Dr. Dawn C. Wallin

March 26, 2014 4:51 PM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

CHAPTER FOUR: Law and Education

 

PROLOGUE

Toni was the first to arrive in the seminar room at Foothills Collegiate, so she fixed herself another cup of coffee and sat back waiting for the rest of the group to join her. A final-year Bachelor of Education student, she was glad that she had signed up for a pilot field-based collaborative project at the Faculty of Education. The project was designed to enable students to spend more time working in schools, with part of their course work built around their school experiences.

There were five other Faculty of Education students in the school doing student teaching, and as part of their program they met twice a week as a group with the team coordinators—Cynthia Phillips, a science teacher at the school, and Ian McKenzie, a professor at the university, who not only supervised their student teaching, but also taught them a course entitled “School Organization.”

On the main campus, “School Organization” was viewed by most of Toni’s friends as a dry course—not irrelevant, but fairly boring. Perhaps, she thought, she was lucky to have two good teachers, but in the school this course seemed far from dry. It was a chance to study and talk about a whole range of issues that seemed to be directly related to what she was trying to achieve in her classroom. Each class began with an open discussion period in which any member of the group could raise an issue or question that had arisen from their teaching.
Now that the rest of the group had joined her in the seminar room and exchanged greetings, the class began. Aaron, one of the students, initiated the discussion: “You know what has really been frustrating me this week? It’s all the red tape that is involved in trying to arrange a class field trip. I talked to the principal, and by the time he’d finished telling me about all of the regulations and all of the approval forms I’d have to get filled out, I just said, ‘Forget it, I’ll do something else.’ And in the end it’s the kids who suffer.”

Cynthia, the teacher, broke in: “Well, I know what you mean. There are a lot of procedures that have to be followed in this division, which is fine if you’re planning weeks in advance, but it makes doing things on short notice pretty difficult. But you know, field trips are potentially dangerous situations, and as professionals we need to make sure that we are proactive in minimizing any danger to the students. In part it’s simply a matter of protecting yourself from being taken to court by a parent. If something does go wrong, and if you comply with all the regulations, you’re likely to be protected. But more than that, it’s a matter of being professional, of doing one’s job in a professional manner. And let me tell you, there is nothing worse than having something go wrong on a field trip—like a student going missing—and running around wondering what has happened and wishing you had been more careful with your instructions, supervision, or parental approvals!”

“I think it’s really important,” said Semareh, another student, “that we know the law so that we can stay out of trouble.”

That statement got the whole class talking. Karl burst out, “Everyone seems to want to sue the teacher these days! I had a student say to me, ‘Don’t touch me or my parents will sue you,’ and I wasn’t even within reach of him. I’d just told him three times to go back to his desk.”

Narina said, “I was talking about some of this stuff with Ken—you know, he’s the Head of English—and he was talking about some parents who threatened to take him to court over some poetry he was using in class just because it wasn’t in the provincial curriculum guidelines. The poet was, but not the particular poem he was using. And they said it was offensive! It seems to me that we need to be lawyers as well as teachers!”

Ian, their professor, spoke up: “We’re going to be taking up many of these questions later in this course, but I think there are some important points to be made. First, Aaron and the rest of you mention the importance of being able to be creative and educative without being tied up in red tape. Second, Cynthia has noted the need to be proactive, to anticipate possible dangers and avoid them. Related to that is a third important issue, perhaps a bit more theoretical, that asks how we regulate school life in such a way that learning is taking place and at the same time the rights of all participants—students, parents, teachers—are being respected. I think this is where the law is particularly important, and should not be seen so much as an obstruction to the innovative teacher but rather as an attempt to balance and regulate the parameters of appropriate teaching practice. And if you look at how the courts have actually ruled in Canadian cases, you’ll see that educators have been given considerable discretion by the courts, but that doesn’t mean we’re gods or above the law.

“So I think this discussion is important at several levels. How can I protect myself from being sued? How can I avoid potentially dangerous and inappropriate behaviour? And how can I better understand my role as a professional? Perhaps, Cynthia, we should stay with these questions for the rest of today’s class?”

This chapter examines some key aspects of law as it affects teaching and schools. The first part of the chapter provides a basis for thinking about legal issues, including
1.   why law is important to educators;
2.   the processes through which laws are made and interpreted;
3.   the concept of natural justice and its relevance to education;
4.   the meaning of “rights”; and
5.   the nature and impact of the Charter of Rights and Freedoms and the Youth Criminal Justice Act.

The second part of the chapter discusses some of the important legal aspects of schooling, including
6.   the powers and duties of teachers;
7.   negligence and liability;
8.   child abuse;
9.   attendance at school;
10. maintaining order and discipline;
11. student rights and democratic practices;
12. teaching practices such as curriculum and the school year;
13. placement of special education students; and
14. copyright.

Other important legal issues related to such matters as jurisdiction over education, minority languages, the status of teachers, and collective bargaining are discussed in the relevant chapters elsewhere in this book.

WHY DOES LAW MATTER TO EDUCATION?
As the prologue to this chapter shows, legal matters can have an important impact on the work of teachers. At the most basic level, teachers need to be concerned about the safety of their students, and teachers can be sued or prosecuted, possibly leading to loss of their right to teach, if they neglect their responsibilities. More importantly, law is one of the primary forces that has shaped, and continues to shape, Canadian education.

We can think about law as giving a certain shape to the web of relation-ships affecting schools. Laws both outline and limit who can teach, what can be taught, who will be taught, and how the various parties involved in education should treat one another. Many aspects of schooling, particularly the relationship between teachers and students, are deeply affected by law. Greater concern with human rights and the advent of the Canadian Charter of Rights and Freedoms and the Youth Criminal Justice Act are important influences on the way students and teachers are treated in schools.
While this chapter is concerned with matters of law and education, it is important to recognize that law in education cannot be detached from politics or history. All of these processes affect one another, and the way they are separated in this book is an analytical convenience, not a description of the way the world actually works.

It is helpful at the outset simply to list some of the major ways in which teaching is affected by the law in Canada.

The Basic Structure of the Educational System
•     provincial responsibility for education;
•     existence of denominational and linguistic minority schools and school systems;
•     existence and powers of provincial ministries or departments of education; and
•     existence and powers of school boards.

All of these issues are outlined in Canadian law. They were discussed in Chapter 2, and will not be taken up again here, but they are important legal influences on schools.

Conditions of Teaching
•     who can teach (certification);
•     duties and powers of teachers;
•     conditions of employment;
•     grounds for dismissal;
•     labour laws; and
•     collective bargaining.

Many aspects of teaching are regulated directly in law, or are subject to the provisions of collective bargaining, which is itself regulated by law. Most of these matters are taken up in Chapter 6.

Physical Safety of Students
•     negligence and liability of teachers;
•     trespass and site safety; and
•     child abuse.

The requirement to protect students from harm has an important effect on many aspects of teaching, and creates tensions between the responsibility of teachers for their students’ safety and their sense of what experiences might most facilitate students’ learning.

School Attendance
•     compulsory attendance and exemptions from it.

The fact that education is compulsory has an enormous impact on teaching in that it means that students must attend whether or not they want to do so.

Maintaining Order
•     discipline;
•     suspension and expulsion; and
•     corporal punishment and the use of force with students.

If the requirement for discipline is at least partly due to the compulsory nature of education, the ability of administrators and teachers to maintain order, and the way in which they do so, is shaped by legal decisions governing disciplinary practice.

Student Rights and Democratic Practice in Schools
Freedom of speech, assembly, belief, and participation in governance by teachers and students are hallmarks of democratic society but have a particular meaning in schools.

Teaching Practices
Many aspects of teaching, such as the subjects to be taught, the content within each subject (the curriculum), the length of the school year, the treatment of exceptional children, and copyright control over teaching materials are controlled by statute or regulation.

LAW AND POLITICS
Why do schools become enmeshed in legal matters at all? Why can’t they simply be left to do what is educationally sound? To answer these questions, it is important to understand that legal issues arise through disagreement and conflict. If there were complete agreement on what people ought to do, law would not be necessary. People have very different ideas as to what kinds of actions might be acceptable. To provide a greater degree of compliance than would otherwise occur, laws are used to make some actions compulsory, prohibited, or regulated in some fashion. It is important to remember that law is intended to compel people to behave in certain ways, based on the assumption that without law they might not always do so. Law necessarily involves imposing some view of the world on people who do not necessarily share that view. Thus, law usually is rooted in some conception of morality, of what is good. For the same reason, conflict is part of every aspect of law, and education is no exception since it too is an area in which people have very different ideas about what is necessary or desirable.

These conflicts are not always overt. Many aspects of school law are so taken for granted that they seem inevitable, as if there were no other way things could be done. The fact that students begin schooling around the age of six, that the school year runs from September to June, that teachers have the right to bargain collectively, and that school boards are locally elected—these are all practices that are not usually questioned today. However, many laws that are now taken for granted were the subject of vehement debate at the time they were enacted. Chapter 2 referred to the heated debate over the consolidation of schools in rural areas in the middle part of this century. Historical study shows that other aspects of schooling, such as making it compulsory, were also controversial at the time (Henley & Pampallis, 1982). Particularly in Canada, legislation regarding the linguistic and religious aspects of education has been very controversial (e.g., the extension of funding to Catholic schools in Ontario in 1984, the changes in language requirements in Quebec schools in the 1970s and 1980s, or the secularization of Newfoundland’s religious school systems in the 1990s). The discussion in Chapter 3 of how political decisions are made indicated that, although we tend to think of laws as embodying some sort of public good, they have in fact been substantially determined by people or groups with political power. When any law is enacted, oftentimes some people gain at the expense of others. For example, when we pass laws that create school boards and bestow certain powers upon them, we are also limiting the influence on schools of others, such as teachers or parents, who, under a different system, might play a greater role. The changing arrangements for education across the provinces and over time show that there are always options about how best to conduct public education. Changing social conditions and beliefs also generate demands for changes in law. For example, the social conditions that have generated changes in marriage law in regards to same-sex marriage may eventually impact how schools must respond to parental rights and responsibilities as the notion of what legally constitutes a “family” is re-defined. As such, law is as much a reflection of current social values as it is a perpetuator of them.

LEGISLATION AND JUDICIAL INTERPRETATION
Once a law is passed, the surrounding debate and conflict may be gradually forgotten, and people may come to regard the law as being more than the outcome of a political disagreement. In some cases, however, the conflicts continue even after a law has been created. Legal issues arise when someone feels that some current policy or practice is undesirable or unfair, and challenges that policy or practice. There are two ways such a challenge can be made. A political effort can be made to have the law changed, or to have a new and different law enacted. Or a judicial challenge can be made whereby the courts are asked to rule that a policy or practice does not meet the requirements of existing law.

