In Education, there are many groups that have legal rights and responsibilities.

Students, Teachers,
Principals and School Boards each have different laws that protect them, and laws that make them
responsible. This handbook has been put together to inform you on some of these laws.

Suppose that in your class one day, based on information from one student, your teacher searches
the property and person of a student and throws them out of your class, even when they find
nothing. What are the rights and responsiblities of the student? The teacher? Where do the
Principal and the School Board come in on this matter? We have taken a look at the Legal and
Moral issues that surround these four groups, basing them on this situation, and beyond.

Teachers and the Law

Duty of Care Legal and Moral Relationship
Warrants and Searches Activity Supervision
Suspension Child Abuse

Duty of Care

Teachers are a special section of society. They are responsible for the education of society's
youth. They are also responsible for ensuring that the students within their care are found within
the most positive, safe and encouraging learning environment possible. If they cannot secure this,
then teachers can be sued for negligence. They have a duty of care towards their students, and if
this is betrayed, then teachers have a responsibility to face the consequences.

Teachers have a need for information in their classroom. They have to be fully aware of all
learning, behavioral and medical problems that could occur and are responsible to be trained to
deal with anything that may occur. From this, they need to be aware of any medications that may
be needed during the day and how to administer them, as well as any support services that a
student may be availing of. Teachers are responsible to all students equally - while one student or
another might avail of their attention more often, a teacher is responsible for them no more or less
than they are responsible for students who do not require their attention. If a teacher does not act
accordingly to all students, then their duty of care and their responsibilities to all have been
infringed upon, and the school authorities are responsible for dealing with this1.

A teacher has responsibilities to their students and the families of these students. Teachers are
required to protect and care for their students as the parents of these students would. They have
a duty of care owed to their students, that was described by a Supreme Court Judge in 1968 as
that which

.." the careful father of a large family owes his children"..2

The standing of "in loco parentis" has been applied to teachers - they have the rights and
responsibilities of a parent while the student in under their care. This is a comparison only, as it is
superseded somewhat by the fact that teachers are government workers. However, in some
areas, this comparison of teacher to reasonable parent exists and is the 'norm'. The Supreme
Court has used this basis to make rulings on cases involving Teachers and their Students, and
parents have grown to expect that when they drop their children off at school, they are being
looked after with care and concern.

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Warrants and Searches

From this, teachers have many legal and moral rights and responsibilities. One of these is the
right to conduct warrantless searches. Teachers are the only professional groups with this right -
police officers, for example, do not have this right. The Supreme Court made this ruling in
November 27th, 1998. With the ruling, Mr. Justice Peter Cory wrote:

"Teachers and Principals must be able to react quickly and effectively to

problems that arise in school, to protect their students and to provide the
orderly atmosphere required for learning.".. 3

It is recognized by the courts that teachers and students have a special relationship - one that is
not unlike that of parents and children. Teachers must be able to protect their students from
dangers and need to be able to do whatever it takes to provide a safe school environment, while
maintaining order and discipline in their school.

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Suspension

Teachers also have the right to suspend students from their class, for that class period, if they
consider the suspension warranted. The 1997 School Act states:

..." a teacher may suspend a student from a class period in accordance

with the by-laws of the Board". A teacher is required to report such a
suspension to the principal "as soon as practicable, but in any event
before the end of that school day" [S.36(2)]. Teachers should ensure that
they make themselves aware of any School Board by-laws and Board or
school policies respecting such "class suspension."..4

This is another way that teachers can foster the learning environment for all of their students, by
removing the person who is causing problems in the classroom and distracting from any learning
that might be taking place.

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Legal and Moral Relationship

Yet with these rights, what responsibilities to Teachers have towards their students? Teachers
have the responsibility to foster a relationship of trust - while they have the rights of a parental
figure, they must also try to encourage the relationship that a child would have with this parental
figure.

Teachers are responsible legally and morally for their student's well-being and care. They are
responsible to ensure that every student in their care receives a quality education. According to
the NLTA Code of Ethics,:

..." Teacher -Student

(i) A teacher's first professional responsibility is to the enhancement of the
quality of education provided to the pupils in his/her charge
(vi)A teacher accepts that the intellectual, moral, physical and social
welfare of his/her pupils is the chief aim and end of education
(vii) A teacher recognizes that a privileged relationship exists between the
 teacher and his/her pupils and shall never exploit this relationship...

