This article was first presented by the author as part of a seminar held May 12, 2003, entitled Understanding Section 504 in New Hampshire: A Practical Contrast with IDEA & ADA. The seminar was sponsored by Professional Development Network of Eau Claire, Wisconsin, and took place at the Crowne Plaza Hotel in Nashua, New Hampshire.

Table of Contents

I. Overview

The purpose of this material is to assist the educator in understanding how to implement the provisions of Section 504 of the Rehabilitation Act of 1973 which require that schools ensure that students with disabilities be given an equal opportunity to participate with non-disabled students in non-academic settings and extracurricular activities "to the maximum extent appropriate" to their needs. The goal of this material is to enable educators to readily identify those opportunities outside of the classroom which must be afforded to students with disabilities, as well as the accommodations necessary to ensure that students with disabilities are afforded "an equal opportunity for participation in non-classroom services and activities." This material is not intended to substitute for legal counsel nor is it intended to provide an exhaustive statement to the law.

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II. The Regulatory Framework

Section 504 of the Rehabilitation Act of 1973 does not explicitly mention athletics, extracurricular programs or other school sponsored non-academic activities. However, the language of Section 504 is unquestionably broad providing that: "No otherwise qualified individual with a disability in the United States...shall, solely by reason of her/his disability, be excluded from the participation in, be denied the benefits, or be subjected to discrimination under any program or activity receiving federal financial assistance." ⁽¹⁾

The United States Department of Education has promulgated the regulations which implement Section 504 or specifically interpret the broadsweep of this prohibition. Those regulations are found at 34 CFR, Part 104. The applicable regulatory sections are set forth below:

A. Participation to the "Maximum Extent Appropriate"

34 CFR 104.34 Subpart D of the federal regulations found in Section 104.31 through 104.39 applies to preschool, elementary and secondary education. 104.34(b) entitled "Non-Academic Settings," states that in providing or arranging for the provision of:

A school shall ensure that handicapped persons participate with non-handicapped persons in such activities and services to the maximum extent appropriate to the needs of the handicapped person in question. See 34 CFR Section 104.37, Non-Academic Services.

B. "Equal Opportunity for Participation"

34 CFR Section 104.37(a) articulates a general "equal opportunity," standard. It provides that a school "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 CFR 104.37(a).

1. Defining "non-academic and extracurricular services and activities intent."

34 CFR 104.37(a)(2) defines the phrase "non-academic and extracurricular services and activities" by example, indicating that they may include:

2. Further regulation of "counseling services."

34 CFR 104.37(b) injects a non-discrimination standard into counseling services. It indicates that a school which provides:

There is a specific requirement that the school "shall ensure that qualified handicapped students are not counseled toward more restricted career objectives than are non-handicapped students with similar interests and abilities."

3. Opportunity to access physical education and athletics.

34 CFR 104.37 indicates that in providing:

This regulatory section also provides that a school that offers physical education courses or operates or sponsors interscholastic club, or intramural athletics shall provide to qualified handicapped students an equal opportunity for participation.

4. Separate or different programs.

A school may offer physical education and athletic activities to handicapped students that are separate or different from those offered to non-handicapped students only if separation or differentiation is consistent with the requirements of Section 104.34 and only if no qualified handicapped student is denied the opportunity to compete for a team; or to participate in courses that are not separate or different.

C. The Impact of the IDEA.

The reauthorized IDEA buttresses the concept that a school is obligated to ensure that students with disabilities have an equal opportunity to participate in non-academic and extracurricular activities along with their non-disabled peers. 20 USCA Section 1414(d) requires that an IEP include "a statement of the special education and supplementary aids and services to be provided to the child, or on behalf of the child, and a statement of the program modifications or supports for school personnel that will be provided for the child...(II)...to participate in extracurricular and other non-academic activities; and (III) to be educated and participate with other children with disabilities and non-disabled children in the activities described in this paragraph."

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III. Practical Application

Section 504 extends two legal principles to non-academic programming. The first principle is that a student with disabilities shall participate with non-disabled students in non-academic settings and extracurricular activities "to the maximum extent appropriate" to the needs of the student with disabilities. The second legal principle is that schools must provide non-academic and extracurricular services and activities in a way that allows students with disabilities an equal opportunity for participation in such services and activities. The regulations do not define the term "to the maximum extent appropriate," nor to they define "an equal opportunity." The definition of these two terms has been left to our courts.

