Public Schools Cannot Just “Kick Kids Out” – They Must Have A Full Expulsion Hearing It may seem obvious, but School Principals cannot expel students without actually expelling them. In Ontario, allowing children access to a publicly funded education is a fundamental value. Children should not be deprived of that education, except in extreme circumstances. To deprive a child of the ability to attend school, the principal and the Board must follow the rules and procedures for expelling students. Unfortunately, often School Principal’s take short cuts, which are illegal, to kick kids out of school. Expelling students is hard. There are lots of rules to follow and students have rights in the process. Unfortunately, principals often try to kick students out of school without actually expelling them. The law says that is not allowed. To start, principals cannot kick a student out of school because the student is difficult to teach, has challenging or complicated special needs, has difficult parents or other family members, hangs out with the wrong people or is from a bad neighbourhood. Children can only be expelled if they commit very serious offences either while at school or in an activity that is closely linked to school. Those offences are set out in section 310 of the Education Act. They are as follows: Possessing a weapon, including possessing a firearm. Using a weapon to cause or to threaten bodily harm to another person. Committing physical assault on another person that causes bodily harm requiring treatment by a medical practitioner. Committing sexual assault. Trafficking in weapons or in illegal drugs. Committing robbery. Giving alcohol to a minor. Bullying, if, the pupil has previously been suspended for engaging in bullying, and the pupil’s continuing presence in the school creates an unacceptable risk to the safety of another person. Any activity for which a student might be suspended (such a threatening to cause bodily harm, vandalism, being under the influence of alcohol or drugs or bullying) that is motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, gender identity, gender expression, or any other similar factor. Any other activity that, under a policy of a board, is an activity for which a principal must suspend a pupil If the student’s behaviour does not constitute one of the above offences or was not committed at school or can be linked to school, then neither the principal nor the School Board can expel the student. Further, before expelling a student, Ontario Regulation 474/07 requires that both a principal and school board consider whether the student’s behaviour is the result of identified special needs – especially if the school has not been accommodating those needs properly, whether the student has been a victim of bullying or harassment and what effect the discipline will have on the student’s education. These factors MAY make it impossible to expel a student. The whole process of expelling a student can be very inconvenient. It should be impossible to kick a student out of school because his or her special needs are difficult to accommodate. There are lots of students who can really irritate teachers, but who knows the rules and don’t do anything to get themselves expelled Sometimes a student is weird, or unpopular, or “different”, or does not reflect well on the school. In all these cases, the expulsion process does to work because the school has no basis in law to expel a student. In those circumstances, where a student’s actions do not allow them to be expelled, principals have taken to just giving students a “Trespass Notice” and telling them that they are not allowed to come onto school grounds anymore. Sometimes, the principal also threatens to call the police if the student tries to come to school. The principal will say that section 265(1)(m) of the Education Act gives a principal the authority to take such action. Indeed, section 265(1)(m) does give the principal of the school the authority to “refuse to admit to the school or classroom a person whose presence in the school or classroom would in the principal’s judgment be detrimental to the physical or mental well-being of the pupils.” The principal does not have to hold a hearing, or follow any set procedure before doing this. Unlike for suspensions, which can only be for 20 days, there is no time limit for how long a person can be denied admittance to the school. There are no other obligations imposed on the principal who refuses to admit someone, except to allow that person to appeal the principal’s decision to the School Board. However, there is no timeline for the hearing of such an appeal. Principals cannot use section 265(1)(m) against their students. Section 3(3) of Ontario Regulation 474/00 says that a principal cannot refuse to admit a student into a school if the student is enrolled as a pupil at that school. To be clear, it is illegal for a principal to refuse to admit a student into the school at which that student is enrolled. It is also a illegal for a principal to issue a “Trespass Notice” to a student in relation to that student’s own school. A principal cannot use a “refusal to admit” or an “exclusion” as a substitute for an expulsion. Parents of students who have been “excluded” should challenge that decision immediately, which may mean an application to the Child and Family Services Review Board. In its decision in DN v. TDSB, a case in which John Schuman was counsel for the parents and student, the Child and Family Services Review Board both commented on the illegality of a principal “excluding” a student from his or her own school, and gave parents and students recourse when a principal does that. In that case, the CFSRB decided that an “exclusion” of a student from his own school was really an expulsion and should be treated as such. For that reason, the CFSRB decided it could hear the student’s appeal of the principal’s decision as if it had been an expulsion. This is important because the CFSRB is not only an objective tribunal that is completely separate from the school board, but also, it hears appeals within 30 days while a School Board can hear an appeal of a “refusal to admit” whenever it feels like it. The CFSRB also commented that if a child is suspended for more than 20 days, the Board looses the right to expel a student. If a principal uses section 265(1)(m) to prevent a student from attending school, that student and his parents should immediately file an appeal to the Child and