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CHAPTER – CURRICULUM AND POLICY – Statutory Obligations and 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 testing on (dis)abled students and others in Ontario schools.
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 the obligations of educational agents in relation to curriculum, assessment and their relationship to exceptional pupils.
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 implications of standardized curriculum and testing on the delivery of special education 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.
Background of Curriculum Changes
To say that education in Ontario has recently undergone changes as directed by the Tory provincial government is a bit of an understatement. The introduction of new legislation, new educational agencies, new curriculum expectations and levels, as well as the implementation of province-wide standardized tests of uniform content and materials have all contributed to a new Tory stamp on education in Ontario.
The trend toward outcome-based learning in education in Ontario was consolidated 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 Education and Training (“MET”), in January of 1995.
In 1996, the Tory revolution established the Education Quality Accountability Office (“EQAO”) as an institutional watchdog to administer MET approved policy in curriculum 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 achievement and sanction school failure.
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 years to maintain professional status.
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 Improvement Commission (“EIC”). A report by the EIC published in August of 1997 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 extending “accountability” and bureaucracy in school administration through new testing and reporting duties of students, teachers and schools.
Following these large structural changes, the Province mandated an almost complete rewrite of elementary and secondary curriculum materials with updated learning 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
or worse, a new industry of educational assessment in Ontario during a time of shrinking fiscal resources.
The changes in curriculum firmly entrench an instrumental view of education in the mainstream and in the media directed toward preparing the student for the realities of the workplace. A standardized central curriculum coupled with outcome-based assessment 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 surrounding the validity of technoctatic-meritocratic ideologies typically emphasize the productivity of individuals in economic markets and foster an acceptance of inequality in society on the basis of “objective” assessments of individual technical and cognitive skills.
The new curriculum and testing intends to sort students in relation to public achievement standards, an activity that may result in long-term systemic social stratification of individuals and historically oppressed groups. If the Province intends to rely on 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 Ontario have declined to interfere in matters of provincial curriculum policy, the 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
disabled. A question of this type for a court would involve the clarification of the minimum methodological standards for the Province in relation to the design, administration and reporting of tests and particular disabilities, an exploration of the effect of high-stakes testing on standardized curriculum, and whether current standards in Ontario fall above or below the constitutional and statutory obligations in relation to the duty to accommodate people who experience a wide range of impairments, including 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”)
Part I : Legislative Framework for Curriculum and Assessment
The opening of this Chapter is intended to help the reader develop a greater understanding of curriculum issues through a review of the sources of educational 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 educational agencies engaged in the administration of schools, the implementation of curriculum, teaching, testing, reviewing, and reporting of curriculum achievements.
General Powers and Duties of the Minister of Education and Training
Curriculum design is a profoundly value-laden ideological exercise. The Province of Ontario grants the Minister the statutory basis to control curriculum content and procedures or delegate responsibility to other educational agencies legally obligated to comply with provincial curriculum policy expectations and implementation procedures. 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, principals, teachers, students, parents, school councils, special education advisory committees, professional learning committees and others only insofar as it has been expressly delegated.1 Delegated powers of those agencies are governed by statutory 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 guidelines, approve assessments of academic achievement, and require that courses be taught in accordance with policy.2
The Education Act, (R.S.O. 1990, c.E.2). s.8. Ibid. s. 2(4).
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 as the dispersal of delegated approval mechanisms, student and teacher evaluation 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 allocations that is of particular importance to the educational publishing industry and other private sector partnerships in education that influence the shape and content of school curriculum materials.
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 payment of fees by parents or guardians resident in Ontario.7 The content of an “appropriate” special education program is determined by a Special Education Identification, Placement and Review Committee (“IPRC”) or an Ontario Special Education Tribunal.
3 4 5 6 7
Ibid. Ibid. Ibid. Ibid. Ibid.
s.8(1)3.2. s.8(1)3.1. s.10.1. ss.8(1)4-7. s. 8(1)35(3).
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 a few Charter limitations in the form of equality guarantees.
