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Criminalising the Classroom is Not the Answer

by The Honourable Marvin A. Zuker, Ontario (Canada) Court of Justice

We at The Law Journal UK welcome back a contributing author, Judge Marvin A. Zuker of the Ontario (Canada) Court of Justice, specialising in Family Law. Your comments are welcome on this and any of our articles -- contact Brian Risman, Publisher, The Law Journal UK regarding your thoughts.


Educating children may be the most rewarding job anyone will ever have. Look into any classroom and you will find gifted students, students with disabilities and special needs, students who speak English as a second language, students who live in poverty or are homeless, or even illegally in the country. Their school is the place where they can discover, learn, create and grow.


If students do not feel safe and secure, they will have difficulty concentrating.  Statistically, schools are one of the most secure places for our children.


No matter how safe and secure a school may be, no school is completely risk-free.  Fortifying schools doesn’t guarantee that a gunman will be kept out.  Schools have to provide an environment where students who hear threats can turn to trusted teachers or counsellors or even report the threats anonymously.  The “law-and-order” approach is a politically expedient solution that doesn’t work.


Police officers in general may not be familiar with legal issues faced by school administrators when interacting with students and police.  Police officers remain first and foremost police officers.  Although school safety may be the mutual goal, their mission is law enforcement and to eradicate crime.  The mission of our schools is the education of children.  It is not unusual for conflict to occur when an administrator chooses to use a school incident which may be a technical crime as a teachable moment whereas the police officer may not value the discretion of the administrator in a disciplinary setting.


It is important to remember the type of Police Officer present -- in the role of a School Resource Officer (SRO) -- when dealing with certain incidents.  Our courts allow much more latitude to school administrators and other educators than they do police officers when deciding cases involving searches, questioning, securing evidence and reporting serious incidents to the authorities.


It is not necessary to involve the police for minor infractions of a school’s conduct code, even if the conduct is technically a crime, unless the crime is serious or the health or safety of individuals is placed at risk or serious property damage is threatened.  Except in emergency situations (for example an immediate health or safety threat), the principal is prohibited by law from sharing information from a student’s record information without written consent.


There are four basic scenarios represented by the case law:


  1. School officials initiate the search and police involvement is minimal;

  2. School police officers or other SROs initiate the search acting on their own authority;

  3. Outside police officers initiate the search on their own authority; and

  4. School administrators, acting as agents of law enforcement initiate and conduct the search.


Most courts have held that when the search is initiated by school personnel and law enforcement participation is minimal, the reasonable suspicion test applies.  Administrators should not allow circumstances to develop where the administrator is considered an agent of the police.


The police and school board must, at the very least, form police-school partnerships and clarify the responsibility of each entity.  These agreements should address the purpose of the agreement such as to coordinate their efforts to reduce violence, prevent drug abuse, including alcohol, and to respond effectively to incidents of delinquent or criminal behaviour by students.


Schools cannot rely on unilateral threat assessment by teachers and other school personnel.  They need to establish a system whereby all disturbing behaviour by persons at the school is reported to a “vortex” comprised of a central individual or team of individuals with expertise and training in threat assessment.


We should clarify how information, including mental health information, can be shared legally under federal and provincial legislation.  Such guidance should be disseminated to mental health, education, and law enforcement and adequate training provided.


We should consider exceptions to provide for sharing of information with schools that goes beyond the current “imminent danger” exception, and provide that schools and their employees are not liable for good faith efforts to protect students or staff.


As the Supreme Court of Canada stated in September 2008, young persons are afforded additional protections (as expressed in s. 146 of the Youth Criminal Justice Act (YCJA), S.C. 2002, c.l, in force April 1, 2003) in that Parliament satisfied its objective of recognising the reduced sophistication and maturity of such persons.  Aside from whether a police officer has advised a young person as to his or her rights

under our criminal justice system, a police officer may not know the student in particular, thus the possibility that the student may have, for example, a learning disability or behaviour disorder.


What should we be doing?  We should be creating the climate by means of bullying prevention, conflict resolution/life skills and classroom management.  There should be early identification/intervention by means of threat assessment, mentoring and anger management.  Effective responses should include in-school alternatives, functional assessment and restorative justice.


