EDUCATION AND DISABILITY:
HUMAN RIGHTS ISSUES
IN ONTARIO’S EDUCATION SYSTEM

A Response to the Consultation Paper For Ontario Human Rights Commission

By Ontario Coalition for Inclusive Education

The Ontario Coalition for Inclusive Education connects thousands of people with disabilities, families, friends, students, advocates, and educators to improve educational opportunities. Our members are the Canadian, Ontario and several local Associations for Community Living; People First Ontario; Integration Action for Inclusion, Down Syndrome Association of Ontario, Family Alliance Ontario, and Millennium Inclusion for the Developmentally Challenge, Toronto Family Network, Youth Involvement Ontario, and the Early Childhood Resource Teacher Network of Ontario. Our work involves unprecedented partnerships with schools across Ontario, Faculties of Education, Ontario’s Ministry of Education, The Trillium Foundation, Human Resource Development Canada, the College of Teachers, teacher federations, and community organizations. We encourage the strategies that improve education through policy research, and the following partnership projects:

Building Inclusive Schools - From 1995-98, 20 Ontario schools asked the Coalition to help them improve their school cultures. We encouraged and funded professional development to improve teamwork and share strategies to include all students. Schools learned most from the personal stories of students and of people who have been given labels such as “intellectually disabled”. Many other schools learned from this Project and continue to be inspired by our unique collaboration.

All Teachers; All Students – Two years ago, advocates organized to advise Ontario’s Faculties of Education about changes needed so that all new teachers are being prepared to teach students of all abilities who will be members of their regular classrooms in the future.

Building for Inclusion – Since April 2000, the Coalition has been helping families to improve their participation in educational planning - to set meaningful objectives with the highest possible standards, establish the required accommodations and ensure that the regular curriculum is appropriately modified, based on the strengths of our sons and daughters.

Students Leading Students – For the past year, self-advocates encouraged secondary students to take a leadership role in their own schools and to advance understanding and acceptance of students with disabilities in their communities.

Networking for Inclusion – This new project will connect the people from the Coalition’s member organizations who contribute to all of Ontario’s school boards’ Special Education Advisory Committees.

We welcome this opportunity to help the OHRC in its work to:
"promote understanding and acceptance of, and compliance with the Code;
undertake research designed to eliminate discriminatory practices; examine and review statutes and regulations, programs and policies … and inquire into conditions leading to tensions or conflict based on… discrimination and take action”

Work of the Ontario Coalition for Inclusive Education also reflects the underlying OHRC principle “that each person should feel a part of the community and able to contribute fully to the development and well-being of the community and the Province”.

We too have serious concerns regarding accessible education for persons with disabilities, borne of our collective experience and diverse expertise.

We are people with disabilities, families and volunteers. This brief is driven by the motivation, passion and lived experiences of those who have been marginalized by the segregated special education system. The people for whom we advocate are so seldom heard. We would greatly appreciate the opportunity to make a presentation at your public consultation sessions.

Q1. BARRIERS TO EDUCATION FOR PERSONS WITH DISABILITIES

We thought that all people with disabilities were protected equally by the Canadian Charter of Rights and Freedoms, but have sometimes been mystified by legal processes.

It has been our experience that Ontario’s education systems – right now, in 2002 - do not come close to reflecting fairness and promoting equity. There is felt to be a “survival of the fittest” mentality in our schools. Perhaps it is in reaction to that, that we also experience a “pecking order” that says some students - with some disabilities - are more worthy of protections and benefits than others. A recent example illustrates this.

We have objected to Ontario’s Special Education Intensive Support Amount (ISA) funding formula ever since its inception, but politicians and bureaucrats alike have disregarded our concerns and suggestions. In presentations to the Education Equality Task Force (EETF) Round Table discussions and Public Consultations, our members identified the incredible harm and disservice done by the ISA process. After the many days of public consultation, one of us happened to meet EETF Dr. Mordechai Rozanski informally. He said he had heard from Community Living associations and others about students being degraded by the ISA documentation process. Nevertheless, he says that most people involved in special education still say the formula is tolerable. We are devastated by this message: it tells us that some students are simply deemed to be expendable. So it is our sincere hope that the OHRC will at long last provide some direction regarding legal protections and educational benefits in Ontario. The most vulnerable children in Ontario appear to be insignificant to the most powerful, inconvenient to bureaucrats, invisible to ordinary people. Who will take action? Who cares? Who listens? Who even notices?

To prevent harm and remove obstacles is especially important to our sons and daughters. They have their whole lives ahead of them. We hope this OHRC process to clarify accommodation rights is a step towards enhancing their lives. Improving education is essential to the future of Ontario. We seek proactive ways to improve opportunities.

CLARIFICATION OF TERMINOLOGY

We feel that some clarification of terms is needed. To us, there is a fundamental distinction that needs to be made between the principle of “design for inclusion” (or “full participation”) and the concept of “integration”.

“Integration” can be defined as the incorporating of disparate and separate parts into a larger unit. In educational practice in Ontario, the assumption has been that certain pupils belong outside the regular education system. "Integration" can apply only to people who are "segregated". Under the Ontario Education Act, segregation is the legally established norm for pupils with disabilities and "integration" is a permitted variant when certain conditions are met. The onus is on those who have historically and customarily been segregated to prove they should be provided with conditional opportunities to be “let back in” to regular classrooms. So integration is somewhat paradoxical: while it might involve a process or be seen as a stage towards ending segregation, it also, in effect, legitimizes segregation.

What would this concept look like relative to building design? If a building has been designed only for people who can walk upstairs, it might be said to “belong” only to them. People who walk may never even be aware that others are excluded; so why should they want change? Those excluded must often make themselves visible, plead their case, and beg to be let in - before those in power decide to add a ramp or elevator. Retrofitting is a process whereby “their” building comes to be shared with people who rely on wheelchairs.

And this comparison is especially linked to educational opportunities. A student can still be excluded from the neighbourhood school, because it has steps. Separate educational facilities still exist because accommodations like ramps are not available elsewhere. Students must appeal before change will occur. People would not consider separate post offices to be an adequate accommodation, but communities still maintain segregated schooling.

We see that educational barriers are more likely to be attitudinal than physical. In 1996, the Attorney General of Ontario testified before the Supreme Court of Canada that regular class placement was the norm for exceptional students in this province. 1998-1999 Ontario government statistics showed that 76% of students with physical disabilities did attend regular classes, but 76% of students with intellectual disabilities remained in segregated placements.

Retrofitting can be a slow and unsteady process.

“Inclusion” involves quite a different process, with different results. Only when a community rejects the status quo, and consciously decides that buildings must always belong to everyone will they be designed from the outset to accommodate all kinds of mobility. And built-in obstacles in education can be avoided through universal design too. This means that as barriers are removed, we will accept responsibility to learn how to prevent them altogether.

The Ontario Coalition for Inclusive Education started from efforts to “integrate” those students who have been excluded, but now accepts the greater challenge of redesigning education for all. According to the OHRC document entitled Policy and Guidelines on Disability and the Duty to Accommodate, organizations such as schools should strive to have in place up-front barrier-free, inclusive design. If this is not possible the next step should be the removal of existing barriers. If full participation for persons with disabilities is still not achieved, then remaining needs should be accommodated to provide equal opportunity for full participation. This accommodation should maximize integration and dignity.

There are many people who do not believe that universal design is achievable in education. But we have seen that - just as accessible buildings ease the way for everyone - the good news is that inclusive pedagogy will not diminish educational outcomes, but can, in fact, improve them.

UNESCO and OECD

As the OHRC Consultation Paper notes, the 1994 UNESCO Salamanca Statement affirms the value of our goal – to ensure that “regular schools” have an “inclusive orientation”.

