Accessibility for Ontarians with Disabilities Act Alliance Update
United for a Barrier-Free Society for All People with Disabilities
The Ford Government Continues Its Freeze on the Work to Remove Barriers in Ontario’s Education System Against Hundreds of Thousands of Students With Disabilities, While the Media Shines A Much-Needed Spotlight on One Troubling Barrier – The Sweeping Power of School Principals to Exclude a Student from School
January 24, 2019
There have been 216 days since work on developing a new Education Accessibility Standard under the Accessibility for Ontarians with Disabilities Act was frozen in the wake of the election of Ontario’s new Government. The work of the two Education Standards Development Committees, appointed to recommend reforms in Ontario’s school system (the K-12 Education Standards Development Committee) and in Ontario’s colleges and universities (the Post-Secondary Education Standards Development Committee), still remains on hold. School boards, colleges and universities continue to leave disability barriers in place. They spend public money to create new barriers, without an AODA Education Accessibility Standard in place to stop that from continuing.
In the meantime, It is great that the Globe and Mail recently focused attention on one of the troubling and recurring barriers in Ontario’s school system that we have wanted to raise at the K-12 Education Standards Development Committee – one which the Ontario Human Rights Commission has identified as a human rights issue. It is the sweeping and arbitrary power of any school principal to exclude a student from school. The outdated section 265(1)(m) of Ontario’s Education Act provides:
“265. (1) It is the duty of a principal of a school, in addition to the principal’s duties as a teacher,…
… (m) subject to an appeal to the board, to refuse to admit to the school or classroom a person whose presence in the school or classroom would in the principal’s judgment be detrimental to the physical or mental well-being of the pupils; …”
We have been concerned that this power can be and is misused, especially to keep some students with special education needs away from school. Below we set forth a powerful article in the January 9, 2019 edition of the Globe and Mail focusing on this issue. An earlier January 5, 2019 Globe and Mail article also addresses this issue.
This unfair power is sometimes called the power to exclude a student from school and at other times is called the power to refuse to admit a student to school. It needs to be substantially reined in.
The status quo is unacceptable. Principals have a sweeping discretion to exclude students from school, without any real accountability. Students and their families need not be given proper notice, reasons or due process. Refusals to admit can go on for days, weeks or months. A school board need never track how often students are excluded from school, or for how long, or for what reason.
Last September, the Ontario Human Rights Commission released a new policy on accessible education for students with disabilities. Its recommendations to the Ontario Government included, among other things:
“9. Identify and end the practice of exclusion wherein principals ask parents to keep primary and secondary students with disabilities home from school for part or all of the school day (and the role that an improper use of section 265(1)(m) of the Education Act may be playing in this practice).”
There is a much better way to deal with this issue. The Special Education Advisory Committee (SEAC) of the Toronto District School Board passed a detailed motion over one year ago, in January 2018. It called for TDSB to adopt a policy that will ensure that this power is not abused or misused. It includes great ideas on how to deal with this issue.
We support that TDSB SEAC recommendation, which we set out below. AODA Alliance Chair David Lepofsky led the development of that recommendation while he served as chair of TDSB’s SEAC. All are still awaiting a new TDSB policy or procedure on refusals to admit a student to school. Earlier this month, TDSB staff told the TDSB SEAC that a draft policy would be shared with them shortly. We do not yet know how much, if any, of the SEAC recommendation will be adopted.
We offer two important observations on the January 9, 2019 Globe and Mail article that is set out below. First, the article, which is otherwise very commendable, incorrectly confuses the issue of exclusions from school or refusals to admit a student to school, on the one hand, with issues surrounding inclusion of students with disabilities in a regular classroom on the other. This can be a distraction from the problems with the use of the power to exclude a student from school.
When a principal refuses to admit a student to school, that means that the student is entirely shut out from school, pure and simple. They are excluded from any and all classrooms, be it inclusion in the regular classroom or taking part in a separate or special education class. Any discussion over whether a student should be placed in the regular classroom (inclusion or integration) or in a special education classroom does not even arise when the principal forbids that student from even coming to school at all. It is wrong to confuse the issue of exclusions from school with the issue of when students with special education needs should be included in the regular classroom.
Second, the Globe article focuses in part on situations where a principal excludes a student from school due to violence. Yet the concern has been raised that principals don’t only refuse students from school due to violence.
