Student Rights | The Canadian Encyclopedia


Student Rights

Basically 2 sorts of rights apply to students: substantive rights - the actual rights that students should enjoy - and procedural rights - methods by which students claim their rights.

Student Rights

Basically 2 sorts of rights apply to students: substantive rights - the actual rights that students should enjoy - and procedural rights - methods by which students claim their rights. This article is concerned with students in public institutions, although those in private schools can claim rights under the common law and provincial education Acts.

Basic Right to Education

Provincial governments affirm the basic right to an education when they approve financing for primary and secondary schools. Governments also extend the right to an education by underwriting part of the expenses for colleges and universities. When education budgets are debated, arguments occasionally surface to augment this principle; eg, to make small class sizes a moral right or to guarantee that all qualified high-school graduates may have access to post-secondary education. Courts are usually reluctant to enter this debate, not wishing to define "good" teaching or to rule on government spending.

Equal Educational Opportunity

A second substantive right, particularly important for minority groups, guarantees equal EDUCATIONAL OPPORTUNITY. In the spirit of this provision, which mirrors the value that governments should treat persons equally, provincial policymakers have attempted to reduce imbalances between schools and regions. To some extent, equity has been guaranteed by sections such as 15 and 23 of the CANADIAN CHARTER OF RIGHTS AND FREEDOMS. Provinces are moving unevenly, however, toward achieving sex-based equity in vocational training, sports, curricular materials and financial aid.

Other Equities

Through recent rulings of various bodies, other equities have been asserted as well. No longer, for instance, do unmarried pregnant students have to leave school: they are to have the same access to education as other pupils. On the other hand, if their presence poses a medical threat to others, students can be denied participation in regular school programming - but alternative education programs should be provided. Finally regarding equitable treatment, students of all faiths have been permitted to wear religious symbols, including a sheathed kirpan (whose design resembles a dagger). Should the potential for violence in their school reach a level of danger, however, conditions may temporarily be imposed on the wearing of kirpans.

Legislatures also require boards to institute special education programs for students limited by handicaps and learning disabilities. Generally these students have a right to develop their potential through a free public education in the least restrictive environment. Parents and child advocates try to ensure that students' rights are not abridged through malpractice, improper diagnosis or inaccurate placements in remedial groupings. Separate or demonstrably substandard programs of study, teaching methods, and philosophies of education for handicapped children may be challenged in courts under the Charter. In denying certain of these challenges, courts have sided with boards facing serious fiscal constraints. Thus the provision of special education is expected to be within bounds of available resources.

Administrators have the legal power to punish students for disruptions in schools. Offences may include persistent opposition to authority, habitual neglect of duty, use of profane or improper language and conduct "injurious" to a moral tone. In response to acts of violence or other misbehaviour in school, principals can suspend or expel pupils. Those who are expelled, however, can take classes outside regular classrooms, possibly at another site. This treatment sends the message that consequences ensue for perpetrators. Some take issue with this retributive approach, however, believing that such expulsions deny perpetrators, victims and members of the school community the chance to reconcile and to learn to care for each other through training in conflict resolution.

A number of schools and post-secondary institutions now extend to students the right of due process, according to which administrators must (in detail) state the reasons for suspensions or expulsions; within days, students and their parents can appeal these administrative actions to unbiased tribunals and authorities thereafter can reverse or modify punishments that cannot be justified or supported by the evidence. In post-secondary schools, students may turn to ombudsmen or directors of student services for help in redressing such problems for them as sexual harassment, undeclared grading practices and too-restricted access to records about themselves. These students may also expect that their academic, counselling and MEDICAL RECORDS will remain confidential.

In varying degrees, institutions are refining their codes of conduct so that students may confront accusers, engage council, contest the evidence, cross-examine witnesses, appeal beyond immediate supervisors, participate in hearings where each side makes cases in the presence of the other, have controversies settled by rules that are known to all in advance and have errors in their records corrected. The formality of the disciplinary hearing can increase with the severity of the potential penalties.

Elementary Schools

In academic and political matters, students in primary and junior high schools enjoy the least latitude. Teachers in these institutions are empowered to exercise the discipline of a kind, firm and judicious parent. This empowerment, in loco parentis ("in place of the parent"), stems from the European practice of wealthy parents voluntarily and individually contracting with tutors for their children's training. The idea of teacher as substitute parent has been so absorbed into the compulsory and mass education systems of North America that school boards and governing bodies for private schools are slow to question constraints that elementary educators may impose on learners' expression, association, opinion and assembly.

