The Rights of Special Needs Children
Under the Education Act every child in the Province of Nova Scotia between the age of 6 and 16 must attend school. In regard to students with special needs, it is stated that school boards are obligated to "develop and implement educational programs for students with special needs within regular instructional settings with their peers in age, in accordance with the regulations and the Minister's policies and guidelines". [s. 64(2)(d)]
All children in the Province are entitled to an "appropriate education", this means an education appropriate to their particular needs. References in the Special Education Policy Manual refer to "programming in a variety of educational settings"; and school boards providing a continuum of programming options and services to meet the special needs of students". Support services are to be co-ordinated within the neighbourhood school and to the extent possible, within grade level/subject area classrooms.
School boards are also obligated to provide necessary medical treatment during school hours, including the administration of oral medication and the health care and comfort of physically disabled students.
Although students with special needs in Nova Scotia are entitled to an appropriate education and in theory parents are considered an integral part of the process of forming an education for such children, the actual reality is far from rosy. There are numerous children with special needs in this Province who have been pulled out of school by their parents. Some because the parents feel that the children's needs for physical safety are not being met, some due to the fact that the parents strongly believe that their children are not getting a proper education in school and having their diverse needs properly met. Some of these children are placed in private schools at great expense to the parents, some are officially signed up for home schooling and some are informally educated at home while the parents work very hard to get their children back in school with the type of programming to which they are legally entitled.
It is for this reason that for a parent with a child with special needs in the school system, its important to know what the parents' and child's rights are and what tools are available to a parent when despite repeated discussion and negotiation, a school board refuses to provide a child with what they require to obtain an appropriate education.
The IPP
In Nova Scotia, students who cannot meet grade level outcomes, even with various accommodations, will follow an individualized program plan, better known as an IPP. An IPP will set out the goals for the student, the strategies which will be used to achieve those goals and the roles and responsibilities of teachers and others, such as Speech Language Pathologists or teachers' assistants.
The Program Planning Team is responsible for creating the IPP and reviewing and modifying it as the student's needs change. This team includes the student's teachers any teacher assistants or other specialist teachers involved and the parents or guardians of the child. The parent or guardian of a special needs child is, by law, a member of that child's Program Planning Team.
The Policy provides a detailed description for the Program Planning team process stating that the program planning meeting should not be a forum for teachers, administrators, and other agency personnel to present a completed program to the parents. [pg.38] Although the parent is only one member of the Team, the legislation makes it clear that the parents' legal role in the education of a special needs child is not merely because they hold the title of "parent", but because parents, as such, are legislatively considered to possess a wealth of knowledge and experience about the special needs of their children. It is clear that decisions about Program Planning and services should be reached by mutual agreement among team members including parents / guardians. [pg.56]
From a parent's point of view, the IPP is often the place where the rubber hits the road as it lays out how and what the school will teach their child. In a sense, its a child's lifeline, from where he is now to where we hope he will some day be. Parents are not only to be afforded the opportunity to participate in the development of an IPP for their special needs child but also to have access to a procedure to appeal that document if they disagree with. It is for that reason that the IPP appeal process is so important for parents- it gives them a process to follow if they do not agree with what the school proposes to teach the child, where they propose to teach him or the methods that they propose to use.
From the parent's perspective its very important to know what steps must be followed in order to initiate an appeal of a child's IPP, how much time both the school board and Minister have to respond and set up an appeal hearing and what the parents' rights are at such hearings. I have provided a one page handout which shows the procedure to be followed by a parent who wishes to appeal their child's IPP and would be happy to answer any questions concerning it at the end.
Canadian Charter of Rights and Freedoms
With or without the IPP appeal process, the best protection afforded to students with special needs in Nova Scotia appears to be that offered in the Canadian Charter of Rights and Freedoms. The Charter is part of Canada's Constitution and as such, every federal or provincial law must comply with it. For our purposes, the most relevant section of the Charter is sec. 15 which provides that "Every individual is equal before and under the law and has the right to the equal protection and benefit of the law without discrimination and in particular, without discrimination based on mental or physical disability'.
