At the time of this article, Ontario's education workers are on strike and Ontario's public schools are closed to students. It is important to note that teachers (licensed teachers) are not on strike and are not doing anything to close the schools. Ontario's school board's have decided that they cannot allow students into the physical school buildings without the education workers present. This is because education workers perform many essential tasks in schools. Some are custodians, who keep the buildings clean, heated and maintained. Others are educational assistants and child and youth workers who provide critical assistance to students with special needs that allow those students to attend schools. The presence of early childhood educators (ECEs) was factored into the determination of how large kindergarten classes can be, so the size of some classes is too large for a teacher alone to manage safely. Other workers provided supervision of students, prevent bullying, or tend to other tasks that are necessary for schools to operate.
With these (non-teacher) education workers providing services that are so critical to the functioning of the education system that the Ontario Government is trying to use the Notwithstanding Clause to take away their collective bargaining rights, people are asking about what about children's right to an education in Ontario?
Is there a right to an education in Ontario?
Children in Ontario do not have an absolute right to an education, or to any particular standard of education. The Canadian Charter of Rights and Freedoms does not give an explicit right to education. Neither does the Ontario Human Rights Code. Article 28 of the UN Convention on the Rights of the Child creates a right to a primary education, but does not specify what exactly that means or how it will be delivered. Canada ratified that convention, but the Canadian Constitution gives power over education to the provinces. The Ontario Government could make education a right, but has chosen not to do so. This is because there are a lot of differences of opinions of what a child's education should look like.
Why hasn't the Government of Ontario done more to make education a right?
There is no universal agreement over what a right to an education would look like, which means creating such a right would be difficult or impossible because of the controversy it would create. Some people want their kids to go to religious schools, other want their children to go to schools that teach particularly values or emphasize particular subjects, other parents want to homeschool their children, others want schools that are free to teach kids as they see fit without government interference. Consequently there are no absolute standards for an education or an absolute requirement to follow a particular curriculum. As illustrated by how private schools work in Ontario, there is no minimum standard for a school education in Ontario. It is only or students to get an Ontario Secondary School Diploma (OSSD), which is coveted around the world, that their school does need to meet some curriculum and evaluation requirements. But there are private high schools that do not grant OSSDs. Over the pandemic, and with the introduction of online high school courses, the Ontario Government has been clear that it going to school does not necessarily require going into a school building.
Are Child Legally Required to Go to School?
While there is no right to an education, section 21 of the Education Act creates a legal requirement that children over the age of six attend school full-time or be registered for home schooling by parents who agree to take on the task of providing an education (although no particular education) themselves. Education is more of a responsibility for students than a right. However, there is a lot of flexibility as to how students can receive their education – they can get it in a school, on-line, or at home.
STUDENTS DO HAVE RIGHTS IN SCHOOL – THAT IS PART OF THE CURRENT PROBLEM
There are some rights for students in the public education system. When any school or school board agrees to provide education to students, it is legally required to give every student, to the extent possible, equal access to the curriculum and the other services provided by the school. It must not discriminate and give some students preferential access or educational opportunities over other students. In other words, schools cannot discriminate when providing an education to students. Each student has an absolute right to have the same access to school services as other students.
That means that schools cannot decide to stop providing special education services due to a labour disruption. They cannot say that accommodations for students with disabilities will be withdrawn until the unions and the government reach an agreement. If you look carefully at the labour actions that teachers took during their work-to-rule, they were not taking away services that are necessary for students with special needs to succeed in school. The labour actions have the same negative impact on all students, those with special needs and those without. Students continue to be given equal access to public education services in Ontario.
Since so many education workers provide the essential services that students with special needs require just to go to school, they cannot do much short of striking to apply pressure during contract negotiations. If they were to withdraw or reduce services, they would disproportionately affect students with disabilities, or who otherwise have special needs, and that would be discriminatory and a violation of the children's rights under the Canadian Charter of Rights and Freedoms and Ontario's Human Rights Code.
It may be that as a result of changes in the Ontario Government's policy, or funding priorities, there are fewer, or poorer, special education services available to students with special needs – be they a disability, or economic disadvantage, or being from a member of a group that has been historically disadvantaged or unfairly treated. If these students with special needs are not allowed the same ability to attend school and receive the education that they need to fulfill their potential, then they will be discriminated against. There will be human rights cases against schools, school boards and the Ontario Government to ensure those disadvantaged children are as able to access the Ontario Curriculum and other aspects of the education system as every other child.
The labour disruptions should not affect anti-bullying programs either. This is because bullying puts students at a disadvantage in the education system. It can impair the victim's ability to learn. It can threaten their security while they are at a place that the government requires them to be. Bullying can truly be discrimination that gets in the way of an education. Bullying also impairs a child's development. The Ontario College of Teachers requires its members to promote the healthy development of students. That is why during their labour talks, teachers did not take actions that promote, encourage or allow bullying to grow within schools. Education workers are not government by the Ontario College of Teachers, but they still should not promote bullying as part of a labour action. Whenever educators do not do enough to combat bullying, there's a good chance that will result in a violation the human rights of students in their schools.
WHAT COULD THE STRIKE MEAN FOR STUDENTS AND THEIR EDUCATION?
Ontario Public Schools do have some stringent standards that they have to meet, which has made Ontario's public schools amongst the best in the world. Only the Scandinavian Countries consistently perform better. Those standards are the result of the strict regulation, guidance, required educational practices, research, and resources that the Ontario Government puts into the public education system. On behalf of the people of Ontario, the Ontario Government creates the standards that Ontario students have come to expect from the public education. In fact, it is those standards that the education workers' union (and the teacher's union before them) are saying they are fighting to protect. The people of Ontario have expectations for the quality of education found in public schools and, presumably, if any Government does not meet those expectation, it will be voted out.
These government education standards may mean that some remedial steps must be taken to make sure that students have been given the necessary education, particularly for high school. So, there may be a need to add school days into the summer to so that students attend for the expected number of hours to get their high school credits. Mandatory, EQAO testing, may be rescheduled until after the labour disruption concludes. Extracurricular programs may be replaced by additional instruction on core subjects to make sure students cover the required material. Public schools may have to put other measures in place to make sure the education delivered to public school students meets the required standards.
Conclusion
The constitution and human rights law in Ontario do not give students a right to an education, but it does set requirements for how education is provided to Ontario Students. If your child is being denied the same opportunity to succeed in school that every other student has, then it is time to speak to an Education Lawyer about how to protect your child and make sure he or she gets the education every Ontarian deserves.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
