425 Bloor Street East, Suite 110
Toronto, Ontario M4W 3R4
www.archdisabilitylaw.ca
(416) 482-8255 (Main) 1 (866) 482-ARCH (2724) (Toll Free)
(416) 482-1254 (TTY) 1 (866) 482-ARCT (2728) (Toll Free)
(416) 482-2981 (FAX) 1 (866) 881-ARCF (2723) (Toll Free)
Submission of ARCH Disability Law Centre
To
The Ontario Ministry of Education
In response to the call for submissions as part of the
Ministry's project entitled:
"From Great to Excellent; the Next Phase in Ontario's
Education Strategy"
November 29, 2013
I.
INTRODUCTION
ARCH Disability Law Centre welcomes this opportunity to respond to the call for
submissions by the Ministry of Education as part of its project entitled, “From
Great to Excellent; the Next Phase in Ontario’s Education Strategy”.
ARCH thanks the individuals and organizations who took the time to consult with
us on this report. In particular, we thank the parents of students with disabilities
who shared their experiences, thoughts and recommendations with us. The
insights we gained from the consultations helped us to ensure that this
submission reflects the reality of the challenges faced by students with disabilities
who require appropriate classroom accommodations, as well as some of the key
changes that are needed to improve the delivery of education services.
II.
ABOUT ARCH DISABILITY LAW CENTRE
ARCH Disability Law Centre (“ARCH”) is a specialty legal clinic dedicated to
advancing the equality rights of persons with disabilities. ARCH provides legal
services to help Ontarians with disabilities live with dignity and participate fully in
our communities. ARCH provides free and confidential legal advice and
information to people with disabilities in Ontario. Through our Provincial mandate,
we work with Ontarians with disabilities and disability communities providing direct
legal representation, we conduct law reform activities, and policy and community
development work. We also provide public legal education to people with
disabilities and continuing legal education to the legal community.
ARCH has identified the delivery of education services to children with disabilities
as a primary focus of work, and has developed extensive experience in this area.
ARCH’s work focuses on the meaningful access, accommodation and inclusion of
children with disabilities in Ontario within primary and secondary public education.
1
Ontario’s Human Rights Code1 protects people with disabilities from
discrimination when they receive services. This includes children with disabilities
who receive public education services. Our experience is broad and is based on
our work with students with disabilities themselves, their families and support
people, advocates and community organizations.
ARCH is regularly made aware of concerns from students with disabilities and/or
parents regarding education issues and the duty to accommodate in schools
through our province-wide Summary Advice and Referral Service. ARCH provides
direct representation to students with disabilities. ARCH also engages in law
reform activities, and the delivery of rights education, which facilitates ongoing
involvement with communities of persons with disabilities
III.
CONTEXT
In June of 2013, the Ministry of Education released an update on Special
Education within the Province.2 Despite the fact that the Report highlights gains
made in this area of the public education sector, there remain significant gaps that
continue to detrimentally affect the well-being of Ontario’s students with
disabilities.
At ARCH Disability Law Centre, both from our clients and community
consultations, we encounter a pattern of complaints regarding how the provision
of appropriate classroom accommodations is implemented and enforced. The
current system places an undue burden on students and their families to ensure
that their accommodation needs are being fulfilled. If their efforts fail, they are
afforded insufficient statutory protections for resolution. Families are led in an
adversarial direction, forced at times to take their disputes to courts and tribunals
1
R.S.O. 1990, c. H.19.
Ministry of Education , Special Education Update June 2013, online:
http://www.edu.gov.on.ca/eng/general/elemsec/speced/SpecialEd_Update2013.pdf
2
2
which leads to further dissolution of relationships and increased tension between
schools and families.
This scenario is not ideal for either party. Litigation is costly – both in time and
money. If our students’ well-being is at stake, the system is not only inefficient, but
it is also failing to uphold and advocate for children’s education rights. Families
want the best for their children. In particular, when a child has a disability, families
want to ensure that the best and most accessible opportunities are readily
available so that their child can succeed within the public education system.
