The Ontario Safe Schools Act: School discipline and discrimination

Executive Summary

Introduction

The main purpose of this report is to examine whether the Ontario Safe Schools Act and Regulations and the school board policies on discipline, known by some as “zero tolerance” policies, are having a disproportionate impact on racial minority students and students with disabilities. Advocates of zero tolerance argue that the policies are colour blind and fair because all the students who commit the same offence will be treated the same. Opponents point to other jurisdictions where there is data showing that suspensions and expulsions have a disproportionate impact on Black and other racial minority students and students with disabilities.

This report finds that in the Greater Toronto Area (GTA) and other parts of Ontario there is a strong perception, which is supported by some independent evidence, that the Act and school board policies are having a disproportionate impact on racial minority students, particularly Black students, and students with disabilities.

Background

In Ontario, the first serious steps towards taking a zero tolerance approach to discipline matters in schools began in the mid-1990s. In late 1993, the Scarborough Board of Education adopted a Safe Schools Policy on Violence and Weapons. In the lead-up to the 1999 provincial election in Ontario, the Progressive Conservative Party platform promised a zero tolerance policy for bad behaviour in schools. The promise began to take shape in April 2000 when Education Minister Janet Ecker released a Code of Conduct for Ontario schools. One month later, the Minister introduced the Safe Schools Act, which proposed amending the Education Act to give force to the Code of Conduct and provide principals and teachers with more authority to suspend and expel students. The Act was passed by the legislature in June 2000 and came into effect in September 2001.

The Regulatory Framework

Prior to the enactment of the Safe Schools Act, Section 23 of the Education Act regulated the suspension and expulsion of students. The authority to suspend a student was limited to principals and the authority to expel was limited to school boards. In both cases, the exercise of that authority was discretionary. The grounds for suspension were fairly limited and a student could only be expelled from all of the board’s schools if the pupil’s conduct was so “refractory” that the pupil’s presence was “injurious to other pupils or persons.”

The new regime, which is now part of the Education Act, is more complex and, reflecting the zero tolerance philosophy of its proponents, takes a more hardline approach in dealing with behaviour, discipline and safety problems. The authority to suspend a student is provided to both principals and teachers. A principal has the power to suspend for up to twenty school days, while a teacher has the power to either suspend for one day or refer the matter to the principal. The authority to expel has also been expanded, with school boards and principals sharing that authority. There are now two kinds of expulsion: (1) a limited expulsion from the school the student was attending until the later of a) a date set by the principal or board (twenty-one days to one year) or b) the date on which the student meets requirements established by the board, and (2) a full expulsion from all (publicly funded) schools in the province until the student has attended and met the requirements of a strict discipline program.

Perhaps the most significant change in the new regime is the provision for mandatory suspension and expulsion and police involvement. Suspension and expulsion are now mandatory for a wide range of infractions. The provincial Code of Conduct also mandates police involvement, in accordance with the police/school protocol, for most of the infractions. However, the Act and Regulations do provide for mitigating factors, whereby the suspension or expulsion of a student is not mandatory if:

1. the pupil does not have the ability to control his or her behaviour;
2. the pupil does not have the ability to understand the foreseeable consequences of his or her behaviour; or
3. the pupil's continuing presence in the school does not create an unacceptable risk to the safety of any person.

The discretionary suspension or expulsion of a student is left to school board policies.

The Act states that the Minister may require school boards to establish and maintain specified courses and services for students who are suspended and expelled. To date, that has not happened. The Act also states that the Minister may establish one or more programs for expelled students to prepare them to return to school. That has happened. Ontario Regulation 37/01 provides that a student who is subject to full expulsion may attend a school in Ontario if the student successfully completes a strict discipline program or has satisfied the objectives required for the successful completion of such a program. When the Act came into effect in September 2001, seven strict discipline programs were up and running in Ontario.