The Role of the Curriculum Services Canada and the OCC
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 Implementation Partnership9 and the Ad Hoc Advisory Committee of the Curriculum Implementation Partnership10 is comprised of over 25 stakeholder organizations organized to participate in and oversee the implementation of curriculum process.11
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
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.
Curriculum Update. Elementary/Secondary Implementation Issue 3. MET. Winter 2000.
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.
The OCC is dedicated to MET contract fulfillment and is a branch of Curriculum Services Canada (“CSC”), formally founded in August of 1999. The CSC is an outgrowth of an Ontario based not-for-profit curriculum clearinghouse established and funded by the 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 management systems by international standards.
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 “innovative, hands-on, teacher-driven, classroom-centred professional development programs” focusing on,
“History of Curriculum Services Canada,” www.curriculum.org/csc/csc_history.pdf. p.65. 13 Ibid.pp.35-36.
• • •
assessment strategies for an instrumental outcomes-based approach to learning, implementation of curriculum documents in the classroom, and classroom management skills and techniques.
What is absent is consideration of the student and the role of the teacher beyond technical application of instrumental materials.
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 ownership or permissions as well as a review of the material to minimize claims of copyright infringement or offensive materials.
Statutory Obligations of the Education Quality and Accountability Office
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 techniques permit teachers to enhance student achievement while promoting consistency 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
school boards and students as set out in the Education Quality and Accountability Office Act, 1996 (S.O.1996, c.11) (“EQAO Act 1996”).
The EQAO board is charged with evaluating the quality and accountability of elementary and secondary schools in Ontario, as well as developing, administering and marking 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 any expressed conditions or restrictions.16
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 control and approval.19
14 15 16 17 18 19
Education Quality and Accountability Office Act, 1996 (S.O. 1996, c.11). s.6(1). Ibid. ss. 6(1-2). Ibid. ss.16(3-4). Ibid. ss.25(1-2). Ibid. s.25(3). Ibid. ss.22(1-2),23(1-2).
Duties of the Student
The main obligation placed on students in Ontario is a requirement to be enrolled in 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
Statutory Obligations of the Ontario District School Boards
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 approved policy on curriculum, testing and reporting.
20 21 22 23
The Education Act 1990. s.21. Education Quality and Accountability Office Act, 1996. s.4(6). Ibid. s.4(3). Ibid. ss.4(1)(a-b).
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 performance of their statutory and curricular duties.
The courts in Ontario have historically declined to intervene against the Province in relation to changes by the Province to curriculum or board policy subject to a few constitutional limits. The Constitutional authority of the Province to govern education 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 board jurisdiction exists only insofar as it is described by Provincial Regulations, 24 and as such boards are not independent creatures but exist by virtue of statue and are bound by law to carry out the will of the Minister.
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
The Education Act 1990. s.58.1(2), and Establishment, Areas of Jurisdiction and Names of District School Boards (O.Reg. 185/97).
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 information and counseling for education or vocational advancement. 27 Boards may 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 toward the use of standard assessment and evaluation techniques.
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 of the board, subject to MET approval.30
Statutory Obligations of the Principal
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 vice25 26 27 28 29 30
Education Act 1990. s.171(1).3. Ibid. s.171(1)8. Ibid. s.171.(1)29. Ibid. s.171(1) 13. Ibid. s.170(1)7. Special Education Programs and Services (R.R.O. 1990, Reg. 306) s.2.
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
• • •
maintain discipline and order in the schools. create pupil records for the MET. ensure that all textbooks used by pupils are approved by the board and the MET if required.
• • •
develop and implement a school plan providing for co-instructional activities. consult school council at least once per year about the school plan. report to the Minister or the appropriate supervisory officer all information 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 School- General the principal shall,
The Education Act 1990. ss.265(1)-(3).
supervise teachers and the instruction of teachers. supervise pupils during school hours and supervise or conduct all school activities authorized by the board.
keep up-to-date copies of outlines of all course of study taught at the school available for parents or students.
conduct teacher performance appraisals and make the appraisal available on request by the teacher.
obtain the written consent of a pupil or the parent or guardian if the pupil is a minor prior to the administration of a test of intelligence or personality.
provide to the Minister or person designated by the Minister any information that may be required concerning instruction programs, operations or administration of 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 the EQAO test reports.