When will the Ford Government let us know what it is going to do with the Education Standards Development Committees? As we announced in the January 20, 2019 AODA Alliance Update, the Government now says it is awaiting the report of the David Onley AODA Independent Review before it decides what to do with these Standards Development Committees. The same goes for the Health Care Standards Development Committee, whose work has also been frozen since the June 2018 Ontario election. CBC asked the Ford Government about this freeze on the work of Standards Development Committees in August and November 2018. Back then, the Ford Government did not say it was awaiting David Onley’s report. Had it done so, we would have pressed Mr. Onley to immediately issue an interim report addressing the need to lift that freeze.
We urge one and all to send David Onley a short email as soon as possible. Please tell him if you support the AODA Alliance’s January 15, 2019 brief on how to strengthen the AODA’s implementation and enforcement, including our call for the Ford Government to immediately lift its freeze on the Education and Health Care Standards Development Committees . You can email David Onley at firstname.lastname@example.org
Globe and Mail, January 7, 2019
Autism advocates push Ontario to ban school exclusions
By CAROLINE ALPHONSO
Autism advocates in Ontario are calling on the province to remove a principal’s power to exclude students from school for an indefinite period, saying it is being misused as a disciplinary measure that disproportionately targets children with special needs.
A Globe and Mail analysis found that families with children who have intellectual and developmental disabilities are increasingly being asked to pick up kids early, start the school day later or simply keep them home for days.
Most school districts don’t formally track these exclusions or shortened days. Informally, parent and advocacy groups have documented the problem and have seen a rise in the incidence of these events.
The Ontario Autism Coalition (OAC) wrote in a recent letter to Education Minister Lisa Thompson that principals are using what it deemed an “outdated” provision in the Education Act to exclude children from school. The group said it violates the rights of children to an inclusive education and has requested a meeting with the minister.
On Saturday, The Globe highlighted the story of Grayson Kahn, a seven-year-old boy diagnosed with autism who was expelled in November from his school in Guelph, Ont., after an incident in which he struck an educational assistant, leaving her with bruises, scrapes and a concussion. Expulsions such as Grayson’s are rare and involve a report by the principal and a hearing by a committee of the school board.
Advocates for students with disabilities say exclusions are much more common and are generally informal: Parents are often given verbal notice; it is usually done at a principal’s discretion; and it can last for months.
Laura Kirby-McIntosh, president of the OAC, said in an interview on Sunday that her parentrun group understands that principals are struggling to support children with very complex needs, but refusing to admit them to school is problematic. She said she’s seen one child being excluded from school for a year. Her own son was excluded for six months.
“We recognize as an organization that our kids are challenging to educate. The solution to that is complex. But the solution that’s being used now is we’ll just throw the kids out,” she said.
“Our kids are not disposable.
They’re not easy to educate. And for some of them, it may be that full inclusion is not the solution.
But neither is full exclusion.”
A spokeswoman for Ms. Thompson did not address the question of how the minister plans to address the situation.
In an e-mail statement, Kayla Iafelice said that exclusions are not to be used as a form of discipline. She added: “Our government’s top priority will always be to ensure that every student in Ontario has access to a meaningful education in safe and supportive school environments.”
Including special-needs students with behavioural issues in regular classrooms has become a matter of debate in many parts of the country, and some educators wonder if it’s gone too far without a rethinking of how children with diverse needs are taught.
Teachers report an increase in violence in schools, from threats to physical attacks, that they say makes teaching more difficult.
Glen Hansman, president of the British Columbia Teachers’ Federation, said there has been some good work over the past few years to recognize and address the issue of violence in classrooms. But “we still have a long way to go because … the supports in the classrooms aren’t necessarily as they should be to make sure that people are safe,” he said.
People for Education, an Ontario advocacy group, noted an increase in the number of elementary and secondary school principals who report recommending a special-education student stay home for at least part of a day. The organization found 58 per cent of elementary school heads and 48 per cent of high school principals made the request, up from 48 per cent and 40 per cent, respectively, in 2014.
Similarly, a survey of parents of children with special needs released in November, 2017, by the BC Confederation of Parent Advisory Councils found that children with special needs were missing anywhere from half an hour to three hours of school a day, or being told to stay home because of staff shortages. A number of children, the survey found, were sent home because of behavioural incidents at school and these exclusions, which were undocumented, would continue for days or weeks.
