P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)





ERD Case No. CR201003899

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.


The decision of the administrative law judge (copy attached) is affirmed.

Dated and Mailed March 25, 2011


/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner


The complainant, Rodney Daniels, filed a complaint with the Equal Rights Division on October 22, 2010, alleging that the Division (1)   of Vocational Rehabilitation and Brigid Wollensheim  (2)   had violated Wis. Stat. § 106.56, Wisconsin's law prohibiting discrimination on the basis of physical condition or developmental disability in postsecondary education.

The complainant described the actions taken against him by the named respondents as having been the denial of an IPE Amendment, denial of a training grant, denial of a summer school grant, and denial of reasonable accommodations.

The ERD issued a Preliminary Determination dismissing the complaint on the grounds that the law did not cover alleged discrimination by the Division of Vocational Rehabilitation or Ms. Wollensheim and that respondents had to be a school, university or other institution offering courses or programs in order to be covered under Wis. Stat. § 106.56.

In his appeal of the Preliminary Determination the complainant made it clear that he was enrolled in the Criminal Justice program at Milwaukee Area Technical College, Milwaukee Campus.

The ALJ's decision affirmed the dismissal of the complaint on three grounds: that neither named respondent was an institution providing education or training, that the complaint did not allege that the complainant was denied admission to a program or otherwise discriminated against, and that nothing in the law requires "accommodation."

The complainant's petition for review does not address the issue about the named respondents not being educational institutions. His argument focuses on his dissatisfaction with services he received from DVR.

Wis. Stat. § 106.56, provides in relevant part:

106.56 Postsecondary education: prohibition against discrimination on basis of physical condition or developmental disability.

(1) Subject to sub. (3), no school, university or other institution offering courses or programs in postsecondary education or vocational training which is supported wholly or in part by public funds may refuse to admit any person to any school, institution, course or program or any curricular or extracurricular activity, or may otherwise discriminate against any person, solely on the basis of physical condition or developmental disability as defined in s. 51.01 (5).

(2) If admission to any such school, university, institution, program or course requires that a prospective enrollee take a standardized aptitude examination and the prospective enrollee is unable to take such an examination under standard conditions because of physical condition or developmental disability as defined in s. 51.01 (5), the school, university or institution shall make a good-faith effort to modify the examination conditions in a manner which will permit the prospective enrollee to demonstrate aptitude. The failure of any school, university or institution to make such a good-faith effort is discrimination within the meaning of this section.
. . .
(4) (a) The department shall receive and investigate complaints charging discrimination or discriminatory practices in particular cases, and publicize its findings with respect thereto. The department has all powers provided under s. 111.39 with respect to the disposition of such complaints. The findings and orders of examiners may be reviewed as provided under s. 106.52 (4) (b).

     (b) Findings and orders of the commission under this section are subject to review under ch. 227. Upon such review, the department of justice shall represent the commission.

(emphasis added). Thus, the law applies only to acts of alleged discrimination by a "school, university or other institution offering courses or programs in postsecondary education or vocational training which is supported wholly or in part by public funds." The Wisconsin Division of Vocational Rehabilitation is clearly not a school or a university, and it does not itself directly offer courses or programs in postsecondary education or vocational training.

The DVR also cannot be claimed to be an "institution" that it "offer[s] courses or programs" within the meaning of the statute, simply because it offers potential funding for courses or programs. For one thing, merely providing funding for courses which are offered and controlled by another institution, is distinct from offering the courses themselves. More important, in the context in which it appears in the statute the word "institution" cannot be stretched far enough to cover DVR and its employees:

Under the rule of ejusdem generis, where a general term is preceded or followed by a series of specific terms, the general term is viewed as being limited to an item of the same type or nature as those specifically enumerated. (citation omitted). When the legislature lists a series of businesses subject to the provisions of [an] act, it intends to include businesses of a like kind, and not businesses that are totally dissimilar from those identified.

Hatheway v. Gannett Satellite Network, 157 Wis. 2d 395, 400, 459 N.W.2d 873 (Ct. App. 1990). Applying this rule of construction here, the word "institution" is given meaning by the words appearing before it, "school" and "university". The statute is clearly intended to apply to institutions of that kind. The Wisconsin Division of Vocational Rehabilitation is not "of a like kind" to a school or a university.

For all of the foregoing reasons, the decision of the ALJ is affirmed.

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(1)( Back ) The caption of the ALJ's decision refers to the institutional respondent as the "Department" of Vocational Rehabilitation. It is in fact a division within the Department of Workforce Development. The designation of the respondent in the caption has therefore been corrected.

(2)( Back ) While not directly alleged in the complaint, it appears that Wollensheim was a DVR employee. 


uploaded 2011/04/05