Children With Special Needs
The right to receive these accommodations applies to students in both public and private schools, once the student has been accepted. However, the rights can be more extensive and more enforceable in a publicly funded school for three reasons. First, students in publicly funded schools have the right to have equal access to educational programs under both the Canadian Charter of Rights and Freedoms and the Ontario Human Rights Code, whereas private schools are only subject to the Ontario Human Rights Code. Second, the Education Act mandates more programs for exceptional students in publicly funded schools. Third, the point of undue hardship can be much higher in publicly funded schools, which have access to government resources to meet student’s needs, while private schools may only have access to the money paid by student tuition.
One important thing to remember is the educational professionals at the school are the people who have the training, skills, and experience to select or develop the programs for students with special needs. The courts and the Human Rights Tribunal will not tell a school that is accommodating an exceptional pupil to change the type of accommodation unless it is absolutely clear, beyond any doubt, that the accommodation provided is not addressing the student’s needs. Parents, guardians, or student advocates, do not get to pick what type of accommodation a student receives, although parents and guardians are certainly entitled to be heard in the Student Identification and Placement process. If a parent disagrees with the way that programming is provided to a student with identified special needs, it is up to the parent to gather the evidence, usually professional assessments, to show what the school is doing is wrong.
There is an appeal process for parents to appeal what the school identifies as the special need, and to appeal the placement, which is what type of classroom the student is in. However, there is no set appeal process to appeal the specific education plans that a school puts in place to teach the child. Getting a school to change the way it is teaching a particular child requires a demonstration that the child is clearly not benefiting from the current plan or that another plan would definitely better. That is not an easy task.
An education lawyer, who knows how the law works in detail, and how to present a case and advocate for a student in the system, can provide a lot of help to parents in taking the rights steps to ensure their child gets the education that he or she needs. You can set up a consultation with one of our Ontario Education Law lawyers by clicking on their name on the right side of this page.