The North Vancouver and Greater Victoria school districts passed motions this fall to record how many children with special needs are being asked to stay home, or are sent home early or dropped off late and being excluded from field trips.
“It is useful, for the school district and for parents, to have formally tracked information about modified instructional schedules. This can help to provide the best possible educational programs for all students,” said Deneka Michaud, a spokeswoman for the North Vancouver School District.
Toronto District School Board Special Education Advisory Committee (SEAC)
Motion #6 Need for TDSB to Establish A Policy on “Refusals to Admit”
At its February 2017 meeting, SEAC received a presentation by the ARCH Disability Law Centre. It raised concerns that school boards, including TDSB, at times inappropriately use “refusals to admit” students to school. This issue can significantly affect students with special education needs and all students with disabilities. A school or principal may tell a their family to keep the student at home for hours, days, or longer, without giving reasons or following safeguards required when a student is suspended or expelled.
ARCH told SEAC it learned that TDSB did not then centrally collect statistics on how often these exclusions occur. ARCH expressed concerns (not limited to TDSB) for example, that a school may tell a family to keep a student with a disability at home, either because proper accommodations have not yet been arranged at school, or because supports, such as a Special Needs Assistant, were away. ARCH said when ARCH lawyers intervene, these situations are more likely corrected (again, not limited to TDSB).
TDSB staff made presentations to SEAC at its May, June and November 2017 meetings. TDSB staff said TDSB has no policy on the use of refusals to admit. Practices can vary from school to school. TDSB has a procedure (not a policy) regarding appeals from a refusal to admit. TDSB staff have been working on draft reforms after SEAC raised this.
SEAC recommends as follows:
TDSB Needs a Refusal to Admit Policy
- TDSB should promptly adopt a comprehensive, mandatory policy on when TDSB will exercise any power to refuse to admit a student to school.
What is a Refusal to Admit?
- The refusal to admit policy should have no loopholes that would let a principal or teacher exclude a student informally without complying with the policy.
- a) A “refusal to admit” should include any time TDSB formally or informally asks or directs that a student not attend school, or that the student be removed from school, whether in writing or in a discussion
- b) A refusal to admit includes a TDSB request or direction that a student only attend school for part of the regular school day.
- c) A refusal to admit does not include a situation where a family requests that a student be absent from school for all or part of a school day, but TDSB is willing to let the student attend school.
Ensuring Alternative Education to Student Whom TDSB Refuses to Admit to School
- The “refusal to admit” policy should require TDSB to ensure that a student, excluded from attending school, is provided an equivalent and sufficient educational program, and that TDSB keeps record of and publicly accounts for its doing so.
When a Refusal to Admit is Allowed
- The policy should specifically spell out the situations when TDSB can consider refusing to admit a student, including:
- a) A refusal to admit should only be imposed when necessary to protect health and safety.
- b) A refusal to admit should go no further and last no longer than is necessary.
- c) A principal should only resort to a refusal to admit if the principal can demonstrate that the student presents an imminent risk to health or safety which cannot be addressed by lesser measures, such as suspension.
- d) If a refusal to admit is to take place, the first resort should be to exclude the student from a specific class, accommodating that student in another class. Only if that can’t be sufficient, should a principal consider excluding the student from that school, accommodating the student at another school. TDSB should only refuse to admit a student from any and all schools if it is impossible to accommodate them at any other school.
- e) The policy should give clear examples of the circumstances when a refusal to admit is permitted, and when it is not permitted.
- f) A refusal to admit should not be allowed to last more than five consecutive school days.
- g) TDSB should justify the refusal to admit. It should not be for the student or the student’s family to justify why the student should be allowed to attend school.
- h) When TDSB staff decide whether to refuse to admit a student, they should take into account all mitigating considerations that are considered when deciding whether to suspend or expel a student.
- i) TDSB should not refuse to admit a student with a disability on the ground that TDSB staff believe they cannot accommodate the student’s needs, e.g. because staff is absent.
Extension of Refusal to Admit
- The policy should set these terms:
- a) If after a refusal to admit expires, TDSB wants to extend it, TDSB staff must justify it.
- b) The student’s family need not prove why the student should be allowed to return.
