the excluded: joe has been in school only four full days this year. but he's not suspended. and he's not alone.

“this is a loophole for school boards to get rid of students and not document it,” says an ottawa education consultant.

by joanne laucius

dec 11 2023

14 minute read

joe has been in school only four full days this year. but he's not suspended. and he's not alone.

roxanne breau and her ex-husband daniel dorion are worried about their son, joémil dorion, 8 (seen here on an exercise pole in his living room), not receiving an education. julie oliver / postmedia

joémil dorion — joe to his family and friends — is nine years old.

his favourite thing is making costumes out of boxes. he has a scooter and broke his two front teeth using it. he likes to fold paper into airplanes and build forts using chairs and cushions. there’s an exercise pole in the family living room to help him blow off steam. there’s a lot of steam to blow off.

“he can’t sit still,” said his mother, roxanne breau. “all the other kindergarteners would sit still for storytime. joe could not do that.”

first diagnosed with severe adhd as a preschooler, joe was expelled twice from daycare for destroying the place. in 2018, he was diagnosed with oppositional defiance disorder, which is marked by uncooperative, defiant, and hostile behaviour. last year, he was diagnosed with a moderate intellectual disability. he has been on anti-psychotic medication since he was three.

joe can be triggered by expectations that are too high, changes in routine or staff, transitions, when other children don’t want to play with him, or when he is refused something.

“sometimes it’s just nothing. sometimes it’s just something he’s thinking about,” said breau. “he just goes off.”

during moments of dysregulation, joe has punched an education assistant. he has destroyed a classroom by throwing things. he has disrobed, urinated, defecated and thrown feces.

in september, joe started a new school. within days, he was barred from school for two weeks in what the school system calls a “pause for safety.” as of early december, he was only allowed to remain in school for three hours a day. so far this school year, he has been in school only four full days, said breau.

that wasn’t his decision to make, nor his parents. instead, joe is one of an unknown number of children in the province caught up in an education system that has to balance the challenges of keeping a school environment safe while ensuring that all children get the education that is their legal right.

according to parents and advocates, for many that means keeping the child at home, at a cost to the child and his or her family. it means having to advocate relentlessly, engaging professionals, attending appeals.

it is an isolating experience, said breau.

“this is what has been happening since he was three,” she said. “we have been in this hole since the beginning.”

under section 265 (1) (m) of the education act, it is the duty of a principal, subject to an appeal to the board, “to refuse to admit to the school or classroom a person whose presence in the school or classroom would in the principal’s judgment be detrimental to the physical or mental well-being of the pupils.”

“in essence, that means every principal is a law unto themselves,” said david lepofsky, a disability rights advocate and the chair of the ontarians with disabilities act alliance.

section 265 does not indicate how long a student can be required to leave the school, or indicate that there is a requirement to provide alternative education or a plan to return to school.

“yes, there are kids who are violent. the thing you have to figure out is what triggers them,” lepofsky said. “if a kid responds to loud music, the solution might be to turn down the music.”

for advocates of kids with disabilities, there’s another problem. it’s unclear how many children with disabilities are “excluded” from school — or for how long, said lepofsky.

all publicly-funded school boards in ontario must submit annual reports of suspensions and expulsions to the ministry of education, as per section 314.5 of the education act.

but that data does not capture excluded students. as of last january, there was no code for exclusions.

“when a student is suspended or expelled, there are detailed regulations that govern actions every step of the way. but that is not true of exclusions,” said lepofsky.

advocates would like the ministry of education to develop reporting requirements for school boards for all forms of exclusion and conduct meaningful data collection.

the ottawa-carleton district school board says it tracks data to monitor exclusions daily. in 2020-21, 23 students were excluded for a cumulative 135 days. in the following school year, 31 students were excluded for a total of 199 days, according to numbers released to this newspaper.

but across the rest of the city—and the province—that data isn’t readily available. since the 2021-22 school year, school boards report to the ministry of education all exclusions that occurred within the board for each school year. this is meant to include the total number of exclusions, the number of students excluded, the number who were receiving special education programs or services, and the total number of days students were excluded.

when asked for that data, a spokesperson for the ministry said it is not yet available “as we are reviewing it for quality and consistency at this time.”

roxanne breau, meanwhile, documents every day or partial day joe is not allowed in school. every hour her son is away from school is a lost opportunity to learn and build a better future for himself, she said.

“a child has a right to an education. even if you have a pause for safety, partial or full, your child is not in school all day. and he’s not learning.”

on a typical day, robbie mccaw will get a call from glebe collegiate to pick up his 15-year-old daughter, poppy, who has down syndrome.

this year, poppy is in a life skills class, but she usually only lasts a few hours at school before an outburst sends her home. she may throw a chair, pound a table or punch a staff member.

sometimes staff carrying padded shields escort poppy to the office to meet mccaw. when she sees her dad, poppy often cheerfully apologizes. then she and her father will head home—where there is rarely an outburst—and the entire cycle will repeat the next day.

