Real Safety AI Foundation / Research

Disability, Accessibility, and Civil Rights

What Filled the Period: Uncompensated Student Labor in Segregated Instructional Programs

Publisher: Real Safety AI Foundation

Working paper. Not peer reviewed.

Written
September 2026
Version
v1.0
Pages
44
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Abstract

The accountability indicator that drives school ratings under the Every Student Succeeds Act is built on annual mathematics and reading assessments, and in segregated special education programs the unmeasured subjects give up their place in the schedule first. That much is documented. This Article addresses the question the deletion literature leaves open, which is what occupies the time after the subject is gone. In school-based enterprise programs of a common design, the vacated period is filled with uncompensated student labor that generates revenue for the district: coffee service and school stores staffed by students who receive no wage, no credential, and no arm's-length employer. The Article argues that this substitution is independently actionable on three grounds the existing literature has not connected. First, labor performed inside the recipient's own building, for the recipient's own staff, fails the Department of Labor's community-based vocational program criteria on their face, and the school-as-host structure removes the arm's-length party the criteria presuppose. Second, the practice is a method of administration having the effect of discrimination under 28 C.F.R. 35.130(b)(3) and 34 C.F.R. 104.4(b)(4), effect standards carrying no intent element. Third, where the revenue funds a service the recipient is obligated to provide, the arrangement is a surcharge on a group of individuals with disabilities under 28 C.F.R. 35.130(f), paid in labor rather than in currency; the Ninth Circuit's holding that a surcharge is facial discrimination and the Office for Civil Rights' instruction that disability-specific athletic programs be supported equally carry the claim. The Article develops two terms. Curricular substitution names the displacement of instruction by institutionally profitable activity, distinguishing it from deletion, which describes only an absence. Surcharge in kind names the transfer that results when a protected class discharges in labor a cost the covered entity owes in money. It answers the elective-choice defense as a formation failure rather than a defective assent, and it closes by locating the ceiling question in 34 C.F.R. 104.37(b), which forbids counseling students with disabilities toward more restrictive career objectives than nondisabled students of similar interests and abilities, and which the promulgating agency's own analysis never discussed.

Keywords

  • special education law
  • disability discrimination
  • method of administration
  • surcharge prohibition
  • work-based learning
  • transition services
  • curricular substitution
  • surcharge in kind
  • intellectual and developmental disabilities
  • school-based enterprise
  • subminimum wage
  • vocational rehabilitation

Suggested citation

Gilly, Travis. "What Filled the Period: Uncompensated Student Labor in Segregated Instructional Programs." Real Safety AI Foundation Working Paper, September 2026. https://realsafetyai.org/research/what-filled-the-period/

References (63)

