Disability Accommodations in Post Secondary Institutions

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Disability Accommodations
in Post-Secondary
Education
ARCH Disability Law Centre
www.archdisabilitylaw.ca
March 26, 2014
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ARCH Disability Law Centre
WHAT IS ARCH?
• ARCH is a community legal aid clinic dedicated to
advancing the rights of people with disabilities in Ontario
• Call ARCH if you:
ARE A PERSON WITH A DISABILITY
and you
NEED ASSISTANCE OR HAVE A QUESTION ABOUT :
•
•
•
•
•
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your human rights
your attendant care services
your rights as a person living in a group home
your rights as a student or a worker
capacity to make your own decisions
Ontario’s Human Rights Code
• Ontario’s Human Rights Code guarantees everyone the
right to equal treatment without discrimination because
of disability in employment, facilities, the delivery of
goods and services, housing, contracts, and
membership in trade and vocational associations.
• The term “services” has been defined broadly to
include education.
• Students have a right to equal treatment in education
services while attending colleges and universities,
whether publicly or privately funded.
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What is “discrimination”?
Generally, “discrimination” means that:
•
A person with a disability is treated differently
because of his or her disability AND this different
treatment hurts, harms, or has a negative impact
on the person with the disability
•
It can also mean failing to take the individual’s
needs into account when designing a program,
policy or setting standard requirements.
What is “discrimination”?
Discrimination can include situations where:
• An education service provider fails to provide
supports or technology that a student with a disability
needs, or fails to change “normal” requirements and
this prevents the student from meeting the
requirements of the course, degree or program.
• A rule or policy appears to apply to everyone equally,
but in reality has a negative impact on certain groups
of people when put into practice.
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What is “disability”?
• “Disability” is defined differently in different pieces of
legislation.
• Ontario’s Human Rights Code defines disability very
broadly. Encompasses all forms of disability.
• The definition also includes perceived disabilities. For
example, because of the limitations that are inherent in
the use of a communications device, others may
presume that the person using the device has a learning
or intellectual disability.
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What is “duty to accommodate”?
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•
Education service providers have a duty to
accommodate. This means that they must
accommodate the disability-related needs of
students up to the point of undue hardship.
•
“Accommodation” in education context has been
stated by the Supreme Court of Canada as what is
needed to provide a student with meaningful access
to education to which all students are entitled.
Supreme Court case dealt with primary public
education.
•
Accommodation refers to the prevention and
removal of individual and systemic barriers.
Examples of Accommodation
•
•
•
•
A modified curriculum
Extra time for completing tests, exams and assignments
Alternative forms of evaluation
Academic materials in advance, and/or in alternative
formats
Provision of and training on adaptive technology
Assistance and supports in class
Modify the way the student is expected to complete the
essential requirements of a program
For grad students changing expectations of job
requirements of a TA or RA
•
•
•
•
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What is “duty to accommodate”?
The duty to accommodate has both a substantive
component and a procedural component.
Procedural component:
• Refers to methods and steps taken to develop
and implement the accommodations.
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Substantive component:
• Refers to the appropriateness of the
accommodation, or whether providing the
needed accommodation would cause the
education service provider undue hardship.
Duty to Accommodate
Procedural Component
Investigation
• The education provider’s obligation to investigate:
• Individualized assessment of the person with a
disability.
• Taking appropriate steps to sufficiently determine a
range of appropriate accommodations.
• Where necessary, consulting with experts and
other parties to assist in gathering and
understanding the relevant facts and information.
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Duty to Accommodate
Procedural Component
Delays in Accommodation
• Education service providers must make every effort to
ensure that accommodations are provided in a timely
fashion. Timeliness depends on context.
• Interim accommodations must be provided in the event
that the necessary accommodations cannot be provided
promptly.
• Alternative accommodations must be provided in the
event that the appropriate accommodation is no longer
available.
