What follows is a brief summary of human rights issues related to education for persons with disabilities that have come to the attention of the OHRC. This list is not intended to be exhaustive: rather, it is a starting point for discussion.
1. Access to Education
At its most basic, equal treatment in education for persons with disabilities involves equal access to educational opportunities. The Policy and Guidelines on Disability and the Duty to Accommodate affirms the duty of education providers to take a proactive approach to disability issues, and to structure their programs and policies so as to be inclusive and accessible for persons with disabilities.
However, concerns have been raised regarding barriers to access to education for persons with disabilities. For example, parents of children with disabilities in the primary and secondary public school system have reported situations where their children are unable to start school with their peers at the beginning of the school year, or are able to attend school only part-time because appropriate supports and accommodations are not available. In some cases, students have lost substantial school time because of disputes regarding the provision of appropriate accommodation.
As well, at all levels of education, there have been reports of private schools and vocational colleges either refusing to accept students with disabilities, or asking students to waive their rights to accommodation as a precondition to entrance.
Where students have disabilities that are associated with behavioural issues, rigid expulsion policies may result in inability to access educational services.
Financial issues have been identified as barriers to access at the post-secondary level. For example, the Bursary for Students with Disabilities is available only to students who qualify for OSAP; however, there are students who do not qualify for OSAP, but nonetheless have substantial needs related to their disability which are financially prohibitive for them. There are also situations where the Bursary does not fund the type of accommodation required, or is inadequate to fund more expensive forms of accommodation.
The trend towards online learning is also worth noting here. While new technology can provide tremendous opportunities for persons with some forms of disabilities, online programs that are not designed inclusively can exclude persons with disabilities.
What other barriers to education for persons with disabilities are you aware of?
Applying the principles in the Policy and Guidelines, how can these barriers be addressed?
2. Disability and Other Forms of Discrimination
In Canada, as the understanding of human rights evolves, the focus is increasingly on a contextualized approach to discrimination. A contextual approach recognizes that persons with disabilities may experience discrimination on other grounds in addition to disability, such as race and/or gender. Discrimination may take place on more than one ground simultaneously and these grounds may intersect thus producing new or different forms of discrimination.
In the context of education, students with disabilities may also belong to groups that have been discriminated against historically on grounds other than disability. For example, students with disabilities who are also part of racial minority groups may experience discrimination differently than other students with disabilities. Likewise, female students with disabilities may experience discrimination differently than male students with disabilities. It is therefore important to recognize and address the reality of discrimination as it is experienced by these individuals.
Can you provide examples in which students with disabilities are affected also by being members of other historically disadvantaged groups?
3. Negative Attitudes and Stereotypes
A great deal of discrimination faced by persons with disabilities is underpinned by social constructs of “normality”, which reinforce obstacles to integration, rather than encourage ways to ensure full participation. Discrimination against persons with disabilities may be based as much on perceptions, myths and stereotypes, as on the existence of actual, functional limitations. This is referred to as “social handicapping”.
In terms of education, concerns have been raised regarding negative attitudes and stereotypes regarding persons with disabilities on the part of educators, administrators, and fellow students. These attitudes can pose a substantial barrier to persons with disabilities, as well as creating in themselves an unequal educational environment.
The CCSD study on children and youth with special needs reported that children with disabilities are less likely than other children to feel that other children like them, more likely to be bullied in school and to report that other children say mean things to them, less likely to enjoy school and report doing well in school, more likely to say that they feel left out in school, and less likely to report that they get along well with their teachers.
There are concerns that teachers are not being provided with adequate training, information and in-class support for teaching children with disabilities, and ensuring that they are integrated into mainstream classrooms in a respectful and dignified manner. This impacts, not only on the quality of the educational services children with disabilities receive, but also on their ability to become fully integrated into the classroom.
At the post-secondary level, concerns have been raised regarding training and support programs, and awareness levels among instructors. In the 1999 NEADS survey, most post-secondary disability service providers rated in-service training of instructors as fair, poor, or not available, and indicated difficulties in providing such training and the indifference of instructors as problems.
What best practices are you aware of for reducing negative attitudes, stereotypes and harassment directed towards students with disabilities in the education system?