School Boards: The Toronto District School Board

School boards in Ontario are under a legal obligation to adopt and revise policies, guidelines and procedures in accordance with the Act and Regulations and the provincial Code of Conduct. The Toronto District School Board (TDSB), for example, has adopted or revised, among other things, a Code of Conduct and an Appropriate Dress Policy, as well as procedures for appealing suspensions and expulsions.

The TDSB has exercised its option to add to the list of infractions for which suspension or expulsion is mandatory and create a list of infractions for which suspension or expulsion is discretionary. It has constructed a Consequences of Inappropriate Student Behaviour Chart, which lists all the infractions, the minimum number of days a student must be suspended or expelled for, and whether the principal “may” or “shall” notify the police.

The TDSB’s Safe Schools Procedures Manual makes it clear that although one or more of the mitigating factors set out in the Act and Regulations may exist to preclude a mandatory suspension or expulsion, the principal may still impose a discretionary suspension or expulsion. The Manual also sets out the factors that a principal must take into account in selecting the most appropriate type and duration of consequence. Furthermore, when a student with exceptionalities is involved, the principal must also consider other enumerated factors relevant to the exceptionality. A teacher who suspends a student must follow the same rules. As a matter of practice, however, the teachers’ federations in Ontario have advised their members not to suspend students and to refer all disciplinary matters to the principal.

Basic data on the student is collected following a suspension. The Manual directs the principal or the teacher, as the case may be, to complete a Suspension Report Form. One section of the form requires information on whether the student has been identified as “exceptional”. Data on the race of the student is not collected.

The TDSB, on its own initiative, runs four support programs for suspended students and one program for students on limited expulsion. It also runs, in partnership with social service agencies, two strict discipline programs. There are reportedly waiting lists for all of these programs because of limited funding.

Zero Tolerance

Although the Ontario government promised “zero tolerance” for bad behaviour in schools before the Safe Schools Act was enacted, and the Act prescribes “mandatory” suspensions and expulsions, the presence of mitigating factors in the current legislation precludes it from being strictly characterized as “zero tolerance”. Likewise, although the TDSB Safe Schools Foundation Statement Policy speaks of “zero tolerance” and “mandatory” suspensions and expulsions, the direction to principals and teachers to apply mitigating factors in disciplinary matters precludes it from being strictly characterized as “zero tolerance”. The real issue is whether there is a practice of “zero tolerance”.

In assessing whether zero tolerance is being practiced in the school system in Ontario, it is important to keep in mind that principals and teachers are receiving two contradictory messages, one advocating “zero tolerance” and prescribing “mandatory” action and the other directing them to apply mitigating factors.

Disproportionate Impact in Other Jurisdictions

In the United States, the most comprehensive national report on zero tolerance and disciplinary policies in the education system is the Harvard University report, Opportunities Suspended: The Devastating Consequences of Zero Tolerance and School Discipline Policies. One of the main areas that the report looks at is the disproportionate impact of zero tolerance policies on racial minority children and children with disabilities.

The report found that several decades of research and analysis of data on school discipline show that students of colour are disproportionately impacted by school discipline policies. The report also found that zero tolerance policies are having a “profound” impact on children with special needs.

The report is critical of the Office for Civil Rights (OCR) of the U.S. Department of Education for its failure to consistently apply the adverse impact doctrine in processing school discipline complaints and its failure to initiate investigations without waiting for complaints. However, in one case where the OCR found that Latino and African American students were being disproportionately impacted by the application of discipline, it did apparently apply the adverse impact doctrine. It then negotiated with the school district to implement positive intervention strategies, which led to a sharp drop in the racial disparities.

The report also cites evidence to make the following points about the application of zero tolerance: it conflicts with the healthy developmental needs of children, particularly students at-risk; there are long-term detrimental consequences for the child; there is a need for high quality alternative education programs; there is increased criminalization of children; it has not reduced violence or increased safety in schools; and some schools are defying the status quo by creating a safe environment with a low number of disciplinary referrals.

