Education And
Disability: Ontario Human Rights Commission Consultation Paper On
Access To Education For Persons With Disabilities
Human Rights Issues in Ontario's Education System
TABLE OF CONTENTS
INTRODUCTION
SCOPE OF CONSULTATION
HUMAN RIGHTS LAW AND POLICY
1. International Documents
2. Relevant Provisions of the Ontario Human Rights Code
3. Policy and Guidelines on Disability and the Duty to Accommodate
4. Case Law
EDUCATION FOR PERSONS WITH DISABILITIES IN ONTARIO
1. Primary and Secondary Education
Demographics
Legislative Framework
Funding Structures
2. Post-Secondary Education
Demographics
Background
Funding Structures
OHRC CASELOAD PROFILE
HUMAN RIGHTS ISSUES IN EDUCATION FOR PERSONS WITH DISABILITIES
1. Access to Education
2. Disability and Other Forms of Discrimination
3. Negative Attitudes and Stereotypes
4. Labelling
5. Appropriate Accommodation
6. Accommodation Process
7. Roles and Responsibilities
8. Undue Hardship Standard
CONSULTATION INFORMATION
END NOTES
INTRODUCTION
Education is central to the life of an individual in the community.
It
provides opportunities for personal, social, and academic growth and
development. It sets the stage for later life experiences, most especially
in employment. It is also an important venue for integration into
the life
of the community.
Canada has ratified the United Nations Convention on the Rights of
the
Child[1], which recognizes the importance of education in the life
of a
child. Article 28 of the Convention recognizes the right of the child
to
education, and requires states to achieve this right progressively
and on
the basis of equal opportunity; and Article 29 sets out the aims of
such
education, including the development of the child's personality, talents
and mental and physical abilities to their fullest, and the preparation
of
the child for responsible life in a free society. As well the Declaration
of the Rights of Disabled Persons[2] affirms the right of persons
with
disabilities to education.
In Canada, education is recognized as a fundamental social good.
A publicly
funded education system, accessible to all, is recognized as a core
responsibility of government. The Preamble to the Ontario Human Rights
Code
("the Code") sets out the principle that each person should
feel a part of
the community and able to contribute fully to the development and
well-being of the community and the Province. Section 1 of the Code
guarantees the right to equal treatment in education, without
discrimination on the grounds of disability, as part of the protection
for
equal treatment in services. This applies to elementary and secondary
schools, colleges, and universities, both public and private.
The Ontario Human Rights Commission ("OHRC") has serious
concerns regarding
accessible education for persons with disabilities. In 1999, the OHRC
conducted extensive consultations on disability and the duty to
accommodate, as part of the development of its Policy and Guidelines
on
Disability and the Duty to Accommodate[3] , released in March 2001.
A
number of submissions to that consultation raised important issues
relating
to disability and education. As well, in recent years, the OHRC has
received a number of complaints related to discrimination because
of
disability in the area of education that raise issues of systemic
discrimination. Parents, educators, disability consumer groups, and
advocacy organizations have contacted the OHRC on an informal basis
to
express concerns and identify issues. These issues are also receiving
widespread public attention, not only from the press, but from academics
and research institutes. A number of important studies have recently
been
released on issues related to children with disabilities in education.
Section 29 of the Code gives the OHRC a broad mandate for dealing
with
issues of discrimination. It is the function of the OHRC to promote
an
understanding and acceptance of, and compliance with the Code; to
undertake
research designed to eliminate discriminatory practices; to examine
and
review statutes and regulations, programs and policies that in its
opinion
are inconsistent with the intent of the Code; and to inquire into
conditions leading to tensions or conflict based on identification
by a
prohibited ground of discrimination and take action to eliminate the
source
of tension or conflict.
Pursuant to this mandate, the OHRC has therefore decided to initiate
public
consultations on human rights issues related to education and disability,
with a view to developing a public Consultation Report, as well as
specific
guidelines in this area.
SCOPE OF CONSULTATION
As noted above, the OHRC held extensive consultations on disability
and the
duty to accommodate in 1999. The result was a comprehensive Policy
and
Guidelines on Disability and the Duty to Accommodate, released in
March
2001. This document sets out the OHRC's key policy positions in this
area,
including:
a definition of disability that recognizes the impact of social
handicapping; an emphasis on the right of persons with disabilities
to
integration and full participation; recognition of the central importance
of design by inclusion, and barrier removal for persons with disabilities;
reaffirmation of the importance of respect for the dignity of persons
with
disabilities; recognition that persons with disabilities are individuals
first, and should be considered, assessed, and accommodated on an
individual basis; the principle that accommodation is a responsibility
shared by all parties to the process; and a reaffirmation of the high
standard of undue hardship set by the OHRC in 1989.
