While Bill 13 and Bill 14, regarding bullying, are being considered in the Legislature by the Standing Committee on Social Policy, an Islamic Sunday school using space in a Toronto District School Board school has been accused of anti-Semitic teachings.
The press has reported that the Toronto District School Board has indicated that it will make a decision regarding whether or not to allow the Sunday school to continue to use space once the police investigation is complete.
Bill 13, if passed in its current form, would require school boards entering into an agreement with any other entity for the use of school space to “include in the agreement a requirement that the person or entity follow standards that are consistent with the code of conduct.”
Could this requirement to follow standards consistent with a code of conduct infringe on rights of freedom of speech? Arguably, there will be competing rights, for example religion and gender equality.
Interestingly, Bill 13 does not require the entity to follow the school board’s code of conduct per say, but only to follow standards that are consistent with the school board’s code of conduct. Perhaps this language is intended to assist with competing rights, but use of the word ‘consistent’ could make it more difficult for school boards to make a determination about the use of their space as they are forced to become arbitrators of what qualifies as consistent.
It may be easy enough for school boards to include language into their Community Use of Schools policies, procedures and agreements, but school boards will also need to consider a process for addressing concerns, one that allows complaints, is procedurally fair, but not too complicated or onerous. Given that many school boards have hundreds of agreements for the community’s use of their schools, adjudicating issues could become difficult.
Recently, Bills 13 and 14, both of which are with respect to bullying, were referred to committee after second reading in the Ontario legislature.
We have previously commented on Bill 13, tabled by the Liberal Government, and Bill 14, put forward by the Conservatives. We offered our opinion that legislation regarding bullying may be unnecessary because the Education Act and the Ministry of Education's Policy Program Memoranda 144, Bullying Prevention and Intervention already address bullying.
Now that both Bills have been referred to committee and additional legislation regarding bullying is likely, we hope that the best features of both pieces of legislation are incorporated into a Bill.
To be effective, it is important for additional legislation to be accompanied by funding for programs, which assist both victims of bullying and bullied students. It is important to recognize that programs for students require both a financial and social commitment. A financial commitment is necessary because allocating Social Workers or Child and Youth Workers to programs to assist victims and bullies requires additional staff. Training for teaching and EA staff to address bullying also has a cost because staff must be replaced in the classroom during training. A social commitment is necessary to bring about real change because parents and community members must be involved. Parents of bullies need to support the efforts of the school, and schools rely on the parents of victims to assist them to identify when bullying has occurred. As a community, we need to understand what bullying is and is not, so we can recognize it and can respond.
Notwithstanding these new Bills, it is worth noting that programs to address bullying are not new. The Ministry of Education’s PPM 144, Bullying Prevention and Intervention, also requires such programs. We believe that it is the individuals who implement bullying programs and create safe environments for students who make prevention and intervention efforts truly effective. While we have and continue to believe that the further legislation is not strictly necessary for bullying to be addressed, enhancements to the tools available to schools, as they attempt to combat this challenging issue, and the increase in community awareness that legislation can bring, as well as a sensitivity to the issues that can result from heightened attention, can bring about change for the students being affected. This is particularly so if the Ministry of Education assists school boards to invest time, energy and money in more programs for victims and perpetrators.
Committee hearings will be held regarding the Bills until the end of May, when we anticipate that one Bill with features from both Bill 13 and Bill 14 will emerge, just in time for school boards to amend policies and procedures to be compliant with the legislation for September 2012.
We will keep you aprised of the progress that is made.
Recently, there has been news coverage regarding false allegations of abuse being made about teachers. There has been speculation by some that false allegations are on the rise and that there are a greater number of false allegations made about male teachers than female teachers.
The over reporting of teachers, if this is the case, must be contrast to the concern with under reporting detailed in Protecting Our Students, by Justice Sydney Robins, 2000. The report of the Inquiry led by Justice Robins described the failure to report a teacher who had sexually abused students over many years in many different schools, and uncovered a culture of under-reporting of sexual misconduct perpetrated by teachers.
In accordance with the Child and Family Services Act, an individual who is informed about an allegation of abuse, whether it be physical, sexual or emotional, must report that allegation to their local Children’s Aid Society for investigation. In many cases, it is difficult to know whether or not an allegation meets the threshold for abuse; in such cases, school board staff members are told to either consult with CAS to receive direction or to report. Erring on the side of caution is advised. The failure to report an allegation to the CAS might leave a child in need of protection.
