On January 25, 2022, the U.S. Department of Education’s Office for Civil Rights (OCR) issued an important “Dear Colleague” letter. The letter was intended to clarify school districts’ legal obligations to provide students with disabilities equal access to extracurricular athletic activities.

In essence, OCR stated that disabled students have the right to equal opportunities to participate in their schools’ athletic programs. Schools are required to provide reasonable accommodations and/or modifications to ensure participation. OCR also commented that schools may need to start developing parallel or different athletic opportunities for disabled students who are unable to participate in existing athletic activities, even with reasonable accommodations.

In response to a request from the National School Boards Association (NSBA), OCR issued a second letter on December 16, 2022, clarifying its position. Most importantly, OCR stated that its prior guidance was only intended to be advisory, not mandatory. As such, schools should not view the “Dear Colleague” letter as creating a legal mandate. It should only be viewed as guidance that schools must consider when developing their extracurricular athletic programs.

OCR reiterated its general proposition that schools cannot exclude disabled students from athletic activities based on “stereotypes or assumptions.” Each circumstance must be evaluated individually and include consideration of reasonable accommodations or modifications. For example, OCR stated that a reasonable accommodation would be to use a light along with a starter pistol at a track meet, so that a deaf runner can see the start of the race. OCR also mentioned allowing a diabetic student to receive insulin during an athletic event, as a reasonable accommodation.

OCR did note, however, that an accommodation is not reasonable if it:

• Compromises student safety;
• Changes the nature of selective teams;
• Gives a disabled student an unfair advantage over his or her competitors; or
• Changes the essential elements of the game.

As such, there are clear limitations regarding the extent to which schools must take measures to allow participation of disabled students.

Finally, OCR downplayed its prior commentary regarding the obligation to create separate or parallel athletic opportunities for disabled students. OCR stated that it “urges” schools to create these opportunities, but that “it is not OCR’s view that a school district is required to do so.” The main concern expressed by OCR is to assure that parallel activities are given the same supports provided to other similar teams.

In sum, the new OCR letter significantly downplays the obligations that schools have under its original “Dear Colleague” letter. Whereas the letter was originally viewed as creating new obligations for school district, it simply reiterates the well-established principle that schools must accommodate students with disabilities in extracurricular activities.

Ryan Everhart is a partner in the Education Practice at Hodgson Russ LLP. You can reach him at .