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Volume I, Issue I September 2004 |
Disabilities and the Duty to Accommodate |
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Appropriate Accommodation The Commission's Disability Policy stipulates 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. The Commission will consider an accommodation 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." [85] Once appropriate accommodation is received, students must still be able to perform the essential requirements of the service, that is, they must still be able to pass the school curriculum. Human rights law has clearly established that equality may sometimes require different treatment that does not offend an individual's dignity. In Eaton v. Brant County Board of Education, the Supreme Court of Canada ruled on the appropriate placement for a student with a disability.[86] Emily Eaton, a 12-year old student with a disability, was initially placed in an integrated classroom. After three years, her teachers and assistants concluded that this placement was not in her best interests, and that she should be placed in a specialized classroom. Her parents disagreed. An IPRC determined that Emily Eaton should be placed in a specialized setting. Her parents appealed the decision up to the Supreme Court of Canada. The Court ruled that the decision of the tribunal to place Emily Eaton in a special education class, contrary to the wishes of her parents, did not violate the equality rights provisions of the Charter. The Court stated that the failure to place Emily Eaton in an integrated setting did not create a burden or disadvantage for her, because such a placement was in her best interests. According to the Court,
While integration should be recognized as the norm of general application because of the benefits it generally provides, a presumption in favour of integrated schooling would work to the disadvantage of pupils who require special education in order to achieve equality .... Integration can be either a benefit or a burden depending on whether the individual can profit from the advantages that integration provides.
The Court found that the tribunal had sought to determine the placement that would be in the best interests of Emily Eaton, had considered her special needs, and had striven to fashion a placement that would accommodate those needs and enable her to profit from the services that an educational program offers. As the Commission noted in its Disability Policy "in some circumstances, the best way to ensure the dignity of persons with disabilities may be to provide separate or specialized services." [87] However, education providers must first make efforts to build or adapt educational services to accommodate students with disabilities in a way that promotes their integration and full participation. It is the Commission's view that, before considering placing a student in a self-contained, or specialized classroom, education providers must first consider inclusion in the regular classroom. In most cases, appropriate accommodation will be accommodation in the regular classroom with supports. However, every student with a disability is unique. In order to provide appropriate accommodation to all students with disabilities, education providers must, with the assistance of parental input, assess each student's particular strengths and needs, and consider these against a full range of placements, programs and services. Ultimately, appropriate accommodation will be decided on an individual basis. The Ministry of Education has articulated its policy position on this issue stating its commitment to the principle that "the integration of exceptional students should be the normal practice in Ontario, when such a placement meets the pupil's needs and is in accordance with parental wishes." [88] Regulation 181/98 also requires an IPRC to consider the placement of a student with a disability in a regular class with appropriate special education services before it considers placing that student in a special education class.[89] If the IPRC decides that a student should be placed in a special education classroom, it must give written reasons for its decision.[90] For those students whose needs cannot be met entirely in the regular classroom, an IPRC may consider a range of possible options:
In some cases, there may be a need to apply for admission to a Provincial School for students who are blind, deaf, or deaf-blind, or, a Demonstration School for students who have severe learning disabilities. The Ministry of Education also maintains a number of hospital schools, as well as care and treatment centres at various locations in the province, and schools in a number of correctional facilities. The programs at these locations have an educational component, but they will also concentrate on broader aspects of a student's development. Feedback received throughout the consultation indicates that consultees are sharply divided on the issue of appropriate accommodation. The widely divergent input received from consultees indicates that there is ongoing debate regarding decisions to place students in specialized settings as opposed to placing them in mainstream classrooms with supports. Many, if not most, consultees expressed their preference that students with disabilities be included in regular classrooms. The Commission heard that inclusion in the regular classroom facilitates greater interaction between students of varying abilities, that it develops positive attitudes and relationships, and that it is less likely to stigmatize people with disabilities. For example, Community Living Ontario wrote: "If a child with a disability begins life with an expectation of inclusion, she is much more likely to seek out, and be accepted in, inclusive environments and activities later in life. It is equally true, that when a student that does not have a disability is educated in an inclusive environment, inclusion will most likely remain her cultural expectation throughout life." Expressing her preference for inclusion, one parent wrote: "School is a training ground for life. Students learn academics and skills, but they also learn about people, all kinds of people, and how to relate to them. If students are 'different,' do we include them by having a place for them at the back of the school, perhaps with a separate lunch schedule? Have them arrive after school begins and depart before school officially ends? Have them enter and exit in their own separate door? Have them travel exclusively on their own segregated b
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