Chapter 2 discussed the controversy in the nineteenth century over the role of local school boards. As a result of this controversy, several different pieces of legislation were enacted to try to give legal shape to a view of how education ought to be governed. A more recent example concerns legislative provision for the education of special-needs students. Many people worked very hard for many years to have provincial legislatures provide legislation that would require school districts to pay more attention to the needs of students who are physically challenged or mentally handicapped. Most provinces now have a legislative provision requiring schools to provide education for all students. Political efforts to change laws are not always effective, but they can be under the right conditions.

A judicial challenge may assume that existing laws are adequate but are not being understood or applied correctly, or it may question the very legitimacy of a law. The courts will then be asked to require that the law be enforced in a different way, or even to indicate that the law is inappropriate and must be modified or scrapped. Such court challenges have played a major role in education historically in regard to issues of language and religion, such as the rights of linguistic minorities discussed in Chapter 2. They are becoming increasingly important in other areas, partly due to the existence of the Charter of Rights and Freedoms. For example, a number of recent court cases in Canada have helped to define the educational rights of exceptional or special-needs students and their parents. Many court cases over the years have also dealt with such matters as the appropriate grounds for dismissal of teachers, and with school discipline practices.

These two routes to changing law parallel the two aspects of the legal system. Laws are created by the Parliament of Canada or by provincial legislatures. The creation of any law is thus a political process that is carried out by elected officials. However, once enacted, the responsibility to enforce and interpret laws belongs to the courts, which are made up of appointed experts—lawyers and judges. Each of these aspects of law will be considered in turn.

LEGISLATION, REGULATION, AND BYLAWS
Parliament and provincial legislatures make a wide variety of laws. Some provincial laws, such as public school or education acts, deal directly with education. But many other pieces of legislation also have important implications for schools. Labour laws affect the working conditions and status of teachers. Criminal law, including the Youth Criminal Justice Act, affects the way schools handle certain kinds of offences and disciplinary issues. Child welfare legislation places certain requirements on schools in regard to child abuse, among other things. Copyright legislation affects the availability of teaching materials.

Many provincial and federal laws include sections that authorize the particular minister to make regulations. Regulations typically involve the details of carrying out some intention or action contained in the legislation (see Box 4.1). For example, provincial education laws authorize ministers of education to provide funds to school boards. The precise way in which such funds are allocated is usually determined in the regulations. Whereas laws are passed by legislatures, regulations are made by the Cabinet (either federal or provincial). They are then made public by the government, and have the force of the law under which they are enacted. Regulations are much easier to alter than are laws, since the changes can be made in private by the government. In any particular case, the government will decide, when it brings forward legislation, which matters should be spelled out in the law itself and which should be reserved for Cabinet decision and amendment through the regulation process. In education, in addition to finance formulas, such matters as the organization of the school year, the qualifications for teacher certification, and various matters of curriculum are usually subject to regulation. In some provinces, ministers may also issue policies that have legal force.

BOX 4.1 Examples of Regulations Under Provincial Statutes

Manitoba Regulation 101-95 (amended november, 2004): school days, hours, and vacation regulations
This regulation sets out the school calendar for the province. It specifies the organization of the school year into semesters; the minimum number of school days in the year (ranging from 194–197 days between the 2005/2006 to 2008/2009 school years); the minimum number of instructional hours (5.5) in a day; provisions for lunch and recess, holidays, and the Christmas and spring breaks; and the number of in-service days (10). It also allows variations from these rules with the approval of the minister.

Quebec Basic School Regulation r.q. c. 1-13.3, r. 3.1 (2000)
This regulation lays out the basic services and the organizational framework for Quebec preschool, elementary and secondary schools.
1. Educational services include instructional services, student services and special services.
2. The purpose of those services is to promote the students’ overall development, integration into society, and personal and career goals.…
16. The school calendar for students shall consist of the equivalent of a maximum of 200 days, at least 180 of which must be devoted to educational services.…
18. For secondary students, the week shall consist of a minimum of 25 hours devoted to educational services. These students shall also have a minimum period of 50 minutes for lunch and five minutes between each class, in addition to the prescribed time.…
20. At the beginning of the school year, the principal shall ensure that the parents, or each child of full age, is provided with the general school rules and school calendar, information on the student’s programs and a list of textbooks, and the name of all the student’s teachers.…
27. A student who shows that he has achieved the objectives of a program by passing a test administered by the school board is not required to take that program.…
29. Schools shall provide the parents of a student or the student, if of full age, with at least four reports per year to inform the parents or the student, as the case may be, of the student’s academic progress.



In addition to laws passed by Parliament or provincial legislatures, and regulations made under those laws, there are other important documents that have legal status. Many organizations are given legal status through federal or provincial legislation. School boards are legally authorized and given particular powers through provincial laws, as are municipalities. These organizations cannot make laws, but they can make bylaws, which are also legally enforceable within the statutory powers granted to the particular organization through its legislation. For example, school boards pass bylaws to determine their own structure and operations. School boards also make formal policy decisions about school sites, school boundaries, budgets, and staffing, and others carry out these decisions because they are made by a duly constituted authority. To take another example, teacher organizations, which are themselves legally authorized through provincial legislation, may make rules of conduct that are binding on their members.

THE COURTS
Courts play a vital role in the legal system in that the application of law hinges on judgments about particular cases, and these judgments are made by courts and judges. As a matter of course, every law requires interpretation as to how it applies to a particular circumstance. However, because human situations are so varied, there is no law, no matter how carefully written, that can take every possibility into account. In some cases, laws are deliberately vague because there is such political disagreement over what they should say that the matter is partly left to the courts to decide. The Charter of Rights and Freedoms is one example of a law with language requiring the courts to decide what specific clauses meant. As some of the issues discussed later in this chapter demonstrate, the work of interpreting law is a continuous process.

Over time, laws may also need to be reinterpreted to meet newly emerging needs or changing circumstances. Legislation that is not revised can become outdated. It is then left to the courts to apply existing laws to new circum-stances. For instance, Canadian copyright law had to be revisited, since important issues of copyright relating to computer software, photocopying machines, videocassettes, and other media were not covered under the 1924 law, which had remained in force up until the revision in 1988. Currently, the Canadian government is working on changes to the Copyright Act to protect Internet and digital copyright interests. In education mean-while, emerging issues such as the teaching of special-needs students, access to student records, or parental rights in determining school programs are not always defined in the education statutes. Judges have a very important role in shaping the practical applications of a particular piece of legislation.

The Canadian legal system generally recognizes the supremacy of the legislature, which means that our courts tend to be reluctant to give instructions to elected bodies as to what they must do. On the other hand, courts are not concerned just with interpreting laws. They also have the authority to declare that a particular law is invalid. This may occur when the requirements of one law are seen to conflict with the requirements of another. In such a case, a court may then rule that one of the laws is invalid and must be changed. In this way, judicial decisions can lead to legislative change. The Charter has often been used as the basis for arguing that a particular law is invalid (see Box 4.2). Thus, the courts also have the potential to play an important role in making laws as well as interpreting them.

There are several different kinds and levels of courts in Canada, each of which has particular authority and responsibility. The nature and role of courts are determined through both federal and provincial legislation, with the exception of the Supreme Court of Canada, whose structure and role is defined in the Constitution. The Supreme Court plays the most significant role for several reasons. First, its rulings are binding on all other courts in Canada. Second, controversial cases in all areas of law may be taken to the Supreme Court for a ruling that will provide clear direction to the lower courts, and thus a common interpretation of the law across Canada. Third, the Supreme Court is responsible for determining how the various clauses in the Constitution will be interpreted.

BOX 4.2 Areas of Impact of the Charter of Rights and Freedoms

collective rights
•     Minority language rights: Anglophones in Quebec and Francophones in other provinces have been guaranteed the right to have and to manage their own schools.
•     Students with disabilities: Parents have been given an increased role, though certainly not complete control, in deter-mining appropriate programs (see also Box 4.3).
•     Funding of Catholic and other religious schools: Ontario’s decision in 1984 to fund Catholic schools through Grade 13 was upheld, but the courts have ruled that other religious groups do not have a right to public funding.

individual rights
•     Religion: The secular nature of public schools has generally been upheld, but reasonable religious expression by minorities has also been upheld (e.g., wearing of turbans by Sikhs).
•     Freedom-of-association claims by parents and teachers have not been very successful.
•     Mandatory retirement provisions have been upheld.
•     Natural justice rights of students and teachers have received limited protection.

Source: Derived from Mackay, A.W. (1995). The rights paradigm in the age of the Charter. In R. Ghosh, & D. Ray (Eds.), Social change and education in Canada (3rd ed., pp. 224-39). Toronto: Harcourt Brace & Company, Ltd. All rights reserved. Reprinted with permission.



In making decisions, courts take into account not only the arguments of the lawyers who represent the various parties involved, but also any applicable legislation and previous court decisions called “precedents.” Often more than one piece of legislation will apply to a particular case; when the various laws conflict, the judge must sort out the conflicts before rendering a decision. Precedents are important in influencing judges’ decisions. Indeed, over time a body of precedents (often called “case law” or “common law”) emerges to guide legal decision making. Precedents, though important, are rarely completely binding, since the circumstances of each case are somewhat different. Moreover, as people’s views change, the meaning of the circumstances of a particular case also changes until an earlier judgment is no longer seen as appropriate. In this sense, law is never a fixed and final matter, but is constantly changing and evolving.

Court decisions are also guided by certain basic legal concepts. One of these, often found in judicial decisions, is the concept of reasonableness. Many court judgments make reference to the matter of what a “reasonable person” might have been expected to do under a certain set of circumstances. The fact that reasonable people can often disagree over what is reasonable makes a concept such as this one particularly hard to define precisely, as we will see later in the chapter.

NATURAL JUSTICE AND FAIRNESS
One of the most important legal concepts is natural justice, or, more accurately, fairness in legal procedure. Natural justice has to do with whether the law has been applied fairly, regardless of the actual content of the law. An unfair law could still be applied in a way that respects principles of natural justice.

There are two basic aspects of natural justice. First, the person judging any particular situation should not be biased. This is usually taken to mean that the decision-maker should not have a direct interest in the case. Thus, if a teacher has accused a student of cheating, the teacher should not act as judge in the case also. The second requirement is that the person accused has the right to a fair hearing—that is, to understand the charge being made, and to give his or her side of the story. As with the concept of reasonableness, the meaning of natural justice often requires interpretation in a given set of circumstances. We will see later in this chapter the difficult challenges that the concept of natural justice may pose for many current school practices, especially in areas such as student discipline.
The Charter of Rights and Freedoms has focused much more attention on the concept of natural justice as it relates to legal matters involving education. Section 7 of the Charter guarantees the right to fundamental justice. Although the meaning of fundamental justice will only gradually be determined through court decisions, it appears to have a broader application than does natural justice. Natural justice deals with procedural fairness rather than with the substance of a law. In applying the Charter, however, the Supreme Court has generally considered both aspects—whether a law was applied fairly, and whether the law was itself substantially fair or just. This broader application gives courts a much wider scope in reviewing the actions and decisions of educators.

