When parents and school divisions disagree about programming or placement for students with special learning needs
In Manitoba, children and youth have a right to appropriate educational programming* and appropriate educational placement. Parents** have a right and a responsibility to be involved in their children’s education. This right is legislated in The Public Schools Act and supporting regulations. In making decisions about educational programming and placement for students, school teams, including parents, work together. In some situations, differences of opinion will occur. Usually these differences can be resolved by the people directly involved. However, some differences may require a more formal dispute resolution process.
* The term “programming” is inclusive of both curriculum and placement.
** The term “parents” also refers to legal guardians and may also apply to a student who has reached the age of majority.
Processes for Resolving Differences
Manitoba school divisions, in collaboration with parents, are required to make every reasonable effort at the school and division levels to resolve concerns. Parents should work with school division staff to arrive at reasonable solutions. If there is a dispute about the education of students with special learning needs, the parties involved have several options:
- Resolution at the school level: An attempt to resolve differences at the local school level is typically the best approach. It offers the possibility of a solution that is acceptable to everyone in a reasonable period of time. This would involve the teacher, other in-school personnel and the principal.
- Resolution at the school division level: This usually involves divisional staff or the superintendent. A formal appeal to the school board that results in a board decision would be the last step in the process.
- Resolution at the departmental level: This level of dispute resolution involves contact with the review coordinator and a formal review of the school board decision by a review committee appointed by the Minister of Manitoba Education.
The following questions are the most frequently asked concerning Dispute Resolution:
- What is Formal Dispute Resolution?
- Does Formal Dispute Resolution apply to all students?
- What is an Individual Education Plan (IEP)? a BIP? an ITP?
- What complaints will be investigated?
- What is a request to the Superintendent? to the School Board?
- What is meant by programming or placement?
- What does it mean when the school division says that Informal Dispute Resolution should be tried first?
- What documentation do parents need to make a complaint to the review coordinator?
- Is the Review Coordinator an advocate for parents or the school division?
- Once an investigation begins what process is followed?
- How long will a Review take?
- Who is on the Review Committee?
- Can parents have someone assist them during interviews?
- Can other parties provide information?
- Will an investigation be like a court proceeding?
- Does a school division have to follow the decisions and recommendations of the Review Committee?
- Does a school division have a responsibility to inform parents of their right to make a complaint?
- Will the Review Committee hear a complaint about a staff member?
- Can parents choose the Educational Assistant to work with their child?
- What if parents want to speak with the Review Coordinator, but don’t want the school or school division to be contacted?
Formal Dispute Resolution applies only to students with special learning needs. After a parent or student over the age of 18 has followed their local school division’s appeal process to try to resolve a dispute about either a student’s programming or placement, and the parties are still in disagreement, a complaint can be made to the Review Coordinator at Manitoba Education. The Review Coordinator must follow legislation on Appropriate Educational Programming [Regulation (155/2005)] to make inquiries and, if the complaint persists, a Review Committee will be named by the Minister for investigation and recommendations.
No. The Appropriate Educational Programming legislation applies only to students who have been identified as having difficulty meeting expected learning outcomes from the curriculum and who have an Individual Education Plan (IEP). A complaint must apply to either a student's programming or placement.
When school staff decide that a student has special learning needs that cannot be met by differentiated instruction or adaptations, the principal must ensure that an individual education plan (IEP) is prepared for the student to help meet expected learning outcomes or those outcomes that can reasonably be expected. An IEP also plans for how the student will meet those outcomes. An IEP is a learning plan that will change as the students needs change and in consideration of the teachers planning for the class.
Principals are required to involve parents in preparing and updating IEPs with the school team and to ensure that written IEPs are developed, revised, implemented, monitored and evaluated at least annually for all students identified as having special learning needs.
IEPs may have different purposes and are sometimes referred to as a BIP (Behaviour Intervention Plan) or an ITP (Individual Transition Plan). Parents must be given the opportunity to participate on the IEP team. As with all students, the responsibility for educational programming is the educator’s. Parents should not expect that they can tell teachers what to teach or how to teach.
Not all disagreements can be investigated by a Review Committee, for example, a suspension or expulsion and complaints against individual staff members can only be appealed to the School Board. In order to qualify for Formal Dispute Resolution the following criteria must be met:
- there is an IEP in place for the student.
- the complaint relates to appropriate programming or placement.
- reasonable attempts have been made to resolve the complaint with: the principal, the superintendent and the School Board (the School Division’s appeal process must be followed).
- the School Board has denied a request within the last 30 days.
- a complaint must be made in writing to the Review Coordinator giving name, address and reasons.
- alternative dispute resolution like mediation has been unsuccessful.
- the same complaint has not been heard by a Review Committee before.
- the complaint is not frivolous, vexatious or made in bad faith.
Parents are expected to follow school division appeal procedures to resolve disputes. Disputes are usually directed first to the Superintendent (in writing) before the School Board. As chief executive officer of the school division, the superintendent is both its primary educational leader and the most senior operations manager. In these capacities, the superintendent works closely with, and reports directly to, the elected school board.
School Boards are elected boards of trustees and are responsible for providing for elementary and secondary public school education within their school divisions. When parents appeal in person to the School Board regarding a student’s programming or placement, they are usually considered a delegation and meet in private. Rules for delegations like written submissions and time limits are usually outlined in Board policy. Parents should make a specific request in order to give the Board an opportunity to resolve the dispute.
