Moral And Legal Issues In Education

In Education, there are many groups that have legal rights and responsibilities. Students, Teachers, Principals and School Boards each have different laws that protect them, and laws that make them responsible. This handbook has been put together to inform you on some of these laws. Suppose that in your class one day, based on information from one student, your teacher searches the property and person of a student and throws them out of your class, even when they find nothing. What are the rights and responsiblities of the student? The teacher? Where do the Principal and the School Board come in on this matter? We have taken a look at the Legal and Moral issues that surround these four groups, basing them on this situation, and beyond.

Teachers and the Law Duty of Care Warrants and Searches Suspension

Legal and Moral Relationship Activity Supervision Child Abuse

Duty of Care Teachers are a special section of society. They are responsible for the education of society's youth. They are also responsible for ensuring that the students within their care are found within the most positive, safe and encouraging learning environment possible. If they cannot secure this, then teachers can be sued for negligence. They have a duty of care towards their students, and if this is betrayed, then teachers have a responsibility to face the consequences. Teachers have a need for information in their classroom. They have to be fully aware of all learning, behavioral and medical problems that could occur and are responsible to be trained to deal with anything that may occur. From this, they need to be aware of any medications that may be needed during the day and how to administer them, as well as any support services that a student may be availing of. Teachers are responsible to all students equally - while one student or another might avail of their attention more often, a teacher is responsible for them no more or less than they are responsible for students who do not require their attention. If a teacher does not act accordingly to all students, then their duty of care and their responsibilities to all have been infringed upon, and the school authorities are responsible for dealing with this1. A teacher has responsibilities to their students and the families of these students. Teachers are required to protect and care for their students as the parents of these students would. They have a duty of care owed to their students, that was described by a Supreme Court Judge in 1968 as that which .." the careful father of a large family owes his children"..2 The standing of "in loco parentis" has been applied to teachers - they have the rights and responsibilities of a parent while the student in under their care. This is a comparison only, as it is superseded somewhat by the fact that teachers are government workers. However, in some areas, this comparison of teacher to reasonable parent exists and is the 'norm'. The Supreme Court has used this basis to make rulings on cases involving Teachers and their Students, and parents have grown to expect that when they drop their children off at school, they are being looked after with care and concern. Top

Warrants and Searches From this, teachers have many legal and moral rights and responsibilities. One of these is the right to conduct warrantless searches. Teachers are the only professional groups with this right police officers, for example, do not have this right. The Supreme Court made this ruling in November 27th, 1998. With the ruling, Mr. Justice Peter Cory wrote: "Teachers and Principals must be able to react quickly and effectively to problems that arise in school, to protect their students and to provide the orderly atmosphere required for learning.".. 3 It is recognized by the courts that teachers and students have a special relationship - one that is not unlike that of parents and children. Teachers must be able to protect their students from dangers and need to be able to do whatever it takes to provide a safe school environment, while maintaining order and discipline in their school. Top Suspension Teachers also have the right to suspend students from their class, for that class period, if they consider the suspension warranted. The 1997 School Act states: ..." a teacher may suspend a student from a class period in accordance with the by-laws of the Board". A teacher is required to report such a suspension to the principal "as soon as practicable, but in any event before the end of that school day" [S.36(2)]. Teachers should ensure that they make themselves aware of any School Board by-laws and Board or school policies respecting such "class suspension."..4 This is another way that teachers can foster the learning environment for all of their students, by removing the person who is causing problems in the classroom and distracting from any learning that might be taking place. Top Legal and Moral Relationship Yet with these rights, what responsibilities to Teachers have towards their students? Teachers have the responsibility to foster a relationship of trust - while they have the rights of a parental figure, they must also try to encourage the relationship that a child would have with this parental figure. Teachers are responsible legally and morally for their student's well-being and care. They are responsible to ensure that every student in their care receives a quality education. According to the NLTA Code of Ethics,: ..." Teacher -Student (i) A teacher's first professional responsibility is to the enhancement of the quality of education provided to the pupils in his/her charge (vi)A teacher accepts that the intellectual, moral, physical and social welfare of his/her pupils is the chief aim and end of education (vii) A teacher recognizes that a privileged relationship exists between the

