Social Foundations Lecture

Roman Catholic Separate Schools – Religion in Education

January 23, 2003

– Jerry Paquette

Religion and Language

A Difficult Balancing Act

Religion and Language,
Potent Forces in Ontario Education

A Short-Lived “Simplicity”

In the Beginning

Dissent

R.C.S. Schools:
Few Changes Until 1984

Teaching “Common Christianity”

The Winds of Change

An End to School Prayer and Religious Instruction

Dissatisfaction with “secular public schools”

• growth of religiously based private schools

• intensified pressure for government funding of such schools

• sustained campaign to reintroduce religious education into Ontario schools

Hardly a Dead Issue

• 1987 Supreme Court Decision affirmed constitutionality of “full funding” for Catholic high-schools led to renewed political efforts on the part of the Independent Schools Assoc. to get similar funding.

• Bal Case (mainly Islamic and non-Judeo-Christian groups) decided against plaintiffs in December, 1994.

• 1996 Adler Case (Jewish Schools and Alliance of Ontario Christian School Societies) decided by Supreme Court.

Adler Decision—Questions and Answers (grossly simplified)

• Do the definitions of “board” and “school” (pub./sep.) violate sections 2(a) and 15(1) of the CCRF by excluding private schools from public monies under the GLG's?

Adler Decision—Questions and Answers (grossly simplified)

• No!

– S. 29 of the Charter explicitly exempts from Charter challenge all rights and privileges “guaranteed” under the Constitution in respect of denominational, separate or dissentient schools.

– the decision [not to fund non public/non-sep. schools] is immune from Charter review because it was made pursuant to the plenary power over education granted by S. 93...One part of the Constitution cannot be used to interfere with rights protected by a different part of the same document.

Adler Decision—Questions and Answers (grossly simplified)

• No!

– Nothing in the Ed. Act relating to mandatory education per se involves a breach of appellants' rights under s. 2(a) of the Charter...The Act does not compel the appellants to act in any way that infringes on their freedom of religion.

– The distinction made between the Roman Catholic schools and other religious schools is constitutionally mandated and cannot be the subject of a Charter attack.

Adler Decision—Questions and Answers (grossly simplified)

• No!

– The distinction in the Ed. Act between public and private school funding does not meet the threshold stage of the s. 15 inquiry. The Act, as well, does not give rise to adverse effect discrimination. No distinction is made between the appellants and other groups on the basis of a particular characteristic common to the appellants.

– Any disadvantage flows exclusively from their [the appellants'] religious tenet [and hence their own choice].

Adler Decision—Questions and Answers (grossly simplified)

• Yes—a dissenting opinion:

– This case involves a severe breach of an insular minority group's equality rights, for the purposes of furthering majoritarian interests, in circumstances where the benefits are largely financial.

– I conclude that the Ed. Act funding scheme results in a prima facie violation of s. 15's guarantee of equal benefit of the law without discrimination...we cannot imagine a deeper scar being inflicted on a more insular group by the denial of a more fundamental interest; it is the very survival of these communities which is threatened.

Adler Decision—Questions and Answers (grossly simplified)

– The funding scheme created in the Ed. Act represents an impermissible violation of the appellants' right to equal benefit of the law under s. 15 of the Charter.

A Paradoxical “Back-Door” Challenge to the Future of Catholic Education in the Shadow of Bill 160

• Division F of Bill 160 suspended board taxing power pending the report of a special committee that may sit between June 30, 2003 and December 31, 2003 (not likely after Rosanski). In effect, the newly amalgamated Ontario school boards have lost the right to set their own tax rates.

• Roman Catholic separate boards have therefore lost their right to set tax rates

but...

A Paradoxical “Back-Door” Challenge to the Future of Catholic Education in the Shadow of Bill 160

• Section 93(1) of the Constitution Act, 1982 says:

Nothing in any such Law shall prejudicially affect any Right or Privilege with respect to:

(1) Denominational Schools which any Class of Persons have by Law in the Province at the Union…

A Paradoxical “Back-Door” Challenge to the Future of Catholic Education in the Shadow of Bill 160

• There are five certainties. First, there is a denominational right of Roman Catholics in Ontario to a separate school system. Second, adequate financing is a necessary means to the real achievement of that separate school system. Third, the language of s. 7 of the Scott Act in conferring the right to tax locally is clear and express in providing an independent means to the Roman Catholic community to achieve the realization of their separate school system.

