Civil liberties in the schools
1997

by Murray J. Mollard

Contents

Introduction

Freedom of expression
Dress/hair codes & symbolic expressions
Student newspapers and publications
Expression generally
Access to library materials, resources and curriculum

BCCLA perspectives
Detention, due process and search and seizure: Safe schools and civil liberties
The law
Respecting privacy and due process while ensuring safe schools: A balancing act

Conclusion

Endnotes

Introduction

Boards of Education… have, of course, important, delicate, and highly discretionary functions, but none that they may not perform within the limits of the Bill of Rights. That they are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.(2)

These fundamental values of ‘habits and manners of civility’ essential to a democratic society must, of course, include tolerance of divergent political and religious views, even when the views expressed may be unpopular. But these “fundamental values” must also take into account consideration of the sensibilities of others, and, in the case of a school, the sensibilities of fellow students. The undoubted freedom to advocate unpopular and controversial views in schools and classrooms must be balanced against the society’s countervailing interest in teaching students the boundaries of socially appropriate behaviour. Even the most heated political discourse in a democratic society requires consideration for the personal sensibilities of the other participants and audiences.(3)

… [l]ocal school boards must be permitted ’to establish and apply their curriculum in such a way as to transmit community values”, and that “there is a legitimate and substantial community interest in promoting respect for authority and traditional values be they social, moral, or political”.(4)

School administrators have a challenging job. They are responsible for adequately educating our youth so that they will find success and happiness as well as become contributing members of our society, politically, socially and economically. Educators must teach young people the skills, knowledge and values necessary for them to fully participate in our democracy and our dynamic economy. These include values such as freedom of expression, due process and privacy that are central to our form of self-government.

At the same time, school officials must make sure that our schools are safe and orderly places so that students can learn free of violence and discrimination. They have a significant responsibility to ensure school discipline. As well, school officials have an obligation under the School Act to inculcate the highest morality without teaching religious dogma or creed.(5) There are other important values educators must teach: respect and tolerance for others’ opinions and different ways of life and dispute resolution through peaceful rather than violent methods.

There is a fundamental tension between these objectives. What if a student wishes to express herself in a way that shows disrespect for authority or others of a different race? What if a student wishes to express support for values that are different than those espoused in the official curriculum about birth control? How do we balance parental involvement in choosing appropriate learning materials with the principle of “freedom to read”? What type of school policies best balance school officials powers to search lockers if necessary yet preserve student privacy as much as possible? What are the legal and moral rights of students to free expression, due process and privacy? What is the authority of school officials to limit those rights?

In this paper, I will explore important civil liberties values and issues in the context of the educational environment by examining relevant Canadian (what little there is) and American jurisprudence. As well, I will suggest various approaches to identified issues that seek to find solutions that are both respectful of civil liberties values and allow school administrators to uphold their responsibility to provide safe school environments.

Freedom of Expression

The freedom to express one’s thoughts and opinions is a fundamental value and freedom in a democracy. Without free expression, we, as citizens in a democratic society, are unable to adequately govern ourselves. The classic rationale for the protection of freedom of expression lies in its importance for the search for truth, self-fulfilment and self-governance.(6) As a society, we have recognized the importance of this value in our Constitution. Section 2(b) of the Charter of Rights and Freedoms protects ’freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication’. Free expression is a value that schools ought to be teaching our students. But what rights to free expression do students have or should they have in the educational environment?

In schools, free expression issues can arise in various contexts:

• dress/hair codes
• student newspapers and publications
• students’ opinions or expressions on controversial topics and
• student access to information or parental efforts to ban materials from student access.

I will analyse each of these issues.

With respect to the application of the Charter of Rights and Freedoms to student expression, I will make two assumptions for the purposes of this paper.

First, though the issue is not settled in law, I assume that the Charter does apply to the actions of school board trustees, senior school administrators including superintendents and principals, as well as teachers.(7)

Second, I assume that almost any conduct or expression that a student undertakes will be protected by section 2(b). Canadian courts have given section 2(b) a very broad interpretation and have defined expression to include any expressive activity that conveys meaning. Courts have included threats of violence under the protection of section 2(b).(8) Unlike in the United States, our Supreme Court does not assess the content of the expression to determine whether it is worthy of constitutional protection.(9)

In Canadian constitutional law, the major object of legal analysis of the issue of student free expression issues will thus relate to section 1 of the Charter. The principal legal issue will be whether an infringement of protected expression is a reasonable limit “prescribed by law as can be demonstrably justified in a free and democratic society”.(10)

Dress/Hair Codes & Symbolic Expressions

Fashion has always been considered a means of self-expression. Some segments of society afford it little importance, others believe that it is a vital part of our humanity and important to our independence. Clothing and hair styles can be used as important symbols for political expression. In addition, buttons and other paraphernalia are time honoured tools to express one’s views on controversial topics. What is the law in Canada and the United States with respect to students’ rights to this type of expression?

There are two cases of note regarding dress/hair codes prior to the inception of the Charter in Canadian law. In Choukalos v. Board of Trustees of St. Albert Protestant School (1981) 1Can. School Exec. (No. 2) 10, a student, who was suspended for wearing a t-shirt and blue jeans in contravention of a school rule, challenged the school’s authority. The court did not subject the school’s policy to scrutiny based on a student’s right or interest in free expression nor did the court consider whether the policy was necessary. Instead, the court granted school authorities a wide latitude to create policies regulating student conduct and enforce discipline where rules were violated.

