So, I just want to preface this page with, I am not a lawyer. I am a Major in Criminology Legal Studies student trying to understand how education law works. So far, this is my level of understanding as of the date of this post(July 9th, 2024). If there is anyone out there who has further information or other information to add to this, I would love for you to contact me. Please see this information as a launching pad for your own further inquiries and/or consultation with a lawyer.
A) BEFORE THE EXCLUSION:
Before exclusion (reduced hours or exclusion for a trip/event) the duty to accommodate must be fulfilled.
School districts and parent(s)/guardians are responsible for:
- School staff need to investigate the barriers that are preventing your child from accessing their education equitably. To trigger this investigation, you don’t even need to use the word accommodation, (1) the student just needs to have a disability that has been communicated to the school with evidence (documentation), (2) you communicate your child is struggling/experiencing harm at/from school (3) and that harm is connected to their disability.
- School staff need to create a plan on how to remove those barriers.
- School staff need to engage with you in meaningful consultation.
- Both districts and parents have a duty to cooperate in good faith.
- The final decision of the plan is the school’s responsibility. (There are advocacy options if you do not agree.)
- School staff need to implement the plan.
- Parents have a duty to help facilitate the plan, whether they agree with it or not.
- School staff need to continually be monitoring and adjusting the plan as needed so that your child is getting “reasonable” (not perfect) accommodations to access their education.
If steps 1 through 8 have occurred in good faith and there are concerns connected to self-harm and harm to other students, the school may decide it’s in the best interest of the child to be excluded/reduced hours for a temporary period of time.
It’s important to note that ALL OPTIONS need to be EXHAUSTED and exclusion is a LAST RESORT.
Many parents will talk about meetings that involve professionals for all sorts of different versions of safety plans first, during and after exclusion occurs.
For case law that explains where steps 1-8 come from please click on Understanding the Duty to Accommodate.
B) THE EXCLUSION:
The school has the final decision to reduce school hours, or exclude a student for a temporary period of time.
The school must come up with a plan and implement this plan as quickly as possible for the student to return to school. The school must be removing the barriers for them to be able to “reasonably” access their education. (Scroll down to Part C. Part C will look at barriers)
Parents must facilitate the implementation of this plan, whether they agree with it or not, otherwise, it will not be considered discrimination and a human rights complaint will be dismissed. (See human rights case decisions below). If you don’t agree, you have options for advocacy which may include filing a Section 11 appeal and/or Human Rights Complaint, etc.
School districts also need to provide education for at-home during the exclusion. See below for more info.
Some school districts are creating exclusion policies. The Human Rights Code determining if discrimination has occurred will trump school policy.
If the schools are not even following their own policy you can file a complaint with Ombudsperson BC
Here is the discrimination test:
A and B obo Infant A v. School District C (No. 5), 2018 BCHRT 25 (CanLII)
[203] The Parents complain that the School District discriminated against their Child on the basis of his disability and race. To prove this, they are required to establish three facts: (1) that the Child had a disability and/or was protected by the characteristic of race; (2) that he was adversely impacted in his education; and (3) that his disability and/or race was a factor in that adverse impact: Moore at para. 33. The onus is on the Parents to prove these facts on a balance of probabilities: Ontario Human Rights Commission and O’Malley v. Simpsons-Sears Limited 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536, pg. 558.
Here is the school districts justification test:
[204] If the Parents establish these facts, the burden shifts to the School District to prove that its conduct was bona fide and reasonably justified. This requires it to prove: (1) that the standard it imposed was adopted for a purpose rationally connected to its function of delivering education to students; (2) that its conduct was undertaken in good faith, in the belief that it was necessary for the fulfilment of its purpose; and (3) that the standard it imposed was reasonably necessary, in the sense that it could not accommodate the Child without incurring undue hardship: British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights) 1999 CanLII 646 (SCC), [1999] 3 S.C.R. 868 [Grismer]. The third element of the defence encompasses the School District’s duty to accommodate students with disabilities. It is often the focus of the analysis, as is the case here. In Moore, the Court explained:
The next question is whether the District’s conduct was justified. At this stage in the analysis, it must be shown that alternative approaches were investigated. The prima facie discriminatory conduct must also be “reasonably necessary” in order to accomplish a broader goal. In other words, an employer or service provider must show “that it could not have done anything else reasonable or practical to avoid the negative impact on the individual”. [citations omitted] (para. 49)
REDUCED SCHOOL HOURS
From this Case: Kahn v. Upper Grand District School Board, 2019 HRTO 1137 (CanLII) (BLOG VERSION of this case – condensed)
The justified response to reduce school hours was related to safety. The tribunal upheld that the reduced school hours of him being “successful” and then increasing his time after being home for a week was reasonable accommodations. The mother disagreed and because she refused to engage in the accommodation process the complaint was dismissed.
