Noah Sarna on the issues, cases and events of interest to British Columbia's educational community
A non-legislative response to bullying
Jul 27th
There was an interesting opinion piece in the New York Times over the weekend from two professors based in Massachusetts discussing the new state law requiring schools to establish an anti-bullying curriculum, investigate incidents of bullying and report certain cases to the police. The article is designed for consumption by the general American public as a response to the near unanimous trend among states to enact similar legislation. Their premise involves the basic point that the law is only one instrument to address social challenges, and we should be realistic about the limits and side-effects of legislation:
[Legislation] alone can’t create kinder communities or teach children how to get along. That will take a much deeper rethinking of what schools should do for their students…
[The] danger of anti-bullying laws, which have now been passed by all but six states, is that they may subtly encourage schools to address this complicated problem quickly and superficially. Many schools are buying expensive anti-bullying curriculum packages, big glossy binders that look reassuring on the bookshelf and technically place schools closer to compliance with the new laws.
But our research on child development makes it clear that there is only one way to truly combat bullying. As an essential part of the school curriculum, we have to teach children how to be good to one another, how to cooperate, how to defend someone who is being picked on and how to stand up for what is right.
Involving the legal system makes a strong statement that a society won’t tolerate bullying. But for laws like the one in Massachusetts to succeed, they have to be matched by an educational system that teaches children not only what’s wrong, but how to do what’s right.
There have been a wide variety of responses by governments and legislatures over the past decades arising from the increased awareness of bullying and other forms of harassment and intimidation in schools. British Columbia has chosen to advance non-legislative initiatives to help prevent and address bullying as a common phenomenon. For example, in the late 1990s, the provincial government established the B.C. Safe Schools Initiative to deal with student safety in schools and communities. Similarly, parent groups, like the BC Confederation of Parent Advisory Councils, have released publications intended to assist parents, students, teachers and administrators. The Ministry of Education has posted a series of pamphlets on school safety on its website here. (The term “bullying” is generally reserved for elementary schools and “harassment and intimidation” is reserved for high schools.)
Although legislation in this province does not mention bullying by name, there are several general provisions that are relevant, though none impose the measures apparently being used south of the border. Many school boards have established their own internal policies for schools within their jurisdiction. As well, consider section 11(2) of the School Act (British Columbia) (BCLaws):
If a decision [or failure to make a decision] of an employee of a board significantly affects the education, health or safety of a student, the parent of the student or the student may, within a reasonable time from the date that the parent or student was informed of the decision, appeal that decision to the board.
Similarly, The Statement of Education Policy Order (Mandate for the School System), OIC 1280/89 (Ministry of Education), is an order-in-council that sets out in broad strokes the purpose of the BC school system and outlines general policies , rights and responsibilities to advance that purpose. For example, parents have “a primary responsibility to ensure that children are provided with the healthy and supportive environment necessary for learning”.
Much of the literature promoted by the Ministry of Education appears to be consistent with the approach advanced by the professors in the New York Times article: teach children the importance of standing up for each other, sharing with each other and promoting a sense of community. It remains to be seen whether the legislative approach they critique will produce the right results.
A peek into student records
Jul 21st
Anonymity in Western countries is now almost impossible. In the age of the internet, each one of us has some public record or image. We leave streaks of ourselves in any user-generated website, like facebook, myspace, youtube and linkedin. We write letters to the editor, comment on blogs, and the list goes on. As a result, we all have a history that can be accessed – easily – by almost anyone at any time. The ability to “google” someone can be a good thing or a bad thing, depending on who is doing the googling, whether the information is accurate or unjustly intrusive, etc.
Similarly, some records are important, and some are not. When it comes to children, many parents reflect on their own journeys and successes and can clearly identify what doors needed to open for them to obtain the goods things in life. Generally, it starts with school. Getting into law school at McGill meant I needed to thrive in my undergrad, which meant I had to develop good skills in high school and earlier, which meant I couldn’t be one of those kids school administrators and teachers thought was a trouble-maker or a flake to be admonished or doubted until I proved myself to be otherwise.
Each step wasn’t absolutely necessary to achieve the end result, and it is possible to arrive at the same place from a far less fortunate path, but for my children I definitely prefer they enjoy all the advantages that I had every step of the way. That is why many parents want to minimize those items that could present a risk – like the contents of student records, which are there to present a reference point for educators at each institution their children attend.
But what are student records? What do they, or should they, include? Should every challenge or misdeed of a student be marked down for every subsequently educator to review?
In British Columbia, there are specific rules for what should be held by school administrators in every student record. Consider the following provisions of the School Act (British Columbia) in relation to public schools:
- Section 9: Each student and their parents are entitled to examine the student records held by a school board in relation to that student while accompanied by a principal or other appointee.
- Section 79: Each school board must establish and maintain a record for every student registered with a school within that board’s jurisdiction and have written procedures for storing, retrieving and using student records. As well, each school board must ensure that information in each student record is kept confidential, although they may be ordered to allow access to a person providing support services.
