The Historical and Legal Background Leading to the Office of Civil Rights "Dear Colleague Letter"

Article excerpt

On January 24, 2013 the Office for Civil Rights issued a Dear Colleague Letter clarifying schools' obligations under the Rehabilitation Act of 1973 (Rehab Act) to provide extracurricular athletic opportunities for students with disabilities. The 2013 Dear Colleague Letter encourages schools to comply with the Rehabilitation Act and work proactively to include students with disabilities in athletic programs to satisfy their civil rights regarding equal educational opportunities. This means that any educational institution that receives federal funding must adhere to these rules, at all levels (i.e., elementary to colleges and universities).

Specifically, this guidance clarifies schools' responsibilities under Section 504 of the Rehabilitation Act to provide athletic opportunities for students with disabilities. It clarifies when and how schools must include students with disabilities in mainstream athletic programs, defines what true equal treatment of student athletes with disabilities means, and encourages and provides a roadmap for schools to create adapted programs for students with disabilities. The guidance also considers that there are some sports in which athletes with disabilities cannot be incorporated without changing the fundamental nature of the sport--for instance, wheelchair basketball. In cases such as these, school districts need to offer students with disabilities adapted opportunities for athletic activities, such as creating a wheelchair basketball team or power soccer team. Under the guidance, schools are required to look beyond the generalizations of what students with disabilities are capable of to determine their participation in sport programs and create a grievance process to quickly resolve any complaint from a student who is denied access to participation on the basis of disability.

Background from the Government Accountability Office

Members of Congress, in 2008, requested the Government Accountability Office (GAO) to conduct an investigation of how physical education and extracurricular athletic opportunities for students with disabilities are provided in schools. As a result, the GAO identified several factors that limit opportunities for students with disabilities to participate in physical education and athletics (GAO, 2010; see Table 1).

As a result of these findings, Congress issued a response to the GAO report by identifying eight areas where school districts can improve opportunities for students with disabilities to participate more fully in physical education and extracurricular athletics (see Table 2). What is important to remember is that this Dear Colleague Letter is not a new mandate but rather a clarification of the existing regulations and statute under the Rehabilitation Act of 1973.

A Review of the 1973 Rehabilitation Act

Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. [section]794 et seq. (Rehabilitation Act, 1973) is our country's first civil rights law for persons with disabilities. It was passed for the express purpose of empowering individuals with disabilities to maximize their inclusion in all aspects of society through the guarantee of equal opportunity. Civil rights laws such as the Rehabilitation Act, the Americans with Disabilities Act (ADA, 1990), and the Individuals with Disabilities Education Act (IDEA, 2004) evolved in response to a long history of discrimination against persons with disabilities that includes segregation; denial of the right to vote, attend school, and marry; forced sterilizations; institutionalization; and other exclusions from opportunity (ADA; U.S. Department of Education [USDE], 2006). In enacting the ADA, Congress noted that individuals with disabilities "have been ... subjected to a history of purposeful unequal treatment ... based on characteristics that are beyond the control of such individuals and resulting from stereotypic assumptions not truly indicative of the individual ability of such individuals to participate in, and contribute to society" (42 U. …