In Ward v. Board of Blaine Lake School [1971] 4 W.W.R. 161 (Sask. Q.B.), a student refused to comply with a school board policy requiring a certain length of hair and was suspended indefinitely. The court refused to follow the lead of American decisions such as Tinker in recognizing that students have rights to free expression. Rather, the court found that the school board was acting within its legislative authority and jurisdiction. The court was not able to substitute its judgement for an act that was not judicial or quasi-judicial but rather administrative. There does not appear to be much post Charter jurisprudence. The only relevant case is Devereux v. Lambton County Roman Catholic Separate School Board(11), a 1988 decision of the Ontario Divisional Court that examined a school board’s authority to establish a policy requiring all students to wear a uniform. The court rejected arguments that students’ free expression, equality and liberty rights under the Charter were violated. In the opinion of the court, to make this finding would trivialize these rights. In the alternative, even if the students rights were violated, the court held that the school’s policy was valid under section 1 of the Charter.

In America, the leading case on student free expression rights is Tinker v. Des Moines Community School Dist. (1968) 21 L Ed 2d 731 (U.S. Sup.Ct.). In Tinker, several students wore black arm bands to protest against America’s involvement in the Vietnam war. The arm bands sparked some discussion and even threats among students outside the classroom.

The court found that this form of speech, a silent, passive expression of opinion without any other disruptive activity, was akin to “pure speech”.(12) The court recognized that educators have an important responsibility and authority to create rules regarding student conduct. However, in this case, the court explained that students have rights under the constitution and that free expression rights mean that “students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate. They may not be confined to the expression of those sentiments that are officially approved” (Tinker at 740).

Educators would only be justified in restricting student expression if the expression materially and substantially interferes with the requirements of appropriate discipline in the operation of the school or if it collides with the rights of others. The court also noted that the rule was created to single out this form of expression while students were permitted to wear all sorts of other symbols including the Iron Cross.

As violence, especially related to gangs, becomes a greater concern in our school system today, what limits might there be on school administrators abilities to prohibit the wearing of gang related material? Gang regalia is a concern because it represents a form of overt intimidation of other students as well as school authorities.(13) Where gang related activity is a problem in a particular school, gang clothing may interfere with the learning environment.

What policies regarding gang clothing might school officials want to adopt if they had significant concerns about disruptions due to gang related violence? One commentator in the U.S. has made suggestions about how to draft a code to pass a constitutional challenge.(14) A school should be able to document evidence of real and substantial problems caused by, or at least reasonably likely to be caused by, gang clothing.(15) In designing a dress code, school authorities should focus on problems if they exist. They must be flexible to adapt to shifts in fashion styles. However, students must be given ample notice of amendments to the code. Warnings, as a first step in progressive discipline, are useful. The code should also include an appeals process that allows students to dispute that particular clothing deemed gang related is actually not gang regalia. Finally, to effectively create a safe school environment, schools should use dress codes as a part of an overall strategy to educate students about gangs and violence.

Student newspapers and publications

Unfortunately, there is very little Canadian jurisprudence since the inception of the Charter that provides guidance as to the legal entitlements of students and authority of educators regarding student publications.

In R v. Burko (1968) 3 D.L.R. (3d) 330 (Kitchener Magistrate’s Court, Ontario), a pre-Charter case, a group of university students decided to distribute a newspaper in a local high school. Their purpose was to provide information for high school students to further their education. The court convicted the accused of trespass. The court found that the high school was not public property and that the students required permission before they entered the school to distribute the material. The court did not directly consider whether students have rights to free expression.

The leading American case is Hazelwood School District v. Kuhlmeier (1988), 98 L Ed 2d 592 (U.S. Sup. Ct.). In Hazelwood, student journalists had written articles for the school newspaper regarding teen pregnancy, birth control and divorce. The school principal, who reviewed all editions, objected to two articles on the basis that one article could reveal the identity of students, boyfriends and parents and that, in the other article, a student’s comments that identified and criticized her father were not fair without giving him a chance to respond.

The court determined that as a school sponsored activity, the content of student expression as part of that activity was subject to editorial control by educators if their actions are reasonably related to pedagogical objectives. The court found that this school newspaper was not akin to a public forum because the journalists were participating as part of a journalism class, the students had no reasonable expectation that they could print whatever they wanted to and the teacher who supervised the course had significant editorial and production control over the newspaper. The court also held that educators are entitled to control school sponsored expression to ensure that the material is appropriate for the level of maturity of the audience and so that the views of the speaker are not erroneously attributed to the school. The court broadly defined school sponsored activities to include school curriculum related activities, “school sponsored publications, theatrical productions, and other expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school” (Hazelwood at 605).

In a strongly worded dissent, Justice Brennan criticized the majority as deviating from previous principles that the Supreme Court had established in Tinker v. Des Moines Independent Community School Dist. Justice Brennan held that “public educators must accommodate some student expression even if it offends them or offers views or values that contradict those the school wishes to inculcate” (Hazelwood at 611).

In this case, applying the Tinker standard, because the content of the articles could not be said to materially disrupt the newspaper’s curricular purpose or cause significant disruption in the school, school officials could not censor the material. Furthermore, he found that regulating content on the basis of appropriateness for maturity level was really a guise for censoring views that school officials disagreed with: irresponsible sex. Finally, if the school really feared that others would think that it endorsed the viewpoints in the articles, it could have required a disclaimer to be printed or an article offering the school’s perspective.

