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How suspended students are denied due process in Ontario

Updated: Apr 8, 2021

OPINION: Students under the age of 18 have no right to appeal suspensions or expulsions themselves. That leaves kids without supportive parents or guardians on their own.

​Imagine for a moment that you’ve been accused of “threatening” a peer. You know that wasn’t what happened. You tirelessly defend yourself, trying to provide context, explaining why you shouldn’t be reprimanded. Your pleas go unanswered, and you’re ultimately found to have violated the law. You are going to receive a life-altering punishment. You need someone — some independent party — to hear your case and make a new finding. But you soon realize you can’t appeal this judgment. You have no recourse to challenge this decision on your own. In fact, the law is actually built to prevent you from doing so.

This isn’t a scenario from a dystopian novel — it’s a situation many Ontario students face when they’re suspended or expelled.

The Education Act gives Ontario schools the authority to suspend or expel students, outlining instances in which principals are required to suspend students, and those in which they have the option to expel them. In the 2015/16 school year, there were 52,236 suspensions and 396 expulsions in Ontario. Schools continue to rely on these practices even though research indicates that they are largely ineffective in deterring problematic behaviours and may even be associated with entry into the juvenile justice system

Given the effects a suspension or expulsion could have on their life, students should have the right to challenge a school’s decision. The problem? They can’t — at least not on their own.

Subsection 309(1) of the Education Act indicates who may appeal a principal’s decision to suspend — 311.7(1) does the same for expulsions. Students under the age of 18 (with the exception of 16- and 17-year-olds who have withdrawn from parental control) are given no such right: parents or guardians are the only ones able to appeal the decision to suspend or expel.

Where does this leave students with uninterested or uninvolved parents? What about the guardians who are just too busy or are dealing with other crises? And how do power dynamics and other systemic barriers limit parental intervention? Put simply, some students who independently manage their education are effectively barred from challenging disciplinary practices on their own.

Vulnerable groups, like Black students, must be at the forefront of conversations about disciplinary practices: almost half of all students expelled by the Toronto District School Board alone in the last five years self-identified as Black.

Given the serious ramifications of suspensions and expulsions, and the proof that they are not effective deterrents for inappropriate behaviours, mechanisms should be in place to ensure these practices are used sparingly. Yet, Black students are more likely to face discipline for subjective behaviours, including disrespect, excessive noise, threats, and loitering.

Many families may be inclined to accept a school’s decision because of a lack of knowledge and resources, and a sense that critiquing the practices of an institution so large and legitimized would be unwarranted.

In 2017, Legal Aid Ontario made an unprecedented move to advance justice for Black youth in conflict with the education system, issuing a one-time $100,000 grant to a project — run by TAIBU Community Health Centre in Scarborough and the Rexdale Community Health Centre — that provides families with access to advocates to challenge school decisions. (Full disclosure: the author serves on the RCHC’s board of directors.) However, the gap in the law remains; students without supportive parents or guardians will still be at a disadvantage.

There are justifiable reasons for reprimanding students for misconduct in schools — none, though, should negate the rights of fundamental justice. When we prevent students from appealing a life-altering punishment like an expulsion, we are, I believe, violating two of the rights guaranteed by the Charter of Rights and Freedoms.

Section 7 guarantees the right to security of the person. It protects an individual’s autonomy and personal legal rights from actions of the government in Canada. The security of the person is a basic entitlement under the Universal Declaration of Human Rights adopted by the United Nations, and it involves being accorded the due process of law. Barring a student from having standing in their own appeal process denies them that due process.

Section 15 of the Charter guarantees equality rights, including the right to be free from discrimination on the basis of age. For the content of the law to be equal and fair, everyone must experience the same result — and yet, 18-year-old students are allowed standing in the appeals process, while their younger counterparts are not. 

The Education Act has downloaded the rights of appeal to parents and guardians, presumably because of an assumption that young people may not have the capacity to represent themselves. And it’s true that young people may not always appreciate the consequences of their actions. But society has also realized the autonomy and evolving maturity of young people and their capacity to make decisions about their lives — as evidenced in the Health Care Consent Act, which gives them the right to make medical decisions and to withdraw from parental control  and live independently.

That same autonomy could, and should, be granted students in the sphere of education. Students should have the right to independently challenge decisions that could be the result of bias, incompetence, and in the worst cases, maliciousness. Students should have the right to challenge decisions that will significantly change their lives, period. 

This article was originally published on TVO.

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