Chapter Four: Law and Education
As the prologue to this chapter shows, legal matters can have an important impact on the work of teachers. At the most basic level, teachers need to be concerned about the safety of their students, and teachers can be sued or prosecuted, possibly leading to loss of their right to teach, if they neglect their responsibilities. More importantly, law is one of the primary forces that has shaped, and continues to shape, Canadian education.
We can think about law as giving a certain shape to the web of relationships affecting schools. Laws both outline, and limit: who can teach; what can be taught; who will be taught; and how the various parties involved in education should treat one-another. Many aspects of schooling, particularly the relationship between teachers and students, are deeply affected by law. Greater concern with human rights and the advent of the Canadian Charter of Rights and Freedoms and the Youth Criminal Justice Act are important influences on the way students and teachers are treated in schools.
While this chapter is concerned with matters of law and education, it is important to recognize that law in education cannot be detached from politics or history. All of these processes affect one another, and the way they are separated in this book is an analytical convenience, not a description of the way the world actually works.
It is helpful at the outset simply to list some of the major ways in which teaching in provincial schools is affected by the law in Canada. It must be noted that this information does not focus on First Nations schools on reserve or private schools that are organized and governed differently by federal and provincial law.
The Basic Structure of the Provincial Educational System
- provincial responsibility for education;
- existence of denominational and linguistic minority schools and provincial school systems;
- existence and powers of provincial ministries or departments of education; and
- existence and powers of school boards.
All of these issues are outlined in Canadian law. They were discussed in Chapter 2, and will not be taken up again here, but they are important legal influences on schools.
Conditions of Teaching
- who can teach (certification);
- duties and powers of teachers;
- conditions of employment;
- grounds for dismissal;
- labour laws; and
- collective bargaining.
Many aspects of teaching are regulated directly in law, or are subject to the provisions of collective bargaining, which is itself regulated by law. Most of these matters are taken up in Chapter 6.
Physical Safety of Students
- negligence and liability of teachers;
- trespass and site safety; and
- child protection.
The requirement to protect students from harm has an important effect on many aspects of teaching and creates tensions between the responsibility of teachers for their students’ safety and their sense of what experiences mostly facilitates students’ learning.
- compulsory attendance, and exemptions from it.
The fact that education is compulsory has an enormous impact on teaching in that it means that students must attend school whether or not they want to do so. Penalties are typically in effect for student discipline, and/or fines in place for guardians if students are not held accountable for school attendance. Since attendance clearly impacts student completion of studies, it has a significant impact on course completion and graduation rates. However, as more virtual learning opportunities have developed, and particularly with the impact of COVID-19 in 2020, what constitutes attendance at school has become more complicated. Many schools now pay more attention to attendance at synchronous learning events, whether that constitutes face-to-face classroom instruction, or online web attendance in courses managed through virtual learning management systems.
- suspension and expulsion; and
- use of force/restraint in schools.
If the requirement for discipline is at least partly due to the compulsory nature of education, the ability of administrators and teachers to maintain order, and the way in which they do so, is shaped by legal decisions governing disciplinary practice. This is complicated by the fact that students who have been diagnosed with behavioural or mental health disorders, as well as those who have criminal histories of violent altercations are included in regular classroom spaces. To that end, “maintaining order” must be balanced with sensitivity to the needs of students with exceptionalities, privacy law, and safety for self and others.
Student Rights and Democratic Practice in Schools
Freedom of speech, assembly, belief, and participation in governance by teachers and students are hallmarks of democratic society, but they have a particular meaning in schools, and those rights tend to be balanced with responsibilities to others, and the primacy of safety and security.
Many aspects of teaching, such as the subjects to be taught, the content within each subject (the curriculum), the length of the school year, the treatment of children with exceptionalities, and copyright control over teaching materials are controlled by statute or regulation.