Submission of 
ARCH Disability Law Centre 
to the 
K-12 Education Standards Development Committee regarding the 2021 Initial Recommendations Report

November 1, 2021

55 University Avenue, 15th Floor, Toronto, ON, M5J 2H7
Phone: 416-482-8255 or 1-866-482-2724
TTY: 416-482-1254 or 1-866-482-2728
www.archdisabilitylaw.ca
 @ARCHDisabilityLawCentre
@ARCHDisability

Contents

I.	Introduction
II.	About ARCH
III.	Guiding Principles and Legislative Context
Recommendations
IV.	General Comments
Recommendations
V.	Inclusion
Recommendations
VI.	Graduation Requirements
Recommendation
VII.	IEPs and the Duty to Accommodate
Recommendations
VIII.	The Repeal of the IPRC Framework
Recommendations
IX.	Exclusions
Recommendations
X.	Alternative Dispute Resolution
Recommendations
XI.	Conclusion
Appendix A
Recommendations

I.	Introduction
ARCH Disability Law Centre submits the following brief in response to the 2021 Initial Recommendations Report (Report) of the K-12 Education Standards Development Committee (Committee). ARCH is grateful for this opportunity to make submissions to the Committee and wishes to express appreciation to all Committee members for the comprehensive work that has been conducted with the aim of creating a barrier-free and inclusive education system for all students in Ontario. As a legal service provider on the front lines representing students with disabilities across this Province, we can attest to the ongoing pervasive and systemic ableist barriers that are entrenched in Ontario’s education system, which underscores the importance and urgency of the Committee’s Initial Recommendations and the need for an education standard that is meaningful, prescriptive and impactful. ARCH supports the Committee’s long term objective to establish a “fully accessible, equitable, inclusive and learner-centred” education system by 2025. The submissions and recommendations herein are aimed to further that objective.  

II.	About ARCH
ARCH Disability Law Centre is a specialty legal clinic, primarily funded by Legal Aid Ontario, practicing exclusively in disability rights law. For over 40 years, ARCH is dedicated to advancing and defending the equality rights, entitlements, fundamental freedoms, and the inclusion of persons with disabilities. ARCH provides a range of free legal services directly to persons with disabilities across Ontario, including the provision of legal information and summary legal advice, and the representation of persons with disabilities and disability rights organizations in precedent setting cases at all levels of courts and tribunals, including the Supreme Court of Canada. ARCH also conducts an extensive law reform practice, working on a variety of initiatives related to advancing the rights of persons with disabilities. ARCH also offers accessible rights education to disability communities and engages in capacity building and community development initiatives.   
Education law and human rights law continue to be longstanding areas of practice and focus for ARCH, and our priorities include the advancement of human rights in education and the realization of inclusive education for all students in Ontario as articulated in the Convention on the Rights of Persons with Disabilities (CRPD). ARCH continues its extensive work representing clients with disabilities in education related matters by providing summary advice and direct legal representation. ARCH also is engaged in numerous law reform projects and in the ongoing delivery of rights education that advances inclusive and non-discriminatory education services to persons with disabilities. ARCH strongly supported the calls from our communities for an education standard pursuant to the Accessibility for Ontarians with Disabilities Act (AODA). In addition, ARCH provided fulsome submissions to standard development committees in the development and review of all the accessibility standards pursuant to the AODA, and participated in the three Independent reviews of the AODA. ARCH conducts its work directly with our communities and it is the experiences of this work that informs the content of this submission.
More information about our work is available on our website: www.archdisabilitylaw.ca

