Back to school is always a stressful time for families scrambling to get their children ready for the coming year. It is also a busy time for our Education Law Program, which was launched in 2003 to help families address unlawful conditions that keep their kids out of school. From what we’re seeing, this year has been particularly fraught because families in Ontario are struggling to understand the difference between what’s lawful and what’s desirable around COVID-19. As the precise details of reopening plans, vaccines, and the impact of new variants continue to evolve, it can be particularly challenging for families to advocate effectively on their children’s behalf. Having a basic understanding of the laws impacting schooling can help.
COVID-19 Vaccines and Schools
Parents of children that are eligible to be vaccinated want to know if they can send their unvaccinated kids to school, enroll them in extra-curriculars or put them on the school bus. As of the date of this post, the COVID-19 vaccination is not mandatory for students of any age, so COVID-19 vaccination status should not impact a child’s ability to participate in school or school-related activities. We recommend that parents sign up for notifications from the school or school board to ensure they’re kept up to date on any changes to this policy.
Conversely, many parents are desperate to protect their children from unvaccinated school staff and peers. Typically, they are seeking some combination of the ability to compel the disclosure of other people’s vaccination status or the right to keep unvaccinated students and teachers away from their children.
Laws protect the privacy of both staff and students when it comes to medical information, and balancing those privacy rights against public health concerns is one of the thorny legal issues of the pandemic. The Ministry of Education recently announced a plan to require school staff to disclose their vaccination status. Staff won’t be required to be vaccinated, but unvaccinated staff will have to take rapid antigen tests regularly. Full details of the protocol haven’t yet been released, but it’s unlikely that staff vaccination information will be made available directly to parents. Instead, school boards will use this information to keep students safe.
Students, on the other hand, are not currently required to disclose their general vaccination status. However, if there’s an outbreak in a classroom, they may have to provide proof of vaccination status to continue to attend school during any quarantine period, since provincial isolation protocols are dependent on vaccination status. Students may also need to prove their vaccine status for any field trips to events or organizations that require vaccines. Any information a school does have about a student’s vaccination status must be kept strictly confidential under the Education Act and cannot be shared with other students or parents. Only the child’s parents or guardians, teachers, principal and appropriate school support staff (such as social workers or guidance counselors) can access that information.
Special Education During COVID-19
Even in good years, the ability to seek and obtain special education supports for children who need the extra help is a time-consuming and sometimes confusing process. Briefly, it involves:
- either a parent or educator making a written request for an Identification, Placement, and Review Committee (IPRC) to assess the student,
- the creation of an Individual Education Plan, and
- the implementation of that IEP, which can include assistant teaching staff, professional services and specialized equipment or devices.
COVID-19 has created new questions for parents: Can they demand an assessment in their preferred format (in-person vs virtual)? Can parents appeal the conclusions of a virtual assessment if they don’t believe the exercise adequately captured their children’s skills and abilities? How can parents ensure continuity of service during stay-at-home orders? Can they borrow equipment from the school?
Since the Government of Ontario has announced full time in-person classes, with remote learning only on request, in-person student assessments and IPRC hearings will likely be the norm, unless either party raises health concerns and requests remote hearings. If the assessors refuse an in-person assessment and the parents believe the refusal may impact their child, they should bring up their concerns prior to the IPRC meeting. The school board may not agree, but having made the request in advance will assist the parents later in a potential appeal.
Appeal options are still available during COVID-19 if parents disagree with the IPRC results. Parents can request a second meeting within 15 days of the decision, or can appeal within 30 days by writing to the secretary of the school board explaining their reasons for disagreeing. The first appeal is to the Special Education Appeal Board, but a further appeal can be made to the Ontario Special Education Tribunal if needed.
If another stay-at-home order occurs, parents should first raise concerns about continuity of services with the school principal, then with the special education supervisor. If that fails, they should contact PBO’s Education Law Program for help. Generally, students with special needs should be permitted to use school equipment at home if it’s required to accommodate their learning needs under both the Education Act, which mandates access to special education without extra fees, and the Human Rights Act, which guarantees equality in education. Sometimes disputes arise about whether a particular support is required for learning, or just for accessibility while on school premises. In addition, schools may require equipment to be returned during school holiday breaks, if it’s not required for assignments during that time. Parents who disagree with a school’s position may require support advocating for their child’s needs.
If the child needs equipment that the school isn’t required to provide, other supports may be available, like the enhanced supports for technology devices that were provided during COVID-19 in the 2020/21 school year through the province’s Special Services at Home program.
While the rules are almost certain to evolve as the school year goes on, there are some things that parents can do to maximize the chances that their children get the most out of this school year. One of them is to advocate effectively. The trick is knowing what they are entitled to ask for and how to ask for it. This is where the Education Law Program comes in. Experienced staff and volunteer lawyers can help eligible students and their parents understand their legal rights and negotiate solutions when they feel unable to resolve conflicts with school administrators and officials.
Call 1-855-255-7256 (press #8) to speak to the program coordinator on Tuesdays, Wednesdays, and Thursday afternoons from 1 PM to 3:30 PM or apply online at: https://www.probonoontario.org/education/