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How the Supreme Court Decision about Emily Eaton Affects You and Your Child

On February 6, 1997, the Supreme Court of Canada gave its reason for its decision in the case involving Emily Eaton and the Brant CountyBoard of Education. Since that time many interpretations of the decision have been circulated. Those originating from various school boards and school board associations say the decision supports their continued segregation of students with developmental disabilities.

These interpretations have been used to discourage and prevent parents from seeking to include their children within the regular classroom of their neighborhoods.

The Supreme Court Decision Supports Inclusion for Children with Disabilities and Limits the Ability of School Boards to Segregate Them

The Coalition for Inclusion Education has engaged in a lengthy process of legal analysis. The following summarizes what the Supreme Court decision contains, from the point of view of a person with a disability or of a parent/guardian. We believe it can support parents in their struggle to achieve a quality, inclusive education for their children.

For further information, contact the coalition.

Our View of the Supreme Court Decision at a Glance

We suggest that parents take the position, based on the SupremeCourt's Eaton decision, than an IPRC (or other decision-making body) can propose a segregated placement for a student with a disability ONLY when ALL of the following tests can be met:

  1. it can be demonstrated that specific aspects of the integrated setting which cannot reasonably be changed interfere with meeting the child's special needs in that setting; and
  2. it can be demonstrated that there are advantages in the segregated setting which outweigh the loss of the great psychological benefits that come with integration; and
  3. it can be demonstrated that the child's equality rights and the desired fulfillment of his/ her intellectual, social and emotional needs through regular and natural interaction will be met better in the segregated setting than in the integrated setting; and
  4. empirical, objective evidence demonstrates that the child's needs are not being met in the regular class; and
  5. it can be demonstrated that reasonable accommodations within regular classrooms have been seriously and consistently made. Reasonable accommodations can include:
    • Teacher in-service; ongoing Resource consultation; adapting curriculum and instruction; using a variety of teaching and organizational strategies; providing supports such as special equipment, an adult volunteer, a teacher assistant and peer support; and
  6. if the child can communicate for him/herself and she/heexpresses a preference for the segregated class.

It is clear that these tests can be met in the case of only a few children now in segregated settings in Canada.

Some Guidelines for Parents

Prior to a meeting with school authorities or of an IPRC, ensure that you have a clear understanding of the key points outlined above. If you would like to have a copy of the complete SupremeCourt ruling, contact the Coalition or your local association.

Parents who have a sense of what "reasonable accommodations" could mean and what they can demand from schools, will be in a better position to advocate on behalf of their children. Therefore, we strongly suggest that prior to school meetings and IPRC's, you read about, talk about and consider what accommodations could apply to your child. If you would like to read about "Best Practices for Inclusion" and general strategies for including children with disabilities in regular classrooms, contact the Coalition or your local association for suggested material.

Key Point Summary of Supreme Court Decision in the Eaton Case

1. Integration is the Norm - The SupremeCourt said that "integration should be recognized as the norm of general application because of the benefits it generally provides". This is consistent with the current policy of theOntario Ministry of Education & Training, which has been repeatedly stated in public and in writing by the Minister. TheCourt also acknowledged the "great psychological benefit that integration offers". A school board then, must demonstrate that there are advantages for the student in the segregated placement that make up for the loss of these benefits. This also means that exceptions to the "norm" of integration in regular classrooms for students considered"exceptional" have to be justified.

2. Reasonable Accommodations Must beMade - The Supreme Court stated that "it is the failure to make reasonable accommodations to meet a child's needs which results in discrimination against disabled persons". The Court said that a decision-making body, such as an IPRC, "must determine whether the integrated setting can be adapted to meet the special needs of an exceptional child". Only if "aspects of the integrated setting which cannot reasonably be changed interfere with meeting the child's special needs", will the principle of accommodation "require a special education placement"outside of the regular classroom.

This part of the decision is most critical. The Court has said that a child who is considered

exceptional has a right to reasonable accommodations within integrated settings.

The Court did not try to define "reasonable accommodation". In the past, Courts have said that accommodations that are reasonable are those that do not lead to"undue hardship" (usually interpreted to mean 'financial hardship') on the person or organization (in this case, the school board) which has a duty to accommodate. The Supreme Court agreed with the Tribunal that "certain adaptations to the classroom such as the provision of a special desk, physical assistance and extra supervision from educational assistants were reasonable". This at least sets the lower limit on what"reasonable accommodation" might mean. No school board then can say that such accommodations as these are unreasonable because the Supreme Court has stated otherwise.

In fact, a number of "accommodations" cost less than those mentioned above, promote real inclusion and produce better results for all students in the class. They include the following practices:

  • using a variety of teaching & classroom organization strategies (i.e. Cooperative Learning: Multi-Levelinstruction: Team Teaching, Peer Tutoring)
  • having high expectations, flexible learning objectives &adapting the curriculum to meet individual, diverse needs.
  • providing a variety of supports in the regular classroom such as: in-service training to the Regular Classroom Teacher; a consultingTeacher; a volunteer; a peer helper; special materials.

It is important for parents to know that these practices have been implemented successfully by many schools and school boards within and outside of Ontario for years. They arereasonable accommodations and do not lead to undue hardship. In fact, these practices are policy in NewBrunswick and are considered "Best Practices forInclusion".

Parents also need to know that in the past, Courts have said that where a duty to accommodate exists, it is up to the person who has the duty, to show that reasonable accommodation cannot be made.Therefore, school boards are responsible for demonstrating that regular class cannot reasonably be adapted to meet the needs of an exceptional student; parents are not required to demonstrate that it can be!

