For years (every edition of my book starting with the very first edition published in 2000 has had a chapter on the ADA and sports), I’ve written about how the ADA applies to sports. The United States Department of Education Office of Civil Rights has just issued a guidance dealing with their section 504 regulations and how it applies to sporting opportunities for students with disabilities. The specific details mentioned in the guidance focus on elementary and secondary schools, but the Office of Civil Rights also states that students with disabilities at the postsecondary level must also be provided an equal opportunity to participate in sports.

Here are some of the salient points from the Office of Civil Rights guidance:

1. The school district is required to provide a qualified student with a disability an opportunity to benefit from their programming equal to that of students without disabilities. Just who is a person with a disability? A person with a disability is defined in the same way as it is defined by the ADA: A person who has a physical or mental impairment that substantially limits one or more major life activities; has a record of such an impairment; or is regarded as having such an impairment. Nothing new there. Just who is a qualified student with a disability? The Office of Civil Rights says a qualified person with a disability is a person: of an age during which person without disabilities are provided such services; of an age during which it is mandatory under state law to provide such services to a person with a disability; or are a person to whom the state is required to provide a free appropriate public education under the Individuals with Disabilities Education Act. It is easy to say, as courts often do, that since the ADA is based on 504 and amendments to the ADA were meant to apply to 504, that the two laws should be interpreted the same way. However, there are variations between the two laws that just might take you to different places. For example, § 504 when it comes to causation refers to “solely by reason of disability,” (29 U.S.C. § 794(a)),as the standard. Whereas, depending upon the title of the ADA involved, you may see, “on the basis of” (42 U.S.C. § 12112(a) (title I); 42 U.S.C. § 12184(a) (title III)), or “by reason of,” (42 U.S.C. § 12132 (title II)), or even “because,” (42 U.S.C. § 12203(a) (retaliation)), but you never see the word, “solely.” Also, OCR is using the term qualified in a different way than the term is used in the ADA. Under the ADA, with respect to title II (the title that applies to accessing governmental services and activities and programs), a person is otherwise qualified if he can with or without reasonable modifications to rules, policies, or practices; the removal of architectural, communication, or transportation barriers; or the provision of auxiliary aids and services, meet the essential eligibility requirements for receiving services or participating in programs or activities provided by a public entity. 28 C.F.R. § 35.104. On its face, this means that the ADA has a higher standard for whether a person is qualified than what is being offered by the Office of Civil Rights with respect to their interpretation of section 504 of the Rehabilitation Act.

2. OCR notes that United States Department of Education section 504 regulations also prohibit the following:

A. denying a qualified student with a disability the opportunity to participate in or benefit from an aid, benefit, or service;
B. Affording a qualified student with a disability an opportunity to participate in or benefit from an aid, benefit, or service that is not equal to that afforded others;
C. Providing a qualified student with a disability with an aid, benefit, or service that is not as effective as what is provided to others and does not afford the student with an equal opportunity to obtain the same result, gain the same benefit, or reach the same level of achievement in the most integrated setting appropriate to the student’s needs;
D. Providing different or separate aids, benefit, or services to students with disabilities to any class of students with disabilities unless such action is necessary to provide a qualified student with a disability with aid, benefits, or services that are as effective as those provided to others; and
E. otherwise limiting a qualified individual with a disability in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving an aid, benefit, or service.
See 34 C.F.R. § 104.4(b)(1)(i)-(iv), (vii),(2),(3)

These regulations by themselves aren’t particularly problematic. The only issue being is that qualified individual is being used differently than what it is under the ADA. That is, on its face, OCR appears to be saying that whether a student is otherwise qualified is not an issue with respect to whether that student can participate in athletic endeavors. I find that very hard to believe and perhaps OCR should consider clarifying this. You wonder if the omission was inadvertent because even OCR refers to essential eligibility requirements at times in the guidance. Referring to essential eligibility requirements necessarily means taking you into whether a person is otherwise qualified.

3. In their guidance, OCR says that a school district’s legal obligation to comply with section 504 and the regulations supersedes any rule of any association, organization, club, or league that would render the student ineligible to participate, or limit the student’s eligibility to participate in any aid, benefit, or service on the basis of disability. In fact, OCR says that it would violate a school district’s obligation under section 504 to provide significant assistance to any such organization that discriminates on the basis of disability in providing any aid, benefit, or service to the school district’s students. See 34 C.F.R. § 104.4(b)(1). Nothing new here either as the ADA also prohibits a governmental entity from contracting with entities that discriminate on the basis of disability. See 28 C.F.R. § 35.130(b)(3).