School boards must also ensure that staff members are aware of their duty to report and that they understand what must be reported. Although the legislation makes each individual who suspects that a child may be in need of protection responsible for making a report to the CAS, that does not preclude the individual from consulting with a staff member or the CAS to determine whether or not the allegation merits a report to the CAS for investigation.
It is important that school boards have a process to ensure that, when reports are made to the CAS, they are subsequently investigated by the school board fairly, thoroughly and quickly to ensure that those teachers who are fit to return to the classroom may do so. Similarly, in cases where it has been determined by the school board that discipline is appropriate, the process for imposing discipline should be fair; the reasons for the discipline should be transparent; and the discipline should be imposed within a reasonable timeframe.
Boards therefore must balance a number of competing interests. Failure by school boards to act fairly and expediently may result in a grievance by the teacher. If, as suggested in the media, more male teachers are suspected of abuse, there might also be grounds for that teacher to bring a Human Rights Application if they believe that there is a causal connection between their gender and the report to CAS. Moreover, school boards risk civil litigation by families, if a school board employee fails to report and a child is determined to have been in need of protection.
More significant, however, are the circumstances in which a student victim of abuse has no one to speak for them.
A New-Brunswick school has assigned a full-time attendant to watch over a 12-year-old boy who was being bullied at school.
In this instance it seems the child was the subject of severe bullying, both physical as well as verbal, due to fact that he is gay and overweight. In November 2011 the child was removed from school before he returned on a part time basis in February 2012 and full time after March Break of that same year. As part of his return to school his parents requested that he be provided with an attendant.
The child was provided with a full time attendant who was to be with the child at all times and, effectively, act as a body guard. The school believed he would be able to guide the child in stressful or threatening situations.
There are a number of questions that must be asked in this situation and first and foremost is whether the presence of a full time attendant will be beneficial to the child. Despite having been the one to initiate the request, the boy’s parents now say that having an attendant constantly with their child has had the effect of further deteriorating the situation.
Either way this is a significant precedent and
is a clear signal as to the lengths to which a school is willing to go to
address instances of serious bullying. This
is a clear response against bullying, but does the extreme to which the school
is willing to go to protect bullying victims constitute an adequate response to
the problem of bullying.
Several
commentators interviewed for the article commented on the pedagogical issues
with providing a body guard/ babysitter.
We must hope that this constitutes an isolated incident and not the start of an expectation that will see more bullied students accompanied by their own attendants. This level of service could create a precedent for other school boards, one which could not realistically be met, opening up boards to more litigation.
Bill C-11 An Act to Amend the Copyright Act, known
in its short form as the ‘Copyright Modernization Act’, is now going to the
House of Commons for its Third Reading, and could be enacted as law as early as
June, 2012.
For school boards, key
advantages of this Act will include the ability to:
- use copyrighted materials for the purpose of education, provided such use is "fair", that is, does not unduly threaten the interests of the copyright owner;
- use publicly available material on the
Internet, provided it is for educational purposes, and has been posted by the
copyright owners without expectation of compensation;
- share lessons that include copyrighted
sections over the Internet;
-
digitally transmit copyrighted course
material to students online, subject to fair compensation for the copyright
holders;
- show films or recordings of broadcasts for
educational purposes;
- record a news program or a news commentary
program (excluding documentaries) in order to replay in class.
Intellectual
property laws typically attempt to balance the need to compensate the producer
with ensuring reasonable access to the user, while trying to keep pace with unauthorized
practices which technological advances inevitably facilitate. Whether the right balance has been struck here
remains to be seen. We must hope that
its enactment will not give schools a short term cost advantage at the expense
of long term availability of quality Canadian content.
The Ontario budget and recently released GSNs had few surprises for school boards, particularly in the wake of the Drummond Report’s recommendations.
The funding proposed will impact operational decisions and perhaps some policy decisions that school boards will be making. There will also be an impact on bargaining between school boards and their unions, as the Province has only identified funding in the GSNs consistent with its position with the unions. These however, are not surprising. But, the talk of school board amalgamations was unexpected.
