How The VSB's Ending of a Special Education Program May Bring Human Rights Litigation Against the District.
Editor's Note: This story's discussion of giftedness was aided by coverage guidance sourced from The New York Times, journalism.co.uk, Journalist's Resource from the Shorenstein Center on Media, Politics and Public Policy at the Harvard Kennedy School, Poynter Institute of Media Studies, J-Source by the Canadian Journalism Project, Government of Canada, (US) National Disability Rights Network & National Center on Disability and Journalism, and independent expert consultation. If you think there is something we can improve upon or correct please do not hesitate to contact us.
UPDATED 8:26 PM, APRIL 14: New details on District’s plans to continue intake
As the Vancouver School Board’s unpopular plan to phase out the Multi-Age Cluster Classes program moves forward, discussions of filing a human rights complaint are taking place as parents and students grow increasingly frustrated with management staff and elected trustees. After learning the facts, one of BC’s top human rights lawyers says they may have a case.
But the story of how we got here is a complex one, shaped by failed consultations, constituent outcry, and an information war between a public body and the public. As the saga progresses, the looming cloud of the approaching municipal elections in October has turned MACC into a political issue, with parents confirming that they will campaign against trustees who do not act on the matter.
District staff did not answer questions for this story. In an email sent hours before the April 8 deadline, communications personnel said that "other school-based priorities" prevented staff from answering six questions posed to them a week prior, and offered to answer "by next week". Trustees, however, did respond to questions.
Five days after we published this article, the District walked back its plans to end MACC for the 2022/2023 school year, and reopened the program for Grade 4 intake. Although a significant change in course, the parent-run advocacy group SaveMACC says there is still more work to be done.
What is MACC?
The Multi-Age-Cluster Classes (“MACC”) program is gifted education program for Grade 4 to 7 students with gifted (P) designations. Gifted education is considered special education in British Columbia.
But what is giftedness? Well, one UBC professor said that that question is worth an entire post-secondary semester. However, it remains an important one to answer given that conflation between gifted and enriched education has caused substantial confusion in Vancouver over the last year.
The word "gifted" is widely considered problematic and has many definitions. Some prefer the term “students with advanced learning needs” instead. However, “gifted” is official terminology in British Columbia, and for the purposes of historical record, The Nest will continue to use it.
The Ministry of Education sets the policy definition for giftedness:
“A student is considered gifted when [they have] demonstrated or potential abilities that give evidence of exceptionally high capability with respect to intellect, creativity, or the skills associated with specific disciplines. Students who are gifted often demonstrate outstanding abilities in more than one area. They may demonstrate extraordinary intensity of focus in their particular areas of talent or interest. However, they may also have accompanying disabilities and should not be expected to have strengths in all areas of intellectual functioning.”
The last sentence is very central to the discussion. Experts say giftedness often comes with social-emotional struggles. Those struggles can present significant challenges for gifted students inside the mainstream classroom, which is why experts generally agree gifted students need a group of like peers, often achieved through clustered classes or in dedicated programs like MACC.
"Most of these children have not had success in a mainstream classroom and struggle with issues such as perfectionism, anxiety, ADHD, bullying and depression," reads a statement from SaveMACC.
Twice-exceptional (often abbreviated “2e”) students are gifted individuals who have received a formally diagnosed learning disability in addition to their gifted designation. MACC serves 2e students as well as those who are gifted without an additional special need.
"These children are dually exceptional and have distinct needs due to the unique combination of two or more exceptionalities. They fall into their own unique subgroup that is different from any other population such as gifted children or children with Learning Disabilities," says the Gifted Children's Association of British Columbia in a website post.
Learning disabilities are their own designation under the Ministry's guidelines and include neurological disorders such as Dyslexia, Dyscalculia, Dysgraphia, Dyspraxia, Auditory Processing Disorder, and Visual Processing Disorder, according to the Learning Disabilities Association of British Columbia ("LDABC"). Attention Deficit Hyperactivity Disorder (“ADHD”) was also listed as a related disorder by LDABC, but the Ministry does not consider ADHD a learning disability.
Gifted children and children with learning disabilities are distinct populations. 2e learners are both.