- Section 79.1: If separate records are kept concurrently by multiple educational authorities that pertain to a single child involved with each of those authorities, then each authority must provide the other with access to their student records in respect of the child.
- Section 170: Every employee or person otherwise engaged by the Ministry of Education must not disclose information in a student record unless required to administer these laws or conduct business of the Ministry. As well, every such person must swear an oath not to disclose this information and if they break that oath that have committed an offence.
More specifically, the contents of the student record that must be established and maintained under section 79 above are set out in Ministerial Order M082/09. Each board must ensure that the record maintained for each student enrolled in the public school system includes:
- A completed version of the most recent Ministry of Education form entitled “Permanent Student Record” (PSR) and all documents listed as inclusions on that form. The PSR form generally shows whether there are any medical or legal alerts (e.g. restraining order) associated with the child, general student information (e.g. name, Personal Education Number, date of birth, etc.), and the student’s record of school (e.g. where, when, etc.). The inclusions listed on the PSR form involve documents that help plan or support the student’s education program. Certain documents must be included; for example, any copies of restraining orders. Other documents may be included; for example, information an educator (namely, a principal) deems relevant to the education program of the student.
- Student progress reports for the two most recent years or a copy of the student’s transcript.
- If letter grades are not set out in progress reports for certain years, a written record of those letter grades.
- The student’s current Student Learning Plan, if any. A Student Learning Plan is the plan set out in the Career and Personal Planning 8 to 12 Integrated Resource Package (1997) educational program guide.
- The student’s current IEP, if any. An IEP – or Individual Education Plan – is defined in Ministerial Order 638/95 as a series of specific learning outcomes designed for a student and includes special assistance and support services available for the student.
Each school board generally has policies addressing these requirements. For example, the Policy Manual of the Vancouver School Board includes a section on student records, which provides guidance to teachers and administrators about the contents of student records:
[Access] to teachers’ notes may be requested by parents or students under the Freedom of Information and Protection of Privacy Act. Any such requests should be referred to the school principal. When preparing notes for insertion in teacher or classroom files, the information should be factual and worded in a careful, professional manner. Insertions intended to go into the formal student file kept in the office should be dated and signed.
While educators have a responsibility to keep all relevant student information on file and to protect the privacy of others, if information is being released, there is a companion responsibility not to retain information that is irrelevant to the student’s educational program or general well-being. This is a professional responsibility that requires careful review and consideration… It is the principal’s responsibility to decide whether or not documents are relevant to the educational program of the student and, therefore, whether they should be listed in the List of Inclusions and maintained in the student file. All student records should be up-dated and culled regularly.
Another important aspect of Ministerial Order M082/09 is what a board must do with the student records it holds when one of its students transfer elsewhere:
On receipt of a request from a board to which a student transfers and is enrolled, a board must transfer [the documents referred to above] to that board… Where a former student of a board is enrolled in an independent school… and a board receives a request from that independent school… the board must transfer a copy of the documents [referred to above].
This means there is some degree of discretion on the part of educators to choose material to be included, and that your child’s student record will trail them, for better or worse, until their graduation. (If the last school you attended was within the jurisdiction of the Vancouver School Board, then you can obtain a copy of your PSR by completing a form located here.) The legislature has acknowledged that parents, guardians and students have a right to access a student’s file. This right should be exercised in a manner that, on the one hand, respects the administrative burden it can place on schools but, on the other hand, also recognizes the light it sheds on the relationship between an educator and a student and the impact a student record may have on a child’s future.
Supreme Court of Canada refuses to hear appeal of UBC ticket case
Jul 12th
The Supreme Court of Canada recently dismissed (CanLII) an application by Daniel Barbour – the accountant who claimed UBC had no right to issue parking tickets – to hear an appeal to the decision (CanLII) of the BC Court of Appeal rejecting his claim. This brings his lawsuit to a final close. Here is a press release by UBC’s Office of the University Counsel.
There are many interesting elements of Barbour’s story – see my previous posts here and here.
BCTF sues chair of BC College of Teachers for defamation
Jul 7th
CBC reported earlier today that the BC Federation of Teachers (BCTF) has commenced a defamation lawsuit against Richard Walker, the current chair of the BC College of Teachers, for comments he made in an opinion piece published in a May edition of the Vancouver Sun. (A link to the court document filed by the BCTF. which contains excerpts of the opinion piece, is available through the CBC article above.)
In the opinion piece, Walker noted that 270 complaints against teachers from members of the public (through the “person complaint” process) have been filed with the College since 2003 but no teacher has been disciplined, a fact which he alleged raises serious questions about how the BCTF has been using the College illegitimately to protect certain teachers to the detriment of students. He also argued that changes should be made to the way the College functions in relation to the BCTF, specifically the endorsement by the BCTF of candidates for election to the governing body of the College. Walker referred to Tom Ellison (Vancouver Sun), a teacher and convicted sex offender, to highlight the need for a procedure to identify and deal with troublesome teachers early on. The opinion piece, among other factors, prompted Education Minister Margaret McDiarmid to launch a review of the College, which was not supported by the BCTF.
