On Friday, November 9, 2012 the Supreme Court of Canada (SCC) released a decision which could alter the way school boards in Canada make decisions regarding the provision of special education services, and the allocation of resources generally. We will be covering this decision in greater detail in an Alert to be released later today, as well as in our November Newsletter. If you are interested in receiving either the Education Law Newsletter or Alert, please contact us at educationlaw@millerthomson.com.
The case involved a dyslexic student, Jeffrey Moore, whose parents argued that he suffered from discrimination when his school board, for funding reasons, cut a special education program that provided intensive services in a segregated setting for students with severe learning disabilities. This resulted in Jeffrey not being able to access the program despite meeting its special education needs threshold.
The SCC agreed with the Human Rights Tribunal that the school board had discriminated against Jeffrey when he was not provided with access to the program that was cut. The SCC indicated that the board did not provide sufficient evidence that it had studied the impact of the cuts and considered other programming options for students with severe learning disabilities, like Jeffrey. The SCC did not accept that a recurring deficit justified the reduction in service, noting that discretionary expenses such as the outdoor education program survived. The implication of the SCC approach is that program enhancements for all students should only be funded when the school board ensures that disabled students have been provided sufficient programming and services to enable access to the core curriculum.
The impact that this decision could have on school boards across Canada, many of which currently face difficult budget decisions including the funding of special education services, could be significant. The case will no doubt be studied carefully in order that school boards can ensure that all spending options are considered and the consequences of cuts to special education services are understood and addressed with proper alternatives to meet the needs of students with disabilities.
On Friday, the Supreme Court of Canada released its decision in R. v. Cole, which is a case involving the search of a teacher’s laptop that uncovered naked and partially naked photos of a student.
While the case was predominantly focused on whether or not the evidence the police gathered was done so lawfully and whether or not it could be used in the criminal matter, the case also tangentially addressed the school board’s right to search the teacher’s computer.
The Ontario Court of Appeal had concluded that the school board’s search of the teacher’s laptop for maintenance purposes was authorized by law and reasonable, and its subsequent seizure of the laptop following the discovery of the images of a naked and semi-naked student in order to keep the laptop and to make a copy of the images for student safety and employment reasons was also lawful and reasonable.
The school board had in place a policy and procedures manual which made it clear that all data and messages generated on school board equipment was owned by the school board. The school principal also reviewed with the staff the school board’s acceptable use policy for technology and indicated that it applied to staff, despite the fact that the policy did not specifically identify its application to staff. The Supreme Court of Canada stated however, that, “written polices are not determinative of a person’s reasonable expectation of privacy. Whatever the policies state, one must consider the totality of the circumstances in order to determine whether privacy is a reasonable expectation in the particular situation.” In this case, the Supreme Court held that the teacher did have an expectation of privacy regarding the personal information stored on his school board issued laptop.
The accused did not challenge the school board’s right to inspect the laptop, so the Supreme Court was clear to say that this issue would be left for another court to decide on another occasion. Nevertheless, the Court did comment on the school board’s search and seizure, despite the teacher’s right to privacy, stating: “In any event, I agree with the Court of Appeal. The principal had a statutory duty to maintain a safe school environment (Education Act, R.S.O. 1990, c. E.2, s.265), and, by necessary implication, a reasonable power to seize and search a school-board-issued laptop if the principal believed on reasonable grounds that the hard drive contained compromising photographs of a student. This implied power is not unlike the one found by the majority of this Court in M. (M.R.), at para. 51. I likewise agree with the Court of Appeal that other school board officials had the same implied powers of search and seizure as the principal (paras. 64-66).”
Thus, while an employer’s right of search and seizure for employment purposes might remain outstanding, the Supreme Court of Canada’s statements provide significant support for school boards to search and seize technology where student safety is at risk.
A recent decision of the Supreme Court of Canada has upheld a girl’s right to keep her identity concealed while she seeks the identity of a cyberbully and pursues a defamation claim against that individual.
The court characterized her request as follows: “It is not merely a question of her privacy, but of her privacy from the relentlessly intrusive humiliation of sexualized online bullying.”