[256] Before finalizing this plan, a meeting was held with Ms. Kahn as well as with Grayson’s private ABA provider and a representative of Kerry’s Place both of whom contributed ideas that were incorporated into the plan and both of whom approved the plan. The plan would build success for Grayson by having him attend school “successfully” for a shorter period and then for increasingly longer periods. It would include 5 hours a week of home instruction. The plan was one that had been used successfully in other cases. Dr. Smith’s view was that this plan had the best guarantee of success for Grayson.
[258] The only person who did not agree with the plan was Ms. Kahn. Her reasons for disagreeing at the time appeared to relate to the fact that Grayson’s time at school would be too short before she would be required to pick him up. However, since the plan depended on starting Grayson out successfully in short but increasing increments, and the plan was supported by all involved in developing it, including Ms. Kahn’s private BCBA and her contact at Kerry’s Place, I find that there was no reasonable basis for Ms. Kahn’s rejection of the Loop of School plan.
A and B obo Infant A v. School District C (No. 5), 2018 BCHRT 25 (CanLII)
(BLOG VERSION of this case – Condensed)
[248] The School District is not the only party with obligations in the accommodation process. Rather, the parents were obliged, as the Child’s representatives, to work towards facilitating an appropriate accommodation: Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 SCR 970. If the School District initiated a reasonable proposal that would, if implemented, accommodate the Child, then the Parents were obliged to facilitate that proposal. Failure to do so is fatal to their complaint of discrimination.
OBLIGATION FOR CONTINUED EDUCATION
This is from the Special Education Manual pg. 37
“School districts must maintain appropriate educational programs for students who are anticipated to be absent from school for extended periods of time. Instruction should be initiated as soon as possible. Authorization from the physician or public health nurse should be received prior to services being provided to students with health problems. Students eligible for homebound services include:
• students who are absent from school for medical reasons such as injury, disease, surgery, pregnancy, psychological reasons, etc.; and
• students suspended by the board of school trustees under the School Act may be served in a homebound program.
This program should not be used routinely as the only option for students with severe behavioural or emotional problems. As well, homebound education services are not intended to serve students registered under the Home Education section of the School Act.”
If your child is away excluded from school, they should still have their education be provided. Also, see case (Kahn v. Upper Grand District School Board, 2019 HRTO 1137) above where the child was receiving 5 hours of week of home instruction. This was considered reasonable by the tribunal.
C) Removing Barriers (Asseccibility Act):
The school must always be monitoring and adjusting to remove the barriers for students to be able to access their education. They don’t need to offer perfect accommodations, just reasonable ones that are enough to remove the barrier.
Barriers – From the Accessibility Act
2 (1)For the purposes of this Act, a barrier is anything that hinders the full and equal participation in society of a person with an impairment.
(2)For certainty and without limiting subsection (1), barriers can be
(a)caused by environments, attitudes, practices, policies, information, communications or technologies, and
(b)affected by intersecting forms of discrimination.
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As outlined from the Onatario’s Unviersity Accessibility Campus (2017) There are 5 Barriers
Attitudinal Barriers – are behaviours, perceptions and assumptions that discriminate against persons with disabilities. These barriers often emerge from a lack of understanding, which can lead people to ignore, to judge, or have misconceptions about a person with a disability.
Organizational or systemic barriers are policies, procedures or practices that unfairly discriminate and can prevent individuals from participating fully in a situation. Organizational or systemic barriers are often put into place unintentionally.
Architectural or physical barriers are elements of buildings or outdoor spaces that create barriers to persons with disabilities. These barriers relate to elements such as the design of a building’s stairs or doorways, the layout of rooms, or the width of halls and sidewalks.
Information or communications barriers occur when sensory disabilities, such as hearing, seeing or learning disabilities, have not been considered. These barriers relate to both the sending and receiving of information.
Technological barriers occur when a device or technological platform is not accessible to its intended audience and cannot be used with an assistive device. Technology can enhance the user experience, but it can also create unintentional barriers for some users. Technological barriers are often related to information and communications barriers.
Each school district has an accessibility committee whose purpose is to fulfill the mandate of the Accessibility Act. There are forms that you can fill out if you or your child is struggling with barriers within the district.
D) Dealing with Exclusion
IF YOU NEED HELP with Advocacting Please see the Advocacy Help Directory Page
This page contains lists of some non-profit organizations that offer direct in-school advocacy support.
For example: Inclusion BC, Family Support Institute, FASD Support Society, etc.
For parents dealing with exclusion I highly recommend the following blog page
Also know that if you are considering filing a Human Rights complaint, depending if you have also experienced harm (job loss, financial harm, documented stress, etc) then you may also be able to file a complaint for yourself under FAMILY STATUS.
Family Status – Human Rights Complaints
2 Cases connected to Family Status are:
The Parent v. The School District, 2024 BCHRT 113 (CanLII)
Independent School Authority v Parent, 2022 BCSC 570 (CanLII)
*** Make sure you file within the one-year time limit. It’s already been decided by the tribunal that family status complaints in education won’t be accepted after the one-year deadline.