In the result, Hazelwood makes it easier for educators in the United States to regulate the content of school newspapers or other school sponsored activity for legitimate educational purposes. But what about student expression that was not school sponsored but that is distributed or spoken on school grounds?

Burch v. Barker (1988), 861 F.2d 1149 (9th Cir. C.A.), provides an answer to this question. In Burch, students produced a newspaper that included a mock teacher evaluation poll and some articles critical of school policies. The newspaper was produced using students’ funds and after school hours. The newspaper was distributed at a school sponsored barbeque and in teachers’ mailboxes. The school had a policy that required the principal to oversee distribution. For not following this policy, the students were subject to a reprimand.

The court decided that the newspaper was not school sponsored. Therefore, the court applied the more rigorous Tinker standard to the school authorities actions and policies. Since the distribution of this publication had not materially interfered with the functioning of the school nor with the rights of others, the school policy of prior restraint violated students’ rights to free expression and was constitutionally unjustified. The court did limit its decision to content restrictions (i.e. censorship) rather than time, place and manner restrictions (i.e. regulation). The court also recognized that the school could discipline students after distribution occurred if the expression caused disruption. In addition, the court recognized that an important part of the educational environment is the ability for students to learn from each other: “Interstudent communication does not interfere with what the school teaches; it enriches the school environment for the students”(16) (Burch at 1159).

The implication of Hazelwood and Burch is that there are two standards of constitutional review of school authorities attempts to limit student expression in American law. The more rigorous standard based on Tinker will be applied to student expression when the expression is student initiated rather than school sponsored (per Burch). The more lenient standard based on Hazelwood affords greater deference to school authorities and will be applied when the student expression arises in the context of a school sponsored activity such as a course or extracurricular activity.

Expression generally

We are again faced with a lack of jurisprudence on the issue of students’ general rights to free expression.

Of some interest to this topic is a recent decision of the B.C. Supreme Court in Blaber v. University of Victoria (1995), 123 D.L.R. (4th) 255. In this case, the plaintiff had used his computer account to write an open letter to a female student member of the Board of Governors that severely criticized her and cited a verse of the Bible that threatens violence. The university responded in two ways. The university’s anti-harassment officer wrote a letter to the head of the computer science department recommending that the plaintiff have his computing privileges revoked. As well, the head of the department wrote to the plaintiff demanding an explanation of his open letter and an acknowledgement that his letter could be considered to be intimidating or threatening.

The plaintiff challenged these letters by requesting relief by way of an interim injunction under the Judicial Review Procedure Act and by challenging the letters and the university’s computer use policy as being a violation of his section 2 and 7 Charter rights.

The court found that the petitioner could not use the Judicial Review Procedure Act for relief since the anti-harassment officer’s letter was not a statutory power of decision or exercise of a statutory power subject to the Act. Nor had the plaintiff exhausted his internal administrative remedies vis-a-vis the department head’s letter. The court characterized the issue as a matter of student academic discipline rather than free expression or due process. With respect to the Charter and the department head’s letter, the court held that the Charter does not apply to the disciplinary action of university officials. With respect to the Charter challenge to the university’s policy on computer use, the court ruled that, in the absent of evidence regarding the creation of the policy, it declined to determine whether the Charter applied to the policy.

In Lutes v. Board of Education of Prairie View School Division No. 74 (1992), 101 Sask. R. 232 (Sask. Q.B.), a grade nine student was disciplined for singing a rap tune entitled “Let’s Talk About Sex”. The student had sung the song in the presence of a teacher who was allegedly instrumental in banning the song from the school. There was no evidence that the song contained lyrics that were rude or offensive. The plaintiff sought an interim injunction on the basis that the school’s action violated the student’s Charter rights to free expression.

In its decision, the court acknowledged that it should not interfere with a school’s decision to discipline as long as school officials acted within their jurisdiction to discipline. However, the plaintiff contended that the school exceeded its authority by violating his Charter rights and therefore the court could not simply defer to the school board. The court found that the evidence indicated that the school authority’s actions were based on the singing of a prohibited song and not on the fact that the student’s conduct was rude and disrespectful of a teacher. The court held that the plaintiff raised a strong prima facie case that the Charter applied to the school’s actions and that his freedom of expression had been violated without adequate justification. The court however refused to grant the injunction on the basis that the plaintiff would not suffer irreparable harm.

The utility of the Lutes decision is limited given that it was not a decision based on a full trial of the Charter issues but rather on the legal test as to whether an interim injunction could be granted pending a full trial on the merits. Nevertheless, it is an interesting decision that has some limited persuasive authority.

In Bethel School Dist. No. 403 v. Fraser (1985), 92 L Ed 2d 549 (U.S. Sup. Ct.), the United States Supreme Court had the opportunity to assess whether the constitution protected a student’s right to make sexually lewd remarks to a school assembly gathered to hear speeches for student elections. The student used elaborate, graphic and explicit sexual metaphor to refer to his candidate. Evidence indicated that students had various reactions to the speech including hooting and mimicking sexual activities alluded to in the speech as well as bewilderment and embarrassment. Before the assembly, the student had reviewed the speech with three teachers who had indicated that it was likely inappropriate.

The court first reaffirmed the ruling in Tinker but distinguished the nature of the speech in Tinker, which was political speech and therefore more deserving of protection, from the sexual content of the speech in this case. The court emphasized the school board’s responsibility to provide instruction in appropriate behaviour:

The undoubted freedom to advocate unpopular and controversial views in schools and classrooms must be balanced against the society’s countervailing interest in teaching students the boundaries of socially appropriate behaviour. Even the most heated political discourse in a democratic society requires consideration for the personal sensibilities of the other participants and audiences. (Fraser at 557)

The court stated that students’ constitutional rights are not the same as adults’ rights in other settings. The court decided that courts should defer to school boards to set rules for what is appropriate and that teachers and older students are role models for other students. The court also recognized that the state has an important interest in protecting minors from exposure to vulgar and offensive language.