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Duty to Accommodate
Procedural Component
Ongoing Obligation to Ensure Appropriateness
• Disability is not static. Therefore, accommodations must
be monitored, evaluated, and changed over time
• The duty to investigate also applies to situations where
education service providers identify the need to modify
an existing accommodation.
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Duty to Accommodate
Substantive Component
• The accommodation must be appropriate and
individualized. It must respect the dignity of the student
as much as possible.
• Accommodations depend on context, and on the
individual needs and strengths of the student with a
disability.
• What is appropriate for one student may not be
appropriate for another student.
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Duty to Accommodate
Substantive Component
• Accommodations must be provided, unless the
education service provider can prove that it
would cause undue hardship
• Undue hardship under the Human Rights Code
includes a consideration of:
• Whether the cost of the accommodation is prohibitive.
• Whether any outside sources of funding are available.
• Whether the accommodation would violate any health or
safety requirements or pose a health and safety risk.
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Duty to Accommodate
Substantive Component
• After an education provider puts
accommodations in place, a student must
be able to meet the essential requirements
of the course, degree or program
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Responsibilities of the Student
• Tell the education service provider about your disabilityrelated needs. Register at Student Accessibility Services
http://sas.mcmaster.ca/prospective.html
• Need medical documentation – website lists specific
documentation needed for certain disabilities
• Tell the education service provider what
accommodations you require so that it can implement
the appropriate accommodations.
• Collaborate with the education service provider to come
up with suggestions about the ways in which you can be
accommodated by providing helpful information,
16 answering questions, and participating in discussions.
Issues that Arise
•
•
•
•
Confidentiality
Delay
Role of Accessibility Services
University Anti-Discrimination and Accessibility Policies
and Complaint Processes
• Challenging a Professor
• Role of Graduate Students as Students, Agents of
Institution and Employees of Institution
• Academic Integrity
• Copyright considerations
• OSAP
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• Practicums – accommodations, timing
What do I do if I’m not receiving
the accommodations I need?
• Use the OHRC Guidelines on Accessible Education to help you
negotiate with the college or university for accommodations. The
Guidelines can be found at
http://www.ohrc.on.ca/en/resources/Guides/AccessibleEducation.
• Discuss with Student Accessibility Services and determine the best
process to take to next level
• Call ARCH for legal information and advice.
• Consider whether making a human rights application to the Human
Rights Tribunal of Ontario would be appropriate.
• Consider whether making a complaint within McMaster’s Human
Rights Program (Human Rights and Equity Services) would be
appropriate.
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In Summary
• Human rights law applies in the everyday delivery of
education services.
• Human rights law is not limited to the human rights
process, but can be used as an advocacy tool to help
students get appropriate accommodations and be
included in post-secondary education.
• Ideally, a human rights approach to education is not
adversarial but collaborative and constructive.
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Scenario #1
Professor Chan puts a bound paper copy of his
supplementary text on reserve at the university library for
his students to use in the library. Sam needs his
materials in pdf format to be accessible to her. Library
inquired of the publisher whether it could obtain a digital
copy of the text for the Library. The publisher says they
do not sell the digital version of the book to libraries.
The Copyright Act provides that copies of texts can be
made in forms suitable for persons with disabilities
provided that there is no commercially available copy.
Library assert that there is a commercially available copy
and therefore it cannot and will not make a digital copy of
the text.
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Scenario #2, Part 1
Molly is a dental hygiene student about to
do her practicum. She has a physical
disability due to a car accident that affects
her motor skills and speech. The college
staff express concern that Molly will not be
able to complete the practicum due to her
“mental challenges”.
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Scenario #2, Part 2
Molly requests that the two-week practicum be
expanded to four weeks for her so that she can
work 4-hour days instead of 8-hour days to
accommodate her disabilities. The college staff
agree that the practicum can be extended, but
do not notify Molly of their decision. Molly thinks
the accommodation cannot be provided and fails
the practicum for disability-related reasons when
she attempts to work 8 hours a day.
