29 Jan 2013 Christian Schools and Disconcerting Legal Developments
“Legalization” of Education – Part 1: Christian Schools and Disconcerting Legal Developments
By Ted Postma, Principal of Calvin Christian School in Hamilton, ON and member of the Free Reformed Church Ethics and Public Relations Committee. (First published in the FRC Messenger, Jan 2013)
The Christian school landscape has seen an abundance of far reaching changes during the past decade. Some of the changes were welcomed and some remain quite undesirable. At one time, the call, “let schools be schools,” was a reaction to matters pertaining to a school’s pedagogy or philosophy of education. This same call has now become a reaction to a plethora of legislation and court decisions. We are living in an era which fosters the “legalization” of education. There is an intimidating body of law that deals with students, parents and teachers. Certain regulations are touching and stirring Christian school officials and parents. To ignore or cherry- pick various regulations is risky. Christian school personnel need to exercise a considerable measure of awareness and careful compliance in response to changes ushered in by applicable legislation and judicial decisions. Since I reside in the province of Ontario, my comments will mainly relate to the Ontario scene.[i]
From my observations, Christian schools in general continue to provide a Bible based curriculum program within a caring classroom environment. The students tend to score well on standardized tests; the schools foster strong extra-curricular programs and special education services; the schools seek to nurture students for spiritual growth, and they place increasing emphasis on service projects even at the elementary level. Owing to a greater awareness of brain studies and their implications in terms of differentiated instruction, Christian schools are providing varied teaching strategies, individual education plans, and credible student assessment and evaluation practices. Recently, a significant research study revealed that Christian school graduates receive high marks for volunteering, establishing stable families, and for providing good workplace ethics. The study found that Christian schools are very effective in contributing to the religious and spiritual formation of their graduates.[ii]
Areas where Christian schools can be potentially vulnerable, especially in an unsympathetic environment as currently exists in the province of Ontario, include matters usually associated with human rights and health and safety. To be sure, some of the legislative provisions have raised the bar by benefitting students, staff and visitors alike. They have led to a necessary re-examination of policies and procedures related to student and workplace health and safety, employment and contractual standards, privacy and protection constraints, communicable disease prevention and protocol, risks and liability management, not for profit requirements, and (certain) human rights obligations (including student rights). They have required schools to implement measures such as protection of personnel records, joint health and safety committees, workplace violence risk assessments, and measures addressing accessibility for people with disabilities. However, it needs to be stressed that in Ontario most of the new legislative provisions did not emerge from the education ministry, where there exists minimal jurisdiction on non-publicly funded schools, but from other government ministries. Regulations from these ministries will continue to find their way into private school governance and management regardless of whether they are compatible with a school’s particular vision and mission of education. Private Christian schools cannot escape obligations and compliance by appealing to their “private” charters.
Some of the recent requirements and developments do raise red flags. Here are a few examples:
(1) The harassment section of the Workplace Violence and Harassment amendment to the Ontario Occupational Health and Safety Act leaves one wondering if it may become a springboard for a more deliberate infiltration advocating certain lifestyle rights. The Ministry of Labour, in its guide, states that the definition of workplace harassment is broad enough to include harassment prohibited under the Ontario Human Rights Code. The Ministry defines harassment as engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcomed.[iii] What is truly a vexatious comment? All it takes is hiring a bus driver who, as it turns out, becomes somewhat sympathetic to a homosexual lifestyle. Could comments by a staff member objecting to such a lifestyle result in a harassment complaint under the new amendment? When it comes to hiring employees, Christian schools are afforded some protection at the outset through the bona-fide occupational requirement (BFOR) exceptions the Human Rights Code allows. A private Christian school is viewed as a special interest business serving a specific group. An employee cannot serve properly if in conflict with the collective and expressed interests of that group. Accordingly, hiring policies may breach or discriminate against certain protected rights by relying on BFOR exceptions when including a lifestyle policy as a condition of employment. Yet, the Christian Horizons case, where an employee began a lesbian relationship and then was subsequently terminated for violating the lifestyle policy, resulted in an aggressive investigation and ruling by the Ontario Humans Rights Commission.[iv] (Human Rights Tribunals carry a lot of weight and can be biased.[v]) Among the list of rulings, Christian Horizons was informed that BFOR exceptions have their limits and should only be used for those employees whose jobs directly link them to the mission of the institution. This means not all job descriptions of school employees automatically benefit from BFOR exceptions; examples could include custodian, secretary, bus driver – these employees do not directly instruct children. The harassment amendment and the Christian Horizons case collectively warn us that the hiring process at a Christian school is critical. Christian schools should ensure each job description includes language associated with the creed so that all employees are linked to the mission and willing to sign the lifestyle policy. Another lesson learned is that the “services” (programs, rentals) offered should be consistent with the creed, and the “clients” (students) should belong to the special interest group. Christian schools with a wide open admissions policy could increase their vulnerability in this matter.
