Canada's Record on the UN Convention on the Rights of Persons with Disabilities

Last month, Canada hosted the United Nations Special Rapporteur [an independent expert who reports to the United Nations Human Rights Council and the General Assembly, and advises on progress, opportunities and challenges encountered in the implementation of the rights of persons with disabilities worldwide] on the rights of persons with disabilities. And she had lots of interest to say.

I'm going to highlight a few areas in this post, those of particular interest to me. However I strongly encourage you to read the entire document. Yes, it's lengthy but definitely worth the time.

GENERAL CONSIDERATIONS
Nevertheless during my visit I have noticed that discussions about the rights of persons with disabilities are still framed in terms of social assistance, rather than from a human rights-based approach. ... Therefore, more proactive governmental responses are needed to ensure systemic change and take away from individuals the burden of initiating lengthy and onerous legal procedures to achieve the recognition and enjoyment of their rights.

EDUCATION
I also noted a disconnection between the State’s commitment to inclusion in legislation and policies, and everyday implementation in practice, reflected in long waiting time and lack of services for students with disabilities and their families, putting them under significant emotional and financial pressure. ...

ACCESS TO JUSTICE
I would like to remind the federal, provincial and territorial governments that the obligation to provide procedural accommodation to persons with disabilities in all legal proceeding, as established in article 13 of the CRPD, is distinct from the obligation to provide reasonable accommodation, as the first is not subjected to the test of undue hardship.

In addition, I am very concerned about the overrepresentation of persons with disabilities, particularly those belonging to indigenous or other minority communities, in both prisons and the juvenile justice system. I have also received alarming information that persons with psychosocial disabilities are diverted to mental health courts for minor offences where they are subjected to higher penalties and stricter regimes.

LIVING INDEPENDENTLY in the COMMUNITY
I am extremely concerned about the lack of comprehensive responses to guarantee the access of persons with disabilities to the support they need to live independently in their communities. Whereas legislation, services and programmes vary across provinces and territories, generally access to support is not considered as a right, but rather as a social assistance programme dependent on the availability of services.

... persons with disabilities have limited access to different forms of support (including income support, home support, and respite centers), experiencing long waiting time up to several years. While some pilot projects have shown their potential to transform service provision (e.g., the initiatives to provide personalized direct funding), the overall identification, systematization and scaling-up of such initiatives remain a challenge.

RIGHT to LIFE
I am extremely concerned about the implementation of the legislation on medical assistance in dying from a disability perspective.... I have further received worrisome claims about persons with disabilities in institutions being pressured to seek medical assistance in dying, and practitioners not formally reporting cases involving persons with disabilities. I urge the federal government to investigate these complaints and put into place adequate safeguards to ensure that persons with disabilities do not request assistive dying simply because of the absence of community-based alternatives and palliative care.

Now go read the rest. Trust me.

Round and Round We Go

Here we go again, inclusion is back in the news. Or did it ever leave?

Frankly, I don't know about you, but I am beginning to have been finding it a little old for quite a while now.

Here's the thing folks, what we all (parent, teachers, everyone) need to remember.

Talking about "inclusion" as if the option of getting rid of it is even .. a possibility ... is ridiculous. You can't just sweep it out the door like yesterday's dirt and say "I know, let's try something new".

Remember this quote from Karen Casey back in December?

I don’t think we want to talk about caps for special needs students,” said Casey. “What we need to make sure is that we have the appropriate programming in the right environment for all students.“

As I said on the website, it amazes me how successive Ministers of Education always seem to be able to find the right words and yet, just as consistently, seem unable to implement any meaningful changes to support inclusion. Be that as it may, any whisper of inclusion being an issue for anyone is enough to SCARE many parents. In all honesty and even though I know better  - myself included, at least in my initial from the gut reaction.

So, here it is - what you and I need to remember and preach to others. Sing it from the rooftops.

It goes something like this.

INCLUSION IS NOT A PROGRAM

BUT MUCH MORE IMPORTANTLY, INCLUSION IS NOT AN OPTION.

We definitely need more resources to have inclusion work properly for everyone - our children, their classmates and their teachers. No one is going to argue with that. And yet, it's not always a question of resources, is it? Sometimes what is needed is as simple as a good solid dose of common sense.

Between my two children with special needs, I have dealt with the public school system for 17 years, seen a bit during that time.

The balancing of what’s best for every individual student with special needs will, of course, vary (and I think this is where the rub will often lie), but the entire concept of inclusion is legally protected by (from highest to lowest):

1. the Canadian Charter of Rights and Freedoms [sec. 15]
2. the Nova Scotia Human Rights Act [ss. 4 & 5]; and
3. the Nova Scotia Education Act*

You can read more about the interplay between those documents on a practical level here.

For the average parent, however, outside the IPP appeal process, the best bang for your buck can probably found at the provincial human rights level. While notoriously slow, human rights complaints are far from useless - in fact, we have seen some most excellent results from such complaints in the past.

So let them say what they will: Inclusion it not a program.

Inclusion is not a choice.

Inclusion is the law - from the highest levels of the land.

In my mind, the ONLY issue we should be dealing with is exactly how we will define the term "inclusion" for each child - I doubt there will ever any one-size-fits-all solution for students with special needs or that we could ever agree on one.

Groundbreaking Ontario Human Rights Special Education Decision

Very interesting news here:

For what appears to be the first time, a Human Rights Tribunal has applied the principles set out by the Supreme Court of Canada (SCC) in the recent human rights/special education case of  Moore v. British Columbia (Education) 2012 SCC 61 (Moore). You can find a discussion of the SCC decision here.

