Response to the Consultation Paper on Education
and Disability, Human Rights Issues in Ontario's Education System
Introduction
The Learning Disabilities Association of Ontario is the Provincial
organization advocating on behalf of and providing support to persons
with learning disabilities throughout Ontario. The Association was
originally founded in 1963 to assist parents of children with learning
disabilities to obtain access to special education services and
supports. In the forty years since its formation, the LDAO has expanded
its activities and services to include adolescents and adults who
have learning disabilities. However, focus on education, including
elementary, secondary and post-secondary education, as well as workplace
and other educational and training initiatives is still a key part
of our ongoing activities.
The fundamental principle upon which LDAO bases its education-related
systemic and individual advocacy initiatives is that individuals
with learning disabilities are able to learn and to achieve their
learning potential in all educational settings, provided that they
are guaranteed access to programs, services and accommodations that
will enable them to overcome the negative impacts of their disability.
For this reason, LDAO strongly supported the introduction and implementation
of Bill 82, the 1980 amendment to the Education Act, mandating the
provision of special education programs and services to all exceptional
students. That legislation, in spite of the fact that 22 years have
elapsed since its introduction, still contains one of the most powerful
promises to students with disabilities, namely that they are guaranteed
access to appropriate special education programs and services, in
accordance with their needs and their parents' wishes. Unfortunately,
although the legislation commits both the Minister of Education
{Section 8(3)} and school boards {Section 170(7)} to the delivery
of this promise, full compliance with the mandate of the legislation
has not occurred. This non-compliance with the Education Act and
the related Regulations is one of the greatest problems related
to education and disability issues in Ontario today.
Similarly, LDAO has strongly supported and promoted the Human Rights
Code and the work that has resulted in the Policy and Guidelines
on Disability and the Duty to Accommodate first in 1989 and subsequently
in 2000. LDAO was among those organizations that strongly urged
the Commission to develop a companion piece to the more generic
accommodation guidelines, focussing specifically on education. This
is particularly significant in two areas:
-
post-secondary education, which is not currently directed by
any specific or disability-related legislation other than the
Human Rights Code
-
the need for accommodations in the various forms of Provincial
testing, especially the Grade 10 literacy test, which is an
essential component of successful secondary school graduation.
LDAO also participated fully over many years in all the discussions
and consultations related to the introduction of the Ontarians with
Disabilities Act. It was the Association's hope that the Government
would introduce meaningful and accountable legislation that would
offer protection to all persons with disabilities and that would
fully complement and supplement the rights guaranteed under the
Human Rights Code.
The current ODA, in our opinion, will not achieve these goals,
partly because it appears to focus almost exclusively on physical
access in its definition of accessibility and because there are
too many loopholes in its compliance measures.
Furthermore, we have noted with concern that the Americans with
Disabilities Act, a highly regarded piece of legislation that had
been promoted as the potential model for the ODA, has allowed for,
as a result of a series of court challenges, significant educational
discrimination against persons with learning disabilities, while
protecting individuals with other more visible and evident disabilities
in similar educational settings.
It is for these reasons that LDAO is pleased to participate in
the consultations on education and disability. It is our hope that
the outcome will be a strong policy at the very least or perhaps
even legislation, such as a Regulation under the Human Rights Code,
mandating the access of all persons with disabilities to appropriate
educational opportunities, including a full range of services, supports
and accommodations that are based not on a person's or a group's
philosophy, but rather on the individual's identified disability
related needs.
It is important that such policy or legislation be totally inclusive
of and appropriate for all disability areas, similarly to the definition
of disability within the Human Rights Code. It has been LDAO's observation,
and this is demonstrated to some extent in the current consultation
paper, that persons with learning disabilities, whose educational
needs and potential may be different from those of persons with
other more visible and better understood disabilities, are often
excluded from disability-specific legislation, services and funding
opportunities.
The reasons that are cited for such exclusion are unacceptable
and discriminatory. Sometimes the supposed reason for exclusion
is the relatively high incidence of learning disabilities (and supposed
associated high service costs), since 50% of students with disabilities
throughout the educational sector are students with learning disabilities.
