1. ____________________________________ Accessibility Awareness Day University of Windsor ____________________________________ Disability Accommodation in Education Ivana Petricone March 18, 2015

2. ARCH is a specialty community legal clinic dedicated to defending and advancing the equality rights of people with disabilities in Ontario Founded in 1980 Governed by a volunteer board of directors, a majority of whom are people with disabilities. Funded principally by Legal Aid Ontario under the Legal Aid Services Act ARCH Disability Law Centre

3. 5 priority areas of practice: Attendant Services Education Law Capacity and Guardianship Services for People Labelled with Intellectual Disabilities Access to Justice

4. ARCH Disability Law Centre Services for Individuals: Summary advice referral service Brief services Legal representation Areas of law: employment, education, discrimination/human rights, legal capacity, services for people with intellectual disabilities, attendant services, accessibility services, abuse of people with disabilities

5. ARCH Disability Law Centre Services for the Disability Community: Law reform activities Test-case litigation Public legal education Community Development

6. ARCH Disability Law Centre Provides Services for Lawyers: Continuing legal education initiatives Referrals to private bar Assistance on disability issues that arise in their cases

7. ARCH Services in Education Summary Advice –e.g. requesting accommodations; challenging exclusion; human rights Litigation –e.g. cases that have systemic impact Law Reform –e.g. submissions to government on education related matters Public Legal Education

8. Disability Accommodation in Education What we hear from students with disabilities… Students denied timely and appropriate accommodation; Students and parents denied participatory rights in accommodation identification and development; Improper use of behaviour/discipline legislation

9. Canadian Context One out of four children with disabilities had an unmet need for accommodation at school and nearly half of parents surveyed reported difficulty getting accommodation for their child at school. Source: Participation and Activity Limitation Survey 2006: A Profile of Education for Children with Disabilities in Canada

10. Human Rights Approach in Education Human rights law applies in the everyday delivery of education services. Human rights law is not limited to the human rights litigation process, but can be used as an advocacy tool to help students get appropriate accommodations and be included in school. Goals of human rights approach: Creating inclusive school cultures and enhancing citizenship Ensuring equal access to education services

11. Our understanding of “inclusion” “Inclusive education is based on the principle that all children should learn together, wherever possible, regardless of difference.”* This definition is taken up in Article 24 of the Convention on the Rights of Persons with Disabilities, expressing a clear commitment to inclusive education. * UN Human Rights Council, Special Rapporteur on the right to education, 2007.

12. Shift to Human Rights Approach Moore v British Columbia (Minister of Education) represents a shift from previous Supreme Court decisions by applying a human rights framework within the education context. Framework is more consistent with the UN Convention on the Rights of Persons with Disabilities The Ontario Human Rights Tribunal recently adopted the Moore human rights framework in R.B v Keewatin-Patricia District School Board 2013. The case also confirmed that accommodations are not a dispensable luxury and are necessary to fulfill the statutory commitment to provide access to education for all.

13. Ontario Human Rights Code Section1 - Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.

14. Discrimination under the Human Rights Code Generally discrimination means treating people differently because of their disability and the different treatment hurts, harms, offends or prevents someone from getting where they need to go, getting what they need or reaching their goals. Discrimination also includes situations where a rule or policy seems to apply to everyone equally, but in practice has a negative impact on certain people.

15. SCC in Moore v British Columbia (Ministry of Education): To demonstrate prima facie discrimination: show they have a characteristic protected from discrimination under the Code; that they have experienced an adverse impact with respect to the service; and that the protected characteristic was a factor in the adverse impact. Once a prima facie case has been established: the respondent must justify the conduct or practice, within the framework of the exemption available under the human rights statutes

16. The Duty to Accommodate Because of human rights legislation, education service providers have an obligation to: Provide services in manner free from discrimination Provide most appropriate accommodation to students with disabilities, short of undue hardship.