The mother in RB v Keewatin-Patricia District School Board approached the Ontario Human Rights Tribunal following a series of incidents and failures to appropriately accommodate her child, who had been diagnosed with Pervasive Developmental Delay Not Otherwise Specified (“PDD NOS”). These incidents had repeatedly been raised by the parent and escalated to the School Board level without any resolution.

Starting in Kindergarten, the child had been provided with an IEP (aka IPP) and Educational Assistant (EA) support. However, his EA support was cut quite significantly in Grade 2, despite the parent's objections. There were also allegations that the child's EA was being inappropriately forceful with him. Issues continued throughout Grade 3, including segregation in and outside of the classroom and teasing and bullying by other students. Not surprisingly, behaviour issues intensified.

Eventually the child was "excluded" (presumably suspended) from school by the Principal for inappropriate behaviour, including swearing, using profanity, spitting, yelling, cutting a child’s sweater, stomping on a child’s leg, throwing material and being generally non-compliant. The parent was advised that he could not return to school until a psychological assessment was completed by the Board's school psychologist and the Board was confident that his return would not compromise his or other students' physical and mental well-being.

During this time, he was provided with instruction from an itinerant teacher three hours per week. The parent supplemented this instruction and due to her good rapport with the itinerant teacher, the child made significant academic gains, going from reading at level 2 when he was "excluded" to level 7 four months later.

But in an interesting twist, not only had the child been *excluded* from school for several months in Grade 3, but the mother had also withdrawn him from school the previous year for a period of time. Get the picture?

I would like to say that such fact situations are rare. Sadly, you and I both know they aren't. In fact, I can think of three very similar situations right here in Nova Scotia, without even giving the matter much thought. The difference, sadly for us in Nova Scotia, is in how the local situations ended.

At any rate, the Ontario Human Rights Tribunal found several failures to accommodate the student, including

Back By Popular Demand

Okay, maybe "demand" isn't quite the word, but I can tell you it sure was popular! And since it is that time of the year again...

Oh yeah, I decided to be extra nice today -you don't even have to click on the link back to the original post.

And yes - yes,I did check all the links and there are still valid. But if anyone knows of any other relevant document that I missed, please include the link in the comments.

Happy Reading

One Stop Shopping

Back to school. Ugh.
Back to school shopping. Again. Ugh.

Although, personally, I would take the shopping any day over actually having to send my kids back and start yet another year (this will be year 15 for my oldest) of "advocacy".

But do not despair. Nice person that I am, I have put together a list of ammunition documents you really should be familiar with as we start another school year.

I've tried to bring some order to the chaos by organizing them by topic but ... well, really, you wouldn't want me to take all the fun away and make it too easy, would you? Just think of it as digging through the bins at Frenchy's ... you never know when you will find a great bargain that fits you just right!

Special Ed in General

Special Education Policy Manual aka "The Bible" (2008)  -That's right, this document should be your Bible for just about any issue you might face with your school, your Board or the Department.

Life Skills: Supporting Student Success (2009) - A little-known document that can be a life-saver when your school tells you that they're very sorry but your child MUST take all these academic courses to get the credits necessary to graduate. It's not their fault; blame the Department.

OR you could just pass over this document, which sets out exactly how "life skill" credits can be and are recognized. Look at that ... a How To Guide for your school!

Increasing Learning Success (2008) - Although written more or less as a how-to guide for reorganizing high school to keep typical students engaged, there are a fair number of ideas discussed that could be very helpful for students with special needs.

Program Planning Process: A Guide for Parents (2006) - This document basically pulls out (and slightly expands upon) the portion of the Special Education Policy Manual (see above) dealing with the program planning process.

"Just how do I go about getting my child an IPP?", you ask. Look no further...
Supporting Student Success: Resource Programming and Services (2006) - Written to provide direction to school boards on the role of resource teachers and their expected competencies and to assist in the development of related policy and procedures, it is also intended to serve as a framework for professional development for resource teachers, classroom teacher and school administrators regarding the resource role in the program planning process. 

In other words, find out just how Resource is suppose to work.

Respect for Diversity: A Planning Resource (2007) - This resource came out of the Minister's Response to Addressing Bullying in Nova Scotian Schools: A Student's Perspective in 2003. (The more things change ... no?)  It's intended to be a resource for students to use to support the advancement and promotion of diversity ... meaning it's to be used a resource to assist in the planning and delivery of a school-wide Respect for Diversity Day. Never heard of such a thing? Don't feel bad ... neither have I!

It just might just be worth checking out, however. Challenge your school and see if they're up to holding their very own (and chances are, very first) Respect for Diversity Day.

Do. Not. Limit. Me.

Wow, what a great video! You tell them, Megan.



So what say you? Let's distribute this far and wide.

Share it on your social networks. Share it with your friends. Show it to your children.

But, most important of all ...

Do. Not. Limit.

Anyone.

H/T to Ashley's Mom at Pipecleaner Dreams

Cross-posted at Free Falling

A Rose By Any Other Name ...

I must say that I find it amazing how closely this list of changes to disciplinary policies that Mississippi schools have agreed to due to "discriminatory" practices against black students mirror exactly the changes that need to be made to accommodate students with disabilities.

Leaving me to wonder ... must we paint our children's skin a different colour in order to have their constitutionally-protected rights recognized and respected?

Failing to 'Educate Peter"

I came across this video in a blog post entitled "Is Full Inclusion a Good Idea?".

And after watching the video, I completely understand why they felt the need to ask the question. Go ahead and watch - I found it both fascinating and appalling.



So tell me, please, how can anyone, for even one minute, suggest that this is "inclusion"?