4. In their guidance, OCR says that the school district may not operate its program activities on the basis of generalizations, assumptions, prejudices, or stereotypes about disability generally, or specific disabilities in particular. They also cannot assume what a student with a disability is capable of with respect to athletic competition. Nothing new here. Both the Rehabilitation Act and the ADA require an individual determination about the person with disability abilities. See PGA Tour Inc. v. Martin 532 U.S. 661 (2001) (ADA case), School Board of Nassau County, Florida v. Arline, 480 U.S. 273 (1987) (Rehabilitation Act case).

Let’s turn to the examples given by OCR:

1. A student with a learning disability in middle school participates in her school’s lacrosse club. As she entered the ninth grade in high school, she tries out and is selected as a member of the high school’s lacrosse team. The coach is aware of the student’s learning disability and believes that all students with the student’s particular learning disability are unable to play successfully in a game given the time constraints and pressures of an actual game. Based on that, the coach decides to never to play the student during games. In the coach’s opinion, participating fully in all the team’s practice sessions is good enough. OCR said that they would find the coach’s decision in violation of section 504. The problem the coach ran into is that he made an assumption about learning disabilities in general. There is no reason why he could not have simulated a real game experience during practice to see how the person with a learning disability would survive in such a situation. If after such a simulation, the coach had reservations about how that person would survive in a real game situation, the coach would certainly be within his rights with respect to playing time. After all, the coach is the one that gets to decide playing time. What the coach should have done, is test whether his assumption with respect to that individual player was true.

OCR goes on to talk about ensuring equal opportunity for participation. Ensuring equal opportunity purchase for participation means making reasonable modifications and providing those aids and services necessary to ensure an equal opportunity to participate, unless the school district can show that doing so results in a fundamental alteration to its program. A school district must also afford qualified students with disabilities an equal opportunity for participation in extracurricular athletics in an integrated manner to the maximum extent appropriate to the needs of the student. Again, nothing new here. The disability discrimination laws are all about integrating persons with disabilities into the mainstream.

What is new is what follows at the end of that discussion. First, OCR states that if a reasonable modification is legally required, the school district must engage in an individualized inquiry to determine whether the modification is necessary. A modification will be necessary unless it would result in a fundamental alteration of the extracurricular athletic activity. What is a fundamental alteration? A fundamental alteration either alters an essential aspect of the activity or game so that it would be unacceptable even if it affected all competitors equally or the modification only has a peripheral impact on the activity or game itself but could give the particular player with a disability an unfair advantage over others and therefore fundamentally alter the character of the competition.

Where is this stuff coming from? After all, title II, 42 U.S.C. § 12201(f), and title III, 42 U.S.C. § 12182(2)(A)(ii), of the ADA do not speak of unfair advantage at all. Rather, they refer to fundamental alteration. So where is this coming from? For example, in my writings over the years, I have used the starting line analogy with respect to a person with a disability and reasonable accommodations. Such an analogy presumes that a person with a disability is getting to the same starting line as others and not being given an unfair advantage. That said, the particular phrasing that OCR is relying on is coming from PGA Tour v. Martin, 532 U.S. 661 (2001). In particular, the Supreme Court said in its majority opinion that to perceive that Martin using a golf cart would give him a competitive advantage was a gross distortion of reality considering his disability. Id. at 672. Later on, when discussing fundamental alteration, the court says that a fundamental alteration of the PGA Tour’s golf tournaments could occur in two different ways. First, it could change an essential aspect of the game of golf so that it would be unacceptable even if it affected all competitors equally (for example, changing the diameter of the hole from 3 to 6 inches would be such a modification). Id. at 682. Second, a less significant change having only a peripheral impact on the game itself might nevertheless give the disabled player an advantage over others and for that reason fundamentally alter the character of the competition. Id. at 683. In the Martin situation, the Supreme Court was not persuaded that a waiver of the walking rule would result in a fundamental alteration in either sense. Id.

However,the Martin formulation has its own problems. First, in the context of sports what would be a fundamental alteration of the game so that it would be unacceptable even if it affected all competitors equally? I tend to stay away from law review articles as they tend to be very theoretical and not practical. However, sometimes you do see a law review article that can be very helpful in dealing with practical situations. In The Prohibition of Prosthetic Limbs in American Sports: the Issues and the Role of the Americans with Disabilities Act, 19 Marquette Sports Law Review 613, Christopher Bidlack, in a student comment, suggests that fundamental alteration in sports occurs when if the requested change damages the underlying nature of the game or turns the game into an entirely new game. Christopher Bidlack, Student Author, The Prohibition of Prosthetic Limbs in American Sports: the Issues and the Role of the Americans with Disabilities Act, 19 Marquette Sports Law Review 613, 632 (Spring 2009). It is a formulation that has a great deal of appeal to it.