The MET curriculum documents additionally require a principal to develop an orientation 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 teacheradvisor.32 When a student obtains the final credit in a diploma or certificate, the principal
of the school that has the Ontario Student Report (“OSR”) shall issue the diploma or certificate and submit a report to the MET.33
The Collection of Information
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 use personal information is helpful to understand the potential for infringement of constitutional protections offered to students with physical or mental disabilities.
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 commitment to protect personal information. Every employee with access to student
OSS 1999:3.5. The Education Act 1990. s.265(d) pupil records.
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 education numbers for purposes related to education administration or funding.36
Ontario Education Number, the OSR and the OST
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, tests and evaluations of students.38
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
Ibid. ss.266(10), 266.4(1)(2). Ibid s.266.3. Privacy re education numbers. 37 Ibid. ss. 266.2(1), 266.3(1), and MET Memorandum Document, 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.
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, and potential documentation relating to health or psychological assessments. Schools are 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
Records of curriculum achievement, accommodations, course changes, test results, and health or psychological assessments have the capacity to influence acceptance decisions for entrance into future academic or professional employment positions. Records of suspension or expulsion policies may raise issues in relation to behavioural-related disabilities for example, if these records are routinely used with the consent of students on applications to university, college, trades or other employment. Records collected in relation to a student’s learning disability or behavioural traits have the potential to contribute to stereotypical adverse judgment being made against that individual in competition with others for co-op placements, future employment, counseling options, or post-secondary education.
OSS 1999:188.8.131.52, and Ontario Student Transcript (OST): Manual, 1999. MET. Identification and Placement of Exceptional Pupils. (O.Reg.181/98) s.8.
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 prepared, accommodated, or surveyed in relation to the test. The Ontario School 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 likelihood of decision-makers using that information in a manner that discriminates against, inter alia, people with disabilities.
Part II – Curriculum Review
The second part of this Chapter will review the current curriculum scheme in elementary and secondary schools in Ontario followed by information relating to assessment and evaluation. The OSSLT is considered in detail and in particular the issues of modification and accommodation for exceptional pupils. The following information is meant to be helpful for those who are not familiar with the current subject areas, change in course levels and assessment materials.
The new MET curriculum documents cover all the elementary and secondary subject areas. These expectations and evaluations are contained in curriculum documents
Ontario School Counsellors’ Association Code of Ethics, Section C: Measurement and Evaluation. (adopted 1976, revised 1992).
published by the Queen’s Printer and are considered governmental conduct in the form of a MET Memorandum created pursuant to the Minister’s authority to prescribe course 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 earlier grades for all students from Kindergarten to Grade 12.
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 implement procedures in relation to the measurement and application of formal assessments and evaluations is novel in its intended scope and alignment with instrumental corporate purposes. The MET intends the new curriculum materials and
standards to provide the basis of approved lesson plans and teaching strategies of knowledge and skills required by students to compete in a global economy.43
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 “standardized” educational reforms undertaken by some American States that use education as a means to sort individuals based on perceived merit for occupations and education levels, emphasizing centralized approval and control over public school curriculum, measures of achievement, and competition within a corporate environment.
Implications for the Profession of Teaching
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 preference of a child-centred pedagogy aimed at teaching the child more than 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 “objective” indicators of individual potential for further employment and educational opportunities.
The Ontario Curriculum : The Arts, Grades 1-8, 1998. MET. p.1.
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 in Ontario. 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 toward autonomy of the person, or education for citizenship, and focuses educational agents on the implementation of instructional strategies and lesson plans.
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 effectively, implementing curriculum, and assessing standardized learning. The heavy 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 so much the arts, languages, or history.
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
the school, board, and the MET, thus creating a network of approvals complex enough to reduce the motivation of any local teacher.
In the author’s opinion, the instrumental view unnecessarily reduces the autonomy of local educational agents and promotes the deprofessionalization of teaching. When teachers think of themselves as being involved in a larger social project relating to critical thinking, social transformation, or self-government, the function of the teacher is not conceived of as a strict application of standards but involves students in learning about themselves and their community.