The right to accommodation in school is one that is legally protected under the
Human Rights Code. The onus to provide and ensure appropriate and
individualized accommodations should be placed upon the institution rather than
on the individual seeking it.3
It is reported that in Ontario, there are nearly 300,000 students in the public
education system receiving some form of “special education” services. Of these
students, close to 200,000 are identified through the Education Act’s regulatory
framework, the Identification, Placement and Review Committee (IPRC), and
almost 95,000 students receiving accommodations and services are not formally
identified through this process.4
The Auditor General in 2010 found that, “there were still a number of areas where
practices needed to be improved to ensure that the significant funding results in
continuous improvement in the outcomes for students with special education
needs in Ontario”.5
3
See Ontario Human Rights Commission, Guidelines on Accessible Education, (29 September
2004), at 6, online:
http://www.ohrc.on.ca/sites/default/files/attachments/Guidelines_on_accessible_education.pdf
4 2010 Annual Report of the Office of the Auditor General, C 4. s. 4.14 at 386 online:
http://www.auditor.on.ca/en/reports_en/en10/414en10.pdf
5 Ibid.
3
The Auditor General further stated that: “[n]one of the school boards we audited in
2008 had established procedures to assess the quality of the special education
services and supports at their schools”.6
In the Ministry of Education’s Special Education Update, it states that regarding
Individual Education Plans (“IEP”s), “the Ministry appreciates the work of school
boards and the significant gains made at developing IEPs and monitoring IEP
processes”.7 The Update only discusses the accommodation at the beginning of
the process - the creation of the IEP. What remains unaccounted for is how the
IEPs are developed, implemented and enforced. How are schools to undertake a
comprehensive assessment of all of their student’s needs and successes without
some measure of enforcement, transparency and accountability?
Furthermore, the Auditor General Report points out that the gap between
performance and curriculum cannot be adequately measured for students
receiving accommodation.8 Outside of numeracy and literacy testing there is no
system to ensure that accommodations are being enforced, monitored or are
effective. Literacy and numeracy were the only factors of student success
considered by the Ministry in the 2013 Special Education Update.9 If we are
unable to measure success in the broader sense of the term, how can we ensure
that student well-being is achieved as an objective of public education?
IV.
LIMITATIONS OF CURRENT LEGISLATIVE FRAMEWORK
When students and their parents feel that their needs are not being met, there are
few mechanisms in place to address their concerns. The ones that do exist are
often adversarial in nature, are physically and emotionally taxing for students and
6
Ibid, at 387.
Ministry of Education , Special Education Update June 2013 Online:
http://www.edu.gov.on.ca/eng/general/elemsec/speced/SpecialEd_Update2013.pdf
8 2010 Annual Report of the Office of the Auditor General, C 4. s. 4.14 at 390 - 393 online:
http://www.auditor.on.ca/en/reports_en/en10/414en10.pdf
9 Ministry of Education , Special Education Update June 2013 Online:
http://www.edu.gov.on.ca/eng/general/elemsec/speced/SpecialEd_Update2013.pdf
7
4
their families, and do not address accommodation development and
implementation directly. The current scheme is limited to addressing only
particular kinds of complaints and appeals, and within that framework, different
tribunals have jurisdiction over different issues, making it difficult for parents to
navigate. What results is confusion for families who want to resolve the problem
of implementing accommodations in a timely manner.
In addition, the majority of the processes available exclude the students
themselves from having any meaningful role; this is significant because students
are often the ones charged with ensuring their own accommodations in the
classroom through self-advocacy.
The Identification Placement and Review Committee (“IPRC”)10 process can be
viewed as one of the initial stages of accommodation identification for some
students. However, students who are effectively excluded from the IPRC process
and parental involvement is not mandatory.11 Parents may appeal the decision of
an IPRC based on limited grounds: the disagreement with the identification and/or
the placement decision. The appeal process itself is almost immediately
adversarial in nature due to the formality of its design.12 Review and Appeals from
the IPRC are made to the Special Education Appeal Board and the Special
Education Tribunal (“SET”).
Despite the concerns surrounding the conflict or adversarial model, there is a
glaring omission of any form of appeal process or enforcement mechanism that
addresses issues or disputes directly involving programming, services and
accommodations. This affects both students who have been placed through the
IPRC process and those for whom an IEP has been developed in the absence of
an IPRC. The child’s well-being and success in the classroom is detrimentally
affected by the failure to implement a more holistic approach to education
10
Identification and Placement of Exceptional Pupils, O Reg. 181/98.
Ibid, at s. 5.
12 Ibid, at s.6(1).
11
5
services and by the omission of meaningful recourse when their accommodation
needs are not being met.
It is evident from the Education Act at s. 57, and Special Education Tribunal
decisions like W.F. v The Ottawa Catholic School Board, that the SET does not
have jurisdiction to make rulings related only to programming, services and
accommodation issues.13 Therefore, the Education Act provides no mechanism
for enforcement, adjudication or resolution of disputes related to accommodations
and IEP development or implementation. This aspect is integral to ensuring the
facilitation of inclusion and access to meaningful education services. Moreover,
when contacted by parents, the Ministry of Education does not intervene in any
substantial way.
