Progress and Uncertainty: The Educational Rights of Special Needs Students in British Columbia

• Author: Robert Stack
• Position: Is presently completing his articles at Priel, Stevenson, Hood and Thornton in Saskatoon
• Pages: 42-65

in British Columbia

The Educational

Rights of Special

Needs Children

Progress and Uncertainty:

1Canadian Charter of

Rights and Freedoms,

Part I of the Constitution

Act, 1982, being

Schedule B to the

Canada Act 1982

(U.K.) 1982, c. 11.

Robert Stack is

presently completing

his articles at Priel,

Stevenson, Hood and

Thornton in

Saskatoon. He

earned a Bachelor

(High Honours) and

Masters of Arts in

History at the

University of

Saskatchewan. In

May, 2000 he received

an LL.B. from the

University of Victoria.

Introduction

The following essay is a study of the legal rights of children with

“learning disabilities” (“LD”) and other special needs in the education

system of British Columbia. In this brief introduction, I will make a

few comments about the scope, structure and argument of the paper. The

exact subject of the paper is not easy to define. In terms of the kinds of

disability under study, there is some stress on “learning disabilities”; but

categories such as “LD” are, in both pedagogy and pathology, loose and

dynamic, and LD children often have other related conditions, such as

Attention Deficit Disorder (“ADD”). The paper is primarily about the rights

of those with special educational needs. However, issues related to purely

“physical” disabilities – such as access to buildings and transportation – will

receive little attention in this paper. In terms of its jurisdictional-geographic

boundary, the field of the paper is again inexact. The paper focuses on the

statutory and administrative regime of British Colombia, but case law from

other provinces is relevant because special education involves questions of

civil and human rights.

Indeed, the most interesting and significant issue in special

education law is the degree to which judicial interpretation of equality

provisions in provincial human rights statutes and the Canadian Charter of

Rights and Freedoms1(“Charter”) will overwrite education legislation. A

conclusion of this paper is that courts have only begun the work of

submitting special education regimes to the scrutiny of the Charter and

human rights acts. The results are likely to be progressive and may result in

some thoroughgoing alterations of educational practice, but there are many

issues to settle and the future course of jurisprudence is not likely to be

smooth. The problem of special education rights raises a host of difficult

questions and has already tested and taxed the principles of equality

jurisprudence.

The author would like

to thank Professor

William Neilson for

supervising the paper

as well as Maryse

Neilson and the

Learning Disability

Association of Lower

Vancouver Island for

sponsoring the

research. The Law

Society of British

Columbia generously

provided funding.

This paper is dedicated

to the special needs

students at St. Anne's

Elementary School in

Saskatoon, SK – long

may you run.

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The paper is divided into three sections: first, introductory

comments on the history and policy concerns of special education law;

second, an inspection of relevant statute provisions on special needs

education in British Columbia; and third, a study of recent case law on

special needs as an issue of human and civil rights. In this last section, I will

not only examine questions that have been the subject of litigation – such as

the right to integration – but also anticipate issues that parents may bring to

court in the future. These concerns include the crucial question of whether

school boards have a constitutional obligation to assess children for learning

disabilities or ensure that staff members have a level of special needs training.

A “New Minority”: Special Needs and Equal Rights

The practical question that this paper seeks to answer is the

following: what rights do children with learning disabilities and special

needs have in the education system of British Columbia? A court considering

this question has to deal with four areas of controversy in the recent history

of educational policy and human rights: the status of children in law and

traditional concepts of the role of the state and judiciary in protecting

vulnerable members of society; recognition in international human rights law

of both children’s rights and educational rights, and the impact of

international standards on domestic law; the tension between the legislature,

as the source of legal policy and legitimacy, and the courts, as guarantors of

justice; finally, evolving professional and social thought on the theory and

practice of special education and the nature of disability.

Special education law involves, first of all, the rights of children.

Common and civil law traditions have always recognized what we might call

the doctrine of “child vulnerability”. Children, according to this view, have a

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