Understanding the Duty to Accommodate

How does the Duty to Accommodate Apply In Education?

School districts and parent(s)/guardians are responsible for:

  1. 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.
  2. School staff need to create a plan on how to remove those barriers.
  3. School staff need to engage with you in meaningful consultation.
  4. Both districts and parents have a duty to cooperate in good faith.
  5. The final decision of the plan is the school’s responsibility. (There are advocacy options if you do not agree.)
  6. School staff need to implement the plan.
  7. Parents have a duty to help facilitate the plan, whether they agree with it or not.
  8. 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.

What does the Duty to Accommodate in Education Involve?

  1. Duty to meaningful inquiry (district)
  2. Duty to consult (both district and parent(s))
  3. Duty to co-operate in good faith (both district and parent(s))
  4. Duty to facilitate (parents)

These responsibilities are outlined in human rights tribunal decisions. If they do not follow these steps they will need to be prepared to justify it to a tribunal member, if you file a human rights complaint. (Some discrimination is legally justifiable.) They will need to prove that given what they knew or ought to have known at the time, they took all reasonable steps to fulfill the responsibilities listed above.

Student by Parent v. School District BCHRT 237
[99]           Next, in B v. School District, 2019 BCHRT 170, the evidence supported that the school district provided the child with the recommended supports and accommodations. The Tribunal found that it was “only with hindsight” that it was possible to say that the child could have benefited from more support: para. 81. It dismissed the complaint in part because there was insufficient evidence to demonstrate that the school district reasonably ought to have known that the child required more: para. 98. In contrast here, I have found that the District had sufficient information to trigger some kind of inquiry or response beyond asking the Student how she was doing and, assuming the counsellor did this, advising of available supports.

** From this case we can know just how important it is for parent(s)/guardians to keep communicating with the school and outlining how their kids are struggling through email communication with multiple people in the district, to keep ensuring they have a responsibility to monitor, access and adapt. They aren’t allowed to give up on our kids. They have to keep trying to give them reasonable accommodations so they can access their education. Documented paper trails of communication are key.

Where do these responsibilities come from?

  1. All children have the right to access their education equitably. The legal test for discrimination was established in the Moore Case and can be seen here on the BC Human Rights Tribunal Wesbite. 
  2. The first part of the test means the school needs to know that your child has a disability. You need to provide documentation stating your child’s disability. The importance of this can be read here in the blog from the Human Rights Clinic.
  3. You need to communicate your concerns regarding the negative impact that your child is experiencing that is connected to their disability. The school has a duty to meaningful inquiry. They need to investigate and figure out what the barriers are and figure out what to do about removing the barriers so your child can access their education equitably. (You don’t even need to use the word “accommodation”.) (Student by Parent v School District BCHRT 237 – Paragraph 99, 100, 104) Meaningful Inquiry
  4. The school district has a duty to consult and both parties have the duty to co-operate in good faith. (Hewko v BC – Paragraph 347) “The Mandate for the School System reiterates that parents have the right and responsibility to participate in the process of determining the educational goals, policies and services provided for their children.  Teachers have the responsibility to ensure that each student is provided with quality instruction, permitted to participate in all normal school activities and to monitor the behaviour and progress of each learner in accordance with provincial and local policies.” Duty to Consult
  5. The final decision regarding the plan is the responsibility of the school, and the parents need to facilitate the final decision. (A and B obo Infant A v. School District C (No. 5), 2018 BCHRT 25-Paragraph 248) “Failure to do so is fatal to a complaint of discrimination” Duty to Facilitate  Even if you don’t agree with the decision, in order to not have your human rights complaint dismissed you need to facilitate it. You will still be documenting the harm, if there is any because of the next step.
  6. If those accommodations do not work, they have to keep trying and monitoring your child and make attempts at new accommodations. (Paragraph 120) “reviewing progress and changes, and adapting its approach in response” They need to keep attempting to remove the barriers. (X by Y v. Board of Education of School District No. Z, 2024 BCHRT 72 – Paragraph 142) Reasonable Accommodations 

** For anyone who has a child with a diagnosis but hasn’t received a designation or an IEP, as long as they have a diagnosis letter and this documentation has been given to the school, all of the above rules apply. For example, Generalized Anxiety Disorder, ADHD, etc. Even without a designation or an IEP, your child who has a disability is still protected under the BC Human Rights Code.

If you feel like you are just spinning and not getting anywhere… you may want to consider filing external complaints.  It’s unfortunate, but sometimes they need to be pressured from the outside. Depending on the issues you are facing that is the Teachers Regulation Branch, Ombudsperson, Human Rights Tribunal, file a Section 11 appeal, email the Ministry of Education and CC the Superintendent, or email your MLA. The media has been a successful path for field trip exclusions for some. (HINT: School Districts are going to need to justify their actions for a human rights complaint. When the school district is aware you have filed a human rights complaint, they will do what they can to limit/reduce the damage time period of discrimination to reduce their costs. That is good news for you and your child as they will want to show reasonable accommodations are being implemented ASAP.)

Important Cases in Human Rights for Education with Disability

Moore v. British Columbia (Education), 2012 SCC 61, [2012] 3 S.C.R. 360

Student (by Parent) v. School District, 2023 BCHRT 237

X by Y v. Board of Education of School District No. Z, 2024 BCHRT 72

Hewko v. B.C., 2006 BCSC 1638

A and B obo Infant A v. School District C (No. 5), 2018 BCHRT 25

Important Cases for Parents Filing under Family Status

Independent School Authority v Parent, 2022 BCSC 570

Parent v School District, 2024 BCHRT 113

Other protected characteristics in an Education setting

Bullying 2SLGBTQIA – Jubran v. Board of Trustees, 2002 BCHRT 10 

Race and Disability – A and B obo Infant A v. School District C, 2016 BCHRT 184