The duty to accommodate is a collaborative process where everyone needs to work together to come up with a reasonable accommodation plan.
The accommodations don’t need to be perfect or ideal, just enough of “a ramp” to make accessing education equitable. And not a ramp that goes halfway up the stairs. The accommodations need to remove barriers – level the playing field and make it accessible. We aren’t looking for equal treatment, but equitable treatment.
1. What are the child’s disability-related needs?
2. What are the barriers the child is experiencing? (Physical, technology, communication, attitudinal, etc)
3. What are reasonable accommodations that will remove the barriers?
These are rights-based questions.
Summary
Power of the Human Rights Code
The Human Rights Code is very powerful. Our most powerful form of advocacy. It is the law above all laws. It supersedes all of other laws, Ministry policy, IEP policy, designation standards, administrative procedures, teacher autonomy, when in conflict.
Students don’t need a designation or an IEP to be protected by the Human Rights Code and get accommodations for their disability related needs.
ANYTIME the schools give you a reason for denying your child an accommodation, or are not protecting them from bullying, or they use policy in a way that you think is harmful to your child…. in steps the discrimination test.
Parents are protected too, and can file a complaint under family status and the discrimination test applies to them.
Discrimination Test
- Does your kid have a disability?
- Were they harmed
- Is the harm linked to their disability?
Yes + Yes + Yes = Discrimination
Impact is the focus. The harm your child has experienced. Not intent. They don’t need to intend to discriminate in order for their actions to create discrimination.
The code protects students with disabilities and even perceived disability.
Reasonable Justification Test
Schools may be able to justify the reasonable accommodations your child is offered, or maybe not. It is going to be very context-specific to your situation.
The school will use arguments to justify their behaviour that could include hindsight, safety, collaborative process (they are trying in good faith – not lack of resource related), reasonable accommodation, lack of resources or staffing, blame your child for not self-advocating enough etc. Whether these arguments are grounded in any truth, that is another question. Just because they have arguments doesn’t mean they are strong arguments or that they have evidence to back up what they are saying. We aren’t the only ones who need evidence.
We need to always be communicating the harm that we are witnessing and how that harm is related to their disability.
Meaningful Inquiry
We need to disclose with documentation (ideally) to the school to protect our kids with the Human Rights Code and the Duty to Accommodate process.
Once the disclosure is communicated to the school, they are now locked in and required to provide our children with a quality, equitable access to an education.
We don’t need to use the word “accommodation” in order to trigger an investigation. We need to communicate that our child is struggling or experiencing harm due to “disability-related” needs.
The school has the responsibility to investigate, figure out what the barriers are, and address them.
The responsibility of bringing forward their accommodation needs does not fall on the shoulders of the student.
We need to keep communicating and telling the school the harm we are witnessing and are aware of, and how this is connected to their disability. That’s our job. That’s how we engage the duty to inquire (Meaningful inquiry) that will start off the duty to accommodate.
Emailing our concerns is creating that document trail that we need.
Duty-to-consult
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.
Duty-to-facilitate
Schools have the final decision, and if we don’t facilitate that then we can have our human rights complaint dismissed. We may be seen as unreasonable.
However, if their plans for reasonable accommodations don’t work, they have to keep on reviewing and adapting. They can’t give up. That will require us to keep collaboratively working with them, and documenting and communicating the harm.
Final Message:
My series about the duty to accommodate provides you the legal framework and rights-based content so that you have the information you need to ground your advocacy in written authority.
The how-to fish in all of this is using the discrimination test. That is our sword. We need to disclose our child’s disability with evidence and continually communicate any disability-related harm that we are aware of. That is the magical HOW formula.
What I am witnessing is that families who use human rights language in their advocacy emails are experiencing more success than families who are not.
It doesn’t need to be about quoting case law, but even using language like these words can create more appropriate responses from schools.
Language example:
disability-related need
equitable education
removing barriers
accessing their education
accommodation
consult/collaboration
harm
If you hit resistance, you have case law and the Human Rights Code to draw from. We are just asking for schools to follow the law. Some parents are nervous about using rights-based language. Pleasently persistent as an advocacy style can still use rights-based language. You can still have collaborative relationships with staff and use rights-based language. Collaboration is a KEY part of the accommodation process. Using rights-based language and advocacy through a human rights lens does not mean you are fighting anyone. You are simply enacting your child’s rights.
Our children’s legal rights in education come from human rights case law. These cases were brought forward by parents. Parents wanting to change the system so that other kids don’t experience what their children did.
In order for these cases to work their magic, they need to be applied. Law can sit there collecting dust if nobody does anything with it. It needs to be applied. You need to use it. We can change the system by all of us advocating through a human rights lens.
The pen is your sword….well, email. 😉
or speech-to-text
or ChatGPT to help write emails
You’ve got this! 🙌🙌🙌🙌