The Ontario Court of Appeal has upheld a decision recognizing that students with disabilities are entitled to substantive accommodation when applying to university.

This decision confirms that university admission processes are not exempt from human rights obligations: where admissions standards adversely impact students with disabilities, universities must accommodate those students, or show that it would be an undue hardship to do so.

Background

Roch Longueépée applied to the University of Waterloo in 2013. He applied with a history of volunteer activism, a long list of positive reference letters, and poor university grades – achieved 13 years’ prior, before he was diagnosed with or accommodated for a traumatic brain injury and PTSD, the result of institutional child abuse and torture.

The University recognized that Mr. Longueépée’s prior grades were affected by his undiagnosed disabilities, and convened an Admissions Committee meeting to determine if he could be accepted. However, the Admissions Committee simply applied the usual minimum grades standard to Mr. Longueépée, disregarded his other materials, and denied him admission.

The Human Rights Tribunal of Ontario found that the University had prima facie discriminated against Mr. Longueépée, since he was adversely impacted by the grades standard on account of his disabilities. However, it went on to find that Mr. Longueépée had been sufficiently accommodated, suggested Mr. Longueépée reapply after earning better grades at another school, and added – without any evidence or argument – that it would be an undue hardship to the university to assess Mr. Longueépée’s application without recourse to his grades.

On review by the Divisional Court, the HRTO’s decision was overturned. The Court explained that, having recognized that it could not interpret Mr. Longueépée’s grades because they were earned while he was unaccommodated, it was incumbent on the university to either assess his application without looking at those grades, or to prove undue hardship. Because the university did neither, the Divisional Court found that it had discriminated against Mr. Longueépée, and returned the case to the Admissions Committee for a new decision.

The University appealed to the Ontario Court of Appeal, arguing that universities are entitled to deference when making admissions decisions, and that denying Mr. Longueépée admission because of his unaccommodated grades was a “judgment call” that it was entitled to make. It argued that the Divisional Court had overstepped its role, and asked that the decision of the HRTO be restored.

The Ontario Court of Appeal, in its decision released December 21, 2020, disagreed. It upheld the analysis of the Divisional Court, finding that there were “significant problems” with the HRTO’s reasons. It found the HRTO had not made an internally coherent decision because it found that simply applying a discriminatory standard was a sufficient accommodation. The Court of Appeal found that it was “inevitable on the record” that the University discriminated against Mr. Longueépée, and referred the matter back to the HRTO to decide on the appropriate remedy.

Impact and Next Steps

This case reflects a positive step in the fight for equality for persons with disabilities, particularly students with disabilities, who are underrepresented in post-secondary education. While this decision does not remove all of the systemic barriers students with disabilities face, it is encouraging to see the Court of Appeal insist on substantive accommodation in the university applications context.

This case is the first time that university admissions standards have been challenged through the lens of students with disabilities – here, a student with previously unknown and undiagnosed disabilities, who required accommodation in the form of individual and holistic review of his application, rather than rote application of an “objective” grades standard. As Mr. Longueépée’s case demonstrates, these “objective” standards are often anything but – they can act as barriers to the inclusion and participation of persons with disabilities in post-secondary education.

It remains to be seen how Ontario universities will implement the decision from Ontario’s highest court in their admissions decisions. For now, students with disabilities applying to school can look to it as confirmation of their rights and entitlements: to a fair admissions process, without discrimination based on disability.

You can read the Court of Appeal’s full decision here (link).

For CBC coverage of Mr. Longueépée’s case, click here (link).

Interested in some of the other barriers faced by students with disabilities after acceptance to post-secondary education? Click here (link) for bakerlaw’s coverage of Jasmin Simpson’s fight to ensure students with disabilities do not accumulate higher debt loads than their non-disabled peers.

Are you a student with a disability or a parent of a student with a disability and struggling to protect your rights in education? Check out our Education Law service page (link) and get in touch to see if we can help (link)!