There has been one major case where the Supreme Court of Canada has applied this section of the Charter in the context of the rights of a special needs child in the school system (Eaton v. Brant (County) Board of Education (1996) 142 D.L.R. (4th)385). In that case, the parents of a multiply-handicapped child, Emily, appealed her "placement" - although she had initially been placed in a regular kindergarten class with a special assistant, after two years the school wanted Emily to be placed in a segregated special education class. The parents wanted her to remain in a regular grade level classroom. Through the IPP appeal process, the case eventually made its way to the Supreme Court of Canada. The argument centred around s. 15 of the Charter - was it discriminatory to place Emily in a special education classroom? The Court found that in the facts of that particular case, it was not. It would be in Emily's "best interests" to be placed in a special classroom.
Although some people view this case as a step backwards for equality and perspective is, of course, everything, I see this case as an important step forward for special needs children. The court noted that true equality requires the recognition of differences and focused upon a lack of accommodation as the real threat to disabled people in Canada. It was found that segregation could both protect or violate equality depending on the very individual characteristics of the child in question. Although integration was accepted as the general norm due to the benefits it provides, the court found that a presumption in favour of integrated schooling should be rejected on the basis that it may operate to deprive pupils that do require special education services that are best provided in a segregated setting (p. 407). The idea that each individual child, the strengths and needs of that particular child and where those needs are best met are the controlling factors in determining placement makes sense, at least to me. The court held that in some cases segregation would constitute discrimination; in other cases, inclusion in a regular classroom would be discriminatory. It all depends on the particular child
However, the potential pitfall that I see in this analysis is how we determine (and perhaps more importantly, who determines) what is in a particular child's best interests. Unfortunately, the courts often display a high degree of deference to the "specialized tribunals" that represent school boards, whether it be the Identification Placement and Review Committee which determined placement in Emily's case or the Ministerial Appeal Board we find in Nova Scotia. To date, not only in Nova Scotia, but across the country, the courts definitely tend to come down on the side of the education system as being the best party to make such decisions. It will definitely be an uphill battle for parents as long as the courts operate with this unspoken presumption that the educational system "knows best". However, it is my hope, that as more and more special education cases are brought before the courts, they will eventually realize that the system, at least here in Nova Scotia, is not working "as it should", and they will become more interventionist.
I think we should also realize that "placement" need not be an all or nothing proposition. From my point of view, insisting that all special needs children must be placed in a special education setting 100% of the time is as ridiculous as asserting that all special needs children must be in a regular classroom 100% of the time. If we look at the individual child, and their particular needs, we may often find that the real answer is somewhere in between. As long as the governing rule is what is best for this particular child, a program planning team should be able to decide whether a combination of settings would be most valuable for the child. Certainly, the interpretation placed upon s. 15 of the Charter by the Supreme Court of Canada in Eaton would not stand in the way of such a conclusion.
Another Supreme Court of Canada decision which will likely eventually impact the rights of special needs students is Nova Scotia is that in Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624. In Eldridge, the plaintiffs, who were deaf, argued that because of the communication barrier that exists between deaf person and health care providers, deaf people received a lesser quality of medical services than hearing persons. The Supreme Court of Canada accepted this argument and found that the health care system was obligated to provide sign language interpreters to individuals in such circumstances.
From the point of view of special education, this opens the door for special needs students to argue that where school boards fail to sufficiently accommodate their disabilities, such students will be receiving a lesser quality of educational services. In such a case, action might also be brought against the Province on the basis that the Prance has and exercises the obligation to set policy and standards, evaluate programs and provide any potential funding to school boards for certain types of expenditures. If a student was successful in establishing that they were discriminated against in the quality of education provided to them, they might also be able to establish that the general policy standards and guidelines, and the funding parameters set by the Province failed to meet the constitutional standard.
THE HUMAN RIGHTS ACT
Students with special needs should also be protected under the Nova Scotia Human Rights Act. All provincial legislation, including the Education Act and regulations made under it, must be in compliance with the Human Rights Act. It contains a provision similar to Sec. 15 of the Charter, stating that "No person shall in respect of the provision of or access to services or facilities discriminate against an individual or class of individuals on account of …. physical disability or mental disability. (s. 5(1))
However, within the past two years, the Human Rights Commission has taken the position that before proceeding to the Commission with respect to a complaint in respect of discrimination against a special needs child in the educational system, the parents must first exhaust all dispute resolution procedures available to them in the education system. This could mean following to its completion the IPP appeal process or any parent concern protocols which various school boards might have. From the point of view of the parent, it often looks like just another roadblock placed in front of them as they try to obtain an appropriate education for their child.
