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How do we treat people fairly when they are dis- or differently abled?

How do we treat people fairly when they are dis- or differently abled?

What is the best way to accommodate physical and intellectual diversity?

What is FAIR?

Treat them the same?

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Charter RightsAffecting Disabled Pupils

Charter RightsAffecting Disabled Pupils

§7 Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

§15(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination, and in particular without discrimination based on . . . mental or physical disability.

§15(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of . . . mental or physical disability.

§1 The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

§7 Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

§15(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination, and in particular without discrimination based on . . . mental or physical disability.

§15(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of . . . mental or physical disability.

§1 The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

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The Saskatchewan Human Rights Code

The Saskatchewan Human Rights Code

. . . protects persons with disabilities from discrimination in:

employment, public services (for example, those offered by theatres, restaurants, hotels and government), housing (including the renting and purchase of houses, apartments or commercial property), education, trade unions and associations relating to occupation.

. . . protects persons with disabilities from discrimination in:

employment, public services (for example, those offered by theatres, restaurants, hotels and government), housing (including the renting and purchase of houses, apartments or commercial property), education, trade unions and associations relating to occupation.

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The Saskatchewan Human Rights Code

The Saskatchewan Human Rights Code

In this context “disability” means:any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness. It includes all illnesses, such as cancer, AIDS, diabetes, epilepsy, as well as any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment. People who are discriminated against because they have a guide dog or because they are in a wheelchair or use some other remedial device are also protected by the Code.Disability also includes mental retardation or impairment; a learning disability or a dysfunction in one or more of the processes involved in the understanding or use of symbols or spoken language; or a mental disorder. Mental disorder means a disorder of thought, perception, feelings or behaviour that impairs a person's judgment, capacity to recognize reality, ability to associate with others, or ability to meet the ordinary demands of life.

In this context “disability” means:any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness. It includes all illnesses, such as cancer, AIDS, diabetes, epilepsy, as well as any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment. People who are discriminated against because they have a guide dog or because they are in a wheelchair or use some other remedial device are also protected by the Code.Disability also includes mental retardation or impairment; a learning disability or a dysfunction in one or more of the processes involved in the understanding or use of symbols or spoken language; or a mental disorder. Mental disorder means a disorder of thought, perception, feelings or behaviour that impairs a person's judgment, capacity to recognize reality, ability to associate with others, or ability to meet the ordinary demands of life.

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Right to Special EducationRight to Special Education

Education Act s. 178(1) . . . every pupil shall be provided, insofar as it is

practical within the policies and programs offered by the board of education . . . , with a program of instruction consistent with the pupil’s educational needs and abilities.Where a principal (s. 2), parent (s. 3) or teacher (s. 5) considers a pupil unable, by reason of disability, to profit from the instruction ordinarily provided, each may request a review of the student’s needs with a view to providing appropriate programs and services

Education Act s. 146. . . services approved by a board of education . . . with respect to pupils who are eligible for special education programs . . . are to be provided without cost to those pupils or their parents. . .

Education Act s. 178(1) . . . every pupil shall be provided, insofar as it is

practical within the policies and programs offered by the board of education . . . , with a program of instruction consistent with the pupil’s educational needs and abilities.Where a principal (s. 2), parent (s. 3) or teacher (s. 5) considers a pupil unable, by reason of disability, to profit from the instruction ordinarily provided, each may request a review of the student’s needs with a view to providing appropriate programs and services

Education Act s. 146. . . services approved by a board of education . . . with respect to pupils who are eligible for special education programs . . . are to be provided without cost to those pupils or their parents. . .

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Exclusion/Alternative ServicesExclusion/Alternative Services

s. 186(2) Subject to the regulations, a board of education . . . shall provide educational services to pupils with disablilities, but:(a)where it is considered advisable, the board of

education may exclude from attendance in a specific curricular program any pupil who in the opinion of the director, is incapable of responding to instruction in that program or whose presence is detrimental to the education and welfare of other pupils in that program; and

(b)where, on investigation by and in the opinion of the director, a pupil is so seriously disabled as to be unable to benefit from any of the instructional services provided . . . the board shall:(iii) clarify and arrange other services appropriate to the needs and circumstances of the pupil.

