Making and Enforcing School Rules in the Wake of the Charter of Rights
education law, Charter of Rights and Freedoms, equality, schools, students, student rights, youth and the law, children and the administrative state
Making and enforcing school rules have always been important and difficult aspects of the educator's role. Maintaining an orderly teaching environment is also a statutory duty in all Canadian jurisdictions in addition to being a vital part of the teacher's "in loco parentis" role.
In making and enforcing school rules, educators are acting as agents of the state and not as mere delegates of the parents. This fact is crucial because parents and their delegates act in a private capacity, and thus in the majority view, escape the restrictions of the Charter of Rights. Meanwhile the Minister of Education, departmental officials, school boards, school administrators and teachers are subject to the Charter of Rights as public actors on behalf of the state.
The school rule process can be broken into three phases:
1) Making Rules
2) Enforcing Rules
3) Penalizing for Breach of Rules
Given this breakdown, the school can be viewed as a microcosm of our larger political structure:
1) Rule-making is a legislative function
2) Rule-enforcing is an administrative function
3) Penalizing is a judicial function
This article explores the concern and confusion among educators with the advent of the Charter and the implications for educators as state actors going forward to ensure that students' Charter rights are respected.
A. Wayne MacKay, "Making and Enforcing School Rules in the Wake of the Charter of Rights" in Jack Lam, ed, Canadian Public Education System: Issues and Prospects (Calgary: Detselig Press, 1990) 65.