Professional Documents
Culture Documents
Constitutional Limitations
Concern for the disadvantaged in society leads the author to suggest potential grounds for
legal challenges to recent changes that have imposed higher standards and high-stakes
Introduction
This Chapter will review the general framework of curriculum control in Ontario and
provide an overview and sample of recent curricular changes. The author will consider
After a brief review of the general background, the chapter begins with an outline of the
statutory sources of authority for curriculum design and use that currently operate in
Ontario. The second part of the Chapter reviews the new elementary and secondary
curriculum and the new assessment techniques. The Chapter ends with an analysis of the
services and the potential for legal challenges in relation to the new high-stakes literacy
test and the constitutional protections provided for people with disabilities.
1
Background of Curriculum Changes
To say that education in Ontario has recently undergone changes as directed by the Tory
new educational agencies, new curriculum expectations and levels, as well as the
simultaneously with Tory reforms and the recommendations of the Royal Commission on
Learning received by NDP Education Minister Dave Cooke, on behalf of the Ministry of
In 1996, the Tory revolution established the Education Quality Accountability Office
and testing to exercise powers that historically were the responsibility of teachers and
local boards. The new legislation directs the EQAO board to oversee the measurement of
school achievement and the documentation of student progress through the development,
administration, marking and reporting of tests that are ranked in order to reward school
2
Also in 1996, the Harris Conservatives established the Ontario College of Teachers to
govern the teaching profession, powers traditionally in the hands of provincial unions. In
the last few years the Province has introduced teacher qualification tests and mandated
professional learning courses for teacher re-certification which must be passed every five
In 1997, the Ontario government implemented Bill 104, the Fewer School Boards Act
1997 which created fewer but larger school boards and established the Education
called, "The Road Ahead: A Report on Learning Time, Class Size and Staffing,” contained
many recommendations that were incorporated into Bill 160 which broadly aimed at
reducing teacher union and board powers by implemented a new funding formula and
Following these large structural changes, the Province mandated an almost complete
expectations of knowledge and skills, the use of new “achievement levels” to explain
student performance to the public, and new province-wide standardized tests for reading,
writing, and math. The new centralized curriculum is significantly different from the old
curriculum insofar as there are now new and powerful educational agencies that assess
and evaluate schools, students and teachers. The changes have virtually created, for better
3
or worse, a new industry of educational assessment in Ontario during a time of shrinking
fiscal resources.
mainstream and in the media directed toward preparing the student for the realities of the
methods presents to the MET a cost-effective means of controlling the contents and
standards of curriculum in Ontario which resemble more and more the dominant interests
of corporate, business, and other elite structures within society. The dominant myths
skills.
The new curriculum and testing intends to sort students in relation to public achievement
standardized test results in relation to high school graduation they ought to be held to a
high standard of competence in the administration of the curriculum and tests with
special protections afforded students with disabilities. Although traditionally the courts in
introduction and use of high-stakes testing and standardized curriculum may require
intervention to protect the equality rights of children who are physically or mentally
4
disabled. A question of this type for a court would involve the clarification of the
Ontario fall above or below the constitutional and statutory obligations in relation to the
learning differences and other mental disabilities under the Ontario Human Rights Code
(R.S.O. 1990, c.H.19) or the Canadian Charter of Rights and Freedoms, 1982.
(“Charter”)
The opening of this Chapter is intended to help the reader develop a greater
authority and its delegation in relation to the curricular powers and duties of the Minister
of Education and Training (“Minister”), the EQAO, the Ontario Curriculum Centre
(“OCC”), local district school boards, principals, and students. An examination of the
legislative and regulatory grants are important for understanding the authority of
5
Curriculum design is a profoundly value-laden ideological exercise. The Province of
Ontario grants the Minister the statutory basis to control curriculum content and
For the purposes of this Chapter the meaning of “curriculum” is reserved for MET
approved documents and learning materials and does not include teaching strategies and
lesson plans.
The authority of the Province invested in the Minister passes to educational agencies such
as the MET, provincial boards, local boards, directors, trustees, supervisory officers,
committees, professional learning committees and others only insofar as it has been
regimes that obligate agents, by court order if necessary, to apply the directives issued by
the Minister.
The Education Act, (R.S.O. 1990, c.E.2) (“Education Act 1990”) provides the Minister
broad power to regulate in the matter and form of education. The Act provides specific
legislative authority for the Minister to prescribe courses of study and issue curriculum
1
The Education Act, (R.S.O. 1990, c.E.2). s.8.
2
Ibid. s. 2(4).
6
The powers of the Minister include control over the curriculum, finance, accreditation,
teacher qualifications and re-certification, subject domain areas for use in schools, as well
programs, and board compliance procedures. The Minister can require boards to review
teacher learning plans, to administer and mark student tests,3 review classroom practices
and educational programs,4 as well as set conditions for the disclosure of results. 5 As an
adjunct to more general curriculum powers, the Minister may also prescribe procedures
for the selection, approval, purchase and distribution of textbooks, library books,
reference books and other learning materials for use in schools,6 a power over financial
other private sector partnerships in education that influence the shape and content of
In Ontario, the Minister is obligated to ensure that all exceptional children have available
to them appropriate special education programs and special education services without
Education Tribunal.
3
Ibid. s.8(1)3.2.
4
Ibid. s.8(1)3.1.
5
Ibid. s.10.1.
6
Ibid. ss.8(1)4-7.
7
Ibid. s. 8(1)35(3).
7
As concerns the Minister’s accountability, the Minister must table an Annual Education
Report after the fiscal school year end to the Legislative Assembly,8 otherwise the
Minister has a free hand in the administration and policy portion of education, subject to
The newly created Ontario Curriculum Centre (“OCC”) with Irwin Publishing Ltd.
funded by the MET has been responsible for the development of the new curriculum with
the input of elementary and secondary teachers, college and university professors, subject
experts, business professionals, technology experts, parents and students. The Curriculum
The MET curricular materials are supported by textbooks, other learning materials and
supports for teachers and assistants who are required by the Ministry to teach the
prescribed elementary and secondary school curriculum. The new curriculum initiative
was supported by educational agencies such as the OCC who remain under contract with
the Ministry to act as its designate evaluation agency for textbooks and support materials
8
Ibid. s.3.
9
Curriculum Implementation Partnership chaired by Veronica Lacey (OISE) and Michael
Fullan (OISE) is composed of approximately 15 provincial agencies.
10
The Ad Hoc Advisory Committee is composed of 26 community agencies, councils,
associations, and federations.
11
Curriculum Update. Elementary/Secondary Implementation Issue 3. MET. Winter 2000.
8
for the new curriculum in Ontario English-language schools.12 The OCC “Guidelines for
Approval of Textbooks” and the new “Trillium list” have replaced the former Circular 14
publication.
Services Canada (“CSC”), formally founded in August of 1999. The CSC is an outgrowth
Province in 1994 with a view toward centralized curriculum development. The original
function of the Ontario Curriculum Clearinghouse was to act as a broker between the
interests of developers and users. Under Education Minister John Snoblen the OCC was
given a stronger mandate to develop materials for the evaluation of learning resources.
