Parents frequently raise issues about schools denying access or failing to accomodate students who need support to participate in non-academic parts of the school experience including field trips. Frequently, children who require aides during the school day are told that staff is not available for after school activities, thus resulting in their exclusion from these school-sponsored events. Similarly, parents of children with disabilities are often told that unless they accompany their child on field trips, the child cannot attend. (I have experienced this situation many times during my son's time in school) Some students who require nursing care during their school day as part of their IEP are also excluded from after school activities or field trips unless a parent accompanies the student or serves as the nurse. In the event of a nurse's absence during the school day, some of these parents are even told that they are responsible for providing nursing care or the student will need to stay home that day. These situations are predictable and schools need to make plans or they may be in violation of the law. In fact, the Office of Civil Rights of the Department of Education (OCR), which oversees and investigates discrimination complaints involving the rights of students with special needs in schools, found that the above listed incidents were in fact 504 violations—either of failure to provide access or denial of FAPE.
The IDEA and the accompanying Federal regulations recognize the importance of extracurricular and non-academic activities in school and the need for students with disabilities to be able to participate in these programs. Thus, school districts must provide students with an equal opportunity to participate in extracurricular activities and nonacademic programs. A whole series of OCR decisions, many voluntarily resolved prior to completion of the OCR investigation, delineate what is and what is not a denial of access against students with special needs. I am unable to provide hyperlinks to many of these decisions or letters because they appear on a proprietary website. However, hyperlinks are provided where possible.
Not being allowed to try out for or participate fully with school athletic teams is a source of pain and disappointment for many students with special needs. For many participation is a source of self-esteem and a fertile ground for positive social experiences that are hard to come by in the rest of the school day. The legal requirements of allowing access was made in an OCR letter dated January 25, 2013, that it is fundamental to allow access to extracurricular athletic teams for students with disabilities. According to the letter, “A school district that offers extracurricular athletics must do so in such manner as is necessary to afford qualified students with disabilities an equal opportunity for participation. This means making reasonable modifications and providing those aids and services that are necessary to ensure an equal opportunity to participate, unless the school district can show that doing so would be a fundamental alteration to its program.” Thus, having a disability is no guarantee of a spot on a competitive athletic team.
Whether a situation is or is not a discrimination violation isn’t always crystal clear. The safest way to avoid these unpleasant scenarios is to ensure that the IEP team has discussed specific extracurricular and other non-academic activity for the student and stated clearly in the IEP or 504 Plan what program modifications or supports are needed to ensure the student’s participation. Some IEP teams have insisted that athletic participation is not an appropriate discussion for IEP teams. However, the OCR disagreed in a decision involving a Vermont school district stating that participation in sports can be a matter for IEP team discussion and failure to provide students with equal access to extracurriculars and sports, even if not discussed in the IEP or 504, is a violation.
For instance, the IEP of a high school student in Alcorn County Mississippi who had ADHD and Asperger's provided such accommodations as counseling to enable the student to participate in band. However, the student did not receive the requisite counseling services and his behaviors resulted in his expulsion from the band. A hearing office found that the student had been denied the opportunity to participate in band because of the lack of appropriate services and supports. In a different Wisnooki School District Vermont case, the OCR said that a district had not discriminated against a 15-year-old with Asperger’s by failing to provide him with a 1-to-1 aide for an extracurricular skiing program, and to assist in his participation in Student Council, because the IEP neither stated that a 1-to-1 aide was needed for extracurricular activities nor did the student have a 1-to-1 aide during his school day. To me this distinction appears hypertechnical. The discrimination is present whether stated in the IEP or not but err on the side of caution and get into the IEP or 504.
OCR has also weighed in on the obligations of school districts to provide nursing care to students in after school activities or athletics. OCR cited an example where a child with diabetes who required insulin was not allowed to join the after school gymnastics club because the nurse was unavailable after school. OCR made it clear that the school was obligated to provide nursing services after school in order to comply with its Section 504 obligations. A different letter involving the Park City Utah School District said that school districts couldn’t request parents to attend a field trip when the nurse was unavailable. This letter as well as a letters to a district in West Virginia and to the Montgomery County Public Schools in Maryland made clear that schools need back up nursing plans for when the regular nurse is absent. Schools can’t insist that parents come to school on those days to provide care. A particularly egregious example of a situation where a Michigan school did not have backup nursing care involved using the 7th grade sibling to oversee insulin injections when the parents were unable to come to school to provide nursing care.
To wrap up, should your child’s school call to tell you that your child can’t attend the end of the year class trip to the local amusement park, run on the track team, or go on the class trip to Washington, DC, you may be able to argue successfully for your child’s inclusion. But your best bet to making it happen is to have brought up this important discussion earlier at your child’s IEP or 504 meeting and ensuring the documents reflect what is needed to ensure your child’s participation. And please do not let your district tell you that discussions about extracurriculars do not belong in IEP meetings.
