Mulligan Stew

Or perhaps this post most would more accurately be named bean soup ...

At any rate, I am heading off to Bean Town Boston for a week (a rare and wonderful opportunity for me) sans husband and children. 

I'm not quite sure why but I have always wanted to go to Boston.  So off I am with plans to meet up with a good friend from Pennsylvania.  It will be a true Girls Week Out!

And yet I feel the slightest tinge of guilt.  There have been a few articles I have stumbled across recently which I thought might make good blawg folder.  But, which, unfortunately I never got around to actually blogging about.

So, in no particular order, for your weekend (and next week's ) viewing pleasure, I offer you the following:

Taking the Next Step
Although this is an American article, I believe it is, at least somewhat, relevant  to us here in Canada.  Because what happens in the US eventually will happen here.  Perhaps a toned down version in some way, but, make no mistake, it will happen here.

Witness the Regulations made pursuant to Nova Scotia's Education Act and Special Education Policy Manual (see link on the sidebar under "Helpful Links - Education").   Both of which refer to a student's right to an "appropriate education". 

Wording copied directly from the American legislation (IDEA) which provides that all students have a right to a "free and appropriate" education.   Alas, our legislation and policy has the wording but not the teeth behind the American legislation to back it up. 

Still, I have seen recent moves within my own school board to move IPPs more towards the American model in that now finally we are suppose to have "measurable goals and objectives".  "Measurable goals and objectives"?  Who woulda thunk it?

On no doubt related note, I offer you More Intellectually Disabled Youths Go To College. 

Some good news perhaps for your higher functioning challenged young adult.  But which, unfortunately, also receives The Disgusting Quote of the Week Award:

The infusion of federal money has generated some criticism. Conservative commentator Charlotte Allen said it's a waste to spend federal tax dollars on the programs and insisted that calling them college dilutes the meaning of college.

"It's a kind of fantasy," said Allen, a contributing editor for Minding the Campus, a publication of the fiscally conservative Manhattan Institute. "It may make intellectually disabled people feel better, but is that what college is supposed to be all about?"

Some people just don't get it, do they?

But, for those who have given up all hope in our provincial education system, there's always this.

First Virtual School in Mass. Opens Thursday
I've often been curious as to the exact number of students with special needs who have been pulled from schools that simply cannot or will not meet their needs and are now being home schooled, whether formally or informally.  And yet, something tells me that's a number that neither the school boards nor the Education Department wants us to know.  After all, we all know that sort of thing simply Does. Not. Happen.

At any rate, perhaps, some day, a "virtual" school for our children?

Nah, I can't really see it either (not unless they also provide "virtual" educational assistants - which, come to think of it, would likely be far better than what many students with special needs receive in school today) but, still, it was an interesting thought in passing.  After all, something has to give.  Doesn't it?

But let's move on, shall we?

Mother's Fight For Jailed Son Exposes Special Education Gaps
Although there is also some related commentary, it's really the above article that deserves your attention. 

Quite an amazing story, really.  How far and for how long will a parent advocate for their child's right to a free appropriate education? Reminding me us yet once again that anything we do for our one child often benefits the many.  First requirement - DO.

And, last but certainly not least.

Family to Receive $1.5M+ in First-Ever Vaccine-Autism Court Award
Which makes me wonder - if the long-suspected link between vaccines and autism has been so thoroughly debunked, why would a court order a $1.5 million damage award?

In acknowledging Hannah's injuries, the government said vaccines aggravated an unknown mitochondrial disorder Hannah had which didn't "cause" her autism, but "resulted" in it. It's unknown how many other children have similar undiagnosed mitochondrial disorder. All other autism "test cases" have been defeated at trial. Approximately 4,800 are awaiting disposition in federal vaccine court.

Oh, okay, now I get it.  "Aggravated an unknown mitochondrial disorder" ... but isn't that exactly the risk?  The end of the article has a link to the actual court decision.  For those so inclined.

And on that note, I will bid you a fond adieu.

Have a good week.  I know I intend to!

'Educational Reality Check' - A Parody

Province accepts all recommendations from report on black special education students, commits to track, improve performance

The province has accepted all 68 recommendations in a 2009 report that called for improving support for African-Nova Scotian  special education students.

