Getting students with disabilities back to school: challenging suspensions and expulsions

  • December 16, 2015
  • BakerLaw

When a student with a disability has been suspended, expelled, or excluded from school the process for challenging this decision can be complicated and frustrating. Bakerlaw has been involved in getting many students back to school through both the human rights and the school board processes.

In one case, Bakerlaw represented a student who was ordered back to school by the Human Rights Tribunal because he had been excluded from school on a discriminatory basis: see R.B. v. Keewatin-Patricia District School Board, 2013 HRTO 130 (link).

In another case, Bakerlaw negotiated to have a student returned to school (without the need for legal action) where the student’s behaviour was the result of the school’s failure to accommodate his disability.

In cases where the human rights process and negotiation with the school are not the right option, Bakerlaw has also represented students before in expulsion hearing and suspension appeals before the “Discipline Committee” of a school board.

Going before the Discipline Committee can be a confusing and stressful experience for many students and families. Often, a school board will not communicate information about how these hearings will be run, or how the student should prepare.

The Discipline Committee will be made up of school board Trustees. While these trustees are familiar with running the Board, many are not familiar with the potential human rights implications of suspending a student with a disability.

Fortunately, some of a school board’s human rights obligations are written into the Education Act. When a principal makes a decision to expel or suspend a student, the Education Act requires the principal to consider a series of “mitigating factors” that could be used to lessen the student’s penalty.

Many of these factors may come into play for students with disabilities, including whether the student can control his/her behaviour, and whether the student’s behaviour was the result of harassment based on his/her disability.

When a student has an Individual Education Plan (“IEP”) in place (which sets out accommodations for special needs students), the principal must consider whether the student’s behaviour was the result of a disability identified in the IEP, whether the student was being properly accommodated, and whether discipline is likely to worsen the student’s behaviour.

The TDSB’s most recent annual report on discipline shows that over 60% of student suspensions were given to students who had an IEP (link). This means that the majority of suspensions are being given to children who require accommodation in the school environment.  Clearly, despite the Education Act, school boards are continuing to disproportionately impose discipline on students who require accommodation, and many of whom have disabilities. Bakerlaw welcomes the opportunity to represent these students either before the Human Rights Tribunal, through negotiations with the school board, or at a Discipline Committee hearing.

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