The Right to an Education

Charles Ungerleider, Professor Emeritus, The University of British Columbia

[permission to reproduce granted if authorship is acknowledged]

 Schooling in Canada is so ubiquitous that we take for granted the right to an education. But a friend and colleague inclined to skepticism, asked whether a provincial premier might simply declare that the province would no longer provide an education to those whom we typically regard as having a right to education. I replied that such a declaration would be unlikely since the right to an education is firmly established in law and custom. He asked for proof for my assertion.

My immediate response was to refer him to section 93 of the Constitution Act which confers on provincial legislatures law-making power in relation to education subject to specific conditions. I also referred to section 23 of the Charter which confers on English-speaking and French-speaking citizens the right to have their children receive primary and secondary school instruction in their first language, subject to specific conditions.

He conceded that a premier could not unilaterally deny education to children and youth of school age, but a provincial legislature could. “Not easily,” I replied, since most acts governing education in the provinces and territories contain provisions entitling children and youth to an education. I used, as an example, section 2 of the School Act in British Columbia. It reads in part that, subject to specific conditions, “a person is entitled to enrol in an education program provided by the board of a school district . . ..” (emphasis supplied).

Further evidence that provinces and territories have a duty to fulfill the entitlement to an educational program is found in the definition of “school age.” In British Columbia, for example, that entitlement extends to the end of the school year in which the individual turns16 years of age.

While it might be feasible for a provincial legislature to rescind the legislation establishing an entitlement to an education, such an action would engender widespread outrage because the provision of education is customary. I pointed to article 26 of the Universal Declaration of Human Rights (UDHR). It declares that “everyone has the right to education.” The UDHR speaks about the provision of free elementary level. Canada is a signatory to the UDHR.

Canada is also a signatory to or has submitted to other international covenants and treaties obligating states to provide education. Making primary education compulsory and free is seen as a means of ensuring the rights of the child to education in the Convention on the Rights of the Child (CRC). The CRC specifies the purposes to which an education shall be directed. Among them is “the preparation of the child for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and religious groups and persons of indigenous origin.”

The notion that preparation for “responsible life in a free society” is a central purpose of education in Canada is codified in provincial legislation and regulation. As I have argued elsewhere, school or education acts and related policies make clear that education is instrumental in developing the knowledge, values, and behaviours that citizens need to maintain a socially cohesive and productive society.

My friend was not completely convinced. “Rights and international agreements are contested all the time,” he asserted. I did not disagree. I pointed out, however, that in Moore v. British Columbia, the Supreme Court of Canada reasoned that, in asserting that the purpose of education is to ensure that “all learners . . . develop their individual potential and . . . acquire the knowledge, skills and attitudes needed to contribute to a healthy, democratic and pluralistic society and a prosperous and sustainable economy,” the Province of British Columbia had acknowledged that children are entitled to an education necessary to make such a contribution. Access to special education, the court reasoned, “. . . is the ramp that provides access to the statutory commitment to education made to all children in British Columbia” and “not a disposable luxury.”

The duty of a province to provide education under the terms of its school act was also  upheld in McLeod v. Salmon Arm Bd. of Sch. Trustees, making “the interest of the children . . . the paramount consideration in the Public Schools Act.”  In Bales v. Board of School Trustees, School District 23 (Central Okanagan) the Court reasoned that “eligible children have a legal right to an education” and an entitlement to an education that “meets some basic educational standard.”

It is understandable that we would take for granted the universality of elementary and secondary education in Canada. However, we can take comfort in knowing that statutes, international conventions, and court judgments make it difficult, if not impossible, for a provincial premier, provincial legislature, or a school board to deny children their legal right to an education.  

Demographics foreshadow significant educational changes

 Charles Ungerleider, Professor Emeritus, The University of British Columbia

[permission to reproduce granted if authorship is acknowledged]

According to a Statistics Canada year-end report demographic changes will have an impact on Canada’s economy and society, including its education systems. And the impact will not be trivial. COVID-19 has produced fewer births, lower numbers of immigrants, fewer inter-provincial migrants, and fewer fee-paying international students.

 

As the graph above from Statistics Canada illustrates, population growth, natural increase (births minus deaths), and migratory increase are declining precipitously. To put the decline in perspective, the annual growth in population in 2020 (149,461) was the lowest in number since 1945 and the lowest in percent since 1916. International migration, which accounted for three-quarters of population growth since 2016, declined by more than 50% in 2020.

Some changes such as the decline in the birth rate are part of a longer trend. The chart below indicates, over the past 70 years there has been a dramatic decline in the number of births per 1,000 people. In 1950, there were over 25 births per 1000 Canadians. Today, the number is closer to 10.

 

https://www.macrotrends.net/countries/CAN/canada/birth-rate Canada Birth Rate 1950-2021. www.macrotrends.net. Retrieved 2021-08-28.

COVID will exacerbate the downward trend in the number of children born through its impact on fertility. Twenty percent of Canadians between the ages of 25 and 44 said they want to delay having children and 14% want fewer children than they had anticipated having. There are some Canadians in that age group who want to have children sooner (7%) and want more children that they did prior to the pandemic (4%).