These principles, and the whole of the Policy and Guidelines on Disability
and the Duty to Accommodate, form the basis of the OHRC's approach
to
issues of disability and the duty to accommodate. It is not the intent
of
this consultation to re-evaluate or reconsider these principles. Rather,
recognizing the special nature of educational services, and the complexity
of the issues in this area, it is the aim of the OHRC to produce a
public
Consultation Report as well as specific guidelines to clarify the
application of its policies and principles in the education sector.
Issues have been raised with respect to all aspects of education
and
disability - in both public and private institutions, and at the primary,
secondary, and post-secondary levels. Submissions are therefore invited
on
human rights aspects of all types of educational services.
Education is a complex field, governed by numerous statutes and
regulations, regulated by several government ministries, and involving
a
myriad of players. The OHRC's mandate is with respect to the human
rights
aspects of educational services, and what can properly be considered
"discrimination" within the meaning of human rights law
and policy. This is
the focus of these consultations. Not all aspects of education, or
even of
special education, fall within this mandate.
This paper outlines background information, and identifies a number
of
issues relating to human rights, disability, and education that have
been
brought to the OHRC's attention, for the purpose of providing a framework
for submissions on these topics. However, this list is not exhaustive
and
there may be further issues that fall within the OHRC's mandate. The
OHRC
welcomes submissions identifying such issues.
HUMAN RIGHTS LAW AND POLICY
1. International Documents
The United Nations Convention on the Rights of the Child, Article
23,
recognizes the rights of children with disabilities to "enjoy
a full and
decent life, in conditions which ensure dignity, promote self-reliance
and
facilitate the child's active participation in the community".
This Article
further requires states parties to extend special care to such children
to
ensure that they have effective access to, and receive training, education,
and preparation for employment, among other services, in a "manner
conducive to the child's achieving the fullest possible social integration
and individual development".
Article 28 of the Convention recognizes the right of all children
to
education. Article 29 sets out the objectives of education, including
"the
development of the child's personality, talents and mental and physical
abilities to their fullest potential".
The United Nations Declaration of the Rights of Disabled Persons
affirms in
section 6 the right of persons with disabilities to education and
to
vocational training and other services which will "enable them
to develop
their capabilities and skills to the maximum and will hasten the processes
of their social integration or reintegration". Section 3 affirms
the right
of persons with disabilities to respect for their human dignity.
UNESCO's 1994 World Conference on Special Needs Education resulted
in the
Salamanca Statement and Framework for Action on Special Needs Education,
which emphasized that educational systems and programs should be designed
and implemented to take into account the wide diversity of children's
needs
and characteristics, and that those with special educational needs
should
have access to regular schools, which should accommodate them within
a
child-centred pedagogy capable of meeting those needs. According to
this
document [R]egular schools with this inclusive orientation are the
most
effective means of combating discriminatory attitudes, creating welcoming
communities, building an inclusive society and achieving education
for all;
moreover, they provide an effective education to the majority of children
and improve the efficiency and ultimately the cost-effectiveness of
the
entire education system.
2. Relevant Provisions of the Ontario Human Rights Code
Section 1 of the Code affirms the right to equal treatment in services,
which includes education, without discrimination because of disability.
Section 10(1) of the Code provides a broad definition of the term
"disability", as follows:
(a) any degree of physical disability, infirmity, malformation or
disfigurement that is caused by bodily injury, birth defect or illness
and,
without limiting the generality of the foregoing, includes diabetes
mellitus, epilepsy, a brain injury, any degree of paralysis, amputation,
lack of physical co-ordination, blindness or visual impediment, deafness
or
hearing impediment, muteness or speech impediment, or physical reliance
on
a guide dog or other animal or on a wheelchair or other remedial appliance
or device,
(b) a condition of mental impairment or a developmental disability,
(c) a learning disability, or a dysfunction in one or more of the
processes
involved in understanding or using symbols or spoken language,
(d) a mental disorder, or
(e) an injury or disability for which benefits were claimed or received
under the insurance plan established under the Workplace Safety and
Insurance Act, 1997; ("handicap")
Section 10(3) adds that "The right to equal treatment without
discrimination because of disability includes the right to equal treatment
without discrimination because a person has or has had a disability
or is
believed to have or to have had a disability."
Section 11 of the Code clarifies that discrimination includes constructive
discrimination, in which a requirement, qualification or factor that
appears neutral has the effect of excluding or disadvantaging a group
protected under the Code.
The duty to accommodate is set out in section 17. It is not discriminatory
to refuse a service because a person is incapable of fulfilling the
essential requirements of exercising the right. However, a person
will only
be considered incapable if the needs of the person cannot be accommodated
without undue hardship.
It is also worth noting that section 14 permits the implementation
of
special programs to relieve hardship or economic disadvantage or to
assist
disadvantaged persons or groups to achieve equality, or that will
likely
contribute to the elimination of the infringement of Code rights.
3. Policy and Guidelines on Disability and the Duty to Accommodate
As noted earlier, in March 2001, the OHRC released its Policy and
Guidelines on Disability and the Duty to Accommodate, the result of
extensive research and consultation. This document sets out the OHRC
's
guiding principles in this area, which are applicable to the field
of
education, as well as to other types of services and social areas.