teacher and his/her pupils and shall never exploit this relationship... Teacher-Parent (i) A teacher seeks to establish friendly and cooperative relationships with the home and to provide parents with information that will serve the best interests of their children...5 Top Activity Supervision Teachers also have the responsibility to protect their students if they are aware that any harm might come to them. If a teacher could have reasonably foreseen an event and did not act on it, then they are legally liable for the damages that occurred. For example, if a teacher knows that two of their students are planning to gang up on a third, they are legally responsible for any damages that may ensue, as they were aware before the fact of what was going to happen. However, had the teacher not been aware of the plan of the two students, they could not be held responsible for the damages. Teachers also have a responsibility towards students that they are supervising in activities. In the 1968 case 'Mckay v. Board of Govan School Unit No. 29' several precedents were set for teachers, regarding supervision of our of class activities. They include: 1. For activities which pose inherent risks, there should be sufficient, progressive instruction, demonstration and supervision 2. Instructors should be qualified in the activities over which they take charge 3. The administration of a school takes on responsibility for activities which it approves .6 Teachers have a responsibility towards their students to ensure that they are prepared and able to handle any problems that may occur when they are supervising an activity. If an activity requires special training or expertise, the teacher has a responsibility to ensure that they have this expertise - otherwise it could prove hazardous for the students involved. Top Child Abuse A teacher has the responsibility, by law, to report any suspicions of abuse. Section of Section 15 of the Child, Youth and Family Services Act mandates: .."that any person who has information that makes them believe a child is or may be in need of protective intervention shall immediately report the matter to a director, social worker, or a peace officer. ..A teacher involved in such situations is protected under the Act from civil liability unless the report was made "maliciously or without reasonable cause.. It must be stressed that responsibility for reporting the suspicion of child maltreatment to Child Protection authorities rests with any person who performs professional or official duties with respect to a child and who has reasonable grounds to suspect the abuse..".. 7 From this it can be taken that teachers are responsible for reporting any child abuse that they suspect. They have a responsibility past simply informing the principal of their school - teachers are responsible for reporting the abuse to a delegate of the Health and Community services.

However, after they have reported this abuse, they are not permitted to contact the parents in regards interviews with the child that may occur on this matter - the responsibility has now shifted to the Health and Community delegate. The rights and responsibilities that teachers have towards their students make the job of teaching one that is fraught with worries and concerns - 'am I looking out for the interests of all my students?', 'Do my students trust me?', 'Am I acting correctly and fairly towards the interests of all?'. However, from all of these concerns, a satisfaction can be formed, where teachers recognize that their actions are forming a positive and encouraging learning environment for all students - one where the students are safe and learning. To quote John Fischer .."The essence of our effort to see that every child has a chance must be to assure each an equal opportunity, not to become equal, but to become different - to realize whatever unique potential of mind, body, and spirit he or she possesses."..

Issues Concerning Students’ Rights and Responsibilities Maintaining Order The Charter of Rights and Freedoms Search and seizure without a warrant