BCTF claims that Walker’s allegation that it interferes with, or bears undue influence upon, the disciplinary process maintained by the College is false and untrue and that BCTF suffered loss as a result on Walker’s defamatory words.
Is it likely a court will side with BCTF? Here is a summary from the Canadian Encyclopedia of the law of defamation in Canada by Lewis N. Klar, a renowned author and expert on Canadian tort law:
Defamation law protects an individual’s reputation and good name. Defamation law does, however, restrict freedom of speech. Thus, in deciding defamation actions, the courts must carefully balance these 2 important values…
With the advent of the electronic mass media, such as radio and television, the difference between the written and spoken word became less important. Widely disseminated speech can cause as much harm as something which is written down. As a result, some provinces have even eliminated any practical distinctions between libel [i.e. written defamation] and slander [i.e. oral defamation].
In order to succeed in an action for defamation, the claimant must prove 3 things. First, that the material was defamatory. This means that it lowered the person’s reputation in the eyes of the “right-thinking” person. Second, it must be proved that the material referred to the claimant. In other words, people who heard or saw the material must have realized that it was the claimant whose reputation had been tarnished. This requirement prevents individual members of defamed groups from suing for defamation since it is the group itself that has been targeted. Third, it must be proved that the material was communicated to or published for someone other than the person actually defamed.
Even if the claimant can prove those three things, the onus shifts to the defendant to provide a defense. There are two defenses, among others, that Walker may assert in these circumstances:
- It’s the Truth. Generally, you can’t sue someone to stop them from saying things that are true about you. The protection of one’s reputation under defamation cannot be stretched that broadly. Since the onus to prove the truth of the allegations contained in the opinion piece are on Walker, it will be interesting to see what facts are brought in support.
- It’s a Fair Comment. Opinions on matters of public interest that can be honestly-held on the proven facts are protected. This is a softer defense than the truth – while the truth is an “absolute defense”, the defense of fair comment is eroded if the writer or speaker acted with the intent to injure the target of the comments or otherwise pursue their reputation with malice. This is addressed pre-emptively by the BCTF in their document filed with the court.
Thus far, only BCTF’s perspective on this matter has been presented in the media. It will be interesting to see how Walker chooses to respond. In any event, this news reminds all of us, even in the world of education, that our words carry legal consequences and that in the age of the internet – where everyone with a modem has a megaphone – is becoming increasingly important for us to use those words with caution.
Wanting money back from a university? Be careful what you wish for
Jul 5th
Many readers have expressed outrage (or, at the very least, mild dismay) at the legal principle set out by the BC Court of Appeal in Barbour v. University of British Columbia (CanLII) and discussed in a recent post on this blog: namely, that the legislature can pass laws that have the effect of retroactively altering the rules applicable to a dispute. As one person put it:
Someone’s driving on the highway at 100 km/hr in a 100 km/hr area. A cop pulls him over and accuses him of speeding for breaking the speed limit. He is given a big, fat ticket, which he contests. By the time the driver and the cop get before a judge, the speed limit has been changed to 90 km/hr. The judge hears them argue about how fast the driver was going, only to shut them up and find against the driver because, well, even if he was going 100 km/hr he was still breaking the law.
In the case of Mr. Barbour, UBC had imposed fines for breaking parking rules that had exceeded the powers of the university under the provisions of the University Act (BC) applicable at the time. UBC tried to enforce those parking rules, Mr. Barbour refused to comply with them, and a BC Supreme Court judge agreed (CanLII) with him about the lack of authority. After that decision was released, the provincial legislature passed amendments to the University Act that specifically granted UBC retroactive authority to impose the parking rules. As a result, even though Mr. Barbour was ordered to pay fines because he broke rules the university (at that time) had no authority to make, he has to pay those fines regardless because of the change in the law.
After the legislature got involved, Mr. Barbour argued that these changes should not apply to his case because of the principle of judicial independence. Effectively, the legislature was using its law-making power to overrule the decision of the Supreme Court, while the courts are supposed to serve as a check on the legislature and not the other way around. The BC Court of Appeal disagreed with this view:
We consider it is clear in Canada that the Legislature may enact legislation that has the effect of retroactively altering the law applicable to a dispute. While a Legislature may not interfere with the Court’s adjudicative role, it may amend the law which the court is required to apply in its adjudication. The difference between amending the law and interfering with the adjudicative function is fundamental to the proper roles of the legislature and courts in our parliamentary democracy.
