A Human Rights Approach to Inclusive Education: Canadian Legal Perspectives Kerri Joffe and Robert Lattanzio ARCH Disability Law Centre Education for All 2nd International Conference University of Warsaw September 22-25, 2009

About ARCH Disability Law Centre Only community legal aid clinic in Canada solely dedicated to defending and advancing equality rights of people with disabilities ARCH’s work includes: Representing individuals and disability organizations in precedent-setting cases Provide legal services to people with disabilities who live in poverty Education to people with disabilities and legal profession on disability rights Law reform and policy submissions on legislation, regulation, policy and practices that affect people with disabilities Community development More information: www.archdisabilitylaw.ca ---------------------------------------------------------------------------------------------------------------------- ARCH Disability Law Centre, Toronto, Canada

Canadian Social Context Primary and secondary education is publicly funded Students with disabilities attend public schools, publicly funded segregated schools, and private schools In 2006, 4.6% of Canadian children between 5-14 had one or more disabilities In 2006, over 40% of children with disabilities received some form of special education: about 40% received full-time special education and almost half at special education schools 1/4 of children with disabilities had an unmet need for accommodation at school and nearly half of parents reported difficulty getting accommodation for their child at school Difficulty obtaining accommodation most prevalent among parents of children with emotional, psychological or behavioural disabilities Participation and Activity Limitation Survey 2006: A Profile of Education for Children with Disabilities in Canada ---------------------------------------------------------------------------------------------------------------------- ARCH Disability Law Centre, Toronto, Canada

Canadian Legal Context Provincial governments have jurisdiction over education Provincial governments have jurisdiction over provincial human rights issues BOTH education law and human rights law apply within education context In Ontario new accessibility legislation may remove barriers to delivery of education services Canadian Charter of Rights and Freedoms applies to the actions of government and legislation with respect to education Canada is a signatory to the UN Convention on the Rights of Persons with Disabilities ---------------------------------------------------------------------------------------------------------------------- ARCH Disability Law Centre, Toronto, Canada

Ontario’s Education Act Act applies to publicly funded primary and secondary education Provides for Identification and Placement process Students’ disabilities are identified according to predetermined categories of disability Student then placed in educational program Appeal process for parents and students who disagree with placement decision Act does not require inclusion in regular class placement Individual Education Plan (IEP) must be developed following placement decision Act does not provide for enforcement of individual accommodations ---------------------------------------------------------------------------------------------------------------------- ARCH Disability Law Centre, Toronto, Canada

Experiences of Students with Disabilities in Ontario Schools* Students denied timely and appropriate accommodation Students denied interim or alternate accommodation Students and parents denied participatory rights in accommodation identification and development Students in regular class placement in elementary school pressured to transition to segregated placement in secondary school Students with intellectual disabilities are disproportionately impacted * These examples are drawn from ARCH’s work with parents and students with disabilities ---------------------------------------------------------------------------------------------------------------------- ARCH Disability Law Centre, Toronto, Canada

Principles of a Human Rights Approach Human rights principles for people with disabilities Equality is a fundamental principle of the human rights approach for people with disabilities At the heart of equality is the value of inclusion Equality requires that inclusion be considered in the first instance, and not as a belated measure, and that socially constructed barriers be removed Persons with disabilities, including children, have rights and obligations of full citizenship ---------------------------------------------------------------------------------------------------------------------- ARCH Disability Law Centre, Toronto, Canada

Human Rights Approach in Education Same principles apply to students with disabilities in education context: In education, equality means that students with disabilities, like other students, have a right to receive education services in a non-discriminatory fashion Creating inclusive school cultures achieves equality and enhances citizenship Equality requires that inclusion be considered in the first instance Socially constructed barriers are addressed through individual accommodation and universal design Full citizenship includes access to individualized, appropriate accommodations ---------------------------------------------------------------------------------------------------------------------- ARCH Disability Law Centre, Toronto, Canada

Individual Accommodation Ontario’s Human Rights Code prohibits discrimination on the basis of disability in the context of education services Articles 5 and 24 of the UN Convention also prohibit discrimination in education Disability accommodations must be appropriate, individualized and respect the dignity of the student Disability accommodations must be provided unless undue hardship is proven Undue hardship under Ontario’s Human Rights Code consists of costs; outside sources of funding, if any; and health and safety requirements, if any Duty to accommodate is one tool to achieve equality and involves individualization, inclusion and respect for dignity ---------------------------------------------------------------------------------------------------------------------- ARCH Disability Law Centre, Toronto, Canada

Universal Design Universal Design is the design of products and environments to be usable by all peoples, without the need for adaptation or specialized design. The intent of universal design is to simplify life for everyone by making products, communications, and the built environment more usable by as many people as possible at little or no extra cost. Universal design benefits people of all ages and abilities. The Center for Universal Design, North Carolina State University "Universal design" means the design of products, environments, programmes and services to be usable by all people, to the greatest extent possible, without the need for adaptation or specialized design. "Universal design" shall not exclude assistive devices for particular groups of persons with disabilities where this is needed. United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) G.A. Res. 61st Sess., UN Doc. A/res/61/106 (2006). Art. 2 ---------------------------------------------------------------------------------------------------------------------- ARCH Disability Law Centre, Toronto, Canada

Universal Design: Key Element in Human Rights Approach Universal design is a practical approach to achieving equality: facilitates the creation of inclusive societies Universal design enables the realization of full citizenship rights and obligations: design choices must reflect strengths and needs of all citizens Universal design enables people with disabilities to participate in society in a manner that most respects their dignity Universal design decreases the need for individual accommodations ---------------------------------------------------------------------------------------------------------------------- ARCH Disability Law Centre, Toronto, Canada

Universal Design in Education Universal design is not limited to architecture and is increasingly applied in many contexts. In education, universal design can be applied to the built environment, policies, standards, processes, communication, and pedagogy Through universal design a human rights approach can be effective in achieving inclusive school cultures A true adoption of universal design principles in all facets of school life not only ensures that future barriers are prevented from arising, but sends a clear message to the entire community that inclusion of all persons is the prime objective Universal design does not alleviate obligation to accommodate individual students, when required ---------------------------------------------------------------------------------------------------------------------- ARCH Disability Law Centre, Toronto, Canada

Conclusion Move towards a human rights approach to education is necessary in order to advance and achieve inclusion Essential to a human rights approach to education are the principles of equality, inclusion, citizenship and universal design Universal design is also a practical means for achieving equality and inclusion Greater attention should be given to developing universally designed built environments, legislation, policies, standards, processes, communication and pedagogy ---------------------------------------------------------------------------------------------------------------------- ARCH Disability Law Centre, Toronto, Canada