Lawsuit necessary to protect public schools

Issues behind case misunderstood, say Bert de Gooijer and Larry Huber.

The public school system has been gravely compromised.

Last week’s court decision, which found government funding of non-Catholics in Catholic schools to be unconstitutional, has attracted significant public comment based on a misunderstanding of what issues provoked the court case.

In 1987, a judgment from the Supreme Court of Canada described it as “axiomatic” that funding associated with separate schools “would be found discriminatory and in violation of s 2(a) and s 15 of the Charter of Rights,” except to the extent of the constitutional guarantee of separate schools. Saskatchewan public schools have never questioned the right of Catholic or Protestant minorities to form separate schools. The question they have asked is “What is the proper mandate of separate schools?”

Historically, separate schools existed to allow members of a religious minority to “separate” from the majority. In the context of Catholic separate schools, this has meant that, with relatively few exceptions, they existed to educate members of the Catholic faith. This changed in the last several decades, when large numbers of non-Catholics began entering separate schools. The “separate” schools of today, which operate as a parallel public school system, is not the system in existence for much of Saskatchewan’s history.

The public school system has been gravely compromised. In urban centres, the loss of students has made public schools less efficient, undermined transportation policies and prevented the closure of unviable schools. In rural areas, the creation and expansion of Catholic “separate” schools, such as in Theodore, and the creation of a Protestant “separate” school in Englefeld have impeded school boards in making hard, but necessary choices to ensure the development of the best systems for all residents.

Since the 1990s, Saskatchewan public schools have been asking the government to obtain an authoritative determination of the “mandate question.” Every effort was made by public schools to avoid this issue being taken to court. In 2005, Saskatchewan’s public boards reached agreement with the government of the day to make a constitutional reference to the Court of Appeal in order to resolve this issue without the need for a lawsuit. This was cancelled at the 11th hour due to political pressure from the province’s Catholic boards. After a lawsuit began, the Saskatchewan public boards participated in a three-year mediation process to resolve the issue in a less-contentious manner.

It is also unfair to blame public schools or the court for the steps needed to abide by Canada’s Constitution.

Saskatchewan public schools believes the law is to be respected and upheld. Any disruption caused by the movement of non-Catholics from separate schools is a product of the unilateral (and relatively recent) decision of Catholic schools to admit those students.

Non-Christians and nonreligious groups comprise almost 35 per cent of our population. In this context, as the court found, providing public funding to Catholic schools to teach their faith to non-Catholic students, while denying that to other faiths, violates the government’s duty to treat all religions equally. Furthermore, this unequal treatment cannot be justified under the guise of “choice.” As the court found, it is not acceptable for government to facilitate the religious education choices of non-Catholic parents who are comfortable with Catholic doctrine, while offering no support for the preferences of other non-Catholic parents.

Saskatchewan’s public schools hope the government will work with them to pursue a smooth transition to a constitutional funding policy. The court has given the government more than a year to consult with stakeholders and implement a new policy so disruption to students and families can be minimized.

Recent statements from the minister of education, threatening to bar public boards pursuing issues of educational policy, are unhelpful. These statements suggest the government is less concerned with the rule of law, and more concerned with penalizing public schools for pursuing an important case to protect the public school system for our children.

Bert de Gooijer is the chair and Larry Huber is the executive director of the Public Section of the Public