The CSC uses the International Organization for Standardization to evaluate their quality
Some activities of the OCC include “training” teachers and assistants to use the
evaluation tools first designed in 1996 and merge them with the development of
curriculum, teacher lesson plans and strategies. The OCC selected curricular learning
materials with a view toward promoting the market value of the materials for trade shows
and conferences set up to attract the support of new OCC corporate, private and
charitable partnerships.13 In 1996 for example, the OCC promoted the development of
12
“History of Curriculum Services Canada,” Curriculum Services Canada see
www.curriculum.org/csc/csc_history.pdf. p.65.
13
Ibid.pp.35-36.
9
• assessment strategies for an instrumental outcomes-based approach to learning,
What is absent is consideration of the student and the role of the teacher beyond technical
The OCC and the CSC have developed 6 different Assessor toolkits available and
promoted by the CSC for use in the evaluation of a curriculum learning resource. The
CSC and the OCC have established an electronic Central Registry on the Web of
approved learning materials designed for one stop shopping and teacher self-sufficiency.
The materials have been collected with a view toward collecting CSC copyright
The role of the EQAO can only be understood in light of the Provincial desire for a new
system of student assessment, evaluation, and reporting. The Minister claims the new
in teaching practices across Ontario. Many of the powers and duties granted to the
Minister are obligations for the EQAO board of directors in relation to the evaluation of
10
school boards and students as set out in the Education Quality and Accountability Office
The EQAO board is charged with evaluating the quality and accountability of elementary
MET approved tests.14 The EQAO Act 1996 allows for the Minister to provide funding
and policy direction to the EQAO, issue directives and policies to the EQAO board and
require them to operate the Office in accordance with the directives or policies.15 The
Minister may delegate any power or duty to the EQAO board, who in turn may choose to
delegate any of its power to the Chief Executive Officer of the Office, who in turn may
delegate authority to any other employee, provided each grant is in writing and limited to
As an indication of the relationship between the EQAO and the Minister, the contents of
the annual EQAO Board Report must contain “any information the Minister requires,”17
presumably in aid of the Minister’s duty to table the annual EQAO Board Report in the
next sitting of the Legislative Assembly.18 The EQAO board must also submit an Annual
Budget and an Operations Plan to the Minister, the contents of which are subject to MET
14
Education Quality and Accountability Office Act, 1996 (S.O. 1996, c.11). s.6(1).
15
Ibid. ss. 6(1-2).
16
Ibid. ss.16(3-4).
17
Ibid. ss.25(1-2).
18
Ibid. s.25(3).
19
Ibid. ss.22(1-2),23(1-2).
11
Duties of the Student
school from the age of 6 to 16.20 The EQAO Act 1996 legislated a new duty for students
to “take any test administered to him or her in accordance with the Act,” 21 although a
student may be exempted.22 The Act itself does not contain any specific penalty
provisions of its own in relation to this duty, but it is likely that if a parent opposed or a
student refused to sit for a required test, such as the Ontario Secondary School Literacy
Test (“OSSLT”), and not exempt, the student would receive a failing grade or no grade
for that evaluation and experience the consequences. Once the tests are administered and
marked by the school boards, the EQAO may require the boards to disclose on request
the personal information of the student and report the test results to the Office and the
public.23
Although the power to set curriculum content, assessment, evaluation, and reporting are
generally in the hands of the Minister who has central authority and responsibility, the
Minister has delegated powers to educational agents such as the MET and the EQAO and
assigned educational duties to school boards and school staff who must implement MET
20
The Education Act 1990. s.21.
21
Education Quality and Accountability Office Act, 1996. s.4(6).
22
Ibid. s.4(3).
23
Ibid. ss.4(1)(a-b).
12
The obligations of school boards as set out in the Education Act 1990 gives an overall
impression that boards shall at all times implement and comply with local and provincial
educational policy when offering courses set out in MET curriculum documents. The
broad power of the Minister to delegate its authority and responsibility sharply contrasts
with the accountability and non-delegation of school boards and principals in the
The courts in Ontario have historically declined to intervene against the Province in
was articulated by the Supreme Court of Canada in O.E.C.T.A. v. Ontario (A.G.) (2001).
Upon reviewing the constitutional rights granted to denominational schools under Section
93 of the Constitution Act 1867, the SCC upheld the Ontario Court of Appeal decision to
determine that separate school boards have no right, inter alia, to independent
management and control, thereby affirming the constitutional authority of the Province to
exclusively govern public education. The decision clearly spells out that public school
such boards are not independent creatures but exist by virtue of statue and are bound by
In general, the purpose of the power and duty of the boards in relation to curriculum is to
promote, enable, comply, provide, involve, and review provincial educational policy as
determined by the Minister. In particular they may appoint and remove employees and
24
The Education Act 1990. s.58.1(2), and Establishment, Areas of Jurisdiction and Names
of District School Boards (O.Reg. 185/97).
13
teachers, prescribe their duties and fix their salaries,25 provide instruction in courses of
study prescribed or approved by the Minister, or the board when the Minister permits the
board to approve courses of study,26 and appoint teachers qualified in guidance to provide
provide textbooks and other school supplies to students without charge, unless the items
are lost or damaged.28 It is likely that decisions to purchase materials will influence the
shape and content of standardized curriculum and standardized testing, however board
spending powers are restricted to approved materials, materials collected with a view
It is also the responsibility of the school board to provide special education programs and
special education services for all exceptional pupils, or in the alternative to enter into
agreements with other boards to provide the services.29 The Minister additionally requires
boards in Ontario to maintain special education plans and ensure that special education
plans are amended, from time to time, to meet the current needs of each exceptional pupil
The Education Act 1990 creates many statutory duties for a principal in relation to
curriculum, teachers, and the day to day operation of schools. The principal and vice-
25
Education Act 1990. s.171(1).3.
26
Ibid. s.171(1)8.
27
Ibid. s.171.(1)29.
28
Ibid. s.171(1) 13.
29
Ibid. s.170(1)7.
30
Special Education Programs and Services (R.R.O. 1990, Reg. 306) s.2.
14
principal are non-unionized staff responsible for the delivery of educational services to
students. Provincial regulations and MET memorandum additionally impose many duties
on principals that increasingly focus on reporting student information to the MET and its
agents.
The general statutory duties of principals are set out in the Education Act 1990,
A principal shall,31
• ensure that all textbooks used by pupils are approved by the board and the MET
if required.
• consult school council at least once per year about the school plan.
available about the school, test results, or any other matter affecting the interests
of the school.
Pursuant to the powers of the Education Act 1996 Regulation 298/90: Operations of
31
The Education Act 1990. ss.265(1)-(3).
15
• supervise teachers and the instruction of teachers.
• supervise pupils during school hours and supervise or conduct all school activities
• keep up-to-date copies of outlines of all course of study taught at the school
• obtain the written consent of a pupil or the parent or guardian if the pupil is a
• provide to the Minister or person designated by the Minister any information that
the school.
• attend all meetings of the school council and solicit the views of the school
council with respect to school policies and guidelines such as legal and local
codes of conduct, dress codes, and school action plans for improvement based on
program for all new, returning, and exceptional students and to include a package of
information for students and parents, including the name of the student’s teacher-
advisor.32 When a student obtains the final credit in a diploma or certificate, the principal
32
OSS 1999:5.7.1.
16
of the school that has the Ontario Student Report (“OSR”) shall issue the diploma or
The basic educational records created and maintained by the educational system include
the Ontario Education Number, the OSR, and the Ontario Student Transcript (“OST”). A
brief explanation of the obligations of the principal to the MET and others to collect and
Of particular interest is the duty of each principal to collect information about each pupil
enrolled and to establish, maintain, retain, transfer and dispose of each record.34 A variety
of circumstances might arise within the educational system that may create grounds to
argue discrimination on the basis of a denial of equal protection or benefit before or under
the law in relation to the collection and disclosure of personal educational information.