Essentially, all public school districts are covered by Section 504 because they receive some form of federal financial assistance. The primary difference between Section 504 and Title II is that Section 504 applies to the recipients of grants from the federal government whereas Title II applies only to public entities. Of course, most schools are both the recipient of federal funds and also a public entity. Under such circumstances, the institution is obligated under both laws.

The Office for Civil Rights ("OCR") and the U.S. Department of Education enforces Section 504 of The Rehabilitation Act of 1973 as well as Title II of the American with Disabilities Act of 1990 (ADA) applies to state and local governments. The primary vehicle for OCR enforcement is through the process of complaint investigation and resolution.

The determinations of OCR, and to some extent case law, provide guidance to school districts on how to handle the two pronged legal requirements of Section 504 in the area of non-academic and extracurricular services and activities for students with disabilities. It is only through an awareness of OCR and court decisions that an educator can effectively discern the scope of their obligation to provide these opportunities "to the maximum extent appropriate," in a manner which affords an "equal opportunity."

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IV. Case Studies in Section 504 Access and Opportunity

The most effective way to understand the scope of Section 504's Access and Opportunity requirements is to study the nature of the complaints regarding access and their resolution.

A. Extracurricular Activities

1. Cheerleading

A mother filed a complaint with OCR alleging that the school district discriminated against her daughter on the basis of disability by failing to afford her an equal opportunity to participate in the tryouts for the cheerleading squad. The mother indicated that the school district had refused her request to videotape the cheerleading practice. Most likely the district's refusal had been based on the privacy interest of other students. Nevertheless, the district and the Office for Civil Rights (OCR) entered into a resolution agreement where the district agreed to take the following actions:

1. The district will develop a procedure to ensure that qualified students with disabilities are afforded an equal opportunity to participate in the district's extracurricular activities and interscholastic athletic programs. The procedure will specify that students with disabilities are entitled to necessary related aids and services and/or program modification in order to accomplish the objective of equal opportunity to participate in extracurricular and interscholastic programs. The procedure will also ensure that the necessary related aids and services and/or program modification are determined on an individual basis.
   
   
2. The district will conduct training on the new procedure with the appropriate staff and district officials.
   
   
3. The district will ensure that if the student tries out for the cheerleading squad, the district will provide the student with effective accommodations, including but not limited to, the opportunity to videotape the cheerleading sponsor's instructions and demonstrations. ⁽²⁾

Practice Pointer: 34 CFR 104.37(a)(1) does not require that districts adopt a written policy with regard to equal opportunity for participation in non-academic and extracurricular services and activities. However, the effective result of this resolution was that the district was required to adopt a procedure to ensure that equal opportunity was afforded to students with disabilities. The other lesson from this resolution agreement is that districts, when faced with competing interests, such as privacy interests and access issues should seek in the first instance to broach a balanced compromise. OCR frequently uses the complaint resolution process, even if done through agreement, as an opportunity to see that district staff receive further training on Section 504. See Marion County School District (FL) 37 IDELR 13 (OCR 2001). For a similar result see Moses Lake School District No. 161, 36 IDELR 218 (OCR 2002).

2. Alcohol consumption at school events.

A student was disciplined for being under the influence of alcohol at a football game. OCR dispensed of the subsequent complaint noting that students without disabilities who committed the same offense were disciplined in the same manner. See El Paso Independent School District (TX) 35 IDELR 221 (OCR 2001).

Practice Pointer: Section 504 does not insulate students from disciplinary consequences when the discipline imposed does not constitute a change in placement. The review by OCR in such circumstances will be limited to whether or not the district acted in a non-discriminatory manner in disciplining the student.

B. Athletics

1. Dismissal for unexcused absences.

A parent filed a complaint with OCR alleging that the school district discriminated against her daughter on the basis of her disability (Bipolar Rapid Recycler Depression and ADHD) by not allowing her to participate on the high school volleyball team. The mother specifically alleged that the district did not follow her daughter's IEP amendment which called for participation in athletics until after the district filed an eligibility form for the student; that the district dismissed the student from the team for unexcused absences that were due to her disability and for unexcused absences that occurred during the time frame when she was ineligible for the team. The mother also alleged that her varsity volleyball coach retaliated against her because of a complaint that she had filed with the Alabama High School Athletic Association challenging its "no pass, no play" rule. Finally, she alleged that the coach made embarrassing remarks about her daughter to the team and inquired about her attendance at school when she had an excused absence approved through the school office.