But the onus will be on individual schools and school boards to make those improvements, Education Minister Marilyn More said at a news conference Monday in Halifax.

The 2009 2007 report Review Committee Report and Recommendations report, called Reality Check Minister’s Review of Services for Students with Special Needs, singled out the poor job that the education system does in tracking the successes and failures of the province’s 4,000 black special education students. Education consultant Edna Lee, based in California, also said more must be done to combat racism ableism in schools and that the role of support workers who help black special education students be expanded.

The department’s response to that report released Monday agreed or "strongly agreed" with each of Lee’s recommendations.

"We must work as a team to gather the necessary data and adjust our strategy to ensure African-Nova Scotian special education students have a richer educational experience," More told representatives from black special education and community groups.

A monitoring committee has been established to ensure all recommendations are carried out, she said. The committee includes representatives from the Council on African-Canadian Education,  a special education advisory group to the Education Department, the Black Educators Association Equal Education Association of Nova Scotia and the Education Department’s African-Canadian services Student Services division.

The department has also committed to bolster the staffing at its African Canadian services Student Services division. For example, an elementary curriculum consultant position will be created, as well as a consultant who will evaluate data on the black special education student population.

No additional money will be set aside for the new positions or any potential costs related to implementing the recommendations, More said. Resources will be reallocated from budget savings from such things as administrative retirements.

As for tracking the performance of black special education students, the first step will be to encourage students and families to identify themselves as African-Nova Scotians requiring special educational services, the Education Department’s report said.

From there, it’s simply a matter of better using the data collection expertise and supports that already exist, said Lee, who also spoke at the news conference.

Her report includes a checklist for principals to help them support students and guide them toward the appropriate resources.

"We are encouraging each school to look at not only who’s in school but also the conditions that exist in that school," she said. "For instance, the kinds of curriculum, the role of support workers educational assistants in the school, connections with family. All of those elements make for success."

I would suggest that you to go read the rest but, alas, there is no more.  There wasn't even this. 

Although I am relatively happy to see the Province promising to move forward with improving support for African-Nova Scotian students (I say "relatively" because pardon me if I tend to be a bit cynical regarding any of these reports), as I was reading this article in today's edition of the Chronicle Herald I fantasized what the same story might look like in regard to supporting students with special needs in Nova Scotia.  Fantasized because I'm not sure that I've ever read such a news story. 

So I thought I would take a stab at seeing what that would look like.  At least on paper. Now we know.

Update: I really should note that few things irritate me more than a divide and conquer strategy, whether it be between different disabilities or between students with disabilities and any other group of students.  That is most definitely not the intent of this post.  This is not about "us" versus "them" - it's about all students in the Province having their needs met.

I was actually playing with the idea of sending a portion of this post tin a letter to the Education Minister.

So what do you think?

Water Water Everywhere?

Once upon a time.

Once upon a time, I use to be heavily involved in international development issues, particularly as they related to children.  Yup, that's my catch, children.  Always has been, likely always will be.

But in my pre-disability days, before I knew what an IPP was, long before I had ever heard of a Program Planning Team (let alone knew that I was to be a member of many) ... I was involved with a group called Results Canada.

Results (they are active in many countries around the world including Australia, Germany, Japan, Mexico, United Kingdom and the United States) is a volunteer political action group dedicated to "creating the political will to end global poverty and needless suffering, and to demonstrating that individuals make a difference when they exercise their political influence".  It was pure political advocacy work - coordinating a media strategy; letters, letters and more letters to newspapers and politicians; community outreach and fundraising to keep the mostly volunteer organization going.

It was good work, work where you felt you might just be making a difference in the world.  I once had a politician ask me why I, personally, was involved in this work.  I walked him to my office and silently pointed to the picture on my desk of my then 3-month-old child. Enough said.  He got it.

Can one person really make a difference? Yes, I believe they can.  And how many times is that difference magnified when that one person works in unison with others of a like mind?