The New Elementary Curriculum
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 grade in a pre-determined, step by step, sequential fashion taught province-wide within a 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
the old elementary curriculum. It is contained in 17 core documents that may be obtained in paper form or on-line at www.edu.gov.on.ca.
The subject areas are grouped as follows:
1. The Arts 2. Business Studies 3. Canadian and World Studies 4. Classical and International Languages 5. English 6. English as a Second Language/English Literacy Development 7. French as a Second Language 8. Guidance and Career Education 9. Health and Physical Education 10. Interdisciplinary Studies 11. Mathematics 12. Native Languages 13. Native Studies 14. Science 15. Social Science and the Humanities 16. Technological Education 17. Program Planning and Assessment
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 changes the provincial government made to elementary education. Expanding on 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 different achievement levels. Each document discloses important information addressing how to relate the subject domain to the life of the student, the importance of particular methods of instruction, as well as the importance of accommodating the needs of exceptional pupils in domain area as outlined in the Individual Education Plan (“IEP”) of the exceptional student.
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. Parents are encouraged to become involved in their child’s education by participating in parent conferences, school councils, encouraging completed homework and attending artistic events at the school. The MET views parental involvement as important for the
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 approaches to the classroom as well as develop appropriate instructional strategies to address different student needs. The curriculum directs teachers and others to construct a direct relationship between hard-work and achievement in the minds of students.
Curriculum Achievement Chart
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 engaged in establishing or explaining the expectations and requirements of students.
The Arts 1-8 1998 assesses student achievement in relation to four categories of knowledge and skill,
• • • •
the understanding of concepts, critical analysis and appreciation, performance and creative work, and 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 across the province.
The four achievement levels are:
• • • •
Level 1 – pupils achievement falls much below the provincial standard. Level 2 – pupils achievement level approaches the standard. Level 3 - the “provincial standard.” A high level of achievement. Level 4 – pupil achievement surpasses the standard.
The Ontario 4 Year Secondary School Program
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 new diploma requirements must be achieved in order to graduate.
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 students.46 Teacher-advisors are responsible to review a student’s annual education plan, monitor achievement and communicate with parents.
OSS 1999:5.2 The Annual Education Plan OSS 1999:5.1 The Teacher-Advisor Program
The new OSSD requires 30 credits, 18 compulsory, and 12 optional. Each credit is 110hours of MET developed or approved course material, a half course is 55 hours. The Ontario Secondary School Certificate (“OSSC”) requires 14 credits, 7 compulsory, 7 optional, with substitution options available.47 If a student leaves school with less than 14 OSSC credits, the principal may grant a Certificate of Accomplishment accompanied by 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, university/college preparation, college preparation, workplace preparation, or are open.
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
OSS 1999:3.2. OSS 1999, Appendix 5.
1 in Health and Physical Education 1 in Civics and Career Studies 1 in French (FSL) 1 in senior Science or any Technology credit 1 in English/French, or other language, or social science, or Canadian and World Studies.
1 in Physical Education, Business/Entrepreneurial Studies, or Arts.
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 future experiences. The curriculum also contains instructions on how to approach 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
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.
The community involvement activity must be completed outside the student’s normal instructional time and may be at a business or not-for-profit organization, a public service 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 51 52 53
Ontario Curriculum, Grades 9 to 12: Program Planning and Assessment, 2000. MET. p.3. Ibid. p.9. OSS 1999:3.1.3. OSS 1999:3.1.3.
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 assistance to students who fail the test.55
Alternative Expectations in the New Curriculum
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 Independent Learning Centre now located in TVOntario headquarters in Toronto, which offers correspondence and GED courses to students in accordance with the Independent Learning Centre Student Guide.58
54 55 56 57 58
OSS 1999:3.1.4. OSS 1999:3.1.4. OSS 1999:184.108.40.206. OSS 1999:6.8.3. available at the Independent Learning Center website at http://ilc.edu.gov.on.ca
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, mathematics, and/or science that can be counted as a compulsory credit, conditional on annual approval, for a maximum of three.
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 completion of an apprenticeship through cooperative education while earning credit toward their secondary school diploma.