OCR found that the state code pertaining to athletics dictates the decision regarding a student with a disability's participation in extracurricular activities and that all students who compete on an interscholastic sports team in Alabama must file an eligibility form five days prior to the competition. As to the unexcused absences, the OCR pointed to the fact that the team rules state that three unexcused absences from practices or meetings will result in dismissal from the team. OCR found that the team rule in regards to unexcused absences was applied uniformly and therefore, the district did not fail to provide the student with an equal opportunity for participation on the district's volleyball team and did not treat the student in a different manner than any other student in regards to this allegation.

The district treated the remarks by the coach as allegations of adverse action and engaged in the five step analysis as to whether or not the remarks were retaliatory in nature. In particular, the district inquired as follows:

1. Whether the complainant engaged in a protected activity;
   
   
2. Whether the district was aware of the protected activity;
   
   
3. Whether the district took adverse action against the complainant;
   
   
4. If there is a causal connection between the adverse action and the protected activity; and
   
   
5. Whether the district can show a legitimate non-discriminatory reason for its actions.

OCR found that the filing of the complaint with the Athletic Association was a protected activity and that the district was aware of the complaint and thus, aware of the protected activity. The district concluded that the alleged adverse actions, to wit the remarks about the student, even if true, did not constitute adverse actions. The actions did not result in any denial of benefits to the student in that they did not result in the student being dismissed from the team.

Practice Pointer: The lesson from this case is that school districts remain free to uniformly exercise and impose team rules in the context of athletics. The key point the district needs to demonstrate is that the team rules are uniformly applied and that they do not result in treatment of the disabled student in a different manner than any other student. See Shelby County School District (AL) 37 IDELR 41 (OCR 2002).

2. The Missed Practice Rule.

A parent filed a complaint with OCR alleging that the district treated her daughter differently than other non-disabled students by subjecting her to requirements with regard to the practice and play rules and regulations of the girl's softball team and secondly, that the football stadium and softball field were not sufficiently accessible to mobility impaired persons.

With regard to the first complaint, OCR discerned that the softball team had a policy which required that team members who missed practices run laps. The laps could be done before or after practice over a period of time. OCR found the team members, both disabled and non-disabled, were required to run laps for missing practices and that while the makeup rule had been somewhat inconsistently applied to members of the team, there were no facts to support the allegation that the inconsistency was disability driven. OCR concluded that the evidence was insufficient to support a finding that the district subjected the student to different treatment on the basis of her disability. With regard to accessibility, the district entered into a voluntary resolution agreement to increase access to its athletic facilities for mobility impaired persons in accord with the Uniform Federal Accessibility Standards.

Practice Pointer: This case reiterates the fact that team rules, if applied uniformly, will generally not be deemed discriminatory. This case also affirms the fact that public facilities, such as a field or stadium, should be brought into compliance with the Uniform Federal Accessibility Standards. See Little Axe Public Schools (OK) 37 IDELR 103 (OCR 2002).

3. Participation and eligibility requirements.

A student was dismissed from the hockey team due to three unexcused absences from practice and missing a two game tour when he was prohibited from boarding a bus because he had not attended school on the day of the game. OCR affirmed the fact that uniform participation and eligibility requirements if uniformly applied, do not constitute a violation of 504. See Maine School Administrative District No. 1, 37 IDELR 160 (OCR 2002).

4. Attitude and teamwork requirements.

The high school basketball coach cut a student from the varsity baseball team on the final day of tryouts. The coach cited the student's attitude and teamwork skills as the reason for his decision to cut the student. The student's mother filed a complaint with OCR alleging that the district discriminated against her son on the basis of disability because her son was on the baseball team the previous year, was one of the best players on the team and his disciplinary record was no worse than some of the players who made the team. The district pointed to its extracurricular activities behavior code which governed student participation in any extracurricular activity. The code stated that "participation in these events at Kaneland is a privilege granted to students who can and do uphold the ideals of good citizenship, who abide by the rules and regulations of the school community and who commit themselves to academic success." Student participation in baseball was also governed by the baseball guidelines which established criteria necessary for participation in baseball. These criteria included attitude, ability, skills, teamwork and the ability to fit into the team's style and system. All students were provided a copy of those guidelines.