The Organization for Economic Co-operation and Development Centre for Educational Research and Innovation wrote, in Sustaining Inclusive Education: Including Students with Special Educational Needs in Mainstream Schools (Lessons from the Case Studies - March 1999):

"Although fully inclusive education systems are difficult to locate, enough examples exist, at least at the local and school level, to begin to identify the main factors for sustaining inclusive education.” The report concludes that given certain safeguards, there are few, if any, organizational, curriculum or pedagogical reasons to maintain segregated provision within the public sector. In fact encouraging a symbiosis between regular and special education personnel will prove to be beneficial for the school and all its students. There are, however, considerable implications for the training and preparation of staff and the ways in which they work. Furthermore, funding models, which are biased against inclusion, and systems of public accountability, which exclude disabled students, also need to be reviewed…

It seems safe to conclude that well-developed inclusive practices, which give equivalent attention to disabled students, are less expensive than segregated ones. Furthermore, the evidence on educational progress is such to suggest tentatively that well structured and supported inclusive practices are beneficial for both disabled and non-disabled students alike.” (page 2)

And “the training systems for teachers and other professionals appear to be inadequately oriented for preparing trainees for the demands of working in inclusive settings. The paucity of appropriate training would seem to be helping to maintain an unnecessarily high level of segregated provision.” (page 13)

Proactive educational change involves consideration of these factors. Given the above, one might conclude that if a school, a district or a province segregates exceptional students, it is because it wants to, not because it needs to - i.e. it makes an ideological choice, not an educational choice.

SPECIALIZED vs. SEGREGATED

We feel that some of the wording of the Consultation Paper reflects and perpetuates the ideology of the old “retrofitting” paradigm. For example, don’t “specialized settings” sound preferable to “mainstream classrooms”? (p 19). What is referred to as a “specialized classroom” we would call a segregated classroom (p 8). And who is a “peer”? Is it someone of the same age, sharing interests, or is it another assessed as working at the same educational level, and thus having the same disability label? And how can we ensure that “appropriate” accommodations truly respect individual students, and not bureaucratic convenience and custom?

We understand that this Consultation might involve some thinking about “integration retrofitting” – but we hope this is a means to an end, and not en end in itself. Work the OHRC has already done on the Duty to Accommodate – concerning building and employment accessibility – should be very helpful.

We perceive that current educational legislation, policy and practice in Ontario fundamentally disrespect the 3 key principles underpinning the duty to accommodate:

1. Respect for the dignity of persons
2. Individualization
3. Right to… full participation (through) universal design and barrier removal

We believe that educational segregation does not reflect these 3 principles, is inherently discriminatory, and should not be seen as appropriate accommodation. The many concerns heard by the Ontario Coalition for Inclusive Education involve disrespect, categorization and barriers – all relating to human rights.

We see a fundamental problem in that Ontario’s education system has established two very different structures – special education versus regular education. This is a huge obstacle to the universal design paradigm that should be our goal.

Students must be declared “exceptional” to be entitled to certain accommodations, such as an Individual Education Plan.

IDENTIFICATION, PLACEMENT AND REVIEW COMMITTEES (IPRCS)

Within the separate category of “special ed”, so much is built upon the system of categorizing student “need” relative to exceptionality labels. Regulation 181/98 requires that students be assigned to a category of exceptionality at IPRCs.

Once diagnosed, or identified with such a label, a prescriptive placement is determined. Under section 17(2), if, and only if, "the committee is satisfied that placement in a regular class would meet the pupil's needs and is consistent with parental preferences, the committee shall decide in favour of placement in a regular class". It should also be noted that the concept of a committee deciding whether or not it is "satisfied" that "placement in a regular class would meet the pupil's needs" raises several rights issues.

(i) as is clear from the use of the conditional tense, the committee decision is based on hypothesis, not fact.

(ii) "satisfied" is a subjective response, and as such outside rational analysis and accountability.

(iii) even if it were possible to make rational decisions about whether a "placement" would "meet the pupil's needs", the make-up of IPRCs is such that its members do not have the intimate knowledge of both the pupil and the classroom environment to enable them to make such a decision.

(iv) the implication of the wording of this section is that the pupil must accommodate the "placement" in the "regular class". If she/he cannot make this accommodation, the "placement" will not meet her/his "needs" and she/he will be excluded again. There is no hint here - or in much classroom practice - of accommodation of the "exceptional pupil" by the regular class educators and pupils.

(v) the pupil (and the parents) have no control over the factors involved in the decision. But in practice, whether the needs of the student are met depends on whether, (1) the teacher has the skills, the attitude and the training to create a positive learning environment for all the pupils, including the pupil with the developmental disability; and (2) the teacher has the support of the principal and the other teaching and non-teaching professional staff, who also have the skills, the attitude and the training required to support the teacher if problems arise. It has been proven repeatedly in numerous jurisdictions that where these factors are present, the "needs" of any pupil with a developmental disability can be met in a "regular classroom". But whether or not the pupil finds such factors in her/his regular class "placement" is clearly under the control of the Board and its employees.

(vi) the school is not accountable to anyone for the "programs and services" it provides to "exceptional" pupils; it must (Regulation 181/98, sections 6 & 7) consult with the parent (or a pupil over 16) about the pupil's I.E.P. but there is no requirement that either parent or pupil agree with the I.E.P. that the school draws up and no appeal mechanism if they do not. If the pupil is "placed" in a "special education class", there is no requirement that the "programs and services" "meet the pupil's needs". Nowhere is there any mechanism for accountability for results, or even for the process. Such a lack of accountability or appeal mechanism with respect to the kind of "accommodation" the school chooses to provide or to the results of its implementation is unacceptable.

(vii) it is irrational to attach such importance to "placement", rather than to the education that takes place there. Under section 16 of Regulation 181/98, IPRCs may "make recommendations about special education programs and services" (i.e., what is to happen in the chosen "placement") but "shall not make decisions about special education programs and services". So if we accept, for the sake of argument, that an IPRC might make sensible "recommendations" about an "exceptional" pupil's program in a "regular class", if the school then ignores these recommendations and does other things which clearly do not "meet the pupil's needs", the pupil can be excluded from the "regular class" at the next IPRC meeting at which this pupil's "placement" is discussed.

The current law requires that a group of people without adequate knowledge make life-defining decisions about "exceptional" pupils - and only "exceptional" pupils - by guessing how a school and a teacher may respond to the presence of a particular pupil in a "regular class". Only if the guess is that the school and the teacher will take the trouble to provide "appropriate educational programs and services" for the pupil (and if the parents agree) does the pupil get into the "regular class". And even if the pupil gets into the "regular class", he/she can be moved again after three months (subsequent to another IPRC), if the school or the teacher do not provide "appropriate educational programs and services" for the pupil, and consequently the placement is deemed to have failed.

This is not an adequate or rational response to the constitutional requirement for the provision of equal access to education through accommodating disability. It is a limited "grace and favour" approach ("This pupil can come to a regular class if we find it convenient and for as long as we find it convenient"), which cannot be made consistent with a rights approach or the duty to accommodate. All the above are examples of systemic and systematic negative stereotyping, harm done by the misplaced emphasis on the “I” and the “P” of IPRC.

THE CHARTER

According to the Supreme Court's "Eaton" decision (66), "the purpose of s. 15(1) of the "Charter" is not only to prevent discrimination by the attribution of stereotypical characteristics to individuals, but also to ameliorate the position of groups within Canadian society who have suffered disadvantage by exclusion from mainstream society as has been the case with disabled persons. It is clear that the purpose of the "Charter" is to get rid of the kind of systemic and systematic negative stereotyping that underpin current law, policy and much practice with respect to pupils with developmental (and other) disabilities in the Ontario education system.

HOW DEFINITION PROMOTES DISCRIMINATION

The current definition of the label of Developmental Disability in the Education Act promotes discrimination by predetermining placement, program and potential:
Developmental Disability: a severe learning disorder characterized by: a) an inability to profit from a special education program for students with mild intellectual disabilities because of slow intellectual development; b) an ability to profit from a special education program that is designed to accommodate slow intellectual development; c) a limited potential for academic learning, independent social adjustment, and economic self-support.

If educators already assume that students with this label have “limited potential”, academic expectations will be either non-existent, or so low as to limit any possibilities for literacy and future employment. There is no reference to the need for or provision of individual academic accommodations.

HISTORICAL PERSPECTIVE – Ties to Eugenics

Some historical perspective would be instructive. Some of the other exceptionality categories such as “learning disability” are relatively recent constructs. People given the label of developmental disability have been affected by a longer history of labeling, Called “mentally defective”, it has been as if the problem belonged within them, resulting in extreme prejudice and discrimination. They have experienced disrespect and indignity, stereotypical treatment, and often insurmountable barriers to education, employment, security and even life itself. Our collective history has not involved a societal duty to accommodate those individuals, as has now been defined by the OHRC. What can we learn about the past, in order to improve the future?