Persons with disabilities are individuals first. Each person’s needs and strengths are unique, and an accommodation solution that works for one person may not work for another. When accommodations for persons with disabilities are being explored, the emphasis should be on assessing and accommodating each person’s unique needs and circumstances, rather than resorting to preconceptions or blanket generalizations about persons with a particular disability.
Some have raised concerns that the accommodation process in place in the primary and secondary school system, and in particular the process for accessing ISA funding, encourages labelling of students, and a focus on labels and stereotypes for pre-determining accommodation needs, rather than assessing the individual needs and strengths of each student. At all levels, it is important that the focus remains on the individual, rather than on the category of disability.
What examples exist of policies and procedures that avoid labels for students with disabilities?
5. Appropriate Accommodation
The OHRC’s Policy and Guidelines on Disability and the Duty to Accommodate specifies that an accommodation for a person with a disability will be considered appropriate if it respects the dignity of the individual with a disability, meets individual needs, best promotes integration and full participation, and ensures confidentiality. Accommodation will be considered appropriate if it will “result in equal opportunity to attain the same level of performance, or to enjoy the same level of benefits and privileges enjoyed by others, or if it is proposed or adopted for the purpose of achieving equal opportunity, and meets the individual’s disability related needs”.
The identification of the most appropriate accommodation in an educational setting raises a number of issues. For example, at the primary and secondary level, there is ongoing debate regarding decisions to place students in specialized settings as opposed to placing them in mainstream classrooms with supports.
At the post-secondary level, there are debates regarding academic accommodations, such as curriculum modifications or changes to assessment methodologies. The importance of maintaining the integrity and academic standards of programs or courses has been stressed, at times in the context of “academic freedom”.
Given the principles set out in the Policy and Guidelines, what specific guidelines should inform the determination of the most appropriate accommodation in an educational setting?
What tools could the OHRC provide to assist persons responsible for accommodating students with disabilities, as well as those seeking accommodation, to apply the principles for appropriate accommodation set out in the Policy and Guidelines in an educational setting?
6. Accommodation Process
The principles of respect for dignity, individualization, and integration and full participation apply equally to the substance of an accommodation, and to the accommodation process. At the heart of the accommodation process is the responsibility, shared by all parties, to engage in meaningful dialogue about accommodation, and to seek out expert assistance as needed.
The process for accommodation at the primary and secondary levels is largely governed by the Education Act and regulations, and is dominated by the IPRC process, and the IEP. The human rights standards outlined above apply to these processes.
At the post-secondary level, processes for accommodation vary widely. There is continuing discussion as to the most appropriate processes for ensuring accessible, integrative, dignified and efficient accommodation for post-secondary students with disabilities.
What best practices are you aware of for accommodation policies and procedures in an educational setting?
7. Roles and Responsibilities
All parties to the accommodation process share responsibility for its success, and have a duty to co-operatively engage in the process. Each party has rights, as well as responsibilities.
Given the multiplicity of parties involved in accommodation in the educational sector – parents, students, educators, administrators, experts, government, support staff, and at times unions – the identification of roles and responsibilities during the accommodation process can be complex. This is particularly the case where students are young and/or unable to communicate, and therefore unable to advocate on their own behalf.
Based on the principles set out in the Policy and Guidelines, what should be the respective responsibilities of parents, students, educators, experts, government and other parties for accommodation of students with disabilities?
8. Undue Hardship Standard
The undue hardship standard is set out in detail in the Policy and Guidelines. The standard is a high one. Business inconvenience, third-party preferences, impact on morale, and collective agreements are not relevant factors in an assessment of undue hardship. The considerations set out in the Code are costs, outside sources of funding, and health and safety. The onus of proof lies on the person making the claim of undue hardship, and the evidence provided must be objective, real, direct, and, where possible, quantifiable.
The application of the undue hardship standard raises unique issues in the educational context. For example, given the often complex nature of funding for educational services, how are costs allocated and assessed? Which parties have responsibility for the cost and the provision of accommodation for students with disabilities? What does health and safety mean in the classroom setting?
What specific issues need to be addressed in applying the OHRC’s policies and guidelines on undue hardship in an educational setting?
What mechanisms would you recommend be established to promote ongoing dialogue on issues related to education, disability, and human rights?
Are there other issues related to the Ontario Human Rights Code, disability, and education that you would like to raise?
 Canadian Council on Social Development, supra, note 4.