Fairness in Funding

Submission on Equity in Funding for Religiously-based Schools

December 1999

The Ontario Multi-Faith Coalition on Equity in Education and The Evangelical Fellowship of Canada, Centre for Faith and Public Life

Introduction The Ontario Multi-faith Coalition for Equity in Education international community through his complaint to the United (OMCEE) is a broad coalition representing diverse minority Nations Human Rights Committee. This Committee considers religious communities across Ontario. OMCEE represents individual complaints under the International Covenant on Islamic, Hindu, Sikh and Christian organizations and Civil and Political Rights to which Canada is a signatory. The concerned community groups. OMCEE urges legal equality government of Ontario, along with all other provinces, of opportunity and parental choice for all religious specifically approved the Covenant prior to Canada’s communities within the Ontario educational system. ratification of the treaty as the government of Canada recognized that some guarantees in the Covenant cover The Evangelical Fellowship of Canada is a national, matters of provincial jurisdiction. interdenominational, Protestant Christian organization which represents 32 denominations, over 100 religious organizations, Canada and Ontario are thus bound by the decision of the over 5,000 churches and an estimated 1.2 million individuals. Committee in the Waldman case. EFC has participated in the public debates, including intervening in court cases, concerning the place of religion in Guiding Principles education. The EFC established a Task Force on Education in We understand that the governments of Ontario and Canada 1994 to consider public policy and other matters relating to are currently in the process of formulating responses to the UN educational philosophy, funding and structuring. The EFC also Human Rights Committee decision. The EFC supports public helped to found the Coalition for Religious Freedom in funding of private religiously-based schools. We submit the Education (CRFE) in 1989 and supports the Ontario Multi- following guiding principles that we trust will assist in faith Coalition for Equity in Education (OMCEE). The EFC developing a response to the communication from the UN appeared before the Standing Senate Committee on Legal and Human Rights Committee. Constitutional Affairs in June, 1996 with respect to the Parental responsibility for the education of their children Resolution to Amend Term 17 of the Terms of Union of The first principle is that parents have the primary Newfoundland with Canada and before the Special Joint responsibility for the education of their children and therefore Committee of the House of Commons and Senate concerning have a corresponding right to be able to choose the type of Quebec’s proposed amendment to s.93 of the Constitution Act, education they desire for their children, as affirmed in the 1867. The EFC also made a submission to the Private Schools United Nations Declaration of Human Rights and Article 18 of Funding Task Force in Alberta specifically addressing funding the Covenant on Civil and Political Rights. The Supreme for private, religiously-based schools. Court of Canada also affirmed this principle in Jones v. The 3 OMCEE intervened in the Adler1 and Bal2 cases concerning Queen. funding for religious schools. These cases were not successful Integrality of religious perspective and education in securing equal funding for religious schools. Mr. Arieh A second principle is that education is shaped by a framework Waldman has now been successful in bringing this issue to the

