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What Parent Advocates Need to Know About Changing the School • Know and understand provincial laws and policies. Know what rights you or your child have to an inclusive education. • Know the policies of your local school board. Make sure the policies are consistent with provincial laws and policies. • Assume your child has a right to an inclusive education. If this is what you want, be prepared to challenge policies and decisions that provide anything less. • Talk with people who are getting what they want in terms of inclusion within the present system. How are different schools or different school boards promoting inclusion? • Be prepared to use appeals and other legal processes. If you do not succeed at one level, there are formal and informal avenues of appeal. Lobby as many people as you can to create pressure to get what you want. • Remember that even progressive laws and policies do not guarantee true inclusion. Inclusion requires commitments and efforts from a number of people during every day of the school year. A) THE NATURE OF LAW & POLICY Law and policy are at the base of our education system and our relationships with the Ontario Ministry of Education & Training, local school boards and schools. The Constitution of Canada gives the Provinces jurisdiction over public education. As a result, Ontario laws provide authority for the creation of all of the main features of the education system. They give the Ontario government and school boards the right to decide how our schools will be run. There are many levels of law and policy - legislation, regulation, policy and practice, and finally, court decisions. Legislation starts as a "bill" introduced to the Provincial Parliament (the legislature). If the "bill" is passed by the Provincial Parliament, the next step is to get it proclaimed into law by the Lieutenant Governor. After legislation is proclaimed, it becomes an Act or statute, and therefore, law. The Education Act is an example of legislation or a statute. Legislation is one way that a Government acts on its policies. For example government may decide that it will require all individuals between the ages of six and sixteen to attend school. That policy is given legal authority when the legislature passes a law that can force individuals of a certain age to attend school. Most legislation allows for the development of Regulations. Regulations are also law, but they are not made by the legislature. They are created by the Provincial Cabinet (made up of the Premier and ministers of various government departments). Regulations are easier to make and change because they only require the approval of Cabinet, not the legislature. Often, much of what happens is governed by the Regulations under the legislation or statute. So, knowing what the Act or statute says is often not enough. An example of a regulation is Regulation 305 under the Education Act. The regulation sets out the process for deciding if a child is going to be identified as exceptional by a school board. It also establishes roles and rules for Identification, Placement and Review Committees (IPRCs). The next level of government policy is Ministry policy. Provincial Government departments or ministries each have their own policies. They are developed within the Ministry, and generally approved by the Minister. Politically, the Minister often consults with her cabinet colleagues and the policy agenda of the party in power, but legally, the policies are those of the Ministry. These may take the form of policy statements, directives, guidelines, and the like. They direct the way certain things must happen. Policies that are not laws can usually be changed without the formal process that is required to change laws. An example of a Ministry policy is a statement or set of guidelines on school discipline. There is an expectation that school boards will follow the Ministry's wishes, although those wishes or the policy are not law. Another kind of Government policy is the priorities of the Government in power. Often, Governments act on their priorities through funding. Governments have specific priorities within each Ministry, but also overall priorities. These have tremendous impact on what actually gets done. For example, the Government or Ministry may decide that it is a priority for all schools to be equipped with computers for students so they will have access to the Internet. As a priority, the Government may decide to provide funding to allow this to happen. Finally, there is Government practice. Basically, practice is what the government usually does, encourages or allows to happen. Practice may vary from one part of a Ministry to another or one geographic area to another. It may be quite consistent, or depend on the judgment and personality of a single government official. Practice is not always consistent with policy or law. School boards also make policies on various matters within their authority. School board policies must not be contrary to laws made by government. School board policies, however, can include policies and practices which are not required or mentioned in law. Some laws are more powerful than others. Legislation such as the Education Act are superior to regulations. Normally, government cannot make regulations that are contrary to the laws contained in such Acts. Similarly, laws contained in a Constitution are superior to other laws. For example, a right guaranteed by the Charter of Rights and Freedoms usually cannot be taken away by another law. The courts are often active in interpreting the meaning of law, and deciding if one law is inconsistent with other laws. For instance, all laws must conform to the Charter of Rights and Freedoms. Many challenges about the rights of people with disabilities center on the fact that certain laws are not consistent with the Charter. The courts can uphold or over-rule the laws, policies or actions of Government.