Eugenics was an ideology disguised as science that involved assignment of people to groups according to their perceived and devalued characteristics. Inspired by what was known about animal husbandry and early work in genetics, the government of Alberta, for example, decided that people with disabilities should not reproduce, because their offspring would pollute the gene pool". Ontario established institutions to separate people with intellectual disabilities from society. Hitler annihilated millions of people with disabilities – even before the Jews and others - because of similar ideas about preserving the purity of the white race.

Segregated classes - originally called "auxiliary classes", for those who were then called "the feeble-minded" and now called "children with developmental disabilities" - were established in Ontario in 1913 as a public health measure, following organized pressure from eugenicists. The development of IQ tests led to a distinction between the “educable mentally retarded” and the “trainable mentally retarded”. This categorization scheme may have been more ideological than scientific, but was used to justify differential educational treatment. Thus, some children were not allowed to enter school at all. Their parents had to create their own schools, which were not even publicly funded until 1969. (most Ontario communities closed these schools 15 or more years ago, but a few remain – in Ottawa, Toronto, Hamilton, and several smaller centres).

The implication has always been that some children should not be taught academics, but should receive only training – some say, like animals. (This may explain why so much emphasis is still put upon changing the “behaviour” of such students, through operant conditioning. It has only been very recently that professionals have considered that some students should not be punished or ignored, when they can only communicate through their actions. It can be very abusive to deny accommodations such as alternate communication technology, opportunities to work alongside friends who understand them, and the assistance of people who can “hear with more than their ears”!)

The Ministry definition of Developmental Disability (quoted above) rests on its distinction from Mild Intellectual Disability. In 2001, the Ontario College of Teachers still asked teachers to signify if their “Program Focus” was “Trainable Retarded” students. Architects have recently named rooms “TMR classrooms”, in new school plans. These children can be officially placed in regular classrooms only if some professional has said that they are able to "profit" from the instruction there. But the basic premises, prejudices and discrimination of the eugenics-based legislation of 1913 remained intact.

“ Special education" descended from the eugenics and evolved in to institutionalization. Many children, assumed to be incapable of academic learning, were sent away from their families and communities and were confined to provincial government institutions, where they were "trained" to perform menial household tasks (often so they could be used as unpaid labour). It was assumed that different techniques were required to make them learn such tasks. What we know now as the “life skills” curriculum – used for students with developmental disabilities - was developed in institutions. These places were so overcrowded by the 1960s, that some people came to be re-patriated to the community. Institutional life had deprived these people of the opportunity to learn the "life skills" that children living at home pick up naturally. So curricula were developed but skills learned in an institution did not transfer well into real community settings. Most children with developmental disabilities find it difficult to "transfer" skills learned in one environment into another environment. These days most children with developmental disabilities live at home and learn their "life skills" - sometimes slowly and with considerable difficulty - at home with their parents, or by taking part in the real life of their communities. It remains extremely difficult for students who have been given the label of developmental disability to access academic instruction in school at all, let alone the individual accommodations they need to be successful.

FINDING PROOF OR INSPIRATION –
TOWARDS EFFECTIVE INCLUSIVE PRACTICE

We know that the term “burden of proof” has important legal meaning. But in our experience, it is difficult – especially for one little child at a time, entering school – to “prove” that he or she can succeed and learn in a regular classroom, when that situation has never been made available, and when accommodations have never even been envisioned, let alone designed. In 1982, Matthew Dolmage was regressing in a segregated school in Muskoka, but school officials used that as “proof” that he could not learn elsewhere. His parents thought he was a victim of segregation, but the school board, in effect blaming him, would not consider alternative placement. On a case-by-case basis, it is difficult to prove “inclusion” works, when schools refuse to try.

It has been important for the Coalition to define inclusive education, in terms of its many attributes:

+support to learn … better … together

• welcoming, accommodating and celebrating ALL individual differences - as enrichments
• high, individualized academic and social learning goals
• mutual respect - everyone can learn
• credit all learning and all teaching
• active and co-operative learning - planned with everyone in mind
• merge “special” and “regular” education and share resources

+as a member of a regular class

• with kids of the same age
• students must belong, in order to learn
• classroom teacher is committed to each student’s success
• learning takes place in a variety of settings
• support comes to the class

+going to your own “natural” neighbourhood school

• with brothers and sisters
• with other kids who live near you

+with support to participate in and contribute to the life of the school

• school culture encourages a strong collaborative community among students, parents, teachers and staff
• school restructuring requires leadership
• advocacy together for the required supports

It is absolutely essential that individualized supports provide the accommodations each exceptional student requires. But this accommodation process is a wonderful educational opportunity for “learning organizations” – schools and education systems. Inclusion itself is defined as a learning process, on the Angelman Syndrome website:

“Inclusion is a fundamental belief that considers each person an important, accepted member of the school and community. Inclusion is characterized by an attitude of problem solving to discover what is possible… not placing blame, getting stuck or giving up. Inclusion is ‘solution-oriented’. Inclusion means all school staff, students and parents work together as a team in partnership - not in isolation. Inclusion is something that changes over time - it is a series of small adjustments, not just a replicated model. Inclusion creates opportunities for people to learn together!”

The assumptions on which segregated “special education" are based have been disproven in practice, by those willing to be innovative. Hamilton Wentworth Catholic District School Board has not had segregated classes for over 30 years.

Over 20 years ago, both Waterloo and Wellington County Separate School Boards began to create a school system, which included all children, including those with intellectual and other disabilities. Some would say that motivation was ideological or religious, or purely financial. But it is essential to note that these school systems achieved great change at that time, without any of the extra funding the provincial government only provided to public boards that segregated students then labeled TMR.

New Brunswick changed legislation in 1986, so that no energy need be spent in identifying disability categories and deciding upon placement. Most of that province’s scarce resources have gone into planning educational accommodations within the regular classroom. The Woodstock, New Brunswick, school district’s practices were studied by the OECD. Woodstock consistently scores in the top three districts in that province, on the objective testing which some believe to be a useful way to compare overall student attainment. In that case, too, a principled decision was made twenty years ago to create an inclusive school system. Competence was created and success achieved, and the funding was the same as in other districts.

New Hampshire and Vermont have made systemic changes which show that good educational techniques apply to ALL pupils and allow them to learn educationally appropriate content together at their own pace and in their own way. But these are all systems that embraced change, and we have encountered many school systems that resist it, especially when they are not required in any way to defend their status quo, even when involved in legal challenges.

We think it is fundamentally unfair that school systems are not routinely required to prove that their special education practices really help students. Regulation 181/98 Section 18 subsection 2c states that IPRCs should: ”state the reasons for that decision” whenever they decide on placement in a special education class. In practice, we know this rarely happens. We think school boards cannot prove that their segregated placements really do provide “specialized” accommodations and really do improve educational outcomes.

Throughout the many project activities of the Ontario Coalition for Inclusive Education across this province, parents and educators have told us they learned most from consultants who are leaders in People First Ontario. A member of the Coalition, this is an organization of people who have themselves been labeled as having a developmental disability. They prefer to be known by their own names, not the labels. They say that they were harmed by segregation in school, and they want it to stop.

Patrick Worth is an eloquent spokesperson and, like many others, he did not learn to read and write until he was over 30. He says he was told, throughout school, that he could not learn. And he says he got into trouble when he challenged the teacher: “Is it that I cannot learn or that you don’t know how to teach me?”

People First members say they hated leaving their brothers and sisters and neighbours daily on the “short bus”. Many were banished to government institutions. They aspire to have a “real home”, not be forced to live congregated lives in group homes. They spent years in life skills, behavioural and pre-vocational group programs. They call for “real work, for real pay”. They define inclusive education as a “real education”, that should focus on strengths, not disabilities, and aim for the highest possible individual academic outcomes. Already marginalized, they want every effort made to create regular class accommodations, so that students are not sent away to resource room down the hall. They want the regular classroom teacher - not an educational assistant - to be their teacher. They are excited to hear that effective schools research promotes a school culture of interdependence and collaborative learning. Interestingly, such pedagogy is not entirely new.

In the 1950s, Dean Mckennitt received a much better academic education than most of his People First colleagues, in a small one-room school, where he was known – not for his disabilities – but as brother, cousin, friend, and fellow-learner. When they compare experiences, People First members ask: “What’s so special about special education?”