(3) Where a pupil is excluded from attendance pursuant to clause (2)(a), the exclusion must not deprive the student to access to alternative educational services . . . .

s. 186(2) Subject to the regulations, a board of education . . . shall provide educational services to pupils with disablilities, but:(a)where it is considered advisable, the board of

education may exclude from attendance in a specific curricular program any pupil who in the opinion of the director, is incapable of responding to instruction in that program or whose presence is detrimental to the education and welfare of other pupils in that program; and

(b)where, on investigation by and in the opinion of the director, a pupil is so seriously disabled as to be unable to benefit from any of the instructional services provided . . . the board shall:(iii) clarify and arrange other services appropriate to the needs and circumstances of the pupil.

(3) Where a pupil is excluded from attendance pursuant to clause (2)(a), the exclusion must not deprive the student to access to alternative educational services . . . .

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Exclusion/Alternative Services (2)Exclusion/Alternative Services (2)

s. 186(4) A board of education may discharge its responsibilities pursuant to subsection (2) by:(a)providing those services within the school

or in other facilities in its control; or(b)entering into agreements with a board of

education, conseil scolaire, agency, institution, the conseil general or any other person to make these services available.

(7) . . . a school division that, pursuant to subsection (4), has entered into an agreement to make educational services available . . . maintains responsibilities for those pupils for so long as the parents . . . remain residents of the division

s. 186(4) A board of education may discharge its responsibilities pursuant to subsection (2) by:(a)providing those services within the school

or in other facilities in its control; or(b)entering into agreements with a board of

education, conseil scolaire, agency, institution, the conseil general or any other person to make these services available.

(7) . . . a school division that, pursuant to subsection (4), has entered into an agreement to make educational services available . . . maintains responsibilities for those pupils for so long as the parents . . . remain residents of the division

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Who are "Exceptional" PupilsWho are "Exceptional" Pupils

Education Regulations, 1986, Chapter E-0.1, as amended

s. 48(b) “high-cost disabled pupil” level 2 means a pupil with a moderate to severe disabling condition who:(I) requires appropriate special education

services;(ii) meets the criteria specified in section 49;

and(iii) is identified as a high-cost disabled pupil

pursuant to section 50 or 51; [$12,610]s. 48(c) “high-cost disabled pupil” level 1 means a pupil

with a mild to moderate disabling condition who requires appropriate special education services but who does not meet the criteria set out in section 49 for identification as a high-cost disabled pupil. [$6,300]

Education Regulations, 1986, Chapter E-0.1, as amended

s. 48(b) “high-cost disabled pupil” level 2 means a pupil with a moderate to severe disabling condition who:(I) requires appropriate special education

services;(ii) meets the criteria specified in section 49;

and(iii) is identified as a high-cost disabled pupil

pursuant to section 50 or 51; [$12,610]s. 48(c) “high-cost disabled pupil” level 1 means a pupil

with a mild to moderate disabling condition who requires appropriate special education services but who does not meet the criteria set out in section 49 for identification as a high-cost disabled pupil. [$6,300]

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High-Cost DisabledHigh-Cost Disableds. 49 a pupil is high-cost disabled if he or she is:legally blindlegally deaf“trainable mentally retarded” (TMR), that is

IQ below 55, andhas a “significant deficit in adaptive behaviour”

“severely learning disabled,” that isIQ above 85> 1 standard deviation between aptitude and achievementthe pupil’s rate of progress in the “skill subjects” including reading, is

not greater than half that of average pupilsorthopedically disabled such that the pupils physical limitations adversely

effect his/her educational performance, seriously restrict his/her mobility within the school, seriously limit self-help activities or limit his use of conventional transportation

chronically health impaired, such thathospital or home placement is required for at least three months, orotherwise adversely effects educational performance

socially, emotionally or behaviorably disabled . . . exhibits excessive, chronic deviant behaviour

severely, multiple disability

s. 49 a pupil is high-cost disabled if he or she is:legally blindlegally deaf“trainable mentally retarded” (TMR), that is