In other cases, it is the fact that some students with learning
disabilities benefit from access to self-contained or congregated
special education programming, rather than being placed in the mainstream,
and this runs contrary to the philosophical approach of some other
disability groups.
LDAO strongly urges the Human Rights Commission to ensure that
such exclusionary practices are eliminated and that there be full
acceptance of the demonstrated needs of persons with disabilities,
resulting in appropriate and enabling policies, legislation, services,
programming and accommodations. Anything less will simply perpetuate
the current discriminatory practices of much of the educational
sector.
We would further urge the Commission to make this consultation
process more wide ranging and accessible by holding a series of
community meetings so that everyone is able to participate.
A few comments on the consultation document
LDAO strongly supports the Human Rights Code and the protection
it extends to persons with disabilities in Ontario. Similarly, we
fully endorse the current obligations to accommodate persons with
disabilities and the rigorous undue hardship standards that accompany
this obligation.
Nevertheless, there are a number of statements in the consultation
document that give us cause for concern.
For example, on pages 5 and 6 where the document cites the Salamanca
Statement, it is implied, if not explicitly stated, that the Human
Rights Commission would expect its education and disability document
to favour full inclusion as the routine educational practice for
Ontario. The fact is that current Ontario legislation mandates the
provision of appropriate special education programs and services
to all exceptional students based on the students' identified needs
and their parents' wishes. The placement where such special education
is provided must be one that is realistically deemed the most enabling
placement, rather than merely the least restrictive environment.
That means a full range of placement options including self-contained
exceptionality specific schools, classes congregated in certain
schools, withdrawal programs into small group settings from time
to time as well as regular classroom placement with support.
The key to identifying the most enabling special education placement
for each student with a disability is access to the results of an
appropriate assessment and a determination of the goals of the special
education program. Students with learning disabilities can typically
access the Provincial curriculum and achieve essentially the same
outcomes as their non-disabled peers, provided that they receive
all the requisite help, accommodations and are able to utilize all
their necessary coping and compensatory strategies. While this may
not be true for all exceptional students, "providing an effective
education to the majority of children" (Salamanca Statement)
is simply not good enough. If one child is excluded, forgotten or
discriminated against, then that is too many!
On page 14 of the document, there is a reference to Section 14
of the Code, that "permits" the implementation of special
programs. When it comes to education, special education programs
must not only be permitted, but must in fact be mandated by the
new policy, in accordance with the dictates of the Education Act
and the Regulations.
In the section of the consultation document that focuses on education,
starting on page 9, it is unfortunate that the statistics cited
are not all Ontario-specific and are also inaccurate in some cases.
For example, the figures cited from the Roeher Institute for the
incidence of learning disabilities are quite inaccurate. Furthermore,
the description of learning disabilities as a condition where "schools
make the basic determination" hints that as a result these
are not "real" disabilities. The fact is that under Ontario
law (Registered Health Professions Act, 1993), it is only appropriately
qualified members of the College of Psychologists and the College
of Physicians and Surgeons who can diagnose a learning disability.
While it is true that under the Education Act it is the IPRC that
identifies a student as having a learning disability, this must
be done on the basis of a psychological assessment. In addition,
it is the IPRC that makes the exceptionality determination for all
exceptional students not just those who have learning disabilities
or emotional disturbances. The singling out of these two groups
of exceptional students in the document implies a perceived negative
attitude towards the recognition of these disabilities.
On page 11, where the document briefly reviews the role of the
IPRC, there is no reference to the fact that under Ontario law school
boards must provide access to a full continuum of special education
placement options to ensure that each exceptional student's needs
are met in the most appropriate manner possible.
There are also significant Ontario-specific gaps in the information
provided about post-secondary education. As colleges and universities
report annually to the Ministry of Training, Colleges and Universities
on how they spent their Accessibility Fund allocation, they provide
detailed statistics about the numbers of disabled students that
they have served and the types of accommodations that they have
provided to them. Every post-secondary educational institution in
Ontario has a funded (albeit with limited funding allocation) and
staffed Special Needs Office or Office for Students with Disabilities.
Furthermore, as a result of the work of the Learning Opportunities
Task Force, every college and university will provide enhanced specially
funded services to students with specific learning disabilities
starting in September, 2002.