The case is important because it recognizes that children and youth have a greater need for privacy than adults based on their inherent vulnerability, which is the result of their age and not the personal factors of the particular child or youth. The case also confirms that, in some circumstances when a child or youth is seeking to have their identity remain anonymous, it is not necessary that s/he provide subjective evidence of the harm that would occur if their identity were released. Rather, a court can rely on objective evidence and “the court can find harm by applying reason and logic” [par 16].
The decision also comments on the harm that cyberbullying causes. The Supreme Court of Canada identified cyberbullying as having a psychologically toxic impact on its victims and accepted that, without the protection from revictimization that anonymity provides children and youth, the victim will not seek protection from the aggressor.
The issues of privacy, revictimization and seeking protection, are significant barriers to identifying and disciplining cyberbullies in the school context. Maintaining the privacy of the victim can be very difficult when the bullying occurs in a small, closed community like a school. Therefore, it becomes that much more important that policies and procedures addressing bullying recognize the need for the victim’s privacy and provide methods to report bullying in confidential ways.
Coming forward to report cyberbullying should not be the most difficult part of the bullying to endure. Confidential phone lines, private spaces and ways to speak to administrators as well as assistance to address the toxic impact of cyberbullying are a few of the measures that can be taken to help victims to come forward.
Last week we noted the rapidly expanding availability of online learning opportunities, from free K to 12 lessons, to MOOCS (Massive Open Online Courses) offering certificates of completion, to pay-as-you-go secondary and post-secondary online credits. Distance learning was historically an ancillary service in the field of education, with the lack of regular contact between teacher and student often cited as its greatest drawback. However, technological advances are now allowing for real time multi-party dialogue to take place online, along with access to engaging learning materials in a variety of forms.
Online learning can enable teachers and professors to obtain immediate feedback regarding each student’s area of strengths and weaknesses in the course. The in-depth information regarding the problem-solving methods a student has employed to arrive at their answers, and how long they spent on a particular lesson or problem, can generate a far more comprehensive picture about each student’s cognitive abilities and learning skills than the traditional final mark.
The data trail left by participants can also be used to develop profiles of the kinds of students who are likely to be successful at a particular course in the future. Such data can inform decisions around program enhancement, future course offerings as well as marketing strategies.
Drafters of privacy and academic policies may understandably struggle to keep pace with the capacity of these technological advances. Educational institutions need to ensure notice of collection and use of personal information is given or informed consent is provided by students, depending upon the circumstances and the legal requirements in the particular jurisdiction. In some cases, it may be not be clear which laws apply.
Also at issue is the extent to which students who have grown up in the age of social media will assert a proprietary interest in personal information relating to their academic performance, cognitive ability and learning styles. Where third parties, for example recruiters of particular talents, are interested in access, we may see students consent to the release of personal information calculating that it is in their own best interests to do so. Educational institutions will play an important role in assisting students to appreciate the full consequences of their consent to release such personal information to government or potential employers.
Minister of Training, Colleges and Universities Glen Murray has given Ontario post secondary institutions until September 30 to define the three things that make them special. This deadline follows a series of summer meetings with various stakeholders to discuss a vast array of considerations in an effort to make post secondary education more efficient for government and more affordable and accessible for students. The return of a three year B.A. option, the introduction of an online university, year-round use of campuses, funding tied to learning outcomes, and greater mobility of credits between institutions, are all part of the discussion, and may lead to dramatic changes in the way post secondary education is delivered over the next few years.
Ontario is not alone in examining traditional education platforms. This spring Harvard and MIT announced the launch of “Edx”, a $60 million joint endeavour to offer free online courses which claim a similar content and rigour to their residential university programs. Those who successfully complete the course will be given a certificate and a grade, but no credit. Similarly Coursera, a venture between ten global partner universities including University of Toronto, is currently offering 124 free course choices. Such free online courses have already reached over a million subscribers around the globe. President of Edx Anant Agarwal has stated that in his view Massive Open Online Courses (MOOCs) are the single biggest change in education since the printing press.
