If an aide is needed to support your child in class, it is likely that the school should also provide that aide during school-sponsored extracurricular activities.
Check out this brief overview from Undivided Education Advocate Lisa Carey, and then read on for more details about the different circumstances where the school should provide an aide.
IDEA Sec. 300.117 says of non-academic settings, "In providing or arranging for the provision of non-academic 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 non-academic settings."
It is very important to discuss this with your IEP team. Remember that you can request an IEP meeting at any time, such as to discuss this issue, and the school must convene a meeting within 30 days. Alternatively, the administrator and the parent can agree to an addendum over the phone if both agree a meeting is not necessary. For example, your IEP team might agree that the school should provide an aide for school dances or for attending a student club during lunch or after school.
Whether or not the school is required to provide an aide depends on what the aide is for. If, for example, the aide is there for instructional support, the IEP team may feel that the child does not need support during non-instructional time. However, if the aide is also supporting the child’s behavior or safety, then the IEP team may agree the child’s concerning behaviors or dangers are not less likely to happen during non-academic time.
Schools often push back on providing aides outside of the regular school day. They might say that the aide clocks off at 2:30 p.m. The school cannot make a particular person work after hours, but they can make an arrangement to hire an aide for that time — and the existing aide may be glad of the extra hours. Bear in mind that the school will need time to make arrangements, so perhaps agree that they tell you in good time when there is a dance, and you will let them know if the child is attending so that they can hire an aide.
Schools have to make sports and other competitive activities accessible for students with disabilities. If the running team has a time cutoff to make the team, then your child will have to run in that time, but presuming they can do that, the school must provide an aide if needed during practices and events. Similarly, if there are auditions for a theater program with rehearsals after school, the child with a disability still has to audition; if they make the cast, the school must provide the aide if needed.
Remember that these extracurricular activities could also be opportunities for greater independence, so discuss with the teacher in charge of the activity if your child will need the support of an aide.
This applies to all activities that are school-sponsored, i.e. all the children in the school are invited to participate. It does not matter that the activity is run by a third party, such as if the PTA arranges a Grad Night outing.
In 2013, the US Department of Education issued Guidance Letter on Extracurricular athletics stating, "It would violate a school district's obligations under Section 504 to provide significant assistance to any association, organization, club, league, or other third party that discriminates on the basis of disability in providing any aid, benefit, or service to the school district's students."
It might be a different case if a third party offers a program for kids at the school that parents pay for individually, such as an after-school chess club, where the school is not involved other than to provide space in the cafeteria. In this case, the Americans with Disabilities Act might apply so that the program is required to make reasonable accommodations to allow a student with disabilities to participate. The accommodation might be allowing an aide to attend with your child, rather than providing an aide. There may also be some rules about background checks and training imposed either by the third-party program or by the school since it is on their property. Often, families in this case provide an aide themselves or use Regional Center funding (traditional or Self-Determination).
If your child has an aide full-time during school hours, there is no reason not to provide an aide for the field trip. If it is after hours or overnight, the school cannot compel a particular employee to go, but they should provide an aide. Even if a child does not normally have a full-time aide, they might need one during a field trip for safety reasons, which should be documented by your IEP team in advance. We recommend having a meeting with your IEP team a month before a field trip to review your child’s support needs.
The absence of an aide is not a reason to deny a student the opportunity to participate in a field trip. Sometimes, parents are asked to attend, which is fine if you want to go but is not an appropriate solution to the school’s responsibility to supply an aide.
Field trips can be expensive, especially a week-long science camp or Disneyland excursion. However, it is not the parents’ responsibility to pay for the aide’s admission. The cost to your family should be the same as the cost for any family in school. (See 28 C.F.R. Part 35. The public agency may not assess any additional charge for the provision of an auxiliary aid or service. 28 C.F.R. § 35.130f.)
If you initially asked for an aide verbally, put your request in writing. Request that they respond to your request with a Prior Written Notice. Here is a sample letter for Undivided members written by a non-attorney education advocate.
Once you have their response in writing (or a refusal to do so), you can make a State Complaint, refer your complaint to the Office of Civil Rights, or file for due process. It is advisable to seek an attorney’s advice.
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