Focus: Bona Fide Academic Requirements in the New OHRC Policy
At the end of August, the Ontario Human Rights Commission (“OHRC”) released a new Policy on Accessible Education for Students with Disabilities (the ‘Policy’). The Policy represents a significant step forward as many students with disabilities continue to experience barriers in attempting to access the education system. The Policy outlines the OHRC’s interpretation of human rights as it applies to the primary, secondary and post-secondary education systems. This is particularly important because the OHRC’s interpretation of the Human Rights Code (the “Code”) has persuasive force in a proceeding before the Human Rights Tribunal of Ontario. This is encoded in section 45.5 of the Code which states that the HRTO must consider the OHRC’s policies in their decisions when it is requested by a party or intervener.
Within the pages of the Policy, the OHRC offers a fulsome explanation of the rights of students with disabilities as they pertain to education, as well as developments in the law and educational practice over the past decade. These developments include new and more nuanced understandings of human rights law as it applies to students with disabilities.
Bona Fide Academic Requirements
One significant new innovation in the policy is that it more fulsomely addresses the issue of bona fideacademic requirements. Simply put, bona fide academic requirements are the essential duties or requirements that one must be able to fulfill in order to access an educational service.
Section 17 of the Code provides that the right to be free from discrimination in accessing a service is not infringed if a person with a disability is not capable of performing the vital tasks that one needs to access the service. In an educational setting, how these “essential” requirements are framed can have a huge impact on students with disabilities.
Example: A student is perceived as being unable, for disability-related reasons, to complete a written exam in their class. The instructor claims that the student should not be in the class because completing a written exam is essential to demonstrating mastery of the academic material. He insists that the student drop the class because he does not expect him to be successful. He does not consider alternate methods of examination such as an oral exam or other alternate accommodations which may allow the student to complete a written exam.
In the above example, the “essential” requirement identified by the instructor would be having the ability to complete a written exam. However, this requirement may not stand up to legal scrutiny. Section 11 of the Code prohibits any type of discrimination that results from a seemingly neutral standard or requirement unless they can demonstrate that it is bona fide. This section requires an education service provider to legally justify the use of any particular standard.
In British Columbia (Public Service Employee Relations Commission) v. BCGSEU, (‘Meiorin’), the Supreme Court laid out the test through which a service provider could justify the use of a particular requirement or standard. In the context of an educational setting, the test requires that an education provider must establish on the balance of probabilities that the standard or requirement:
1. Was adopted for a purpose or goal that is rationally connected to the function being performed,
2.Was adopted in good faith, in the belief that it is necessary to fulfill the purpose or goal, and
3. Is reasonably necessary to accomplish its goal or purpose, in the sense that it is impossible to accommodate the student without undue hardship.
In the educational setting, the focus of much of the analysis on whether a standard or requirement is bona fide often occurs at the last stage of the test; namely, whether the standard put forward by the education service provider is reasonably necessary and whether it is possible to provide proper accommodations for a student to allow them to meet the standard.
Drawing on Meiorin, the OHRC lists some of the considerations that should be taken into account when conducting this analysis. These include:
1. Whether the education provider investigated alternative approaches that do not have the same discriminatory effect
2. The reasons that any viable alternatives were not put into place
3. Whether an education service provider can have differing standards that reflect group or individual differences
4. Whether the education provider can meet their legitimate objectives in a less discriminatory way
5. Whether the standard is designed in a manner that ensures the desired qualification is met without placing undue burden on the students it applies to
6. Whether other parties who are obligated to assist in the search for accommodation have fulfilled their roles (p 66)
Ultimately, the OHRC emphasizes that the onus is on the education provider to demonstrate that the standard is reasonably necessary and that the needs of the student could not be accommodated without causing undue hardship.
Additional Considerations on Bona Fide Standards from the OHRC
With this basic legal framework in mind, the OHRC lays out some additional considerations which education service providers must consider before deeming a particular standard vital or essential. For instance, the OHRC emphasizes that any standards must be designed to be as inclusive as possible from the outset, so as to minimize potential problems or barriers for students with disabilities and should be carefully scrutinized prior to being put in place.
