An article in the Toronto Star last week (“Education: When students face expulsion from school”, Dec. 9, 2011) featured lawyers who offer pro bono services to families when other means of conflict resolution with their school board have not been fruitful. The article highlighted the case of a student who had been referred for an expulsion from all schools within his school board, which would reqiure him to participate in a program for expelled students, before attending a regular secondary school day program.
In the case of expulsions, the article correctly identifies as ‘quasi-judicial’ the process by which decisions are made. Administrative hearings are held before a committee of Trustees, at which Board staff present the reasons for their recommendation to expel a student and the student and his/her parents may respond to the alleged behaviour and recommended consequence. Both the staff and the Discipline Committee committee can access legal counsel, but parents are not always able to afford or find representation, even though the consequences for their child may be significant.
Our legal system embraces the adversarial process, in part because we assume that, if both sides argue their respective positions to the best of their ability, weaknesses in evidence and argument will be exposed. The expectation is not only that better decisions will be reached, but that systems will be improved as parties learn from each other how they may need to adjust their practices.
The lawyers who so generously participate in the pro bono program highlighted by The Star serve not only their own clients, but the education system as a whole. As the mother told the Star reporter, “Sure, the teachers are specialists, …. But they’re human, they make mistakes”. With the benefit of legal expertise, all the participants to an expulsion hearing, or any other matter involving a public institution and the people it serves, stand to gain insight into how their processes may be continually improved.
In a blog posted following the introduction of Bill 13 and Bill 14, we raised the issue of whether legislation is necessary to address bullying. After careful review of the proposed legislation, both private member and government, we continue to wish to raise the issue if there is dissatisfaction with the way in which schools are addressing or failing to address bullying, is legislation the remedy?
Both Bill 13 and Bill 14 attempt to define bullying behaviour, which at the present time is left to school boards and in some cases, individual administrators, to define. The Government must believe that greater consistency among school boards and schools is necessary. However, in an effort to create consistency there may be other issues that develop. For example, Bill 13 requires that bullying include an element of “aggressive” behaviour, but, some forms of bullying rely on exclusion from participation or shunning, which is passive, not aggressive.
While a common understanding of bullying is necessary in order to identify and address the behaviour, it is perhaps more important for educators to receiving training regarding the identification of bullying and its causes, rather than receiving a legal definition, which must still be interpreted. Training for administrators must ensure that the causes of bullying and the many different forms of bullying, including more subtle social/relational bullying, is understood and can be identified. Such complicated social interactions cannot be understood by simply defining bullying in legislation.
Bill 13 would also amend the Education Act to include a section identifying the purpose of Part XIII of the Act, which is the discipline section. The provision includes a statement that the purpose of the discipline provisions is "to encourage a positive school climate and prevent inappropriate behaviour, including bullying , sexual assault, gender based violence and incidents based on homophobia." Is it necessary to identify specific inappropriate behaviour? The list could go on (perhaps forever) to include, for example, incidents based on racism - is it not sufficient to say "inappropriate behaviour"?
One aspect of the legislation that has not received any media attention is language that is being added to identify that any of the behaviours subject to suspension should also be subject to expulsion as discipline if they are hate motivated. The legislation identifies some specific types of motivation, but then includes “any similar factor”. It would be preferable to make it clear that targeting an individual as a result of “any immutable characteristic” is not to be tolerated, and many school boards have already included such language in their discipline policies and procedures as a result of the legislative changes required by Bill 157.
In fact, one could argue that Bill 13 is in many ways redundant, as bullying, harassment and other forms of inappropriate behaviour were addressed by school boards in policies and procedures in detail following the passage of Bill 157. There might be reason to be concerned that, rather than ensuring that there is sufficient time and money to provide teachers and administrators with training to enable them to identify, prevent and get professional social work and psychological support for students who are subject to such behaviours, the Government is simply passing legislation to give the impression that these issues are being addressed.
Welcome to Miller Thomson's inaugural Education Law Blog.
We intend this forum to provide an opportunity to raise current issues in education law. We anticipate that there will be no shortage of content.
Our first blog follows the introduction of two bills in the Legislature that attempt to address bullying in schools.
There is no doubt that bullying is a concern to parents, students and those working in the education sector. Similarly, most individuals would agree that issues of bullying need to be addressed.
But, we would like to ask whether legislation is the most effective way to stop bullying. Educators are aware that to address the problems of bullying schools must have bullying prevention programs, consequences for perpetrators and support for victims. Will additional legislation effect real change? Does the implementaiton of legislative requirements divert necessary resources from those who require them most - students?
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