Even if these reductions are only temporary, together they will have a dramatic impact on education in the years to come. Decline in student numbers is consequential, affecting many, if not all, facets of the school district, including facilities usage, employment of district staff, and the nature and types of services the district provides.

If the Government of Canada increases the number of immigrants to offset the decline in natural increase (which is much below the replacement level), there will be increased need for settlement and language services for newcomers for whom English or French is an additional language. Part of the settlement process will need to give attention to the social integration of newcomers and the maintenance of social cohesion. Engagement of parental support--so crucial for successful schooling--will need to figure even more prominently in school districts' community outreach. Increased immigration will also put pressure on schools to ensure the successful educational and social integration of students who are only just learning the language of instruction.  

A drop in the school age population is not uniform across all regions of the country. School boards will be under significant economic pressure to close small, rural schools. School consolidation may produce some economies of scale, but these may be offset by increased transportation costs, environmental impact, and diminished small ‘p’ political support for schools.    

Forecasting and planning capacity differ among school districts. Large districts sometimes have dedicated specialists who can estimate changes in the population at the district level and help policy makers and educators plan for those changes. Smaller districts often lack such capacity because there are fewer, if any, in-house specialists. Differences in capacity would be alleviated if ministries and departments of education assumed responsibility for student population forecasting.

School boards would likely resist such a move, arguing that they know their local conditions better than the ministries or departments. They would also recognize that ministries in possession of such detailed information would likely point out schools that might be candidates for closure to save scarce resources. On the one hand, boards wouldn’t like that. On the other, boards might welcome being able to blame ministries for forcing boards to close small, less efficient schools.

Boards might decide to work together on developing population estimates. They might do this through the provincial associations to which boards belong or they might wish to establish a shared service.

The continuation of COVID makes it unclear whether the declines that have been observed will continue, what the magnitude of those declines might eventually be, and what impact governmental policies such as admitting a greater number of immigrants will have on school age populations.  Regardless of the impact of government policy, demography plays an important part in educational policy, planning, and resourcing. Boards that fail to plan for demographic changes put themselves on a precarious economic and educational footing.

Simple solutions are often not as simple as they seem

 Charles Ungerleider, Professor Emeritus, The University of British Columbia

[permission to reproduce granted if authorship is acknowledged]

My experience as a Deputy Minister of Education taught me that seemingly simple solutions to complex problems are not as simple as they first appear. The January 4^th Globe and Mail opinion article (“Canada needs to invest in tutoring for students falling behind”) proposes that the Government of Canada fund tutoring in K-12 schools to address learning losses caused by COVID-19. It is an intriguing proposal, but before adopting it there are several issues that the authors do not address that may subvert the intended outcome they seek.

Long before COVID, small, rural, and remote regions of Canada have found it challenging to recruit and retain qualified teachers. Even in urban areas recruitment can be problematic, especially recruiting and retaining qualified French-language teachers. COVID-19 has prompted many experienced teachers to resign, making staffing even more difficult and exhausting the supply of teachers who fill in for teachers who are ill. These conditions make access to education an equity issue that has implications for tutoring.

Unless they are experienced teachers, tutors will need to rely upon the diagnoses and prescriptions of experienced teachers for their tutoring efforts to succeed. Teacher shortages and teachers overburdened with the demands on schooling imposed by the pandemic are not trivial matters that will, in turn, affect the deployment and supervision of tutors. How will regions and school districts facing recruitment, retention, and daily teacher absences provide the support that tutors will need to be effective?

Inequities in access to the internet, equipment, and bandwidth during COVID have not been remedied. The failed natural experiment in online education during COVID suggests that tutoring via the internet is likely to be even less successful.

The brief opinion article does not indicate what mechanisms will be established to ensure the quality of the tutoring experience for vulnerable students. Teacher certification is a mechanism that provides some assurance that even the least qualified teachers are unlikely to do harm to the students for whom they are responsible. Certificated teachers must undergo background record checks and meet minimum standards. What standards should tutors meet to undertake responsibility for working with students? 

The opinion piece argues that the Government of Canada should provide resources that will be spent in the education sector. As most people are aware, education is a provincial jurisdiction. Will the provinces accept money from the government of Canada for education? Will all provinces accept the resources?  Quebec often insists that it receive resources without restrictions about how the resources are spent. What conditions will the provinces place on the receipt of those funds?

If provinces accept resources from the Government of Canada, how will they distribute the resources? Will resources be distributed through school boards? Do school districts have the capacity to use the resources to hire and supervise tutors?

When will the tutoring be provided? If during the school day, will teachers’ unions and support-staff unions say that the tutors, whether face-to-face, or remote are “doing bargaining unit work” prohibited by the contracts they have with their employers?

Parents will want assurance that the provision of tutoring does not absolve school systems from the obligation they have to address the negative impact of COVID-19. Many will be concerned that tutoring simply relieves school systems of the pressure for addressing the educational needs of students. “Yes, she’s behind, but the tutor is handling that!”

My intent is not to impede consideration of this proposal. The concerns and question I raise are ones that must be addressed to ensure that a well-intentioned proposal does not compound the challenge that the proposal is designed to address and exacerbate the problem.