The Policy takes a broad approach to the definition of disability,
following Supreme Court of Canada decisions that make it clear that
discrimination because of disability may be based as much on perceptions,
myths and stereotypes as on actual functional limitations. As well,
the
Policy recognizes the unique challenges faced by persons with non-evident
disabilities, such as mental disabilities.
There are three key principles underpinning the duty to accommodate:
1) Respect for the dignity of persons with disabilities, including
integrity, empowerment, confidentiality, privacy, comfort, autonomy,
individuality and self-esteem;
2) Individualization, meaning that persons with disabilities are
individuals first, and must be considered, assessed, and accommodated
individually; and
3) Right of persons with disabilities to integration and full
participation, which requires inclusive design of facilities, programs,
policies, and procedures, and barrier-removal where barriers are found
to
exist.
The responsibility for successful accommodation is shared by all
parties.
Everyone involved should cooperatively engage in the process, share
information as needed, and avail themselves of potential accommodation
solutions. The accommodation process should itself respect the dignity
of
persons with disabilities, including respect for privacy and
confidentiality.
The Policy reaffirms the standard for undue hardship set in 1989.
The
standard is a high one. There are only three factors to be considered:
costs, outside sources of funding, and health and safety. The onus
of proof
is on the person making the claim of undue hardship, and there must
be
objective, direct, and (where possible) quantifiable evidence to support
the claim.
4. Case Law
There are relatively few recent human rights cases dealing with disability
and education, perhaps because the caseload of most human rights bodies
tends to be dominated by employment-related complaints.
The most prominent recent case dealing with education and disability
is
Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241, a 1997
decision of the Supreme Court of Canada. This case was decided under
the
equality rights provisions of the Charter of Rights and Freedoms (the
"Charter"), rather than under human rights statutes. Emily
Eaton, a 12-year
old student with a disability, was initially placed in an integrated
classroom. After three years, her teachers and assistants concluded
that
this placement was not in her best interests, and that she should
be placed
in a specialized classroom. Her parents disagreed. An Identification,
Placement and Review Committee ("IPRC") determined that
Emily Eaton should
be placed in a specialized setting. Her parents appealed the decision,
with
varying degrees of success, up to the Supreme Court of Canada. The
Supreme
Court of Canada ruled that the decision of the tribunal to place Emily
Eaton in a special education class, contrary to the wishes of her
parents,
did not violate the equality rights provisions of the Charter.
The Court stated that failure to place Emily Eaton in an integrated
setting
did not create a burden or disadvantage for her, because such a placement
was in her best interests. According to the Court ,
While integration should be recognized as the norm of general application
because of the benefits it generally provides, a presumption in favour
of
integrated schooling would work to the disadvantage of pupils who
require
special education in order to achieve equality .. Integration can
be either
a benefit or a burden depending on whether the individual can profit
from
the advantages that integration provides.
The Court found that the tribunal had sought to determine the placement
that would be in the best interests of Emily Eaton, had considered
her
special needs, and striven to fashion a placement that would accommodate
those needs and enable her to profit from the services that an educational
program offers.
The Supreme Court of Canada also made some comments of interest in
Adler v.
Ontario, [1996] 3 S.C.R. 609. This case involved students with disabilities
attending private religious schools, who as a result were not eligible
for
the School Health Support Services Program. The case was mainly concerned
with whether the failure of the Ontario government to fund private
religious schools violated Charter rights to equality and to freedom
of
religion. The majority of the Court found that failure to fund these
schools did not violate the Charter, and consequently, that the denial
of
School Health Support Services, which were characterized as educational
services, also did not violate the Charter. McLachlin J., and
L'Heureux-Dub1 J., in separate dissents, held that denying this program
to
students at private religious schools was a violation of their equality
rights.
Although dealing with health care, rather than educational services,
the
Supreme Court of Canada decision in Eldridge v. British Columbia (Attorney
General), [1997] 3 S.C.R. 624 is one of the most important decisions
on
provision of services to persons with disabilities. In Eldridge, the
Court
ruled that the failure of hospitals to provide sign-language interpreters
to enable deaf persons to communicate effectively with doctors and
other
health care providers was a violation of the equality rights provisions
of
the Charter. The Court found that deaf persons had suffered discrimination
because the government had failed to ensure that they benefited equally
from a service available to everyone. When governments provide benefits
to
the general population, they have an obligation to take positive steps
to
ensure that members of disadvantaged groups, such as persons with
disabilities, benefit equally from those services, subject of course
to the
undue hardship standard.
Similarly, in a 1993 decision by the B.C. Council of Human Rights
(Howard
v. University of British Columbia, (1993) 18 C.H.R.R. D/37), the University
of British Columbia was ordered to provide sign-language interpretation
services to a student, finding that sign-language interpreters were
an
accommodation required by deaf students to enable them to access the
University's educational services, and that provision of such services
would not cause undue hardship.
