Despite the fact that international rights declarations signed by Canada spell this out, it is not clearly stated in our 1982 Charter of Rights and Freedoms. Nevertheless, Canadians have been implicitly aware of this right throughout their history. Indeed, debate over this forms part of our national fabric. In 1896 the federal Conservatives were brought down by the Manitoba Schools controversy.

What do the courts say? Sometimes, they defend this right clearly. In 1925, the U.S. Supreme Court stated, in language quoted by our own top court 70 years later, that “the child is not the mere creature of the state: those who nurture him and direct his destiny have the right, coupled with the high duty” to prepare him for additional obligations.

It all boils down to this: Whose children are they, the parents’ or the state’s?

The parents are the primary educators. “Parents have a prior right to choose the kind of education that shall be given to their children,” says the Universal Declaration of Human Rights. Parents have a right, John Paul II explained on Sept. 12, 1984, to more than 2,000 educators in St. John’s, Nfld., “to choose according to their convictions the kind of education and the model of school which they wish for their children.”

Whose right could it be, if not theirs? The child’s? By definition, children are under age, and their liberty is being shaped under the tutelage of their parents. As children come of age, they will take freedom into their own hands. The state’s? Only in a subsidiary fashion. The state should help organize public schooling. It should ensure that parents have a say in that public schooling, regarding the fundamental viewpoints that their children will receive, e.g. in religion, ethics and sex education. It should also find ways to co-operate with and regulate private schools.

Does the state, then, not have its own right and duty to use the education system to help form students so that they can be contributing members of their society with a common set of values and understandings, e.g. diversity and whatever else the state deems important? Yes, but democratically. And democracy means not being afraid of pluralism. Understandings can and should be reached on the rights of the parents so that excessive intervention by the state does not threaten freedom and initiative (see Catechism of the Catholic Church, no. 1883). The key to these understandings is the principle of subsidiarity, by which “a community of a higher order should not assume the task belonging to a community of a lower order and deprive it of its authority. It should rather support it in case of need” (Compendium of the CCC, question 403). The catechism adds that the parents’ fundamental right to choose schools which correspond to their convictions should be guaranteed by public authorities who should ensure “the concrete conditions for its exercise” (CCC, no. 2229). Does the state have to fund, at least partially, the education of children in the values of their parents and of the state? Yes: the money is the taxpayers’, the state merely redistributes it.

That Mom and Dad should have a say as to whether Jane and Jacques are taught right and wrong in English or in French is explained in international documents such as the UN’s 1960 Convention Against Discrimination in Education and the 1966 International Convention on Economic, Social and Cultural Rights, which asks for “respect for the liberty of parents (:) to choose for their children schools, (:) and to ensure the religious and moral education of their children in conformity with their own convictions.”

If only wealthy parents could exercise the right of educating their children according to their wishes, the well-to-do would be “more equal” than their poorer neighbours. It would be a hollow right indeed. Who has not witnessed heart-wrenching cases of families who must pull their children out of independent schools due to financial reasons? These same parents pay school taxes: a clear injustice.

The hard-won rights of Ontario Catholic parents (the ones lost by Manitoba parents more than a century ago) should be seen in this light. It would be a step backward, not forward, to eliminate funding from the Catholic system.

(Mignone, a priest of the Prelature of Opus Dei, is the Catholic chaplain at Simon Fraser University, Burnaby, B.C. He has a master’s in law (McGill) and a doctorate in canon law (Pontifical University of the Holy Cross). His doctoral thesis is entitled “The Constitutional Rights of Parents in the Education of Their Children, in Canada.”)