Chapter Four: Law and Education
The way laws are applied to schools differs, in some important respects, from the way they are applied to other settings. The fact that schools are charged with the education of young people has affected the way courts have applied the laws. So far, Canadian courts have been willing to permit schools to act in ways that would not necessarily be permitted in a workplace or similar setting because of the schools’ educational responsibilities. But beyond this, the nature of education also requires teachers to ask about how they should deal with legal matters.
First, schools are unlike other organizations because they create “offences” that would not be considered wrong or that would not be subject to punishment in other social settings. For example, going to the bathroom at the wrong time can be an offence in a school, whereas it would rarely be considered so in other places. The same is true of being discovered in the hallway during classes, talking out of turn, or copying someone else’s work. In a setting where large numbers of young people are required to attend, and are supervised by relatively small numbers of adults, some rules will be necessary to keep order. The question facing educators is one of the appropriate balance between the requirements of order and the degree of freedom necessary for effective education.
The educational task of schools also imposes obligations on educators that might not be found in another environment. In an educational setting, everyone should be concerned with the development of students as persons ‒ with their intellectual and moral growth, not simply their behaviour. We don’t want students merely to comply with our instructions; we want them to understand why these instructions are necessary, and why it may be in their best interest to do as they are asked. This means that educators have a constant obligation to try to teach students.
Any event in the school, a transgression by a student can be seen as an opportunity to educate the student. For example, if a student is suspected of plagiarizing, a teacher might want to use the opportunity to discuss with a class what plagiarism means, why it is wrong, and what the conventions are in citing other people’s work. It may well be more important to have all students learn from a situation than to punish one student for doing something inappropriate. Thus, what is required for educational purposes may not be the same as what a strict view of the law might demand. Because schools are institutions that are supposed to care about students, many teachers would want to think very carefully about the best course of action when a student is suspected of a crime. Do teachers simply call the police, or do they try to work with the student to help him or her cope with the problem? Teachers’ moral obligation to help students may at times conflict with the narrower legal aspects of a situation; those may push teachers to act as agents of the state rather than with the care implied in being a parent (Doctor, 2013a, 2013b). Some theorists have termed this the tension between an ethic of justice and an ethic of caring (Noddings, 2010).
As well, if the school is to fulfil its mandate to prepare students for citizenship, it must surely have a role in educating them about their rights and responsibilities. It is difficult to see how students can become responsible adults if, while in school, they are not informed about issues of rights, or if their opportunity to learn to exercise rights and responsibilities, and to participate in political processes, is highly restricted.
Closely related to all of these points is the changing legal status of children. At one time, children were seen primarily as the property of their parents, and very few controls were placed on what parents could do to and with them. Children are accorded significance as persons with full legal rights even though they are not legally adults. The legal system has responded to changes in social values by acknowledging children’s status as persons whose legal interests may be separate from those of parents or schools. The state, meaning the government, has gradually assumed increasing authority to intervene in the affairs of families to protect the rights of children. The enacting of child protection legislation is only one example of this long-term and important trend.
The Legal Status of Teachers
Teachers act as educational state agents (Doctor, 2013b; MacKay et al., 2020) who are recognized in law as having a certain degree of authority over the students in their charge. This authority comes from statute law (where provincial school legislation, as well as a variety of other pieces of related legislation, recognize teachers’ powers and duties) and also from case-law precedents. The enterprise of education is recognized by the law and the courts as requiring that adults have the ability to supervise, control, and discipline young people. Traditionally, teachers have been said to stand in loco parentis ‒ that is, to have within the area of their responsibility the same authority over students as would a reasonable and careful parent, and to be expected to act, at minimum, in such a manner. Today, the idea that the authority of the teacher stems from the doctrine of in loco parentis has been substantially supplemented, and perhaps even supplanted, by the legal duties and requirements of teachers acting as agents of the state. The role of parents has also changed, and governments have come to play a more important part in family–school relations. However, in certain areas, such as that of teacher negligence and liability, the comparison of the teacher to the reasonable and careful parent, and, in certain cases, to a “reasonably competent professional” remains a critical legal judgment. The developing use of this standard is found in Canadian case law as far back as Thornton et al. v. Board of School Trustees of District No. 57 (Prince George) (1976) and Myers v. Peel (County) Board of Education (1981). Both cases established the duty of care for a teacher in a gym class, with the standard varying depending on the circumstances and therefore open to modification, as that of a “prudent and careful parent having the supra-parental expertise that is demanded of a gymnastics instructor.” This “supra-parental expertise” suggests that case law has begun to evolve the level of standard from in loco parentis to that of the reasonably competent professional.