Running head: THE SHIFTING LEGAL PERSPECTIVE OF INCLUSIVE EDUCATION

The Shifting Legal Perspective of Inclusive Education

Melanie Gamache

Brandon University

030060

01.758 School Admin and the Law

Dr. Tom Skinner

April 4, 2016
THE SHIFTING LEAL PERSPECTIVE OF INCLUSIVE EDUCATION 2

Education is fundamental need for every citizen in Canada to understand and contribute

to society in a meaningful way. Public schools in every province have a legal obligation to

provide every child with an education, which includes students with mental and physical

disabilities, however Canada has no federal legislation protecting a child with a disabilitys right

to inclusive education. (Towle, H., 2015, p. 5). Inclusive education is where students with

special needs learn within a regular classroom, in which the regular classroom teacher adapts the

curriculum to meet the needs of all students. Integration and inclusion are meant to develop

social-emotional skills in addition to academic skills. Levels of integration are not absolute, as

there are times when individualized education is best for a student when it is outside of the

regular classroom.

In many traditional education systems, special needs children have been removed from

regular classes to be educated in alternate settings, sometimes completely isolated from other

students and staff members. In these alternate settings, exceptional students learning would

often be under the care of a Resource Teacher but typically under the supervision of Educational

Assistants (EAs), some of whom have limited or non-specific training on how to support the

needs of the children they are working one-on-one with, daily. Cases of unreasonable force and

mistreatment, inappropriate curriculum and inadequate adaptations were, unfortunately,

commonplace in many schools across Canada. Even more unfortunate, the practice continues in

some schools in Canada despite the amount of legislation and literature that speaks to the

contrary.

Under the law, educational institutions, including School Boards and School Divisions

must meet the standards of the Charter of Human Rights and Freedoms. Legally, school divisions

must not discriminate against students and the question arises when the decision to place special
THE SHIFTING LEAL PERSPECTIVE OF INCLUSIVE EDUCATION 3

needs students outside an integrated or inclusive classroom is a decision based on discrimination

or the best interests of the child. This is further complicated when a special needs child cannot

advocate for themselves due to limited mental capacity or limited communication capabilities

and the advocates are the parents of the children. Because legislation, precedent setting cases,

and disability organizations aid parents and other childrens advocates to be informed about the

rights and responsibilities of disabled Canadians and schools, the standards for the education of

special needs children is changing.

Litigation over the past five years regarding cases of the integration of special needs

students in regular classrooms has become increasingly more complex, but there is a definite

shift in the way the courts rule when it comes to allegations of discrimination. No longer is

justice served when students are just removed or retained within the walls of a regular classroom,

but under careful consideration of a students specific needs. The four cases that follow involve

different families and students with different disabilities. The common factor is the question of

discrimination based on a disability when it came to integration of the children in the regular

classroom, or appropriate setting.

Legislation and Related Law Cases

Legislation

Legislation related to the conduct of public schools falls under each Provinces

jurisdiction and as such, varies slightly from province to province. Universal to all provinces is

that the Canadian educational system exists within the context of the Charter of Rights, which

stipulates that all individuals are equal under the law and free from discrimination, including

mental or physical disabilities (Charter of Rights and Freedoms, 1982, s. 15). Canadian

provinces have introduced legislation to promote inclusion, or integration, of students with

THE SHIFTING LEAL PERSPECTIVE OF INCLUSIVE EDUCATION 4

mental or physical disabilities into the regular classroom. In Manitoba, Bill 13, or Appropriate

Educational Programming (AEP), was amended to the Manitoba Public Schools Act in 2005 and

states that as far as reasonably practicable, appropriate educational programming is available to

a pupil in a regular class of his or her peers, (Manitoba Education, Citizenship and Youth, 2005,

s. 2) at either the catchment school or another school if the catchment school does not provide

the appropriate program. Similar legislation exists in other provinces.