Graphic by Seth Perler
MACC's purpose is twofold: to support gifted students' interests through enrichment opportunities, and to support their social-emotional well-being and development. MACC is also there to provide support for the 2e subset’s learning disabilities. It is a program for students with special needs.
However, it isn't for all students with gifted designations. Most gifted learners do not require specialized pull-out programming as offered by MACC, and have needs that can be addressed through mainstream class accommodations. Approximately 220 of the VSB 300 identified elementary-age gifted students are presently supported in this way.
Gifted students enter the program following completion of Grade 3 and transfer schools. They generally stay in the program until they graduate elementary school and enter mainstream secondary schools. Numerous alumni have spoken at length in recent months about how the program was so vital to them, and how it changed their lives for the better.
But that program, as students and families know it, is ending.
The Revisioning
Redesigned under the theme of equity, the VSB says the program's model hasn't changed much in 30 years and needs to catch up with the latest pedagogy and standards for inclusion. Their Gifted Enrichment Centre (“GEC”) proposal would have students leave their catchment schools, complete a six-week, topic-specific program module, and return to the regular classroom afterwards.
"How students are taught has evolved over the last 30 years and the MACC program should evolve with it. As such, the District proposes to revision the MACC program, aiming to expand services, align the program structure with the revised BC curriculum and increase equity of access for students," says a VSB webpage.
Among the more significant differences between MACC and GECs is the admission model. The VSB is planning to rely on teacher identification and student-self identification for GEC referral, and will not require a gifted designation.
"Students are no longer required to be designated as gifted. Those who demonstrate an interest, passion and aptitude in a topic can access the programming offered by gifted specialist teachers," the District wrote.
Currently, prospective MACC students' referral begins with a parent or teacher finding something in the classroom needs to be addressed. That initiates the gifted identification process. Students are assessed for giftedness through psychoeducational exams, teacher and parent observations, and group assessments coordinated by a District Resource Teacher.
Under this current system, not all students are assessed for giftedness, and the District says the selection of who is assessed needs to be made more equitable. MACC advocates agree, but not in the way the District proposes to do so.
"Unlike the current model where referrals are generated based in part on findings from a psychoeducational assessment, the revised model provides a flexible referral system encouraging any student to attend the enrichment centre," the District wrote.
School board staff have also said that psychoeducational assessments do not equitably include all students because they are based on "western norms". While acknowledging that psychoeducational assessments do have flaws, experts say that there is still a place for them in making decisions around children's learning profiles.
Regarding student and teacher identification, experts say those mediums of identification are good places to start, but encouraged the District to still include formal assessments in the process. No single source should be used as evidence in making a gifted determination. Multiple sources, such as teacher observation, student records, formal assessments, interviews, and nominations should always be employed. The Ministry of Education's special education manual also advises that.
SaveMACC told the Nest that many gifted students may not have the self-confidence to identify themselves, and said that those who would self-identify as GEC candidates are "more likely to be from higher socioeconomic classes and are more likely to be white, not disabled, fluent in English, and born in Canada."
Critics of the GEC proposal have said that there are things that could be done to make gifted education more accessible and equitable, and pointed to universal screening for giftedness in elementary schools and increasing the number of MACC classes. But neither of those items is currently under officials' consideration.
The Coquitlam School District conducts universal screening using the Canadian Cognitive Abilities Test (CCAT 7), which initiates the gifted identification process for all students regardless of specifically voiced intervention. The Toronto District School Board introduced universal screening for Grade 3 students in 2016 to "improve equity of access for all students, including those who may be identified with an exceptionality" including giftedness, learning disabilities, and mild intellectual disabilities.
In both of those jurisdictions, all students are given a direct opportunity for identification, which experts say may be part of the reason why Coquitlam, despite having 36 per cent fewer students, has identified three times as many gifted learners than Vancouver.
The delivery of special education is the responsibility of school boards, mandated by the Ministry of Education. And while the Ministry provides supplementary funding for designations across three levels, school districts do not receive supplementary funding for students with gifted or learning disability designations. In a policy statement, the Ministry says the basic allocation provided to school districts already "includes funds to support the learning needs of students who are identified as having learning disabilities, mild intellectual disabilities, students requiring moderate behaviour supports and students who are gifted."