Where funding for post-secondary education is discussed, the figures
cited are not up to date. The Bursary for Students with Disabilities
(BSWD) is now up to $10,000 per student and there is a special component
available for learning disability assessments. The greatest barrier
as far as access to the BSWD is concerned is that in order to get
the bursary, students must be OSAP eligible, must carry a predetermined
course load and must have a diagnosed disability before submitting
their application. These requirements represent a major barrier
for many students with disabilities, whose parents may be able to
help with tuition and living costs, but may not be able to cover
all the disability-specific additional costs inherent in post-secondary
education, for which the bursary was intended.
When this is coupled with the exclusion of students with learning
disabilities from the Ministry of Health's Assistive Devices Program,
no matter how severe their disability, the level of potential discrimination
is enormous.
As the consultation on Education and Disability proceeds and the
policy related to ameliorating the situation of students with disabilities
in education is developed, LDAO urges the Human Rights Commission
to take note of the above comments and ensure that the basis of
its policy development is accurate, appropriate and as much as possible
reflects the situation in the Province of Ontario.
Human Rights Issues in Education for Persons with Disabilities
1. The issue of defining and guaranteeing access
There is no doubt that the first and most important step in enhancing
the human rights of persons with disabilities in education is to
guarantee access to appropriate educational opportunities and outcomes.
However, the key has to be access that is defined appropriately,
i.e., not just in terms of physical access, and one that focuses
on equity rather than merely equality.
While it may seem that these are merely semantic considerations,
in fact many people and government initiatives describe access in
terms of individuals with disabilities getting into a building,
having ramps, elevators, accessible washrooms and classroom spaces,
elevators with Braille buttons, fire alarms that are visible as
well as audible, etc. Obviously, these are important components
of access, but are not the full picture.
Educational access, in additional to physical access, must also
include services and supports that will ensure that all students,
including those who have disabilities, can access all the curriculum
components:
-
by having teachers teach in the way that the students learn,
-
by modifying and diversifying the content delivery according
to the well defined principles of Universal Instructional Design,
-
by ensuring that all students who require accommodations in
order to learn are guaranteed those accommodations,
-
and by ensuring that the evaluation components enable students
to demonstrate their knowledge and skills with
or without accommodations.
In addition, educational access must ensure that the educational
system complies with all appropriate and relevant legislation, including
the Canadian Charter of Rights and Freedoms, the Human Rights Code,
the guidelines for appropriate accommodations for persons with disabilities,
the Education Act and the relevant Regulations. In practice that
means for students with learning disabilities that they must have
access to a range of special education placement options, rather
than regular class placement only. Accessibility in the education
system must also include such areas as continuing education credits
and school health services provided by Community Care Access Centres.
To counteract the perception in some sectors that the Human Rights
Code does not apply to children within the education system, it
would be very helpful for the Human Rights Commission to conduct
a systemic investigation of the special education process and proceed
with individual Human Rights complaints related to lack of access
to educational services and accommodations.
We noted with concern that the Accessibility Plans that all educational
systems have to develop under the Ontarians with Disabilities Act
highlight physical accessibility issues almost exclusively, without
considering the learning and teaching related access issues, that
are just as important. We are also disappointed that there are no
implementation plans or time lines required, as part of these Accessibility
Plans.
The Federal Task Force on Access to Information for Print-Disabled
Canadians (i.e., those who are blind and those who have learning
disabilities) made a series of important recommendations for the
Federal and Provincial Governments to implement and mandate for
their educational systems. To date there has been limited follow
up action in Ontario, and students with learning disabilities as
well as their blind peers still face the same level of discrimination
and barriers when it comes to accessing information.
As stated earlier, the funding barrier created by limited access
to the BSWD is a major problem for many students in the post-secondary
sector, especially when they are not OSAP eligible and are also
denied other funding supports, such as the denial of access for
persons with learning disabilities to the Assistive Devices Program.
