This week in Toronto, an Ontario court is hearing the case of Jasmin Simpson, a deaf-blind Ontario woman who is suing the federal and provincial governments on account of the way they provide assistance to students with disabilities.  The Ottawa Citizen ran a very good article on the case yesterday, but I thought I would add my $.02 because the case potentially has some very big ratifications.

(Before we start, I need to declare an interest.  For several years, I have worked with Ms. Simpson’s team on this case on a pro bono basis, so I am not an unbiased observer.  I provided written evidence for her side and went through cross-examination by lawyers from the federal and provincial governments a couple of years ago.  I can’t be in the courtroom for the case this week, but I very much wish her all the best.)

Now, what is the case about?  Stripped to its essentials – and moving past a tremendous amount of beside-the-point back-and-forth nonsense, mainly because we lack basic data on average-time-to-completion by type of disability – the case concerns whether we should plan student aid around annual levels of assistance or by degree/diploma.  The government says the former; Jasmin’s argument is that it needs to be the latter.

The government’s argument is – essentially – that it already accommodates students with disabilities by being more generous to them than to other students on an annual basis.  For instance, they get allowances for various accommodation-related expenses, they get extra grants for tuition and living expenses, and, crucially, they can receive aid meant for “full-time” students while taking a “part-time” number of courses.  Yes, they still likely have to take some loans to make ends meet, but they receive higher grants than students without disabilities, so the government is fully discharging its duty to support students with disability.

By the governing logic of the country’s student aid programs – that is, using the lens of individual annual disbursements – this is an air-tight case.  But look at it from Ms. Simpson’s point of view.  She, like many students with severe disabilities, was unable to take anything like a full course load (i.e. 5 courses per term) and required a lot more time to graduate.  In every individual year, she was treated more favourably than students without disabilities.  Yet, at the end of her degree, she was left with massive amounts of debt, far exceeding what she would have assumed if she been able to take something closer to a full course load.  From a per-credential perspective, she has a pretty good case that students with severe disabilities are not, in fact, treated equitably.   She is asking the government to equalize her debt down to where it would be if she had been able to take a regular course load, and to make the same changes on behalf of all severely disabled students.

I should clear a couple of things up here.  Number one, although the suit is, strictly speaking, jointly against Ontario and the feds, it’s mostly the feds who have something to lose.  Even after the changes to OSAP this past year, the vast majority of debt carried by Ontario students comes from the Canada Students Loans Program, not the provincial program.   It’s the federal program that’s particularly under scrutiny in this case because it is still very heavily loan based.  That will change somewhat in the next year or two, assuming the federal Liberals deliver on their election promises, but not entirely. 

Number two, I don’t get the sense that the feds are ideologically committed against the idea of providing more assistance to students with severe student disabilities.  The bigger issue is that Simpson’s ask means a total re-think of the way aid is delivered.  Moving to a more degree-based form of assistance would be bureaucratically challenging, require a lot of tedious negotiations with provinces (none of whom would be particularly overjoyed at the change) and, frankly, involves a lot of work they’d rather not do.

The simplest fix would be simply to bring in per-credential caps on borrowing.  That is, keep everything the way it is now, but pay down debt above $X,000 (insert whatever figure you find reasonable here) at the end of a period of studies.  This is not a radical suggestion.  In fact, this is exactly how the Alberta student aid program worked until 2010, when the Stelmach government decided to gut what was pretty much the best student aid program in the country.  There is no reason we couldn’t do that, except that the feds refuse to get involved in “loan remission”; they say they prefer “up-front” grants for access reasons, which is reasonable, but this isn’t actually an either-or situation. 

A more ambitious fix would be to get rid of annual assessment entirely.  Given recent simplifications of need assessment, it wouldn’t be a huge jump (conceptually at least) to move to a system where we do need assessment once, at the start of a period of studies, and let people access the mix of loans and grants as they please.  It would save a lot of paperwork and give students and families a lot more cost certainty. Of course, this would take away governments’ freedom to hack away at student aid policies a couple of months before the start of the year whenever they get on a deficit-reduction kick, so there would be some natural resistance to this, particularly from provincial governments.  But it’s technically feasible.

My guess is that the government will lose the case, but then do the absolute minimum required to comply.  That is, they will bring in per-degree caps on borrowing, but only for the severely disabled (note: there will be an unholy post-judgement fight about what constitutes “severely” – I think that institutional disability offices are going to get tasked with the job of certifying who does and does not come under the definition).  That’s a less-than-ideal solution; I think the system would be better if we could gradually leave the annual approach behind in favour of a more holistic per-credential framework.