The National School Boards Association (NSBA) is calling on the U.S. Department of Education’s Office of Civil Rights (OCR) to better explain its guidance for students with disabilities’ participation in school sports. NSBA has issued a letter urging OCR to reach out to school boards and educators before issuing wide-reaching guidance that can be construed as statements of agency policy. Among other things, NSBA warns OCR that the guidance issued through a Jan. 25, 2013 “Dear Colleague Letter,” could cause uncertainty in the courts and invite misguided litigation.
“School boards are committed to safely accommodating students with disabilities in athletic programs, ” said NSBA Executive Director Thomas J. Gentzel. “We encourage the U.S. Department of Education’s Office of Civil Rights to work with us to find mutually workable, realistic, and practical solutions to implement existing laws.”
NSBA asks OCR to clarify several areas in the “Dear Colleague” letter that suggest the agency is taking a more expansive view of it authority to enforce Section 504 of the Rehabilitation Act, including its guidance on individual student assessments for sports. NSBA also urges OCR to clarify that it is not adding new requirements nor establishing a new enforcement standard.
“The U.S. Department of Education’s Office of Civil Rights should clarify that its ‘guidance’ is merely a menu of suggested options for school districts and not the statement of new requirements subject to federal enforcement,” said NSBA’s General Counsel Francisco M. Negrón, Jr. “Recent similar guidance has resulted in confusion in the courts about applicable legal standards.”
This expansion of executive authority under the guise of agency guidance is one concern cited by NSBA in its support of the “Local School Boards Governance and Flexibility Act,”(HR 1386). That bill aims to ensure the Department of Education’s actions are consistent with federal law and are educationally, operationally, and financially supportable at the local level. To prevent regulatory overreach into local school board matters, the bill would also require the Department of Education to follow specific steps before promulgating , rules, grant requirements, guidance documents, and other regulatory materials.