Origin of School Zoning and Historical Nexus of Open Enrollment in Ontario
Origin of School Zoning and Historical Nexus of Open Enrollment in Ontario Public Education
Summary / TLDR
- Origin of school zoning in Ontario public education was closely related to local property education taxes.
- Open enrollment has been generally and generously permitted and supported in Ontario public education with strong historical nexus, regardless of school zoning.
- An Ontario (prospective) secondary student' right to provincially open enrollment is protected in the Education Act.
Disclaimer
This post is to provide the information, and the citations might not be properly given. All the credits are attributed to the original sources. It is written to the best of the contributors' knowledge and memory, which might not be fully accurate.
Note
- This is one of a series of accompanying explanatory posts for the FREEDOM Declaration of Ontario and the FREEDOM of Ontario's Heads-up Message to Ontario Citizens and Residents, as listed in the latter's Appendix.
- This post was originally published on May 21, 2022, and last updated on November 10, 2022.
Origin of school zoning in Ontario public education
School zoning is the act or process of partitioning a city or town into school zones, also known as school attendance areas, school sections, school districts, or school catchments in various contexts. —
Per Li, 2015:
In 1807 the Public Schools Act was passed at the provincial legislature, establishing eight public schools in the province (Ross, 1896). …
In 1816, the Common Schools Act was passed, dividing the province into eight districts each with a board of education, … No provision was made for levying rates upon property for the maintenance of the school. All sums required over and above the government grant had to be raised by voluntary contributions. …
… The 1841 Union Act, of which the Education Act was a part, … The Education Act provided more grant for education, but municipal councils were empowered to raise money by assessment for school purposes to match the government amount … The legislature declared that locally elected school trustees were authorized to tax the inhabitants for the maintenance of schools …
… Egerton Ryerson became the superintendent of education in 1844 … Ryerson aimed at establishing a free, universal, and compulsory education system for all Ontario children …
In 1846 a new Education Act was passed. … The Act was amended in 1850, giving permission to any school section to determine whether the school should be maintained by a monthly fee from the pupils in addition to a tax upon the ratable property of the section …
Per Robson, K. L., 2019:
… In 1846, Ryerson drafted a bill that became the Common School Act … It also levied a rate bill or a school tax on the parents of all children of school age. …
…
In 1850, Ryerson passed a second Common School Act, which allowed school tax to be levied on all property. …
The above citations show that the origin of school zoning was closely related to funding to schools in the early time of Ontario public schools: In each school section, residents were levied (education) taxes to support the local school. Tax rates varied across different school sections.
Later, the power to levy the property education taxes was historically given to school boards.
While the provincial government funding (called the "Legislative Grant" in the early time) was available, the local education taxes levied from properties played key roles in funding schools. "In 1997 local support to education was greater than that from the province (Gidney, 1999)." (Robson, K. L., 2019)
Ontario school boards' exclusive power to levy local education taxes permanently ended when the centralized funding model was introduced to the whole province by the Education Quality Improvement Act of 1997, which has been incorporated into the current Ontario Education Act.
Historical nexus of open enrollment in Ontario public education
Even though there has existed school zoning in Ontario public elementary and secondary education, open enrollment, via which a student is allowed to attend a public school or educational program, regardless of attendance areas, has a nearly same long history.
"More accessible" provision
The first type of open enrollment, a limited one, is conferred by the "more accessible" provision.
The Ontario Public Schools Act, 1891, Subsection 172 (1), reads:
NON-RESIDENT PUPILS.
172. (1). The trustees of every Public School shall admit to their school any non-resident pupils who reside nearer such school than the school in their own section, providing always the inspector reports the accommodation of the school room sufficient for the admission of such pupils. In case of dispute as to the distance from the school, the decision of the inspector shall be final.
This provision has continued into the current Ontario Education Act, specifically, as of May 18, 2022, Section 35 Resident pupil’s right to attend more accessible elementary school and Section 39 Resident pupil’s right to attend secondary school in another district or zone, respectively for elementary school and for secondary school. The binding case law by the Ontario Court of Appeal Re Bareham et al. and Board of Education for the City of London et al., 1984 CanLII 2171 (ON CA) has affirmed this right to a "more accessible" school.
