Two years ago, in the month of July, I wrote a six-part series on the Duty to Accommodate.
Part 1 – The Power of the Human Rights Code
Part 2 (a) – The Discrimination Test
Part 2 (b) – The Reasonable Justification Test
Part 3 – Meaningful Inquiry
Part 4 – Duty to Consult
Part 5 – Duty to Facilitate
Part 6 – Pulling it All Together
My goal was to make it more accessible and show people, through the trail of case law/tribunal decisions and Human Rights legislation (written authority), the rights their child actually have. Not just what the school district tells them – which is more focused on their own administrative processes and how they compartmentalize students administratively.
Most people when interacting with tribunals and specialized courts are self-represented. Law is not for the highfalutin lawyers. Law is for everyone. Knowing, understanding and applying our rights is a part of life, like grocery shopping and laundry. When we expect people to uphold our rights it does not mean we will automatically be engaging with lawyers either. School employees are duty bearers. Students are rights holders. Schools have the obligation and responsibility to uphold the students rights. (They just may not realize this.)
The pros (+) of the Human Rights Code:
- It supersedes all school legislation, school board of education policy, administrative procedures and teacher classroom autonomy, etc, when in conflict (discrimination occurs). It is above all laws and policy – so powerful.
- Every child has the legal right to be accommodated and receive an education.
- It can create movement sometimes when nothing else has because of the accountability mechanism – human rights complaint process – the damage period.
- The school knows if you file a complaint, they will have to justify or prove with evidence that they have accommodated your child up to the point of undue hardship.
The cons (-):
- It only goes up to reasonable accommodations, not ideal or preferred accommodations.
- The school is considered the experts, and they get to decide the accommodations, not you. You are there for consultation, but you are not the final decision maker.
- If you don’t want your human rights complaint dismissed, you will need to facilitate reasonable accommodations whether you agree or not.
- They get to decide class placement in “the best interest of the child,” not the parents’ wishes.
Pro (+) & Con (-)
- Your rights are defined by case law (this is both very good and challenging). It’s how your rights are defined.
- You are co-parenting with the government. For some reasons, this is fabulous, like the case law examples in the Co-parenting blog. For other parents they are going to find this frustrating, especially when you feel that you know more about disability and your child’s disability than the educators who are sitting in front of you.
The Duty to Accommodate will get your child into the classroom with barriers removed, which is HUGE. However, the school, with limited training in disability, has a lot of decision-making power and their own ideas on how to assess the functioning level of your child’s disability and remove those barriers. Add in layers of ableism with myths & stereotypes about disability.
Many teachers are still not aware that:
- Accommodations are not rewards. No child needs to earn their accommodations with good behaviour.
- They must follow a child’s IEP. It’s not optional or a nice to have or when there is time.
- The Human Rights Code supersedes teacher classroom autonomy.
Parents are also struggling with educators not following their child’s IEP. There is, after internal advocacy, an accountability mechanism for that. Teachers’ standards are also a very important tool.
BUT….as I digress….
An important part of applying the duty to accommodate, after learning the language for email communication, is knowing where to focus your energy and what to focus on. This is a marathon, not a sprint. If you start taking extra side trips along the running path that are unnecessary and will lead to no where, you will exhaust yourself and deplete your capacity faster. You will burnout constantly trying to scale walls that are unscalable.
What do you focus on?
NEEDS.
You start with their needs. What are they struggling with?
This is how we apply the duty to accommodate.
As a parent, you are witnessing your child’s behaviour and communication at home. Whether they are hiding in their room, crying, having meltdowns after school, what they say, what they don’t say. You feel the energy shifts. The mood changes. The person you knew morphing into someone else. Behaviour is communication. You know your kids in ways that no one else does.
This is where you begin.
Because, since you don’t get to pick the accommodations your child will receive, you focus on the “problem” to be resolved. Which is the area of frustration.
I saw this book online. I haven’t read it. “Fall in love with the problem, not the solution.” It’s actually a book for entrepreneurs. I saw it on some book thread. It was talking about how people create products for life’s problems. An area of frustration. They will invent something that they make into a product and try to sell it to the public because it solves a problem. But if you really want to unleash your creativity, focus on the problem and not get overly attached to your solution.