Family Services Review Board. The CFRSRB is a formal tribunal, with its own procedural rules, and that conducts hearings that look very similar to a trial in court, with live witnesses and legal arguments. For that reason, parents may want to consult with an education lawyer prior to starting the appeal. It may be important to do that as principals and school boards can let “exclusions” go on for months, causing a student to lose his or her year, and perhaps fall out of he education system entirely, before the matters resolved. If a school board cannot meet a child’s special needs within a particular school, including the child’s home school, the school board is allowed to move the child to a school that can better meet a student’s needs. However, the Board must go through the IPRC process to identify the student’s special needs and determine the appropriate school placement. Ontario Regulation 181/98 says parents are entitled to participate in that process… it cannot happen behind the parent’s backs. Other than that, a child can only be removed from or transferred out of a public school with the parent’s consent (or with the child’s consent when the child is old enough to give it.) Schools, school board’s and principals cannot just tell a student that he or she cannot come to school anymore. John Schuman is the education lawyer who represented the parents in DN v. TDSB (and other important education law cases like this one). He has helped get many many students back into school with the services they need. To arrange a consultation with him, at a reduced hourly rate, call 416-446-5869 or use the form below. We try to answer all inquiries promptly as we know it is important to get kids back in school. Contact with us is protected by solicitor-client privilege. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Education LawJanuary 3, 2018July 5, 2023
Service Dog Not Allowed in Elementary School Ontario’s Human Rights Tribunal has recently ruled that a 9-year-old boy with autism does not have the right to bring his service dog with him to class. This ruling marks the first legal disposition of a dispute between parents and their regional school board that began back in 2014. Their son has a certified service dog, and they wanted him to have the animal in the classroom. The parents argued that the dog was essential to their son’s education as the dog is able to control their son’s outbursts and prevents them from happening, enabling their son to suffer less distractions in the classroom. The school board, Waterloo Catholic, has rejected this argument and refused to permit the dog in the classroom. At the hearing, the school board suggested that the child was performing fine without the service animal and that its presence would not address the issues that the child was experiencing in the classroom. This is not the first time the Waterloo Catholic School Board has been challenged on its policy with respect to service dogs. In April of 2016 it was reported that a nine year old boy was prohibited from having his service animal accompany him to school. The School Board has not commented on why it has implemented a policy that restricts service dogs from coming into the classroom. The decision as to whether service dogs have the right to enter the classroom is determined by each individual school board’s own policy. Under the Guide Dog Act, guide dogs which are certified have the same rights and responsibilities as a person without a dog. This means they are allowed access where the general public is allowed access. However, while schools certainly deliver a public service, under the Education Act, schools are not considered public spaces; they lock their doors when school is in session. This means that school boards are not required under the Guide Dog Act to permit guide dogs on school property. Instead, parents look to the Human Rights Code to have the legality of the school board policy on service dogs determined. Under the Code, the school board is required to accommodate disabilities to the point of undue hardship. What constitutes accommodation to the point of undue hardship depends on the particularities of the situation, with the Code prescribing three considerations when assessing whether an accommodation would cause undue hardship: cost, outside sources of funding and health and safety requirements. No other considerations can be properly considered. To claim the undue hardship defence the organization responsible for making the accommodation has the onus of proof. The nature of the evidence required to prove undue hardship must be objective, real, direct, and if cost is a factor, quantifiable. What this means is that, as recipient of a successful ruling, the school board was able to demonstrate that its legal duty to accommodate students with disabilities does not extend to requiring the school to permit service dogs in the classroom. However, given the individuality of determinations from the Tribunal, it is still open for other situations regarding service dogs in elementary schools to receive an alternate ruling, permitting service dogs in the classroom. Devry Smith Frank LLP is a full service law firm with experienced lawyers in the areas of Education law and Human Rights litigation. If you require representation for either of these areas, please contact the education law group and human rights group today. If you require representation for any other matter, you may contact our lawyers or call our office directly at 416-449-1400 today. By: Samantha Hamilton, Student-at-Law “This article is intended to inform and entertain. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Education Law, Human Rights LawSeptember 5, 2017June 18, 2020