IS THE LEGAL SYSTEM FAIR?
Although we like to believe that our courts are impartial arbiters of justice, courts, like other human institutions, are far from perfect. For one thing, ability to gain a hearing in court may depend on having enough money to hire good legal counsel. In a case that might reach the Supreme Court, lawyers’ fees can be many thousands of dollars, which makes this avenue unavailable to many people, regardless of how strong their case might be. For example, a student wishing to challenge a school board will have a much harder time finding the money for lawyers than will the school board. Cases may also be decided on legal technicalities that have little to do with their substantive merits. Judges, like other people, are subject to biases and stereotypes. Some groups of people are more likely than others to be sent to jail for the same offence, and some judges tend to give harsher sentences than others for the same transgressions (Manitoba, 1991). Thus, in the justice system, as in politics, there are significant inequalities.

In the past, political decisions made through legislatures and school boards have been far more significant for the schools than have been those made in the courts, with some exceptions in areas such as language and religion. This situation is changing under the Charter, which provides more grounds for judicial challenge to school practices (MacKay, 1995; Sussel, 1995). Before examining the Charter and its implications, it will be helpful to have a more general discussion of the nature of rights.

THE MEANING OF “RIGHTS”
Many educational issues are framed as questions of rights. We say that teachers have (or do not have, depending on our opinion) a right to voice their opinion about school policies. Parents have (or do not have) a right to see their child’s school records. Children have a right to be protected from harm. But what are rights? Where do they come from? These questions have been of interest to people for thousands of years. There is no agreement on the answers, but over that time some useful ways of thinking about rights have arisen. Rights can be classified as
•           normative and legal;
•           procedural and substantive;
•           negative and positive;
•           individual and collective; and
•           personal and property.

Normative rights are those rights that people believe every individual should have, while legal rights are those that are officially recognized in a particular society. Considered logically, normative rights come first. A normative right is something we possess by virtue of being human. We don’t have to do anything to earn this right; it is ours automatically. Examples of normative rights would be the right to a fair trial, the right to free speech, and the right to be free from arbitrary discrimination. Many common normative rights are set out in international documents such as the United Nations Universal Declaration of Human Rights and the United Nations Convention on the Rights of the Child.
Having a normative right does not necessarily mean that one is able to exercise it. Exercising a right requires three conditions: (1) that the right has been officially recognized through a law or rule; (2) that there is a process for settling disagreements over rights; and (3) that there is a way for people to enforce the particular right. To take the example of free speech for students, there must be some law, rule, or policy that specifies this right. There must be a forum for determining when a particular case is one of free speech or not. Finally, there must be a way for students to have that right enforced when it is violated.

Legal rights arise out of normative rights. When enough people begin to believe that some right ought to belong to them, and are prepared to work vigorously to have it established in law, legal recognition of the right may follow. Note that it is people’s sense that things are not right as they stand, and their willingness to work for change, that may bring changes in law and subsequent changes in recognized rights.

Consider rights for physically disabled people. For many years, the ability of disabled people to enter buildings, to hold jobs, and to be part of normal life were simply not seen as rights. Gradually the climate of opinion began to shift. Advocacy groups worked hard to make the point that physical disability ought not to deprive people of their ability to live normally. A great deal of effort over many years went into persuading governments and the public that current practices were unfair and should be changed. As this belief became more widespread, legal recognition slowly followed. Laws were passed prohibiting discrimination in jobs or housing on the basis of physical disability. Schools began to integrate physically disabled children into their classes. People were able to bring about changes in law and policy that reflected and influenced changing social attitudes.

The legal recognition of normative rights is by no means automatic. Everyone can recognize that there are many situations, in Canada and else-where, where something widely regarded as a normative right is not yet a legal right. In many parts of the world, even the most basic human rights are not respected. And even the formal recognition of a right in law does not mean that the right will always be protected in practice. Various laws that protect rights are regularly violated, either deliberately or unintentionally—hence the need for courts to resolve disputes about issues of rights.

Rights, like other legal issues, involve conflict. The claimed rights of one person or group often conflict with the claimed rights of some other person or group. With respect to schools, it is clear that provincial governments, school boards, school administrators, teachers, parents, and students all have some rights. It is easy to see that these parties will disagree about many issues. For example, if teachers have the right to inflict corporal punishment, then students clearly do not have a right to be free from physical coercion in schools. If school boards have the right to dismiss teachers in order to reduce their budgets, then teachers’ right to job security is substantially limited. If provinces can prescribe curricula that teachers must teach, then teachers do not have a right to academic freedom, parents do not have a right to determine what their children learn, and students do not have a right to pursue their academic interests. Magsino (1995) notes that there are conflicts among the rights claimed by parents, by schools, and, increasingly, by children.

Another important way of thinking about rights exists in the distinction that can be made between procedural rights and substantive rights. To put it simply, a procedural right is concerned with how things are to be done, while a substantive right concerns what is to be done. Take a situation in which a student was suspended from school for challenging something a teacher did. The student might have been given the opportunity to attend a hearing and to make a statement in his or her own defence, thus honouring the student’s procedural right to “a fair trial.” On the other hand, the substantive right to be free from punishment simply for expressing an opinion may have been violated. The most important procedural right is what is usually called natural justice, which was discussed previously. Procedural rights are important, but without substantive rights they are insufficient.

A third distinction is between negative rights and positive rights, or, as they are sometimes termed, option rights and welfare rights. A negative right is the right to do something free from restraint; hence, it involves a choice or option. The rights to free speech and free assembly are examples of negative rights; you can exercise them if you wish to do so. Positive or welfare rights, on the other hand, involve the right to have or receive something. The right to education, for instance, can exist only if educational services or programs are available. Thus, positive rights imply an obligation on the part of somebody other than the holder of the right—often the government—to do or provide something to enable people to exercise their rights. Western societies such as Canada have tended to give more weight to option rights than to welfare rights.

A fourth way of thinking about rights has to do with individual rights and collective rights. Respecting the rights of an individual may impose constraints of some kind on the collectivity, whether it be a class, community, or country. For example, providing education to multi-challenged children can be very expensive, but is borne by the community to meet the child’s right to be educated. As well, the collective rights of minority language and religious groups may be protected even if they do not coincide with the wishes of the dominant majority.

Finally, one can distinguish between personal rights and property rights. Personal rights (e.g., freedom of speech and religion, the right to vote) belong to all individuals who are members of the society. Nobody has more or less of these rights than anybody else. Property rights, on the other hand, belong only to those who have property. They accrue not because of who you are, but because of what you have. Those who have more possessions will also have more rights. Historically, property rights have often taken precedence over personal rights. The right to vote, for example, was for many years restricted to those who held property. Property rights have also been used in the past to limit the rights of workers to form unions, to bargain collectively, and to strike. Indeed, the rights of property owners have often been used to restrict the ability of governments to take action on behalf of the collectivity.

THE CHARTER OF RIGHTS AND FREEDOMS
In 1982, as part of the new Constitution, Canada adopted the Charter of Rights and Freedoms. (See Appendix for the complete text of the Charter.) It did so only after a great deal of debate over whether a constitutional statement of rights was desirable.

Canada has a mixture of legal and political practices and institutions drawn from many sources (British, French, American), which were themselves drawn from earlier Roman, Greek, and Aboriginal practices and ideas. The British legal tradition has no formal constitution, and no set of rights that are defined by a single legal document like the Charter. Instead, rights in Britain have emerged gradually, primarily through political and legal processes; that is, the British Parliament has made laws that have either given or extended legal rights. The American system, on the other hand, began with a set of legal rights enshrined in the Constitution, and has since relied on the courts for interpretation and enforcement. Some people feel that the American approach provides stronger protection of rights because legislatures may be swayed by short-term political considerations to act in ways that limit people’s rights (especially the rights of minorities, who may have little political power). Others feel that it is a mistake to give lawyers and judges so much authority to shape our society. They argue that elected officials rather than appointed judges (who are not accountable to the public for their decisions) ought to be responsible for the important task of deter-mining rights. After considering both systems, Canada opted in 1982 for a written charter, closer to the U.S. model.
The Charter outlines a number of rights that all Canadians have. Before discussing these rights, it is important to note some limitations that apply to them all, the most significant of which is the fact that the Charter applies only to the acts of government or governmental agencies; individual citizens and corporations are not required to abide by its provisions. Thus, a private company cannot be sued under the Charter for discriminating on the basis of sex, but a school or school district, because it is a government agency, can be sued on those grounds.

All rights in the Charter are potentially limited by Section 1, which allows “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” In interpreting the Charter, as is the case in many other legal issues, courts give weight to the concept of reasonableness. They have to decide if particular actions or decisions made by people or organizations can be considered reasonable. An interpretation always involves judgments about such measures as the state of society and public attitudes. The Supreme Court has handed down a number of decisions that show how Section 1 will be interpreted; decisions that emphasize the requirement that limits be shown to be both necessary and reasonable in relation to the good to be achieved (MacKay, 1995).

SECTIONS RELEVANT TO EDUCATION
Several sections of the Charter have particular relevance to education. Section 2 guarantees to all Canadians freedom of religion, belief, assembly, and association. These rights are, however, quite restricted in schools. Students are clearly not free in schools to say whatever they believe, to associate with whomever they wish, or to be in whatever places they choose. Students are often subject to dress or conduct codes that limit their freedom of expression and assembly. Criticism of school practices and personnel may be considered a punishable offence. School newspapers are often censored by staff members.

A second area of the Charter that may have important consequences for schools concerns the provisions in Sections 7 and 11 regarding natural justice. School discipline practices frequently appear to violate principles of natural justice. For example, teachers often accuse students of misde-meanours and impose punishments on them without explaining precisely what the transgression is and without providing an opportunity for the students’ position to be heard. In effect, students may be compelled to give evidence against themselves (prohibited under Section 11c). Students are not always presumed innocent until proven guilty by a public and impartial tribunal (Section 11d). Appeal processes may not exist, and so on.

Section 15 of the Charter is particularly important for educators in that many practices in schools could be considered to be discriminatory in some respect. Consider a few examples. Public school legislation in most provinces specifies the ages at which students must attend school—typically from ages 6 to 16. Many provincial laws and school acts also end the right of attendance at age 21. Section 15 prohibits discrimination on the basis of age. Is it, then, discriminatory for provinces to require compulsory attendance at certain ages? Is it discriminatory for provinces to deny a right to attend school after age 21? Is it discriminatory to deny students entry to grade 1 unless they turn 6 before a particular date? Or can such limitations be justified as “reasonable”?

Section 15 may raise more questions than it answers. What is meant by discrimination? Is any distinction based on any of the criteria in the section discriminatory? If not, what makes a distinction qualify as discrimination in the negative sense? Moreover, Section 15—which allows discrimination if its goal is the “amelioration of conditions of disadvantaged individuals or groups”—invites questions of what is meant by ameliorating, and how we would judge whether a particular measure is ameliorative.