But life took over - a challenged child with a significant health issue sucked up much of my time and emotional and mental energy.  And as she grew (particularly as she got closer to school age), I realized that a person can only do so much.  And it seemed that there was much I could and should be doing to help others right here in my own Province.  I still supported (and continue to support) what Results is trying to accomplish but my political activity shifted much closer to home as I focused on assisting challenged children and their families navigate our province's educational and community services, to ensure that they had access to the services they are entitled to.

But then I received an email last week - an email "reminding" me that this year's Blog Action theme is water - access to clean water in developing countries, the over-consumption of water in developed countries, water and the environment and "water solutions".  One item in particular in that list struck a chord in me - and you might just guess why based on my previous involvement with Results.

One of the many issues we dealt with at Results was access to clean water - can there be any more basic a need?  Monthly actions and ongoing campaigns were picked based on strategic opportunity, political climate, context, and impact and issues were usually ones where there was a proven, cost-effective solution and for which there are not many champions.  Issues like child and maternal health, sanitation and hygiene, primary education and microfinance - that last of which is an amazing subject, by the way, well deserving of its own post. Perhaps for another day.


Did You Know?
Did you know that unsafe drinking water and lack of sanitation kills more people every year than all forms of violence, including war?  Water, or rather lack thereof, causes 42,000 deaths each week.

That more people have access to a cell phone than to a toilet? Today, 2.5 billion people lack access to toilets. This means that sewage spills into rivers and streams, contaminating drinking water and causing disease.

That every day, women and children in Africa walk a combined total of 109 million hours to get water? They do this while carrying cisterns weighing around 40 pounds when filled in order to gather water that, in many cases, is still polluted.

That it takes 6.3 gallons of water to produce just one hamburger? That 6.3 gallons covers everything from watering the wheat for the bun and providing water for the cow to cooking the patty and baking the bun.

That the average North American uses 159 gallons of water every day – more than 15 times the average person in the developing world? From showering and washing our hands to watering our lawns and washing our cars, we use a lot of water. To put things into perspective, the average five-minute shower will use about 10 gallons of water. 

While these facts may be grim, there is hope for real solutions as more and more people around the world are waking up to the clean water crisis. Earlier this year, the UN declared access to clean water a human right and groups like charity: water and Water.org continue to work tirelessly to bring water access to the developing world.

No, I am not advocating that we all dress in ashes and sackcloth and repent for our sin of living in an industrialized country.  I know I'm not going to anyway!

What I am suggesting is awareness - it's been a long time since I, myself, have turned my mind to these issues on anything approaching a regular basis and when I looked today at the statistics on how many children die every day from lack of primary health care and clean water or for the want of simple and cost-effective interventions such as breastfeeding, prevention of mother-to child transmission of HIV, immunization, micro-nutrients, and oral rehydration therapy to treat diarrhea .... it makes me very very sad.  It reminds me of just how lucky my family and I are.  Despite the challenges we face. And it turns my mind back to the obligation we, who have so much, have to those who have so little.

Margaret Mead is famous for the words, "Never doubt that a small group of committed people can change the world. Indeed, it is the only thing that ever has.”  

That's one of my favourite quotes; I often apply it to the work we, as parents, do on behalf of our challenged children.  And yet, every once in a while, I think we must stop.  And remind ourselves of what our children's lives might be like had they not been lucky enough to be born in a country like Canada.  To think for a moment, no matter how much that thought might pain us, of what their life might be like had they been born in a developing country.

Whether we actively work in concert with those of like mind (be it paid or volunteer), teach and remind all our children that there is a much, much bigger world than that they can see from their back yard or direct our attention on occasion to those charities with a proven track record of dealing successfully with some of the most basic of human needs around the world, I believe know we all have a part to play.

LD Awareness Month

"Dear Grandma and Grandpa," I wrote. "I felt like writing you, but I couldn't think of much letter-talk… I mean besides the fact that it is snowing. School is fine. So is Girl Scouts. And, of course, I love and miss you. But, I still want to write you a nice long letter. So, I decided to write you about my life."

The big problem

Well, I've got jumbled memories of being scolded because of my sloppiness… of being moved next to a girl with neat writing to teach me neatness… of taking scissors, cutting up my lunch sandwich… of cutting a fringe around my spelling paper… of wondering why everyone didn't have their crayons broken up… of being lost in a big city on a field trip.