Access to Library Materials/Resources and Curriculum

To what extent can students claim a right to freedom of expression with respect to the choice of resource materials or subjects for courses or school library distribution? Conversely, to what extent can school authorities or parents limit student access to materials that are chosen for inclusion in particular courses or school libraries?

This topic is interesting because of efforts by parents and elected school trustees to eliminate or prescribe particular resource materials as part of school curricula or library collections. This topic can create controversy as well. On one hand, it is desirable that we encourage parents to take a more active role in the education of their children. However, where do we draw a line between legitimate parental participation and illegitimate interference as attempts to impose the moral sensibilities of one segment of the population upon another?

Again, there is very little law in Canada that provides guidance as to the legal entitlements of students and the legal authority of school trustees and educators. One case to note in British Columbia is Serup v. Prince George School District No. 57 (1987), 14 B.C.L.R. (2d) 393; 39 D.L.R. (4th) 754. The plaintiff, a parent of a student in the school system, had a history of reviewing learning resources in order to assess for herself whether they were appropriate for students. The school board had a policy which allowed parents to challenge school resources. The plaintiff had previously been successful in challenging and removing a book titled: Boys and Sex. In this case, she had sought access to the library to review a book she wished to challenge (Girls and Sex). The principal refused to allow her continued access. The school board then offered the plaintiff alternative but limited access. She refused these conditions. The plaintiff then sought an injunction to prevent the school board from interfering with her claimed Charter right to review books in the school libraries. She argued that she could not exercise her rights under school board policy to challenge materials if she was not able to ascertain what resources were available to students.

The court held that the school is not a public place akin to a large international airport as was determined by the Federal Court of Appeals decision in Committee for the Commonwealth of Canada v. Canada.(17) Furthermore, the court found that the school board’s offer for limited access was reasonable and therefore it did not infringe the plaintiff’s free expression rights. Alternatively, the court held that if there was a section 2(b) Charter infringement, it was a reasonable limit that was demonstrably justified.

The plaintiff appealed to the Court of Appeal: Serup v. School District No. 57 (1989), 57 D.L.R. (4th) 261 (B.C.C.A.). Despite legal arguments on the merits of the Charter issues, the Court of Appeal decided that the plaintiff had to return to the trial court level on the grounds that she had not brought a proper application before the trial court and that the trial court had inappropriately applied Rule 18(6) of the Rules of Court to dismiss her claim.

Unfortunately, from the perspective of precedent setting jurisprudence, the parties chose not to further litigate the dispute and instead settled out of court.(18) Consequently, the case has limited use an authority.

The leading American case is Board of Education, Island Trees Union Free School Dist. v. Pico (1982) 73 L Ed 2d 435 (U.S. Sup.Ct.). In Pico, the school board directed that certain books in its school libraries be removed on the basis that they were anti-American, anti-Christian, anti-Semitic, and “just plain filthy”. The books were identified due to their inclusion on a list of “objectionable” books created by a politically conservative organization. The school board set up a book review committee consisting of parents and teachers but then rejected the committee’s recommendations to retain a majority of the books.

A slim majority of the court (5-4) held that the board’s actions violated students’ rights to free expression. The court noted that the issues in this case did not involve decisions about selecting resources for prescribed curriculum or additions to the library collection, which would fall within the school board’s legitimate authority to pursue educational objectives, but rather the removal of books that were already in the library. In this case, the plurality of the court (four members of the majority) objected to the fact that the school board exercised its discretion in a narrow partisan or political manner by censoring materials with which the board disagreed. The plurality also held that the American constitution protected student access to information as well as recognized that school libraries were a critical component of free expression interests: “the libraries afford them [students] an opportunity at self-education and individual enrichment that is wholly optional”. (Pico at 448)

The dissent, in two separate opinions, criticized the majority in Pico for having created a new constitutional right (i.e. citizens’ right of access to specific information) that had not been previously recognized by the court. One of the dissenting opinions also held that school boards are not like government acting as a sovereign power but likened their educational role to an employer. As such, educators have the authority to limit expression as part of their democratically delegated responsibility to inculcate values in youth. (Pico at 473 per Rehnquist J.) Both dissenting opinions expressed the view that removing books in the library was not suppression of speech or ideas since the books were readily available elsewhere and that the majority’s distinction between removing books as opposed to refusing to acquire certain books was not logically tenable.

BCCLA Perspectives

General Thoughts

The BCCLA does not support absolute rights to free expression for all students. We do support educators’ authority to make certain decisions about appropriateness of student expression with regard to the level of maturity of students. In our Association’s view:

Children, however, are not full members of the polity, for they do not vote, and it is an important part of adult responsibility in a democracy, as in any polity, to educate children and induct them into the fundamental values of the society into which they will grow. Therefore it is not only permissible in a democratic society to exercise control over children’s experience and to be vigilant about what values they may imbibe, but it is also our responsibility to do so.(19)

That said, educators must also, in their instruction and in their responsibility to facilitate learning, inculcate the value of free expression, so fundamental to democracy. Indeed, as students grow in maturity, the case for censoring materials based on “appropriateness” becomes less compelling. After all, students in more senior grades are on the brink of joining the polity as members in full standing and must be adequately prepared to participate in our democracy.

