Tag: #Discrimination

Part 6 – Summer Series, Duty to Accommodate – Pulling it all together

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

    1. Does your kid have a disability?
    2. Were they harmed
    3. 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! 🙌🙌🙌🙌

    PART 1 – Summer Series- Duty to Accommodate – Power of the Human Rights Code

    Ok. Let’s get started.

    To start off the series, we first need to truly understand just how powerful the Human Rights Code is and how it is actually the discrimination test that is our sword for advocacy. Ministries’ policies, IEPs, designations and criteria for EA support hours are actually not what determines who gets accommodations, who doesn’t and what those accommodations are.

    This blog series is not my personal opinion. Everything that is written comes from some kind of written authority. For those who want to dive deeper, I have added a lot of links.

    Here we go!

    Section One – Written Authority

    What is written authority? Written authority is law, policy or some kind of document. Something that is written and acts on behalf of other people, that has power, and people will use it as a decision-making tool. If school staff deny our requests, we always want to ask them something along the lines of: What is the written authority that supports your decision? Basically, says who? Where does it come from? People just can’t just make stuff up.

    Section Two – Education as a Service connected to the Human Rights Code

    To understand the power of the Human Rights Code in education, we need to start at the beginning. Follow the path of written authority.
    👇👇👇👇

    Moore v. British Columbia (Education), 2012 SCC 61 “The purpose of the School Act in British Columbia is to ensure that “all learners . . . develop their individual potential and . . . acquire the knowledge, skills and attitudes needed to contribute to a healthy, democratic and pluralistic society and a prosperous and sustainable economy”. 

                        The “service” to which J is entitled under s. 8 of the B.C. Human Rights Code is education generally.”  

    From this human rights case decision, we know that kids with disabilities are entitled to a quality education, and this education is protected under Section 8, of the B.C Human Rights Code.

    The Human Rights Code, Section 8 is about discrimination in accommodation. Basically a person cannot, without a reasonable justification, deny a person any accommodation, and they can’t discriminate.

    This protection under the BC Human Rights Code is powerful. To be legally protected under The Code, you need a protected characteristic. For this blog we will be focusing on physical/mental disability as the protected characteristic.

    Your child’s accommodations are the priority and will be more important than any other law, policy, administrative procedure, code of conduct, disciplinary process (including suspension), exclusion policy, school rules, or classroom rules in the school system, etc. etc.

    Why are accommodations the priority above other laws and policies?

    Section Three – Power of the Human Rights Code

    In the BC Human Rights Code, section 4, it states:

    Code prevails

    4  If there is a conflict between this Code and any other enactment, this Code prevails.

    What this means is that the BC Human Rights Code (duty to accommodate) is a law above all other laws, if conflict arises.

    What does “when in conflict” mean? If there is something about the law or policy that is discriminatory, that is the conflict part. The Human Rights Code will squash that specific discriminatory part of the law or policy.

    So if there is anything that is discriminatory in the School Act, Ministry Inclusion Policies or school board policies, the Human Rights Code will be the law that is followed and not the discriminatory part of the School Act or other policies.

    Using a human rights lens to advocate for our kids is the highest form of advocacy we can use. When in conflict, the Code prevails. Discrimination is not allowed, no matter what policies are created by the Ministry or the school board. Your child’s accommodations are the priority.

    Beautiful.

    Section Four- Practical Application

    What does this mean in real life?

    This means, teacher classroom autonomy, which some teachers will cite as a reason that they can uphold the decisions they make in the classroom, will not be upheld if discrimination is occurring. The Code, supersedes teacher classroom autonomy.

    So, if a teacher is denying a kid with ADHD breaks for regulation (denying an accommodation), then Section 8 of the Human Rights Code will step in. A child doesn’t need an IEP or a designation to be entitled to accommodations. More on this below.

    A teacher not implementing a child’s IEP is a HUGE deal. An IEP is not a suggestion. It, too, is backed by written authority.

    P (by KD) v. Board of Education of School District No. 61 (Greater Victoria) and another, 2025 BCHRT 62

    [70] However, the Ministry disagrees that just because IEPs do not require a parent’s signature the School District is not required to adhere to them. The Ministry says IEPs do have a legal effect and function, as there is a valid legislative and policy framework that provides both authority and guidance for IEPs.

    Here are some examples of what you may hear from schools and here is what the response is from the Human Rights Code.

    School: Your child doesn’t qualify for an IEP as per Ministry Policy.
    Human Rights Code: Doesn’t matter. The school is providing a service. You are still required by law to accommodate a child with a disability with or without an IEP. The criteria to see if they should receive these accommodations is not your policy; it is the discrimination test.

