Advocacy Toolkit – Your Right to not be Excluded from School in Ontario

Please note that the information in this Toolkit does not apply to all situations. A person’s accommodation needs may vary over time and at different points in the day. Always ask the person with the disability how to most appropriately accommodate them.

PDF and RTF versions of this toolkit are available at the end of this page.

Introduction

As a student in Ontario’s primary or secondary schools, you are entitled to a meaningful and appropriate education. However, numerous barriers still prevent many students with disabilities from getting a proper education. One of the major barriers is the fact that students with disabilities are often told not to come to school. This often happens even if a student is not formally suspended or expelled. This is called an “exclusion.”

Definition of Exclusion: An exclusion is any sort of removal of a student from the school or classroom that is not voluntary and is not a suspension or expulsion.

Exclusions can occur in several different ways:

• Through the use of a special provision in the Education Act (s. 265(1)(m)). This provision states that a principal has a “duty” to exclude students who in their opinion would have a bad effect on other students;
• By shortening the length of a student’s school day (s. 3(3) Regulation 298). ARCH often refers to this type of exclusion as a ‘partial exclusion’; and
• By simply requesting that a student stay home or that a parent consent to a “voluntary withdrawal” of the student from school.

It should be emphasized that a suspension is very different from an exclusion. Students who have been suspended have a number of additional rights which do not exist for students who are excluded. For instance, the Education Act states that a suspension cannot be longer than 20 days.

What can you do if you are in one of these situations? This Toolkit has legal information to support students to advocate for their right to attend school.

Know your Rights

Being excluded from the classroom can have a big impact on your learning. With this in mind, it is important to remember that you have the right, under the Education Act and the Human Rights Code (the ‘Code’), to attend school without discrimination. Being excluded from your school can violate this right.

This toolkit will discuss each type of exclusion and how they may infringe on your right to education. This advocacy toolkit will attempt to both inform you of your rights and to provide you with useful tools and tips to ensure that you are getting a meaningful education.

Exclusion Provision in the Education Act

The Education Act states that a principal has a duty to exclude a student when their presence, in the principal’s judgement, becomes “detrimental” to the “physical or mental wellbeing” of the students in the school. This provision gives a principal the power to exclude a student or any other person for many reasons. However, it is important to remember that there are limits on this power. It is best to use an example to illustrate what these limitations are.

Example: John, a student with a disability, is sensitive to excessive noises. When the classroom becomes really noisy, John finds it difficult to concentrate and becomes anxious. He just wants to escape the noise. However, his teacher forces him to stay in the classroom with the loud noise. One day he tries to leave the classroom because of the noise. His teacher stops him and in a panic John hits her arm. The teacher gets very mad at John and sends him to the principal’s office. The principal feels that John cannot control his behaviour and excludes him from school until they can figure out what to do about this.

What can John do in this situation? What does he need to know?

The first thing that John needs to know is that he has some rights under Ontario’s Human Rights Code. The Code protects people against discrimination because of their disability. It states that school boards must properly accommodate students with disabilities. Accommodation means that schools must work to remove barriers and ensure that students with disabilities can access their education.

In John’s case, accommodation might mean reducing the volume of unnecessary noises in his classroom. This would allow him to control his behaviour because he would not be so anxious and would not need to escape the noise. The noise is a barrier to his education because it disrupts his time in class and also led to his exclusion. As part of their obligation to accommodate John, the school should take steps to reduce the noise level in the classroom.

If you would like to know more about accommodation, click here: www.advocacyforinclusion.com/copy-of-video-01-introduction

The second thing that John needs to know is that he should not be punished or excluded for behaviour which happened because he was not accommodated. In many cases, principals will punish students with disabilities for behaviour related to their disability. This includes the situation described above – when John acted out because of the noise in the classroom. If a principal or school has not taken the proper steps to accommodate a student’s behaviour, despite a clear need to do so, they have not met their legal obligations and should not punish or exclude the student.

A principal should always ensure that a student has been properly accommodated before they punish or exclude them, unless doing so would cause “undue hardship” for the school. Undue hardship happens where accommodating a student would be very expensive or a risk to someone’s safety.