Lastly, under the issue of access, LDAO wishes to raise the fact
that learning disabilities are the only disability area where the
diagnosis of the disability is not funded by any Provincial health
or assessment plan. OHIP does not pay for LD assessments, while
it covers the primary diagnosis and frequently even the reassessment
of all other disability areas. This means that many people with
learning disabilities never have their condition fully and appropriately
diagnosed. The identification process within the school system is
not consistent from school board to school board and research by
the Learning Opportunities Task Force indicates that over 80% of
students with learning disabilities arrive in post-secondary education
with inadequate or no diagnosis and/or documentation of their disability
and of their accommodation requirements.
During the late 1980's the Interministerial Working Group on Learning
Disabilities reviewed the situation of adults with LD in Ontario.
The report published in 1992 by the Ministry of Citizenship identified
that there was - and still continues to be - significant discrimination
against persons with learning disabilities in Ontario. One of the
most significant barriers for this population was and is the lack
of access to diagnostic assessment services, to formally identify
their learning disabilities and also identify the required appropriate
accommodations.
In response to the release of this report, the Government of the
day stated that systemic changes will need to be made in order to
eliminate the inequality and inequity faced by the population of
persons with learning disabilities. In spite of this commitment
and numerous concerns and complaints to various parts of the government
including the Human Rights Commission, there have been no changes
made to rectify this unacceptable situation.
2. LDAO recommends that the new Policy and Guidelines for Education
and Disability issues include the following:
-
define access in the most appropriate and inclusive way, in
accordance with the description of educational access above;
-
reinforce the importance of educational systems complying with
all their legislated mandates related to the enablement, empowerment
and support of all learners with disabilities;
-
where, as a result of non-compliance, students with disabilities
face educational discrimination such as the denial of accommodations
or the delivery of special education programs and services as
set out in the student's IEP, the Human Rights Commission agree
to consider such complaints (rather than state, as has been
the case in the past, that they cannot deal with educational
complaints unless the parents had explored all appeal opportunities
under the Education Act. Since programs, services and accommodations
are not appealable under the Education Act or Regulation 181,
parents are typically not able to satisfy this condition.)
-
mandate that all students with disabilities must be assured
equal rights of access to the diagnosis of their disability,
with the Government covering the costs of at least the primary
diagnosis in all cases;
-
recommend that all students with disabilities who are enrolled
in post-secondary education have access to the Bursary for Students
with Disabilities, to cover disability related costs. Since
the BSWD is a taxable benefit, students who or whose families
do not require such help will either choose not to apply for
the funding or pay tax on the funds received. Access to the
BSWD should be facilitated for students in the last year of
their secondary school, so that there is no delay in their access
to the services, supports and accommodations for which the bursary
is provided;
-
recommend implementation of the recommendations of the Federal
Task Force on Access to Information for Print Disabled Canadians;
-
recommend that the ODA Accessibility Plans of all institutions
cover all aspects of accessibility and contain time lines and
implementation plans;
3. Negative Attitudes and Stereotypes
There is no question that there are many negative stereotypes and
attitudes towards students with disabilities in all parts of the
educational system.
Far too often, students who are members of visible minority groups
are more likely to be identified as having developmental or behavioural
disabilities than learning disabilities, due to negative attitudes
within the community and lack of understanding of the various disabilities.
In many cases, parents who are not comfortable in dealing with the
school system and such formal mechanisms as the IPRC process, cannot
assure that their children's rights are fully met.
The suggestion here that integration fully into a mainstream classroom
is the goal of education is not acceptable. Integration into a mainstream
classroom is only possible if the student is assured of receiving
the requisite special education programming and services as well
as accommodations in that setting, the student's needs can be met
fully in that setting and the parents are in full agreement with
that placement. Unless all of these conditions are satisfied, integration
is not acceptable as the goal.
Students with learning disabilities often face a negative attitude
within the post-secondary sector, where teaching faculty often do
not understand that students with learning disabilities are just
as able to achieve the required outcomes as their non-disabled peers,
provided that they are assured access to the requisite appropriate
accommodations.
LDAO recommends that the concerns related to these factors be addressed
in the new Policy and Guidelines by:
-
reviewing and building upon the research findings of the Learning
Opportunities Task Force in providing incentives to and programming
within the post-secondary sector for students with learning
disabilities;
-
recommending enhancements to the training of elementary and
secondary school teachers, both in terms of the pre-service
and follow up professional development programs, so that all
teachers become more effective in working with and meeting the
needs of all students with disabilities, including those who
are members of visible minority groups;
-
recommending matching mandatory faculty training for those
who teach in the post-secondary educational sector about the
rights of students with disabilities and the institutions' obligations
to meet their needs.
