The Special Education Teacher and Student Aggression

Introduction

Staff in Professional Relations Services respond to many calls from special education teachers. Often, the teachers ask about their legal rights and responsibilities in managing aggression and violence in the classroom, and their need to maintain a safe learning environment.

Teachers are Vulnerable

Special education teachers are vulnerable: 

• when student behavior becomes out of control and there is the very real danger that the child may bring harm to him/herself, other students, and the teacher.
  
• because their work often requires physical contact with students, leaving them particularly open to false allegations of physical and sexual abuse or assault.

Often, special education teachers are required to intervene physically and to use restraint procedures. The purpose is to calm the student, and to prevent serious harm from occurring to ones self or others.

In such circumstances, another adult (a parent, volunteer, educational assistant) who observes such an incident may consider the teacher’s behavior to be unnecessarily forceful, or even abusive. If this individual is not familiar with the special education teacher's commonly accepted practices, board protocol regarding the use of restraint, and the child's personal history and circumstances, she or he might reach the wrong conclusion about the teacher.

Children with special needs require and deserve a heightened level of vigilance for their safety. Further, the Child and Family Services Act legally requires that adults report reasonable suspicion of abuse immediately. But what about the teacher's rights?

Self-Defence Against Unprovoked Assault

Teachers, like any other citizen, are allowed to use physical contact where necessary to defend themselves from physical harm or injury. If a child is hitting, kicking, grabbing, and biting you, you are entitled to defend yourself against harm. Section 34 of the Criminal Code states:

(1) Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.

Preventing Assault

Teachers are also allowed to use physical contact to intervene in situations where students may be at risk of harm or injury resulting from uncontrolled behavior of a particular student. Ironically, to ignore such a situation places a teacher at considerable risk of being accused of negligence in the performance of the teacher's duties. Section 37. (1) of the Criminal Code states:

• 37. (1) Every one is justified in using force to defend himself or any one under his protection from assault, if he uses no more force than is necessary to prevent the assault or the repetition of it.
• (2) Nothing in this section shall be deemed to justify the willful infliction of any hurt or mischief that is excessive, having regard to the nature of the assault that the force used was intended to prevent. R.S., c. C-34, s. 37.

Correction of Child by Force

Where teachers become extremely vulnerable to allegations of assault is in the disciplinary context. On the one hand, teachers are provided a defense under section 43 of the Criminal Code:

• 43. Every schoolteacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be who is under his care, if the force does not exceed what is reasonable under the circumstances. R.S., c. C-34, s. 43.

On the other hand, school boards are entitled to require a higher standard of performance than the Code (which sets the minimum standard). Many boards have a "hands off" "no touch" policy in relation to discipline. All should teachers take precautions to avoid potential allegations of assault or abuse.

Checklist of Precautionary Measures

Here is a checklist of precautionary measures to follow: 

• Wherever possible avoid physical contact with students.
• Ensure full training in board policy and procedures regarding restraint and discipline.
• Openly communicate with principal and vice-principal about expectations.
• Invite administration to visit regularly.
• Ensure parents are aware of and agree with restraint and discipline practices.
• Discuss parent concerns in presence of administration and come to a mutual acceptance of protocol.
• Communicate expectations to students and post rules in classroom.
• Put concerns about particular students in writing to principal and keep copies.
• Document all conversations, incidents and efforts to ensure a safe workplace.
• Keep documentation at home not at school.
• Wherever possible do not handle a dangerous situation alone. Try to have another adult present.

Even when you take all the necessary measures to avoid false allegations of assault or abuse, you still may one day face this crisis. These preventative measures will ensure you are able to meet the allegations when they arise.

What Should You Do?

If you are accused of assault or sent home by your principal without knowing why, immediately call the provincial office at 1-888-838-3836, or 416-962-3836.

Emergency Legal Assistance

After office hours, a voice message will provide the necessary instructions to put you through to an operator. You will be asked a few quick questions. Where appropriate, a criminal lawyer will be contacted and you will be connected immediately.

Members are advised to consult their Local President or Professional Relations staff in Protective Services at 416-962-3836 or 1-888-838-3836 for additional advice.