Unlike the Special Education Tribunal, the Human Rights Tribunal of Ontario
(“HRTO”) has jurisdiction. A significant number of HRTO cases regarding
education accommodation are either settled or withdrawn. Many of ARCH’s
clients are apprehensive about filing an HRTO application. Many families have
difficulty obtaining legal representation. Litigation is not the best way to resolve
education disputes for a number of reasons. Litigation takes time; education
issues require timely decisions. There is a significant power and resource
imbalance, there is difficulty accessing legal representation, and the adversarial
process tends to deteriorate those very relationships that would otherwise make
the child’s learning experience meaningful.
Legislation also provides for the development of IEPs. Pursuant to the Education
Act, Regulation 181/98 - Identification and Placement of Exceptional Pupils - an
IEP is to be developed within 30 days after placement of the pupil in a program
and the following must be included in an IEP:
a) specific education expectations for the pupil;
13
(2008) OSET No. 2008-02.
6
b) an outline of the special education program and services to be
received by the pupil; and
c) a statement of the methods by which the pupil’s progress will be
reviewed.14
In other words, IEP’s are designed to identify a “student's specific learning
expectations and outlines how the school will address these expectations through
appropriate accommodations, program modifications and/or alternative programs
as well as specific instructional and assessment strategies”.15
Clearly, the IEP is the accommodation plan for students with disabilities.
However, the IEP does not only arise through the IPRC process. The IPRC is not
necessary for an IEP to be developed. The duty to accommodate is one that is
enforceable under the Human Rights Code.16 Either way, whether a child has an
IEP through the IPRC process or from an accommodation plan, there are still
issues that can arise. Disputes around the IEPs can arise with both substantive
and procedural elements of the program. The former relates to the
accommodation plan itself and programs and services included in the IEP. The
latter includes but is not limited to issues of timeliness and lack of proper
consultation and parental/student involvement. Additionally, even once an IEP
has been developed, there is no sufficient consistency in implementation and
enforcement.17
It is our experience that contrary to the Education Act parents and families are not
provided with appropriate legal recourse to address issues stemming from the
IEPs. If an accommodation issue were to arise, families are usually directed to
14
Identification and Placement of Exceptional Pupils, O Reg. 181/98, s. 8.
Ontario Ministry of Education, The Individual Education Plan Process
online:http://www.edu.gov.on.ca/eng/general/elemsec/speced/individu/html
16 R.S.O. 1990, c. H.19.
17 See recent decisions in Moore v. British Columbia (Education), 2012 SCC 61 and the Human
Rights Tribunal of Ontario’s decision in R.B. v. Keewatin-Patricia District School Board, 2013
HRTO 1436, finding discrimination by school boards for failure to accommodate, both procedurally
and substantively.
15
7
resolve the problem with the classroom teacher and/or the school principal, and
then administrators at the school board level. If they do not arrive at a resolution,
the concern may be forced to become a human rights Application. The leap to the
adversarial legal system happens because of the absence of any other recourse
or alternative dispute resolution mechanism.
V. Experiences of Students with Disabilities across Ontario
Through consultation and ongoing work, we learned that the gaps we identified in
the legislation above and the lack of appropriate recourse are not just problems
that exist in theory. Student well-being is affected because of those gaps. From
our consultations and clients, we sought information on how student well-being is
defined, what gaps, if any, exist within the public education system that have an
effect on student well-being, and finally, we sought suggestions for improvement.
Community input regarding student well-being:
Parents and service providers define student well-being as something that is
observable at the beginning and end of each school day. Students should be free
from fear of not succeeding at school; students should experience an environment
of inclusion, knowing that they will be given what they need to succeed and
students should have a sense of contentment and satisfaction with their daily
experiences. A student’s lack of well-being at the beginning and end of the school
day should be documented and is demonstrated by poor performance,
attendance issues and increased mental health concerns. Ensuring that
accommodation needs are being implemented will play a significant role in
alleviating these detrimental impacts.
Community organizations indicated that schools can achieve student well-being
through a holistic approach that fulfills the mental, emotional, physical and
spiritual needs of the child by fostering an environment of equality and inclusion.
8
Some service providers and parents report that this is going well within certain
contexts. However, that is wholly dependent on the culture of the particular school
environment, the inclusive leadership at each school or lack thereof, and the
consistent and direct involvement of parents and advocates. During ARCH’s
consultations, community groups underscored that there are no policy or
enforcement mechanisms in place to ensure that the success is uniform or
widespread among Ontario schools.