I thought, wow, this really applies to advocacy, actually. We see the problem (what is not working), and we get attached to our solution. And if PAC, schools, Trustees or other people don’t adopt our solution, then we get incredibly frustrated. But if they don’t adopt our solution, we still have the problem. So toss it back to them. You don’t like my idea. Fine. Solve the problem – remove the barrier. And they need to make “the ramp” go all the way up the stairs, not just halfway.
We can’t tell schools what to do. We are here for consultation. But they are expected and responsible for solving the problem (removing the barrier). There may be multiple solutions. But they need to try and pick the best one (which is what we are here for) for our child and be willing to be flexible and try something else.
Fall in love with the problem, not the solution. In other words, focus on your child’s unmet needs.
Meaningful inquiry —–All you have to do is tell the school that your child is struggling, and this struggle is connected to their disability, and THEY have to investigate and figure this out.
While it is true…..
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Wells v. Manitoba (Human Rights Commission) et al., 2025 MBKB 86
The school must be given some discretion with respect to the specific programming and supports it provided to its students based on medical documentation and ongoing assessments. As subject matter experts in delivering education, it appears that the school would be in the best position to determine how to provide academic accommodation to students in accordance with its assessments and available medical documentations.
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Ok, then people. You want to be the experts. Be the experts. I’ll be here to consult and provide you with information on my child to help you figure out what the best accommodations are. But the responsibility falls on you. It doesn’t matter how fiercely parents advocate or if they don’t advocate at all; the school is still legally required to provide your child with an accessible education.
A quick nod to self-advocacy when it comes to students.
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Student by Parent v. School District BCHRT 237.
[90] Generally, it is the obligation of the person seeking accommodation to bring forward the relevant facts: Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 SCR 970. This can be challenging for children, and especially challenging for children with invisible disabilities. I agree with the Parent that children who require accommodation in their school are in a different situation than adults seeking accommodation. Though they have a role to play in the process, that role will be age and ability-specific, and the burden cannot be on a child to identify and bring forward the facts necessary for their accommodation.
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Note to educators: If you are an educator and you are feeling overwhelmed or that you are not trained or educated enough in the area of disability or science-based reading interventions, you are NOT alone. I am fully aware that the system is setting you up for failure, and you all feel squeezed between a rock and a hard place. Get it. A lot of times, educators don’t know what to do, and they blame the child as their escape hatch. Even kids as young as grade one! For a lot of people, this seems to be a knee-jerk reaction. Is someone telling you to do this? I don’t get it. Communicating with the child is great. Blaming the victim after the fact. Not great. I really hope conversations are happening at union levels, administration levels, and teacher post-secondary levels are having conversations about proper professional development in disability and reading. Nothing from the 1950’s please.
Parents, you don’t need to accept excuses from staff for all the reasons they cannot accommodate your child or their blaming your child for not advocating enough. Staffing issues aren’t your problem. They are responsible for figuring this out. They aren’t allowed to give up on your child. They have to keep revising, monitoring and adapting.
If I were to bestow upon you all of the riches from all of the lands, it would be a support system and the duty to accommodate. Using human rights language does not mean we are foaming at the mouth in attack mode. Advocating for your child’s legal rights can be right in line with being pleasantly persistent. Some parents feel that rights-based language is too aggressive and they don’t want to feel unwelcome at the school. Don’t wait until you are so raging mad you are ready to storm the fortress. Build it into your advocacy from the start. Rights-based language is only aggressive if you make it to be. It can be very preventative. It can be what keeps you out of the human rights complaint process.
The duty to accommodate and accessibility legislation all focus on a disability-related need and removing a barrier.
For example:
Student with ADHD. – Teacher is noticing that your child is continuously not handing in their homework and relays this concern to you.
Disability-related need: Executive function skills that involve planning and memory. Focus; may have missed the instructions. Homework isn’t coming home. When it does come home and is completed, it doesn’t get handed to the teacher in the morning. It’s not because of a personality flaw or a character defect. Always look for how the areas of frustration are connected to disability features. Our kids aren’t lazy or unmotivated. They have neurological reasons for their behaviour and they need accommodations.