III.	  Guiding Principles and Legislative Context 
These submissions centre on the following premise, that an education system which prioritizes and creates inclusivity for all students, regardless of varying abilities, will only then be best positioned to ensure that the goals of the Education Act are met – namely that students become highly skilled, knowledgeable, caring, and contributing citizens. In our experience, it remains a constant that leadership at all levels of school boards and schools continue to prioritize and inform their understanding of rights and obligations predominantly through the Education Act, while failing to appropriately understand the application of the Canadian Charter of Rights and Freedoms, the primacy of Ontario’s Human Rights Code (Code) over the Education Act, the AODA, and the guidance offered by the Convention on the Rights of Persons with Disabilities (CRPD). Often, this is at great cost to students with disabilities and their families. 
ARCH supports the guiding principles statements made in the Report which includes important considerations and lenses to be applied to the development and ultimately the implementation of the accessibility standard. However, we urge the Committee to make a clear distinction between the existing legal obligations that must inform this regulation, and other guiding principles. While the Code, Charter, AODA, and CRPD are identified as guiding principles along with others, they also establish critical frameworks that any new standard and regulation must align and comply with. 
The landmark decision in Moore v. British Columbia articulated the legal standard that educational service providers must meet in order to fulfill their human rights obligations with respect to educating students with disabilities. The Court stated that students must be provided with “meaningful access” to education generally and not just “special education” services. That is, school boards must ensure that they provide effective individualized supports to students with disabilities to ensure that they can fully access the general benefits of the education system. 
This guidance from the Supreme Court sets a high standard for accessible education.  Any education standard must reflect the stringent requirements set by the Code and the developed human rights case law in Ontario and as outlined in the Moore decision. 
Another notable development related to education occurring after the proclamation of the AODA was Canada’s ratification of the CRPD.  The development of an education standard offers the opportunity to advance the CRPD in relation to its numerous articles, with a focus on article 24, which articulates the requirement of an inclusive education service delivery model, and article 9 which focuses on accessibility and barrier removal. In addition, it is germane to point out that one of the principles which animates article 24 of the CRPD is Universal Design for Learning. General Comment No. 4 (2016) on the right to inclusive education further elaborates on article 24 and lays out a rights based framework for achieving an inclusionary education system. 
Recommendations
ARCH recommends that the final report of the Committee for the development of an education standard include the following recommendations:
1.	A clear articulation of the primacy of the Human Rights Code over the Education Act and AODA. 

2.	A clear statement acknowledging the ratification of the CRPD as a guiding framework.

3.	A clear articulation of the objective to achieve a fully inclusive education system in Ontario as a fundamental and primary goal. 

IV.	General Comments 
We wish to again commend the Committee for this comprehensive Report that identifies and attempts to address many of the key and pressing systemic issues that students with disabilities face. Moreover, ARCH is grateful to the Committee for offering in depth and prescriptive recommendations on many critical issues that our clients and students with disabilities across Ontario face. In particular, while we do not make any recommendations regarding Section Seven: Physical and architectural barriers, this part offers a clear blueprint to creating accessible spaces and we recommend that this section remain in the Final Report in its entirety.  
Given the breadth of the initial recommendations, we suggest that there may be opportunities to review and streamline some of the recommendations that are closely linked and duplicative in some respects, to ensure that key recommendations falling squarely within the AODA’s mandate do not unintentionally become diluted.  
Recommendations
4.	Review and consolidate repeat recommendations, clarify language to reflect the primacy of human rights law, and remove all reference to terminology that can reinforce segregated approaches for Final Report.
  
5.	Recommendation 4.1: the Ministry of Education create in consultation with persons with disabilities sample or model curriculum and teaching resources            

(such as classroom videos) that a school board can opt to use to deliver this training curriculum. 

