Chapter Four: Law and Education
There is some debate among educators and lawyers as to whether people have a right to education, or whether education is something the state provides at its discretion. The United Nations Universal Declaration of Human Rights and the United Nations Convention on the Rights of the Child both treat education as a right, but provincial legislation in Canada is inconsistent, with some provinces using the term “right” and other provinces simply talking about education being provided. Nonetheless, most people tend to think of schooling as something to which we have a right (Box 4.12.1).
Education statutes talk about the right to attend schools, not the right to receive an education. This distinction is an important one for two reasons. First, it implies that schools do not have a legal obligation to ensure that students benefit from attending. Schooling must be made available, but whether the student learns is apparently not a matter of law. No Canadian court has ruled in favour of alleged educational malpractice for quality of instruction or failure to provide an appropriate education. Secondly, the statutes imply that students do not have a right to forms of education other than those the schools provide. If, for example, a student contended that he or she learned best in an informal, on-the-job setting, or at home, or through working in a library, legislation does not suggest that the schools have any legal obligation to provide education in these types of alternative settings. The issue of appropriate placement for special-education students, discussed later in this chapter, is a particularly interesting instance of what schools are required to do to meet the needs of students.
Interestingly, however, the COVID-19 pandemic that began in 2020 greatly reshaped how school boards enacted educational service delivery, with mass changes to virtual learning platforms and scheduling shifts to more emphasis on block schedules. Though at its beginning these shifts were the result of a massive social crisis rather than a legal one, the consequences of the pandemic have implications for future policy and legislative change related to student attendance and discipline, appropriate education, teacher rights and responsibilities, and even system governance.
Alberta Education Act, 2012,
3(1): “Every individual (a) who at September 1 in a year is 6 years of age or older and younger than 19 years of age, and [who is a resident of Alberta and who has a parent who is a resident of Canada] is entitled to have access in that school year to an education program in accordance with this Act.
“3(2): A [school] board may permit an individual [who is younger than 6 or older than 18] to have access in that year to an education program in accordance with this Act.”
Quebec Education Act, 2020,
1: “Every person is entitled to the preschool education services and elementary and secondary school instructional services provided for by this Act… from the first day of the school calendar in the school year in which he attains the age of admission to the last day… in the school year in which he attains 18 years of age, or 21 years of age in the case of a handicapped person.…
“The age of admission to preschool education is 5 years on or before the date prescribed…; the age of admission to elementary school instruction is 6 years.…”
A further interesting feature of the right to education is that this right is, in fact, compulsory. For example, in 2011, Manitoba increased its compulsory attendance law to the age of 18 from 16. Most rights are available to people who wish to exercise them, but school attendance is different because it is legally required. It is worth thinking about why our society would want to force people to exercise a particular right. Compulsory attendance clearly implies that the benefit of education extends beyond the individual to society itself, and that this larger benefit is sufficiently important to require universal attendance. Furthermore, understanding of the compulsory-attendance provisions in schools must take into account the history of schooling in Canada, and the view commonly held by the governing class in the nineteenth century that children must attend school to be taught the behaviour and values that would enable them to fit into society. It was not necessarily the school’s function to teach children the values of their parents and families. The fact that many youth criminal sentences make school attendance one of its provisions adds another layer to the intricacies of working with youth who have criminal records. Whether compulsory attendance can be justified legally under the Charter is an interesting but, as yet, unexplored question.
Closely related to the issue of compulsory education is the matter of home schooling. Although home schooling remains a small percentage of overall school-age enrolments (0.4%), it is on the rise, with estimates ranging from 16,773 in 2006/07 to 21,662 in 2011/12 (Van Pelt, 2015). This is usually because the parents have strong objections to some aspect of public schooling. Such objections can be religious in nature (parents may want their children educated in a particular religious tradition, such as Judaism, that the schools do not follow) or philosophical (parents may not like the way in which schools provide education). However, it is also the case that some families choose home-schooling due to lifestyle choices related to practicality, virtual possibilities and improved curricular and organizational supports (Van Pelt, 2015).
Most provincial legislation in Canada gives parents the option of educating their children at home, as long as the education provided is approximately equivalent to the standard found in the public schools. Provinces have been easing restrictions on home schooling, and many now require schools to support parents who are home schooling (Box 4.12.2).
Ontario Education Act, 1990,
21(2): “A child is excused from attendance at schools if (a) he [sic] is receiving satisfactory instruction at home or elsewhere.…”
Saskatchewan Education Act, 1995,
c. E-02, s. 157: “A pupil may be exempt from attendance at a school where: … (c) the pupil is receiving instruction in a registered home-based education program.”
Manitoba Public Schools Act, 1987,
c. P250, 260. “1: Every parent of a child of compulsory school age shall ensure that the child attends school.
- “260.1 (1) Notification to the minister: The parent or guardian of a child who is a pupil in a home school shall, in the prescribed form, notify the minister of the establishment of the home school.
- “260.1 (2) When notification to take place: The parent or guardian shall, in the prescribed form, notify the minister about the home school when it is first established and on or before September 1 in each year.
- “260.1 (3) Information to be provided to minister: Within 30 days after a home school is first established and on or before September 1 in each year, the parent or guardian shall provide the minister with the following information:
(a) the name and birth date of each pupil in the school;
(b) the name of the school or school division each pupil would otherwise attend; and
(c) an outline of the education program and grade level for each pupil.
- “260.1 (4) Periodic progress report: The parent or guardian shall provide the minister with periodic progress reports on each pupil in the home school. The reports must contain the information and be provided according to a schedule determined by the minister.”