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Spotlight on Practice

Can I Play Ball? Special Education, Section 504 and Extracurricular Activities

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Nonacademic and Extracurricular Activities

Historically, primarily access and/or discrimination issues enforced by the Office for Civil Rights

But, the IDEA and California law require that IEP teams consider FAPE and access with regard to nonacademic and extracurricular activities

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Special Education and Extracurricular Activities

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Nonacademic/Extracurricular Activities May Include

Counseling services Athletics Transportation Health services Recreational activities

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Nonacademic/Extracurricular Activities May Include Special interest groups or clubs

sponsored by the public agency Referrals to agencies that provide

assistance to individuals with disabilities Employment of students

by the public agencyassistance in obtaining outside employment

available(34 C.F.R. 300.107(b).)

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FAPE

IEPs must Include a Statement Special education and related services

and supplementary aids and services Program modifications or supports for

school personnel that will be provided for the child to participate in extracurricular and other nonacademic activities

(20 U.S.C. § 1414(d)(1)(A)(i)(IV); 34 C.F.R. § 300.320(a)(4).)

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In Addition, IEPs must Address a Student’s Access/Participation “Each public agency must take steps,

including the provision of supplementary aids and services determined appropriate and necessary by the child’s IEP Team, 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”

(34 C.F.R. § 300.107(a).)

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A Balancing Act for IEP Teams Consideration of supports necessary to

access extracurricular and nonacademic activities, and/or

Requiring such supports as a necessary component of FAPE

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Winooski (VT) School Dist. (OCR 2006) 15-year-old 8th-grader with a non-

verbal learning disability and Asperger syndrome

Student’s IEP required some paraprofessional assistance (not 1:1)

Student’s IEP did not require a 1:1 aide to support his student council activities orextracurricular activities

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Facts Parents filed complaint with OCR Alleged a denial a FAPE based on

failure to implement IEP Failure to provide 1:1 aide to support

participation on student council Failure to provide 1:1 aide in after-

school skiing program

Winooski (VT) School Dist. (OCR 2006)

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Determination OCR held District did not discriminate by not

providing a 1:1 aide IEP did not state that he needed 1:1 assistance

for extracurricular activities However, OCR affirmed that districts must

provide disabled students with an equal opportunity to participate in nonacademic/extracurricular activities, which can include providing them assistance even if the extracurricular activities are not listed in the student’sIEP or 504 planWinooski (VT) School Dist. (OCR 2006)

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Letter to Anonymous (OSEP 1990) Parents alleged a FAPE denial because

the student, a 5th year senior, could not play team sports due to a state athletic association rule

OSEP held the state rule was not discriminatory. Applied to all students

However, if participation in extracurricular activities is necessary to FAPE, it must be delineated in the IEP

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Independent School Dist. No. 12, Centennial v. Minnesota Dept. of Education (Minn. 2010) 5th-grader with autism and Tourette

syndrome Parents requested supplementary aids

in extracurricular and nonacademic activitiesAdult supervision after the activity until

Student picked upAccess to cell phone during the activityAbility to miss some games/practices to

manage health concerns/stress

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Facts Parents alleged District refused to

discuss supplementary aids/services at IEP meeting and District offered 504 meeting instead

District alleged Parents asked for 504 meeting

Resulting 504 plan did not include requested supplementary aids/services

Parents filed a complaintIndependent Sch. Dist. No. 12, Centennial v. Minnesota Dept. of Edu. (Minn. 2010)

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Decision #1 The State held District violated IDEA by

failing to convene an IEP meeting to discuss supplementary aids/services

Independent Sch. Dist. No. 12, Centennial v. Minnesota Dept. of Edu. (Minn. 2010)

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Decision #2 Court of Appeals upheld State’s

decision in part, but held IEP need only include supplementary aids/services necessary for participation in activities required for the child’s education

Independent Sch. Dist. No. 12, Centennial v. Minnesota Dept. of Edu. (Minn. 2010)

