“Progressive Discipline” ousts “Safe Schools”
By Janina Fogels
The Education Amendment Act (Progressive Discipline and School Safety), 2007 will come into force on February 1, 2008.
The new legislation is the end result of the so-called “Safe Schools Action Team”, appointed by the McGuinty government in December 2004. The Action Team was tasked with gathering and reviewing data and trends associated with student suspension and expulsion right across the province. The Ministry of Education was interested in discovering the impact of the Harris government’s Safe Schools Act, 2000. As many readers will know, this prior regime focussed on zero-tolerance policies and strict disciplinary measures. Many critics said that it failed to address the causes of anti-social and violent behaviour by students. Legal proceedings were even initiated at the Ontario Human Rights Commission, which viewed the Safe Schools Act as having a disproportional impact on racialized students and students with disabilities. A number of complaints were settled with the Ministry of Education agreeing, in part, to continue this review of the Act.
By way of background, during the 2000-2001 academic year, just prior to when the Safe Schools Act was implemented locally, it is reported that 113,778 Ontario students were suspended and a further 106 students were expelled. However, suspensions and expulsions spiked in the first two years after the Act was introduced. By the third year, in 2003-2004, the number of suspended students was 152,626 and the number of expelled students was 1,909. However, when the Ontario government released data on school discipline in November 2005, it also reported that the most recent trend in 2002 to 2003 showed a reduction of eight per cent in the number of suspensions.(1)
The Safe Schools Action Team issued a final report in June 2006. The McGuinty government then introduced Bill 212, An Act to Amend the Education Act in respect of behaviour, discipline and safety (“Bill 212"), which its first reading April 17, 2007. Bill 212 received Royal Assent about two months later, on June 4, 2007. It repeals sections 306 through 311 of the Education Act, replacing them with new provisions that substantially alter Part XIII of the Act with respect to the suspension and expulsion of pupils.
The following changes to the disciplinary process in schools are the most notable:
- Principals, not teachers, are responsible for suspending students and making recommendations to the Board for expulsion;
- Individually-tailored penalties replace cookie-cutter punishment in that principals must now exercise discretion, taking into account the circumstances of the student and mitigating factors prior to imposing suspensions or expulsions;
- “Bullying” is now on the list of infractions which may lead to suspension;
- Conduct that takes place outside of school but impacts the “school climate” may lead to expulsion or suspension;
- Suspended or expelled students must be provided with programs in accordance with policies or guidelines issued by the Minister; and,
- Students now enjoy broader procedural rights, including appeal rights challenging suspensions and expulsions.
Commentary
The forthcoming changes to the disciplinary process in schools appear to be responsive to the concerns members have raised over the years, specifically concerning their responsibility and liability in the suspension process, the importance of life skills programming for disciplined students, and the inclusion of bullying as a behaviour that triggers serious consequences.
We see the inclusion of bullying as an extremely positive development, especially considering that surveys have documented a growing problem vis-a-vis aggressive, disruptive and violent behaviour against teachers by students. The bullying of teachers, of course, has negative effects on the classroom and as well as adverse personal impact on individual members. We note that bullying is not defined in the Act. It may be further defined by regulation in the very near future. Current bullying-related case law does not require a power imbalance in the assessment of bullying behaviour. Should the definition end up including the concept of power imbalance, it will be under-inclusive of many instances of bullying where students may gang up on a teacher or other administrative employees. The power imbalance criterion, if accepted, may prevent cases from falling into the definition.
At the same time, it is hoped that cyber-bullying of teachers on the internet could be caught by the inclusion of “bullying” in s.306, targeting student actions such as manipulation of images and posting of defamatory commentary about teachers on websites like Facebook. This looks to be especially likely considering the language in s.306(1) and s.310(1): the impugned activity does not have to take place at school per se. The activity must merely have “an impact on the school climate”.
Finally, we welcome this legislation in light of the fact that teachers will no longer attract risk or legal liability with respect to this kind of discipline. Instead, the power to suspend will shift to the principals and school boards, in accordance with their overall responsibility to manage the schools.
- Ministry of Education, “McGuinty Government Releases Data on School Discipline”, 23 November 2005, online: http://ogov.newswire.ca/ontario/GPOE/2005/11/23/ c8925.html?lmatch=&lang=_e.html