In Ontario, The Education Act provides specific regulations to ensure that all students

have access to appropriate programming including Regulation 306, which requires school boards

to provide special education programs and services to exceptional students, (Ontario Human

Rights Commission, n.d, Overview, para. 4), including the establishment of the Identification,

Placement and Review Committees (IPRC) and Special Education Appeal Boards to determine

appropriate programming for exceptional students. The Ontario Disability Policy also requires

educational institutions to create programs to be included and accessible for persons with

disabilities, and to take an active role in the accommodation process, (Ontario Human Rights

Commission, n.d., Access to Education, para. 3).

The BC School Act recognizes that any school aged individual is entitled to enroll in an

educational program provided by the board of a school district, (BC Ministry of Education,

1996, s. 2). The British Columbia Special Education Policy (2013) indicates that all students,

including those with special needs are entitled to equitable access to learning, achievement and

the pursuit of excellence, (BC Ministry of Education, 2013, p.2) but that doesnt necessarily

mean integration in the regular classroom. This revised policy comes after a landmark Supreme

Court ruling in 2012 to ensure use of resources and programming are appropriate and used in the

best interest of students.

THE SHIFTING LEAL PERSPECTIVE OF INCLUSIVE EDUCATION 5

Eaton v. Brant County Board of Education

Emily Eaton was a 12 year old girl with cerebral palsy and her parents wanted her to be

fully integrated into their neighborhood public school. Her disability left her, as described by the

court proceedings, unable to communicate through speech, sign language or other alternative

communication system, some visual impairment and mobility impaired and mainly uses a

wheelchair, (Eaton v. Brant County Board of Education, 1997, para. 2). The parents requested

and the school agreed to a trial period for Emily in a regular classroom with an EA. At the end

of the trial period, the school and the IPRC recommended that Emily enroll in a special needs

program at a different school.

The Eaton family pursued litigation and eventually, in 1997, the Supreme Court of

Canada determined that the Brant County Board of Education did not discriminate against Emily

or exclude her from the right to an appropriate education. The judge explained that the court had

to consider the best interests of the disabled child, and when the child cannot speak for his or

herself, as in Emilys case, the interests of that child are often advocated by the parents. The

court noted that this does not necessarily mean that the parents are speaking in the best interests

of that child. The Court determined that adapting a curriculum to suit the needs of Emily, would

make the integration artificial and end up [isolating] her in a disserving and potentially insidious

way, (Eaton v. Brant County Board of Education, 1997, s.17). For that reason, the court sided

with the Special Education Appeal Boards decision to remove Emily from the regular classroom

and concluded that the provision of a parallel curriculum for exceptional children when in

regular class can be beneficial only when it is realistically parallel but may very well have the

effect to isolating the child when it is not so. (Sheppard, G., 2015, pp 1-2).
THE SHIFTING LEAL PERSPECTIVE OF INCLUSIVE EDUCATION 6

Hewko v. B.C. and the Board of School Trustees of School District No. 34

Darren Hewko was diagnosed with autism which resulted in no receptive language and

[an inability to] respond to verbal instructions, (Haykowsky, T. n.d., para. 2) prior to starting

school. He attended his neighbourhood public school in Kindergarten while receiving therapy

from a home-based therapist who was trained in Intensive Behavioural Intervention (IBI), a

teaching method proven to be effective for Darren. For one month of Kindergarten, Darren

received support from a district appointed TA who was not trained in IBI therapy. Darren

continued in his neighborhood school for the remainder of his Kindergarten and grade 1 year but

in May, 2003, was recommended by the School District, to attend a different school, in a

Resource room, where a qualified Special Ed. teacher and TA could support Darrens

programming needs.

Darrens parents wanted the IBI therapy to continue for Darren and requested Darrens

home-based therapist to serve as Darrens TA in the new school as the Special Ed. Teacher and

TA were not adequately trained in the IBI therapy despite a 5 day intensive course on autism and

IBI therapy. The school district did not support the parents request and the parents filed a

lawsuit against the School District and the Province of BC for discrimination based on disability

and failure to providing appropriate education or the appropriate educational assistance in a

public school.