The court pointed to several other decisions showing the legislature is not prevented from passing legislation that applies retroactively to change the laws applicable to events at issue in a lawsuit:
- Air Canada v. British Columbia (CanLII): In 1980, several airlines sued the provincial government for reimbursement of amounts paid in the mid-1970s as gasoline taxes. The law allowing the collection of these amounts was struck down by the courts because it was beyond the province’s constitutional authority. The legislature subsequently amended the law to make it within provincial jurisdiction and extended its application back to the time the airlines paid the taxes, which legalized the retention of the funds. Mr. Justice LaForest of the Supreme Court of Canada cited numerous policy concerns specific to enforcing retroactive legislation in the face of an unconstitutional statute, many of which were unique to a taxing authority (e.g. if these amounts had to be returned, then the government might have to introduce a new tax to recoup its losses).
- Highland Valley Copper v. British Columbia (CanLII): In the mid-1990s, a mining company paid certain amounts in PST on electrical consumption and claimed a portion of it back as a refund. When the government denied the claim, the company obtained a declaration by the BC Supreme Court that it was entitled to the refund. Legislation was brought in as an immediate response to the court’s decision and to deny that right. Mr. Justice Hall of the BC Court of Appeal agreed with the province and rejected the refund, commenting as follows:
One can, I suppose, feel a measure of sympathy for the appellant and its advisers, who had achieved some success under existing legislation only to see this success reversed by subsequent legislation. However, if the legislative will is clearly manifested in legislation, the courts are bound to construe it according to its language and tenor.
In British Columbia v. Imperial Tobacco Canada Ltd. (CanLII), Mr. Justice Major of the Supreme Court of Canada dealt with this issue by setting out the appropriate relationship between the courts and the legislature:
It follows that the judiciary’s role is not, as the appellants seem to submit, to apply only the law of which it approves. Nor is it to decide cases with a view simply to what the judiciary (rather than the law) deems fair or pertinent. Nor is it to second-guess the law reform undertaken by legislators, whether that reform consists of a new cause of action or procedural rules to govern it. Within the boundaries of the Constitution, legislatures can set the law as they see fit. “The wisdom and value of legislative decisions are subject only to review by the electorate”: Wells v. Newfoundland, 1999 CanLII 657 (S.C.C.), [1999] 3 S.C.R. 199, at para. 59.
The moral of the story? First, this principle of law, right or wrong, points to the supremacy of the legislature and the limits of the judiciary. Courts exist to interpret and uphold laws and to make sure those laws are consistent with each other, specifically with the constitution. The legislature is elected to make the laws (or revise them, as the case may be). Second, this should be considered whenever anyone decides to go up against a public body like a university, particularly when there is a refund at stake. The exercise may be futile and counter-productive. If you claim the public body had no authority to do something, and there is the political will to allow them to do it, then all you might get at the end of the day is an explicit change to the law, stating that the public body does in fact have that authority.
How should school administrators respond to cyberbulling?
Jun 28th
There was an interesting article by Jan Hoffman over the weekend in the New York Times discussing the legal implications of cyberbulling, particularly for schools and parents. There may be certain variations in the legal tests that apply in the United States and British Columbia but I think the article is important because it explores the sociological phenomenon of cyberbulling and how it is being treated by lawyers and judges.
One issue to consider is whether cyberbulling is more likely to result in litigation than ”traditional” bullying and, if so, why that is the case. As well, cyberbullying raises the common question for schools about the limits of their jurisdiction and whether (or to what extent) schools are responsible for off-campus activities of students.
The article is fairly long, and I reproduce below the portion dealing with legal battles arising from cyberbulling.
Tony Orsini, the Ridgewood principal, learned about a devastating Facebook group last November, two months after it started.
“I had a 45-year-old father crying in my office,” Mr. Orsini said. “He kept asking, ‘Why would someone do this to my son?’ ”
A Facebook page had sprung up about the man’s son, who was new in town. The comments included ethnic slurs, snickers about his sexuality and an excruciating nickname. In short order, nearly 50 children piled on, many of them readily identifiable. “Kids deal with meanness all the time and many can handle it,” said Mr. Orsini, 38, a father of two children. “But it never lasts as long as it does now, online.”
The boy could not escape the nickname. At soccer and basketball games around town, opposing players he’d never met would hoot: “Oh, you’re that kid.”
The boy began missing school. He became ill. After weeks, he reluctantly told his parents.
“We don’t always get to address these problems until the damage is done,” Mr. Orsini said.
Because the comments had been made online and off-campus, Mr. Orsini believed that his ability to intervene was limited.
Rulings in a handful of related cases around the country give mixed signals.
A few families have successfully sued schools for failing to protect their children from bullies. But when the Beverly Vista School in Beverly Hills, Calif., disciplined Evan S. Cohen’s eighth-grade daughter for cyberbullying, he took on the school district.
After school one day in May 2008, Mr. Cohen’s daughter, known in court papers as J. C., videotaped friends at a cafe, egging them on as they laughed and made mean-spirited, sexual comments about another eighth-grade girl, C. C., calling her “ugly,” “spoiled,” a “brat” and a “slut.”