Section 15 also prohibits discrimination on grounds of mental or physical disability. Is it, then, discriminatory to create separate classes for learning disabled, cognitively challenged, or medically fragile students? One might argue that these provisions are not a violation of the Charter as they are intended to improve the condition of these students, thus falling under the exception in Section 15(2). But do separate classes improve the situation of students? Most separate classes for specific kinds of students, such as blind children, have been eliminated on the grounds that they did not provide the most effective education. The Supreme Court has ruled that such separate classes are not necessarily discriminatory (see Box 4.3).

BOX 4.3 Some Legal Cases Related to Special-Education Placement

1.   In the case of Eaton v. Brant, parents of a child with cerebral palsy attempted to overturn the school board’s decision that their daughter could not be cared for properly in a regular classroom. The Supreme Court ruled in 1996 that excluding a disabled child from a regular class even when the parents disagree is an acceptable form of discrimination provided that it is based on a careful assessment of the best interests of the individual child (Supreme Court of Canada [1996, S.C.J. No. 98]).


2.   A group of parents in British Columbia went to court in an effort to have the government fund the Lovaas Autism Treatment for their children. The court declared that by not providing adequate support for available and effective treatment of autism the government had failed to accommodate the disadvantaged position of autistic children in violation of their rights under Section 15(1) of the Charter (Auton v. British Columbia, July 6, 2000, cited in Entitlement to particular special education program, October, 2000).

3.   In an Ontario Supreme Court decision (2003), the application judge concluded that, like all other students, an exceptional student did not have a vested right to attend any particular school within the jurisdiction of the Ottawa-Carleton District School Board. In fact, the Board had the authority to transfer students, including exceptional students, for safety reasons, even if the transfer had the effect of changing an exceptional pupil’s placement while an appeal in respect of that placement was outstanding, as long as the transfer was made fairly and with just cause.


IMPACT OF THE CHARTER
Various issues raised under the Charter can arouse strong feelings in people. Some educators feel that the Charter will limit their professional autonomy and judgment, will make discipline in the schools too lax, and will give too many rights to minorities, with the cost being borne by the majority.

What the Charter will mean in practice is being determined gradually by decisions made by Canadian courts, and especially the Supreme Court. So far, the courts have been relatively conservative in interpreting the Charter. They have supported many restrictions on freedoms as being required by other, equally important social needs, and therefore as falling within the “reasonable limits” clause of Section 1. The courts have tended to give considerable weight to the opinions and knowledge of professional educators (MacKay, 1995). Courts that have overturned current laws or practices have often stated what is inappropriate, and they have suggested that the appropriate legislative body frame a new law that would not be inappropriate. For example, in the matter of minority language rights in education, courts in Ontario, Alberta, and Manitoba have all said that then-existing provisions did not meet the requirements of the Charter. But not one of these courts has told the province in question just what it should do to meet those requirements; that responsibility has been left to governments and to the political process.

The Charter has clearly had some impact on education, and will continue to do so (see Box 4.2, page 110). It has made people more aware of the extent to which issues of rights are important in thinking about the way schools are organized and operated. There is more thought given now to how students, parents, and teachers might feel about a particular policy or provision. Increasing legitimacy is being given to the right of parents to have some input into school policies, and principles of natural justice are playing a more prominent role in school policies. We can expect this trend to continue for the foreseeable future, with the Charter acting to change schools gradually rather than quickly. The end result may be schools that are significantly different in their treatment of rights (Sussel, 1995).

LAWS AFFECTING TEACHERS AND SCHOOLS
The way laws are applied to schools differs, in some important respects, from the way they are applied to other settings. The fact that schools are charged with the education of young people has affected the way courts have applied the laws. So far, Canadian courts have been willing to permit schools to act in ways that would not necessarily be permitted in a work-place or similar setting because of the schools’ educational responsibilities. But beyond this, the nature of education also requires teachers to ask about how they should deal with legal matters.

First, schools are unlike other organizations because they create “offences” that would not be considered wrong or that would not be subject to punishment in other social settings. For example, going to the bathroom at the wrong time can be an offence in a school, whereas it would rarely be considered so in other places. The same is true of being discovered in the hallway during classes, talking out of turn, or copying someone else’s work. In a setting where large numbers of young people are required to attend, and are supervised by relatively small numbers of adults, some rules will be necessary to keep order. The question facing educators is one of the appropriate balance between the requirements of order and the degree of freedom necessary for effective education.

The educational task of schools also imposes obligations on educators that might not be found in another environment. In an educational setting, everyone should be concerned with the development of students as persons—with their intellectual and moral growth, not simply their behaviour. We don’t want students merely to comply with our instructions; we want them to understand why these instructions are necessary, and why it may be in their best interest to do as they are asked. This means that educators have a constant obligation to try to teach students.

Any event in the school, even a transgression by a student, can be seen as an opportunity to educate the student. For example, if a student is suspected of plagiarizing, a teacher might want to use the opportunity to discuss with a class what plagiarism means, why it is wrong, and what the conventions are in citing other people’s work. It may well be more important to have all students learn from a situation than to punish one student for doing something inappropriate. Thus, what is required for educational purposes may not be the same as what a strict view of the law might demand. Because schools are institutions that are supposed to care about students, many teachers would want to think very carefully about the best course of action when a student is suspected of a crime. Do teachers simply call the police, or do they try to work with the student to help him or her cope with the problem? Teachers’ moral obligation to help students may at times conflict with the narrower legal aspects of a situation; those may push teachers to act as agents of the state rather than with the care implied in being a parent (Dickinson, 1989). Some theorists have termed this the tension between an ethic of justice and an ethic of caring (Noddings, 1984, 2002).
As well, if the school is to fulfill its mandate to prepare students for citizenship, it must surely have a role in educating them about their rights and responsibilities. It is difficult to see how students can become responsible adults if, while in school, they are not informed about issues of rights, or if their opportunity to learn to exercise rights and responsibilities, and to participate in political processes, is highly restricted.

Closely related to all of these points is the changing legal status of children. At one time, children were seen primarily as the property of their parents, and very few controls were placed on what parents could do to and with them. Children are now accorded far more significance as persons, both legally and morally, than was the case 100 years ago. Increasingly, children are seen to have legal rights even though they are not legally adults. The legal system has responded to changes in social values by acknowledging children’s status as persons whose legal interests may be separate from those of parents or schools. The state, meaning government, has gradually assumed increasing authority to intervene in the affairs of families to protect the rights of children. The enacting of child-abuse legislation is only one example of this long-term and important trend, a fuller description of which can be found in Magsino (1995).

THE LEGAL STATUS OF TEACHERS
Teachers act as educational state agents (MacKay & Sutherland, 1992, pp. 32–76) who are recognized in law as having a certain degree of authority over the students in their charge. This authority comes from statute law (where provincial school legislation, as well as a variety of other pieces of related legislation, recognizes teachers’ powers and duties) and also from case-law precedents. The enterprise of education is recognized by the law and the courts as requiring that adults have the ability to supervise, control, and discipline young people. Traditionally, teachers have been said to stand in loco parentis—that is, to have within the area of their responsibility the same authority over students as would a reasonable and careful parent, and to be expected to act, at minimum, in such a manner. Today, the idea that the authority of the teacher stems from the doctrine of in loco parentis has been substantially supplemented, and perhaps even supplanted, by the legal duties and requirements of teachers acting as agents of the state. The role of parents has also changed, and governments have come to play a more important part in family–school relations. However, in certain areas, such as that of teacher negligence and liability, the comparison of the teacher to the reasonable and careful parent, and, in certain cases, to a “reasonably competent professional” remains a critical legal judgment. American case law has established this higher standard of care in various court cases related primarily to physical education negligence cases. However, the developing use of this standard is found in Canadian case law as far back as Thormon et al. v. Board of School Trustees of District No. 57 (Prince George) (1976) and Myers v. Peel (County) Board of Education (1981). Both cases established the duty of care for a teacher in a gym class, with the standard varying depending on the circumstances and therefore open to modification, as that of a “prudent and careful parent having the supra-parental expertise that is demanded of a gymnastics instructor.” This “supra-parental expertise” suggests that case law has begun to evolve the level of standard from in loco parentis to that of the reasonably competent professional.

PHYSICAL SAFETY
NEGLIGENCE AND LIABILITY
Teachers are expected not only to educate students but, like parents, to take responsibility for their safety and well-being. Parents send their children to school believing that the school will take reasonable precautions to safe-guard their children from physical or mental harm. However, as might be expected when large numbers of people are involved, accidents and tragedies do occur. Over time, a body of law has grown that helps determine what the responsibilities of schools are for keeping students safe. The law governing these matters is not found in statutes, but in the common law of court decisions and precedents created over many years (Dickinson, 1995).

When a student is injured while under the care of the school, an attempt is made to assess responsibility for the mishap. If the school or one of its employees can be found to be negligent, then the family may be able to claim financial compensation for its loss. The amounts of compensation can be quite substantial. For example, if a student is paralyzed, he or she will need lifelong care and support, which comes only at a high price. If the school is at fault, it may be required by the courts to provide these funds.

VICARIOUS LIABILITY
Although negligence is normally the result of some individual’s action or lack of action, in the case of teachers and schools the school district usually assumes the legal liability. Therefore, even though a student may have been injured while under a teacher’s care, it is the school board that will be sued (if there is a lawsuit) and the school board’s insurance coverage that will pay for any damages. This is known as vicarious liability (the employer assumes the liability for the actions of employees).

If, however, the teacher acted negligently, the school board can in turn sue the teacher to recover its costs. For example, if a teacher drove students on a field trip and was involved in an accident in which students were injured, the school board would normally assume the liability. But if the teacher had consumed alcohol above legal limits at the time, the board might be able to sue the teacher personally to recover the damages it may have had to pay to students’ families. Vicarious liability is thus an important but not a total protection for teachers.

THE MEANING OF NEGLIGENCE
The concept of negligence implies three things. First, there must be a legal duty to care, which means a duty to act in a way that avoids causing harm to others when such harm might reasonably have been foreseen. Teachers would normally have such a duty toward their students during school hours or school activities. Second, negligence can occur only when there is a breach of the duty to care. That is, the person’s actions must be inconsistent with what we would ordinarily expect from a reasonable, caring individual. Finally, some harm or actual damage must result from the breach. There can be no legal finding of negligence if there is no harm, or if the harm did not result from the breach of duty. To take our earlier example, the drunken teacher would not be legally guilty of negligence if no accident—and thus no student injuries—had occurred. Nor would the teacher be liable if the injury occurred through some cause other than that teacher’s drunkenness. (That such conduct is unprofessional and might well be punished by the school district is a separate issue.) Harm, however, is not necessarily confined to physical injury. A psychological trauma suffered by a student might well be considered to be as important a harm as a physical injury.

These principles seem clear, yet their application in particular cases can be very difficult. Just how far does the duty to care extend, for example, and what kind of behaviour constitutes a breach of it? If children are playing on the school playground, how closely must they be watched? What about children on their way to or from school? What about students working with tools in a school workshop?

