The Case of L.B. v TDSB: Looking into Human Rights, Discrimination, and Education

In 2015, the case of L.B. v. Toronto District School Board (TDSB) went before the Human Rights Tribunal of Ontario. The case was interesting to me for many reasons. As a woman with multiple disabilities having experienced issues within the public school system, I have experienced first-hand violations to my educational rights and have been made to feel inferior for needing accommodations. As there is some parallel experience I found my interest drawn to this case. This paper will look the L.B. v TDSB case to see if the educational policies and human rights of L.B. were violated. This paper will first look briefly look at L.B.’s background and L.B.’s time in the TDSB secondary school. This paper will then discuss equality since it is important in understanding education, rights and the application of the law. Then move into a discussion of human rights, discrimination, and education. To understand this topic I think an understanding of human rights legislation in Ontario is necessary. It is also important to understand the duty to accommodate and the limits of that duty. This paper will then will look at the human rights policy within the TDSB. This will then move into discussing L.B. v. TDSB and the claim of discrimination by not accommodating up to the point of undue hardship. This will involve looking to see if the TDSB was consistent with their human right policy. Finally, this paper will raise how to avoid human right violations in the Ontario education system.
Introduction

L.B.’s Background

I think that it is important to have an understanding of L.B.’s background and time in the TDSB secondary school to understand this case in terms of human rights. The Human Rights Tribunal for L.B. v TDBS took place November 30^th, 2015 when L.B. was then a 17 year old boy (L.B. v TDSB, 2015). When L.B. was in Grade 2 he had a private practice assessment that identified him as having a learning disability, generalized anxiety disorder, social anxiety disorder and oppositional defiant disorder (Ensslen, 2016, p.1). L.B. was re-assessed in Grade 8 which then added the diagnosis of attention deficit hyperactivity disorder (ADHD) to his previous diagnosis (Ensslen, 2016, p.1). The private assessment was used by the Identification Placement Review Committee (IPRC) in April of 2008 when L.B. was in Grade 4 to identify L.B. as an “exceptional student” with multiple exceptionalities (L.B. v TDSB, 2015). The IPRC is a committee that is tasked to decide if a student is to be labeled as exceptional and if the student is exceptional then what is the appropriate placement for the student (Ontario Ministry of Education, 2017b).

The Education Act states that “exceptional” student or pupil means a student “whose behavioural, communicational, intellectual, physical or multiple exceptionalities are such that he or she is considered to need placement in a special education program” (Education Act, 2017, sec. 1). The  Education Act defines “special education program” as an “educational program that is based on and modified by the results of continuous assessment and evaluation and that includes a plan containing specific objectives and an outline of educational services that meet the needs of the exceptional pupil” (Ontario Ministry of Education, 2017b). Once a student is identified by IRPC as being “exceptional” then the principal must ensure an Individual Education Plan (IEP) for the student is developed and maintained (Ontario Ministry of Education, 2017). Throughout elementary school L.B. was placed in the regular classroom with various services in place such as resource assistant (Ensslen, 2016, p.1). During L.B.’s Grade 8 year, L.B. began to have a growing attendance problem which required the services of a social worker who was also an attendance counsellor (L.B. v TDSB, 2015, para. 35) and one teacher volunteer to go to L.B’s house and encourage him to go to school for a short period (L.B. v TDSB, 2015, para. 36). The elementary school prepared a plan to transition L.B. into secondary school including an updated exit IEP prepared in June stating recommendations for accommodation in a secondary school environment (Ensslen, 2016, p.2).