The Court determined that neither the Province nor the School District acted in a

discriminatory manner as the District made reasonable attempts to provide the best available

teaching staff for the child in the school, (Haykowsky, T. n.d., School Boards Duties).
THE SHIFTING LEAL PERSPECTIVE OF INCLUSIVE EDUCATION 7

Moore v. British Columbia

Jeffery Moore attended public school until grade 2 when the school determined that it

could not provide the intensive remediation and appropriate programming to support Jefferys

learning with severe dyslexia. The district psychologist recommended that Jeffery attend the

Diagnostic Center, a facility that could provide the interventions for students with severe

learning disabilities. Jeffery attended the Diagnostic Center until the District closed it. At that

time, the Moore family was advised to enroll Jeffery in a private institution because no other

facility in the District could provide the programming that he required. At this time, the Moore

family filed a discrimination complaint with the Human Rights Tribunal.

The Tribunal determined that the Province of BC and the School District acted

discriminatory towards Jeffery and the ruling ordered that the Moore family be reimbursed for

the tuition for Jeffery to attend the private school. The court referenced that under The Charter

and the B.C. Human Rights Code, all individuals are entitled to a meaningful education. The

Tribunals decision had to consider whether the education that Jeffery received, and was

subsequently denied, was a breach of the access to meaningful education. The Tribunal ruled

that because it was recognized that Jeffery required the intensive interventions in order to learn,

which couldnt be provided by the District after the Diagnostic Center was close, justified the

Tribunals conclusion that the failure of the District to meet Js educational needs

constituted prima facie discrimination. (Moore v. British Columbia, 2012). The District

maintained that the closing of the Diagnostic Center was justified as financial cuts made it

difficult to maintain the center, but the Tribunal ruled that budgetary cuts were made

disproportionately to special needs programs and that the District did not investigate alternative

programming to accommodate students with learning disabilities, like Jeffery Moore.

THE SHIFTING LEAL PERSPECTIVE OF INCLUSIVE EDUCATION 8

R.B. (S.F.) vs Keewatin-Patricia District School Board

R.B. is a male student who attended Open Roads Public School in the Keewatin-Patricia

District School Board from Junior Kindergarten to grade 3. He was diagnosed with mild

intellectual delay, language processing problems, articulation weaknesses, ADHD, pervasive

developmental disorder not otherwise specified (PDD NOS) and the apparent Tic Disorder,

(R.B. vs Keewatin-Patricia District School Board, 2013, s.5) after his mother, S.F. filed an

application to the Human Rights Tribunal of Ontario (HRTO) claiming her son was discriminated

against and denied a meaningful education.

During R.Bs grade 2 school year in 2011-2012, S.F. was informed by the school that

R.B.s EA support in the classroom would be reduced from full-time to half-time because of the

progress that had been made in the previous grade, despite full-time support recommended in

R.B.s medical assessments. S.F. met with the council of IPRC in 2011 to advocate for full time

EA support. The request was denied but the IPRC recommended indirect support be provided by

the Special Education Resource Teacher (SERT) to avoid the behavioural problems,

inattentiveness, and lack of progress, (Young, S., 2014, para. 5) that had been observed in the

past with insufficient EA support. Throughout the grade 2 school year, E.A. support was

increased by 100 minutes per day, which was not communicated to the family of R.B.

S.F. continued to advocate that programming was inadequate for her son, that she was

left out of the decisions and development of R.B.s IEP, that R.B. was subjected to bullying from

his peers, which the school failed to address, and that EAs were using unreasonable force upon

R.B, which was reported to police when the school did not respond to the allegations. R.B. was

withdrawn from school in May, 2012 for medical reasons related to anxiety and fear of

attending school. (Young, S., 2014, para. 14).

THE SHIFTING LEAL PERSPECTIVE OF INCLUSIVE EDUCATION 9

R.B.s re-entry recommendations from a psychological assessment included a full-time

EA support in an integrated school environment (R.B. vs Keewatin-Patricia District School

Board, 2013, s.6), a behavioural plan, continued communication and collaboration between the

family and the school on R.Bs progress and programming including regular contact between

S.F. and R.Bs teacher.