On the positive side, the federal Individuals with Disabilities Education Act is viewed by many in the United States as a sound legal framework for accommodating students with disabilities within the school system, including in the application of discipline. The purpose of the Act is to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services to meet their unique needs.

The provisions on discipline in the Act flow from this principle. First, a child with a disability who is removed from school must still have access to educational services. Second, a child with a disability cannot be removed from a regular school placement indefinitely. And third, a child whose behaviour was a manifestation of disability must be accommodated.

The Act also requires States and the Secretary of Interior to collect statistics to determine if significant disproportionality based on race is occurring with respect to placement in particular educational settings and to review and, if appropriate, revise policies, procedures and practices.

In the United Kingdom, there is also evidence that Black students, particularly of Caribbean origin, are disproportionately impacted by the application of discipline in schools. However, not all racial minority students are disproportionately impacted. Asian students, like White students, are subject to a lower number of permanent exclusions relative to their proportion of representation in the student population.

Nova Scotia seems to be the only province in Canada where there has been some collection and analysis of school board statistics on race and the application of discipline. The Black Learners Advisory Committee was able to access data from the Halifax Regional School Board from 1987 to 1992, which showed that Black students were being disproportionately impacted by the application of suspensions.

Nova Scotia has also recently gone through a process of considering and rejecting the adoption of a zero tolerance policy in the education system. As in Ontario, the Progressive Conservative Party platform promised a zero tolerance policy for misbehaviour in schools in the lead-up to the 1999 provincial election. However, shortly after forming a government, a School Conduct Committee, which represented a broad range of stakeholders in the education field, was established. The Committee decided to recommend that a zero tolerance policy not be adopted for use in Nova Scotia. One of the Committee’s specific concerns was that such policies affect a disproportionate number of poor, minority and special needs students. The government accepted the recommendation.

Disproportionate Impact in Ontario

The total absence of statistics on race and the inaccessibility to statistics on disability make it impossible to determine with any certainty whether the application of discipline in schools is having a disproportionate impact on racial minority students and students with disabilities. However, there is anecdotal evidence and some empirical evidence available from other sources which point in that direction.

One relatively recent study, Racial and Ethnic Minority High School Students’ Perceptions of School Disciplinary Practices: A Look at Some Canadian Findings, examined the perceptions of differential treatment relating to school disciplinary practices by high school students in Toronto. The results found that racial minority students, particularly Black students, are much more likely than White students to perceive discrimination with respect to teacher treatment, school suspension practices, the use of police by school authorities, and police treatment at school.

An internal Ontario Ministry of Education draft document, Special Education Monograph No. 5, Guidelines for the Implementation of the Ministry of Education and Training’s Violence-Free Schools Policy with respect to Exceptional Pupils and Others with Special Needs, also shows that the government has been aware since at least 1997 that the use of suspensions and expulsions in schools may have a disproportionate impact on students with disabilities. Furthermore, it clearly states that if students with disabilities are not accommodated, the disproportionate impact may be viewed as discrimination.

Based on interviews with members of the Black community and others in the GTA, there appears to be a strong perception that the Safe Schools Act and the new school board policies on discipline are having a disproportionate impact on Black students. The general feeling is that discipline policies have always had a disproportionate impact on Black students, but the Act and “zero tolerance” policies have made the problem much worse, with significantly higher numbers of Black students being suspended and expelled. The perception of disproportionate impact also exists in other racial minority communities, including the Tamil, Aboriginal and Latino communities.

A senior official at a school board in the GTA would not confirm or deny that there is a disproportionate impact on Black or other racial minority students. Rather, he seems to believe that students at-risk are being disproportionately impacted and it is necessary to address all the factors – not only racism – that put children at-risk. He also suggested that perceptions about disproportionate impact might not always accord with reality. A senior official at another school board in the GTA does not believe that there is a disproportionate impact because principals apply discipline objectively. He also suggested that the erroneous perception might stem from the fact that the student population in some schools largely consists of one racial or ethnic group.