The case focused on a seven month period when L.B. was in Grade 9 at a TDSB school. L.B. transitioned into a TDSB secondary school September 2012 (Ensslen, 2016, p.2). During Grade 9  L.B. was enrolled in a GLE course to develop learning strategies (Ensslen, 2016, p.2). L.B.’s mother met with the principal and head of guidance about her son’s transition into the school and strategies to avoid problems from developing (Ensslen, 2016, p.2). The school’s special education teacher prepared L.B.’s new IEP that used some of the Grade 8 exit IEP but not all of it (Ensslen, 2016, p.2). The special education teacher stated that this was because IEP’s in secondary school are different from the elementary school’s IEP and do not contain any socio-emotional components (L.B. v TDSB, 2015, para. 53). Certain information was omitted from the new IEP such as the attendance problem (Ensslen, 2016, p.2). Due to the school having some organization issues and the school’s social worker being away due to illness L.B. was not seen by a TDSB social worker, attendance counsellor or psychologist during his Grade 9 year (L.B. v TDSB, 2015, para. 59).  L.B.’s attendance issue worsened to the point that he stopped going to school, L.B.’s mother worked with his teachers to get his assignments (L.B. v TDSB, 2015, para. 60). Although this was not formal homeschooling L.B. was having access to some education during this time (L.B. v TDSB, 2015, para. 60).  In February L.B.’s mother informed the guidance counsellor and the special education teacher during a meeting to address L.B.’s anxiety that she was considering sending L.B. to a private boarding school (L.B. v TDSB, 2015, para. 62). L.B.’s mother requested that the guidance counsellor make a recommendation for L.B’s application to a private boarding school (Ensslen, 2016, p.2). The case does not state why L.B.’s mother was considering sending her son to a private boarding school (L.B. v TDSB, 2015, para. 62). Perhaps the discrimination of L.B. by the TDSB in not accommodating him over seven month period made his mother feel that there was no other option than to remove L.B. from the school and enroll him in another school that would accommodate his disability needs (L.B. v TDSB, 2015, para. 154-155). L.B.’s mother removed him from the TDSB and transferred him to a private school in Ottawa on April 2, 2013 (L.B. v TDSB, 2015, para. 71).

Equality:

I think before discussing much more of L.B. v TDSB there needs to be some understanding about equality. It is important to understand the rights of students with disabilities within the context of education. Equality is often misunderstood and thought of as an “empty concept”(Rioux, 2003, p. 296). Equality is an important term that is often misunderstood. In “On Second Thought:  Constructing Knowledge, Law, Disability, and Equality” Rioux notes that there are three categories of equality (Rioux, 2003, p. 296). The three categories are “equal treatment”, “equality of opportunity” and “equality of well-being as an outcome” (Rioux, 2003, p. 297). These models of equality are used throughout Canadian society. Equal treatment is just as it sounds, based on sameness so people are being treated exactly the same (Smith & Foster, 1993, pp. 195–198). The application of equality in this model is neutral in that all people are treated exactly the same and there is no difference (Rioux, 2003, p. 297). Equal treatment is the model used within the law. The legal system is about the application of legislation and policies equally or the same to all parties it applies to (Rioux, 2003, p. 297).

The next category of equality is equality of opportunity. This model addresses some of the issues within equal treatment in addressing the inequality between those that are disadvantaged within society and those that are advantaged (Rioux, 2003, p. 299). Equality of opportunity acknowledges the barriers to participation that has disadvantaged some people unfairly in society (Rioux, 2003, p. 299). This approach is about gaining access to the competitive individualistic market, meaning it is about having equal access to the starting line (Rioux, 2003, p. 299). Equality of opportunity is that model being used in education system. Equal educational opportunity is about assessing similarities and differences among students so those that have a disability are given the same consideration as other students (Titchkosky, 2013, p. 15). By disability I refer to “any restrictions or inability to perform an activity in a manner or within a range considered to be normal” (Davis, 2010, p. 3). Normal is not a natural human condition but socially constructed expectations for individuals within a particular society(Smith & Foster, 1993, p. 196).This is premised on giving all students an equal start but student is success being determined by individual ability and effort (Rioux, 2003, p. 301).

The third category is equality of well-being as an outcome which is about all people despite their differences being entitled to consideration and respect as equals and having the right to participate in a social and economic life in society (Rioux, 2003, p. 300). Unlike the previous two models of equality this takes into account the “conditions and means of participation that may vary for each individual” requiring special accommodations to make this possible (Rioux, 2003, p. 300). Equality of well-being as an outcome is the form of equality people with disabilities, activism and the Canadian Charter of Rights and Freedom are seeking. It is about accepting human differences and having the inclusion of all individuals and groups participating in society (Rioux, 2003, p. 301). This form of equality is about having equality as the outcome or goal. This is the form of equality people with disabilities are seeking in all aspects of society in Canada. The goal of everyone being equal regardless of disability or ability. When looking at the L.B. v TDSB there is a definite gap in the meaning of equality between parties.

