Overview

This text provides a legal perspective on two important education issues: attendance and discipline. Each issue is introduced, placed in its consitiutional context, and explained in clear terms. With respect to attendance, the author canvasses the various provincial statutes dealing with truancy and alternative education and provides a review of relevant Canadian and US caselaw. In the discipline section, issues addressed include violence in schools, the Young Offenders Act, confidentiality rights, and due process requirements.

TopContent Summary

• Attendance Rights and Responsibilities
  
• Enforcing School Rules in the Context of Individual Rights
  
• Discipline: Authority and Due Process
  
• Index

   

TopPreface

Student Rights and Responsibilities: Attendance and Discipline follows in the footsteps of Wayne MacKay's 1984 text Education Law in Canada. It attempts to provide, on a national basis, an analysis of attendance and discipline issues that school administrators deal with every day. It is clear from the number of cases that attendance and discipline are areas of expanding challenge by parents. Through its analysis of statutes and cases, the book attempts to provide practical guidelines and suggestions that will be of assistance to educators. It can also help parents and students understand the applicable principles of education law and how administrators might react in a given situation.

The analysis of issues on a national basis points out the differences between the various jurisdictions in Canada. These differences reflect the division of responsibilities within Canada's constitutional framework, under which the provinces have jurisdiction over education. On some issues there is relative consistency; on others there is significant discrepancy. The similarities and differences are simultaneously fascinating and frustrating — fascinating from a legal perspective, frustrating for administrators attempting to apply legal principles to practical problems. Educators in one jurisdiction must be wary of using statutes or precedents from another, because the legislation may well be quite different and the case law not applicable. To avoid any uncertainty, where the principles under discussion are of general application, I say so, and I point out differences to enable educators to refer to statutes and case law applicable to their own jurisdiction.

In dealing with each legal issue surrounding attendance and discipline, I trace the development of the common law and explain the statutory requirements. I also consider various human rights standards that bear on issues. Since the inception of human rights legislation and the Charter in 1982, the amount of case law has grown dramatically, and the fact that many US courts are struggling with many similar issues only increases the complexity of the legal picture in Canada. The evolution of the concept of in loco parentis, particularly in the area of corporal punishment, provides considerable insight into how the law must adapt to meet changing societal expectations.

There are many misconceptions about the legal issues surrounding attendance and discipline. I attempt to correct some of these views, and to point out the consistent approaches of the courts to these issues. With respect to the fundamental human rights of individual students, for example, the courts consistently balance such rights against both the school's obligation to maintain order and the rights of other students. The courts have also consistently shown deference to the decisions of education administrators, although even this deference must be balanced against individual human rights. I demonstrate the application of these principles and the approach of the courts to attendance and discipline issues.

The human realities of case law are often overlooked. More and more, students and parents will pursue legal issues through the courts, often to the highest court in the land, and this dedication to a cause may be disconcerting to school administrators whose conduct or policies are being challenged. Once the parties are in court, personalities can come into play in unexpected ways. The judge, for example, may be sympathetic to the plight of the parents in a particular case, but may feel bound by precedent, and the decision reached in the case may not provide any substantive precedential value. I note a number of cases throughout the book where a question can be raised about the approach of a particular judge. It is important to look past these individual quirks and discern the principles that can assist educators in making decisions on a day-to-day basis.

There are also personal reasons for writing this book. As a practitioner, I encounter many of the issues discussed in the cases on a daily basis. Educators require assistance and guidance on complex issues, and parents need to be provided with answers to their questions in a timely manner. Writing this book has provided me with insight into the myriad issues faced by educators and parents, and better equipped me to offer them advice. It has also given me the opportunity to enrich, and to be enriched by, professional development sessions with education administrators.

When all is said and done, it is my hope that this book will be of some assistance to both parents and educators in dealing with the complex issues surrounding attendance and discipline.

Robert G. Keel

TopTable of Contents

Preface

Acknowledgments

Table of Cases

1  Introduction

The National Perspective

The International Setting

2  Attendance Rights and Responsibilities

The Right To Attend School/The Duty To Attend: The Constitutional Perspective

Statutory Student Obligations

Truancy Enforcement

Alternative Education

Alternative Education Legislation

Constitutional and Attendance Cases: The US Experience

Summary

Appendix

3  Enforcing School Rules in the Context of Individual Rights

The Constitutional Context

Violence in Schools

Weapons in Schools

Involving the Police

Young Offenders Act

Criminal Code

Statutory Duty to Maintain Order and Discipline

Students' Statutory Obligations

Confidentiality

Fundamental Student Rights

Human Rights and Corporal Punishment

Privacy Rights

Participation: The Charter and Human Rights Codes

Summary

4  Discipline: Authority and Due Process

Judicial Review

Applicable Principles

Process for Challenge

Nature of Decision and Procedural Fairness

Corporal Punishment

Expulsion and Readmission

Expulsion in the Private School Setting

Expulsion and Due Process: The US Perspective

Suspension from School

Offsite Conduct

Exclusion from School

Exclusion and Suspension in Sports

Restricting Privileges

Summary

5  Conclusion

Index