The court’s approach was to compare the situations of kids with severe learning disabilities to those of mainstream kids, as opposed to requiring equal access to special services among the kids who needed them.
“That’s a real victory,” Prof. Eberts says, and it reflects a trend in jurisprudence from “formal equality” (everyone being treated the same) to “substantive equality” (everyone being set up for an equal chance at a similar result).
But critics argue that the decision raises an impossible bar for a public system, and one with “financially ruinous consequences,” according to Karen Selick, litigation director of the Canadian Constitution Foundation, which intervened in the court on the side of the school board.
“It’s one of those opening-the-floodgates type of cases,” Ms. Selick argues. “Every parent now who says, ‘I am not satisfied with how my child is doing in school,’ will be able to look at this and say, ‘Well, my kid would do better in private school.’ Where are you going to draw the line?”
While that is an oversimplification of the ruling, even supporters are uncertain how far it might reach.
Toward the end of the Supreme Court’s decision, Judge Abella argues that the school board failed to consider other cost-cutting measures to save the dyslexia program – specifically citing an outdoor-education class that was saved – which, Ms. Selick suggests, may impinge on the rights of school boards to make their own budget decisions.
She points out that while Jeffrey Moore lost access to a specialized program, he was still getting five hours of individual help a week in school. How do you weigh that extra help, she asks, against the needs of the child sitting next to him, who is undiagnosed with a disability but perhaps also on the borderline of school failure?
“Resources don’t fall like manna from heaven. If the disabled kid gets them, other kids won’t. We will never know how other programs are being deprived.”
However much they have achieved, courts are a costly and time-consuming approach to setting public policy. Advocates on both sides say the Moore decision should serve as a wake-up call to school boards to assess the services they provide. (Judge Abella says as much in the decision.)
But even with the best intentions, that is easier said than done. Learning disabilities are difficult to treat, and what works for one child does not always work for another. Even parents who try private schools often report bouncing between institutions seeking the best options – as Dr. Wiener of OISE points out, the quality varies widely.
Experts such as Linda Siegel, a special-education professor at the University of British Columbia, say a growing body of research suggests that current psychological tests to identify kids with learning disabilities are an inefficient way to focus funding – as well as excluding those students who do not meet the diagnosis but also require help.
American schools are increasingly practising an approach called “response to intervention” – in which all students are tested for potential reading roadblocks so that those who need extra help receive it early, without requiring an official diagnosis.
This approach has reached North Vancouver, where Mr. Moore went to school decades ago. Prof. Siegel has helped develop a program there in which every child in kindergarten is tested, at a cost of $1,000 per class instead of $3,000 per individual student. She says it has been a success, improving outcomes in its first few years.
In Ontario, more school boards are getting around waiting lists by writing up individual education plans for students before they get a diagnosis. But while that may be a way to help students on the ground, it does not distribute additional funding to school boards.
Alberta has overcome this with a $375-million inclusive-education fund, and this year, the province changed the way school boards receive that money: They still get specific funding for children with severe disabilities, but the largest share is based on broader criteria such as their population of students from low-income families, refugees, aboriginal students or other high-risk categories.
Ultimately, as Ms. Davis says, parents wants schools to help their children in a timely and efficient matter, and to maintain that standard throughout their education. Some students will cost more to educate than others. “Equal does not always mean fair,” she says. “If someone needs glasses, you don’t give the whole class glasses.”
It’s clear one educational size does not fit all. But in a nation of increasing diversity and dwindling funds, finding the balance between fairness and equality may be the toughest math equation on the blackboard.Report Typo/Error