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EA:TO's Brief On Bill 177

To the Standing Committee on Social Policy On Bill 177 — The Student Achievement and School Board Governance Act Ontario Legislature, October 26, 2009

Dudley Paul,
Education Action: Toronto

Bill 177 appears to be a solution looking for a problem. It begs several questions: Is there widespread abuse of power school board trustees throughout the province? Do they not attend meetings? Are school board meetings so much more raucous than the Provincial Legislature that trustees need to be reined in by a provincially mandated code of conduct? Are trustees generally incompetent compared to provincial MPPs? These appear to be the problems for which Bill 177 wishes to be the solution.

Unfortunately, the bill is more ominous than it appears.

It is, fundamentally, a bill whose purpose it is to restrict powers and impose new obligations on trustees that will be impossible for them to meet. It is the logical next step along the route first set out by the Harris Progressive Conservative government in the 1990’s to destroy local government and curtail citizens’ access to decision-making.

One more step, and we’re likely to see the end of school boards altogether.

Section 4 of Bill 177 sets the stage for this by enabling government to make regulations about the roles, responsibilities, powers and duties of boards, directors of education and board members, including chairs of boards. This gives the Provincial Government carte blanche to fundamentally change school boards as and when it sees fit.

Prior to the introduction of Bill 177, the relevant section of the Education Act (11.1) referred only to regulations about “schools or classes established under this Act.” The Government could only regulate broad, general matters like the establishment or dissolution of a board, set and change board boundaries, establish procedures for elections and so on. The current bill is a radical departure from these regulations: it puts board members under direct supervision of the provincial government enabling it to restrict, alter or transfer powers currently held by school boards.

To make this perfectly clear, a new section of the Education Act (s 218.1.d) requires board members to “ support the implementation of any board resolution after it is passed by the board ” and then restricts trustees’ ability do the work for which they are elected since they must “… refrain from interfering in the day to day management of the board by its officers and staff” (s. 218.1.e). Does this mean that trustees will no longer be able to criticize such a resolution for fear of appearing unsupportive? Will they no longer be able to ask board staff questions on behalf of their constituents or advocate with staff for them? Furthermore, who will have the power to adjudicate these matters? What problem is so serious that it requires such draconian regulation?

These two obligations would be almost humorous if they were not so fundamentally undemocratic. As the current government surely must understand from its time spent there, opposition provides the essential balance to our parliamentary system. Representatives at any level of government must be able to advocate, question decisions, seek information and so forth on behalf of their constituents. Otherwise they are irrelevant. It is not surprising that in a legal opinion sought by Campaign for Public Education, law firm Sack, Goldblatt and Mitchell indicated in its report that these obligations could trigger a constitutional challenge, since they appear to limit the freedom of expression of school board members contrary to section 2(b) of the Canadian Charter of Rights and Freedoms.

Taking Power While Imposing Obligations

Bill 177 is an extraordinarily authoritarian document. It takes powers while it gives obligations. The Education Act is changed as follows:

“ Board responsibility for student achievement and effective stewardship of resources
169.1 (1) Every board shall,
(a) promote student outcomes specified in regulations made under section 11.1;
(b) ensure effective stewardship of the board’s resources;
© deliver effective and appropriate education programs to its pupils;
(d) develop and maintain policies and organizational structures that,
(i) promote the goals referred to in clauses (a) to ©,
(ii) promote the well-being of the boards’ pupils, and
(iii) encourage pupils to pursue their educational goals;

What “student outcomes” shall be promoted? Is there anything more than test scores on the government’s outcomes agenda? What does “stewardship” mean after more than a decade of provincial cutbacks? What is an “effective and appropriate education program”? The answers have been left wide open to interpretation by any government of the day. Can we now expect parent litigation if their local boards have not delivered something however vaguely promised?

How will a board’s success in these efforts be judged? Will the justifiably derided EQAO be the measure of choice to determine whether or not a board has promoted student outcomes? The tumult that attended the Mike Harris school board amalgamation cum budget cuts cum Ministry micro-management was rationalized by Ontario’s middling performance on international tests of Mathematics and Science, a situation that in light of Ontario’s diverse population was perfectly normal. The potential for misinterpretation and misuse is just as clear today.

What is the consequence if a board does not meet the Ministry of Education’s outcomes, whatever they turn out to be? The Governance Review Committee in April 2009, recommended a “continuum of measures” to be taken if a board is not meeting whatever outcomes the government of the day considers priorities measured by “evidence-based” assessments. Ultimately, a board could be placed under supervision if its students do not meet prescribed provincial curriculum “expectations.” This significant underlying feature has not been placed in the bill for public scrutiny, but may be dealt with under attendant regulations.

Aside from the obvious problem of legislating responsibility for a duty performed by someone else – in this case school board staff — this section puts even more focus on teaching to the EQAO or whatever other test of the day might appear.

Squeezing the Trustees

Keeping to the trustee-control focus of this bill, section 26 amends the Education Act (218.1.a and c) to require trustees to participate in school board meetings and committees to which they must “bring concerns of parents, students and supporters of the board to the attention of the board.” What happens if they fail to bring concerns? How are they to determine what concerns must be brought to the attention of the board and what may be left out? As far as attendance is concerned, how many meetings must trustees attend? What is the consequence of not attending 2 meetings or 6 meetings?

Another amendment provided by Section 26 grants the Minister of Education authority to impose standards of conduct on board members as well as consequences for breaching them, admonishing them to “maintain focus on student achievement and well-being; and comply with the board’s code of conduct” – something else to be regulated by the Ministry. Should a trustee breach the code of conduct, he or she could be censured by the board, docked pay, or barred from meetings or committees.

Sections such as these appear to outline a more stringent job description than that laid out for teachers and administrators, even though teachers and administrators are employed by school boards. Trustees, at least up until now, are not employed by the provincial Government.

Trustees are elected, not appointed by the province. So, this fundamental change in relationship between two elected governing bodies is rather like the federal government holding provincial legislatures directly accountable for meeting some infrastructure goal like improving highway construction. Bill 177 gives the patronizing impression of guiding hapless trustees who just aren’t up to the task and require the steadying hand of Ministry bureaucrats. And if they don’t wish to seek that hand, section 48 of the Bill changes section 283 1.f and g of the Act to require a Director Of Education: “ f) immediately upon discovery bring to the attention of the board any act or omission by the board that in the opinion of the director of education may result in or has resulted in a contravention of this Act or any policy, guideline or regulation made under this Act; and
(g) if a board does not respond in a satisfactory manner to an act or omission brought to its attention under clause (f), advise the Minister of the act or omission.”

Who would ever want to be a school board trustee?

It would be more honest for the provincial government to eliminate school boards entirely and run them out of local field offices. This latest legislation may in fact be a dry run for just such a move. Or it may not. Because with the boards’ disappearance, their purpose as a buffer between parents and provincial Government policies may be lost.

In the view of Education Action: Toronto, Bill 177 is a dangerous and regressive piece of legislation, as poorly drafted as it is fundamentally undemocratic. It needs to be withdrawn and rewritten to ensure that:

1. trustees may represent their constituents as vigorously as the issues and their communities require.
2. trustees are not given impossible (as well as demeaning) obligations, which may put their school boards in some legal jeopardy.
3. trustees are not patronized and hampered by rules governing their roles as genuine representatives of the people who have elected them.

If the present Ontario Government truly believes that “ (a) strong public education system is the foundation of a prosperous, caring and cohesive society,” it should address fundamental problems of finance, local governance and curriculum – as promised when first elected in 2003 – rather than emasculating school boards in the guise of improving student achievement.


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