Toronto Star, November 10, 2003

Disabled teen sets precedent
School board forced to comply

Classroom options were too limited

TESS KALINOWSKI
EDUCATION REPORTER

In a case that suggests you can fight city hall, a Burlington family has set a precedent that may help the province's disabled children.

For the first time since Ontario passed its special education legislation in 1980, the agency that determines how school systems treat the disabled has ruled in favour of parents who disagreed with the classroom options offered to their son.

The Halton District School Board had already created a new class to suit Burlington high school student Aaron Etherington's needs prior to the tribunal's decision. But his mother, Stephanie Etherington, says the ruling is still a relief, because it guarantees her autistic son will remain in that class.

David Baker, the Toronto lawyer who represented Aaron, says the ruling by the Ontario Special Education Tribunal could signal new hope for parents dissatisfied with the public school settings in which their disabled children are placed.

Although there have been cases where the tribunal has ordered boards to supply more support services for disabled children in integrated classes, "This is the first case that says what you (the student) were being provided according to the special education plan is wrong. You (the board) have to change your special education plan," Baker says.

The decision means the tribunal, which for years ruled in favour of school boards, may be more willing to consider parents' complaints, says Baker, an expert in disability law.

Stephanie Etherington says the Halton board offered Aaron, 15, two class placement options when he was preparing to attend high school: he could either go into a rotating class schedule requiring him to move about the school between classes at General Brock High School, or he could go into a classroom of 24 students his mother describes as profoundly physically or mentally handicapped at Lord Elgin High School.

His parents felt Aaron would not be able to cope with the rotating class schedule, but thought his abilities far exceeded the latter situation.

Aaron doesn't look disabled and has significant learning potential but he has difficulty with social interaction, his mother says.

Last January, he acquired a special skills dog and left school for several months to train with the dog at an Oakville centre.

The Etheringtons returned Aaron to school in May, expecting him to go into the severely handicapped class at Lord Elgin, but were delighted to find the board had set up a small, special class with five other students with similar disabilities.

Etherington says the board explained the change as being in response to having Aaron's dog in the school.

Their lawyer believes the class was set up in response to the impending tribunal hearing. "They recognized what they had been offering didn't comply (with Aaron's needs)," Baker says.

"What's changed since the tribunal is that the board can't go back to having Aaron in that big developmental education class where he was totally demoralized and floundering."

Baker says the tribunal has so consistently ruled in favour of school boards that families like the Etheringtons had given up on the appeal process.

"The implications (of this decision) are that parents who are taking their kids to private schools because they don't think they can get the appropriate education (in public school) should be rethinking that."

Although it's expensive to hire a lawyer to argue such an appeal - up to $10,000 in a worst-case scenario - private schools and professional supports typically cost parents of disabled children much more.

"I've talked to people who are looking at $60,000 to provide a private education and these schools are sprouting all over the place because the parents just give up and say they can't wait - `We need to be responding to our kids' needs now,' Baker says.

"The thing that's frustrating for me is that these people are a minority, that when there are perceived economic pressures on education, it is far easier to cut special education than to do things that affect the majority of students."

The Halton board's superintendent of special education, Brenda Kearney, says that because Aaron was moved into a small, specialized class prior to the tribunal's decision, the only change the school board had to make was the name of the class.

The tribunal ordered the board to call Aaron's class "Communication," but Kearney says that's inappropriate because the word refers to a disability in itself.

She says the Halton board will proffer some alternative suggestions to the tribunal.

"The ruling is a good ruling because it's the best of all worlds for everybody," Kearney says.

"It's very positive for the board. It's very positive for the parents."