The U.S. Department of Education last week issued new requirements that educational institutions will have to follow in order to comply with Section 504 of the Rehabilitation Act of 1973. On paper, these sound terrific and will, in the ideal world, mandate that all 19,500 educational institutions from elementary through post-secondary levels provide equal opportunities for athletic participation to their students with disabilities. The new directive is being hailed as a breakthrough issuance that will do for disabled student athletes what Title IX did for women.
Sounds encouraging, doesn’t it? Who could oppose something as beneficial as affording students with disabilities the same or equivalent athletic opportunities? Everyone who watched South Africa’s double amputee “blade-runner,” Oscar Pistorius compete in the 400 meters at the London Olympics last year can only wish that American students would have comparable opportunities.
The reality, however, might be quite different. First, anyone reading the glowing media reports about the Education Department’s “landmark” directive should know that it took the Department 40 years to issue it. In that time, the law regarding athletic participation is unchanged. The 1973 Rehab Act required equal athletic opportunity for disabled students then, and still does today. In fact, as attorney Anne Marie Hermann noted in a cutting-edge law review article in the Journal of College and University Law in 1979, the Education Department’s predecessor Department of Health, Education and Welfare had issued similar regulations in 1977 that mandated the same equal treatment then as now.
The difference in this latest iteration is that it includes more specifics and permits alternatives to “mainstreaming” disabled athletes under certain circumstances.
What happened after that first dictate is both instructive and indicative of what all too often occurs when a new law or implementing (and salutary) government regulation is promulgated.
Very little happened. Instead, we have experienced four decades of virtual inaction by (1) school districts, colleges and universities, (2) the federal government, more specifically the U.S. Department of Education’s Office of Civil Rights (OCR), and (3) the mainstream media, which is always more interested in initial pronouncements of significant initiatives than in following up later to see what actually happened after all the kudos and praise is heaped upon the pronouncers.
In the intervening 40 years since the Rehab Act became law, rampant athletic discrimination against disabled students has proceeded along, unthreatened by much of any government enforcement activity, regulatory reporting requirements or federal compliance efforts (an examination of the last 40 years of OCR activities in this area reveals only sporadic and negligible attention to the issue), much less any media scrutiny of whether these educational institutions were actually doing anything to level the playing field.
Unfortunately, this kind of thing is not unique to this issue. It goes far beyond equal treatment of disabled and non-disabled student athletes into areas such as federal directives requiring agencies to aggressively recruit and hire disabled individuals and veterans, for example. Grand proclamations and declarations designed to make life better for people who need assistance are all too often followed up by — nothing.
Page 2 of 2 - Only time will tell if the education sector, government and/or the media will do much of anything to translate the elevated tones of the new OCR directive into effective action.