- c) An extension of a refusal to admit must first consider excluding the student from a single class, and then the option of excluding the student from that school, and only as a last resort, excluding the student from all schools.
- d) An extension should not be permitted if TDSB has not put in place an effective alternative option for the student to receive education.
- The “refusal to admit” policy should set out fair procedures that TDSB must follow when refusing to admit a student. These procedures should ensure accountability of TDSB and its employees, including:
- a) A student and their families should have all the procedural protections that are required when TDSB is going to impose discipline such as a suspension or expulsion.
- b) The principal should be required to notify the school superintendent in writing that the principal is going to refuse to admit a student and the reasons for this.
- c) The prior review and approval of the superintendent should be required. If it is an emergency, then the superintendent should be required to review and approve this decision as quickly afterwards as possible, or else the refusal to admit should be terminated.
- d) The superintendent should independently assess whether TDSB has sufficient grounds to refuse to admit, and has met all the requirements of the TDSB refusal to admit policy (including ensuring alternative education programming is in place for the student).
- e) The principal should be required to immediately notify the student and his or her family in writing of the refusal to admit, the reasons for it, and the duration. That should include outlining steps that TDSB has taken or will be taking to expedite a student’s return to school and provide an expected timeline for the completion of these steps.
- f) The principal should immediately tell the student and the student’s family, in clear and plain language, in writing, what a refusal to admit is, its duration, the reasons for it, the steps TDSB is taking to expedite the student’s return to school and time lines for those steps, the TDSB’s process for reviewing that decision, and the family’s right to appeal it (including how to use that right of appeal). This should be provided in a language that the family speaks.
- g) These procedures should again be followed any time TDSB extends a refusal to admit.
- h) A refusal to admit should not be extended for an accumulated total of more than 15 days (within a surrounding 30 day period) without the independent review and written approval of the executive superintendent of the Learning Centre where that student ordinarily attends.
- i) No refusal to admit should be extended for an accumulated total of more than 20 days (within a surrounding 45 day period) without the independent review and written approval of the Director of Education.
- The refusal to admit policy should include a fair and prompt appeal process which includes:
- a) The appeal should be to officials at TDSB who had no involvement with the initial decision to refuse to admit or any extensions of it.
- b) TDSB should promptly inform the student and the student’s family about how to start an appeal, who decides the appeal, the procedures for the appeal, that the student and family can present reports, support people or experts or any other information they wish, and can have a representative, either a lawyer or other person, to speak for them or assist them with the appeal.
- c) The appeal should include an in-person meeting with the student and family.
- d) The appeal should be heard and decided very promptly.
- e) On the appeal, the TDSB should have the burden to prove that the refusal to admit was justified, that it went no further and lasted no longer than was necessary, and that proper alternative education programming was provided or offered.
- f) A decision on the appeal should promptly be provided in writing with reasons.
Accountability and Transparency of TDSB’s Refusals to Admit
- The policy should include:
- a) TDSB should set a unique code for marking attendance for a student who is absent from school for all or part of a day due to a refusal to admit.
- g) Each principal should be required to immediately report to their superiors in writing whenever a student is excluded from school, including the student’s name, whether the student has special education needs or otherwise has a disability, the reason for the exclusion, the intended duration of the exclusion, and the substitute educational programming that will be provided to the student while excluded from school.
- c) TDSB should centrally collect these reports.
- d) TDSB should make public quarterly aggregated data (without any names or identifying information) on the number of refusals to admit, reasons for them, percentage that involve , students with special education needs or any kind of disability, the number of days missed from school, and measures to provide alternative education during refusals to admit.
Funding for Emergency Disability Accommodation Needs
- To help ensure that refusals to admit are not used due to a failure to accommodate a student’s disability up to the point of undue hardship, the TDSB should create an emergency fund for accelerating education disability accommodations needed to facilitate a student’s remaining at or promptly returning to school, in connection with an actual or contemplated refusal to admit.
Starting immediately, and until a new refusal to admit policy is approved, TDSB should require that any formal or informal refusal to admit a student be in writing, with reasons for it, and with the student’s family being told of their right to appeal under the existing TDSB appeal procedure. TDSB should require that any refusals to admit during this period be centrally reported in writing, with statistics reported quarterly to the Board, the public and SEAC.