Protecting exceptional pupils from systemic discrimination is one way to test the
performance of the Minister in relation to educational obligations for the whole of the
student population.
The secrecy provisions of the Education Act 1990 demonstrate the provincial
33
OSS 1999:3.5.
34
The Education Act 1990. s.265(d) pupil records.
17
records is under an obligation to “preserve secrecy” on penalty of conviction. 35 Of
particular interest are the penalty provisions of the Education Act 1990 that provide for a
fine of not more than $5000.00 and/or imprisonment for six months for any employee
with access to student records convicted of a breach of secrecy. There is an exception for
those authorized by the MET to use or disclose or require the production of Ontario
Each person who applies or is enrolled in school is assigned an Ontario education number
used for MET planning and research.37 The Ontario education number refers to a specific
person by name, gender, and date of birth. The number is to appear on all pupil records
compiled and maintained in accordance with the Education Act 1990. The numbers are to
be used on any policy, guideline or directive issued by the Minister, and on all pupil
records that are used to apply to educational programs or schools, and on all assessments,
The OST is a cumulative and continuous record of secondary school achievement.39 The
transcript records successful Grade 9 and 10 courses, and successful and unsuccessful
Grade 11 and 12 diploma requirements, course changes, the status of the community
involvement requirement, and whether a student has passed the OSSLT. The OST may
35
Ibid. ss.266(10), 266.4(1)(2).
36
Ibid s.266.3. Privacy re education numbers.
37
Ibid. ss. 266.2(1), 266.3(1), and MET Memorandum Document, A Guide to Ontario
Legislation Covering the Release of Students’ Personal Information.
38
Ontario Education Numbers (O.Reg. 440/01). ss.3-4.
39
Ontario Student Transcript (OST): Manual, 1999. MET.
18
include an additional page listing any extraordinary circumstances that should be taken
into consideration in relation to record.40 The OSR folder contains report cards, the OST,
directed to keep the OSR for 55 years after the student leaves school. It is a record of
personal information and as such a copy shall be provided on request to the individual.
The school is required to document any student accommodations or deviations from the
compulsory curriculum on the OST. They are also required to record the length of time a
student is enrolled in a special education program and principals are required to attach the
IEP to the pupil’s record, unless a parent of the pupil has objected in writing.41
disabilities for example, if these records are routinely used with the consent of students
competition with others for co-op placements, future employment, counseling options, or
post-secondary education.
40
OSS 1999:6.2.2.2, and Ontario Student Transcript (OST): Manual, 1999. MET.
41
Identification and Placement of Exceptional Pupils. (O.Reg.181/98) s.8.
19
As well, information on the provincial report card, the OST, and the OSR might provide
the basis for a claim of discrimination if the exceptional pupil was not adequately
Counselors’ Association Code of Ethics recognizes the difficulty of relying on this type of
information which is likely why they include a direction to Counsellors to recognize the
fact that socio-economic, ethnic and cultural factors can affect the validity of
standardized test scores and that each test must always be followed by competent
interpretation.42 Access to test scores absent competent interpretation may increase the
The second part of this Chapter will review the current curriculum scheme in elementary
evaluation. The OSSLT is considered in detail and in particular the issues of modification
helpful for those who are not familiar with the current subject areas, change in course
The new MET curriculum documents cover all the elementary and secondary subject
42
Ontario School Counsellors’ Association Code of Ethics, Section C: Measurement and
Evaluation. (adopted 1976, revised 1992).
20
published by the Queen’s Printer and are considered governmental conduct in the form of
content and assessment techniques. They claim to be “significantly more rigorous and
demanding,” as they are designed to introduce a broad range of knowledge and skills into
The MET began implementation of the new elementary curriculum in 1998 and finished
implementation of the Grade 12 curriculum in the double cohort year of 2002-2003. The
credit structure of the secondary level remains the same, but the course content and
standards have changed. The new curriculum replaces the prior curriculum documents
that had been in use since their respective publication dates: The Common Curriculum :
Policies and Outcomes, Grades 1-9, 1995, the Transition Years, Grades 7,8, and 9:
Policy and Program Requirements, 1992, and Ontario Schools, Intermediate and Senior
Divisions (Grades 7-12/OACs): Program and Diploma Requirements, rev. ed., 1989
(OSIS).
The creation and application of new assessment agents and tools is significant because
the new curriculum was written to accommodate the application of the assessment tools
on the learning materials, the students and the schools. The recent use of power to
assessments and evaluations is novel in its intended scope and alignment with
instrumental corporate purposes. The MET intends the new curriculum materials and
21
standards to provide the basis of approved lesson plans and teaching strategies of
As a general trend, the new curricular materials disclose an increase interest in building
community bridges and partnerships between local schools, other educational institutions,
and the employment sectors of local communities. In general, the changes are similar to
education as a means to sort individuals based on perceived merit for occupations and
education levels, emphasizing centralized approval and control over public school
The formal authority of the Minister represented by legislative devices of command and
control can be contrasted with the actual control teachers have over implementation. It
should be recognized that learning expectations are open to negotiation through the
agency of the teacher who has the discretion to relax achievement expectations in
instrumental knowledge and skills in the available classroom time. Standardized tests and
standardized measurements are an attempt to move away from the subjectivity of teacher
evaluation in deference to the belief that standard curriculum, tests, and rankings are
opportunities.
43
The Ontario Curriculum : The Arts, Grades 1-8, 1998. MET. p.1.
22
Historically in Ontario, the local autonomy of school boards was given great respect, and
local boards, schools, and teachers were viewed as autonomous agents exercising
professional judgment in the selection of course content, standards, materials, and the
overall assessment of the student based on locally marked tests and experience of the
student’s contribution to the classroom. These recent changes reverse any presumption or
deference toward local educational autonomy historically present since the inception of
education for employment related knowledge and skills, to the exclusion of other valid
aims such as education for social transformation, education toward autonomy of the
It should be apparent that within an outcomes based curriculum, the role of the teacher is
restricted to technical implementation. They are charged with managing the classroom
emphasis on measurement and grading betrays a preoccupation with the technical control
of curriculum better suited to subjects like math, science, and technology but perhaps not
There are some alternative curriculum options as well as requirements for local curricular
development that schools may have in place for students, particularly those who fail the
standards, but these programs are limited in approval duration and must be approved by
23
the school, board, and the MET, thus creating a network of approvals complex enough to
In the author’s opinion, the instrumental view unnecessarily reduces the autonomy of
teachers think of themselves as being involved in a larger social project relating to critical
In general, the new curriculum sets out what students shall know and what skills they
need to master to complete each course. The MET has streamlined curriculum so that
each stage or grade builds on and adds to the learning expectations of the prior stage or
standard timeframe as determined or approved by the MET. The Minister claims the
changes will benefit students who relocate from one school to another because each
school will be teaching the same material at the same time across the Province of
Ontario.44
The new elementary curriculum is built on the foundations of previous outcome based
learning materials crafted in the mid-nineties. The new elementary curriculum replaces
44
Ibid. p.2.
24
the old elementary curriculum. It is contained in 17 core documents that may be obtained
1. The Arts
2. Business Studies
5. English
11. Mathematics
14. Science
25
The Ontario Curriculum : The Arts, Grades 1-8, 1998.