"Educational Malpractice"
At various times students and their parents, in Canada, the US and Britain, have attempted to bring law suits against school boards or government agencies for their failure to provide a student with an appropriate education. In some cases, the lawsuits are brought by special education students; in other cases, by "typical" students. This type of lawsuit has become known as "educational malpractice". The theory of this type of lawsuit is that school boards and others have a duty to provide children with a proper education and if they are negligent in fulfilling this duty (if they do not meet the standard of a reasonable school board for example) they will be liable for the damages suffered by the student. Although interesting as a theory, to date it has not received a positive response from the courts.
Both Canadian and American courts have been very reluctant to even consider awarding damages in such cases. For the most part, the courts have held that it is not their role to establish standards of conduct for teachers and that only if the conduct was sufficiently outrageous and offensive to community standards of fair play should a court even consider entertaining a claim for educational malpractice.
However, there has been some recent British caselaw which looks a little more promising in this area. Although finding that you cannot proceed successfully to court simply on the basis that an educational authority, such as a school board, has breached a provision of the Education Act, the English courts have found that that educational psychologists and other members of the staff of a local educational authority (or perhaps in our context, school board), including teachers, do owe a duty of care to use reasonable professional skill and care in assessment and determination of a child's educational needs and that the school board would be liable for any breach of such duties by their employees.
The head teacher of a school (in Canada, likely the principal) has a duty of care to exercise the reasonable skills of a principal in relation to the educational needs of all the students in the school. If it comes to the his attention that a pupil is under-performing, the principal is under a duty to take such reasonable steps as a reasonable teacher would consider appropriate to try to deal with such underperformance. If such a principal gives advice to the parents, then he must exercise the skills and care of a reasonable teacher giving such advice.
Similarly, in the case of an advisory teacher (perhaps in our context, a resource teacher or school board program advisor) brought in to advise on the educational needs of a specific pupil, if he or she knows that their advice will be communicated to the pupil's parents, they owe a duty to the child in giving any advice to exercise the skill and care of a reasonable resource teacher, program advisor or school psychologist.
Since that landmark decision, other similar cases have been allowed to proceed to trial in England, including a claim by a former student who suffered from muscular dystrophy and claimed that the defendant council had failed to provide him with an education suitable to his needs. On March 16, 2002, it was reported in Great Britain that a dyslexic whose condition went undetected by teachers for almost a decade was awarded 52,500 pounds compensation, apparently on the basis that he did not reach his "full academic potential". However, I was unable to locate the actual court decision and it can be dangerous to go just by a newspaper report. ("50,000 for pupil whose dyslexia teachers missed", Nilupfer Atik, Daily Mail)
Another recent interesting development in this Province is a lawsuit brought by the parents of a special needs child against the Department of Education, their school board, the Departments of Health and Community Services and the IWK. The child was diagnosed as being autistic and sent away without advice to the parents about or access to treatments for autism. Eventually the parents discovered some of the very expensive therapies available and have been using one of these therapies which great success for their daughter. However, no aspect of government, be it health, community services or education is willing to pay any of the cost of this treatment. For that reason the parents have proceeded under the Charter, suing all these bodies alleging that their daughter has been discriminated against on the basis of a mental disability. A similar lawsuit in B.C. was successful but the government has appealed. It will likely take years for the Nova Scotia case to work its way through the court system but if the parents are successful, it should have a huge impact in defining the rights of persons with disabilities in Canada.
In the interim, it will likely take a combination of political and legal action to ensure that all children in this province, including those with special needs, receive an appropriate education. During this past year two new parent groups have formed, one called PACTA (which deals specifically with the issue of tuition agreements), and one called Families for Inclusive Education, which hope to move forward the issue in various ways.
Conclusion
Due to the courts' reluctance in Canada to embrace the concept that a student, or a parent, can bring an action for a school board's negligence in providing, or failing to provide, an appropriate education to a special needs child, the best tool that parents and their special needs children have in attempting to obtain an appropriate education in Canada at this point is clearly the Charter.
The Department of Education's Special Education Policy Manual, which has the effect of law, provides that "School Boards are required to provide an appropriate education for all students who reside within their jurisdiction who are of school age." (Policy 1.5) By relying on the right of every individual to have the equal benefit of this law and the right not to be discriminated against on the basis of either physical or mental disability, parents should be in a position to resort to the courts, when necessary, to obtain an education appropriate to their individual child's needs. It will be very interesting to see what happens in the case of the lawsuit by the parents of the autistic child in this regard.
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