B) CHANGING LAW AND POLICY Laws and policies change as expectations and attitudes about people and issues change. Not long ago, children with disabilities were not included in the public education system. At the time, many people did not expect a child with an intellectual disability to develop and grow very much. It was assumed that going to school would not benefit people who had a disability. Over time, our assumptions, beliefs and knowledge about people changed. We began to recognize that people with disabilities are people with abilities, potential, and rights. It often takes a lot of effort and struggle to change policies and laws - especially those that have been guiding the way we do things for many years. Many parents lobbied governments and school boards to provide their children with a public education. It was a major victory when children with disabilities won the right to a public education. Parents and Associations pursued what they believed in. They forced government and school boards to change their education policies for people with disabilities. Those changes led to a change in our provincial law. Changes to education law and policy affecting people with disabilities over the past 40 years represent a gradual shift in our society's acceptance of people with disabilities. Winning the right to public education in the 1950's and 1960's meant people were sent to separate schools in their communities. Over time, education policy changed to enable students with disabilities to be taught in separate classes in regular schools. More recently, we have witnessed another shift. One by one, children with disabilities are now being accepted and taught alongside other children in regular classrooms. Today, inclusion in the regular classroom is a reality for some because parents and others have taken strong positions, and taken on the fight - much like the parents of a previous generation. By individual action and being successful at getting what they want, parents are laying the groundwork for future changes to education policy and law. C) LEGAL CHALLENGES TO SEGREGATION The proposed policy changes for Ontario announced in 1994 are part of a broader trend toward inclusion in education. (See Part Three, Chapter 3.2 for a review of the proposed changes to Regulation 305.) The changes result from years of effort by parents, Associations and other organizations to change the education system. Some of those efforts were legal challenges to segregation. The Hysert Case The Hysert case in Ottawa challenged segregation as discriminatory under the Canadian Charter of Rights and Freedoms. Before getting to court, the case was settled in favour of inclusion. As part of the settlement, the Ministry of Education & Training agreed that it would "accelerate progress towards the goal of integrating exceptional children into local community classrooms wherever possible," if that were the wish of the parents. The settlement in the Hysert case helped lay the foundation for changes to government policy in 1994. Becky Till The parents of Becky Till challenged segregation through the Ontario Human Rights Act. Again, the foundation of the legal claim was discrimination on the basis of disability. After months of hearings before a human rights tribunal, the Board of Education settled before a decision was made. Becky Till won the right to be included in the regular classroom and the Board of Education acknowledged inclusion as a "worthy goal." The Eaton Case In 1997, the Supreme Court of Canada made a ruling in the Eaton case. This case is reviewed in detail in Chapter 3.2. While the Court concluded that the decision to segregate Emily was not discriminatory, it did state that school authorities must determine whether "integrated settings" can be adapted to meet the needs of a child who is considered exceptional. We believe that this means that there is a duty on schools and school boards to make changes to regular classrooms and subjects, and to provide additional help to facilitate the inclusion of children with disabilities in our regular education system. • OTHER TRENDS TOWARD INCLUSION Without legal challenges, more and more children are being included in regular classrooms throughout Ontario. This is part of a Canada-wide trend. In some provinces, inclusion is now recognized in law. In New Brunswick, for example, the Education Act contains qualified but mandatory provisions that children who are considered exceptional be taught in regular classrooms to the extent considered practicable by the school district. The New Brunswick Department of Education has also adopted, as policy, best practices for inclusion which individual schools are expected to implement. These are included in the appendices for your information. In addition, many more educators are now accepting inclusion as the only way to ensure that all children get the best start in life. Increasingly, schools and school boards are required to justify why a child is not being including in the regular classroom. In Ontario, it is clear that government policy is being shaped by different activity. The recent court challenges and the proposed changes to Regulation 305 have had some impact. We still lack a solid government commitment to develop an inclusive education system in Ontario. The shift to inclusion will only continue if strong