4. Labelling
The use of identifying terminology is an essential component of
ensuring the provision of ongoing appropriate programming, services
and accommodations to students with disabilities. Therefore, the
concern is not the "label", but rather the lack of matching
appropriate interventions and the negative attitudes that arise
as a result of poor performance and attitudes on the part of the
student.
At the same time, the use of non-categorical screening and interventions
based on the results of the screening to assist students in the
early years is a useful way to avoid early labelling. The LDAO Promoting
Early Intervention Project is an excellent illustration of how this
can work.
LDAO recommends that the new Policy and Guidelines related to education
and disability mandate the appropriate use of identifying terminology,
based on appropriate diagnostic procedures and resulting in the
requisite interventions. Such steps should be restricted for use
with those students who have already been identified as having,
or being at serious risk for having, a disability.
5. Appropriate accommodation
For students with learning disabilities, the most appropriate accommodation
in an educational setting is one that:
-
facilitates student learning,
-
enables the student with a disability to acquire essentially
the same skills and knowledge as their non-disabled peers,
-
enables the student to meet the benchmarks and outcomes expected
of all students, and
-
enables the student to demonstrate what has been learned in
the same or similar way as the other students or differently
with the use of the accommodation, but without any of the standards
or outcomes having to be modified or lowered.
The use of appropriate accommodations does not interfere with the
maintenance of the integrity of the curriculum or of the academic
standards of programs or courses. The references to interference
with the "academic freedom" of post-secondary teaching
faculty is a red herring that should not be accepted as a reasonable
concern. The key to addressing these issues is ensuring that students
are enabled to understand their disabilities and accommodation needs,
and to clarify for faculty why they need the accommodations. Faculty
training and professional development are also important.
LDAO recommends that the Policy and Guidelines stress the importance
of differentiating between accommodations and modifications, define
accommodations appropriately so that they do not at any time lead
to lowered standards or outcomes.
Furthermore, LDAO recommends that all educational institutions
be urged to implement the principles of Universal Instructional
Design in order to facilitate learning for all their non-traditional
learners, including but not limited to students with disabilities.
6. Accommodation Process
While the Human Rights Code and the undue hardship standard apply
to the elementary and secondary school system, the fact is that
since special education programming and the contents and implementation
of the student's Individual Education Plan (IEP) are not appealable
under the Education Act, the obligation to accommodate is often
ignored by schools without any consequences. For example, students
with learning disabilities are able to meet the requirements of
the provincial Grade 10 literacy test, often with the use of accommodations.
In spite of this, many schools encourage the parents of students
with learning disabilities to ask for postponement or even exemption
from the testing. Some students cannot access needed accommodations
during the testing because these are not listed in their IEPs as
required by EQAO standards. Other students find that when they get
to the test location their expected accommodation is not available
or is out of order or there is no one to help them with using it.
The role of Special Needs Offices within post-secondary institutions
is to facilitate the accommodations process for students with disabilities.
Their effectiveness has varied from institution to institution depending
upon the attitudes of senior administrators and faculty and the
effectiveness of special needs staff in advocating for these students.
The Task Force's submission will elaborate on this issue.
The Learning Opportunities Task Force (LOTF) pilots have improved
the accommodations process and the new funding to provide enhanced
services starting this September are expected to further improve
faculty attitudes toward providing accommodations.
Now that all colleges and universities as well as school boards
have to develop Accessibility Plans under the ODA, the new Policy
and Guidelines for education and disability issues should mandate
that these Plans include in detail the specific accommodation process
utilized by the institution, how the accommodation is evaluated,
the role of the student in question in the evaluation process and
the consequences of non-compliance by faculty of the accommodation
expectation.
LDAO recommends that the Policy and Guidelines for education and
disability issues:
-
mandate, in accordance with the Education Act, the Regulation
and the IEP Standards Document that the accommodation components
of the IEP must be consistently implemented, and that there
be sanctions imposed for non-compliance such as a timely due
process mechanism for parents and students;
-
review the results of the LOTF research and mandate the implementation
of the successful components of this process within the post-secondary
education sector.