The third thing that is important to remember is that if a student like John has been excluded, for a disability-related reason, the Code says that the school has an obligation to do everything they can to get the student back to school as quickly as possible. In John’s case this would mean reducing the volume of the noise in the classroom and getting him back to school quickly. For other students, they may need different things to get back to school. These could include getting assessments done, putting in place strategies to manage disability-related behaviour or giving extra staff support to students with disabilities to help them manage at school. In all of these cases it is important that the school board both pay for these supports and put these things into place quickly.

The fourth thing is that it is very important for students like John to know that they can appeal the decision by the principal to exclude them. Students have the right to appeal these decisions to the Board of Trustees at their School Board. The Trustees can overturn the decision if they think it is wrong. One of the reasons that a Board of Trustees will say that a decision to exclude is wrong is if it was done to punish the student for something. The Ministry of Education has said that excluding a student should not be a form of discipline. Program Policy Memoranda No. 145 states that:

“Exclusion is not to be used as a form of discipline. If a principal does decide that it is necessary to exclude a student from the school, the principal is expected to notify the student’s parents of the exclusion as soon as possible in the circumstances, and to inform them of their right to appeal under clause 265(1)(m).”

There are specific steps that you need to take in order to appeal. If you want to appeal a decision like this, you should consider contacting ARCH or another lawyer to talk about how to appeal. In the meantime, here are some tips that you may want to think about.

Tip: In some cases, you (or your parents) may receive a letter formally telling you that you have been excluded and giving you the reasons for the exclusion. If you have not received a letter, it is important to ask the school to provide you with one.

Tip: Many schools require you to take specific steps in order to appeal an exclusion. You should ask the school for their policy on appealing an exclusion. A policy is a document that lays out all of the steps you need to take in order to start an appeal.

Tip: If you have been excluded don’t wait to talk to a lawyer. Call ARCH or another lawyer as soon as you can for some advice.

Partial Exclusions

Sometimes students with disabilities are not excluded for the whole day. If you only go to school for part of the day, this might apply to you.

Certain provisions under the Education Act allow a school board to shorten the school day of a student with a disability to less than the normal 5 hours of instruction. In some cases, this might be for the benefit of a student with a disability. For example, if they get tired very easily and cannot make it through a whole school day, then it might be okay to shorten their school day.

However, a school board cannot shorten a student’s school day for their own convenience. For instance, a school board cannot shorten a student’s day because they claim they do not have enough staff. It is the school board’s responsibility to provide enough staff and they need to live up to this responsibility. Shortening a student’s day for this reason would likely violate a student’s rights under the Code.

Tip: If your school is suggesting a shortened school day, and you disagree with this, ask them to give you their reasons in writing. Once you receive this letter you should send your objections to them in writing. Before you do this you may want to speak with a lawyer at ARCH or another lawyer.

Informal Exclusions

Sometimes schools will simply ask your parents to keep you home. These are called “informal exclusions” or “voluntary withdrawals”. It is important to remember that you have a legal right to be at school. This means that outside of what was discussed above, schools have no legal way to prevent you from attending. This also means that it is up to you and your parent to decide whether you want to voluntarily withdraw or not. There may be some cases where you both think it is okay to withdraw. However, if this is not the case, it is important to tell the school that you want to be at school and to remind them that they are legally obligated to provide you with an education.

Here are some additional tips that can help with your advocacy efforts:

• Keep the lines of communication open.
• Keep notes of your conversations with teachers and school officials. Include the date and who you spoke to or who attended the meeting.
• Keep copies of school records and letters sent to and from the school.
• Share information about your disability-related needs.
• Find out if the school board has a policy on exclusions. Ask for a copy of the policy.
• If you think you have been discriminated against because of your disability, you may contact ARCH Disability Law Centre for free, confidential legal advice and information.

Frequently Asked Questions

Sample Letters

These letters provide an illustration of what a parent might send when they are faced with common situations. They are for illustration purposes only and are tailored to a particular set of facts.

* DISCLAIMER: The information provided in these materials is not intended to be legal advice. Consult a lawyer or legal worker if you need legal advice on a specific matter. This information is current as of January 2019.