Public schools are required to deliver special education to gifted students but aren't given extra funding to do so, which means local districts are often required to shore up costs that don't come from the Ministry. The British Columbia Teachers' Federation ("BCTF") has said this creates a "gap" in inclusive education, and Jody Polukoshko, the spokesperson for the Vancouver Elementary School Teachers' Association ("VESTA"), a local of the BCTF, told The Nest the funding gap speaks to how education policy views gifted designations.
"This shortfall is a little bit of insight into how inclusion is viewed by the Ministry and the Districts, but it doesn’t mean, in my view, that the district is doing all it can to create inclusive, accessible learning spaces for students. I'd point to the steadily increasing number and salary of senior management, who don't work to support students directly,” Polukoshko said.
At the same time, however, VESTA says that staffing support for gifted students such as school counsellors, psychologists, speech-language pathologists, ELL teachers, Learning Support teachers, Teacher-Librarians, and District Resource Teachers has been reduced over the past few years. The Nest was not able to independently verify that statement given the limitations of District remuneration records.
Critics told the Vancouver Sun in 2015 that the lack of Ministry funding and lack of culture encouraging gifted identification disincentivizes school districts and parents from seeking it for students.
"There is a lack of funding and that also affects the urgency. [Many] think these students can just stay afloat because they are smart. Identifying one student takes so much time and costs so much money,” Dr. Owen Lo told reporters at the time. Many families that can afford to, in Districts without universal screening, choose to pay thousands of dollars privately for psychoeducational assessments as waiting for an assessment in the public system could take more than a year.
However, at least when it comes to gifted education, Coquitlam says they are able to make that lack of supplementary funding work for its students.
"There is no [targeted] funding for gifted students," Coquitlam School District Director of Learning Services Paul McNaughton said via email. "The supports for gifted programming comes out of the regular grant allotment that all school districts receive."
Coquitlam provides a school-based pullout program at all of its Elementary (K-G5) and Middle (G6-G8) schools. In addition, the District tries to "cluster students in classes so that they can be with like-minded peers, learn about their giftedness and extend in their areas of giftedness," according to McNaughton.
McNaughton justified providing universal screening given "assessments are expensive and hard to access, so this is a way we can ensure that every student can be screened to identify any exceptionalities in their learning profile."
GCABC and other experts said that while universal screening alone can't identify every gifted student (as multiple criteria are advised for each student's assessment), it still captures many and yields valuable information about learning profiles to classroom teachers, in addition to increasing equity in access to special education compared to Districts without. GCABC also said Coquitlam "is a good model reference" and can be "used as an example of what works well and what can be improved upon" in Vancouver.
The VSB wouldn't answer when asked if they planned to implement universal screening, and the District will be proceeding with GECs based on an admission process that some say will achieve the opposite of their stated goal of increasing equity. But the single most contested issue advocates and experts have with the District's proposal isn't the admission process: it's the duration.
The VSB argues that research suggests a duration of six weeks, as opposed to the current multi-year format, is ideal. However, multiple Griffins' Nest reviews of the VSB's six-week claim have found that statement and the research to back it to be a work of fiction rather than fact.
After examining 10 studies cited at various points in time by the VSB, not one has demonstrated six weeks is preferred over multiple years of support for gifted students. Over three-quarters of a year since the first public discussions around the program's fate, the VSB's Learning Services department has failed to produce evidence that supports the six-week model. The Nest has made three separate inquiries over two months about the matter. In a statement, the Board declined to acknowledge that six weeks was never an evidence-based duration.
Students, parents, and experts say the VSB’s proposal is not comparable to MACC and will not support this vulnerable population. They warn that without support, gifted students may develop debilitating anxiety and depression, slip into academic decline, and are at increased risk of dropping out and self-harm.
Gifted Experts and the Teachers' Union Weigh In
A panel of experts, hosted by program advocates and the Vancouver District Parents Advisory Council, convened for nearly two hours to discuss the importance of MACC on February 24.
