An application to appeal a suspension order levied against Josh Alexander, a former St. Joseph’s High School student who organized and led a November 2022 noon-hour student walkout demanding the school reverse a policy allowing transgender students access to either a male or female washroom based on gender identification, was heard Monday before the Superior Court of Justice in Pembroke.

Throughout December and January, Josh notified the Renfrew County Catholic School Board District School (RCCDSB), of his intent to appeal his suspensions. However, the board refused to acknowledge his efforts stating he did not meet the legal threshold to launch an appeal. 

Following the board’s refusal to acknowledge his appeal, he retained legal counsel and submitted an application to the court seeking a court order that would compel the board to hear his appeal.

Background

On November 23, 2022, St. Joseph’s Principal Derek Lennox informed Josh he was indefinitely suspended from school while he conducted an investigation into the student protest. In addition, Mr. Lennox investigated previous actions and statements made by Josh citing he faced discrimination because of his religious beliefs. 

There were also complaints levelled against the student stating he mocked transgender students and inferred that transgender people are not entitled to special rights because, according to his beliefs, humans are born with a defined gender and cannot change their genetic makeup.

Prior to the protest Josh spoke with the Leader and provided context to a social media posting he made regarding the walkout.

“Males do not belong in female washrooms is our message. It is time to expose the perverted agenda in our education system. Males do not belong in female washrooms. Protect the girls from this evil narrative. Stop depriving our students of a healthy and natural environment. ‘God made them male and female: Mark 10:6’.”

On December 20, 2022, Mr. Lennox sent written notice to Josh and his parents confirming a retroactive 20-day suspension had been issued to him.

Mr. Lennox informed the Alexanders the suspension could be appealed to the school board pursuant to board policies and procedures, specifically the Pupil Suspension Appeal Policy.

Appeal Rejected

Following the suspension order, Josh retained the services of James Kitchen, an Alberta-based lawyer who specializes in civil and human rights challenges. 

In early January, Mr. Kitchen wrote to RCCDSB Superintendent Mary-Lise Rowat notifying her of Josh’s intention to appeal the suspension pursuant to the school board’s Pupil Suspension Appeal policy. He also informed Ms. Rowat his client had withdrawn from parental control and his parents no longer were involved with his educational choices. He said his client was pursuing the appeal on his own with the assistance of legal counsel. 

Both Josh and his father, Matthew Alexander, provided sworn affidavits confirming any future decisions in regards to education would be determined by Josh Alexander and his parents were not involved, but were supportive of his decision. 

Jennifer Birrell, legal counsel for the RCCDSB, wrote to Mr. Kitchen stating the school board did not acknowledge his client’s suspension appeal. She stated the process was not valid because he had not provided sufficient documentation or proof he had withdrawn from parental control and therefore lacked standing to bring such an appeal forward.

She based her argument using the criteria contained under Section 65 of the Children’s Law Reform Act (CLRA)

A final suspension order was issued on January 26 informing Josh the original non-disciplinary notice was extended to the end of the school year. Josh was provided an opportunity to complete his school year if he agreed to abide by the conditions outlined by the RCCDSB. 

Josh notified the board he would pursue an appeal and rejected the conditions set by the board to complete the school year. Ms. Birrell reaffirmed the board’s position to reject any appeal brought forward until Josh provided evidence of withdrawal of parental control.

Submissions Before The Court

When the two parties appeared before Justice Jaye Hooper on June 5, it was held in a virtual setting. 

Mr. Kitchen was the first to argue his case, and he immediately challenged Ms. Birrell’s submission that his client failed to reach the threshold as outlined in the CLRA. He cited case law and said Josh met the criteria as defined in the Act.

 “All that is required is a sincere statement from the student,” Mr. Kitchen said. “In fact Josh Alexander and his father went above and beyond that by both providing sworn statements of fact. They provided extensive details of facts to the school board verifying and confirming that Josh’s withdrawal from parental control was in fact a reality.

“But the sworn statements of fact were not good enough for the school board. Two days later the school board sent a reply stating that Josh and his father did not meet the requirements, but they did not say how or why. Here we have the school board asking for sworn statements and we provided them, then the school board did not say why they were not sufficient. From that point on it became apparent to Josh that the school board was taking a position merely for the sake of taking a position.”

He said the board was not acting in good faith because they refused to provide a clear explanation of what they required. Josh’s affidavit clearly states he is in control of his own affairs, and met the threshold as stated in the CLRA.

He challenged a statement contained in Ms. Birrell’s submission that Josh’s parents have not relinquished control of their son because they support his stance and from the time of his September registration until his suspension notice, they were in constant communication with the school. Her submission contained several pieces of correspondence between his mother and school staff illustrating Mrs. Alexander’s involvement in his educational choices.

