Tuesday, November 13, 2012

Thoughts on parent advocacy and the Moore decision: guest post

Today's post is from David Komljenovic, in Kamloops:

The Supreme Court of Canada decision in the Moore case creates a framework of advocacy for parents of children with special needs (and I am one). Often parents find school boards obstinate when more support is requested despite good reasons for providing them. I am hopeful that this decision will change the attitude that many boards have towards special education. The views of the courts should change how special education is viewed and in context to the required human rights considerations when Boards make budgetary decisions:

"Adequate special education...is not a dispensable luxury. For those with severe learning disabilities, it is the ramp that provides access to the statutory commitment to education made to all children in British Columbia."

In that vein, there is also now advice provided by the SCC to parents about how to advocate for their children including the requirements on districts to undertake a review that considers impacts on the human rights of children with special needs before changing or taking away programs. Some of the points in the decision related to this were:

"In Jeffrey’s case, the Tribunal accepted that the District faced financial difficulties during the relevant period. Yet it also found that cuts were disproportionately made to special needs programs. Despite their similar cost, the District retained some discretionary programs, such as the Outdoor School — an outdoor campus where students learned about community and the environment — while eliminating the Diagnostic Centre." (para 51)

"More significantly, the Tribunal found, as previously noted, that the District undertook no assessment, financial or otherwise, of what alternatives were or could be reasonably available to accommodate special needs students if the Diagnostic Centre were closed...the failure to consider financial alternatives completely undermines what is, in essence, the District’s argument, namely that it was justified in providing no meaningful access to an education for Jeffrey because it had no economic choice. In order to decide that it had no other choice, it had at least to consider what those other choices were." (para 52)

The SCC makes a harsh commentary on the North Vancouver Board and perhaps warns other Boards that do not complete their analysis before making a decision of potential consequences.  Boards have to do more than just take into consideration budgetary constraints. The SCC has now decreed that human rights considerations must also be made and may exempt the closure of certain facilities or dismantling of programs.

"The Tribunal found that when the decision to close the Diagnostic Centre was made, the District did so without knowing how the needs of students like Jeffrey would be addressed, and without "undertak[ing] a needs-based analysis, consider[ing] what might replace Diagnostic Centre, or assess[ing] the effect of the closure on [Severe Learning Disabilities] students". The Tribunal noted that at the Board meeting on April 26, 1994, when the budget closing the Diagnostic Centre was approved, the Minutes stated that "[a]ll Trustees indicated in this discussion that they were adopting the bylaw as it was required by legislation and not because they believed it met the needs of the students". It concluded that Dr. Robin Brayne, the District’s Superintendent of Schools, and the District in general "did not know how many students would be affected" by the closure. In fact, on the day of the Board vote, the District’s Assistant Superintendent and the Coordinator of Student Services informed Dr. Brayne that it was "too early to know precisely how the needs of high incidence students will be addressed in the absence of the Diagnostic Centre". (para 43)

I would note that the SCC did not completely absolve the province noting that the budgetary crisis was partly created by them:

"This brings us to the Province’s role. The District’s budgetary crisis was created, at least in part, by the Province’s funding shortfalls..."

However, it is logical to understand why the SCC did not expand its decision of discrimination beyond the district. I noted these three quotes that explain how a complaint is centred on the complainant and not on systemic issues that may tangentially be related to the complainant.

"A practice is discriminatory whether it has an unjustifiably adverse impact on a single individual or systemically on several..."

"But the remedy must flow from the claim. In this case, the claim was made on behalf of Jeffrey, and the evidence giving concrete support to the claim all centred on him. While the Tribunal was certainly entitled to consider systemic evidence in order to determine whether Jeffrey had suffered discrimination, it was unnecessary for it to hold an extensive inquiry into the precise format of the provincial funding mechanism or the entire provincial administration of special education in order to determine whether Jeffrey was discriminated against. The Tribunal, with great respect, is an adjudicator of the particular claim that is before it, not a Royal Commission."

"However, she properly noted that "[a]lthough systemic discrimination does not have to be specifically pleaded, it must relate to the complaint as framed by the Complainant" (emphasis added). This, I think, was a clear direction to the Tribunal hearing the merits of the case that while systemic evidence could be helpful, the claim should remain centred on Jeffrey."

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