V.	Inclusion 
Parents routinely call ARCH to report that their child is being pressured by a school board into a segregated setting. Often, the rationale is that the segregated setting has greater resources or is better equipped to accommodate some aspects of the student’s disability, and parents are informed that similarly appropriate accommodations will not be provided in a regular class setting. In ARCH’s experience, section 17 of the Identification and Placement of Exceptional Pupils Regulation (IPRC Regulation) has not had the desired effect of ensuring that all students have a legitimate and supported opportunity to be in regular classes and in their neighborhood school. This situation reflects the systemic barriers students with disabilities face when attempting to gain access to inclusive classrooms. 
In a report titled, If Inclusion Means Everyone, Why not Me?, ARCH and its partners reported on research conducted in Ontario which included results of a survey and interviews. Of particular note, 53% of parents reported that their child was not receiving proper academic accommodations; 67% of parents reported that their child was excluded from the appropriate curriculum based on their level of learning; and 32% of parents reported that their child did not have access to the appropriate support staff when it was required. It is therefore unsurprising that a staggering 68% of parents reported that schools were meeting half or less than half of their child’s academic needs. 
Children with disabilities are often excluded from the benefits of the education system as a result of a poor accommodation process, a lack of supports, or because of explicit exclusion. It follows that by tackling these issues we will be taking great strides towards inclusion. However, this by itself is not sufficient. The only way to achieve a fully inclusionary education system is by explicitly rejecting educational philosophies which prize segregation over inclusion. 
It is important to note that racialized students and those with a lower socio-economic status experience much higher rates of segregation than the average population. A report by the Toronto District School Board demonstrated that “[s]tudents who self‐identified as Black were over‐represented in congregated Special Education…[and] notably under‐represented in Gifted, IB, AP, Elite Athlete, and slightly under‐represented in French Immersion” and are the “largest racial category represented in Special Education schools (30.2%) where they are over doubly represented.”
Any accessibility standard must meaningfully address the deeper systemic impacts that ongoing segregated approaches have on persons with disabilities. The Committee has an opportunity to offer strong final recommendations to the Ministry of Education that no education standard can advance the objectives set out in the AODA with existing deep rooted ableist and segregated regulatory frameworks. 
A rights based approach to education must be inherently inclusive, and traditional “special” education and the jargon and approaches that come with it should be jettisoned. Terms such as “special education” and “exceptionalities” must be replaced with more inclusive and rights based language. An accessibility standard can provide the direction for Ontario to begin moving away from this jargon and the regulatory frameworks that it is entrenched in. ARCH therefore recommends that the Committee include stronger recommendations to the Ministry of Education as it relates to advancing the creation of a truly inclusive education service delivery model, which can include the removal of the IPRC process, and stronger accountability measures as they relate to inclusion. 
Recommendations
6.	The Ministry of Education shall mandate that no school boards can deny outright disability related accommodations in regular class placements that would otherwise be available, without an individualized investigation within the obligations set out in Ontario’s Human Rights Code.
  
7.	The Ministry of Education shall mandate reporting requirements of all school boards pursuant to section 17 of O. Reg. 181/98, requiring confirmation when a segregated placement is offered, that a regular class placement was genuinely and meaningfully explored with appropriate supports and services, and whether this was aligned with parental preference. 

8.	The Ministry of Education shall initiate a comprehensive review of the K-12 education system in Ontario to identify the elements that promote ableism, segregation and systemic barriers, and to identify and implement a new inclusive education service delivery model.  
 
VI.	Graduation Requirements
ARCH expresses significant concern with aspects of Recommendations 27 and 28 insofar that such approaches will further promote separate tracks for certificate and diploma attainment, and continue to have, while unintended, detrimental consequences to the quality of education for students with disabilities. Furthermore, it will continue to move us further away from the stated goal of creating an inclusionary education model. 
Students with disabilities are often streamed into programs, for which they do not receive an OSSD diploma, instead often receiving other certificates. This essentially means that one of the chief benefits of a public education is denied to students with disabilities. The rationale often invoked in favour of this approach is that school systems must signal to society that a student has achieved a particular academic standard and that giving this diploma to students with disabilities who have not met this standard would devalue the diploma itself. 
This academic integrity argument is flawed on numerous levels. This approach fails to address the underlying issues behind the purported need. Firstly, students with disabilities often cannot meet a particular academic standard due to the failures to meaningfully support, include, and accommodate them. Students with disabilities are often not given full opportunities to achieve their potential. Secondly, it is also notable that having received a diploma does not actually guarantee that a student has met any particular standard. Indeed, many students graduate from high school with varying levels of knowledge and achievement in different realms. There is essentially a continuum of achievement, yet all mainstream students still get the same diploma. 
Advancing the goals set out in the AODA requires that any new standard not create or promote additional disability related barriers and exclusionary processes. Other more inclusive models exist. Of note, section 6.8.1 of New Brunswick’s Policy 322 on Inclusive Education, abolished this practice and instituted a system in which students are given one diploma for completion of their individualized program.” 
Furthermore, the United Nations Committee on the Rights of Persons with Disabilities states in its Comment No. 4 that any support measures provided must be compliant with the goal of full inclusion. Accordingly, they must be designed to strengthen the opportunity for students with disabilities to participate in the classroom alongside other students, rather than marginalize or isolate them. Adopting policies that may be intended to support people with disabilities are still discriminatory if such measures lead to the "maintenance of unequal or separate standards for different groups”.  
Recommendation
9.	A single version of the Ontario Secondary School Diploma be granted to students who successfully complete a program of studies prescribed by the Minister, and in accordance with that student’s individual education plan.
VII.	IEPs and the Duty to Accommodate 
We appreciate that the Committee identifies and acknowledges the ongoing misinterpretation of the term “accommodation” as a barrier, and offers corresponding recommendations. While “accommodation” is often used in a particular manner within the education context, it is ultimately a reflection of the failure to accurately understand human rights obligations on education service providers. We recommend further clarification by amending Recommendation 40. Rather than framing the recommendation as a broadening or aligning of the definition of accommodation within the education context, it must be clearly stated that the duty to accommodate to the point of undue hardship is the legal test that must be met. This is the only definition that is relevant and applicable. Rather than acknowledge two parallel definitions and work towards aligning them, the requirement here is that any disability related supports, services and programming must be provided in accordance with human rights law. The primacy of the Code supersedes the Education Act. 
ARCH strongly supports Initial Recommendations 40 to 48. ARCH’s clients are often advised that they require an IPRC in order to develop an IEP, which is discriminatory. Our clients are also denied accommodations in circumstances where an IEP is already developed, and in circumstances where an IEP is in the process of being developed, thus denying our clients interim accommodations during the IEP development process or denying legitimate accommodation requests where an IEP is not appropriate for the requested accommodations.  ARCH submits the following recommendations to replace recommendation 40.2 and 43 respectively, in addition to other recommendations. 
Recommendations
10.	Recommendation 40.2: Ensure the definition of accommodations or “accommodate” is used in education service delivery in an accurate and consistent manner, as understood within the meaning of Ontario’s Human Rights Code so that school boards shall ensure that all students receive needed services, supports, accommodations or other educational opportunities including but not limited to education programs and services.

