Chapter Four: Law and Education
The School Year
Various aspects of the school year, including precise dates, number of professional development days, and holiday breaks, are usually controlled by provincial regulation. School districts may be given some options regarding the organization of the school year, but the most important aspects are provincially regulated. School years differ from province to province in regard to number of days, starting dates, holidays, and professional development arrangements.
In all provinces, the authority to set curriculum is given by statute to the minister of education, meaning, in practice, the Ministry or Department of Education. While some provinces provide much more specific direction than do others in this area, provincial regulations or policies usually specify the courses or subjects to be taught at each level and the amount of time to be given to each course or subject. They may also prescribe certain forms of student evaluation, such as provincial tests or examinations. Provinces generally prescribe sets of authorized textbooks as well, although schools or teachers may have some choice within the overall list. Most provinces provide some curriculum flexibility, allowing schools or school districts to offer locally developed courses (usually following provincial approval). (See Chapter 7 for a fuller discussion of the curriculum and the notion of academic freedom as it might apply to public school teachers).
Although schools and teachers can be and have been sued for failing to safeguard a child’s safety, there has not yet been a successful case against a Canadian school for failing to educate a student ‒ what might be called the pedagogic equivalent of medical malpractice. However, this does not mean that courts will not accept these cases in the future. For example, in the case of Gould v. Regina (East) School Division No. 77 (1996), the Saskatchewan Queen’s Bench made the following comment:
It is surely not the function of the courts to establish standards of conduct for teachers in their classrooms, and to supervise the maintenance of such standards. Only if the conduct is sufficiently egregious and offensive to community standards of acceptable fair play should the courts even consider entertaining any type of claim in the nature of educational malpractice.
In addition, courts do not dismiss claims involving educational malpractice if the claims also involve issues such as breach of contract or misrepresentation, even though the malpractice claims have never been successful. This may be an area where changing social values, disagreement over the purposes of schools, and what is considered to be reasonable “promises” to provide appropriate educational services to all children may impact future case law.
Students with Exceptionalities
The rapid growth of special education in Canadian schools has raised a number of legal issues. Do the schools have the right to classify students whom they feel require special program? Do parents have that right? Must the schools provide programs for different kinds of exceptional students? These issues are now being covered in Canadian legislation, and there are many contentious cases in which there is a disagreement between the school and the parents as to the appropriate program for a child. In some cases, parents are resistant to the school’s desire to change their child’s program, while in other cases parents are pressing the school to provide some program that the school is reluctant to offer.
The provision of appropriate education to meet the needs of each student is increasingly accepted as a right in Canadian education. Most provincial legislation now reflects this requirement. For example, Section 142(1) of the Saskatchewan Education Act states that “every person… has the right… to receive instruction appropriate to that person’s age or level of educational achievement.” In some provinces, however, this right is still qualified. The question of what is meant by an appropriate education is also far from evident. Does it mean special separate classes or does it mean that all students, regardless of particular needs, should be in the same classrooms? The issue is complicated because educators and parents may have different opinions. Some have fought to have students with exceptionalities, such as those with physical disabilities, placed into regular classrooms (an issue discussed more fully in Chapter 7), while others have fought to have particular needs, such as learning disabilities or giftedness, met in separate programs or classes.
There does appear to be an increasing trend toward applying principles of natural justice to special education, which requires that students and parents be kept informed of the school’s proposals for students, and that they be given the right to a hearing. The school must be cautious about acting in a manner that contradicts students’ and parents’ views unless it can present good reasons for doing so. At the same time, as they have in other areas of law, courts have recognized that schools have a degree of expertise in these matters that should not lightly be set aside to accommodate parents’ wishes. The area of student classification is not, as a rule, dealt with in provincial education statutes, and it is currently an area of much controversy and court action.
The cases outlined in Box 4.7.1 suggest that courts will give schools latitude to make special education placements that are reasonable under the circumstances, but that the schools must show good faith in trying to meet the educational needs of students. Parental wishes may be granted less credibility than a reasonable educational justification.