Ontario’s highest court: public education is not neutral

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28 Nov 2017 Ontario’s highest court: public education is not neutral

By John Sikkema

In an important ruling, a Christian father lost his religious freedom claim against the Hamilton School Board. But it’s not all bad news. The main reason for E.T.’s loss (the father’s name is redacted to his initials) was the breadth of his claim and lack of evidence to support it. He lost on the facts, not the law.

E.T. wanted school staff to give him notice whenever “moral relativism”, “environmental worship”, “occultic principles”, “sex education”, or “portrayals of homosexual/bisexual conduct and relationships and/or transgenderism as natural, healthy or acceptable” came up in his children’s classes, so that he could decide whether to withdraw his children from those classes.

The Board offered to excuse E.T.’s children from parts of the elementary school curriculum that discretely dealt with “sexual health and development”. But the Board refused to accommodate his request to be given notice any time one of the items on his list might arise in the classroom.

For one thing, the Board said, it would be highly impractical to accommodate E.T.’s request, if not impossible, given the breadth of E.T.’s list and the vagueness of some of the items on it, like “moral relativism”. But more importantly, the Board said that giving notice and potentially having E.T.’s child leave a classroom every time of these matters came up would undermine its commitment to “inclusive” and “non-discriminatory” education.

School board says allowing a student to leave class discriminates against other students

How could allowing a child to leave class amount to unlawful discrimination? According to the Board, if one of E.T.’s children left class to avoid a lesson or discussion regarding sexual orientation or gender identity, “The message to classmates… is not tolerance but rather that family structures or discussion of sexual orientation will require the withdrawal of a student from the classroom. This cannot be reconciled with the Board’s legal obligations with respect to human rights and tolerance.”

In other words, the Board is saying it has a legal obligation to keep children in the classroom when such matters are discussed to avoid giving anyone the impression that some people might disagree with what is being taught. With such an approach to primary and secondary education, the Lindsay Shepherd incident at Wilfred Laurier University should not surprise us.

Ironically, in 1990 when Ontario public school curricula contained a two-week religious education program, and students could be excused from class if they or their parents had a problem with it, the Ontario Court of Appeal ruled that such a policy was unfair to a student who asks to leave. Therefore, the program, though it allowed exemptions, was struck down as unconstitutional because it emphasized Christianity. The Court noted the importance of appreciating the perspective of the student who feels singled out when he asks to leave class. In E.T., the rest of the class is supposedly harmed when a classmate leaves the room.

The Board’s argument in E.T. was explicitly endorsed by Justice Sharpe: “Exempting some students on a regular basis from classroom discussions touching on diversity, inclusivity and acceptance, within a public school program designed to promote precisely those principles, would run a serious risk of endorsing the non-acceptance of students of other family backgrounds, sexual orientations, gender expressions and gender identities.”

Notice the language used. Exempting a student from “discussions” about “acceptance” would run the risk of “endorsing non-acceptance”. That obscures what is really going on. If “acceptance” here meant accepting that all people are to be treated with respect, E.T. (like any Christian parent) would not have a problem. Rather, “discussions” about “acceptance” means accepting gender identity as a concept and accepting all family structures and sexual predilections as equally good.

Moreover, this line of argument – that respecting a person’s (or institution’s) freedom means endorsing the views of that person or institution – threatens our most fundamental freedoms. If the state doesn’t shut down a Christian school, is it thereby endorsing Christian doctrine? No. Nor is the state endorsing your beliefs if you are permitted to leave a classroom. We see the same argument in the Trinity Western University case – that accepting graduates from TWU’s law school would amount to endorsing TWU’s beliefs regarding sexual ethics.

Thankfully, the majority judgement in this case, written by Justice Lauwers (with Justice Miller concurring), does not endorse this argument. Justices Lauwers and Miller do agree with Justice Sharpe on the outcome of the case, but they agree for evidentiary reasons.

No evidence that E.T.’s freedom was violated

There are two ways E.T. could have won, as Justice Lauwers explains. First, he could have shown that the purpose of the school’s “inclusivity programming” was to undermine Christian beliefs. However, as the majority found, “The appellant has put forward no expert evidence that the [program] has such a purpose.” (I’m not sure what such evidence might have added.)

Second, E.T. could have shown that it did so in effect – that is, he could have demonstrated through evidence that the program as implemented “undermined a parent’s ability to transmit religious faith”. He failed on this account as well. Though his children remained in public school for years while his dispute with the Board was going on, E.T. put forward “no evidence that his children have experienced negative teacher ‘value judgments’ of the sort he fears”.

Notably, in the 1980s cases challenging Christian components of public education, to have those components struck down it sufficed to show they emphasized or presented Christianity as true. In E.T.’s case, however, it was evidently not enough to show that new programming is humanist or relativist. Moreover, in the earlier cases, parents challenging the Christian elements of public education did not have to show that it substantially undermined their freedom to raise their child as an atheist or agnostic. Such programming was considered unconstitutional because it was purposefully Christian. And in this case, of course, E.T. was not trying to invalidate the curriculum, but to have his children be given special accommodation.

The judges in E.T. were bound to follow the Supreme Court of Canada’s ruling in S.L. (2012). In that case, the SCC found that there was not enough evidence to show that Quebec’s Ethics and Religious Culture program interfered with parents’ ability to pass on their religious beliefs to their children, despite allegations that the program taught relativism. At that time, the curriculum was published but had not yet been implemented in classrooms. The SCC clarified that Quebec’s curriculum might violate freedom of religion in its implementation, but that remained to be seen. In E.T.’s case, what was needed was evidence that the programming “undermined a parent’s ability to transmit religious faith” in practice.