EDUCATION FOR PERSONS WITH DISABILITIES IN ONTARIO
1. Primary and Secondary Education
Demographics
There is a lack of reliable, current information on children with
disabilities in Canada. A recent study[4] by the Canadian Council
on Social
Development ("CCSD"), made some estimates based on data
gathered since 1994
by the National Longitudinal Survey of Children and Youth in Canada.
According to this study, approximately 13% of children aged 11 or
younger
had a chronic condition or activity limitation, excluding allergies,
"emotional problems" [5], and learning disabilities. If
children with
allergies are added in, the percentage rises to approximately 23%.
If
children with emotional problems and learning disabilities are added
to the
mix, the number rises to over 30%.
Research based on the 1996-1997 National Population Health Survey,
which
used a definition of disability that included activity limitations,
and
"special needs", as well as learning disabilities and emotional
problems,
found that 14.6% of children aged 6 to 11 were identified in this
category.
According to the Roeher Institute[6] , between 5 and 20% of Canadian
families have children with disabilities. Among children with disabilities,
15% have a moderate or severe level of disability. The most common
type of
long-term condition among young children aged birth to 14 years is
a
learning disability, affecting approximately 17 of every 1000 children
reporting.
In Ontario's publicly funded school system, in the fall of 2000,
12.5% of
students (over 260,000 children) were receiving special education
programs
and services.
Figures for 1997 from the Ministry of Education and Training indicated
that
approximately half of all students identified as "exceptional"
had learning
disabilities. There were also significant percentages of students
identified as developmentally disabled, speech and language impaired,
or
"emotionally disturbed". Boys outnumber girls in almost
all categories,
including those for physical and sensory disabilities, but most strikingly
so in those categories where the schools make the basic determination,
such
as learning disabilities and emotional disturbances. Approximately
twice as
many boys as girls are identified as learning disabled, and boys in
elementary school are more than five times more likely than their
female
peers to be identified as emotionally disturbed.
Legislative Framework
The Education Act[7] and its accompanying regulations set out a structure
for the identification and accommodation of disability-related needs
in
Ontario's publicly funded primary and secondary school system.
Under the Education Act, the Ministry of Education is responsible
for
ensuring that all exceptional children in Ontario have available to
them
appropriate special education programs and services without payment
of
fees. The Ministry is therefore responsible for requiring school boards
to
implement procedures for identifying student needs, and for setting
standards for identification procedures.
Section 1 of the Act defines an "exceptional pupil" as
one "whose
behavioural, communicational, intellectual, physical or multiple
exceptionalities are such that he or she is considered to need placement
in
a special education program".
The principal of a school may, by his or her own decision, or at
the
request of a parent, refer a child to an Identification and Placement
Review Committee ("IPRC") for a decision as to whether or
not the child is
"exceptional", and if so, whether the child should be placed
in a regular
classroom with supports, or in a special education class [8] . In
making
these decisions, the IPRC shall consider educational, health and
psychological assessments, as well as information submitted by the
parents.
The IRPC can also interview the student. Where placement in a regular
classroom would meet the child's needs and is consistent with parental
preferences, the IPRC must place the child in the regular classroom.
The IPRC also has the power to make recommendations about special
education
programs and services for the student, but does not have decision-making
power in this respect.
Parents may appeal the decision of an IPRC regarding a determination
of
exceptionality, or the placement of a student. Recommendations regarding
programs and services cannot be appealed.
If the decision of the IPRC is not appealed, the principal of the
school
which the student will attend is notified to prepare an Individual
Education Plan ("IEP") for the student. IEPs include the
specific
educational expectations for the student, an outline of the special
education programs and services to be provided to the student, and
a
statement of the methods by which the student's progress will be reviewed.
For students aged 14 and over, the IEP must also contain a plan for
transition to appropriate post-secondary school activities. In developing
the plan, the principal must consult with the student's parent (or
with the
student him or her self, if the student is 16 years of age or older),
and
must take into consideration any recommendations made through the
IPRC
process.
Funding Structures
The funding structure currently in place to provide for students
with
special needs is complex. The basic grants that school boards receive
for
such costs as classroom teachers, heating, and lighting are expected
to
cover the basic needs of all students, including those with special
needs.
The Ministry also provides Special Education Grants, which are intended
to
cover the incremental costs of special education programs and services.
Special Education Grants include both a per-pupil amount, based on
overall
enrolment, and an Intensive Support Amount ("ISA"), which
is intended to
recognize differences among boards in the incidence of students with
special needs. The ISA covers the cost of programs and services for
very
high needs students, as well as specialized equipment. ISA Grants
are
claimed by boards based on specific eligibility criteria.
For the school year ending August 31, 2001, the Ministry's total
spending
on Special Education Grants was $1.36 billion, about 10% of the total
amount provided to school boards in that year [9] . Of this amount,
$724
million was provided through the per pupil amount, and $571 through
the ISA
process (the remaining $66 million was for students in care, treatment
and
correctional facilities).