The panel consisted of Virginia Bowden, a former VSB gifted education teacher and the developer of the Gifted Seminar Program, Dr. Lannie Kanevsky, an associate professor at the Faculty of Education at Simon Fraser University, Dr. Owen Lo, an associate professor at the Department of Educational and Counselling Psychology, & Special Education at the University of British Columbia, Maureen McDermid, a special education teacher and consultant, Dr. Joan Pinkus, a veteran psychologist affiliated with LDABC and GCABC, and Dr. Lena Normen-Younger, the past president of GCABC, who served as the moderator.
When it came time to discuss the VSB’s research, the panel was generally at odds with the District's interpretations.
"As a trained researcher, I [found the VSB's research summaries] very interesting because, you know, there are rules for how you summarize research," Normen-Younger commented, addressing the VSB's literature reviews which include descriptions of works cited. "To me, it's almost [comparable] to anti-vax theories where you have a set theory and then you try to prove it with very selective research."
Normen-Younger’s statement came after weeks of parents, who said they have reviewed the VSB’s research, accusing the District of creating evidence to support a predetermined decision to end the program.
Panellists pointed out that much of the VSB’s claims were based on single studies, which is a mistake Normen-Younger said she has cautioned graduate students of. “One study does not produce generalizable results,” she advised.
Noting that much of the research came from outside Canada, Lo emphasized the need for local evidence to be included for consideration. He said that as a scholar in the field for more than 20 years, it was concerning that he failed to recognize most of the authors on the VSB’s literature reviews.
“I've never been exposed to some of the [researchers’] names, so for me, that's not a credible source - if I don't know [their names], Lo said. He also added, "I don't find any of the scholars in our field addressing equity issues are…being cited or addressed in the [VSB’s] documents,” proceeding to list several names of academics he would have expected to see quoted.
The six-week duration was dismissed by the panel, who said it is an insufficient period of support for gifted students. Panellists said the idea of limiting programming to such length “will not work” and lacked evidence.
“Given my past 20 years of studies, I've never seen any proposal saying that a six-week pull-out program is [a] perfect duration,” Lo said.
"Disruption" was a word mentioned multiple times when experts described students' transition to and from the district's six-week GECs programming.
“Probably my biggest concern about going to the [GECs]…is the disruption of the transition, the disruption of relationships,” Kanevsky said. “Some bright kids really struggle with those kinds of transitions, period.”
McDermid later commented that 2e students “do not make transitions well."
“They already, because they are such complex individuals, experience high levels of anxiety just about managing themselves every day.” She emphasized.
Part of the District's plan to support gifted students is to have classroom teachers accommodate those who would otherwise be in MACC. Panellists expressed concern for classroom teachers' capacity to uphold that level of support, saying the training afforded to them is insufficient, and that they already have a lot on their plate. Pinkus had a creative analogy for that dynamic:
“It’s like someone going to a restaurant and the chef says “I can cook anything. If you're [a person with Celiac Disease, and] you need a gluten-free [option], if you're lactose intolerant, if you're not allergic, don't worry, I can handle it all. I can only handle it though for half an hour, the rest of the time you have to choose from the regular menu. And by the way, I've had no special courses in nut allergy cooking or gluten-free cooking or [lactose-free] cooking, but I'll do my best to try and make a hodgepodge for you,” she said.
“I just can't understand how that teacher is going to be is going to be able to meet the needs of all of these children, particularly those who leave and then come back.”
Pinkus and the other experts aren't alone in that worry. Aside from it being shared by parents, the VESTA told The Nest they have similar concerns.
"Teacher's plates are full," said VESTA’s Polukoshko cautioned. "We cannot add more to our workload. However, we remain committed to inclusion of all students, and ask, as always, for greater support and staffing to allow us to do the best possible job teaching diverse and inclusive classes...teachers [are] very concerned with the impact of pull-out programs on students, both due to the fact that they will be missing in-class programming and relationships with classmates, and the inequity generated whenever participation in a program is contingent on equity factors like availability of transportation or childcare."
In a feedback letter sent on February 18, VESTA called on the VSB to release more information regarding the logistics of transitions and continuity of learning between GECs and the regular classrooms.