1 of beliefs and values, sometimes called a “worldview”, by By 1995, the Supreme Court of Canada could find that public which we make sense of our lives and the world around us. schools in Ontario were “secular”, that is, devoid of religion. Religion, the ultimate commitment that provides personal and Religious adherents the argued that the lack of funding for communal direction to life, is an integral dimension of a religious schools was discriminatory compared with the fully- worldview. Because education deals with questions of ultimate funded Roman Catholic schools. The Ontario government importance, it is inherently religious and at a foundational argued that section 93 was immune from Charter review. The level, faith-based. It is the EFC’s view that it is not possible to majority of the Supreme Court of Canada agreed with this educate children form a value-neutral perspective since what assessment. Mr. Justice Iacobucci held that section 93 was a children are taught and how they learn will be shaped by “comprehensive code” that can not be challenged using particular world and life views. another section of the constitution. This did not, however, preclude the government of Ontario Shared responsibility of government for education from expanding denominational school rights. The A third principle followed by EFC is that if a group of parents government of Ontario extended additional funding to the wants a certain type of education and can demonstrate that this Roman Catholic separate school board in 1986 such that can be done responsibly, then governments should make legal schools are now fully-funded through the end of high school and financial provision for such schooling. In Reference Re Bill 30 Madam Justice Wilson held that it was open to the Ontario government to expand on rights enjoyed Legal Framework by denominational schools.12 Furthermore, the Supreme Court Religious education has been described as “…the most of Canada has indicated that it is open to the government of contentious issue in Canadian national life.”4 The Ontario to extend funding to other denominational schools. In constitutional compromise, section 93 of the then British Adler, Iacobucci J. held: North America Act,5 did not resolve but rather seemed to However, nothing in these reasons should be taken to mean that intensify the issue. Section 93 states: the province’s legislative power is limited to these two school “Nothing in any such Law shall prejudicially affect any Right or systems. In other words, the province could, if it so chose, pass Privilege with respect to Denominational Schools which any legislation extending funding to denominational schools other Class of Persons have by Law in the Province at the Union.” than Roman Catholic schools without infringing the rights The meaning of “have by Law” precipitated a constitutional guaranteed to Roman Catholic separate schools under s.93(1).13 crisis in Manitoba in 1892-1895. This section, and the concomitant sections in other parts of the constitution admitting The Waldman decision other provinces into confederation, have continued to be The communication from the UN Human Rights Committee is 6 litigated up to the present day. very clear. The Committee is empowered under the Optional Protocol to determine violations of the International Covenant This same section 93 has been used as a shield by on Civil and Political Rights (ICCPR). The Committee found governments as they try to limit funding for religiously-based that the unequal funding of religious schools in Ontario schools. The calls for funding for religiously-based schools violates s.26 of the ICCPR. The Committee was not persuaded increased following the 1988 and 1991 decisions of the that the fact that funding for Roman Catholic schools was Ontario Court of Appeal in Zylberberg7 and Elgin County.8 enshrined in the constitution constituted “reasonable and The court ordered that the use of the Lord’s Prayer to start the objective” grounds which would justify the discrimination. day and the use of indoctrinational Christian instruction classes The government of Canada has 90 days to respond to the in public schools violated the guarantee of religious freedom Committee’s communication (until February 1, 2000). found in section 2(a) of the Charter. The court did not preclude the possibility of multi-faith religious observances or religious The Committee indicated that the ICCPR does not itself education. In the Elgin County case, the court expressly require funding of religiously-based schools. However, if a refused to deal with the issue of the constitutionality of “opt- state provides funding for religiously-based education, it must in” rather than opt-out religious instruction.9 However, the provide it for all on a non-discriminatory basis. The Ministry of Education in Ontario removed all indoctrinational Committee did not accept the argument that the funding religion from the public schools as a response to these two distinction was between public schools and private schools, the cases.10 In practice, religion in not taught from a multi-faith Catholic separate school system being, in effect, a special perspective even though the Ministry established guidelines branch of the public school system. Their reason was that other for such courses in 1994.11 religiously-based schools do not have the opportunity to become part of the public system.

2 Human Rights Committee communication by passing In a separate, concurring opinion, Mr. Martin Scheinin legislation to fully fund religiously-based independent schools comments: that meet the tests of public accountability and provincial education standards. The requirement that these schools meet When implementing the Committee’s views in the present case provincial educational standards will require that the schools the State party should in my opinion bear in mind that article 27 use a curriculum approved by the Ontario Ministry of imposes positive obligations for States to promote religious Education. Schools would have to show congruence between instruction in minority religions, and that providing such the learning outcomes of their curricula and that of the state. education as an optional arrangement within the public However, we encourage the government to allow religiously- education system is one permissible arrangement to that end. based schools to develop their own curriculum in order to Mr. Scheinin also indicated that two options for maintain institutional and religious integrity. Schools must also accommodating religious education in the Canadian situation maintain the ability to hire and fire their own teachers and included establishing a public minority school or providing decide class size. public funding for a private minority school as it was clear that Other provinces grant partial funding for religiously-based there were sufficient numbers of students requiring such schools. This shows that it can be done without adversely schools to establish a school. affecting the public school system. It also provides several Courses of action for the government of successful alternative models for partially funding religiously- Ontario based schools which may, for religious reasons, be unable to It appears, then, from the jurisprudence and the UN Human fulfill the requirements for full funding. Rights Committee decision that there are several possible Alberta courses of action open to the government of Ontario: The government of Alberta, for example, recently appointed a 1. Publicly fund private minority schools. Task Force to examine funding for private schools. The Task 2. Establish public minority schools based on religions. Force Report recommended increasing funding to 60% of the 3. Allow opt-in religious instruction, as demand requires, in per pupil grant for private schools provided they meet certain public schools. requirements. Private schools, including those that are 4. Establish neutral and objective instruction in the general religiously-based, must be accredited to receive funding. history of religions and ethics Accreditation requirements include using an approved curriculum and having certificated teachers. Option 1: Public funding of private minority schools British Columbia This option would address the finding of discrimination in the British Columbia is not constitutionally required to provide Waldman case. The UN Human Rights Committee found that funding for Roman Catholic denominational schools. Ontario discriminates by funding one denominational school However, it provides 50% of the per pupil grant for the system but not others. previous year for private schools, including religiously-based schools, that are accredited and whose per pupil costs do not Over 40,000 students in Ontario currently attend independent exceed those of the public schools. Accreditation requires that religiously-based schools.14 A further 660,000 attend fully- the schools use the government curriculum and certified funded denominational schools; that is, the Roman Catholic teachers. Accredited private schools that have costs that separate school system. In 1986, the Ontario government exceed those of public schools receive 35% of the per pupil expanded funding for Roman Catholic schools. Prior to 1986, grant. Catholic school funding only extended to grade 10. Extension of full funding to the end of grade 13 required the building of Manitoba many new schools. There has been no indication that the The government of Manitoba pays a per pupil grant to public school system has been adversely affected. It is not, independent schools based on a formula (50% of the net therefore, a reasonable argument that extending funding to operating expenditures for public schools two years previously). 40,000 students in other religiously-based schools will It also provides a textbook grant of $50 per pupil. Independent adversely affect the public school system. schools may also enter in to Shared Services Agreements with local school divisions for transportation, clinician services and We urge the government of Ontario to comply with the UN the use of the resources and facilities of a public school.

