In Canada, the authority to pass laws relating to education was granted to the provinces under section 93 of The Constitution Act of 1867. Thus, provincial legislation is the root of the duties, obligations, and legal powers relating to education within a province, including the status and legal powers of school boards. As an example, this article will explore the power of school boards within the province of Alberta. Other provinces will also have Acts governing the powers of school boards. Readers are advised to look up the Acts in their own province. This can be done on the Internet through ACJNet.
In Alberta, the School Act and its regulations govern the right to education and the provision of education within the province of Alberta. The preamble of the Act expressly provides that parents have a right and responsibility to make decisions respecting the education of their children and that education within the province of Alberta is a publicly funded system with two dimensions (the public school system and the separate school system).
The Act provides that the Alberta Minister of Education is responsible for establishing school districts and specifying the number of trustees of each school board (minimum of three) and how trustees of a school board are elected.
The Act further designates duties and responsibilities to school boards to administer educational services for school districts or divisions, including accountability provisions; mandatory and discretionary powers; administrative duties and obligations including finances; the employment of non-teaching and teaching staff; the provision of educational programs and associated services, including those for special needs students; and providing various appeal procedures.
Accountability
In Alberta, school boards are ultimately accountable to the Alberta Minister of Education, and have a positive duty to develop reporting and accountability systems on any matter required by the Minister; provide any requested information in writing to the Minister; and to disseminate any information to students, parents, and electors in any manner required by the Minister.
Under the Act, school boards must elect one member as a chair, one as a vice-chair, and designate a secretary and a treasurer. Every trustee of a school board is required to take an oath of office under the Oaths of Office Act. Trustees are not considered employees of the school board.
School boards must hold an annual organizational meeting, and hold regular meetings as necessary. Regular meetings are to be public except for those involving improper conduct. Special meetings may be called by the chair, a majority of trustees, or the Alberta Minister of Education. Bylaws of a school board require three separate readings to be passed. The school board may make rules governing its internal proceedings and meetings, but must maintain a record of all proceedings (of the board and its committees).
General Duties and Obligations
The Act expressly sets out both mandatory and discretionary powers of school boards within the province of Alberta.
The Act specifies that school boards have the following mandatory duties:
* establishing policies respecting the provision of educational programs and services;
* maintaining and repairing real and personal property;
* maintaining insurance policies respecting operations;
* making copies of rules and making same available to employees; and
* making rules respecting the circumstances within which a student may be suspended or expelled.
In addition, school boards have the discretion to make rules respecting
* any activity sponsored or approved by the school board;
* attendance at schools; and
* the administration, management or operation of schools or school buses.
Other examples of discretionary powers endowed to school boards by the Act are the ability to
* develop or offer courses or programs;
* develop or acquire instructional material;
* provide for parental and community involvement in the school;
* establish committees (and powers and duties of such committees);
* charge parents for fees respecting instructional supplies and materials. School boards also have the discretion to
* temporarily close school buildings if the health and/or safety of students are endangered (but must immediately move to remedy the cause of such closure);
* prescribe religious or patriotic instruction or exercises (students may be exempted from these on written request by a parent);
* provide off-campus education programs (participation in same requires consent of a parent or student if age 16 or older); and
* develop or provide continuing education courses to any person (so long as the course does not interfere with normal school operations).
The Act further permits school boards to delegate their powers to their employees, committees of the school board, the school council, or a joint committee respecting any duty or obligation excepting powers to make bylaws, to close schools, to requisition funds from municipalities, and to hold hearings. In addition, the power of a school board to suspend or terminate the services of a teacher can only be delegated to the superintendent.
Administrative Matters
Under the Act, school boards within Alberta have the power to enter into contracts without prior approval of the Alberta Minister of Education respecting the provision of educational, managerial, or other services concerning the operation of schools. They have the power to contract with other school boards or persons to provide an education program for a resident student and to contract with another school board, non-profit organization, or municipality to promote or develop recreational or community services.
School boards do require the Alberta Minister of Education's prior approval to enter contracts with certain legal entities or certain groups. Legal entities may include the governments of Alberta or Canada respecting educational services. Certain groups may involve contracting with the government of Canada regarding education of Indian children or children of members of the Canadian Forces in schools operated by that school board.
The Act also specifies various administrative duties and obligations of school boards. For example, by May 31, school boards must specify for the following school year the opening and closing dates, number of hours of instruction, and dates of vacation periods (which must include December 24 to January 2).
Financial Matters
Under the Act, school boards within Alberta are required to administer their own financial affairs and appoint an auditor, prepare annual financial statements, and report to the Alberta Minister of Education when required.
In addition, school boards are responsible for requisitioning funds from school taxes paid to municipalities. School boards are responsible for providing and maintaining adequate real and personal property, as well as entering employment contracts and paying salaries.
Employment of Teaching and Non-Teaching Staff
The Act provides school boards with legal powers to employ teaching and non-teaching staff.