Interviews with a social worker, a community worker, lawyers, mental health experts, advocates for people with disabilities and others reveal that there is a strong perception that the Act and school board policies are having a disproportionate impact on students with disabilities, particularly students with emotional/behavioural disorders, intellectual and learning disabilities, autism, and Tourette’s Syndrome (including associate disorders such as attention deficit disorder, obsessive-compulsive disorder and difficulties with impulse control).

A senior official at a school board in the GTA would not confirm or deny that there is a disproportionate impact on students with disabilities, but emphasized that principals do apply the mitigating factors to ensure that students with disabilities are treated fairly. A senior official at another school board in the GTA stated that the Board has not yet analyzed its statistics to see what the impact is on student with disabilities, but if the analysis does show that there is a disproportionate impact, steps will be taken to remedy the situation.

There is also specific evidence of disproportionate impact. Several school board trustees who adjudicate expulsion and suspension appeal hearings have reported that they see a disproportionate number of Black students at hearings. A senior official at a school board in the GTA, on the other hand, takes the position that the observations of individual trustees should be viewed with caution because they do not sit on all the hearings. However, lawyers who provide summary advice to or represent students who have been suspended or expelled from school also report seeing a disproportionate number of Black students and students with disabilities. Furthermore, the demand for services from community legal clinics which serve the Aboriginal, Latino, East Asian and Southeast Asian, and disability communities has increased since the Act came into effect.

Some lawyers and community workers have also observed or have been told that that there is a disproportionate number of racial minority students, particularly Black students, and students with disabilities in alternative programs for suspended and expelled students and strict discipline schools. A senior official at a school board in the GTA, on the other hand, states that in his observations the students in the programs are fairly reflective of the racial and cultural profile of the school system.

There is other evidence of disproportionate impact. Youth, community and social workers as well as teachers and behaviour consultants who provide front-line services to students who have been suspended or expelled report seeing a disproportionate number of racial minority students, particularly Black students, and students with disabilities. An education expert also points out that discipline policies must have a disproportionate impact on Black students because there is evidence that behaviour and special needs classes have a disproportionate number of Black students and students from those classes are disproportionately disciplined. Finally, an expert on children at-risk gave an opinion that based on the evidence that is available about the chances of a poor child being identified as having behavioural problems, and the connection between poverty and race, discipline policies must be having a disproportionate impact on Black children. He also stated that children with learning disabilities are at increased risk for behavioural problems and must therefore come in contact with elements of the Act more than other children because of their higher level of anti-social behaviour.

Discrimination

Nearly all the interviewees identified discrimination – direct and systemic – as the main reason why the application of discipline in schools has a disproportionate impact on racial minority students and students with disabilities.

There is a perception that students from certain racial groups, particularly Black, Tamil, Aboriginal and Latino students, are treated more harshly than other students in the application of discipline for the same offence. There is also a perception that students with disabilities, particularly emotional/behavioural disorders and learning disabilities, are specifically targeted by the Act.

Very few interviewees believe that intentional, direct discrimination against Black students is widespread, but some believe that it does occur. There is also some suggestion that the disproportionate impact on Black students may be the result of being suspended for the more “subjective” offences, where there is greater leeway for racial stereotyping and bias to enter into the decision-making process. A high number of interviewees reported that Black students are getting suspended for being disrespectful to the teacher or questioning authority, which are more subjective offences.

Several interviewees take the position that the Act and Regulations provide principals and school boards with the means to directly discriminate against students with disabilities because they may suspend or expel a student for disability-related behaviour. The failure to mandate accommodation to the point of undue hardship inevitably leads to discrimination.