Deriving their authority from the COMMON LAW, teachers in the past have administered corporal punishment. In recent years, officials in ministries of education have disapproved of the strap, but in restraining a child, teachers have to stay within limits set by their boards. Educators charged with assault have used the Criminal Code of Canada as a defence for their actions, although what is reasonable in the circumstances may well be the test.

Secondary Schools

Adolescents are more likely to use the provocative language of "demanding" their rights. During the activist 1960s, some students wore armbands, picketed and clashed with officials, seeking the unqualified exercise of speech, press and assembly for which university students were clamouring. In the process, Canada's secondary students did gain some influence over cigarette smoking (within designated areas) and appearance (if hair length and dress do not cause disruptions of orderly procedure). Many principals allowed student organizations to invite outside speakers to their schools, as long as the principal had given prior approval. In Canada, as elsewhere throughout the industrialized world, subsequent conflicts over students' academic and political freedoms have not been as widespread or as intense.

Regulation of student life has increased in the 1980s and 1990s. High schools have adopted codes of behaviour that spell out requirements for attendance, preparedness for class, academic honesty, access to school areas, punctuality, and respect for others. Courts have upheld boards in Saskatchewan and Alberta that suspended students for violating dress codes. As well, T-shirts with messages have been banned when those messages infringe upon the rights of others or materially upset the school's climate for learning. A few boards of education have forbidden students to gather signatures on political petitions within their communities.

Although guaranteed by the Charter of Rights, a student's privilege to be secure from unreasonable search and seizure must be balanced with the educators' long-standing responsibilities to protect pupils from enticement into illegal behaviour, to ensure safety of persons and property and to provide a proper educational environment. Accordingly, if an educator has a reasonable suspicion (not just a vague hunch) that stolen goods or contraband materials such as drugs or weapons may be secreted in a student's desk, locker or bookbag, that teacher or administrator may have the right to search the property or person without a warrant and without prior consent from the student. Further, principals have not been required to provide pupils with counsel before beginning a search. Educators are expected to proceed, however, only after weighing the suspect's age, history, record in school and the immediate seriousness of the situation.

Secondary-school educators generally believe that students should have little or no involvement in determining curricular activities, but critics of this point of view argue that students should have a greater share in this aspect of policymaking, noting that such involvement would provide training in democracy and move students away from a "passive model for learning." These critics argue that school is a place where young people first form their political views; presumably, the chances they have to participate in school decisions signals a lifelong message about what they should expect from, and give back to, the wider society. In response, many educators claim that the student body has such unequal standing in relation to themselves that an equal voice in school governance would be inappropriate. Students might choose less demanding programs, some educators anticipate. Of late, however, provinces are allowing students to sit on school councils where theoretically at least they can influence educators and the other adults who comprise those councils' majorities.

Post-secondary Institutions

Students in colleges and universities have made the greatest strides in acquiring privacy rights. Typically, searches (of lockers, rooms, attendees at social events, etc) are sanctioned (and conducted warily) only in cases of emergency or with high-level authorization and in circumstances which indicate a serious threat to security. University students have also won the right of freedom of association. As a result of the protests of the 1960s and early 1970s, post-secondary students are relatively free from regulations that guide their lives outside class. They have been forbidden, however, from interrupting the education of others (by, say, occupying university buildings to protest tuition increases).

University students sit on department committees and at intermediate levels of their institutions' governing councils but few students actually participate in such governing. As provinces allow tuition hikes and so expect students to pay for more of their education, students are claiming a right to more than just a token number of seats on boards of governors. With increased representation at that peak level, students hope to exert greater influence over priorities of post-secondary institutions, especially to improve teaching and financial aid. In some provinces graduate students, employed as part-time teaching assistants, have won the right to bargain collectively for better wages and improved working conditions.

In a sense, the rights of post-secondary and secondary students have shaded into each other in a court case involving a group of Ontario university students who returned to their old high school. Their aim was to inform students there about problems with secondary education; the university students claimed that high-school pupils had a right to know about the misgivings among the school's alumni. After the principal tried to prevent the distribution of that critique, a court decreed that the visitors had been trespassing: they had failed to obtain the authorities' permission to be at that school passing out their materials.