Considering Student Non-Curricular Accommodation Requirements

Section 504, the Americans with Disabilities Act (ADA), and the Individuals with Disabilities Education Act (IDEA) require a school to provide students with disabilities access to all programs and activities the school offers. Often, school officials erroneously believe that programs or activities offered outside the academic school day are exempt from these requirements. They are not. Although schools are not required to provide programs or activities outside the school day, those that do must ensure that students with disabilities have the accommodations needed to participate.

For example, if a parent enrolls a student with a disability in before and after care or any other non-academic program or activity, and staff have a concern about the effect the disability will have on the student’s participation, school officials should have an open dialogue with the student’s family to determine accommodations to enable the student to participate.

School officials must be wary of excluding a child from any program or activity due to difficult, or even extreme, behaviors. The Office for Civil Rights examines such situations carefully to determine whether school officials relied on assumptions or stereotypes about a disability or failed to consider accommodations that may have been effective.

There is no disability that automatically excludes a student from participating in a school program or activity. Rarely, a situation arises in which no accommodation can be implemented that will enable the student to participate, or in which the accommodation would fundamentally alter the program. In those very limited situations, the program or activity may not be available to the student.

School officials must also remember that the family of a student with a disability cannot be charged more than a family with a non-disabled student for any program or activity, even if the school will incur additional costs related to necessary accommodations. For instance, if a family needs a one-to-one paraprofessional to participate in the program, the school must absorb that cost without passing it on to the student’s family.

School officials may not require parents to attend or participate in a program or activity as a condition for student participation in that program or activity. In addition, students with disabilities may not be subjected to unreasonable burdens, such as production of excessive medical documentation, to participate.

Even if a school contracts with a third party to operate a program or activity, the school is not necessarily shielded from liability. A public school may not aid or perpetuate discrimination against students with disabilities by providing significant assistance to an entity that discriminates. The school should therefore ensure that the third party complies with accommodation requirements or end the contractual relationship.

If your school is considering excluding a student with a disability from a school program or activity, we recommend contacting a Thrun attorney.