Teacher-Parent
(i) A teacher seeks to establish friendly and cooperative relationships with
the home and to provide parents with information that will serve the best
interests of their children...5

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Activity Supervision

Teachers also have the responsibility to protect their students if they are aware that any harm
might come to them. If a teacher could have reasonably foreseen an event and did not act on it,
then they are legally liable for the damages that occurred. For example, if a teacher knows that
two of their students are planning to gang up on a third, they are legally responsible for any
damages that may ensue, as they were aware before the fact of what was going to happen.
However, had the teacher not been aware of the plan of the two students, they could not be held
responsible for the damages.

Teachers also have a responsibility towards students that they are supervising in activities. In the
1968 case 'Mckay v. Board of Govan School Unit No. 29' several precedents were set for
teachers, regarding supervision of our of class activities. They include:

1. For activities which pose inherent risks, there should be sufficient, progressive instruction,
demonstration and supervision
2. Instructors should be qualified in the activities over which they take charge
3. The administration of a school takes on responsibility for activities which it approves .6

Teachers have a responsibility towards their students to ensure that they are prepared and able
to handle any problems that may occur when they are supervising an activity. If an activity
requires special training or expertise, the teacher has a responsibility to ensure that they have
this expertise - otherwise it could prove hazardous for the students involved.

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Child Abuse

A teacher has the responsibility, by law, to report any suspicions of abuse. Section of Section 15
of the Child, Youth and Family Services Act mandates:

.."that any person who has information that makes them believe a child is
or may be in need of protective intervention shall immediately report the
matter to a director, social worker, or a peace officer. ..A teacher involved
in such situations is protected under the Act from civil liability unless the
report was made "maliciously or without reasonable cause.. It must be
stressed that responsibility for reporting the suspicion of child
maltreatment to Child Protection authorities rests with any person who
performs professional or official duties with respect to a child and who
has reasonable grounds to suspect the abuse..".. 7

From this it can be taken that teachers are responsible for reporting any child abuse that they
suspect. They have a responsibility past simply informing the principal of their school - teachers
are responsible for reporting the abuse to a delegate of the Health and Community services.
However, after they have reported this abuse, they are not permitted to contact the parents in
regards interviews with the child that may occur on this matter - the responsibility has now shifted
to the Health and Community delegate.

The rights and responsibilities that teachers have towards their students make the job of teaching
one that is fraught with worries and concerns - 'am I looking out for the interests of all my
students?', 'Do my students trust me?', 'Am I acting correctly and fairly towards the interests of
all?'. However, from all of these concerns, a satisfaction can be formed, where teachers
recognize that their actions are forming a positive and encouraging learning environment for all
students - one where the students are safe and learning. To quote John Fischer

.."The essence of our effort to see that every child has a chance must be
to assure each an equal opportunity, not to become equal, but to become
different - to realize whatever unique potential of mind, body, and spirit he
or she possesses."..

Issues Concerning Students’ Rights and

Responsibilities
Maintaining Order Discipline
The Charter of Rights and Freedoms Suspension and Expulsion
Search and seizure without a warrant Democratic Practice

The compulsory nature of schooling is a sensible place to begin any discussion of the rights and
responsibilities of students and their parents. Compulsory schooling works in both directions.
Legislation compels provinces to provide a space in school for every child of a certain age and all
children of a certain age are compelled to attend school. The history of compulsory schooling
goes back to the nineteenth century when the ruling classes decided that children must attend
schools to learn the values and behaviors that would allow them to function as productive
members of society. Today, provincial legislations require that all children must attend an
accredited school until a particular age, usually 16, at which time they are free to leave.

With respect to a student’s right to an education, the picture is less clear. Some provinces
acknowledge the right of children to an education while most simply refer to the right of children to
attend schools. The distinction is important because “right to access” means only that the
province is required to provide access to schools without having any legal obligation to ensure
that the student actually benefits from the experience. It also means that students can not
demand alternative forms of education that might be more effective for them. Students and
parents do have the right to access private schools and to practice home schooling as long as
they meet or approximate the provincial standards.

Maintaining Order in the Schools

The nature of compulsory schooling has meant that schools have particular rights and
responsibilities with respect to maintaining order and safety. Over the years, the courts have
consistently upheld the rights of schools to limit the freedom of students in order to ensure that
schools are safe and orderly places. These limitations include the right to search and seizure, the
limitation of students’ freedom of speech and assembly as well as the right to make rules and
impose punishment. But recent rulings have stressed the requirement that schools be able to
justify their policies and that they treat students respectfully as persons. “Tolerance for rules that
are set and enforced in an arbitrary fashion does appear to be diminishing, and greater attention
is being paid to principles of natural justice.” (Levin, p.125) In other words, while schools have
maintained their right to limit the freedom of students, they are more likely to be held accountable
for showing that their actions were reasonable and directly related to the issues of order and
safety.