Boards often complain about the costs of providing services to students with disabilities in regular classrooms. The OHRC needs to consider how this is defined as “hardship” and whether or not it is “due”. But Patrick Worth might dare to ask: “Does it cost more, or do they just not know how? …And do they want to learn?” Our experience tells us that funding is not the issue. In 1995, the Hamilton Public School Board discovered that it placed students with all exceptionalities in segregated classes and schools at a much higher rate than the provincial average. (Report on Special Education Programs) They found that the additional cost of educating an exceptional student in a segregated class was twice as high as the additional cost in regular class, on average. The report acknowledges that there is a “social cost of moving a student into a self-contained program away from peers and supportive friends”. They could not conclude whether the additional cost was justified – even “in the sense of meeting the specific needs for which the student was initially identified and placed”. Parents are often told that accommodations will not be made available in regular class, only to find that much more costly supports are provided in a segregated placement. Changes in educational systems and practices require both attitude shifts and competent accommodations.

In November 2001, the Provincial Auditor presented his findings and recommendations for special education in Ontario to the legislature. The fundamental question that the Auditor asked was whether the $1.36 billion that was spent on special education was money well-spent. He concluded that “…parents cannot assess how effectively management has spent special education funds, nor can we provide any reasonable assurance in this regard” (p. 127)

The Auditor recognized that the Ministry should make the effort to enforce Regulation 181 (in effect since 1998) as well as the Standards the Ministry has set for:
Individual Education Plans (IEP's), so that it is evident to the parents, and others, that students are learning and that they are getting the supports that to learn , and
Annual Special Education Plans in order for taxpayers to evaluate the effectiveness of school board services.

However, the Auditor said the Standards the Ministry has set for reporting will not do enough to “ensure effective oversight and management accountability for service delivery” [p. 140] because:

• There needs to be “measurable goals or targets for improving programs and services and, ultimately, achievement levels for students”, and
• There should be a “discussion and analysis of trends” in order to assess “the adequacy and quality of service delivery” and to establish “future goals”. Statistics should be collected about student numbers and placements, the caseloads of professionals, “training requirements and the availability of personnel”, etc.

So we wonder how any bureaucratic or judicial review system can determine how a student’s “best interests” can be met. What facts did the Supreme Court have before it, to consider where Emily Eaton should be educated? They did not hear about her recent years of successful accommodation in a regular classroom in the Brant Catholic school board. They relied on reports from years before - evidence from biased employees of the appellant Brant Public Board, who said accommodation in regular class was impossible. What remains evident is that special education decisions in Ontario do not meet the three key principles underpinning the duty to accommodate: respect for dignity, individualization, and full participation through inclusive design and barrier-removal.

“SPECIAL EDUCATION PROGRAM” = INDIVIDUAL EDUCATION PLAN

School boards usually communicate about special education program as the way they organize their special education resources for groups of students. It might be administratively easier to put all the students who need speech therapy, for example, in one place. So when school officials say that a student needs a special program, they really mean a “placement”. Thus, students are sent away from their neighbourhood school to get help - usually into a segregated class or school, such as a communication or life skills class, or a provincial school for the blind. School boards then create a range of placements, forcing the segregation of some students.

But the Education Act defines “special education program” as:

• a plan for an individual student
• modified by and based on how that student learns
• setting out the goals for that student
• outlining the help that student needs

Program essentially means IEP - concerning one student at a time. An IEP is a mechanism to both determine and commit to accommodations throughout the entire learning environment – those “services to be received by the pupil”, according to Regulation 181 Section 6, Subsection. We believe that better IEPs can avoid any need for segregation, since IEPs are capable of bringing a range of supports – whatever it takes - to the student, as well as the teacher, in regular classrooms of neighbourhood schools. In the Eaton decision, Supreme Court Justice Sopinka wrote that integration should be recognized as the norm of general application because of the benefits it generally provides. An IEP should be a tool for change, to improve or intensify accommodations. However, IEPs now just express educators’ preferences, need not accept parental and student suggestions, and cannot be appealed. There is no onus on teachers to address inclusive design or barrier-removal. In some school boards, IEP engines exist for teachers to just click on “8 year old with Down Syndrome, the computer generates an IEP based on pre-conceived ideas about a category, based on a template. We heard that the Toronto District School Board amended its “IEP engine” computer program to match new funding criteria. How then can we be sure that IEPs - so essential a tool to determine accommodations - meet the three key principles underpinning the duty to accommodate?

We are alarmed that the Ministry of Education seems to be using the word “program” in a way that does not reflect the above-mentioned Education Act definition. They have been working for over two years on a project to develop “Program Standards for each exceptionality”. It implies that all students who have the same label might benefit from the same accommodations. This does not meet the principle of individualization. Because IEPs are designed to determine personalized accommodations, they warrant everyone’s closer attention. We know that many special educators told the Rozanski Education Equality Task Force that accountability would be improved if these Program Standards were adopted. It defies logic that people could say they will help, before we have even seen them. And one would wonder why Program Standards for most exceptionalities have been kept on hold, for over a year since completion. There is no way they can ensure that accommodations recommended are based on actual and relevant individual characteristics.

FUNDING OF SPECIAL EDUCATION IN ONTARIO:

People say that the province’s very public education funding battles are having an impact on all students. But they can increase barriers and block educational opportunities altogether, for those who have disabilities. School boards report under-funding for special education, which, in effect, says that money is being taken from “other” students to accommodate those who have disabilities. Children who are already vulnerable suffer further harm - both from the formula itself and from backlash arising from it. Boards and the Ministry continue to battle. But what is clear is that the provincial government is responsible for both the funding policy and the allocations.

The ISA funding formula is alienating, insulting, and discriminatory; bureaucratic, cumbersome, and time-consuming:

• Students are referred to as ‘ISA kids’, or “files” that have a dollar value - $12,000 or $27,000. Even worse, perhaps, than those categorical exceptionality labels are the rankings now given to students whose documentation matches numbered criteria. Kids are now de-humanized as ISA 7.2, 4.3, etc.
• It pays to devalue students. Money is lost if strengths are documented. So where is the motivation to provide accommodations that promote learning?
• The negative language of ISA has permeated documentation. Who would want to risk the money by reporting progress in IEPs and report cards?
• Such documentation will remain on file permanently, and will precede students throughout their educational experiences and follow them beyond graduation. A 4-year old starting school can be pre-judged as incapable of academic learning; it would not be surprising if this prophecy is fulfilled, if academic instruction is never provided!
• One way school boards get additional provincial money is to provide proof that students lack “impulse control”. This means there is no financial motivation to ever allocate funding to accommodate students in ways that prevent behavioural outbursts. And criteria to provide extra funding for a student who presents such challenges are virtually the same as criteria to expel him!
• Many ISA-related assessments of students are neither reliable nor valid. Some of the intellectual assessments used are not based upon norms for students with other sensory impairments or who do not communicate with words. Test scores are not considered statistically valid at the extremes of the scales measured, and yet some students’ documentation brings Boards money only if scores are in the 99th percentile. Physicians may be unfamiliar with the requirements of the Diagnostic and Statistical Manual Coding system – which lacks respectful language in the way it categorizes students according to ranges of IQ scores, and not on their individual characteristics.
• Parents feel “blackmailed” – they are told their child won’t get educational accommodations unless parents give consent for the release of medical and psychological information. This documentation may have little or nothing to do with the accommodations the student needs. The Health Care Consent Act, 1996, permits parents to refuse such consent.
• ISA misdirects placement decisions. What has happened is that Boards are motivated by the ISA funding and not by the law or students’ needs. Schools are less likely to consider regular class placements (contravening Regulation 181), when students with the label of Developmental Disability, Behaviour, and Autism are described as abject failures socially and academically – to qualify their Boards for extra money.
• The provincial funding formula - and not a student’s individual accommodation requirements – can now dictate the Individual Education Plan. We know that school boards changed the parameters of their computer-generated IEPs when ISA criteria were changed. For example, ISA Profile 7 leads to systemic discrimination of students with the label of developmental disability, because it predetermines what they should be doing in school, as follows: “Claims that meet this profile represent a student with an intellectual disability which results in a need for a program that is focused on the student’s development of social skills, basic living skills, self-control skills and, as appropriate, the acquisition of academic skills”. Ever more limiting and prescriptive labels, as opposed to individual student needs in an IEP, determine program. Historical harms - eugenics, segregation, and life skills - haunt us yet. When will dignity, individualization and full participation ever be realized?
• Certainly, funding is needed to provide necessary accommodations. But ISA money need not be used specifically for the student whose file generates the dollars. The Ministry says ISA criteria are meant to be a “surrogate statistic” – just an arbitrary way to measure the cost pressures of school boards. Since 1999, the ISA funding that boards received has not been what they call “live” – that is, boards could retain ISA funding even after the student had left the school system – they had either moved elsewhere, graduated, stayed home or may even been suspended.
• As a result, Portability adjustments are now being made. Boards now lose ISA money when a student moves to another board. This, in effect, links the funding more closely to the student. How can accommodations be denied a student –especially by claims of hardship - when the student has generated dollars for the Board?
• The benchmark first used to establish ISA amounts was the wage of an Educational Assistant. Boards are obliged to tell the Ministry that they are providing that one particular kind of accommodation – i.e. half or full time Educational Assistant support. (Ministry validators do not check that this is really true, and we have been alarmed to hear educators talk about writing two IEPs – one for the Ministry and one for parents and students – and using whiteout to changes staffing schedules)
• We have seen that this emphasis on EAs discourages the provision of other types of accommodations – such as curriculum modification. (and a variation of ISA is SIP – the Special Incidence Portion, whereby boards show that certain students require more than 2 full-time support persons at all times) This emphasis on one-to-one (or more!) support can be a great disservice to young people. It can build unnecessary dependencies while preventing connections with fellow students and opportunities to learn collaboratively.

