Tribunals have ruled on cases and have repeatedly declared that grades are not an indication of whether accommodations are effective or not.
SO, when districts tell you that your child is at grade level and BECAUSE of that, they are saying this is evidence that their IEP is being followed or that their accommodations are effective – that is not true!
And the tribunal isn’t going to buy that argument from the school district or a parent.
Here are the decisions.
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Child was below reading level and grade level.
X by Y v. Board of Education of School District No. Z, 2024 BCHRT 72
[137] Y expressed concern that the District would again advance X to the next grade when his reading was still not at grade level. I appreciate Y’s concerns about X not being at the same level as many of his peers. Yet as noted in Moore at paras. 35-36,
[…] As with many public services, educational policies often contemplate that students will achieve certain results. But the fact that a particular student has not achieved a given result does not end the inquiry. In some cases, the government may well have done what was necessary to give the student access to the service, yet the hoped-for results did not follow. Moreover, policy documents tend to be aspirational in nature, and may not reflect realistic objectives. A margin of deference is, as a result, owed to governments and administrators in implementing these broad, aspirational policies.
But if the evidence demonstrates that the government failed to deliver the mandate and objectives of public education such that a given student was denied meaningful access to the service based on a protected ground, this will justify a finding of prima facie discrimination.
[138] Ultimately, X’s report card for the end of grade 3 showed that he had “made satisfactory progress in all areas of the curriculum”. It set out areas for continued work over the summer. On the whole, the District has satisfied me on a balance of probabilities that it discharged its duty to accommodate X by providing him with a network of support people; learning support and behavioural support to ensure he continued to develop skills; learning tools and strategies; behavioural tools and strategies; which all culminated in providing meaningful access to educational services. As Y raised concerns and as the District identified X’s needs changing, the District adapted the accommodations in response. While X may have been behind some or even many of his peers academically in some areas, he did make ongoing progress in building skills and tools. While he may not have met or exceeded the academic targets Y expected or hoped, the District reasonably accommodated X to provide him with meaningful access to the education services it provides.
[141] I acknowledge that X continued to struggle with not finding school a happy place to be and that a consequence of this has been persistent challenges for Y in getting X to attend. I acknowledge that X continues to not read at grade level. However, the District has not withdrawn, but rather has expanded, diversified, layered and adapted the accommodations it has had in place for X. In some aspects, these have “worked”, as they have allowed X to progress toward learning and behavioural goals, as Y herself acknowledged in her evidence. In others they have not, as X remains reluctant on some days to attend school at all. Y acknowledged at several points in her evidence that the District “threw everything at” the situation, giving layers of accommodations and adapting them to X’s needs.
[142] Y has said that the learning support provided throughout X’s education has not been enough for X to “reach the same level as his peers or possibly excel”. The District’s obligation is reasonable not perfect accommodation. As I have said above, reasonable accommodation is not necessarily measured by whether a student is meeting or exceeding certain standardized learning goals but rather by whether barriers have been removed to provide meaningful access to education.
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Next case
A decline in grades doesn’t automatically trigger the duty to inquire – although it is an adverse impact.
Student (by Parent) v. School District, 2023 BCHRT 237
[75] The “duty to inquire” is a human rights obligation which arises where the student is facing some adverse impact in their education – ie. discipline, poor grades, lack of meaningful access – and the school is aware, or ought reasonably to be aware, that a student’s disability may be a factor in that impact: eg. Martin v. Carter Chevrolet Oldsmobile, 2001 BCHRT 37 at para. 29; Aydogmus v. York University, 2021 HRTO 176 at para. 59. The purpose of this inquiry is to identify and remove disability-related barriers to a successful education, likely through the process of accommodation.
[77] In light of my findings above, I am not persuaded that the District’s duty to inquire and/or accommodate were triggered when it placed the Student in Language 10. Most critically, I have not accepted that Language 10 was an inappropriate placement for the Student. In addition, the Student had performed well in school and was – admirably – preparing to challenge herself academically by applying for enriched courses. There was no prior history of academic accommodations or modifications. In this situation, the District did not have reason to believe that placing the Student in Language 10 would adversely impact her. Nor do I find that the inquiry should have been triggered by the drop in the Student’s grades in the second term. As Teacher X explained, this is when the material got harder. The Student was still passing. Even the Parent did not conclude, based on these grades alone, that the Language class was the cause of the Student’s poor mental health. Rather, the evidence supports that the class was challenging but within the realm of what the Student could reasonably achieve.
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It is not about grades; it is about providing access to education.
Is the ramp being provided?
Which means, are barriers being removed?
Are they being accommodated?
Key takeaways
- Grades are not evidence by themselves of accommodations not being provided
- They could be an “adverse effect” so worthy of putting it in a human rights complaint under the adverse effect section.
- It’s not about the grades that your child is achieving; it is about whether their barriers are removed and their disability-related needs are being accommodated. (The school will need to provide evidence that they are doing so or at least attempting to do so by adapting, reviewing and modifying their attempts.)
- * If parents can’t use grades as evidence accommodations are being provided…Guess what folks…..neither can schools. They are hoping that you will accept it.
Can schools start using grades as evidence to end an accommodation discussion?
NOPE!
We focus on the BARRIERS. As a parent, you are allowed and expected to communicate the harm and mental health needs of your child.
Student (by Parent) v. School District, 2023 BCHRT 237
[91] Rather, the adults supporting the child must work to identify and address their disability-related needs, sometimes with imperfect information. In this case, for example, the school had relevant information about the Student’s academic abilities and classes, and the Parent had relevant information about her mental health and wellbeing. They each say that the other failed to share information that could have initiated an accommodation for the Student in her Language 10 class. Communication, then, is critical.”
If you don’t tell the school about your child’s mental health needs, they will blame you for not giving them the information they need to propose accommodations.
If you are ever turned away for a meeting, an IEP update, etc, please use this case to get your feet in the door.
Bottom line: If the school uses grades as a reason to say “everything is fine” while you know full well your child is experiencing harm, please use these cases in your advocacy.