3 Other Alternatives Catholic classes or for their children not to participate. There There are other models for providing parental choice in was no coercion as there were 3 options. In areas where there education. One suggestion is to give all parents tuition is a wider variety of religions present in the school community, vouchers redeemable at any accredited school. This provides several options could be established. Unfortunately, this the same level of funding for most students. It would not assist successful model of religious education was terminated by the home-schoolers or those whose children attend non-accredited Minister of Education who took the position that the legal schools. cases precluded any form of religious instruction. The Ontario Court of Appeal in Elgin County only ruled on opt-out Option 2: Establish public minority schools religious instruction. The Court held that if only one class is based on religion offered from which students must be exempted, thus requiring The best model for establishing public, religiously-based, a religious statement, is coercive. No court has held that it is an minority schools is the system already receiving funding; infringement of religious freedom for a school to offer namely, the Roman Catholic school system. Catholic schools multiple single-faith religious education classes. receive 100% of the per pupil grant. They receive the full range of non-education services provided to the public system. This option would have great appeal in areas where there are Yet Catholic schools have been able to maintain their parents who wish their children to have religious education but distinctive religious character. Students are taught by teachers where there is not sufficient demand for a separate school to be who are of the Catholic religion. There are mandatory religion formed. There are many whose needs it would not address, classes and religious observances. All subjects are taught from however. Many religious adherents do not feel that it is the Catholic perspective. This is the most appropriate model appropriate to compartmentalize religion into a single, opt-in for funding all religiously-based schools. It is the only class. Rather, their religious beliefs compel them to provide an alternative that would meet fully the requirements of the UN educational environment that sees religion as an integral Human Rights Committee. component. Roman Catholic education is one example.

The province of Alberta has recently allowed religiously-based Option 4: Establish neutral and objective schools to operate alternative programmes within the public instruction in the general history of religions education system. However, following the Elgin County case and ethics in Ontario, the Ministry of Education took the position that We support the inclusion of religion as a subject in the public religiously-based schools could not be part of the public schools. By itself, however, this does not meet the education system. It therefore de-funded several religiously- requirements of the UN Human Rights Committee decision in based alternative schools that had been funded as part of the Waldman. A 1990 Ontario government Ministerial Inquiry public school system. The Ontario Court of Appeal found that recommended that some form of religious education be there was no obligation to fund such schools.15 The Courts did included in the public school curriculum. It expressed the not consider whether a system for funding denominational rationale very strongly: schools could be constitutional. An educational system cannot be neutral. If there is no religious The province of Saskatchewan has adopted a slightly different education or any form of religion in the schools, then secular model. Independent schools may make agreements with public humanism, by default, becomes the basic belief system. Secular school divisions for shared services and full per-pupil funding. humanism does not represent a neutral position. Priestly says 16 This approach may be more practicable for independent, that it “implies the abolition of religious options.” religiously-based schools as they are not numerous enough to have separate school boards. The more recent Ontario Royal Commission on Learning Option 3: Opt-in religious instruction Report, For the Love of Learning, notes, “There is no such 17 Opt-in religious instruction was successfully used in the North thing as value-free education.” It seems self-evident that if West Territories until recently. When the public and separate religion is excluded from public schools, religious values are school boards merged, they did so on the understanding that also excluded despite the presence of a sizable population of religious instruction in Protestant and Catholic dogma would religious adherents. be offered to students at the end of the day on an opt-in basis. There is great value in public education systems teaching Forms were sent out on the first day of school to be filled out young people in a society the fundamental beliefs, practices by the parents. Parents could opt for either Protestant or

