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In our education law practice, around half of our cases are on behalf of parents against private schools because the school did not meet the parent’s expectations,   told a child to leave without good reason, or did not meet their child’s needs.  This post is not intended to take a stand against private schools.  Half of our cases on behalf of parents are against public schools.  However, it is often the private school parents, not the public school ones, who have large misconceptions about how Ontario’s Education Act, or Education Law more broadly, apply to the schools their children attend.

The reality is that Ontario Private Schools do not have the same curriculum, rules or legally imposed standards that public schools do. The Ontario Government allows a lot more choice when parents choose private education.

That is precisely the reason why parents pick Ontario Private Schools. Some parents do not want their kids taking sexual education classes, some don’t like the anti-bullying component that is mandatory in public schools, some parents what subjects taught with a religious focus, some parents want schools that use permissible corporal punishment or other types of discipline that are not available in public schools, some parents don’t want their kids being taught alongside kids that have special needs or are otherwise disadvantaged, some parents want teachers with qualifications that are different from the qualifications required by the Ontario College of Teachers or want their children to have teachers that are not confined by the standards of practice and ethics imposed by that body.

Choosing Private School is About Opting Out of Government Standards and Requirements

In choosing a private school, parents are choosing an education that is very different from that provided by public schools.  This post is not about whether public or private schools are better because that largely depends on the specific school in either system.  But, what many parents do not understand is that while it is NOT true that the Education Act does not apply to private schools, more than 95% of the Education Act does not apply. Further, the Ministry of Education does not regulate, license, or otherwise oversee the day-today-operation of private schools.  The Ministry does not even inspect elementary schools or high schools that do not grant Ontario Secondary School Diplomas, even if those schools provide other diplomas such as the IB program.

The Ministry of Education provides a LOT of direction to public schools about how they will operate.  It does this through the Education Act, Government Regulations, and Policy and Procedure Memoranda that all set out exactly how public schools must do things. In most, if not all, circumstances, those directions are rooted in the latest research into best teaching practices.  In several areas, the expectations placed on public schools are considered to be the best in the world.  But private schools are not required to follow them.

To be clear, private schools do NOT have to follow the direction of the Ministry of Education in areas such as:

• Discipline – including suspensions, expulsions, or other forms of discipline
• Removing a child from his or her school
• Addressing the special needs of students
• Anti-bullying programs
• Specific curriculum content
• Student evaluation or testing procedures
• Communication with parents
• Participation in school activities
• Codes of conduct or dress code
• Vaccination or other health requirements or
• Record keeping
• Teacher or principal qualifications

If your child needs or would benefit from the specific standards or procedures set by the Ministry of Education, then you may want to look at public schools and even what you have to get your child into a specific public school.

Many private schools boast of having standards that exceed the requirements expected of public schools.  But, there is no legislative nor government requirement that a private school even meet the standards in public schools. The Ontario Government is not going to step in to ensure that a child is being properly educated or treated at a private school and will look at the curriculum content only if the school wants to give the student an Ontario Secondary School Diploma.

Private School Standards Are Set Privately Between Parents and the School

That does not mean there are no legal requirements placed on private schools, just that those legal requirements do not come from the government.  Instead, they come from the contract that the parents sign with the school.   Like with End User Licence Agreements on apps and phones, parents tend to skip over these contracts assuming they have some form of standard terms, or that they are related only to the payment of fees or other unimportant matters.  But, those contracts set out what education parents can expect their children to receive and how the school will treat those children.

Private Schools Set Their Own Rules for Kicking Kids Out

Looking at specifics, one area where private school parents are often caught off guard is about private schools kicking kids out.  There are a lot of rules that public schools have to follow if they want to kick a kid out and public schools cannot just tell a kid not to come to school anymore. Private schools don’t have to follow any of those rules.