J. C. posted the video on YouTube. The next day, the school suspended her for two days.
“What incensed me,” said Mr. Cohen, a music industry lawyer in Los Angeles, “was that these people were going to suspend my daughter for something that happened outside of school.” On behalf of his daughter, he sued.
Last November, Judge Stephen V. Wilson of Federal District Court found that the off-campus video could be linked to the school: J. C. told perhaps 10 students about it; the humiliated C. C. and her mother showed it to school officials; educators watched it and investigated.
But the legal test, he wrote in his 57-page decision, was whether J. C.’s video had caused the school “substantial” disruption. Judge Wilson ruled in favor of the young videographer, because the disruption was only minimal: administrators dealt with the matter quietly and before lunch recess.
This legal test comes from a 1969 Supreme Court case, Tinker v. Des Moines Independent Community School District, in which a school suspended students for wearing black armbands to protest the Vietnam War.
The court overturned the suspension, but crafted a balance between a school’s authority and a student’s freedom of expression. When a student’s speech interferes substantially with the school’s educational mission, a school can impose discipline.
The district had to pay J. C.’s costs and lawyers’ fees: $107,150.80.
Judge Wilson also threw in an aside that summarizes the conundrum that is adolescent development, acceptable civility and school authority.
The good intentions of the school notwithstanding, he wrote, it cannot discipline a student for speech, “simply because young persons are unpredictable or immature, or because, in general, teenagers are emotionally fragile and may often fight over hurtful comments.”
The lesson Mr. Cohen hopes his daughter learns from the case is about the limits on governmental intrusion. “A girl came to school who was upset by something she saw on the Internet,” Mr. Cohen said in a telephone interview, “and these people had in their mind that they were going to do something about it. The school doesn’t have that kind of power. It’s up to the parents to discipline their child.”
He did chastise his daughter, saying, “That wasn’t a nice thing to do.”
He describes her video as “relentlessly juvenile,” but not an example of cyberbullying, which he said he did not condone. His daughter offered to remove it from YouTube. But Mr. Cohen keeps it posted, he said, “as a public service” so viewers can see “what kids get suspended for in Beverly Hills.”
The J. C. decision has ignited debate. Nancy Willard, an Oregon lawyer who consults with schools, said that the judge could have applied another, rarely cited prong of the Tinker standard: whether the student’s hurtful speech collided with “the rights of other students to be secure.”
The Supreme Court has not yet addressed online student speech. Lower-court judges in some districts have sided with schools that have disciplined students for posting threatening videos about educators from their home computers.
In two recent cases, students were suspended for posting parodies of their principals. Each case reached the Court of Appeals for the Third Circuit. But one three-judge panel sided with a school for disciplining a student whose site suggested the principal was a pedophile; another panel sided with its case’s student, whose site suggested the principal used steroids and smoked marijuana. To resolve the contradictory rulings, both cases were re-argued earlier this month before 14 judges on the Third Circuit, whose jurisdiction includes New Jersey, Delaware, Pennsylvania and the United States Virgin Islands.
Nationwide, principals have responded to students who demean others online in dramatically different ways.
In January, 28 Seattle middle school students who wrote noxious comments on Facebook about one student received suspensions. The school also held assemblies about digital citizenship.
But when the mother of a seventh-grade boy in Fairfax County, Va., who requested anonymity to protect her son’s identity, sent his principal the savage e-mail messages and Facebook jeers that six boys posted about her son, the principal wrote back that although the material was unacceptable, “From a school perspective this is outside the scope of our authority and not something we can monitor or issue consequences for.”
Many principals hesitate to act because school discipline codes or state laws do not define cyberbullying. But Bernard James, an education law scholar at Pepperdine University, said that administrators interpreted statutes too narrowly:
“Educators are empowered to maintain safe schools,” Professor James said. “The timidity of educators in this context of emerging technology is working to the advantage of bullies.”
Whether suspension is appropriate is also under discussion. Elizabeth Englander, a psychology professor at Bridgewater State College in Massachusetts and founder of the Massachusetts Aggression Reduction Center, believes that automatic discipline for cyberbullies is wrong-headed.
“We tend to think that if there’s no discipline, there’s no reaction,” she said. “But discipline should never be the only thing we consider in these cases. There are many things we can do with children first to guide and teach them about behavior and expectations.”
Tony Orsini wanted to help his middle school student who was being teased mercilessly on Facebook. But he believed he had to catch the bullies at school.
He alerted teachers. At lunch, they spotted the three ringleaders as they forced the boy from their table.
“I called them into my office,” Mr. Orsini said, “and talked to them strongly about the lunchroom incident. Then I lied. I said I heard that the cops were looking at a Facebook group they had posted.
“It came down the next day.”
He rubbed his face in his hands. “All we are doing is reacting,” he said. “We can’t seem to get ahead of the curve.”
