New Jersey lawyer focusing on special education law and employment law


Students with Disabilities and Extracurricular Activities

One of the most important aspects of school is non-academic extracurricular activities. Students who participate in extracurricular activities, such as sports, chess, music, student government, yearbook clubs, and other special interest clubs, develop talent, skill, and teamwork. By participating in extracurricular activities, students have an opportunity to make friends they would not otherwise have made during the regular school day.

The importance of extracurricular activities cannot be overemphasized, particularly for students with disabilities who are mainstreamed because it provides an opportunity for them to learn new skills, improve their talents and self-esteem, and develop relationships with their peers. In addition, when students with disabilities participate in extracurricular activities, other “nondisabled” students will look past one’s “disability” and focus more on one’s talents and skills.

Therefore, it is important that parents understand that students with disabilities have the right to participate in extracurricular activities at school.

The federal law known as Section 504 of the Rehabilitation Act requires that public schools provide students with disabilities equal opportunities to participate in extracurricular activities as their non-disabled peers. For those who enjoy reading regulations may refer to 34 CFR Section 104.37.

Many schools must also comply with another applicable federal law that prohibits discrimination on the basis of disability: The Americans with Disabilities Act. Like Section 504, the regulations that public entities (which include schools) must adhere to under the Americans with Disabilities Act are stringent.

Children with disabilities may also be protected by another federal law known as The Individuals with Disabilities in Education Improvement Act. This is a very important law that affords children with disabilities the right to a “free and appropriate education.” A “free and appropriate education” may include gym classes, including physical and occupational therapy, as well as any extracurricular activities that may be available to the general student population.

Under these federal laws, schools must not discriminate against students on the basis of disability and may be required to implement necessary modifications or provide accommodations in order for students with disabilities to participate in extracurricular activities.

Here are a few concrete examples:

  1. A student with diabetes who tries out for the cheerleading team may not be excluded because she may need to give herself insulin.
  2. A student with autism or Asperger’s Sydrome may not be excluded from participating in Tae Kwon Do classes because he or she is non-verbal.
  3. A deaf or hard-of-hearing student may be provided a sign language interpreter to help facilitate communication at a student government club meeting.
  4. A student who is blind may be permitted to touch the chess pieces on the board or have someone verbally explain where a piece has been moved to.
  5. A school would be required to provide wheelchair accessible mode of transportation for a disabled student who wishes to participate at an off-site, school-sponsored music training program.
  6. A student with mobility issues who wants to play golf but cannot walk long distances may ride in a golf cart.
  7. A student who is allergic to nuts may join a baseball team and ask the school to implement a policy prohibiting all team players from bringing, eating, or spitting out sunflower seed shells, pumpkin seeds, and peanuts.

Additional examples of modifications and accommodations are provided in this wonderful article titled, “‘I Know I Can Do It’: Sports are for Disabled People Too.”

Over the years, there have been many interesting cases involving students with disabilities who were denied from participating in extracurricular activities. A summary of some of these cases may be found here and there.

The purpose of this article was to inform parents that extracurricular activities play an important role in every child’s life. Children with disabilities who participate in extracurricular activities develop skills and talents and friendships. Children with disabilities have the right not to be discriminated against on the basis of disability. Moreover, schools may not deny children with disabilities the opportunity to participate in extracurricular activities.

If your child has a disability and is interested in participating in an extracurricular activity, but has not been able to do so, your child may be a victim of disability discrimination. It is important that you advocate on behalf of your child and speak with the school to find out why your child has not been afforded an opportunity to participate in an extracurricular activity of his or her choosing. If you are unable to make headway with the school, you may wish to consult with a child advocate or a special education attorney for assistance.

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    There are 12 comments. Add Yours.

    Cousin Vinny —

    Spot-on article. However, I’m not so sure about IDEA’s applicability to extracurricular activities. I was under the impression that IDEA applied to special education settings from ‘bell to bell,’ i.e., opening bell to ending bell.

    Still, schools benefit tremendously when its students with disabilities participate in its extracurricular activities, and your article helps illustrate this clearly.

      Matthew Stoloff

      Thank you for chiming in.

      You ask a good question. The IDEA regulations provide:

      34 C.F.R. Sec. 300.107 Nonacademic services.

      (a) Each public agency shall take steps to provide nonacademic and extracurricular services and activities in the manner necessary to afford children with disabilities an equal opportunity for participation in those services and activities.

      (b) Nonacademic and extracurricular services and activities may include counseling services, athletics, transportation, health services, recreational activities, special interest groups or clubs sponsored by the public agency, referrals to agencies that provide assistance to individuals with disabilities, and employment of students, including
      both employment by the public agency and assistance in making outside employment available.

      (Authority: 20 U.S.C. 1412(a)(1))

      The above language strongly suggest that the IDEA provides protections for children with disabilities who wish to participate in extracurricular activities, including sports and special interest groups.

      Furthermore, the language does not limit schools to provide accommodations or modifications from ‘bell to bell.’ Indeed, it appears that schools are required to provide accommodations and modifications before, during, and after school.

      To my knowledge, invoking IDEA for extracurricular activities is not common. But it is always something to think about.

    Cousin Vinny —

    Not to nitpick, but don’tcha mean 34 C.F.R. 300.107 (& 34 C.F.R. 300.117)?

    As you astutely stated, it is indeed quite uncommon, and hence my earlier misunderstanding. I wonder why that is the case? Maybe many IEP teams just have ‘tunnel vision’ and focus on the educational aspects of their cases…

    Still, you’ve given me quite a bit to think about! Thanks for expanding my horizons.