General open enrollment
In Ontario there has been a tradition where more general open enrollment (sometimes including the "more accessible" provision) is allowed in various versions of the School Act and Education Act.
Upper Canada (former Ontario)'s Consolidated Common School Act, and School Law Amendment Act of 1860, Section 126 reads:
A Resident in one Section sending his Children to another Section.
126. Any person residing in one school section, and sending a child or children to the school of a neighbouring school section, shall nevertheless be liable for the payment of all rates assessed for the school purposes of the section in which he resides, as if he sent his child or children to the school of such section; and such child or children shall not be returned as attending any other than the school of the section in which the parents or guardians of such child or children reside; … (Emphasis added)
The Roman Catholic Separate School Act of 1863, Section XII reads:
Roman Catholic Children admitted from other School Sections.
XII. The Trustees of Separate Schools may allow children from other School Sections, whose parents or lawful guardians are Roman Catholics, to be received into any Separate School under their management, at the request of such parents or guardians; … (Emphasis added)
The High Schools Act, 1891, Subsection 38 (7) reads:
(7). County pupils whose examination has been confirmed by the Minister of Education shall have the right to attend any High School aided by the council of the county in which their parents or guardians reside. Resident pupils shall have the right to attend the High School of the district in which their parents or guardians reside. Non-resident pupils may attend any High School at the discretion of the trustees of such school. (Emphasis added)
The Continuation Schools Act of 1950, Subsections 6 (2) reads (emphasis added):
(2) Where,
(a) a resident pupil of a continuation school district in a county attends a continuation or high school in his own county but outside of his school district or a continuation or high school which has been declared open to such pupils in an adjoining county or in a city or separated town in his own or an adjoining county; or
(b) a resident pupil of a continuation school district in a territorial district attends a continuation or high school in Ontario but outside of his school district,
because the continuation or high school is more accessible to the pupil than any continuation school in his own school district or provides a course of study not offered in his own school district, the board of the continuation school district of which he is a resident pupil shall pay fees to the board of the continuation or high school district whose school he attends, calculated in accordance with section 42 of The High Schools Act, except that legislative grants shall not be deducted as provided in clause c of subsection 1 thereof.
This open enrollment was affirmed by the legal case The Board of Trustees of the Continuation School of the Police Village of Dubin v. The Seaforth District High School Board, 1952 CanLII 67 (ON SC).
Open enrollment was further expanded with (much) less restriction in the Secondary Schools and Boards of Education Act of 1970, as shown in its Subsections 62 (2) (a) through (g) (emphasis added):
Right of resident pupils to attend school
62.—(1) A resident pupil of a secondary school district has the right to attend a secondary school in his secondary school district. 1964, c. 106, s. 15, part.
Resident pupils
(2) Subject to subsections 3, 4 and 6, a resident pupil of a Resident secondary school district has the right to attend any secondary school,
(a) that is more accessible to the pupil than any secondary school in his own secondary school district;
(b) to take either the four-year or two-year program of the business and commerce branch or of the science, technology and trades branch, or the occupational program, if the program is not available in the secondary school district in which he is resident;
(c) to take a course of study in either the four-year program of the business and commerce branch or the four-year program of the science, technology and trades branch leading to a type of secondary school graduation diploma that is not available in the secondary school district in which he is resident;
(d) to take a special one-year course in business, commercial work, technical subjects, home economics or vocational art, leading to a secondary school graduation diploma in the special field, if the course is not available in the secondary school district in which he is resident;
(e) to take a grade 13 subject or subjects not available in his own secondary school district, but required by the pupil for admission to any university or teacher-training course or for entry into any trade, profession or calling;
(f) to take a course of study that includes the subject of French for French-speaking pupils in grade 9, 10, 11, 12 or 13 not available in his own secondary school district, but required by the pupil for admission to any university or teacher-training course or for entry into any trade, profession or calling; or
(g) to take a subject or course in a French-language school or class if the subject or course is not available in the French language in the secondary school district in which he is resident. 1964, c. 106, s. 15, part; 1967, c. 91, s. 13 (1-4); 1968, c. 122, s. 4 (1).