 

Human Rights, Discrimination, and Education

The Convention on the Rights of Persons with Disabilities (CRPD) states in Article 24 that “persons with disabilities are now recognized under international law as right holders” (CRPD, 2016, p.1). Students with disabilities have the right to education without discrimination and on the basis of equal opportunities (Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, sec. 15). While the CRPD provides wonderful information about this but it holds no power over the government or citizens’ rights within Ontario. For that, we need to turn to the Ontario Human Rights Code.

Before looking at the Ontario Human rights code there needs to be some understanding about The Canadian Charter of Rights and Freedom. In The Canadian Charter of Rights and Freedom (The Charter) states “every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability” (Carr, 2016, p. 5).  The Charter aims to remedy and prevent discrimination and exclusion of disadvantaged groups from mainstream society due to social, political, or legal disadvantages (OHRC, n.d.-c). The Ontario Human rights legislation is both subject to and must comply with the Canadian Charter of Rights and Freedom (OHRC, n.d.-c).

The Ontario Human Rights Code (The Code) states that“[e]very person has a right to equal treatment with respect to services, goods, and facilities, without discrimination” (Human Rights Code, 1990, sec. 1).  This means that the Code applies to housing, employment, and services. The Code states that the groups are covered by this non-discrimination due to race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability (Human Rights Code, 1990, sec. 2). Education is a service provided by the Ontario Government meaning that people with disabilities have an equal right to education and services without being discriminated against due to disability. Dignity refers to a person’s worth and how a person feels as though they are respected in their community and society (Commission, 2006, p. 3).Persons with disabilities identify human rights violations occur when principles of autonomy, dignity, non-discrimination, inclusion, and respect for differences are violated (Rioux& Pinto, 2010, p. 625). Autonomy is the right of an individual to make choices in matters of their life such as the decision to go to a segregated school (Rioux& Pinto, 2010, p. 626). Dignity referring to the right not just access to education but within education (Rioux& Pinto, 2010, p. 626). “Human rights are about protecting and promoting the dignity of all people” (Rioux& Pinto, 2010, p. 627).  Inclusion is about the about organizing systems of society to allow the full and effective participation of all people (Rioux, 2017, sec. 11). “Discrimination is the unjust or prejudicial treatment of persons because of their disability, race, sex, language, religion, political or other opinion, national or social origin, property, birth or age” (Rioux, 2017, sec. 11). Respect for difference is about the acceptance of the diversity within human being such as accepting persons with disability as part of human diversity and not as inferior beings (Stienstra, 2012, p. 39). Canada has a Universal education policy and yet there are still many children with disabilities that cannot gain access to the education they need (Stienstra, 2012, p. 39). They either cannot access “special” education or they are unable to get the support they need to succeed in the education system (Commission, 2006, p. 7). Why are there barriers to education and where should we look for the answers?

Duty to Accommodate and the Limits of the Duty to Accommodate.

 

What is the duty to accommodate a student? What are the limits to the duty to accommodate a student? In terms of accommodation the Code states that “[e]very person has a right to equal treatment with respect to the occupancy of accommodation, without discrimination” because of covered groups including disability (Human Rights Code, 1990, sec. 2). There are three key principles to accommodation. Which are firstly to respect the dignity of the person with a disability (Commission, 2006, p. 7).  The second is individualized meaning that it must consider, assess and accommodate on an individual basis (Commission, 2006, p. 7). Lastly, accommodation must include the right for a person with a disability to be integrated and fully participate within school (OHRC, n.d.-a).