Where was Peter's aide? They didn't really expect one teacher to handle him and the rest of the class, did they? Didn't he have an IEP (IPP)? A behavioral plan perhaps? Why where there so little consequences attached to his behavior?

I was shocked to see Peter get away with kicking the other boy in the face. And as the parent of a mentally challenged child, I would be mad as hell to have seen her "educated" in this manner. You and I know that they weren't doing Peter any favors. He needed to be taught appropriate behavior and that actions have consequences.

That they put the other students and his teacher through that was unbelievable. That they put Peter through that was unforgivable.

And how about teaching him that the way we interact with Dad (for example) is not the way we are to interact with other kids (the hug and kiss with the apology)? After watching the end of the video, I totally got why Peter would jump on the backs of the other students - it was a game he played with Dad.

I suppose it might be argued that at least some good ultimately came from their methods based on his behavior four months later, but ... really??

Perhaps we should spread this video around as an example of how NOT to educate our children.

"A Discussion and Consideration of How to Accommodate the [Student's] Disability-Related Needs"

You might recall that a few years ago, we looked at the topic of human rights in the workplace. But although we've certainly touched on the concept of human rights in education here and there (including in more depth rather recently), given that there are quite a few parents out there who are very anxious to bring forward human rights complaints on behalf of students with learning disabilities, it might be useful to look at a few more such cases through the lens of actual complaints made under human rights legislation.

To that end, let's dissect a relatively recent case (April, 2012) of two students who alleged they were discriminated against by their school's failure to properly accommodate them.

In D.S. v. London District Catholic School Board, the Ontario Human Rights Tribunal dealt with two complaints, both alleging that the London District Catholic School Board had failed to accommodate students with learning disabilities.

The first student had been diagnosed with ADHD and a mild visual-spatial learning disability. After attending school in Grades 1 and 2, he was home-schooled for a while and then returned to school on a half-day schedule in Grade 5. Several issues had arisen over the course of the school year, including a disagreement regarding when he should start attending school full-time, the level of support he would receive from the Student Program Support Teacher (especially the amount of withdrawal assistance he would receive) and when and how the school would implement certain recommendations of a private psychologist.

The family was unsuccessful, with the Tribunal finding that the Board had provided proper accommodation for the student's needs as they were known at the time, noting that there was no expert evidence suggesting that the student required a half-day schedule in order to be successful and no specific evidence as to the amount of assistance or withdrawal assistance that he should receive. The Tribunal also found that the Board had implemented the psychologist’s recommendations, albeit not exactly in the form that the parents would have preferred.

Of note, the Tribunal went on to consider the procedure that school boards must follow to in order to meet their duty to accommodate under the Human Rights Code. In this regard, the Tribunal found that compliance with the procedural aspect of the duty to accommodate does not require a Board to provide a student with everything requested. Rather, it requires that there be discussion and consideration of how to accommodate the person’s disability-related needs. In this case, the extensive discussions between the Board, parents and other professionals throughout the school year were found sufficient to fulfill the Board’s procedural obligations. [1]

The parents of the second student, who had been diagnosed with ADHD and a communications learning disability, alleged that his teachers had consistently failed to accommodate his needs, which required “chunking” (breaking down a task into smaller component parts), using “mind maps” (an aid to organize thoughts for writing), and addressing other organization issues. They also alleged that the Board had failed to provide him with adaptive technology in a timely manner.

As in the first case, the Tribunal found that the Board had met its duty to accommodate. Contrary to the allegations, the teacher had went “above and beyond what is required of a teacher to provide additional support and assistance" to the student after school hours. Although there had been a six-month delay in trialing software that would address the student's writing issues, the Tribunal found that during that time, the teacher had provided the substance of the accommodation through a non-technological process.

Importantly, the Tribunal noted that although “more” could always be done to assist a student with a learning disability, whether more could have been done is not the appropriate question in cases regarding the duty to accommodate a student’s disability under the Code. Instead, the Tribunal must ask whether there is evidence that the student has specific disability-related needs requiring accommodation, and whether the school board failed to provide accommodation sufficient to meet those needs.

This decision confirmed one of the Tribunal's previous decisions to the effect that a school’s failure to meet parents’ expectations is not synonymous with a breach of the Code. Schools and school boards have a duty to engage in discussion with the parties involved and consider how to accommodate the student’s disability-related needs but there is no requirement that a school board agree to implement all of the accommodations that a student’s parents may request. 

Further, the Code does not require a school board to implement accommodations that match the recommendations in an IEP (Individual Education Plan) or of a specialist precisely. As similar accommodation can sometimes be provided by a teacher or through the use of adaptive technology, as long as the substance of the necessary accommodation is provided, the school board will have met its duty to accommodate.

Take away points for all the would-be human rights activists out there:

• a school’s failure to meet parents’ expectations is not synonymous with a breach of human rights legislation;
• compliance with human rights legislation appears to require only "a discussion and consideration" of how to accommodate the student’s disability-related needs;
• a school board is not required to implement accommodations that precisely match the recommendations in an IEP or of a specialist
• as long as the substance of the necessary accommodation is provided, the school board will have met its duty to accommodate; and
• the importance of expert evidence setting out precisely what the particular student's "disability-related" needs are cannot be overstated

It should be noted, of course, that this is a decision of the Ontario Human Rights Tribunal and not the Nova Scotia Human Rights Tribunal. Although I believe I recall a couple of cases out of New Brunswick quite a few years ago, I am not aware of any such decisions from the Nova Scotia Tribunal.