“it’s like wile e. coyote and the roadrunner,” said mccaw. “the next day, there will be another anvil.”

poppy has been to schools in both the catholic and public boards. she was integrated at her elementary school, where fellow students would sometimes come to visit her at home. but the transition to high school was difficult.

mccaw pulled his daughter out of school this fall while there were some discussions on ways to support her. poppy is currently in school two hours a day, but often doesn’t even last that long. she has learned the triggers, such as entering another classroom, that will result in a call home, said mccaw.

“for the first time, she’s expressing a desire not to go to school. she equates school with negative experiences,” he said. “she self-identifies as trouble.”

during the pandemic, poppy spent most of the time at home doing virtual learning, which did not work for her because she found it hard to concentrate, or in-school but isolated from fellow students with an education assistant.

poppy can attend school until she’s 21. mccaw wants two basic things for her: to attend school every day for the whole school day, and for the school to accommodate her and include her.

“the education system has an obligation to meet poppy’s complex needs and to access the resources needed to help her,” he said. “we have to advocate for her.”

school boards have obligations under both the education act and the human rights code. the human rights code is a quasi-constitutional law that supersedes the education act, said ilinca stefan, a lawyer with arch, a toronto-based specialty legal clinic primarily funded by legal aid ontario.

under the ontario human rights code, a service provider such as a school can’t discriminate against disabled people. the law is very clear that education service providers — schools — must accommodate students with disabilities up to the point of undue hardship, said stefan.

it’s a very high threshold and not something as simple as what’s considered an inconvenience to the school. if a school claims undue hardship, there must be concrete evidence, she said. the mere fact that a child is exhibiting disability-related behaviours is not enough.

and it is the schools that are responsible for exploring what strategies work and do not work for that child. even if a student has a well-crafted safety plan that looks good on paper, the implementation matters.

michelle watson’s son tarik, 7, was diagnosed with autism. tarik has thrown objects in the principal’s office. he has been excluded from after-school daycare. his mother fears he will be excluded from school as well.

she once was called into his school after he pulled a fire alarm. “he was so remorseful. he was sad and crying,” said watson.

another time, tarik saw a child being bullied, intervened and hit the other child, said watson. “he’s a great kid. he stands up for others. but he has bad moments. something happens and he gets really upset.”

tarik doesn’t get enough one-on-one time with an education assistant. all last year he was sitting at a desk in a hallway. he needs people who understand his triggers, said watson.

“if i had all the money in the world, he would be in a private school. but nothing like that exists.”

there are two types of exclusions. a “formal exclusion” under the education act may result in a student being barred from coming to school, or be subject to a shortened school day.

but it’s the “informal” exclusions that are insidious, say advocates and parents. they can create barriers so high that a student can’t attend school. this may include keeping the student home because of a lack of support or calling the parents to pick up the student at school. the child may remain at the school, but could be isolated in a room away from other students.

at the toronto district school board, where lepofsky is a member and past chair of the special education advisory committee, data is not collected on the number of students who use “exclusion rooms”; the number of calls parents receive to come and get their child, clean them or calm them; the number of times special education supports have been pulled to cover other classes; or the number of times students are not allowed to join events due to understaffing.

“this is a loophole for school boards to get rid of students and not document it,” said monika ferenczy, an ottawa education consultant.

“the ministry of education has a very hands-off policy. it all comes back to school boards. they are education service providers, but they take on an authoritative role with parents. they have a duty to accommodate, but they’re using the line that they don’t have any education assistants. once they have that precedent, it happens all the time.”

at the ottawa-carleton district school board, an exclusion or pause for safety might be employed “where progressive discipline is deemed inappropriate after reviewing mitigating and other factors and where the student’s infraction poses a significant physical and/or mental safety risk of students to themselves and others and cannot be mitigated by other available supports.”

a pause for safety is only employed after all other strategies have been tried, said the board in its annual report on suspensions and expulsions, released in september. it’s a “non-disciplinary measure” while a plan is put in place to promote the student’s timely return to school. “this is different from a suspension and as such, that data is not captured as part of this report.”

section 265 gives principals broad powers, said stefan, but she argues it’s more like a trespass order for people outside the school community, not intended for children with disabilities.

a “pause for safety” is not legally defined, and therefore, theoretically, there are no limitations, said stefan. but the term is also irreconcilable with the actual provision in the education act.