      Matthew Stoloff

      Thank you again for your comment.

      I have corrected the citation to the regulations in my first comment. You are right that 34 C.F.R. 300.117 is also applicable. For the benefit of those who may be reading this, I would like to quote that section in its entirety:

      34 C.F.R. Sec. 300.117 Nonacademic settings.

      In providing or arranging for the provision of nonacademic and extracurricular services and activities, including meals, recess periods, and the services and activities set forth in §300.107, each public agency must ensure that each child with a disability participates with nondisabled children in the extracurricular services and activities to the maximum extent appropriate to the needs of that child. The public agency must ensure that each child with a disability has the supplementary aids and services determined by the child’s IEP Team to be appropriate and necessary for the child to participate in nonacademic settings.

      (Authority: 20 U.S.C. 1412(a)(5))

      Isn’t it interesting how these IDEA regulations with regard to extracurricular activities tend to be overlooked? There is always value in reading and re-reading the regulations. Your thought about ‘tunnel vision’ is probably true, and I hope that this article and our exchange helps parents and teachers see that the IDEA is much more than what takes place in the classroom. I am glad that this exchange has helped expand your horizons. I look forward to continuing my research in this area and sharing it with you, along with other parents, teachers, and attorneys.

    Ramona Valencia —

    How about children who have a 504 Plan to provide for accommodations for a diagnosis of anxiety and depression. Can a school exclude a student based upon attendance (school refusal) which is a result of their anxiety disorder? For example, band trips and extra curricular activities that are not part of their school day?

      Matthew Stoloff, Esq. —

      Your question is timely. Last month, there was a case involving a student with severe anxiety disorder who sued the school district for failing to provide accommodations during an extracurricular activity. I just wrote a blog post about that a few moments ago.

      Always keep in mind that these types of cases are often decided on a case-by-case basis. Additionally, not all courts will agree with each other. Just because the New York court decided one way does not necessarily mean that a New Jersey court will rule in the same manner should a similar case be litigated in the future. There are many factors affecting the outcome of any particular case.

    Suncatcher3 —

    What if your child had tried out for cheerleader and didn’t make it after three years of being on the team? The reason she didn’t make it was not due to her performance but to her unexcused absences and tardies in her first period classes. Before we found out she didn’t make it, we had started the process of having her teachers fill out the Vanderbilt Assessment forms for ADD. Even though she is a very bright child, her teacher evaluations for cheer try-outs clearly show that she was marked down for her absences. She was also marked down points by her Assistant Principal as well. Could this be considered discrimination if she is tested and truly does have ADD? I have asked the school if they will place her back on the Varsity team on a trial basis once we get a diagnosis and put modifications/medication in place, but they refuse saying that the information that they had at the time of try-outs stands. So, now, my daughter is devastated that she will not be on the cheer team her Senior year.

      Matthew Stoloff, Esq. —

      Generally, students are required to maintain a certain level of academic performance and maintain a good attendance record in order to participate in school-sponsored extracurricular activities. Most, if not all, schools have a written policy on this.

      If you live in New Jersey and would like a consultation to discuss your and your daughter’s rights, feel free to contact me. If you do not live in New Jersey, I suggest that you reach out to an attorney near you who is knowledgeable about special education and civil rights laws.

    Stakeholder Parent —

    I have always wondered if it is legal for a school system to schedule their remedial courses during the elective time block thus denying student equal participation in elective course (like beginning band or choir).

    For example, our six grade IEP students have to take a course called learning strategies during the time band or choir is offered. All the other 6th grade students are allowed to take the elective. As a result when the IEP students are allowed to take band in 7th grade, they are a year behind their peers, who have moved up to intermediate band, and thus discourages them to participate with their peers.

      Matthew Stoloff, Esq. —

      You ask a very good question.

      There is a finite amount of time during the school day, and when the IEP team is faced with the choice between an elective and a required course, I think most people would agree that the required course takes priority.

      That being said, you should research your state’s laws and regulations to see if there is anything on point. If there is nothing on point, it may help to think outside the box so that your child won’t be too far behind in music next year.

      Thank you for your question. Good luck.

    Savina Clark —

    My high school daughter has epilepsy. She does not participate in any extracurricular activities (unless either my husband or myself can attend) because there is no nurse on duty, in case of a seizure. Is the school required to make this accommodation?

      Matthew Stoloff, Esq. —

      Children with epilepsy, like children with diabetes, frequently participate in extracurricular activities. Many K-12 students with epilepsy and diabetes have a 504 plan or a health care plan that outlines what must be done on a regular basis or explains must be done in emergency situations.

      School districts are required to provide accommodations under Section 504 of the Rehabilitation Act and the Americans with Disabilities Act.

      To accommodate students with diabetes, staff can be trained to check blood glucose levels and insulin levels. Likewise, staff can be trained to act quickly when a child has a seizure, such helping the child lie down if she is standing up, positioning the child on her side, ensuring that the child is far and away from the field or area where other children are playing, timing the seizure, and any other measures that may be appropriate for the child, such as administering Diastat.

      Many of these tasks can be safely performed by non-medical personnel.

      A school that refuses to provide any accommodations to a student with epilepsy or diabetes may run afoul of Section 504 and the Americans with Disabilities Act.

      If you need legal assistance, you are encouraged to consult with an attorney in your state. Alternatively, you may wish to reach out to the Epilepsy Legal Defense Fund.

      To learn more about the rights of students with epilepsy in the educational setting, please see the Legal Rights of Children with Epilepsy in School & Child Care: An Advocate’s Manual.