadoras_y_Obesidad.jpg


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Issues, continued

Children and youth with physical and developmedisabilities engage in even less physical activitytimes less activity than their peers without disab

Students with physical and developmental disabhave fewer opportunities to participate in

extracurricular athletics than students with intelldisabilities, at least partly because fewer progradesigned or adapted to fit the needs of students

disabilities.


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Federal Law - Least Restrictive Environmen

General education has three dimensions: the acacurriculum, extracurricular activities, and nonacade

activities.

Presumption of inclusion is only set aside if the studdisabilities cannot benefit from being educated with

students without disabilities and only after that studbeen provided supplementary aids and services in tgeneral education setting.


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Section 504 of the Rehabilitation Act of 19

Forty years ago, Congress enacted the Rehabilitatio1973 as a comprehensive federal program to empo

individuals with disabilities.

Section 504 of the Rehabilitation Act mandatesnondiscrimination and reasonable accommodation

Entities that receive federal funds directly or indirec

schools) must provide aids that afford equal opportpeople with disabilities.


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PGA Tour, Inc. v. Casey Martin

Casey Martin was a successful professional golfer in1990s and 2000s.

Birth defect in right leg that prevented him from wafull golf course.

He sued the PGA Tour under the Americans with Dis

Act for the right to use a golf cart during competitio

In 2001, the US Supreme Court held that the Tour clawfully deny him the option to ride in the cart betwshots.


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OCRs Dear Colleague Letter dated 1/25/13

Department of Educations Office for Civil Rights (OCR)

According to OCR, the purpose of its letter was to clarify exiobligations to provide equal opportunities in athletics to studisabilities.

Directs school districts to make reasonable modifications aaccommodations for students with disabilities that allow m

opportunities to participate. Explains that a school districts obligation to comply with Se

and its regulations supersedes any rule of any association,organization, club, or league that might prohibit a student fparticipating, or limit the eligibility of a student to participatbasis of disability.


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Three Main Parts of OCRs Guidance Letter

1. Stereotypes and Generalizations2. Equal Opportunities (Reasonable Modificatio

Fundamental Alterations)

3. Separate or Different Opportunities


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1. Stereotypes

Schools may not operate their athletic programs onthe basis of generalization or stereotypes about thecapabilities of students with disabilities.

No students are not guaranteed a spot on the team

Example: Lacrosse player with learning disabilities


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1. Stereotypes, continued

Anthony Robles,2010-11 NCAA Wrestling Champion, 125 lb weight class

Copyright Unknown http://lobshots.wordpress.com/2011/03/21/man-crush-of-the-week-one-legged-wrestler-anthony-robles/


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2. Equal Opportunities, continued

If a student requests a modification that goes too far (i.e., c

an improper fundamental alteration), the school must loo

less-drastic modifications would allow the students particip

Schools should not deny requests for aids or services after s

hours because OCR has stated that it would rarely, if ever, a

those requests fundamentally alter the schools education p


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Oscar Pistorius

Olympian

Copyright by Erik van Leeuwen - Republished under terms of GNU Free Documentation License.

http://en.wikipedia.org/wiki/File:Oscar_Pistorius_2_Daegu_2011.jpg


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John Olerud

MLB First Baseman

Copyright Unknown - Republished under terms of Creative Commons Attribution ShareAlike 3.0 License.

http://en.wikipedia.org/wiki/File:John_Olerud.JPG


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Highly individualized fact-specific inquiry.

Examples:

Hearing-impaired track and field athlete

One handed swimmer

Gymnast with diabetes


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3. Separate or Different Opportunities

According to OCR, where reasonable modifications wnot permit students with disabilities to participate in

existing athletics programs, schools should work to cseparate or different programs.

Example: wheelchair basketball, etc.

OCR is encourages that schools take this step.


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Takeaways from the Letter

Primarily, OCR is signaling that it will set a high b

for schools to establish that they appropriatelyconducted their individualized determinations abrequested modifications.

OCR warns school districts not to rely on state at

conference requirements that run afoul of Sectioor other federal law.


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Takeaways from the Letter, continued

Funding is an important question.

In opining what school districts should be doing,

creating new equally-funded adaptive sports leagOCR walks the line of creating an unfunded fedemandate.


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OCRs position that these regulations supersede

rule of any association will likely be problematic application to students with physical disabilities,than mental disabilities.

Many sports rules are designed to ensure a playe

safety and should carefully considered beforeeliminated in an effort to accommodate student

physical disabilities.


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The letter discusses how that students with disa

need the opportunity to benefit from athletic pro

Does that mean to establish an affirmative obligon schools to enroll such students in one or morecurricular sports activities? Probably not, but un


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Preparing to Meet Expectations

Educate staff on uncertain, shifting legal standa

Stimulate and support inter-departmental collab

Form a review committee

Craft IEPs with precision

Explore new athletic options


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Proposed Case Study

Student who is diagnosed with autism has participated

and-field team, throwing in the shot put competition.

Disability is most apparent in social situations and wit

Behaviors that are exacerbated when he becomes anxduring transitional events, like riding a bus to a track aevent and when waiting with peers before his event.

With an adult nearby providing him directions and supable to appropriately wait for his event.

Thoughts?


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Contact Information

Jonathan Minear, J.D.

[email protected] 206-689-2161

Karen Kalzer, J.D.

[email protected]

206-689-2125

Cinda Johnson, Ed.D.

[email protected]

206-296-5888

Documents

Meeting the Civil Rights of Student Athletes With Disabilities