4 and moral imperatives of the dominant religions in the society. Conclusions Even if the students reject the religion, they will at least have For too long, religious adherents have been subject to some measure of appreciation for religious adherents who are discrimination as they have struggled to bear the costs of attempting to live according to a religious moral code. educating their children in accordance with their religious Teaching about religion therefore fosters tolerance, which is beliefs while paying taxes to pay for the public education highly valued in Canada. For example, if people understand system. It is clear that religious education is very important to that the wearing of a veil by Muslim women is a sign of piety many Ontarians, as it is to many religious adherents across they are less likely to demean women who wear veils. Canada. Many parents are required by their religion to educate Religion is also part of identity, particularly cultural identity. their children at independent religious schools. These are not, Teaching about religion in public schools can therefore therefore, schools of choice but schools of necessity. enhance a sense of identity and the self-esteem of religious Christians, Muslim, Sikhs and Jews do not begrudge Roman adherents. Catholics funding for their schools but simply ask for the same choice, for the choice to educate their children in accordance Again, however, while this option gives religion some place in with their religious beliefs. the public education system, it does not address the needs of religious adherents who are required by their religion to While there are several models for funding currently being provide religious education for their children. utilized across the country, the only model that would meet the finding of discrimination in the UN Human Rights Committee Courses of action for the government of decision in Waldman is that of the Roman Catholic separate Canada school system. Only full funding extended to all schools that We recognize that education is a matter of exclusive meet tests of public accountability and provincial education jurisdiction of the provinces. Despite this, there are actions the standards will put non-Catholic schools on an equal footing federal government may pursue in relation to the UN Human with Catholic schools. Rights Committee communication. First, we note that the government of Ontario, along with all other provinces, signed We also recommend that religious schools that choose not to an agreement with the federal government that it would meet the requirements for full funding receive at least some implement the International Covenant on Civil and Political funding. At a bare minimum, all independent, religiously- Rights. The federal government can therefore call on the based schools should receive funding for non-educational government of Ontario, and by implication all other provincial services. These schools do, after all, provide a public service to governments with a constitutional obligation to fund Roman Ontario children; that is, providing education for children. Catholic schools, to comply with the Waldman communication. We further recommend that religion be re-introduced in the public system. It is the lack of religious education, both on a If the government of Ontario refuses to comply with the multi-faith and on a multiple single-faith approach, that leads Waldman ruling, the federal government can take action in the some parents to opt for alternative, religiously-based education form of increased tax credits or deductions for tuition paid to for their children. Enhancing the religious content in the public independent religious schools. This both sends a strong system will therefore encourage some religious adherents to message to the government of Ontario that its actions are continue to educate their children in the public system. unacceptable and assists religious parents who are required by their religion to send their children to these schools. This is a critical moment in Canadian history. This century ends, as did the last century, with strong allegations of Religious adherents have asked for such tax policy for many discrimination in education against religious minorities. The years. We understand that the federal government has been wounds of the Manitoba school crisis took many years to heal. reluctant to implement such a policy as it would appear to be In this crucial moment, we urge the governments of Canada interfering with an area of exclusive provincial jurisdiction. and the provinces to act justly and equitably to end Where, however, provincial education policy violates discrimination against religious minorities in education. We international law, federal action is necessary to encourage urge provincial governments to extend equitable funding to provincial compliance. minority religious schools.

5 Endnotes 1 Adler v. Ontario, [1996] 3 S.C.R. 609. 11 Education About Religion in Ontario Public Elementary 2 Bal v. Ontario (1995), 21 O.R. (3d) 681 (Ont. Ct. (Gen. Div.); Schools, Ministry of Education (1994). aff’d (1997), 34 O.R. (3d) 484 (Ont. C.A.). 12 [1987] 1 S.C.R. 1148, 40 D.LR. (4th) 18, at 59 (D.L.R.). 3 [1986] 2 S.C.R. 284. 13 at para. 48. 4 H.H. Walsh, The Christian Church in Canada, (Toronto: 1968), 14 Ontario Ministry of Education, October 31, 1998. at 238. 15 Bal at 705-9. 5 30 & 31 Victoria, c. 3 (U.K.), now the Constitution Act, 1867, 16 The Report of the Ministerial Inquiry on Religious Education in R.S.C. 1985, App. II, No. 5. Ontario Public Elementary Schools (Chairman: Glenn A. 6 Daly v. Ontario (1999), 44 O.R. (3d) 349 (C.A.), Adler and Bal. Watson), (Toronto: 1990), at 57, quoting J.G. Priestly, 7 Zylberberg v. Sudbury Board of Education (Director) (1988), “Religion, Education and Spirituality” in Religious Education 65 O.R. (2d) 641 (C.A.) Belongs in the Public Schools, E.L. Johns, (ed.), (Toronto: 8 Canadian Civil Liberties Association v. Ontario (Minister of 1985), at 13. Education) (1990), 71 O.R. (2d) 341 (C.A.) (known as Elgin 17 Royal Commission on Learning, For the Love of Learning, County). (Toronto: 1994), v. I, at 60. 9 ibid, at 377-8. 10 R.R.O. 1990, Reg. 298 and Policy Memorandum 112. It should be noted that the Education Act, s. 51 provides for religious instruction “as the pupil’s parent or guardian desires”. In practice, no such religious instruction is offered.