Human Rights in Education - When "Meaningful" is "Good Enough"

We've discussed the issue of human rights in education a fair bit, but what of those students whose behavioral challenges really do create an “unacceptable safety risk" to themselves or others?

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).

~  ~  ~

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.

Community Living Month ... Who Knew?

FROM NSACL:

October is Community Living Month!

For 64 years the family voice has guided the work of NSACL, and we are committed to ensuring that individuals with intellectual disabilities and their families have the support they require to live full and inclusive lives in their community. Having access to all that our communities offer means every citizen, regardless of their disability, can choose how they live their life. Community living can mean having the ability to choose your school, where you work, where you live, and where you hang out with your friends. The opportunity for every person to engage in a full and inclusive life impacts us all and shapes our community. We are celebrating Community Living Month by asking people:

“What does community living mean to you?”

People from Nova Scotia and several other provinces have shared their responses to this question. We have heard from first voices, students, families and other Nova Scotians such as, MP Andy Fillmore, MLA Claudia Chender, and Mayor Mike Savage, make sure to check them out on Facebook and Twitter.

The month is almost over but there is still time to participate, help us spread the word by taking a photo of yourself or someone holding the #InclusionNS sign or take a photo of what you think community living is. Post your photos using #InclusionNS or send it to us and we will share it on our social media!

Inclusion ... Missing the Point?

The more things change the more they seem to stay the the same.

This time, it seemed to all start sometime after teachers and the Nova Scotia government couldn't come to an agreement for a new contract. Although not mentioned at first, the concept of inclusion and how well it is (or isn't working) eventually popped up. Right on cue. And not just in Nova Scotia; suddenly Newfoundland teachers were weighing in on the topic, too.

But none of this is new news to any of you. You've heard it, seen it read, read it, lived it.

Most of us in the disability community who have had to deal with Nova Scotia's public education system can provide a laundry list of reasons why inclusion doesn't work as well as it should. One of the biggest reasons being a pitiful lack of proper funding and resources, of course.

But again, old news. So why are we here today, you ask.

Good question. But before I answer that, let me tell you why we're not here.

1. I don't want to talk about whether inclusion as a concept is a good or bad idea. 
2. Nor am I here to talk about how we could implement it better. 
3. I'm not even here to bash the Nova Scotia government for practically setting inclusion up to fail in this province. 

No, not today. Today, I have something else in my mind. Today I want to talk about the very definition of inclusion; what it means as a concept; more specifically, what it looks like on the ground in the classroom.

No, not the dictionary definition of the word. Nor am I talking about even the more disability-specific definition of the word.

I am talking about what inclusion means in the classroom. What it really means.

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.

'Spread the Word to End the Word'

Post by Lindsay Spilker Tate.

Enough said.

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

Paralympic Athletes Writing Next Chapter in Human Story

Reading the latest issue of the IWK's Village Voice this morning, I was struck by this piece by Warren Reed, a human rights activist in Halifax.

All 20 of the fastest times in the 2012 Boston Marathon belong to wheelchair racers. In fact, Canadian wheeler Joshua Cassidy (1:18:25) had time for a nap while waiting for Kenyan runner Wesley Korir (2:12:40) to finish. A luxurious 54 min-utes, to be exact. Gravity? The course does drop 425 feet in 26 miles — a barely noticeable three-tenths of one per cent grade — but that benefits runners and wheelers alike.

Meanwhile, the course has some daunting uphill stretches, and dragging an extra 15 pounds of wheelchair up Heartbreak Hill surely offsets any advantage from turning potential energy kinetic.

But this is apples and oranges, angels and pins. One shouldn’t be confused by the artificiality of divisions into thinking there is a single winner of the Boston Marathon, and then some women and then some wheelchairs. They’re all committed athletes, running the same race differently.

People with disabilities have a special perspective on difference — we are, in many ways, defined by it. Many of us embrace our differences as extraordinary gifts.

Some would say Stephen Hawking won a Nobel Prize in spite of his condition. People with more imagination might wonder if it’s because of his condition. Conventional thinkers see him as suffering from Lou Gehrig’s disease. (Lou, by the way, was not a bad ball player.) I’d say Stephen Hawking is a pretty spectacular physicist and that there’s a decent chance his achieve¬ment is connected to his physical characteristics. At the very least, his circumstance provides an unusual perspective on the universe.

You can read the rest of the piece by clicking on the Weekly Update: September 7, 2012 link on this page. I would suggest that you do.

Well Said

I've mentioned fellow blogger, Ashley's Mom at Pipecleaner Dreams on a few occasions before.

Today I popped over to catch up on a few older posts and thought this post about inclusion was simply beautiful.

But, no, she speaks not of our children or others with disabilities being included, she speaks of true inclusion - among parents.

Some snippets:

. . .  .

There grows in communities groups of parents who have children with disabilities. These groups may grow out of shared hospital experiences or shared school experiences or maybe just through word of mouth from one family to another. And the adults in the groups come together for support and to share their stories that usually only others in similar situations will understand. More often than not, the children represented by these groups have very similar disabilities – parents of children with deafblindness, parents of children with Down Syndrome, or parents of children with trachs, for example. But what if you are the parent of a child that just doesn’t quite fit the same description of other children in one of the groups? What do you do and where do you find your support?

. . .  .

I know it’s difficult for true inclusion to work, and I know that there are many, many facets to inclusion. I know I may never see it fully bloom in my lifetime, but that doesn’t stop me from dreaming about it. I suggest we try to envision the inclusive world we all desire while at the same time finding the support we need. I fully realize that it is much easier to bond with another parent whose child is on a trach if my child is on a trach. But let’s try setting aside the specifics of disability and concentrate on the specifics of humanity – regardless of ability.

Head on over and read the rest of it. Please.