With regard to non-teaching staff, according to the Act, school boards are required to appoint a superintendent of schools for a period not exceeding five years with prior written approval of the Alberta Minister of Education. A superintendent can be reappointed for a further five-year term. The superintendent is the chief executive officer of the school board, as well as the chief education officer of the school district or division. She or he supervises the operation of schools and supervises the provision of educational programs in the school district or division. She or he must report to the Alberta Minister of Education at least once a year, and has positive duties:
* to implement the Minister's education policies;
* to ensure students have the opportunity to meet the educational standards set by the Minister;
* to ensure fiscal management; and
* to provide leadership respecting education within the school district or division.
With regard to teaching staff, the Act sets out the powers of school boards to enter employment contracts with teachers and to designate a teacher to be a principal (or acting principal) and to assign such principal to a school.
The Act provides school boards with the power to suspend a teacher where there are reasonable grounds to believe the teacher is guilty of
* gross misconduct;
* negligent duties; or
* refusal and/or neglect to obey a lawful order of the board.
The Act also permits a school board to authorize a superintendent of schools to suspend a teacher without notice where the superintendent is of the opinion that the teacher threatens the welfare of students.
The Act further provides school boards within Alberta with the power to terminate an employment contract without prior notice where a teacher or principal is convicted of an indictable offence, either at the conclusion of the appeal from such conviction or at the termination of the period to file an appeal when no appeal has been filed.
Provision of Educational Programs and Associated Services
In Alberta, the Act provides school boards with the obligation to provide educational and associated services to students whose parents reside in the school district or division. School boards have a positive duty to ensure each resident student is
* provided with an educational program consistent with the requirements of the Act (and its regulations) and
* given the opportunity to meet the educational standards set by the Alberta Minister of Education.
School boards are required to enroll resident students of the school district first, and to enroll resident students of another school board (where applicable under the Act) on the request of a parent where there are sufficient resources available to accommodate the students. These categories of students must be enrolled prior to considering the enrollment of any international students.
The Act mandates that school boards in Alberta provide a safe and caring environment for their students that fosters and maintains respectful and responsible behaviour.
Legal Rights of Special Needs Students
Under the Act, a school board has the discretion to determine whether a student is in need of a special education program by virtue of that student's behaviour, communicational, intellectual, learning, or physical characteristics. Prior to such determination, the school board must consult with the student's parent (or the student where appropriate).
Once such a determination is made, the student is entitled by the Act to access a special education program. The school board must determine whether it is able to provide an appropriate education program. If it is able to, the school board is required to do so.
If the school board determines it is not able to provide an appropriate education program, it must refer the matter to the Special Needs Tribunal for review. If the Special Needs Tribunal agrees that the school board is unable to provide an appropriate program, the Special Needs Tribunal is required to
* develop and approve a "special needs plan'' consistent with the needs of that student;
* determine the relationship among the student, the school board, and the party or government that may provide services under the special needs plan; and
* apportion the costs of providing such services. The Special Needs Tribunal must review special needs plans at least every three years until the student is no longer entitled to such access.
The decision of the Special Needs Tribunal must be complied with by the parent and student, but the parent may request that such a decision be reviewed by the Alberta Minister of Education.
Provision of Appeal Processes
The Act provides for three main appeal processes involving school boards within Alberta.
First, regarding student matters, school boards are required to establish appeal procedures (including establishing appeal committees) for any decisions made by employees of the school board that significantly affect the education of a student. This provides the ability to appeal for a parent or any student age 16 or over. Upon receipt of an appeal, the school board is obligated to render a decision immediately. This decision is reviewable by the Alberta Minister of Education on written request by the parent or any student age 16 or over where the school board's decision relates to, for example,
* placement of the student in a special needs program or home education program,
* expulsion of the student, or
* payment of fees and costs.
If the parties cannot settle the dispute, upon review, the Alberta Minister of Education has discretion to render any decision appropriate in the circumstances, and such decision is final.
Second, the Act provides for the compulsory attendance at school of children between age six (at September) to age 16 whose parents' reside within a school district or division. The Act further provides school boards with the recourse to an Attendance Board to enforce attendance. Where a student fails to attend school and has been advised of compulsory attendance, and all reasonable efforts have been unsuccessful to enforce attendance, the matter may be referred to a hearing of the Attendance Board, which may render an order
* directing the student's attendance;
* directing the parents to send their child to school;
* directing the student to take an educational program; or
* imposing a monetary penalty.
An order rendered by the Attendance Board is required to be filed in the appropriate judicial district of the Court of Queen's Bench of Alberta, and once filed, has the same force and effect as an order of this Court. Attendance Board members are appointed by the Alberta Minister of Education.
Third, the Act also provides for a Board of Reference, which is an appeal process for disputes between school boards and teachers respecting termination of employment contracts, suspensions, and termination of designations. The Board of Reference is appointed by the Alberta Lieutenant Governor in Council, and has the powers of commissioners under the Public Inquiries Act. These appeals are instigated by written notice of appeal by either the school board or the teacher, setting out the nature of the appeal. All parties have a right to be heard by the Board of Reference and have the right to legal counsel at Board hearings. The Board of Reference has broad powers to make any investigations. All orders rendered by the Board of Reference must be filed in the appropriate judicial district of the Court of Queen's Bench. The orders, therefore, have the same force and effect as an order rendered by this Court and may be appealed to the Court of Appeal of Alberta.
Connie L. Mah is a lawyer practising in Edmonton, Alberta.
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