2. Post-Secondary Education
Demographics
A study by the Canadian Council on Social Development, using Statistics
Canada's Survey of Labour and Income Dynamics, illustrates the unequal
access of persons with disabilities to post-secondary education in
Canada[10] . According to this study, in 1998, only 36.4% of persons
with
disabilities, aged 16 to 64, had graduated from a post-secondary program,
as compared to 51.4% of persons without a disability. This appears
to be
improving very gradually: the statistics for 1993 were 31.3% post-secondary
graduation for persons with disabilities, as compared to 48% of persons
without a disability.
This differential access is of particular concern given the correlation
between higher education and successful transition to the labour force.
According to the same study, on the whole, men and women of working
age
with disabilities were far less likely to have full-time employment
than
those without disabilities. While 77.4% of men without disabilities
were
employed full-time in 1998, only 39.2% of men with disabilities were;
the
numbers for women were 64.8% for women, as opposed to 28.1%. Access
to
education appears to increase employment opportunities: in 1998,
approximately 52% of men, and 41% of women with disabilities who had
post-secondary education were employed full-time, as compared to 43%
of men
and 28% of women with disabilities who had only completed high school.^
There is a lack of statistical information regarding the number of
students
with disabilities currently attending post-secondary institutions.
Based on
1991 Statistics Canada figures, it has been estimated that seven percent
of
the population enrolled in post-secondary education has a disability
of
some sort. However, Offices for Students with Disabilities have reported
a
significant increase in post-secondary attendance by students with
disabilities in recent years[11] . Based on this figure, it has been
estimated that there were 96,000 students with disabilities enrolled
in
post-secondary education in the 1997-98 academic year, about seven
percent
of the total enrollment. A comprehensive survey on disability and
post-secondary education completed in 1999 by the National Educational
Association of Disabled Students[12] ("NEADS") indicated
that most of
Ontario's post-secondary institutions had populations of full-time
students
with disabilities of between 200 and 1200.
According to the NEADS study, which was based on an extensive survey
of
post-secondary students with disabilities, 36% of students with
disabilities at post-secondary institutions self-identified as having
learning disabilities, or attention deficit disorder. Mobility impairments
were the next most frequently cited type of disability, at 30%. Just
under
30% identified sensory disabilities such as vision or hearing conditions.
Persons with mental health conditions accounted for just 5% of the
survey
respondents.
Background
Post-secondary education in Ontario is provided by a wide range of
public
and private institutions, including publicly funded universities and
colleges, private vocational schools, and privately-funded degree-granting
institutions. The Ministry of Training, Colleges and Universities
is
responsible for post-secondary education in Ontario.
Accommodation of students with disabilities at the post-secondary
level is
not subject to the same detailed legislative structures as at the
primary
and secondary levels. Accommodation of students with disabilities
is
governed by the Charter of Rights and Freedoms, and by provincial
human
rights statutes. Post-secondary institutions have developed a wide
range of
delivery methods and structures in order to meet these obligations.
Almost
all post-secondary institutions appear to provide some specialized
facilities, policies, equipment or services for students with disabilities.
According to a study completed in 1999 by the Canadian Association
of
Disability Service Providers in Post-Secondary Education[13], 75%
of
post-secondary institutions have developed formal disability and
accommodation policies, covering such matters as admissions, alternative
academic accommodations, experts and advisory committees, service
accommodations, procedural considerations, and undue hardship. The
content
of such policies varies widely.
Larger institutions often have a specific unit responsible for providing
and administering services for students with disabilities. Smaller
institutions are more likely to have decentralized service models
for
students with disabilities. Some institutions have offices that coordinate
services, rather than directly administering them. Some institutions
dedicate full-time staff to serving students with disabilities, while
others rely largely on volunteers.[14]
Common forms of accommodation include academic accommodations[15],
provision of or training on adaptive technology[16], academic assistance
such as notetakers, and support services for students with learning
disabilities (such as assessment or advice on learning strategies).
According to the NEADS survey, two-thirds of responding students required
extended test-taking time as a form of accommodation, and approximately
half required other academic accommodations. Many students also required
adaptive technology, or drugs and medical supplies. Survey respondents
indicated difficulties in accessing adaptive technologies (generally
for
financial reasons) and academic accommodations.
As well, a number of institutions have undertaken initiatives to
improve
their physical accessibility, and the accessibility of their student
housing and programs.
Student organizations and access advisory committees are also important
features of the post-secondary structure for persons with disabilities,
particularly in terms of providing students with access to information
about services and programs, and in providing advocacy support.
Funding Structures
Prior to June 1997, Ontario students with disabilities were provided
with
support for their educational accommodation needs through the Vocational
Rehabilitation Act. Students made individual applications for funding
under
the Act, which funded the entire cost of the needed accommodation
through
direct transfer to the student.
