Paper – A Conceptual and Legal Framework for Inclusive Education – Jody R Carr (2017)

This paper is authored by former Education Minister of New Brunswick, Jody Carr, on behalf of ARCH Disability Law Centre, to explore and articulate a framework for reform for the delivery of public education services across Canada that is both accessible and inclusive of all children.

Introduction

There has been significant evolution in Canadian jurisprudence, policy, and society at large in regard to education service delivery since the Supreme Court of Canada’s (SCC) 1996 decision in Eaton v. Brant County Board of Education ruled a student with disabilities could be removed from the regular classroom despite the wishes of her parents. Diversity and inclusion of all students in regular classrooms has become the general approach in many jurisdictions. Policy directives, training in inclusive practices including Universal Design for Learning and differentiated instruction, research and understanding on the benefits of inclusion and the harms of isolation; along with the United Nations Convention on the Rights of Persons with Disabilities (CRPD) ‐ article 24, the SCC’s decision in Moore v. British Columbia (Education) and recent Canadian Charter of Rights and Freedoms and statutory human rights jurisprudence have pointed to a compelling need to review provincial education legislation and related regulations, policies and practices and align them with these rulings and human rights instruments.

Despite the advancements in inclusion domestically and internationally, far too many children continue to be isolated from their peers in segregated schools and segregated classrooms across Canada; “more than 40% of students with intellectual disabilities remain in segregated educational environments”. Children are not provided equal access to dignity and services of quality regular classroom instruction or community schools. Classroom teachers are not provided the support, resources and clarity of policies and practices to support fully diverse learning, which often leads to segregation within mainstream schools and classrooms as well.

This paper reviews the legal obligations, through international, domestic and jurisprudential sources, in the context of identifying key components of a fully inclusive legislative structure and collaborative implementation requirements. Key Supreme Court of Canada decisions, and lower court and administrative tribunal decisions will be considered, as well as the United Nations Convention on the Rights of Persons with Disabilities. The paper will also consider two specific provincial jurisdictions and outline considerations for restructuring legislative frameworks to facilitate the delivery of fully inclusive public education services. Governments and school districts in Canada are compelled to make further advancement so that every child and society as a whole can benefit from the richness in diversity that fully includes students with disabilities in regular education.

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