How might you be creating a new game with new rules? In the third edition of my book, I discussed extensively a case involving a request by a plaintiff to establish a new game with new rules. In that particular case, an elite wheelchair racquetball athlete wanted a racquetball tournament to be set up in such a way so that he could play against athletes who were not in wheelchairs. In particular, he wanted to be able to hit the ball on two bounces, which is permissible in wheelchair racquetball, but wanted the athlete without a disability to only have to hit the ball on one bounce. The Massachusetts Supreme Court said that such a request created a new game with new strategies and new rules and therefore, the club would not be required by the ADA to set up a league that would function on these rules. See Kuketz v. Petronelli 443 Mass. 355, 364 (2005); See also William D. Goren, Understanding the Americans with Disabilities Act, third edition at pp. 114-115 (American Bar Association 2010). It should be noted that Kuketz explicitly said that it was not deciding whether the plaintiff’s requests would result in an unfair advantage. Kuketz 443 Mass. at 365 n. 30.

Here is the problem, as I mentioned in the third edition of my book, unfair advantage arguments can potentially involve very complicated medical testimony and an assessment by a judge, who most probably does not have a disability, as to whether the athlete with a disability has an advantage over the athlete without a disability. Further, I submit that in most cases the question of unfair advantage is completely unnecessary as most cases could be decided based upon whether the requested change would: damage the underlying nature of the game; turn the game into an entirely new game; or result in a direct threat. That is, when it comes to sports, the school district would be under no obligation to allow a student with a disability to play in the game if doing so would result in a direct threat to himself or others. See generally Chevron v. Echazabal 536 U.S. 73 (2002).

2. The second example referred to by OCR involves a student with a hearing impairment. Interestingly, we don’t know from the example the extent of the hearing impairment. At any rate, he is interested in the 100 and 200 m dashes and during tryouts for the track team, the start of each race was signaled by a coach’s assistant using a visual cue, and the student’s speed was fast enough to qualify him for the team in those events. The coach continued to use those accommodations but the district, despite other districts allowing such cues, nevertheless refuses the student’s request because the district is concerned that the use of a visual cue may distract other runners and trigger complaints once the track season begins. The coach then tells the student that he can practice with the team but will not be allowed to participate in meets. OCR says that such a situation violates section 504 because it neither alters an essential aspect of the activity nor gives the student an unfair advantage. Using the formulation discussed above it certainly does not damage the underlying nature of the game nor, as was the case in Kuketz turn the game into an entirely new game. Nor is there any question of direct threat.

3. High school student born with only one arm wants to participate in the school’s swim team. The student has the necessary swimming ability and wants to compete. The school district has a “two hand touch” finish rule for all swimmers when finishing the race. Therefore, she petitions to have the two hand touch rule waived and be allowed to finish with a, “one hand touch.” The school district refuses the request because it determines that permitting the student to finish with a “one hand touch” would give the student an unfair advantage over other swimmers. Here, OCR says that if the school district could show that she would gain an unfair advantage over others, then the school district would be justified in not waiving the rule. OCR does say that the school district would still be required to determine if other modifications would be available short of fundamentally altering the nature an activity (the ADA would say the same thing).

Here is where unfair advantage becomes terribly problematic in its application. When would the person really be getting an unfair advantage? While it is true, that such a person would be allowed a one hand touch and everybody else would have to use a two hand touch, that also presumes that everything else was equal. That is, the mechanics of swimming are such that it is hard for me to believe that a person with one hand would be at the same starting line as an athlete with two hands in the first place. Accordingly, it could be argued that even a one hand touch rule would not give the student an unfair advantage. Of course, putting this all together is going to mean extensive medical testimony at great costs to all sides.

How would this case play out under the formulation discussed above that ignores unfair advantage, which I set out above? First, does the requested change damage the underlying nature of the game? Probably not. Second, does it turn the game into an entirely new game? Also, probably not. Is the person a direct threat? Probably not. Thus, under the methodology I am proposing the proposed accommodation would be allowed. The problem is that athletic competition presumes everyone is at the same starting line and that whoever is better does so without any inherent unfair advantage. Giving an athlete and unfair advantage violates a sense of fair play. I get that but how do you figure out unfair advantage? It can get extremely complicated.