The Code guarantees the right to equal treatment in education, without discrimination because of disability (OHRC, n.d.). TDSB as a provider of education has a duty to accommodate students with a disability up to the point of “undue hardship” (OHRC, n.d.).  The accommodation process involves that shared responsibility of school boards, schools, government, the student with disability and their guardian (OHRC, n.d.).  The limit of the duty to accommodate a student with a disability is noted as up to the point of undue hardship. The Code states that every student with a disability is to be accommodated up to the point of undue hardship (OHRC, n.d.). There are three elements to undue hardship which are costs, outside funding and health and safety requirements (OHRC, n.d.).  In terms of costs for educational providers such as the TDSB, cannot use the excuse of limited resources or budgetary restrictions as a defence (OHRC, n.d.). Where the most appropriate accommodation educational providers are to provide the “next best” accommodation while attempting to phase in the most appropriate accommodations (OHRC, n.d.).

Undue hardship due to health and safety requirement can create a barrier for a student with a disability within education. If the student’s disability is such that it poses a health and safety concerns the educational provider needs to determine if the disability requirement can be modified or adjusted to meet health and safety regulations (OHRC, n.d.). If modifications or adjustments cannot be made due to the disability accommodation requirements then school can claim undue hardship over the students educational rights (Carr, 2016, p. 27). The L.B. v TDSB there are no issues of undue hardship based on health and safety concerns.

When school or school boards used undue hardship as a the justification for not accommodating a student with a disability then need to show that there were no other reasonable accommodations or alternative placements to avoid the negative impact of failing to accommodate the student (Carr, 2016, p. 27).  In terms of educational decision school boards must prove that there is an understanding of the consequences of the programming or services decision and that reasonable alternatives such as placement, were investigated to ensure the discriminatory conduct was “reasonably necessary” (Carr, 2016, p. 27).

TDSB Human Rights Policy

“Some scholars and advocates in the field of disability are looking at the systemic barriers that has justified some children not being priorities in the school system” (TDSB, 2004). TDSB has had a human rights policy since 2000 in place for all their working and learning environments (TDSB, 2004). The TDSB policy noted that “The Board” recognizes the value of every student and working together with students and equality, innovation, accountability and accessibility (TDSB, 2004). The TDSB policy on human rights states that discrimination and harassment will not be tolerated on school grounds (TDSB, 2004).   The grounds of discrimination that the policy protects against are age, ancestry, citizenship, colour, creed, faith, disability, ethnic origin, family status, gender, gender identity, marital status, race, sexual orientation and socio-economic status (TDSB, 2004).

The policy stated the forms of discrimination are direct, indirect, systematic, failure to reasonably accommodate, negative environments, hate groups, harassment, and discrimination based on association with a group (TDSB, 2004). I think that in terms of the L.B. case the forms of discrimination of indirect and systematic discrimination are particularly important. The policy defines indirect discrimination as discrimination that is overlooked or accepted by supervisors or managers (TDSB, 2004). Systematic discrimination is defined as coming from policies, procedures, practices or conduct that may not be intended to be discriminatory but negatively or adversely impacts individuals or groups protected by the policy (TDSB, 2004). The TDSB’s policy on Human Rights is to guarantee “equality” and yet L.B. is claiming discrimination. On paper this policy appears to be protecting the human rights and dignity of all students and staff of the TDSB.

L.B. v. TDSB Discrimination

 

The L.B. case focused on discrimination based on disability in terms of services and yet TDSB states in their policy that their work and learning environments are to be discrimination free. There is a gap between what is written and what is practiced. L.B. claimed that there were discriminations due to the failure of TDSB to accommodate his disability related needs up to the point of undue hardship (L.B. v TDSB, 2015, sec. 6).TDSB argued that L.B.’s mental health needs were such that they were unable to accommodate him to the point of undue hardship (L.B. v TDSB, 2015, sec. 11).

The Human Rights Tribunal ruled that TDSB discriminated against L.B. on the basis of his disability by failing to accommodate his identified needs (Ensslen, 2016, p.2). The form of discrimination that The Human Rights Tribunal found TDSB guilty of is termed “discrimination through omission” (L.B. v TDSB, 2015, para. 120). This form of discrimination is not listed within the TDSB policy on Human Rights either.

