Making schools safe spaces: The legal authority for school boards to enact masking policies - Healthy Debate

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On April 19, the Thames Valley District School Board (TVDSB) passed a motionto require masking for all staff, students and visitors in TVDSB buildings. Motivated by a Public Health Ontario reportthat advised “temporary re-implementation of masking requirements indoors and improved air quality can reduce the risk of in-school transmission…,” the motion was primarily motivated by “staff absences, combined classes and school closures,” grounding it in concern for occupational health and safety.

Controversy quickly followed. The office of the TVDSB’s Director of Education sent a messageto parents noting that masks were still only recommended and that, contrary to the motion, would not be required. Officials claimed guidance from the Ministry of Education prohibited the boardfrom enacting such a mandate and that no enforcement mechanismswere available. A few days later, the Chair of the Board of Trustees sent another message to parents, this time indicating that masking was, in fact, required.

This is only the most recent confusion that has arisen regarding the authority for school boards to enact COVID-19 specific policies.

When Ontario’s government announcedit was going to lift the mask mandate imposed by the Reopening Ontario Act, positioning it as another step in the province’s plan to “cautiously and gradually ease public health measures,” many parents and educators expressed concern about its effect in schools. And rightly so. Mere days after the mandate was lifted on March 21, Peter Juni, the former head of Ontario’s COVID-19 Science Table, noted that Ontario was clearly in the sixth waveof the pandemic, driven in part by the government’s so-called cautious and gradual plan.

In response, only one school board, Hamilton-Wentworth (HWDSB) acted. On March 16, the HWDSB passed an extension on the masking mandate, much to the ire of Minister of Education, Stephen Lecce, who wrote to the HWDSB on March 18 that it was expected that the board would lift the mask mandate. Moreover, it was reportedthat the ministry claimed that the “‘board has no legal authority to mandate masks’ in the absence of a directive from their local public health unit.”

Other boards, like Toronto (TDSB), sought permission from the province but were denied. Despite this, Ottawa-Carleton’s board passed a motion April 12requiring masks, followed by the TVDSB.

Yet confusion persists. Are school boards permitted to enact mask mandates?

The answer is clear: yes. The Education Act clearly gives boards the authority to enact policies aimed at promoting student well-being. And, no, boards do not require permission from a local public health unit (although a local public unit could impose a mask order). Indeed, prior to the Reopening Ontario Act, boards across the province were considering or in the process of enacting masking policies. This is not to say that the Ministry of Education is unable to direct boards or enact a policy – it is just not clear that this has, in fact, occurred.

Instead, what appears to be happening is that the Ministry of Education is attempting to govern by fiat – in short, telling local, autonomous boards that they are not permitted to exercise their lawful authority because, well, we say so.

This is an affront to the rule of law and undermines the democratic principles our dominion is founded upon.

Consider, for example, Premier Doug Ford’s criticism that school board members “aren’t medical experts” – since when has Doug listened to medical experts? – and that boards were expected to follow the direction of Ontario’s Chief Medical Officer of Health (CMOH), Kieran Moore. Nowhere in the Education Act is the CMOH mentioned, and this power for CMOHs to direct schools does not exist under the Health Protection and Promotion Act (HPPA). Indeed, the HPPA vests authority in local Medical Officers of Health (MOHs), and only provides powers for CMOHs to intervene if they are “of the opinion that a situation exists anywhere in Ontario that constitutes or may constitute a risk to the health of any person” (s. 77.1(1)). Then, and only then, does the CMOH have authority to act to “prevent, eliminate or decrease the risk.”

Nowhere is there any authority that requires school boards to follow the CMOH.

At least not until the Reopening Ontario Act. Through this legislation, the province was granted new powers, including the ability to issue orders and require compliance with the CMOH. It was under this Act that the provincial masking mandate was implemented. And it is this mandate that the Ministry of Education is opaquely referring to when it says boards do not have authority to enforce a mandate.

On March 9, Deputy Minister Nancy Naylor sent a memorandumto Directors of Education outlining the plans for the lifting of health and safety measures in schools. Specifically, the memo indicated “the province is returning schools to a more normal learning environment,” and outlined plans on many fronts, including, “In alignment with community masking requirements, masks will no longer be required for students, staff and visitors in schools, school board offices and on student transportation.” On March 11, Lecce stated, “School boards in this province are expected to implement this cautious plan.”

School boards were told they were expected to follow the plan to lift/ease the health and safety measures enacted under the Reopening Ontario Act, and that plan was followed.

However, it is an entirely different argument to say that boards cannot enact their own policies, including masking policies, or that they are required to follow the CMOH’s direction.

Section 169.1(1) of the Education Act imposes an obligation on boards, beginning with “Every board shall” – indicating there is a legal requirement. Among the many things a board shall do is “promote student achievement and well-being.”

The Act states the “purpose of education is to provide students with the opportunity to realize their potential and develop into highly skilled, knowledgeable, caring citizens who contribute to society.” It further notes that all involved in the education sector “have a role to play in enhancing achievement and well-being.” It is clear the Education Act contemplates education as going beyond scholastics, recognizing that “(a) strong public education system is the foundation of a prosperous, caring and civil society.” As the purpose of education is more than just ensuring scholastic excellence, it suggests a more holistic understanding of both “achievement” and “well-being.” Well-being is defined as “the state of being comfortable, healthy or happy.” Boards are thus charged with, among other things, promoting student health.

