The Ontario Human Rights Commission and the Ontario Ministry of Education have finalized a settlement of a human rights complaint initiated by the Commission against the Ministry and the Toronto District School Board (TDSB) in July 2005. A settlement was reached separately with the TDSB in November 2005.
The settlement deals with the application of the safe schools provisions under the Education Act and related school discipline policies. It contains a number of specific timelines that will benefit students in time for the new school year.
Background to the Complaint
The Commission has long stated that it supports the objective of ensuring schools are safe, but has raised concerns about the discriminatory effect of the application of this legislation on racialized students and students with disabilities:
The Commission initiated the complaint against the Ministry of Education and the TDSB to seek a systemic resolution of the issues. In a November 2005 settlement, the TDSB accepted and acknowledged the widespread perception of the discriminatory effect of the application of current school disciplinary legislation and policies and agreed to measures to address the concerns raised. In addition to a number of other commitments, the TDSB undertook to collect and analyse data on suspensions and expulsions to determine the extent to which safe schools legislation is having an adverse impact on individuals protected under the Code. The Commission also mediated a positive settlement in four complaints against the Dufferin-Peel Catholic District School Board.
Key Terms of the Ministry Settlement
The comprehensive public interest settlement reached with the Ministry of Education builds on these positive steps at a provincial level. Highlights of the settlement include commitments that the Ministry will:
- A report released by the Commission in July 2004 identified that research from the United States, Great Britain and Nova Scotia has demonstrated the discriminatory effects of mandatory school discipline policies and documented similar experiences of students, educators and front-line community workers in Ontario.
- In a public submission to the TDSB’s Safe and Compassionate Schools Task Force in April 2004, the Commission called upon schools boards and the Ministry of Education to acknowledge the situation and take appropriate action, including collecting and analyzing data on expulsions and suspensions in order to monitor and safeguard against any discriminatory effect.
- The Commission also learned of concerns of a disproportional impact on students with disabilities during its consultation on disability issues in Ontario’s education system and made these concerns public through its Consultation Report The Opportunity to Succeed: Achieving Barrier-Free Education for Students with Disabilities and its Guidelines on Accessible Education.
- Submissions received by the Commission during its Racial Profiling Inquiry further corroborated concerns about the application of the safe schools provisions to racialized students.
- The Commission’s 2005 Policy and Guidelines on Racism and Racial Discrimination confirm that individuals, organizations and institutions can be held liable for failing in their duties to take appropriate action to address human rights issues of which they are aware, or ought to be aware.
- continue a comprehensive review of the safe schools provisions of the Education Act;
- request amendments to the relevant regulations to include mitigating factors and require principals and school boards to consider mitigating facts prior to suspending or expelling any student. The mitigating factors are:
a. whether racial or other harassment was a factor in the student’s behaviour;
b. whether the principles of progressive discipline have first been attempted;
c. the impact of suspension or expulsion on the student’s continued education;
d. whether the imposition of suspension or expulsion would likely result in an aggravation or worsening of the student’s behaviour or conduct;
e. the age of the student;
f. in the case of a student with a disability, whether the behaviour was a manifestation of the disability and whether appropriate accommodation, based on the principle of individualization, has first been provided; and
g. the safety of other students.
- consider proposing legislative amendments requiring the application of progressive discipline, such as in-school detentions, peer mediation, restorative practice, referrals for consultation, and/or transfer, before use of suspension and expulsion;
- support the efforts of school boards that are prepared to collect data on suspensions and expulsions and their impact on Code protected students through hiring an independent, expert and qualified researcher to work with school boards to develop best practices and data collection methods that are consistent with the Commission’s Guidelines for Collecting Data on Enumerated Grounds Under the Code, ensure parent, student and community input into data collection best practices and report back to the Ministry. Upon the completion of the research, the Ministry will re-examine its existing position on race-based data collection;
- request approval for development of a policy regarding alternative education programs for students who are expelled or on long term suspensions (more than five school days);
- invest in resources for teachers and guidance counsellors to inform them of strategies for teaching racialized students;
- provide principals, vice-principals and trustees responsible for expulsion hearings/suspension appeals with training on anti-racism, anti-discrimination, cross-cultural awareness and accommodating students with disabilities as well as training on how to apply discipline in a non-discriminatory manner;
- propose through the Ministry of Training, Colleges and Universities that post-secondary institutions that provide teacher training and certification actively promote, advertise and recruit teachers from racialized communities, persons with disabilities and other under-represented groups of persons within Ontario;
- implement measures for enhanced parental involvement in bullying prevention, safe schools, student behaviour and health;
- hold a provincial Safe Schools Symposium with participation by the Commission following passage of any amendments to the safe schools provisions of the Education Act; and
- report back to the Commission on progress at the one-year anniversary date of the Agreement and at one-year intervals until completed.
The Commission looks forward to seeing these commitments fulfilled and will follow up with the Ministry in this regard. As well, the Commission continues to deal with complaints filed by individuals against school boards across the province.