What is discrimination through omission?  The Human Rights Tribunal stated that TDSB discriminated against L.B. by failing to do five key things to accommodate L.B.’s identified needs. First is the TDSB delayed for over seven months to provide L.B. with the services of a social worker, attendance counsellor, or psychologist(Ensslen, 2016, p.2).  Second, TDSB did not look into additional supports for L.B. such as formal home instruction (Ensslen, 2016, p.2). Third, was the failure of TDSB to recommend L.B.’s mother to consider alternative placements such as demonstration schools such as the Learning for Emotional and Academic Development (LEAD) program (L.B. v TDSB, 2015, para. 101-102). Fourth, both the special education teacher and the guidance staff failed to review L.B.’s psychological reports referred to in L.B.’s Grade 8 exit IEP or to speak with the elementary school staff about L.B.’s disability and social-emotional needs (Ensslen, 2016, p.2). The guidance counsellor did not suggest to L.B.’s mother that L.B. would benefit from formalized home instruction or other educational placements that may have been available (L.B. v TDSB, 2015, para. 64). The guidance counsellor stated that it was not her job to stand in the way of a parent wanting to send their child to another school (L.B. v TDSB, 2015, para. 63). Also, the guidance counsellor confirmed that L.B.’s mother was not made aware of recommendations for additional services, placements or supports as it was not the guidance counsellor’s’ job to make such suggestions (L.B. v TDSB, 2015, para. 64). Finally, the TDSB “administration and special education staff failed to have L.B. addressed by the In-School Support Team” (ISST) until March 2013 (Ensslen, 2016, p. 3). Based on the failures of the TDSB to accommodate L.B. up to the point of undue hardship there was discrimination through omission constitutes unjust treatment by neglect or exclusion due to L.B.’s disability. This was a failure to act or provide support when a student was in need of support and the family was actively seeking support. The Ontario Human Rights Tribunal stated that “[w]here services, support and accommodations, such as the referral for social work and attendance counselling support or discussion of alternative placement are delayed significantly or do not take place at all, the accommodations are clearly inadequate” and this is a breach of The Code (L.B. v TDSB, 2015, para. 11). The “wait and see” approach to accommodation of a student transitioning into the school with an IEP is not an appropriate approach.

Based on the TDSB policy I would claim that there was also both indirect discrimination and systematic discrimination.  The TDSB overlooked the long wait time to appropriately accommodate L.B. The seven month lack of accommodation or providing options for placement and support is a systematic barrier. Also, by the TDSB by defending this failure to accommodate in a timely manner is indirect discrimination. The argument that L.B.’s mental health needs were outside of what the school could accommodate for (“L.B. v TDSB,” 2015, para. 11). If the school is unable to accommodate a student this should be addressed sooner than seven months. This left L.B. without formal education. By L.B.’s mother actively getting homework and assignments for L.B. she ensured he was having access to some education during time absent from school (L.B. v TDSB, 2015, para. 60).

Are TDSB actions consistent with their Human Rights Policy?

 

Rioux and Pinto note that there is a significant gap between the educational rights that are on paper such as law, policies, and legislation and the enjoyment of those right in practice (Prince, 2016, p. 2).  This gap is important in that on paper there is the right to education and to equality of opportunity within the education system. However, in practice there are violations to these educational rights as L.B. v. TDSB highlight this exact issue. On paper there was a duty to accommodate up to the point of undue hardship. There was a policy in place to protect L.B.’s human rights and his right to education within the TDSB school system. There were procedures to transition L.B. from Grade 8 into Grade 9 and make the transition as seamless as possible.  This gap reveals how there is a disconnect between the written policies and the actions in the school.

The TDSB failed to accommodate L.B. but instead of admitting to their failure they claimed that L.B. had been accommodated up to undue hardship but his disabilities were too severe to be accommodated within the TDSB school. L.B. was deemed too disabled due to his mental health issues to be accommodated to the point of undue hardship. The issue is that TDSB could not support the claim that L.B. was adequately accommodated. TDSB also claimed that they could not appropriately accommodate L.B. due to L.B.’s mother interference, and the accommodations being sought for L.B.’s mental health issues were beyond the services the school could supply.

It is quite easy to create one as a villain in a human rights case such as L.B. v TDSB. I want to be fair and state where TDSB was not in the wrong. In all fairness to the TDSB not all students identified with a disability need can be accommodated within the public education system. That being said, as holders of knowledge of services, other programs, support, and potential placements that could be beneficial to the student with disability the information should be given even if not requested.

