Human Rights and Education: Problems and Prospects
Inclusive Education, Safe Schools, Bale v Central Okanagan School District 23, Eaton v Brant (County) Board of Education, Racially Segregated Schooling, Charter of Rights and Freedoms
In this article the author explores issues relating to equality of educational opportunity. He discusses how employing human rights concepts can help render an education system more inclusive. After explaining briefly how exclusion and discrimination occur in the school system, both directly and systemically, the author uses three case studies to elaborate his general them.
Under discrimination on the basis of disability, the author explains the traditional approach taken by the courts to special education, as expressed in Bale v Central Okanagan School District 23, and then goes on to analyze the change in judicial direction embodied in Eaton v Brant (County) Board of Education. In Eaton, the Ontario Court of Appeal reversed the trend of administrative deference and left no doubt that the onus law on a school board to prove than an exclusionary placement of an exceptional pupil was justifiable under section 1 of the Charter.
The second exclusionary context the author discusses is racism. He briefly reviews the American experience, explaining how the "separate but equal" doctrine legitimating racially segregated schooling was eventually successfully challenged and obliterated in the landmark case Brown v Board of Education. The article also explores systemic discrimination in the form of inequitable funding of school districts which are often ethnically insular. While a constitutional challenge based on such an argument was rejected by the U.S. Supreme Court in San Antonio Independent School District v Rodriguez, the author believes such arguments are not beyond the hope of success under the Canadian Charter, in light of the wording of sections 15 and 27. He briefly discusses some initiatives undertaken by provincial Ministries of Education to address racial exclusion in the school system.
Finally, the author explains how the role of teachers as moral exemplars can affect the inclusiveness of schools. He uses the Malcolm Ross case from New Brunswick to illustrate that human rights tribunals and courts are more than willing to place constraints on teachers' freedom of speech and expression, even outside of school, to promote an egalitarian school environment. The article concludes with a brief discussion of some administrative initiatives underway in Nova Scotia schools to address concerns about systemic discrimination.
Wayne MacKay, "Human Rights and Education: Problems and Prospects" (1997) 8 Education LJ 69.