Maxwell (2022) Professional Ethics and Law in Education A Canadian Guidebook

^{Header image: KF in Dall-E}

to amplify the voice of a certain professional ethics perspective on the moral or ethical dimensions of teaching that all too often falls by the wayside in teacher education

The professional ethics perspective, by contrast, understands that teachers, just like engineers, lawyers, doctors, and all other recognized professionals, are bound by a set of standards, norms, and rules that are common to the profession and that these expectations are there to encourage professionals to provide the highest quality of public service they can. In teacher preparation, the professional ethics perspective centres on initiating future teachers into a community of practice defined by a shared conception of what it means to act ethically and responsibly in the provision of educational services.
Most Canadians know that education is a provincial jurisdiction, but few Canadians appreciate just how unique Canada is in the extent to which the federal and provincial governments avoid treading on each other’s toes when it comes to education.
teacher education has an ethical obligation to make sure that teachers have a healthy understanding of the values, demands, and constraints that will inform the expectations that society will have of them

Chapter 11: Professional Autonomy v Academic Freedom

while education law recognizes both teacher autonomy and the duty to respect workplace authority, when the two clash, the latter generally takes priority
while primary and secondary school teachers do indeed have a relatively strong prima facie claim to academic freedom, the fact that they work with a conscripted clientele of minors means that academic freedom will necessarily be more limited in compulsory education than in higher education.
Competency-based Education: “instead of prescribing what was to be taught in the form of topics, concepts, and themes, educational authorities would now prescribe what was to be learned in the form of competencies.”
One example of managerial autonomy is the right of individual school boards in British Columbia to approve teaching material
- In Quebec, by contrast, this power to approve teaching materials lies in the hands of the ministry of education.

“Public school teachers may not always see themselves as civil servants, but they are. Even though teachers work under the immediate supervision of the administrative head of a school—the school principal most of the time—public school teachers in Canada are usually hired by regional school boards, which are in turn directly overseen by the provincial or territorial ministry of education. At the end of the day, public school teachers are employees of the state.”
“When it comes to the duty of loyalty, the key word is publicly. Professionalism requires internal disagreements to be dealt with internally and through proper institutional channels.”
“teacher’s professional judgment, with respect to the best interests of the students, rarely trumps what the state or its agents decide is in the best interests of those same students. As legal scholars point out (e.g., Stuller, 1998; Uerling, 2000), the courts’ repeated denial of teachers’ claims to individual professional autonomy should be seen as a necessary feature of mass education that is hierarchically organized and accountable to the public through a system of democratic governance.”

ACADEMIC FREEDOM (cites Petrina 2007)

“For the purposes of this book, let us define academic freedom as an instructor’s right to choose what they teach (content), how they teach (pedagogy), and how they evaluate students’ learning (assessment) based on their best professional judgment and without interference from third parties such as parents, members of the community, school donors, and even students, colleagues, and school officials.”

“The first justification for academic freedom is that safeguarding academic freedom in educational institutions is a condition for the development and exercise of a responsible and critical mind.”
- “The basic idea here is that people are more likely to acquire the critical reasoning skills necessary for assessing what is true, right, or best when they are exposed to as many different beliefs and ideas as possible and when they are given opportunities to assess them—as they are, supposedly, in societies where a free marketplace of ideas is allowed to flourish”
“The second broad justification for academic freedom that recurs in the legal and academic literature links the social value of academic freedom to the role it plays in the creation and dissemination of disciplinary knowledge”
- “This argument emphasizes teachers’ professional autonomy, or the freedom of members of an academic community to decide collectively and for themselves which views are correct or incorrect and which methods of inquiry are best suited to the work of inquiry and truth-seeking in their particular area of academic specialization. According to this view, aca-demic freedom is first and foremost an important condition of the dissemination of knowledge”

KF: Gradgrindian: From Thomas Gradgrind, a character in Charles Dickens’ novel Hard Times, +‎ -ian.
➡ Having a soulless devotion to facts and figures; inflexibly utilitarian.