The new arts curriculum published by the MET titled, The Ontario Curriculum : The
Arts, Grades 1-8, 1998 (“The Arts 1-8 1998”) is a standard example of the typical
previous outcomes based curriculum, the new MET curriculum document explains the
role of the parent, the teacher and the student in relation to school performance and
achievement with an aim toward communicating the curriculum expectations and use of
how to relate the subject domain to the life of the student, the importance of particular
exceptional pupils in domain area as outlined in the Individual Education Plan (“IEP”) of
Role of parent
The new curriculum encourages parents to learn about the curriculum for each grade so
as to assist their child in meeting the MET requirements. The documents enunciate the
policy of lifelong learning for students, parents and anyone interested in education.
artistic events at the school. The MET views parental involvement as important for the
26
child. The curriculum states, for example, how parental involvement at school can help
teach children to respect the handling of tools and materials in arts classes.
Role of Teacher
In some ways teachers can regard the curriculum documents as part of their job
description. The documents contain many helpful suggestions relating to teaching in the
subject domain, for example, teachers are instructed to provide hands-on activities in the
arts because children must be taught and learn through experiences with concrete
materials. The new arts curriculum directs the teacher to give all students the opportunity
to discover and develop their ability in different artistic forms and media and to learn to
appreciate works of art. Teachers are told to bring enthusiasm and a variety of teaching
address different student needs. The curriculum directs teachers and others to construct a
The curriculum “achievement” standards in Ontario express the new measurement levels
teachers are expected to use on students. The The Arts 1-8 1998 directs agents to use the
Achievement Chart, the four subject categories, and the four achievement levels when
27
The Arts 1-8 1998 assesses student achievement in relation to four categories of
• communication.
The Program Planning and Assessment Curriculum Grades 9 to 12, 2000 indicates that
the MET intends the Achievement Charts to provide a reference point for all assessment
and evaluation practices. The chart describes the levels of achievement expected within
each category to guide the teacher into making consistent judgments about the quality of
student work.
In addition to the four categories of knowledge and skill are the four achievement levels.
The same achievement levels are applied in each different subject categories. The MET
expects the new four level approach to form the basis of discourse when principals and
teachers are engaged in explaining curriculum requirements, reporting results and giving
feedback to parents and students. The uniform standards are now used throughout the
elementary and secondary grades and form the foundation of curricular expectations
28
• Level 1 – pupils achievement falls much below the provincial standard.
The new Ontario Secondary School Diploma (“OSSD”) is similar in structure to the old
30 credit OSSD but additionally requires students to pass the high-stakes OSSLT and
complete 40 hours of community service before qualifying for graduation. For those
students who began Grade 9 prior to the beginning of the 1999-2000 school year the prior
OSIS diploma requirements continue to apply. For those students who started after, the
Students are also required to prepare an Annual Education Plan that identifies student
goals and course choices with the assistance of parents, guidance counselors, and the
teacher-adviser.45 The new curriculum provides that principals are required to establish
teacher-adviser programs for each student in Grades 7 to 11 and optionally for Grade 12
45
OSS 1999:5.2 The Annual Education Plan
46
OSS 1999:5.1 The Teacher-Advisor Program
29
Secondary Accreditation
The new OSSD requires 30 credits, 18 compulsory, and 12 optional. Each credit is 110-
hours of MET developed or approved course material, a half course is 55 hours. The
optional, with substitution options available.47 If a student leaves school with less than 14
the OST.
The secondary school curriculum is divided into junior and senior secondary levels. The
junior Grade 9 and 10 courses are offered in academic, applied or open streams of study.
The senior Grade 11 and 12 credits are streamed toward university preparation,
The core compulsory credits for the Ontario Secondary School Diploma are48:
4 in English
3 in Math
2 in Science
1 in Canadian History,
1 in Canadian Geography
1 in the Arts
47
OSS 1999:3.2.
48
OSS 1999, Appendix 5.
30
1 in Health and Physical Education
1 in French (FSL)
Studies.
The Ontario Curriculum: English, Grades 9 and 10 1999 is a typical example of MET
curriculum at the secondary level. The document includes information directed toward
explaining the role of the subject in the curriculum. For example, the MET states that
learning to communicate with clarity and precision will help the students to thrive in
teaching the curriculum expectations and use the Achievement Chart for English.
The courses are either compulsory or optional. Substitutions for compulsory courses may
be offered by the school if they meet the requirements for compulsory credits. If course
substitutions are deemed acceptable, the principal may replace up to three compulsory
courses to meet the compulsory credit requirements, as per MET policy. Principals are
required to note each substitution on the student’s OST.49 Students are permitted to switch
streams in Grade 9 and 10, but if a student wants to switch streams in senior secondary
they must first pass a half credit transfer course. For example, a Grade 10 academic
49
OSS 1999:3.2.
31
course in English is prerequisite for Grade 11 university preparation course, a student
who has taken the applied Grade 10 English can take the Grade 11 university course only
if they first pass the transfer course.50 The transfer courses are intended to cover gaps of
information or skills not taught in the applied streams. However, it is difficult to view the
new requirement as anything other than an additional systemic barrier for working class
and other children typically streamed into applied courses who want to obtain a first-class
educational credential.
Community Involvement
The community involvement activity must be completed outside the student’s normal
institution, or in more informal settings. Students may not fulfill the requirement through
activities for school credits, paid work, or by assuming the duties normally performed by
paid employees.51 The power to decide whether a student has met the MET and Board
requirements for community involvement is delegated to the principal by the OSS 1999.52
The MET requires documentation with the name of the person (or organization) receiving
the service, the activity performed, the dates and hours, the signature of the student and
his or her parents (or guardians), and a signed acknowledgement by the person (or
organization) involved.53
50
Ontario Curriculum, Grades 9 to 12: Program Planning and Assessment, 2000. MET. p.3.
51
Ibid. p.9.
52
OSS 1999:3.1.3.
53
OSS 1999:3.1.3.
32
Ontario Secondary School Literacy Test
The OSSLT is an example of a high-stakes test based on the expectations for reading and
writing in the Ontario curriculum up to and including Grade 9. Students are expected to
write the exam in Grade 10. The test must be passed by all students who enter Grade 9 in
the 1999-2000 school year or in subsequent years in order to earn the OSSD.54 If the
student fails the test they may retake it at another time. A successful test result is recorded
as a pass on the student’s OST. Schools and boards are required to provide remedial
The new curriculum offers some alternative curriculum expectations for a small number
of students based on special needs.56 The MET provides that private study may be
acceptable when a school does not offer a course or when reasons for absence from
school are acceptable and valid.57 Independent study can also be undertaken through the
offers correspondence and GED courses to students in accordance with the Independent
54
OSS 1999:3.1.4.
55
OSS 1999:3.1.4.
56
OSS 1999:5.4.4.2.
57
OSS 1999:6.8.3.
