The question of how far a school board must go to accommodate a student’s right to an inclusive education was at the heart of a recent Human Rights Tribunal decision involving a Guelph student with autism.
Lisa Kahn of Guelph filed a human rights complaint on behalf of her autistic son Grayson, claiming he is being discriminated against with respect to the provision of educational services.
Her application was denied earlier this month by the Human Rights Tribunal of Ontario.
It was filed last December alleging discrimination by the Upper Grand District School Board.
Grayson has Autism Spectrum Disorder (ASD) and a learning disability. His mother said the UGDSB is not providing the necessary accommodations for Grayson, and that there is a type of accommodation that would allow him to spend at least some of the school day in school, which is her goal.
The UGDSB said that it fulfilled its obligations to accommodate the applicant to the point of undue hardship and that its efforts to provide accommodation were unsuccessful in part because of the failure of Grayson’s mother to cooperate with those accommodations.
Grayson was in Grade 2 French immersion when there were several violent incidents, some involving students and school staff being hit, kicked and/or pushed, said the written decision.
At one point his education assistant suffered injuries, including a concussion, and later developed PTSD. Another education assistant remains off work because of stress related to the situation and an administrative assistant at the school missed work because of stress and has since moved to another school, the judgement states.
It also said the school received many complaints from other parents fearing for the safety of their children.
The teachers’ union got involved, threatening a refusal of unsafe work after the injuries to the education assistant.
When an accommodation plan could not be agreed upon, Grayson was expelled from the French immersion school last November and placed in his regular home school, but he has not attended that school.
Grayson’s mother argued that there is a level of accommodation that would help Grayson but that the school board was not willing to provide it.
The Human Rights Tribunal hearing took place over nine days, hearing from a total of 18 witnesses.
The UGDSB declined to comment on the ruling to GuelphToday.
Lisa Kahn's lawyer David Baker said in an email that “the Kahn family will be seeking to have the Tribunal’s decision reviewed in the Divisional Court of the Superior Court of Ontario.”
The Human Rights Tribunal would normally keep the identity of litigants of minors anonymous, but Lisa Kahn successfully argued that their names be made public because it was in the public interest and that there had already been significant media attention.
The Kahn story was previously detailed in an article published in the Globe and Mail.
“The applicant’s litigation guardian argues the respondent failed to provide the academic program and supports Grayson needed and that this failure was the cause of his dysregulation,” said the decision, written by adjudicator Brenda Bowlby.
The school board said it offered “reasonable accommodations” and cited other reasons that the school situation didn’t work for Grayson, including his mother’s behaviour, the fact he was in a French language program and a possibly undiagnosed disability.
Various methods were implemented or recommended by the UGSB. Some were refused by Grayson’s mother, the ruling said.
A level and type of accommodation requested by the Kahns was not fully agreed to by the school board. Nor would it agree to the role of a private contractor in delivering the accommodation for legal reasons and established Ministry of Education guidelines.
Lisa Kahn then requested the school board pay for Grayson’s schooling at a private school for students with autism.
There was also disagreement over the type of therapy the family wanted for Grayson, which the tribunal admitted was at the root of the case.
Lisa Kahn argues that there is a level of accommodation that would help Grayson return to the classroom but that the board is unwilling, or unable, to supply it.
Of paramount importance to her is that Grayson receive an education that is inclusive, and not solely home-based.
The respondent said that it fulfilled its obligations to accommodate the applicant to the point of undue hardship and that its efforts to provide accommodation were unsuccessful because of the failure of the applicant’s mother, the litigation guardian, to cooperate.
Grayson’s mother was accused of several outbursts at the school, including being verbally abusive to staff.
Lisa Kahn said she was fearing for her son’s safety while at school.
In rejecting the application, the adjudicator noted that any future success in getting Grayson back in a classroom setting hinges on the two parties finding a way to work together.
“I cannot conclude without observing that if Grayson is to return to one of the respondent’s schools, it will be critical that the parties find a way to put aside their differences and work cooperatively and collaboratively towards Grayson’s success at school,” the judgement reads.