R.B. was out of school for four months and was receiving instruction for three hours per

week, deemed inadequate by R.Bs counsellor and psychologist. The HRTO determined that

R.B. must transition back into school gradually and plans would be in place by February 19,

2013. The HRTO referred to the case of Moore vs. BC and determined that meaningful access

to education [had] been denied. (Young, S. 2014, Decision, para. 6) to R.B.

Related Literature

Jennifer Katz, teacher, professor, and author, advocates for total inclusion for the benefit

of all learners in a regular classroom. She describes an inclusive space where all students are

placed in their home schools, and services are delivered in the classrooms and in the school.

The classroom teacher takes primary responsibility for all students enrolled in the class. (Katz,

n.d., The Goal: Academic & Social Inclusion para. 4). The premise for her 3-Block Model

approach is to recognize diversity within a classroom and embrace individual differences and

strengths to develop respectful, educated youth in all schools. Katz indicates that inclusive

classrooms benefit students with disabilities in terms of literacy, numeracy, and life skills, and

she attributes inclusive learning environments as having similar effects on regular students.

Critical Analysis

The culture surrounding special education is evolving. While the how of appropriate

special educational programming has always been an issue of debate, increased neurological
THE SHIFTING LEAL PERSPECTIVE OF INCLUSIVE EDUCATION 10

understanding, research on the effects of isolation and inclusion, and a better informed public on

human and charter rights, makes integration of exceptional children commonplace in schools and

courtrooms. Until recently, however, the Supreme Court of Canada did not typically rule in

favour of families pursuing litigation for discrimination against their disabled children in terms

of inclusion. The landmark case of Moore v. BC has set a precedence when it comes to inclusive

appropriate programming.

What has made the Moore v. BC case significant is the Courts definition of what

meaningful access to education means. Simply being in a regular classroom does not imply

equal access for every learner. Exceptional learners do not necessarily need equality, but equity

in the form of adequate adaptations, and sometimes that includes appropriate setting. Equitable

access without discrimination means that special needs cases must be carefully considered with a

team of trained educators who consider the interests of the child rather than the adults which are

impacted by the child.

Many individuals and organizations believe that full integration and inclusion is best and,

as Dr. Katzs research has pointed out, many exceptional children benefit socially and

academically from their placement in a regular classroom as do the other children in the class.

With proper teacher training, exceptional children do not have to be more work for a teacher

either. It is clear in education, however, that there is never a one size fits all program, which is

precisely what Katzs 3-Block Model, the Universal Design for Learning, and best practice in

education is based upon: differentiating programming in the best interests of the students. This

was the basis for the ruling in the Eaton v. Brant County case. Parallel learning is not the same

as inclusion, and can be a determinant to students; something that Katz fails to acknowledge.
THE SHIFTING LEAL PERSPECTIVE OF INCLUSIVE EDUCATION 11

Federal and provincial funding determines the availability of supports for exceptional

children in regular classrooms, but also specialized programs, such as the Diagnostic Center that

was referenced in Moore v. BC. Politics and budgets change, which affects funding availability

and criteria and as a result, the support for exceptional children in regular or specialized

programs may be in jeopardy. In Manitoba, many students are denied funding because they do

not present with behavioural problems, their IQ score falls in the gray area, or there is evidence

of FAS/FAE without a confirmed diagnosis. Inadequate EA support, as evidenced in R.B. v.

Keewatin-Patricia School District can mean the difference between a student remaining in

school or not. When those students are in their formidable years of developing the literacy and

numeracy skills that they will depend on for the rest of their lives, inadequate funding and lack of

suitable support means children are being denied their right to access education. In this situation,

it is a systemic failure to provide an education to Canadian citizens.

The Moore vs. BC case has set a precedent for present and future cases regarding

appropriate programming to meet the needs of exceptional children. For Jeffery Moore, the

ruling is inconsequential. He is no longer in the public school system, and although his family

received a monetary award, it does not make up for the missed educational opportunity. The

Supreme Court ruling on prima facie discrimination in education will no doubt have huge

implications for administrators and Student Services teams who develop programming for

special needs students. Integration in a regular classroom and parallel instruction is not enough

for all students to meaningfully and equitably access to the curriculum. It is likely that

provincial policies will be amended to ensure that consideration of the best interests of the child,

without bias, is used to determine programming.