11.	 Recommendation 43: The Ministry of Education shall mandate that any students with disabilities have the right to an Individual Education Plan independent of an Identification Placement and Review Committee or lack thereof, to ensure that school boards provide students with disabilities to obtain the accommodations or programs and services needed to support their success at school. 

12.	Recommendation 43.1: The Ministry of Education shall mandate that any students with disabilities have the right to disability related accommodations pursuant to Ontario’s Human Rights Code, which must be provided as appropriate regardless of the existence of an Individual Education Plan or an Identification Placement and Review Committee decision.

13.	Recommendation 120. j: a statement that all Individual Education Plans will continue to be implemented throughout the emergency.

14.	Recommendation 120. k: a requirement to create a process on an expedited basis to review existing IEP’s, and recommend amendments and interim accommodations as appropriate, within the context of the emergency. 

15.	ARCH recommends the removal of Recommendation 68.2.b. Recommendation 68.2.a clearly articulates the need to work through the duty to accommodate process without questioning the student’s need for the accommodation based on the school board’s own beliefs of what students require.  

16.	The Ministry of Education shall mandate that school boards must not rely on online learning options as a response to complex accommodation needs required for in-person class placements.  

VIII.	The Repeal of the IPRC Framework
Much has been written about the initial aims of the IPRC process and its now outdated purpose, its incongruence with a rights based inclusive approach, and its ineffective review and appeal mechanisms. Among the many barriers to inclusion that the IPRC model represents, and the practice of identification and categorization of students, the IPRC process is often used as a process to delay accommodations and services. In an article co-written by ARCH titled, A Relic of the Past: Identification, Placement and Review Committees in Ontario’s Education System, concrete reform options are set out in response to the need to remove an ineffective and detrimental framework.  
ARCH commends the Committee’s Recommendations 54 and 55, and the short 6 month timeframe attached to it. ARCH recommends stronger prescriptive language to direct the Ministry to adopt an appropriate model in its place. 
Recommendations
17.	  Recommendation 54: The Ministry of Education shall replace the IPRC process with an approach that is current and reflective of a rights based inclusive framework. 

18.	  Recommendation 55: The review panel should include students with disabilities, persons with disabilities, families, school boards, human rights experts and disability rights organizations, and Ministry of Education representatives.