The bad day

I suppose this day started as usual. Barbara, our next door neighbor, started taking me to school. I don't remember any of these walks. Then I entered. I sat down at my desk.

I sat and sat and sat. I wiggled. I remember raising my hand. The teacher called on me. I stood up. "I'm tired of just sitting here," I said.

"Well," she told me. "You're a big girl now. You have to sit and pay attention to learn." I sat down.

Came reading. I did the paper. It was especially neat. So the teacher gave me a 100 percent. I felt so happy and wanted it to look pretty so I took a pair of scissors and fringed it. The class let the teacher know. She tore it up. I wasn't happy.

The next lesson was worse. So, the teacher moved me by Robin, the "little peanut," I called her gaily, for she was quite small. Robin was very neat. She pulled out her workbook. The pages were white–not like my pages. All of mine were smeared and sweated. I had asked and asked for another workbook, but the answer was always, "No."

Soon it was lunch. We lined up. I tried to line up. I tried to line up behind Martha. The reason was, I thought she was quite pretty. I wish she'd pay attention to me. But then, no one else did.

You can read the rest of Dale's letter to her grandparents here.  Finish reading about her bad day.  Then learn about what makes a good day for a child who knows she is different than everyone else.

October is Learning Disabilities Awareness Month. 

And there's no shortage of workshops available to on relevant issues.  Whether you need to know more about the Program Planning Process and Assistive Technology or, perhaps on the slightly more practical side, you seek information on positive parenting, how a learning disability affects a child's behaviour or teaching social skills, they've got it covered. 

Teaching social skills ... now there's a workshop we could really use at my house.  Where's that sign up sheet?

First Book Review

For what it's worth, I've just posted my first book review which you can find  ... under the Book Reviews tab, of cousre!

It's a book written by a sibling of a person with disability.  And it's written not just for other adult sublings, but also for parents and others who work with families with disabilities. 

The book, itself, can be found both on amazon.ca and at the offices of the Halifax Association for Community Living.

So check out the book review.  Then check out the book.

If I Had My Druthers ...

A bit of a personal missive this evening - some of my readers will know that I have two children with special needs.  Two teenage children, to be exact.  My oldest daughter has a laundry list of labels and diagnoses - mentally challenged, PPD, speech/language disorder ... none of which accurately describe her - and my youngest has a learning disability.

As I walked out of my oldest daughter's IPP meeting today and into the bright sunshine, it struck me that many days it really doesn't seem to matter how much or how well you think you know the law or which government entity is responsible for this or that - creating something meaningful and functional for our children seems nearly an impossibility.  The key words here are, of course, meaningful and functional.

It I had my druthers, Nova Scotia's Canada's education law would be very similar to that in the US.  We would have legislation similar to IDEA (Individuals with Disabilities Education Act) - which, admittedly, would be somewhat difficult given that IDEA is a federal law whereas, in Canada, education is a provincial responsibility - which actually had some teeth in it, which actually gave parents meaningful rights and a process to challenge a school or school board's actions (or inaction). 

Yes, that's what we would have as opposed to the current namby pamby wishy washy excuse we have for legislation - legislation which uses much of the language in IDEA (such as guaranteeing our children an "appropriate education") but lacks both the process and the teeth to back it up.

I have definitely discovered that high school is a whole new ball game when it comes to IPPs.  From everything from the way they are created to the way they are reviewed and implemented, it is, quite simply, different.  And much harder, from a parent's point of view (or at least from my point of view) to meaningfully participate, to offer meaningful input that is actually included in the IPP and to get information as to how well the goals, once they are finally created, are (or are not) being met (and no, I don't mean the pathetic excuse for "reporting" that is passed off as report cards).

Although it took a long time for IDEA (as it exists today) to emerge, it also took a lot of parental involvement and advocacy.  And I can't help but think that's the only thing that is going to move Canada's educational systems for children with special needs forward.

In the meantime, I suppose we will all just keep putting one foot in front of another.  And keep hoping that somehow, through it all, we can manage to actually obtain an appropriate education for our children.

There's only one problem with that, of course.

Hope isn't actually a strategy.

