Failure of the school district to meet needs of a student with a disability was discriminatory

Supreme Court of Canada decides education for children with disabilities is a right (photo Jason Rowe, Flickr Creative Commons)

By Robert Lattanzio and Laurie Letheren, ARCH Staff Lawyers

On November 9, 2012, the Supreme Court of Canada released a decision today in Moore v. British Columbia (Education). This decision will be extremely important to students with
disabilities in the general education system. 

In this case, the Supreme Court affirmed the decision of the British Columbia Human Rights Tribunal in which the Tribunal found that the failure of the school district to meet
Jeffrey Moore’s needs as a student with a disability was discriminatory.

The Court found that the goal of general education is that “all children should be afforded opportunities to develop their full potential … and the District did not take all the steps necessary to give Jeffrey the education to which he was entitled.”

In reaching this conclusion on discrimination, the Supreme Court confirmed, the school board must show that “it could not have done anything else reasonable or practical to avoid the negative impact on the individual” …”accommodation is not a question of mere efficiency”.

Jeff Moore needed special education which was his right says Supreme Court(photo CBC)

One of the central issues that the Supreme Court addressed at the hearing on March 22, 2012 was the meaning of “services” for students with disabilities in the education context.

The  majority of the British Columbia Court of Appeal had determined that for students with disabilities who access supports through “special education services”, the meaning of “services” is the “special education services”.

Represented by Roberto Lattanzio and Laurie Letheren of ARCH, the Canadian Association for Community Living (CACL) had intervened in the appeal before the Supreme Court.

The focus of CACL’s submissions was on the meaning of service. CACL argued that to define service in this context as “special education services” promotes exclusion of students with disabilities from the general education services that are to be available to all.

This is inconsistent with the goals and principles of human rights legislation and the Convention on the Rights of Persons with Disabilities.

The Supreme Court agreed that the lower courts had erred in defining “special education” as the service.

Justice Abella, who wrote the decision on behalf of a unanimous Court, rejected the separate but equal approach that this meaning of services promoted.

The Court stated, “Comparing Jeffrey only with other special needs students would mean that the District could cut all special needs programs and yet be immune form a claim of discrimination.”

Another important factor that the Court considered in concluding that the District had discriminated against Jeffery Moore was that the school District was aware of the importance of supports that Jeffrey needed but the District had not considered the impact or planned for alternatives when it cut the program that Jeffrey needed.

The Supreme Court ordered that the District pay the Moores the cost of the private schooling that Jeffrey had to attend in order to achieve his true potential in his education and to pay for the damages for the harm that Jeffrey suffered. In addition, the Court ordered that Moore’s costs throughout this very long litigation process be paid by the District.

In ARCH’s view this is a very positive decision for students with disabilities. Robert Lattanzio and Laurie Letheren are “pleased to see that the Supreme Court affirmed what ARCH has often argued is the procedural duty on school boards when they are accommodating the needs of students with disabilities.

The school cannot simply say, ‘this is what we will offer the student’. The Court has clearly stated that school boards must make a full assessment of all the alternatives that could be available in accommodating the needs of students with disabilities.”

As Michael Bach, Executive Vice-President of CACL has stated, “Special education has been a ‘dead end’ for far too many students with disabilities. This judgment makes it clear once and for all. The real test of special education services is whether they provide the “ramp” to educational services to which all children are entitled.”

“And, as required under the UN Convention on the Rights of Persons with Disabilities, such services must, by definition, be inclusive. Special education has to be designed to make that happen for all.”

ARCH ALERT is published by ARCH Disability Law Centre. It is distributed free  via e-mail  or mail to ARCH members, community legal clinics, and others with an  interest in disability issues. ARCH is a non-profit community legal clinic,  which defends and promotes the equality rights of persons with disabilities through litigation, law/policy reform and legal education.

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