58
available at the Independent Learning Center website at http://ilc.edu.gov.on.ca
33
The MET also provides that school boards and teachers may develop Locally Developed
Courses to meet the needs of students not met by MET curriculum policy documents as
set out in the Guide to Locally Developed Courses, Grades 9 to 12: Approval
Requirements and Procedures, 2000. Optional credit courses may be developed locally in
any discipline. Locally developed courses do not replace other compulsory credits and
will be identified on the OST.59 A board may develop locally one course in English,
It should be noted as well that Roman Catholic School Boards may develop credit
courses in religious education and the curriculum expectations related to them without
approval of the MET.60 Students may earn up to 4 credits in religious education. Another
MET approved alternative to the new curriculum is the Ontario Youth Apprenticeship
Program that permits students in Grades 11 and 12 to accumulate hours toward the
Teachers and Principals are required to apply assessment and evaluation programs
developed by the EQAO within the school. The Ministry policy sets out the meaning of
59
OSS 1999:7.1.2.
60
see Gallagher v. Winnipeg School District No.1 (1963), 45 W.W.R. 577, 42 D.L.R. (2d)
370 (Man.Q.B.) and also OSS 1999:7.1.3.1.
34
achievement in relation to the Provincial expectations and includes providing feedback to
the student. The term “evaluation” is reserved for the process of judging the quality of
student work on the basis of established criteria, and assigning a percentage grade.61
The MET claims that the new assessment and evaluation techniques will provide
information about student’s strengths and weaknesses that can be used to improve
instructional programs and student achievement. The MET requires teachers and
assessment procedures in relation to the learning goals in the subject area and the specific
MET policy and the provision of specialized services or other accommodations are
The EQAO has released many new academic assessment tests to be used on students.
The Ontario Curriculum Exemplars Project, 1999 details methods of literacy curriculum
assessment for Grade 1 students. The Writing Exemplars: Year-end Writing Task provides
detailed instruction for the teacher on how to test and assess the students on writing skills
and conventions. The core formal EQAO testing program is outlined online on the EQAO
website.63
The EQAO has developed and requires school boards to administer and report on the
35
a) a Grade 3 and Grade 6 Assessment of Reading, Writing and Math,
The Grade 3 and 6 assessment of reading, writing and math are based on the expectations
set out in The Ontario Curriculum, Grades 1-8. The Grade 9 math assessment is also
based on curriculum expectations and results in an Individual Student Report (“ISR”) for
The EQUIP and Improvement Plans can be requested by the EQAO on a school by
school, board by board basis to ensure that all schools and boards comply with EQAO
testing mandates. The EQAO may require a board to develop an Action Plan to address
respects, the EQAO shares the full powers of the Minister in relation to the
36
All students, including exceptional pupils, are required to pass the MET diploma
expectations, credits and standards in order to obtain the OSSD. School boards are
to participate in classroom activities. For some exceptional pupils the curriculum policy
documents will be modified to meet the needs of the student to the point of adopting
The first level of support for students experiencing difficulties in school is at the
classroom level. The classroom teacher should make every effort to differentiate or
modify program content, teaching strategies and evaluation. These in-class efforts to
differentiate/modify the learning environment by the classroom teacher are the initial and
most important steps to meet the needs of exceptional students in the regular classroom.
barriers for particular individuals and groups in order to protect against the exclusion of
people who are disabled within our schools by the introduction and enforcement of
discriminatory barriers. Schools must identify barriers that prevent the full participation
37
attitudes, organization and management in order to be inclusive and counter the historical
segregation and discrimination against people who are disabled within schools.64
The term “disabled” is used to include many different kinds of people who live with
impairments, whether those impairments are physical, sensory, health related, learning
Disabilities can be visible, episodic and temporary in nature; not every person who is
considered disabled has an impairment, however people who are disabled encounter
Physical barriers may exist in the form of a separate school system or inaccessible
buildings and equipment. Communication barriers can exist such as a lack of appropriate
appropriate computers and communication aids. Social barriers may exist in the form of
isolation from the mainstream, streaming, and separate schools for people who are
disabled. Attitudinal barriers can exist in the form of ignoring, bullying, devaluing, or
denying the history, experience or culture of people who are disabled. Educational
64
“Special Educational Needs or Inclusive Education. The challenge of disability
discrimination in schooling.” Richard Rieser. Education, Equality and Human Rights. Cole
(ed). (2002).
38
appropriately accommodated, or whose impairment were not considered in high-stakes
test design.
Placement and Review Committee (“IPRC”) established by the local board.65 In Ontario,
the Minister has the power to define exceptionalities of pupils, prescribe classes, groups
or categories of exceptional pupils, and require boards to employ such definitions or use
such prescriptions.66
Section 10(1) of the Ontario Human Rights Code, R.S.O. 1990 provides a broad
caused by bodily injury, birth defect or illness and, without limiting the generality
65
Education Act 1990. s.1.
66
Ibid. s.8(1)35(3)(b).
39
(c) a learning disability, or a dysfunction in one or more of the processes involved in
(e) an injury or disability for which benefits were claimed or received under the
In Ontario, the Minister, the EQAO, school boards, principals, and teachers all have
statutory and regulatory duties in relation to the exceptional pupil. The statutory duties
imposed by the Province are meant to protect some basic constitutional obligations
toward special education children. The Education Act 1990 obligates the Minister to
ensure that all exceptional children have available to them appropriate special education
programs and special education services without payment of fees by parents or guardians
resident in Ontario.67 School boards are required to provide special education programs
and special education services to exceptional pupils68 and implement procedures for early
exceptional pupils is clear criteria for entering and requiring special education programs
and services through the IPRC process. Each school board is obligated to establish one or
more IPRC responsible to describe the student’s strengths and needs, determine the
67
Ibid. s.8(1)35(3).
68
Ibid. s.170(1)7.
69
Ibid. s.8(1)35(3)(a) and Special Education Programs and Services (R.R.O. 1990, Reg.
306).
40
content of an “appropriate” special education program, and to make student placement
decisions.70 The Minister is required to ensure that decisions of the committee are open to
adequate appeal procedures for parents and guardians who want to appeal the
of the committee decision of whether a pupil is exception or not as well as the placement
decision but there are no appeal procedures available for IPRC recommendations
The placement recommended by the IPRC governs the location of the student, and any
education services, would meet the needs of the student and be consistent with the
education class.72 Overall, the board is obligated to find a placement that is in the best
interest of the exceptional pupil.73 If a parent or guardian, at the end of the process, is
dissatisfied with the placement they may appeal to the Ontario Special Education
The second stage of this accountability structure is an Individual Education Plan (“IEP”)
in the form acceptable to the Minister outlining student learning expectations and special
41
program expectations, strategies and methods of evaluation by which student progress
will be reviewed.75 In developing the IEP the principal is required to consider the
programs and services. An IEP is to be developed and maintained for every student who
is identified as exceptional and may be prepared for students who are receiving special
education programs and services but not identified as exceptional by an IPRC. Parents
and students are to have access to clear documentation and information concerning the
pupil’s IEP. It is the responsibility of the board to notify principals of the need to develop,
According to the EQAO “accommodations” are supports and services that enable
students with special needs to demonstrate their competencies in the skills being
measured by the test. Accommodations do not alter the content of the test.
and as such the EQAO does not permit modifications of the OSSLT.
accommodations that will enable them to participate in regular classroom activities, and
pupils must also receive the same accommodations on tests like the OSSLT. A student
75
Identification and Placement of Exceptional Pupils. (O.Reg.181/98) s.6(2).