Of course,the more jaded among us some might say that is because these types of cases have never been allowed to make it to a Tribunal in this Province. [2]


[1] It is amazing how closely the facts of this case parallel that of a Nova Scotia case from quite a few years back. When that situation was brought to the attention of the NS Human Rights Commission, the parents were shut down on the basis of a Commission policy providing that no claims of discrimination in connection with a student would be considered unless and until all avenues of appeal had been exhausted under the Education Act. Whether this policy is still in existence I cannot say; however, I was recently advised by a Commission employee that she was not familiar with any such policy and a review of the Commission's policies currently available online show no such policy.

[2] Pursuant to sec. 29(4) of Nova Scotia's Human Rights Act, the Commission may dismiss a complaint at anytime in various circumstances, including if the complaint is considered without merit, raises no significant issues of discrimination or there is no reasonable likelihood that an investigation will reveal a contravention of the Act.

A Tale of Three Lawsuits

Some of you might recall our discussion back in 2010 of as to exactly what duty schools and school boards have to keep our children (be they typical or challenged in some manner) safe during the school day.

In examining that issue we noted that the duty to keep students safe essentially comes from two difference sources; the Education Act and the duty of care at common law (which simply means judge-based law that is not found in legislation).

This means that in addition to the duty under the Education Act to take all reasonable steps necessary to create and maintain an orderly and safe learning environment and "attend to the health, safety and comfort of students", at common law, teachers and other educators are said to stand "in loco parentis" - meaning that they "stand in the place of parents". Thus, the duty imposed on educators is that of a "reasonably careful or prudent parent in the circumstances", a higher standard of care from normal negligence cases involving adult defendants -  the educator must not just act as a reasonable person but as a "reasonably careful or prudent parent:".

Expanding a bit on our previous discussion, today I came across an interesting article written by an American "education expert" on this very topic. And while you might question the relevance of something written from the American perspective, the fact is that the common law duty applicable in the US is very similar (if not identical) to that in Nova Scotia. The reason being that although the legislation is often very different in the two countries, the US inherited its common law from Britain, just as we did.

In any event, the article examines the exact same legal issues we previously discussed (educators standing in loco parentis, the standard of the reasonable and prudent professional and the test of foreseeability) and then applies these principles to three different real-life fact situations where (typical) students were injured at school.

In two of the three cases, the schools were found liable for the student's injuries. Can you guess in advance which ones involved liability?

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 ...

SCC To Weigh In on Schools' Duty to Accommodate

We're going to be taking a look at a few different human rights issues over the next little while ... mainly because I seem to have collected a number of interesting tidbits on such issues.

So let's start with one of the bigger human rights stories on the legal landscape.

Some of you are no doubt familiar with an education
case out of British Columbia from a few years ago,
Moore v.British Columbia, where a student challenged
both the provincial Ministry of Education and a school board for not providing students with learning disabilities with appropriate accommodations.

From an advocate's point of view, I find this case particularly interesting for two reasons: first, the bases on which the Human Rights Tribunal found both systemic and individual discrimination on the part of both the school board and the Province and, second, the courts' reasoning in overturning that decision (why they decided that no discrimination had, in fact, occurred). And although it might sound like I've just said the same thing twice, they are two very separate issues, as you will see.

Jeffrey Moore had a severe learning disability (SLD) but the very year he was found eligible to attend an intensive program for students with severe learning disabilities, it was cut for financial reasons. The services that were subsequently offered were not comparable to what he would have received in the intensive program and his parents later placed Jeffrey in a private school for students with learning disabilities.

The father brought a discrimination claim to the BC Human Rights Tribunal against the Province (the Ministry of Education) and the school board, alleging both individual and systemic discrimination. The Tribunal found in Jeffrey's favour, finding that both the school board and the Ministry of Education had failed to accommodate his needs in the delivery of educational services.

Individual discrimination had occurred when the school board and the Ministry failed to ensure that Jeffery’s disability needs were appropriately accommodated in the school board by not providing him with sufficiently early or appropriately intensive and effective remediation.

Systemic discrimination by the school board had occurred when services were disproportionately cut to SLD students without analyzing the impact on these students or ensuring that there were sufficient alternative services in place.

Systemic discrimination by the Ministry occurred when it under-funded the actual incidence of SLD students by imposing a cap on funding High Incidence/Low Cost disabled students, when it under-funded the Board resulting in significant cuts to services to SLD students, when it focused its monitoring only on spending and fiscal concerns, and when it failed to ensure that early intervention and a range of services for SLD students was mandatory.

Unfortunately, the Ministry and the Board were successful in their judicial review application and the Court of Appeal (CA) dismissed Mr. Moore`s subsequent appeal.

Here's where it starts to get interesting - unlike the Human Rights Tribunal, which had concluded that the service being provided was “educational programs offered by the Ministry and the [school board]” (in other words, public education services offered generally to the broad public), both levels of court found that services for students with disabilities were “special education”, not general education.

Proceeding on that basis, the courts compared Jeffery with other students who received “special education” and concluded that there was no differential treatment because no student receiving “special education” had access to the services that Jeffrey was seeking for during that period of time. In other words, it would appear that as long as you offer absolutely no "appropriate services" for students with LD, all will be right with the world.

This finding turned on the fact that the BC Human Rights Code provides that a person cannot discriminate against another on the basis of disability when that person is delivering a service that is “customarily available to the public”. Thus, the question became whether students with special needs were entitled to only “special education” services without experiencing discrimination or whether they should have the right to receive general education services without experiencing discrimination. [Can you believe we're even having this conversation?]