Panellists agreed that MACC’s current structure facilitates the kind of learning environment required to support gifted students with needs that cannot be met in regular classes. Bowden said in addition to the intellectual freedom offered by MACC, the program allows students "to not have to hide a part of themselves,” and allows them to feel “like they belong they feel like they can connect with someone.”
While organizers intended for the discussion to be an opportunity for trustees to engage directly with experts, many were upset by the lack of questions from elected officials when the event came to a close, especially after the confusion of the February 23 Special Board Meeting less than 24 hours earlier. Of the eight delegations presenting that evening, six were about MACC, and as constituents appealed, trustees seemed detached from the situation.
Confusion Among Trustees
Trustees have been reluctant to engage in the MACC situation for a number of weeks. When asked by The Nest in early February why elected officials had yet to take a position, Board chair Janet Fraser said that the effective cancellation is an operational change, and thus not one that requires the Board to vote on.
When asked if trustees would act on families’ request for them to visit a MACC class, Fraser told The Nest in February, “the District is limiting the number of in-person visitors at schools,” and trustees would not be able to. Weeks later, Prime Minister Justin Trudeau, Minister of International Development Harjit Sajjan, and Minister of Environment and Climate Change Steven Guilbeault were welcomed to David Thompson Secondary in “a surprise visit.”
Board policy states that trustees are responsible for approving “the implementation and cessation of District programs,” and both SaveMACC and DPAC believe that the program’s phasing out engages this responsibility, despite what trustees and staff say. Trustees declined to explain how MACC's cancellation isn't a cancellation.
Five students and a parent presented to trustees on February 23 urging them to intervene and halt the ending of MACC, but the board became defensive of the revisioning and deferred to their staffs' position. In one instance, after current secondary student and MACC alum Alice Mandlis told trustees the VSB's proposal will "deprive this vulnerable group of children of the one thing that actually helps them learn," and called their plans discriminatory, trustee Lois Chan-Pedly began her questioning by cautioning that she would be "a mean one."
Mandlis later told The Nest in an email that the board meeting did not give the impression trustees “were genuinely interested in hearing our opinions but were rather looking to trip up the students speaking.” Most of the questions trustees asked were spoken as criticism, Mandlis said, and felt “trustees were trying to catch the students making a mistake so they [could] use that as an excuse to invalidate the statements and arguments being made.”
“This leads me to think that they don't particularly value or understand our point of view.”
"Please get the facts straight," trustee Estrellita Gonzalez said to a parent, before proceeding to make a substantial factual error. "MACC is not being cancelled at this point, it would run in tandem [with the GEC proposal]," she said. "Correct me if I'm wrong staff if that's not the case, but [trustees] have been briefed on this a number of times and this opportunity is to hear back from communities. The alarm bell should not be rung at this point because we are not cancelling anything, it's a pilot, we want to understand to see what can be done to enhance the program and the only decisions to cancel [MACC] I think would then come to the Board for that decision."
Superintendent Helen McGregor, also at the meeting, subsequently clarified for Gonzalez that while current MACC students will be able to complete the program to their seventh-grade graduation, there will be no new intake for students currently in Grade 3 to enter MACC in Grade 4. Students entering Grade 5 or 6 next year remain eligible for MACC. The program will be phased out continually until there is no student eligible, and GECs will be phased in as a replacement.
Neither Chan-Pedly nor Gonzalez responded to individual opportunities to respond to criticism.
Parents were upset that trustees' scrutiny of the February 23 delegations was not present when it came to their own staff, and were angered by the continual lack of tough questioning despite knowing management staff had been misleading the public. Many were also angered by trustees' lack of familiarity with the MACC situation and took to social media to espouse their disapproval.
Board Chair Janet Fraser said in a statement emailed to The Nest that trustees are always interested in their constituents' perspectives and encouraged those who felt dissatisfied to contact her. "We hold ourselves to the same standards we expect all members of school communities to model," Fraser said.
“On matters of voter support, the Board is accountable to the electorate and always respects the collective will expressed through our municipal election process,” the Chair acknowldged.
