There are places in the world where a child’s right to an education is still not respected. Places where no matter how much you want to go to school and be like other children you cannot; where the law protects you, but education officials undermine you. Ontario is such a place.

Hundreds of children whose parents are in Canada illegally or waiting to have their status determined are finding school doors closed. These children are among the most vulnerable and innocent in our province. Innocent, because they are children and because they cannot be blamed for tagging along with their parents. The most vulnerable because their parents are often poor with limited language skills and because their parents’ immigration status makes it difficult to get needed services.

Many argue that people should not be in Canada illegally, should not jump the queue to share in our wealth, and should not expect a warm welcome. But whatever the merit of these arguments, they apply to parents, not children.

Two groups of kids are finding Ontario classrooms out of bounds.

First are children whose parents are in Canada illegally. Ontario’s Education Act, which makes school attendance compulsory between age 6 and 16, specifically says such children have a right to go to school. Unfortunately, the law has not made much of an impression on education officials. The result is head-scratching conversations with school and board staff that go something like this:

“I’m phoning on behalf of Gabriela Santos. She is eight years old and wants to get into school but has been turned away.”

“Yes, I know the case. Her parents couldn’t produce any immigration papers.”

“Her parents don’t have any immigration papers but of course the Education Act says Gabriela can’t be denied access even though her parents are here illegally.”

“Well, they will have to show us some papers from the immigration department.”

“They don’t have anything from the immigration department — that’s why they’re illegal.”

In the second group are children whose parents’ status is unclear or not yet determined. This includes people who come to Canada as “visitors” but intend to stay. After their arrival, they apply to become landed immigrants, or perhaps they already applied from outside Canada. They may have a strong case, for instance, a woman with a child from a previous marriage who wants to be united with her spouse. Others may have weaker cases and ultimately be deported. But the immigration department backlog means both may wait up to three years for a decision. Three years is a long time for an eight-year old to be out of school.

School officials insist that these “visitors” need a federal “Student Authorization” before enrolling even though a plain reading of the Immigration Act suggests the authorizations are not needed by primary and secondary students. The irony is that visitors are better off letting their “visitor” status expire and become illegal. Then provincial law makes their entitlement to attend school clear (but for the inane conversations above).   

Even the United States, which has not signed the United Nations Convention on the Rights of the Child, does not make it so difficult for children. Almost 20 years ago its Supreme Court, in Plyler v. Doe, struck down a Texas law that tried to keep children illegally in the country out of school. The court said this law “cannot be considered rational unless it furthers some substantial goal of the State.” Imposing a “lifetime hardship” on children did not qualify as a substantial goal, especially when many would stay anyway and become legal residents and citizens.

The judges said it was “difficult to understand precisely what the State hopes to achieve by promoting the creation and perpetuation of a subclass of illiterates within our boundaries, surely adding to the problems and costs of unemployment, welfare, and crime. They concluded that, “whatever savings might be achieved by denying these children an education, they are wholly insubstantial in light of the costs involved to these children, the State and the Nation.”

Today, US law forbids any school system from asking a child for immigration ID, communicating with the department about a child’s immigration status, or even from asking any questions of the parent or child about status. 

Some Canadian authorities follow the American example. Elinor Caplan, while she was immigration minister said, “I firmly believe that no child should be denied an education. I have reviewed the regulations which require school authorization for post-secondary and vocational schools. I am convinced that there is no barrier there to any child in Canada whether they have been here for 10 minutes, 10 months or 10 years.” 

Provincial education officials were less convinced. They claim their vigilance about keeping kids out of school is based on procedures, policies and protocols necessary to keep immigration authorities happy and to avoid being charged for “aiding or abetting” illegal immigrants. They are more willing to stand up to children and ignore the Education Act, than offend the federal paper bully. It does not matter that no one can remember such a charge ever being brought against a school or its board.

The provincial anxiety about immigration rules is also curious given education is pure provincial power in our constitution. The province can tell the federal government to butt out on threat of reporting them to the courts. In any case, even if federal authorities could morally justify prosecuting a board for educating a child, such a prosecution would violate Canada’s commitment to provide primary and secondary education under the UN Convention, which Ontario also signed.

The saving grace for these children is that if they are lucky they will get to one of the dedicated educators who work quietly behind the scenes to get them in through the back door. The situation would be bleaker without them. But a child’s education should not be a matter of chance. It is a right…

… and a benefit. Denying an education to a child does not help anyone: certainly not the child, not the parents, and not our community. The children are here anyway — keeping them out of school simply means they may be unsupervised and unaccounted for. It means that if they ultimately get legal status, our schools have to provide costly programs to help them catch up. And without an education they are more likely to become a burden to our community.

Using children as pawns to enforce Canada’s immigration laws diminishes us as a people and impoverishes Ontario’s proud heritage in public education. Provincial educators acting like anxious bureaucrats, immigration officers, or lawyers, is not part of that tradition. Striving for a province where a child’s basic right to an education is respected is in keeping with our values.

A presumption that every child can go to school, exactly what our Education Act requires, would be a good start.