(2) Most Christian communities expect their Christian school teachers to be certified by a recognized government body. Professional organizations, such as the College of Teachers, are empowered by legislation with substantial discretional authority. Schools are required to report professional misconduct and the College may investigate any conduct related complaint concerning its members. Certified teachers are increasingly accountable to the College of Teachers in terms of ethical standards. One of the ethical standards is “care” which includes compassion, acceptance, interest and insight for developing students’ potential. The language also speaks of empathy for a student’s wellbeing. On the face of it, there is little to fear and empathy is to be desired, yet, such language has the potential of being another springboard. For example, a recent Ontario College of Teachers conference (Nov. 2012) included a workshop entitled: Taking Action to Create LGBTQ Positive Schools. Many teachers at Ontario Christian schools are members of this organization in order to maintain their certification. These teachers should understand that the ethical standards to which they are bound are being defined, interpreted and applied by secular humanists and human rights groups.
(3) On a different note: The recently amended Ontario Not for Profit Act thankfully addresses several areas of past uncertainties (eg. the need for proper audits) but it will impact a Christian school society’s membership rights and privileges. Schools, where there are two classes of membership (full voting membership and non-voting membership), may have to make significant changes to their letters patent or bylaws. Members of each class have been given built in protection. Non-voting members will be entitled to vote separately as a class and can effectively veto a change in certain circumstances.[vi] This could have undesirable consequences if a school serves non-Christians or “others” and has such arrangements in place.
(4) A few comments about the Ontario Education Act: (i) The Act is brief concerning private schools and homeschools (selected sections of the Act may be adopted for policies and procedures). All private schools are required to provide a notice of intention to operate. Further, private secondary schools must be inspected to determine whether they offer the necessary curriculum content needed to grant the Ontario Secondary School Diploma (OSSD). Curriculum content requirements are never static. In my view, it will be a matter of time and curriculum requirements will be susceptible to the relentless waves of inclusiveness and acceptance relative to lifestyle choices. Decisions will need to be made about the value of the OSSD. At what point will principals drop the OSSD? (ii)The Act permits the existence of private schools and homeschools with this statement under the compulsory attendance section: A person is excused from attendance at school if the person is receiving satisfactory instruction at home or elsewhere…. The word “satisfactory” is not defined and so it has been left up to the judiciary to establish guidelines. While private schools are not officially held the same way to the Education Act as public schools are, a judge may use the Act to ascertain or superimpose a public standard based on what public schools do on a regular basis.[vii] Will this have an impact on the distinctiveness of Christian education?
5) Space does not permit me to touch on rulings related to student discipline and personal searches. I simply ask that you draw your own conclusions when a judge advises school authorities that a student’s constitutional rights should not be traded off easily for security.[viii]
The 21st century has ushered in a lot of new legislation and some of these “outside forces” will continue to shape the governance, management and practices of a Christian school. With all things considered, there are two important considerations to keep in mind: 1) A private Christian school is viewed by the courts as an institution belonging to a delegation of parents and members. It follows then, that all stakeholders need to be informed and respond like responsible trustees. 1 Chronicles 12:32 commends the men of Issachar for understanding the times and knowing what to do. 2) We are comforted in knowing that the education landscape is ultimately shaped under God’s directives. He is all knowing and all powerful. He will strengthen all those who faithfully serve and follow Him regardless of the changes that abound, and He will supply their needs because Jesus is infinitely rich (Phil.4:19). Christian schools have been around for decades nurturing students for service in the Lord’s kingdom. May the Lord continue to guide and protect each school.
In my next article I hope to write about a far reaching development in Ontario concerning human rights and education.
[i] Interestingly, many Christian schools in western Canada find themselves in a friendly environment even while receiving substantial provincial government funding.
[ii] The reader is encouraged to explore the Cardus Education Survey at www.carduseducationsurvey.com
for more information as to how Christian high school graduates view themselves and their achievements.
Section 4.4 of the Ontario Human Rights Code lists 15 areas needing protection from harassment and discrimination including sexual orientation.
The tribunal required Christian Horizons to pay lost wages and damages; end the practice of requiring employees to sign a lifestyle policy; develop anti-discrimination policies and training; review all employment policies with the commission to ensure human rights compliance. A Divisional Court overturned most of the rulings in 2010 but required sensitivity training and the removal of sexual orientation from the lifestyle policy. It reiterated the restrictions on applying bona-fide occupational requirements to certain job descriptions.
Note the following statement: “While the OHRC celebrated it’s [sic] 50th anniversary in 2011, we participated in a number of celebratory events relating to the 25th anniversary of the inclusion in the Human Right Code of the ground of sexual orientation; we participated in the Senior Pride Network Symposium, the Ontario Public Service Pride Network and marched in Toronto’s annual Gay Pride Day with a banner commemorating our 50th anniversary and noting “Ontario Human Rights Commission = 50, PRIDE = forever!”.”
[vi] Comments made by Theresa Man, L.L.B., L.L.M at Carters 18th Annual Church & Charity Law Seminar, Nov. 10, 2011. Her speech was entitled: “Overview of Continuing under the CNCA and the ONCA.”
[vii] Remarks made by Justice Marvin Zuker at a conference entitled: “Legal Rights and Obligations of Private Schools” – presented by Justice Marvin Zuker and by Alan Wolfish Q.C., October 3&4, 2012.
[viii] Remarks made by Justice Marvin Zuker at the same conference.
Ted Postma is a member and organist at Grace Free Reformed Church in Brantford. He serves on the FRC Ethics and Public Relations Committee. Ted is Principal of Calvin Christian School in Hamilton, ON, and serves as a school quality evaluator for the Ontario Alliance of Christian Schools. He is married to Heidi Markwat and their school aged grandchildren attend Christian schools.
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