KF: “transmission model” widely disparaged – socio-constructivist paradigm now de rigueur {sources}

“It may at first glance seem odd to use pedagogical knowledge as a justification for academic freedom. It is uncontroversial that, owing to their higher-education focus, discussions of the justification of academic freedom tend to emphasize disciplinary or content knowledge rather than pedagogical knowledge as a basis for academic freedom. The link between the various aspects of academic freedom qua teaching and mastery of a field of inquiry, however, does not appear to be an essentialist one. This is supported by the fact that university and college teachers, who typically receive no formal, university-based pedagogical instruction whatsoever before assuming teaching responsibilities, are generally granted academic freedom not only in relation to the content of their courses (which draws on disciplinary knowledge) but also in relation the methods they use to teach and evaluate their students’ learning (which draws on pedagogical knowledge).”
- “Shulman (1986a), reject[s] the distinction between content and pedagogical knowledge as artificial, arguing that teachers’ instructional knowledge is best considered an organic fusion of content knowledge and pedagogical knowledge.
- Shulman (1986b) labels this key facet of teacher competency “pedagogical content knowledge. “Be that as it may, with regard to pedagogical knowledge, teachers in higher education may be seen as the mirror opposite of primary school teachers. Where one lacks specialized disciplinary training with regard to content, the other lacks specialized training with regard to instruction.”
- to have a plausible claim to academic freedom, teachers must be able to demonstrate that they possess expertise that is of public value and that the public is best served when they are allowed to exercise it relatively autonomously and on the basis of their best professional judgment. Tolerating the assignment of teachers to classes they are manifestly unqualified to teach [out-of-field teaching] makes the argument of detractors of academic freedom in compulsory education for them”

Chapter 12 – Navigating disagreements, complaints, and Teacher free speech in schools.

“Judging by how frequently it appears in codes of ethics for teachers, managing criticisms, complaints, and conflicts respectfully and through proper channels is widely considered to be one of teachers’ most important ethical obligations.”
“The rule of ascension, as it is called, states that conflict resolution should always start with a good-faith and concerted attempt to find a solution among the people directly involved in the disagreement. Intervention from those higher up in the hierarchy should only be sought if a solution cannot be reached in the first instance.”

Chapter 13 – Off-duty conduct and being a teacher 24/7

Individuals entering the teaching profession need to understand that they are perceived as community role models. Teachers must attend to the norms and expectations that would not impair public confidence in the school system more broadly. As such, teachers must be mindful about their conduct beyond the professional workday.”
“we review behaviors and actions that undermine the education system’s core values of equality, dignity, and respect, as well as behaviour that is deemed conduct unbecoming of a teacher (Mackenzie, 2016).”

Teacher as exemplar: history

“Teaching is a public profession, and specifically, teachers occupy a position of trust and authority toward young people. This stance was made clear in R v. Audet (1996), in which the Supreme Court of Canada noted that “parents delegate their parental authority to teachers and entrust them with the responsibility of instilling in their children a large part of the store of learning they will acquire during their development” (para. 41).”
“In contrast to many other professions, when allegations against a teacher are brought forward for investigation, a key commonly asked question is whether the teacher’s conduct erodes the public’s trust in the teacher or more broadly harms the reputation of the profession. Unlike most other professionals, teachers’ public behaviour and speech are scrutinized. Understanding where the boundary lies between appropriate and inappropriate is difficult”

Ross “poisoned environment”

“unbecoming conduct tends to fall under three main themes:

(a) behaviour or speech that is racist or discriminatory;

“Competing interests have to be balanced in the delivery of public education and limitations to freedom of expression might emerge in any of the intersections of the numerous stakeholders involved—parents, teachers, students, school boards, principals, professional bodies, provincial minis-tries of education, and so on. (de Britto, 2017, pp. 28–29)”

Ross:

A school is a “communication centre for a whole range of values and aspirations of a society…. The school is an arena for the exchange of ideas and must, therefore, be premised upon principles of tolerance and impartiality so that all persons within the school environment feel equally free to participate” (para. 42).
“Teachers are a significant part of the unofficial curriculum because of their status as ‘medium.’ In a significant way the transmission of pre-scribed ‘messages’” (para. 43).
- KF: McLuhan – teacher as medium (spiritual element…)
Ontario College of Teachers v. McDonald, 2019: Parents took screen-shots of the Twitter posts that McDonald had retweeted, including the following:

The college determined that by retweeting the comments on multiple occasions, there was no momentary lapse in judgment, nor was there any critical commentary. By retweeting posts, one “conveys implicit agreement unless the user explicitly states otherwise” (para. 18).