The difficulty of course is finding the right balance in any given situation. While our Association does not believe that the offensiveness of a particular viewpoint alone is enough to censor a more senior student’s opinion, we also recognize that a teacher has a responsibility to create an open learning environment based on mutual respect in which students feel free to voice their opinions without letting one or many students dominate discussions. The role of a teacher to facilitate open and respectful discussion around sensitive and controversial topics is indeed an important and challenging one.

School board policies for challenging learning resources

Some school boards have policies that permit parents of students to challenge the appropriateness of particular learning resources. The B.C. Civil Liberties Association has been involved in one dispute in which a group of parents were concerned that a particular book had been removed from a school’s library (it was not part of a course) based on its alleged objectionable language and anti-establishment views. Our Association was asked by this group to submit our perspective on both the prohibition of the book and the policy of the school board that allows parents to challenge learning resources.

We made several submissions to the school board about the book itself. A key submission was that, though we agreed that school boards have a legitimate role to play in assessing the appropriateness of different materials for different age groups, the prohibition of this particular book prevented senior secondary students from access to the material. We questioned whether the content in this book was so objectionable as to be offensive to more senior students. In other words, in our view the prohibition was “overbroad”: though the book might not be suitable for a younger audience, the prohibition was not narrowly tailored to allow access for a more mature audience.

In this dispute, perhaps even more important than the debate about one particular book was the appropriateness of the policy that permits parents to challenge materials. The school board also had a policy that described material selection criteria. In our view, the selection criteria were generally appropriate. The primary principle was the freedom to read. However, we had various concerns about the existing process to challenge a learning resource. We made various recommendations regarding this process. I repeat them here because I think that they are universally appropriate for all school boards.

Standing to invoke a review process: Adequate evidence of widespread concern

In our Association’s view, there must be sufficient evidence of significant opposition to the material before the review process is commenced. For example, evidence of widespread concern sufficient to invoke the process could be presented in a petition. It should not be enough for the subjective views of one person to invoke an expensive and time consuming process (as was the situation in this case). Evidence of communal concern is, of course, not enough in itself to prohibit any particular material since the views of the majority should not automatically determine access to ideas and information, even for youth.

Review committee composition: Independent and representative members

Most policies require a committee to review challenged material. It is important that this group of individuals be independent. That is, committee members should not be biased by any connections to other people who have a particular opinion regarding whether the challenged material should or should not be retained. For example, we were critical that the challenge policy in this case allowed the parent who challenged a book to appoint his or her own representative to the committee. Furthermore, this committee should represent a cross-section of interests including parents, teachers, librarians, administrators, trustees and, importantly in our view, students. Administrators should consult Developing Independent Learners: Role of School Library Resource Centres (1991). This is a B.C. Ministry of Education document that provides suggestions on how to structure a review process including the composition of a review committee.

Committee consultations: Input from experts and others

We recommended to the school board in this case that all review committees should seek input from experts outside the committee. We suggested that literary scholars and childhood education specialists be consulted as a matter of course in a review. As well, the persons who have sought to challenge the materials should be given ample opportunity to address the committee, as should other parents if they wish to.

Transparency in decision-making: Publication of decisions

Fairness requires transparency in decision making. Both the criteria for decisions and the full reasons for a decision regarding a particular learning resource should be made available to the public.

Selection Criteria: Presumption of Freedom to Read

Our Association believes that the freedom to read is a principle that should guide decision making in selecting and reviewing materials. It is a principle and value that educators, as supporters of the concept of life long learning, should promote. However, this principle is very general. To give credence to this principle, several procedural rules should be adopted. One can presume that any material that has been selected for inclusion in a course curriculum or school library must have been previously judged to be appropriate. Therefore, access should be allowed while a material is being reviewed. Second, the persons challenging the material should bear the burden of proving why the material is contrary to the published selection criteria. Finally, any doubt about the appropriateness of the material should be resolved in favour of retaining the material.

With respect to selection criteria, we encourage school boards to develop a policy that respects diversity of opinion especially with regard to controversial topics.

In this case, the school board made substantial amendments to their policy that were consistent with our Association’s recommendations. We invite school boards to seek the input of the BCCLA in devising their own policies.

Detention, due process and search and seizure: Safe schools and civil liberties

school officials are increasingly concerned about making sure that their schools are safe and free from violence.(20) Whether based on reality or perception, there is a growing concern regarding violence at school. School officials must have the authority and tools to deal with violence, both to prevent it and respond to it. The terms detention, search, investigation, unfortunately have now become familiar vocabulary for school authorities.

However, along with their responsibility to maintain safe and orderly school environments, school officials must also ensure fairness, due process and a respect for privacy in dealing with students who have been alleged to have committed a wrong. In this section of the paper, I will discuss relevant jurisprudence and suggest approaches that seek to balance students’ civil liberties such as privacy and due process with school officials’ responsibility to keep their schools safe.

The law

The Charter of Rights and Freedoms provides protections against unreasonable searches and arbitrary detentions. The following sections are relevant to the school context:

Section 8: “[E]veryone has the right to be secure against unreasonable search and seizure.”

Section 9: “Everyone has the right not to be arbitrarily detained or imprisoned”.

Section 10: “Everyone has the right on arrest or detention
(a) to be informed promptly of the reasons therefor;
(b) to retain and instruct counsel without delay and to be informed of that right.

