Disability Accommodations in Post-Secondary Education ARCH Disability Law Centre www.archdisabilitylaw.ca

ARCH Disability Law Centre WHAT IS ARCH? ARCH is a community legal aid clinic dedicated to advancing the rights of people with disabilities in Ontario Call ARCH if you: ARE A PERSON WITH A DISABILITY and you NEED ASSISTANCE OR HAVE A QUESTION ABOUT : your human rights your attendant care services your rights as a person living in a group home your rights as a student or a worker capacity to make your own decisions

Ontario’s Human Rights Code Ontario’s Human Rights Code guarantees everyone the right to equal treatment without discrimination because of disability in employment, facilities, the delivery of goods and services, housing, contracts, and membership in trade and vocational associations. The term “services” has been defined broadly to include education. Students have a right to equal treatment in education services while attending colleges and universities, whether publicly or privately funded.

What is “discrimination”? Generally, “discrimination” means that: A person with a disability is treated differently because of his or her disability AND this different treatment hurts, harms, or has a negative impact on the person with the disability It can also mean failing to take the individual’s needs into account when designing a program, policy or setting standard requirements.

What is “discrimination”? Discrimination can include situations where: An education service provider fails to provide the support, technology or to change the “normal” in order that the student may reach her real potential. A rule or policy appears to apply to everyone equally, but in reality has a negative impact on certain groups of people when put into practice.

What is “disability”? “Disability” is defined differently in different pieces of legislation. Ontario’s Human Rights Code defines disability very broadly. Encompasses all forms of disability. The definition also includes perceived disabilities. For example, someone may assume that a person with a communication disability who uses a Blissboard also has an intellectual or learning disability because of the limitations that are inherent in the use of a Blissboard.

What is “duty to accommodate”? Education service providers have a duty to accommodate. This means that they must accommodate the disability-related needs of students up to the point of undue hardship. “Accommodation” has been defined by the Supreme Court of Canada as: “what is required in the circumstances to avoid discrimination.” Accommodation refers to the prevention and removal of individual and systemic barriers.

Examples of Accommodation A modified curriculum Extra time for completing tests, exams and assignments Alternative forms of evaluation Academic materials in advance, and/or in alternative formats Provision of and training on adaptive technology Assistance and supports in class Modify the way the student is expected to complete the essential requirements of a program For grad students changing expectations of job requirements of a TA or RA

What is “duty to accommodate”? The duty to accommodate has both a substantive component and a procedural component. Procedural component: Refers to methods and steps taken to develop and implement the accommodations. Substantive component: Refers to the appropriateness of the accommodation, or whether it cannot be provided because it would cause the education service provider undue hardship.

Duty to Accommodate Procedural Component Investigation The education provider’s obligation to investigate: Individualized assessment of the person with a disability. Taking appropriate steps to sufficiently determine a range of appropriate accommodations. Where necessary, consulting with experts and other parties to assist in gathering and understanding the relevant facts and information.

Duty to Accommodate Procedural Component Delays in Accommodation Education service providers must make every effort to ensure that accommodations are provided in a timely fashion. Timeliness depends on context. Interim accommodations must be provided in the event that the necessary accommodations cannot be provided promptly. Alternative accommodations must be provided in the event that the appropriate accommodation is no longer available.

Duty to Accommodate Procedural Component Ongoing Obligation to Ensure Appropriateness Disability is not static. Therefore, accommodations must be monitored, evaluated, and changed over time The duty to investigate also applies to situations where education service providers identify the need to modify an existing accommodation.

Duty to Accommodate Substantive Component The accommodation must be appropriate and individualized. It must also respect the dignity of the student. Accommodations depend on context, and on the individual needs and strengths of the student with a disability. What is appropriate for one student may not be appropriate for another student.

Duty to Accommodate Substantive Component Accommodations must be provided, unless the education service provider can prove that it would cause undue hardship Undue hardship under the Human Rights Code includes a consideration of: Whether the cost of the accommodation is prohibitive. Whether any outside sources of funding are available. Whether the accommodation would violate any health or safety requirements or pose a health and safety risk.

Responsibilities of the Student Tell the education service provider about your disability-related needs. If you are not comfortable stating what your disability is, you can request accommodation without having to identify your specific disability. Tell the education service provider what accommodations you require so that it can implement the appropriate accommodations. Collaborate with the education service provider to come up with suggestions about the ways in which you can be accommodated by providing helpful information, answering questions, and participating in discussions.

