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The British Columbia School Act begins by declaring that, “It is the goal of a democratic society to ensure that all its members receive an education that enables them to become literate, personally fulfilled and publicly useful.” And so, the North Vancouver school district was damned before the trial began.
Jeffrey Moore was a Grade 2 student in North Vancouver when a district psychologist informed his parents that Jeffrey’s severe dyslexia meant he should be sent to the local diagnostic centre, which could provide the remedial help he needed to flourish. The Moores went along with this plan.
Shortly after, the district closed the diagnostic centre and informed the family that Jeffrey’s needs could no longer be met by any of their institutions. If they wanted their son to have a proper education it was recommended they begin paying for private school. The Moores went along with this plan, too.
But not without the father, Frederick Moore, filing a complaint to the Human Rights Tribunal. That was 15 years ago. Following battles at all levels of the country’s legal system, the Supreme Court of Canada settled on November 9 (in a unanimous decision) that, indeed, the school district had a responsibility to provide Jeffrey Moore with a proper education—it could not slough off responsibility merely because his disability would cost more than it felt able to pay. (The district was especially damned when it came to light that it had, indeed, made no inquiries into alternative funding strategies before shuttering the diagnostic centre.) And so: the $64,000 his parents paid in tuition fees at private institutions will be reimbursed (plus interest, transportation costs, and $10,000 for injury to dignity).
In her Reason for Judgment, Madam Justice Rosalie Silberman Abella speaks not to Jeffrey’s need for “special education” but rather, for plain and simple “education.” Indeed, Abella specifically remarks that she doesn’t wish to descend into the “separate but equal” approach that “special education” would lead to. “Comparing Jeffrey only with other special needs students,” she wrote, “would mean that the district could cut all special needs programs and yet be immune from a claim of discrimination.” Instead, Abella wrote that Jeffrey had been denied the meaningful access to the general education that should be available to all British Columbians. Jeffrey’s case revolved not around expendable special programs but immutable rights to equal access.
The district claimed it had to shutter the diagnostic centre because of a budgetary crisis. And no one would argue these aren’t lean times for schools. However, points out Frances Kelly, a lawyer at the Community Legal Assistance Society, “They had maintained a number of discretionary programs not related to core education,” which, if terminated, could have left funding for the diagnostic centre. Notable was the district’s Outdoor School (“a lovely facility,” Kelly notes, “for nature training”). The district also kept funding Psychology 101, which is not a mandatory course. How, came the question, can one student’s discretionary program be funded while another’s basic education is being cut?
It can’t, came the answer from the Supreme Court. Jeffrey, and students like him, must be provided for, even if that means cutting programs like the Outdoor School. “There was evidence before the tribunal,” says Kelly, “that this was typical of an eroding of resources for students like Jeffrey. There is a precedence that in hard times, the first to go is special needs programming.”
There is an escape clause called undue hardship, whereby the district must always provide a ramp (physical or metaphorical) into the benefits of basic schooling—unless it is simply too difficult to do so. The subjective wiggle room implicit in such a term means, of course, that future cases like Jeffrey’s will need to be each argued separately.
But Jeffrey Moore has set a precedent, at least. “Now they need to be careful,” says Kelly. “Now they need to do a rigorous analysis before making that cut.”