Restrictions
(3) Subsection 2 applies to a resident pupil of a secondary school district in a county only if,
(a) the school has been declared open to such a pupil; and
(b) the supervisory officer of the school certifies that there is adequate accommodation for the pupil in the school. 1967, c. 91, s. 13 (5).
Idem
(4) Subsection 2 applies to a resident pupil of a secondary school district in a territorial district only if the supervisory officer of the school certifies that there is adequate accommodation for the pupil in the school.
…
Where agreement between boards
(6) Clauses b, c, d, e, f and g of subsection 2 do not apply to a resident pupil of a secondary school district if the board of the secondary school district has entered into an agreement with another secondary school board under subsection 2 of section 6 or under section 60 and the courses and subjects referred to in such clauses are offered in the schools covered by the agreement. 1967, c. 91, s. 13 (6); 1968, c. 122, s. 4 (2).
This is to show, as of 1970, open enrollment in Ontario secondary education was subject to, majorly, one condition — the program, or the course of study, etc., was not available in a student's home school (district). Subsections (3) and (4) indicate the open enrollment provision in (2) applied province-wide, subject to restrictions in (3) and (4) (Note: Subsections (3) and (4) did not apply to an area that was neither a county nor a territorial district, which means, the "accommodation" restriction did not explicitly apply to such an area).
With expansion from limited types of programs to any subject(s) (not available in the home school district), the open enrollment provision continued in the Education Act of 1974, as shown in its Section 38 (emphasis added), and Section 39 was added for clarity regarding a cross-boundary admission process:
Resident pupil
38.—(1) Subject to subsections 2 and 3, a resident pupil of a secondary school district has the right to attend any secondary school,
(a) that is more accessible to the pupil than any secondary school in the secondary school district of which he is a resident pupil;
(b) to take, for the purpose of obtaining the secondary school honour graduation diploma, a subject or subjects not available in the secondary school district of which he is a resident pupil but required by the pupil for admission to any university or teacher-training course or for entry into any trade, profession or calling;
(c) to take a program of study that includes the subject of French for French-speaking pupils in the intermediate or senior division and that is not available in the secondary school district of which he is a resident pupil, where such program of study is required by the pupil for admission to any university or teacher-training course or for entry into any trade, profession or calling; or
(d) to take a program in a French-language school or class if a French-language school or class is not provided by the board of the secondary school district of which he is a resident pupil. R.S.O. 1970, c. 425, s. 62 (2); 1972, c. 75, s. 16 (1).
Restrictions
(2) Subsection 1 applies to a resident pupil of a secondary school district only if the appropriate supervisory officer certifies that there is adequate accommodation for the pupil in the school. R.S.O. 1970, c. 425, s. 62 (4).
Where agreement between boards
(3) Clauses b, c and d of subsection 1 do not apply to a resident pupil of a secondary school district if the board of the boards secondary school district has entered into an agreement with another secondary school board under section 160 and the programs and subjects referred to in such clauses are offered in the schools covered by the agreement. R.S.O. 1970, c. 425, s. 62 (6); 1972, c. 75, s. 16 (2).
Admission of resident pupil from other district
39.—(1) A person who is qualified to be a resident pupil of a secondary school district and who applies for admission to a secondary school situated in another secondary school district shall furnish the principal of the school to which admission is sought with a statement signed by his parent or guardian or by the pupil where the pupil is an adult, stating,
(a) the name of the secondary school district in respect of which he is qualified to be a resident pupil;
(b) whether or not the pupil or his parent or guardian is assessed in the secondary school district in which the school is situated, and if so assessed the amount of such assessment; and
(c) the authority, under this Act, under which the pupil claims to have a right to attend the school. R.S.O. 1970, c. 425, s. 65 (1); 1972, c. 75, s. 18, amended.
