In September 2019, the Ontario Human Rights Tribunal dismissed a complaint alleging that a school board had discriminated against a Grade 2 student with Autism Spectrum Disorder (ASD) and a learning disability.
Shortly after starting school in a French Immersion program a behaviour plan was implemented for the young student, which appeared adequate until Grade 2.
Unfortunately, the behavioural problems escalated, resulting in the school developing several strategies, including assigning two educational assistants. Things deteriorated from there; in addition to eloping from the classroom, he repeatedly threatened and attacked staff and other students, resulting in multiple injuries. In October 2018, he repeatedly hit an educational assistant ("EA"), giving her a concussion and resulting in her being off work for an extended period of time, following which some staff invoked their right to refuse unsafe work and other parents complained about safety risk to their children.
The student was suspended pending investigation of the incident with the EA and subsequently expelled from the French Immersion school only, which decision was upheld following an internal review process on the basis that his continued presence at the school created an “unacceptable safety risk".
The school board developed what they referred to as a “Loop of School” plan, involving a gradual re-introduction to the classroom. It provided for the student to be moved from the French Immersion school to his neighbourhood school, but not only was the mother unwilling to have her son change schools*, she would not accept any plan that did not include the provision of “Tier 3 ABA,” (ABA provided in a clinical setting), arguing this was necessary to allow her son to access education.
The Human Rights Tribunal found that the family had proven prima facie** discrimination (as the student no loner had meaningful access to education owing to his increasing dysregulation), but rejected the argument that that his dysregulation was caused by the school’s failure to provide ABA in the classroom, given that meaningful access to education had been provided during the first part of Grade 2 and during a period of home instruction immediately following the suspension without implementing an ABA program.
Although school boards are required to offer students with ASD special education programs, including programs using ABA methods “where appropriate,” the Tribunal didn't accept that “Tier 3 ABA” services in a regular classroom setting were necessary for the student to access education.
It also found that that, prior to the student’s expulsion, the Board had accommodated him to the point of "undue hardship** and despite taking various steps to deal with his increasing dysregulation, the student ultimately posed an unacceptable safety risk to staff, students and himself.
Gradual re-introduction to school was a necessary and reasonable component of the Board's plan and although "reasonable programming alternatives" (such as home instruction or a special education class at his neighbourhood school) had been offered to the student during the expulsion, these had been rejected by the mother.
Turning to the conduct of the student’s mother, the Tribunal stated:
In rejecting the Loop of School plan, Ms. Kahn failed in her obligation to co-operate in the accommodation process. In so finding, I note that parents do not have the right to dictate the accommodations which their children will be provided with to access education. While parents do have the right to provide input as part of the accommodation process – which Ms. Kahn did in this case – they must accept reasonable accommodations offered by the school board.Thus, the Tribunal found that “the applicant failed to engage in the accommodation process in any meaningful way…[and] failed to accept reasonable accommodations offered by the respondent”, resulting in the application being dismissed.
Although largely based on its specific facts, the decision does provide some helpful guidance on the types of accommodations that school boards should be expected to provide to ensure "meaningful access" to education and clearly reminds us that a student seeking accommodation is entitled to "reasonable" – as opposed to "preferred" – accommodations.
So, what do you think? Did the Ontario Human Rights Tribunal "get it right"?
* Apparently, there was a little more going on behind the scenes, as the decision indicates that the family also wanted "childcare expenses" to be covered by the school board.
** You can find an explanation of both these terms in a previous post, "The Law on Human Rights and Employment in Nova Scotia: Part II" (just follow the links).
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The decision is also interesting for a couple of additional issues discussed (whether the Human Rights adjudicator was "biased" due to his previous practice providing legal services to school boards in the areas of special education” and the effect of specific negative interactions between the mother and school personnel); however, these will be discussed in a separate post.