Section 3.4.1 of the OHRC Policy and Guidelines on Disability and the Duty to Accommodate suggests that people with disabilities need to make their needs known only insofar as “it pertains to the need for accommodation and any restrictions or limitations”. Ontario’s special education “identification” policies fail this test:

• The Ministry exceptionality categories do not provide an effective basis upon which to design special education accommodations. Thus, students should be able to refuse such labeling, and remove all references to it from their school records.
• Furthermore, students and their parents have been pressured to disclose an excessive amount of very personal information emphasizing negative characteristics only so that school boards could obtain ISA money from the provincial government. Such disclosure relates in no way to the design or delivery of necessary accommodations, and can harm students’ educational opportunities.
• This OHRC document states that “Maintaining confidentiality for individuals with a mental illness may be especially important because of the strong social stigma and stereotyping that still exist”. It is just as important to avoid powerfully harmful pre-judgments made by schools about students labeled with developmental disabilities, autism and behavioural exceptionalities.

PROVINCIAL CURRICULUM: STANDARDIZATION IS EXCLUSION BY DESIGN

The OHRC Policy and Guidelines on Disability and the Duty to Accommodate states “accommodation with dignity is part of a broader principle, namely, that our society should be structured and designed for inclusiveness. This principle… emphasizes barrier-free design and equal participation of persons with varying levels of ability.” And “ Inclusive Design and integration are… preferable to ‘modification of rules’ or ‘barrier removal’, terms that, although popular, assume that the status quo …simply needs an adjustment to render it acceptable”.

Standardization works against individualization; thus the changes in the Ontario curriculum encourage a “one size fits all” mentality and exclusion of everyone who does not. Furthermore, teachers’ federations say they have not been consulted, have been rushed, and lack such basic tools as textbooks. They say this worsens opportunities for non-exceptional students to learn. The fallout is that either exceptional students may not have their individual needs accommodated, or others may resent such required accommodations. Ontario objectives in education focus more on academic skills and information retention, than those of Quebec, which consider social relationships, citizenship, personal identity, etc. as well.

The government of Ontario told voters that they wanted to change educational practices so that parents would know how students were doing, and so that opportunities would be equivalent, no matter where in the province a student attended school. Standard report cards discriminate against students with disabilities because they must document progress according to the standardized curriculum, which is not designed to be inclusive, and they must note grade levels. Therefore, report cards communicate little information to the parents of many students with disabilities – except a strong and disrespectful message that students have failed to meet the standard. Usually a notation on the report card refers to the IEP. This is not very helpful when IEP objectives are often vague, as well. Reporting on progress made according to a student’s IEP can be problematic too; if progress can be demonstrated, then the “file” may no longer fit the ISA profile, and boards do not want to lose funding. As for the equalization of opportunities across the province, placement statistics demonstrate that opportunities are extremely uneven for students with disabilities; it may be a totally different educational experience from one board to the next.

FOR OHRC purposes, accommodations are defined more broadly than they are in the IEP Standards. The Ministry makes a distinction between:

• “modifications” which are “learning expectations that are modified from or alternate to the expectations given in the curriculum policy document for the appropriate grade and subject or course”, and
• “accommodations” which are “any special education services needed to assist the student in achieving his or her learning objectives” (page 2)

What might seem to be a semantic distinction itself creates an educational barrier. It means that academic learning opportunities and credit are denied to those students who might make academic gains at a slower rate or through means not afforded in the province’s standardized curriculum.

Repeatedly, in December 2001 and again in September 2002, Deputy Minister Suzanne Herbert has issued memos to all school boards - to essentially clarify the distinction between modified and alternate expectations. Apparently the Ministry’s IEP Reviews revealed that too many students’ IEPs specified that expectations were “alternate”. Herbert wrote that whenever an IEP relates to expectations that can be found anywhere in the Ontario curriculum documents – no matter what the grade level – then IEP expectations should be called “modified”. The IEPs the Coalition sees – and apparently those reviewed by the Ministry this year and last – very frequently specify “alternate” expectations. So when a student with Down Syndrome learns to express himself in writing, his IEP might opt to call that “communication”, rather than “literacy”. Surely all Ontario students learn about co-operation, turn-taking and sharing, together with academic skills. But some exceptional students’ IEPs record that the focus chosen for them is only on social skills, “life skills” and behaviour – at the expense of academic instruction. And if students are not taught academics, it is no wonder if they do not learn! So again this is not about semantics; how an IEP is written can actually create a fundamental injustice. We think this devaluing of IEP expectations has worsened since the ISA funding formula began. Boards stand to lose $12,000 and $27,000 – for a student who otherwise meets ISA criteria – if his IEP establishes academic expectations. But students whose IEPs have alternate expectations would be more likely to be placed in segregated settings – by nature, alternative.

The IEP Standards also fail to establish a “standard” by which teachers might judge how much modification is allowed in order for a student to still be eligible to earn course credits. Provincial curriculum documents imply that there are limits to the allowable degree of modification. Rubrics have been established in the implementation of the provincial curriculum that is designed not to “credit” the learning of students who require modifications. (This also provides a message to teachers that “discredits” their teaching of such students, as well.) Teachers say they cannot modify a course to “below” the first level of the rubrics that are included in each Ministry curriculum guide. This means that learning is not “credited” if the course is deemed to be modified more than 50%. But how can degree of modification really be measured, in practice? (http://www.edu.gov.on.ca/eng/document/curricul/secondary/progplan/progplan.html#exceptional) this is especially important in secondary schools – where the earning of credits is essential to future post-secondary educational opportunities. Courses that consist of alternative expectations, which are set out in the student’s IEP, are non-credit courses. Students’ achievement in such courses will be evaluated and their grades recorded on the Provincial Report Card, Grades 9–12, and on the Ontario Student Transcript. Course codes starting with the letter K will be assigned to such courses. These codes, along with sample course titles, can be found in the list of common course codes posted on the ministry’s website.

Education Quality Accountability Office (EQAO) testing is a barrier, which has been designed to ensure that students who require academic “modification” (and not just what the Ministry calls “accommodations”) will never graduate from secondary schools. It is customary not to involve many students with disabilities in the EQAO Grade 3 and 6 and assessments (rather than provide test accommodations), but they can still graduate out of elementary school. But the Grade 10 test is a high stakes test – that is those who write but do not pass it, as well as those who do not take it – can never graduate. EQAO has been very arbitrary as well, about which accommodations are permitted. For example, students can take twice the usual time to write the test, but apparently not one minute more. There is concern about the integrity of the test – that all test-takers be compared fairly with respect to those skills the test is designed to measure. But the skill a blind student demonstrates when he listens to the test is fundamentally different from the skill another student demonstrates when he decodes words on a page. Currently there is great concern about the students who have failed the Grade 10 test – and rightly so, especially in vocational high schools. But EQAO has not even attempted to assess the progress of students who are exempted from such tests, no way even to determine whether they are achieving their IEP goals. Thus the tests can only purport to measure a sector within the educational outcomes of our school systems.