Notice of admission
(2) The principal of the school shall forward the statement to the chief executive officer of the board that operates the school and, if the pupil is admitted, the chief executive officer of the board shall forthwith notify the chief executive officer of the board of the secondary school district of which the pupil is qualified to be a resident pupil of the fact of the admission and of the information included in the statement. R.S.O. 1970, c. 425, s. 65 (2), amended.
Compared to Section 62 in the Secondary Schools and Boards of Education Act , 1970, there were two notable changes in Section 38 in the Education Act, 1974:
- The restriction of "the school has been declared open to such a pupil" for a county was removed, which means any secondary school was always "open to such a pupil."
- As there was no longer difference between restrictions for counties and territorial districts (the same restrictions of "adequate accommodation"), "in a county" and "in a territorial district" were deleted.
As a result, the two separate subsections 62 (3) and 62 (4) in the Secondary Schools and Boards of Education Act , 1970, were merged into one subsection 38 (2) in the Education Act, 1974. Out of the merger, the "accommodation" restrictions explicitly applied to all areas, and this open enrollment provision in Section 38 in the Education Act, 1974, remained applicable province-wide.
Section 38 in the Education Act, 1974 continued as Section 40 in the Education Act, 1980, and with slight revision as Section 41 in the Education Act, 1990, which was further revised by the Education Quality Improvement Act, 1997 (the "EQIA"), as shown below.
Section 39 in the Education Act, 1974, continued as Section 41 in the Education Act, 1980, and has continued with trivial revision into the present Ontario Education Act, as of May 18, 2022, as Section 40 Admission to secondary school of resident pupil from other district or zone. It is important to emphasize that this provision "places the legal responsibility for decision" on the school that receives an application for a cross-boundary enrollment, not "dependent on any action or decision [of the home school]," as shown in the above-mentioned binding case law by the Ontario Court of Appeal Re Bareham et al. and Board of Education for the City of London et al., 1984 CanLII 2171 (ON CA), regarding Section 41 in the Education Act, 1980: "… s. 41 places the legal responsibility for decision on the London Board and that the decision, as a matter of law, cannot be made dependent on any action or decision of the Middlesex Board."
Ontario secondary students' legal rights to open enrollment
The EQIA revised Section 41 in the Education Act, 1990 into Section 39 in the current Education Act as of November 5, 2022:
Resident pupil’s right to attend secondary school in another district or zone
39 (1) Subject to subsections (2) to (4), a person who is qualified to be a resident pupil at a secondary school in a secondary school district or a separate school zone has the right to attend any secondary school of the same type,
(a) that is more accessible to the person than any secondary school in the secondary school district of which the person is qualified to be a resident pupil; or
(b) for a purpose specified in subsection 49.2 (6). 1997, c. 31, s. 18. [For convenience, the purposes in subsection 49.2 (6) are directly cited below,
1. To qualify for an Ontario secondary school diploma.
2. To qualify for admission to a university or college of applied arts and technology.
3. To enter a trade, profession or calling. 1996, c. 13, s. 4.]
Types of schools
(2) For the purposes of subsection (1), the types of schools are as set out in subsection 37 (2). 1997, c. 31, s. 18.
Restrictions
(3) Subsection (1) applies where the appropriate supervisory officer certifies that there is adequate accommodation for the person in the school. 1997, c. 31, s. 18.
Where agreement between boards
(4) Clause (1) (b) does not apply where the board of which the person is qualified to be a resident pupil has entered into an agreement with another board to provide the relevant subjects. 1997, c. 31, s. 18.
The purpose "[t]o qualify for an Ontario secondary school diploma" being applicable to nearly every secondary student and the bar for this purpose being so low, Section 39 (1) (b) in the present Education Act essentially confers any Ontario secondary student the legal right to attend any Ontario secondary school (of the same type. Note: A student may freely transfer among different types of schools too, pursuant to the Education Act), only subject to the condition "there is adequate accommodation," and NOT subject to any of other considerations or restrictions including but not limited to residence, race, gender, overrepresentation or underrepresentation of any community they are in, and any other status or "status quo."
