Rights of Students with Learning Disabilities Must Be - Slaw

The 19th-annual Disability Awareness Week began on November 12, 2012. Fittingly, on November 9, 2012, the Supreme Court of Canada rendered a landmark decision in Moore v. British Columbia (Education) affirming that students with learning disabilities have a right to an education, and to be accommodated when accessing that right when there is a need.

Some background

The aforementioned case involves Jeffrey Moore, a student with severe dyslexia. His parent, Frederick Moore, filed a complaint with the British Columbia Human Rights Tribunal on his son?s behalf, against the school board and the Ministry of Education. Mr. Moore argued that Jeffrey was subject to discrimination when his public school board cut a special needs education program that provided learning services for students with learning disabilities due to a lack of funds. Cutting the program resulted in Jeffrey's inaccessibility to the instruction he needed, and forced his parents to turn to an expensive private institution which catered to students with learning disabilities. Having to go to a private institution for adequate education because it was not provided in the public sector is contrary to s. 8(1) of the Human Rights Code.

The Tribunal concluded that there was discrimination against Jeffrey and systemic discrimination against Severe Learning Disabilities students in general by the Board and the Province, and ordered a wide range of sweeping systemic remedies against both. It also ordered that the family be reimbursed for the tuition costs of Jeffrey's private school while awarding damages.

The finding of systemic discrimination against the District was based on the underfunding of Severe Learning Disabilities programs and the closing of the Diagnostic Centre [providing the special needs program]. While accepting that the District?s [Board] financial circumstances were compelling, the Tribunal found that there was no evidence that the District [Board] had considered any reasonable alternatives for meeting the needs of Severe Learning Disabilities students before cutting available services such as the Diagnostic Centre."

To prevent the judicial system from taking a role in setting educational spending priorities and remedies that could badly tilt educational priorities, the Province and the School Board asked the British Columbia Supreme Court for a judicial review of the Tribunal's decision or alternatively, to quash the remedial orders made by the Tribunal.

The remedial orders issued by the Tribunal were stayed pending the outcome of the judicial review.

The reviewing judge set aside the Tribunal?s decision, finding that there was no discrimination and it was not necessary to rule on the question of remedies.

Frederick Moore appealed on behalf of his son. The Court of Appeal also overturned the Tribunal decision.

Both courts held that the Tribunal had applied the wrong analysis in determining whether Jeffrey had been discriminated against by comparing Jeffrey with the general school population rather than with other special needs students.

[?] agreeing that Jeffrey ought to be compared to other special needs students? To compare him with the general student population was to invite an inquiry into general education policy and its application, which it concluded could not be the purpose of a human rights complaint."

In dissent, Rowles J.A. would have allowed the appeal. In her view, special education was the means by which ?meaningful access? to educational services was achievable by students with learning disabilities. She found that a comparator analysis was both unnecessary and inappropriate. The Tribunal?s detailed evidentiary analysis showing that Jeffrey had not received sufficiently intensive remediation after the closing of the Diagnostic Centre, justified the findings of discrimination."

Thus, an application for leave to appeal to the Supreme Court of Canada by Frederick Moore on behalf of his son was filed, allowed, and eventually heard.

Supreme Court of Canada decision

At issue was whether or not the student with special learning needs [Jeffrey] was denied a ?service? ordinarily available or provided to other students by the Board and the province by virtue of the fact that he had a learning disability, and if so, whether or not the Board?s actions were reasonably necessary or justified under the circumstances.

Section 8 of British Columbia?s Human Rights Code states that it is discriminatory if ?[a] person . . . without a bona fide and reasonable justification . . . denies to a person or class of persons any accommodation, service or facility customarily available to the public? on the basis of a prohibited ground. That means that if a service is ordinarily provided to the public, it must be available in a way that does not arbitrarily ? or unjustifiably ? exclude individuals by virtue of their membership in a protected group."

In coming to their decision, the Court looked at the preamble of the British Columbia School Act, which states,

The purpose of the British Columbia school system is to enable all learners to develop their individual potential and to acquire the knowledge, skills and attitudes needed to contribute to a healthy, democratic and pluralistic society and a prosperous and sustainable economy."

In their opinion,

this declaration of purpose is an acknowledgment by the government that the reason all children are entitled to an education, is because a healthy democracy and economy require their educated contribution. Adequate special education, therefore, is not a dispensable luxury. For those with severe learning disabilities, it is the ramp that provides access to the statutory commitment to education made to all children in British Columbia."

Thus, the ?service? ordinarily available to the public is understood to mean education generally, and not special education; that Jeffrey had been denied ?meaningful' access to general education available to all in the province.

The Court found that in cutting funding to the special needs program, it in turn had a disproportionate impact on special needs students. Despite the legitimate financial and budgetary constraints that the Board was facing, the Board failed to consider whether there were other alternatives reasonably available to accommodate special needs students upon the closure of those special needs programs. The Court further found that the evidence was clear that at no time did the Board even consider what the consequences of this closure would be on those students who accessed the service provided by the program.

Thus, by unanimous decision, the Supreme Court of Canada restored the Tribunal?s decision that the Board discriminated against Jeffrey. The decision also restored the orders to reimburse the Moore family for the cost of private schooling and award them damages. The finding of liability against the province was overturned as it was the Board that had made the decision to close the special needs program, and not the Ministry of Education. The remedies for systemic discrimination were also overturned because the scope of the inquiry had extended beyond the original complaint before the Tribunal.

While budgets are always of concern in publicly-funded institutions, all students may expect access to an education. Where students need accommodation to access their education, it too should be provided. Each individual student will have a slightly different learning style, which may not require further accommodation past the standard classroom experience. However, no student should be disadvantaged or prevented from learning because they may require a different approach to engage with the curriculum.

When unable to maintain access to certain educational programs that meet the needs of persons with disabilities, a school Board is required to assess the specific circumstances and try to find adquate alternatives that will accommodate to the point of undue hardship.

Source: http://www.slaw.ca/2012/11/15/rights-of-students-with-learning-disabilities-to-be-accommodated/

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