Making A Difference?

Acting unanimously, the House of Representatives last night approved a bill to remove the terms “mentally retarded” and “mental retardation” from federal education, health and labor laws. The measure, called “Rosas’ Law” in honor of a Maryland girl who has Down syndrome, has already passed the Senate and is expected to be signed into law by President Obama.

“This law is about families fighting for the respect and dignity of their loved ones,” said Sen. Barbara Mikulski (D-Md.), one of the measure’s sponsors. “This change will have a positive effect on more than 6 million Americans.” She said the law will make the language of federal law consistent with that used by the Centers for Disease Control and the United Nations, and will not affect any services, rights, responsibilities or educational opportunities for people with intellectual disabilities.

Rosa’s law substitutes the terms “intellectual disability” and “individual with an intellectual disability” for the earlier terms, now considered outdated and stigmatizing by many self-advocates and their families. It does not cover entitlement programs, which include SSI, Medicare, Medicaid and Social Security.

Sounds nice. Definitely.

And what more could you ask for than the photo op of such a sweet looking little girl with an older brother willing to go forth and do battle for her rights?

Cynical, you say? Maybe. Maybe not.

There's no doubt in the world that words can and do hurt.  And serve to shape our perception of "reality".  And much like the Marcelli household, the word "retard" is not allowed in our house.  Never will be.

And yet, there's something here that bothers me that I can't quite put into words.  At any rate, I do seem to be feeling a tad more cynical on the subject today than I was the last time we discussed Rosa's Law.

Still, it's passed.  And that's a good thing.  A step forward. 

But is it a step that will really matter?

I'm not sure. Kids (and their parents) will still throw around the word 'retard" as a taunt, on the playground and elsewhere.  Parents of challenged children will continue to wince when hear the word.  Some may speak up.  Some may not.  But, most importantly, children who are challenged will continue to be hurt what is said. No matter what the law books may say. 

Still, perhaps one small step forward. 

It may be that I just need to keep reminding myself ...

It's better to light a candle than to curse the darkness.
Eleanor Roosevelt

H/T to On Special Education Blog

Injury Damages, Human Rights and Disability - A Guest Post

For Americans, a case just heard in New York state [Ed. This reference is now almost one year old - my sincere apologies to Mr. Mitchell  for the delay in getting this up] is raising questions about how far human rights questions can intervene in the calculation of damage awards ... and influence the outcome. It is interesting to see how this case tests against Canadian authority, how the idea is treated, here, and how the ideas it raises could affect the treatment of persons with disabilities north of the border.

McMillan v. New York is a race-discrimination based decision but its implications extend far beyond mere questions of race. It involves, directly, how legal equality assurances should affect how damages awards
are calculated for injured people.

The cases’s background is this: You might remember a terrible accident a few years ago when a New York ferry slammed into its dock at high speed killing several people and badly injuring others.

One of the persons injured was an employee who was left paralyzed in his legs and in part of his arms and unable to work. He therefore suffered not only the actual loss of the use of his arms and legs but also a
direct elimination of his ability to continue to earn income from his employment. And, in such cases, with a sufficiently young claimant, the loss of projected income over a working lifetime can be a very large amount indeed.

This Claimant, McMillan, is African-American. And this is where the case becomes interesting. The fact is that, as a group, African-Americans have a shorter statistical life span – and therefore a shorter statistical working life span – than other groups in society.

McMillan sued for damages including his inability to carry on working and the loss of wages it would mean over the balance of his working life.

The calculation of this kind of loss is a standard exercise in Canadian and American law. It involves trying to decide how much a loss of income the man could be expected to suffer over each year and how long he might be expected to be able to work.

Perhaps you’re seeing the argument coming: Because, African-Americans have shorter life spans, on average, than other groups in American society and the factor immediately became an issue in calculating the loss that he suffered. Clearly, a person with a shorter lifespan (and therefore a small chance of working full time to retirement age), will expect to earn less than others with a longer projected life as a result of the same inability to work. And just as clearly, his damages will be less if because of his accident, he can no longer work.