In the courts, situations such as these tend to be decided on questions of what is reasonable. The courts have generally held that teachers should act toward their students as would a “careful parent,” although it has also been recognized that teachers are responsible for many more children at any given time than are most parents. In making a determination of appropriate care, among the factors that may be considered are the number of students being supervised; the nature of the activity; the age, skill, and training of the students; and the nature and condition of any equipment. Taking all of these into account means that it is very difficult to generalize as to what conduct may or may not be considered negligent; however, Box 4.4 summarizes four important indicators of sufficient supervision identified by Giles and Proudfoot (1990) and derived from Canadian judicial decisions.

Thus, teachers of younger students would be expected to exercise more careful supervision of, say, students crossing a street than would teachers of older students. While the courts have held that schools should provide adult supervision of playgrounds, they also acknowledge that the school district cannot be expected to maintain careful watch over every student at every moment. In a school workshop equipped with power tools, careful attention to the inherent dangers associated with such equipment is necessary. Teachers would be expected to provide clear instructions to students regarding safety procedures in operating equipment and would be obligated to provide adequate supervision while such tools were being used (Anderson, 1986). A key point in this regard is that legal precedents have indicated that teachers must expect children to behave foolishly or recklessly, and so extra precautions must normally be taken to guard against injury (see Box 4.5, page 124). For example, potentially dangerous chemicals would need to be locked carefully away when not in use, even if students had been warned that they were dangerous and should not be handled or ingested. The warning itself would be an insufficient safeguard, given that students might act contrary to it.

BOX 4.4 Indicators of Adequate Supervision


•     The school or classroom activities are being carried out in an orderly fashion, and discipline is good.
•     The person responsible for supervision is competent.
•     The person responsible for supervision is present. While the absence of the supervisor is not an automatic determinant of liability, such an absence would be examined very carefully to determine whether the presence of a supervisor would have made a difference.
•     There are clearly stated student-oriented rules through which students are informed of the inherent dangers and provided with instruction regarding safety.

Source: Adapted form Giles, T., & Proudfoot, A. (1990). Educational Administration in Canada (4th ed., pp. 150-51). Calgary, Detselig. Adapted with permission.


Field trips are another area where risks of negligence have occurred. Although securing parental permission forms prior to departure may well be advisable, such forms in no way diminish a school’s responsibility for student care; nor do they prevent a parent from successfully suing if the school is seen to have been negligent. The courts have held that people cannot sign away their basic legal rights; therefore, a permission slip does not absolve the school from its obligation to safeguard students’ welfare. Education Law Reporter (Immunization without consent is battery, 2001, March, p. 50) observes:

There appears to be a misplaced emphasis on the signed consent “form” as opposed to the existence of consent generally, particularly in the education system. Informed consent should be thought of as a process rather than a document. A signature on a consent form is evidence that a person has been properly informed and has consented. A signed consent form does not prevent a person from being able to revoke a previously given consent. Nor does a consent form preclude the possibility that additional information and further consent might be necessary in future.

Teachers’ liability for the safety of their students in school is also related to their status as occupiers and students’ status as invitees. Occupier’s liability relates to the law that covers the liability of an owner or occupier of buildings and grounds for injuries suffered by people while in the buildings or on the grounds. Depending on the reasons for a person’s presence on a property, the courts recognize three hierarchical categories of persons: invitees, licensees, and trespassers. Students in schools fall into the category of invitee, which requires the highest standard of care from teachers as occupiers and school boards as owners. As such, teachers and school boards have a duty to take reasonable steps to ensure that the school premises are safe. They have a proactive responsibility on their part to inspect the premises regularly for hazards that might endanger students. Children who visit school grounds on weekends—and not for the purpose of school-organized activities—would more likely be classified as licensees, in which case the duty of care is reduced. Children breaking into a school would be categorized as trespassers. Here the duty of the occupier is minimal, limited essentially to not deliberately creating hidden dangers or traps to injure the trespasser.

BOX 4.5 Liability Cases

1.   In a British Columbia case, a student had broken his leg in a skiing accident weeks prior to an incident on a school soccer field where he slipped and rebroke his leg even though he was not participating in the physical education class at the time. His physical education teacher examined his leg and even though the student told the teacher he thought he had rebroken the leg, the teacher directed him to walk back to the school to call his mother. It was alleged that the school board was liable under the principles of occupier’s liability in its duty to maintain the soccer field in a safe manner, and was vicariously liable for the teacher’s negligence in requiring the student to attend the class and also with regard to the post-injury care. The school district was not found to be liable under the principles of occupier’s liability, but was vicariously liable for the negligence of the teacher. The teacher was found not to be negligent in allowing the student to attend physical-education classes, but was found negligent in requiring the student to walk back to the school unassisted. The court awarded the student damages of $1500.00.


2.   In an Ontario case, a group of students was playing on a high-jump mat outside the school during recess. Students had been told several times not to play on the mat. However, they continued to do so, and a boy fell off and broke his arm. There was no teacher supervising that area of the yard at the time, although there were two other teachers else-where in the yard. The court found the school 80 percent liable for the accident because it should have foreseen that the mat was a source of danger. Simply telling students not to use it was insufficient; something should have been done to prevent students from continuing to play on the mat. The student was awarded $36 000 (Anderson, 1992).

3.   In a Saskatchewan case (2004), Kendal v. St. Paul’s Roman Catholic Separate School Division No. 20, a special-needs teacher sued the school board for injuries to the face and head she sustained as a result of an assault by a special-needs child with a history of violence and aggression, arguing that the school division was negligent in the duty of care it owed to her by failing to provide a safe environment in which she could perform her teaching duties. The question revolved around whether having the student in school was an unreasonable risk. The court of appeal upheld the trial judge, finding that the gravity of the risk did not outweigh the social, legal, and moral value of the special-education program for disabled students. In addition, the school division had recognized the risks and had taken steps to ameliorate them, and therefore was not found negligent.


More extensive discussions of various aspects of liability can be found in MacKay, Education Law in Canada (1984), MacKay and Dickinson (1998), and MacKay and Sutherland (1992). In cases of liability, as in so many other areas of law, the facts of a particular case (and their interpretation by a court) are as important as any principles. Teachers need to take issues of care and liability seriously, but not become so worried about negligence that they forget their primary duty to provide education to students.

THE YOUTH CRIMINAL JUSTICE ACT
The Youth Criminal Justice Act (YCJA) is federal legislation that deals with criminal justice for youth aged from 12 but not yet 18. This legislation, passed by the House of Commons on February 2, 2002, and in force as of April 1, 2003, replaced the Young Offenders’ Act. It outlines the federal framework for dealing with youth criminal justice in terms of extrajudicial measures, organization of the youth criminal justice system, judicial measures, youth sentencing, custody and supervision of offenders, and publication, records, and information. What is perhaps most important in understanding the measures outlined in the act is its articulation of the rationale for interpretation, which is found in the preamble. The Department of Justice Canada, in its summary of the Youth Criminal Justice Act <www.justice.gc.ca>, paraphrases the preamble by suggesting that the act is underpinned by the following values:

•     Addressing the needs of youth is a social responsibility;
•     Collaborative partnerships between communities, families, and others to address the underlying causes of youth crime with a focus on prevention, guidance, and support;
•     Publicly available accurate information about youth crime, the youth justice system, and effective measures;
•     The recognition of rights and freedoms of youth including those found in the United Nations’ Rights of the Child;
•     Taking into account the rights of victims, and to promote accountability through meaningful consequences, rehabilitation, and integration; and
•     Reducing the over-reliance on incarceration.

An example of how these values may be enacted was exemplified in the case of a 15-year-old girl from Saskatoon who pleaded guilty to assaulting a 14-year-old teenager in a beating near some elementary schools where over 100 youths had gathered to watch a series of student-organized fights (2005). The beating was caught on video and circulated via the Internet. A sentencing conference was held to examine the root cause of the incident for the girl, who had no prior criminal record. Those who are invited to attend such conferences typically include the judge, lawyers, a probation officer, a moderator, the families of the accused, and the victims.

The provisions of the YCJA have major ramifications for the ways in which teachers and administrators work with youth offenders; victims of youth crime; individuals and/or organizations outside of education who have an interest in the prevention, sentencing, rehabilitation, and/or super-vision of offenders; and how privacy and records are managed.

CHILD ABUSE
All provinces have enacted legislation that requires any adult to report to police or to child welfare authorities a suspicion that a child is being abused physically, sexually, or emotionally. This legislation is not part of legislation on schools, and is usually the responsibility of agencies other than schools, most often child-welfare agencies. Because teachers have so much contact with students, they are often the first or the only adults to suspect that a child is being mistreated (Tite, 1994).

The increasing attention that is being given to child abuse is also part of the gradual but important change in our attitudes toward children, which was discussed earlier in this chapter. When dealing with suspected cases of child abuse, there are several legal points for teachers to remember:

1.   You are required by law to report your suspicion of abuse, even if you do not have any concrete evidence to support your belief.
2.   You must make a report to the legally stipulated authority, usually the police, or to the child welfare authorities; reporting only to your principal is not sufficient.
3.   You can be found guilty of a crime if you have knowledge or suspicion of abuse and do not report it to the proper authorities.
4.   Your identity will not be disclosed to the person who is suspected of committing the abuse.
5.   You cannot be punished or prosecuted for making a report that proves to be incorrect, as long as you did so in good faith.

(Go to <www.canadianschools4e.nelson.com> for websites that access policy and legislative documents relating to child abuse at the federal, provincial, and territorial levels.)

A discussion of the legal aspects of child abuse, however, hardly begins to raise all of the other important elements of the matter (Beck, Ogloff, & Corbishley, 1994). For instance, what constitutes a strong enough suspicion to justify reporting a suspected case of abuse? After all, many of the possible symptoms of abuse, especially in regard to emotional abuse or neglect, might be found in most children at one time or another. What if a child does not want to have the abuse reported for fear that the family will be torn apart by an accusation? What if the report is made, but there is not enough evidence to warrant criminal charges? (This is a real concern with child abuse since the sole evidence for the allegation may be the unsubstantiated word of a child, which does not have the same force in a court of law as does the testimony of an adult.) What if no charges are laid, but the abusing adult is provoked into greater abuse by the fact that an investigation is being conducted? These are some of the concerns that a teacher must consider in regard to a suspected case of abuse, but they do not negate any of the legal requirements cited above.
Particularly troublesome for teachers is the matter of suspected abuse committed by teachers. These accusations usually involve alleged sexual abuse, which can mean anything from inappropriate touching of the student to sexual intercourse between a teacher and a non-consenting student. Though the number of teachers accused of abusing students is very small, because teachers are in a position of trust the accusation is particularly serious. Frequent practice in such cases is to suspend the teacher from duty, or to reassign the teacher to duties that do not involve teaching, until the allegation is resolved. A school board could fire a teacher accused of abuse but not convicted of the offence if the board felt that it had reasonable grounds for believing the teacher guilty. However, police and Crown attorneys usually do not lay criminal charges of abuse unless they feel they have enough evidence to make a conviction a realistic possibility. At a minimum, teachers convicted of abuse will normally have their teaching certificates revoked, prohibiting them from being teachers, as well as incurring any criminal sentences related to the nature of the charge.