Pigs, educational malpractice and other things that don’t fly
Jun 24th
It is the king of white elephants. Lawyers, doctors, accountants and other professionals spend much of their average day staring it in the face. It impacts how they speak to people, what they ask and when they choose to retreat. They are so used to it hanging around that they treat it like a sibling they don’t like but can’t ignore.
That’s right – malpractice. (If you guessed “money”, you get half a point.)
Malpractice is a legal claim you can make in tort (wikipedia) against a professional, alleging that they owed you a duty (i.e. to provide reliable legal services) but failed to satisfy that duty according to accepted professional standards, and you suffered an injury as a result of that failure. Part of the reason lawyers, doctors and accountants are constantly trying to do a good job is because if they make a mistake it means a phone call to their insurance company and a possible claim of malpractice that can end their career.
Interestingly, while teachers also marshall an expertise that may significantly influence individuals for better or worse, malpractice has not been applied to them. Of course, educational institutions can be made liable for negligent acts or omissions of their employees (e.g. if a gym teacher lets kids play a sport recklessly), but the term “educational malpractice” refers to a distinct type of failure that is essential to the function of educators. In Hozaima v. Perry et al (CanLII), the Manitoba Court of Queen’s Bench set out this view:
Educational malpractice is a term that is used in some of the jurisprudence and refers to the potential liability of educational institutions for their failure to educate their students. The concept of educational malpractice in the form of liability for failure to educate first started as a concept in the United States in the mid-1950s, but a broad duty of care of that nature was stifled very early on the grounds of public policy due to the difficulty of proof necessary to show acceptable standards of care for classroom methodology, as well as the socio-economic consideration that would create too great a public burden in time and money for the system… However, in Janisch, H.N., “Education Malpractice: Legal Liability for Failure to Educate” (1980) The Advocate, Vol. 38 at 491, Professor Janisch foresaw the possibility of a limited extension of the liability of universities for the quality of the educational experience offered their students. This he foreshadowed might occur in contract and in an extension of the fiduciary duty. He also foreshadowed the possibility of liability of individual professors (see p. 498).
Many students at every educational level complain about their teachers. Many people can likely recall one or two teachers that, frankly, just stank at what they did, and we like to blame them for our knowledge inadequacies as adults. But there is, and should be, a world of difference between disliking a teacher’s style or being disappointed with their level of effort and being able to sue them or the school for those qualities. The arguments against allowing someone to base a claim in tort on educational malpractice is that it is difficult to demonstrate precisely what a teacher should have done differently and what injury the student suffered as a result. As well, schools would constantly be in court, or be worried about being dragged to court, if every student who never understood algebra could call a lawyer to have them send their grade 7 teacher a demand letter.
This view, in somewhat more sophisticated terms, currently prevails in Canadian courts. Many Canadian cases on the subject are based on two American decisions:
- Peter W. v. San Francisco Unified School District et al: where a student claimed his school didn’t recognize his learning disabilities, put him in higher classes without realizing that he couldn’t read the materials, allowed him to graduate high school even though he could only read at a grade 8 level, and so on. The California Court of Appeals rejected his claim for the reasons mentioned above.
- Donohue v. Copiague Union Free School District: where a similar claim was advanced, with a similar response from the New York Court of Appeals.
These cases were both decided in the late 1970s. Since then, courts in both the United States and Canada have rejected claims against school authorities in tort related to the quality of education. As a result, whenever a claim is launched against a educational institution that seems conceptually similar to educational malpractice, one of the defences is that the claim should be struck because educational malpractice is not actionable (i.e. it cannot be the basis of a lawsuit) – here are examples from the University of Ottawa and the University of Manitoba (CanLII).
Nonetheless, there have been arguable cracks in the consensus that indicate some possibility of Canadian courts accepting educational malpractice in the future. For example, in Gould v. Regina (East) School Division No. 77 (CanLII), the Saskatchewan Queen’s Brench commented that if a teacher’s conduct was so offensive to community standards such a claim could be entertained:
It is surely not the function of the courts to establish standards of conduct for teachers in their classrooms, and to supervise the maintenance of such standards. Only if the conduct is sufficiently egregious and offensive to community standards of acceptable fair play should the courts even consider entertaining any type of claim in the nature of educational malpractice.
As well, there have been several cases in which a court refused to dismiss a claim involving educational malpractice where the allegation involved a failure of the educational institution to deliver what it had promised. For example, if the school advertises a degree can be obtained in two years, there is a risk a student could sue if that turns out not to be true. See here and here (CanLII). These and similar decisions deal with a court’s refusal to dismiss a claim rather than a substantive decision on the merits; allowing a lawsuit to proceed because it may not be a waste of time is different from agreeing with the plaintiff’s case. So, educational malpractice still has a long way to go. Here is an article from Paul Howard, an education law expert at Shibley Righton LLP, with an interesting take on educational malpractice.