New York City’s lawyers brought this argument – not rocket science by the way, but a usual and customary part of damages law – directly into play. They argued that because the McMillan’s lifespan was statistically less than, say, a Caucasian working the same job, in effect, he should be entitled to less damages than his Caucasian counterpart.

In the result, of course, the City expected to save a very significant amount of money. The trial judge refused to allow the city to make this distinction. He awarded damages based on overall life expectations and refused to limit it to those governing African Americans. The first argument that he used was that “race” is such an undefined and fluid category that statistics based on the distinction is much less precise than the category might at first appear – and so it would be unfair to judge people’s claims based on unclear data. The second argument was that as a result of better care and treatment because of the funds available from the damages award, the claimant’s expected life span might actually expand.

But lastly, and this is where it bears consideration here, McMillan decided that because the US constitution protects everyone equally under law, that a distinction allowing the law to differentiate between claimants based on race-based characteristics actually violated that constitutional protection.

You can see, for the Americans, damages calculations based on disability will also have an effect. In the same way that as the court found that how statistics link lifespan to “race,” at best, only in the fuzziest of ways linkages of lifespan to disability will, in the same way, be only the vaguest and most remote connection, if helpful at all.

How could this affect us here?

Canadian cases arguing racial distinctions cases are fewer and farther between than in the US. However, there are broad suggestions from now decade old or older cases, that courts have attributed lower earnings potential or life span to native claimants in BC damages claims. While a struggle has been being waged to limit unfairness – and corrections are taking place – in applying old statistical information to the projected earnings levels of women to reduce their damages claims as compared to similarly claiming men, the issue has not been resolved.

But no one seems to be studying the claims of persons with disabilities. And equally, no one seems to be considering applying the constitutional protections of equality.

The courts here have reminded us that the Charter’s s. 15 including equality considerations can be available in our country to affect this area of law (case based “common law”) decisions as well as any
government regulation or practice. But as of yet, it seems, the issue has yet to be directly confronted in the country’s law reports.

Perhaps the perhaps innate unfairness of categorizing people for legal purposes based on any grounds of inequality deserves close review in Canadian cases. Perhaps it’s a place where our governments need to intervene.

A Guest Post by Mr. Blair Mitchell, a Halifax lawyer who has practiced in the area of civil and administrative litigation for over 20 years and whom, you might recall, has graced our pages previously.

Focus, People, Focus

Meaning that I attended a focus group last night.

Apparently the federal government will be starting a new ad campaign for the RDSP.  A print ad campaign (think magazines and newspapers), in particular and they were looking for different groups of people (in this case, parents of individuals) who would be eligible for the RDSP to try out some of their ideas on.

It was an interesting evening (yes, in part, because we were paid well for our time) to see both how many people were not even familiar, had not even heard of the RDSP and the different reactions to the different types of ads.  Would you believe that out of a group of 9 individuals, 5 had never heard of the RDSP? Pretty depressing from my point of view...

They did have some good ad ideas, though.  And, of course, some not so good.  One in particular that I really liked showed a mother and daughter with a headline that read "I'm afraid planning for her future".  I found that headline really effective, with the word "afraid" crossed out and replaced by "planning".

So here's to hoping this ad campaign gets going soon and more and more people become familiar with the RDSP.  Wouldn't it be great to get to the point of the RDSP being a familiar a term as the RRSP or RESP?

Ah, well, a girl can always dream ...

Christmas in August

It was a warm Sunday afternoon when I sat at my computer, having just completed another blawg post. When what to my wondering eyes did I see but that as part of Blogger's update to their design options, I can now add pages to the blawg with just a click of a button.  It's true - Christmas really has come early!

So now you will see an "About Me" tab on the top of every blawg page.  Click on the link to find out more than you ever wanted to know about your humble scribe. 

And stay tune for more new "pages" to follow - I am hopeful that when the time comes I just might be able to use this new page option as a way of offering the Legal Guardianship Kit for purchase to those who are interested without having to deal with creating an entirely new website. 

For now, I'm keeping my fingers crossed.

Litigation v. Education

The Americans with Disabilities Act is somewhat similar to Canadian human rights legislation in that it prohibits private employers, state and local governments, employment agencies, labor unions and other public entities from discriminating against qualified individuals with disabilities with respect to employment matters and access to services.  Although, unlike our human rights legislation, this particular piece of legislation applies only to individuals with disabilities (defined as "a physical or mental impairment that substantially limits a major life activity").

