GROUP EXERCISE:
IS THIS A LAWFUL INSTANCE OF SEGREGATION?
(TRAINERS’ VERSION)
Divide into small groups, and read the case that has been
assigned to your team. Discuss and decide whether this
instance of segregation satisfies the regulatory requirements for
justifying a segregated program or activity. Appoint a team
member to report your team’s decision and explain the
reasoning. If you need additional information before making a
decision, determine what information is missing and why it is
needed.
CASE ONE:
A One-Stop Center has two floors, both of which are reachable
by elevators that satisfy the applicable accessibility
requirements. The Center offers a resource room where
customers may use computers to access certain services,
perform Internet job searches, and type resumes and cover
letters. This resource room is on the first floor. The Center also
provides a classroom in which computerized assessment tests
are administered. This classroom is located on the second floor.
None of the computers in the resource room are modified so
that people with mobility impairments may use them; however,
a computer in the second-floor classroom has been modified
and is usable. The Center operator explains that because it
operates with a limited budget, it can afford to provide only
one modified computer, and that it has placed the modified
computer in the classroom to ensure that customers with
mobility impairments are able to take the computerized
assessment tests. The operator points out that the Center
permits customers with mobility impairments to use the modified
computer when the classroom is not in use.
Is this a lawful instance of segregation?
No.
Analysis:
Necessary: The One-Stop operator has not proven that
segregating customers with mobility impairments is necessary in
order to provide them with services that are as effective as
those provided to customers without such impairments. "The
fact that it is more convenient administratively or fiscally, to
provide services in a segregated manner, does not constitute a
valid justification for separate or different services." H.R.Rep. No.
101-485 (1990), reprinted in 1990 U.S.C.C.A.N. at 473.
As effective: The alternate services provided are not as
effective as those provided to customers without mobility
impairments. Customers with such impairments may only use
the computer when the classroom in which it is located is not in
use.
Individualized assessment: All customers with mobility
impairments must use the computer on the second floor. No
individualized assessment is performed.
Option: The One-Stop operator does not give customers with
mobility impairments the option of using a computer that is
located in the resource room, alongside the computers used
by other customers.
CASE TWO:
The State of Independence instructs its One-Stop operators and
Centers that they must provide core services to all customers,
including customers with disabilities. For intensive services,
however, the State requires that all customers with learning
disabilities be referred to one of a designated group of service
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providers that specialize in helping people with such disabilities.
The State explains that it wants such customers to receive the
best possible services, and that its One-Stop Centers are
required to perform an individualized assessment to decide
which service provider is most appropriate for each customer.
If a customer objects to the referral, s/he will be permitted to
receive services through the regular channels; however, Center
staff members are not required to inform customers that they
have this option.
Is this a lawful instance of segregation?
No.
Analysis:
Necessary: We don’t know the basis of the State’s
determination that customers with learning disabilities should
receive intensive services from specialized providers.
As effective: We also don’t know whether the providers’
services are in fact as effective as those provided to customers
without learning disabilities.
Individualized assessment: The “individualized assessment”
does not determine whether a particular customer with a
learning disability needs segregated services; it merely selects
the provider from which the customer will receive those
segregated services. This process does not satisfy the legal
requirements.
Option: Because staff members are not required to inform
customers with learning disabilities that they have the option of
receiving services through the regular channels, the ultimate
decision is not genuinely “up to the customer.”
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CASE THREE:
An LWIA in an economically-depressed area determines that
many of its One-Stop operators cannot afford to modify their
One-Stop Center facilities to meet accessibility requirements.
As a result, the LWIA designates as “disabled hubs” a number of
Centers that do meet those requirements. The LWIA outfits
these Centers with accessible computer stations, as well as a
number of other assistive technology devices, and provides the
staff of these Centers with specialized training about serving
customers with various types of disabilities. These staff members
are tested regularly to make sure that their disability-related
knowledge remains up-to-date. Other, non-accessible Centers
refer customers with known disabilities to these “disabled hubs.”
Is this a lawful instance of segregation?
No.
Analysis:
Necessary: DOL's Section 504 regulations explicitly provide that
a recipient may not exclude or otherwise discriminate against
people with disabilities because its facilities "are inaccessible to
or unusable by" such people. By definition, therefore, the
inaccessibility of certain One Stop Career Centers cannot
constitute sufficient proof that segregated services are
“necessary.”
Individualized assessment: We do not know whether other,
inaccessible Centers perform “individualized assessments.”
However, because those Centers are not accessible, they are
categorically unable to serve customers with certain disabilities.
Therefore, no meaningful “individualized assessments” may be
performed.
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Option: Because we know that other Centers are not
accessible, we know that customers with certain disabilities do
not have the option of deciding to receive services from those
Centers. Therefore, the ultimate decision is not genuinely “up
to the customer.”
CASE FOUR:
Like a number of other States, the State of Siege awards
“special diplomas” to graduating high-school students with
disabilities whom the State determines cannot meet the
requirements for a regular diploma. The decision whether a
particular student with a disability will be able to try for a
regular diploma, or will participate in the “special diploma”
program, is made when a student reaches his or her 16th
birthday.
Through its One-Stop system, the State also offers an On-theJob Training (OJT) program for high school students who satisfy
certain requirements. Because of budgetary concerns, the
State decides to restrict the OJT program to students who are in
the “regular diploma” track. It offers “special diploma”
students the opportunity to hear lectures by OJT employers
about various employment-related topics; these lectures take
place on school grounds, and not all OJT employers participate
in the lecture program.
Is this a lawful instance of segregation?
No.
Analysis:
Necessary: The State has not proven that segregating students
with learning disabilities is necessary in order to provide them
with training that is as effective as that provided to students
without such disabilities.
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As effective: The alternate training provided is not as effective
as that provided to students without learning disabilities. The
OJT is provided at the employer’s worksite, while the “alternate
training” is provided on school grounds. In addition, not all of
the employers who participate in the OJT program participate
in the lecture program.
Individualized assessment: Although the decision whether a
particular student will follow the “special diploma” track is
made on an individualized basis, no individualized decisions are
made regarding whether a particular student will participate in
the OJT program or the lecture program. All “special diploma”
students must participate in the lecture program.
Option: A “special diploma” student has no choice regarding
whether to participate in the OJT program or the lecture
program. The ultimate decision is not “up to the student.”
CASE FIVE:
A One-Stop Center offers a special Federal program designed
to inform customers with disabilities about the ways in which
their disability benefits will be affected if they go to work. A
case worker refers a particular customer, who is blind, to this
program; he informs her that he does not wish to attend. The
case worker tells the customer that unless he attends the
program, he will not be able to receive services from the
Center.
Is this a lawful instance of segregation?
No.
Analysis:
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Necessary / As effective: We do not know the case worker’s
reasons for requiring the customer to attend the special
program about benefits. However, if customers without
disabilities are not required to attend programs about benefits
in order to receive services from the Center, such programs are
probably not “necessary” for customers with disabilities.
Individualized assessment: We do not know whether the case
worker made an individualized assessment of the customer in
question.
Option: In this case, the customer clearly was not given the
option of deciding whether to receive the specialized services.
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