42
does not have to be identified as an “exceptional pupil” by an IPRC to receive an IEP and
The EQAO permits adjustments to the test-taking environment, to the time allowed for
taking the test, as well as to the format of the test and response paper, for example, a
larger font for the visually impaired. Accommodations that are not permitted include
answering students’ questions during the test, clarifying test questions, providing
The EQAO sets out very specific accommodations, and procedures to follow if the
for in the IEP and by the EQAO then the principal is required to provide the
accommodation for the student during the test. If the accommodation is not provided by
an IEP for whatever reason, a student may submit a request for consideration to the
by the IEP but not permitted by the EQAO then the parent or student may submit a
request for consideration to the Chief Assessment Officer of the EQAO. The EQAO has
To be eligible for an exemption of the OSSLT the student must have an IEP with
documentation to support the exemption, and the IEP must indicate that the student is not
working toward the OSSD, otherwise the student must write the test to obtain the
credential. Such a situation may provide the opportunity for an exceptional pupil who is
76
EQAO Guide for Accommodations, Special Provisions, Deferrals and Exemptions. OSSLT, Oct
2002. Revised for 2002-2003. p.7.
43
receiving a significantly modified curriculum or left unassisted in the classroom to make
a claim for discrimination and denial of the benefit of an appropriate and accessible
education.
Students with learning disabilities may have difficulty with the physical act of writing
and they can have significant impairments in their ability to read and visually process
information. Dyslexics, for example, may have severe or moderate difficulty with
spelling, punctuation, and grammar. These problems are not the same as those of non-
disabled students who have spelling problems. Accommodations like extra time are
required for students with learning disabilities not because they are having difficulty
answering the questions, but rather because they are struggling to read the test. Students
who have difficulty with the physical act of writing will require wordprocessors. In
words and meanings when reading. Multiple-choice tests that do not provide sufficient
context for these students may fail to provide an equal opportunity for them to even
The first OSSLT was administered in the 2000-2001 school year as policy program
memorandum No. 127: Ontario Secondary School Literacy Test (“OSSLT”). The test
results from the second sitting in February of 2002 have been recently posted on the
EQAO website. The second sitting showed improved scores with only an average of
44
twenty-five percent of students failing either the reading or the writing component of the
When you look at the results from a class and disability perspective however, one finds
that 87% of the 66,577 students in the academic steam passed while only while only 44%
of the 21,581 applied stream students, and 37% of ESL students and those with learning
disabilities passed both the reading and writing component.77 Of the 18,784 Grade 10
students in the Toronto District School Board, 41% failed the 2002 sitting. At the Toronto
Catholic District School Board, 38% failed, and in special education settings such as
Mississauga’s West Credit Secondary School only 5 of the 136 vocational school students
passed the test.78 Such performances suggest to some researchers that test scores are more
reflective of the background knowledge and culture of students than reading ability.79
The boards explain the negative results by referring to large numbers of ESL and special
education students who have an overall negative impact on the scores; in other words,
they recognize that the test has a disproportionate effect on exceptional and ESL student
populations. When Ardeth Staz, EQAO Chief Assessment Officer, was asked about the
high rate of special needs children who failed, she questioned whether it was a reasonable
goal for schools to expect a particular exceptional pupil (who failed the literacy test) to
77
The Toronto Sun, Tuesday October 1, 2002. “Test results tickle Tories. Literacy scores
up 7%.” p.17
78
The Toronto Sun, Friday October 4, 2002. “T.O. didn’t make grade. Below-average scores
in Gr.10 literacy test.” p.21.
79
Murphy, S. “No-one has ever grown taller as a result of being measured” Revisited. More
Educational Measurement Lessons for Canadians. Portelli and Solomon (Eds.) The Erosion of
Democracy in Education (Detselig Ent. Ltd. Calgary. 2001). p.156.
45
get a diploma in the first place.80 Liberal opposition spokesperson advocated in favour of
environment concerning mental disability issues, they might be more willing to examine
issues relating to the assessment and evaluation system. Students with modified or
alternative expectations may not have the same opportunities to pass tests like the OSSLT
and they are not as likely to be encouraged to pursue graduation with an OSSD. In any
case, modified curriculum expectations can create the potential for discrimination based
on attitudes that assume lower expectations and standards for exceptional pupils,
resulting in a special diploma that leads to fewer opportunities, in a sense forcing them to
sink or swim within the mainstream environment to obtain the 30 credit academic OSSD
Effects of Standardization
Some recent research suggests that standardized curriculum and standardized testing
models fail to accommodate knowledge concerning how children learn to think and
reason. A typical standardized model asks students to memorize and regurgitate isolated
facts and to choose a right answer, in deference to authority, rather than develop critical
thinking skills, local knowledge, or social perspectives concerned with the conditions of
80
The Toronto Sun, Tuesday October 1, 2002. “Exam fails special needs kids.” Brodie
Fenion. p.17.
46
Educator, Paulo Freire has contributed his idea of the “banking system of education” to
popular discourse which describes American style education systems where the student
records, memorizes and repeats phrases like “Four times four is sixteen; the capital of
Quebec is Quebec City,” without perceiving what four times four really means, or
realizing the true significance of “capital” in the affirmation “the capital of Quebec is
Quebec City,” that is, what Quebec City means for Quebec and what Quebec means for
but as an act of depositing, wherein the teacher is required to deposit and the student is
required to patiently receive, memorize, and repeat the information given out by
authority. The emphasis on instrumental learning promotes the idea of education for
employment related knowledge and skills, to the exclusion of other valid aims such as
education for social transformation, education for the autonomy of the person, or
Trends toward standardized testing displace the child-centred focus of local assessments
“accountability” of schools through improved tests scores has or may become the focus
of educators who are pressured to increase scores and rank at the expense of other
diminishes the use of valid alternatives to assessing student ability and merit.
Studies report that widespread and extensive use of high-stakes tests often results in a
narrowing of the school curriculum and inflates the importance of standardized tests. The
47
tests have the potential to set the curriculum agenda as they create incentives and pressure
to focus on the subjects being tested at the expense of other subjects such as fine arts,
physical education, social studies, and the sciences. The test content becomes more and
more determinative of what is taught.81 EQAO action plans posted on the website indicate
teachers spend valuable curricular time rehearsing for the test rather than engaging the
curriculum directly.
Under standard test regimes schools are pressured by the public and the press to improve
test scores or face accusations of incompetence. Many educator’s recognize that they
must address a broad range of student learning needs and not just the subjects or parts of
subject areas covered on reading, writing, and math tests. When schools performs poorly
on tests, however, the principal, teachers, and staff come under pressure to raise scores,
and if they perform poorly for an extended period of time, they are pressured to raise
scores at all costs. The effect of this pressure on schools is a consequential narrowing of
the curriculum as more and more time is spent in preparation for the test. It is likely that
such a result has a disproportional effect on students who are disabled, whether it be
children with learning difficulties or children who require significant modifications and
the blind, sign language for the deaf, or the specialized programs that help children who
are autistic.
81
Farr, R. and Beck, M. (1991). “Evaluating Language Development: Formal Methods of
Evaluation.” In Handbook of Research on Teaching the English Language Arts, ed. J.Flood,
J.M. Jensen, and J.R.Squire, pp. 489-501. New York: Macmillan Publishing Company.
48
What can be observed in the United States, the U.K. and other areas that use standardized
testing to sort students, is how standard test scores are used in public to provide political
it is not the testing, but the appearance of control and surveillance, of being in charge,
that matters.
The validity of test use and interpretation is based either on evidence of methodological
validity, when the test does what it is designed to do with a small margin of error, or its
validity is assessed in light of its consequences, the value implications and social
stratification of students.
