The decision ended a three-year legal fight by Emily Eaton and her parents against the Brant County Board of Education to have Emily integrated into the regular class at her neighbourhood school. In its decision, the Court of Appeal, the highest court in Ontario, recognized that under the Canadian Charter of Rights and Freedoms, segregating children with disabilities in special classes against their parents’ wishes violates their equality rights under section 15(1)* of the Charter. The Brant County Board of Education has 60 days from the date of the decision to bring a motion for leave to appeal to the Supreme Court of Canada.
Emily, who has cerebral palsy, is 11 years old and lives in the rural community of Burford, near Brantford, Ontario. She spent kindergarten and grade one at Maple Avenue School in a regular class. However, during grade one, the school decided that Emily should be sent to a special class for students with disabilities. Her principal requested an Identification Placement and Review Committee (IPRC), provided for under Ontario’s Education Act, to change her placement from the regular class to a segregated class for students with disabilities at a school in Brantford. Emily’s teachers and other school officials told the IPRC that they did not feel they could meet her needs in the regular classroom, and that, because of Emily’s difficulty communicating, they weren’t able to assess whether or not she was learning.
Emily’s parents strongly believed that their daughter’s needs could be met in the regular class. They felt that nothing could be done in the special class to meet her needs that could not be done just as well in the regular classroom. The Eatons also believed that their daughter would be psychologically harmed if she was sent to a segregated class — but the IPRC agreed with the school.
The Eatons refused to allow their daughter to be moved to a segregated class. They appealed to the Special Education Appeal Board, which upheld the IPRC. From there, they appealed the case, under provisions contained in the Education Act, to a Special Education Tribunal. At the tribunal hearing, the Eatons called extensive expert evidence about the benefits of integration and the potential harm of segregation, and testified about why they believed Emily should be in the regular class. Central to their position was the belief that in order to be truly part of her community, Emily needed to go to her neighbourhood school with her peers. The school board’s witnesses testified that they were unable to assess whether Emily was learning in the regular class, and stated that they felt the special class would be “better” for her.
The tribunal rejected the Eatons’ arguments and ordered that Emily be placed in the special class. In its reasoning, the tribunal stated that Emily’s needs were not being met in the regular class, and that it was in her “best interests” to be placed in a segregated class. However, the tribunal did not make any findings about what would be done in the special class to meet Emily’s needs that could not be done in the regular class.
The decision was released in November, 1993, when Emily was in grade three. Her parents immediately launched an appeal and, rather than allow their daughter to be segregated, moved Emily to a Catholic school which had a fully integrated program, pending the outcome of the court case.
The Eatons were unsuccessful in trying to overturn the tribunal’s decision at the first level of judicial review, the Ontario Divisional Court. In December, 1994, they went to the Court of Appeal for Ontario, which entailed three full days of legal argument. In addition to submissions from the Eatons’ and the school board’s lawyers, the Court heard from the Attorney General of Ontario, the Canadian Disability Rights Council and the Ontario Association for Community Living, all of which had intervened in the case.
In a decision which will have a far-reaching impact on the education rights of children with disabilities, the Court of Appeal overturned the Divisional Court’s decision and found in favour of Emily and her parents. The Court held that forcibly segregating a child because of her disability violates her equality rights under Section 15(1) of the Canadian Charter of Rights and Freedoms. The Court also considered the historical reality of exclusion experienced by persons with disabilities in our society, recognizing that the “history of discrimination against disabled persons, which the Charter sought to redress and prevent, is a history of exclusion.” The Court found that by excluding Emily from the regular class and denying her the opportunity to go to her neighbourhood school with children her own age, the school board had discriminated against her and violated her Charter rights.
In coming to this decision, the Court recognized that being forced to attend a segregated class resulted in discrimination, and explicitly identified the negative, stigmatizing effects of being forcibly excluded. The Court also held that making distinctions on the basis of disability is no less discriminatory than distinctions based on race or gender.
In addition to acknowledging the harmful effects of segregation, the Court also recognized the benefits of including children like Emily in the regular class and the importance of inclusion in the school system to the success of community living. It stated that: “Inclusion into the main school population is a benefit to Emily because without it, she would have few opportunities to learn how other children work and how they live. And they will not learn that she can live with them and they with her.” This concept, in fact, reflects the Eatons’ own reasons for wanting Emily to be integrated. As Clayton Eaton testified before the Special Education Tribunal:
“I think our community includes [Emily’s] neighbourhood school. And the people who live in our community, the children that she will grow up with and [who] will be part of her community when she’s an adult, go to that school. They need to have an understanding of Emily, they need to know Emily, they need to be integrated with Emily now… We can’t bring her back at the end of her school career and plug her into that community. She has to be there now and grow up with those children and those children have to grow up with her…”
The Court concluded that the Education Act itself violates the Charter because it gives school boards the discretion to place children with disabilities in segregated classes against their parents’ wishes. The Court therefore ordered that a provision be read into the Education Act preventing school boards from placing children with disabilities in segregated classes against their parents’ wishes except as a last resort. School boards must provide the least segregated placement possible which meets the child’s needs, and, before moving a child over a parent’s objection, a board must show why a less exclusionary placement can’t meet the child’s needs. The Court held that the tribunal had not applied the Charter in this way, and had not held the school board to the standards required by the Charter. The Court ordered that Emily was therefore entitled to a new tribunal hearing before a different panel of decision makers in order to have her educational placement determined in accordance with her equality rights.
This case will have a major impact on the educational rights of children with disabilities. The Court of Appeal’s decision will apply to all school boards in the province of Ontario, and will require those school boards to comply with Charter rights of children with disabilities. The case will also have a significant impact on the education systems of other provinces and on the development and recognition of disability rights generally, not just for education, but in all areas of life.
* (NOTE: Section 15(1) of the Canadian Charter of Rights and Freedoms states: “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”