By Associate Dean Michael Waterstone
On Friday, the United States Department of Education, Office for Civil Rights, issued a guidance detailing the obligations of public elementary and secondary schools to allow students with disabilities to have equal opportunities to participate in extracurricular programs, primarily sporting and athletic activities. I wrote my first law review article on the case of Casey Martin, a golfer with a disability who requested the use of a golf cart in PGA play as a reasonable accommodation under Title III of the Americans with Disabilities Act. Martin eventually won in the Supreme Court.
My first impression about the Education Department's guidance was (happy) surprise that it generated so much media attention (it was picked up in numerous national outlets, including here, here, and here). Sports are important in our society, and the benefits of youth participation in athletic activities are well documented. Too often, as the United States Government Accountability Office found in a recent report, students with disabilities have been excluded from these benefits. So I am gratified that the US Department of Education is using its platform to provide leadership in this area.
But I think it is too early to know exactly what this guidance will mean. Disability advocates are comparing it to an earlier Education Department guidance under Title IX instructing schools to treat female athletics on par with male teams. That effort transformed our society, and every time I coach my six-year old daughter's softball or soccer team I am grateful for it. I am hopeful, but not necessarily optimistic, that this will be the ADA equivalent. This guidance does not break any new ground: it merely clarifies existing legal obligations under Section 504 of the Rehabilitation Act of 1973, which is hardly a new law. The Individuals with Disabilities Education Act, which also requires schools to grapple with the integration of students with disabilities into school life, has absolutely been a transformative statute. But implementation has been slow, and the law is still underenforced.
And integrating students with disabilities into sports programs raises hard questions and could upset vested interests. When Casey Martin was trying to use a golf cart in the PGA Tour, many professional golfers, including Arnold Palmer, came out publicly against him, famously stating that if Martin won, "[w]e may not have a Tour at all. It may disappear." Accommodating disability in sports means "it has always been like this" might not be enough of an answer. The guidance provides helpful direction on this: it demonstrates that a school district might need to switch to visual cues to start races to accommodate a deaf runner, or that a modification to the "two hand touch" rule in swimming might be necessary to accommodate an athlete with one hand.
Happily, often times common sense prevails, and there is no need for lawyers or litigation. Jim Abbott was able to compete as a Major League Baseball player with only one hand, and Kareem Dale, a special adviser to President Obama who is partially blind, was a high school wrestler. In both cases, accommodations were made to allow their participation without legal involvement. (In Abbot's case, Major League baseball modified its balk rule; for Dale, his school created a rule that wrestlers always needed to be touching their opponent). But other times, there will be resistance, not necessarily ill intentioned, from coaches, school districts, and athletic associations seeking to keep control over the composition of their teams and the rules of their sports. A statement from the Department of Education, while an important step, will not be enough. Advocates and lawyers, both private and public, will need to invest resources to make sure the law is enforced. Our children, and sports in general, will be better for the inclusiveness.