OUR VIEW OF THE SUPREME COURT DECISION AT A GLANCE
We suggest that parents take the position, based on the Supreme Court’s Eaton decision,
than an IPRC (or other decision-making body) can propose a segregated placement for a
student with a disability ONLY when ALL of the following tests can be met:
i)
It can be demonstrated that specific aspects of the integrated setting which
cannot reasonably be changed interfere with meeting the child’s special needs
in that setting; and
ii)
It can be demonstrated that there are advantages in the segregated setting
which outweigh the loss of the great psychological benefits that come with
integration; and
iii)
It can be demonstrated that the child’s equality rights and the desired
fulfilment of his/her intellectual, social and emotional needs through regular
and natural interaction will be met better in the segregated setting than in the
integrated setting; and
iv)
Empirical, objective evidence demonstrates that the child’s needs are not
being met in the regular class; and
v)
It can be demonstrated that reasonable accommodations within regular
classrooms have been seriously and consistently made. Reasonable
accommodations can include; Teacher in-service; ongoing Resource
consultation; adapting curriculum and instruction; using a variety of teaching
and organizational strategies; providing supports such as special equipment,
an adult volunteer, a teacher assistant and a peer support; and
vi)
If the child can communicate for him/herself and she/he expresses a
preference for the segregated class.
It is clear that these tests can be met in the case of only a few children now in
segregated settings in Canada.
SOME GUIDELINES FOR PARENTS
Prior to meeting with school authorities or of an IPRC, ensure that your have a clear
understanding of the key points outlined above. If you would like to have a copy of the
complete Supreme Court ruling, contact the Coalition of your local association.
Parents, who have a sense of what “reasonable accommodations” could mean and what
they can demand from schools, will be in a better position to advocate on behalf of their
children. Therefore, we strongly suggest that prior to school meetings and IRPC’s you
read about, talk about, and consider what accommodations could apply to your child. If
you would like to read about “Best Practices for Inclusion” and general strategies for
including children with disabilities in regular classrooms, contact the Coalition or your
local association for suggested material.
KEY POINT SUMMARY OF SUPREME COURT DECISION IN THE
EATON CASE
1. Integration is the Norm – The Supreme Court said that “integration should be
recognized as the norm of general application because of the benefits it generally
provides”. This is consistent with the current policy of the Ontario Ministry of
Education & Training, which has been repeatedly stated in public and in writing
by the Minister. The Court also acknowledged the “great psychological benefit
that integration offers”. A school board then, must demonstrate that there are
advantages for the student in the segregated placement that make up for the loss
of these benefits. This also means that exceptions to the “norm” of integration in
regular classrooms for students considered “exceptional” have to be justified.
2. Reasonable Accommodations Must be Made – The Supreme Court stated that
“it is the failure to make reasonable accommodations to meet a child’s needs
which results in discrimination against disabled persons”. The court said that a
decision-making body, such as an IPRC, “must determinate whether the
integrated setting can be adapted to meet the special needs of an exceptional
child”. Only if “aspects of the integrated setting which cannot reasonably be
changed interfere with meeting the child’s special needs”, will the principle of
accommodation “require a special education placement” outside of the regular
classroom.
This part of the decision is most critical. The Court has said that a child who is
considered exceptional has a right to reasonable accommodations within integrated
settings.
The Court did not try to define “reasonable accommodation”. In the past, Courts have
said that accommodations that are reasonable are those that do no lead to “undue
hardship” (usually interpreted to mean ‘friendly hardship’) on the person or
organization (in this case, the school board), which has a duty to accommodate. The
Supreme Court agreed with the Tribunal that “certain adaptations to the classrooms
such as the provision of a special desk, physical assistance and extra supervision from
educational assistants were reasonable”. This at least sets the lower limit on what
“reasonable accommodation” might mean. No school board can say that such
accommodations as these are unreasonable because the Supreme Court has
stated otherwise.
In fact, a number of “accommodations” cost less than those mentioned above,
promote real inclusion and produce better results for all students in the class. They
might include the following practices:



Using a variety of teaching & classroom organization strategies (i.e. Cooperative
Learning: Multi-Level instruction: Team Teaching, Peer Tutoring)
Having high expectations, flexible learning objectives & adapting the curriculum
to meet individual, diverse needs.
Providing a variety of supports in the regular classroom such as: in-service
training to the Regular Classroom Teacher; a consulting Teacher; a volunteer; a
peer helper; special materials.
It is important for parents to know that these practices have been implemented
successfully by many schools and school boards within and outside of Ontario for years.
They are reasonable accommodations and do not lead to undue hardship. In fact,
these practices are policy in New Brunswick and are considered “Best Practices for
Inclusion”.
Parents also need to know that in the past, Courts have said that where a duty to
accommodate exists, it is up to the person who has the duty, to show the reasonable
accommodation cannot be made. Therefore, school boards are responsible for
demonstrating that a regular class cannot reasonably nr adapted to meet the needs of an
exceptional student; parents are not required to demonstrate that it can be!
What does a school board being responsible to “demonstrate” mean? In the Eaton case,
the Supreme Court agreed with the Ontario Special Education Tribunal that “where the
school board ahs already made extensive and significant effort to (…) meet that child’s
needs in a regular class”, a placement in a special class “is not in violation of the Charter
or the Ontario Human Rights Code”. The effort to meet Emily’s needs in a regular class
lasted three years. We believe therefore, that to avoid a violation of the Charter, a
segregated placement can be proposed only after “extensive and significant” efforts
to include a child in the regular class have failed. We believe these efforts should be
made over a period of years, not months, and well – documented.