A Paradoxical “Back-Door” Challenge to the Future of Catholic Education in the Shadow of Bill 160

• Fourth, the language of s. 93(1) protects the rights and privileges “with respect to Denominational Schools” accorded by the law, including s. 7 of the Scott Act, at Confederation. Fifth, the right to tax locally, recognized by s. 7 of the Scott Act, is repealed by Bill 160. Constitutional rights are constitutional rights. In the absence of a constitutional amendment, the province cannot lawfully impinge upon such rights.

A Paradoxical “Back-Door” Challenge to the Future of Catholic Education in the Shadow of Bill 160

• But, on appeal:

...the jurisprudence does not support the proposition that s. 93(1) guarantees to denominational school boards the right to tax simpliciter. The constitutional protection is not so narrowly focused. Rather, s. 93(1) guarantees to the separate school community financial resources distributed in a fair and non-discriminatory manner in such a way as to manifest the purpose of the section,; [sic] namely, in Wilson J.'s eloquent phrase, that the denominational minority's interest in a separate but suitable education for its children be protected into the future.

A Paradoxical “Back-Door” Challenge to the Future of Catholic Education in the Shadow of Bill 160

If there is funding the separate school system can continue to exist and can continue to provide education with a denominational character, with or without the right to tax. It is the funding, not the right to tax, that is the necessity.

So what's the Paradox?

• This court case was mounted by the teacher unions and public school boards spearheaded by the Ontario English Catholic Teachers' Association.

• Among intervenors for the government was the Ontario Catholic School Trustees' Association which was perfectly content to accept loss of the right to tax in exchange for guaranteed fiscal parity with public boards under Bill 160.

What was the Challenge?

• If the Supreme Court had reversed the Appeal Court decision and ruled unconstitutional Bill 160's suspension of the power of separate boards to set property tax rates for education, the government would have lost control of a significant aspect of its new fiscal regime and grant scheme.

• Governments don't like losing control over funding (witness long, dense history of American education-finance litigation).

• A major objective announced very early in the Harris reforms was to seize control over all educational spending.

What was the Challenge?—a “lose-lose” slate of political options.

• Options in the event of such a SCC decision:

– accept loss of control over separate-school spending and the political fallout from allowing separate boards, but not public boards, to set tax rates (one suspects this would have been a non-starter in the Harris cabinet)

– try to concoct a grant plan that would claw back any “excess” separate-board tax revenues into the grant formula and still pass constitutional muster (but this was precisely the Alberta solution to the control problem vis-à-vis the tax power of Catholic boards and that solution was also being tested by the SCC at the same time as the Ontario Bill 160 approach)

– follow Newfoundland and Québec in initiating action toward a constitutional amendment suspending the application of S. 93(1) to Ontario—a potentially very divisive political move

But, in the end...

• In 2001, the Supreme Court of Canada upheld the Court of Appeal decision!

United Nations Human Rights Committee Judgement

• The Committee begins by noting that the fact that a distinction is enshrined in the Constitution does not render it reasonable and objective...the Committee rejects the State party's argument that the preferential treatment of Roman Catholic schools is nondiscriminatory because of its Constitutional obligation.

United Nations Human Rights Committee Judgement

• On the basis of the facts before it, the Committee considers that the differences in treatment between Roman Catholic religious schools, which are publicly funded as a distinct part of the public education system, and schools of the author's religion, which are private by necessity, cannot be considered reasonable and objective.

“Equity in Education” Tax Credit

• On May 16, 2001, Minister Ecker announced phase in over five years of a $3,500 tax credit to parents “for fees they have paid to send their children to independent schools in Ontario.”

• The way in which governments typically fund private schooling (i.e., vouchers or tax credits that pay only part of the cost of private school) raises serious equity and potentially serious constitutional issues. If you’re interested in such questions, check out:

Paquette, J. (2002). Public funding for 'Private' education: Enhanced choice at what price in equity? Education & Law Journal, 12(2), 133.