Section 504 of the Rehabilitation Act of 1973 prohibits discrimination on the basis of disability in programs and activities. All schools that receive federal financial assistance are subject to its requirements. The United States Department of Education, Office for Civil Rights ("OCR"), is charged with the responsibility of enforcing school districts' compliance with the requirements of Section 504.
On January 25, 2013, OCR issued a "Dear Colleague" letter, which is a significant guidance document in this area. OCR issued this guidance to provide school districts to assist them in meeting their obligations, and to provide members of the public with information about their rights, under Section 504.
The letter analyzed and re-iterated the OCR's position on school districts' responsibilities in this area. Public schools need to be aware of this Dear Colleague letter, because it signals a possible enforcement emphasis by the OCR.
The OCR pointed out that simply because a student is qualified as a student with a disability, that does not mean that the student must be allowed to participate in any selective or competitive activity. School districts may continue to require a level of skill or ability of a student in order for that student to participate in the program or activity. The selection or competition criteria may not be discriminatory, however.
Additionally, a school district's obligation to comply with Section 504 supersedes any rule of any athletic association, organization, club or league that might otherwise render a student ineligible to participate or limit eligibility. This would include rules promulgated by state high school athletic associations.
The Dear Colleague letter contains examples of actions that OCR would find unacceptable. These include school district making decisions, or operating programs or activities, based on generalizations, assumptions, prejudice, or stereotypes about disabilities. Additionally, a school district may not rely on generalizations about the abilities of students with the same type of disability, because one student with a certain type of disability may not be able to participate effectively in a sport, while another student with the same disability may be able to participate effectively.
Finally, the Dear Colleague letter emphasized that extracurricular activities must be offered in such a manner as to afford qualified students with disabilities an equal opportunity for participation. This may mean making reasonable modifications and providing aids and services that are necessary to ensure such an equal opportunity (unless the school district can prove that doing so would be a fundamental alteration to its program).
A school district may still adopt bona fide safety standards when implementing an extracurricular athletic program or activity. Schools must consider, however, whether safe participation by a student with a disability can be assured, through reasonable modifications, or through the provision of aids and services.