[The majority of the CA relied on a 2004 decision of the Supreme Court of Canada (SCC) that some of you might be familiar with (Auton v. British Columbia), in which the issue was whether the province's failure to fund applied behavioral therapy for autism violated the equality provisions of the Charter. In Auton, the SCC had held that a finding of discrimination under sec. 15(1) of the Charter must relate to a benefit or burden imposed by law - it cannot be based upon discrimination in the provision of services not provided under legislation as to do so is tantamount to dictating to the government what services should be provided.]*

The Moores appealed to the SCC, where the Canadian Association for Community Living (one of the intervenors in the case) argued that to find that students with disabilities were entitled to a separate and different “special education” service would be contrary both to the goals of BC’s Human Rights Code and the United Nations Convention on the Rights of Persons with Disabilities, both of which promote inclusive education. CACL also argued that a finding that students with disabilities were entitled to a separate and different “special education” would perpetuate the historical exclusion and disadvantage experienced by such students.

Other questions before the SCC include the use of a comparator group analysis in human rights' duty to accommodate claims and the limits on the scope of remedies that tribunals can order. Unfortunately, we can't go into those issues today, although I will note that what group the person claiming discrimination is compared to (known as comparator group analysis) can and has made a huge difference in whether or not discrimination will be found.

The Moore case was argued in March of this year and disability advocates are anxiously awaiting the SCC's decision in this case, as it should  have a significant impact on future human rights claims. Let's just hope they get it right.

* It should be noted that there was a dissenting opinion in the CA - in fact the majority of the decision (the first 162 paragraphs) is written by the dissenting judge with the majority judgment being a mere 25 paragraphs. Although unfortunately, in this case, size really doesn't matter, anyone with a legal bent might just "enjoy" reading those first 162 paragraphs or at least find them instructive.

One-Stop Shopping

Back to school. Ugh.

Back to school shopping. Again. Ugh.

Although, personally, I would take the shopping any day over actually having to send my kids back and start yet another year (this will be year 15 for my oldest) of "advocacy".

But do not despair. Nice person that I am, I have put together a list of ammunition documents you really should be familiar with as we start another school year.

I've tried to bring some order to the chaos by organizing them by topic but ... well, really, you wouldn't want me to take all the fun away and make it too easy, would you? Just think of it as digging through the bins at Frenchy's ... you never know when you will find a great bargain that fits you just right!

Special Ed in General
Special Education Policy Manual aka "The Bible" (2008)  -That's right, this document should be your Bible for just about any issue you might face with your school, your Board or the Department.

Life Skills: Supporting Student Success (2009) - A little-known document that can be a life-saver when your school tells you that they're very sorry but your child MUST take all these academic courses to get the credits necessary to graduate. It's not their fault; blame the Department.

OR you could just pass over this document, which sets out exactly how "life skill" credits can be and are recognized. Look at that ... a How To Guide for your school!

Increasing Learning Success (2008) - Although written more or less as a how-to guide for reorganizing high school to keep typical students engaged, there are a fair number of ideas discussed that could be very helpful for students with special needs.

Program Planning Process: A Guide for Parents (2006) - This document basically pulls out (and slightly expands upon) the portion of the Special Education Policy Manual (see above) dealing with the program planning process.

"Just how do I go about getting my child an IPP?", you ask. Look no further...

Supporting Student Success: Resource Programming and Services (2006) - Written to provide direction to school boards on the role of resource teachers and their expected competencies and to assist in the development of related policy and procedures, it is also intended to serve as a framework for professional development for resource teachers, classroom teacher and school administrators regarding the resource role in the program planning process. 

In other words, find out just how Resource is suppose to work.

Respect for Diversity: A Planning Resource (2007) - This resource came out of the Minister's Response to Addressing Bullying in Nova Scotian Schools: A Student's Perspective in 2003. (The more things change ... no?)  It's intended to be a resource for students to use to support the advancement and promotion of diversity ... meaning it's to be used a resource to assist in the planning and delivery of a school-wide Respect for Diversity Day. Never heard of such a thing? Don't feel bad ... neither have I!

It just might just be worth checking out, however. Challenge your school and see if they're up to holding their very own (and chances are, very first) Respect for Diversity Day.

Fact Sheets (Pretty much speak for themselves)
Adaptations - Strategies and Resources

Assistive Technology - Access to Learning

Inclusion - Supporting All Students (Fact Sheet)

Program Planning - A Team Approach (Fact Sheet)

Transition
Transition Planning for Students with Special Needs: The Early Years Through to Adult Life (2005) - Did you know that your child might well be entitled to an Individualized Transition Plan? But wait, what the heck is a Transition Plan? And when is this so-called "transition planning" suppose to occur?

SLP and School Psychologist Guidelines (Some hidden goodies)
Speech-Language Pathology Guidelines

School Psychology Guidelines

Student Records
Student Records Policy

Discipline
Provincial Code of Conduct and School Code of Conduct Guidelines (2008)
This. Document. Is. Very. Important.

The regulations made under the Education Act require the Minister to create a Provincial Discipline Policy (aka the Provincial Code of Conduct). All school boards are mandated to create Codes of Conduct (discipline policies) based on the Minister's Policy and each individual school is obligated to create its own School Code of Conduct. Neither a Board's nor a school's Code of Conduct can contradict the Minister's Policy.

Now listen carefully - the Provincial Discipline Policy was changed in a very significant way in 2008. Prior to that time, no provision was made to take into account a student's stage of development and special needs when meting out discipline. In fact, there was a chart which very clearly in black and white laid out specific behaviour and the consequences of such behaviour - if you do this, you will be suspended; if you do this, the police will be called in; etc.

