Chapter Four: Law and Education
Many educational issues are framed as questions of rights. We say that teachers have (or do not have, depending on our opinion) a right to voice their opinion about school policies. Parents have (or do not have) a right to see their child’s school records. Children have a right to be protected from harm. But what are rights? Where do they come from? These questions have been of interest to people for thousands of years. There is no agreement on the answers, but over that time some useful ways of thinking about rights have arisen. Rights can be classified as
- normative and legal;
- procedural and substantive;
- negative and positive;
- individual and collective; and
- personal and property.
Normative rights are those rights that people believe every individual should have, while legal rights are those that are officially recognized in a particular society. Considered logically, normative rights come first. A normative right is something we possess by virtue of being human. We don’t have to do anything to earn this right; it is ours automatically. Examples of normative rights would be the right to a fair trial, the right to free speech, and the right to be free from arbitrary discrimination. Many common normative rights are set out in international documents such as the United Nations Universal Declaration of Human Rights and the United Nations Convention on the Rights of the Child.
Having a normative right does not necessarily mean that one is able to exercise it. Exercising a right requires three conditions: (1) that the right has been officially recognized through a law or rule; (2) that there is a process for settling disagreements over rights; and (3) that there is a way for people to enforce the particular right. To take the example of free speech for students, there must be some law, rule, or policy that specifies this right. There must be a forum for determining when a particular case is one of free speech or not. Finally, there must be a way for students to have that right enforced when it is violated.
Legal rights arise out of normative rights. When enough people begin to believe that some rights ought to belong to them and are prepared to work vigorously to have it established in law, legal recognition of the right may follow. Note that it is people’s sense that things are not right as they stand, and their willingness to work for change, that may bring changes in law and subsequent changes in recognized rights.
Consider rights for people with physical disabilities. For many years, their ability to enter buildings, to hold jobs, and to be part of normal life were simply not seen as rights. Gradually the climate of opinion began to shift. Advocacy groups worked hard to make the point that physical disability ought not to deprive people of their ability to live in, contribute to, and reap the benefits of Canadian society. A great deal of effort, over many years, went into persuading governments and the public that current practices were unfair and should be changed. As this belief became more widespread, legal recognition slowly followed. Laws were passed prohibiting discrimination in jobs or housing on the basis of physical disability. Schools began to integrate children with physical disabilities into their classes. People were able to bring about changes in law and policy that reflected and influenced changing social attitudes.
The legal recognition of normative rights is by no means automatic. Everyone can recognize that there are many situations, in Canada and elsewhere, where something widely regarded as a normative right is not yet a legal right. In many parts of the world, even the most basic human rights are not respected. And even the formal recognition of a right in law does not mean that the right will always be protected in practice. Various laws that protect rights are regularly violated, either deliberately or unintentionally ‒ hence the need for courts to resolve disputes about issues of rights.
Rights, like other legal issues, involve conflict. The claimed rights of one person or group often conflict with the claimed rights of some other person or group. With respect to schools, it is clear that provincial governments, school boards, school administrators, teachers, parents, and students all have some rights. It is easy to see that these parties will disagree about many issues. For example, if provinces can prescribe curricula that teachers must teach, then teachers do not have a right to academic freedom, parents do not have a right to determine what their children learn, and students do not have a right to pursue their academic interests. Conflicts are inevitable.
Another important way of thinking about rights exists in the distinction that can be made between procedural rights and substantive rights. To put it simply, a procedural right is concerned with how things are to be done while a substantive right concerns what is to be done. Take a situation in which a student was suspended from school for challenging something a teacher did. The student might have been given the opportunity to attend a hearing and to make a statement in his or her own defence, thus honouring the student’s procedural right to “a fair trial.” On the other hand, the substantive right to be free from punishment simply for expressing an opinion may have been violated. The most important procedural right is what is usually called natural justice, which was discussed previously. Procedural rights are important, but without substantive rights they are insufficient.
A third distinction is between negative rights and positive rights, or, as they are sometimes termed, option rights and welfare rights. A negative right is the right to do something free from restraint; hence, it involves a choice or option. The rights to free speech and free assembly are examples of negative rights; you can exercise them if you wish to do so. Positive or welfare rights, on the other hand, involve the right to have or receive something. The right to education, for instance, can exist only if educational services or programs are available. Thus, positive rights imply an obligation on the part of somebody other than the holder of the right ‒ often the government ‒ to do or provide something to enable people to exercise their rights. Western societies such as Canada have tended to give more weight to option rights than to welfare rights.
A fourth way of thinking about rights has to do with individual rights and collective rights. Respecting the rights of an individual may impose constraints of some kind on the collectivity, whether it be a class, community, or country. For example, providing education to children with acute health concerns can be very expensive, but is borne by the community to meet the child’s right to be educated. As well, the collective rights of minority language and religious groups may be protected even if they do not coincide with the wishes of the dominant majority.
Finally, one can distinguish between personal rights and property rights. Personal rights (e.g., freedom of speech and religion, the right to vote) belong to all individuals who are members of the society. Nobody has more or less of these rights than anybody else. Property rights, on the other hand, belong only to those who have property. They accrue not because of who one is, but because of what one has. Those who have more possessions will also have more rights. Historically, property rights have often taken precedence over personal rights. The right to vote, for example, was for many years restricted to those who held property. Property rights have also been used in the past to limit the rights of workers to form unions, to bargain collectively, and to strike. Indeed, the rights of property owners have often been used to restrict the ability of governments to take action on behalf of the collectivity.