Private schools can force a student to leave based on what is set out in the contract.  Most of the established private schools have contracts that essentially say “We can permanently remove any student from the school at any time, for any reason and we do not have to have a hearing or listen to the parents at all and we do not have to refund any portion of the tuition.”  Parents usually just sign that contract without thinking about it.  Some schools set out a procedure, or say they will mirror the requirements placed on public schools by the Education Act, or that students can only be ejected for violating the code of conduct.  However, most private schools do not have those sorts of terms in their contracts with parents and instead have contracts that allow them complete discretion as to when to remove students.  Most private schools can even remove a student who is a victim of bullying or other acts because the victim student “does not fit in” or the aggressor students are more desirable.

Almost all private schools reserve the right not to readmit students for future academic years.  That means they can literally say in June that they don’t want to see a student anymore in September, although that can be difficult if the school and parents have signed a new contract earlier in the year.

If parents do not like this possibility, they have to carefully read the contract and make sure they don’t enroll at a school where the contract will allow things to happen that they don’t like.

And to be clear, our firm has done lots of cases where parents do not believe their child would be removed from the school. This can be because they went to the school themselves, or they have other children who are at the school or were at the school, or they cannot foresee any situation where a school would not want their child, or even because they have given the school a LOT of money.  We have seen lots of cases where parents are absolutely shocked to learn that their child is no longer welcome at a private school and the school is using the terms of the contract against them.

When parents come to see us, we do have some remedies under contract law or human rights law and some other strategies we can try to fix the situation.  You can make an appointment by calling 416-446-5847.  But, the stronger the contract, the more difficult – AND EXPENSIVE – it will be to try to fix things. So, parents should review the contract carefully – and usually the Code of Conduct that is incorporated into the contract – to make sure the contract meets their expectations and will not come back to haunt them if things go sour.

Admission Processes And Decisions Are Made By the School

We do understand that parents are often just glad that their child got accepted into a private school as it can be very competitive to get in and that it can be embarrassing when a child is not accepted into a private school, particularly when it seems their child is not “up to snuff” or may have unique needs that are keeping them out.  Private schools are private businesses so they can choose who they serve and who they do not – unless the decision violates the Ontario Human Rights Code.  But many private schools have complex multi-stage admission processes that allow them to deny admission for reasons that are not related to a student’s traits that would violate the Human Rights Code.  The last thing that most parents want to do is start questioning the terms of the contract when the school might just turn around and offer the place to another child.

Still, we see many parents who are not happy with a private school and where that school failed to meet their expectations.  Parents do need to carefully read that contract. If what it promises is different from what parents expect, they need to consider whether that school is the right one.  It can be difficult to fight what a school is doing, even when kicking a student out if the school can point to their contract and say it is allowed under the contract, or our contract doesn’t require what the parents expect.

Grades and Academic Discipline

Giving out grades is one of the very few areas where the Ministry of Education does have expectations of private schools, but not in a way that really assists parents.

Private schools are required to have a policy about how they will communicate student achievement to parents.   But, how private schools communicate student achievement is entirely up to the private school.  They can use the Ministry of Education standard report cards, but they do not have to do so.  They do not even have to use formal grades.

However, to grant a credit towards a course that will lead to an Ontario Secondary School Diploma, private schools must show that their evaluation of students is based on evidence of achievement of the provincial curriculum expectations, is conducted several times during a course and uses several methods for evaluating the student, as well as meeting other criteria.

When it comes to challenging whether an evaluation of a student was fair or accurate, there is no direct way to challenge a private school’s methodology.  Many private school contracts specifically state that parents cannot, and will not, do that.  Doing so will be, at best, difficult.

Similarly, there are no direct ways to challenge a school’s finding that a private school has acted with academic dishonesty, or the method used in the investigation.  Where a school makes such a finding and the imposes consequences are consistent with a Code of Conduct that has been incorporated into the contract with the parents, there is little that private school parents can do.  If the consequences are severe for the student, they may want to consult with a education lawyer to see if there are any unusual or creative legal solutions available.

One course of action that might be available where the school imposed a grade or discipline that did not take into account a student’s special needs, is to pursue a remedy based on human rights grounds.

Private Schools Usually Do Have To Accommodate Special Needs

Ontario public schools have a refined process for identifying and providing assistance to kids.   While, in most circumstances, private schools cannot refuse to admit a student because that student has special needs, they often find other reasons to refuse admission.  However, once a student is in a private school, that school has to accommodate that child’s special needs to the point where it will cause undue hardship.