The district conceded that the student had the athletic ability and skills required to be a member of the team, but contended that he did not meet the other important criteria. For example, the student had a hot temper, a bad attitude and was not a team player. The coach denied the allegation that he student's disciplinary record was the factor in his decision to cut him from the team and further indicated that he was unaware at the time he made the decision to cut the student from the varsity team that the student had a disability or that he was a special education student. OCR specifically noted that the student's IEP did not preclude him from being subject to the same requirements for making the baseball team as other students. OCR observed that "He is subject to the district's established disciplinary policies and does not have a behavioral management plan that would preclude application of either the code or the guidelines." On that basis OCR determined the complaint to be unfounded.

Practice Pointer: The result might have been different if the student's IEP contained a behavioral management plan which was inconsistent with the district's athletic guidelines. This decision gives comfort to school districts that, absent IEP statements to the contrary, they may uniformly apply their team codes to students and that this uniform application may include behavioral considerations. See Kaneland Community Unit School District No. 302 (IL) 37 IDELR 287 (OCR 2002).

5. Claims of retaliation.

The complainant to OCR alleged that the district retaliated against their learning disabled son in allowing the freshmen basketball coach to create a hostile environment by harassing the student after the complainant asserted the student's rights under Section 504. The student quit the freshmen basketball team allegedly as a result of the continuing harassment. In particular, the complainant alleged that the coach failed to make the student a starting player in the basketball game immediately following a basketball tournament in which the student was named the Most Valuable Player. The complainant alleged that this oversight was contrary to the coach's policy of starting a player in the game immediately following the game in which that player had been named the MVP. Secondly, the complainant alleged that during several practices in November and December the coach unjustifiably punished the student by forcing him to run around the gym while dribbling a basketball for an hour or more.

In discussing the complaints, OCR reviewed the factors for a prima facie case of retaliation. OCR found that since there was no evidence to support the notion that the coach had a policy for naming a player as MVP and then starting the player the next game, that there was insufficient evidence to conclude the district took adverse action against the student. OCR found that the punitive dribbling drills were an "adverse action," but then determined that "It cannot be said that the coach imposed the punishment because the complainant had engaged in protected activity." It was, however, one punishment as a series of punishments that the coach imposed upon the student to correct what he perceived as troublesome behavior." On that basis OCR found that the evidence failed to support the fourth element of a retaliation claim; the existence of a causal connection between the protected activity and the adverse action.

Practice Pointer: This case illustrates the practical benefit of isolating uninvolved staff from Section 504 complaints. It permits the staff to act independently and allows them to uniformly implement their athletic policies and procedures. This case also stands for the proposition that, provided a coach implements policy uniformly, he/she may take disciplinary action in order to correct troublesome behavior. For a similar case where a district provided legitimate non-discriminatory reasons for his actions, see Garden Grove Unified School District, 35 IDELR 227 (OCR 2001).

6. Additional IDEA protections.

A hearing officer ordered the school district to permit a 16 year old student with multiple disabilities to participate in softball games in his position as team manager over the objections of the varsity coach. The student's IEP provided for his involvement in extracurricular activities in order to afford social interaction. See Socorro Independent School District 36 IDELR 180 (SEA TX 2002).

Practice Pointer: The implication of this decision is that if an IEP calls for participation in non-academic services and extracurricular activities, that participation may become a part of FAPE and can only be terminated in accord with the procedures governing IEP amendment.

A contrary result was found in a case where the district scheduled an algebra tutorial in conflict with a high school student's spring football practice. The hearing officer ruled that because the high school student's IEP did not include participation in football, the district had not violated the IDEA. Perhaps there would have been a contrary result if the student's IEP team had determined that participation in football was a necessary component of FAPE for the student and included that participation in the student's IEP. See Lauderdale County Board of Education 36 IDELR 178 (SEA AL 2002).

In a case close to home, OCR determined that a student's suspension from football did not constitute a significant change in placement. The student's IEP mentioned football as an activity that might be beneficial for him, but OCR concluded that his participation in the sport could not be characterized as an IEP related service. See Amherst, Mont Vernon, and Souhegan Cooperative School Districts (NH) 35 IDELR 167 (OCR 2001).

