One for all

This post was originally published in collaboration with Maciej Lipinski, who has since moved on from his role at KPMG in Canada.

As the weather warms and with summer break just around the corner, we wanted to take the opportunity to think about school board trustees. We’re going to do this in two separate posts. This one will provide an update on a recent Ontario Court ruling that addresses the roles and responsibilities of school trustees. In the next one later this month, we’ll offer some guidance on freedom of access when it comes to the records and communications that trustees keep. We hope you find both posts to be timely and relevant, especially in light of the ways communities are now actively engaging with their local school boards in different and new ways.

It starts with trust
At a high level, public school systems fuel healthy democracies by providing pupils with tools to be active and engaged citizens. But what about democracy within public schools themselves?

Under the Education Act, boards of trustees and individual trustees in Ontario serve as a point of connection between school boards and the communities they serve. In particular:

1. School board trustees are entrusted to bring the concerns of parents, students and supporters of the school board to their fellow members of the board of trustees.
2. However, the board of trustees must act as a single decision-maker in addressing such concerns, usually through meetings that are held in public and through decisions made by a majority vote.
3. Once a decision has been made by the board of trustees, it becomes the duty of all individual trustees to uphold that decision.
4. In doing all of the above, a board of trustees and individual trustees must uphold the policies and processes set out in the school board’s bylaws and code of conduct.

In recent years, boards of trustees at Ontario’s public school boards have faced challenges, opposition and sometimes even heated demands for change and accountability from members of their communities. The contentious issues raised at public boards of trustees meetings have included school board’s mandatory masking policies, measures to protect transgender students from discrimination and measures to address anti-black racism. In the background, schools in the United States have reported a growing trend in public challenges to school policies, which in some cases have gained national attention through social media and other channels.

As school boards and their trustees increasingly face such public scrutiny, a recent decision of Ontario’s Divisional Court helps shed light on the roles of school board trustees in Ontario.

The recent decision of the Ontario Court
In a recent case, the Ontario Divisional Court dismissed an application seeking to reverse a board of trustee’s decision finding that one of its members had breached the school board’s code of conduct. The challenged board of trustee’s decision was made in response to public comments made by one of its members, in which that trustee disparaged the school board’s recognition of Human Rights Code-protected grounds of gender expression and gender identity.

Following an investigation, an initial vote of the board of trustees fell one vote short of the two-thirds supermajority required to find the trustee to have been in breach of the school board’s code of conduct. But following a strong negative response from the community, the board of trustees decided to reconsider its initial decision. That reconsideration resulted in a vote that met the threshold and found that the trustee had breached the school board’s code of conduct.

The Divisional Court upheld the board of trustee’s decision to reconsider, and also upheld the board of trustee’s resulting decisions finding a code of conduct breach as well as issuing and confirming sanctions against the offending trustee.

The Court’s decision recognized that the Education Act provides school boards with the ability to govern their own processes. This means that the school board in question could (1) establish rules requiring a supermajority vote to find a trustee in breach of the code of conduct in the first place and (2) also establish rules providing for reconsideration of particular decisions. Notably, had the school board chosen to require only a majority vote to find a trustee in breach of its code of conduct, then the first vote would have been sufficient to find that the trustee had been in breach.

Trustees are, above all, entrusted
At key passages in its decision, the Court addressed how individual trustees are required to balance their own views and the broader public interests they serve. As stated by the Court:

The focus of the Education Act is thus the public education system and the well-being and achievement of the students who participate in it, with the goal of ensuring they develop into caring, contributing citizens. It is the Board, and therefore its Trustees, who are in service to these objectives and not the public education system that serves a trustee’s objectives. […]

As noted above, the Board has a statutory obligation to promote student well-being and a positive and inclusive school climate. The Board also has an obligation to enforce a minimum standard of conduct expected of its Trustees. All Trustees have an obligation to comply with the Code of Conduct and to assist the Board in fulfilling its duties. Sanctioning the Applicant for making disrespectful comments was not contrary to the Education Act, but consistent with the Act’s statutory objectives.

In other words, in Ontario the role of a school board trustee is—at its core—entrusted to administer the public education system. This means that individual trustees are not at liberty to substitute their personally held views in place of the purposes set out in the Education Act.

Takeaways for trustees and community members
The Court’s decision indicates that Ontario’s school board trustees must be governed by a broad public interest that stands paramount over any personal interests or the interests of any particular group of supporters or constituents. Viewed from this perspective, the decision may be taken as a guidepost for both trustees and for community members, stipulating that school trustees are primarily public servants rather than advocates, and that their role must entail the consideration and balancing of many voices in their communities rather than augmenting and advocating the voices of some to the detriment of others.