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Accessibility Awareness Day

University of Windsor

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Disability Accommodation in Education

Ivana Petricone

March 18, 2015

• ARCH is a specialty community legal clinic dedicated to defending and advancing the equality rights of people with disabilities in Ontario

• Founded in 1980

• Governed by a volunteer board of directors, a majority of whom are people with disabilities.

• Funded principally by Legal Aid Ontario under the Legal Aid Services Act

ARCH Disability Law Centre

ARCH Disability Law Centre

5 priority areas of practice:

• Attendant Services

• Education Law

• Capacity and Guardianship

• Services for People Labelled with Intellectual Disabilities• Access to Justice

ARCH Disability Law Centre

Services for Individuals:

• Summary advice referral service • Brief services • Legal representation

Areas of law:

employment, education, discrimination/human rights, legal capacity,

services for people with intellectual disabilities, attendant services,

accessibility services, abuse of people with disabilities

ARCH Disability Law Centre

Services for the Disability Community:

• Law reform activities• Test-case litigation • Public legal education • Community Development

ARCH Disability Law Centre

Provides Services for Lawyers:

• Continuing legal education initiatives • Referrals to private bar • Assistance on disability issues that arise

in their cases

ARCH Services in Education

• Summary Advice– e.g. requesting accommodations; challenging

exclusion; human rights • Litigation

– e.g. cases that have systemic impact • Law Reform

– e.g. submissions to government on education related matters

• Public Legal Education

Disability Accommodation in Education

What we hear from students with disabilities…• Students denied timely and appropriate

accommodation;• Students and parents denied participatory rights

in accommodation identification and development;

• Improper use of behaviour/discipline legislation

Canadian Context

• One out of four children with disabilities had an unmet need for accommodation at school and nearly half of parents surveyed reported difficulty getting accommodation for their child at school.

Source: Participation and Activity Limitation Survey 2006: AProfile of Education for Children with Disabilities in Canada

Human Rights Approach in Education

• Human rights law applies in the everyday delivery of education services.

• Human rights law is not limited to the human rights litigation process, but can be used as an advocacy tool to help students get appropriate accommodations and be included in school.

Goals of human rights approach: • Creating inclusive school cultures and enhancing citizenship

• Ensuring equal access to education services

Our understanding of “inclusion”

“Inclusive education is based on the principle that all children should learn together, wherever possible, regardless of difference.”*

• This definition is taken up in Article 24 of the Convention on the Rights of Persons with Disabilities, expressing a clear commitment to inclusive education.

* UN Human Rights Council, Special Rapporteur on the right to education, 2007.

Shift to Human Rights Approach

Moore v British Columbia (Minister of Education) represents a shift from previous Supreme Court decisions by applying a human rights framework within the education context.

Framework is more consistent with the UN Convention on the Rights of Persons with Disabilities

The Ontario Human Rights Tribunal recently adopted the Moore human rights framework in R.B v Keewatin-Patricia District School Board 2013.

The case also confirmed that accommodations are not a dispensable luxury and are necessary to fulfill the statutory commitment to provide access to education for all.

Ontario Human Rights Code

Section1 - Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.

Discrimination under the Human Rights Code

• Generally discrimination means treating people differently because of their disability

and• the different treatment hurts, harms, offends or prevents

someone from getting where they need to go, getting what they need or reaching their goals.

• Discrimination also includes situations where a rule or policy seems to apply to everyone equally, but in practice has a negative impact on certain people.

SCC in Moore v British Columbia (Ministry of Education):

To demonstrate prima facie discrimination:• show they have a characteristic protected from

discrimination under the Code; • that they have experienced an adverse impact with

respect to the service; and • that the protected characteristic was a factor in the

adverse impact.

Once a prima facie case has been established: • the respondent must justify the conduct or practice,

within the framework of the exemption available under the human rights statutes

The Duty to Accommodate

Because of human rights legislation, education service providers have an obligation to: • Provide services in manner free from

discrimination • Provide most appropriate accommodation

to students with disabilities, short of undue hardship.

Undue Hardship

Undue hardship under Ontario’s Human Rights Code, consists of:

• Costs: must alter essential nature or substantially affect the viability of the educational institution

• Health and Safety Requirements: posing safety risk to other students and/or staff

Examples of Accommodations

• Modified curriculum• Extra time for completing tests and

assignments• Alternative forms of evaluation• Academic materials in alternative formats• Provision of and training on adaptive

technology• In-class assistance and supports

Components of the Duty to Accommodate

• Duty to accommodate is both substantive and procedural.