7. State age and academic standing requirements.

OCR processed a complaint by a parent alleging that the district's failure to provide FAPE led to their son's ineligibility to participate in interscholastic hockey. OCR determined that the NHIAA academic and attendance eligibility requirements of age eligibility and good scholastic standing were non-discriminatory in nature. It was these requirements, rather than the alleged failure of the district to provide FAPE which resulted in the student's inability to participate in hockey. See Salem School District (NH), 35 IDELR 260 (OCR 2001).

C. Scholarships

1. Access to scholarship information.

The complainant alleged that because special education services were determined through the IEP process, special education teachers were assuming responsibilities usually delegated to guidance counselors. As a result, special education students were denied an equal opportunity to receive guidance counseling and information about scholarships and other related opportunities. The district's response was that it provided information about scholarships, as it became available, through the school bulletin, senior newsletter and principal's newsletter. In addition, the district held "college information nights" including an information night for special education students. Apparently, OCR was unsatisfied by the scope of this activity indicating that "certain information provided by the district raised concerns about whether students enrolled in special education classes are provided information about post-secondary education opportunities, including scholarships and other sources of financial assistance, that is as effective as that provided to students enrolled in regular education."

The school district and OCR reached a complaint resolution prior to completion of OCR's investigation whereby the district agreed to provide training to its staff who were responsible for participating in IEP team meetings to ensure that transition planning for each disabled student will include consideration of post-secondary education and vocational training services. The district also agreed that where the individual transition plan identifies post-secondary education as a goal, the team will take steps to ensure the student is provided information about scholarships and other sources of financial assistance equal to that provided to students enrolled in regular education. The district also agreed to take steps to ensure students and parents of students enrolled in special education are provided effective notice of scholarship opportunities.

Practice Pointer: It is important to remember that access and equal opportunity extend to guidance counseling services and post-secondary opportunity. Therefore, districts should review the manner in which they disseminate scholarship information in order to ensure that students with disabilities have equal access to this information. See Garden Grove Unified School District (CA) 37 IDELR 43 (OCR 2002).

D. Field Trips

1. Absence from school on the day of the trip.

The parent alleged that the student was excluded from attending school sponsored field trips during the 2000-2001 school year. The district's response was that the student participated with his class in two of the three field trips, but that he did not participate in the third field trip because he did not attend school on the day of the trip. The parent's response was that she kept the student home from school on the day of the third field trip due to a request from the principal. The district's response was that it had invited the student's guardian to participate in the third field trip due to the student's behavior the week of the field trip. The guardian indicated she had no recollection of such a conversation and stated that no one had told her that her participation in the field trip was a requisite of her son's participation on the trip. OCR concluded that the student missed the field trip only because he did not attend school. On that basis, OCR concluded that the evidence was insufficient to establish that the student was excluded from the trip based on his disability.

Practice Pointer: This case was probably a close call. Section 504 clearly indicates that a student should not be excluded from attending a field trip on the basis of their disability. Asking the parent to attend a field trip as a precondition to their child's participation is usually viewed as imposing a potentially discriminatory condition. See Lucas Local Schools (OH) 37 IDELR 77 (OCR 2002); see also discussion below.

2. Requiring parental attendance.

The parents filed a complaint on behalf of their son alleging that the district discriminated against their son on the basis of his visual impairment. Apparently, a special education teacher informed the student's braille assistant that the student could not participate in the field trip unless accompanied by a family member whereas other students were not required to be accompanied by family members. The student had gone on other field trips before and on no other field trip was a member of the student's family required to accompany him. OCR determined that the field trip incident was an isolated occurrence and in fact was inconsistent with district policy and practice. Because the incident was of an isolated nature, OCR closed the case.

Practice Pointer: This case stands for the principle that a district cannot make the parents' presence mandatory at a field trip when a similar obligation is not imposed upon the parents of non-disabled students. Doing such discriminates on the basis of disability in violation of Section 504. See Rim of the World Unified School District (CA) 38 IDELR 101 (OCR 2002). See also San Saba Independent School District (TX) 25 IDELR 755 (OCR 1996).

