Law, Disability & Social Change

By Krysten Bortolotti, J.D. 2016, University of Windsor Faculty of Law

The Moore v British Columbia decision in 2012 was seen as a huge victory when the Supreme Court of Canada unanimously found that all school districts must take a proactive approach to budgeting and programming to ensure the rights of students with disabilities and their accommodation are taken into account. With that ruling many people thought that the disability rights of children in education would improve drastically.

A recent 2014/2015 parental survey report by the BC Parents of Special Needs Children confirms that the current fiscal funding in British Columbia’s public education services for children with disabilities is inadequate. The report shows many parents (51%) have removed their child from public education and others have even been forced out (31%). Areas that parents identified as providing inadequate support to their children with a disability included the lack of educational assistants and access to specialized services that had been prescribed for their child (such as occupational/physical therapy and speech/language therapy). Finally, the report sheds light on the fact that the school boards in British Columbia aren’t following the policies and procedures created by the Ministry of Education. For example, many parents indicated that the Individual Education Plans (IEPs) prescribed for their children were not being followed by some school boards. The failure of the school boards to implement these plans goes directly against the British Columbia Ministry of Education’s policy under the Individual Education Plan Order, which explicitly states:

(5) Where a board is required to provide an IEP for a student under this order, the Board must offer each student learning activities in accordance with the IEP designed for that student.

The same can also be said for Ontario, which recently announced changes to the formula for special education funding for school boards, forcing boards to cut back on support services for students with disabilities. In March of this year, the Toronto Star reported that 38 boards across Ontario will receive less special education funding than they did in their previous year despite the fact that demand for funding of these programs has continued to increase over the years. Previously, the Ministry of Education allocated funding on a “per pupil basis”, but the changes to the formula were the result of an effort by the government to address the inequity of funding among the boards as well as declining enrolment. These changes to the funding formula occurred in March 2014, when the Ministry announced a four-year transition to a new “high needs amount allocation” formula for special education. Instead of adding more funding to those boards receiving less funding, the Ministry decided to “redistribute” the funding. For the boards receiving more funding per pupil under the old formula, they have had to cut crucial special education tools that they had implemented and built up over years of funding.

These cuts have a drastic impact on the education received by children with disabilities. According to the organization, People for Education, more than 331,000 students receive special education support. Sadly, 57% of elementary and 53% of secondary school principals report restrictions on waiting lists for Special Ed assessments and an estimated 44,000 students are currently on wait lists for assessments with identification, placement and review committees or for services.

The Moore decision stands for many propositions, among them being that human rights law requires service providers to make their services accessible to persons with disabilities. Essentially where a barrier is identified, the service provider must provide accommodation to overcome that barrier unless doing so would cause undue hardship. At first glance, this seems like a win for advancing disability rights. However, the concept of “undue hardship” rests upon considerations involving: (1) cost, (2) outside sources of funding, if any, and (3) any health and safety requirements. One quickly begins to see that reasonable accommodation in the context of education for children with disabilities can certainly be skirted because of the costs associated with special education programming.

But perhaps we need to look at the issue using an appropriate critical disability theory perspective. If we approach this disability issue critically, we can see that ensuring that special programs exist will help address the economic roots of disability by supporting students with disabilities so that they may realize their fullest potential to become active, contributing individuals in society.

Too often, however, the government makes funding decisions to special education with shortsighted views on economic efficiency. The immediate cost of implementing these programs is seen to be reason enough to cut funding or under-fund. What this narrow application of costs does not take into account are the larger implications of insufficiently funding these programs. For example, it was reported recently that the failure to adequately address learning disabilities of children because of education costs destines those children to underperform throughout school. Further, people with learning disabilities are highly over-represented in the criminal justice system, representing 5-10% of the general population, but 25 per cent of the prison population. This outcome is perhaps avoidable by properly educating individuals with disabilities so that wherever possible they may become contributing members of society.

Walking away from a narrow application of economic efficiency and looking at costs through a broader theoretical perspective might help maximize everyone’s potential. Doing so can bring about a more efficient wealth-driven society by properly educating and developing all children — with or without disability.