“students with disabilities should not be excluded at all, even if the exclusion is given under the guise of ‘support’ for the student,” she said. “if the goal is to achieve inclusion for all students, schools can’t continue the practice of excluding or threatening to exclude a student on the basis of disability.”

stefan would like to see a change to the education act so section 265 can’t be applied to exclude students on the basis of their disability or the lack of support for disabled students, as well as an amendment to the provision that allows a school board to shorten a student’s school day only when it is in the best interest of a student.

and while suspensions and expulsions are regulated under provincial law, including the maximum number of days away from school and the appeals process, there are no such protections for students who are excluded and the appeal process varies from one school board to another, said lepofsky.

the access for ontarians with disabilities act alliance, an advocacy group, has surveyed ontario’s 72 school boards to find out which had a policy and practices around exclusion.

the volunteer researchers found only 33 boards had a written policy or procedure about refusal to admit a student to school, according to their 2020 report. meanwhile, of the 36 boards who responded to the survey, only 11 released their policy or procedure. the researchers found the remainder via web searches.

the survey report concluded that there was a patchwork of wildly varying local requirements. when it came to protecting vulnerable students there are “arbitrary and unjustifiable differences from board to board.”

every school board should meet the basic requirements for transparency and accountability, said the report.

“the failure of so many school boards even to have a policy in this area, the unwillingness of so many school boards to even answer questions about their policy on this issue, and the fact that policies are hard to find online combine to create a disturbing picture.”

violence happens all the time in schools, said laura walton, the president of the ontario school board council of unions, which represents about 55,000 education workers, including education assistants and early childhood educators.

the ministry of education collects data about violence in schools, as required through the occupational health and safety act and the safe schools act. but it’s not uncommon for education workers to be urged not to fill out the forms, said walton.

“there is a massive amount of suppression. the data collected is not clean.”

a survey of 4,000 cupe members about harassment and violence against education workers found that 89 per cent reported at least one act, attempt or threat of physical force from students, parents, colleagues or administrators.

a 2018-19 survey of elementary school educators in ontario by university of ottawa researchers found that 54 per cent experienced one or more acts of physical violence, 72 per cent experienced one or more incidents of harassment and 47 per cent did not report their worst incident of workplace violence. a new survey is underway with results to be reported next september.

“the violence has worsened since the pandemic began. there are not enough supports in the classroom. we’re seeing more behaviour that leads to exclusions,” said walton.

“when you see a child reach that point where they’re in crisis mode, their needs have not been met. no one should be scratched or bitten. but no child should come to that point. not all injuries are avoidable, but there are coping strategies.”

many parents remember the experience of having a child learning from home during the pandemic, said lepofsky. there is the frustration of having a child struggling to learn outside of school and the uncertainty of knowing what will happen tomorrow.

“now imagine that this is what a family experiences every day. that’s what parents go through,” he added.

“they’re all isolated. there’s no way to find out what to do from other parents.”

michelle watson, who works at a hospital in health records, has had to miss hours of work and take vacation days to help with tarik. a single mother, she considers herself lucky that she has an adult son at home to help out.

“i could lose my job because of this,” she said.

robbie mccaw, a manuscript editor, had to resign from a contract because he couldn’t juggle both his work and poppy at home.

“it’s hard to have any kind of daily commitments. i never know when i might get a call from the school,” he said. “i can’t really work with her at home. it’s not fair to her, and i can’t apply myself to tasks at home. sometimes i feel i am subsidizing the ministry of education.”

in a statement, the office of education minister stephen lecce said the provincial government is investing $3.4 billion in funding for special education, which is at the highest level in ontario’s history.

“since taking office in 2018, we have funded the addition of over 3,000 more education assistants in schools, strengthened programs for students with autism spectrum disorder and increased professional development opportunities for educators.”

lepofksy, who is a visiting research professor at the faculty of law at western university, calls the statement “the santa claus defence.”

“not one dime of that matters if you’re told to stay at home. if kids can’t go to school, they can’t take advantage of that.”

for the parents of excluded students, there is also the question of what will happen when their child gets older.

roxanne breau can’t work from home—and she’s already lost two jobs trying to manage both work and young joe.

“that child needs to be in school for his health. it’s constant stress because you don’t know what he’s going to do next.”

breau reached out to the ocdsb’s office of human rights and equity advisor arguing that joe has a right to an education. a human rights officer responded that while a pause for safety is a significant hardship for families, in this case, it was required due to health and safety considerations of students and staff and is outside the office’s jurisdiction.

the office told breau she had a right to file an application with the human rights tribunal of ontario within a year.

breau also tried to get joe into a residential treatment centre in london, ontario. “they told me to use resources in ottawa—but there are no resources in ottawa.”

joe is already big and strong for his age. if he doesn’t get help soon, breau worries about the safety of other people. in the long run, keeping joe out of the classroom will cost society, breau argues.

“it’s going to get dangerous. and i’m trying to do everything i can now to have the resources so i don’t have to worry. this is the time to do something.”

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the excluded: joe has been in school only four full days this year. but he's not suspended. and he's not alone.

“this is a loophole for school boards to get rid of students and not document it,” says an ottawa education consultant.

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