The Ministry of Education has not yet identified its plans for these amalgamations. But it is not anticipated that any Catholic and public school boards would be amalgamated, nor is it anticipated that any French language and English language school boards would be amalgamated.
Those who remember the significant amalgamations of the late 1990s, will be familiar with the disruption and many operational and legal issues that resulted. These issues had a significant impact on some school boards. There were also financial costs to amalgamation, despite the goal of creating lasting efficiencies and savings.
For those school boards that might be identified for amalgamation, this may be a very unstable and troubling period, because it will be occurring at the same time that school boards are anticipated to be negotiating with their local unions, given that Provincial talks and PDT agreements are now less likely. School boards may also have to address significant legal issues resulting from the need to harmonize collective agreements, operational issues and policies and procedures.
The changes could be many, or few.Alberta’s Education Minister recently announced a pilot project reinstituting the concept of the school nurse.
Currently in Ontario, nursing services are provided by the Ministry of Health through Community Care Access Centers to students who require such medical assistance to attend school. Pursuant to this process nurses attend intermittently during the school day, except in the most severe cases when they are needed constantly.
While the concept of the school nurse was once common (the author remembers a nurse’s room in her elementary school), the itinerant CCAC model has been predominant for some time, despite the increasing complexity of student medical profiles. Modern medicine has enabled students, who in the past might not have been able to attend school, to be active participants in school, provided that they have access to the medications and other medical services that they require.
The current model in Ontario however, limits access to school nurses to only those students who cannot be serviced by Educational Assistants or other staff. In recent years, school boards have also had complaints from parents that, due to CCAC spending priorities, they are required to provide for their child’s medical needs while their child is in school.
In Alberta, the pilot project is expected to provide nurses to assist teachers to instruct students about health, nutrition and sex education. The Education Minister in Alberta also indicated that nurses could be a tool to assist with issues regarding bullying.
Specific plans for the Alberta pilot project have not yet been announced. It will be interesting to see whether or not having a school nurse available in the school reduces costs and increases student health and well-being. Perhaps Ontario should follow Alberta’s lead and try a pilot project of its own.
Apple’s unveiling of Apple’s iBooks 2 on January 19, 2012 prompted me to begin this particular series of posts with a reference to Smart boards. The availability of the new iPad app, allowing any iPad user to download interactive, 3-d, ‘flippable’ images, was launched with the press release statement that the “iPad may be our most exciting education product yet”. The introduction of widescreen portable smart boards for the classroom was heralded with much of the same fanfare a few years ago, and unquestionably did represent a similar kind of monumental shift in the capacity to deliver a wealth of information in a variety of engaging ways. However, with the launch of iBooks 2, and the anticipation that a new version of the iPad is not far behind, focus has shifted from what can be taught from the front of the classroom to what can be offered at each individual desk.
We have spoken before in this Blog, and will again, about equity of opportunity in education. Now a few years into the introduction of Smart Boards, we could map their distribution across the province and probably find considerable overlap with a map of wealth distribution. School communities with a strong fundraising base have been able go beyond the restrictions of board allocated budgets and supplement what can be made available. At least where a school has been able to do so, everyone in the class has benefitted equally, because once purchased, a Smart Board can be accessed by everyone in the room.
The use of the iPad as a learning platform offers a wealth of potential, for all those “I’s” who have a “Pad”, but may create a learning deficit for those who do not. Unfortunately, without significant policy direction coupled with financial resources, it is easy to imagine that the distribution pattern will not be unlike that of the Smart Board, only in additional to inequities between schools, we could also see inequities within schools and even within classrooms. Notwithstanding talk of “pilot projects”, corporate funding and all the money saved by not printing textbooks, school boards are a long way from being able to sustainably deliver this kind of initiative in manner that is equitable for all students.
We recently saw the release of a report on the First Nations education system, which pointed to the significant underfunding and poor outcomes in aboriginal education. Many First Nations schools are located in remote areas where, in addition to their numerous other challenges, they lack effective and/or affordable access to the internet. Apple would like us to agree that the iPad and iBooks are game changers. The work of the National Panel on First Nations Elementary and Secondary Education begs the question whether the focus should be on “leveling the playing field” before “changing the game”.
The Ministry of Education’s Equity and Inclusive Education Strategy includes socio-economic status as an essential pillar, and mandates that all boards not only have their own equity and inclusive education policy addressing this and other barriers to success, but that they align all other boards policies, procedures, guidelines and practices in accordance with these principles.