It is very dangerous that EQAO testing – as it stands – provides an excuse for school boards to lower their educational standards altogether for some students with disabilities. Last year, the Windsor-Essex Catholic District School Board outlined a new Visionary Program. Certain students (whose “files” happened to meet ISA funding criteria) were to be prejudged as incapable of ever passing the Grade 10 Literacy Test. The Board wrote that ISA funding could be spent on more academically oriented students, while those with disabilities were to be denied academic accommodations and could just have 'fun' with age-inappropriate peers at the roller rink, bowling alley or swimming pool, or be clustered in the resource room.

Safe Schools Policy unfairly targets students with disabilities
According to several recent media reports (e.g. Windsor Star July 25/2002), “The Learning Disabilities Association of Windsor-Essex, the Windsor-Essex Family Network, Family Respite Services, and the Autism Society of Ontario all report a distinct rise in suspensions of special-needs students, often accompanied by letters calling the students’ behaviour ‘injurious to the moral tone of the classroom.’ Even more common, they say, are the growing unofficial suspensions, in which parents are called to pick up their kids but no letter is filed.” Failure to accommodate students can mean they cannot even continue to attend school. There is a growing trend in Ontario's schools to arbitrarily remove students with disabilities. Although statistical data on the frequency of these removals is not forthcoming, families and agencies at the front lines know that they are on the rise. There are a variety of ways in which school officials are removing children with disabilities.

Expulsions and official suspensions require written notice be issued to families and there are opportunities for reviews and/or appeals, provided the duration of the sanction exceeds one day. This legislative framework is not inclusive by design in that it does not guard against students with disabilities being targeted by repeated short-term suspensions. Its mitigating factors are non-prohibitive and therefore non-effective when it comes to protecting students with disabilities from discriminatory removals. However, this legislative framework at least provides students with disabilities and their families with a starting point from which to address discriminatory removals.

However, removals involving discretionary suspensions, parents 'voluntary' taking their children out of school and the use of exclusion orders provide little or no opportunity for recourse and as such, these removals are growing fast in popularity. Although these kinds of removals may not have the potential of permanency attached to them, they are very insidious in nature and can seriously disrupt a student's routine, self-confidence and opportunities to be accepted.

These types of removals are of great concern to students with disabilities and their families and as such, should be to the Ontario Human Rights Commission:

• Discretionary suspensions do not require notice but are still subject to review and appeal procedures provided that the duration of the sanction exceeds one day.
• While there is an opportunity to appeal suspensions and expulsions within the legal framework of the Safe Schools Act the only remedy afforded to parents in the event that they are successful is an expunging of the record. This does nothing to acknowledge a pattern of discrimination and prevent future occurrences. Most importantly, this does nothing to reverse the emotional harm that has been incurred by the student with the disability and the impact that the removal has had on his learning and peer relationships. In cases of suspension, students are most likely back at school before the appeal happens and parents are made to feel irrational for wanting to pursue the appeal.
• Whereas Legal Aid Ontario has decided to fund representation for families faced with expulsion, there is no coverage for families who go to suspension appeal hearings. Families who do go will likely encounter the problem of unfair representation and imbalances of power as one attending lawyer represents the board and a second attending lawyer represents the principal.
• So-called 'voluntary' removals (parents being called and pressured to come and remove their children) seem to be growing in popularity the fastest. This form of removal is of particular concern as it does not accompany any form of required documentation. Most parents will comply with requests to pick up their children in the middle of a school day in hopes of avoiding negative reprisals such as withheld accommodations for their children or worse, a segregated placement. These 'arrangements' are made outside any legal framework and without any accountability. As long as parents are 'voluntarily' removing their children, there is no right of review and no right of appeal even if the child is away from school for more than one day.
• More and more families who know that incidents that happen at school are the direct result of the school's failure to accommodate their children's disabilities are standing up to school officials and refusing to remove their children voluntarily despite fear of reprisals.
• School boards are also engaging in the improper use of exclusion orders against children with disabilities. These orders were never legislatively intended to be used as a means to remove students in this way. They were meant to be used within a trespassing context and not against the schools own enrolled students! These orders are also being used to threaten removal. Families are being told that if they do not submit to a psychological test for their child, there will be an exclusion order sought.
• Special Education Monograph No. 5 (Revised October 2, 1997) Guidelines for the Implementation of the Ministry of Education and Training’s Violence-Free Schools Policy (1994) with respect to Exceptional Pupils and Others with Special Needs” was issued in draft form. Despite requests from the Minister’s Advisory Council on Special Education to re-issue the Monograph, response from the Ministry is that even though it contains excellent suggestions it would have to be entirely re-written in light of the new Safe Schools ACT.

Q.2 Applying the principles in Policy and Guidelines, how can these areas be addressed?

Response:
The issues outlined above are clearly violations of the principles outlined in the Policy and Guidelines document. The OHRC principles need to be widely publicized and enforced. There needs to exist a monitoring and accountability mechanism in education to ensure that these principles are not only adhered to, but drive the core values of the education of all students, not just those with exceptionality labels. We want the OHRC and the Ministry of education to consider the following possible changes:

1. Exceptionality labels should not be allowed to predetermine program and potential of students. Accommodations must be based upon the actual and relevant characteristics of individual students.

2. The Ministry needs to reconsider the entire IPRC process, with its misguided emphasis on slotting students according to label, and not their actual relevant actual characteristics.

3. ISA Funding Formula must be stopped. It is horrendously disrespectful, and has created even greater barriers. ISA entirely confounds the process of providing individual accommodations, worsens outcomes, and contradicts all principles of inclusion. To fulfill the objective of promoting inclusive education, it is necessary for the new formula to concentrate on certain features of program delivery. At the heart of special education program delivery is the ability of parents, teachers and school principals to meet together and through discussion and teamwork plan an individual education program for each student who needs additional assistance to be successful. A funding model must respect this process and provide school principals and teachers the resources to work openly and freely with students and parents. The services and supports necessary for each individual student, must be determined through the IEP process, in a collaborative model involving the student, their parents, teachers, and local school officials. A new funding formula could change the delivery of special education supports in the province of Ontario to a progressive and supportive service for both students and families. Not only must discriminatory language be removed from any new funding formula, but also students must be allowed to show improvement and not risk losing the supports that allow them to be successful. A new, effective funding formula and its underlying policy goals would allow for flexibility and individual needs. Jurisdictions such as New Brunswick manage well with a census-based block funding model. Some components would be:

• It must be understandable by both those delivering and those benefiting from the policy. The procedures should be straightforward and not unnecessarily complex.
• It must be adequate to cover the costs of providing appropriate services and supports as outlined in the IEP.
• It must be predictable and stable so that supports that are needed can be in place throughout the school life of a student.
• It must be flexible to allow boards to respond to local demands, such as when new students enter the school system, or students transfer to other boards.
• Students should not have to be labeled "disabled" to receive support. Teachers should be able to describe student success and improvement without risk of losing funding and supports.
• Reporting requirements should be reasonable and minimized so that staff are available to support students and teachers.
• The goal should be that funding for special education is closely linked with funding for general education in order for services to be integrated.

4. Making IEPs subject to an appeal process, is essential, as things now stand – if students with disabilities rights are to be protected. This is a way to ensure that the principles established by the Supreme Court rulings are applied. Segregation would not be so prevalent if school boards had to show exactly why accommodation in the regular class is not possible and also exactly how any proposed segregated placement would not only fulfill the key principles of the duty to accommodate but also accommodate the specific needs of the student. We do not think segregation would meet this standard.

5. Clarification of Due hardship. Boards are presently using special education budgets as an excuse to limit the accommodation of students with disabilities. The Province of Ontario now determines what financial resources are available. The province should not be shielded from its duty under the Charter of Rights and Freedoms. The duty of the province is to fund the accommodations identified in the IEP - on an individual case by case basis - until doing so would place undue hardship on the province's resources.

