Access to post-secondary Education in Canada for students with disabilities
| Published date | 01 June 2023 |
| DOI | http://doi.org/10.1177/13582291231174156 |
| Author | Laverne Jacobs |
| Date | 01 June 2023 |
| Subject Matter | Articles |
Article
International Journal of
Discrimination and the Law
2023, Vol. 23(1-2) 7–28
© The Author(s) 2023
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DOI: 10.1177/13582291231174156
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Access to post-secondary
Education in Canada for
students with disabilities
Laverne Jacobs
Abstract
In Canada, access to post-secondary education is guaranteed by a number of domestic
instruments. These instruments are: statutory human rights legislation, constitutional law,
and accessibility legislation. These guarantees are further bolstered by Article 24 of the
United Nations Convention on the Rights of Persons with Disabilities (CRPD). Statutory
human rights legislation (or anti-discrimination law) plays the most extensive role in
controlling the discretionary power that colleges and universities exercise with respect to
the admission of prospective students and the reasonable accommodation of matriculated
students with disabilities. This article presents the findings of a review of decisions by
human rights tribunals in Canada over the 7-year period of 2014–2021. With respect to
both admissions cases and in-program reasonable accommodations cases, it identifies the
main types of barriers experienced by persons with disabilities. It also examines the ways
in which accessibility legislation, a proactive standard-setting form of legislation in Canada,
has sought to improve access to post-secondary students with disabilities, focusing on
Ontario’s post-secondary education accessibility standards as an example. Finally, it
argues that changes to policies and practices on the ground that draw more inspiration
from Article 24 of the CRPD will help to ensure that the equality right to post-secondary
education for students with disabilities is fulfilled in letter and spirit.
Keywords
persons with disabilities, CRPD, right to education, post-secondary education, Canada,
anti-discrimination law, accessibility standards, human rights law
Faculty of Law, University of Windsor, Canada
Corresponding author:
Laverne Jacobs, Faculty of Law, University of Windsor, 401 Sunset Ave, Windsor, ON N9B 3P4, Canada.
Email: ljacobs@uwindsor.ca
Introduction
Martha Nussbaum has noted that education assists one’s ability to achieve their fullest set
of capabilities.
1
Disability studies scholars such as Jay Dolmage, note, similarly, that
education can be a path to social justice, but recognize that it can also serve as a means to
uphold power imbalance.
2
This tension exists because the post-secondary education
system has generally been designed according to an ethic that seeks to valorize perfection
and ability and which was not created with students with disabilities in mind.
3
For
students with disabilities, the idea of education as a path to developing human potential is
entrenched in the right to education guaranteed under Article 24 of the United Nations
4
Article 24(1) of the
CRPD provides a commitment to the full development of human potential and of the
student’s sense of dignity and self-worth, as well as a commitment to develop the student’s
personality, talents, and creativity, (along with their mental and physical abilities), to their
fullest potential.
5
Article 24(5) builds on this commitment by guaranteeing persons with
disabilities access to general tertiary (or post-secondary) education, vocational training,
adult education and lifelong learning without discrimination and on an equal basis with
others. Nevertheless, on the ground, within educational institutions, disabled post-
secondary students
6
continue to face barriers to education every day.
7
In Canada, the right to post-secondary education for persons with disabilities is
protected through various domestic human rights instruments and supplemented by the
CRPD. At the same time, obstacles for disabled students exist at different stages of
the experience of post-secondary education. This article uses a case study to identify the
barriers experienced by students with disabilities on the ground despite the long-standing
legal frameworks that ensure post-secondary education for persons with disabilities in
Canada. It further examines how law and policy may be improved to ensure access to
post-secondary education for students with disabilities.
This article begins with a discussion of the legal frameworks that exist in Canada to
protect the right to post-secondary education. Part II provides an overview of the types
of barriers that students with a variety of disabilities have faced during the course of
completing post-secondary studies. The barriers are identified through an examination of
decisions of human rights tribunals and courts in Canada rendered between 2014 and
2021. These barriers to pursuing post-secondary education are identified in relation to the
admissions process, in-program learning, and the pursuit of remedies. In Part III, I draw
from an analysis of these decisions and barriers to argue that the right to post-secondary
education for disabled students in Canada would be strengthened if more inspiration were
drawn from Article 24 of the CRPD in contexts such as the development of educational
policies and processes surrounding admissions, funding, and in-program accommoda-
tions. Moreover, proactive regulatory approaches such as accessibility standards for post-
secondary education are a new innovation that could implement the goals of the CRPD
effectively and counteract the inadequacies of reactive models of anti-discrimination
regulation. These steps should not only be anchored in Article 24 of the CRPD but should
also draw upon human capabilities and intersectional approaches.
8International Journal of Discrimination and the Law 23(1-2)
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