It is particularly worth noting that the mere requirement "[a program, a subject or subjects] not available [in the home school district]" present in the previous Acts has been specifically removed, consistent to the centralized funding model in Ontario public education (accessed: November 5, 2022) the EQIA introduced, which has permanently eliminated Ontario school boards' powers to levy education taxes.
In terms of "accommodation" in a school or program, there are three crucial points:
- A resident pupil is subject to the similar "accommodation" restriction in their home school catchment, as the case law has ruled: A student has the right to attend a school in their home school board, but not to a specific school, not even to the school "designated" to their home address, subject to the "accommodation" (generally space) limitation.
- Under the centralized funding model, a student is allotted a per-pupil amount for their education no matter where they attend a public school, and then it is very hard for a school to present there is no "adequate accommodation," unless a space cap would be exceeded, under which condition a policy and/or a procedure for open, transparent and fair admissions must apply in the same way to the student as to other applicants.
- Minors are legally defined as persons with disability, and the case law has established that an organization such as a school (board) has "a duty to accommodate to the point of undue hardship," as shown in this Ontario Human Rights Commission web page and this Ontario Human Rights Legal Support Centre web page. (All accessed: November 5, 2022)
Subsection 39 (3) specifically authorizes "the appropriate supervisory officer" but not the school board to certify "there is adequate accommodation." Hence, a school board has no jurisdiction to make a board-wide or school/program-specific policy or decision on whether there is/are adequate accommodation(s) in any school(s) or program(s).
Also, the purpose "[t]o enter a trade, profession or calling" is applicable to any student who wants to enroll into a specialized secondary school or program, and Section 39 (1) (b) factually confers them the legal right to attend any such school or program in Ontario, only subject to the "accommodation" restriction, regardless of their residence, race, gender, overrepresentation or underrepresentation of any community they are in, or any other status or "status quo."
Section 39 (1) (b) in the Ontario Education Act is a clear and unequivocal provision for a (prospective) secondary student's right to provincially open enrollment, similar to the Access to educational program provision in the British Columbia School Act.
The Toronto District School Board's Operational Procedure PR518 - Admission Eligibility Requirements (retrieved: May 18, 2022), Appendix C, and the Halton District School Board's Administrative Procedure of Registration and Admission of Pupils (retrieved: May 18, 2022), Appendix C, both read: "Under the Ministry of Education regulations, Ontario students may apply to attend any school in Ontario." The law is more than this for Ontario secondary students: They not only "may apply to attend …," but "ha[ve] the right[s] to attend any secondary school[s] … [in Ontario]," practically subject to only "accommodation" restrictions.
Conclusion
The origin of school zoning in Ontario public education was closely related to local property education taxes levied to residents in different school sections, which taxes were vital in funding schools.
Despite school zoning, there has been a tradition with strong historical nexus in Ontario public education, in particular, in secondary education, where provincially open enrollment has been generally and generously permitted, supported and protected by various versions of the Ontario Education Act, and by the case law.
Reference
All last accessed: May 20, 2022
- First retrieved at Focus #2: Education in Upper Canada I, which is credited to: "Robson, Karen L. (2019). Sociology of Education in Canada. Toronto: Open Library Press Books, pp. 57 - 63. License: Creative Commons Attribution-ShareAlike 4.0 International License. URL: https://ecampusontario.pressbooks.pub/robsonsoced/."
- First retrieved at History of Ontario Education: Article #1, which is credited to: "Li, Xiaobin. (2015). Ontario education governance 1995 to the Present: More accountability, more regulation, more centralization? Journal of International Education and Leadership. Volume 5.1. License: Creative Commons Attribution-Noncommercial-Share Alike 4.0 Unported License. URL: https://files.eric.ed.gov/fulltext/EJ1135778.pdf."
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