Human Rights and Appropriate Educational Programming
Education is essential to the life of individuals and communities. It provides opportunities and expands choices for personal, social and academic development. Education helps individuals achieve their goals, continue to learn and actively participate in economic, community and political activities. It fosters citizenship and is considered one of the key indicators of health and well-being.
Education is considered a significant human right both in Canada and under international human rights law, a right not to be unreasonably denied because of one’s gender, ethnic origin, disability or age.
In Canada, education is recognized and legislated as a fundamental social good. A publicly funded education system, accessible to all is recognized as a core constitutional responsibility of provincial governments. In Manitoba, publicly funded elementary and secondary schools are governed by The Public Schools Act and The Education Administration Act. This educational context is informed by the Canadian Charter of Rights and Freedoms, which as part of the Canadian Constitution, is the supreme law of Canada.Section 15 of the Charter guarantees to all Canadians equality before and under the law, the right to equal protection and benefit before and under the law, and the right to equal protection and benefit of the law without discrimination, in particular, “without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability”. The Charter of Rights and Freedoms applies to all aspects of laws, programs, policies and services. This includes The Public Schools Act and The Education Administration Act and all bodies carrying out government intentions such as public school boards.
In recent years the issue of equal access to educational opportunity and efforts to remove barriers to learning has generated much attention. There has been a growing recognition of and movement to strengthen the equality rights of students. Section 15 of the Canadian Charter of Rights and Freedoms, human rights legislation, such as The Manitoba Human Rights Code and case law emerging from the courts and human rights tribunals are identifying and removing barriers considered to impede equal access to educational programming and services. A key focus here is the notion of substantive equality; that is the recognition that groups who have historically experienced social, political and economic disadvantage may need more than the identical measures or initiatives that are aimed at eliminating historical disadvantage to ensure that they enjoy equal benefit and participation in Canadian society.
The heart of substantive equality is the duty to reasonably accommodate. The process of reasonable accommodation includes preventing and removing barriers that impede students from participating fully in the educational environment in a way that is responsive to their unique circumstances.
In January 1999, the Manitoba Special Education Review was completed and publicly released. Among its forty-four recommendations was one that directly identified a need to change Manitoba’s legislation.
The Province of Manitoba make changes to Manitoba’s legislation in order to achieve consistency with the Charter of Rights and Freedoms, particularly the right to equality as it is understood in Canada and relates to the right of access to education for Exceptional Children (B.5.i., p. 31).
This recommendation, which is the impetus for Bill 13, Appropriate Educational Programming, was based on the Review’s case studies, where various school division administrators expressed a desire to have more direction regarding their legal responsibilities. One theme in the submissions was the need for review and revisions to The Public Schools Act, coupled with a concern that Manitoba had not revised its education statute to be consistent with the Charter of Rights and Freedoms and legislation in other provinces. Parents were concerned that rights to the most enabling environment were not enshrined in legislation. As noted in The Manitoba Special Education Review Final Report, “legislative reform would ground policy in legislation and, as such, remove it from the domain of uncertainty and the potential danger of ill-informed decision-making” (p. 31). Consequently, framing appropriate educational programming in legislation was considered necessary to help move such programming beyond expressions of faith and acts of discretion that may result in unintended discriminatory effects.
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