But it's a nice piece of legislation in that it allows individuals with disabilities who believe that they have been discriminated against direct access to the courts (as opposed to a human rights bureaucracy as is the case with our own human rights legislation).

And yet an interesting situation is developing in Florida where many small business owners feel that they are being faced with the prospect of financial ruin by certain litigants who are using the legislation in a less than honest manner.

Unaware they had any violations and insisting they don't want to discriminate, the business owners say they are served with lawsuits and pressured into settling for thousands of dollars without being given a chance to fix problems.

Vince Pardo, manager of the Ybor City Development Corp., said the plaintiffs tell business owners the same thing: Pay me $15,000 and we're out of your hair.

"That's a settlement," Pardo said

Even some in the disability community are unsure of  these so-called "drive by lawsuits",

"We call them drive-by lawsuits, quite honestly, because we're not convinced they're making the community more inclusive regarding the ADA," said Brenda Ruehl, executive director of Self Reliance Inc., a Tampa-based, nonprofit center for independent living.

Self Reliance refers businesses to certified experts for help complying with the law.

"If it comes to our attention a business is not complying with ADA, we work with that business," Ruehl said. "We have found that is much more productive and encourages people to want to buy into the ADA."

In cases when a business refuses to make changes, she said, the center works with the U.S. Department of Justice to pursue legal remedies.

The flip side of the argument, of course, is that given that this legislation came into force over 20 years ago, can business owners really legitimately argue that they didn't know what is required of them or that they were "caught off-guard" by the lawsuits?  And in a situation where Justice Department and Equal Employment Opportunity Commission lawsuits are scarce, some see private lawsuits as vital to enforcing the legislation.

Still, this story does raise what I see as a very valid issue - when is it in the best interests of the disability community to focus more on education than on litigation? 

The Duty of Schools "Standing in the Place of Parents"

On the gorgeous North Shore of Cape Breton Island on a lazy Sunday morning a couple of weeks ago, I was roughly jarred out of my vacation-induced reverie by a disturbing article very similar to this one, which I came across in the Chronicle Herald. Although, generally, I try not to read the paper or otherwise expose myself to too much real-world news while on vacation, on that particular Sunday it got away from me.

Be that as it may, the story did remind me that this is an issue we have not yet touched on in this blawg - just what is the duty of the school/school board to keep our children (be they typical or challenged in some manner) safe during the school day?


Duties Imposed by Legislation
The first place to look when assessing legal liability is to see whether there is any relevant legislation on the issue. In this case, the relevant legislation is, of course, the Education Act.

The Education Act imposes certain statutory duties in regards to the safety of students on teachers, principals, board superintendents and school boards.

For example, sec. 26(1) of the Education Act provides that teachers have a duty to both "take all reasonable steps necessary to create and maintain an orderly and safe learning environment" (k) and "attend to the health, safety and comfort of students" (n).

Similarly, one of the duties of a principal is to "ensure that reasonable steps are taken to create and maintain a safe, orderly, positive and effective learning environment" [sec. 38(2)(e)].

Board Superintendents are obliged to "maintain a safe, orderly and supportive learning environment in all schools" [sec. 39] and school boards are obliged to "promote its schools as safe, quality, learning environments and as community resources" [s. 64(1)(f)].


Duty at Common Law
In addition to the statutory duties noted above in the Education Act, the law considers teachers and other educators to have a unique and special relationship with students for the very fact that students are required to attend school.  For this reason, parents are entitled to expect that educators will take reasonable precautions to protect their children from reasonably foreseeable harm.

And because an employer is strictly liable for any torts of its employees committed during the course of their employment, a school board will be legally responsible for any negligence of its employees (be they principals, teachers, educational assistants or other employees) resulting in damages (harm) to a student.

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".

This is a higher standard of care from normal negligence cases involving adult defendants where the standard of care is that of a “reasonable person in the circumstances" -  the educator must not just act as a reasonable person; they must act like a "reasonably careful or prudent parent:".  This is an objective standard of care against which a teacher’s conduct will be measured.