IX.	Exclusions 
ARCH argues that the legislative intent of section 265 1(m) of the Education Act was never intended to be used to exclude students with disabilities. Nonetheless, students with disabilities continue to be removed from school with the use of, or threat of, section 265 1(m). 
In the aforementioned 2018 survey conducted by ARCH and its partners, approximately 45% of respondents stated that at one time or another they had to keep their child home from school as a result of a lack of accommodations or other services. More than half of parents also reported that their child’s day had been shortened, many of them citing reasons that were not related to the student’s needs (e.g. staffing shortages, transportation scheduling issues). These students lost on average 3.86 hours out of a 6 hour school day.
While exclusion takes on many different forms, in our experience section 265 1(m) of the Education Act is the most extreme form of segregation and utterly irreconcilable with any path aimed at achieving inclusion. This practice of excluding or threatening to exclude is strictly on the basis of disability, and cannot be accepted in any form if the true goal is to achieve inclusion for all students. 
While the legislature deemed fit to amend s. 3(1) of Regulation 474/00 to remove ‘pupils of the school’ from the purview of the regulation, which was being incorrectly interpreted to exclude students with disabilities, section 265 1(m) has now become the vehicle by which this exclusion occurs. Moreover, article 24 2(a) of the CRPD, "prohibits the exclusion of persons with disabilities from the general education system, including any legislative or regulatory provisions that place limits on the inclusion of persons with disabilities on the basis of their impairment or its ‘degree’". 
The issue of equal access to school is a long-standing one in the disability community. Children with disabilities have long been excluded from our educational institutions and even now this remains a pervasive problem. As noted above, Article 24 explicitly bans exclusion, yet this remains a significant problem in Ontario.  In the aforementioned 2018 reported survey, 66% of parents felt that their children were excluded from the curriculum that was appropriate for them, and 61% of parents reported that their children were excluded from extra-curricular activities.  62.5% of parents surveyed indicated that their children were receiving alternatives to education as opposed to modified or accommodated education, being denied a fulsome education.
The above report clearly indicate that the exclusion of children from school remains a significant issue in our public school system. This issue is often compounded for racialized students and/or students who experience language and communication barriers. Anecdotally, based on our calls and cases, these students are often excluded both more often and for a longer duration. 
ARCH commends the Committee for its comprehensive set of Recommendations on this critical issue. 
Recommendations
19.	The Ministry of Education shall include in regulation a provision that strictly prohibits the use of section 265 (1)(m) to be applied for purposes of excluding students on the basis of their disability and/or the lack of availability of disability related needs and supports. 

20.	The Ministry of Education shall modify the regulatory provision that allows a school board to shorten a student’s school day (O. Reg. 298 s. 3(3)) to require that this only be used when it is in the best interest of the student. It should also require that the decision to shorten a student’s day be reassessed at a minimum of every two months.

X.	Alternative Dispute Resolution 
ARCH supports the need for an alternate dispute resolution to be created. ARCH recommends that the Final Report offer a new section devoted to this, consolidating recommendations 49.2 and 49.3 for the Ministry, and recommendations 49.12 to 49.14 aimed at school boards, to develop a clear process.  
The standard outlines a number of dispute resolution mechanisms that should be introduced in recommendation 49. ARCH recommends that recommendation 49 be more specific as to what dispute resolution options will be available, who will be able to access them, and what persons need to access them. For example, 49.14 outlines that in cases of dispute, the Ministry shall appoint a mediator. It is unclear how often the Ministry would provide a mediator, under what circumstances, and what one would need to demonstrate dispute.
In addition to the recommendations outlined in s. 49, a recommendation should be  added to include advocacy supports to assist parents/guardians and students throughout the process. 
Community consultation on the details of the dispute resolution process is needed.  
Recommendations
21.	The Guidelines should state that school boards and other education providers have an obligation to provide an impartial and expeditious dispute resolution forum for accommodations above and beyond the fora mandated by the Education Act.

22.	The Ministry of Education shall conduct a community consultation in order to inform its development of the alternate dispute resolution process and accompanying advocacy supports. 

XI.	Conclusion
ARCH believes that the Government of Ontario has a significant opportunity to radically improve the accessibility and inclusivity of the Ontario school system. The goal of any education standard must be to introduce a robust and prescriptive standard that removes ableist barriers and promotes the full inclusion of all students with disabilities. Human rights law, international obligations under the CRPD, and best practices for accessible learning, offer important underpinnings to achieving this goal.  

