We are plowing through the duty to accommodate. We know how powerful the human rights code is, and we understand the discrimination test and the reasonable justification test. We have looked at the first part of the duty to accommodate and how we trigger meaningful inquiry. Now we are moving to the next step – duty to consult.
How the duty to consult (meaningful consultation) is defined in education came from a human rights case decision. For some people, they would really like meaningful consultation to be more defined, but it is going to be different for every student. One student may only need a 30-minute IEP meeting. Another student may need multiple IEP meetings. IEPs are also living documents that can be updated and adapted at any time of the year. You don’t need to wait for IEP season to come around in the fall to meet with the school team. Some schools have been sending out notices that say each parent gets a 30-minute IEP meeting. Or, they aren’t even getting a meeting. The staff are meeting and they are sending home the IEPs and getting parents to offer feedback on the already created IEP through email.
We all understand that schools are under constraints.
BUT
It doesn’t matter.
The human rights code prevails. And meaningful consultation is attached to human rights case law. Meaningful consultation will trump a 30-minute restriction on an IEP meeting. If you think that you haven’t been consulted on items and the IEP is incomplete or your child needs accommodations that they aren’t receiving, you have the Human Rights Code behind you. At the bare minimum, they need to consult with you. It needs to be “meaningful”.
So, now let’s dive in and, as always, we start by looking at the written authority. There is a lot of it backing up the ability to consult with the school.
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Hewko v. B.C., 2006 BCSC 1638 (CanLII)
Duty to Consult
[342] The relevant statutory provisions with respect to a School District’s obligation to consult with parents and students are found in the School Act, and in particular, ss. 4 and 7.
[343] Section 4 of the School Act provides that: “A student is entitled to consult with a teacher, principal, vice principal or director of instruction with regard to that student’s educational program”.
[345] Section 7(2) affords the parent the right to consult with school staff regarding their child’s educational program:
A parent of a student of school age attending a school may, and at the request of a teacher, principal, vice principal or director of instruction must, consult with the teacher, principal, vice principal or director of instruction with respect to the student’s education.
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So, to start us off, we have the School Act. This is a law. The Ministry wants school districts to be consulting with students and parents.
Also, note that students are entitled to consultation too. So if they are receiving a suspension and your child didn’t get a chance to explain their side of the story before the decision was made, you can take this section of the School Act and request a meeting, or it can be part of the Section 11 appeal you file.
Ok, let’s continue on because we have a lot more written authority that backs up the duty to consult. 👇👇👇👇
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[346] The Individual Education Plan Order and the Mandate for the School System adopted by B.C. Order-in-Council 1280 (August 30, 1989), also require that the parents of special needs students be afforded the opportunity to be consulted about the nature of their children’s education. Pursuant to s. 4 of the Individual Education Plan Order, school boards are required to consult with the parents of special-needs students about the content of the individual education plan for each student. It provides:
Where a board is required to provide an IEP for a student under this order, the board…must offer a parent of the student…the opportunity to be consulted about the preparation of the IEP.
[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.
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So, where the School Act is a law, we have now moved on to orders by the Ministry. And this is all from the same human rights case that I listed above.
Now we get into the details of what all of this means. This is also from the same case.
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[361] It is possible to summarize some very general principles which inform or provide content to the duty to consult from the above cases.
1. Before any decision is made regarding the placement of a child within the school system and the persons who will have the responsibility to implement an IEP, the parents must be consulted.
2. The depth of consultation and the concomitant obligations for the parties to accommodate the requirements of the other will vary with the known need of a child’s requirement for a modified curriculum.
3. All necessary information in regard to either parties’ position on a proper placement and IEP must be provided in a timely way so that each will have an opportunity to express their interests and concerns and sufficient time to ensure that their representations are seriously considered and wherever possible demonstrably integrated into the proposed plan.
4. Each party to consultation has an obligation to provide timely information and an obligation to make whatever accommodations are necessary to effect an educational program which is in the best interests of the child.
5. In coming up with a placement and an IEP for a child with autism or Autism Spectrum Disorder, Dr. Foxx’s opinion as set out below should be regarded as the most significant underlying principle for meaningful consultation “the program will not work unless everybody sign on to it. And the reason they sign on to it is because it’s a program that makes absolute sense to all parties. It has to be designed as a win-win for everyone so that all the parties understand.”
6. The parents of a special needs child do not have a veto over placement or the IEP. Meaningful consultation does not require agreement by either side – it does require that the school district maintain the right to decide after meaningful consultation.
7. The bottom-line requirement for each side in a meaningful consultation is to be able to demonstrate that the proposal put forward can produce instructional control of the child.
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Lots of stuff from here. Parents don’t have the final decision-making say, but before a decision is made, parents must be consulted. There should be enough time given to ensure parents can express their concerns and for them to be considered. That time will vary depending on the needs of the student.
The British Columbia Council of Administrators in Inclusive Education put out a whole guide on meaningful consultation.
So if you run into any issues with the school not consulting with you, you have this guide from the administrator organization, Ministry orders and school law and what trumps and enforces all of that is the duty to consult in this human rights decision. In theory, no one should be having ANY issues with consultation.
Which means…. if schools are ignoring you… and I know this happens. You have everything you need to take your issues to the person who is above them. Administrators absolutely should not ignore your emails. Especially when you are outlining your concerns and highlighting how they are connected to your child’s disability-related needs. That is a HUGE no-no. The meaningful inquiry process should be triggered, and the exploration of possible accommodations, if necessary, should begin, which will need to include you for consultation.
Many school districts on their website have documents related to consultation. The Ministry of Education’s document on Inclusive Education has the word “consult” in the document 73 times. With the extent of written documentation on consultation, clearly, no parent should be getting the silent treatment.
Key Takeaways
You have lots of written authority to back up your right and your child’s right to be consulted on decisions that impact the quality and their participation in their education.
Parents don’t have the final decision-making say, but before a decision is made, parents must be consulted. There should be enough time given to ensure parents can express their concerns and for them to be considered. That time will vary depending on the needs of the student.
Next Blog
We will be wrapping up the ACTION parts of the duty to accommodate with the duty to facilitate and some other key items around school responsibilities, and then the final blog will be pulling it all together with a final message.
We are almost at the end!