The concept of foreseeability is central to the standard of care as the duty on educators is to protect students from reasonably foreseeable risks -a "foreseeable risk" is considered to be "a danger that a reasonable person should anticipate as the result from his/her actions".  To foresee is to plan ahead, to anticipate potential risks and to take the necessary steps to address them and, significantly, the test of foreseeability of injury or harm is what is possible rather than what is probable.

And although some activities have an element of inherent danger, allowing students to participate in such activities will not necessarily constitute negligence. However, the teacher responsible for such an activity must exercise a high duty of care.

An example of this can be found in Myers v. Peel County Board of Education where the Supreme Court of Canada was asked to rule on a situation where a 15-year-old (typical) student was seriously injured when he attempted to dismount the rings in a gymnastic class. Attempting to perform a dangerous move without a spotter, he fell and broke his neck, leaving him a paraplegic.

The court held that foreseeability of an accident or injury depends on an accurate appreciation and assessment of these risk factors. And on the facts of this case, the court concluded that the standard of care to be exercised in providing for the supervision and protection of students – that of a careful and prudent parent – was not met as a prudent parent would not be content to provide the protective matting used when other, more protective mats, were available. A prudent parent would also  not permit his or her son to leave the gymnasium to practice potentially dangerous manoeuvres in a room without adult supervision.

The court noted that in the context of schoolyard supervision, in determining the appropriate standard of care in each particular case, factors that a court may consider include:

• the number of students being supervised at any given time;
• the nature of exercise or activity in progress;
• the age of the students;
• the degree of skill and training that students may have received in connection with the activity;
• the nature and condition of equipment in use at time; and
• the competence and capacity of the students involved.

However, the court in Myers went on to find that the student was "contributorily negligent" - or, in other words, “partly responsible for his gymnastics injury" when he attempted to perform "a difficult maneuver, fraught with danger, without announcing his move and without the presence of a spotter in position to break his fall". 

A finding of contributory negligence, in this context, would mean that the student and the teacher have a shared responsibility for the injury. In such a situation, the court will assess a percentage of the damages to each of the parties based on how negligent each was.

Particularly for our purposes, when we are discussing students with various challenges, it is important to realize that contributory negligence is both age and ability dependant.

And that although it is usually age that a court considers (we expect a different standard of care and different ability level when it comes to a 3 year old's actions then we do a 12-yer-old's) when assessing contributory negligence, in the case of a challenged child, the court will be obviously have to look beyond their chronological age to their mental age (in the case of a mentally challenged child) and also how the child's physical disabilities (if any) play into their ability to protect themselves.

But from a legal liability perspective, in order for a person to be found legally liable for injury to another, there must be three elements present - not just a duty of care and a breach of that duty, but also damages/injury resulting from the breach of duty.

Thus, although a teacher (or other educator) may have been negligent, there will be no legal recourse against them unless it is established that

a) the plaintiff has incurred damages (which, in law, can include both physical injury and economic loss);

b) the factual cause of the damages was the failure on the part of the teacher to provide the standard of care that a reasonable person would expect under the circumstances; and

c) the damages were reasonably foreseeable.

So having had this basic primer on the law of a school's duty to protect students, let's take what we now know and apply it to Brenton Organ's situation.

I Wish I Could ... I Wish I Could ...

We just returned from a 10-day vacation to Cape Breton Island a few days ago.

Great trip ... but why does "re-entry" seem to get more and more difficult as the years pass?

Trying to put my brain, house, work and life back in order is definitely going to result in me needing another vacation. On account of my vacation.

I tell you this because I dearly do want to write a new post here. In fact, I even started one while we were away. But severe difficulties with the keyboard of a brand new lap top (!!) resulted in me deciding to finish it when we returned home. Which now I would really like to finish but can't at the moment. See above.

But I will do a little, perhaps, to whet your appetite until I do manage to get back to that post. First, the rather short version of the story. And here, a little more detail. That last link being well worth the read, by the way.

So, then, until we meet again. To discuss the duty of a school and a school board to keep our challenged (whether physically, mentally or both) children safe during the school day.