Bring on the extracurriculars! Educators, families, and students would likely agree – extracurricular activities are a significant part of education. Both the IDEA and Section 504 must provide students with disabilities an equal opportunity to participate in extracurricular activities.  

What does this mean for school districts? A guidance from the Department of Education gives us some insight. First off, school districts should avoid denying students with disabilities the opportunity to participate in or benefit from an aid, benefit, or service because of the student’s disability. Instead, school districts must afford students with disabilities an equal opportunity for participation in extracurricular services and activities.   Remember that Section 504 protects the rights of students with disabilities even if that student is not eligible for services under IDEA.  

Unless needed to provide FAPE, an extracurricular activity does not need to be included in a student’s IEP to guarantee that a student has an equal opportunity to participate in the activity. If a student requires supplementary aids and services to participate in an extracurricular activity, however, it must be included in the student’s IEP. For example, a deaf student’s IEP may need to reflect that he requires an interpreter to play on the school’s football team. Likewise, if a student requires behavioral support to participate in the robotics club, the ARD Committee needs to include it in her IEP.  

Furthermore, District employees must be careful not to rely on stereotypes or preconceived notions of the student or their disability to make selection or participation decisions. For example, a theater teacher denying a student a leading role based on concerns about how his dyslexia may impact memorization of lines is discriminatory against the student, who, under federal law, is permitted an equal opportunity to participate.  

This does NOT mean that a school district must include a student on a competitive or selective group if the school requires a certain level of skill in the activity, provided the selection criteria are not discriminatory. Providing an equal opportunity does not mean that school districts must compromise student safety, change the nature of selective teams, give students with disabilities unfair advantages over other competitors, or change essential elements that affect the fundamental nature of the game.  

Rather, school districts must make reasonable modifications to policies, practices, or procedures whenever such modifications are necessary to ensure equal opportunity. This requires an individualized inquiry by the school district as to whether there are reasonable modifications or necessary aids and services available to allow a student with a disability the chance to participate. For example, the Department has specified that it would be reasonable for a school district to provide the use of a visual cue for a student who is deaf or hard of hearing as a start signal for a track race, as this modification does not create a “fundamental alteration” to the activity. However, a school district is not required to guarantee a spot on a school team to a student with a disability where the student cannot perform the required skills during try-outs.  

While the U.S. Department of Education has urged school districts to create additional opportunities for each student, which could include separate or different activities from those already provided, school districts are not required to do so. It is best for school districts to be flexible in developing programs that consider the unmet interests of students with disabilities. For example, when the number of students with disabilities at an individual school is insufficient to field a team, school district may consider developing a district-wide team for students with disabilities, allowing for male and female students to play together on teams, or other alternatives to allow participation. School districts should work together with students, families, community and advocacy organizations, athletic associations, and other interested parties, to address these challenges and develop creative solutions to ensure equal opportunity for students with disabilities.  

There are many benefits of extracurricular activities, including socialization, improved teamwork and leadership skills, mentorship opportunities, and fitness. Equal opportunity to benefits of extracurricular activities for public K-12 schools is mandated by federal law and contributes to an inclusive community in the school. For additional information regarding the participation of students with disabilities in extracurricular activities or questions regarding reasonable modifications, please contact the author of this post or any member of the Thompson & Horton Special Education Team.      

*Emmy Edwards, a student at SMU Dedman School of Law, is a legal clerk with Thompson & Horton LLP.