District Ends MACC
The VSB's public consultations, managed by Spur Communications, have been heavily criticized after discussion within them was limited and participants who spoke out who removed from the Zoom calls. The wide condemnation has even included remarks from former VSB trustees, who have shamed the District for its "sham" consultations. Jane Bouey, a former two-term trustee, accompanied her comment with a "#DemocracyEroded" on Twitter.
Parents and students weren't the only ones who didn't feel consulted. In their February 18 letter, VESTA also expressed that teachers were dissatisfied with the incorporation of their input. "Given that this decision had been made prior to the consultation process, teachers were left feeling that they were only asked to participate mid-way through a process that was already underway, and where decisions had already been made, resulting in what feels like a shallow and performative consultation," the letter read.
"The consultation discussions limited the scope of the feedback to questions that focused on the length of the program, potential topics of interest or themes, and provided little clarity or answers to teacher questions or concerns when they were raised. The engagement presentations did not make it clear whether the VSB conducted an audit of race and [socioeconomic] status about current MACC students, who is currently referred to for testing, or whether the referrals were representative and reflective of the District's student population as part of the research that led to the District's decision".
Despite the critics, the VSB says the consultations gave the District a green light effectively end the program, relying on the statistic that 73 per cent of their survey's 1800 respondents supported the "revisioning". SaveMACC said on Twitter that the District designed to survey the be overly agreeable so that no person could disagree with the premise of what was being asked. Firmly against the GECs replacing MACC are the over 850 people who have signed SaveMACC's petition, a significant number considering school board elections can come down to only a few hundred votes separating candidates.
On March 2, the school board's Student Learning and Well-Being Committee convened to discuss the results of Spur Communications' engagement report. The report painted a rosy picture of consultation participants and survey takers endorsing the VSB’s GEC proposal, and claimed that participants liked what the District had planned.
In the committee meeting, trustee Carmen Cho, who attended the February 24 panel discussion, asked staff to speak to panellists’ statements regarding gifted students' need for a peer group. In response, Director of Instruction Learning Services Rosie Poetschke said, "research has shown us very clearly that learners with a gifted designation thrive significantly in a regular classroom setting." Gifted education experts have repeatedly emphasized that having like peers is centrifugal to the well-being of the vulnerable group in question.
Jen Brummitt, representing the District Parents Advisory Council in the meeting, repeatedly voiced that Spur’s report was at odds with the views of the MACC community.
“A phasing out still does equate to a cancellation," Brummitt told trustees. "DPAC is still strongly calling trustees to govern and to follow your own policy....we do still call on you to vote on the cancellation of the MACC program."
Parents have quarrelled with the school board for months over the use of the word "cancellation" regarding MACC.
The word “cancellation” makes sense to describe the VSB’s plans and is accurate terminology. Merriam Webster defines cancellation as the act of deciding “not to conduct or perform (something planned or expected) without expectation of conducting or performing it at a later time.” MACC is being phased out and inaccessible for most who would otherwise be entering it. The definition of cancellation fits within parents’ and DPAC’s employment of the word. By virtue of access to the program being precluded for prospective applicants for the 2022-2023 school year within the general entrance timeline, the program is being cancelled.
Trustee Fraser addressed Brummitt's call by offering her perspective that MACC is undergoing an operational change, and the program is still available."We've heard from staff that students with P-designations will still be supported, and currently many are supported in mainstream classrooms," Fraser told Brummitt.
"There [is] a subset of them that do fine in a regular classroom," Brummitt replied, "and there [is] a subset of them that we've heard from who find the regular classroom harmful."
"There is a special need there that can't be addressed [by GECs]".
The debate ended shortly after.
Discussions were brought to a close by trustee Barb Parrott, who thanked those who offered their input, and said, when “you bring about change it is stressful, and it is an emotional thing.” Parrott said staff will investigate GECs in the future, and “hopefully, we’ll come back with more information next year.”
With the discussion ended and no trustee objections, MACC’s phasing out is moving forward in favour of GECs, meaning that current Grade 3 students who would otherwise be entering the program next year, won’t be.
