September 1, 2003 will mark the second anniversary of the enactment of the Safe Schools Act in Ontario. Over the past twenty-two months, school boards have been amending and adopting policies and procedures governing the application of discipline in schools, the number of suspensions and expulsions has increased, and there has been growing concern over the human rights implications of the new regime. No one disagrees that schools should be safe and free of violence, and reasonable people can disagree how that can best be achieved, but from a human rights perspective, a number of concerns have been raised, which may be summarized as follows.
First, the Ministry of Education and school boards are giving two contradictory messages to school administrators and the general public. On the one hand, the new regime is being promoted as a zero tolerance approach to misbehaviour in schools. On the other hand, the presence of mitigating factors in the Act and school board policies precludes it from being strictly defined as a zero tolerance regime. This contradiction leaves the door open for inconsistency in application. While some school administrators may apply the mitigating factors, others may practice zero tolerance. A practice of zero tolerance would inevitably conflict with anti-discrimination legislation, particularly if it targets disability-related behaviour.
Second, although the Ministry of Education and school boards have acknowledged and addressed to some extent the possibility that the application of discipline may have a disproportionate impact on students with disabilities, there has been strong resistance to acknowledging or addressing the possible disproportionate impact on racial minority students. The level of resistance is remarkably high given that there is clear and credible evidence of a disproportionate impact on racial minority students in other jurisdictions and Black community groups in the GTA have raised the issue publicly since at least the mid-1990s.
Third, in the GTA and other parts of Ontario, there is a strong perception supported by some empirical evidence that the Act and school board policies are having a disproportionate impact on racial minority students, particularly Black students, and students with disabilities. If the perceptions set out in this report reflect reality, it is cause for great concern. It means that some of the most disadvantaged students in the school system are being further marginalized. It is well established that at-risk students who leave the school system are much more likely to end out on social assistance, in low-end jobs, committing crime or being incarcerated. However, even if the perceptions are not true, it is still cause for concern that students and communities believe that the school system discriminates against them. Such students are more likely to become disengaged from school and drop out, with all the accompanying loss of opportunities and social ills.
Finally, the interviewees’ recommendations towards the end of the report reflect the strong perception that human rights protections have not been adequately incorporated into the current disciplinary regime. All the interviewees believe that it is possible to have a disciplinary regime that both maintains safe and violence-free schools and protects the human rights of all students in the school system.