In a decision rendered on November 9, 2012, the Supreme Court of Canada unanimously held that a district school board's decision to terminate a program that provided intensive services and individualized assistance to students with severe learning disabilities discriminated against one of its dyslexic students.
The decision in Moore v. British Columbia (Education)1 requires the North Vancouver School District (the "District") to compensate the student's family for the tuition they paid to have him attend private elementary and high schools where he received individualized instruction, half his transportation costs to and from those schools,2 and $10,000 for injury to the student's "dignity, feelings and self-respect." The decision has district school boards and educators across the country wondering "how much is enough" when it comes to accommodating students with learning disabilities.
To place the decision in its proper context, it is important to note the following facts, as found by the Court:
- Jeffrey Moore was a severely dyslexic public school student in the North Vancouver School District. He was first assessed in kindergarten, and was given 15 minutes of individual help from a teaching aide three times a week. He continued to fall behind and, by Grade One, was attending a Learning Assistance Centre three times a week, for half hour sessions with a learning assistance teacher. He also received two 40-minute sessions from a volunteer tutor each week. His parents hired a private tutor for additional assistance.
- When Jeffrey was in Grade Two, he was experiencing worsening headaches. A neurologist concluded that he was under significant stress, which could be improved by addressing his learning difficulties. He was examined by the District's psychologist, who recommended that he attend the local Diagnostic Centre to assist him with his severe dyslexia. The Diagnostic Centre provided intensive services and individualized assistance to students with severe learning disabilities. The psychologist specifically found that Jeffrey could not receive the remediation he required at his school.
- The District closed the Diagnostic Centre before Jeffrey could begin to attend it. The decision to close the Centre was based purely on financial considerations. The District had been running budgetary deficits for a number of years, and had experienced declining equalization grants. It had repeatedly asked the Province of British Columbia for additional funding, but received no additional money. While there was no serious dispute that the District's financial circumstances were compelling, there was no evidence that the District had considered any reasonable alternatives for meeting the needs of students with severe learning disabilities before closing the Diagnostic Centre.
- The District psychologist and the teaching aide who had been working with Jeffrey told the Moore family that because the Diagnostic Centre was being closed, Jeffrey could not obtain the intensive remediation that he needed in the District's public schools, and that the necessary instruction would only be available in a local private school that specialized in teaching children who had learning disabilities.
- The private school program was not available until Grade Four. Accordingly, Jeffrey completed Grade Three in the public school, where he received every week: two 30-minute sessions of individual assistance in the Learning Assistance Centre; two 40-minute periods of individual assistance with a tutor at the Learning Assistance Centre; and four 40-minute sessions with an aide, primarily in the classroom.
- Beginning in Grade Four, Jeffrey's parents enrolled him in specialized private schools, where he received intensive remedial instruction and his reading skills improved significantly, such that by the end of Grade Seven, he was reading at a Grade Five level.
- Jeffrey's father filed a human rights complaint against the District and the British Columbia Ministry of Education, alleging that Jeffrey had been discriminated against contrary to section 8 of the British Columbia Human Rights Code3 which defines discrimination to include situations in which a "person ... without a bona fide and reasonable justification ... den[ies] to a person or class of persons any accommodation, service or facility customarily available to the public" on the basis of a prohibited ground (in this case, disability). The B.C. Human Rights Tribunal found discrimination and awarded a wide range of remedies against both the District and the Province. This result was upheld on appeal to the Supreme Court of British Columbia, but overturned by the B.C. Court of Appeal.
THE SUPREME COURT'S DECISION
The Supreme Court of Canada reinstated the Human Rights Tribunal's finding that Jeffrey had been discriminated against as a result of the closure of the Diagnostic Centre. At the same time, the Court was critical of the fact that the Tribunal had gone beyond a straightforward consideration of Jeffrey's complaint, and had made findings and granted remedies against the Province. In the Court's words: "The Tribunal, with great respect, is an adjudicator of the particular claim that is before it, not a Royal Commission."
The Court did not break any significant new ground in terms of the legal test it applied to the facts of this case. It reiterated the standard test for discrimination in the provision of a service, which requires complainants to show that:
(i) They have a characteristic protected from discrimination under a Human Rights Code;
(ii) They have experienced an adverse impact with respect to the service; and
(iii) The protected characteristic was a factor in the adverse impact.
If a complainant can establish these three factors, the burden of proof shifts to the respondent to justify the conduct or practice within the framework of exemptions available under human rights legislation. If the respondent is unable to do so, the complainant will have proved discrimination.
In this case, the first requirement was easily met, as there was no dispute that dyslexia constituted a disability for the purposes of human rights legislation.
