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    September 2019

    Assessing Extracurricular Modifications for Public School Students With Disabilities

    Extracurricular activities teach public school students skills they don’t receive inside the classroom. It’s an important goal to ensure inclusivity by making these opportunities available to students with disabilities.

    Yet identifying appropriate modifications that will provide students with disabilities equal access to extracurricular activities can be tricky for even the most seasoned special education professionals. To determine appropriate extracurricular activity modifications, administrators should evaluate the student’s qualification, necessity of the changes, impact on the activity, and alternative forms of modifications.


    Regulatory Background

    Section 504 of the Rehabilitation Act of 1973 (Section 504) requires public school districts to provide students with disabilities opportunities to participate in extracurricular activities equal to those of their non-disabled peers. Both Section 504 and the Individuals With Disabilities Education Act (IDEA) also require schools to provide students with disabilities a free, appropriate public education, and the IDEA specifically requires Individualized Education Program (IEP) teams to take steps to provide “nonacademic and extracurricular services and activities in the manner necessary to afford children with disabilities an equal opportunity for participation in those services and activities.”

    When disagreements arise it’s typically because of the Section 504 standard, especially the requirement that a school provide necessary aids, services, or reasonable modifications to allow students with disabilities equal access to an activity unless doing so would fundamentally alter the nature of the activity.

    In a 2013 letter, the Department of Education’s Office for Civil Rights (OCR) clarified that school districts may create minimum requirements and tryouts for extracurricular activities if the selection criteria are not discriminatory. The letter also confirmed that schools are not required to create separate or different activities for students with disabilities. However, districts should consider developing regional teams and opportunities for students with disabilities who are not otherwise served by school offerings. For example, many districts now offer wheelchair basketball teams.


    Four Questions to Assess Need for Modifications

    Extracurricular activities must be offered in a way that affords qualified students with disabilities an equal opportunity for participation. By answering these questions, schools can better identify when to implement modifications.


    1. Is the student a qualified student with a disability?
      Section 504 requirements only apply to qualified students with disabilities (persons who are entitled to an education under state or federal law). For example, in many jurisdictions once a person with a disability reaches the age of 21, she or he is not entitled to an education under the law and therefore not classified as a qualified student.

    2. Is a modification necessary for equal opportunity?
      To determine whether modifications are needed, schools must conduct an individualized inquiry. People with the appropriate knowledge and expertise (such as the extracurricular sponsor, the student, the student’s teachers, and the student’s parents) should meet to determine whether there are reasonable modifications or aids and services that would provide the student equal access to the activity.

      To avoid unnecessary assumptions about how a disability may limit the student, use the same participation criteria for students with disabilities as you would for other students. For example, a chess team might reasonably limit participation to students who win 50% of games played in a tryout. However, if a student with limited sight tried out for the team one year, it would be unreasonable to create a new criterion that students must have full vision.

    3. Would there be a fundamental alteration if the modification was allowed?
      If a modification is needed for a student to participate, it must be allowed unless doing so would result in a fundamental alteration of the nature of the activity. To assess whether a modification would constitute a fundamental alteration, consider whether the change would (1) alter such an essential aspect of an activity that it would be unacceptable even if it affected all competitors equally (such as adding an extra base in baseball) or (2) give a student an unfair advantage over others.

    4. Are other modifications, aids, or services available that would not be a fundamental alteration?
      If a requested modification would constitute a fundamental alteration, the school district is required to determine whether other modifications would permit the student’s participation. Below are sample modification requests that constitute fundamental alterations and alternate modifications that permit the student’s participation.

    Student Requesting Accommodation

    Fundamental Alteration

    Alternate Modification

    Archer with cerebral palsy

    Modify the archery bow, which is not allowed per national standards.

    Allow the archer to use a stand to help her hold the bow.

    Debater who is hard of hearing

    Ask competitors to slow their speech.

    Provide speech recognition software that can create live captions.

    Swimmer born with one hand

    Allow the swimmer to finish a race by just touching the wall with one hand when other team members are judged by a “two-hand touch” rule.

    Allow the swimmer to finish a race by touching the wall with one hand while simultaneously having the other arm fully stretched forward.


    If a school determines an activity modification is necessary to allow a student equal access but denies all modification requests, it may be appropriate for the school to allow an appeal of the assessment through the school, district, or state. Because they vary by jurisdiction, review your school’s IDEA and Section 504 appellate procedures with local legal counsel.


    Resources

    Sweetwater County School District #2 — 504 Parent Guide

    Ohio High School Athletic Association — Students With Disabilities

    Montgomery County Public Schools — Coaching Students With Disabilities

    By John Swinney, John Relias, and Jackie Gharapour Wernz, attorneys on the special education team at Franczek PC in Chicago

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