1. 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

2. 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:
ARCH Disability Law Centre, Toronto, Canada

3. 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

4. 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

5. 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

6. 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

7. 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

8. 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

9. 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

10. 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

11. 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

12. 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

13. 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