Section 504 of the Rehabilitation Act provides that “No otherwise qualified individual with a disability in the United States … shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” As you know, school districts are subject to Section 504 and must provide students with disabilities equal access to their programs, including extracurricular athletic programs. (See recent FR Alert “New OCR Guidance Lays Out School District Responsibilities to Serve Students with Disabilities in Athletics” for information on OCR’s recent Dear Colleague Letter on this topic.) Although the application of Section 504 to high school athletic associations may previously not have been entirely clear, two recent district court cases and guidance from OCR indicate that the Illinois High School Association (IHSA) must comply with Section 504.

Last spring, Fenwick swimmer Mary Kate Callahan and Attorney General Lisa Madigan filed suit against the IHSA claiming that it violated Section 504 and the Americans with Disabilities Act (ADA) by failing to provide students with disabilities equal opportunities to compete in state, sectional, and qualifying meets. The IHSA filed a motion to dismiss, arguing it was not subject to Section 504 or the ADA. The court, however, denied the motion to dismiss, finding that Ms. Callahan and the Attorney General had pled sufficient facts to state a claim under these anti-discrimination laws. The IHSA and Callahan reached an agreement to resolve some of the issues whereby IHSA agreed to offer four events for swimmers with disabilities at the sectional and state meets. Callahan and six other swimmers competed in these events last November at the state meet.

And in a case brought by Gordon Tech wrestler Matthew Lyon, Mr. Lyon alleged that the IHSA violated Section 504 and the ADA when it refused to make a reasonable accommodation for his disability. Lyon is a student with an IEP due to his ADHD. He was ineligible to compete during part of his junior year due to academic problems, problems that also caused Lyon to repeat his junior year. Lyon asked the IHSA to waive its 4-year/ 8-semester rule so that he could compete during his senior year, but the IHSA refused. The court issued a temporary injunction requiring the IHSA to provide Lyon the reasonable accommodation of modification of its 4-year/ 8-semester eligibility rule.

Finally, OCR, in its January 25, 2013 Dear Colleague Letter, stated that “OCR would find that an interscholastic athletic association is subject to Section 504 if it receives Federal financial assistance or its members are recipients of Federal financial assistance who have ceded to the association controlling authority over portions of their athletic program.” Athletic associations covered under Section 504, like school districts, must not discriminate on the basis of disability and must provide reasonable modifications, aids, and services that are necessary to ensure students with disabilities have an equal opportunity to participate (unless it would result in a fundamental alteration to the program). OCR also states that a school district cannot rely on a rule of the athletic association to deny or limit a student with a disability’s opportunity to participate, but instead must work with the athletic association to ensure that students with disabilities have an equal opportunity to participate in interscholastic athletics.

These recent developments indicate that the IHSA and school districts need to collaborate to ensure that student athletes with disabilities are afforded equal opportunities to participate in interscholastic athletics, making individualized determinations about accommodations and expanding opportunities for students who cannot participate in existing extracurricular programs.