Mauricio Drelichman is a parent of one of the students to whom MACC is no longer available. He told The Nest that although the District claims they are redesigning the program to be more equitable, they have created a highly inequitable situation.
"We will find...something that works for our child, regardless of whether MACC is...available or not. And I think that highlights the big problem with the elimination of MACC, [which] is that families that have resources are not going to feel a big impact. It's the families that depend on the public education system that are going to be left behind, the families that do not have the money to pay for private schooling, for the specialized programming that their child needs," Drelichman explained.
Drelichman, along with many other parents and experts, says that the VSB's GECs won't help gifted learners, and forces families like his to seek alternative arrangements to get the education their children need. He enrolled his older gifted child in a private school after being unable to access MACC, but says he isn't sure what he will do for his younger child.
"This is my big problem with the claim that cancelling MACC is an equity-driven measure: it is actually highly inequitable."
Loraine Wong is a parent in a similar circumstance. Like Drelichman, her child would likely be entering MACC next year if intake for the program had not been ended. Wong says that given her experience, the level of classroom accommodation is very variable from teacher to teacher, versus the guarantee of accommodation in MACC. She noted that classroom accommodation won't work for all gifted students' and that some have needs that simply cannot be met outside of a specialized program.
Wong also said that the District's proposal presents some academic concerns, specifically around what happens to the rest of the curriculum when students attend a topic-focused GEC module.
Wong also said that while her student would be OK in the mainstream classroom, he would "thrive" in MACC. Recognizing that every student has their own level of needs, she said schools have a duty to meet those needs either in the classroom or in dedicated full-service programming accordingly.
Both Wong and Drelichman expressed dissatisfaction with trustees' responses to the situation. “The silence is so loud,” Wong said, adding that many parents now sincerely question trustees' ability to understand the impact of decisions and their ability to empathize.
Drelichman told The Nest trustees' inaction is “grounds for dismissing them through the ballot box."
Another parent, whose name is being withheld out of concern for reprisal, has a second-grade gifted-designated student who has been diagnosed with ADHD. They shared that their child has significant social-emotional needs that, despite having an Individual Education Plan and Resource Teacher, are not being met in the mainstream classroom. "The school talked about possible supports after his designation but nothing ever materialized," the parent explained.
The parent explained that MACC "is a need, not a want for these kids and they cannot thrive without it."
"Without MACC, we are now, unfortunately, exploring private school options. Staying in public school to us would be equivalent to giving up on our child's potential. We can't watch his love for learning die in an environment in which he can't be challenged and engaged. It is very sad for us as he has worked so hard to build up relationships at his current school but the risk of staying is too high. Becoming disengaged, disruptive, [not] bothering to put in effort.... these are very serious long-term consequences to an insufficient learning environment."
With parents across the District uncertain of their children's educational and future well-being, frustration with district staff and trustees is high. Some have discussed MACC as a human rights issue, and as the VSB moves forward with their plans to end the program, a future complaint doesn't appear to be off the table.
MACC and Moore
Jeffery Moore was a student of the North Vancouver school district diagnosed with severe dyslexia. When Jeffery entered Kindergarten in 1991, students with special needs received various forms of support for their learning disabilities, which included out-of-class assistance programs and the assignment of resource teachers, coordinated by a diagnostic centre.
However, facing budgetary issues, the school district moved to cut the diagnostic centre and effectively ended support for children like Jeffery in 1994. Jeffery’s parents were forced to enrol him in a private school to accommodate him starting in Grade 4. Jeffery’s father, Fredrick Moore, filed a human rights complaint against the school district and the Ministry of Education under the BC Human Rights Code, alleging his son had been discriminated against and denied a service on the basis of a disability.
"A person must not, without a bona fide and reasonable justification... deny to a person or class of persons any... service... customarily available to the public...because of the... physical or mental disability... of that person or class of persons," section 8 of the BC Human Rights Code reads.
After making its way through the BC Human Rights Tribunal, Supreme Court, Court of Appeals, the Moore case ended up at the Supreme Court of Canada in 2012.
The question before the court of last resort was not whether Jeffery's dyslexia constituted a disability, but rather "whether Jeffrey [had], without reasonable justification, been denied access to the general education available to the public in British Columbia based on his disability, access that must be “meaningful”," according to court records.