Some researchers conclude that high-stakes standardized testing should not be imposed
on students with learning disabilities unless those tests have been properly validated for
their use and for those students.82 Methodological analysis demonstrates the need for each
standardized test itself to be tested over a length time before full implementation with
high-stakes consequences particularly for people who are mentally disabled. The test
content, format and curriculum must be studied in relation to each particular group of
people who are disabled. Some research concludes that a lead in time of 5 or 6 years is
necessary to properly introduce, validate, phase-in, and adjust any high-stakes test
82
Do No Harm – High Stakes Testing and Students with Learning Disabilities. A Report by
Disability Rights Advocates 2001. Oakland Ca. www.dralegal.org p.2.
49
Researchers in the United States have suggested that knowledge assumed by standardized
tests invariably systematically advantages some and disadvantages others.83 Because the
concept of ranking is built into the design of standardized tests some people will score
above the average and some people will score below the average. The problem with
ranking is that it does not indicate why test scores are high or low. Ranking invites
simplistic and misleading comparisons which ignore the particular circumstances that
affect achievement in each school, and serves to distract people from addressing the
critical issue of how to improve learning for all students. In general, if a group taking a
test is demographically similar to the original norming group and is sufficiently large then
variability in student performance on that test is likely due to the students’ knowledge
and/or ability rather than some issue in test design, and the scores will be normally
distributed.84 However, if initial norms were inaccurate, the purpose at odds with the use,
if the test becomes outdated, or no studies were ever conducted to search for bias against
particular groups, such as the mentally disabled, then the tests are not reliable.
Test developers typically make a serious effort to eliminate items that discriminate, on an
item by item basis, against people because of race, gender, and some disabilities, but
issues of class are usually avoided. The analysis of class discrimination within
and other informational tools, which are likely to enhance success in school for these
83
Murphy, S. (1994). “No-one ever grown taller by being measured – Six educational
measurement lessons for Canadians. In L. Erwin and D. MacLennan (Eds.), Sociology of
Education in Canada (pp.238-252). Toronto: Copp Clark. p.244
84
Ibid. P.243.
50
populations. It should be noted that this research contradicts the popular assumption that
It is quite possible that inaccurate initial norms and “teaching the test” are reasonable
explanations of why some schools do better than others.85 In other words, if schools do
improve tests scores it is just as likely the result of some change to the test or some form
of corrupt teaching practice rather than improved teaching and learning. Tests that rank
schools based on somewhat arbitrary norms appear in the media to bolster the credibility
of rich white schools while lowering the public’s esteem of poor schools with large
Before reliance is placed on high stakes assessment it should be known whether the tested
content was appropriately incorporated into the curriculum, materials, and instruction for
the students prior to the test. The test content must be aligned with the curriculum
requires significant curriculum modification that displaces portions of the tested material
used to create the test, should be considered for an exemption of the standardized test,
otherwise they may have valid grounds for a claim of discrimination as they were not
provided with the same opportunity as other students to pass the test if they were not
taught the same material. Such a situation may provide the opportunity for an exceptional
85
Cannell, J.J. 1988. “Nationally normed elementary achievement testing in America’s
public schools: How all 50 states are above the national average.” Educational
Measurement: Issues and Practice 7:5-9.
51
classroom to make a claim for discrimination and denial of the benefit of an appropriate
measurement and reporting in order to ensure valid test results. A test is not valid in itself,
but is valid only for a particular purpose and a particular group. Tests must be used for
the stated design purpose and be appropriate for the intended test-taking population.86 To
be valid each test should include a measurement of standard deviation attesting to its
reliability and accuracy in relation to each intended use, and a search for unintended
validity for their intended purposes, there is potential for serious harm.
Consider an analogous case concerning the reliability of high-stakes testing results for
ESL students who are learning English as a second or third language. They will be in the
classroom and expected to achieve the same curriculum expectations as others in each
subject and grade. If a student is taking a test in a second language however, the test
becomes, in part, a test of language proficiency. ESL students who are learning English
and want to obtain the OSSD for future opportunities will have to take the OSSLT
literacy test.
86
Joint Committee on Testing Practices 1988, Section A, as cited in Murphy, S. (1994).
“No-one ever grown taller by being measured – Six educational measurement lessons for
Canadians. In L. Erwin and D. MacLennan (Eds.), Sociology of Education in Canada (pp.238-
252). Toronto: Copp Clark.
52
The MET is aware of the need to accommodate students who are learning English as a
Second Language and the need for appropriate modifications of teaching, learning, and
evaluation strategies to meet the needs of ESL students in the regular curriculum. The
Ontario Curriculum : Language, Grades 1-8, 1997 notes that schools will require special
programs and other forms of support for ESL students at various stages of language
learning and requires all teachers in all grades to adjust their programs and assessment
methods to “support and challenge” the students. The MET policy acknowledges that
ESL students may need up to seven years to acquire a level of proficiency in reading,
writing, and abstract thinking that is equivalent to speakers of a first language because the
student needs time to develop English skills before their achievement can be accurately
Schools are encouraged by the MET to assist students to acquire English language skills
to help them participate in learning activities to the same degree as their peers so they
may better meet the curriculum expectations. However, if a student has not yet acquired
the level of proficiency in English required to complete the OSSLT successfully then they
are not likely to be participating fully in the classroom or covering the same material that
the test is based on, and they are not likely to receive the OSSD until they have been
given enough time that their English is sufficient to overcome any unintended obstacles
in the language of the test itself. In the case of the OSSLT, the EQAO recommends a
deferral of the test if the student is not proficient enough in English to pass the test and
53
enrolled in an English as a Second Language (“ESL”) or English Literacy Development
(“ELD”).
One may validly doubt the reliability of test scores for ESL students who take the test if
the Province fails to adjust or interpret the scores without taking into consideration the
individual’s language proficiency. Any interpretation of test results for ESL students
would need to take into consideration the language proficiency of the student before
accurate results could be obtained. In the absence of competent interpretation, such scores
are unreliable although not obtaining the OSSD is very real. The tests will also likely
contain cultural biases that are likely to remain as obstacles toward achieving a valid
What is interesting about ESL issues in relation to children who are disabled is the
potential for a learning disabled ESL child to claim systemic discrimination through the
establish the validity of test scores. The issue of accommodation might explore the
adequacy of interpreting the validity of tests scores in relation to the needs of ESL
54
The Canadian Charter of Rights and Freedoms, 1982 is intended to restrict the Province
from actions that may result in a denial of equality before or under the law or a denial of
its equal protection or benefit. The Supreme Court of Canada has entertained some
notions of equality infringements in school debates over the inclusion of special needs
met with limited success in Ontario, it is not inconceivable that such an argument might
one day succeed under either the Ontario Human Rights Code (R.S.O. 1990, c.H.19) or
Arguments in favour of the need for strong modifications and accommodations to prevent
discrimination against people who are disabled have been successful in foreign
jurisdictions like the United States and the United Kingdom. For example, the parties in
Advocates for Special Kids et. al. v. Oregon State Board of Education et. al. conducted a
found that the system was unfair to students with learning disabilities and made many
The Ontario Human Rights Commission recently released a report entitled “Education
claims of discrimination from people who are disabled in educational settings. Some of
the claims raise basic issues of inclusion and access. Parents of exceptional children in
elementary and secondary schools have reported situations where appropriate supports
87
Eaton v.Brant (County) Board of Education (1996), [1997] 1 S.C.R. 241, 142 D.L.R. (4th)
385 Sopinka, J. (S.C.C.).
55
and accommodations are in dispute or not available and children have lost significant
classroom time. At some private schools and vocational colleges they refuse to accept
condition of admission.