The OHRC also highlights the idea that once a standard is in place, evaluations of a student’s ability to meet that standard with or without accommodations should be made carefully. The OHRC states that:
“…conclusions about inability to perform essential requirements must not be reached without actually testing the ability of the student. It is not enough that a student cannot perform an essential requirement. Rather, there must be an objective determination of that fact. To this end, an individualized assessment will be necessary.” (p. 64)
In this way, the OHRC admonishes education service providers who make overly impressionistic conclusions in assessing these types of situations.
Example: Returning to the above scenario, using the legal test:
– We can assume that the standard, having the ability to demonstrate mastery of academic material in written form, was adopted for a purpose that is rationally connected to the function being performed (teaching and evaluating the student).
– In most cases, we can assume that the standard has been adopted in good faith. There is certainly no evidence that it was not in this case.
– However, we should question whether it was reasonably necessary to accomplish the instructor’s goals. We might ask why a student must demonstrate mastery of academic material in written form. Could an oral exam allow the student to demonstrate that they have retained the required knowledge without creating a barrier to access? We might also ask whether additional accommodations would allow the student to complete a written examination. This could include a time extension or some sort of assistive aide for writing. Without answering these questions with some sort of objective assessment, it would be difficult to classify the proposed academic standard as bona fide.
The above discussion is of great importance to students with disabilities who often encounter barriers, like the one described above, in the education system. Educational institutions often attempt to justify these barriers with spurious objections suggesting that removing the standard or allowing appropriate accommodations for a student would violate the ‘academic integrity’ of the institution.
ARCH has often been approached by students with disabilities who have been denied accommodations or experienced barriers as a result of concerns about ‘academic integrity’. They are often told by education service providers that providing an exception or accommodation to a student with a disability would somehow compromise the standards of the whole institution and would render it unable to serve its educational purpose.
Case law up to this point has sporadically dealt with the issue of academic integrity. There are two significant cases from the Human Rights Tribunal of Ontario (“HRTO”) dealing with this issue – Fisher v. York University, 2011 HRTO 1229 (CanLII) & Longueépée v. University of Waterloo, 2017 HRTO 575 (CanLII). In both cases, they found that the academic standard adopted by the institution was justifiable, however what is notable about these cases is how little space the HRTO dedicates to analyzing why a particular academic standard is or is not necessary.
In Longueépée, the issue before the HRTO involves an educational service provider relying on grade thresholds as the primary means of making admissions decisions. Rather than engage with the three part test in Meorin, the Tribunal instead simply states at the end of the decision (para 51):
“The respondent has academic standards for admission because it believes past academic performance is the best indicator of future academic performance. The applicant challenged the respondent’s use of grades as a measure of his ability to succeed. The difficulty is that in an academic setting, the ability to succeed is measured by grades: there is no other measure to evaluate success. In this way, academic standards are different from other standards that may be assessed in a number of different ways. All students, including students with disabilities, must provide sufficient information to show that they have the ability to succeed.”
Seemingly, no evidence was adduced to bolster the conclusion that grades are the only way to evaluate academic success. Nor did there appear to be any analysis of this issue using the proper test from Meiorin.
This is not to say that grade cut-offs are not a bona fide academic requirement for admissions decisions; in some cases they may very well be. It is instead to say that academic institutions should be forced to justify their use and thus far, the HRTO has not always insisted that they do so in a rigorous manner.
It is in this context that the OHRC’s guidance on bona fide academic requirements is a welcome development. The OHRC specifically addresses this issue when it says:
“…education provider[s] cannot deny accommodations or otherwise avoid their obligations under the Code by citing fears about the dilution of academic integrity without first showing that they can meet the legal test… [for a bona fide requirement]” (p. 64)
Ultimately, the OHRC policy recommends educational institutions, especially those at the post-secondary level, to set out precisely what the bona fide requirements for a course or program are in order to “enhance transparency, consistency, fairness and so that students know what is expected of them.” (p. 66) This would have the added effect of helping to reduce the creation of post-hoc arbitrary academic standards. This would go a long way towards promoting meaningful access to education for students with disabilities.
If you or a student you represent, are in a situation where the school is claiming that they cannot accommodate for reasons of ‘academic integrity’ or that they cannot compromise an academic requirement, you can contact ARCH for a summary advice appointment or a lawyer-to-lawyer consultation to further discuss this matter.