“There is a big deal being made about the amount of involvement of his parents with the school from the time he registered in September,” he said. “They contend there was a great deal of contact between his parents in November and October, but it is irrelevant to this case. The parents ended all communication with the school on December 22, the same time Josh declared his withdrawal from parental consent.”

Justice Hooper asked Mr. Kitchen if his position was merely that Josh Alexander’s submission affidavit was all that is required to meet the minimum threshold to be granted standing for an appeal. She asked why supporting documentation such as rent receipts, payroll stubs or other indicators of his independence were not included. His continued residency with his parents also was questioned.

“If the school board truly wanted to determine his status, they had the right to cross-examine him, but they chose not to,” Mr. Kitchen said. “They could have said ‘Josh, we don’t believe you and we need proof and require this and this to meet the requirements.’ 

“Nowhere in case law is it stipulated that a person has to seek their own residency. Josh still lives at home, but he is rarely there as he is either working or travelling for media appearances or his charity work.”

RCCDSB Challenges Residency

Ms. Birrell presented a letter sent in January from Mr. Lennox to Mr. Kitchen. The letter included some of the requirements needed to establish withdrawal from parental control. Among the factors were proof of separate residency, a separate income and independence over life choices. 

Justice Hooper asked if the board would accept an affidavit so long as it contained not all, but some of the factors suggested by Mr. Lennox.

“Case law states that if someone has moved out on their own, they have seized the chance to be on their own and they are working independent from their parents,” Ms. Birrell replied. “That is much different from somebody who is residing with their parents, having their parents pay their food bills, not having parents contributing to their utilities and not being fully independent.”

She said the affidavits provided by Josh and Matthew Alexander illustrate they have not met the factors she cited from case law. 

She read a section from Josh Alexander’s affidavit when he wrote, ‘I make almost all the decisions regarding my education.’

“He does not say in his affidavit that he is in total control of his educational decisions as I have withdrawn from parental control, nor does he provide any examples of his decision making,” 

She said the word ‘almost’ does not equate to total control.

She said choosing which courses he will take is far different than deciding to withdraw from high school or applying for post-secondary education.

Ms. Birrell concluded her submission stating the board had doubt as to when exactly, if at all, Josh Alexander had indeed fully withdrawn from parental custody since his affidavit lacked any secondary documentation. The board maintains the factors outlined by Mr. Lennox’s letter were communicated to Mr. Kitchen, yet they were not included in his affidavit. 

She also questioned Josh’s claim that his parents were not involved in his independent decision-making. Her submission included several interactions between Mrs. Alexander and school staff from the time of his September registration all the way into February.

Ms. Birrell drew attention to Mrs. Alexander’s attendance at a February school board meeting which included an update concerning Josh’s appeal process. Her presence at the meeting led to speculation among some board members questioning why she was in attendance in light of Josh’s assertion his parents no longer had input regarding his educational decisions.

Mr. Kitchen was permitted to conclude the proceedings by responding to concerns raised by both Justice Hooper and Ms. Birrell in relation to Josh’s statement that he ‘makes almost all the decisions regarding his education.’ Both questioned whether he just makes the small decisions such as ordering pizza for lunch on pizza day or scheduling or saving money to attend a post-secondary institution. They sought clarification on what other major decisions are made by his parents.

“It is a pretty big decision whether or not to go to school and risk getting arrested,” Mr. Kitchen said. “It is a pretty big decision to instruct your lawyer to say to the school board I am not going to comply with this because it’s unlawful and risk exclusion for the entire year. It is a pretty big decision to sacrifice your entire school year because of your faith and conviction.

“Those are big decisions and there is no indication whether his parents approved or disapproved in his decision and I think those decisions qualify as decisions made by someone who is charge of his own education.”

Eight Weeks For Decision

Justice Hooper closed the hearing by expressing her concern regarding the status of Josh’s right to appeal his suspension.

“I want you all to know I am troubled by the fact that the board appears to have weighed the evidence and made decisions based on their way of certain information that they say didn’t go far enough to allow someone to have a procedural right to test their decision on whether Josh Alexander was treated fairly with respect to his views,” she said. “I am troubled by that.”

She informed the court she will be devoting much of her summer months examining all aspects of the case due to its importance in many areas of education not only in Renfrew County, but may be precedent setting across the province. Her goal is to render a decision no later than the end of July and both parties will be notified of the verdict in writing.

Josh was not present for the proceedings and according to his lawyer, he was travelling for a scheduled engagement. In Civil Law hearings, attendance by the Applicant is not mandatory and is left to the discretion of the individual. 

By Bruce McIntyre, Local Journalism Initiative Reporter

Original Published on Jun 07, 2023 at 09:22

This item reprinted with permission from   The Eganville Leader   Eganville, Ontario
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