Curriculum Assessment and Evaluation
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 educational “assessment” as the process of gathering information about student
OSS 1999:7.1.2. 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 1999:220.127.116.11.
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 principals to systematically review course content, instructional strategies, and assessment procedures in relation to the learning goals in the subject area and the specific needs of the student.62 Modifications to the curriculum expectations in accordance with MET policy and the provision of specialized services or other accommodations are permitted and will be discussed further in more detail below.
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 follow new assessments and tests,
Ontario Curriculum, Grades 9 to 12: Program Planning and Assessment, 2000. MET. p.13. OSS 1999:6.2.3.
The following is from the EQAO web site on the EQAO program overview : About EQAO page, www.eqao.com/eqao/home_page/01e/1_7e.html.
a) a Grade 3 and Grade 6 Assessment of Reading, Writing and Math, b) a Grade 9 Assessment of Math, c) an Ontario Secondary School Literacy Test (OSSLT), d) Canadian National and International Assessments, e) EQUIP and Improvement Planning (action plans).
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 each student who attempts the test.
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 areas of concern identified by the assessment findings of completed tests. In many respects, the EQAO shares the full powers of the Minister in relation to the administration and testing of students.
Part III: Exceptional Pupils and Standardized Testing
Exceptional Pupils and Disability
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 responsible to provide appropriate accommodations that will enable exceptional students 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 alternative expectations. Curriculum accommodations and modifications that address specific barriers encountered by special needs pupils are an attempt to provide disadvantaged individuals with equal opportunity in education.
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.
In a general sense, legal issues surrounding disability in education require educational agents to be aware of a broad range of disability information in relation to particular 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 of disabled children within educational environments, teaching and learning strategies,
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 difficulties, speech and language, emotional, behavioural, or mental impairments. 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 many different barriers in schools.
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 signing, brailing and augmented communication, plain jargon-free language, or 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 barriers exist such as inadequate or inappropriate staffing, training, or material resources for placements in or out of mainstream schools for severe or moderate accommodations of behavioural, intellectual, physical and multiple impairments. Institutional barriers such as rules, regulations and procedures, testing, targets and examinations potentially discriminate unconstitutionally against people who are not properly identified,
“Special Educational Needs or Inclusive Education. The challenge of disability discrimination in schooling.” Richard Rieser. Education, Equality and Human Rights. Cole (ed). (2002).
appropriately accommodated, or whose impairment were not considered in high-stakes test design.
For the MET, an exceptional pupil is a pupil whose behavioural, communication, intellectual, physical or multiple exceptionalities are such that he/she is considered to need placement in a special education program by a Special Education Identification, 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 definition of the term “disability,” as follows:
(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, including diabetes mellitus, epilepsy, any degree of paralysis, amputation, lack of physical coordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or on a wheelchair or other remedial appliance or device, (b) a condition of mental retardation or impairment,
Education Act 1990. s.1. Ibid. s.8(1)35(3)(b).
(c) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language, (d) a mental disorder, or (e) an injury or disability for which benefits were claimed or received under the Workers’ Compensation Act.
Identification, Placement and Review of Exceptional Pupils
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 and ongoing identification of learning abilities and needs of the pupils.69
According to the MET, the first level in recognizing accountability in relation to 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
Ibid. s.8(1)35(3). 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).
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 appropriateness of special education placements.71 The Regulations provide for an appeal 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 regarding programs and services.
The placement recommended by the IPRC governs the location of the student, and any such recommendations will be conditional on available resources. The committee is required to consider whether placement in a regular class, with appropriate special education services, would meet the needs of the student and be consistent with the preferences of the parents or guardians before considering placement in a special 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 Tribunal established by the Lieutenant Governor for a final review.74
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 education programs or services to be received by the exceptional pupil, as well as the
Identification and Placement of Exceptional Pupils. (O.Reg.181/98). s.10. Education Act 1990. s.8(1)35(3). 72 Identification and Placement of Exceptional Pupils. (O.Reg.181/98). s.17. 73 Eaton v.Brant (County) Board of Education (1996),  1 S.C.R. 241, 142 D.L.R. (4th) 385 (S.C.C.) (“Eaton”). 74 The Education Act 1990. s.57(3).