Section 56 of the Young Offenders Act provides due process protections for young persons when making statements to the police or persons in authority (including school officials). In essence, section 56 requires that:

a) The statement must be voluntary,
b) The young person must have clearly explained to them that
(i) they have no obligation to give a statement;
(ii) any statement given may be used as evidence in proceedings against them;
(iii) the young person has the right to consult another person in accordance with paragraph (c), and
(iv) any statement made by the young person is required to be made in the presence of the person consulted, unless the young person desires otherwise;
c) The young person, before the statement is made, must be given a reasonable opportunity to consult with legal counsel or a parent, or in the absence of a parent, an adult relative, or in the absence of a parent and an adult relative, any other appropriate adult chosen by the young persons; and
d) Where the young person consults any person pursuant to paragraph (c), the young person must be given a reasonable opportunity to make the statement in the presence of that person. Teachers and administrators often require students to meet with them regarding various alleged wrongdoing. When is such a meeting considered merely part of the internal school discipline process and when will it be a detention for the purposes of application of the Charter?

R v. H. (1985), 43 Alta. L.R. (2d) 250 (Prov. Ct. Youth Div.), an Alberta youth court case, provides some guidance. A teacher, having discovered money missing from her purse, had indicated to her students that if the money was returned, there would be no further action taken. After the students returned the money, they were brought in for questioning by the principal who had been informed by another teacher that the students had returned the money. The students admitted the theft to the principal who then called the police. The accused was not advised of his rights under the Young Offenders Act (YOA) or the Charter.

The court found that the Charter did apply to the acts of the principal. The court also found that a “detention” had occurred within the meaning of the Charter because the student had no choice but to comply with the principal’s request to attend his office and because the principal’s interrogation was to determine whether to turn the matter over to the police, or treat the incident as an alleged infringement of a school-based rule. Furthermore, the court found that the principal had not complied with legal requirements under the Charter and YOA to allow the student to contact legal counsel and his parents. The court thus decided that the evidence obtained should be excluded otherwise the administration of justice would be brought into disrepute. In the words of the court: “But the problem is, that in handing the evidence over to the police, the principal became inextricably involved in the administration of justice by doing the work of the police themselves” (R.v. H. at 259).

I caution that this case is not necessarily representative of current law regarding exclusion of evidence under section 24 of the Charter.(21) Nevertheless, the court’s comments regarding the role of the principal and his purpose in detaining the students are important to understand when an administrator’s actions may attract Charter scrutiny.

In Regina v. J.R.G. (25 June 1991), Coquitlam, File No. 1731 (B.C. Youth Court), a school counsellor was informed that a student was suspected of possessing drugs at school. The counsellor, along with another school official, questioned the student and searched his locker. At one point in the school hallway, the counsellor refused to allow the student’s request to go to the washroom. Back in the office, the other school official indicated to the student that he should speak alone with the counsellor whom the student could trust. The counsellor also told the student that it “would be simpler for all of them” for the student to produce any drugs he possessed. The student then surrendered a cigarette package containing the drugs. The student was handed over to the police who charged him with possessing a narcotic.

The court found that the student had voluntarily surrendered the drugs and therefore had not been subject to a search. The judge however held that the student had been detained and that he had not been adequately informed of his rights to instruct legal counsel and to speak to his parents until after the police arrived. The court was concerned that school officials had not advised the student “of the extent of his jeopardy”.

The court suggested that school officials should treat allegations of wrong doing in one of two ways: as a matter of internal school discipline in which they have authority to conduct the investigation or as a criminal matter in which they should allow the police to undertake the investigation. In J.R.G., the court was concerned that the school officials in effect misled the student into providing the evidence while knowing that they intended to treat the incident as a criminal matter without telling the student. The court thus excluded the evidence under section 24(2) of the Charter.

With respect to searches of students, in Regina v. J.M.G. (1986), 33 D.L.R. (4th) 277 (Ont.C.A.), the Ontario Court of Appeal considered the case of a grade 7 student who had been reported to the principal for having placed drugs in his socks outside the school. The principal contacted the police and a high school principal for advice. The principal then took the student out of class, took him to the office, accused him of having drugs on his person and then, in the presence of the vice principal, searched the student. The search uncovered marijuana. The police were called and the student was charged with possession. He was convicted at trial but he was found not guilty upon appeal based on a violation of his Charter rights. The Crown then appealed his conviction to the Court of Appeal.

The Court of Appeal assumed that the Charter applied in the circumstances without undertaking a thorough legal analysis of the issue. The court turned to American authority for guidance regarding the law of search and seizure with respect to students and cited the United States Supreme Court case of New Jersey v. T.L.O. (1986), 83 L Ed 2d 720, 105 S. Ct. 733 (U.S. Sup. Ct.). The legal test applied in T.L.O. was whether the search was reasonable based on the circumstances. To assess whether the search is reasonable, the American court considered whether the action was justified at its inception and “whether the search actually conducted was reasonably related in scope to the circumstances which justified the interference in the first place”.(22) This legal test is less strict than the assessment of justification for police searches which is based upon a “reasonable and probable grounds” standard.

In J.M.G., the court applied the T.L.O. test and found that the search was justified at its inception (based on the information provided to the principal) and that the principal’s legal duty to maintain proper order and discipline required him to conduct the search as he did. The court specifically rejected the suggestion that the principal should have called the police and let them deal with the allegation instead of searching the student. Rather, the court found that a principal has a discretion in many minor offences (of law or school rules) as to how to proceed. He can not exercise this discretion without knowing the nature and extent of the offence. Therefore, the court reasoned that the principal had to conduct the search himself. As a result, the court found that there had been no violation of either section 8 or section 10(b) of the Charter.

