Education Law @ Institute 2019: Current Trends and Emerging Issues in Student Discipline

  • March 13, 2019
  • Alexander Mincone, student-at-law, Catholic Principals’ Council of Ontario

As part of the OBA’s 44th Institute, the Education Law Section reflected on the evolution of student discipline in the 10 years since major changes were introduced to the Education Act (Act). Lawyers and educators braved winter weather to attend the session chaired by Amanda E. Lawrence-Patel.

The session was split into three panels, with the following panelists: Samira Ahmed, litigation lawyer at Justice for Children and Youth; Luke Reid, staff lawyer at ARCH Disability Law Centre; Lauri Reesor, partner at Hicks Morley Hamilton Stewart Storie LLP; Jennifer Scott, chair of the Child and Family Services Review Board (CFSRB); Patrick Case, chief equity officer and deputy minister, Education Equity Secretariat; and Merrill Matthews, education officer, Education Equity Secretariat.

The First Panel: The Current Discipline Landscape

Samira Ahmed began the day by giving a brief overview of the disciplinary sections of the Act. In addition, she outlined that school boards have 20 days to conduct an expulsion hearing before losing jurisdiction to do so. This time limit can be extended on consent but, Samira noted growing concern that some parents sign consent forms without being fully informed. 

Luke Reid examined the mitigating factors a Principal must consider under the current discipline model before pivoting to focus on disability. Evaluating mitigating factors is particularly difficult in practice and Luke suggests the need to consider disability within the broader educational context. 

Lauri Reesor spoke about her experience representing school boards. She highlighted important documentation that should be obtained before a hearing and reminded attendees of procedural differences between local board and CFSRB hearings. Laurie offered some poignant tips: first, check for disclosure issues, like having complete files; and second, be cognitive of one’s role in the proceeding and ensure you adhere to it – do not advise both the discipline committee (trustees) and a board administrator. 

Jennifer Scott offered her insight into the procedural aspects of the CFSRB. She noted that a CFSRB hearing is de novo and follows strict procedural guidelines. For example, at hearings, school boards are expected to call direct evidence. In addition, Jennifer, echoing Samira’s comments, noting that boards must adhere to the 20-day legislative deadline to conduct expulsion hearings. She noted that boards still have a statutory duty to investigate regardless of contemporaneous police investigations and that some boards are misusing exclusion power to avoid the deadline for expulsion hearings. 

The Second Panel: Culturally Responsive and Relevant Pedagogy in Practice

This panel noted how we have come along way, but not far enough vis-a-vis progressive discipline. Patrick Case addressed attendees about the ministry initiative: Culturally Responsive and Relevant Pedagogy in Practice (CRP). He explained the foundations of the program and its implementation in select schools across Ontario. Patrick described how CRP emphasises human dignity and focuses on the discipline process, noting that his secretariat is implementing CRP with increasing participation and success. The panelists stressed the value of CRP and how its integration in schools addresses discrimination at the discipline level.

Merrill Matthews, spoke to attendees about his experiences as a school administrator embedding CRP into school life. Merrill explained that his success with CRP resulted in his school achieving a zero-suspension rate. 

The Third Panel: Current Challenges and Opportunities for Improvement

The first panelist were called back to discuss current challenges. Jennifer offered statistics from the CFSRB and noted that expulsion and appeal rates remain consistent. She spoke about the CFSRB appeal process and highlighted expedited timelines and available mediation services, resulting in most cases resolving pre-hearing. Jennifer then spoke about overlap between CFSRB and Human Rights (HRTO) files. She noted the difference in focus: CFSRB on student behaviour, HRTO on the Board’s response with respect to human rights. 

Laurie highlighted some challenges that Boards face in preparing a CFSRB hearing. She offered attendees tips for best practices: first, student discipline will only be upheld if the investigation is excellent. Laurie stressed the importance of detailed notes, explanations, and evidence retention.

Samira focused her remarks on the Youth Criminal Justice Act (YCJA) and its application in schools. She emphasized the difference between the YCJA and the Criminal Code in both its foundational principles and privacy requirements. In some circumstances, under s 125(6) of the YCJA, school officials receive disclosed information about a young offender necessary for ensuring safety, to facilitate rehabilitation, or compliance with reintegration conditions. There are restrictions on access, use, and retention of this information. Samira’s position is that school officials are not complying with the law when disclosed information is kept in the OSR.

Luke ended the day with his remarks on alternatives to discipline. He spoke about using exclusions to deal with larger systemic issues. Luke provided attendees with an overview of the differences between voluntary withdrawals, modified school days, and exclusions. His view is that school administrators are applying these alternatives in circumstances inconsistent with underlying legislative purposes. He notes that many of these processes exist in procedural limbo and data is unavailable due to lack of tracking.

Our panelists graciously gave their time and expertise to discuss contemporary and evolving issues in student discipline. Ten years may have passed since major changes were made to the Education Act, but student discipline continues to present innovative and thought-provoking challenges.


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