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 recommendation of the IPRC or Special Education Tribunal regarding special education 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, review and update the students IEP.
The OSSLT and Accommodation
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. “Modifications” however, are defined as changes to content and to performance criteria, and as such the EQAO does not permit modifications of the OSSLT.
School boards are responsible to provide exceptional pupils with appropriate 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
Identification and Placement of Exceptional Pupils. (O.Reg.181/98) s.6(2).
does not have to be identified as an “exceptional pupil” by an IPRC to receive an IEP and the test accommodation.76
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 additional information, or allowing discussion before the performance of a writing task.
The EQAO sets out very specific accommodations, and procedures to follow if the accommodation requested is not permitted. In general, if the accommodation is provided 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 appropriate supervisory officer whose decision is final. If the accommodation is provided 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 stated that the decision of the Chief Assessment Officer is final.
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
EQAO Guide for Accommodations, Special Provisions, Deferrals and Exemptions. OSSLT, Oct 2002. Revised for 2002-2003. p.7.
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 nondisabled 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 general, dyslexics rely heavily on context as a compensation mechanism to identify 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 understand the content of the questions.
OSSLT Test Results
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
twenty-five percent of students failing either the reading or the writing component of the test compared to approximately one-third who failed last year.
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
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.
get a diploma in the first place.80 Liberal opposition spokesperson advocated in favour of an alternative “workplace” diploma for students with special needs.
If a court were to find the presence of stereotypical attitudes in the educational 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 or face the social and economic prejudices related to failure.
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 people in our communities.
The Toronto Sun, Tuesday October 1, 2002. “Exam fails special needs kids.” Brodie Fenion. p.17.
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 Canada. The “banking system of education” thinks of education not as communication 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 education for citizenship, etc.
Trends toward standardized testing displace the child-centred focus of local assessments of learning to the provincial level “standard” assessments. Over time, the “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 valuable educational tasks. The raising of instrumental standards in this context 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
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 that curriculum narrowing is occurring as a result of provincial assessment in Ontario as 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 accommodations of curriculum to address particular needs, such as brail instruction for the blind, sign language for the deaf, or the specialized programs that help children who are autistic.
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.
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 administration with statistics and measures of accountability. From a political perspective it is not the testing, but the appearance of control and surveillance, of being in charge, that matters.
Validity of Test Use
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 problems and bias that may be unintentional against particular groups.
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.
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 standardized tests is important as it intersects with race, gender, and disability discrimination, and ultimately in the distribution of resources, such as books, computers, and other informational tools, which are likely to enhance success in school for these
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
populations. It should be noted that this research contradicts the popular assumption that standardized tests are somehow “objective.”
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 numbers of minority, ESL, and exceptional students.
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 covered by the teacher in the classroom. An exceptional pupil whose accommodation 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 pupil who is receiving a significantly modified curriculum or left unassisted in the
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.
classroom to make a claim for discrimination and denial of the benefit of an appropriate and accessible education.
Overall, the application of a standardized high-stakes test requires a high standard of 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 effects must be ongoing. If high-stakes testing programs are implemented in circumstances of inadequate resources or where tests lack sufficient reliability and validity for their intended purposes, there is potential for serious harm.
English as a Second Language (ESL)
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.
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.238252). Toronto: Copp Clark.
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 assessed through curriculum expectations.
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
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 assessment of literacy skills for students from other countries.
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 application of standardized tests that do not adequately accommodate the student or establish the validity of test scores. The issue of accommodation might explore the potential to eliminate unintended consequences for multiple disadvantages and the adequacy of interpreting the validity of tests scores in relation to the needs of ESL students who are also mentally disabled.
Charter of Rights and Freedoms and Disability
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 students.87 Although arguments relating to disabled children and accommodation have 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 the Charter as circumstances and evidence of discrimination against disadvantaged pupils accumulates within the current system.
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 comprehensive evaluation of Oregon’s Statewide Assessment System. The Panel report found that the system was unfair to students with learning disabilities and made many recommendations relating to the assessment of children who are disabled.