6. Provincial Curriculum needs to become “inclusive by design”. This process needs to begin at teachers college where all teacher candidates have to be trained to teach all students. The Provincial curriculum should have been written in a differentiated way e.g. applying effective schools research, multiple intelligences, multi-level instruction, etc.

7. Faculties of Education which prepare teachers for Ontario classrooms must stop subscribing to negative stereotyping which leads to poor practice. All teachers must be prepared to teach the students of all abilities who will be members of their regular classrooms. They must understand how to accommodate a wide range of individual differences, and promote the strengths and learning of all their pupils, seeking help as necessary to create inclusive environments in their schools. Principals must be prepared as leaders – inspiring unprecedented collaboration, supporting teachers to support students, welcoming families and working for them, and celebrating the achievements of all.

Among changes required are:

• no new teacher should be licensed to teach in Ontario until he/she has demonstrated the competencies required to create and maintain an inclusive classroom environment and to teach inclusively.
• no principal's certification should be given to any person until she/he has demonstrated the competencies required to create and maintain an inclusive school environment in classrooms and outside them.
• the Ministry (which is ultimately responsible for the existing situation) should be required to fund a comprehensive retraining and re-orientation scheme which will over five years allow all current teachers and principals to acquire and demonstrate the same inclusive competencies as new teachers and principals will be required to demonstrate. (Perhaps there should be a five-year provisional license, which will lapse if the required competencies have not been acquired and demonstrated in that time.)
• there should be regular performance reviews of principals and teachers to ensure that they continue to use inclusive practices consistently and well. Those who do not should be required to successfully complete refresher courses and demonstrate the required inclusive competencies or have their license to teach withdrawn.
• the Ministry and the Boards should be required to jointly fund a comprehensive retraining and re-orientation scheme which will over five years allow ALL personnel currently employed by school boards who are not practicing teachers and principals to acquire and maintain inclusive competencies in their domain of activity, including the competencies required to manage an inclusive education system. (It is particularly important for relevant senior management at the Board and Ministry level.) Such personnel will be subject to the same performance review requirements as teachers and principals.
• appropriate and decisive punitive action should be taken against university Faculties of Education, which, after five years, do not prepare students so that they can demonstrate the competencies, required to create and maintain an inclusive classroom environment and to teach inclusively.

8. EQAO There must be a requirement for outcomes and related accommodations of ALL students to be evaluated, so that their individual progress is measured. Schools must be made accountable to set standards and evaluate both their provision of the accommodations for, and the progress of, every student. Evaluation methods must be respectful, individualized and promote the full participation of every student.

9. Safe Schools Policy needs to be re-examined. Special Education Monograph No. 5 drafted detailed supportive practices for students with exceptionalities and needs to be re-examined. The recommendations in this document were positive and “forward thinking”. The three-step process of accommodation:

• Organizations must strive to have in place up-front barrier-free, inclusive design.
• If this is not possible the next step should be the removal of existing barriers.
• If full participation for persons with disabilities is still not achieved, then remaining needs should be accommodated to provide equal opportunity to full participation. This accommodation should maximize integration and dignity.

If the recommendations in this monograph were applied and enforced within Ontario's educational system, there would be a reduction in the incidence of removals, exclusions, suspensions and expulsions effecting children with disabilities, thereby reducing the incidence of discrimination and the volume of human rights complaints filed. But band aids will not heal the wounds left by the Safe School Act; OHRC must guide a fundamental change so that exceptional students remain in school, are understood, accommodated and kept safe from harm.

10. Best Practices – effective for all students. The Ministry and school boards should seek to understand inclusive practices and competencies – and cancel all work that relates “Program Standards” to exceptionality categories. Exchanges and visits to sites within the province and elsewhere should be encouraged and funded by the Ministry of Education. Again, this would be a much better use of resources than all of the school board documentation and Ministry validation, which the ISA funding formula now diverts away from Ontario students, teachers and classrooms. School Boards have been encouraged to share costs with other boards – but what needs to be explored is the potential for better use of resources by means of collapsing the duplicate “empires” or “silos” that isolate what has been called “special” education from “regular” education.

The Ministry should restructure itself and take other appropriate steps to fully integrate "special education" into the mainstream of education. It should clearly direct school boards towards supporting the full inclusion of ALL students in regular classrooms and school activities, in accordance with current best practices.

Q.3 Can you provide examples in which students with disabilities are affected also by being members of other historically disadvantaged groups?

Response:

A lot of parental involvement is required to support a child with an exceptionality label, especially developmental disability, to have a successful educational experience, and especially if the parent strongly values the right of their son or daughter to be a fully included and contributing member of their community by being supported to be a member of the typical classroom in their neighborhood school. Statistics show that these pressures, along with the extra support required by their child, very often necessitate that one parent give up the opportunity for employment to continue to advocate. For single parent families, the notion of advocacy is extremely difficult, and in most situations not an option. Parents in historically disadvantaged group have much more difficulty being effective advocates

Parents and students who have English as a second language are very disadvantaged in the ability of their families to advocate, understand legislation, and articulate their beliefs.

Parents of girls with the label of developmental disability who are approaching puberty are frequently pressured to choose segregation because of personal care needs.

Ontario should investigate the percentage of First Nations students still attending residential schools. Ontario’s provincial schools for deaf/hearing impaired and blind/visually impaired students have a record of both abuse, and lowered academic achievement. Are such students and their parents really provided with placement options? The recent Education Equality Task Force has not considered provincial school funding. There is a great disparity between the large amounts paid to house, supervise and educate students in provincial schools (and usually return them home, all over Ontario, every weekend) and what the ISA funding formula provides for students who remain in their home school boards. There should be an investigation into alternate accommodations.

Q.4 What best practices are you aware of for reducing negative attitudes, stereotypes and harassment directed towards students with disabilities in the education system?

Response:

A recent study released by Dr.Gary Bunch (Faculty of Education, York University 2002) illustrates that there is a great reduction in teasing, harassment for students with all abilities/ disabilities(that includes students with the label of developmental disability) if they are in regular classes – all students learn about respect and dignity when they attend school together

The “best practice” to reduce negative attitudes, stereotypes and harassment directed towards students with disabilities in the education system, is support for quality inclusive education for all students.

The Ontario Coalition for Inclusive Education has worked collaboratively on several projects (e.g. Building Inclusive Schools, Building for Inclusion, All Teachers All Students, Students Leading Students) where adults with developmental disabilities contributed to the training of teachers, educators, parents, and community members. The adults spoke for themselves about their past experiences with segregation or inclusion – clearly illustrating the benefits of inclusion to their lives.

The Coalition also conducted the Building For Inclusion project, which developed unique collaborative training for all those who should be contributing to better Individual Education Planning

New Brunswick’s model that has been successful is a census based funding model with a policy of system inclusion so that there is not the waste of so much money on assessment, labeling and documentation of failure, as the ISA formula has promoted in Ontario.

Q.5 What examples exist of policies and procedures that avoid labels for students with disabilities?

Response:

The IEP Standards (1998) exist, which clearly state that the individual education plan of each student must be based on the supports and strategies needed to access the Ontario curriculum. An IEP must be based on the strengths and needs of the student, regardless of their exceptionality label. These IEP standards must be reinforced and monitored.

The Coalition has developed a training package to help teachers adapt curriculum daily. We have designed a Curriculum Adaptation Pathway to guide the IEP accommodations in the provision of additional human resources, technology and alternate teaching and assessment strategies.

We have already made reference to the problems of IPRCs, because other jurisdictions such as New Brunswick do not have them at all. The province of New Brunswick has an education policy of systemic inclusion, which means that resources can be better used to create individual accommodations. It makes more sense to appeal IEPs, which relate directly to the actual and relevant characteristics of students.

We believe that IEPs are the best means to bring help quickly to students - which is the best way to help their teachers too.

Q.6 Given the principles set out in the Policy and Guidelines, what specific guidelines should inform the determination of the most appropriate accommodation in an educational setting?

Response:

As stated in the Consultation Paper, “the most appropriate accommodation is one that most respects the dignity of the individual with a disability, meets individual needs, best promotes integration and full participation, and ensures confidentiality.”

Respect for Dignity

The basis of inclusion presumes that all students have an equal right to receive a quality education with high expectations, to prepare them for a life in the community.

