To review, we have completed our foundational work. We know the power of the Human Rights Code. We understand the 3-part question for the discrimination test, and the reasonable justification test. We started in on the action part of the Duty to Accommodate with meaningful inquiry, and the duty-to-consult, and now we are the final stage the duty to facilitate.
The duty to accommodate is a collaborative process. The school district must consult with us and seriously consider our concerns, but the School Act gives them the power to make the final decision. Whether we like it or not.
Having hard conversations is still collaborating. Respectful disagreement is still collaborating.
Collaborating in good faith means you need to be honest, genuine, without trying to deceive, take advantage. It’s just really about having the best intentions from everyone when all engage in consultation, for the best interest of the child. When it comes to conversations, I offer you this excellent blog by The Canary Collective: From Power to Partnership: Changing how we talk to families.
We can have respectful conversations and advocate fiercely at the exact same time. It’s not one or the other. Both parties have the expectation to collaborate in good faith as part of the accommodation process. At the same time, our advocacy conduct cannot be used against our child to deny them an equitable education.
“Fierce advocacy” is even supported in case law.
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L.B. v. Toronto District School Board, 2015 HRTO 1622
[77] The Interim Decision sets out my reasons for issuing an order with respect to the first two points, as follows:
(a) School boards have an obligation under the Code to accommodate their students with disabilities to the point of undue hardship, regardless of whether the students are receiving any medical treatment in the community or not;
(b) School boards cannot order or demand of parents to place their children into residential psychiatric treatment programs and cannot deny or withhold accommodations to the point of undue hardship on the grounds that the student should be in such a program. While I have no evidence to show that this was the case here, that does not alter the principle;
(c) School boards have an obligation under the Education Act to provide appropriate special education placements, programs and services to their exceptional students. Parental conduct or lack of parental authority cannot be used as a justification for not meeting an exceptional student’s needs; and
(d) I agree with the decision in R.B. v. Keewatin-Patricia District School Board, (R.B./Keewatin) 2013 HRTO 1436, an HRTO decision cited by both parties in this case, at para 265, that a parent’s “fierce advocacy” for his or her child must not and cannot prevent a school board from accommodating the child’s needs to the point of undue hardship.
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So whether we fulfill our duty to work in collaboration with the school district the bottom line is that they are still required to meet an exceptional student’s needs. They cannot use our conduct against our child to not fulfill their duties to provide an equitable education.
However…..
Keeping that in mind, if we want to file a human rights complaint without at least giving their reasonable accommodation suggestions a chance, we will likely have our complaint dismissed. So our advocating or lack of can’t be held against our child, but if we don’t accept a reasonable accommodation, that can be. 👇👇👇👇
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A and B obo Infant A v. School District C (No. 5), 2018 BCHRT 25 (CanLII)
[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.
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One message that has been a running theme in all of my posts is this: 👇👇👇👇
We need to continually document any harm we are witnessing and email our concerns to the school. We need to connect the harm to any disability-related needs.
While we do have the duty to facilitate a reasonable accommodation, if that reasonable accommodation doesn’t provide the ramp they think it will, they have the responsibility of continually adapting, reviewing and providing alternatives. They aren’t allowed to give up. 👇👇👇👇
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X by Y v. Board of Education of School District No. Z, 2024 BCHRT 72
[120] Ultimately, on a balance of probabilities, I am satisfied that the District discharged its duty to accommodate X in his grade 2 year by reviewing the Diagnosis Report, developing an IEP, making various support people and strategies available that were incorporated into the classroom and outside, reviewing progress and changes, and adapting its approach in response……
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I want to pause here and mention independent schools. Public schools AND independent schools are still held to the same obligations under the Human Rights Code to provide a quality, equitable education.
Independent schools may have a much easier time reaching the bar for the undue hardship test. If they don’t have the staff, resources, or money to meet the needs of your child, they may have a defence. Private schools are very different than public schools. They interview students and parents, many times, with parents providing reference letters. They can deny anyone they like. They don’t like the shoes you wear; they can deny you. They don’t have the funds that public schools do. Independent schools are very bold and confident when they deny kids entry and when they kick them out. Really, the best thing I can recommend parents is to consult with a lawyer. It will be VERY context dependent. Parents of private schools do file complaints against private schools and they do get settlements. It’s really up to you how much you want to test the system and push the line. Lots of kids when they become “too much” are getting kicked out. It’s heartbreaking for many families and kids as public school failed, and this was their hope. The only thing I can recommend to families is to consult with a lawyer and get the best legal advice you can get. Fast track your complaint; otherwise, waiting over a year to get a complaint to get accepted isn’t going to do your kid any good. Some parents send demand letters, but it is mostly for settlement and not to get them reinstated in the school. I highly suggest you consult with human rights lawyers if you want to fight it.
Key Takeaways
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.
Next Blog
We are at the end.
Next week’s post is pulling everything together and a final heartfelt message.