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Compassion over compliance: From retributive to restorative justice | Marvin Zuker

Wednesday, October 14, 2020 @ 3:31 PM | By Marvin Zuker

Marvin Zuker %>
Marvin Zuker
A news release from the office of the premier of Ontario, dated July 9 and titled “Ontario Taking Bold Action to Address Racism and Inequity in Schools,” states in part:

Through Bill 197 … the government is proposing to eliminate discretionary suspensions for students from kindergarten up to Grade 3, beginning September 2020. Serious offences will still be subject to mandatory suspensions … . [F]rom 2018-19 … over 65,000 elementary students in Ontario were suspended…

“Every student — irrespective of the colour of their skin, faith, heritage, and orientation — deserves every opportunity to succeed in the classroom,” said Minister [Stephen] Lecce “…To racialized students in Ontario; we see you, and we value you. We will stand with all students on this journey to advance respect, dignity, and opportunity.”

The Ministry of Education has also proposed additional anti-racism and anti-discrimination training before the end of the calendar year … . All school boards in Ontario will be required to collect race-based data by January 1, 2023.

Ontario Regulation 440/20 removed the discretion of a principal to suspend pupils in junior kindergarten to Grade 3 for activities listed in s. 306(1) of the Education Act. Subsection 310(1) remains subject to mandatory suspensions.

It should be noted that there is no mention by the Ministry of Education to the existing police/school board protocol. How is the protocol affected by this regulation, if at all? The present Ontario Ministry of Education document “Suspension and Expulsions: What Parents and Students Need to Know” states in part:

If a student in junior kindergarten to Grade 3 has engaged in any of the activities listed above, the principal must consider what positive behaviour supports could be provided to the student. There are a number of interventions that can be utilized. For example: … using restorative practices to repair harm to people/relationships (with parental permission) … .

The Ontario Student Record (OSR) Guideline, 2000 (revised 2020) states in part:

When a documentation file is required, it will be kept in the OSR folder. A documentation file will be established when the following information is required:...a Violent Incident Form (see Appendix J)…See the ministry’s publication Violence-Free Schools Policy, 1994….

It should be noted for accuracy’s sake that Policy/Program Memorandum No. 120 dated May 16, 2011 revoked Violence-Free Schools Policy, 1994.

It should also be noted for accuracy’s sake that reference to s. 4.5.3 of the present guideline refers to provisions under the Child and Family Services Act (CFSA). The CFSA was repealed on April 30, 2018 and replaced by the Child, Youth, and Family Services Act.

Prior to COVID-19 closing schools and changing our way of life, our schools had been failing many of our children. The disproportionate suspension and expulsion of Black students was the norm. Teachers had low expectations of these students. There were schools in Ontario with more police officers than counsellors. Think about that.

There was and of course still is a scarcity of educators of colour, something I have seen throughout my 39 years at the Ontario Institute for Studies in Education at the University of Toronto. Our schools must become spaces of justice with high expectations for all and for creativity. As writer James Baldwin said, “Not everything that is faced can be changed, but nothing can be changed until it is faced.”

Our students need our support, not punishment. Systems of trauma must not be misinterpreted and turned into punitive measures. Research has shown that discipline not only is ineffective in achieving intended goals but also has exacerbated intergenerational trauma and economic disparities faced by Black families and communities. Race remains the persistent driver of discipline disproportionality.

It is time to suspend all exclusionary school discipline in all schools and in all grades (not just up to grade three), obviously with some exceptions.

We cannot fix the scourge of racism if we negate its complete existence. We must be committed to creating a culture that reinforces the values of diversity, equity and inclusion. We must shape our terribly lacking education curriculum into what our schools need the most. Lip service is not good enough.

The time is now to update and completely revise our discipline policies to reflect the COVID-19 era. Educators now work with students in two separate learning environments: at home and in school buildings.

Should we continue to suspend students whether they are taking classes in person or remotely? Should students be removed from their virtual or in-person classrooms? If a student speaks out during a Zoom lesson, should they be barred from returning to class the next day? What about the student who spits on the ground at his/her school? Should we ban them because of the health risk?

We must not take away access to an education as a punishment. Suspensions means fewer classes for the student, which means they are less likely to pass, which means they are more likely to drop out and not graduate.

Exclusionary discipline has been defined as any disciplinary practice that removes a student from school and as a result the student is often placed on a path to the school-to-prison pipeline. (See Leah A. Hill, “Disrupting the Trajectory: Representing Disabled African American Boys in a System Designed to Send Them to Prison,” Fordham Urban Law Journal, vol. 45, 201, 203 (2017).

In her book Troublemakers: Lessons in Freedom from Young Children at School, Carla Shalaby describes marginalized children as “the caged canaries, children who are more sensitive than their peers to the toxic environment of the classroom that limits their freedom, clips their wings, and mutes their voices.” And remote learning does not provide any solace for them. Remote learning should be encouraging freedom to speak, not control.

Restorative justice

The punitive response to racist behaviour, although arguably commonplace, may well not be the answer. Rooting out the bad apple accomplishes little, if anything.

Restorative justice is about repairing the harm caused by the crime. This can be too much work for everyone involved, but that’s too bad. It is about collaboration between the victim (long forgotten) and the perpetrator. It is about a transformative result. We need solutions that will make everyone uncomfortable but will also result in value and respect for everyone.

Restorative justice focuses on who has been harmed, what their needs are and how the person who harmed them can meet those needs. The student, with the support of their parent(s), will understand the harm they have caused and take responsibility for what they have done. An apology, community service or perhaps restitution can go a long way.

I, the student, now have a voice. I have the opportunity to make a direct impact statement to the perpetrator. I can have closure and most of all I can now, finally, feel empowered.

For schools to always rely on expulsion as the default and stigmatizing sanction is unacceptable.

Data drives policy change. Data disrupts complacency.

Waiting until 2023, as the Ministry of Education proposes, to get the data we need is unacceptable and wrong.

Marvin Zuker was a judge of the Ontario Court of Justice, where he presided over the small claims, family and criminal courts from 1978 until his retirement in 2016. He is associate professor at Ontario Institute for Studies in Education/University of Toronto, where he teaches education law. Zuker is the author and co-author of many books and publications, including The Law is Not for Women and The Law is (Not) for Kids.

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