4. Elementary school student with diabetes is not eligible for services under the Individuals with Disabilities in Education Act. However, as is the case with many such students, that person is eligible for services under section 504 of the Rehabilitation Act (the scope of coverage between the two laws are very different). The student receives assistance with glucose testing and insulin the administration from trained school personnel with services provided under section 504. That student wants to participate in a school sponsored gymnastic club that meets after school with the only eligibility requirement that the student must attend the school. However, school personnel reject her request on the grounds that the gymnastic club is an extracurricular activity. OCR is not buying it for two reasons. First, the school district has to provide that service during the day under section 504. Second, there would not be a fundamental alteration of the district education program since they have to do it in any event, should the student be eligible for services under the Individuals with Disabilities in Education Act.

I don’t see any issues here. On a preventive level, if a student has an IEP or a 504 plan and you know that the student wants to participate in sports, it would behoove the parents to insist that the IEP or 504 plan contain language that the accommodations would be made while participating in the sports.

Finally, OCR goes on to talk about offering separate or different athletic opportunities for students with disabilities. The whole idea of the ADA and section 504 is integration of persons with disabilities. However, there may be situations where either allowing a student with a disability to participate in athletic event would result in a fundamental alteration as discussed above or would result in a situation where the student is a direct threat to himself or herself or others. In such a situation, it is possible that by setting up a separate system for students with disabilities, the fundamental alteration problem and the direct threat problem would disappear. OCR says that when the interests and abilities of students with disabilities cannot be as fully and effectively met by the school district’s existing extracurricular athletic programs, the school district should create additional opportunities for those students with disabilities. In those situations, OCR says that the school district should offer students with disabilities opportunities for athletic activities separate or different from those offered to students without disabilities and that those opportunity should be supported equally by the school district. When fielding a team is not possible, the school district could also develop a district wide regional team for students with disabilities as opposed to an individual school-based team. They could also mix male and female students with disabilities on a team together, or they can offer unified sports teams in which students with disabilities participate along with students without disabilities (the latter though could run into problems with fundamental alteration and direct threat).

Here is the issue. This particular section of the OCR guidance turns section 504 into title IX for persons with disabilities. Title IX has been absolutely critical in giving women the opportunity to participate in athletics and perhaps OCR is thinking that section 504 regulations can be used in the same way. On a policy level, that has much to commend to it. That said, a school district not wanting to create separate sports programming might argue that while the ADA and section 504 are all about equal opportunity, that is far different than having to create additional opportunities. For example, an employer does not have to create light-duty positions. Foreman v. Babcock & Wilcox Co. 117 F. 3d 800, 809 (5th Cir. 1997). Another example, a state without a community integration program in place may not have to create one. See Olmstead v. L.C. By Zimring 527 U.S. 581, 612 (J. Kennedy, concurring).

So where does this leave us?

1. OCR needs to clarify how it deals with the term “qualified individual.” There is a huge difference on its face between OCR referencing, “qualified individual” and the way ADA refers to otherwise qualified. It would seem that the omission is unintentional because a reading of the OCR guidance suggests that “otherwise qualified,” in the ADA sense is still in play. See for example, “eligibility requirement” discussion in OCR guidance with respect to Example #3. Nevertheless, it is literally missing from the guidance and, as discussed above, could present problems later.

2. Unfair advantage is now enshrined as a concept. As discussed above, that may present very unique problems of proof, unnecessarily complicate litigation, and certainly drive up the costs of litigation. Instead of enshrining unfair advantage, perhaps the better approach is to offer the alternative that I suggest in this blog entry instead.

3. OCR is now demanding opportunities be created for students with disabilities in terms of participating in sports even if the school district has no such programming in place. It is an open question as to whether the ADA and section 504 can be used in that way.

2 Responses to Enshrinement of unfair advantage as a legal standard: OCR, 504, and Sports

I really like your discussion of the “enshrinement of unfair advantage” concept/standard. “Unfair advantage” is, in my opinion, very subject–unfair means different things to different people. Your suggestion, i.e., to examine according to whether underlying nature of game altered, whether new game created, or whether there’s a direct threat, seems much more measurable. The swimmer-with-one-arm example is perfect: nature of game isn’t altered, no new game is created, and no direct threat. *But* is it unfair? Depends upon who you ask! Not measurable. Great post.

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