Hindsight and Meaningful Inquiry
Want to get the school moving on providing your child supports?
Remove their hindsight defence and trigger the duty to accommodate.
Why does the school want a defence at all? To avoid a finding of discrimination if a parent was to ever bring their case to a hearing at the BC Human Rights Tribunal.
If they know we could be successful at a human rights tribunal hearing, they will be much more motivated to provide your child the supports they need NOW. This is because they want to reduce the damage period. They are always focused on reducing the scope of your complaint and minimizing the harm.
Removing their hindsight defence and triggering meaningful inquiry is key for our children.
This decision explains what the hindsight defence is.
Student by Parent v. School District BCHRT 237
[99] Next, in B v. School District, 2019 BCHRT 170, the evidence supported that the school district provided the child with the recommended supports and accommodations. The Tribunal found that it was “only with hindsight” that it was possible to say that the child could have benefited from more support: para. 81. It dismissed the complaint in part because there was insufficient evidence to demonstrate that the school district reasonably ought to have known that the child required more: para. 98. In contrast here, I have found that the District had sufficient information to trigger some kind of inquiry or response beyond asking the Student how she was doing and, assuming the counsellor did this, advising of available supports.
They may claim, “We didn’t know.” If they didn’t know your child needed more support or ought to have known they needed more support, they will escape responsibility. When they are aware, they must investigate.
So you know what that means.
Parent(s)/guardians need to be VERY communicative with the school and tell them that:
- Tell them your child is struggling.
- Tell them your child’s struggle is connected to school.
- Explain how your child is struggling.
- Are they crying at home?
- Are they refusing to attend?
- Are they melting down after school?
- Do you have examples of homework or school work to show them as evidence?
- Explain how their struggle is connected to their disability.
So, we need to start this off in an email. We need to document it.
Whether they respond to the emails we send is another blog. But we need to build evidence that they were VERY aware, in case they think they can claim they didn’t know. It’s amazing how the defence of “oh we didn’t know, oh I was confused, oh I think we had a misunderstanding, I didn’t realize that…”. We need to be so crystal clear that we don’t give them any wiggle room to say “we didn’t know”.
Human Rights Decisions – Education
There are two human rights decisions that, when put together, are powerful. Both parents self-represented themselves at the BC Human Rights Tribunal.
They must investigate when we tell them our child is struggling. – Meaningful inquiry.
Student by Parent v. School District BCHRT 237
[100] In short, I agree with the District that the Parent and Student were obliged to bring forward information relating to accommodation. The Parent did that, when she communicated that the Student had anxiety and trichotillomania and that school was taking a significant toll on her physical and mental health. That information should have been enough to prompt a meaningful inquiry by the school to identify what was triggering the Student’s symptoms and what supports or accommodations may be appropriate to ensure she was able to meaningfully and equitably access her education. The failure to take that step was, in my view, not reasonable. As a result, the disability-related impacts on the Student, arising from conditions in her Language 10 class between April 24 and June 27, 2019, have not been justified and violate s. 8 of the Human Rights Code.
[104] In sum, I have found that the conditions in the Student’s grade 8 Language 10 class exacerbated the Student’s anxiety and trichotillomania, and that the District failed to take reasonable steps to investigate and address those conditions during the period between April 24, 2019, and June 27, 2019 (the last day of school). I find this is a violation of s. 8 of the Human Rights Code, and warrants a remedy, which I address below.
They aren’t allowed to give up when things aren’t working well. They must review and adapt their approaches.
X by Y v. Board of Education of School District No. Z, 2024 BCHRT 72
[120] Ultimately, on a balance of probabilities, I am satisfied that the District discharged its duty to accommodate X in his grade 2 year by reviewing the Diagnosis Report, developing an IEP, making various support people and strategies available that were incorporated into the classroom and outside, reviewing progress and changes, and adapting its approach in response……
Meaningful Inquiry – Duty to Accommodate
By communicating that our child is struggling, we will trigger MEANINGFUL INQUIRY. You are triggering the duty to accommodate.
It is very
very
very
very important that we are communicating with them. This is how we block a hindsight defence.
Schools are increasingly not wanting to put communication in emails, and instead, they want phone calls or meetings. They may say that it is easier to resolve issues through communicating in person/phone. That may be true. But it is not lost on us that it also doesn’t create any documentation.
But that doesn’t stop us from sending emails to create a paper trail and document what is happening. You can create a summary of the minute and put in the email, “Please let me know if I have misunderstood anything or if you need to clarify anything I have written.”
So send those emails. cc: the main people responsible. Principals and LSS teachers for IEP implementation. Each person you cc: in an email could be a potential witness in a hearing.
Just keep sending those emails and create that paper trail. Communicating is part of the collaboration process in the duty to accommodate. So, you are just fulfilling your responsibility in the process.
Any diagnosis you have received from a doctor, even if it didn’t come from a psychoeducational assessment, I suggest you have the doctor write a letter and ask the school to put it in your child’s file. Also, you may want to ask them how this is going to be communicated out to the staff, so they are aware. Anything you can do to provide documentation on a diagnosis locks them into the duty to accommodate.
Blogs on Creating a Document Trail
Documentation
Improper Conduct – Hiding Disclosure – What documents to ask for
Why is Documentation so Important?
Evidence of Harm. Effective advocacy in Education
How to Gather Evidence
Blogs on How to Communicate with the School
Communication
What is the Ask? Email writing for School Advocacy
5 Rules on how to be Untouchable
The Use of Delay
Defamation. You Said What?
Liability in Education
Email Q & A
How to Gather Evidence
Strong Advocacy = Written Authority