• Substantive = considers the appropriateness of the accommodation provided or whether it cannot be provided because of undue hardship.

• Procedural = the methods and approach to developing and implementing the accommodations.

Duty to Accommodate: Substantive

• Accommodations must be appropriate, individualized and respect the dignity of the student.

• Accommodations depend on the strengths, needs and requirements of the individual student with a disability, as well as the context.

• What is appropriate for one student may not be appropriate for another.

• Accommodations must be provided in a timely manner.

Duty to Accommodate: Procedural

Education service providers must: • Conduct an individualized assessment of the student

• Take appropriate steps to sufficiently determine an appropriate accommodation

• Where necessary, consult with experts and others to assist in gathering and understanding facts and information relevant to providing accommodation

Parents/Guardians and StudentsResponsibilities

• Advise the education provider about need for disability-related accommodations;

• Make his or her needs known so that the education provider can implement an appropriate accommodation;

• Assist and collaborate in finding accommodations by providing relevant information, answering questions, co-operating with experts, participating in discussions, etc.

Source: Ontario Human Rights Commission Guidelines on Accessible Education

Education Service Provider Responsibilities

• Advise students, or their parent/guardian of available accommodations, and the process to obtain them;

• Investigate and canvass possible accommodation solutions;

• Where necessary, obtain expert opinion or advice (costs are to be borne by the education provider);

• Provide accommodations in a timely manner.

Source: Ontario Human Rights Commission Guidelines on Accessible Education

Disability Accommodations: Public Primary and Secondary Schools

Numerous regulations pursuant to the Education Act that directly impact students with disabilities.

Notably, Ontario Regulation 181/98 sets out the framework for the identification and placement of students who require additional supports in order to meaningfully access education services.

Disability Accommodations: Public Primary and Secondary Schools

The Identification, Placement and Review Committee (IPRC) is mandated to identify and review the needs of a student and decide on most appropriate placement for that child then creates an Individual Education Plan (IEP).

Children who are identified by an IPRC as having need for accommodation in their education are called ‘exceptional’.

Five main categories of exceptionalities: • behaviour• communication• intellectual• physical • multiple (more than one exceptionality)

Disability Accommodations: Public Primary and Secondary Schools

Parents may appeal the decision of the IPRC on the identification and/or placement of a student to: • The school board; if not resolved

• Special Education Appeal Board;

if not resolved

• Ontario Special Education Tribunal

Disability Accommodations: Public Primary and Secondary Schools

*Note - The Ontario Special Education Tribunal has limited jurisdiction to deciding matters related to identification and placement.

It does not have jurisdiction to deal with cases and make orders related solely to programming, services, and accommodation issues.

Thus, the Education Act, leaves no mechanism to adjudicate, enforce, or mediate/conciliate disputes related to accommodation.

Disability Accommodations: Public Primary and Secondary Schools

The Human Rights Tribunal of Ontario does have jurisdiction in matters related to accommodation and discrimination within the education context.

However, the Ontario Special Education Tribunal has exclusive jurisdiction in matters related to identification and placement of students.

Therefore, careful consideration must be placed on identifying the core issues when framing the case to ensure that the proper forum is chosen.

Disability Accommodations: Post Secondary Institutions

Each academic institution has its own Policy or Directive on the accommodation of students with disabilities.

Each institution has “Accessibility Services”. It is up to the student to request accommodation and provide corresponding medical documentation.

Disability Accommodations: Post Secondary Institutions

If a student is not receiving the accommodations they need they can: • Negotiate with the college/university (can use the

Ontario Human Rights Commission Guidelines on Accessible Education for assistance)

• Review the Policy on Accommodating Students with Disability of the academic institution

• Discuss with Accessibility Services & determine best process to take matter to next level

• Call ARCH for legal information and advice

Possible Avenues for Redress

• IPRC appeal process *only primary/secondary*

• Human Rights Complaint• Complaint to Ontario Colleges of Teachers • Civil Claims • Ombudsman Complaint *now can investigate

school boards and universities*

Thank you!

Website: www.archdisabilitylaw.ca

425 Bloor Street East, Suite 110, Toronto, Ontario M4W 3R5

Tel.: 416-482-8255 or 1-866-482-2724 TTY: 416-482-1254 or 1-866-482-2728