The Act specifies that board members shall carry out their responsibilities in “a manner than assists the board in fulfilling its duties under this Act” – which would include the duty of the board to “promote student achievement and well-being” – and specifically indicates that a member of a board shall “maintain focus on student achievement and well-being.”

Thus, it is not only permissible that a board enact policies to promote the health of its students, it has a legal duty to do so. This does not mean that a board must enact a masking policy; it suggests instead that a board has the authority to enact policies related to student well-being. Once the policies/approaches have been decided, a board member shall “entrust the day-to-day management of the board to its staff through the board’s director of education.” This is where the controversy in the TVDSB arose: the director of education reinterpreted the board’s decision, rather than implementing it, contrary not only to his duties under the Education Act but also in violation of the TVDSB bylaws.

And there are other provisions under the Education Act that could be used to help enforce a mask mandate.

According to the Act,it is the duty of a principal to “maintain proper order and discipline in the school.” Indeed, the Act grants powers to principals to “direct a person to leave the school premises if the principal believes that the person is prohibited by regulation or under a board policy from being there.”

Principals are also specifically charged with protecting the health of students. It is the duty of a principal “to give assiduous attention to thehealthand comfort of the students …” (emphasis added). Importantly, given that COVID-19 is an airborne virus, this assiduous attention is to be given to, among other things, ventilation. Assiduous means that principals must give great care and perseverance to the comfort and health of students.

Moreover, principals have a duty “to refuse to admit to the school or classroom a person whose presence in the school or classroom would in the principal’s judgment be detrimental to the physical or mental well-being of the pupils.” While this grants discretion to principals, it is difficult to imagine that the presence of a communicable disease, one with potential long-term consequences, is not detrimental to the physical health of pupils. Certainly, the countless parents that have emailed principals and school boards vocalizing their concerns about COVID-19 transmission indicate there are genuine safety concerns at play.

Indeed, the Act also imposes a duty on principals to “report promptly to the board and to the medical officer of health when the principal has reason to suspect the existence of any communicable disease in the school.” Under this provision, I would imagine that principals are calling their respective medical officers of health daily; if they are not, they are in breach of this duty. Further, principals have the authority to “refuse admission to the school of any person who the principal believes is infected with or exposed to a communicable disease requiring an order under section 22 of the (HPPA) …” One could argue that ifanysection 22 order has been issued under the HPPA, this order elevates the disease, in this case COVID-19, to a status that warrants special consideration.

The obligations imposed by the Act make it clear that the duty of a principal is to ensure the physical well-being of students and to protect them from anything detrimental to their health, with a particular focus on communicable diseases.

There have been some that have suggested, wrongly, that a board policy requiring masks may deny the right of a child to education. Requiring compliance with a lawfully enacted policy does not, de facto, deny a right to education if a child refuses to comply with that policy. It is no more denying a child the right to education if the child is prohibited from entering a school for not wearing a mask than prohibiting a child from entering the school for not following other board policies. Moreover, the failure to provide a safe and inclusive space for all by not implementing masking policies effectively denies children unable to attend school due to safety concerns the same right. The board has a duty to ensure a positive school climate inclusive of all pupils, including those with a disability – how is a school inclusive of those with disabilities if they are unable to attend without, literally, risking contracting a virus that may prove deadly?

So why would the Ministry of Education suggest that boards cannot impose mask mandates?

This appears to be government overreach. The Ontario government has done something similar with MOHs, indicating that they must follow the lead of the CMOH, even though no such requirement exists in law.

To be sure, the ministry could direct school boards – and there are several avenues for this. For one, the Education Act allows regulations to be made “prescribing, respecting and governing the duties of the board.” However, there is a specific process that must be followed, including consultations and notice to the public. The duties of the board cannot be changed over phone calls or through memos.

The minister and ministry also have powers to issue policy directives. The ministry sets out direction and expectations of boards through Policy/Program Memoranda, a complete list of which can be found here. Note the absence of COVID-19 instructions.

The compliance that Lecce demands, that schools remove the masking mandates imposed under the Reopening Ontario Act, has occurred. When the province decided to remove the mask mandate in Ontario on March 21, school boards could no longer rely on the masking mandate under the Reopening Ontario Act.

That, however, does not in any way nullify their duties and powers under the Education Act.

I believe in public education and public health. It is not the aim of my advocacy to cause harm to those institutions that are intended to provide protection. Schools are supposed to be safe; public health is supposed to protect the community.

However, should school boards forgo their duty to protect the well-being of students and to ensure student safety, should principals not ensure that assiduous attention is given to the health of students, the next step that may be needed is to initiate legal actions to hold these boards to account.

For the time being, the appeal is for boards, vested with statutory authority, to fulfill the duties imposed on them, and to comply not with the opaque and ungrounded directives from a government that rules by fiat.

In so doing, boards will not only protect students, but will remind Ontarians of the importance of local autonomy and of upholding the rule of law at a time when our democratic institutions are under threat.