IQ below 55, andhas a “significant deficit in adaptive behaviour”

“severely learning disabled,” that isIQ above 85> 1 standard deviation between aptitude and achievementthe pupil’s rate of progress in the “skill subjects” including reading, is

not greater than half that of average pupilsorthopedically disabled such that the pupils physical limitations adversely

effect his/her educational performance, seriously restrict his/her mobility within the school, seriously limit self-help activities or limit his use of conventional transportation

chronically health impaired, such thathospital or home placement is required for at least three months, orotherwise adversely effects educational performance

socially, emotionally or behaviorably disabled . . . exhibits excessive, chronic deviant behaviour

severely, multiple disability

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Vertical EquityVertical Equity

Additional grants for special needs:

High-cost disabled 2: $12,610

Hi-cost disabled 1: $6,300

Additional grants for special needs:

High-cost disabled 2: $12,610

Hi-cost disabled 1: $6,300

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Judicial DecisionsJudicial Decisions

[Luke] Elwood v. Halifax County--Bedford (1986)

[Alixe] Hysert v. Ottawa Carleton (1991)

[Emily] Eaton v. Brant County (1997)

[Luke] Elwood v. Halifax County--Bedford (1986)

[Alixe] Hysert v. Ottawa Carleton (1991)

[Emily] Eaton v. Brant County (1997)

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Charter RightsAffecting Disabled Pupils

Charter RightsAffecting Disabled Pupils

§7 Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

§15(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination, and in particular without discrimination based on . . . mental or physical disability.

§15(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of . . . mental or physical disability.

§1 The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

§7 Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

§15(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination, and in particular without discrimination based on . . . mental or physical disability.

§15(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of . . . mental or physical disability.

§1 The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

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Beth’s Case: DiscussionBeth’s Case: Discussion

1. Were Beth’s rights respected and was she treated “fairly” in this situation?

2. Are school boards required to accommodate exceptional children regardless of cost?

3. What other types of exceptionalities are recognized in Saskatchewan schools? What factors, associated with these exceptionalities, have to be considered by school boards in making student placement decisions?

4. How do the circumstances of this case relate to the concepts of equality of access, equality of treatment, equality of outcome/results, and horizontal and vertical equity?

1. Were Beth’s rights respected and was she treated “fairly” in this situation?

2. Are school boards required to accommodate exceptional children regardless of cost?

3. What other types of exceptionalities are recognized in Saskatchewan schools? What factors, associated with these exceptionalities, have to be considered by school boards in making student placement decisions?

4. How do the circumstances of this case relate to the concepts of equality of access, equality of treatment, equality of outcome/results, and horizontal and vertical equity?

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Equality of Opportunity, Treatment and

Results

Equality of Opportunity, Treatment and

Results

It could be argued that Beth was granted equal opportunity, in the sense that she was provided with access to secondary education.

It can also be argued that she was treated equally in the sense that not all courses and programs are available in any particular school, therefore students frequently can’t take exactly what they or their parents want, and in that many students are required to travel significant distances to school.

If one were to take the long-term perspective and measure equity by results, it can certainly be argued that she was not treated fairly; Pleasant High does not appear to offer the type of program that Beth will need if she plans to continue her education in university. This is a particular problem for students like Beth. Because they frequently cannot “market” their physical abilities and skills, their career choices are limited to occupations which require cognitive and affective skills and talents. Entry level requirements for these types of occupations almost always demand post-secondary education.

It could be argued that Beth was granted equal opportunity, in the sense that she was provided with access to secondary education.

It can also be argued that she was treated equally in the sense that not all courses and programs are available in any particular school, therefore students frequently can’t take exactly what they or their parents want, and in that many students are required to travel significant distances to school.

If one were to take the long-term perspective and measure equity by results, it can certainly be argued that she was not treated fairly; Pleasant High does not appear to offer the type of program that Beth will need if she plans to continue her education in university. This is a particular problem for students like Beth. Because they frequently cannot “market” their physical abilities and skills, their career choices are limited to occupations which require cognitive and affective skills and talents. Entry level requirements for these types of occupations almost always demand post-secondary education.