Barriers (Physical, Attitudinal, Structural) – Attitudinal & Structural (rules) – teacher feels the students are old enough that they shouldn’t have to prompt kids at the end of the day to remember to bring their homework home. Teacher doesn’t want to specifically ask for homework at the start of the day. They want the kids to put it in the homework bin “independently”. Physical – lack of visual prompts for homework reminders. Child is handwriting down instructions, and the printing is illegible. Parent doesn’t know how to support the child in their homework at home.
Focus on the needs. How does the teacher plan on removing the barriers? How can you manage the classroom and make it more inclusive so everyone is being prompted to take homework home and hand it in?
A parent might jump to the solution and want an EA to check in on them at the beginning and end of the day and be very frustrated when told there is no EA time for their child.
Focus on the need: the teacher needs to remove the barriers and figure out how to get your child’s disability-related needs met. If an EA isn’t available for individual prompting, how can they apply prompts for the whole class and make the supports inclusive to everyone? Maybe the teacher uses their classroom website to post homework to assist with parent support for completion. It’s up to them to figure this out. Maybe the student takes a picture of the instructions with their phone.
They need to remove the barriers and resolve the disability-related unmet needs. They need to consult with you, as you know your child, and figure out what will work for your child.
A KEY part in how we uphold our child’s rights is we DOCUMENT. I won’t regurgitate my documentation blogs here, so take a look through the blog list category.
Applying the duty to accommodate means creating a document trail.
I would argue that you are not engaged with rights-based advocacy if you are not creating documented communication between you and the school. (TIP: you may want a separate email address just for school communication. Never delete anything.)
Applying the duty to accommodate means you are aware of all of the duties under the duty to accommodate, you understand that it’s reasonable accommodations, not ideal, what your role is and the responsibilities of the school. You focus on needs. Unmet needs and barriers.
Generally….
Your role:
- Documenting your consistent communication. Communicate, communicate, communicate.
- Expressing unmet disability-related needs
- Consultation through the IEP process/accommodation meetings
- Whatever excuses the school gives you – they are responsible for figuring this out and resolving the barriers to your child’s disability related needs. Human Rights supersede.
- Be persistent. It will show them that your eyes are on them. Document the progress. What is working and what isn’t.
- Communicating needs is also really important so later they can’t claim hindsight.
School’s role:
- Remove barriers and provide your child with what they need so they can “access their education”.
- They will need to have evidence that they are providing your child with reasonable accommodations and that they are reviewing, adapting and responding to the changing needs of your child, whether you are advocating or not.
- They need to offer an opportunity for meaningful consultation with parents/caregivers.
Key Takeaway
- The duty to accommodate is powerful. (Please read the six-part series as your foundation.)
- It’s not going to get you 100% of what you want – it’s how your child’s rights are defined. School gets final decision power. “Reasonable” accommodations. Are they making reasonable decisions?
- Focus on your child’s needs. It doesn’t matter if they get a designation or an IEP. The schools’ obligations and legal duties don’t change. They still have to accommodate a child with a disability no matter how they administratively process your child.
- Be persistent, consistent and document your communication. You need that document trail, and writing about your child’s unmet disability-related needs should trigger meaningful inquiry. Then you are ready to go!
Conclusion:
Learning about the duty to accommodate and learning how to advocate is a life skill every person should have. Disabled or not. I have met adults with privilege who have horrible advocacy skills and are terrified of advocating. Just think of this as free training. You’ll become so good at this, that it will assist you in other areas of your life. (We had a car dealership sell us a car that had the wrong brakes in it. They thought they could wiggle out of it. I am not a door mat. They said to me, “What has happened in your life that you do not trust me?” LMAO. After weeks of persistent and consistent advocacy and calmly informing them I will take them to small claims court, they paid for our brakes to be replaced. They were tough. They really put up a good fight and they thought we would go away using the same strategies that school districts use. Nope. Sorry. Nice try. They don’t work on me. I know what to do.) Thank you school district for all of the advocacy experience and the ability to sharpen my skill. Conflict resolution, relationship building, advocacy – I am very ready for life.
I wish you all the best in your advocacy journey. I highly suggest you find your people for support. You are certainly not alone and you don’t need to do this alone either. There are a lot of parents out there walking the same path as you. If you want, you can find them.
Start here…
BCEdAccess Society
Family Support Institute
Inclusion BC
Here is my GET HELP page.
Best wishes,