The United States Department of Education has released a guidance requiring schools to make “reasonable modifications” to include students with disabilities in mainstream athletics programs or provide parallel options. That may sound like just another boring piece of paper that oozes off the desk of a government bureaucrat on any given day. But this is very different. The guidance proclaims that access to interscholastic, intramural, and intercollegiate athletics is a civil right.
Asserting access to athletic programs as a civil right is a big step forward for our education system and, of course, for people with disabilities. It highlights the important role that sports can play in the development of young people as functioning and contributing members of society. It also serves to help decrease the stigma too often associated with physical, mental, and emotional disabilities.
The limitation of a guidance is that it clarifies existing laws, but doesn’t create new ones. So, although it’s not a “toothless tiger,” it’s questionable as to whether anyone will be able to file a lawsuit based on it. And there are sure to be lawsuits because it’s inevitable that the guidance is going to create a host of issues about classification and definition such as: What is a disability? What is a “reasonable modification”? What is a reasonable “accommodation”? What will get modified: the sport, the arena, or the people eligible to play?
These questions are only one aspect of what may prove to be a can of worms that will have to be worked through for years. It could be opened by those who fear that the integrity of high school and college athletics will be damaged by the “modifications” and “accommodations” the guidance seeks. But there is also another set of problems, that is, how to balance what is cost-effective and what is right, since the two don’t always prove to be compatible travelers.
We need look no further than Title IX, which many years ago helped secure real access for women to sports. The expanded opportunities it afforded to women have, to say the least, proven highly controversial—and not entirely successful. Institutions have had to balance an unfortunate reality: the cost of new or expanded women’s programs is often disproportionate to the revenue generated by a majority of women’s teams. This has sometimes meant fewer sports available to women and men.
Women’s programs aren’t alone, of course. There are plenty of male sports that don’t produce revenue and which are dependent on those that do. So, when it eventually comes down to the bottom line, will athletics programs for students with disabilities receive the same second-class treatment that women’s sports have received in some places?
The guidance aims at offering students with disabilities an equal opportunity to participate in extracurricular athletics programs. That is a good and proper thing for our nation. But there is language in the guidance that could provide a good deal of room for those who want to wiggle—or weasel—their way out of complying.
One example is the portion that states “school districts may require a level of skill or ability of a student in order for that student to participate in a selective or competitive program or activity, so long as the selection or competition criteria are not discriminatory.” This makes sense—the severely-disabled don’t have to be accommodated if they cannot play at all. But less-generous interpretations of that loophole are sure to be offered by schools that are not willing to take money from the big-earning sports to let a student who is mildly autistic have a shot at the swim team.
There is, rightfully, going to be a lot of public pressure and notoriety to make sure the spirit and scope of the guidance don’t fall by the wayside. Meanwhile, there are going to be a lot of people who talk about what a big step forward this is for people with disabilities. It undoubtedly is. But if this guidance is really going to make a difference, some tough and honest conversation about financing and revenue had better start—and soon.
