Bill 81 and the Ontario Ministry of Education School Safety Act

By Lisa Lahey

Understanding the Revisions to Bill 212 (zero tolerance) in Ontario’s

Public Schools

Safe Schools Act (Bill 212)An Amendment to The Ontario Ministry of Education Act

In 2000 the Ministry of Education enacted Bill 212, a legislation that was intended to control increasingly disruptive student behaviour in Ontario public schools.

Zero tolerance was not stated as a policy per se but the Act gave new power to administrators and educators.

Principals now had the right to expel students. Educators now had the right to suspend students for one day. A zero tolerance policy towards student infractions was widely adopted by school

boards and suspensions and expulsions grew at a significant rate. School communities with a significant number of high needs students felt they were

being unfairly targeted and they felt the bill emphasized student misconduct without providing significant preventative measures.

Families involved external agencies such as The Ontario Human Rights Commission, The Ontario Provincial Court of Justice and Child and Family Services to forward appeals.

The Liberal government upheld a 5-year review of Bill 212 as suggested by the previous government and discovered that administrators interpreted Bill 212 with significant variances.

Some schools had an expulsion rate as low as 0.5% while others held a 36% expulsion rate.

Under Bill 212 criminal misconduct resulted in a mandatory suspension with a possible expulsion. These acts included physical and sexual assault, possession of a weapon, threatening with a weapon, possession and/or trafficking in illegal drugs, bullying and cyber-bullying (harassment).

Bill 212, Ministry of Education, 2000

Bill 212, or the Safe Schools Act, was added to the Education Act in 2000 in order to address several issues including bullying, violence, possession of weapons and the sale and use of illegal drugs on school premises. The Act was not intended to focus on student discipline but rather to ensure the safety of educators and students.

Bill 212 is divided into two sections:1.School initiatives including The Ontario Code of Conduct and a Police-School Code of Conduct

•If no mitigating factors are present certain behaviours are mandatory for suspension and possibly expulsion

2.Procedures governing student behaviour initially addressed either zero tolerance or these mitigating factors

• whether or not the student understood the consequences of her/his actions, had the ability to control the behaviour and if the student’s continued presence poses an unacceptable risk to anyone

Bullying/Cyber-bullying Bullying is defined by Policy Memorandum No 144 the Education Act

as “repeated, persistent and aggressive behaviour directed at an individual or individuals that is intended to cause fear and distress and/or harm to another person’s body, feelings, self-esteem or reputation. It occurs in a context where there is a real or perceived power imbalance.”

The use of social media (eg Facebook) to bully another person is included in this definition.

R.T. v Durham Catholic District School BoardFile No. SS08-0007 Citation 2008 CFSRB 94Pursuant to section 311.3 of the Education Act R.S.O. 1990 c. E.2, R.T. filed an appeal

through Child and Family Services against the Durham Catholic District School Board when her daughter V.K. was expelled from school. On May 8, 2008. V.K. was 13-years-old in grade 8 at the time she was expelled from the school. The incident involved “cyberbullying” using the social media Facebook. V.K. threatened a student, Child B, by writing “U don’t want me to get mad because then I’ll kill You right in UR sleep or at school on Monday.” V.K. also contacted Child B’s friends. Facebook had closed V.K.’s account three times but V.K. had reopened it. In March 2008 V.K. was suspended for “engaging in activities...that...create an unacceptable risk to the physical or mental well-being of other person(s) in the school.”

The Principal C.G. suspended V.K. based on 310(1) of the Education Act for “any other activity for which a Principal must suspend a pupil...and determine whether to recommend to the board that the pupil be expelled.” The Principal recommended V.K. be expelled from all schools in the Durham Catholic District School Board and the board expelled V.K. only from her own school. V.K.’s mother agreed that V.K. committed the offences but felt the expulsion was extreme. The board ruled that the student used social media to send emails, threaten death and to impersonate other students.

The board decided V.K.’s actions were “extremely serious” and that it would be detrimental to the school for her to return. There were no mitigating factors indicating V.K. was unable to control her behaviour nor was there evidence that she couldn’t foresee the consequences of her actions. It was concluded that V.K. was bright and that her actions were premeditated. V.K. was not isolated at school and school rules regarding bullying were clearly explained to students. V.K.’s actions affected the school climate in a highly negative manner. R.T. argued that no progressive discipline had been applied in her daughter’s case but upon consideration of the facts in the case the board decided progressive discipline would prove ineffective in V.K.’s case and her expulsion was upheld.

