Law and Order: The Final Verdict

1. February 13, 2012 Law and Order: The Final Verdict

2. Outline Special Education/Inclusion Examining the Litigation Administering of Medications Final Thoughts

3. Special Education/Inclusion • In Canada, by virtue of section 93 of the Constitution, education is a provincial/territorial responsibility • Although not commonly recognized, provinces have been enacting legislation in the area of special education since as early as 1969 • This early legislation sought to ensure an education for exceptional children

4. However, it wasn’t until the 1970s that we begin to see the passage of wide-sweeping laws to regulate special education practices • The groundbreaking special education legislation in North America was Public Law 94-142, The Education for All Handicapped Children Act , passed in 1975

5. This legislation guaranteed an individual education plan for pupils, and required that all students with special needs be educated in the least restrictive environment • Since the passage of PL 94-142, provinces and territories across Canada have, to varying degrees, enacted policies dealing with inclusion/special education

6. The courts have also become involved in the special education arena • Most legal challenges involving special education/inclusion have been framed around sections 7 and 15 of the Charter • Section 7 is seen as the heart of the constitutional guarantee to education, while section 15 deals with equality rights

7. Examining the Litigation • Much of the litigation in the area of special education has arisen due to the placement decisions made by boards • Eaton v. Brant County Board of Education [1997] is regarded as the landmark court case involving special education

8. Sopinka J. in writing for the court set out three important criteria: • 1)there is no presumption in favor of inclusion based on the Charter or the wishes of parents; • 2)decisions regarding placement of exceptional students must be made in the best interests of the child; and

9. 3)therefore, excluding some children from mainstream classes is an acceptable form of discrimination, if it benefits the child • “Disability, as a prohibited ground, differs from other enumerated grounds such as race or sex because there is no individual variation with respect to these grounds. Disability means vastly different things, however, depending upon the individual and the context. This produces, among other things, the ‘difference dilemma’ whereby segregation can be both protective of equality and violative of equality depending upon the person and the state of disability.”

10. The 1985 Yarmoloy case from Alberta demonstrates the importance of fair procedures in making placement decisions • In this case, the court determined that the failure of the school board to convene an appeal board, although guaranteed by policy, prevented the parent an opportunity to present her case • As such, the board had acted outside of the scope of its authority

11. In the 1986 Elwood case from Nova Scotia, a similar lack of parental involvement led to an out-of-court settlement • Both Yarmoloy and Elwood are important in that parents are now routinely involved in placement decisions regarding their children—a point guaranteed by policy in most if not all jurisdictions

12. The 1984 Bales case from British Columbia is also relevant in regards to the issue of policy • In Bales the court ruled that the decision by the board to place a child in a segregated school was valid • At the heart of this case was the fact that boards cannot be held to a particular standard of inclusion/accommodation without a clear policy requiring it

13. Another issue that must be considered in special education/inclusion is the fundamental issue of access to schools • Generally speaking, all children, with the exception of those with the most severe disabilities, have access to schools • Thus, principals, and ultimately school boards, can exclude a child with special needs from school for legitimate safety reasons (see for example Bonnah, 2002)

14. While a student’s special needs must be taken into account, these special needs in and of themselves cannot undermine the duty to provide a safe learning environment • In addition to the Charter, educators must also recognize that provincial human rights codes, which apply to the private and public sectors, is also relevant

15. The 2005 Cudmore case from New Brunswick involved a human rights complaint surrounding the refusal by the government to pay for a child with ADHD to attend a specialized school • Ultimately, a board of inquiry found in favour of the board

16. This case is important in that it demonstrates that ADD/ADHD are mental disabilities, and thus persons with these conditions should be afforded protection against discrimination • The case also illustrates the preference by governments to accommodate within the public school system, rather than funding private school options

17. An area of special education where much of the current litigation has been focused surrounds the provision of specialized services for students with autism spectrum disorders (see for example Auton and Wynberg)

18. Administering of Medications • Many teacher organizations argue that their members should not be obligated to provide medication to students on an ongoing basis (this excludes the administering of emergency medication) • However, unless incorporated into a collective agreement, the question remains as to whether or not teachers must provide such services if ordered to do so by the board

19. Is it fair and reasonable to assign teachers the task of administering medication in schools? • If a teacher does administer medication, it is wise to determine if the school board has insurance coverage for dispensing drugs • If no insurance exists, the safest path is to not administer the medication

20. If one does administer medication, doctor’s instruction should be obtained • As well, teachers should seek specialized training • In sum, this is an area lacking in clarity, but needless to say, it is wise for boards to develop clear polices, and furthermore, schools should be aware of any special health care needs of students

21. Final Thoughts • Law is a primary force in shaping education • Law shapes: • the basic structures of the educational system • the conditions of teaching and teaching practices • regulations regarding the physical safety of students • school attendance • maintaining order in the schools • student rights and democratic practice in schools

22. If everyone agreed on what people should do, law would be unnecessary • Schools are increasingly being affected by legal considerations • Teachers, while not thinking of themselves as lawyers, need to be aware of the legal parameters that shape their work • So again, when you think education, think law!