This issue relates to power. Prince notes that power can be both subtle and blatant (Prince, 2016, p. 2). There are power outcomes which are patterns of “power over”, “power with” and “power to” (Prince, 2016, p. 17).  “Power over” is about the domination to hold power over another person or group (Prince, 2016, p. 17). “Power with” is the act of working in partnership equally (Prince, 2016, p. 17). Finally “power to” is the capability do or influence something (Prince, 2016, p. 17). TDSB school exercised a subtle power over L.B. by denying accommodations, information, and support.  By stalling in addressing L.B.’s identified needs in a timely manner TDSB were teaching L.B. what his place in the school and society is.  That his dignity and value is inferior to other students within the education system.  It could be argued that L.B.’s mother could have looked into other placements and educational options other than the private boarding school she moved L.B to in April 2013. By L.B.’s mother transferred him to a private boarding school she effectively ended the TDSB’s duty to accommodate him (L.B. v TDSB, 2015, para. 155).  The issue is that L.B.’s mother felt that she had no other options available to her as the information was not made readily available to her to make an informed choice as to appropriate placement for her son’s education.

In the case L.B. was seeking financial compensation for injury to dignity, tuition for the private boarding school, fees for additional psycho-educational assessment, and costs for a tablet to the sum of $198,059.42 (L.B. v TDSB, 2015, para. 8). L.B. was also seeking a non-monetary remedy in the TDSB addressing the systemic remedies for services, support,and accommodation from students with mental health needs (Ensslen, 2016, pp. 3–4).  Even though L.B.’s mother felt she had no other options this does not require that TDSB to pay for tuition for the private boarding school, fees for additional psycho-educational assessment, or costs for a tablet (Ensslen, 2016, pp. 3–4). The TDSB does not offer to nor should it be expected to pay for residential schooling (Ensslen, 2016, pp. 3). Also, it is unreasonable to expect staff to go to L.B.’s home to convince him to go to school as this is not a service the TDSB routinely offers (Ensslen, 2016, pp. 3).  This being said it is entirely unreasonable to fail in accommodating a student that is experiencing issues in school for over seven months. L.B.’s mother actively went to the TDSB to get assignments while her son was having mental health issues that prevented him from getting to school. This was not formal homeschooling but L.B. was having access to some education during this time (Ensslen, 2016, p. 3). The school was aware that there was an issue but failed to address it. If the school was unable to accommodate L.B. this needed to be addressed before seven months had passed. This was obviously a concern of L.B’s mother who was working with the TDSB school as well as actively seeking services, support and accommodations. The ruling by the Ontario Human Rights Tribunal awarded L.B. and his family $35,000.00 for injury to his dignity, feelings and self-respect. No other financial compensation was awarded. L.B. and his mother, in my opinion, used their combined power to fight against what they saw as a violation of L.B.’s human Right. The Ontario Human Rights Tribunal used their power to force the TDSB to rethink their actions as well as their duty to students with disabilities and to compensate L.B. and his family to the harm they did to his dignity. It should be noted that I believe that the ruling in the case by the Ontario Human Rights Tribunal was fair, just and correct.

 

How to prevent Future Human Right Violations

It is important to discuss issues that lead to this situation so that it can be addressed. Firstly, the time frame for getting an IEP and appropriate accommodations. L.B. was struggling in a system that essentially took a “wait and see” approach to accommodation of a student transitioning into the school with an IEP is not an appropriate approach (Accessibility for Ontarians with Disabilities Act Alliance, 2016, pp. 4–5). The Accessibility for Ontarians with Disability Act Alliance (AODA) noted that the procedural barriers that prevent the effective accommodations of individuals with disabilities needs to be addressed in the Ontario education system (Khan & Giancola, 2017, p. 4). This is a systemic barrier to education that needs to be addressed. Wait times like this cause frustrations for the student with disability and their family. Having been in a situation like this I can state that for myself this issue made a miserable situation intolerable.

