On Friday, November 9, 2012 the Supreme Court of Canada (SCC) released a decision which could alter the way school boards in Canada make decisions regarding the provision of special education services, and the allocation of resources generally. We will be covering this decision in greater detail in an Alert to be released later today, as well as in our November Newsletter. If you are interested in receiving either the Education Law Newsletter or Alert, please contact us at educationlaw@millerthomson.com.

The case involved a dyslexic student, Jeffrey Moore, whose parents argued that he suffered from discrimination when his school board, for funding reasons, cut a special education program that provided intensive services in a segregated setting for students with severe learning disabilities. This resulted in Jeffrey not being able to access the program despite meeting its special education needs threshold.

The SCC agreed with the Human Rights Tribunal that the school board had discriminated against Jeffrey when he was not provided with access to the program that was cut. The SCC indicated that the board did not provide sufficient evidence that it had studied the impact of the cuts and considered other programming options for students with severe learning disabilities, like Jeffrey. The SCC did not accept that a recurring deficit justified the reduction in service, noting that discretionary expenses such as the outdoor education program survived. The implication of the SCC approach is that program enhancements for all students should only be funded when the school board ensures that disabled students have been provided sufficient programming and services to enable access to the core curriculum.

The impact that this decision could have on school boards across Canada, many of which currently face difficult budget decisions including the funding of special education services, could be significant. The case will no doubt be studied carefully in order that school boards can ensure that all spending options are considered and the consequences of cuts to special education services are understood and addressed with proper alternatives to meet the needs of students with disabilities.