    School: Your child doesn’t qualify for a designation.
    Human Rights Code: Doesn’t matter. The School is providing a service. You are still required by law to accommodate a child with a disability with or without a designation. The test to see if they should receive these accommodations is not your designation criteria; it is the discrimination test.

    School: Your child doesn’t qualify for EA support.
    Human Rights Code: Doesn’t matter. The school is providing a service. You are still required by law to accommodate a child with a disability with or without an EA. It doesn’t matter what your internal criteria is that you use to determine EA support hours; it is the discrimination test.

    You get the idea. Their policy IS NOT the legal test to determine if your child gets accommodations or not, or what their accommodations will be.

    The legal test is the discrimination test. The discrimination test, comes from the Human Rights Code – human rights case law. The discrimination test will squash any Ministry or school policy.

    In Student (by Parent) v. School District 2023 BCHRT 237, the student had a diagnosis of Generalized Anxiety Disorder. At the time of the complaint, she did not have a designation or IEP. She was still protected under Section 8 of the Human Rights Code. The school had a duty to provide her with accommodations for her disability.

    Lots of kids with ADHD don’t get designations or IEPs. They are still protected under The Code. There are lots of human rights cases (see Human Rights Desicsions (Cases) list) that involve kids with ADHD. This includes post-secondary too.

    Mr. A v. The University, 2020 BCHRT 58 

    [1]               Mr. A is a student at the University. He has Attention Deficit Hyperactivity Disorder [ADHD]. Because of his disability, the University’s Centre for Accessibility [Centre] has approved a number of accommodations for Mr. A in respect of his education. These include advance access to lecture notes and course materials where possible.

    Students are legally entitled to academic accommodations, “a ramp”- due to the Moore case. The school has a responsibility to figure this out and come up with solutions to remove the barriers. (More on this later and case law later.)

    Section Five – The Human Rights Code has Limitations

    Now, there are many layers to the duty to accommodate.

    • This doesn’t mean that your child will get whatever supports you want for them. The Human Rights Code supports “reasonable accommodations,” not perfect or ideal accommodations. (more on this later)
    • It doesn’t mean that your child may never have a negative experience. Also supported in a human rights education case decision. Para 110 (more on this later)
    • It doesn’t mean harm may never occur. Human rights complaints are about harm that has already occurred and/or currently occurring, not about harm you anticipate might happen in the future. When your rights have been violated.
    • It doesn’t even mean that you need to even agree with the decisions that the school made, also supported by a human rights decision. Para 248 (More on this list and matching case law later)

    The Human Rights Code is not limitless. BC HRT website: “Sometimes a person can justify their conduct and then there is no discrimination.” (More to come on this next week)

    The Human Rights Code is a tool. We use this tool to advocate for “reasonable” accommodations that provide “a ramp” that removes the barriers so that our children can have an equitable education. Equal access and equitable access are different. (More on this later)

    Section Six – Discrimination Test

    The Moore case is what set out the discrimination test and defined accommodations as “a ramp” so that our children are legally entitled to an accessible education.

    Just want to take a moment of pause to give a round of applause, throwing of flowers and and an absolute snot-filled sobbing thank you, to the Moore family for their advocacy and absolute sheer persistence in spending an incredible amount of years (15?) with uncertainty on how their case was going to land. It went all the way up to the Supreme Court of Canada.

    The discrimination test is EVERYTHING. It is our sword. You have a legal leg to stand on connected to written authority because of the Moore family. We use the discrimination test as a sword to slice through the bullshit excuses, crappy policies, inequitable distribution of resources and sheer ableist oppression from school district staff. Any advancement that other families make in their own cases all start with the Moore case. Respect to the Moore family!

    As you will notice, when you read the Duty to Accommodate, section 8 isn’t long. So, where do all of these “rules” and expectations come from?

    Case law.

    I will get to it later on how case law is GOLD.

    Section Seven – Parents are Protected Too!

    And something else really important to know. It’s not just your kids who are provided a service and protected under the Human Rights Code. You are also as their parent(s)/guardian protected under family status connected to education as a service. These two jewels of decisions mean you can file a human rights complaint on behalf of yourself, and the discrimination test will apply to you too! Thank goodness!! I mean, seriously… It’s about time!

    Section Eight – Something to think about…

    Using written authority or human rights language in our communication with the school does not mean we are being aggressive, overreactive or overly forceful. It does not mean we need to file a human rights complaint. It does not mean we are going to be battling it out with lawyers. We aren’t tar and feathering people. The use of human rights language is simply enacting rights our children are entitled to by law. Nothing more, nothing less. We are expecting schools to follow the law. That is it.