Community input regarding service gaps:
Parents reported lack of meaningful consultation and opportunity for input in IEP
development. They also reported a general sense of helplessness and despair in
cases where ineffective IEPs were developed, or when IEP’s are not appropriately
followed and implemented. We also heard how failures to appropriately
accommodate can lead to significant consequences including suspensions, and
the student’s exclusion from school altogether pursuant to section 265 (1)(m) of
the Education Act.
We have also been informed that there is a lack of adequate quality sign
language interpreters and sign language instruction available for students with
hearing disabilities. There is inconsistency across the Province regarding the
standards and level of quality of the sign language interpretation available, due to
a lack of Ministerial standards and guidelines.
ARCH is consistently informed that technology for students with disabilities is
either unavailable, takes a considerable amount of time to obtain, is not operated
properly by staff due to lack of training, is not properly functioning, or is not the
most appropriate for the student but rather represents what is available.
There continue to be concerns around the significant time delays to obtaining
proper and appropriate educational assessments funded by school boards.
9
School boards may be reluctant to provide accommodations in absence of
assessments.
Through our involvement within the education sector, we often hear that the lack
of accountability and enforcement has a detrimental effect on remediation, access
to support, and tends to exacerbate issues of intersectionality. Intersectionality
deals with the effects of multiple systems of oppression and discrimination. An
individual who is a member of more than one disenfranchised group in society
tends to have greater difficulty accessing accommodations and inclusivity than a
person in only one oppressed group. Based on our discussions with community
members, issues of intersectionality affect Ontario students. The historic and
cultural divide between schools and the Aboriginal communities, for example, is
still healing and continues to be a barrier for accessibility for students with
disabilities. Members of Aboriginal Communities report that as a result of this
imbalance and residual effects of systemic abuses within the education sector,
students continue to wait for services, accommodation and support at the behest
of the school. There is a genuine apprehension and fear of reprisal for members
of the Aboriginal Community when directed to be advocates for accommodation. It
is important to recognize that not all students with disabilities will be able to selfadvocate.
Parents and Service Providers indicated that the power imbalance experienced
when advocating for their children was overwhelming and that often times their
children struggled with having to self-advocate as well. Students are directed to
initiate dialogue for accommodation with their teacher, however the culture is such
that teachers are still seen as figures of authority which can be intimidating for a
child. Parents report that they are often ignored during critical stages of IEP
development and accommodation implementation and monitoring. The stories
that ARCH routinely hears run contrary to the human rights obligations of service
10
providers to consult, and section 6 of Ontario Regulation 181/98 pursuant to the
Education Act.18
Community input regarding suggested changes:
Our clients and community partners have suggested that a culture of inclusion will
provide a better forum for ensuring accommodation needs are met. Parents want
to work in collaboration with schools and want schools to initiate, acknowledge
and maintain their duty under the Human Rights Code.
Another point raised by families and service providers regarding current gaps in
service for ensuring the well-being of students was that of teacher’s familiarity
with individual accommodation needs. Parents report that with each new school
year, because teachers are unfamiliar with their child’s accommodation needs,
they are directing teachers to review their child’s OSR to ensure implementation.
Suggestions were made that training teachers about individual IEPs and ensuring
that they understand how to implement it in the classroom would be helpful to
promoting the success and well-being of students.
Families and service providers also stated that some kind of neutral third party
would be an asset in assisting them with advocating on behalf of students. A
neutral third party could also mediate between the families and schools to provide
opportunities for alternative dispute resolution.
Leaving the gaps in service unaddressed and unacknowledged makes it more
difficult to advance the rights of persons with disabilities at a systemic level. The
Ontario Human Rights Commission’s Guidelines on Accessible Education19
indicates that the duty to accommodate is the obligation of the service provider. If
18
Identification and Placement of Exceptional Pupils, O Reg. 181/98, s.6.6(a).
See Ontario Human Rights Commission, Guidelines on Accessible Education, (29 September
2004), at 6, online:
http://www.ohrc.on.ca/sites/default/files/attachments/Guidelines_on_accessible_education.pdf
19
11
there is no system to hold service providers accountable, then the burden is
placed on those requiring accommodation to enforce their own rights through a
formalized and adversarial complaints process. Clear Ministerial policy should
direct and enforce the fulfillment of the duty to accommodate by school boards
rather than the individuals seeking the accommodation.
