Children with Special Needs

All students are entitled to receive the same benefits of an education. That means that school programs must be delivered in a way that is conducive to each student’s learning in a way that allows the student to fulfill his or her potential. Where a child has special needs, be they physical disabilities, developmental delays, mental health concerns or learning disabilities, receiving an education in the same way as other students, may not allow that child to get the same benefit from the school education and experience. Schools identify these students as “exceptional pupils” and develop programs that give the child with special needs, the same opportunity to learn as much and succeed in school, as all the other students. These special programs are called “accommodations” and schools are required to provide accomodations to the point of “undue hardship.”

The right to receive these accommodations applies to both students in public schools and students in private schools once the school has accepted the student. However, the rights can be more extensive, and more enforceable in a publicly funded school for three reasons. First, students in publicly funded schools have the right to have equal access to educational programs under both the Canadian Charter of Rights and Freedoms and the Ontario Human Rights Code, whereas private schools are only subject to the Ontario Human Rights Code. Second, The Education Act mandates more programs for exceptional students in publicly funded schools. Third, the point of undue hardship can be much higher in publicly funded schools, which have access to government resources to meet student’s needs, while private schools may only have access to the money paid by student tuition. To learn more about children’s rights in school, listen to the podcast on the left to hear a human rights lawyer provide lots of useful information for parents of children with disabilities. The second podcast explains the legal options that parents (and students) can pursue to ensure a student with special needs gets the help that he or she needs while at school. 

One important thing to remember is the educational professionals at the school are the people who have the training, skills, and experience to select or develop programs for students with special needs. The courts and the Human Rights Tribunal will not tell a school that is accommodating an exceptional pupil to change the type of accommodation unless it is absolutely clear, beyond any doubt, that the accommodation provided is not addressing the student’s needs. Parents, guardians, or student advocates, do not get to pick what type of accommodation a student receives, although parents and guardians are certainly entitled to be heard in the Student Identification and Placement process. If a parent disagrees with the way that programming is provided to a student with identified special needs, it is up to the parent to gather the evidence, usually professional assessments, to show what the school is doing is wrong.

There is an appeal process for parents to appeal what the school identifies as the special need, and to appeal the placement, which is what type of classroom the student is in. However, there is no set appeal process to appeal the specific education plans that a school puts in place to teach the child. Getting a school to change the way it is teaching a particular child requires a demonstration that the child is clearly not benefitting from the current plan or that another plan would definitely be better. That is not an easy task.

A shocking statistic is that children who are receiving special education services in public schools represent less than nine percent of the total student population. However, children with special education needs make up almost 50% of all students who are suspended or expelled from school. Those statistics suggest that many suspensions or expulsions may be a form of discrimination as they result from a school being unable, or unwilling, to meet a child’s needs as the Education Act and Ontario Human Rights Code require. Fighting a suspension or expulsion may not only be appropriate, but it may bring to light how a school has failed a child with special needs. If your child is facing discipline, check out this page, or better yet, get help from a top education lawyer.

An education lawyer, who knows how the law works in detail, and how to present a case and advocate for a student in the system, can provide a lot of help to parents in taking the right steps to ensure their child gets the education that he or she needs. You can set up a consultation with Ontario Education Lawyer, John Schuman, using the phone number at the top of this page, or the contact form at the bottom. John has lots of experience helping special needs children in difficult situations.

Contact Us

If your child has needs and their school is not meeting them, is important to speak to an education lawyer immediately. There are lots of options that can force the school to provide the necessary help to your child so that he or she can succeed in school. To contact Ontario Education Lawyer, John Schuman, call 416-446-5869, email him, off the page, or use the form.