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Scenario 3
Student with autism has a companion
working dog. Dog is trained and ready to
assist student in the classroom.
Other student at the school has an allergy
to dogs?
Where does school administration owe the
duty to accommodate?
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Scenario 4
Half-way through the semester, Manju starts to
feel very tired and unmotivated. He stops
participating in class and misses several
classes. He feels worse and worse towards the
end of the semester. He forgets to submit his
final paper, and gets a failing grade for the class.
A few months later, he is diagnosed with major
depression. He brings a doctor’s note to the
college and asks for retroactive withdrawal from
the class so that the failing grade is removed
from his transcript and he can retake the class.
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Legal Resources on Disability Accommodations in
Post-Secondary Education
ARCH Disability Law Centre
ARCH is a specialty community legal aid clinic dedicated to defending and advancing
the equality rights of people with disabilities in Ontario. ARCH’s work includes
summary legal advice and referral services, test case litigation, public legal
education, law reform, and community development. ARCH currently focuses its work
in four priority areas: attendant care services, education law, legal capacity, and
services for people with intellectual disabilities.
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
Human Rights Legal Support Centre
The Human Rights Legal Support Centre (HRLSC) provides legal assistance to some
people who believe they have experienced discrimination, and who may want to file
an Application to the Human Rights Tribunal of Ontario. HRLSC has useful
information on its website about the process of making a human rights application,
and links to resources.
http://www.hrlsc.on.ca/
Tel (Toronto): (416) 314-6266
Toll Free: 1-866-625-5179
TTY: (416) 314-6651
TTY (Toll Free): 1-866 612-8627
Ontario Human Rights Commission
The Ontario Human Rights Commission is responsible for promoting, protecting, and advancing
human rights in Ontario through activities such as education, training, research, and monitoring.
The Commission conducts public inquiries and may begin human rights applications or intervene
at the Human Rights Tribunal of Ontario. The Commission is no longer responsible for processing
human rights applications. Applications are now processed by the Human Rights Tribunal of
Ontario directly.
http://www.ohrc.on.ca/en/
Tel (Toronto): (416) 326-9511 Toll Free 1-800-387-9080
TTY (Local) (416) 314-6526 TTY (Toll Free) 1-800-308-5561
E-mail: [email protected]
Guidelines on Accessible Education
http://www.ohrc.on.ca/en/resources/Guides/AccessibleEducation
Policy and Guidelines on Disability and the Duty to Accommodate
http://www.ohrc.on.ca/en/resources/Policies/PolicyDisAccom2/pdf
Human Rights Tribunal of Ontario
The Human Rights Tribunal of Ontario resolves human rights applications brought under the
Ontario Human Rights Code either through mediation or adjudication. See the Tribunal’s website
for useful information, including application forms, guides, and information bulletins.
http://www.hrto.ca
Tel (Toronto): (416) 326-1312 Tel (Toll Free): 1-866-598-0322
TTY: (416) 326-2027 TTY (Toll Free): 1-866-607-1240
The AODA and the Accessibility Standards for Customer Service
The Ministry of Community and Social Services (MCSS) is responsible for the Accessibility for
Ontarians with Disabilities Act. You can find information about the AODA and the Accessibility
Standards for Customer Service, as well as copies of both documents, on the MCSS website.
http://www.mcss.gov.on.ca/en/mcss/programs/accessibility/index.aspx
For information about how your university our college will comply with the AODA and the
Accessibility Standards for Customer Service, check your post-secondary institution’s website for
more information. McMaster has information at the following links:
http://www.mcmaster.ca/accessibility/
http://sas.mcmaster.ca/
THANK YOU
The information provided in these presentation materials is not intended to be legal
advice. Consult a lawyer or legal worker if you need legal advice on a specific matter.
The information in the presentation materials are current as of the date of the
presentation.
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