The OHRC Policy and Guidelines that apply to “employment, housing, services and facilities, that must be built or adapted to accommodate individuals with disabilities in a way that promotes their integration and full participation”, must also apply to education.

“Segregated treatment in services, employment, or housing for individuals with disabilities is less dignified and is unacceptable”… this also should apply to the education system. As previously stated, there is a very high percentage of students with the label of developmental disability who are segregated, especially at the level of secondary education. This totally contradicts the OHRC Policy and Guidelines.

Individualized Accommodation

• • Needs to be a process to enforce both IEP standards and the IEP of an individual student. Currently, parents can only appeal IPRC decisions based on label and placement. Parents have been reporting in increasingly high numbers that accommodations stated in a student’s IEP are in fact not being provided. As long as there is no accountability measure and means of enforcement, there is no process in place to ensure the students are accommodated.
• • The principles of “undue hardship” need to be clearly and widely communicated to ensure that parents know that their child’s rights come before collective agreements; and that parents also understand the onus is on the school to demonstrate why they are not accommodating the needs of some students.

Integration and Full Participation

• • Boards should not be allowed to build parallel service systems. Our experience confirms the statement in the OHRC Consultation paper, “Integration is also much more cost effective than building parallel service systems…” . Also, “accommodation is a fundamental and integral part of the right to equal treatment. The duty to accommodate means that the terms and conditions of the workplace, or the functions of a job, may have to be changed.”
  
  • Duty to accommodate takes precedence over collective agreements. If a decision is made that a student should have the support of an educational assistant, then meeting the needs of that students can and must take priority over collective agreements, which protect seniority as opposed to qualifications.
• • An individual student should never be allowed to be totally excluded from the school system, as is currently happening in several instances around the provinces. School boards must be obligated to resolve the issues in such situations. The onus should NOT be on the parent to continue to advocate to have their child attend and participate fully in school, as is their right.
• • Curriculum has to be redesigned with the main guiding principle of “Design by Inclusion” as the basis of how all students are educated
  

Q.7 What tools could the OHRC provide to assist persons responsible for accommodating students with disabilities, as well as those seeking accommodation, to apply the principles for appropriate accommodation set out in the Policy and Guidelines in an educational setting?

Response:

Provide evidence and documentation that “Integration is also much more cost effective than building parallel service systems”

Provide a mechanism to link the principles of Ministry of Education Regulation 181 with OHRC Duty to Accommodate. Integration has to be considered as the first choice of placement according to Reg 181, yet school boards are not adhering to the principles of OHRC for students, whereby a student cannot be refused accommodation.

Q.8 What best practices are you aware of for accommodation policies and procedures in an educational setting?

Response:

See Q.6 Ontario’s existing IEP standards would be helpful, if strengthened in accordance with The Ontario Human Rights Code, and actually enforced.

A policy of full inclusion similar to the one in New Brunswick would greatly eliminate many of the issues that are happening in Ontario.

Q.9 Based on the principles set out in the Policy and Guidelines, what should be the respective responsibilities of parents, students, educators, experts, government and other parties for accommodation of students with disabilities?

Response:

The responsibilities of these parties are clearly outlined in the IEP Standards document, as well as in the Ministry’s 1998 IEP Resource Guide but needs to be strengthened, monitored, and enforced.

Government:

The Ministry of Education should provide clearer guidelines for curriculum modification in the IEP standards. This could enable educators to more accurately assess and record progress made by their student(s).

The Ontario Ministry of Education has a project to create Program Standards based on exceptionality categories. This concept of standards being based on a label contradicts the principles in the OHRC Policy and Guidelines on Disability and the Duty to Accommodate.

The Ministry must monitor and enforce Reg. 181 to ensure that every exceptional student does have the opportunity to be accommodated in the regular class. (To compare this with other Human Rights issues, a person who uses a wheelchair may use the back door of a public building. But this is his choice only when we make sure that the front door of the building remains accessible too.)

Educators:

Information reported on students should be done in a respectful manner, not relying on the language used in ISA, and progress should be reported, as achieved, in relation to the modifications/accommodations to the Ontario curriculum. Negative documentation, as proposed by the ISA criteria, greatly impacts the future of inclusion and full participation of persons with disabilities , prejudges incompetence and lack of ability to access academic curriculum.

Parents:

When sharing information re their son or daughter, they need to use positive descriptors that are respectful and focus on strengths. This will provide a foundation from where educators can begin to plan for teaching the child in their classroom.

Experts:

Need to remember that they are reporting on an individual not a label/category of exceptionality and when preparing their reports that they, too should be done in a respectful manner, not relying on the language used in ISA, and that the information reported should only be done to enhance student success at school.

Q.10 What specific issues need to be addressed in applying the OHRC’s policies and guidelines on undue hardship in an educational setting?

Response:

1. Lack of awareness on the part of the parent: In order for the policy to be applied, it must be clearly communicated to everyone; for example, in parent handbooks, and communications to unions, schools, parent councils, etc.
2. Undue hardship: In any situation where a parent is told that student cannot be accommodated in regular classes because of ISA funding issues, but can be accommodated in segregated class to get support, the board should have to demonstrate their undue hardship
3. Individuality and what is best for students: Exceptional students should not suffer from competing agendas about what is best for “other” students of the same exceptionality (or students with different exceptionality labels)
4. Cost analysis of inclusion vs. parallel service delivery model needs to be done. Also comparison is needed between outcomes of students who have experienced an inclusive vs. a segregated educational experience.

Q.11 What mechanisms would you recommend be established to promote ongoing dialogue on issues related to education, disability and human rights?

Response:
It is not clear who would participate in the dialogue. However, we recommend the following mechanisms:

1. Interactive web sites.
2. Mechanisms that already exist that may or may not be effective: SEAC, MACSE, PAAC. Perhaps the roles/mandates of eachf these groups could be broadened beyond an advisory capacity
3. A process to monitor IEP standards
4. Measure the outcomes of inclusive education vs. segregated education, and highlight effective and best practices.
5. Curriculum modification strategies – what works well – look at “design by inclusion”
6. Teacher Education needs to be addressed – Teacher candidates should learn the three principles and how to apply them.
7. Professional development should occur on a regular basis for current staff on the application of the principles of human rights and accommodation.
8. Any mechanism for discussion must involve people with developmental disabilities

Q.12 Are there other issues related to the Ontario Human Rights Code, disability, and education that you would like to raise?

Response:
The requirement for a label as stated in Reg. 181, is contrary to the principles of Duty to Accommodate. In 1995, People First Ontario told the Minister of Education that there is nothing about an exceptionality label that helps a teacher teach a student better. How much clearer can we be? Because any discussion of support, IEP, etc begins with the labeling process through the IPRC, students with developmental disabilities (and others) are set up for systemic discrimination because of the history of disrespect, limiting of academic and employment opportunities, and pre-judgment of their “potential”.

This province needs to commit to change - both in inclusive educational design and the removal of barriers. The OHRC consultation document, and the Supreme Court’s decision concerning Emily Eaton assume that regular class placement is the first choice for exceptional students; however, this is far less true for students with developmental disabilities than for any other group of students. According to 1998 statistics, 76% of students with the label of developmental disability are segregated vs. 76 % students with physical disabilities who are integrated. Clearly the issue is not the removal of physical barriers. The Ministry of Education and OHRC need to determine why this is happening. We have seen errors in the Ministry statistics concerning exceptionalities and special education placements, based upon school October Reports. This demonstrates that the Ministry pays little attention to the numbers, let alone the trends. The Ministry and OHRC need to examine why there are such huge variations among school boards with respect to percentages of students segregated. It has been 15 or more years since almost all school boards in Ontario closed those schools, which totally segregated students with developmental disabilities. They found other supports; so we need to know why a few such schools remain open, and what accommodations their students require. And is it any coincidence that it is public boards in Ottawa, Hamilton and Toronto that maintain the greatest degree of segregation?

Ministry of Education has created IEP standards, which could require application of OHRC principles, but so far they are not being enforced at all. The Ministry has reviewed samples of IEPs, provided to them voluntarily by 50 school boards, and will look at some from the remaining 22 boards this year. The tone of this IEP Review began as if the Ministry was seeking feedback about the IEP Standards themselves. The IEP is such an important document, and the Ministry Standards – while insufficient – could be helping Ontario students more. Compliance must be at least monitored, if not enforced.

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