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Decision #3

Minnesota Supreme Court reversed in part, holding that an IEP’s contents are not restricted to extracurricular/nonacademic activities required to educate a student

Independent Sch. Dist. No. 12, Centennial v. Minnesota Dept. of Edu. (Minn. 2010)

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Decision #3 (cont.) Minnesota Supreme Court reasoned

“Requiring disabled students to prove an educational benefit, when nondisabled students need not, does not afford disabled students an equal opportunity to participate in extracurricular and nonacademic activities. Thus, the court of appeals’ holding violates the ‘equal opportunity’ for participation in extracurricular and nonacademic activities required by the plain language of section 300.107” Independent Sch. Dist. No. 12, Centennial v. Minnesota Dept. of Edu. (Minn. 2010)

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Wyoming City Schools (SEA Ohio 2011) Middle school student with an auditory

processing disorder, hearing loss, and a medical condition that could cause him to become ill while traveling to and from swim meets

Student claimed he required a sign language interpreter on the bus to assist him if he became ill

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Facts

District relied on swim coach’sopinion that the student did not need an interpreter on bus rides

Swim coach did not attend the IEP meetings

PWN did not consider what reasonable accommodations and support services were necessary to provide access to extracurricular activities

Wyoming City Schools (SEA Ohio 2011)

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Decision

The State found that this issueshould have been determined at a properly convened IEP meeting

The IEP team needed to include appropriate members with knowledge of the student’s disability

State ordered the District to reconvene student’s IEP meeting and to consider his need for an interpreter on the bus

Wyoming City Schools (SEA Ohio 2011)

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Maple Lake School Dist. (Minn. 2007) High school student with cerebral

palsy, ADHD, ODD, other disabilities Student’s IEP included transition goal

of participating in extracurricular and community activities

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Facts IEP team offered to introduce student to

basketball coach and invited him to help out as team manager

Coach offered to have student assist at home games by filling up water bottles and cups for players

Student was provided with team T-shirt, included in team picture, and his name was added to game programs

Maple Lake School Dist. (Minn. 2007)

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Facts Student began to “blossom” and positive

peer interactions increased However, student was not allowed to travel

on the team bus to away games Per district policy, only competing athletes

were allowed to ride bus to away games Policy was consistently enforced Student alleged District denied him a FAPE

by not allowing him to travel to away games on the team bus

Maple Lake School Dist. (Minn. 2007)

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Decision ALJ found District took appropriate steps to

provide extracurricular services and activities to student as necessary to afford him an equal opportunity for participation in those services and activities

District showed “Student participated in extracurricular activities and significantly improved his interaction and communication with his peers, enhancing his self-esteem and broadening his ability to participate in community-based activities”

No denial of FAPEMaple Lake School Dist. (Minn. 2007)

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Alcorn County School Dist. (SEA MS 2009) High school student with ADHD and

Asperger Syndrome Behavioral issues affected classroom

instruction, especially in band IEP included accommodations relating

to band, including counseling as a related service

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Facts Counseling services not provided

during the first semester due to the counselor’s resignation

Student bothers others in marching band“touching them, getting close to them,

getting in their face” In response, other students mistreated

StudentAlcorn County School Dist. (SEA MS 2009)

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Facts Student was removed from band

because of the inappropriate touching of other students without their permission

Band teacher told Student he would have to stop doing that; Student said “I can’t stop”

Alcorn County School Dist. (SEA MS 2009)

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Decision The ALJ found District denied Student a

FAPE Student may not be denied opportunity

to participate in band if the failure to master the “fundamentals” is substantially related to the lack of appropriate services and supports

Alcorn County School Dist. (SEA MS 2009)

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Decision ALJ noted

“It is also true, however, that a student does not have a right to participate in band (including the marching band) solely because of his disability”

Alcorn County School Dist. (SEA MS 2009)