What does a school board being responsible to"demonstrate" mean? In the Eaton case, the SupremeCourt agreed with the Ontario Special Education Tribunal that"where the school board has already made extensive and significant effort to (...) meet that child's needs in regular class with appropriate modifications and supports, and where empirical, objective evidence demonstrates that the child's needs are not being met in the regular class",a placement in a special class "is not in violation of the Charter or the Ontario Human Rights Code". The effort to meet Emily's needs in a regular class lasted three years. We believe therefore, that to avoid a violation of the Charter, a segregated placement can be proposed only after "extensive and significant" efforts to include a child in the regular class have failed. We believe these efforts should be made over a period of years, not months, and be well -documented.

3. Best interests of the Child - TheSupreme Court stated that school authorities or committees must attempt to make decisions (about the kind of accommodations that may be appropriate) from a "subjective, child contenders" - according to what is in the child's"best interests". It is clear from the context that this "best interests" argument must be considered in light of the statements mentioned above that a) integration is the"norm of general application", and b) only "where aspects of the integrated setting which cannot reasonably be changed interfere with meeting the child's special needs" will the principle of accommodation "require special education placement" outside of the regular classroom.

Some school boards claim that the "best interests"point allows them to place students in segregated settings whenever professionals want to do so, under the belief that this is in the child's best interests. WE DISAGREE!

IPRC's, appeal boards or tribunals can recommend segregated placement ONLY when they have results of years of serious attempts to provide an appropriate education in a regular class with reasonable accommodations on which to base their judgment. They cannot recommend a segregated placement on the basis of their speculation that it might be in the child's best interests without this evidence, for example, when a child first goes to school. We do not believe that they can recommend a segregated placement for any child who has not spent years in an integrated setting.

The Supreme Court stated that the views and wishes of parents will not be the deciding factor. But it did say that "for older children and those able to communicate their wishes and needs, their own views will play an important role in the determination of best interest". So, if a child can communicate that he/she wants to be in an integrated class -and this does not mean that the child needs to be able to speak - the decision-making body must listen. This is new and positive.

What to Say When...

The Principal of your neighbourhood school recommends that your child "be bussed to a special class for students with developmental challenges where he'll be better off".

The Supreme Court has said that "Integration should be recognized as the norm of general application". My child is not an exception to this norm. The Court has also said that a 'decision-making body can only recommend a segregated placement when it is sure that 'aspects of the integrated setting which cannot reasonably be changed interfere with meeting the child's special needs'. This means that the schoolmust first make a strong effort to integrate my child. Otherwise, how can you be 'sure' that the integrated setting cannot reasonably be changed?

Outline the other tests which have to be met (see above). Suggest that the discussion be around ways in which reasonable accommodations are to be made in the regular class. Ask why the school system finds it so difficult to include your son by making accommodations, when the rest of society does not. Say your family has had years of experience with successful accommodation; you are reasonable people; you would be pleased to. help the school figure out what to do.

The IPRC recommends a segregated class in a school outside of your neighbourhood because that is where they have all the resources to support your child.

The school board is required by law to provide appropriate educational services to my child. That will include some accommodation. If resources exist in a segregated class in another school then they can exist in the regular class in the neighbourhood school. That is a reasonable accommodation and theSupreme Court has decided that refusal to provide reasonable accommodation is discrimination and illegal. It is your duty to accommodate my child, but I would be pleased to help the school to figure out what kinds of accommodation will be required.

The IPRC says that your child requires a one on oneTeacher Assistant in order to be included and the board just doe snot have the money to do that.

The Supreme Court agreed with the Ontario Special EducationTribunal when it decided that certain adaptations to the classroom, such as the provision of special furniture, physical assistance and extra supervision from educational assistants (note the plural) is reasonable. It has also decided that you cannot deny my child such reasonable accommodations. These are the lower limits of reasonable accommodation: does my child need more? A 1:1 Teaching Assistant is not the only way to support my child's integration. My child will be reasonably accommodated if the regular classroom teacher has more knowledge of ways to include children with different needs. My son can at times be very well supported by other children- this happens in the community all the time. And providing other students with this opportunity to help is a proven benefit to them as well, something which the Supreme Court also made note of. These accommodations, when used well, provide better results for all students and are a better use of scarce resources. Let's talk.

The IPRC recommends a segregated class since thePrincipal of your neighbourhood school has said that she will place your child in a regular class, but he will not be provided with any support and you cannot expect the teacher to direct any extra attention to your child.

Unwillingness on the part of the teacher to make reasonableaccommodations such as adapting the curriculum or identifying ways in which support can be provided to my child, is not a justification for the IPRC to choose a segregated class for my child. According to the Supreme Court, the failure to make reasonable accommodations is discrimination. IPRC decisions can be appealed or challenged if decisions to segregate have been reached before reasonable accommodations in regular classes have been attempted. I am prepared to appeal any IPRC decision to segregate my child before a serious attempt at integration has been made.

The IPRC recommends a segregated class for your child because "we have tried integration for the past 8 months and it didn't work. You, yourself have complained about what was going on in the regular class".

The Supreme Court has said that you can only recommend a segregated placement for a child after the school board has made "extensive & significant effort to meet the child's needs in a regular class with appropriate modifications and supports". Your attempts on behalf of my child have been neither "serious'' or "appropriate''! The regular classroom teacher did not (insert here any of the reasonable accommodations outlined which apply to your situation). The Supreme Court has said that I can expect an extensive, significant, competent, well-documented and honest effort to meet my child's needs in the regular class. This should take years, not months. I have only witnessed 8 months of poor effort.

 

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