The judges agreed that such evidence was lacking. But the majority and minority opinions discuss some important legal issues which are very much alive today.

All judges agree: education is not neutral

Though Justice Sharpe says that “students are to be provided with learning materials that are bias-free and that reflect diversity… including diversity of sexual orientation and gender identity”, he states later: 

Nor do I accept E.T.’s suggestion that the Board could or should ensure that discussion of matters such as sexual orientation and gender identity are discussed purely as matters of fact rather than as matters of ‘value judgement’. The Board has a statutory mandate to provide an inclusive and tolerant educational environment. […] Equality, inclusivity and acceptance are values, not facts, and it is unrealistic to expect teachers to provide a learning environment that is truly welcoming to all students in a value-free manner.

Of course, as Laurier University faculty recently illustrated, values of “inclusion and acceptance” can be used to censor facts or perspectives that offend progressive sensitivities. But the point remains the beliefs or “values” of the school and its instructors largely determines which facts or arguments are presented or emphasized.

On this point, Justices Lauwers and Miller agree: “Public education has never been morally neutral.” They call the Education Act’s mandate to promote inclusion and acceptance and the resulting programming “an iteration in inculcation”. Further, Justice Lauwers writes, “The prescribed methods are aimed at securing acceptance of the morality of the Ministry’s concept of inclusion” (emphasis mine). He even quotes approvingly from the 1990 Report of the Ministerial inquiry on Religious Education in Ontario Public Elementary Schools, which states:

An educational system cannot be neutral. If there is no religious education or any form of religion in the schools, then secular humanism, by default, becomes the basic belief system. Secular humanism does not represent a neutral position.

And,

In every relationship, and especially in that between a teacher and a student, there is something that can be referred to as religious education. It is the transmission of ideas, or answers to significant life-related questions, or it is the exemplification of values by ‘precept and example.’ There is no way to avoid such an interaction and the learning experience associated with that relationship over a period of time.

These excerpts come close to saying what many Reformed thinkers have said: Life is religion. Thus there can be no religiously or morally neutral education. It is contradictory to say that teaching Judeo-Christian morality is per se constitutionally invalid but that teaching secular humanist or other values is acceptable. No school, including public schools, can be neutral. Justices Lauwers and Miller therefore do not mandate that the public school be neutral or notify E.T. of any non-neutral components.

“Public education has never been morally neutral” – Ontario Court of Appeal

Had Justices Lauwers and Miller presided over the 1980s-type cases, which challenged the teaching of Christian morality, I suspect they would not have invalidated such programming on the sole basis that it taught religious morals. In a sense, all morality is religious, because all determinations of right and wrong are rooted in a view of the ultimate source and meaning of life. Today, of course, these judges can do nothing to alter the approach taken in the 1980s, which so easily removed the remaining ostensibly Christian elements from public education.

Majority reaffirms parental authority over children’s education

Justice Lauwers declares that “the right of parents to care for their children and make decisions … about education is primary, and the state’s authority is secondary to that parental right.” And, “The law is clear that the authority of the state to educate children is a delegated authority.” He is saying nothing new here. But his clear and forceful affirmation of this principle is welcome and needed in a time when governments seem intent on challenging it.

Justice Lauwers quotes from several leading Supreme Court of Canada decisions. The SCC in 1995 noted that parents’ freedom of religion “includes the right to educate and rear their child in tenets of their faith.” In 1986, in a homeschooling case, SCC Justice La Forest wrote, “Those who administer the Province’s educational requirements may not do so in a manner that unreasonably infringes on the right of the parents to teach their children in accordance with their religious convictions.” In 2015, SCC Justice Abella affirmed that “an essential ingredient of the vitality of a religious community is the ability of its members to pass on their beliefs to their children, whether through instruction in the home or participation in communal institutions.”

Although E.T. lost his appeal, Justice Lauwers acknowledges the great significance of the interest at stake: “the formation of the character and religious faith of his children.” Therefore, the court must “engage deeply and sympathetically in the ‘agonistic’ analysis to fully understand the religious claim in the claimant’s own terms”.

Justice Lauwers acknowledges E.T.’s fear that his children might be persuaded to abandon the insights of their religion in favor of the moral positions taken in the school programming as a legitimate fear. “The mores contained in the [program] can conflict with parental religious views, particularly if it is premised on the proposition that true acceptance of another person can only be achieved by embracing all of their self-understandings.” This statement gets to the heart of what is at stake in disputes such as those surrounding Trinity Western University’s proposed law school or Alberta’s Bill 24, An Act to Support Gay-Straight Alliances. It is a religious imposition to require that people affirm someone’s self-understanding in order to operate an accredited school.

The majority in E.T. made it clear that E.T.’s loss did not mean that the court was giving the program in question “a clean constitutional bill of health”. “It would not be hard … to imagine a teacher actively using both the force of personality and approved curriculum materials to undermine the faith commitments of students, which could make the provision of accommodation necessary,” Justice Lauwers writes. “But that is not the case here.”

It can be argued that the policy and curriculum documents themselves should have been sufficient to establish an infringement of freedom of religion. But E.T.’s challenge was broad, and Justices Lauwers and Miller are not activist judges. They are probably not eager to order teachers to accommodate E.T.’s difficult request or issue instructions on how to do so. Parents should not expect their children to get a neutral education at a public school, even with some accommodations. However, the legal principles which the majority sets out in this decision are sound and will likely prove very important in the years to come.

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