Providing Students with DisabilitiesEqual Opportunities to Participate inAthletic Activities and Physical Education Programs
On June 19, 2014, Governor Christie approved a new law which will require school districts to provide students with disabilities the equal opportunity to participate in physical education programs and in athletic programs beginning with the 2015-16 school year.1 The effort to ensure that students with disabilities receive the equal opportunity to participate in athletics originated with a report from the Government Accountability Office (GAO) issued in June 2010 entitled “Students with Disabilities–More Information and Guidance Could Improve Opportunities in Physical Education and Athletics.”2
The GAO analyzed data from four nationally representative studies issued between 2000 and 2006; it also conducted site visits in five states, including New Jersey, interviewed officials from state departments of education, state athletic associations, and school districts. With respect to the GAO’s contacts in New Jersey, the report noted, among other things, that the New Jersey State Interscholastic Athletic Association (NJSIAA) planned to offer new adapted athletics for students with disabilities based on state legislation.3 The report concluded that “All students, including those with disabilities, benefit from the positive effects that physical activity and school athletics have on an individual’s health, social well-being, and self-esteem.”
In furtherance of this conclusion, the GAO made two recommendations. First, it recommended that “the Secretary of Education facilitate information sharing among states and schools on ways to provide opportunities in PE and extracurricular athletics to students with disabilities.” Second, it recommended that the U.S. Department of Education (USDOE) “clarify and communicate schools’ responsibilities under Section 504 of the Rehabilitation Act [of 1973]4 regarding the provision of extracurricular athletics.”
In response to the GAO report, on January 25, 2013, the USDOE, Office for Civil Rights, issued a “Dear Colleague” letter containing guidance on the obligations of public schools under Section 504 and the specific Section 504 regulations that require students with disabilities to have an equal opportunity to participate in non-academic and extracurricular activities.5 In particular, the USDOE letter explained that
In light of the GAO report and the USDOE “Dear Colleague” letter, the Legislature determined that students with disabilities “should consistently have opportunities to participate in athletics equal to those of other students, which is in keeping with school district responsibilities under Section 504 . . . .”6 Accordingly, the Legislature adopted an act to set forth the obligations of school districts with respect to ensuring that students with disabilities are afforded equal opportunities to participate in athletics.
Under the new act, beginning with the 2015-16 school year, each school district, in general, must ensure that a “student with a disability” has an equal opportunity to participate in: (a) physical education programs; and (b) existing classroom activities that involve physical activity.7 For purposes of the new law, a “student with a disability” means a student who is a “handicapped person” under 45 C.F.R. §84.3(j).8 A “handicapped person” means “any person who (i) has a physical or mental impairment which substantially limits one or more major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment.”9
In addition to the foregoing, a student with a disability must be given the equal opportunity to try out for and, if selected, participate in “athletic programs” in an integrated manner to the maximum extent appropriate.10 “Athletic programs” include clubs, intramural sports, and/or interscholastic athletic activities offered to students in the district.11 In order to allow a student with a disability an equal opportunity to participate in physical education, existing classroom activities that involve physical activity, and/or athletic programs, districts are required to provide reasonable modifications or aids or services as necessary.12
There are two exceptions to the general rule. First, a district is not obligated to provide a student with a disability the equal opportunity to participate in physical education programs, existing classroom activities, and/or athletic programs if such participation presents “an objective health or safety risk to the student or to others, based on an individualized assessment of the student.”13 Second, a district is not obligated to provide a student with a disability the equal opportunity to participate in physical education programs, existing classroom activities, and/or athletic programs if such participation “fundamentally alters the nature of the physical education program or athletic program in accordance with the ‘Americans with Disabilities Act of 1990’. . . .”14
If one or both of the exceptions applies to a particular situation, then school administrators, in consultation with students, parents, community members, and advocacy groups must make reasonable efforts to provide the disabled student with the opportunity to participate in an existing “adapted program” or an existing “unified sports program.”15 An “adapted program” is a “program that is developed for a student with a disability,” and a “unified sports program” is “an athletic program that combines individuals with disabilities and individuals without disabilities.”16 Districts may develop an adapted program or a unified sports program on a district-wide, regional, or county-wide basis.17
The final provision of the new law authorizes the NJSIAA, in consultation with the Special Olympics, or other adapted sports organizations, to establish interscholastic athletic programs for disabled student-athletes, who are participating in a unified sports program.18 The NJSIAA may require coaches in unified sports programs to receive specific training for the program.19
In order to ensure compliance with the new law, school administrators should review and update board policy and the physical education curriculum, as necessary, to make sure it reflects the requirements of the law, namely, that disabled students are given an equal opportunity to participate in physical education programs, existing classroom activities that involve physical activity, and in any clubs, intramural and/or interscholastic sports. School administrators should make sure their physical education teachers, coaches, and athletic directors are informed of the requirements of the law, and that reasonable modifications, aids, or services may need to be provided to a student-athlete with a disability. If there are concerns for the safety or well-being of students, as a result of the participation of a disabled student in a particular activity, an individual assessment must be performed and the results should be documented. Similarly, if there is a concern that the nature of the activity or sport must be fundamentally altered in order to allow a disabled student to participate, the matter should be investigated and the results documented. Questions concerning legal compliance should always be directed to the board attorney.
3. See Pub.L. 2009, ch. 109. Pursuant to N.J.S.A. 18A:11-3.3, the NJSIAA, in consultation with the American Association of Adapted Sports Programs, was required to establish “interscholastic athletic programs adapted for participation by student-athletes with physical disabilities or visual impairments who are participating in an adapted athletic program developed by a school district.”
4. 29 U.S.C.A. §794.
5. The USDOE’s letter is available on the Internet at http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201301-504.pdf.6. N.J.S.A. 18A:11-3.5.
7. N.J.S.A. 18A:11-3.7(a)(1).
8. N.J.S.A. 18A:11-3.6.
9. 45 C.F.R. §84.3(j)(1).
10. N.J.S.A. 18A:11-3.7(a)(1).
11. See N.J.S.A. 18A:11-3.6.
12. N.J.S.A. 18A:11-3.7(a)(2).
13. N.J.S.A. 18A:11-3.7(b)(1).
14. N.J.S.A. 18A:11-3.7(b)(2).
15. See N.J.S.A. 18A:11-3.8.
16. N.J.S.A. 18A:11-3.6.