On May 1, Saskatchewan Premier Brad Wall highlighted the importance of “school choice” for parents when announcing his intention to use the Constitution’s notwithstanding clause to continue to fund non-Catholic children who attend Catholic separate schools.
This will be the first time since 2000 that a Canadian government has used the Section 33 override and would allow the government a five-year side-step of the Court of Queen’s Bench ruling in Theodore. In that ruling, the court found that that funding non-Catholic students attending Catholic schools is not protected by Section 93 of the 1867 Canada Act (which entrenches government support for separate schools in Alberta, Saskatchewan, and Ontario) and violates both the equality rights (Sec. 15) and freedom of religion (Sec. 2) provisions of the Canadian Charter of Rights and Freedoms. The judicial decision would have meant moving approximately one-third of the students in the separate system to the Saskatchewan public system by the fall of 2018. The ruling would also have unclear consequences for the variety of independent schools that the Saskatchewan government partially funds.
After a decade in office, the Wall government has a lot on its plate: a budget crisis, a commitment to “transformational change,” and an ongoing program of educational reform. Invoking Sec. 33 is the bluntest possible response to a court ruling which concerns a village elementary school with 26 enrolled students, and is not the ideal way to wrestle with the thorny issues of how Canadian school governance ought to respond to questions about the place of religion and choice.
These questions have been flashpoints in Canadian politics since before Confederation. Supporters of all positions in these debates appeal to deeply held principles that go to the core of what is meant by “public” education. Since education is provincial jurisdiction in Canada, provinces have answered these questions in a number of ways. In Atlantic Canada, government support is provided only to public schools. Quebec provides a public system and partial funding for independent schools. Ontario provides public funds to the public system and — to the great chagrin of many — only to Catholic separate schools. The four western provinces all provide partial funding to a variety of religious and independent schools, with Alberta and Saskatchewan additionally operating fully funded Catholic separate systems on the Ontario model.
In as diverse a country as Canada, one that prides itself on being a mosaic rather than a melting pot, it stands to reason that these provincial differences with respect to school choice in general and religious schools in particular matter to the formation of future citizens. But we simply don’t know enough about the outcomes our patchwork quilt of school governance creates. As an example, two reports in Toronto over the past week — one which noted the relative socio-economic privilege of children attending alternative arts schools in the Toronto District School Board, and another that exposed the ongoing practice of streaming children of colour into applied programs — highlight the challenges of broader school choice from the point of view of equal access. Parental demand for choice, though, makes it popular politically.
As Mr. Wall moves the question of how to fund religious schools from the court to the legislature we must recognize these issues require difficult tradeoffs, that thoughtful democratic policy-making can and must make. We should not turn to 1867, 1905, or 1917 for our answer. Instead, let us pause and examine the question of religion, choice, and schooling in light of the best evidence about financial, social, educational outcomes that 2017, and Canada’s diversity of experience with schools, can provide.