Under the new system, students can apply for a Bursary for Students
with
Disabilities. The Bursary is available to students who are Canadian
citizens or permanent residents, are residents of Ontario, have applied
for
or a received a loan through the Ontario Student Assistance Program,
and
have extra education-related expenses resulting from a disability,
which
are not covered by another agency. The Bursary, which provides students
with up to $7,000 per year, assists with disability-related costs
for
students undertaking post-secondary studies. The Bursary is non-repayable,
and taxable. Accommodation costs in excess of $7,000 are the responsibility
of the educational institution in question. The Ministry of Training,
Colleges and Universities provides targeted grants to universities
and
colleges for meeting these accommodation needs. As well, students
may be
eligible for assistance with some expenses from Vocational Rehabilitative
Services, Workers' Compensation, or the Assistive Devices Program,
depending on their individual circumstances.
There is also a special financial assistance program for deaf, deafened
and
hard-of-hearing students attending American post-secondary institutions
for
the deaf.
The Ministry does not, however, provide targeted grants to private
vocational institutions. These institutions are not funded by the
Ministry
of Training, Colleges and Universities. However, they are required,
under
the Private Vocational Schools Act[17], to meet registration requirements
under that Act on an annual basis in order to operate legally. A
Superintendent of private vocational schools has the power to refuse
registration where there are concerns about an institution's financial
viability, where the course of study or method of training do not
provide
the necessary skills or knowledge, where the institution violates
the Act,
or where the conduct of the institution "affords grounds for
belief that
the applicant will not carry on the private vocational school in accordance
with the law and with integrity and honesty".
OHRC CASELOAD PROFILE
In the fiscal year 2000/2001, just over 41% of all complaints filed
with
the OHRC cited disability as one of the grounds. Of the 1,775 complaints
filed in that year, 732 referred to handicap. This is in keeping with
trends from recent years.
As is generally the case with complaints filed with the OHRC, most
disability related complaints dealt with employment issues. Only 133
of
these 732 complaints (18%) dealt with services. Services include health,
transportation, and other provincial and municipal services, including
education, as well as private sector services. In terms of the OHRC's
caseload, the absolute number of complaints related to education and
disability is likely relatively small.
However, a review of cases related to disability and education that
were
investigated and placed before the Commission for a decision under
section
36 of the Code during the last year revealed that a relatively high
proportion of these raised systemic issues. Issues include admissions
criteria for post-graduate studies, the application of suspension
and
expulsion policies to students with behavioural-related disabilities
(at
both the primary and post-secondary levels), the design of the provincial
report card, and the provision of academic accommodations at the
post-secondary level.
HUMAN RIGHTS ISSUES IN EDUCATION FOR PERSONS WITH DISABILITIES
What follows is a brief summary of human rights issues related to
education
for persons with disabilities that have come to the attention of the
OHRC.
This list is not intended to be exhaustive: rather, it is a starting
point
for discussion.
1. Access to Education
At its most basic, equal treatment in education for persons with
disabilities involves equal access to educational opportunities. The
Policy
and Guidelines on Disability and the Duty to Accommodate affirms the
duty
of education providers to take a proactive approach to disability
issues,
and to structure their programs and policies so as to be inclusive
and
accessible for persons with disabilities.
However, concerns have been raised regarding barriers to access to
education for persons with disabilities. For example, parents of children
with disabilities in the primary and secondary public school system
have
reported situations where their children are unable to start school
with
their peers at the beginning of the school year, or are able to attend
school only part-time because appropriate supports and accommodations
are
not available. In some cases, students have lost substantial school
time
because of disputes regarding the provision of appropriate accommodation.
As well, at all levels of education, there have been reports of private
schools and vocational colleges either refusing to accept students
with
disabilities, or asking students to waive their rights to accommodation
as
a precondition to entrance.
Where students have disabilities that are associated with behavioural
issues, rigid expulsion policies may result in inability to access
educational services.
Financial issues have been identified as barriers to access at the
post-secondary level. For example, the Bursary for Students with
Disabilities is available only to students who qualify for OSAP; however,
there are students who do not qualify for OSAP, but nonetheless have
substantial needs related to their disability which are financially
prohibitive for them. There are also situations where the Bursary
does not
fund the type of accommodation required, or is inadequate to fund
more
expensive forms of accommodation.
The trend towards online learning is also worth noting here. While
new
technology can provide tremendous opportunities for persons with some
forms
of disabilities, online programs that are not designed inclusively
can
exclude persons with disabilities.
What other barriers to education for persons with disabilities are
you
aware of?
Applying the principles in the Policy and Guidelines, how can these
barriers be addressed?
2. Disability and Other Forms of Discrimination
In Canada, as the understanding of human rights evolves, the focus
is
increasingly on a contextualized approach to discrimination. A contextual
approach recognizes that persons with disabilities may experience
discrimination on other grounds in addition to disability, such as
race
and/or gender. Discrimination may take place on more than one ground
simultaneously and these grounds may intersect thus producing new
or
different forms of discrimination.