Discipline Suspension and Expulsion Democratic Practice

The compulsory nature of schooling is a sensible place to begin any discussion of the rights and responsibilities of students and their parents. Compulsory schooling works in both directions. Legislation compels provinces to provide a space in school for every child of a certain age and all children of a certain age are compelled to attend school. The history of compulsory schooling goes back to the nineteenth century when the ruling classes decided that children must attend schools to learn the values and behaviors that would allow them to function as productive members of society. Today, provincial legislations require that all children must attend an accredited school until a particular age, usually 16, at which time they are free to leave. With respect to a student’s right to an education, the picture is less clear. Some provinces acknowledge the right of children to an education while most simply refer to the right of children to attend schools. The distinction is important because “right to access” means only that the province is required to provide access to schools without having any legal obligation to ensure that the student actually benefits from the experience. It also means that students can not demand alternative forms of education that might be more effective for them. Students and parents do have the right to access private schools and to practice home schooling as long as they meet or approximate the provincial standards. Maintaining Order in the Schools The nature of compulsory schooling has meant that schools have particular rights and responsibilities with respect to maintaining order and safety. Over the years, the courts have consistently upheld the rights of schools to limit the freedom of students in order to ensure that schools are safe and orderly places. These limitations include the right to search and seizure, the limitation of students’ freedom of speech and assembly as well as the right to make rules and impose punishment. But recent rulings have stressed the requirement that schools be able to justify their policies and that they treat students respectfully as persons. “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.” (Levin, p.125) In other words, while schools have maintained their right to limit the freedom of students, they are more likely to be held accountable for showing that their actions were reasonable and directly related to the issues of order and safety. Top The Charter of Rights and Freedoms Much of the thrust for this new attitude in the courts is a result of the Charter of Rights and Freedoms which was brought to bear on the law when the constitution was repatriated in 1982. The Charter outlines the rights and freedoms that all Canadians possess and it functions by allowing courts to strike down laws that contravene Charter rights. There are however, some limitations placed on the protection of rights by the Charter . The Charter applies only to the laws and acts of governments and government agencies (this includes all legislation that controls schools). Also, 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 the case of students’ rights, courts applying the Charter have consistently upheld that it is reasonable and justifiable for schools to be able to limit those rights, but only to an extent that is necessary to maintain student and teacher safety and to ensure the education of all citizens. Top Search and Seizure Without a Warrant The ability of teachers and principles to search student’s persons, bags and lockers without a warrant is one issue that has recently received the full Charter treatment at the Supreme Court of Canada. In an 8 to 1 majority decision, the Supreme Court ruled that education authorities must be allowed to conduct warrantless searches despite the fact that protection against such search and seizure is a right given by the Charter . The Court stated that “a reasonable expectation of privacy . . . is lower for a student attending school than it would be in other circumstances. . . a different standard should be applied to searches by school authorities.” In commenting on the role of schools in society the Court went on to state: “In order to teach, school officials must provide an atmosphere that encourages learning. During the school day, they must protect and teach our children. In no small way teachers and principals are responsible for the future of the country.” The Court also stated that with respect to warrantless searches, they should be conducted “in a sensitive manner and be minimally intrusive.” (Globe and Mail: Nov. 28, 1998) Top Discipline With respect to discipline, schools still benefit from the right to impose rules and punishment on students from provincial legislation and the principle of in loco parentis. However, in this area as well “reasonable provisions consistent with the Charter and with natural justice will gradually come to be standard in schools. (Levin, p.126) In the case of corporal punishment the Criminal Code allows the use of force by teachers for purposes of “correction” as long as the use of force is reasonable. Changing social values are redefining what is reasonable and there is speculation that the use of the strap and other forms of corporal punishment would be considered in violation of the Charter's prohibition against “cruel and unusual punishment” but this has not been tested yet. Generally the courts have protected teachers’ right to use reasonable force against students and the greatest diminishment of that power has come from school policies in response to public opinion.

Top Suspension and Expulsion When it comes to forcing a student out of school, most provincial legislation gives students the right to due process when faced with expulsion. This can include formal hearings and appeals. In the past schools have enjoyed almost total freedom to suspend a student for any reason the school deems sufficient. It is likely that the Charter will limit schools’ ability to suspend at will by demanding justification for the suspension on the grounds of maintaining order only. For instance, it is likely that a student who is suspended for speaking out against a school policy or for criticizing a teacher would have a good case under the Charter . Top Democratic Practice in Schools Could student governments be considered a right? The Toronto Board of Education has done so by making it part of their Student Rights Policy. Generally though, student councils in most Canadian secondary schools are heavily monitored and restricted by school administrations. Students’ rights of speech and assembly have been limited in the past as well students’ right to publish their opinions in school newspapers, to circulate certain material and to organize politically. Again, the Charter r has not been applied to these issues, but it is likely that the courts will force schools to justify their actions. The issue begs the question, what are the justifications for limiting students rights of speech, dress and actions? If we are teaching tolerance, rights and democratic principles in our schools then it is very difficult to justify any limitation of any right that is not specifically linked to safety and order.