These transformational shifts will inevitably have a profound impact on the elementary and secondary school systems. Already the Kahn Academy which teaches online K to 12 courses, claims on its home page to offer a “free world class education for anyone anywhere”, and will continue to measure the growing number of lessons delivered in the millions.
Rather than a threat to the traditional classroom, these new offerings may prove to be a valuable supplement or learning alternative for many students. If lectures can be delivered by teachers who excel at that skill, and can be transmitted and archived on line, and additional curriculum materials can be made electronically available to those who learn well on their own, then we may see more teacher time made available for students who need individualized instruction.
Now is the time for boards and the teaching profession to be considering this kind of diversification and flexibility, as ministries and departments of education around the world are examining how to do more with less. Technology is reducing the need for each school to offer every course on site, and replicate lessons delivered live in the classroom. Mobility of credits, specialization, funding tied to proven proficiencies, and the application of technology to economies of scale, are concepts which are bound to migrate, so that the question posed to post secondary educators, that is “what are the things you can do really well?” may be coming soon to a public school near you.
No doubt if you follow education matters you have heard that the Minister of Education will likely be putting forth for first reading in the Legislature the Putting Students First Act, 2012 on Monday, August 27, 2012.
The legislation intends to extend the fiscal restrictions identified in the Memorandum of Understanding executed between the Ministry of Education and the Ontario English Catholic Teachers Association on July 5, 2012 to all other bargaining groups who have not signed MOUs well as extending the fiscal restrictions to non-unionized employees.
Unionized employees are still expected to negotiate with their local school boards based on the terms in the MOU executed by OECTA and the Ministry of Education or on the basis of their own MOU, if one has been negotiated before August 31, 2012.
The terms of the collective agreements are to be 2 years. However, the fiscal restraint measures imposed by the legislation can be extended for a further year by Regulation. The legislation also provides many other powers by Regulation and imposes restrictions on review by the Ontario Labour Relations Board, arbitrators and Courts with respect to certain matters.
We will be watching for further developments next week.
In an article for our June newsletter, School Investigation Has Negative Impact on College Decision, we covered a decision of the Ontario College of Teachers which highlighted the need to conduct an appropriate, thorough investigation before proceeding with a decision to discipline an employee.
The need for appropriate investigations has been highlighted again in a recent decision of the Alberta Court of Appeal in which an employer was required to pay 24 months pay in lieu of notice for an employee’s wrongful termination and an additional $35,000.00 in punitive damages as a result of the inappropriate investigation which led to the wrongful dismissal of the employee. A significant sum for any school board!
Investigations that might lead to serious consequences such as significant employee or student discipline or employee termination or student expulsion should be conducted by administrators who have had training and experience conducting investigations. The failure to do so can have significant consequences, including significant legal expenses and Orders for damages.
Where matters are complicated and many witnesses might need to be interviewed, detailed investigation plans created in advance and followed during the investigation can assist to ensure that all of the issues have been covered in a fair manner. In many instances where investigations have been found to be insufficient, the administrator conducting the investigation has had little experience and or time to be thorough and to ensure that all of the issues have been fairly addressed. It is also important that less experienced administrators can consult with superiors and review the inquiries made and the evidence collected.
For the most serious issues, school boards should consider engaging external investigators with experience in the specific area of issue.
For more detail regarding the Alberta Court of Appeal decision please see Stuart E. Rudner’s article in the July issue of the Miller Thomson Charities and Not-for-Profit Newsletter, attached.
On July 24, 2012 school board directors of education received a memo from the Ministry of Education outlining a funding framework for local bargaining and an expectation that such bargaining will be completed by August 31, 2012, the date the current collective agreements end. [click here for a copy of the Memo]
This direction was certainly a surprise to me, and I suspect that it was not anticipated by most senior administrators and local union presidents, many of whom take their vacations in the summer.
The framework is based on the Memorandum of Understanding signed by the Ministry of Education and the Ontario English Catholic Teachers’ Federation on July 5, 2012, something which also caught me and probably others by surprise.
The education sector, which is generally considered to be quiet in July, is proving to be quite dynamic - I wonder what August will bring?
Bill 13 (the Accepting Schools Act) imposes specific duties on the Minister of Education, primarily relating to the development of policies and guidelines, presumably for implementation purposes. This is the subject of this week’s posting.