7. Roles and responsibilities
Most parents and students are at a disadvantage when it comes to
advocating for and obtaining needed accommodations.
If boards, due to philosophy or claimed lack of funding fail to
provide needed accommodations, there are very limited rights of
appeal available to parents and students. The Education Act only
allows appeals regarding identification and placement and not for
programming issues. The Ministry of Education should define "placement
" consistently in the Education Act and its regulations. Placement
decisions are based on available programs and services, so any changes
to the latter should be grounds for appeal of the placement. Recent
jurisprudence from the Ontario Special Education Tribunal indicates
that available resources, programs and services in a special education
placement are what determines the appropriateness of the placement
within the meaning of Regulation 181/98.
Although IEPs outlining student strengths and needs are mandated,
there is no appeal mechanism in the face of an ineffective or inadequate
IEP. Even when the student is denied the accommodations listed in
the IEP, there is no right of appeal.
Boards must develop IEPs for students for whom they are applying
for intensive support level funding. Frequently parents are not
allowed to see their child's IEP and if the IEP can be obtained
it often does not describe the level of programming that the student
is actually receiving.
Even when parents are able to appeal under the Education Act they
must rely on their own financial resources, often in the face of
boards spending hundreds of thousands of dollars on legal costs
to fight parents. No legislation can actually balance the uneven
funding and power levels of parents and school boards, but compliance
with the legislation would go a long way toward levelling the playing
field for parents and students.
LDAO recommends that the proposed Policy and Guidelines:
-
reinforce the importance of the educational systems of Ontario
focussing upon the needs of students ahead of all other considerations,
and complying with their legislated mandates regardless of the
individual opinions or philosophies of administration and the
board;
-
emphasize the need for honest communication and disclosure
practices with parents and students;
-
recommend a mechanism for parents to appeal the denial of services
and accommodations within a special education placement;
-
reinforce the mandate of the Ministry of Education to require
School Board Special Education Plans to comply with the Human
Rights Code;
-
advise ministries to ensure that legislation involving access
to education is prescriptive rather than permissive, and outlines
clear consequences for failure to comply;
-
communicate to all levels of administration in education, including
ministries, boards of education, Special Education Appeal Boards
and Tribunals, and postsecondary institutions, a clear outline
of how the Human Rights Code applies to education.
8. Undue Hardship Standard
LDAO has always supported the enforcement of the undue hardship
standard. As a caring society, we have an obligation to ensure that
all vulnerable members of our society are guaranteed access to services,
supports and accommodations to help them overcome the negative impacts
of their vulnerability. When it comes to providing an enabling education
to students with disabilities, it is society's obligation to help
them progress towards independence and a reduction of their vulnerability.
At the same time, LDAO has encouraged its members to disclose their
disability when seeking the provision of accommodations and has
taught appropriate advocacy skills to parents and students with
learning disabilities.
This does not mean that we believe that there are no limits. For
example, even though LDAO fully supports the provision of individualized
services in the most enabling setting to students with learning
disabilities, that does not mean that every student should be provided
with 1:1 teaching throughout the school day and school year. That
goes beyond the dictates of the undue hardship standard. However,
most accommodations required by students with learning disabilities
are not particularly expensive and certainly would not represent
undue hardship for the school or the post-secondary educational
institution.
Certain related costs, for example, care, treatment and assessment
related costs, could and should be funded by health care and treatment
and/or social service dollars, rather than just from the educational
budget. But under no circumstances should students with disabilities
be refused appropriate accommodations to facilitate their successful
learning on the grounds of undue hardship. Precedents, such as the
Eldridge and Meiorin cases, set by the Supreme Court of Canada,
reinforce this requirement.
LDAO recommends that the educational sector be helped to understand
the implications of and be expected to implement and comply with
the undue hardship standard.
In conclusion, LDAO is pleased to submit this brief in response
to the consultation on education and disability and looks forward
to the opportunity to participate in further dialogue.
L.D.A.O. phone: (416) 929 - 4311
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