Underneath the Golden Boy - Robson Hall Faculty of Law

30 Underneath the Golden Boy
Whether or not Ross could legitimately have been removed from his
teaching position for “just cause” under education legislation, 35 or the extent to
which a teacher (or any employee) can legitimately be disciplined for off-duty
conduct is beyond the scope of this article. But it must be noted that this
precedent has been followed in decisions upholding a thirty day suspension
imposed on a teacher and guidance counsellor (Kempling) by the British
Columbia College of Teachers 36 and a letter of reprimand imposed on him by his
school district 37 for his off-duty public comments critical of homosexuality which
were held to be “discriminatory” against homosexuals.
Unlike in Ross, there was no individual student or parent complaining of a
“hostile environment” in the Kempling case. One can appreciate arguments on
his behalf that it is inappropriate to penalize him for expressing his bona fide
views on a deeply contentious moral and social issue. However, Kempling’s
comments emphasized his professional status as a teacher and guidance
counsellor. Indeed, he went so far as to declare in a newspaper statement
“Sexual orientation can be changed, and the success rate for those who seek help
is high. My hope is that students who are confused over their sexual orientation
will come to see me. It could save their life.” 38 Only on that narrow basis can I
agree with the propriety of the disciplinary actions against Kempling and the
correctness of the result of the judgments upholding them.
However, dangers to freedom of expression are inherent in this line of cases.
Penalizing teachers’ expression because it could lead to adverse emotional effects
on students, or to the lack of public “confidence” in the school system, subjects
The entire passage reads:
“The second sentence of Article 2 implies on the other hand that the State, in fulfilling
the functions assumed by it in regard to education and teaching, must take care that
information or knowledge included in the curriculum is conveyed in an objective, critical,
and pluralistic manner. The state is forbidden to pursue an aim of indoctrination that
might be considered as not respecting parents’ religious and philosophical convictions.
That is the limit that must not be exceeded.” (at p. 26)
35
I am certainly not questioning the right or duty of school boards to take appropriate actions
against a teacher who uses the classroom as a forum to spread hatred or otherwise abuses the
position while on duty. See for example Keegstra v. Board of Education of Lacombe No.14
(1983), 25 Alta L.R. (2d) 370 (Board of Reference, McFadyen J.) which upheld Keegstra’s
dismissal under the School Act on ordinary educational and employment grounds without
reference to the Criminal Code or human rights legislation.
36
Kempling v. The British Columbia College of Teachers, 2004 B.C.S.C. 133; [2004] 7 W.W.R.
749; aff’d 2005 B.C.C.A. 327; 255 D.L.R. (4 th ) 169, [2005] 10 W.W.R. 275; leave to appeal
dismissed Kempling v. British Columbia College of Teachers, [2005] S.C.C.A. No. 381.
37
Kempling v. Quesnel School District No. 28 and Curr, [2005] B.C.H.R.T.D. No. 514 (B.C.
Human Rights Tribunal, November 14, 2005) from .
38
Kempling v. British Columbia College of Teachers, 2005 B.C.C.A. 327, para. 44 at p. 11.