Appendix A
Recommendations 
1.	A clear articulation of the primacy of the Human Rights Code over the Education Act and AODA. 

2.	A clear statement acknowledging the ratification of the CRPD as a guiding framework.

3.	A clear articulation of the objective to achieve a fully inclusive education system in Ontario as a fundamental and primary goal. 

4.	Review and consolidate repeat recommendations, clarify language to reflect the primacy of human rights law, and remove all reference to terminology that can reinforce segregated approaches for Final Report.
  
5.	Recommendation 4.1: the Ministry of Education create in consultation with persons with disabilities sample or model curriculum and teaching resources (such as, classroom videos) that a school board can opt to use to deliver this curriculum. 

6.	The Ministry of Education shall mandate that no school boards can deny outright disability related accommodations in regular class placements that would otherwise be available, without an individualized investigation within the obligations set out in Ontario’s Human Rights Code.
  
7.	The Ministry of Education shall mandate reporting requirements of all school boards pursuant to section 17 of O. Reg. 181/98, requiring confirmation when a segregated placement is offered, that a regular class placement was genuinely and meaningfully explored with appropriate supports and services, and whether this was aligned with parental preference. 

8.	The Ministry of Education shall initiate a comprehensive review of the K-12 education system in Ontario to identify the elements that promote ableism, segregation and systemic barriers, and to identify and implement a new inclusive education service delivery model.  

9.	A single version of the Ontario Secondary School Diploma be granted to students who successfully complete a program of studies prescribed by the Minister, and in accordance with that student’s individual education plan.

10.	Recommendation 40.2: Ensure the definition of accommodations or “accommodate” is used in education service delivery in an accurate and consistent manner, as understood within the meaning of Ontario’s Human Rights Code so that school boards shall ensure that all students receive needed services, supports, accommodations or other educational opportunities including but not limited to education programs and services.

11.	Recommendation 43: The Ministry of Education shall mandate that any students with disabilities have the right to an Individual Education Plan independent of an Identification Placement and Review Committee or lack thereof, to ensure that school boards provide students with disabilities to obtain the accommodations or programs and services needed to support their success at school. 

12.	Recommendation 43.1: The Ministry of Education shall mandate that any students with disabilities have the right to disability related accommodations pursuant to Ontario’s Human Rights Code, which must be provided as appropriate regardless of the existence of an Individual Education Plan or an Identification Placement and Review Committee decision.

13.	Recommendation 120. j: a statement that all Individual Education Plans will continue to be implemented.

14.	Recommendation 120. k: a requirement to create a process on an expedited basis to review existing IEP’s, and recommend amendments and interim accommodations as appropriate, within the context of the emergency. 

15.	ARCH recommends the removal of Recommendation 68.2.b. Recommendation 68.2.a clearly articulates the need to work through the duty to accommodate process without questioning the student’s need for the accommodation based on the school board’s own beliefs of what they require.  

16.	The Ministry of Education shall mandate that school boards must not rely on online learning options as a response to complex accommodation needs required for in-person class placements. 

17.	Recommendation 54: The Ministry of Education shall replace the IPRC process with an approach that is current and reflective of a rights based inclusive framework. 

18.	Recommendation 55: The review panel should include students with disabilities, persons with disabilities, families, school board, human rights experts and disability rights organizations, and Ministry of Education representatives.

19.	The Ministry of Education shall include in regulation a provision that strictly prohibits the use of section 265 (1)(m) to be applied for purposes of excluding students on the basis of their disability and/or the lack of availability of disability related needs and supports. 

20.	The Ministry of Education shall modify the regulatory provision that allows a school board to shorten a student’s school day (O. Reg. 298 s. 3(3)) to require that this only be used when it is in the best interest of the student. It should also require that the decision to shorten a student’s day be reassessed at a minimum of every two months.

21.	The Guidelines should state that school boards and other education providers have an obligation to provide an impartial and expeditious dispute resolution forum for accommodations above and beyond the fora mandated by the Education Act.

22.	The Ministry of Education shall conduct a community consultation in order to inform its development of the alternate dispute resolution process and accompanying advocacy supports.