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The Charter of Rights and Freedoms

Much of the thrust for this new attitude in the courts is a result of the Charter of Rights and
Freedoms which was brought to bear on the law when the constitution was repatriated in 1982.
The Charter outlines the rights and freedoms that all Canadians possess and it functions by
allowing courts to strike down laws that contravene Charter rights. There are however, some
limitations placed on the protection of rights by the Charter . The Charter applies only to the laws
and acts of governments and government agencies (this includes all legislation that controls
schools). Also, all rights in the Charter are potentially limited by Section 1 which allows “such
reasonable limits prescribed by law as can be demonstrably justified in a free and democratic
society.” In the case of students’ rights, courts applying the Charter have consistently upheld that
it is reasonable and justifiable for schools to be able to limit those rights, but only to an extent that
is necessary to maintain student and teacher safety and to ensure the education of all citizens.

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Search and Seizure Without a Warrant

The ability of teachers and principles to search student’s persons, bags and lockers without a
warrant is one issue that has recently received the full Charter treatment at the Supreme Court of
Canada. In an 8 to 1 majority decision, the Supreme Court ruled that education authorities must
be allowed to conduct warrantless searches despite the fact that protection against such search
and seizure is a right given by the Charter . The Court stated that “a reasonable expectation of
privacy . . . is lower for a student attending school than it would be in other circumstances. . . a
different standard should be applied to searches by school authorities.” In commenting on the role
of schools in society the Court went on to state: “In order to teach, school officials must provide
an atmosphere that encourages learning. During the school day, they must protect and teach our
children. In no small way teachers and principals are responsible for the future of the country.”
The Court also stated that with respect to warrantless searches, they should be conducted “in a
sensitive manner and be minimally intrusive.” (Globe and Mail: Nov. 28, 1998)

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Discipline

With respect to discipline, schools still benefit from the right to impose rules and punishment on
students from provincial legislation and the principle of in loco parentis. However, in this area as
well “reasonable provisions consistent with the Charter and with natural justice will gradually
come to be standard in schools. (Levin, p.126) In the case of corporal punishment the Criminal
Code allows the use of force by teachers for purposes of “correction” as long as the use of force
is reasonable. Changing social values are redefining what is reasonable and there is speculation
that the use of the strap and other forms of corporal punishment would be considered in violation
of the Charter's prohibition against “cruel and unusual punishment” but this has not been tested
yet. Generally the courts have protected teachers’ right to use reasonable force against students
and the greatest diminishment of that power has come from school policies in response to public
opinion.
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Suspension and Expulsion

When it comes to forcing a student out of school, most provincial legislation gives students the
right to due process when faced with expulsion. This can include formal hearings and appeals. In
the past schools have enjoyed almost total freedom to suspend a student for any reason the
school deems sufficient. It is likely that the Charter will limit schools’ ability to suspend at will by
demanding justification for the suspension on the grounds of maintaining order only. For instance,
it is likely that a student who is suspended for speaking out against a school policy or for
criticizing a teacher would have a good case under the Charter .

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Democratic Practice in Schools

Could student governments be considered a right? The Toronto Board of Education has done so
by making it part of their Student Rights Policy. Generally though, student councils in most
Canadian secondary schools are heavily monitored and restricted by school administrations.
Students’ rights of speech and assembly have been limited in the past as well students’ right to
publish their opinions in school newspapers, to circulate certain material and to organize
politically. Again, the Charter r has not been applied to these issues, but it is likely that the courts
will force schools to justify their actions. The issue begs the question, what are the justifications
for limiting students rights of speech, dress and actions? If we are teaching tolerance, rights and
democratic principles in our schools then it is very difficult to justify any limitation of any right that
is not specifically linked to safety and order.
Legal and Moral Issues in Schools: The
Responsibility of the Principal
Responsibilities Expulsion
Attendance Appeals
Records Accidents
Suspension Negligance The Ontario
Education Act states that a principal holds the same responsibilities as the teacher and the
following:

• The principal in responsible for proper order and discipline in the school
• The principal must give assiduous attention to the health and comfort of the pupils, to the
cleanliness, temperature and ventilation of the school, to the care of all teaching materials
and other school property, and to the condition and appearance of the school buildings.
• Subject to an appeal to the board, the principal may refuse to admit to school any person
whose presence is the school or classroom would be detrimental to the physical or mental
well being of the pupils.
• The principal is responsible for management of the school.
• The principal must provide for the care of students while not in class.
• The principal must report any infraction of school rules by the student to his parent or legal
guardian.