In the context of education, students with disabilities may also
belong to
groups that have been discriminated against historically on grounds
other
than disability. For example, students with disabilities who are also
part
of racial minority groups may experience discrimination differently
than
other students with disabilities. Likewise, female students with
disabilities may experience discrimination differently than male students
with disabilities. It is therefore important to recognize and address
the
reality of discrimination as it is experienced by these individuals.
Can you provide examples in which students with disabilities are
affected
also by being members of other historically disadvantaged groups?
3. Negative Attitudes and Stereotypes
A great deal of discrimination faced by persons with disabilities
is
underpinned by social constructs of "normality", which reinforce
obstacles
to integration, rather than encourage ways to ensure full participation.
Discrimination against persons with disabilities may be based as much
on
perceptions, myths and stereotypes, as on the existence of actual,
functional limitations. This is referred to as "social handicapping".
In terms of education, concerns have been raised regarding negative
attitudes and stereotypes regarding persons with disabilities on the
part
of educators, administrators, and fellow students. These attitudes
can pose
a substantial barrier to persons with disabilities, as well as creating
in
themselves an unequal educational environment.
The CCSD study on children and youth with special needs reported
that
children with disabilities are less likely than other children to
feel that
other children like them, more likely to be bullied in school and
to report
that other children say mean things to them, less likely to enjoy
school
and report doing well in school, more likely to say that they feel
left out
in school, and less likely to report that they get along well with
their
teachers[18].
There are concerns that teachers are not being provided with adequate
training, information and in-class support for teaching children with
disabilities, and ensuring that they are integrated into mainstream
classrooms in a respectful and dignified manner. This impacts, not
only on
the quality of the educational services children with disabilities
receive,
but also on their ability to become fully integrated into the classroom.
At the post-secondary level, concerns have been raised regarding
training
and support programs, and awareness levels among instructors. In the
1999
NEADS survey, most post-secondary disability service providers rated
in-service training of instructors as fair, poor, or not available,
and
indicated difficulties in providing such training and the indifference
of
instructors as problems.
What best practices are you aware of for reducing negative attitudes,
stereotypes and harassment directed towards students with disabilities
in
the education system?
4. Labelling
Persons with disabilities are individuals first. Each person's needs
and
strengths are unique, and an accommodation solution that works for
one
person may not work for another. When accommodations for persons with
disabilities are being explored, the emphasis should be on assessing
and
accommodating each person's unique needs and circumstances, rather
than
resorting to preconceptions or blanket generalizations about persons
with a
particular disability.
Some have raised concerns that the accommodation process in place
in the
primary and secondary school system, and in particular the process
for
accessing ISA funding, encourages labelling of students, and a focus
on
labels and stereotypes for pre-determining accommodation needs, rather
than
assessing the individual needs and strengths of each student. At all
levels, it is important that the focus remains on the individual,
rather
than on the category of disability.
What examples exist of policies and procedures that avoid labels
for
students with disabilities?
5. Appropriate Accommodation
The OHRC's Policy and Guidelines on Disability and the Duty to Accommodate
specifies that an accommodation for a person with a disability will
be
considered appropriate if it respects the dignity of the individual
with a
disability, meets individual needs, best promotes integration and
full
participation, and ensures confidentiality. Accommodation will be
considered appropriate if it will "result in equal opportunity
to attain
the same level of performance, or to enjoy the same level of benefits
and
privileges enjoyed by others, or if it is proposed or adopted for
the
purpose of achieving equal opportunity, and meets the individual's
disability related needs".
The identification of the most appropriate accommodation in an educational
setting raises a number of issues. For example, at the primary and
secondary level, there is ongoing debate regarding decisions to place
students in specialized settings as opposed to placing them in mainstream
classrooms with supports.
At the post-secondary level, there are debates regarding academic
accommodations, such as curriculum modifications or changes to assessment
methodologies. The importance of maintaining the integrity and academic
standards of programs or courses has been stressed, at times in the
context
of "academic freedom".
Given the principles set out in the Policy and Guidelines, what specific
guidelines should inform the determination of the most appropriate
accommodation in an educational setting?
What tools could the OHRC provide to assist persons responsible for
accommodating students with disabilities, as well as those seeking
accommodation, to apply the principles for appropriate accommodation
set
out in the Policy and Guidelines in an educational setting?
6. Accommodation Process
The principles of respect for dignity, individualization, and integration
and full participation apply equally to the substance of an accommodation,
and to the accommodation process. At the heart of the accommodation
process
is the responsibility, shared by all parties, to engage in meaningful
dialogue about accommodation, and to seek out expert assistance as
needed.
The process for accommodation at the primary and secondary levels
is
largely governed by the Education Act and regulations, and is dominated
by
the IPRC process, and the IEP. The human rights standards outlined
above
apply to these processes.
At the post-secondary level, processes for accommodation vary widely.