advocacy at the individual and system's level continue. Without an ongoing effort, the shift or trend may not continue. The bad news is that without constant vigilance, the education system may move backwards. The battle is not won. • USING CURRENT LAWS TO GET WHAT YOU WANT 1) Push at the Boundaries - Assume the Right is There It takes time to change laws and policies. Whether or not laws and policies recognize a right to an inclusive education, we believe that there are ways to accomplish these goals. This may involve pushing beyond existing boundaries and doing things that have not been adopted in policies. It may also require you to assume your child has rights that are not yet recognized in law or policy. There are many examples of people being included in situations where school board policy expressly favours segregation. School boards, when pressured, have broken their own policies in practice but not in writing. Local success can be achieved when practice goes well beyond the policy. This makes the policy clearly outdated. Over time, there may be so many individual exceptions to school board rules that the exceptions become the rule. In some cases, law and policy may be silent on particular issues. If so, turn this to your advantage and assume things are in your favour. For example, no policy or law says that a parent can or cannot have an advocate at an IPRC meeting. Over the years, many parents have assumed the right to bring an advocate. Now, the proposed changes to Regulation 305 recognize that right. Some individual school boards may still have policies that strongly favour segregation of children who are considered exceptional. In the future, such policies may be strongly challenged if the proposed changes to Regulation 305 are implemented. Parents and Associations must work hard to ensure that school board policies are rewritten to reflect these changes. 2) Be Prepared to Appeal and Lobby Current law and policy provide parents with the right to appeal school board decisions about their children. Within the education system, there are two levels of appeal: • the appeal of IPRC decisions to a local Appeal Board; and • the right to appeal the Appeal Board's decision to a Special Education Tribunal. Decisions to segregate may also be appealed to courts on the grounds of discrimination or a complaint may be filed with the Human Rights Commission. It often takes a lot of time, energy and money to pursue these methods. They are, however, extremely important as demonstrations of your willingness to get what you want for your child. You will probably need the support of other individuals and Associations to help you through the fight. You may have to be prepared to lobby school officials and administrators, school board trustees and local and provincial politicians. If you are not getting what you want for your child, you will want to take every step possible to pressure school officials to give in to you. Often, this requires creating an environment whereby saying "no" to you becomes increasingly difficult. • The Importance of Beliefs and Attitudes Attitudes and practice are greatly influenced by the fact that inclusion and integration are relatively new. We are currently in a transition period which may last a number of years. The beliefs and attitudes of the segregated system are still very much in place. Today, however, pioneers of a new approach to educating people with disabilities (parents and professional allies) have made profound changes on values and attitudes. Shifts in these values and attitudes in turn cause some changes in practice which set a new pattern and which becomes the basis of change in law and policy. At the same time, many people still believe in the old system. New law and policy is often implemented by people who do not believe in it or understand it. Within the education system, at both the school board and provincial level, there are a variety of beliefs and attitudes that affect the degree to which inclusion is accepted. Resistance at many points may jeopardize or undo victories. Often, it is not law or policy that is the problem or solution, but the refusal of government and educators to take action. If the proposed changes to Regulation 305 take effect, there will still be school boards and schools that resist inclusion and will not want to provide you with what you need to achieve your goals for your son or daughter. If necessary, be prepared to apply constant pressure and ask for help in the process. • A Reminder Getting children into regular classrooms is a significant achievement. Changing our laws and policies to provide this right is critical. Both are important victories, but only the beginning. Achieving inclusion for people who have been segregated will require much more than simply being present in those classrooms. Having progressive laws and policies may only take us so far. Ensuring that your sons and daughters are active members of their classrooms and schools will require personal commitments and efforts on the part of many people.
An excerpt from Towards Inclusion: An Advocacy Guidebook about Quality Education for Children with Disabilities in Ontario. (Reprinted with permission) -- Nancy Rother, Ken Pike, Bruce kappel & David Jory c.1997 / Brampton Caledon Community Living
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