Kempling:

“a high school teacher and registered counsellor, was accused of professional misconduct arising out of an article and letters to the editor that he wrote expressing his views on homosexuality in which he associated homosexuals with immorality, abnormality, perversion, and promiscuity.”
“Ultimately, Kempling’s comments undermined the core educational value of non-discrimination by denying homosexual students an accepting and safe educational environment.”

(b) conduct that is lewd or obscene and causes adverse notoriety and social disturbance

Shewan: IMAGE A photo is worth a thousand words

“Seasoned teachers will commonly separate their professional and personal lives, even if the off-duty conduct is not questionable by community norms. Examples include teachers requesting different camp sites to provide more distance from families that might be beside them, getting groceries or shopping away from the school in which they teach, and not drinking in establishments if families are present”

“In almost all cases, rulings reinforce the premise that teachers must follow and adhere to the religious practices that are held by the school in which they are employed.”

Caldwell v. Stuart et al. (1984)

In 1977, she married a divorced man who was not Catholic in a civil ceremony
The school, having learned of this marriage, did not renew her teaching contract the following year. The court ruled in favour of the school.
In failing to renew the contract of Mrs. Caldwell, the school authorities were exercising a preference for the benefit of the members of the community served by the school and forming the identifiable group by preserving a teaching staff whose Catholic members all ac-accepted and practiced the doctrines of the Church.”
Unlike non-denominational schools, which provide only academic instruction, Catholic schools are unique in the additional requirement of inculcating the dispositions and behaviors that are in accordance with Catholic doctrine. As such, the teacher is expected to model this faith on and off duty.

Casagrande v. Hinton Catholic Separate School District No. 155 (1987)

When she accepted her employment, she knew she was pregnant from premarital intercourse but did not disclose her pregnancy to the school board.” WARNED “However, in 1985, the teacher found out that she “was pregnant again out of wedlock. Similar to the Caldwell case, the judge ruled in favour of the school board, noting that the school has a right to preserve its essential religious character

Buterman v St. Albert Roman Catholic Separate School District

As recently as 2017, questions have been raised of teachers adhering to a lifestyle that is in alignment with doctrinal beliefs. In this case, a teacher, Mr. Buterman, was removed from the school board’s substitute roster as Buterman was a transgender person in the process of transitioning from female to male. The board advised Buterman of their removal from the roster, citing that

Following this ruling, Mr. Buterman filed a human rights complaint with the Alberta Human Rights Commission. The board offered to settle the file by offering a $78,000 cash settlement in exchange for withdrawing the complaint or not further advancing any other human rights complaints or formal legal processes. Mr. Buterman challenged the settlement based on the equitable doctrine ofunconscionability.¹ The court held that there was not sufficient evidence to suggest that the settlement was unconscionable.

“the courts have determined that the constitutionally protected right to establish separate schools necessarily includes the right to maintain the denominational character of the school. This includes the right to dismiss teachers for denominational causes” (Wendel, 2017, p. 7).”

Rural Teachers

“To not participate in community activities or be seen in the local community would similarly raise eyebrows. There may even be an expectation that teachers are seen in the fabric of the rural community as a role model and exemplar. It would not be surprising if teachers were asked to attend a local event to show their support for the values and norms of the community. “
“Can you go over to a friend’s house fora drink, knowing that their children attend your class or your school? Would it be rude to say no to an invite to a family’s home for supper if they are a part of your school community?”
“Unfortunately, there is no clear list of dos and don’ts. And perhaps that should be the case. This final example calls on teachers to use their ethical judgment and be attentive to local community norms and practices.”
Reflective questions: Reaching out to other long-standing teachers in the school, and the school leadership, will help you better understand how you can be part of the community without overstepping into ethically grey areas.