There
is continuing discussion as to the most appropriate processes for
ensuring
accessible, integrative, dignified and efficient accommodation for
post-secondary students with disabilities.
What best practices are you aware of for accommodation policies and
procedures in an educational setting?
7. Roles and Responsibilities
All parties to the accommodation process share responsibility for
its
success, and have a duty to co-operatively engage in the process.
Each
party has rights, as well as responsibilities.
Given the multiplicity of parties involved in accommodation in the
educational sector - parents, students, educators, administrators,
experts,
government, support staff, and at times unions - the identification
of
roles and responsibilities during the accommodation process can be
complex.
This is particularly the case where students are young and/or unable
to
communicate, and therefore unable to advocate on their own behalf.
Based on the principles set out in the Policy and Guidelines, what
should
be the respective responsibilities of parents, students, educators,
experts, government and other parties for accommodation of students
with
disabilities?
8. Undue Hardship Standard
The undue hardship standard is set out in detail in the Policy and
Guidelines. The standard is a high one. Business inconvenience, third-party
preferences, impact on morale, and collective agreements are not relevant
factors in an assessment of undue hardship. The considerations set
out in
the Code are costs, outside sources of funding, and health and safety.
The
onus of proof lies on the person making the claim of undue hardship,
and
the evidence provided must be objective, real, direct, and, where
possible,
quantifiable.
The application of the undue hardship standard raises unique issues
in the
educational context. For example, given the often complex nature of
funding
for educational services, how are costs allocated and assessed? Which
parties have responsibility for the cost and the provision of accommodation
for students with disabilities? What does health and safety mean in
the
classroom setting?
What specific issues need to be addressed in applying the OHRC's
policies
and guidelines on undue hardship in an educational setting?
What mechanisms would you recommend be established to promote ongoing
dialogue on issues related to education, disability, and human rights?
Are there other issues related to the Ontario Human Rights Code,
disability, and education that you would like to raise?
CONSULTATION INFORMATION
The OHRC welcomes your comments on some or all of the questions raised
in
the consultation paper. We also welcome identification of additional
human
rights issues related to disability and education. Submissions should
focus
on issues that are within the OHRC's jurisdiction.
Submissions can be mailed, faxed or e-mailed to the OHRC, at the
following
address:
Ontario Human Rights Commission Education Consultation Policy and
Education
Branch 180 Dundas Street West, 8th Floor Toronto, Ontario M7A 2R9
Fax: (416) 314-4533
Your written submissions should be provided to the OHRC no later
than JULY
15, 2002.
Should you have any questions about the consultation process, you
may
contact the OHRC by telephone at (416) 314-4507, or 1-800-387-9000,
or by
TTY at (416) 314-6526 or 1-800-308-5561.
Information provided during the consultations is subject to the
requirements of the Freedom of Information and Protection of Privacy
Act.
The information obtained during the consultation may form part of
a report
that may be made public.
END NOTES
[1] Entry into force September 2, 1990, ratified by Canada December
13,
1991.
[2] Proclaimed by the General Assembly, Resolution 3447 (XXX) of
December
9, 1975.
[3] Ontario Human Rights Commission, Policy and Guidelines on Disability
and the Duty to Accommodate (March 2001), available online at
http://www.ohrc.on.ca
[4] Canadian Council on Social Development, Children and Youth with
Special
Needs, (November 2001), available online at http://www.ccsd.ca.
[5] This is the term used by Statistics Canada.
[6] Roeher Institute, Count Us In: A Demographic Overview of Childhood
and
Disability in Canada (2000).
[7] R.S.O. 1990, c. E.2
[8] Identification and Placement of Exceptional Pupils, O. Reg. 181/98.
[9] Office of the Provincial Auditor General of the Province of Ontario,
2001 Annual Report, Section 3.06, "Special Education Grants to
School
Boards".
[10] Canadian Council on Social Development, Disability Information
Sheet
Number 2, (2001), available online at http://www.ccsd.ca.
[11] Canadian Association of Disability Service Providers in Postsecondary
Education, Towards Developing Professional Standards of Service: A
Report
on Support for Students with Disabilities in Postsecondary Education
in
Canada (1999).
[12] National Association of Disabled Students, Working Towards a
Coordinated National Approach to Services, Accommodations and Policies
for
Post-Secondary Students with Disabilities: Ensuring Access to Higher
Education and Career Training (July, 1999).
[13] See Canadian Association of Disability Service Providers, supra,
note 11.
[14] See National Association of Disabled Students, supra, note12.
[15] Examples of academic accommodation include extended test times,
extended time limits for course completion, private rooms for test
writing,
modifications to attendance requirements, and provision of alternative
formats for examinations or course requirements (e.g., oral examination
substituted for essay).
[16] Such as, for example, voice activation software, or large print
computers.
[17] Private Vocational Schools Act, R.S.O. 1990, c. P.26, s. 5.
[18] Canadian Council on Social Development, supra, note 4.
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