Thankfully, that is no longer the case - the Provincial Policy clearly states that consequences for misbehaviour must be "appropriate to a student's stage of development and in consideration of the student's special needs". It is further stated that "consequences must make sense to a student as much as possible." The School Code of Conduct policy also supports the development and implementation of a comprehensive school-wide PEBS (positive effective behaviour supports) program. Behaviour is divided into "disruptive" and "severely disruptive" and a range of possible consequences are provided for various behaviours within these categories.

All of the above are very significant changes. Very significant changes that, one would presume, were brought about, at least in part, by a Charter challenge against the Province's discipline policy many years ago.

The case never made it to court and the parents involved could be forgiven for thinking it had all been for naught and no progress had been made. Or, at least, they no doubt thought that until they saw that some of the very changes they were requesting have been incorporated in the Province's Discipline Policy. We haven't made it as far as some other provinces (in particular, Ontario, includes the need to recognize a student's special needs when it comes to discipline within the regulations made under their Education Act) but we have made progress.

So the next time an administrator tells you that they have no other choice, their hands are tied, they have to suspend your child just as they would any other student who had (fill in the blank) .. you might want request both your Board's and the school's Code of Conduct and compare them to this document.

Time-Out Guidelines (2010) - Check out that date ... anyone care to hazard a guess as to the why behind these Guidelines? As so very often happens, change only seems to occur when parents GET LOUD. 

** By the way, did you notice that the practice of using time out is to be decided through the Program Planning Process as set out in Policy 2.2 of the Special Education Policy Manual? Which, to my way of thinking, requires prior parental consent (or at least knowledge) of its intended use.

Guidelines for the Use of Student Restraint (2011) - Need to know what the school can and can't do to restrain your child? Need to gently remind them that physical restraint is to be considered a last resort and only to be used when someone's safety is at risk?

IPP Appeals
School Board and Ministerial Appeal Guide (2000) - Sets out the procedure to be followed when a parent appeals an IPP; first at the school board level and then at the Department level. And, remember this, although you may not have a very good chance of success at the Board level (cough, cough), your chances improve significantly should you convince the Minister to grant you a provincial appeal.

Tuition Support
Tuition Support Program - If your child has a diagnosed Learning Disability, ADHD or autism* and you  are not familiar with the TSP, then you need to be. And take heart, the program has become a little looser than it previously was.

* Unfortunately you are more likely to find a school able to accommodate your child if they have a LD or ADHD, then if they have autism.

Guidelines Regarding Entering Into Agreements, including Tuition Agreements, for the Provision of Services and Benefits * (2011) -  These are the Guidelines that are to govern when the Program Planning Team has exhausted all options and agrees that the public school system cannot meet a student's needs. In such a case, a school board can agree to cover the total cost of the student's tuition at a private school. Just don't expect this to happen too often.
* Not to be confused with the Tuition Support Program, above

Transportation
Handbook for the Transportation of Students with Special Needs (2011)

Medical Care
Diabetes - Guidelines for Supporting Students with Type 1 Diabetes (2010)

Diabetes - Standards of Care for Students with Type 1 Diabetes in School (2008)

DNAR - Guidelines for Supporting Students in School Who Have a Do Not Attempt Resuscitation Order (2012)

Teacher Assistants (aka EAs, TAs, EPAs)
Guidelines for Teacher Assistants (2009) - Need to know the roles and responsibilities of teacher assistants? What are their expected qualifications and competencies? Unfortunately, the document doesn't quite answer many parents' burning question ... "How the heck do I get one for my child?"

Miscellaneous
Schools Plus - One of the Department's newer initiatives and worth taking a look-see at.

You can find a series of special reports here, including the Autism Management Advisory Team (AMAT) Report - Lifespan Needs for Persons with ASD.

And although not technically from the Department of Education, you might find this document useful if you find yourself trying to explain to the school why your child with autism requires a service dog at school.


One (or two) last word(s) ... it took a while to convince me, but after meeting twice with the Minister of Education last year, I am at last convinced that the Department, itself, actually has some pretty good policy documents; as just one example, I was particularly pleased to be pointed to the Life Skills document above after having been repeatedly told my child's high school that she had to sit through (what to her are) totally useless academic courses so that she could get a (to her) totally useless piece of paper (diploma). Can't do life skills as credits, huh?

Knowledge IS power. So now our challenge, as parents, is to actually find and use those documents in our dealings with our children's schools and school boards. I just did some of the leg work for you ... now it's your turn!

A Fond Farewell to a Very Good Friend

Shortly after noting that writing has been light here, I stumbled across some very sad news. The man who started me blogging in the first place (known as your "blogfather" in the blogging world) died suddenly and very unexpectedly on March 6th.

I know that fact has nothing to do with either disability or the law, but I share it hoping you will understand when posting likely doesn't pick up any too quickly.

And because it only seems fitting in a way - there were two people, totally unknown to the other, whose actions resulted in the birth of this blawg and Lex was one of them. He got me blogging on The Flight Deck, which gave me a comfort level with the whole idea, so that although at first it sounded a little wacky when Blair suggested I start to blog on these issues, it wasn't out of the realm of the possible. Blogging, yeah, I knew how to do that.

It also goes to show, I suppose, that, like all of us, I have (or at least try to have) a life outside of disability issues, way outside of disability issues. Hopefully, we all have other interests or hobbies. Have them. The time we may get to spend on them, being an altogether different matter.

So as a little peak into the other side of my life ... my interest in flight and my love of reading various thriller books (particularly, at the time, those by Tom Clancy) ultimately led to my attachment to a very special blog written by, of all people, an American naval aviator.

I know ... who would have thought it?

But that man, I tell you, that man could write. And not only could he put you in the cockpit with the young aviator trying to manage his first night traps on a carrier, no matter what he spoke of or about, it almost always felt like he was speaking to you. Directly to you.

