JFCY in the courts: Special Education

Today the Supreme Court of Canada released its decision in Moore v. BC, a case about a student (Jeffrey Moore) with dyslexia who was denied appropriate accommodation of his disability, thereby preventing him meaningful access to an education in the public school system.

When Jeffrey was an elementary school student, his school board eliminated the remedial program that had been recommended to address Jeffrey's learning disability.  The Board failed to provided adequate alternatives.  Ultimately, Jeffrey went to private school (at the expense of his parents) where he received the appropriate accommodation that he needed in order to meaningfully access an education. 

JFCY intervened in this important case, providing argument to the court on various human rights legal issues around special education.  

JFCY is pleased to report that the court found in favour of Jeffrey, holding that the School Board discriminated against him on the basis of disability because he was not provided with adequate special education services in order to to develop his individual potential. Jeffrey and his family were compensated for the harm he experienced as a result of the discrimination, including the reimbursement of tuition costs that his parents had paid to the private school. 

With respect to the human rights analysis, the Court made it clear that the "service" to which Jeffrey was entitled under the human rights legislation was "education" generally, not "special education" specifically. This ensures that the analysis would not end up in a "separate but equal" approach, ie comparing kids with one disability to kids with another disability.  The access that students with learning disabilities have to an education must be compared to the access that the general student population has to an education.

To this end, the Court stated at paragraph 5 of the judgment: "Adequate special education, therefore, is not a dispensable luxury.  For those with severe learning disabilities, it is the ramp that provides access to the statutory commitment to education made available to all children."


To read the Supreme Court of Canada case, click here.

For news articles, click hereand here.

In the news: the Child Advocacy Project

Check out this Toronto Star article on the Child Advocacy Project (CAP).  CAP, a program run by Pro Bono Law Ontario, matches volunteer lawyers with children and families experiencing legal issues at school. The free lawyers provide assistance with suspensions, expulsions, special education, etc.

JFCY is happy to work quite closely with CAP; we provide training on education law to the volunteer lawyers.

For more info on CAP, check out their website: http://www.childadvocacy.ca/

Education Law and the Youth Criminal Justice Act - JFCY staff write for Briefly Speaking

The most recent issue of Briefly Speaking features two articles by JFCY lawyers.  Check it out online!

Martha Mackinnon is the executive director of JFCY.  Her article, "The Legality of Education," discusses the legal structures that govern the education system in Ontario - key issues she addresses are the legal processes that relate to suspensions, expulsions, and special education.  (It's on page 22 in the paper edition!)

Staff lawyer Niamh Harraher has an article titled "Publication and Disclosure Under the Youth Criminal Justice Act."  The article talks about how the Youth Criminal Justice Act protects the privacy of young people who are involved in the criminal justice system, when exceptions happen so that privacy is no longer protected to the same extent, and how privacy can sometimes be diminished (though perhaps not intentionally) in certain situations.  (Page 38 in the paper edition.)

Special education and "exceptionality" explained

 Comic picture courtesy of JFCY volunteer Diana Rozo

Blogpost by JFCY volunteer Adrianna P, law student Daniel Lo and JFCY lawyers

Johnny is a 16 year-old grade 10 student. Since entering high school he has found that he is struggling with his course work and his grades are falling.  Johnny is having difficulty successfully completing and understanding his work and he is not performing well on math and English tests.  His teachers referred him for educational and psychological testing in order to determine the cause of his difficulties and the results have indicated that Johnny has a learning disability.   

Johnny’s mom thinks that the teaching styles that were used in elementary school enabled Johnny to get by but now high school is a more intense learning environment and Johnny does not possess the learning skills that are necessary for him to perform to his potential.
Since being formally identified with a learning disability, his principal and teachers feel that Johnny should be placed in a separate special education classroom. They feel that this is where the proper instruction can be given to Johnny and will help meet his needs.   Johnny on the other hand does not want to leave his friends and wants to stay in a regular classroom setting.  

What are Johnny’s Rights in this situation?

In this situation, it seems that Johnny, his parents, his principal and teachers are waiting for a reference to the Identification, Placement and Review Committee (IPRC). The IPRC is the committee that will decide three things: 1) whether Johnny is “exceptional” (ie has special learning needs), 2) what  type of exceptionality does Johnny have (behaviour, communication, intellectual, physical, and multiple);  and 3) what is the appropriate special education placement for Johnny.

Johnny’s parents can request an IPRC by writing a letter to the school Principal.    The law says that the principal cannot refuse to refer the student to an IPRC. A Principal can also refer a student for an IPRC without a parent’s request.

Since Johnny is 16, he is entitled to the following rights:

-    The right to attend his IPRC and to give the committee any information he thinks is useful in deciding his educational needs. In this case, Johnny could present his preference for staying with his current classroom setting because the support of his friends is beneficial to his learning.

-    He is entitled to receive a copy of any information about him that others will give the IPRC. Johnny is entitled to see a copy of the educational and psychological test results that his teachers registered him for.

-    The opportunity to be consulted about his Individual Education Plan (IEP), which contains specific learning expectations and the school’s outline of educational services to address them. In this case, Johnny may request a less intrusive method of service, such as an educational assistant, so as to allow him to stay in a regular classroom setting.

-    His parents can be present.

-    Johnny and his parents may bring a representative to speak for them if they feel more comfortable, or even advocates from organizations such as the Learning Disabilities Association, or the Association for Community Living

-    He may bring an interpreter if needed.

If following the decision of IPRC, Johnny and/or his parents do not agree, they can appeal the decision and may receive a second meeting with the IPRC. If Johnny and/or his parents still do not agree with the decision made, they can appeal to the Special Education Appeal Board, and subsequently the Ontario Special Education Tribunal. In addition, Johnny and/or his parents can file an Application with the Human Rights Tribunal of Ontario if they feel like that Johnny has experienced discrimination based on his disability. IPRC appeals and human rights applications can be complicated and it is important to talk to a lawyer before deciding what to do next. You can call the following organizations for assistance:

Justice for Children and Youth- 416.920.1633 (1.866.999.5329 for outside GTA)

Child Advocacy Project (Pro Bono Law Ontario) – 416.977.4448

Human Rights Legal Support Centre (note: they do not do IPRC appeals) – 416.314.6838

For more information, take a look at this pamphlet on special education.