3. Limits on liability.

Sonkowsky v. Independent School District No. 721, 36 IDELR 184 (USDC MN April 8, 2002). Rocky, a student from Wisconsin was an avid Greenbay Packer fan. Rocky moved to Minnesota where he participated in a class contest for a trip to Winter Park, the Vikings practice facility, and a pizza lunch with Viking Wide Receiver Chris Carter. After the class won the contest the teachers instructed the students to wear Vikings jerseys or colors for the photo. On the day one of the photos was taken Rocky showed up wearing a Brett Favre Packers jersey with a large no. 4 printed on the front. Rocky's regular school attire consisted of Packers garb two to three days out of the week. During the class photo, Rocky covered the jersey with a sweatshirt, but then held up a folder bearing a Packers logo.

To celebrate winning the contest the school class was invited to participate in the local holiday lights parade. Participation was optional and the students were told to dress for December weather and wear Vikings clothing. Rocky alleged that he was told that if he showed up wearing a Packers jersey or jacket he would not be allowed to participate in the parade. Rocky did not participate in the parade. The school alleged that Rocky did not return the note from his parents authorizing him to participate in the parade and that at no time was he told he could not participate.

Rocky did not attend the field trip to Winter Park. He had been told that if his behavior did not improve significantly he could not go on the field trip. In particular, Rocky had several episodes of offensive behavior on the bus. Rocky's IEP identified him as having an emotional/behavioral disorder and a medical diagnosis of ADHD. On the day before the field trip Rocky allegedly told his principal and teacher that he intended to inform Chris Carter that "Vikings suck, Brett Favre rules." Subsequently, the school authorities decided that Rocky would not be permitted to attend the field trip.

What ensued was a Section 1983 Civil Rights claim in federal court. The parents alleged that his First Amendment rights had been violated. The parents also alleged that Rocky was deprived of the full utilization and benefit of his educational experience when he was not permitted to go on the class field trip. The court granted summary judgment for the school district reasoning that "Liability does not attach absent a showing 'of gross misjudgment, or bad faith, on the part of the school officials'." The court deemed the school's conduct reasonable noting that the school officials are not required to wait until a disruption actually occurs, but that they in fact have a duty to prevent the occurrence of such disturbances. The court found that the plaintiff made no showing that this decision to prohibit a child from attending a school field trip was either made in bad faith or a gross misjudgment and on that basis granted summary judgment for the district.

Practice Pointer: This case provides some degree of comfort to districts facing the possibility of a litigation. The district's liability is contingent upon not only a demonstration by the plaintiff of his exclusion from participation in services and that such treatment was by reason of disability, but that also the school officials showed gross misjudgment or bad faith. For a similar result see Miamisburg City Schools (OH) 36 IDELR 217 (OCR 2002). While a district may use the student's health or safety as a reason for not participating in a field trip, the district has the burden of demonstrating that the exclusion is essential to that child's health or safety. During the time period that the child does not participate in the field trip, the district has a duty to provide educational services.

In a similar case the parents complaint to OCR alleged that a school district discriminated on the basis of disability by revoking permission for their son to go on a school sponsored European trip. OCR concluded that the district had revoked permission because of concerns the student would violate trip rules rather than because of his ADHD. See Maine School Administrative District No. 1, 35 IDELR 166 (OCR 2001).

Practice Pointer: These cases illustrate the fact that a district can refute a charge of disability-based discrimination by demonstrating a legitimate non-discriminatory reason for its actions.

4. A different result under the IDEA?

The New Berlin School District made the decision not to allow an eighth grader with Aspergers Disorder to participate with his class on a field trip to Washington D.C. The hearing officer ruled that the district did not deny the child FAPE in doing such because the trip was not a necessary component to the student's education and therefore was not required to be included in his IEP. On appeal, the judge relied substantially on the decision in Rettig v. Kent City School District, 557 IDELR 308 (1985-86 EHLR 557:308)(6th Circuit 1986) in which the court held that the Rowley FAPE standard does not always require that a child with a disability be provided with every service offered to non-disabled children.

Practice Pointer: While districts clearly are required to think creatively with regard to field trip participation, a district is not required to take an action that will result in a fundamental alteration in the nature of the program or cause undue financial or administrative burdens. A word of caution however, is in order with regard to this exception, the local definition of "burdensome" may not be deemed an undue burden by a third party reviewing the matter.

E. Playgrounds

Playgrounds must be fully accessible to students with disabilities. For example, the playground surfaces and access ways leading to the playground must be maneuverable by students in wheelchairs.

