Supreme Court’s ruling rejects one equality in favour of another
On Nov. 9, 2012, the Supreme Court of Canada ( SCC) unanimously rejected equality of opportunity in favour of equality of outcome by finding that Jeffrey Moore was discriminated against when his North Vancouver school district failed to accommodate his learning disability.
In 1994, the cash- strapped school district de- funded an expensive and highly specialized program for dyslexic children in an effort to save money. Beginning two years later, the parents of nine- year- old Jeffrey chose to pay approximately $ 100,000 over nine years for a private education that included the same program previously available in the public system. Jeffrey’s father then complained to the B. C. Human Rights Tribunal that his son’s right to be free from discrimination entitles his family to be reimbursed for the cost of the private school.
Justice Abella wrote the SCC’s decision. In her reasons, she found that the program was the “means” by which Jeffrey could gain “access to the general education services available to all British Columbia’s students.” She also concluded that without public funding for the program, Jeffrey was incapable of achieving the same level of academic competency as other students in B. C.
This decision has the potential to burden B. C. taxpayers with an unlimited financial liability to fund special education programs. The SCC decided that B. C. students are guaranteed equality of outcome because the government has, as Justice Abella says, a “duty to ensure that no student is excluded from the benefit of the education system,” and that “adequate special education, therefore, is not a dispensable luxury.”
If you believe in equality of opportunity, you will agree that the B. C, government did not discriminate against Jeffrey. At all times, he had access to exactly the same educational services available to every other public school student in his region of B. C. Apparently, this does not matter since the SCC decided that the B. C. government has a duty to ensure that Jeffrey — and students like him — achieve the same academic outcomes as other students in B. C. But it’s impossible for the B. C. government to ensure the equal educational outcomes of all B. C. students. It is only within the government’s power to provide each student with an equal opportunity to achieve his or her academic potential.
Going forward, it’s not clear from the decision whether the cost of delivering special education programs can be considered by school districts experiencing financial difficulties — even when those financial difficulties result in yearly deficits and budget cuts. As a result, this SCC decision has the potential to burden B. C. taxpayers with a nearly unlimited financial liability aimed at producing equal academic outcomes because this “duty to ensure no student is excluded” must ultimately be funded by their taxes.
Let’s take a step back. The B. C. government never intended to bind itself through the Human Rights Code to provide highly specialized educational programs for disabled children without regard to cost. In particular, the provision that Jeffrey relied upon was not enacted by the legislature to be used in this fashion. Section 8 of the Human Rights Code is meant to prohibit restaurant- owners, shop- owners, and the like, from discriminating in the delivery of their services. For example, no taxi driver in B. C. may place a sign in his cab saying “no Hispanics.”
This same provision is being constantly abused. In 2011, it was used by the B. C. Human Rights Tribunal to silence the free expression of comedian Guy Earle. In 2012, the tribunal used it to restrict the free expression of religious belief by bed- and- breakfast owners Les and Susan Molnar. In both of these instances, this provision was used to violate a fundamental freedom guaranteed by the Charter. The Jeffrey Moore decision represents a new stage in the continuing evolution of section 8 — the SCC has created the right to receive a highly specialized public education without regard to cost.
Jeffrey, now in his 20s, has experienced a lot of success — he is a journeyman plumber. In an April 21, 2009, interview with Katie Mercer in The Province, Jeffrey said that his chosen career “pays quite well and you can really get into it, and right off the bat. You’re not paying off a student loan,” and that, “it’s a pretty quick way to start making money for someone who wants to have a useful skill and a good income.” Perhaps it’s Jeffrey, not the hard- working B. C. taxpayers, who should pay his father back.