The Ontario Human Rights Commission recently released a report entitled “Education and Disability” to address issues of accommodation because they noticed an increase in 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
Eaton v.Brant (County) Board of Education (1996),  1 S.C.R. 241, 142 D.L.R. (4th) 385 Sopinka, J. (S.C.C.).
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 students with disabilities, or ask them to waive their rights to accommodation as a 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 the Province provide accommodation and modification to meet the constitutional requirement of equal benefit under the law.
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 special education services to exceptional pupils. Often referred to as “educational 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 competency standard, or that of a reasonably informed person of that profession. These cases generally arise under circumstances where children fail to learn to read, or where severe learning disabilities go unrecognized for a significant period of time. Educational 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.
Particular applications of high-stakes testing may result in claims of negligence against educational psychologists, testing professionals, policy makers or other agents involved in psychometric programs if they have been negligent in the exercise of their duties by way of faulty measurements, incompetent interpretations, inadequate accommodations, 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 may be more willing to reconsider their traditional non-interventional stance.
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 right to the equal protection and equal benefit of the law without discrimination and, in particular, without
discrimination based on… mental or physical disability.” It 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 accommodations or modifications for physical and mental disabilities, or perhaps even the failing of emotionally disturbed children might be enough to claim a case of prima facie discrimination.
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 “of no force or effect” remedy under s.52(1) of the Charter.
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 or under the law, or equal protection or benefit of the law.
The second step is to consider whether the equality right denied was denied on the basis of a personal characteristic enumerated or analogous to those in s.15(1) of the Charter and whether that distinction has the effect of imposing a burden, obligation or disadvantage not imposed upon others or of withholding or limiting access to benefits or advantages which are available to others. If established then the onus shifts to the state to justify the discrimination as “demonstrably justified in a free and democratic society” under Section 1 of the Charter.
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
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,  2. S.C.R. 418 and Egan v. Canada,  2 S.C.R. 513 at 584.
of Education  Sopinka J. (S.C.C.) (“Eaton”).90 In that case, the parents of a 12year-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 decision-making bodies should not operate under a presumption of accommodation 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 court is provided in the following passage,
“[Disability] individual and
“difference dilemma” …whereby segregation can be both protective of equality and violative of equality depending upon the person and the state of disability. In some cases, special education is a necessary adaptation of the mainstream world which enables some disabled pupils access to the learning environment they need in order to have an equal
Eaton, Supra note 111.
opportunity in education. While integration should be recognized as the norm of general application because of the benefits it generally
provides, a presumption in favour of integrated schooling would work to the disadvantage of pupils who require special education in order to achieve equality. Schools focused on the need of the blind or deaf, and special education for students with learning disabilities indicate the positive aspects of segregated education placement. Integration can be either a benefit or a burden depending on whether the individual can profit added).91 from the advantages that integration provides.” (Italics
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 might consider the potential of underlying constitutional obligations to require the Province to provide adequate programs and services, such as guaranteed segregated 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 integrated approach to special education delivery in mainstream schools mainly in order 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 considering their role in the protection of people with disabilities.
Eaton, Supra note 111. pp. 406-407 [D.L.R.].
In Eldridge v. British Columbia (Attorney General),  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 provide reasonable accommodation in the form of sign-language interpreters for deaf 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 discrimination as “demonstrably justified in a free and democratic society” under Section 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 where the government was required to establish that,92
Application of Meiorin test from British Columbia (Public Service Employee Relations Commission) v. BCGSEU,  3. S.C.R. (“Meiorin”) in British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights)  3 S.C.R. (S.C.C.) (“Grismer”).
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 fulfillment of the purpose or goal, and
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 of impossibility, serious risk or excessive cost.
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.”
The design, administration and reporting procedures of standardized curriculum and 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
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 accommodate or modify or accurately measure the potential or actual abilities of students in relation to core “achievements” and may contribute to the formal acceptance of systemic discrimination reinforced through streamed credential levels. The experience 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 to develop connections and relationships with mainstream individuals.
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 achievement. It is something else to exclude people from adult employment and academic opportunities because they did not complete, failed, refused or were not appropriately accommodated or considered in high-stakes test design as children, adolescents, or young adults.
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