1. Accessibility standards for playgrounds.

The parent/complainant alleged that the playground equipment at her son's elementary school was inaccessible with respect to:

1. The designated route from the blacktop play area;
   
   
2. The surface material used in the playground equipment area; and
   
   
3. The selection of playground equipment.

The student was confined to a wheelchair.

Section 504 and Title II of the ADA Regulations provide that a facility constructed after the effective date of the regulations must be designed and constructed such that the facility, termed "new construction" is readily accessible to mobility impaired individuals. For facilities constructed after January 18, 1991 the compliance standard under Section 504 is the Uniform Federal Accessibility Standard (UFAS). In considering accessibility of playgrounds, OCR determines whether a school district's playground provides a range of different types of play activities, equivalent to the range of activities available to non-disabled children that are accessible and usable by children with disabilities.

Unfortunately, neither the UFAS nor the Americans with Disabilities Act Accessibility Guidelines (ADAAG) have requirements for play areas. OCR has observed that "when UFAS and ADAAG do not have requirements for a specific facility or element, covered entities may use UFAS or ADAAG requirements for similar facilities or elements as guidance, or they may rely on state codes or other professionally recognized standards for guidance, such as the Playground Standards, on making specific elements accessible, so long as equivalent access is provided.

OCR found that the engineered wood fiber product used as the playground surface was sufficiently "impact attenuating," to reduce injuries to the child. OCR also determined that at least 50% of the elevated play components were on accessible routes and were connected using a transfer system. As a result, the number and type of accessible ground level play components was deemed sufficient. OCR did find that a section of walkway near the playground impeded access to the equipment. As a result, the district agreed to repave a ten foot section of walkway.

Practice Pointer: Districts need to be careful when confronted with volunteer playground construction efforts. These type of volunteer efforts can produce safety and access issues. A district should reference the Playground Standards promulgated by the United States Access Board. While these guidelines have not become law, they are considered advisory by OCR. See Shiloh Village School District (IL) 37 IDELR 188 (OCR 2002).

F. Physical Education Activities

A school may not discriminate on the basis of disability in providing physical education courses. If a school offers physical education courses it must provide an equal opportunity for participation in that course and must offer physical education to students with disabilities.

1. Access issues.

The complainant alleged that the district discriminated against the student on the basis of his disability by failing to allow him to take a fully active part in his adaptive physical education/gym (sports) classes. The district reached a resolution agreement which included the following:

1. Revising the student's IEP to provide a detailed description of specific activities and guidelines for his participation in adaptive physical education/gym classes;
   
   
2. Providing information in the IEP to describe the nature and scope of his adapted physical education and gym classes;
   
   
3. Including medical information in the IEP concerning future issues regarding the student's safety while participating in adapted physical education;
   
   
4. Providing an occupational and/or physical therapy evaluation to determine whether the district should offer the student compensatory occupational or physical therapy services to counterbalance any adaptive P.E. services that the student did not receive during the 2001-2002 school year.

Practice Pointer: There is no specific requirement under Section 504 that a district provide services such as occupational or physical therapy services. However, this resolution agreement illustrates how such services may come into play as compensatory services for missed access or to compensate for lack of equal opportunity. See Franklin City Public Schools (VA), 38 IDELR 46 (OCR 2002).

2. Meeting physical education needs.

A parent complained to OCR that her child's 504 plan did not contain any provisions regarding physical education. The district entered into a resolution agreement indicating that the district will review and revise the student's 504 plan in order to ensure that her disability related needs are carefully considered and are appropriately addressed in the context of physical education courses and requirements. Apparently, the parent had also complained about the child's previous physical education teacher and made allegations of retaliation. The district indicated in the resolution agreement that should the district determine that a waiver of its physical education requirement is not appropriate, "The district will ensure that the student will have the opportunity to attend a physical education course taught by an instructor other than the student's former P.E. teacher." The district also agreed to educate the student's former P.E. teacher of Section 504 and its requirements including Section 504's Prohibitions Against Retaliation.

Practice Pointer: Written between the lines of this decision is the implication that not all educators and coaches are aware of Section 504's requirements. A school district should regularly hold document training sessions with regard to Section 504 in order to satisfy OCR that it's staff have been properly educated as to Section 504's requirements.

G. Graduation

Students with disabilities who meet graduation requirements should be allowed to attend or participate in the graduation ceremony. Failure to afford such an opportunity is usually considered a violation of Section 504.