17. Undue Hardship Undue hardship under Ontario’s Human Rights Code, consists of: Costs: must alter essential nature or substantially affect the viability of the educational institution Health and Safety Requirements: posing safety risk to other students and/or staff

18. Examples of Accommodations Modified curriculum Extra time for completing tests and assignments Alternative forms of evaluation Academic materials in alternative formats Provision of and training on adaptive technology In-class assistance and supports

19. Components of the Duty to Accommodate Duty to accommodate is both substantive and procedural. Substantive = considers the appropriateness of the accommodation provided or whether it cannot be provided because of undue hardship. Procedural = the methods and approach to developing and implementing the accommodations.

20. Duty to Accommodate: Substantive Accommodations must be appropriate, individualized and respect the dignity of the student. Accommodations depend on the strengths, needs and requirements of the individual student with a disability, as well as the context. What is appropriate for one student may not be appropriate for another. Accommodations must be provided in a timely manner.

21. Duty to Accommodate: Procedural Education service providers must: Conduct an individualized assessment of the student Take appropriate steps to sufficiently determine an appropriate accommodation Where necessary, consult with experts and others to assist in gathering and understanding facts and information relevant to providing accommodation

22. Parents/Guardians and Students Responsibilities Advise the education provider about need for disability- related accommodations; Make his or her needs known so that the education provider can implement an appropriate accommodation; Assist and collaborate in finding accommodations by providing relevant information, answering questions, co- operating with experts, participating in discussions, etc. Source: Ontario Human Rights Commission Guidelines on Accessible Education

23. Education Service Provider Responsibilities Advise students, or their parent/guardian of available accommodations, and the process to obtain them; Investigate and canvass possible accommodation solutions; Where necessary, obtain expert opinion or advice (costs are to be borne by the education provider); Provide accommodations in a timely manner. Source: Ontario Human Rights Commission Guidelines on Accessible Education

24. Disability Accommodations: Public Primary and Secondary Schools Numerous regulations pursuant to the Education Act that directly impact students with disabilities. Notably, Ontario Regulation 181/98 sets out the framework for the identification and placement of students who require additional supports in order to meaningfully access education services.

25. Disability Accommodations: Public Primary and Secondary Schools The Identification, Placement and Review Committee (IPRC) is mandated to identify and review the needs of a student and decide on most appropriate placement for that child then creates an Individual Education Plan (IEP). Children who are identified by an IPRC as having need for accommodation in their education are called ‘exceptional’. Five main categories of exceptionalities: behaviour communication intellectual physical multiple (more than one exceptionality)

26. Disability Accommodations: Public Primary and Secondary Schools Parents may appeal the decision of the IPRC on the identification and/or placement of a student to: The school board; if not resolved  Special Education Appeal Board; if not resolved  Ontario Special Education Tribunal

27. Disability Accommodations: Public Primary and Secondary Schools *Note - The Ontario Special Education Tribunal has limited jurisdiction to deciding matters related to identification and placement. It does not have jurisdiction to deal with cases and make orders related solely to programming, services, and accommodation issues. Thus, the Education Act, leaves no mechanism to adjudicate, enforce, or mediate/conciliate disputes related to accommodation.

28. Disability Accommodations: Public Primary and Secondary Schools The Human Rights Tribunal of Ontario does have jurisdiction in matters related to accommodation and discrimination within the education context. However, the Ontario Special Education Tribunal has exclusive jurisdiction in matters related to identification and placement of students. Therefore, careful consideration must be placed on identifying the core issues when framing the case to ensure that the proper forum is chosen.

29. Disability Accommodations: Post Secondary Institutions Each academic institution has its own Policy or Directive on the accommodation of students with disabilities. Each institution has “Accessibility Services”. It is up to the student to request accommodation and provide corresponding medical documentation.

30. Disability Accommodations: Post Secondary Institutions If a student is not receiving the accommodations they need they can: Negotiate with the college/university (can use the Ontario Human Rights Commission Guidelines on Accessible Education for assistance) Review the Policy on Accommodating Students with Disability of the academic institution Discuss with Accessibility Services & determine best process to take matter to next level Call ARCH for legal information and advice

31. Possible Avenues for Redress IPRC appeal process *only primary/secondary* Human Rights Complaint Complaint to Ontario Colleges of Teachers Civil Claims Ombudsman Complaint *now can investigate school boards and universities*

32. Thank you! 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