Chapter Four: Law and Education
Why do schools become enmeshed in legal matters at all? Why can’t they simply be left to do what is educationally sound? To answer these questions, it is important to understand that legal issues arise through disagreement and conflict. If there was complete agreement on what people ought to do, law would not be necessary. People have very different ideas as to what kinds of actions might be acceptable. To provide a greater degree of compliance than would otherwise occur, laws are used to make some actions compulsory, prohibited, or regulated in some fashion.
It is important to remember that law is intended to compel people to behave in certain ways, based on the assumption that without law they might not always do so. Law necessarily involves imposing some view of the world on people who do not necessarily share that view. Thus, law usually is rooted in some conception of morality, of what is good. For the same reason, conflict is part of every aspect of law, and education is no exception since it too is an area in which people have very different ideas about what is necessary or desirable. In the Canadian system, education law has been shaped primarily by British and French colonial traditions. Given the negative effects of Canada’s colonial history on Indigenous peoples as a primary example, it is little wonder that questions, national commissions, and court cases about the extent to which law has helped or hindered particular groups of people continue to abound (Truth and Reconciliation Commision, 2015).
These conflicts are not always overt. Many aspects of school law are so taken for granted that they seem inevitable, as if there were no other way things could be done. The fact that students begin schooling around the age of six, that the school year runs from September to June, and that teachers have the right to bargain collectively, these are all practices that are not usually questioned today. However, many laws that are now taken for granted were the subject of vehement debate at the time they were enacted. Chapter 2 referred to the heated debate over the consolidation of schools in rural areas in the middle part of the 20th century and school division consolidation in the early 21st century. Historical study shows that other aspects of schooling, such as making it compulsory, were also controversial at the time (Henley & Pampallis, 1982), and residential schools used to assimilate Indigenous peoples were particularly devastating (Truth and Reconciliation Commission, 2015). In Canada, legislation regarding the linguistic and religious aspects of education has been very controversial (e.g., the extension of funding to Catholic schools in Ontario in 1984, the changes in language requirements in Quebec schools in the 1970s and 1980s, or the secularization of Newfoundland’s religious school systems in the 1990s).
The discussion in Chapter 3 of how political decisions are made indicated that, although we tend to think of laws as embodying some sort of public good, what constitutes “the public good” has, in fact, been substantially determined by the people or groups holding political power. When any law is enacted, oftentimes some people gain at the expense of others. For example, when we pass laws that create school boards and bestow certain powers upon them, we are also limiting the influence on schools of others, such as teachers or parents, who, under a different system, might play a greater role. The changing arrangements for education across the provinces and over time show that there are always options about how best to conduct public education. Changing social conditions and beliefs also generate demands for changes in law. For example, the social conditions that generated changes in marriage law in regards to sexual orientation have impacted how schools respond to parental rights and responsibilities as the notion of what legally constitutes a “family” is re-defined. As such, law is as much a reflection of current social values as it is a perpetuator of them.