In addressing these and other imperatives, system leaders will be balancing the need to keep their students engaged, their teachers trained, and at the same time adhere to collective agreements, an Education Act which precludes charging for access to a public education, Ministry of Education guidelines which place limits on corporate donations and fundraising initiatives which increase operating costs, and policies that mandate transparent but time-consuming purchasing processes.
Creating system capacity to respond to those playing “catch-up” while balancing the enthusiasm of those eager to “reach ahead” will continue to challenge policy makers in this year which has begun with the Drummond Report’s recommendations for system-wide fiscal restraint.
It would appear that parents are willing to seek judicial review to have their child remain in a particular school, even when it might not be safe.
That was the situation resulting in a January 3, 2012 decision of the Divisional Court regarding a Peel District School Board family. The parent of two elementary aged students had received threatening emails from a computer in their child’s elementary school, which also threatened the students. Following an inconclusive investigation, which involved police, the principal and senior administration made the decision to move the students to another school. The parents sought an injunction to keep their children at the school, despite the safety issue.
While there have been cases in the past where parents have sought to have their child attend a particular school, I am not aware of any cases where they did so in the face of such a safety concern.
Generally the Ontario Courts have accepted that a school board’s students do not have a right to attend a particular school and that school boards have the right to place students at a school that they deem appropriate.
The Court upheld the decision of the Board to move the children as being “reasonable” - the standard of review for the decision made. The Divisional Court’s application of the standard of reasonableness supports the position of school boards that they have expertise in educating children and their decisions should receive some deference from the Courts.
This decision also highlights the significance of students attending their local school. Many parents feel that it is a right to attend their local school, even in circumstances when it is not appropriate. The elevation of a desire to attend a local school to a “right” in the minds of parents means that decisions to move students that are initiated by school boards must be done very carefully and in circumstances where there are reasonable programming or safety grounds to require such a move.
The decision also supports the impression, which many educators express, that parents are becoming increasinly litigious. Certainly, the number of human rights applications that parents are brining would support such a conclusion. This impression may be impacting the decisions made or the interactions that take place between administrators and parents.
Providing administrators with updated professional development about the law in the education sectors so that they can appreciate the various legal issues that they might encounter as principals is one method of reducing communication issues between administrators and parents as well as reducing the anxiety level of administrators in the age of increasinly litigious parents.
In my last Blog I commented on the recent pronouncement by Apple that the new iBooks 2 textbook app will revolutionize how and what students can learn. There is no question that this and other new means of accessing information, communicating, and expressing creativity are transformative in ways we have yet to fully appreciate. My theme in commenting on innovations which understandably excite and inspire, is that while many young learners seem to have the capacity to almost organically absorb each new and improved product, large organizations unfortunately lag in comparison. It is not simply cultural conservatism, but rather certain structural and legal restrictions, which result in a cautious institutional approach.
As an example, in my last posting I referenced the need for adequate teacher training as a necessary component to any effective change in curriculum delivery. Another challenge for educators is that public bodies such as boards of education are required to make decisions using due process, which necessitates open and transparent decision-making. For example, the recent Broader Public Sector Procurement Directive imposes a detailed regime for the purchasing of goods and services, codifying ways in which public bodies must spend public funds such that the process can withstand public scrutiny.
However, as anyone with any experience with the legal system will readily acknowledge, due process proceeds far more slowly than a decision which can be made by an individual applying only their own discretion. Under the Procurement Directive, boards must segregate procurement roles, establish evaluation criteria, to be applied by an evaluation team, respect mandatory minimum timelines for posting notices and receiving responses, and be prepared to meet and debrief with unsuccessful bidders.
These requirements are designed to protect the taxpayer against imprudent or unfair purchasing practices, rather than to facilitate quick responses that can keep pace with the rate at which technological upgrades are becoming available. Tech savvy enthusiasts urge school boards to resource classrooms in such a way that the students are not dismissive of the technology, or lack thereof. However, in a climate of belt tightening and budget contractions, we may see a growing gap between what’s commercially available and what is realistically attainable in the public education system.
In my next blog I will discuss inequities in accessibility to technology, between and amongst regions, boards and individual students, which may be widening in ways that will prove very difficult to overcome.
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.