  1. A. J. T. v. Osseo Area Schs., No. 24-249 (U.S. June 12, 2025).
  2. Alexander v. Choate, 469 U.S. 287 (1985).
  3. Aronson, B., Murphy, K. M., & Saultz, A. (2016). Under pressure in Atlanta: School accountability and special education practices during the cheating scandal. Teachers College Record, 118, 1.
  4. Avellone, L., Taylor, J. P., & Wehman, P. (2023). State-level analysis of subminimum wage use for individuals with disabilities in the United States: Implications for policy and practice. Research and Practice for Persons with Severe Disabilities, 48, 127.
  5. Bagenstos, S. R. (2009). Law and the contradictions of the disability rights movement. Yale University Press.
  6. Bagenstos, S. R. (2012). The past and future of deinstitutionalization litigation. Cardozo Law Review, 34, 1.
  7. Bagenstos, S. R. (2020). Disability rights and the discourse of justice. SMU Law Review Forum, 73, 26.
  8. Bagenstos, S. R. (2020). Taking choice seriously in Olmstead jurisprudence. Journal of Legal Medicine, 40, 5.
  9. Bay Area Addiction Rsch. & Treatment, Inc. v. City of Antioch, 179 F.3d 725 (9th Cir. 1999).
  10. Berger v. Nat’l Collegiate Athletic Ass’n, 843 F.3d 285 (7th Cir. 2016).
  11. Bertram v. Beneficial Consumer Disc. Co., 286 F. Supp. 2d 453 (M.D. Pa. 2003).
  12. Bobilin v. Bd. of Educ., 403 F. Supp. 1095 (D. Haw. 1975).
  13. Brown v. N.C. Div. of Motor Vehicles, 166 F.3d 698 (4th Cir. 1999).
  14. Brudney, J. J. (2021). Square pegs and round holes: Shrinking protections for unpaid interns under the Fair Labor Standards Act. In A. Paz-Fuchs et al. (Eds.), A research agenda for the law of unpaid work. Edward Elgar. https://doi.org/10.2139/ssrn.3434653
  15. Carter, E. W., Trainor, A. A., & Çakıroğlu, O. (2009). Availability of and access to career development activities for transition-age youth with disabilities. Career Development for Exceptional Individuals, 33, 13.
  16. Cease-Cook, J., Fowler, C., & Test, D. W. (2015). Strategies for creating work-based learning experiences in schools for secondary students with disabilities. Teaching Exceptional Children, 47, 352.
  17. Christenson, S. L., Decker, D. M., & Triezenberg, H. L. (2007). Consequences of high-stakes assessment for students with and without disabilities. Educational Policy, 21, 662.
  18. Colo. Plasterers’ Pension Fund v. Plasterers’ Unlimited, Inc., 655 F. Supp. 1184 (D. Colo. 1987).
  19. Dare v. Cal. Dep’t of Motor Vehicles, 191 F.3d 1167 (9th Cir. 1999).
  20. Dignity in Pay Act, H.B. 793, 103d Gen. Assemb. (Ill. 2025).
  21. DuPage Reg’l Office of Educ. v. U.S. Dep’t of Educ., 58 F.4th 326 (7th Cir. 2023).
  22. Duprey v. Conn. Dep’t of Motor Vehicles, 28 F. Supp. 2d 702 (D. Conn. 1998).
  23. Fields, C. J., & Demchak, M. (2018). Integrated visual supports in a school-based microenterprise for students with intellectual disabilities. Career Development and Transition for Exceptional Individuals, 42, 128.
  24. Friedman, C., & Rizzolo, M. C. (2020). Fair-wages for people with disabilities: Barriers and facilitators. Journal of Disability Policy Studies, 31, 152.
  25. Gary A. v. New Trier High Sch. Dist. No. 203, 796 F.2d 940 (7th Cir. 1986).
  26. Glatt v. Fox Searchlight Pictures, Inc., 811 F.3d 528 (2d Cir. 2015).
  27. Grant-Smith, D., & McDonald, P. (2017). Ubiquitous yet ambiguous: An integrative review of unpaid work. International Journal of Management Reviews, 20, 559.
  28. Hartline v. Nat’l Univ., No. 2:14-cv-00635 (E.D. Cal. Aug. 18, 2016).
  29. Herndon ex rel. Herndon v. Chapel Hill-Carrboro City Bd. of Educ., 899 F. Supp. 1443 (M.D.N.C. 1995).
  30. Hinnant-Crawford, B. (2019). Legislating instruction in urban schools: Unintended consequences of accountability policy on teacher-reported classroom instruction. Urban Education, 58, 3.
  31. Hollins v. Regency Corp., 867 F.3d 830 (7th Cir. 2017).
  32. Illinois Center for Transition and Work. (n.d.). The Fair Labor Standards Act and non-paid work-based learning experiences. https://ictw.illinois.edu/docs/librariesprovider25/briefs/wble/fair-labor-standards-act-and-non-paid-work-based-learning-experiences.pdf
  33. Kenneth R. ex rel. Tri-Cnty. CAP, Inc./GS v. Hassan, 293 F.R.D. 254 (D.N.H. 2013).
