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By Brian Hendrickson
As the issue of providing opportunities for student-athletes with disabilities gains momentum at the high school level and sparks conversation about its potential impact on intercollegiate athletics, Seth Galanter, the U.S. Department of Education’s Acting Assistant Secretary for Civil Rights, made it clear during a presentation at the NCAA Inclusion Forum that NCAA members will have an opportunity to set the tone for creating those opportunities on their campuses.
Disability rights activists have trumpeted recent policy guidelines issued by the Department of Education’s Office for Civil Rights as a historic moment for creating opportunities for athletes with disabilities to compete in scholastic and intercollegiate programs. But during a May 1 educational session at the NCAA Inclusion Forum in Indianapolis, Galanter said the OCR will first look to higher education institutions to develop the best practices that provide those opportunities rather than dictate policy.
“We are lawyers,” Galanter said, “and we are applying rules to a very complicated area that you know better than us. We’re going to look to the people in this room and other people who are interested in this to figure out what the best practices are.
“What we’re really looking for are things that are practical, things that can be operationalized, things that are scalable, so everyone has a way that they can comply with the law without putting a man on the moon.”
The discussion was framed around a January guidance statement issued in a “Dear Colleague” letter from the OCR to all schools — from kindergarten through college — who receive federal funding. That letter outlined their obligation to provide athletics opportunities to students with disabilities as specified by the Rehabilitation Act of 1973.
The session’s moderator, SUNY Cortland professor Ted Fay, likened the 40-year-old law to the classic tale of Rip Van Winkle: It has awoken from a long slumber, he said, and is now set to go into action. The impacts of recent applications of the law have already been felt through several lawsuits in the last seven years that used the Rehab Act to create opportunities for athletes with disabilities in high school.
The Dear Colleague letter made clear that schools have a responsibility to either integrate athletes with disabilities onto existing teams by making “reasonable accommodations” that would allow them to compete – such as permitting a one-handed touch to a swimmer with one hand – or create programming specifically for students with disabilities when those accommodations are not enough.
“It’s a clear policy statement. We’re moving into an action phase,” said Anita Moorman, a Louisville professor of sport administration who is a recognized expert on disability-rights issues. “It really identifies that the schools have the primary responsibilities to comply. It is your legal burden to make sure you’re compliant. This supersedes any conference or association rules or policies.”
When the letter was issued, Galanter made clear that the outlined responsibilities applied to higher education institutions as well as high schools. But it was not made clear how compliance would be evaluated at the college level. Did it require schools to add varsity programs for student-athletes with disabilities, such as wheelchair basketball? Or did it mean integrate athletes with disabilities onto existing teams, such as adding wheelchair events to track and field? Would club sports, such as the successful wheelchair basketball programs at Illinois and Alabama, meet the need?
Galanter said the OCR does not plan to provide another guidance statement to address those questions in the near future. Instead, it will look to the schools to explore the best solutions.
Jeffrey Orleans, former executive director of the Ivy League, said that gives NCAA members an opportunity to be leaders.
“I would hope we would all work quickly together to take the lead,” Orleans said. “There is no organization that I can see who is equipped, or has the interest to lead, except the NCAA. We have the most institutions, the most athletes, the most students, the most opportunities in intercollegiate athletics. Now that it’s out there, we have a responsibility. And we’ll have to figure out what that responsibility looks like.”