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Eastern Lebanon County (PA) School Dist. (OCR 2010) High school student with emotional

disturbance Golf IEP listed modifications Golf coach did not follow the IEP

because he thought it would violate rules of golf

Failure to implement IEP = discrimination

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Kern (CA) Union High School Dist.(OCR 2003) High school student with cerebral palsy Water boy on football team Trainer stated “I do not want to be bothered

by a handicapped person” Principal questioned whether student would

get hurt IEP team conducted individualized

assessment and agreed he could be water boy

Not discrimination

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Discrimination/Access Issues in Extracurricular

Activities

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Section 504 Applicable to schools Free appropriate public education

(“FAPE”) Nonacademic and extracurricular

activities can includeCounseling services, physical recreational

activities, special interest groups or clubs sponsored by the recipients, referrals to agencies which provide assistance to handicapped persons, and employment of students

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Section 504 - Nondiscrimination“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 . . .”

(29 U.S.C. § 794(a).)

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Section 504 - NondiscriminationRecipients of federal financial assistance “shall provide non-academic and extracurricular services and activities in such manner as is necessary to afford handicapped students an equal opportunity for participation in such services and activities”

(34 C.F.R. § 104.37(a)(1).)

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Lewis Palmer (CO) School Dist. # 38 (OCR 2006) Student with ADHD in drama club Behavioral problems included isolation,

glaring at students, ripping paper Denied participation in out-of-town

drama club conference Per OCR: Denial was discriminatory

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Half Hollow Hills (NY) Central School Dist.(OCR 2005) Fifth grader with diabetes Missed one out of five field trips

Nurse attended three field tripsParent attended one field tripNo substitute available for one field trip

Was failure to provide a nurse a denial of FAPE?

Per OCR: No

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Shoreline (WA) School Dist. No. 412 (OCR 1996) Student with severe mental retardation,

blindness, nonverbal abilities and seizures District after-school recreational program

for students with disabilities Essential eligibility requirement =

significant ability to cognitively participate in program

Not discrimination when student could not meaningfully participate

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Metro Nashville (TN) School Dist.(OCR 2009) Students with disabilities were discriminated

against when miscommunication led to them not receiving info about field trip

New district policy placed burden on special education students to obtain information

“To invite nondisabled students, but leave it up to students with disabilities to find out about events and/or ask to attend before giving them any information about events, is a form of different treatment that is not in compliance with the requirements of Section 504 . . .”

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Kennewick (WA) School Dist. No 17(OCR 2011) High school student with diabetes Soccer Tryouts based on variety of skills, work

ethic, overall performance Student consistently performed low Detailed records Not disability discrimination

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S.S. v. Whitesboro Central School Dist. (N.D.N.Y 2012) Student with a severe anxiety disorder and

fear of drowning wanted to be on the swim team

Essential eligibility requirement = ability to swim when needed

OCR found “[t]here is no reasonable accommodation that a swim team coach could make for an athlete who is suddenly and sporadically afraid of the water and thus has to exit the pool during practices and competitions”

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In Sum Be proactive! Don’t avoid the conversation

Ask what extracurricular/nonacademic activities the student is participating in or is interested in participating in

Then turn the discussion to what services/supports the student needs to have an equal opportunity for participation

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In Sum Be clear!

Does the IEP require participation in extracurricular activities to access FAPE?

And if so, why? When? How? Be reasonable!

Involve relevant district staff in decision-making who understand the disability and the extracurricular activity

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In Sum Equal access ≠ Guarantee

A special education student does not have a right to participate in extracurricular/nonacademic activities solely by virtue of his/her disability

Equal access may be necessary to try-outs, but not participation

School districts are not required to lower performance standards/fundamental requirements of program to permit a disabled student to participate

Beware categorical exclusion

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In Sum Implementation is Key!

Make sure staff understand how to implement accommodations.

Staff cannot unilaterally disregard accommodations identified in an IEP or 504 plan

Check your policies!Must be legitimate, nondiscriminatory

Provide notice!Ensure students with disabilities have

information to participate

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Information in this presentation, including but not limited to PowerPoint handouts and the presenters' comments, is summary only and not legal advice. We advise you to consult with legal counsel to determine how this information may apply to your specific facts and circumstances .