Implications for Education

THE SHIFTING LEAL PERSPECTIVE OF INCLUSIVE EDUCATION 12

Moving forward, integrating exceptional children into regular classrooms and

implementing inclusive programming will shift from a last resort to satisfy vocal childrens

advocates to mainstream programming in all public schools. These four Canadian cases further

illustrate the need for consistent standards and procedures for careful planning and collaboration

with qualified teachers, administrators, parents, and when appropriate, the students. Parental

involvement is key as evidenced by R.B. v. Keewatin-Patricia School Board. Manitobas

Standards for Student Services indicates that at each stages of planning and implementation

IEPs, parental involvement is necessary and an integral part of the process (Manitoba Education,

Citizenship, and Youth, 2006, p. 15). Maintaining a supportive relationship between the family

and the school is important to supporting a students right to learn. From a legal standpoint,

schools are not mandated to co-operate with families but the Tribunal noted in the case of R.B. v

Keewatin-Patricia School Board, that the damaged relationship between S.F. and the school

likely negatively impacted the way R.B. was treated at the school (Young, S., 2014, Applications

to the Case para. 1).

The integration of special needs children is often beneficial to all students, but in some

cases it is not ideal. The ruling in Eaton v. Brant County Board of Education, determined exactly

that. It is implicit that schools require and provide continued training for teachers and support

staff to align instructional and supportive practices with research-based effective methodology.

When a school is equipped with well qualified teachers and trained support staff to accommodate

the needs of a diverse group of students in their care, adequate educational opportunities can be

available to all students in an integrated setting. Without that on-going training, inclusion

becomes nothing more than parallel teaching, which is not necessarily beneficial to students and

is draining for the teaching team.

THE SHIFTING LEAL PERSPECTIVE OF INCLUSIVE EDUCATION 13

Although political leadership may change, federally and provincially, it is unlikely that

the challenge of financing education adequately will be any different in the future than it has

been in the past. Legally, schools are required to provide adequate programming despite the

political climate or the budgetary constraints. With the ruling in Moore v. BC, it has become

more important for Canadian schools to have appropriate programs in place in order to be legally

accountable. This means that when funding is cut, as it inevitably will be, School Boards and

administrators must be creative in managing resources in order to meet the primary obligation of

existing: educating all students. This can be achieved by strategically training and re-training

staff to be able to offer appropriate interventions and programming for students at the extreme

ends of the learning spectrum. Katzs Universal Design for Learning is widely recognized as a

means for planning for differentiation and in Mountain View School Division, has been adopted

as the model for effective planning and teaching for diversity within the student population,

including exceptional children.

Conclusion

The legal cases of Eaton v. Brant County Board of Education, and Hewko v. BC have

preceded, and perhaps primed the Canadian justice system, for the landmark Moore vs. BC

ruling. The subsequent case of R.B. v Keewatin-Patricia School Division demonstrates the shift

in understanding by Canadian courts of the delicate nature of special needs education. It is no

longer as simple as just segregation or integration for schools, parents, or the courts, but rather a

series of conversations about the best interest of the child as the Supreme Court ruled in Eaton v.

Brant County Board of Education. Ensuring that all children have meaningful access to the

curriculum as they are entitled to an education, includes exceptional children. Programming

decisions must be individual, must involve the families, and must be monitored and evaluated.
THE SHIFTING LEAL PERSPECTIVE OF INCLUSIVE EDUCATION 14

Financial constraints and resource availability are real issues that plague school divisions,

especially when it comes to providing adequate education to students. Adequate special

education, as noted by Justice Rosalie Sliberman Abella, is not a dispensable luxuryit is the

ramp that provides access to the statutory commitment to education, for all children. (Bach,

2012)
THE SHIFTING LEAL PERSPECTIVE OF INCLUSIVE EDUCATION 15

References

Bach, M. (November 9, 2012). Victory at the supreme court of Canada on the right to educate.

