While the Supreme Court’s recent decision in Moore v. British Columbia was concerned with the accommodation of disability in the public school system, the authors argue that the spectre of private school funding looms over the judgment. Given the political consensus supporting public schools in Canada, several substantive and remedial elements of the Moore decision should be viewed in a cautionary light. A standard of accommodation that is rooted in comparison to the services provided by better-resourced and less diverse private schools may not be attainable by or appropriate for public schools, and should the refore be eschewed as a standard of accommodation in analyzing equal access to public school education. at the remedial stage, the awarding of compensation to Jeffrey Moore’s parents for a decade’s worth of private school tuition risks transforming human rights tribunals into purveyors of private school vouchers, an American education policy rightfully rejected by Canadian legislatures. Human rights remedies should be concerned with improving the universally accessible public school system for the benefit of all students with disabilities instead of siphoning scarce resources towards a select few students able to attend private schools. The authors argue that the Supreme Court of Canada was right to reject the Human Rights Tribunal’s systemic remedies which would have, inter alia, shifted responsibility for individual special education programs from the local school boards to the Ministry of Education by mandating greater centralization at the Ministry level of the design, delivery and oversight of individual students’ special education programs. This role is best undertaken at the local level by teachers and specialized board personnel who are in the unique position to know a student’s individual needs and abilities, and the circumstances and resources of the particular board. Concern is raised that Human Rights Tribunals can impose such broad systemic remedies affecting major public policy issues like education funding and centralization subject only to review on the standard of reasonableness.
Charney, Robert E. and Kraicer, Sarah.
"Moore v. British Columbia: A Good IDEA?."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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