Responsibilities of the Student Information gathering and sharing most often done through the disability services offices Disability services often drafts accommodation plan and delivers to instructors as needed Students provide best possible documentation. Often may need to provide more detailed and specific information about accommodation needs from your medical or psychological professionals 16 16

Recent Supreme Court Decision on Duty to Accommodate in Education Moore v. British Columbia (Education) Goal of education is that “all students should be afforded opportunities to develop their full potential Educational institution must show that “it could not have done anything else reasonable or practical to avoid the negative impact on the individual…accommodation is not a question of mere efficiency”. Accommodations are not a dispensable luxury… it is the ramp that provides access to the statutory commitment to education made to all

Policies on Accommodating Students with Disabilities Each Academic Institution has its own Policy or Directive RYERSON Policy Number: 159 “ACADEMIC ACCOMMODATION OF STUDENTS WITH DISABILITIES” Fairly extensive policy that sets out roles of students, access centre, instructors, department chairs and directors, deans, registrar, financial services etc. Sets out steps for resolution of disagreements. Access Centre and Instructor  Chair Dean Vice Provost Academic There are set timelines for each step

Policies on Accommodating Students with Disabilities RYERSON IV. PRINCIPLES The University is committed to preserving academic freedom and its high academic standards. The University will provide academic accommodations to assist students with disabilities to fulfill the academic requirements of their programs without alteration in academic standards or outcomes. The nature and extent of accommodations shall be consistent with and support the integrity of the curriculum and the University’s academic standards. The University re-affirms that all students are expected to satisfy the essential requirements of their program of studies and recognizes that students with disabilities may require academic accommodations to do so, including alterations to how the student demonstrates that she or he has acquired the necessary knowledge and skills. 19 19

Policies on Accommodating Students with Disabilities University of Toronto Accommodation Policy? “Procedural guidelines for the accommodation of students, staff and faculty with disabilities” “Commitment Regarding Persons with Disabilities” The University re-affirms that all individuals are expected to satisfy the essential requirements of their program of studies or employment, while recognizing that students and employees with disabilities may require reasonable accommodations to enable them to do so. The University is, as always, committed to preserving academic freedom and its high level of academic standards. 20 20

Policies on Accommodating Students with Disabilities George Brown College – “Disability Services Office Policy” Outlines legal rights and obligations How to access accommodations Types of Disabilities Types of Accommodations Detailed Disability services handbook 21 21

Role of Accessibility Services? Need to Register Need medical documentation – in some instances the service’s website lists specific documentation needed for certain disabilities Letters of Accommodation created through on-line process Do they advocate for students? Often will not challenge or push on decision of Graduate School, Faculty of Law or Business School 22 22

Issues that Arise Confidentiality Delay What is role of Accessibility Services University Policy and Appeal Process Challenging a Professor Role of Graduate Students as Students, Agents of Institution and Employees of Institution Academic Integrity

What do I do if I’m not receiving the accommodations I need? Use the OHRC Guidelines on Accessible Education to help you negotiate with the college or university for accommodations. The Guidelines can be found at http://www.ohrc.on.ca/en/resources/Guides/AccessibleEducation. Review the Policy on Accommodating Students with Disabilities for your academic institution. Discuss with Accessibility Services and determine the best process to take to next level Call ARCH for legal information and advice. Consider whether making a human rights application to the Human Rights Tribunal of Ontario would be appropriate.

In Summary Human rights law applies in the everyday delivery of education services. Human rights law is not limited to the human rights process, but can be used as an advocacy tool to help students get appropriate accommodations and be included in school. Ideally, a human rights approach to education is not adversarial but collaborative and constructive.

Scenario #1, Part 1 Tom is a student who uses a wheelchair. He is enrolled in an industrial design program at a local college. Tom does well in his first year of the program and receives accommodations. But in his second year, Tom cannot access the equipment he needs to use for assignments. The equipment is designed to be used by someone who is standing.

Scenario #1, Part 2 Tom requests the use of a different machine which allows him to use the machine from a seated position. The instructor tells Tom that he can use a different machine, but gives Tom a failing grade on the assignment because he has not demonstrated that he can use the designated equipment.

Scenario #2, Part 1 Molly is a dental hygiene student about to do her practicum. She has a physical disability due to a car accident that affects her motor skills and speech. The college staff express concern that Molly will not be able to complete the practicum due to her “mental challenges”.

Scenario #2, Part 2 Molly requests that the two-week practicum be expanded to four weeks for her so that she can work 4-hour days instead of 8-hour days to accommodate her disabilities. The college staff agree that the practicum can be extended, but do not notify Molly of their decision. Molly thinks the accommodation cannot be provided and fails the practicum for disability-related reasons when she attempts to work 8 hours a day.

Scenario 3 Student with autism has a companion working dog. Dog is trained and ready to assist student in the classroom. Other student at the school has an allergy to dogs? Where does school administration owe the duty to accommodate?

THANK YOU The information provided in these presentation materials is not intended to be legal advice. Consult a lawyer or legal worker if you need legal advice on a specific matter. The information in the presentation materials are current as of the date of the presentation.