• This is a 2-part article; click here to go to Part 2 (which includes the References).

Students, especially, but also parents and teachers, throw themselves into one of the biggest life-changing events with very little knowledge of their legal rights. This article goes behind the scenes of that beats we call school, and peels away the layers of law which regulate this essential government service.

The law has school law covered, even defining basic terms such as school, school board, school bus and education.

At Duhaime.org: Learn Law we also have other, related web-pages such as:

The Constitution and School Boards

School law varies from jurisdiction to jurisdiction, sometimes substantially. For this article, we have chosen to look closely at the structure in place in the Canadian Province of British Columbia.

Before going into this subject, surfers should know that the BC School Act is available online at http://www.qp.gov.bc.ca/statreg/stat/S/96412_00.htm.

The BC Teaching Profession Act is at www.canlii.org/en/bc/laws/stat/rsbc-1996-c-449/latest/.

In Canada, education is a provincial legislative jurisdiction. So says § 93 of the Constitution Act, 1867:

"In and for each Province the Legislature may exclusively make laws in relation to education....".

The Charter of Rights and Freedoms repeats this division of powers, at § 29.

SchoolIt is hard to argue with the statement that - other than maintaining peace and order - education is the most important function of government.

To put this into perspective, a 1989 case comes to mind, Salter v. Peace River South School District where the judge said that a school board is not just any ordinary employer but an employer whose product is citizens.

The BC School Act describes an educational program as:

"... an organized set of learning activities .... designed to enable learners to develop their individual potential and to acquire the knowledge, skills and attitudes needed to contribute to a healthy, democratic and pluralistic society and a prosperous and sustainable economy."

Provincial governments have delegated much of the administration of the school system to regional school boards. The boards themselves have no inherent power whatsoever. Any powers they have must have been delegated to them by legislation; e.g. the School Act.

The province of BC has been divided into zones known as "school district" and each one has a governing "school board" comprised of "trustees" who are elected from among the residents of that district, every three years.

"The trustees elected or appointed under this Act for each school district and their successors in office constitute a board of school trustees for the district and are a corporation under the name of "The Board of School Trustees of School District No. 1 (Fernie)" (or as the case may be)." (s. 65 School Act).

To assist in administering the schools contained within their district, boards often set up committees.

Boards are required to meet at least once every three months. Boards can pass by-laws (which must be subjected to three readings: §68 School Act) and their meetings are open to the public, although they can exceptionally hold private meetings (called "in camera") if "the public interest so requires." Boards can also expel unruly persons from their meetings; even individual trustees!

The board's primary responsibility is to manage all schools in its district. This includes opening and closing of schools and the delivery of "education programs to all persons of school age resident in its district." (§73, 74 and 75 School Act).

The board must provide "educational resource material" free of charge to all students, although they are allowed to require a deposit.

The board may charge fees for "goods and services provided by the board."

Needless to say, there has been litigation around what constitutes "educational resources material", for which a board may not charge, and "goods and services", for which a board may charge.

In a curious legislative drafting technique, the School Regulation says what are chargeable goods and services by defining what education resource material are not:

"... educational resource material does not include materials used in goods that are intended for a student to take home for personal use or as a gift; paper, writing tools, calculators, student planners, exercise books, computer diskettes and other school supplies and equipment for a student's personal use; and the rental of a musical instrument for a student's personal use."

In a 1997 decision of BC's Supreme Court MacDonald and Chamak v Greater Victoria School District, Justice Drake said that educational resources material would normally be "related specifically to classroom instruction":

"As a matter of common sense, (educational resource material) would be those which are fungible; goods which are consumed in the course of instruction in educational programs. Obvious examples of these materials are ... the wood used in carpentry classes, the food used in cookery classes and the materials used in other domestic economy classes: materials used in the teaching of science and arts and crafts, in general, within the curriculum of educational programs which lead to graduation.

"Since such courses are to be offered free of charge, it follows that the materials consumed in them must themselves be free of charge, as indeed is required by s. 100(1)(b) of the School Act. From the point of view of black letter law, these materials cease to be the property of the school board once they are furnished to the students in the course of their instruction."

Students and Parents

".... a person who is resident in British Columbia must enrol in an educational program provided by a board on the first school day of September of a school year if, on or before December 31 of that school year, the person will have reached the age of 5 years, and participate in an educational program provided by a board until he or she reaches the age of 16 years...." (§3(1) School Act).

school bus tripThe Act allows a parent to delay the entry into school by one year, such that a student may be six years old upon entry. The Act also allows "home education" but requires registration of the home-educated child by a school. The Act punishes people for not registering their child (they could be charged with an offense).

One Albertan father tried to argue that it was his God-given right to educate his children however he saw fit and challenged the principle of mandatory schooling all the way to the Supreme Court of Canada. The Supreme Court was not clear in its decision but the gist of it was that while mandatory education may infringe upon basic freedoms, that the infringement was justifiable (R. v. Jones).

A student is expected to enroll in a school contained within their school district. Students must also comply with school rules or codes of conducts.

In Lutes v. Prairie View School Division, a judge found that a student continued to be under the school's supervision (and therefore susceptible for discipline for conduct outside the rules of conduct) during lunch hours; from the time he got on the school bus to attend school to the time he descended the school bus at the end of the school day.

"All schools and Provincial schools must be conducted on strictly secular and non- sectarian principles. The highest morality must be inculcated, but no religious dogma or creed is to be taught in a school or Provincial school. The discipline of a student while attending an educational program made available by a board or a Provincial school must be similar to that of a kind, firm and judicious parent, but must not include corporal punishment." (s. 76 School Act)

Students share several rights with their parents such as access to their school records and the right to appeal any decision made by a teacher or the principal which "significantly affects" their education, health or safety, to the board. They also share the right to consult with the teacher on the education being provided.

One case worth mentioning is Fairchels v. West Vancouver School District in which Justice Curtis of BC's Supreme Court, in 1996, had an opportunity to comment on what is a "school record", and subject to copy, and what is not:

"In my opinion all student records kept by a board pertaining to that student in that section do not include all the student's quizzes, tests and exams. I interpret that section to refer to the formal record of grades and results, attendance and other similar matters of record.

"I accept that there is a genuine policy reason for schools to have a discretion as to whether examinations are returned to the students or not. It is often necessary to retain possession of examinations so that questions that may be used for other tests in the future are not compromised by wide circulation amongst the students. So long as the teacher is prepared to go over the exam with the student once it is marked, the student has the necessary opportunity to learn from the examination process. This was the policy of (the) school and this was offered to (the student and the parent). If (they) chose not to take this opportunity any prejudice caused thereby to his education was not caused by the defendants.

"Matters of educational policy are best determined by professional educators or if necessary the school boards on the advice of professional educators following public debate, rather than on the basis of an allegation of individual rights in a court action involving a particular student."

... continued ...

• THIS IS THE END OF PART 1 OF THE 2-PART ARTICLE ON SCHOOL LAW.

PART 2 INCLUDES THE REFERENCES.