Legal and Moral Issues in Schools: The Responsibility of the Principal Responsibilities Expulsion Attendance Appeals Records Accidents Suspension Negligance The Ontario Education Act states that a principal holds the same responsibilities as the teacher and the following: • • • • • •

The principal in responsible for proper order and discipline in the school The principal must give assiduous attention to the health and comfort of the pupils, to the cleanliness, temperature and ventilation of the school, to the care of all teaching materials and other school property, and to the condition and appearance of the school buildings. Subject to an appeal to the board, the principal may refuse to admit to school any person whose presence is the school or classroom would be detrimental to the physical or mental well being of the pupils. The principal is responsible for management of the school. The principal must provide for the care of students while not in class. The principal must report any infraction of school rules by the student to his parent or legal guardian. Top

Attendance Unless otherwise assigned to individual teachers, the principal is responsible for managing attendance problems. This includes following up on unexplained absences. Normally the principal delegates this responsibility to either the classroom teacher or the vice-principal. Top Records Principals are responsible for the security of records and also for keeping those records up to date. A student’s record is not admissible as evidence in a court case or legal matter. Top Suspension A teacher can suspend a student for one class, however the principal must be notified before the end of the school day. The principal may suspend for more than one period. The suspension may last for no more than 30 school days. The suspension can include specific class periods, courses or extra-curricular activities. However, the director of the school board may extend the suspension if the principal can show that the presence of the student would continue to jeopardize the safety of employees or other students in the school. The director may also request a medical certificate stating that the student no longer threatens the safety of the school, before the student is allowed to return. Top Expulsion Only the director of the school board can expel a student from school. The principal has a role to play in expulsion. The principal shall “warn the student (recording the date and reason), notify the parents and the Director in writing about the warning and discuss with the parent the circumstances leading to the warning. After an appropriate period of time has passed, and the student has made no attempt to correct behavior, the principal will notify the student, parents and director that he is making a recommendation for expulsion. Prior to an order for expulsion being issued, the parents or the student (if 19 yrs or older) may request to meet with the director. The director then makes issues the order to expel or not. Top Appeals

School Boards Activities before and After School School Boards Vicarious Liability Improper Equipment Educational Malpractice Transportation Facilities Suspension and Expulsion Elements of a Cause of Action Corporal Punishment Duties of School Boards Activities Before and After School The school board is legally responsible for the safety of its pupils only during school hours or during authorized out-of-school activities. If the board allows the pupils to arrive early or late, the board is legally responsible for them. It should be made very clear to parents and pupils when school or schoolyard is open because the board may be found liable for accidents that occur outside the normal school hours. Hence, when that parents and pupils are aware of the normal school hours for the school or playground, the board will not be found liable for injuries happening there. Top Vicarious Liability Despite the fact that the school boards rarely have contact with the pupils, it still can be found negligent for the injuries of the pupils. When a teacher or other employee are acting within their course of action and they are found to be negligent, the school board will be vicariously liable even though it may not have been negligent itself. Therefore, the board or its insurer pays the damages in most negligence cases. The board may seek damages from the teacher or other employee if they were found personally negligent but this is rarely done. Note however, the school board may itself be found liable for negligence and this is not the same as being vicariously liable. Top Educational Malpractice The board may be sued for “educational malpractice”. The plaintiff “will allege that he or she has suffered damages because the school board did not fulfill its duty to educate the plaintiff.” In Canadian and United States appellate courts today, malpractice claims are unsuccessful. The courts will recognize the difference between “educational malpractice” and negligence. The courts will recognize that a child who does not achieve the appropriate learning outcomes is subject to many variables that affect their ability to learn. These variables may include home environment, language barriers, and nutrition. Top Suspension/Expulsion When a child has been suspended, the principal must notify the board, along with the pupil, the pupil‘s parent or guardian, and the pupils’ teachers. The board determines the maximum length of suspension. Currently, the period for suspension is not exceeding twenty days. Only the board may expel a pupil from its schools. They may do this on the grounds that “the pupil’s presence is injurious or harmful to other pupils or persons”. An expulsion hearing must be held by the board or by a committee of at least three members of the board. The board may re-admit the pupil that has been expelled. Top Corporal Punishment Many school boards have prohibited or severely restricted the use of physical force to discipline a child. The Education Act and regulations do not prohibit corporal punishment. A school board is allowed “to pay part or all of the legal costs of a teacher, officer or other employee in successfully defending any proceeding brought against him or her ... for assault in respect of disciplinary action taken in the course of duty” according to the Education Act (s.171 (1)[18]). Top School Boards Section 170 of the Education Act provides: 8. keep the school buildings and premises in proper repair and in proper sanitary condition, provide, suitable furniture and equipment and keep it in proper repair, and protect the property of the board. 9. make provisions for insuring adequately the buildings and equipment of the board and for insuring the board and its employees and volunteers who are assigned duties by the principal