In fact, very few teachers are either convicted or fired for abuse of students. As in cases of negligence, a teacher who acts with reasonable care and prudence is unlikely to find himself or herself in difficulty. Hugging or holding primary-age children, for instance, is a common and justifiable practice, recognized as such by the courts. For example, charges against a grade 4 teacher in Newfoundland were dismissed by the Court of Appeal with the recognition that some reasonable degree of physical contact between a teacher and students was appropriate (Anderson, 1991b). On the other hand, for a male teacher to hug a high-school-age female student is probably not wise, except under unusual circumstances. It should also be noted that codes of professional ethics exclude reporting abuse from the requirement that one first talk to a colleague before making any complaints against him or her—the duty to protect a child is considered more important than the professional duty of confronting a colleague.

As in other matters raised in this chapter, the legal requirements vis-à-vis child abuse, while valuable, do not solve the most troubling problems. No set of rules can fully substitute for professional judgment.

SCHOOL ATTENDANCE: THE RIGHT TO EDUCATION
There is some debate among educators and lawyers as to whether people have a right to education, or whether education is something the state provides at its discretion. The United Nations Universal Declaration of Human Rights and the United Nations Convention on the Rights of the Child both treat education as a right, but provincial legislation in Canada is inconsistent, with some provinces using the term “right” and other provinces simply talking about education being provided. Nonetheless, most people tend to think of schooling as something to which we have a right (see Box 4.6).

Education statutes talk about the right to attend schools, not the right to receive an education. This distinction is an important one for two reasons. First, it implies that schools do not have a legal obligation to ensure that students benefit from attending. Schooling must be made available, but whether the student learns is apparently not a matter of law. Secondly, the statutes imply that students do not have a right to forms of education other than those the schools provide. If, for example, a student contended that he or she learned best in an informal, on-the-job setting, or at home, or through working in a library, legislation does not suggest that the schools have any legal obligation to provide education in these types of alternative settings. The issue of appropriate placement for special-education students, discussed later in this chapter, is a particularly interesting instance of what schools are required to do to meet the needs of students.

BOX 4.6 Legislative Provisions Governing the Right to Schooling

Alberta School Act, 1991, 8(1): “Every individual (a) who at September 1 in a year is 6 years of age or older and younger than 19 years of age, and [who is a citizen or lawful resident of Canada] is entitled to have access in that school year to an education program in accordance with this Act.
“8(2): A [school] board may permit an individual [who is younger than 6 or older than 18] to have access in that year to an education program.…”

Quebec Education Act, 1997, 1: “Every person is entitled to the preschool education services and elementary and secondary school instructional services provided for by this Act… from the first day of the school calendar in the school year in which he attains the age of admission to the last day… in the school year in which he attains 18 years of age, or 21 years of age in the case of a handicapped person.…
“The age of admission to preschool education is 5 years on or before the date prescribed… ; the age of admission to elementary school instruction is 6 years.…”


Smith (1994) reviewed the status of procedural rights related to school attendance, such as the right of parents to be involved in shaping students’ programs, and found that these were not well defined in provincial legislation.
A further interesting feature of the right to education is that this right is, in fact, compulsory. Most rights are available to people who wish to exercise them, but school attendance is different because it is legally required. It is worth thinking about why our society would want to force people to exercise a particular right. Compulsory attendance does clearly imply that the benefit of education extends beyond the individual to society itself, and that this larger benefit is sufficiently important to require universal attendance. Furthermore, understanding of the compulsory-attendance provisions in schools must take into account the history of schooling in Canada, and the view commonly held by the governing class in the nineteenth century that children must attend school to be taught the behaviour and values that would enable them to fit into society. It was not necessarily the school’s function to teach children the values of their parents and families.

According to MacKay (1984), making school attendance compulsory means that the education provided should be valuable, otherwise it would be “an abuse of state power” (p. 72). The fact that many youth criminal sentences make school attendance one of its provisions adds another layer to the intricacies of working with young offenders. Whether compulsory attendance can be justified legally under the Charter is an interesting but, as yet, unexplored question.

HOME SCHOOLING
Closely related to the issue of compulsory education is the matter of home schooling. A small number of parents—Ray (2001) estimates the number of home-schooled students in Canada to be between 60 000 and 95 000— choose to educate their children at home rather than send them to school. This is usually because the parents have strong objections to the schools. Such objections can be religious in nature (parents may want their children educated in a particular religious tradition, such as Judaism, that the schools do not follow) or philosophical (parents may not like the way in which schools provide education).

Most provincial legislation in Canada gives parents the option of educating their children at home, as long as the education provided is approximately equivalent to the standard found in the public schools. Provinces have been easing restrictions on home schooling, and some now require schools to support parents who are home schooling (Smith, 1996) (see Box 4.7). Many school authorities have been strongly sceptical about home schooling, arguing that children must attend public schools to be educated properly. Others have taken the opposite view and asserted that parents should have the right to choose what kind of education their children receive.

BOX 4.7 Legislative Provisions Governing Home Schooling

•     Ontario Education Act, 1990, 21(2): “A child is excused from attendance at schools if (a) he [sic] is receiving satisfactory instruction at home or elsewhere.…”

•     Saskatchewan Education Act, 1995, c. E-02, s. 157; c. 21, s. 66: “A pupil may be exempt from attendance at a school, and no parent, guardian or other person is liable for an offence pursuant to section 156 [Compulsory Attendance] where:… (c) the pupil is receiving instruction in a registered home-based education program.”

•     Manitoba Public Schools Act, 1987, c. P250, 260. “1: Every parent of a child of compulsory school age.… Shall ensure that the child attends school, unless specifically excused in writing by the minister, in accordance with the provisions of this Act and the regulations.
-     “260.1 (1) Notification to the minister: The parent or guardian of a child who is a pupil in a home school shall, in the prescribed form, notify the minister of the establishment of the home school.
-     “260.1 (2) When notification to take place: The parent or guardian shall, in the prescribed form, notify the minister about the home school when it is first established and on or before September 1 in each year.
-     “260.1 (3) Information to be provided to minister: Within 30 days after a home school is first established and on or before September 1 in each year, the parent or guardian shall provide the minister with the following information:
(a) the name and birth date of each pupil in the school;
(b) the name of the school or school division each pupil would otherwise attend; and
(c) an outline of the education program and grade level for each pupil.
-     “260.1 (4) Periodic progress report: The parent or guardian shall provide the minister with periodic progress reports on each pupil in the home school. The reports must contain the information and be provided according to a schedule determined by the minister.”



MAINTAINING ORDER IN SCHOOLS
We noted earlier that, in an attempt to maintain order, schools create various rules and place restrictions on students that are not ordinarily found in other social settings. Examples include rules governing movement (where students can be), privacy (lockers, personal possessions), appearance and dress, and conduct (smoking, fighting, taking turns). Canadian courts have consistently upheld the rights of schools to restrict students’ behaviour for the purpose of maintaining an orderly atmosphere in the school. These restrictions can extend “not only to… studies, attendance, homework and behavior, but to hair styles, clothing, manners and morals, social activities, speech and association” (Hurlbert & Hurlbert, 1992, p. 39).

However, the courts have also begun to insist that such rules have some clear justification, and that their application must respect students as persons. School authorities will need to show that the limitations placed on students are indeed necessary for the orderly conduct of schools. Tolerance for rules that are set and enforced in an arbitrary fashion does appear to be diminishing, and greater attention is being paid to principles of natural justice. This may mean that rules will need to be clear and specific rather than vague and general, that students will have to be informed of the rules in advance, and that some procedure for review or appeal of decisions may be required (Harte & McDonald, 1996). Examples of these developments as they relate to issues of order and discipline can be seen most clearly in the handling of some of the more extreme situations in schools, which are discussed in the following sections.

SEARCH AND SEIZURE
Canadian students, like all other Canadians, have the right to be free from illegal and unreasonable search of themselves or their possessions by virtue of Section 8 of the Canadian Charter of Rights and Freedoms. Usually courts must balance this right against the public’s right to be protected from crime and wrongdoing. Court decisions in Canada have supported the right of school administrators to search students or their property when there are reasonable grounds for suspecting some wrongdoing. For example, the right of a principal to search the clothing of a student who had been observed with illegal drugs was upheld by a court (Hurlbert & Hurlbert, 1992, p. 115), and the Supreme Court ruled in 1998 (R. v. M. [M.R.] 3 S.C.R. 393) that school officials (in this case, a vice principal) do have the right to search students and seize prohibited items (in this case, drugs) when it is necessary to provide a safe school environment and maintain order and discipline in a school. In fact, the Supreme Court spoke of how the Education acts of each province infer the right of teachers and administrators to search and seize: “[T]he responsibility placed upon teachers, and principals to maintain proper order and discipline in the school and to attend to the health and comfort of students by necessary implication authorizes searches of students” (R. v. M. [M.R.]). The Supreme Court also clarified that teachers and administrators do not need a warrant if they are conducting a search or seizure independently of the police. Reasonable grounds for school personnel is a more lenient standard of proof than what needs to be shown by police officers, justified by the fact that teachers and administrators often must deal with situations immediately to protect students and to ensure an orderly learning environment.

However, schools do not have the authority to search students or their lockers arbitrarily—that is, without some grounds for suspicion (Dickinson & MacKay, 1989, p. 390). As in other instances, much would likely depend on the facts of the case and the extent to which the teacher or principal had good grounds for believing that the student was engaged in some significant wrongdoing. The greater the invasion of the student’s privacy, the more serious the cause must be. As for searches of students’ lockers, courts would examine the teacher’s or administrator’s role of authority, the student’s reasonable privacy rights, and the grounds and procedures carried out in the search. Random searches might well be held to be wrong, while searches of particular lockers where there is a suspicion of, say, stolen goods, might well be upheld by the courts. However, due-process provisions, such as informing the student of the reasons for the search and allowing her or him to be present with a witness, would also be advisable.

DISCIPLINING STUDENTS
The ability of schools to discipline students comes from two sources, one being the in loco parentis status of teachers and administrators in schools. As well, education legislation in most provinces provides specifically for the right of the school and school board to make rules and enforce discipline on students. These statutes are typically silent on what this provision might mean, and few higher-court cases have applied the Charter guarantees to students. On the whole, Canadian courts have, as has already been noted, accepted that schools can make and enforce rules that can reasonably be considered necessary to maintaining order. But in this area, too, reasonable provisions consistent with the Charter and with natural justice are gradually becoming standard in schools.

CORPORAL PUNISHMENT, VIOLENCE, AND THE USE OF FORCE WITH STUDENTS
One of the most controversial forms of discipline in schools is the practice of corporal punishment. Canada’s Criminal Code (Section 43) allows teachers to use physical force against students: “Every school teacher, parent, or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances.” Over the years, the courts have limited the use of corporal punishment in various ways: the punishment must be for purposes of correction; it must be reasonable given the offence; it cannot leave a permanent mark or injury; it must be suited to the pupil’s age; and so on. Hitting a student on the head, or with a metal bar, would not be seen by the courts as justified, while a slap on the hand with a rubber strap would be (Hurlbert & Hurlbert, 1992, p. 202).