He wrote a lot on current events (aka politics), too and although we often didn't see eye to eye (his politics being somewhat to the right of mine), it was always done in such a respectful, logical, reasoned and reasonable matter that you couldn't help but listen and at least try to understand from whence he came.

And he was always open to a different point of view; discussions could become heated at times but he would never allow them to denigrate into anything even remotely resembling those hateful swear-filled debacles that anyone who has spent much time online is all too familiar with. Not in his house.

"Attack the message, if you must, but not the messenger", he would say. And "We're all friends here", he would remind us.  Yes, friends we all were.

After 6+ years I came to know Lex more than a bit, from email correspondence, from reading his blog and from blogging on The Flight Deck.  I came to know how much he loved his family, how much he loved his country. And what kind of man (and officer) he was. And I am very, very sad to see him gone.

Rest in peace, Capt. Carroll "Lex" Lelon, U.S. Navy, Ret'd. And, from the bottom of my heart, thank you for everything.

I wish you knew my friend. Might I suggest you could do far worse than spending a few minutes reading this.

*  *  *  *  *  *  *

So. All that being said, I came across this great article today, via Linked In, and I just had to share it with you.

Many (most, all?) of us are familiar with IPPs, no? And we know that the same documents in the United States are generally referred to as IEPs. Well, have you ever been motivated to write one yourself? Perhaps for your child's school? To, you know, help them meet appropriate outcomes and overcome their challenges?

Check out Gregory Branch's article entitled "If Schools Could Have IEPs..." and don't forget to read the additional "outcomes" set out in the comments. I needed a chuckle today. Perhaps you do too.

Bully For Him

The main reason why I don't list a blog roll on this site is because I have yet too find very many (read any) good Canadian blogs dealing with special needs and the law. Let alone any such Nova Scotia blogs (good or otherwise).  And that matters, of course, because laws can very drastically between provinces, let alone countries.

But I came across a blog post today I would really like to share.

Gregory R. Branch is an attorney in California who specializes in education law, be it special education, school suspension, bullying ... you get the picture. And while his legal services won't be of much any good to you here in Nova Scotia, some of his expertise might just be useful.

In particular, this blog post I came across today entitled "What To Do If Your Special Needs Child Is Being Bullied". Although much of the content appears to be the usual suggestions offered parents in such situations, I particularly like like his comments about involving the child's Program Planning Team ("Schedule An Emergency IEP").

So check out the post and the rest of the blog.

Just be careful to remember that we most definitely don't have access to the Individuals with Disabilities Education Act ("IDEA") in Nova Scotia, with all the built-in due process and student and parent safeguards. Still, no doubt there's some good useful information buried there.

As an aside, I hope to get up some more education-related information in the next few days, particularly a list of links to some interesting Dept of Education documents.

A Very Unmerry Christmas

UPDATE: Perhaps Kentucky could take a look at what Wisconsin (and many other US states) are up to in this area. Not that Wisconsin is a light shining in the wilderness - it's previous "incidents" include a teenager with PTSD who died when his teacher sat on him and a 4 year old with CP and autism being strapped to a pretend (look alike) electric chair.

Sifting through my email this morning, I came across this story.

This story that almost defines words.

A 9-year-old autistic boy who misbehaved at school was stuffed into a duffel bag and the drawstring pulled tight, according to his mother, who said she found him wiggling inside as a teacher's aide stood by.

The mother of fourth-grader Christopher Baker said her son called out to her when she walked up to him in the bag Dec. 14. The case has spurred an online petition calling for the firing of school employees responsible.

"He was treated like trash and thrown in the hallway," Chris' mother, Sandra Baker, said Thursday. She did not know how exactly how long he had been in the bag, but probably not more than 20 minutes.

And just what did this young boy do to ... deserve ... such treatment, you may ask?

Baker said when school officials called the family to pick him up, they were told he was "jumping off the walls." Days later, at a meeting with school officials, Baker said she was told the boy had smirked at the teacher when he was told to put down a basketball, then threw it across the room.

But don't fret, gentle reader. All will be fine. After all, the matter is being ... investigated.

Mercer County schools Interim Superintendent Dennis Davis said confidentiality laws forbid him from commenting.

"The employees of the Mercer County Public Schools are qualified professionals who treat students with respect and dignity while providing a safe and nurturing learning environment," Davis said in a statement.  

And there is, of course, legitimate reason for using a duffel bag in such a manner.

At a meeting with school district officials, the bag was described as a "therapy bag," Baker said, though she wasn't clear exactly what that meant. She said her son would sometimes be asked to roll over a bag filled with balls as a form of therapy, but she didn't know her son was being placed in the bag. She said school officials told her it was not the first time they had put him in the bag.

After all, it's not like this sort of thing occurs on a regular basis.

A July letter from the state agency to special education directors said the state had investigated two informal complaints this year.

In one, "a student (was) nearly asphyxiated while being restrained," and in the other, a student vomited from panic attacks after spending most of an academic year "confined to a closet, with no ventilation or outside source of light," according to the letter.

So. What are we to make of this?

In Kentucky, there are no laws on using restraint or seclusion in public schools.

I'm not aware of any "time out" bags being used in Nova Scotia, but we're all very aware what can happen time out rooms aren't regulated. Or, sometimes, even when they supposedly are.

It boggles the mind to think that such a thing could happen in the US, of all places, with their plethora of safeguards against just such abuse.

The woman who started a petition in this matter, herself autistic, stated "That would not be wrong just for an autistic student. That would be wrong to do to anyone".