VI. ARCH’s RECOMMENDATIONS
ARCH respectfully submits the following three possible initiatives for consideration
with respect to ensuring student well-being and addressing gaps in service
delivery. Since the principle of development of school based accommodation is
meant to be a co-operative endeavour, we submit that consultation is one of the
founding principles of collaboration.
Recommendation #1: ARCH Recommends that the Ministry of Education
conduct a comprehensive consultation with all community stakeholders
specifically concerning the identification and provision of appropriate
supports, services and accommodations for students with disabilities.
We recommend that a fulsome consultation be undertaken with students, parents,
advocates, community organizations, and service providers in order to accurately
identify the gaps in the current legislative framework and to identify an appropriate
model for education service delivery moving forward that promotes inclusive
school cultures, accountability, cooperative and consultative approaches,
transparency and enforcement. We also recommend that this initiative include a
review of best practices in Ontario, across Canada, and internationally. For
example, New Brunswick has legislated inclusive education and has recently
12
developed a clear policy framework for the delivery of appropriate services and
accommodations.20
Recommendation # 2: ARCH recommends that the Ministry of Education
explore appropriate models regarding assistance to parents with advocacy,
neutral third parties to mediate and facilitate the resolution of disputes, and
internal neutral and transparent enforcement and dispute resolution
mechanisms.
ARCH recommends the development of a transparent neutral process for
students and parents to seek the redress of disputes involving accommodations
and implementation.
It is evident through our on-going dialogue with parents and community partners
across the Province, and engagement with the current standards of practice, that
the need for a non-adversarial model for maintaining empowering and effective
communication between school and families is the most appropriate method.
There are numerous examples and models that the Ministry of Education may
explore.
For example, Quebec’s Education Act states that “every school board shall
establish, by by-law, a procedure for the examination of complaints from students
or their parents”.21 This section of the act was established after consultations with
the ‘parents’ committees’. For people who are dissatisfied with the way that a
complaint has been handled or with the outcome of a complaint, the individual is
referred to a Student Ombudsman. The Student Ombudsman is designated after
20
New Brunswick Department of Education and Early Childhood Development, Inclusive
Education, Policy 322, effective September 17, 2013, online:
http://www.gnb.ca/0000/pol/e/322A.pdf
21 Education Act c. I-13.3, s. 220.2, online:
http://www2.publicationsduquebec.gouv.qc.ca/dynamicSearch/telecharge.php?type=2&file=/I_13_
3/I13_3_A.html
13
consultation with the ‘parents’ committee’ and on the recommendation of the
governance and ethics committee. The purpose of the Student Ombudsman is to
provide a supposedly neutral third party to whom parents can direct their
complaints.
The implementation of a neutral third party facilitator could be met through
Alternative Dispute Resolution (ADR) and Mediation. In British Columbia the
Ministry of Education ensures that no cost is incurred by the parents that utilize
the ADR and Mediation, thereby making resolution an accessible option for
parents and students.
Recommendation # 3: ARCH recommends that the Ministry of Education
heighten accountability measures, and increase its oversight, regarding
school board obligations to appropriately accommodate students with
disabilities.
As it stands currently, there are legislative gaps regarding the implementation and
enforcement of school-related accommodation plans. Including specific guidelines
in the legislation is an example of good social policy. The Convention on the
Rights of Persons with Disabilities (CRPD) states that: “With a view to realizing
this right [to education] without discrimination and on the basis of equal
opportunity, States Parties shall ensure an inclusive education system at all levels
and life-long learning”.22
New Brunswick is an example of a province that has developed a more robust
legislative response to address the gaps in the provision and implementation of
IEPs and other education related accommodations. The legislated inclusive
22
UN GAOR, 61st Sess., 76th Mtg., UN Doc. GA/10554 (2006), art. 24(1), online: United Nations
Enable http://www.un.org/disabilities/documents/convention/convoptprot-e.pdf.
14
education reflects a commitment to promoting transparency and developing
enforcement mechanisms within school boards.23
VII. CONCLUSION
As highlighted above, Auditor General’s 2010 Report concluded that the current
practice of evaluating the efficacy of the delivery of curriculum for accommodated
students is limited to numeracy and literacy and does not account for the many
other aspects of an individual’s education and well-being.
ARCH strongly recommends that as part of this review, structural changes be
explored, in order to increase emphasis on a results-oriented approach to IEP
development and delivery, as well as increased accountability with respect to
education service providers regarding the attainment of identified learning goals.
23
New Brunswick Department of Education and Early Childhood Development, Inclusive
Education, Policy 322, effective September 17, 2013, online:
http://www.gnb.ca/0000/pol/e/322A.pdf.
15