Possession of Illegal Drugs

In 1991 school boards often worked closely with agencies such as the Centre for Addiction and Mental Health in Toronto, Ontario in order to create sound policy in regard to student use of alcohol and drugs. The policies were based upon three principles:

1.Intervention, information and referral for students with problems with drug use2.Prevention which mandated drug education in the curriculum and3.Discipline, including outlining clear guidelines about possession or trafficking of drugs on school property.

The Young Offenders Act doesn’t have the power to overruleschool boards’ right to suspend or expel students, even thoughreview and appeal may expose the youth’s identity. School boardsare cautioned to be careful with student identity in order toprevent the information becoming public knowledge as much aspossible.

K.R. & M.R. v Great Essex County District School Board

File No. SS09-0013 Citation 2010 CFSRB 8

Pursuant to section 311.7 of the Education Act R.S.O. 1990 c. E.2 K.R. and M.R. filed an appeal against the Great Essex County District School Board regarding expulsion of their son R.R. from his school for trafficking marijuana. In November 2009 R.R. was 15-years-old in grade 10 with special needs. R.R. was suspended from November 2009 to December 2009. R.R. was identified as having a communication-learning disability and had an Individual Education Plan (IEP). He also took medications for ADHD. During his suspension R.R. attended the Second Chance program. After he was expelled he did not attend Second Chance because the school board that runs the program refused his admission after he lost his expulsion appeal to GECDSB. The Board decided that R.R.’s actions impacted on the school climate but that his continued presence in the school would not create an unacceptable risk to anyone’s safety and that his history, age, lack of progressive discipline and the negative impact on his education mitigated against an expulsion.The Board quashed the expulsion and reinstated R.R. into the school. The Board also reached its decision based on the student’s history as he admitted that this was his “first time” selling drugs near school property. The Board did find that in terms of mitigating factors R.R. had control over his behaviour and his failure to disclose his supplier indicated an understanding that his actions were illegal and inappropriate. However under section 2.3 of the Act R.R.’s actions did not create an unacceptable level of risk. The most significant factor in his favour was that R.R. began attending drug counselling therapy and thereby demonstrated that he was capable of complying with school authority. The lack of progressive discipline was another issue. The Principal did not attempt this measure and it was decided that his approach hearkened back to zero tolerance. The board stated that the Principal’s suspension of the student for 20 days was appropriate for R.R.’s offence and informed him should he commit the offence again he would be expelled. R.R. was returned to the school and the record of his expulsion was expunged.

Physical or Sexual AssaultRegulation and brackets etc Any physical or sexual assault against an educator, administrator or student is punishable by criminal charges, suspension and/or expulsion.

S.M. & Z.M. v. Peel District School Board, Ontario (EA. s.311.7.)

File No. SS08-0022 Citation: 2009 CFSRB 11

On November 17 2009 an appeal was launched pursuant to section 311.7 of the Education Act R.S.O. 1990 c.E.2. by the family members identified as S.M. and Z.M. to the Child and Family Services Review Board in regard to the Peel District School Board’s decision to expel their son, A.M. from all schools in the Peel District School Board. The decision was reached after A.M., a 17-year-old student was involved in a dispute between two students during October 2008. At that time A.M. drove off the school premises with student A. to attend School 2, who then contacted several friends who were in possession of weapons. A.M.