More important than the Criminal Code in this area, however, are changing social values about the use of physical punishment. There is less and less public support for hitting children, for almost any reason. The Law Reform Commission of Canada has advocated the abolition of corporal punishment (Hurlbert & Hurlbert, 1992, p. 194), as have many teachers’ associations and other groups of educators. Many school districts in Canada have prohibited the use of the strap, and use has declined even where not prohibited. In 2000 the Ontario Superior Court was asked by the Children’s Foundation to declare that Section 43 of the Criminal Code was contrary to Sections 7, 12, and 15(1) of the Charter of Rights and Freedoms. The Canadian Federation of Teachers joined with the Attorney General to argue for Section 43, and the court upheld the Section, ruling that it could be interpreted sufficiently narrowly so as not to contravene the Charter (“Reasonable force” provision upheld, December, 2000). The case eventually went to the Supreme Court of Canada, and on January 30, 2004, the Supreme Court ruled that Section 43 was constitutional; that it did not violate a child’s right to security of the person and quality; and that it is not cruel and unusual punishment in situations where the use of force “is part of a genuine effort to educate the child, poses no reasonable risk of harm that is more than transitory and trifling, and is reasonable under the circumstances” (Canadian Foundation for Children, Youth and the Law v. Attorney General [Crim.] [Ont.] 2004 SCC 4/ 2004 CSC 4). Before the Supreme Court ruling, a New Brunswick Court decision suggested that school board or provincial policies prohibiting corporal punishment could not overrule teachers’ rights under the Criminal Code to use corporal punishment (Anderson, 1995).

While there is considerable consensus concerning the educational inappropriateness of corporal punishment in schools, teachers’ associations have recently expressed growing concern about student violence in schools, and about violence directed at teachers. This has focused greater attention on issues of workplace safety and school security, and to the need for teachers to be protected by Section 43 of the Criminal Code when using force against a student for reasons other than punishment. Examples of such a situation might be to restrain a student from harming other people, breaking up a fight, or, as in the case of Regina v. Sweet (1986), preventing a student suspected of a breach of discipline from escaping investigation.

In Regina v. Sweet, a student suspected of smoking marijuana in the school was apprehended and told by a teacher to wait while the vice principal was called to deal with the incident. The student refused and attempted to push his way past the teacher, who tried to prevent him from leaving. In the scuffle that followed, the teacher was elbowed in the stomach and had his hand bitten. The student was charged with assault, and in court maintained in his defence that he was justified in using force because his detention was unlawful under the Charter. The judge rejected this defence, citing Section 43 of the Criminal Code, which empowers teachers to use force in such situations. MacKay and Sutherland (1992), in reviewing court cases, conclude that teachers have, for better or worse, been well protected by the courts.… The commonly held view by teachers that the law does not allow one to use force to discipline a student is not supported in the case law. It is school policies, responding to public opinion, that have limited the use of force by teachers. (p. 21)

The available evidence does not necessarily support the view that violence in schools has increased (Dolmage, 1995b; Doob & Sprott, 1999; Statistics Canada, 2004). Box 4.8, for example, provides Statistics Canada data on the number of youth found guilty in youth criminal courts from 1998 to 2002, which illustrates that rates generally have in fact decreased. Nonetheless, schools have responded to the concern by taking two sorts of steps to try to curtail violence—using what might be called educative and disciplinary strategies. Many schools have implemented programs that are aimed at preventing violence by helping students learn to solve disputes through peaceful means. Examples include the Second Step Program and a variety of mediation, peer-counselling, and other conflict-resolution programs. At the same time, many schools and school systems have introduced so-called “zero-tolerance” programs, in which violent actions lead automatically to severe consequences such as suspension or expulsion. Zero-tolerance policies do send a clear message to students and parents about the school’s attitude toward violent behaviour, but they do not solve problems: some provision still has to be made for students who may have been expelled, the causes of the problems are not dealt with, and cases inevitably arise in which the consequences simply do not fit the supposed offence—for example, bringing a paring knife to school to cut one’s lunch. A balance is clearly needed that protects both students and teachers and allows the school to be orderly without undue coercion.

BOX 4.8 Cases in Youth Criminal Court with Guilty Verdicts, 1998–2002

 

1998

1999

2000

2001

2002

Total Cases

59 385

55 534

53 283

51 952

50 433

Criminal Code Total (without traffic)

48 037

43 677

41 686

40 600

39 548

Crimes against the person

14 675

13 939

13 729

13 798

13 946

Homicide

16

24

16

8

19

Attempted murder

19

8

19

14

14

Robbery

2 159

1 927

1 628

1 767

1 833

Sexual assault

740

644

652

662

658

Other sexual offences

258

247

287

288

258

Major assaults

3 155

3 007

2 907

3 073

3 113

Common assaults

6 482

5 974

6 043

5 651

5 916

Uttering threats

1 554

1 726

1 849

2 030

1 829

Criminal harassment

74

154

113

104

121

Other crimes against persons

218

228

215

201

185

Crimes against property

25 719

22 695

20 908

19 779

18 863

Theft

9 814

8 750

8 217

7 815

7 352

Breaking and entering

8 190

6 594

5 789

5 265

5 210

Fraud

1 150

1 148

1 034

1 009

866

Mischief

2 518

2 360

2 356

2 298

2 231

Possessing stolen goods

3 750

3 585

3 212

3 101

2 948

Other property crimes

297

258

300

291

256

Administration of justice

4 965

4 476

4 591

4 489

4 444

Other Criminal Code

2 678

2567

2 458

2 534

2 295

Criminal Code traffic

897

914

796

859

833

Impaired driving

611

631

518

508

494

Other Criminal Code

 

 

 

 

 

Traffic offences

286

283

278

351

339

Other federal statutes

10 451

10 943

10 801

10 493

10 052

Drug possession

1 634

1 746

1 948

2 008

1 764

Drug trafficking

1 052

1 248

1 304

1 282

1 081

Young Offenders’ Act

7 680

7 867

7 461

7 112

7 110

Residual federal statutes

85

82

88

91

97

Source: Adapted from the Statistics Canada CANSIM Database <HTTP://CANSIM2.STATCAN.CA>, Table 252-0030, and from the Statistics Canada publication, Juristat, Catalogue 85-002, Youth Court Statistics, 24(2).


SUSPENSION AND EXPULSION
Legislation in each province provides for the suspension and expulsion of students from schools. Suspension is a temporary ban on attending school, while expulsion is a permanent ban. Legislation generally gives the school board the authority to make suspension decisions, and boards delegate that authority by resolution to the school; however, the decision to expel a student permanently can be made only by a school board. School board policies normally spell out suspension procedures, including what provisions of natural justice must be observed (e.g., whether or not the student has the right to a hearing before suspension). Provisions for hearings and appeals before expulsion are found in most provincial legislation.

Schools have had almost total latitude from the courts to suspend students for any reason the school or school board deems sufficient, ranging from violating rules to committing a crime. One likely impact of the Charter may be to require school boards to be clearer about the kinds of grounds on which a suspension can be justified, and to show how these are required to maintain order in a school. Schools will continue to be able to suspend students who endanger others or who refuse to accept the basic rules of the school. But whether a school could legally defend itself for suspending a student who had spoken publicly against a school policy or criticized a teacher is not nearly as certain.

DEMOCRATIC PRACTICE IN SCHOOLS
The Charter guarantees Canadians the right to elect governments. Whether students in schools have such a right has not been argued before the courts. One might think that learning in practical terms about political processes would be an important part of what secondary schools teach. Yet student councils in most Canadian secondary schools are heavily restricted and monitored by school administrators.

Canadian schools have had wide latitude in the past to limit students’ rights to express themselves freely and to assemble freely. For example, schools have frequently limited students’ right to publish their opinions in school newspapers, to organize political activities in the school, and to circulate or read certain kinds of materials. Some experts believe that the application of the Charter will eventually force schools to be more careful about how and when they limit students’ ability to speak and write what they think; however, there have been few cases to provide a sense of how the courts will rule on these matters.

Issues of order illustrate most clearly the dilemma posed by the schools’ educational mission. It is hard to see how an institution can inculcate in young people respect for the law and for the rights of others, as well as an understanding of democratic processes, when these same principles are not embodied in the actual operation of the school. If students are treated arbitrarily, subjected to rules they neither support nor understand, and denied avenues for the peaceful expression of their opinions, then surely there is something educationally wrong. There is, of course, a need to keep order in schools, but one must wonder if the educational rationale cited here does not justify some greater tolerance for diverse behaviour and diverse points of view than is found in many schools. Are students’ dress, hair length, or written opinions (provided they are not libellous) so prejudicial to the effective conduct of education that they justify restricting students in ways that would not occur outside the school?

TEACHING PRACTICES
THE SCHOOL YEAR
Various aspects of the school year, including precise dates, number of professional development days, and holiday breaks, are usually controlled by provincial regulation. School districts may be given some options regarding the organization of the school year, but the most important aspects are provincially regulated. School years differ from province to province in regard to number of days, starting dates, holidays, and professional development arrangements.

CURRICULUM
In all provinces, the authority to set curriculum is given by statute to the minister of education, meaning, in practice, the Ministry or Department of Education. While some provinces provide much more specific direction than do others in this area, provincial regulations or policies usually specify the courses or subjects to be taught at each level and the amount of time to be given to each course or subject. They may also prescribe certain forms of student evaluation, such as provincial tests or examinations. Provinces generally prescribe sets of authorized textbooks as well, although schools or teachers may have some choice within the overall list. Most provinces provide some curriculum flexibility, allowing schools or school districts to offer some courses (usually following provincial approval) that are felt locally to be of particular importance or benefit. (See Chapter 7 for a fuller discussion of the curriculum and the notion of academic freedom as it might apply to public school teachers.)

EDUCATIONAL “MALPRACTICE”
Although schools and teachers can be and have been sued for failing to safe-guard a child’s safety, there has not yet been a successful case against a Canadian school for failing to educate a student—what might be called the pedagogic equivalent of medical malpractice (Dickinson, 1995). In Canada, such matters as incorrectly identifying a student as learning disabled, allowing a student who cannot read to graduate, or simply failing to provide reasonable instruction, though we might condemn each as an example of professional misconduct, have not yet been considered reasonable grounds for lawsuits (Educational malpractice not actionable, 1998).

SPECIAL-EDUCATION STUDENTS
The rapid growth of special education in Canadian schools has raised a number of legal issues. Do the schools have the right to classify students whom they feel require some sort of special program? Do parents have that right? Must the schools provide programs for different kinds of exceptional students? These issues are now being covered in Canadian legislation, and there are many contentious cases in which there is a disagreement between the school and the parents as to the appropriate program for a child. In some cases, parents are resistant to the school’s desire to change their child’s program, while in other cases parents are pressing the school to provide some program that the school is reluctant to offer.

