The Education Act Doesn’t Allow Boards To Exclude Special Needs Students

In the age of COVID-19 there is a tremendous amount of anxiety us parents have as to what school will look like in September. Will children of all levels be properly accommodated? It’s no doubt as a special needs parent that students with exceptional needs have borne the brunt of this pandemic. Online courses that were provided at the beginning of this pandemic for special needs students were hastily thrown together, and not tailored to individual needs. We as a family spent a tremendous amount of time and communications to the school, in order to assist with some initial tailoring of online instruction, and worry that moving forward in September that our choice as a family to keep our son home as a result of both my wife and I being high risk for serious complications for COVID will result in a lost year of education for our son. That’s my anxiety, however one I know I will be able to advocate to our board when the time comes, because I know our rights under these circumstances.

Many families have made the choice to send their kids back to school in September. That’s completely acceptable. Those with special needs kids have heightened anxiety because these are vulnerable kids, and many have had to fight – even litigate – against school boards when it comes to accommodation and exclusion. Anxieties further heightened by a recent report from AODA Alliance suggesting that school principals can unilaterally exclude students from classrooms. At issue is s.265(1)(m) of the education act which states (emphasis added):

Education Act, R.S.O. 1990, c. E.2 s.265(1)(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.

AODA Alliance’s interpretation of this policy:

Under s. 265(1)(m), each principal not only has the right and the power to refuse to admit some students to school; Each principal actually has the affirmative duty to refuse some students to school.

A refusal to admit a student to school is a direct and clear infringement of that student’s right to an education and their right to go to school. The issue of whether or when a principal should refuse to admit a student to school must never be confused with the very different issue of when students with disabilities should be included in the regular classroom as opposed to attending a separate or “special education“ class. 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, both the regular classroom and taking part in a separate or special education class. Once a principal excludes a student from school, they are shut out of all classes, both regular classes as well as separate special education classes.

What s. 265(1)(m) is actually about; it allows the principal to transfer the student to another classroom, or school to accommodate the needs of the child, or to discipline a child by way of suspension. We actually pleaded with my sons past principal to use her discretion under S.265(1)(m) to further advocate to our board in order to transfer him to a more accommodating complex needs classroom. They were more equipped to handle my son as they specialized in ABA and de-escalation among other skills.

The AODA report itself is taking issue with each board’s policy seemingly under s. 265(1)(m), rather than quoting case law. Case law is important because when the courts weigh in on policy, it’s up to the boards to follow the courts direction. Any policy that’s put in place by the boards that doesn’t conform to the court’s interpretation is basically moot. In fact not once did AODA reference Bonnah v.Ottawa-Carleton District School Board in their report which set legal precedent and court guidance on s. 265(1)(m) of the education act which is fairly odd for a lawyer to omit. When a principal enacts S.265(1)(m) there is an appeals process that is in place at every board. The courts have weighed in that during the appeals process, the child cannot be legally moved regardless until after the appeals process (if initiated) is complete (specifically referencing IPRC’s but there’s also appeals that can be made to each boards student disciplinary committee depending on the situation):

[27] I agree with the appellant’s contention that the effect of s. 20 is to stay the placement decision of the IPRC when a parent files a notice of appeal. While the appeal is outstanding, the exceptional pupil’s placement remains as it was before the IPRC decision.

With respect to s.265(1)(m) the court of appeal determined (emphasis added):

[36] That is not to say that the pupil’s status as an exceptional pupil with respect to whom a placement decision is been made will be irrelevant to the manner in which a principal exercises his or her authority under s. 265(1)(m) and s. 3(1) of the regulation. Placement of exceptional pupils requires considerable expertise and careful assessment. Where a placement decision is [page465] challenged by the parents, it is clearly the policy of the Act and the regulations to leave the status quo in place while that challenge is considered. Where a principal must exercise his powers under s. 265(1)(m) or s. 3(1), he or she must bear in mind the special significance of the placement decision as it relates to exceptional pupils and strive to minimize any interference with that placement. For example, if safety concerns can be properly addressed by removal from the classroom rather than the school, then the more limited removal must be preferred in the case of an exceptional pupil.

Basically what this means is that a principal can’t use S.265(1)(m) of the education act in order to get out of accommodating a special needs student. Arch Disability Law did an excellent synopsis of S. 265(1)(m) in 2018 concluding that:

Section 265(1)(m) has long been misinterpreted as providing a principal with the power to exclude students with disabilities. However, history, jurisprudence, and careful statutory interpretation of the provision do not support this hypothesis. A review of the evidence indicates that a proper interpretation of the provision asserts that a principle cannot use this provision, on its own, to exclude a student with a disability. This interpretation states that a principal already has all the tools necessary to carry out his duties under s. 265(1)(m) with respect to students with disabilities because they have access to Part XIII of the Education Act. Given that they have such powers, it is both unnecessary and problematic to infer that they have additional powers of exclusion under this section. Such an inference inevitably leads to a violation of a student’s right to due process and potentially to a violation of their human rights.

What Arch is basically stating is that there are no such powers of exclusion outside disciplinary actions, and that if a principal would use s. 265(1)(m) of the education act to purposely exclude a special needs student, the board would be in serious violation of the constitutional and human rights of the student, and it would be very difficult for the boards to defend such a use of this provision in court.

While I most certainly agree that the education act needs to be brought in line with case law/court guidance and every opportunity to express this should be put to the forefront, I think it’s equally important during the time of COVID that families are given an accurate picture of the law since many families will be using it to advocate for accommodations of special needs students in the fall if March – June is an example of the Province and Board’s attempts of accommodation during this pandemic.

The immediate need of the disability community is around legal education, not around political advocacy over the definitions of the education act that have been clarified through case law and will most likely take years if at all to change. Families will need to be armed with the law and board/legal processes in September (weeks away) in order to properly and effectively advocate their own individual circumstances to their respected boards and the ministry of education. I would really love to see those in the legal community step up to fill that void.

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