Progressive Discipline: Mitigating Circumstances and the Austerity Agenda

Wendy Goodes

Violence in the classroom is becoming a growing concern for educators. To see how we can create safe classrooms today, we need to understand how and why we got to this point, the implications of current policies and the supports that are missing for all our students and staff.

A trip back in time takes us to the year 2000 when then-Premier Mike Harris introduced Bill 81, the Safe Schools Act , that introduced a “zero tolerance” policy for student behaviour. The bill mandated suspensions and expulsions for a comprehensive list of misbehaviours. Teachers were given the power to suspend (although this was strongly discouraged by ETFO). “Classrooms were going to be safe,” we were told, and “Every child is entitled to learn in an environment that is free from harassment and violence.” Controversies abounded: there were longterm concerns for children who were suspended or expelled from school and who were missing their education; there was increased criminalization of children; students became disenfranchised and sometimes wore their suspensions as “badges of honour;” and there was inconsistent administration of this policy across the province.

The Ontario Human Rights Commission (OHRC) filed a complaint in 2005 with respect to the adverse effects of this zero tolerance policy on both racialized students and students with disabilities. While this was occurring, the government formed the Safe Schools Action Team to investigate issues surrounding bullying prevention and to review the safe schools provisions of the  Education Act .

Community agencies, students, parents and school staff provided input into safe schools issues. In 2006, under the Liberal government, the team delivered a report entitled Safe Schools Policy and Practice: An Agenda for Action . The report was, in part, a response to the OHRC complaint. The Ministry of Education and the OHRC subsequently reached a settlement in 2007. On June 4, 2007, Bill 212, the Progressive Discipline and School Safety Act , was passed with unanimous consent. Along with this bill came Mitigating Factors Regulation 472/07 that meant “progressive discipline” accompanied by the use of mitigating factors was to be implemented. This approach allowed schools to address inappropriate behaviours while allowing students to continue their education. There were two components to progressive discipline – addressing inappropriate behaviour and promoting positive behaviour. Some of the items that were mandated included professional and programming supports with training for teachers and principals.

The Safe Schools Action Team was also asked to study issues related to gender-based violence, homophobia, sexual harassment and inappropriate sexual behaviour. This led to the introduction of Bill 157, the Keeping Our Kids Safe at School Act , in 2010 and Bill 13, the Accepting Schools Act , in 2012. Bill 157 included the requirement to report and respond to all incidents for which a student could be suspended or expelled. Bill 13 took this one step further in that it gave principals the duty to investigate all reports that are submitted, required parents of both the harmed child and the child who caused the harm to be notified, permitted the establishment of Gay Straight Alliances (GSAs) and required bullying to be addressed by school board codes of conduct.

The goal of these new laws was simple – to have a disciplinary system that maintained safe and violence-free schools, but still protected the human rights of all of our students. The introduction of the Mitigating Factors Regulation protects the rights of our students in need. A principal must consider the following factors when looking at the misbehaviour. Does the student have the ability to control the behaviour? Does the student have the ability to understand the foreseeable consequences of the behaviour? Does the continuing presence of the child in the school create an unacceptable level of risk to the safety of any other person?

The principal must also consider the student’s history, whether or not a progressive discipline approach has been used, the age of the student, whether the incident was the result of harassment of the student, the nature and severity of the behaviour, as well whether the student has an Individual Education Plan (IEP). Many of our students with behavioural and social needs have an IEP, and these children are to have the programs and services that they require to address their goals spelled out in the IEPs. This requirement is laid out clearly in Regulation 305. So the issues then become whether the behaviour is a manifestation of the student’s disability, whether appropriate accommodations have been provided for the student, and whether a suspension will actually worsen the behaviour. The rights of students with exceptional needs are protected under these bills and regulations. But sometimes, in order to protect the human rights of a child with aggressive behaviour, the safety of the other students and staff is overlooked in our classrooms.

Bill 212, the Progressive Discipline and School Safety Act , 2007, was noble in its intent. The zero tolerance policy needed rebalancing and positive school climates were definitely steps in the right direction. Teachers were no longer allowed to suspend students, bullying became a suspendible offence, the commitment to progressive discipline was there and alternatives to discipline, such as meetings with parents and community agencies, had to be considered. Policy Program Memorandums 141, 142, 144 and 145 mandated more items that boards needed to consider. Boards had to provide alternative programs for suspended and expelled students that contained both academic and non-academic components and bullying was to be dealt with. Discipline was to become corrective and supportive using a wide range of interventions and supports that would help students learn to make good choices. Boards are now required to offer a program for students suspended for more than five days. For students suspended for fewer than six days, homework packages must be provided. However, students cannot be compelled to attend these programs or complete this work. For teachers, this means an increase in workload.

One action that must lead to suspension and for which the principal must consider expulsion is physical assault of another person that causes harm requiring medical treatment. This, coupled with the Ontario Health and Safety Act (OHSA) provisions and considering mitigating factors, has led to teaching becoming dangerous, in some cases even requiring wearing personal protective equipment in the classroom. The Ministry of Education has put into place a law that recognizes that children have rights and that consideration of the mental health and well being of students is paramount. The need for high-quality alternative programs, additional assistance from various paraprofessionals and community agencies, training for teachers, and more resources has been recognized. Yet, our classrooms across the province have become more violent.

The government, in the interest of its austerity agenda, is attempting to restructure the special education funding model to constrain additional expenditures. This has undermined the government’s capacity to meet the increasing demand for special education supports. In practice, this means there are fewer resources within the school environment that can be used to assist students. Funding levels that fail to meet the demand for support for