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Attendance
Unless otherwise assigned to individual teachers, the principal is responsible for managing
attendance problems. This includes following up on unexplained absences. Normally the principal
delegates this responsibility to either the classroom teacher or the vice-principal.

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Records
Principals are responsible for the security of records and also for keeping those records up to date.
A student’s record is not admissible as evidence in a court case or legal matter.

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Suspension
A teacher can suspend a student for one class, however the principal must be notified before the
end of the school day. The principal may suspend for more than one period. The suspension may
last for no more than 30 school days. The suspension can include specific class periods, courses or
extra-curricular activities. However, the director of the school board may extend the suspension if
the principal can show that the presence of the student would continue to jeopardize the safety of
employees or other students in the school. The director may also request a medical certificate
stating that the student no longer threatens the safety of the school, before the student is allowed to
return.

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Expulsion
Only the director of the school board can expel a student from school. The principal has a role to
play in expulsion. The principal shall “warn the student (recording the date and reason), notify the
parents and the Director in writing about the warning and discuss with the parent the circumstances
leading to the warning.
After an appropriate period of time has passed, and the student has made no attempt to correct
behavior, the principal will notify the student, parents and director that he is making a
recommendation for expulsion.
Prior to an order for expulsion being issued, the parents or the student (if 19 yrs or older) may
request to meet with the director. The director then makes issues the order to expel or not.

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Appeals
 School Boards
Activities before and After School School Boards
Vicarious Liability Improper Equipment
Educational Malpractice Transportation Facilities
Suspension and Expulsion Elements of a Cause of Action
Corporal Punishment Duties of School Boards Activities Before
and After School
The school board is legally responsible for the safety of its pupils only during school hours or during
authorized out-of-school activities. If the board allows the pupils to arrive early or late, the board is
legally responsible for them. It should be made very clear to parents and pupils when school or
schoolyard is open because the board may be found liable for accidents that occur outside the
normal school hours. Hence, when that parents and pupils are aware of the normal school hours for
the school or playground, the board will not be found liable for injuries happening there.

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Vicarious Liability
Despite the fact that the school boards rarely have contact with the pupils, it still can be found
negligent for the injuries of the pupils. When a teacher or other employee are acting within their
course of action and they are found to be negligent, the school board will be vicariously liable even
though it may not have been negligent itself. Therefore, the board or its insurer pays the damages
in most negligence cases. The board may seek damages from the teacher or other employee if
they were found personally negligent but this is rarely done. Note however, the school board may
itself be found liable for negligence and this is not the same as being vicariously liable.

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Educational Malpractice
The board may be sued for “educational malpractice”. The plaintiff “will allege that he or she has
suffered damages because the school board did not fulfill its duty to educate the plaintiff.” In
Canadian and United States appellate courts today, malpractice claims are unsuccessful. The
courts will recognize the difference between “educational malpractice” and negligence. The courts
will recognize that a child who does not achieve the appropriate learning outcomes is subject to
many variables that affect their ability to learn. These variables may include home environment,
language barriers, and nutrition.

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Suspension/Expulsion
When a child has been suspended, the principal must notify the board, along with the pupil, the
pupil‘s parent or guardian, and the pupils’ teachers. The board determines the maximum length of
suspension. Currently, the period for suspension is not exceeding twenty days.
Only the board may expel a pupil from its schools. They may do this on the grounds that “the pupil’s
presence is injurious or harmful to other pupils or persons”. An expulsion hearing must be held by
the board or by a committee of at least three members of the board. The board may re-admit the
pupil that has been expelled.

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Corporal Punishment
Many school boards have prohibited or severely restricted the use of physical force to discipline a
child. The Education Act and regulations do not prohibit corporal punishment. A school board is
allowed “to pay part or all of the legal costs of a teacher, officer or other employee in successfully
defending any proceeding brought against him or her ... for assault in respect of disciplinary action
taken in the course of duty” according to the Education Act (s.171 (1)[18]).

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School Boards
Section 170 of the Education Act provides:
8. keep the school buildings and premises in proper repair and in proper sanitary condition, provide,
suitable furniture and equipment and keep it in proper repair, and protect the property of the board.
9. make provisions for insuring adequately the buildings and equipment of the board and for
insuring the board and its employees and volunteers who are assigned duties by the principal