Do Ontario Private Elementary Schools Have to Follow the Same Laws and Standards as Public Schools? Many parents send their children to Ontario Private (or Independent) Schools because they want to make sure their child gets a “superior education.” There are many private schools that do offer excellent education or that have programs that are particularly suited to certain students. However, that is not guaranteed. When it comes to private education, especially for elementary students, Ontario is really a “buyer beware” market and parents must do their research. Parents assume that because a school operated in Ontario, it is subject to the Education Act. However, only very small parts of the Education Act apply to private elementary schools. Section 1(1) of the Education Act requires that private schools: Provide instruction any time between 9 a.m. and 4 p.m. on any school day Have five or more students; Have students of compulsory school age Provide instruction in any (but not necessarily all) of the subjects of the elementary or secondary school course of study. Beyond that, there are not many standards that apply to private elementary schools. Page 7 of the Ministry of Education’s Private Schools Policy and Procedures Manual contains the following passage: How are Private Schools Different from Publicly-Funded Schools? In Ontario, private schools operate as businesses or non-profit organizations, independently of the Ministry of Education. Private schools do not receive any funding or other financial support from the Ontario government. The Ministry does not regulate, licence, accredit or otherwise oversee the day-to-day operation of private schools. Private school operators set their own policies and procedures regarding the operation of their schools, and are not obliged to comply with the policies and procedures that school boards must follow. For example: Private schools are not required to use the Ontario curriculum unless they are seeking authority to grant credits toward the OSSD. Those that do may also offer other content beyond the Ontario curriculum. In Ontario private schools, principals are not required to have Ontario principal’s qualifications, and teachers are not required to be members of the Ontario College of Teachers (OCT) or have OCT certification. Private schools are not authorized to deliver correspondence courses, which are delivered through the Independent Learning Centre (ILC). However, a private school can host the student taking such courses. Private schools may, but are not required to, communicate student achievement using either the Elementary Provincial Report Card (for Grades 1-8) or the Provincial Report Card (for Grades 9-12). When it comes to private elementary schools, there are very few rules that the school must follow. Most of the requirements are set out in Section 16 of the Education Act but those rules relate mostly to things that few parents care about, such as giving the Ministry notice of the intention to operate a private school and providing the Ministry with statistical information about the number of students, staff and courses offered. There are more rules for private schools that want to award Ontario Secondary School Diplomas, but not for elementary schools. There are no requirements that private elementary schools offer a minimum standard of instruction, or follow any requirements with regard to things like anti-bullying, discipline (including suspension or expulsion of students) or teaching any particular curriculum or skills. Many parents have been surprised to learn that private schools can kick out their child without any good reason or without any process because that is what the parents’ contract with the school says. For more on school suspensions or expulsions, watch this video: All the standards that a private elementary school has to follow are in its contract with the parents. Parents should look at the contract carefully and ask questions. If the contract does not require Certified Teachers, then the school does not have to provide them. If the contract does not require the school to teach certain subjects, then the school does not have to do so. If the contract does not say that the school will follow the Ontario Elementary School Curriculum, then the school probably doesn’t. Most private school contracts include a Code of Conduct which may have no resemblance to the Provincial Code of Conduct, but sets out how students will be disciplined and to what extent the School has the right to impose any form of discipline it wants. Some school contracts specifically allow the school to do whatever it wants. In those cases, the school is subject only to the criminal code, or the right of a Children’s Aid Society to intervene because a “person having charge of a child” has harmed a child or put a child at risk of harm. With private schools not having to follow a number of rules and regulations, who they decide to employ at their schools should be of interest as well, as the individuals they employ could put a child in harm’s way. In a recent case, Karla Homolka, a serial killer who raped and murdered 3 girls and at the time, was married to Paul Bernardo, has been volunteering at her children’s private elementary school in Montreal. Parents at the school were not advised that she had been volunteering there, and are shocked at the school board’s actions. Additionally, although private schools are not required to follow the procedures set out in the Education Act and accompanying regulations for exceptional pupils, they are required to follow the Ontario Human Rights Code. In doing so, they cannot discriminate against students and must accommodate special needs to the point of “undue hardship” – unless the contract with parents requires the school to provide specific accommodations. This podcast describes the rights of students with special needs. Still, it remains very important that parents do their research before enrolling their child in a private school. They need to be clear what sort of education their child will receive and by whom. They should also know what protection from bullying or what special assistance their child may receive. It is also important for parents to know what the School’s Code of Conduct is, how children are disciplined and precisely what can cause their child to be removed from the school. All of these things should be included in the contract with the school, otherwise, the school is not legally required to follow any specific rules when educating a child. Obviously, it is also important to find out about the school’s reputation and review references or testimonials – as people would do with any big purchase. The Ministry of Education has very little power to assist dissatisfied parents. The most appropriate remedy can be suing the school for breach of contract. If you are experiencing difficulties with a private school, it is important to figure out what rights you may have, and how the law might help you. Contact Devry Smith Frank LLP’s Education Lawyer, John Schuman for assistance. We answer all inquiries promptly and we can arrange for you to come in quickly for a consultation (charged at a reduced hourly rate). By Fauzan SiddiquiBlog, Education LawJune 6, 2017July 5, 2023