Most of the interviewees, however, believe that systemic discrimination is the main factor leading to the disproportionate suspension and expulsion of Black students. There have been studies done in Toronto in the last two decades which show that Black students are disproportionately streamed into basic level and special needs classes, leave school earlier, and drop out of school in disproportionate numbers. It is believed that the same systemic factors that lead to disproportionality in these areas also lead to disproportionality in the area of suspensions and expulsions.

The failure of the Act to incorporate an Aboriginal perspective, such as collective decision-making and community response, is also cited as evidence of systemic factors leading to the disproportionate impact on Aboriginal students.

Several interviewees identified a history of failure to accommodate students with disabilities within the school system in Ontario as the major systemic factor which leads to the disproportionate application of suspensions and expulsions. Furthermore, some believe that the Act entrenches the failure to accommodate because it provides schools and school boards with another means of excluding students.

Some interviewees believe that the cuts in support for students that have been made concurrently with the implementation of zero tolerance policies for misbehaviour are exacerbating the impact on students at-risk. Since 2001, due to budget constraints, the TDSB has been forced to significantly reduce or eliminate, among others, Safe Schools Advisors, Community Advisors, Youth Counsellors, Attendance Counsellors and Social Workers. Significant cuts were also made between 1998-2001.

Some interviewees also pointed out that there are multiple and intersecting grounds of discrimination. There are studies which show that Black students are disproportionately represented in special needs classes. It would therefore be a logical inference that suspensions and expulsions would impact even more heavily on Black students in special needs classes. Moreover, other factors such as poverty and immigrant/refugee status may further compound the impact.

Broader Impact

Many interviewees believe that the increased suspension and expulsion of students are having a broad, negative impact on the student, his or her family, the community, and society-at-large. The most commonly identified elements are negative psychological impact, loss of education, higher drop-out rates, and increased criminalization and anti-social behaviour.

Recommendations

The interviewees made a number of suggestions for improvement and consistency with human rights principles: (1) collecting and publishing statistics on race and disability in the application of school discipline with the goal of addressing any inequities; (2) removing all references to “zero tolerance” in school board policies; (3) setting up and fully funding alternative programs for all suspended and expelled students; (4) requiring schools to attempt to accommodate students who may be exhibiting disability-related behaviour; (5) training administrators of discipline on racial stereotyping and profiling, cross-cultural differences, accommodating people with disabilities, and understanding the immigrant and refugee experience; (6) establishing a better balance between punishment, on the one hand, and conflict resolution, peer mediation, prevention, human rights protection and equity, on the other hand; (7) using in-school suspensions; (8) mandating mediation before a hearing; (9) applying suspensions and expulsions to Aboriginal and Black students individually, but also differently, to account for systemic factors and disproportionality; and (10) restoring the community advisor, youth outreach worker, attendance counsellor and social worker positions that were cut by the Toronto District School Board.

Conclusion

No one disagrees that schools should be safe and free of violence, and reasonable people can disagree how that can best be achieved, but from a human rights perspective, a number of concerns have been raised about the Safe Schools Act and school board policies, which may be summarized as follows.

First, the Ministry of Education and school boards are giving two contradictory messages to school administrators and the general public. As a result, while some school administrators may apply the mitigating factors, others may practice zero tolerance. A practice of zero tolerance inevitably conflicts with anti-discrimination legislation, particularly if it targets disability-related behaviour.

Second, although the Ministry of Education and school boards have acknowledged and addressed to some extent the possibility that the application of discipline may have a disproportionate impact on students with disabilities, there has been strong resistance to acknowledging or addressing the possible disproportionate impact on racial minority students.

Third, in the GTA and other parts of Ontario, there is a strong perception supported by some empirical evidence that the Act and school board policies are having a disproportionate impact on racial minority students, particularly Black students, and students with disabilities.

Finally, human rights protections have not been adequately incorporated into the current disciplinary regime. It is possible to have a disciplinary regime that both maintains safe and violence-free schools and protects the human rights of all students in the school system.