Might I suggest that the only statement that need be made (if any) is that such a thing should not be done to any student. Ever. Period.

This is not just a lawsuit waiting to be filed. It's a lawsuit begging to be filed.

Posted Without Comment

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Where Will You Go ... What Will You Discover?

Wow ... I was updating the "Places To Be" section in the sidebar and was amazed pleasantly surprised at how much is happening in the next little while.  So much so, in fact, that I thought it might just be best to give it a little more visibility and post about it right here.

You might think this month is pretty well shot but don't be fooled, there's still four activities left for this last week of September. 

Besides the regularly occurring Social Night for Persons with Disabilities every Tuesday @ 4:00 and the Mental Health for All Coffee House running Saturday afternoons from 1:00 - 4:00 from now until December 3rd (both in Halifax), Ken Pope, LLB, TEP, Henson Trust Specialist is offering a live videoconference/webcast on Disabilities and Estate Planning this Wednesday, Sept. 28th from 10:00 am to 12:30 pm.

Topics to be discussed include ODSP eligibility and benefits, exempt asset arrangements, using and back filing the disability and caregiver tax credits, Registered Disability Savings Plans, legal guardianship and Powers of Attorney, Wills and Henson Trust arrangements, funding trusts with life insurance, RRSP rollovers to adult children with disabilities, Lifetime Benefits Trusts to receive RRSPs for children as parallel trusts, and planned giving, bequests, charitable remainder gifts and minimization of income tax on death from RRSPs.

Also on Wednesday (and yes, you can do both because this just happens to be in the evening), Nova Scotia Community College Disability Services is offering an Information Session for parents, teachers, guidance counsellors and students. The point of the session is to answer questions about the transition from high school to college for learners with disabilities including those who are on an Individualized Program Plans. Issues that will be explored include how to help someone with a disability apply to college, whether having an IPP makes a difference when it comes to applying to community college, what can be done now to get ready for college in the Fall, what resources are available at NSSC that students might find helpful and what funding is available for students with disabilities in post secondary education. And, of course, often the most pressing question for parents; "I know how to support my child in school - what's going to change now s/he is going to college?".

And that's just for September.

Success

About our little adventure in trying to get out youngest daughter into Landmark East ... I have only one word to say.

Success.

Okay, maybe nine words ... Thank you Lord.  And Thank you Dept of Education.

And, trust me, the latter are not words you would ever often hear me say.

Now, next up ...

Did You Know?

Sorry I am a bit late getting this out (public school having started two days ago) but I do have a wee bit of an excuse - having just spent the last week or so trying to get Tuition Support funding to get my youngest daughter into Landmark East, I'm a little on the fried side.

Wish me luck, please ... although the school has agreed to take her and she started on Wednesday with the rest of them,we still don't know if the funding will work out!

But on to what I am here to talk about ... in the process of trying to crack the doors of a private school for learning disabilities, I happened to learn a couple of things I thought some of you might find interesting.

So here goes ....

• Unlike the former system of a student having to be on an IPP before they could access tuition support funding, the program now calls for them to be on an IPP, to have been on an IPP or to be "working towards an IPP"; and
  
• For a parent considering appealing an IPP, the regulations use to provide that only "outcomes" or "placement" could be appealed. BUT NOW IT'S POSSIBLE FOR A PARENT TO APPEAL THE FACT THAT A CHILD DOES NOT HAVE AN IPP ... in other words, that the school refuses to put the child on an IPP. [For those wondering, this is based on a change to s. 53(3) of the Ministerial Regulations made under the Education Act]

Two rather big developments I would say. 

With regard to the first, remember that it doesn't have to be an academic IPP. It could just as easily be a social IPP that the student is "working towards".

And with regard to the latter, I have spoken with many parents over the years whose children were refused IPPs and who were effectively left with no recourse other than the possibility of a costly law suit. Not so any more.

As a final thought, if one were inclined to put these changes together- if a parent was anxious to access one of the private schools for a student without an IPP, there are now two possible routes around that obstacle - convene a meeting of your child's program planning team and see if they are willing to work towards an IPP (social or academic) for the child or, if the school is uncooperative in that regard, appeal the school's refusal to provide an IPP. 

I'm not suggesing for one minute that going through that latter appeal process would be either an easy or fun experience (it generally being recoginzed that you are almost guaranteed to lose any such appeal at the school board level) but it does potentially open a door that, up until now, didn't even exist.

And that has to be a good thing, right?

Suvey Says

For your rainy summer day enjoyment (I'm sure we'll have another one before too long), I offer two online government surveys you might be interested in.

The first newest is from the Cyberbullying Task Force.

The survey itself can be found here and you can learn more about both it and the Task Force here. The voices of young people with disabilities need to be heard on this topic and I was pleased to note that it was very teen-friendly when my youngest daughter filled it out.

The second one has been around for a while but closes for responses the end of July.

You might recall Ben Levin's report to the Minister of Education back in May and the op-ed I wrote at the time. An online questionnaire/survey had been created to get public response to the report and, apparently, the time for public response has been extended a few times, the most recent being until the end of July.

Admittedly, I was not too impressed when I first looked at this survey, seeing how it kept asking for the most "promising ideas" from Dr. Levin's on various topics.  Not when I hadn't come across many "promising" ideas when it came to the topic of special education.  But, having giving it some thought, I'm thinking that since the format does allow for written responses you can say pretty much whatever you want.  No matter what they appear to be looking for.

So might I suggest you review Dr. Levin's report and then try your hand at the survey.

In a very recent conversation with the Minister I was led to believe that it might just be worth it to get our responses/thoughts in and tabulated.

So there you go.