Conclusion
As legal cases come forward, it will be noteworthy how the Charter of Rights and Freedoms will evolve and shift alongside changing public discourse. Unlike the American constitution, Canada’s constitution is based on a living tree doctrine, which allows it to evolve over time while still recognizing its original intentions (Hogg, 2007). In this way, the living tree doctrine allows for flexibility and adaptability to accommodate the changing needs of society.”

p. 232 Dress codes

Community standards

The Manitoba Court of Appeal commented on how a court ought to identify community standards for these kinds of matters (Reference Re Same Sex Marriage ,2004). The decision was subsequently upheld by the Supreme Court of Canada. Justice Freeman wrote the following:”

“As society progresses, so too does the public opinion that delimits what is acceptable. Considering the public nature of a teacher’s role, it is imperative that teachers be in tune with what is acceptable in today’s society. Promoting tolerance, acceptance, and love should always be on the agenda, yet having an awareness of the struggles that marginalized groups face is not only expected but required of a modern teacher”

Given the political and social shifts that will continue to occur, how teachers conduct themselves while off duty will necessarily require a requisite attentiveness to those evolving societal changes. It may not be linear or unidirectional, as some movements will see pendulum shifts in what is deemed acceptable and unacceptable. As a teacher, being intentional and reflective about how society may perceive you, both now and in the future, is prudent.

Chapter 10: Physical Touch in Schools

Two main risks generally arise regarding inappropriate touch: touch as physical force and touch as sexual

It was not until 2004 that the Supreme Court of Canada provided a clear decision, upholding that corporal punishment is not a legitimate form of discipline, can be used only within the context of corrective behaviour, and must be the last resort
When touch is neither forceful nor sexual, it exists in a grey area. Such instances may be difficult to navigate as there is not a simple prohibition. Maneuvering these moments is context dependent and requires astute professional judgment.

As a corrective measure to control behaviour or mitigate other risk

Section 43 of the Criminal Code of Canada (1985) does, however, allow for the use of force in particular circumstances.
- For example, section 43 cannot be relied on as a defence if the child is under the age of two or if the student is a teenager, as it is believed that neither age group would benefit from corrective force.”
- [or students with a disability etc.] “Alternatively put, if a person cannot understand why the force was corrective, it should not be used.”
- Most commonly, and most defensibly, the use of corrective force by teachers arises in two contexts: (a) to defend oneself or (b) to defend others

Pedagogical (helpful) touches that are used to support or improve a student’s technique or learning.

it is clear that if a teacher were to treat all students uniformly, one student’s perception of being touched may be positive and another’s may be negative depending on their cultural norms
“It is also vital that the teacher obtain consent prior to touching. It is not to anyone’s advantage to simply decide whether to “compromise rules to save our students or compromise the students to save our rules” (Andersson et al., 2018, p. 592).”

Nurturing/compassionate touches that provide reassurance.

The debate on the appropriateness of nurturing or affectionate touch in schools is quite vociferous
no-touch policies are gaining popularity, although they are more prominent in the United States than in Canada.
- Canada has not yet implemented any official no-touch policies, yet teachers maybe increasingly adopting a de facto no-touch policy out of fear of being reported
Given the continued debate on whether teaching is a profession, for some teachers, “caring and mothering were not consistent with being a professional teacher” (Hedlin et al.,2019, p. 487).” [authors disagree]
a counter movement has emerged that considers the negative effects that reduced-touch or no-touch policies may have on children’s “need for optimal security, growth and development””

Incidental or unintentional touches

“With the increased student populations and overcrowding in urban secondary schools, the most common places for incidental touches to occur are in hallways, cafeterias, or crowded classrooms

The Canadian legal system prefers that professional disciplinary bodies, rather than the courts, penalize individuals for unprofessional conduct. This preference is noted in Milstein v. College of Pharmacy (1978)
- “In fact, “courts tend to defer to the judgment of arbitrators or tribunals at first instance, provided that their findings are within a range of reasonable outcomes” (MacKenzie, 2016, p. 71).”
- therefore, “investigations or proceedings commenced by your school board or regulator should not be taken lightly, even though they are less formal than a hearing in court” (MacKenzie)”