For very small, usually religious based private schools, that are not-for-profits, and that charge very little for tuition and do not have much in the way of resources, the school may legitimately not be able to provide much accommodation for special needs. But larger schools can, and must, provide accommodation for student’s special needs.  People cannot contract out of the Ontario Human Rights Code, so the contract is not a factor in those circumstances.  If a private school student has a disability or needs some other type of special treatment or services, the private school cannot refuse to provide those accommodations if it is reasonably able to provide them.  Private schools cannot refuse to continue to reach a student because that student has a special need that the school could reasonably accommodate.

While we often hear private schools say “we don’t do things that way”, or “our standards do not allow us to provide accommodation”, the law says differently.   Any parent faced with that sort of attitude should get advice from an education lawyer.

Bullying – It’s Up To Private Schools What To Do, If Anything

One thing that can actually CREATE special needs in a student is repeated bullying.  Bullying can cause lots of long lasting serious problems and is rarely character building for the victim.  It often leads to mental health problems that negatively impact a student’s ability to learn and the benefit of attending a private school.    The Education Act and the Ministry of Education place a lot of legal obligations on public schools to prevent and address bullying.  Those measures are based on the latest research into bullying and its effects.

There is nothing in the legislation or from the Ministry of Education that requires private schools to do anything about bullying.  Again, that is an intentional decision by government because some parents do not want their children exposed to anti-bullying programs and believe that bullying can be good for kids.  They can chose to send their children to schools that allows or encourages bullying behaviour, hazing, peers teaching each other lessons, or other similar behaviour.   Other private schools have very strict anti-bullying measures, some of which are modeled on what is required in public schools.  Again, to a point, what a private school is legally required to do about bullying is set out in the contract with parents – to a point.

There can be legal consequences for a private school that allows bullying.   When a school fails to supervise students properly, it can be liable for damages for mental or physical harm caused to a student.  The law does not permit students, or the student’s parents, to consent to the student being seriously harmed.  So, a school that says parents agreed to let their child be bullied will not be successful with that position in court.  In addition, many types of bullying, anything that is based on disability, race, ethnic origin, family status, sexual orientation, gender or similar traits is a violation of the Ontario Human Rights Code.  So, there can be penalties for institutions when bullying is also bigoted.

Since bullying can have a lot of serious negative repercussions, it can lead to mental or physical disabilities.  Once a child has such disabilities, the child’s school is required to accommodate those challenges to the point of undue hardship.  When those disabilities were caused by events at school, it is really difficult for a school to get away with saying that fixing a problem that it, in part, caused, will be too hard.

Private Schools Can Hire Whatever Teachers They Like, Regardless of Qualifications

Sometimes children run into trouble at private schools because one or more of their teachers or principals do not have any teaching qualifications and so do not know how to address certain educational situations or issues. Again, the Ontario Government made a policy decision to allow a broader range of qualifications than are required to teach in the public system, so there are no minimum qualifications for private school educators or administrators.  In addition, private school teachers do not have to be members of the Ontario College of Teachers – in fact they can’t be if they don’t have the qualifications to get a teacher’s license. If a private school teacher is not a member of the college of teachers, there is no body to complain to about the competence of ethics of that private school teacher.

Some private schools do require their teachers to be members of the college of teachers.  But, the private schools themselves are not required to use only licensed teachers unless their contract with their parents says so.

Conclusion

To summarize, it is important for parents to read the contract with a private school, which often incorporates a code of conduct and other documents or policies, before signing their child up to attend that school.   Even if they feel they have no choice but to send their child to that private school, that contract tells them what they can expect, including the standards (if any) that will be applied to their child’s education. There are no mandatory government standards for how children will be educated in private schools in Ontario, or what they quality of that education will be. Parents can only hold a price school to the contract, and perhaps human rights legislation.  If the school does not violate either of those, but the school does not meet the parents’ expectations, there will not be any government intervention and there may few legal options – even if a child suddenly finds him or herself without a private school to attend.

“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 situations and needs.”