The courts in Ontario may soon be asked by disability advocates to review the
constitutional status of standardized tests in high schools in relation to the potential for
lifelong stigma and/or prejudice for people who are disabled. The main issue is not
whether there should be accommodation or modification but rather to what extent must
There are two basic claims that may go before a court or tribunal in relation to special
education students and schools. The first type of claim is based on the negligent actions
of educational agents who fail to provide an “appropriate” special education program and
malpractice” the claim is similar to other professional malpractice suits which hold
members of a profession responsible for judgments or actions that fall below a minimum
cases generally arise under circumstances where children fail to learn to read, or where
malpractice claims have not been successful in Ontario, in fact the courts have expressed
a general reluctance to establish standards for teachers and others in this regard.
56
Particular applications of high-stakes testing may result in claims of negligence against
in psychometric programs if they have been negligent in the exercise of their duties by
unequal access, unintended effects, or even the use of outdated tests. Because the use of
high-stakes test scores may result in significant consequences for “failures,” the courts
The second type of claim that typically arises is based on equality guarantees which in
Canada are grounded in Section 15(1) of the Charter which reads: “Every
individual is equal before and under the law and has the
may be anticipated that one day a court will look at the s.15(1) Charter issue to determine
whether use of high-stakes testing in Ontario unfairly discriminates against persons with
disabilities. Rigid expulsion policies affecting students with disabilities that are
associated with behavioural issues, the application of standardized tests without proper
the failing of emotionally disturbed children might be enough to claim a case of prima
facie discrimination.
57
The Charter may be infringed either by legislation, or by the actions of a delegated
decision-maker in applying the legislation. School curricula are not consider legislation
by the courts in Ontario but rather are considered governmental conduct, 88 the remedy for
which is to be sought pursuant to the enforcement provisions of s.24(1) rather than the
There are two steps under a s.15(1) analysis.89 The first step is to determine whether the
questioned law or policy creates a distinction between the claimant and some other
person based on personal characteristics that deny the claimant’s right to equality before
The second step is to consider whether the equality right denied was denied on the basis
and whether that distinction has the effect of imposing a burden, obligation or
advantages which are available to others. If established then the onus shifts to the state to
There is one major Supreme Court of Canada case that has applied this section of the
Charter in the context of the rights of exceptional pupils. Eaton v.Brant (County) Board
88
Canadian Civil Liberties Assn. v. Ontario (Minister of Education) (1990), 65 D.L.R.
(4th) 1, 71 O.R. (2d) 341, 50 D.L.R. (4th) 193 (Div.Ct.).
89
See Miron v Trudel, [1995] 2. S.C.R. 418 and Egan v. Canada, [1995] 2 S.C.R. 513 at
584.
58
of Education [1997] Sopinka J. (S.C.C.) (“Eaton”).90 In that case, the parents of a 12-
year-old girl, Emily, sought judicial review of the Special Education Tribunal’s order to
place Emily in a special education program. Emily was unable to communicate at any
time, she was partially blind and required the use of a wheelchair. After three years of
placement in the regular elementary grades, the school staff concluded the regular
placement was no longer in Emily’s best interests. The underlying issue in Eaton is who
determines what is in a particular child’s best interests. The case makes clear that the
choice of the parent is not determinative of what is in the child’s best interests. The
Supreme Court of Canada reversed the Ontario Court of Appeal decision and upheld the
Tribunal’s order after concluding that its actions did not infringe any s.15(1) Charter
rights. The court recognized “integration” as a norm of general application because of the
benefits of integration, however, they were careful to articulate that special education
within integrated settings because such presumptions might operate by default and not on
the merits of what is in the best interests of each particular child. The reasoning of the
individual and the context. This produces, among other things, the
equality and violative of equality depending upon the person and the
90
Eaton, Supra note 111.
59
opportunity in education. While integration should be recognized as the
achieve equality. Schools focused on the need of the blind or deaf, and
added).91
Increasingly courts and tribunal may be asked to review a rising number of special
education cases on the basis of an equality claims, not just concerning “appropriate”
placement but also related to “appropriate” programs and services, special education
funding, accommodation, and the very existence of segregated settings. Such an analysis
settings and funding, for children who are disabled in Canada. The Ottawa-Carleton
District School Board, for example, has been instructed by the Ministry to adopt an
to reduce the cost of expensive special education programs and schools that were built for
these children prior to the overhaul of the tax powers of school boards. School closures
and funding cuts to special education programs in jurisdictions with a proportionally high
incident rate of exceptional pupils may offer a fresh perspective to the court when
60
In Eldridge v. British Columbia (Attorney General), [1997] 3. S.C.R. 624 (“Eldridge”) at
issue was the decision of a delegate authority to determine whether a service qualifies as
a benefit. The Supreme Court of Canada ruled that under the medical health legislative
scheme in B.C. the government was required to take special measures to ensure that
disadvantaged groups were able to benefit equally from government services. The court
found a prima facie violation of the Charter when government policy was to ensure that
all residents receive medically required services without charge and hospitals did not
people to communicate with doctors. The only question for the court in Eldridge was
whether the appellants were afforded “equal benefit of the law without discrimination”
within the meaning of s.15(1) of the Charter. Discrimination occurred as a result of the
failure to ensure that deaf persons benefited equally from a service offered to everyone.
When the court accepts a prima facie act of discrimination under one of the enumerated
or analogous grounds of s.15(1) then the onus shifts to the state to justify the
1 of the Charter.
In Eldridge, the court found the principle of “reasonable accommodation” was equivalent
to the concept of “reasonable limits” and best addressed within the Section 1 analysis
61
1. it adopted the standard for a purpose or goal rationally connected to the function
being performed,
2. it adopted the standard in good faith, in the belief that it is necessary for the
3. the standard was reasonably necessary to accomplish its purpose or goal, because
the defendant could not accommodate persons with the characteristics of the
claimant without incurring undue hardship, whether that hardship takes the form
In Eldridge the court found that the government failed the minimal impairment branch of
the Section 1 test by failing to provide sign language interpreters. The government did not
demonstrate “that it had a reasonable basis for concluding that a total denial of medical
interpretation services for the deaf constituted a minimum impairment of their rights.”
Conclusion
testing which typically result in accreditation inequality in the adult competition of jobs
and other opportunities may be considered a denial of equal benefit under the law for
people who are disabled. The research on standardized testing demonstrates the potential
62
for significant issues of discrimination based on class, race, gender and disability. The
research indicates the need for a high level of expertise and care in the administration and
use of standardized tests. Standardized curriculum and testing standards may fail to
and consequences of failure, negative attitudes and stereotypes, and the expectation for
separate and unequal accreditation have the potential to create conditions of prejudice and
stigma for people who are disabled, who then also suffer exclusion from future
educational, professional, and social opportunities as well as being denied the opportunity
With higher standards in schools and a disproportional rate of failures among ESL and
exceptional children, the courts may be more willing to examine the issues of bias in
high-stakes test design, administration, and reporting in relation to the protection afforded
to children who are physically or mentally disabled in a free and democratic society. It’s
one thing to provide standards for children and ask them to perform to a certain level of
academic opportunities because they did not complete, failed, refused or were not
63