and A. then returned to School 1 to participate in the fight. Seventy-five to one hundred students engaged in the fight which involved hitting with pipes, tools, kicking and punching. School 1’s principal, S.W. suspended student A.M. under 310(1) of the Act from November to December 2008 citing “injurious contact in the school”. S.W. later recommended A.M.’s expulsion from all schools in the Peel District School Board and that he be assigned to the Fresh Start program as an alternative to a mainstream education. The expulsion was upheld by the PDSB Discipline Committee and assigned A.M. to the Fresh Start program. S.W. suspended A.M. as part of a mandatory policy clause included in Bill 82 which states that “a principal shall suspend a pupil if s/he believes the pupil has engaged in ...[physical assault on another person]...” Section 311.1(1) states that after an investigation and at the principal’s discretion it is her responsibility to consider recommending to “that the pupil be expelled”. Interviews with students involved in the fight revealed that A.M. gave another student a tool from his car to use as a weapon and that A.M. participated in the assault but he himself did not possess or use a weapon. A.M. signed a witness statement agreeing to the above facts but he later recanted saying that he was afraid of A. and felt bullied into participating in the fight. Under Bill 82, an amendment to Bill 212, while making the decision to expel A.M. the board considered mitigating factors, the student’s history and whether or not progressive discipline had been enacted with A.M. Upon investigation the board discovered that mitigating and other factors were not applicable and that the student possessed a disruptive history. Progressive discipline was not used in A.M.’s case since the nature of the offence was such that progressive discipline would likely prove ineffective and thus the appeal was overturned and A.M.’s expulsion was upheld.

Possession and/or use of a Weapon reg?Even in the event where a weapon is not used or threatened to be used against a student or educator any student caught with an illegal weapon in his/her possession can be suspended or expelled. The right to search the student’s person, locker and personal belongings is included in the original Bill.

E.P. v Peel District School Board, Ontario(CFSA s. 311.7) 2009 CFSRB 55 (CANLII)

On September 4 and 11 2009 pursuant to section 311.7 of the Education Act R.S.O. 1990 c. E.2 an appeal was heard by E.P. through the Child and Family Services Review Board in regard to the expulsion of her daughter C.P. for using a weapon at school. C.P. is a 17-year-old student and in February 2009 she was involved in a snowball fight . A female student, S.E. threatened to assault C.P. as a result of the incident. Another student told C.P. that a student C., who does not attend the school, was going to beat her up. C.P. approached a teacher to report her concerns. The teacher recorded C.P.’s concerns in a school computer and

sent C.P. to the office to share her concerns with the Vice-Principal. C.P. did not go to the office because she didn’t know S.E.’s name and didn’t know who to complain about to the V.P. C.P. went home for lunch and retrieved a bike wrench. She returned to school and put the wrench into her locker. The student C. who did not attend the school was in the school hallway at the end of the school day and was told to leave by a staff member. C.P. and her friend C.M. left school together when C., S.E. and other students surrounded the girls. C. approached S.E. and grabbed her hand so S.E. could hit her. S.E. approached C.P. and hit her twice. C.P. shook the wrench free and S.E. Grabbed her by the hair and held down her head. C.P. swung the wrench and hit S.E. Several times. Another female student , O.D. retrieved a knife out of her schoolbag and flipped C.P. onto the ground. C. told C.P. she would shoot her. C.P.’s brother arrived and sent the girls away.S.E. was hurt and covered in blood. She had facial cuts that were treated at a hospital. The Vice-Principal interviewed O.D. who told her C.P. had invited them to the school to fight. In March 2009 the school Principal issued C.P. a letter advising her of a 20-day suspension for “assault cause bodily harm.” In March 2009 this was followed by a letter informing C.P. of her expulsion from the school. She was assigned to the Fresh Start program. On August 2009 C.P.’s mother filed an appeal with the Child and Family Services Review Board. Under sections 310(1) and 311 of the Education Act a Principal is required to enact a mandatory suspension for assault cause bodily harm. Upon investigation the Principal determines whether s/he should recommend an expulsion to the board. Upon reviewing the case CFSRB concluded that the student behaved in self-defence, did not have a violent history and did not use more force than was necessary to defend herself. As a result CFSRB quashed the expulsion and C.P. was permitted to return to school.

Ontario Human Rights Commission

Alerted to the growing number of appeals within the school communities, in 2005 the Ontario Human Rights Commission stated that Bill 212 promoted racial intolerance and discrimination against students with disabilities and exceptionalities in terms of communication, behavioural, physical or multiple exceptionalities. It cited zero tolerance in the schools as a strong component of the appeals. The OHRC have conducted no official studies nor submitted reports to the Ministry of Education regarding discrimination towards minority and disadvantaged students. Instead they presented The 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” as proof that the Ministry was aware that the “use of suspensions and expulsions in schools may have a disproportionate impact on students with disabilities.”The OHRC also based its finding that Bill 212 was racially biased by interviewing “members of the Black community and others in the GTA” whom they claimed felt the bill targeted minorities. However theOHRC was unable to offer evidence that these perceptions were accurate. It put forth that throughinterviews with unidentified members of community agencies including a social worker, lawyers, mentalhealth workers, a community worker and advocates for people with disabilities feel Bill 212 has asignificant impact on students with disabilities.