  34. Klingler v. Dir., Dep’t of Revenue, 433 F.3d 1078 (8th Cir. 2006).
  35. Lane v. Kitzhaber, 841 F. Supp. 2d 1199 (D. Or. 2012).
  36. Lane v. Kitzhaber, 283 F.R.D. 587 (D. Or. 2012).
  37. Moore, R., & Friedman, M. J. (2017). The role of informed choice in advancing competitive integrated employment. Journal of Vocational Rehabilitation, 46, 245.
  38. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977).
  39. Murphy, W., & Singh, S. (2022). What’s up with Glatt?!: The FLSA’s primary beneficiary standard in hindsight. Journal of Management Policy and Practice, 23(1).
  40. Neinast v. Texas, 217 F.3d 275 (5th Cir. 2000).
  41. Nondiscrimination on the Basis of Disability in State and Local Government Services, 56 Fed. Reg. 35694 (July 26, 1991).
  42. Nondiscrimination on the Basis of Handicap in Programs and Activities Receiving Federal Financial Assistance, 45 Fed. Reg. 30936 (May 9, 1980).
  43. Nondiscrimination on the Basis of Handicap in Programs and Activities Receiving or Benefiting from Federal Financial Assistance, 42 Fed. Reg. 22676 (May 4, 1977).
  44. Novak, J. A. (2015). Raising expectations for U.S. youth with disabilities: Federal disability policy advances integrated employment. Center for Educational Policy Studies Journal, 5, 91.
  45. Price v. Shibinette, 2021 DNH 179 (D.N.H. 2021).
  46. Resolution Tr. Corp. v. Townsend Assocs. Ltd. P’ship, 840 F. Supp. 1127 (E.D. Mich. 1993).
  47. Restatement (Second) of Contracts (Am. L. Inst. 1981).
  48. Riesen, T., Trainor, A. A., & Traxler, R. E. (2021). Understanding internships for transition-age students with disabilities. Teaching Exceptional Children, 54, 286.
  49. Rooney-Kron, M., & Dymond, S. K. (2021). Teacher perceptions of barriers to providing work-based learning experiences. Career Development and Transition for Exceptional Individuals, 44, 229.
  50. S.K. ex rel. K.K. v. N. Allegheny Sch. Dist., 146 F. Supp. 3d 700 (W.D. Pa. 2015).
  51. Taylor, J. P., Avellone, L., & Brooke, V. (2022). The impact of competitive integrated employment on economic, psychological, and physical health outcomes for individuals with intellectual and developmental disabilities. Journal of Applied Research in Intellectual Disabilities, 35, 448.
  52. Taylor, J. P., Avellone, L., & Wehman, P. (2022). The efficacy of competitive integrated employment versus segregated employment for persons with disabilities: A systematic review. Journal of Vocational Rehabilitation, 58, 63.
  53. Taylor, J. P., & Whittenburg, H. (2024). The promise and the challenge of pre-employment transition services: The Workforce Innovation and Opportunity Act after ten years. Journal of Vocational Rehabilitation, 60, 157.
  54. Tennessee v. Lane, 541 U.S. 509 (2004).
  55. Thrope v. Ohio, 19 F. Supp. 2d 816 (S.D. Ohio 1998).
  56. U.S. Department of Education, Office for Civil Rights. (2013). Dear Colleague Letter: Students with disabilities in extracurricular athletics. https://www.ed.gov/sites/ed/files/about/offices/list/ocr/letters/colleague-201301-504.pdf
  57. U.S. Department of Justice, Civil Rights Division. (2013). United States v. State of Rhode Island and City of Providence. https://www.justice.gov/crt/case/united-states-v-state-rhode-island-and-city-providence
  58. U.S. Department of Labor, Wage and Hour Division. (n.d.). Field Operations Handbook, ch. 64c08.
  59. United States v. Georgia, 546 U.S. 151 (2006).
  60. Walling v. Portland Terminal Co., 330 U.S. 148 (1947).
  61. Yamada, D. C. (2017). Mass exploitation hidden in plain sight: Unpaid internships and the culture of uncompensated work. https://doi.org/10.2139/ssrn.2905779
  62. Ysseldyke, J., Nelson, J. R., Christenson, S. L., Johnson, D. R., Dennison, A., Triezenberg, H., Sharpe, M., & Hawes, M. (2004). What we know and need to know about the consequences of high-stakes testing for students with disabilities. Exceptional Children, 71, 75.
  63. Zhang, D., Katsiyannis, A., & Zhang, J. (2002). Teacher and parent practice on fostering self-determination of high school students with mild disabilities. Career Development for Exceptional Individuals, 25, 157.

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