The provisions outlining the Minister’s responsibilities are quite detailed and it is anticipated that the policies and the guidelines issued for school boards will be equally detailed and prescriptive.
The Minister is required to establish policies and guidelines with respect to surveys that will be conducted by the boards to collect information from its pupils, staff and parents regarding school climates.
With respect to discipline, the Minister must establish a set of policies and guidelines to create a framework for the use of disciplinary measures. This framework is to be based on education and prevention, as well as providing support for victims. The policies and guidelines are to provide for training of staff, and the requirement to provide resources for perpetrators. A process for parents to bring forward their concerns will also be outlined.
The Minister must also establish a set of policies and guidelines regarding bullying prevention and intervention, training, resources for bullied students and those bullying, strategies to support witnesses, a discipline framework, and requirements to facilitate reporting by students and parents.
The Minister may also establish policies and guidelines for the collection of information regarding student behaviour and reporting such information. The Minister has the obligation to post the number of reported suspensions and expulsions on its website.
Most significant perhaps of all of the legislative changes is the change providing that the Minister may require boards to submit any policy or guideline established under section 302 to the Minister and to implement changes to the policy or guideline as directed by the Minister.
Bill 13 must be implemented by school boards for the start of school in September. Therefore, we anticipate that the Ministry will be issuing policies and guidelines in the near future.
The preamble to Bill 13 (the Accepting Schools Act) speaks to the
need for a “whole school approach to bullying”, such that: "government,
educators, school staff, parents, students and the wider community – has a role
to play in creating a positive school climate and preventing inappropriate
behaviours…”.
Last week we commented on the sections of Bill 13 that affect the duties
of school Principals in relation to the prevention and response to bullying in
schools. The amendments, which come into force September 1, 2012, also mandate
specific obligations for school boards.
Part VI of the Education Act deals with the ‘Duties and Powers’
of Boards. This section previously began with the statement “Every Board shall
(a) promote student achievement and well-being”. Bill 13 now adds two more
requirements, specifically that (a.1) boards shall promote a positive school
climate that is inclusive and accepting of all students and (a.2) shall promote
the prevention of bullying.
Boards are required to develop policies to achieve these goals, and to
monitor the effectiveness of such policies and the efficiency of their
implementation. Monitoring under Bill 13 requires boards to conduct ‘School
Climate Surveys’ at least once every two years in order to collect information
from pupils, staff, parents and guardians of its pupils.
In addition, boards are required to establish policies and guidelines
with respect to student discipline, which include progressive consequences for
inappropriate behaviours including bullying, sexual assault, gender-based
violence, homophobia, biphobia and transphobia. Specific bullying activities
will result in mandatory suspension. Boards will be required to submit to the
Minister of Education reports with respect to suspensions and expulsions.
Boards must also develop a bullying prevention and intervention plan,
consulting with teachers, staff, students, volunteers, parents and guardians in
the plan’s formation and periodic review, ensuring that it is both publicly
communicated and implemented.
For teachers and other staff, boards must provide annual professional
development programs, addressing bullying prevention and strategies for
promoting positive school climates.
In any agreement with third party users of board facilities, boards must
include a requirement that the third party follow standards which are
consistent with the board’s Code of Conduct.
Boards are required to support students who want to lead activities or
organizations that promote a safe and inclusive school environment, and must
allow the use of the name ‘gay straight alliance’. Boards are required to
establish programs, interventions or other supports, which may be provided by
social workers, psychologists, or other professionals, for pupils who have
either been the victim of bullying, engaged in bullying, or have witnessed a
bullying incident
Bill 13 also imposes specific duties on the Ministry of Education related
primarily to the development of policies and guidelines. We will cover these
duties in our next posting.
Disclaimer
The blog sets out a variety of materials relating to the law to be used for educational and non-commercial purposes only; the author(s) of the blog do not intend the blog to be a source of legal advice. Please retain and seek the advice of a lawyer and use your own good judgement before choosing to act on any information included in the blog. If you choose to rely on the materials, you do so entirely at your own risk.