1. Excluding disabled students from graduation.

A district chose to exclude a student with a history of disability-related misconduct from its graduation ceremony. The student had engaged in several disability-related acts of misconduct. After he was awarded a diploma by the district, his parents asked that he be allowed to participate in the graduation ceremony. The district denied the request and the parents filed a complaint with OCR. The district informed OCR that it refused to allow the student to participate in the graduation ceremony because he continued to be a threat to himself and to others. The student's emotional disturbance had resulted in several disability related acts of misconduct during that year including acts of violence that constituted a threat to himself and to others. OCR made no conclusion about whether or not it was appropriate for the student to participate in the graduation ceremony, but did conclude that the process used to make the decision to exclude the student did not comply with the requirements of Section 504 regulation. The district's graduation ceremony was an extracurricular activity and thus, there was a presumption that the student was entitled to participate in that activity.

OCR noted that the procedure used by the district was defective because the decision was not based on current information about the student and was not made by the IEP team or other appropriate group of individuals.

OCR and the district entered into a resolution agreement which set forth the following practice:

1. If the school proposes to exclude the student based on the student's disability or disability related conduct, the decision must be made by the IEP or Section 504 team.
   
   
2. If the request from the parent is received less than thirty days prior to the graduation ceremony and there is insufficient time to convene an IEP or Section 504 team meeting, the decision may be made by the principal in consultation with IEP or Section 504 team members.
   
   
3. Before excluding the student from the graduation ceremony, the team (or principal in consultation with team members) will determine whether it is or is not appropriate for the student to participate in the ceremony.
   
   
4. This determination will be based on evaluation information about the student that is current and complete. The district will make a request to the parent and to any other school for the student's current records. If the parent refuses to provide or consent to the release of the records, the district may rely on the most recent information in the student's file.

Practice Pointer: This letter ruling stands for the principle that decisions to exclude a student from activities based on safety considerations must follow a process. In particular, the decisions must be based on current information and must be made by either an IEP team or a Section 504 team.

H. Choir and Band

As a general premise, students should have access to and equal opportunity to participate in choir and band programs.

1. Safety concerns.

The complainant alleged that a student with a visual impairment who attended the school district's high school was not afforded an opportunity to participate fully in the dance activities of a school choir. The complainant alleged that while she had participated fully in the performances of the choral groups of which she was a member, including dance numbers, during the most recent school year she had been essentially excluded from participating in any performance number which involved dancing.

The district's response was that the student had been permitted to participate in school vocal groups to the extent appropriate to her ability and the particular circumstances affecting each performance. The district contended that the nature of a student's participation in a given choral number entailed a range of factors, such as the type of music involved, whether the number involves the entire ensemble or only selected members, and the level of skill required. The district's representatives contended that with respect to dance, the level of participation may range from situations where students sway as a group while maintaining stage position to highly active and athletic numbers that require synchronized kick lines or negotiating elevated risers. Certain numbers were choreographed to a level where only a select few who possessed dancing talent and had studied dance for years could qualify to participate. The district contended that the student was not a skilled dancer although she had been given the opportunity to develop the skill through past participation in other performance groups including the hiring by the district of special coaches.

OCR concluded that the extent of the student's participation had been based on her vocal talent and skill.

District personnel also maintained that the student lacked the natural dance ability, rhythm and acquired dancing skill necessary to perform complicated choreography such as was necessary with synchronized kick lines. The district maintained that the student's full participation in the dance portion of certain numbers would have been unacceptably dangerous for herself and for others. The district alleged that the speed and complexity of the choreography made it highly likely that the student would have bumped into others and/or injured herself or others had she participated in the dancing as well as the singing.

OCR concluded that the district had articulated "legitimate non-disability related reasons for not including the student in the choreography of certain numbers performed during the school year." OCR noted the safety concerns that were related to her disability and that they appeared appropriate to the circumstances of the performance. OCR also noted that the district had provided an ample opportunity for the student to participate in other related extracurricular activities. See Grosse Pointe Public Schools (MI) 35 IDELR 225 (OCR 2001).

Practice Pointer: This case stands for the proposition that accessibility and equal opportunity may be limited by legitimate safety concerns and ability concerns.

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Notes:

1. Section 504 The Rehabilitation Act of 1973, as amended, 29 USC 794.