Posts Tagged ‘natural person powers’

Bill #2 (Alberta) – the 2012 Education Act: Part Two

February 15, 2012

The new Education Act suffers in comparison to all the announcements of its coming.  Ministers and M.L.A.s talked about a “new paradigm”, framing the conditions for a system that would anticipate the future and nurse it to reality.

The new Act simply doesn’t deliver.  Ordinarily, Albertans could overlook the hype and be glad to see an important piece of legislation “cleaned up”, “sharpened”… — choose your adjective for modest incremental improvement.

The problem is that the Government of Alberta itself – and insistently — raised the subject of the 21st century being radically different from the 20th.  The Government of Alberta, through the Inspiring Education process, encouraged Albertans to think about education in new ways, and repeatedly assured us that startling insights could be harnessed.  The new Act, we were told, could assuredly be – would be — quite different from the familiar School Act.

It is a mixed blessing that Albertans bought the government’s line.  Albertans were persuaded to see that we can’t continue educating as we have done in the past.  They were persuaded to imagine a variety of new, positive, and possible educational outcomes, as well as a variety of new ways of organizing to provide education.  They were persuaded to believe that Alberta could be “first into the future”.

The new Education Act suggests that we are going to be “last out of the past”.

Having been awakened, by the government and others, to the virtual certainty of great change, Albertans are now frustrated by the government’s lack of imagination and lack of courage.

Have you read Sir Kenneth Robinson’s latest book on what is coming to education? (Out of Our Minds:  Learning to be Creative)

Are you familiar with what is happening in Finland?  (Pasi Sahlberg – Finnish Lessons: What Can the World Learn from Educational Change in Finland?

Have you watched Sebastian Thurn, on Youtube (http://www.youtube.com/watch?v=SkneoNrfadk&feature=player_embedded)?

There are three quick and effective measures of innovation in any piece of legislation.

First, does the legislation contain new words or phrases that are important enough to be defined for the purposes of the legislation.  The proposed Education Act has two such words or phrases:  “bullying”, and “non-school building” are not defined in the current School Act.  Their context in the Act makes clear that they simply acknowledge longstanding practice:  they are no springboard to the future of education.

Second, does the legislation have Parts and Divisions that suggest a new way of looking at the subject?  The new Education Act has 2 new Parts (Opportunities for Learning; Responsibilities and Dispute Resolution), yet the sections contained within the Parts are lifted almost entirely from the existing School Act.  Aside from legislating Bullying Awareness Week, and creating a Student Advisory Council, and implementing a Complex Education Needs Tribunal there is nothing new.  Bullying Awareness Week can be celebrated without a legislative mandate, the previous Minister created a Student Advisory Council without the need of legislation, the Complex Education Needs Tribunal is an incremental improvement on a system already in  place.

What is really interesting about Part 3, Division 1 (Responsibilities and Disputes Resolution:  Responsibilities) is that the responsibilities of students, parents, boards, and trustees are specified (basically, these are consolidations of what is found in the current Act).  The one critical actor left without specified responsibilities is the provincial government, notwithstanding the fact that for three years, throughout the Inspiring Education process, the government insisted that its role was “assurance”.  The bullied might be more comforted if the government accepted responsibility for assuring freedom from bullying, perhaps by assuring that gay-straight clubs could operate in any publicly funded school in the province.  Parents might be more comforted if the government accepted responsibility for assuring access to secular public education, on a timely basis, and in schools that are safe, healthful, and well-maintained.  The parents of special needs students might be more comforted if the government accepted responsibility to assure funding for high cost special programs.

As a reader digs into the proposed new Education Act, are there any hidden gems?

Section 51(1) extends natural person powers to school boards.  That is hardly an innovation, since municipal government has had the same benefit for more than 15 years.  Nevertheless school boards have been lobbying for this:  they should be grateful, shouldn’t they?

The problem is, the innovation is put forward in section 51(1) and rudely snatched away in section 51(2)  “With respect to any right, power, or privilege exercisable by a board, the Minister may , by regulation, (a) prohibit or restrict the use of the right, power, or privilege; (b) provide that the right, power or privilege is to be exercised subject to any terms or conditions prescribed in the regulations.”

The Minister, without reference to the Legislative Assembly, can compromise the natural person powers of a school board, at any time, and in any way, and without any need to justify the compromise.  Tomorrow, he could make it illegal for them to be doing something that is might be legal for them to do today.

The corresponding section in the Municipal Government Act says this:  “6.  A municipality has natural person powers, except to the extent that they are limited by this or any other enactment.”

The corresponding section of the Business Corporations Act says this: 16(1)  A corporation has the capacity and, subject to this Act, the rights, powers and privileges of a natural person.

The introduction, in the new Education Act, of “natural person powers” for school boards is nothing but cynicism writ large.  If the provincial government treated corporations the same way, the reaction would be immediate, immense, and unbearable for the provincial government.

The provincial government is not easily going to loosen its grip on school boards.

Yet, in the face of uncertainty, when the future cannot be known with confidence, experience and the natural sciences all confirm that the most intelligent way to confront the future is with diversity.  As Willis Harmon once noted — in uncertain times, the best thing to do is decentralize (decision-making), disperse (resources), and diversify (responses).  One only wants a highly centralized system when one is convinced that the central authority will be 100% correct, 100% of the time, about 100% of the issues.  To put it another way, said Harmon, we don’t engineer survivability, in nature or in build systems, by making key components bigger.  We introduce redundancy.  Nature has not improved our eyesight by working on one better eye in the middle of our forehead:  she has given us two eyes.  NASA doesn’t improve the shuttle by concentrating on one computer:  they connect redundant computers.

The proposed new Education Act should be rejected in principle.  It embodies two principles, both of which are wrong.  In principle it is mediocre, and we should expect better from our provincial government, especially when they themselves set a higher bar, especially when public conversation and evidence from other jurisdictions makes clear that we can do better.  In principle, it faces us squarely into the past, rather than into the future.  It is wrong that we should stifle our imagination and use our considerable resources to be the last out of the past, when we need to be – and can be – the first into the future.

Natural Person Powers for Charter Schools and Private Schools, but not for Public and Separate School Boards

October 24, 2010

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.