Another issue in the L.B. case arose from the failure of the TDSB in communicating with parent and guardians of children with disabilities. The Special Education Advisory Committee (SEAC) for the TDSB conducted a survey of parents with children with special education needs to be enrolled in TDSB school (Khan & Giancola, 2017, p. 1). The SEAC report revealed 53.62 percent of parents with children with special education needs in TDSB schools found the TDSB schools were not providing parents with information regarding programs, services, support and accommodations for their children (Accessibility for Ontarians with Disabilities Act Alliance, 2016, p. 4). This is more than half of the parents in the survey noting an issue with communication. This is a barrier to information ensures the children with disabilities are not able to access equal opportunity to education. Communication is important for an effective collaboration between the schools, students with disabilities and their family to find appropriate accommodations and placements for students with disabilities. This is about autonomy in that providing all the information for the student with a disability and their parents or guardians to make an informed decision about support, placement, and accommodations. This should be done even if the family does not request it.

There is the concern of attitudinal barriers and training for staff. In L.B.’s case there were many issues within the TDSB that should be addressed in terms of attitudes and training. The excuse of “it is not my job” or “it was not asked for” is not an adequate justification for failing to support a student in need.  The AODA noted that within Ontario’s education system that there needs to be training Ontario teachers and I would add that this should apply to all staff (Rioux, 2017, p. 10). This may assist in the attitudinal barriers that many students with disabilities and their family encounter in seeking accommodations within the school system. The “it is not my job” is not a valid justification when addressing families looking for solutions for accommodating student with a disability in school. This is an inappropriate attitude that prevents the ability collaborative effort.  This needs to be understood as a “team” effort in ensuring a student with a disability has equal access to education and is learning in school. This is not about just the accommodations and services but to ensure that there is learning occurring. What is education for if not for the learning and training of students?

 

Conclusion

Failing to accommodate a student with a disability that is having issues in seven months is not really working to ensure the student is treated with respect and dignity. The TDSB did not follow their own human rights policy. L.B. was discriminated against through omission which holds consequences on L.B.’s personhood. Although I do not think that the discrimination was malicious it was still a violation of L.B.’s rights. L.B.’s case there was neither equality of well being of outcome nor was there equal opportunity. The Human Rights Tribunal of Ontario ensured that there was equal treatment.

“Education is central to the life of an individual in the community” (Ontario Ministry of Education, 2017a).  It is important to ensure that a violation to human rights in education such as what happened to L.B. does not happen again in the future. It is important to address problems in education that lead to these kinds of issue. This paper notes the issues to be addressed are long wait time for appropriate accommodations, communication failures, the need for training of staff and attitudinal barriers. I have experienced these barriers to education. That is why this was so important to me. I think these are issues that need to be addressed. On paper there are rights and yet in practice there are human right violations like L.B.’s it is a shame.

References

The Accessibility for Ontarians with Disabilities Act Alliance. (2016). What an Ontario Education Accessibility Standard Could Include? – A Discussion Paper. https://doi.org/10.1142/S0217984915502097

Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, (1982).

Carr, J. R. (2016). a Conceptual and Legal Framework for Inclusive Education, (December). Retrieved from http://inclusiveeducation.ca/wp-content/uploads/sites/3/2017/03/Legal-Framework-Inclusive-Education-Jody-Carr-Dec-30-2016.pdf

Commission, O. H. R. (2006). Education and Disability: Human Rights Issues in Ontario’s Education System. Ontario Human Rights Commission, 1–22. Retrieved from http://www.chs.ca/sites/default/files/uploads/chs-adult-education-discussion.pdf

Davis, L. (2010). Constructing Normalcy. In L. Davis (Ed.), The Disability Studies Reader (3rd ed.). New York: Routledge.

Education Act (2017). Retrieved from https://www.canlii.org/en/on/laws/stat/rso-1990-c-e2/latest/rso-1990-c-e2.html?autocompleteStr=Education Act&autocompletePos=1

Ensslen, K. (2016). Human Rights Tribunal Holds School Staff to a High Standard in Accommodating Stu. Education and Law Journal, June 2016(25), 225.

Human Rights Code (1990). Retrieved from https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html

Khan, N., & Giancola, A. (2017). TDSB SEAC Report.

 

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