Programming: refers to how the student’s requirements for meeting or approximating the expected learning outcomes are to be addressed.
Placement: refers to the physical location where it is reasonable to expect the student to meet or approximate outcomes. The first consideration in the placement of all students is the designated catchment school where they live and in a regular classroom with their peers. Placement can include the catchment school with same aged peers, an alternative location in the catchment school or in a specialized classroom in a school designated by the school board.
Resolving disputes through communication, understanding and compromise generally results in a more meaningful, long-lasting and rewarding solution than imposed decisions from a third party such as a Review Committee. In an informal process it is important that both sides ask themselves “What can be reasonably achieved in the best interests of the child?” and work toward that goal. An informal process can be facilitated by a trained mediator, but often the principal or someone else from the division will be the facilitator.
The least that is required is the School Board’s written response denying a parent’s request. Records of conversations, meetings, names and dates which outline the history of the dispute may be useful. Records of attempts to resolve a dispute at the school and division level may be useful in supporting a request for a Review.
The Review Coordinator is expected to be impartial and does not advocate on the part of either party. The Coordinator supports both parents and school divisions, and reports to the Deputy Minister of Education. Once a Review Committee is established the Review Coordinator works to support the investigation and decision-making process.
After the Review Coordinator determines that a complaint meets the requirements for a Formal Review and alternative dispute resolution has proven unsuccessful:
- the Minister will establish a Review Committee of three people,
- both parties in the dispute are notified by letter and informed of the “Essential Question” to be investigated,
- supporting documents and interviews will be requested,
- dates, locations and times for interviews may be established,
- parents and school board representatives may be interviewed individually,
- the Committee may decide to visit the school and classroom in order to obtain a “first-hand” sense of the child’s learning environment,
- when the Committee has read all documents and interviewed those it feels are needed, it meets to review all information and make a decision and recommendations based on the evidence,
- the Committee’s interim report is sent to both parties and if either party disagrees, further information can be submitted in writing,
- the Committee submits a final report to both parties and the Deputy Minister,
- either party may appeal the final report to the Deputy Minister within 30 days,
- the Deputy Minister will make a final decision determined appropriate,
- an application to the Court of Queen’s Bench for judicial review is still possible. (Details are included in Manitoba regulations 155/2005 and Appropriate Educational Programming in Manitoba: A Formal Dispute Resolution Process.)
Formal Dispute Resolution requires involvement of the Coordinator, creation of a Review Committee, exchanges of documents, training of the Committee, establishing interview dates and times, interviews, decision making, report writing and appeals. From start to finish, the process may take up to four months. If a faster resolution is desired, continued communication with the school division is recommended.
The Minister appoints a committee of three from a larger group who have been asked by government to participate as members of Review Committees. One person is the chairperson and the other two are committee members. It is expected that all three have the skills to make unbiased decisions in complicated situations. One member is expected to have knowledge of educational regulations and their application. The members of each Review Committee receive training in carrying out a review and the legislation that guides their decision-making.
The Review Coordinator coordinates the process and is not a member of the Review Committee. The Coordinator does not take part in Committee decisions.
Yes. It is expected that parents inform the Review Coordinator beforehand and indicate the name and capacity of the individual accompanying them. If parents want help but are uncertain about who to ask, there are groups, such as the Manitoba Association of Parent Councils (MAPC) who can help.
Both parents and the school division may recommend names of individuals to be interviewed. The Review Committee will decide who to interview. In most cases the Superintendent or Student Services Administrator will be interviewed to speak for the School Board.
No. Most interviews occur in a private and neutral location. There is a possibility that a Review Committee will decide to interview all participants in a formal hearing where all participants are present in a room at the same time and questions are asked by the Committee chairperson.
If either party questions the decision of the Review Committee, they have the right of appeal to the Deputy Minister. The Deputy Minister may make any decision regarding meeting the student's programming needs, placement or both. The Deputy Minister's decision is final. A follow up visit with the school division after the Review will be conducted by the Review Coordinator and a Manitoba Education representative to ensure that recommendations made to the school division are acted upon.
School divisions should:
- develop and make accessible local policy on communication and dispute resolution at the school and school division levels
- make all reasonable attempts to resolve disputes informally, including using dispute resolution processes, such as mediation
- advise parents of their right to make a formal appeal (within 14 days) of decisions about their children’s educational programming and of their right to be accompanied by a support person
- inform parents of the appeal procedures of the school board
- advise parents of their right to request formal dispute resolution through Manitoba Education when efforts to resolve the issues locally at the school and school division levels have failed.
No. Complaints against school staff members must follow school division policies for complaints against staff. The Review Committee can only hear complaints about a student's programming or placement.
An Educational Assistant (EA) is hired by a school division and is subject to the hiring and retention policies of that division. Many EAs are members of unions and have contracts with their employers regulating seniority and placement. Some school divisions have established policies which allow for specific assignment of an EA. The EA is under the supervision of the classroom teacher and as such is acting under his or her direction with input from the school’s Resource Teacher and the school’s Principal. Any concerns a parent might have with an EA should be directed to the classroom teacher first, possibly the Resource Teacher next, then the Principal.
Parents may phone for information without mentioning the names of the school or school division. The Coordinator will provide information to parents to return to the school or division and hopefully resolve the issue. Parents may be directed to other parties who can assist them. The Review Coordinator will provide guidance regarding the dispute resolution process and may refer parents to other supports in Manitoba Education. Early clarification and informal resolution are always in the best interests of a student.