The case concerns the issue of what constitutes appropriate education for children with autism.  This issue was also recently the subject matter of an important decision from the Ontario Court of Appeal:  Wynberg v. Ontario.  The Hewko case is the first court case regarding the duty to consult under the School Act.

Facts

By way of background, DH is a child who was diagnosed at age 3 with autism.  During his pre-school years, he had a moderately effective ABA-IBI (applied behaviour analysis-intensive behavioural intervention) therapy home program.  Upon entering the public school system, DH was placed in a regular kindergarten class and provided with a teaching assistant (“TA”).  However, his TA had virtually no experience with autistic children and no knowledge of ABA-IBI therapy.

At the end of his kindergarten year, the school recommended to DH’s parents, the Hewkos, that he be placed in a resource room in Grade 1 with a teacher who had experience with children with autism but limited experience with ABA-IBI therapies.  Prior to the beginning of the Grade 1 year, the teacher and the TA who would likely be assigned to DH took a five-day intensive course on autism.  This course included a component on ABA-IBI therapy.  The experts testified at the trial that a one-week course is not considered adequate training for ABA-IBI therapy.

A conflict arose between the Hewkos and the District.  The District could not persuade the Hewkos that the resource room placement was in DH’s best interest; the Hewkos could not persuade the District to permit DH’s home-based therapist (or another therapist, extensively trained in ABA-IBI therapy) to be DH’s school TA.  A lack of communication between the school and DH’s home-team was evident. 

The evidence at the trial was that “…all effective teaching programs for children with autism are based on some form of ABA methodology” [emphasis in original].  ABA-IBA therapy has proven effective in allowing the teacher to maintain “instructional control” which in turn enables the autistic child to focus on the educational activity. The expert evidence also supported the concept that consistency between home and school approaches is essential for autistic children.

In this case, the school and District personnel “…resisted the idea that any school employee should be ‘trained’ by home-based therapists”, and took the position “…it was inappropriate for district staff to receive training from an outside agency with which the school had no connection”. The District also refused to allow DH’s home-based therapist to serve as his school TA.

The Hewkos appealed the District’s decision to place DH in a resource room.  The appeal was made to the School Board pursuant to section 11 of the School Act.  The Hewkos requested a classroom placement for DH with an appropriately-trained TA:  “…someone who was trained to work with Darren in his home protocol in the home program, someone who has instructional control, and someone who was a member of the home team.”

After losing this appeal, the Hewkos removed DH from public school and commenced legal action against the District and the Province. 

Relying on the Wynberg decision, the British Columbia Supreme Court dismissed the section 7 and 15 Charter claims.  In Wynberg, the Ontario Court of Appeal rejected the argument that children with autism require ABA-IBI therapy to properly access public education because the Court ruled the plaintiffs had not demonstrated that:

1. ABA-IBI therapy could be delivered in the context of the public school system; and
2. ABA-IBI therapy is the only appropriate program for autistic children. 

The primary defense put forward by the District and the Province was that the Hewkos had refused a reasonable accommodation, i.e., placement in a resource room with the additional support of a TA.

The Court noted that the British Columbia public school system offers and funds ABA-IBI therapy, without age restriction, for autistic children.  However, autistic children do not always receive the therapy as the “…infrastructure has not kept pace with the policy objectives”. Although the school utilized ABA principles with DH in kindergarten, the school used different methods than the methods used in DH’s home-based program.  Also, the staff assigned to work with DH did not have sufficient training in ABA techniques.

In finding no breach of section 15 of the Charter, the Court held that regardless of the comparator group used, there was no evidence that other students attempting to access an education were treated differently.  The Court found that there is always a lag-time between the acceptance of new methodologies and the training of individuals to be qualified to administer the new methodologies to students.  In other words, an “infrastructure gap” is not discrimination under section 15 of the Charter.

The Court simply relied on the reasoning in Wynberg to dismiss the Hewko’s claim under section 7 of the Charter.

Although the Hewkos did not plead negligence or malpractice, the Court found that a negligence/educational malpractice claim could not be maintained against the District.

With respect to the Government’s statutory duties, the Hewkos argued that the funding and educational programs put in place by the Government were “too little, too late.”  However, the Hewkos relied on Government policies, not the School Act.  The Court found that “…policies are distinguishable from statutory duties in that they do not create any rights enforceable at law.”  Only Acts and Regulations create enforceable legal rights.  Consequently, the Court could provide no relief to the Hewkos for the Government’s failure to implement or adhere to its own policies.

The Court relied on sections 4 and 7 of the School Act to determine that the District breached its statutory duty to consult.  Sections 4 and 7 of the School Act provide for parents’ right to information regarding their child’s progress in school and the right of parents to consult with teachers and other school board employees regarding their child’s educational program.

The Court ruled that by failing to properly consult, the District abdicated its responsibility to provide DH with reasonable access to an educational program.  It also ruled that “…[r]easonable accommodation is an integral part of the duty to consult.”  The Court concluded that consultation with DH’s parents “…must include an accommodation of his home-based program – at least until instructional control is gained and maintained of him in the school setting.”

Simply offering a resource room with teaching staff who had limited ABA-IBI theory and training did not satisfy the duty to consult.  The Court ruled that the District failed “….to ensure that [the Hewkos] representations were seriously considered, and, wherever reasonably possible, demonstrably integrated into the proposed plan of action….”  The District was ordered to satisfy both the “…procedural and substantive aspects of its consultation obligations.”

Commentary

All educators in the K to 12 system must grapple with the issues raised in this case.  The case addresses what constitutes proper consultation under the School Act, but it does not answer many of the underlying educational issues.  What constitutes a meaningful education for children with autism?  How should ABA-IBI therapy be delivered in the public school system?  Is there a role for home-based ABA-IBI therapies?  If so, how will conflicting home-based methodologies be reconciled with issues of professional autonomy?  Should ABA-IBI therapies be the only education services provided to children with autism?

It is clear that autistic children need consistency and structure, which would be improved with more integration/coordination between home and school-based therapies.  However, it is also clear that ABA-IBI methodology requires lengthy and intensive training.  More meaningful consultation with all stakeholders may indeed help to answer some of these difficult questions.

In terms of the section 15 Charter argument, the Court stated that “…no matter what comparator group one looks at”, there is no basis to say “…other students attempting access to an education have been treated differently.” However, the Court only refers to students with special needs (e.g., students with sight or hearing impairments).  The outcome may well have been different if the Court chose students without disabilities as the comparator group, as the British Columbia Human Rights Tribunal did in Moore v. BC (Ministry of Education) and School District No. 44.

At the end of the day, the Court left the ultimate decision-making to the educational experts, i.e., the District and its teachers and consultants.  This is consistent with previous decisions.  Adjudicators remain reluctant to determine the specific policies that are required to ensure all students receive an adequate and meaningful education. 

Diane C. MacDonald, LL.B, Ph.D.
Federation Counsel, British Columbia Teachers’ Federation
This article was first published in Capsle Comments, December 2006, Vol. 16(2)

For the full transcript of this trial see www.autismsocietycanada.ca/pdf_word/Judge%20Koenigsberg_re_HewkovBC_11_03_06.pdf

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