3. Best interests of the Child – The Supreme Court stated that school authorities or
committees must attempt to make decisions (about the kind of accommodations
that may be appropriate) from a “subjective, child centred perspective” –
according to what it in the child’s “best interests”. It is clear from the context that
this “best interests” argument must be considered in a light if the statements
mentioned above that a) integration is the “norm of general application”, and b)
only “where aspects of the integrated setting which cannot reasonably be changed
interfere with meeting the child’s special needs” will the principle of
accommodation “require a special education placement” outside of the regular
classroom.
Some school boards claim that the “best interests” point allows them to place students in
segregated settings whenever professionals want to do so, under the belief that this is in
the child’s best interests. WE DISAGREE!
IPRC’s, appeal boards of tribunals can recommend a segregated placement ONLY when
they have results of years of serious attempts to provide an appropriate education in a
regular class with reasonable accommodations on which to base their judgement. They
cannot recommend a segregated placement on the basis of their speculation that might be
in the child’s best interests without this evidence, for example, when a child first goes to
school. We do not believe that they can recommend segregated placement for any child
who ahs not spent years in an integrated setting.
The Supreme Court stated that the views and wishes parents will not be the declaring
factor. But it did say that “for older children and those able to communicate their wishes
and needs, their own views will play an important role in the determination of the bet
interest”. So, if a child can communicate that he/she wants to be in an integrated class –
and this does not mean that the child needs to be able to speak – the decision-making
body must listen. This is new and positive.
WHAT TO SAY WHEN…
The Principal of your neighbourhood school recommends that your child “be
bussed to a special class for students with developmental challenges where he’ll be
better off”.
The Supreme Court has said that “Integration should be recognized as the norm of
general application”. My child is not an exception to this norm. The Court has also said
that a ‘decision-making body can only recommend a segregated placement when it is sure
that ‘aspects of the integrated setting which cannot reasonably be changed interfere with
meeting the child’s special needs’. This means that the school must first make a strong
effort to integrate my child. Otherwise, how can you be ‘sure’ that the integrated setting
cannot reasonably be changed?
Outline the other tests, which have to be met (see above). Suggest that the discussion
be around ways in which reasonable accommodations are to be made in the regular
class. Ask why the school system finds it so difficult to include your son by making
accommodations, when the rest of society does not. Say your family has had years of
experience with the successful accommodation; you are reasonable people; you
would be pleased to help the school figure out what to do.
The IPRC recommends a segregated class in a school outside of your
neighbourhood because that is where they have all the resources to support your
child.
The school board is required by law to provide appropriate educational services to my
child. That will include some accommodation. If resources exist in a segregated class in
another school, they can exist in the regular class in the neighbourhood school. That is a
reasonable accommodation is discrimination and illegal. It is your duty to accommodate
my child, but I will be pleased to help the school to figure out what kinds of
accommodation will be required.
The IPRC says that your child requires a one on one Teacher Assistant in order to
be included and the board just does not have money to do that.
The Supreme Court agreed with the Ontario Special Education Tribunal when it decided
that certain adaptations to the classroom, such as provision of the special furniture,
physical assistance and extra supervision from educational assistants (note the plural) is
reasonable. It has also decided that you cannot deny my child such reasonable
accommodations. These are the lower limits of reasonable accommodation: does my
child need more? A 1:1 Teaching Assistant is not the only way to support my child’s
integration. My child will be reasonably accommodated if the regular classroom teacher
has more knowledge of ways to include children with different needs. My son can at
times be very well supported by other children with different needs. My son can at times
be very well supported by other children – this happens in the community all the time.
And providing other students with this opportunity to help is a proven benefit to them as
well, something which the Supreme Court also made a note of. These accommodations,
when used well, provide better results for all students and are a better use of scarce
resources. Let’s talk.
The IPRC recommends a segregated class since the Principal of your
neighbourhood school has said that she will place your child in a regular class, but
he will not be provided with any support and you cannot expect the teacher to direct
any extra attention to your child.
Unwillingness on the part of the teacher to make reasonable accommodations such as
adapting the curriculum or identifying ways in which support can be provided to my
child, is not a justification for the IPRC to choose a segregated class for my child.
According to the Supreme Court, the failure to make reasonable accommodations is
discrimination. IPRC decisions can be appealed or challenged if decisions to segregate
have been reached before reasonable accommodations in regular classes have been
attempted. I am prepared to appeal any IPRC decision to segregate my child before a
serious attempt at integration has been made.
The IPRC recommends a segregated class for your child because “we have tried
integration for the past 8 months and it didn’t work. You, yourself have complained
about what was going on in the regular class”.
The Supreme Court has said that you can only recommend a segregated placement for a
child after the school board made “extensive & significant effort to meet the child’s needs
in a regular class with appropriate modifications and supports”. Your attempts on behalf
of my child have been either “serious” or “appropriate”! The regular classroom teacher
did not (insert here any of the reasonable accommodations outlined which apply to your
situation). The Supreme Court has said that I can expect an extensive, significant,
competent, well-documented and honest effort to meet my child’s needs in the regular
class. This should take years, not months. I have only witnessed 8 months of poor effort.