1. 1 Disability Accommodations in Post-Secondary Education ARCH Disability Law Centre www.archdisabilitylaw.ca March 26, 2014

2. 2 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

3. 3 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.

4. 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.

5. 5 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.

6. 6 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.

7. 7 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.

8. 8 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

9. 9 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. Substantive component: Refers to the appropriateness of the accommodation, or whether providing the needed accommodation would cause the education service provider undue hardship.

10. 10 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.

11. 11 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.

12. 12 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.

13. 13 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.

14. 14 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.

15. 15 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

16. 16 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.

17. 17 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 Practicums – accommodations, timing

18. 18 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. 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.

19. 19 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.

20. 20 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.

21. 21 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”.

22. 22 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.

23. 23 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?

24. 24 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.

25. 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.cawww.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

26. 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.cainfo@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

27. 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/

28. 28 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.