As an Ontario Court of Appeal decision, J.M.G. is important persuasive authority. However, it is not determinative of the law in British Columbia. Indeed, there has been criticism about the approach this court took in this case.(23) Furthermore, in R. v. J.R.G., the B.C. court considered, yet declined to follow, the approach taken by the court in J.M.G. and opted for an approach that differentiated between the roles of educators as enforcers of school-based rules and the police as the enforcement arm of the criminal law. How have other courts treated this issue?

In R. v. W.(J.J.) [1990] N.J. No. 73 (Nfld. S.C. – Trial Div.), a student, while being questioned, told the principal that other students were dealing drugs. On that basis, the principal along with the vice principal searched the other students lockers and found drugs. The police were then called and charges were laid. The court followed J.M.G. and held that it was reasonable that the principal performed the search and that the search did not violate the accused’s section 8 Charter rights.

In contrast, in R. v. A.B.S. [1995] N.S.J. No. 535 (Nova Scotia Youth Court), the principal turned over allegations of students dealing drugs to the police immediately. The court then assessed the actions of the police in the context of the accused’s Charter rights. The court admitted the evidence of drugs despite a breach of section 10(b) of the Charter. In R. v. G.A.W. [1996] B.C.J. No. 2329 (B.C.S.C.), the B.C. Supreme Court considered an appeal of an acquittal of the accused based on his section 8 Charter rights being violated. In this case, like A.B.S., the vice principal had requested the intervention of the police to deal with an allegation that a student was trafficking in LSD and heroin rather than deal with the matter himself. The court ultimately admitted the evidence that was discovered by a police search of the accused.

Unfortunately, there is no high binding authority in British Columbia with respect to the issue of detentions and searches. There is however a divergence in courts’ suggestions for how school officials should deal with alleged student wrongdoing:

1. let school officials undertake investigations and searches into any alleged infraction (per J.M.G.), or
2. refer the matter to police officers when school officials anticipate the wrongdoing may involve criminal activity (per J.R.G. and R. v. H.).

Respecting privacy and due process while ensuring safe schools: A balancing act

(i) Internal Discipline or Criminal Justice

The BCCLA recognizes the importance of school authorities’ responsibility to keep our schools safe and orderly. This means that school officials must have adequate authority to enforce codes of conduct and mete out appropriate discipline. This includes the authority to search student lockers and persons when necessary and when reasonable given the circumstances. We think the law, both under the School Act and in jurisprudence, provides such authority.

However, we also believe that students do have legitimate claims to privacy and due process protections. School authorities must recognize these interests when developing policies and procedures regarding investigations into alleged infractions.

With respect to the choice of approaches outlined in jurisprudence above regarding the issue of who should undertake an investigation into an alleged infraction, I recommend the approach of the court in J.R.G. rather than J.M.G. In my view, the role of educators is to educate and not to act as enforcement arm of the justice system. Otherwise, if school authorities do become entangled in the criminal justice system, I believe that their role as educators is compromised.

I do not to suggest that school officials should not work closely with the police. On the contrary, ensuring safe schools requires extensive cooperation between school officials and the police. However, I believe that if school officials intend to treat alleged wrongdoing as a criminal matter rather than a matter of internal school discipline, based on the information that they have available when the wrongdoing first comes to their attention, they should refer the matter to the police. This approach requires that school officials give some consideration to the seriousness of the allegation and how they wish to treat it (criminal or internal) before they act. This approach also preserves a school official’s discretion to treat a matter they may involve a very minor criminal breach as an internal matter only.(24)

Where school authorities refer a matter to the police or receive a request from the police to interview a student at the school with regard to a criminal matter, I have also advocated that school authorities should make every effort to facilitate the participation of the student’s parents before the interview.(25)

(ii) Student Locker Searches

With respect to our Association’s perspective on searches of student lockers, I believe that the words of the United States Supreme Court in TLO are an important reminder:

Although this Court may take notice of the difficulty of maintaining discipline in the public schools today, the situation is not so dire that students in the schools may claim no legitimate expectations of privacy…. In short, school children may find it necessary to carry with them a variety of legitimate, noncontraband items, and there is no reason to conclude that they have necessarily waived all rights to privacy in such items merely by bringing them onto school grounds.

(26)

Some school boards have created policies regarding student locker searches. These policies may require that parents and students sign a document before the student will be assigned a locker. The following is our list of recommendations for designing such a policy:

(1) Notice Regarding Legal Authority

The policy should be drafted to indicate that school authorities have the legal authority to search a student’s locker when it is reasonable in the circumstances to ensure school rules are respected. The notice should also state that school officials will use this authority if required. This information will provide notice to students and parents that school officials take their responsibilities seriously. It may also provide some deterrent to students from storing contraband in their lockers.

(2) Student/Parent Acknowledgement

Students and parents could be required to sign a form acknowledging that they have read the policy. In our view, it is reasonable for school officials to require the return of a signed form before assigning a locker.

(3) Flexibility Regarding Contents Allowed in Lockers

This notice form should indicate that school lockers are primarily to be used for the storage of educational related material. However, students should be permitted to use their lockers for private purposes on the condition that they do not interfere with the educational environment, breach the code of conduct or cause risk of harm to other students or staff.

(4) Presence of a Student During a Locker Search

Students should be permitted to be present during a search of their locker. They should also be informed of the reasons for a search. The policy should also give notice that the locker may be searched without notice and without the presence of the student if required in urgent circumstances.

