"So many dreams at first seem impossible. And then they seem improbable. And then when we summon the will, they soon become inevitable."
~ Christopher Reeve

Saturday, November 10, 2012

Breaking News

"Adequate special education, therefore, is not a dispensable luxury."

The Supreme Court of Canada (SCC) released its much-awaited decision yesterday in Moore v. BC (the LD case out of BC) and I am pleased to report that the parents were substantially successful. "Substantially" because although the finding of discrimination was upheld against the District (aka the School Bd), it was not upheld against the Province.

But let's take a look at the finding against the District first.

With regard to the issue of whether "special education" is a service that is “customarily available to the public" (and thus protected under the BC human rights legislation) the Court found that "special education is not the service, it is the means by which those students get meaningful access to the general education services available to all students" (emphasis added).

To define the service only as ‘special education’ would relieve both the Province and the District of their duty to ensure that no student is excluded from the benefit of the education system by virtue of their disability and risked descending into the kind of “separate but equal” approach that was so famously discarded in the racial integration case of Brown v. Board of Education of Topeka. Further, the court noted that, much as I stated in the previous blawg post, to so find would mean that the District could cut all special needs programs and be immune from a claim of discrimination.

As to what constitutes discrimination in this context, the Court found that discrimination will exist if the evidence demonstrates that the government failed to deliver the mandate and objectives of public education such that a given student is denied meaningful access to the service based on a protected ground.

In this case, prima facie discrimination was found on the basis of the insufficient intensive remediation provided for Jeffrey’s learning disability, which was necessary for him to access the education he was entitled to. It was the combination of the clear recognition of Jeffrey's need for intensive remediation in order to have meaningful access to education, the closing of the intensive program and the fact that the Jeffrey's parents were told that these services could not otherwise be provided by the District that justified the finding that the failure of the District to meet Jeffrey’s educational needs constituted discrimination.

Although the District attempted to argue that the decision to end the program was justified for financial reasons (and just how often have we heard that one in one form or another?), the SCC found that although the fact that the District was facing serious financial constraints was a relevant consideration, accommodation was not a question of “mere efficiency” and disproportionate cuts had been made to special needs programs, while some discretionary programs had been retained, despite their similar cost.

In that regard, the Court agreed with the dissenting judgment in the Court of Appeal, that “without undermining the educational value of the [other program], such specialized and discretionary initiatives cannot be compared with the accommodations necessary in order to make the core curriculum accessible to severely learning disabled students”.

More significantly, the District had not undertaken any assessment, financial or otherwise, of what alternatives were or could be reasonably available to accommodate special needs students if the intensive program was ended.
The failure to consider financial alternatives completely undermines what is, in essence, the District’s argument, namely that it was justified in providing no meaningful access to an education for Jeffrey because it had no economic choice. In order to decide that it had no other choice, it had at least to consider what those other choices were.
[para. 52]
Significantly, no discrimination was found on the part of the Province even though the District’s budgetary crisis was created, at least in part, by the Province’s funding shortfalls as the Tribunal had found that it was the District that had failed to properly consider the consequences of closing the intensive program or how to accommodate the affected students.

In the Court's opinion, the evidence about the provincial funding regime was too remote to demonstrate discrimination against Jeffery and there was no particular reason to think that those funding mechanisms could not be retained in some form while still ensuring that SLD students received adequate support. It was found to be entirely legitimate for the Province to choose a block funding mechanism in order to ensure that districts do not have an "incentive" to over-report SLD students, so long as it also complies with its human rights obligations.

I highlight this as one of the possible areas of concern around this decision. Don't get me wrong, as noted, courts far too rarely intervene in cases involving educational policy (deferring to the schools' so-called "experts" is all too common in this area) so this decision is HUGE, but, unfortunately, it doesn't appear like it will yield much ammunition when it comes to the actual funding of special education services.

The source of all public school funding is, of course, the provincial government and the SCC clearly states that "block funding" of special education services is acceptable. Although we may now have an argument to stop any erosion of such ear-marked block funding, the sad fact is we all know that special ed is woefully under-funded and school boards often significantly top up the provincially-allocated special ed funding.

Although not a blanket prohibition on the cutting of special ed services at the Board level, where the decision is extremely valuable is in undercutting any attempt by school boards to take out their legitimate budget woes on special ed programming, at least not unless unless
  • any cuts made to special ed programs are proportionate with cuts in other areas;
  • other discretionary programs are not saved at the expense of special ed programming; and
  • serious consideration has been given to the consequences of cuts to such programming and how students requiring the programs and services will be accommodated.
Commentary is, of course, appearing fast and furious around this decision. And while some of it is, indeed, upsetting, opinions of editorial boards aside, this decision should put lie to the (never legitimate) argument that once you let special needs students through the doors, their programming is as susceptible to cuts as any other.

As an aside, I offer you my absolute favourite line from this decision and one which will, no doubt, be quoted ad nauseum by future disability advocates:
Adequate special education, therefore, is not a dispensable luxury. For those with severe learning disabilities, it is the ramp that provides access to the statutory commitment to education made to all children ...

4 comments:

Anonymous said...

Do you think that the fact that some (probably all) of our school boards spend more than their provincially allocated amounts on special ed will have implications on the interpretation of the ruling in this province? I know nothing about the law, but as I read more about this decision, I'm wondering more about the boards being able to cut services by saying that they are providing more than the province is funding.

MMC said...

I know for a fact that Boards in NS spend more on special ed than the provincial allotment and I expect the situation is likely the same in other provinces as well.

But if I am understanding your concern correctly - if you are concerned that Bds will be able to cut special ed services because they are spending mroe than the provincial allotment, the answer is a definte No. This is exactly what the Moore decision spoke to when the SCC said that the fact that the province had cut funding was NOT an excuse for the school bd to cut special ed services. In fact to do so (at least in the way the Board had - without deciding how they would serve the students who needed that service and at the same time saving another non-special ed program at approximately the same cost as the LD program - was discrimination. So it is now clear - a province failing to provide sufficient funding for special ed is NOT an acceptable excuse for a Board to cut services.

However, the one place where the decision is not helpful to students with disabilities is that the court did not find the Province's cuts, themselves, to be discriminatory, which, unfortunately leaves a situtation where Boards may have to take the entire hit from the Province's failure ot provide proper funding. The court didn't say the Province could never be found liable, just that the evidence was too remote in this case. Unfortunately, it failed to state what kind of evidence it would have found persuasive against the Province.

But if I misunderstood what you were saying, please try again.

Anonymous said...

Thanks so much! That was what I was asking. Maybe this is the reason our board has been referring to cuts in services as new "models" of service. For example cutting aides is not said to be for budgetary concerns but rather a move toward more independence for students, services that are cut said to be moving to a new model of delivery. I guess the boards have been mindful of the possibility that the SC would rule the way they have in all recent communications about "new models of service delivery"! They are no longer using budgetary concerns as reasons for special ed program/service cuts.

Anonymous said...

Thanks so much! That was what I was asking. Maybe this is the reason our board has been referring to cuts in services as new "models" of service. For example cutting aides is not said to be for budgetary concerns but rather a move toward more independence for students, services that are cut said to be moving to a new model of delivery. I guess the boards have been mindful of the possibility that the SC would rule the way they have in all recent communications about "new models of service delivery"! They are no longer using budgetary concerns as reasons for special ed program/service cuts.