Discipline (Suspensions and Expulsions)
A child’s right to receive an education is an important one, which should not be lightly taken away. As a result, children both in private and publicly funded schools are entitled to have the allegations fairly and impartially investigated, and have an appeal process from a principal’s decision to expel or suspend a student for more than one day. Especially in publicly funded schools, where a student can evoke his or her rights under the Canadian Charter of Rights and Freedoms to a fair hearing, those appeal hearings can be quite complex. Consequently, it can be really helpful, and even dramatically increase the chances of success by being represented by a lawyer. Having the lawyer at least teach you what to say, can have a dramatic impact on the outcome as the school will have to fairly consider all of the legal considerations applicable to the situation.
When suspending or expelling a student, the school must provide a letter that explains what penalty the school is imposing (including the precise length of any suspension), the events or behavior that the school says led to that penalty, a reference to which ground for suspension expulsion the school is relying upon, and the appeal route that is available to the student to challenge the punishment. The suspension or expulsion may not be valid unless the letter sets out all of these considerations. In addition, the school must provide the student, and the parents, with an opportunity to be heard before making the punishment final. That often occurs before the penalty is imposed and the school writes the letter.
For publicly funded schools, the Education Act sets out two types of activities that relate to suspension or expulsion:
1. Activities for which a principal may suspend a student, but does not have to suspend a student. These are listed in section 306 of the Education Act. In deciding whether to expel a student for the type of conduct described in that section, the principal must consider mitigating factors, both in terms of whether suspension is appropriate, and if so, for how long.
2. Activities for which a principal must expel a student and may expel the student. These are listed in section 310 of the Education Act. Probably the most recognized conduct that falls under that section is repeated bullying. Since suspension is mandatory for the conduct described in this section, the principal does not have consider mitigating factors and has no choice but to upend a student. While a student is suspended for one of these possible offences, the principal is required to further investigate whether the student ought to be expelled. The principal can then decide to expel the student.
Sections 306 and 310 do not govern private schools. Those schools set what conduct leads to suspension or expulsion in their policies. Once a private school accepts a student, it cannot simply refuse to kick students out on the basis that it is a private business that can do business as it sees fit. Once a student is accepted into a private school, the school can only remove that child if that child does something that the school’s policies (or its “contract” with the parents) say leads to suspension or expulsion and it can only do so after a fair hearing
There can be a lot of mitigating factors for students who are facing suspension. In addition, all of the offences that can lead to expulsions require some time of intent on the part of the student. A proper hearing for the student may bring to light factors that affect the decision. Among other considerations, these can be mitigating factors for a suspension, or evidence that a child did not intend the actions that could lead to an expulsion. Some examples of these factors are:
1. A child who is has been the repeated victim of bullying and “keeps it all inside” until one day responding violently to the aggression of a bully.
2. A child who has special needs who are not being met and who is either frustrated, or in a position where the child feels the need to “act out” to get attention, or whose disability makes the impugned action involuntary.
Of course, there can also be times when the school’s investigation is inadequate and the teachers or principals get the facts all wrong. In that situation, getting a proper hearing, or pursuing an appeal, may change the punishment entirely or even result in the school rescinding the punishment.
Each school has some latitude in establishing its appeal procedure. However, the Education Act does set some requirements and the hearing must have some formality about it. There are rules for such hearings that must be followed. The school must provide information about that when suspending or expelling a student. It must also tell the student and parents how long they have to appeal. Appeals can go through several levels at the board. After going through the School Board’s Appeal processes, expelled students or their parents can appeal to the Child and Family Services Review Board.
It is important to remember that “informal discussions” with a Superintendent of Education, that are not part of the school’s formal appeal process, do NOT extend the deadline for bringing an appeal. Even if you are trying to resolve matters with the school board, you still have to take the steps to bring your appeal on time – or you will lose your right to appeal. If you lose your right to appeal, than the Superintendent of Education, or other School Board Officials, may lose interest in speaking to you to resolve matters.
If your child has been suspended or expelled it is important to speak to an education lawyer immediately. The time lines for appeals are short – and there may even be things the lawyer can help you do before bringing an appeal to resolve matters. Suspensions stay on a student’s records and expulsions obviously not only stay on the student’s record but profoundly affect his or her education.