Copy of Copy of Draftmoed Submission

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[1]

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.

1. 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. Ontario’s Human Rights Code[2] 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.[3]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 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.[4]

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.[5]

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”.[6]

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”.[7]

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”.[8] 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.[9] 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.[10] 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 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”)[11] 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.[12] 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.[13] 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 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.[14] 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;

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.[15]

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”.[16]

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.[17] 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.[18]

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 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. 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. 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 self-advocate.

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 providers to consult, and section 6 of Ontario Regulation 181/98 pursuant to the Education Act.[19]

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.