North York, ON: York University. Retrieved 28 March, 2016 from

http://www.inclusionbc.org/sites/default/files/PressRelease_Moore_CACL.pdf

BC Ministry of Education. (1996). School act: Part 2 students and parents. Retrieved from

http://www.bclaws.ca/civix/document/LOC/complete/statreg/--%20S%20--/05_School

%20Act%20[RSBC%201996]%20c.%20412/00_Act/96412_02.xml#section2

BC Ministry of Education. (September, 2013). Special education services: A manual of policies,

procedures and guidelines. Retrieved from

http://www.bced.gov.bc.ca/specialed/special_ed_policy_manual.pdf

Canadian Charter of Rights and Freedoms. (1982). Retrieved from http://laws-

lois.justice.gc.ca/eng/Const/page-15.html

Council of Canadians with Disabilities. (n.d.) The Moore case: Summary of key points. Retrieved

on 26, March, 2016 from http://www.ccdonline.ca/en/humanrights/litigation/Moore-Case-

Key-Findings-9Nov2012

Eaton v. Brant County Board of Education. Supreme Court of Canada. (1997). Retrieved from

https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1471/index.do

Hewko v. B.C. Supreme Court of British Columbia. (2006). Retrieved from

http://www.canlii.org/en/bc/bcsc/doc/2006/2006bcsc1638/2006bcsc1638.html

Katz, J. (n.d.) What is universal design for learning (UDL)? Retrieved 28 March, 2016 from

http://www.threeblockmodel.com/udl-for-parents.html
THE SHIFTING LEAL PERSPECTIVE OF INCLUSIVE EDUCATION 16

Manitoba Education, Citizenship and Youth. (2006). Appropriate educational programming in

Manitoba. Standards for student services. Retrieved from

http://www.edu.gov.mb.ca/k12/specedu/aep/pdf/Standards_for_Student_Services.pdf

Manitoba Education, Citizenship and Youth. (October 25, 2005). Appropriate educational

programming regulation. Retrieved from http://web2.gov.mb.ca/laws/regs/current/_pdf-

regs.php?reg=155/2005

Moore v. British Columbia. Supreme Court of Canada. (2012). Retrieved from https://scc-

csc.lexum.com/scc-csc/scc-csc/en/item/12680/index.do

Ontario Human Rights Commission. (n.d.) The opportunity to succeed: Achieving barrier-free

education for students with disabilities. Retrieved on 28 March, 2016 from

http://www.ohrc.on.ca/en/opportunity-succeed-achieving-barrier-free-education-students-

disabilities/elementary-and-secondary-education#fnB14

R.B v. Keewatin-Patricia District School Board. Human Rights Tribunal of Ontario. (2013).

Retrieved from Lexis Nexis.

Sheppard, G. (2015). Special education and the charter: No presumption in favour of

integration. Ottawa, ON: Canadian Counselling and Psychotherapy Association.

Retrieved on 28 March, 2016 from https://www.ccpa-accp.ca/wp-

content/uploads/2015/05/NOE.Special-Education-and-the-Charter-No-Presumption-in-

Favour-of-Integration.pdf

Towle, H. (2015). Disability and inclusion in Canadian education. Ottawa, ON: Canadian Centre

for Policy Alternatives. Retrieved from

https://www.policyalternatives.ca/sites/default/files/uploads/publications/National

%20Office/2015/07/Disability_and_Inclusion_in_Education.pdf
THE SHIFTING LEAL PERSPECTIVE OF INCLUSIVE EDUCATION 17

Young, S. February 16, 2014. Human rights tribunal rules that school board denied student

meaningful access to education. Ottawa, ON: Borden Ladner Gervais LLP. Retrieved 28

March, 2016 from

http://www.mondaq.com/canada/x/293516/trials+appeals+compensation/Human+Rights+

Tribunal+Rules+That+School+Board+Denied+Student+Meaningful+Access+To+Educati

on