The Supreme Court ruled unanimously against the school district.
The court upheld the Tribunal’s original “finding of discrimination against Jeffrey Moore,” and ordered the school district to “reimburse the Moores for the cost of private schooling and award them damages.”
According to the results of a recent FOI request filed by education advocate Kimberly Block, BC school districts have spent almost $4.5 million in legal fees associated with human rights litigation. The spike in fees in 2012 was likely related to Moore.
The court also agreed with the Tribunal’s finding that “the District undertook no assessment, financial or otherwise, of what alternatives were or could be reasonably available to accommodate special needs students if the Diagnostic Centre were closed. The failure to consider financial alternatives completely undermined the District’s argument that it was justified in providing no meaningful access to an education for [Jeffery] because it had no choice. In order to decide that it had no other choice, it had at least to consider what those other choices were.”
Now-retired Justice Rosalie Abella famously wrote in the decision that "adequate special education…is not a dispensable luxury. For those with severe learning disabilities, it is the ramp that provides access to the statutory commitment to education made to all children in British Columbia."
Education and disability advocates nationwide applauded the court’s ruling. The Learning Disabilities Association of Ontario, an intervenor in Moore, said in a press release that "The Supreme Court of Canada validated the position long held by learning disability associations across Canada in their support for the right of all students with learning disabilities to adequate special education programs and services, including intensive evidence-based interventions for those who need them."
A decade after Moore, Aleem Bharmal, QC, told The Nest in an interview that parents have an arguable case in applying the Supreme Court’s ruling to MACC.
Bharmal is a lawyer with the non-profit Community Legal Aid Society (“CLAS”)'s human rights clinic and served as its Executive Director from 2008 to 2019. Bharmal also serves as the first vice president for the Canadian Bar Association's BC Branch. CLAS litigated Moore under his directorship.
"Moore re-established the very basic human rights test for discrimination, which simply is: are you a member of a protected group or have a protected characteristic; have you been treated in an adverse way; and what is the connection, or in legal terms, the nexus, between your protected characteristic and the adverse treatment?"
Bharmal said demonstrating that giftedness is a disability could pose a challenge, but pointed out that human rights case law defines the term broadly and allows a case to be made. Generally, he said, a component of a disability is the creation of a functional limitation, and “limitations that cannot be addressed in a standard classroom would bring [MACC] into the Moore situation.”
Bharmal explained that if that three-part test is passed, a prima facie case for discrimination is established and the burden would shift to the District to justify their actions. The VSB would "still have a chance to defend themselves by saying what they've done is reasonably justified. That is a pretty high burden, if you are able to establish a...prima facie case to begin with because [the District has] a duty to accommodate to the point of undue hardship."
Bharmal said that if a prima facie case was successfully established, the complaint would likely come down to the evidence, and pointed to the perspectives of students and experts and their respective credibility. Coincidentally, both of those items have already played out in the public debate: experts with more than a century of combined experience shot down the idea of GEC’s being able to replace MACC, and nearly two dozen past and present MACC students have appealed to trustees warning them of the flaws behind District’s proposal.
“If a prima facie case…of discrimination can be shown….That’s where the Tribunal would get into the weeds on whether the VSB has reliable expert evidence to support its impugned actions. This is where the VSB’s defence might be pretty weak [if their proposal is truly flawed],” Bharmal later wrote in an email, adding, “especially if that had been pointed out to them and they should have known that.”
As a practical matter, Bharmal encouraged parties to seek mediation first, noting that complaints can be a lengthy process. "So as a practical result, [parents will] have to ask [themselves]: will this result in a resolution for my child in a reasonable timeframe? In the human rights process, there is encouragement and opportunity for mediation. And so the two sides could hopefully reach a reasonable resolution."
Amid the extensive complications to the story, one thing is now clear:
"Definitely, Bharmal said, "the issues fit within the human rights framework and fit within the Moore framework.
"It's a potential human rights matter."
With thanks to editors Stephen Kosar, Erika Chung, and Jessica Kim for assisting in this report.