One should actively teach appropriate behaviour through school philosophy and preventive programs, communicate and collaborate with parents, seek to reconnect alienated students through mentoring and anger management, and develop creative options in the school and community to keep even those students who are suspended and expelled engaged in learning.


Teacher, once you send a child to the office you give up a part of your control over that child.  It sends a message to the child that you know you really don’t have control.  Schools should realise that it’s a lot better to handle the discipline within the team [of teachers] if we can because that sends a message to the student that the team has control, not the police.


There are many character values:  respect, cooperation, honesty, perseverance, caring and courage.  We must see this everywhere, in the hallways, on bulletin boards, in the classrooms.  We must end up having our kids very respectful to one another and willing to work cooperatively.


Since the New York Police Department (NYPD) took control of school safety in 1998, the number of police personnel in schools and the extent of their activity have skyrocketed.  At the start of the 2005-2006 school year the city employed a total of 4,625 School Safety Agents (SSAs) and at least 200 armed police officers assigned exclusively to schools.  These numbers would make the NYPD’s School Safety Division alone the tenth largest police force in the country.


In New York, because these school-assigned police personnel are not directly subject to the authority of school administrators, and because they often have not been adequately trained to work in education settings, they often arrogate to themselves authority that extends well beyond the narrow mission of securing the safety of the students and teachers.  They make students feel diminished, and are wholly incompatible with a positive educational environment. 


Everyone wants our schools to be safe.  Police personnel assigned to schools must be trained to work in school environments.  Educators may be powerless to curtail inappropriate behaviour by police personnel by assigning officers to schools without placing them under the authority of principals and school administrators.


School safety should be the province of education officials – not the police.  Some of our police officers are younger than the students.  But they, the police, have perhaps the greatest of our powers, if not the fear of its exercise.  And that is discretion.


Schools that rely on the police to create safety may end up creating an environment that is so repressive that it is no longer conducive to learning.


Every school has a lunchroom fight.  How and where is a police officer going to get the appropriate experience and training to deal with that?


The 1998 Memorandum of Understanding between the Board of Education (BOE) and the New York Police Department (NYPD) affirmed the importance of this principle, stating that “the imposition of school-based discipline shall continue to be a pedagogical function exercised by superintendents, principals and other appropriate school personnel…”  But the same principle is directly contradicted by the NYPD Patrol Guide, which in the section on “Handcuffing Students Arrested Within School Facilities” states:


Whether probable cause to arrest exists will be determined by the Police Department.  While the desires of school personnel (principals, teachers, school safety officers, etc.) may be considered by the uniformed member of the service in determining whether an arrest is warranted, the views of the school personnel are NOT controlling.  [Emphasis in the original]


Our schools are facing a crisis of leadership because many boards are finding it increasingly difficult to recruit new principals.  Fewer and fewer of them may now seem willing to seek administrative positions.


The family and the home are both critical education institutions where children begin learning long before they start school.  We need to develop cooperative partnerships in which families are allies in the efforts of teachers and schools.  The family is our smallest school.


A significant body of research indicates that when parents, teachers and schools work together to support learning, students do better in school and stay in school longer.


What makes kids happy will surprise us.  A recent poll finds family time, not money, is what makes kids 13 to 24 feel great.


What makes you happy?  Spending time with family was the top answer to that open-ended question, according to an extensive survey.


Happiness is … two kinds of ice cream, according to the song from “You’re a Good Man, Charlie Brown” and not as John Lennon more darkly described it as a warm gun.  Research has shown us that relationships are the single greatest source of happiness.


At the end of the day each school should look to its most valuable resources, the people in the school, for answers to pressing school safety issues.  It is often amazing just how much help may be right in front of us.  Making school safety a true team effort can improve morale, give employees a sense of control over the fear they may feel and can help make our schools safer places.


A legalistic culture transforms what should be a cooperative enterprise into a viper’s nest of competing entitlements, as people will start passing the rules to get their way.  Who best will understand and appreciate the multiculturalism of our schools?


Legalism may well be asocial.  It does not necessarily advocate or promote any human bond or social interaction within a family, school or community.


Kids must feel part of and cared for at school.  Will a police presence do this?  I am not so sure.


I believe that the interesting and maybe encouraging thing about children is their innate sense of justice and fairness.


We must value the life we see in one another.  It is all about human choices.


The Honourable Marvin A. Zuker



Your thoughts? 


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