To answer that question, we need to look at their role and how they have approached educational matters in the past.
If you are a parent who has received a decision letter, you will have it explained in that decision these statements:
“The role of our office is to impartially assess complaints of administrative unfairness brought against public agencies under our jurisdiction. Our assessment process examines whether the agency’s actions appear consistent with the applicable legislation, the agency’s relevant policy guidelines, and the broader principles of administrative unfairness.”
“My focus is assessing your complaint was on whether the District appears to have followed a reasonable process…”
“While I understand you think the District made the wrong decision, disagreement with a decision does not mean the decision is unreasonable.”
When we look at their previous decisions around education, again they don’t look at whether the decision itself is reasonable but the process.
As you can see here in this case (School’s Out) they focused on not whether the school made the right decision in doing what they did, but that they didn’t inform the parents there is an appeals process. Again, focusing on administrative process. To read more decisions in education you can see them here.
We can also look to their Fair Schools Report from 1995, on how they examine the process of what Fair Schools should look like.
Will they create a similar document, but around exclusion?
Will school districts around the province be told they need to create exclusion policies?
Currently, the administrative process around exclusion is a mess. Ombudsperson will be engaging in a year-long investigation into the “fairness around exclusion”.
Law often takes the best interest of the child approach. From an administrative fairness perspective, what should the legislation, policy or administrative process be for children dealing with exclusion and what is fair?
Ombudsperson BC focuses on this perspective in their announcement stating “Children have limited options to address unfairness in their education and school environments.”
From the child’s point of view, what is fair to them?
This still leaves parents out of the picture. Parents are struggling to work and pay their bills while their children are not allowed to attend school, even if the temporary exclusion is considered to be in the best interest of the child by the school. The School Act gives school districts the final decision around exclusion. Is this where family status complaints with the BC Human Rights Tribunal could fill in the gap?
Ombudsperson will not be examining whether exclusion is newly discriminatory. Each complaint system is a silo with their own legislation that guides them. They are not connected to the Human Rights Code.
Something important to highlight from the Ombudsperson Act S.23 outlines what could happen after the investigation is complete.
Procedure after investigation
23 (1)If, after completing an investigation, the Ombudsperson is of the opinion that
(a)a decision, recommendation, act or omission that was the subject matter of the investigation was
(i)contrary to law,
(ii)unjust, oppressive or improperly discriminatory,
(iii)made, done or omitted under a statutory provision or other rule of law or practice that is unjust, oppressive or improperly discriminatory,
(iv)based wholly or partly on a mistake of law or fact or on irrelevant grounds or consideration,
(v)related to the application of arbitrary, unreasonable or unfair procedures, or
(vi)otherwise wrong,
(b)in doing or omitting an act or in making or acting on a decision or recommendation, an authority
(i)did so for an improper purpose,
(ii)failed to give adequate and appropriate reasons in relation to the nature of the matter, or
(iii)was negligent or acted improperly, or
(c)there was unreasonable delay in dealing with the subject matter of the investigation,
the Ombudsperson must report that opinion and the reasons for it to the authority and may make the recommendation the Ombudsperson considers appropriate.
(2)Without restricting subsection (1), the Ombudsperson may recommend that
(a)a matter be referred to the appropriate authority for further consideration,
(b)an act be remedied,
(c)an omission or delay be rectified,
(d)a decision or recommendation be cancelled or changed,
(e)reasons be given,
(f)a practice, procedure or course of conduct be altered,
(g)an enactment or other rule of law be reconsidered, or
(h)any other steps be taken.
They make recommendations. They can’t force the Ministry of Education and Child Care to do anything. BUT! It would make the Ministry look horrible if they ignored the Ombudsperson BC. AND, given that there has been so much media attention (which is absolutely wonderful), then hopefully the Ministry will be accepting of their recommendation.
All this to say…the analysis by the Ombudsperson BC is going to be VERY interesting. The public report will raise awareness of this issue in a way that we have never seen before. The media has been very interested in covering this topic, which is fabulous. We need to muddle through this topic and see where we land. The points of impact on this topic touch everyone and multiple groups of people who access and work in education. I am very pleased that Ombudsperson is shining a light on this issue, and will be looking at exclusion. It will be very interesting to see the results of their analysis and recommendations for “fairness”.
When it comes to exclusion, what is “fair?”
Ombudsperson states:
“By examining this issue we can make recommendations to support the ministry and school districts in meeting their inclusive education commitments and obligations to all students.”
It will take them a year to investigate.
I will be on the edge of my seat waiting for this to come out!