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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 :
• 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
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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.
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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”?
•
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.
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Examples of Accommodation
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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:
•
Substantive component:
•
Refers to methods and steps taken to develop and
implement the accommodations.
Refers to the appropriateness of the accommodation,
or whether providing the needed accommodation
would cause the education service provider undue
hardship.
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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 disability-related 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, answering questions, and participating in
discussions.
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Issues that Arise
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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
Practicums – accommodations, timing
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What do I do if I’m not receiving the accommodations I need?
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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.
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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 1-866482-2728
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
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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: info@ohrc.on.ca
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
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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 postsecondary institution’s website for more information. McMaster has information at
the following links:
http://www.mcmaster.ca/accessibility/
http://sas.mcmaster.ca/
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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.