School boards don’t have natural person powers and they want them. What’s the issue?
One of the main connections between citizens and the important elements of democracy is the idea of “natural person powers” – the idea that an individual can do anything except that which the law prohibits her/him from doing. For example, we can leave home whenever we want, because no law has been adopted limiting our freedom of action in this regard.
The alternative is to frame the law so that no one can do anything except that which the law has already recognized and approved. In such a legal framework, we would not be able to leave home until a law is passed authorizing us to do so.
Law based on natural person powers seems to be such a reasonable – even powerful — proposition that, over time, we have extended natural person powers to almost all artificial creations. In Alberta, corporations, unions, churches, universities, municipalities, not-for-profit organizations, and others all have natural person powers. Alberta was the first jurisdiction in Canada to grant natural person powers to municipalities. They can do anything except that which the law prohibits them from doing.
The concept has many advantages, especially in times of tumultuous change, like the present time. Imagine a rapidly changing situation in which a positive innovative response cannot be acted on until the Legislature has recognized it, approved it, and amended laws to allow it.
In Alberta, the only organized entities without natural person powers are public and separate school boards. The boards of charter and private schools do have natural person powers, because they are organized as registered societies or not-for-profit business corporations.
The result of this is that, on the one hand, we ask school boards to be more innovative, more quickly adaptive and, on the other hand, we tell them that they can’t act on their innovations until Alberta Education has agreed and the Legislative Assembly has amended legislation to make it possible.
We might ask the question, why has the Government of Alberta given municipal governments natural person powers, but not public and separate school boards?
Apologists for the government will say that, in fact, school boards often do things that are not pre-approved in the law. By extension, the apologists say, the concept of natural person powers is irrelevant to good government.
I believe it is true that boards regularly disregard the limits of the law. They innovate and they do what needs to be done, even if they have no statutory permission to do so. This does not justify continued withholding of natural person powers, because the status quo creates at least three serious problems.
First, boards and local administrators and provincial public servants are not respecting and honouring the law: they are disregarding the law. This does not create a good climate for strong democracy. Even when boards and administrators disregard the law with pure motives and to good effect, they do it under a veil of deception that undermines respect for the law.
Second, as boards and administrators (both local and provincial) fall into the trap of believing that the law can be disregarded for their own good reasons, they may subsequently disregard it on occasions for which disregard is completely unacceptable. (Their own good reasons are not recognized as good reasons by the community as a whole.)
Third, disregarding the law puts people at risk of low level pressure and coercion, from people who know that they have disregarded the law. This is never good for the education system.
The new education legislation is apparently not going to grant natural person powers to public and separate school boards. Why are these school boards the only entities in Alberta that do not have natural person powers? What is the advantage of continuing a framework that encourages disregard for the law? What is the disadvantage of granting natural person powers to school boards, so that they are in the same situation as their municipal cousins and the boards of private and charter schools?
The citizens of Alberta should be part of the conversation about this issue.