Teachers try to make monkey out of Ford

Last week the Ontario Superior Court delivered a ruling in the case of the great curriculum rewind. In August the government of Doug Ford, following through on one of its preoccupations, issued an order replacing the Liberals’ newish sex-education curriculum with the slightly less trendy one that had existed before. This is a pretty basic function of provincial government as we have understood it for a century or more — albeit a function that is, in the normal course of affairs, left in the hands of anonymous technocrats. Dragging such decisions into the public square with tremendous displays of breast-beating has been an occasional technique of conservative politicians for almost as long.

The Elementary Teachers’ Federation of Ontario (ETFO), joined by a gaggle of liberal interveners, went to court to make a quixotic argument: namely, that if a Liberal government creates a new sex-ed curriculum, it may later be unconstitutional for a Conservative government to change it — even if, as in this case, the change merely represents a reversion to an earlier Liberal version of the curriculum.

The argument was that the new 2015 curriculum contains all kinds of important and salutary doctrine, not yet generally accepted in the candlelit medieval world of 2010, about such subjects as consent, cyberbullying and gender identity. One crucial point was that the older curriculum had material about what were then called “sexually transmitted diseases.” This terminology is now thought to be antiquated and vaguely hateful (who knew?), and we are encouraged to call them “sexually transmitted infections.” I would explain this if I understood it.

The teachers’ union acknowledged that, in theory, a new government has the authority to change school curriculums. But its version of the theory was, as you might expect, restrictive and fussy. What was different about the Tories’ action, it contended, was its specifically backward character. By trying to rewind history very slightly, the new gang at Queen’s Park was trying to exclude new topics featured in the 2015 curriculum from the classroom.

The idea is that when the government adds topics to a sex-ed curriculum, that’s fine: when it takes them away, that can impose a restriction — a “chill” — on teachers’ free speech. (That speech does enjoy some protection in Canadian case law: in 2005 the B.C. Court of Appeal ruled that teachers in that province were allowed to discuss their labour negotiations in class.) The government, ETFO added, had announced the changes with especial glee and anti-liberal indignation, thus making the chill all the colder. Other parties and interveners, representing sexual minorities and other vulnerable student categories, were present to make Charter arguments against the curriculum reboot that basically fell under the heading of what Americans call disparate impact. You can probably imagine those.

The three-judge panel of the Superior Court did not, in the end, have much time for any of this. ETFO had to admit in court what it had boasted about during the public curriculum debate: Ontario teachers are circulating the 2015 curriculum widely, and the ones who like the most up-to-date bits are making use of them. The judges insisted that a curriculum is not, whatever conservatives may imply during elections, a liturgy to be recited. It is just a non-exclusive list of the information that the state expects its classroom employees to inculcate using their own methods. No Ontario teacher has been punished for somehow giving students too much sex education, or the wrong kind. There is no prospect of any such punishment.

Probably the real point of the lawsuit was for the teachers to get all this down in writing. They lost the case, but successfully established standing before the court, and got the judges to define and reiterate the government’s obligations under the federal Charter of Rights, the Ontario Human Rights Code and the Ontario Education Act.

I could not, in reading about the lawsuit, help thinking about the famous Scopes Monkey Trial of 1925 — that concocted pedagogical combat in Tennessee, immortalized in American culture, between fundamentalists and secular progressives. (The Scopes Trial was the basis of the oft-filmed play Inherit the Wind, but in 2019 you can go online and read the real transcript.) Tennessee had introduced criminal penalties for teaching evolution in the classroom, and local liberals engineered the arrest of a biology teacher. Their confessed goal was to put the law on trial and to humiliate the state for passing it.

This worked better than anyone could have expected. It helped keep religious fundamentalism on the defensive in U.S. public schools for half a century. Yet it was all, in obvious ways, a put-on. Scopes was not even sure he had broken the law, but kept silent to serve the cause. The main purpose of the people who devised Scopes’ arrest was to bring reporters and rubberneckers, along with their wallets, to the town of Dayton.

In 1925 such tactics were immature, the province of devious specialists. Our immunological defences against them — our skepticism about the background circumstances when a fight breaks out — are self-evidently still not very good. We have graduated into a world in which Scopesian use of the law is routine: the artillery of contrived controversy booms at deafening volumes, all day, every day. Inherit the wind? Boy, did we.