Nova Scotia·Q&A

How much power do schools legally have to control students?

Some students at Citadel High School say school administrators tried to stop them from being a part of climate change protests. Law professor Wayne MacKay explains whether school officials have the power to stop students.

Citadel High students say their school threatened to penalize them for taking part in climate change protests

Citadel High student Ivan Andreou was told being publicly affiliated with a climate change protest could risk his role as the school's co-president. (Robert Short/CBC)

Students at Citadel High School in Halifax said school administrators recently tried to thwart their efforts to organize and participate in two climate change marches, but was the school right to do that?

One march was part of a global protest marked by students across 100 countries in March, while the other was a nationwide protest recognized by students across Canada in May.

Willa Fisher, a Grade 11 student, was the main organizer behind the Citadel High protests. She said her school took down her posters and threatened to suspend her if she put up more.

Another student at Citadel High, Ivan Andreou, was told being publicly affiliated with protesting could risk his role as student council co-president.

Wayne MacKay is a professor at Dalhousie University's Schulich School of Law and CBC's Information Morning legal columnist. He spoke with host Portia Clark on Thursday about how much power schools legally have to control students' actions.

Their conversation has been edited for clarity and length.

Are schools allowed to dictate what students do off school grounds?

To some extent, they are if the conduct off school grounds has an impact on the school. That was clarified by an addition to Nova Scotia's Education Act around the time of the Rehtaeh Parsons case.

Halifax students have been protesting in solidarity with schools across Canada and around the world, inspired by School Strike for Climate Change, a movement started by a Sweish 16-year-old. (Robert Short/CBC)

Remember, that was part of the argument made by schools back then, that whatever happened to Rehtaeh was off school grounds and not their jurisdiction. Now, it is pretty clear it is their jurisdiction if that conduct has an impact in the schools. You could probably say here there was an impact, in that they were skipping classes.

In that case, would there be legal grounds for the school to challenge the students' right to walk out of classes?

That gets us into charter territory, because students do have free-speech rights as part of our constitutional guarantees of freedom of speech and press. The school has the right to put reasonable limits on those rights — and that's the debate we usually have. What are reasonable limits? That's really what's playing out, in part, in the Citadel High case.

What would be the arguments and counter arguments on both sides about walkouts that seem to be happening infrequently, some Fridays?

That's the really important point. It's walking out of class, which is a school-related issue, but it's also a really important issue, climate change. One of the roles of schools is to try to promote good citizenship in students, and taking on climate change is really important. So, I think this is a tough issue.

Wayne MacKay, a professor of law, says schools can put reasonable limits on students' rights. (CBC)

There's a very interesting American case, Tinker v. Des Moines, where back in the 1960s, students came to class wearing black armbands to protest the Vietnam War. School officials suspended them because, they said, it was disrupting the school. They went all the way to the U.S. Supreme Court, which said no it wasn't disruptive, it was legitimate free speech.

Most of the students were just part of the student population. Some of them were part of student council. Does that make a difference?

It shouldn't, in the sense of their rights. They still have free speech rights.

Given that the issue here is one of taking on climate change, it's not as though they were going out and supporting the Ku Klux Klan movement or something terrible. Climate change is obviously an important and significant cause that hopefully schools would agree with.

How would the scenario change, or the consequences legally, if instead of a school and students, we were talking about an employer and employees, or maybe put teachers in the scenario?

In an employment relationship, there are more accepted understandings that your speech rights are limited. Probably true of a lot of public organizations, but some private organizations even more so because the charter doesn't even apply there. Because of the employment relationship, you should not do something that damages your employer and that can be part of the contractual arrangement. But students aren't in an employment relationship, they have to go to school.

So, teachers, would they be legally barred from supporting the students in some way, or walking out as well?

They could be, I suppose, on this particular issue. They might say that you're supporting students skipping classes. I mean, that's part of the tricky sort of undercurrent here. I would be surprised and disappointed if the schools really opposed taking on climate change. What they're probably opposed to is skipping classes.

What about putting up posters on school property? Is that a different issue?

It's a different issue. It's also a free-speech issue, or freedom to publicize your views. There clearly is authority in the schools to regulate that to some extent, because they don't want just any cause to be promoted, they may not want the walls damaged, so you can regulate it. To totally stop it would be a bit problematic and hard to justify as a reasonable limit, I think.

If kids come home and are asking their parents or guardian about this, what would you tell them in terms of advice about their legal standing taking part in protests?

This is really a free-speech issue. Doesn't mean you can do and say whatever you want, and it's important to reasonably follow the rules. But if you really feel it's important to go out and make a statement and take on climate change, then I'm all for it myself. But I think different parents would have different reactions.

And maybe don't do it every day.

Practical limits on rights are always important.

With files from CBC Information Morning

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