A notice form should not indicate that lockers will be searched without notice to the student and without the presence of the student or his parent. In our view, to search student lockers without notice or the presence of the student, as standard practice, would be a clear violation of fairness and due process. This practice may also not be in the interests of school authorities if they must prove continuity of possession for items in the locker that contravene school rules or criminal law.

Conclusion

The paucity of jurisprudence in Canada regarding the legal entitlements of students to important civil liberties such as free expression, due process and privacy under the Charter of Rights and Freedoms may be interpreted in various ways. One might conclude that we in Canada have been able to appropriately resolve disputes regarding these values and the necessary authority of school officials to inculcate values without resort to costly litigation. On the other hand, one might be concerned that students simply haven’t been able to muster the resources to take on a school board in expensive litigation. Whatever the correct interpretation, it would be useful to have more clear and binding legal authority regarding these issues.

Despite the lack of case law, one can make a strong principled argument for protecting students’ civil liberties. The challenge for educators will be to find approaches to issues that satisfy their responsibility to ensure a safe and orderly environment at school while balancing a healthy respect for the civil liberties of students.

Endnotes

1. Barrister & Solicitor, Policy Director, B.C. Civil Liberties Association. The author wishes to thank John Westwood, Executive Director and Linda Shpikula of the B.C. Civil Liberties Association as well as Lisa Tella, Law Librarian, Harper Grey Easton, for their assistance in the preparation of this paper.
2. West Virginia v. Barnette (1943), 87 l Ed 1628 at 1637 (U.S. Supreme Court) as cited in Tinker v. Des Moines Community School District (1968), 21 l Ed 2d 731 at 738 (U.S. Supreme Court).
3. Bethel School Dist. No. 403 v. Fraser (1986), 92 L Ed 2d 549 (U.S. Supreme Court).
4. Board of Education v. Pico (1982), 73 L Ed 2d 435 (U.S. Supreme Court).
5. Section 95(2).
6. See Edmonton Journal v. Alberta (Attorney General) (1989), 64 D.L.R. (4th) 577 at 607 (S.C.C.). For philosophical discussions regarding free expression, see J.S. Mill, On Liberty (1859) and Alexander Meiklejohn, Free Speech and its Relation to Self-Government (1948).
7. No court of appeal in Canada nor the Supreme Court of Canada has made a definitive ruling on this issue. For a general discussion of this topic see: W.J. Smith, “Rights and Freedoms in Education: The Application of the Charter to Public School Boards” (1992-93) 4 Educ.& L. J. 107.
8. See R. v. Keegstra (1990), 117 N.R. 1 at 32; R. v. Zundel (1992), 2 S.C.R. 731.
9. See P. Hogg, Constitutional Law of Canada, 3d ed., vol. 2 (Toronto,: Carswell, 1992) at 40-11 and 40-12.
10. Section 1, Charter of Rights and Freedoms.
11. As reported in E.L. Hurlbert & M.A. Hurlbert, School Law Under the Charter of Rights and Freedoms 2d ed. (Calgary: University of Calgary Press, 1992) at 65. Note that the interim decision of 9 September 1988 is reported in QuickLaw but not the 31 October 1988 final decision.
12. This refers to a term American courts use to characterize expression that deserves the greatest protection.
13. P. D. Murphy, “Restricting Gang Clothing in Public Schools: Does a Dress Code Violate a Student’s Right of Free Expression?” (1991) 64 S. California. L. R. 1321 at 1329-30.
14. Ibid. at 1360-61.
15. Ibid. at 1346.
16. For further analysis of this decision, see “Student Freedom of Expression in Public High Schools” (1989) 24 Harvard Civil Rights-Civil Liberties Law Review 575.
17. 36 D.L.R. (4th) 501 (Fed. C.A.); aff’d (1991), 77 D.L.R. (4th) 385 (S.C.C.).
18. Personal communication with counsel for the plaintiff and defendant, January 16, 1997.
19. Kay Stockholder, President, BCCLA, “Violence on Children’s Television”, (1995) The Democratic Committment (Journal of the B.C. Civil Liberties Association) Vol. 29, No. 3. Our Association took the position that it is appropriate to create regulation for censoring violent TV programming for children even though there is no conclusive scientific evidence that such programming is harmful to children.
20. There is a growing body of literature covering violence and schools. For a review of two such materials, see W.J. Duffee, “Book Review” (1994-95) 6 Ed. L.J. 222.
21. See discussion in G. Delbigio, (1995) 8 Charter of Rights Newsletter No. 2. One might also want to consider the discussion of standing under section 8 of the Charter: Volume 8, No. 3 and Volume 7, No. 3 of the Charter of Rights Newsletter.
22. As cited in Regina v. J.M.G. (1986), 33 D.L.R. (4th) 277 at 281.
23. See A.W. McKay, “Students as Second Class Citizens Under the Charter” (1986) 54 C.R. (3d) 390.
24. Those who work in the criminal justice recognize the importance of alternative measures or diversion programs to prevent introducing a youth into the criminal justice system which some argue is often counterproductive in terms of preventing further criminal conduct and promoting public safety. Section 4 of the Young Offenders Act contains provisions for alternative measures.
25. M. Mollard, “The Regulation of Student Conduct: Working with the Criminal Justice System, A Civil Libertarian Perspective” (1996), Prepared for the Conference of the Canadian Association for the Practical Study of Law in Education.
26. (1986), 83 L Ed 2d 720 at 732-33.