Election campaigns tend to polarize debate into simplistic choices. These become wedge issues that define electoral responses. Ontario Conservative Leader John Tory’s mentor, Bill Davis, won the 1971 provincial election by arguing that fully funding Catholic schools was wrong. It was a classic wedge issue.

The ongoing controversy in the secular press over Tory’s promise to provide funding to faith-based schools suggests that it may become a wedge issue in the upcoming provincial election. This would be most unfortunate. The creative approach of asking the much-loved and respected Bill Davis to chair a commission to look into the ways and means did not have the desired effect of minimizing the issue. The use of inflammatory “segregation” language by Premier Dalton McGuinty suggests that it may become a wedge issue just like the promised repeal of the equity in education tax credit in the last provincial election. Even though more than 80 per cent of Ontario voters no longer have children in schools, education still seems able to galvanize people.

Is there another approach to the issue of religion in education than the stark choice of full public funding of faith-based schools, yes or no?

How did we get here?

The last great increase in the number of private religious schools in Ontario occurred after two key decisions of the Ontario Court of Appeal which found that the public system infringed freedom of religion under the Canadian Charter of Rights and Freedoms by being too Christian. The 1988 Zylberberg case struck down the requirement that a public school open or close each school day with a religious exercise. The 1990 Elgin County case struck down the requirement that in each public school two half-hour periods per week be devoted to religious education. Rather than finding a way to work within the confines of the charter, then Premier Bob Rae’s NDP government simply abolished religion in the public schools, permitting only education about religion.

Many parents felt disenfranchised by what they saw as a major step toward secular humanism. They established independent Christian schools throughout the province.

Had the system done a better job of accommodating them, it is likely there would not have been such an exodus from the public system. There is every reason to believe that some modest efforts to accommodate religion in the public system would be well received and effective in reducing the flow of children to private religious schools. The Ontario Public School Boards’ Association has asked for a loosening of the legislation, but no government has yet agreed. In a time of significant enrolment decline, it is time to revisit this issue.

What are the options?

The aspirations of parents who want more diversity in public education vary. Some would only be content with separate schools. Others would find separate classes to be sufficient. Still others would be satisfied if their children could opt out of certain classes. Others would like nothing more than an opportunity to teach religion to children in public schools during off hours.  

Any time that accommodation is an issue, creativity is necessary. But there can be no flinching from the fact that the accommodation of differences, particularly religious differences, does require a degree of separation, which is protected “social space.” That means, of course, accommodating religious views that may be unpopular.

A number of possibilities exist, ranging from full funding for separate faith-based schools to other arrangements of lesser public expense.

Separate schools

The option of separate schools is worth considering where numbers warrant. It cuts against the idea that children should be educated in common schools as a form of “common acculturation experience,” to borrow Dr. Bernard Shapiro’s expression. It does, however, best provide for parental choice for those parents who want something that the common school does not or cannot provide, for example, pervasive religious influence across the curriculum in the Catholic tradition. The concerns behind the common acculturation goal could largely be addressed through curriculum standards.  

There is no hard evidence that separate schools cost more money than public schools. The most costly elements of education are the building and the school staff. Whether the school is public or Catholic or Jewish should have no fundamental impact on the economics of its operation. The “numbers warrant” condition should address the cost concerns.

Separate Classes

This option would see the creation of separate classes for certain subjects including religion. It would permit religious instruction and not just education about religion. There is a “numbers warrant” aspect to this option too, since it would be impractical if there were too few students for some classes.

The advantage of this option is that it is a halfway house between a common acculturation experience in one school which many advocate, and entirely separate schools, which some would call divisive. It would not be sufficient, however, for those parents who want religious influence to permeate the entire curriculum.

There is nothing in the constitutional cases on freedom of religion that would prohibit public boards from providing separate classes if they had legislative authority, provided that the classes otherwise respect charter values and are provided on a fair and non-discriminatory basis.

This option is not free from difficulty in administration. There will be debates about how many children there must be in order to warrant a separate class. If virtually all of the children in the school opt in to the separate class, does that unconstitutionally stigmatize the children who do not attend the class? Or, if the separate class is very small, does it stigmatize those who have opted in?

A modest variation would be the provision of certain classes in physical and health education in which the students are separated by sex. This would accommodate faith groups whose requirements for modesty would not permit girls and boys to be together in those settings.  

Opt-Out Rights

This option would give parents the right to have their children removed from classes in which material that is objectionable to parents is being taught, for example, the moral equivalency of heterosexual and homosexual activity. An opt-out right could not be absolute. One could argue, for example, that the obligation to take a civics class should be mandatory and opting out of it entirely should not be possible. There needs to be a debate about the limits of opting-out rights.  

If some or all of these options are made available it is likely that the parental appetite for separate faith-based schools would decline and many students would choose to remain within a public system that was friendly and accommodating to religions.

Historically Catholics have seen parental choice in education to be a human right related to freedom of religion. This was the claim that gave rise to the Roman Catholic separate school system in Ontario in 1841 and which sustains the system today. What we have for ourselves we cannot deny to others.

Parents need the support of the school system to be able to transmit their faith from one generation to the next. This is often among their deepest aspirations and it behoves the province to respond positively.

But that provincial response need not be all or nothing. Allowing public boards to provide real accommodation for religious education, in addition to public funding for faith-based schools, is a middle ground worth exploring outside of the heat of an election campaign. We owe it to anxious parents not to allow this issue to be turned into a wedge for electoral purposes.

(Lauwers is a partner with the Toronto-based law firm Miller Thomson. He has done considerable work on constitutional issues regarding education and the place of religion.)