    Using human rights language when we advocate may also be new information to teachers and administrators, not everyone is aware of human rights and what they are even responsible for ensuring they do, within their own jobs. Failure of the system? Totally! Utterly shameful and ridiculous. They are the professionals! The School Act gives them all the final decision-making power. They should at least be knowledgeable about human rights laws. If I worked in education today as an employee, I would be angry that this has not been part of my education and training, and that I am put into situations that leave me ineffective at doing my job, and harming kids. Teachers are at risk of being hauled into hearings. They aren’t fun. The staff who care look white as a ghost, ready to throw up, and some of them cry. Incredibly stressful. And trust me, there are no guarantees the district will come and save you. They would rather risk a hearing happening, hoping the parent will bow out, than make amends. It’s a game of chicken that they have no problem playing. As far as I am concerned, if you are a teacher who doesn’t understand human rights obligations within your job, you are a sitting duck. I highly recommend that organizations that invest in teachers start making this material part of post-secondary education and professional development opportunities.

    From this week: Key Takeaways:

    The Human Rights Code prevails.

    Just know that for this week, the Human Rights Code is very powerful. Our most powerful form of advocacy. It is the law above all laws. It is definitely worth it to invest some time to learn about it, embrace it and most importantly, use it!

    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.

    The discrimination test is our sword. Thank you Moore family and their legal team!

    Coming Up Next Week:

    Understanding the Discrimination Test.

    This part is KEY! We apply the discrimination test to the situations that our children are experiencing to see if they are protected in this situation under the Human Rights Code.

    There is still so much left to go!! See you all again next week for the next blog in the series!

    Daycare Termination and Disability

    RE: New Human Rights Case linked to daycare and termination of daycare services due to a perceived disability.

    Mother obo Child v. Daycare, 2024 BCHRT 251

    Since we all have most likely struggled with daycare issues at some point, I am posting this case.

    It is a very interesting case. A situation that parents find themselves trapped in way too often.

    The child hasn’t been diagnosed yet.

    They suspect he might have ADHD/Autism. Their daycare terminated services.

    The mother is self-representing.

    This is a dismissal application.

    She won.

    Her case is continuing to a hearing/mediation meeting.

    [1] In September 2020, at the age of two, the Child began attending the Daycare. On around October 22, 2020, the Daycare informed the Child’s parents that it would no longer provide childcare services to the Child. Services ended one month later, around November 20, 2020. The Mother brings this complaint on behalf of the Child. The complaint alleges the Daycare discriminated against the Child when it terminated its services because it perceived him to have a mental disability and because he is a Jehovah Witness, contrary to s. 8 of the Human Rights Code [Code] which prohibits discrimination in services.

    [2] The Daycare denies discriminating. It states it terminated services to the Child in accordance with its “Childcare Discharge Policy” because the Daycare was unable to provide the Child with the level of care he required, and not for any reasons related to a real or perceived mental disability or to his religion. The Daycare also says that even if the Child’s perceived mental disability was a factor in the termination, it was justified in ending the childcare service it provided to the Child because the Child engaged in harmful and aggressive behaviour that put the safety of other children at risk. It asks the Tribunal for an order dismissing the complaint against it under s. 27(1)(c).

    [3] The issues I must decide are:

    a. whether there is no reasonable prospect the Child will succeed in proving the Daycare perceived him to have a disability and, if so, whether the perceived disability factored into the termination of services;

    b. if so whether the Daycare is reasonably certain to prove it was justified in its decision to terminate services; and

    c. whether there is no reasonable prospect the Child will succeed in proving his religion factored into the termination of services.

    [4] For the following reasons, I deny the application. To make this decision, I have considered all the information filed by the parties. In these reasons, I only refer to what is necessary to explain my decision. I make no findings of fact.

    We also have another case where the teenager was bullied due to sexual orientation and he won his case, even though he is heterosexual. It didn’t matter. He was treated and bullied as if he belonged to the protected group.
    Jubran v. Board of Trustees, 2002 BCHRT 10 (CanLII)
    For summary and key highlights https://www.speakingupbc.com/bullying/

    These two cases are examples of a perceived disability/protected ground. There is room here for these to be used in an argument in an educational setting. Whether the tribunal will accept it or not is another question.



    Here is the full decision with all of the details.

    https://www.bchrt.bc.ca/…/decisions/recent/2024-bchrt-251/