The only issue that arose with respect to the second requirement (determining whether Jeffrey had experienced an adverse impact with respect to a service) concerned the proper definition of the service educational "service" that Jeffrey received to that received by students without learning disabilities. Applying this comparison, the Tribunal found that Jeffrey had not received an education equivalent to that of other students. By contrast, the B.C. Court of Appeal defined the service narrowly as "special education", and compared Jeffrey's experience to that of other students with learning disabilities, concluding that he had not been discriminated against.
The Supreme Court of Canada rejected the Court of Appeal's approach, finding that comparing students with learning disabilities only to similarly-situated students would be equivalent to the "separate but equal" approach used to justify racial segregation in education in parts of the United States prior to the landmark decision in Brown v. Board of Education of Topeka.4 As pointed out by the Supreme Court of Canada, "Comparing Jeffrey only with other special needs students would mean that the District could cut all special needs programs and yet be immune from a claim for discrimination." The Court noted that the preamble to British Columbia's School Act acknowledged that all children are entitled to develop their individual potential and to acquire the knowledge, skills and attitudes needed to contribute to a healthy, democratic and pluralistic society and prosperous and sustainable economy. In light of this preamble, the Court found that: "Adequate special education, therefore, is not a dispensable luxury."
In light of the fact that various District employees had told the Moore family that Jeffrey required intensive remediation, which would not be available in the public school system as a result of the closure of the Diagnostic Centre, it is not surprising that the Court concluded that the remediation he was offered by the school was not sufficient to ensure "meaningful access" to education.
Having concluded that Jeffrey experienced an adverse impact with respect to his education, the Court had little difficulty in concluding this adverse impact was a result of his dyslexia.
As a result, Jeffrey had established prima facie discrimination, and the onus shifted to the District to attempt to justify the discrimination as reasonable in the circumstances. The Court found that the discrimination could not be justified because the District had decided to close the Diagnostic Centre without: (i) knowing how the needs of students like Jeffrey would be addressed; (ii) undertaking a needs-based analysis; (iii) considering what might replace the Diagnostic Centre; or (iv) assessing the effect of the closure on students. In fact, when the District's Board of Trustees approved the budget that closed the Diagnostic Centre, the Minutes indicated that all of the Trustees had indicated that they were adopting the bylaw as it was required by legislation and not because they believed it met the needs of the students.
The Court acknowledged that the District's budgetary constraints constituted a relevant consideration and that it was difficult for administrators to implement education policy in the face of severe fiscal limitations. However, the fact that the District had undertaken "no assessment, financial or otherwise, of what alternatives were or could be reasonably available to accommodate special needs students if the Diagnostic were closed" proved fatal to its case. As the Court observed, "in order to decide that it had no other choice, it had at least to consider what those other choices were."5
The Court therefore upheld the Tribunal's finding of discrimination against the District and the award of damages. It did not, however, uphold the finding of discrimination against the Province, or the various forms of systemic relief that the Tribunal had ordered, which the Court found to fall outside the Tribunal's mandate, which was limited to considering Jeffrey's individual complaint.
THE IMPLICATIONS OF THE DECISION
While the Supreme Court of Canada's decision in Moore could be viewed as signalling an increased judicial willingness to interfere in the allocation of resources on the part of district school boards, the case is unique in a number of ways that may limit its future applicability as a precedent:
- Jeffrey's learning disability was unusually severe. In fact, the District's psychologist described his case as "one of the worst she had ever seen in her many years of experience".
- The Moore family were exceptionally determined litigants. They were willing to participate in a 43 day hearing and in appeals in three levels of court, and continue the litigation for over 11 years (by which time Jeffrey was 25 years old) in order to get a result.
- In this case, the inadequacy of the accommodations that had been made for Jeffrey was unusually clear, in that the District, through its employees, had effectively admitted that Jeffrey could not receive an adequate education through the public school system.
- By the same token, it was unusually easy for the Court to conclude that the District's conduct could not be justified, because the evidence was that the District had not even considered alternatives before closing the Diagnostic Centre. Had the District carefully weighed various alternatives and come to a reasoned, justifiable decision to close the Centre, the outcome of the case might well have been a different one.
The lesson to be learned from the Moore case is that school boards must make reasonable efforts to ensure that students with learning disabilities are granted meaningful access to education, and must carefully weigh all available alternatives before limiting programs for students with disabilities on the basis of budgetary constraints.
1 2012 SCC 61.
2 The tuition fees and transportation costs have been reported as totalling approximately $100,000 (Steffenhagen, Janet. "North Vancouver father wins long court battle on behalf of dyslexic son." The Vancouver Sun. 9 Nov. 2012. Web.).
3 R.S.B.C. 1996, c. 210.
4 347 U.S. 483 (1954).
5 The Court was particularly critical of the fact that the District had disproportionately made cuts to special needs programs, while retaining other programs of similar costs, such as an "Outdoor School", consisting of an outdoor campus where students learned about community and the environment.About BLG
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