The lessons, if any, that can be drawn from the judicial treatment of educational malpractice are limited since no court in North America has accepted the tort. Nonetheless, there does appear to be some flexibility with regards to student claims involving contracts and misrepresentation by an educational institution. As a result, schools, particularly universities, must review any representations they make to ensure that they can deliver on what they promise.
Shop class negligence claim by student fails
Jun 17th
Evan MacIntyre, in relative terms, has had an unlucky recent history. When he was 14, a lawn mower engine fell on his right wrist. When he was 15, a car hit his right leg as he was walking in a crosswalk. When he was 19, the truck he was driving was hit from behind by a van. These accidents left him with injuries that he claims continue to have a significant impact on his ability to work and enjoy recreational activities.
Oy vey.
Evan started a lawsuit against the alleged wrongdoers for all three injuries, and the three claims resulted in a single judgment – MacIntyre v. Pitt Meadows Secondary School (CanLII). Ultimately, Evan was generally victorious and was ordered a significant damages award, but on the most interesting claim – the one against his school and school board – he failed.
In 2002, Evan was a 14 year-old grade 9 student at Pitt Meadows Secondary School. The facts surrounding the injury he suffered in shop class one day were difficult for the court to determine. He did not tell his teacher or the school about the incident for two years, when Evan started the lawsuit. He told his parents little about the incident until shortly before then. The only evidence available about the engine hitting his wrist came from Evan himself. He could offer no evidence of why or how it happened. Ultimately, the court determined that Evan himself had no actual recollection of the events that occurred on the day of the incident.
Interestingly, the court found that it did not need to know how the accident happened to find the school authorities negligent. The court considered several factors in rejecting Evan’s claim:
In the trial decision in Thornton v. Prince George School District No. 57, reflex, [1975] 3 W.W.R. 622 (B.C.S.C.), rev’d on other grounds (1976), 73 D.L.R. (3d) 35 (B.C.C.A.), Andrews J. found that the teacher owed a duty to ensure that the equipment provided is reasonably safe for the purpose for which it is intended: 632. In Wells v. Smithers School District No. 54, [1987] B.C.J. No. 2297 (S.C.), Legg J. considered a case involving an injury arising from the use of a planer in a woodworking class. He noted that a planer is a dangerous machine and found that a school owed a strict duty of care to a student operating a dangerous machine. In finding liability against the school in that case, he balanced three factors: the probability of an accident happening; the possible seriousness of its consequences; and the costs of reducing the risk of injury.
In this case:
- the activity that day in the shop class was not inherently dangerous;
- there was a minimal risk of serious injury;
- the students were mature and competent enough to participate without constant supervision;
- the teacher had provided the students with sufficient safety instructions; and
- the equipment provided was reasonably safe for its intended use.
Schools are filled with constant potential for teenage injuries. Teachers, schools and school boards should look to decisions like MacIntyre for guidance on the criteria by which their conduct will be judged if – even two years after an incident – a student brings forward a claim for negligence.
University of Calgary facebook reprimand reaches judicial review
Jun 15th
The latest facebook-got-your-tongue litigation making national headlines (Vancouver Sun) popped up this week from the University of Calgary, where twins – both students – were placed on probation two years ago for stinging comments they made in November 2007 about a professor on a facebook page entitled “I no longer fear Hell, I took a course with [the Professor's name]“. The comments on the site include suggestions that the professor “got lazy and gave everybody a 65″.
The professor complained to the interim dean that this was an assault on the professor’s reputation, and the interim dean determined that the twins had used facebook to commit non-academic misconduct and handed down a penalty accordingly. The Board of Governors declined to hear an appeal of the decision and grant them a formal hearing. The twins are now seeking judicial review before the Court of Queen’s Bench in Alberta. Arguments before the court began this past Friday and were adjourned to another date.
The university maintains that the twins made unsubstantiated allegations that violated the school’s student code of conduct. No formal hearing was required given the nature of the penalty handed down. In contrast, the twins claim they wrote nothing wrong and the university’s actions smack of procedural unfairness. The university is trying to place a muzzle on legitimate criticism of professors.
This is a sad picture for a number of reasons:
- The university appears to have done a miserable job of explaining its position in the court of public opinion. While the demands of journalists to write short, punchy news pieces on a tight deadline means that much of the essential facts may get chewed up in the process, there does not seem to be any clear response by the university to several basic questions. By what authority did the school punish the twins for comments they made online in a non-academic forum? How broad is this power and how else has it been used? Does the university consider the comments to be defamation or a milder form of wrongdoing that nonetheless violated the student code? What sort of online criticism of professors is permitted under the code? You cannot control how much of your side of the story the media decides to tell, but you better use any resources you have to stream it into the marketplace. The U of C website showed no recent press release asserting its view of the matter.
- The twins are in the uneasy position of having to justify publicly why they made seemingly juvenile comments that have likely impacted the professor’s livelihood in a meaningful way. Many students use facebook the way baby boomers, in their student days, used – well – talking. Students have traditionally made fun of unpopular professors and criticized them unfairly, but usually only in a somewhat private setting – students nowadays would never dream of splashing those comments across the national media, which is exactly what has happened in this case. As much as the university has to justify its response to the comments, the twins have to defend the comments as legitimate.
