Posted on September 23, 2022
Important Takeaways: A student with a section 504 plan may not be entitled to the same accommodations as a student with an IEP. If a school district allows fifth-year sports eligibility for students with an IEP, they do not have to make the same exception for students with a Section 504 plan.
Facts: A 17-year-old student was diagnosed with Major Depressive Disorder, Post-Traumatic Stress Disorder, Persistent Complex Bereavement with emotional and behavioral dysregulation, Attention Deficit Hyperactivity Disorder, Attachment-Related Disorder, Parent-Child Relational Problem, and Academic or Education Problems when his brother died when he was in sixth grade. The student repeated 10th grade and was enrolled in the Eugene School District (the District) for 12th grade and his fifth year of high school.
The student requested to compete in school sports during this fifth year but was barred by a district policy that limits students to participate in sports for 8 consecutive semesters once they enter 9th grade. The exception to this policy is a fifth-year hardship appeal. The student must have an Individualized Education Plan Team that determined he was unable to graduate within eight semesters primarily because of his disability. The student also has to establish that participation in the sport would not constitute an undue risk to the health or safety of other students.
The student, in this case, did not have an IEP and an evaluation team determined that there was no suspicion of any educational disability that may require special education. The student’s waiver request to participate in sports was denied because he did not meet the criteria. The student appealed the denial and that was also denied. The appeal denied said there were fundamental differences between a student with a 504 plan and a student with an IEP. The denial also noted that allowing the student to play would be taking a spot away from an otherwise eligible student.
The student filed for injunctive relief under Title II of the Americans with Disabilities Act (ADA), asking the District to allow him to participate in sports. To succeed on a Title II claim, the Plaintiff must show they are a qualified individual with a disability and were excluded from participation in or otherwise discriminated against with regard to public entities activities, and such exclusion or discrimination was based on the disability. Failure to provide a reasonable accommodation can be discrimination if the student can show the existence of a reasonable accommodation that would have enabled him to participate in the activity at issue. If the student can show this, the District must show the modification would require a fundamental alteration or pose an undue hardship to the District.
The Court held that the criteria for obtaining an IEP and a 504 plan are so different that eligibility waivers do not have to be granted to students with a 504 plan as they do to students with an IEP. The Court also found there was no evidence that the ADA requires eligibility waivers for students with a 504 plan as a reasonable accommodation. No discrimination on the basis of disability occurred.
What this means: If a school district has a policy that only allows fifth-year sports eligibility in limited circumstances, including when a student has an IEP and the IEP team has determined the student cannot graduate in large part because of their disability, they do not have to make the same exceptions for a student with a Section 504 plan.
What is the name of the case and where you can read it: D.M. v. Oregon Scholastic Activities Association, United States District Court for the District of Oregon, September 9, 2022. Read it here.
As you consider these and other issues, we recommend you speak with your school lawyer or contact Bea, Kevin, Megan, and Beth by email or at 406-542-1300 to discuss these issues.