Romy Friedman

It has been over a year since I wrote or posted anything on my blog. This was a combination of laziness, school work, job and volunteer responsibilities, being a new city, and even readjusting to Canada. It was around the same time that I started my Masters in Vancouver, that I began to read about a series of teen suicides due to bullying of students, who are either openly gay, suspected or otherwise. Recent events this year has brought this topic to light again in places like Buffalo, NY, and even to Canada’s capital, Ottawa. For this reason, I have decided to post the midterm essay I wrote for my EDST (Educational Leadership & Administration) 552 course: School Law.

Jubran v. School District No. 44 (North Vancouver) 2005; Homophobic bullying in a public school

Overview

Recent suicides by gay teenagers have once again brought the issue of homophobic bullying to the attention of the media and school boards. The case of Jubran v. School District No. 44 (North Vancouver) 2005 is a precedent-setting case for the issue of homophobic bullying ad raises difficult questions of interpretation of the Human Rights Code. On June 19^th 1996 Azmi Jubran, a grade ten secondary student at Handsworth Secondary School filed a complaint with the Human Rights Commission (HRC) against the school board alleging that he suffered discrimination and harassment on the basis on sexual orientation at the hands of his fellow students. The tribunal issued its decision on April 8, 2002 finding in favor of Mr. Jubran; the court held that the school board failed to fulfill its duty to provide Mr. Jubran with an educational environment free from discriminatory harassment.  The school board successfully appealed the decision to the Supreme Court of British Columbia (SCC) who overturned the decision on January 2, 2003 finding that because Mr. Jubran did not identify himself as homosexual, his compliant was outside the scope of the Human Rights Code.  The Supreme Court of Canada then heard the case on October 18, 2004 before Justices Ryan, Levine and Oppal.  In their judgment given on April 6, 2005 they overturned the Court of Appeal’s decision and restored the decision of the Human Rights Tribunal finding that whether he identified himself as homosexual, and whether his harassers knew or believed him to be homosexual, was irrelevant. Because the harassment was persistent and homophobic, and because it affected his participation in high school, Jubran’s complaint came within the human dignity and equality objectives in the Code. The school board was liable for student-to-student harassment and was required to pay Mr. Jubran $4500 damages as compensation for “injury to dignity, feelings and self-respect and also issued an order that the School Board cease its contravention of the Code and refrain from committing the same or similar contravention” (School District No. 44 v. Jubran, 2005 CanLII BCCA 201 (S.C.C.), [2005] at 23) This case has had widespread effects for school boards, the least of which is implementation of a proactive policy regarding bullying and discrimination.

Background

The harassment of Mr. Jubran started when he was 13 years old and in grade eight. He was called names such as “homo”, “faggot” and “gay” by some of his classmates. In grade nine, the name-calling, hitting, punching and spitting incidents continued. In woodworking class one student threw nails and wood and screws at Mr. Jubran and another student shouted, “Azmi is gay”. The harassment continued outside of school and in one incident pizza was delivered to Mr. Jubran’s home that he had not ordered.  The harassment continued in grade ten and one of the teachers heard a student loudly shout “faggot” or “gay”. In woodworking class Mr. Jubran hit another student in the face seriously injuring him because he heard the student call him gay. Ironically, due to this incident, Mr. Jubran was suspended for assaulting the student and also criminally charged. Over twelve incidents of harassment were reported during grade eleven, both inside and outside of school. In the final year of high school (grade twelve) five incidents of harassment were reported including an incident in gym class where a coin sized hole was burnt into Mr. Jubran’s shirt by a lighter without actually burning his body and a classmate urinating on his tent during a school camping trip.

Response of the Administration

The administration first became aware of the harassment of Mr. Jubran after the pizza incident in the Fall of 1994 when Mr. Jubran was in Grade nine. For the next three years until Mr. Jubran graduated the principal, vice-principal and other school staff were actively involved in investigating incidents of harassment. The administration met with Mr. Jubran’s parents and uncle on more than once occasion and encouraged Mr. Jubran to report all incidents of harassment to them. The incidents that were reported were investigated by the administration and when offending students were identified, the school took disciplinary measures. These included discussing with the offending students the inappropriateness of their behavior, warning students of escalating consequences including detentions, notification of parents or police, suspensions and possibly expulsions of they repeated their behavior. During the court case, evidence that one detention and two suspensions were imposed; there is an obvious lack of correlation between the number of incidents listed above and the number of punishments identified. Therefore, it is obvious that the actions undertaken by the administration were insufficient to deal with the scope of the concern as the bullying continued for the duration of Mr. Jubran’s time in school.

Implicit in Mr. Jubran’s decision to file his complaint with the HRC during his Grade ten year was the feelings that the administration had failed in their duty to stop the harassment, three years after the harassment has begun and one year after the administration had become aware of the situation. Mr. Jubran continued to face harassment for the remaining two years of high school as it took the HRT six years to issue its judgment. The supposition that Mr. Jubran was frustrated by the lack of action of the School Board is supported by the fact that in the original hearing, none of the students alleged to have been responsible for the bullying were named in Jubran’s complaint; it was brought against the board trustees only.

At no time did the School Board dispute the fact that “the harassment of Mr. Jubran was persistent, homophobic in nature and negatively affected his high school experience”. (School District No. 44 v. Jubran, 2005 CanLII BCCA 201 (S.C.C.), [2005] at 59) Their argument was based on the claim that this did not violate section 8 of the HRC in regards to discrimination.  It is interesting to note that after Mr. Jubran first brought his suit against the North Vancouver School Board, they began to implement various programs to deal with bullying and sexual harassment.

Ruling

At the level of the SCC, the subjective nature of discrimination found in the HRC section was examined in regards to perception and intent. The key issue in debate was whether the incidents were simply teenagers behaving poorly or if this constituted criminal behavior that violated the HRC in respect to discrimination. This issue was previously addressed by Justice McIntyre in Ontario Human Rights Commission and O’Malley v. Simpsons-Sears Ltd 1985 where intent or motive was rejected as irrelevant to the determination of discrimination under the legislature. Therefore it is the consequences or effect of the conduct that matters, not the intent of the perpetrators. Further reference was made to Robichaud v. Canada (Treasury Board) 1987 citing the responsibility of the school board to create a discrimination-free environment. In the ruling Justice Ryan cited a more recent case Quebec (Comission des droits de la personne et des droits de la jeunesse) v. Montreal (City) (2000) where this approach was affirmed. It is not necessary to examine the actual beliefs of the students or the actual sexual orientation of the person, but that s. 8 of the Code maybe be interpreted as including “perceived sexual orientation of that person”. This reasoning provided the basis for the SCC to uphold the order of the HRT.

Conclusion & Message being sent

The final outcome of this case indicates that the Supreme Court of Canada was strongly invested in ensuring that school boards adequately provide a safe environment for students, free from harassment and discrimination. It is not enough that school authorities deal with bulling and homophobic incidents as they arise, but they are expected to address these issues in a broader and more proactive way.

Consequences for School boards & Educators

As a result of this case the expectations of schools are very clear; incidents that occur outside of school are relevant when they impact a student’s ability to function or learn within the school and it is the responsibility of the school to ensure that their actions are sufficient to stop and prevent further harassment. School boards must have a clear, written harassment policy stressing the importance of a discrimination-free school environment. The policy should apply to all students and staff and should be consistently enforced. Secondly, the policy should be communicated to every student and staff member in a way that is meaningful to them. Staff and students need to know how to address student harassment properly, to create a school environment free of discrimination. Staff and school education is a key component to combating harassment at school.