The provision of appropriate education to meet the needs of each student is increasingly accepted as a right in Canadian education. Most provincial legislation now reflects this requirement (Goguen & Poirier, 1995). For example, Section 144(1) of the Saskatchewan Education Act states that “every person… shall have the right… to receive instruction appropriate to his age or level of educational achievement.” In some provinces, however, this right is still qualified. The question of what is meant by an appropriate education is also far from evident. Does it mean special separate classes or does it mean that all students, regardless of particular needs, should be in the same classrooms? The issue is complicated because educators and parents may have different opinions. Some have fought to have exceptional students, such as those with physical disabilities, placed into regular classrooms (an issue discussed more fully in Chapter 7), while others have fought to have particular needs, such as learning disabilities or giftedness, met in separate programs or classes.

A review of provincial provisions (Smith, 1994) came to the conclusion that parents have little legal standing when it comes to influencing the delivery of special-education services for their children. There does appear to be an increasing trend toward applying principles of natural justice to special education, which would require that students and parents be kept informed of the school’s proposals for students, and that they be given the right to a hearing. The school must be cautious about acting in a manner that contradicts students’ and parents’ views unless it can present good reasons for doing so. At the same time, as they have in other areas of law, courts have recognized that schools have a degree of expertise in these matters that should not lightly be set aside to accommodate parents’ wishes. The area of student classification is not, as a rule, dealt with in provincial education statutes, and it is currently an area of much controversy and court action.

The cases outlined in Box 4.3 suggest that courts will give schools latitude to make special education placements that are reasonable under the circumstances, but that the schools must show good faith in trying to meet the educational needs of students. Parental wishes may be less important than a reasonable educational justification.

PRIVACY LAWS
Federal and provincial laws govern the collection, use, and storage of personal information. Canada has two federal privacy laws: the Privacy Act, which pertains to information collected by government institutions, and the Personal Information Protection and Electronic Documents Act (PIPEDA), which over-sees information collected by organizations in the private sector. As well, each province (except Newfoundland) has guidelines to protect information held by government institutions and agencies, of which school divisions are a part. For example, on April 3, 2000, the Manitoba Freedom of Information and Protection of Privacy Act (FIPPA) came into force for all governmental agencies in the province. This act offers the right of access to records of public institutions, protection of personal information held by these bodies, and the availability of independent review by the Manitoba Ombudsmen and appeal to the Court of Queen’s Bench. The requirements of “fair information practices” provide for collection, use, disclosure, information management, individual access, openness, accountability, and independent review.

As agents of the state, teachers and administrators must be very careful to protect the personal information of the students, employees, and families with whom they work. Report card data, student and personnel records, student pictures, and website information must be handled very carefully in order to protect the privacy (and sometimes safety) of those who are connected to the school. A case that was appealed by a mother to the Ontario Information and Privacy Commissioner (2001) involved the Halton District School Board’s refusal to comply with her request under the Municipal Freedom of Information and Protection of Privacy Act for a breakdown of self-contained special-needs classrooms. The woman requested the information in an effort to investigate placement options for her special-needs child because she disagreed with the current placement within the district. The district refused to provide three records under the argument that doing so would disclose personal and identifiable information about other students, and would violate their personal privacy. The commissioner ordered the board to disclose two of the three records because the statistics within them could not reasonably link an exceptionality to a particular student. However, the information provided on the third document might allow for the identification of certain students because of their exceptionalities, and would constitute an unjust invasion of the students’ personal privacy.

COPYRIGHT
Copyright law is an interesting example of the division between personal and property rights. Written material, music, art, videos, and computer software are considered property, just like a house or a car. Copyright law, which comes under the jurisdiction of the federal government, restricts a person from using someone else’s work without the originator’s permission. Often this law means that one must pay to reproduce by any mechanical or electronic means a book, article, or other material. In other words, the right of the community to benefit from ideas is subordinated to the right of the individual to profit from them.

Until recently, Canada’s copyright law dated from 1924 and did not deal adequately with newer forms of communication such as computer software, digital videos, and mass photocopying. The copyright law has been revised to strengthen the protections to copyright holders. Teachers cannot make multiple copies of an article or play for an entire class. Nor is it permissible to rewrite something in slightly different language and then copy it. Libraries have placed warnings over photocopying machines to discourage people from making illegal copies. Teachers cannot legally videotape a television program for classroom use unless formal permission has been given by the copyright holder. There have been prosecutions of individuals and organizations (Walker, 1996) for violating copyright laws.
In response to the significant problems that these restrictions threatened to create for schools, colleges, and universities, provincial governments, acting on behalf of schools, have entered into agreements with an organization called CANCOPY in order to allow schools to make limited numbers and kinds of copies for nonprofit educational purposes. The provinces pay CANCOPY a fee for these rights, and CANCOPY in turn distributes these monies to authors, artists, and any other creators of the work. Most public schools are now covered by such agreements. They allow some (but by no means unlimited) photocopying of stories, plays, articles, poems, books, and artistic works. Typically, CANCOPY agreements allow unbound class sets of up to 10 percent of a publication. There are restrictions on what can be copied, so teachers should obtain full details from their school library or administration to ensure that they are complying with the copyright law.

CANCOPY agreements do not include non-print materials such as videos or computer software. These are also subject to copyright protection, so teachers need to be sure that permission has been obtained before making copies of any such materials. Computer software is sometimes covered by a site licence that allows an organization to use software in all parts of its operation without having to buy multiple copies. Some provincial governments have also negotiated copyright agreements that allow schools to use videos or computer software under certain conditions.
Another major issue is the use of materials from the Internet. These are frequently used by students but are legally copyrighted and should not be reproduced without permission. The federal government has indicated its intention to amend copyright legislation to include electronic forms, leading to considerable debate as to how access to electronic information will be maintained for Canadian schools.

CONCLUSION
Legal issues are playing an increasing role in schools. Many of the issues and conflicts that have been endemic to schooling are now being addressed in part through court action. It is important that teachers be aware of the impact of law on schools, and of the implications of such major documents as the Charter of Rights and Freedoms. At the same time, teachers should not see themselves as lawyers or be so struck by legal issues as to forget that their first obligation is an educational one. Teachers and schools can benefit from a careful consideration of legal issues, both old ones and those newly emerging, but it is best if this consideration takes place within a framework of educational purposes and values.


Key Terms
Case law p. 111
Charter of Rights
and Freedoms p. 115
Collective rights p. 115
Common law p. 111
Educational state agents p. 120
Expulsion p. 135
in loco parentis p. 120
Individual rights p. 115
Invitees p. 123
Judicial p. 107
Legal rights p. 113
Legislation p. 107
Natural justice p. 111
Negative rights p. 114
Negligence p. 122
Normative rights p. 113
Occupiers p. 123
Personal rights p. 115
Political p. 107
Positive rights p. 114
Powers p. 109
Precedents p. 111
Procedural rights p. 114
Property rights p. 115
Reasonableness p. 111
Regulations p. 108
Rights p. 112
Site license p. 140
Substantive rights p. 114
Suspension p. 135
Supreme Court of Canada p. 111
Vicarious liability p. 121

Exercises
1.   Find a recent piece of legislation in your province that relates to education. This could be an amendment to a schools or education act, or some other legislation that affected schools in a significant way. Think about which groups or interests might have favoured or opposed this legislation. Who gained or lost from its passage? Why? Using Hansard (the record of debates in the legislature), review the debate over this legislation. What arguments were advanced for and against the proposals? Why? Whose interests appear to have prevailed in the debate?

2.   Find a copy of a provincial regulation made under the an education or schools act. What provisions are in the regulation? Why are these provisions not in the legislation itself ? How often has the particular regulation been altered in the last five or ten years?

3.   Find and read a copy of a court decision (any level of court) on a recent case involving education. What arguments did the judges use to support their particular decision? Was their decision consistent with previous decisions on the same sort of case? Why or why not?

4.   Write a brief essay indicating whether or not you think the courts should play a greater role in Canadian schools. Give specific examples to support your point of view.

5.   Choose one of the pairs of rights listed on page 113. Illustrate how this distinction might apply to a specific instance of a legal issue involving schools.

6.   “Schools are not sufficiently respectful of the rights of their students.” Agree or disagree, supporting your answer with specific examples.

7.   Imagine you are a senior civil servant in the Department or Ministry of Education. You have been asked to give the minister advice on legal aspects on home schooling, together with a brief (two-page) justification for the stance you have taken.

8.   Arrange a class discussion of how schools can best deal with issues of violence. What should be the relative balance between educative measures, such as mediation programs, and disciplinary measures, such as zero tolerance or suspension policies?

9.   Most student councils in high schools are primarily concerned with social activities. Should student councils assume a more active role in the governance of the school? Why or why not? If yes, how could such a change be fostered?

10. Assume that you wish to develop a class website. What kinds of privacy legislation and policies would you have to adhere to in your province? What kinds of material would you be or not be allowed to add on to the website, and why? How might you go about obtaining permission to use information that may have to be treated delicately because of privacy issues?

Further Reading
•     A fuller discussion of many of the issues in this chapter can be found in several chapters in Ratna Ghosh and Douglas Ray (eds.), Social Change and Education in Canada (1995). The relevant chapters include those by MacKay on rights; by Dickinson on teachers’ duties and authority; by Esbensen on students’ rights; by Magsino on parents, children, and the state; and by Goguen and Poirier on the educational rights of exceptional students. Some of the major books with extensive discussions of legal issues in education are now getting somewhat dated due to more recent court decisions. Examples are MacKay (1984); Dickinson and MacKay (1989); Hurlbert and Hurlbert (1992); and MacKay and Sutherland (1992). Several new books on the subject are available.
•     The third edition of Brown and Zuker’s Education Law (2002) includes topics related to Codes of Conduct, school councils, funding and the Charter, amalgamation of schools, the Youth Criminal Justice Act, and special education.
•     Watkinson’s (1999) book, Education, Student Rights, and the Charter of Rights, discusses the positive influence the Charter has had in helping to create a more democratic and caring education system through its support of student rights.
•     Green’s Justice in Aboriginal Communities: Sentencing Alternatives (2002) contrasts the values of the Canadian justice system with Aboriginal views of justice, and outlines sentencing and mediation alternatives being developed in Aboriginal communities.
•     Sussel (1995) uses examples such as AIDS, the status of women, and exceptional children to argue that the Charter of Rights and Freedoms is changing the nature of education and law in Canada.
•     The second edition of Larry Bezeau’s Educational Administration for Canadian Teachers (2002) also discusses many legal issues in education. Beyond the “Careful Parent”: Tort Liability in Education by MacKay and Dickinson (1998) is another important recent source. Journals devoted to law and education include Education and Law Journal and The Journal of Law and Education. The monthly Education Law Reporter <www.edlawcanada.com> provides brief summaries of important current court cases related to education.