The best advice I have ever heard about making online commentary is never post anything that you would not want to see appear after your name on the front page of a major newspaper. Facebook has entered the courtroom in many ways, particularly to the detriment of student users. For example, in MacIntyre v. Pitt Meadows Secondary School (CanLII), a recent decision of the Supreme Court of British Columbia involving a student’s claim for compensation for an injury suffered in shop class, the court relied heavily on photos posted on facebook as evidence showing the student shortly after the accident being physically and socially active.
Students have the freedom to criticize their professors in public, but it has never been easier for those comments to cross the line into something more troublesome and they must be aware not only of the rules surrounding a tort like defamation but also the rules of the school they attend that form part of their educational contract. School administrators must establish policies governing this new venue for commentary. Although it is difficult to glean from the media reports enough information to draw concrete conclusions in this case, universities – in Alberta, British Columbia and the rest of Canada – are looking to a court decision arising from the University of Calgary’s travails that will provide further guidance in setting the appropriate course.
Court of Appeal sides with UBC over faculty association in dispute over limits of collective agreement
Jun 9th
Before I went to law school, “jurisdiction” was a very boring word. It made me think of old action movies, where the hero would brush aside a lack of “jurisdiction” to bring the bad guys to justice. Jurisdiction seemed like a harness; an impersonal line, likely drawn arbitrarily, that got in the way of getting things done.
But movies are just movies.
Jurisdiction is a fundamental concept at the heart of our system of laws. We accept the rule of government provided it does not exceed the powers we have granted to it for the purpose of maximizing its utility. We agree to live under the thumb of a tremendous number of different authorities – from police officers, to driver’s licensing bureaus, to professional regulatory bodies, and so on – that are defined by the slivers of control they are permitted to exert over our affairs. Presumably, the system works when each authority does a decent job of exercising the powers within its jurisdiction.
Many significant events are determined based on jurisdiction. Laws that were previously followed are struck down because the legislative bodies that enacted them over-reached. Defendants accused of certain offences often throw up hail mary arguments during trials – sometimes successfully! – that they should be let off the hook because the laws at the core of the allegations against them were put in place by the wrong body.
A recent court judgment demonstrates the importance of jurisdiction in the university context. The BC Court of Appeal last month released its decision in Faculty Association of the University of British Columbia v. University of British Columbia, rejecting the Faculty Association’s appeal to a determination by a labour arbitrator that its hands were tied when dealing with a new policy of the university Senate. The Faculty Association had been upset by a policy implemented by the Senate surrounding student evaluations of teachers and filed a grievance under the collective agreement. Here are the legal arguments of the Faculty Association. Here is an interesting comment on the decision from Léo Charbonneau, a deputy editor and blogger at University Affairs, and here is one of his blog posts on the subject.
There are several actors in these events with jurisdiction that is tightly defined:
- UBC is a corporation operating under a bicameral model of governance – that is, under the University Act (BC), the Board of Governors has jurisdiction over business affairs and the Senate has jurisdiction over academic affairs, including improving the quality of teaching at UBC.
- The Faculty Association is a trade union that must represent the interests of a certain class of UBC employees and has been recognized by UBC as a bargaining agent on behalf of those employees.
- Where the Faculty Association files a grievance against UBC under the collective agreement, the jurisdiction of the labour arbitrator is limited to providing a remedy to those actions of the employer that are “arbitrable” – that is, the labour arbitrator may only render a decision on those actions committed by UBC within the scope of the collective agreement.
The Faculty Association argued that the “university is the university is the university”. In other words, the Senate is part of UBC – the employer under the collective agreement – and the agreement applies to the policy. If the two items conflict, the collective agreement must prevail, and the labour arbitrator has the jurisdiction to give effect to that relationship.
The court disagreed and maintained that the jurisdiction of the Board of Governors and the Senate were distinct, and the Board could not bind the Senate to the terms of a collective agreement that conflicted with the terms of the policy. The Board could not overrule the decision of the Senate on matters within the Senate’s jurisdiction, and vice versa. Otherwise, the Board could use a collective agreement to step into the Senate’s domaine and exercise powers not granted to the Board under the University Act.
This approach rekindled the debate in Kulchyski v. Trent University, where due to financial difficulties the Board decided to close and sell off two campuses in downtown Peterborough. The Senate opposed this decision and argued it had jurisdiction. Two professors began a lawsuit on this basis. The Ontario Court of Appeal ultimately ruled in favour of the Board and maintained that the Board, not the Senate, had jurisdiction to make this decision.
In British Columbia, many of our universities effectively demonstrate their abilities to maintain a powerful bicameral governance structure. University bodies must be keenly aware of the boundaries of their jurisdiction at all times or else risk contestation that may result in considerable costs and delays.
