Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice, and provides Kelowna Capital News with weekly stories from the world of local, national and international law. (Contributed)

Kootnekoff: Are school closures discriminatory?

Susan Kootnekoff is the founder of Inspire Law, her diverse legal career spans over 20 years

As Mothers’ day 2021 approached, schools closed in Alberta and Ontario and parts of Manitoba. At the time of writing, Alberta’s schools had reopened, but schools in Ontario and some of Manitoba remained closed.

B.C. schools closed briefly in March, 2020, in the initial wake of fears surrounding covid-19.

This was followed by a period in which they partially re-opened, as non-educational daycares for certain families, including children of essential workers.

Parents were then given a choice on whether to send their children back to school or keep them at home. In my own children’s classes, parents almost unanimously “chose” to have their children return.

This sensible approach allowed school attendance to reflect individual circumstances.

But this school year, many schools across Canada have slammed their doors shut for various periods of time. Often on very short notice.

Take Alberta for example.

It’s no secret that Alberta education has suffered massive cuts in recent years.

It’s widely known that the various quarantining “requirements” are crippling the educational system.

If a teacher has a student who had covid, the teacher is “required” to quarantine for two weeks. Whether those requirements were validly enacted and are legally defensible is beyond this scope of this article.

There aren’t enough substitute teachers to fill in for quarantining teachers.

How much of this could be addressed by injecting much-needed funding into the education system?

In early May, 2021, Alberta parents had less than two days’ notice that all K-12 children would be home for “at least” two weeks.

Ironically, the edict to suddenly shut school doors was effective the Friday before Mothers’ Day.

School boards had requested the closure. But one of the reasons given by the premier was to prevent the “health-care system” from being “overwhelmed.”

But, why is Alberta’s healthcare system overwhelmed? Could massive cuts imposed in 2019 and in 2020 have anything to do with it?

Schools are closed with no consideration to individual circumstances. Rather, assistance is being considered for some with high needs, to “transition” to “online learning.”

But, as B.C.’s Provincial Health Officer stated in August, 2020, for many children, attending school is “integral for their mental well-being and education.”

Children of course come from various different backgrounds. They, and their families, face different challenges.

Many of these may be private. The child, or the family, may not wish to draw private struggles to the school’s attention.

Nor should they have to.

Attending school allows some children to escape abuse within the home.

Some children’s parents have safety concerns with their children’s names being used within “educational technology” tools. Schools at least in Calgary are apparently powerless to anonymize student names. This is a topic worthy of an article unto itself.

Some children have no internet. Or no computer. Or parents to assist them.

Others may be homeless.

Not to mention the impact of school closures on women.

A recent study by RBC revealed that amid covid-19 restrictions, almost 100,000 women aged 20-plus have exited the labour market entirely, compared with fewer than 10,000 men. Childcare (read: school closures) plays a big role in this.

The study revealed that between February and October, 2020, more than 20,000 women left the workforce. About triple that number of men joined it.

Industries dominated by women, such as hospitality and health care, are not amenable to working from home.

While that is undoubtedly true, I can assure you that women in many other industries also experience challenges.

Even the most dogged determination to focus on preparing complex documents is no match for little voices calling “moooommmmmm” every few minutes.

As of May 11, 2021, the Alberta government’s website showed 200 of Alberta’s 816 schools had 10 cases or more. The actual number of cases in the “10+” category is not disclosed. If 200 schools each had 20 students with covid-19, that would be 4000 students.

“10+” was selected as threshold at which to declare an “outbreak.”

So, school doors were shut to 750,000 K-12 students in that province.

Across-the-board school closures, without considering individual circumstances, is unprecedented.

Do such school closures impose a burden that draws discriminatory distinctions based on characteristics protected by human rights legislation or the Canadian Charter of Rights and Freedoms?

Do they have a disproportionate adverse impact on the very young, the disabled, or women?

Are such broad school closures a disproportionate response to the threat of death posed by covid-19?

Do governments have other less drastic means available to them? Means which result in less impairment to individuals’ rights or freedoms?

One way or another, this issue may find its way before a court. Months or years after the fact, that is.

That doesn’t do much to help those who are struggling and, for one reason or another, unable to cope with school closures now.

About Susan Kootnekoff:

Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice. Photo: Contributed

Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice. Photo: Contributed

Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice. She has been practicing law since 1994, with brief stints away to begin raising children.

Susan has experience in many areas of law, but is most drawn to areas in which she can make a positive difference in people’s lives, including employment law.

She has been a member of the Law Society of Alberta since 1994 and a member of the Law Society of British Columbia since 2015. Susan grew up in Saskatchewan. Her parents were both entrepreneurs, and her father was also a union leader who worked tirelessly to improve the lives of workers. Before moving to B.C., Susan practiced law in both Calgary and Fort McMurray, Alta.

Living and practicing law in Fort McMurray made a lasting impression on Susan. It was in this isolated and unique community that her interest in employment law, and Canada’s oil sands industry, took hold. In 2013,

Susan moved to the Okanagan with her family, where she currently resides.

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