Human Rights Code
Article: What The Human Rights Code Guarantees Your Child At School
Rights commission says services must meet individual needs, promote inclusion, and protect dignity.
In November the Ontario Human Rights Commission released Guidelines on Accessible Education – its interpretation of Ontario Human Rights Code provisions relating to discrimination against students because of disability. Connections asked commission spokeswoman Afroze Edwards to discuss how Guidelines may benefit Ontario parents seeking appropriate school accommodations for their children.
Q. How does the Ontario Human Rights Code guarantee the accommodation of students?
A. Section 1 of the code guarantees the right to equal treatment in services, without discrimination on the ground of disability. Once a disability has been identified, education providers have a duty to accommodate the needs of students with disabilities in order to allow them to access education services equally, unless to do so would cause undue hardship.
Q. How does the code define appropriate accommodation?
A. It must involve three factors: dignity, individualization and inclusion. First, services need to be provided in a manner that is respectful of the student’s dignity and doesn’t marginalize or stigmatize the student. For example, if a student with a disability has to enter the school at the back of the building because the front entrance isn’t accessible, that doesn’t respect the dignity of the person. Second, the accommodations must meet the unique needs of each student. There’s no set formula based on a category of disability and blanket approaches to accommodation aren’t acceptable. Each student’s individual needs must be assessed and met. Third, before providing separate or specialized services, educators must make efforts to build or adapt their services to accommodate students with disabilities in a way that promotes their full participation. No student should be excluded or singled out.
Q. How does the code assess undue hardship?
A. In terms of cost, the standard is very high. What the courts have said is that we’ve got to be careful that we do not put too low a value on accommodating students with disabilities. The onus is on the education provider to show that the cost would be so high as to alter the essential nature of the institution or substantially affect its viability. Detailed financial documentation and evidence, including whether they’ve looked at their overall budget to determine if the money could come from another area, must be shown. Before claiming undue hardship, organizations have to consider using accommodation funds that are available in the public sector, as well as government grants or loans. Health and safety factors also need to be considered.
Q. How can the code ensure accommodation of children whose disabilities cross over a number of designations for exceptionality under the funding process?
A. Regardless of what structure is used for funding programs, under the code the education ministry has a duty to accommodate the needs of students with disabilities. The code prevails over the Education Act. Again, each student’s individual needs must be assessed and a ‘one approach fits all’ is not acceptable. One thing I should emphasize is that accommodation is a process. It’s not “Here it is, hopefully this works and now we’re done.” It’s part of a continuum. If the education provider can’t provide the full accommodation at one point in time, it doesn’t mean they don’t provide any accommodation. They need to implement interim or “next best” solutions.
Q. How can the code protect children whose disabilities are associated with behaviours that may lead to their suspension?
A. We heard in our consultation about two student groups that are being adversely affected by the application of the Safe Schools Act: those with disabilities and those from racialized communities. Parents of students with Tourette’s syndrome talked about how their children had been disciplined or suspended because of behaviour that was a manifestation of their disability. Last year we made a submission to the Toronto District School Board and outlined our concern about the possible discriminatory effect the application of the Safe Schools Act was having on students with disabilities. Parents may wish to print the submission and point out to educators that the concerns we’ve raised apply to their children. (Go to www.ohrc.on.ca, click on news releases and refer to May 14).
Q. How does the code protect students who aren’t receiving services they need because of funding delays?
A. Accommodations must be provided in a timely manner. Unreasonable delays have the potential to impede a student’s ability to access the curriculum and may be found to constitute a breach of the code. Parents who believe that time delays have resulted in discrimination may call the commission about filing a complaint.
Q. Does the duty to accommodate apply to all school board programs, including alternative schools or French immersion programs, which don’t typically offer special education support?
A. The Ontario Human Rights Code applies to all educational services that are offered to the public, including alternative schools and French immersion programs. The right to equal treatment also applies to public and private preschools, elementary and secondary schools, colleges and universities, hospital schools, care and treatment programs, provincial schools, separate schools and French language schools.
Q. Where can parents get practical advice on the code?
A. They can call the commission’s information line at (416) 326-9511 or (800) 387-9080 and explain their concerns. To file a complaint, parents need to submit a written complaint on behalf of the student. There are no associated costs.
For more valuable information, visit www.ohrc.on.ca.
This article is reprinted with permission from the summer 2005 issue of “Bloom” (formerlyConnections, a practical guide to parenting children with disabilities) produced by Bloorview Kids Rehab, renamed in 2010 to Holland Bloorview Kids Rehab, at www.hollandbloorview.ca
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June 20, 2005