Figure 1

Ontario Ministry of Education Reported Data on Suspension Rates in Ontario Public Schools The data was conducted from 2000 – 2001 one year before Bill 212 was implemented to 2004, three years after Bill 212 was implemented. The data revealed that school boards varied significantly in their interpretation of the bill.

9.0%

6.0%

3.0%

0.0%

7.9%

5.3%

Zero Tolerance and Restorative Justice A 4-minute summary of The Third Regional Florida Summit on Disciplinary Alternatives to Zero Tolerance

September 18 2008

Zero Tolerance Restorative Justice

A 4 minute presentation of The Third Regional Florida Summit on Disciplinary Alternatives to Zero Tolerance

September 18 2008

Click on the globe below

Bill 81?? Or other info Revisions to Bill 212 state that school boards and schools are

responsible to create and use anti-bullying campaigns in the schools and curriculum. Schools are required to adhere to the Ontario Provincial Code of Conduct. Three stipulations were set out in Bill 212 prior to the implementation and remained intact after Bill 81 was introduced with regard to suspensions and expulsions: Administrators must consider mitigating and other factors such as

the student’s age, history and special needs Whether the student understood the foreseeable consequences of

his/her actions If returning the student to the school presented an unacceptable

risk to the school or anyone in it.

School boards also retained the right to include additional student misconduct when deciding whether to suspend or expel a student.

Progressive DisciplineSchools are expected to use progressive discipline rather than suspension with students who experience consistent behaviour problems, particularly those with behavioural needs and disorders. Principals retain the power to suspend where necessary but are urged to consider “mitigating factors” such as student’s behaviour disorders when suspending students.

Mitigating FactorsFactors that impact an administrator’s right to suspend include the age and history of a student, whether the behaviour was in response to harassment, and in cases of special education students whether the behaviour was listed in the student’s behaviour plan (IEP).

Case Law vs Mitigating factors example and results

Mandatory SuspensionsCertain offences remain mandatory including:•Robbery•Physical or Sexual Assault•Possession/Trafficking in illegal drugs•Giving alcohol to a minor•Possession of a weapon•Threatening someone with a weapon

Mandatory SuspensionsMandatory

example and family vs board

Mandatory example and OHR vs board

ExpulsionsPrincipals no longer have the right to expel a student. S/he may offer a recommendation to the school board for student expulsion but ultimately it is the board that makes the decision whether or not expulsion is in both the school’s and the student’s best interests. In the case of student expulsion however the board is required to provide a viable alternative educational opportunity.

ExpulsionsCourt case and outcomecase

The issue of suspension, expulsion and increased incidents of violence in the schools present an ongoing challenge. Overall Ontario public schools do a respectable job at educating, disciplining and socializing students. The majority of students appear to benefit from Ontario’s school anti-violence and anti-bullyingcampaigns. An equal emphasis needs to be placed upon the home environment and parental and community influences in order for school initiativesto be fully effective.

References

http://www.canlii.ca/en/on/oncfsrb/doc/2009/2009cfsrb55/2009cfsrb55.html

http://www.canlii.ca/en/on/oncfsrb/doc/2009/2009cfsrb11/2009cfsrb11.html

http://www.canlii.ca/en/on/oncfsrb/doc/2010/2010cfsrb8/2010cfsrb8.pdf

http://www.youtube.com/watch?v=5Mfm2J22CZc&feature=related

http://www.youtube.com/results?search_query=zero+tolerance+ontario+schools&aq=f

http://www.cbc.ca/canada/toronto/story/2007/04/13/ontario-complaint-safeschools.html

http://www.safehealthyschools.org/whatsnew/capzerotolerance.htm#ReviewofthResearch

http://www.ohrc.on.ca/en/resources/discussion_consultation/SafeSchoolsConsultRepENG