February 8th, 2018 U of A Debate (video and text of David's remarks)

Presentation to the Debate/Conversation Organized by the Centre for Constitutional Studies (the University of Alberta)

Thursday, February 8th, 2018

Room 150, the Telus Centre for Learning

David King

 

Here is the video of the debate: https://www.youtube.com/watch?v=KTyrCrpWJEU

"The provincial government, essentially acting alone, can disestablish separate school education:  it has the capacity.  Procedurally the way is quite straight forward.  In the last 21 years, two provinces – Quebec, and Newfoundland and Labrador have amended their respective provincial constitutions to disestablish denominational school systems.

It is probably correct to say that a constitution should not change often.  On the other hand, if a community is to remain strong and vital in real time, sometimes constitutions need to change.  There was a day when Alberta did not own the natural resources beneath its soil.  There was a day when women did not have the right to vote.  We can sometimes be thankful for change.

It has been suggested that it would be ‘wrong’ for the majority to terminate a constitutional right of a minority.  My response is that we need to be very careful about ‘rights’:  they are not all of one kind and sophism has been used to cause confusion and uncertainty by conflating the different meanings of ‘right’.  Not all constitutional rights are human rights:  many are the delivery of a political compromise, and the Constitution of Canada is full of such.  Such ‘rights’ have a limited shelf-life.  They only persist for as long as there is a strong sense that they are vital to the very being of the federation.  Our federation will not founder when our two systems are unified.

More significantly, sometimes the majority must protect the rights of a minority of one.  Sometimes the majority must end the privilege of a significant minority.  There was a day when only land-owners could vote:  they were privileged.  There was a day when South Africa experienced ‘separate but equal’ development:  whites were privileged.

In the context of justice, privilege is an injustice.

We need the courage to look past what is politically correct in order to discern what is right.  We need the courage to hear rhetoric and emotion without absorbing it or succumbing to it.  We need to think deeply, speak carefully, and act faithfully in search of a better democracy with less privilege, more equity, and more justice for all."

Thank you.

 

(FULL REMARKS BELOW)

Presentation to the Debate/Conversation Organized by the Centre for Constitutional Studies (the University of Alberta)

Thursday, February 8th, 2018

Room 150, the Telus Centre for Learning

 

David King

 

Be it Resolved THAT Alberta should change its dual school system of public and separate schools to one public school system.

 

The debate is not about capacity – how unification might be accomplished.  The debate is about whether or not it ought to occur.

 

I offer eight arguments in favour of the proposition.

 

The first argument for dis-establishment and co-habitation is that the continued existence of separate school education is contrary to the very spirit of the Canadian Charter of Rights and Freedoms.  The Charter itself acknowledges this, at section

29:     Nothing in this Charter abrogates or derogates from any rights or privileges guaranteed by or under the Constitution of Canada in respect of denominational, separate or dissentient schools.

 

In other words, separate school education continues notwithstanding the Charter of Rights and Freedoms, not in fidelity to it.

 

The second argument for unification is that separate school education is not an expression of a human right.  Particularly, separate school education is not a manifestation of freedom of religion.  Section 29 is not protecting one human right that – for some reason -- has precedence over others.  Separate school education is a ‘politically granted’ right that is available to only a few and properly characterized as a privilege.  It is a denominational right, not a human right.  It is, therefore, a privilege.  As some are privileged others, who are denied the same privilege, are disadvantaged.

 

It seems clear to me that the right to separate school education is most certainly not a “human right”.  Separate school education is not a right enjoyed by people of other faiths in Alberta.  It is not a right enjoyed by Catholics, let alone universally, in 7 other provinces.  I don’t hear any argument that the right should be extended to other faiths, in Alberta or in any other province.

 

As a segue from one argument to the next, all of us need to remember that the politically granted privilege was intended to resolve political tensions 2,000 miles away, 250 - 150 years ago.  The original ‘marriage’ was not between two languages, or two religions:  it was between two cultures.  Religion was only important in the context of culture and government involvement with, or support for, education was unimaginable.  Over time cultures change.  The B and B Commission of the last century was about bilingualism and bi-culturalism, not bi-denominationalism.  By the mid-20th century the focus had shifted from religion as the vital carrier of culture to language.   Consequently, the Charter of Rights and Freedoms further entrenched language as the carrier of culture:  it gave separate school education a pass.

 

The third argument for unification is that the political justification for separate school education has completely disappeared, as evidenced by two realities.  One -- the first party to the political arrangement – Quebec -- has already abandoned denominational separate school education, because Quebecois consider it is obsolete and irrelevant to their current interests and concerns.  Quebec, which insisted upon separate school education in Ontario and Quebec, as a condition of Confederation (and then in the Northwest Territories and the new provinces), disestablished separate school education in its own jurisdiction in 1997.  Given that the compact was originally between Francophones and Anglophones (not Protestants and Catholics), maintenance of the compact now depends upon section 23 of the Charter, and guarantees for Francophone education.

 

The second reality is that institutionalized government prejudice against Roman Catholics is non-existent today (and has been for years) and, in my view, is highly unlikely to re-emerge.

 

In a sense, the compact that established separate school education was an affirmative action program.  In 1759 it was illegal to be a Roman Catholic in the British Empire, and Roman Catholics could not hold public office.  In the mid-19th century many Protestants spoke publicly of using public school education as a means of assimilating the Francophone population of Quebec and Ontario.  With its various pronouncements from 1759 to 1841, the British Empire was not trying to win the loyalty of Catholics:  it was trying to win the loyalty of Francophones who happened to be Catholics.  I would say that the ancient affirmative action program was either successful or its objectives were achieved by other means.  In any case, there is no justification for maintaining an affirmative action program, at cost to the rights of others, when the objective has been achieved.

 

Some might make the argument that what began as an affirmative action program is now recognized by its beneficiaries as an essential manifestation of the human right that is known as freedom of religion.  In that case, one would expect the Roman Catholic Church, which is passionate about social justice, to be arguing that what Catholics enjoy should be enjoyed by all faiths.  I don’t hear that argument being made.

 

The fourth argument for unification is that separate school education represents an entanglement of Church and State.  I favour the separation of Church and State, which is the general direction in which our society is moving.  Most provinces don’t have a State Church:  Alberta, along with Saskatchewan and Ontario do have a State Church.  Entanglement creates many practical problems, which we can explore in the conversation that will follow.

 

My first argument in favour of unification was that separate school education is contrary to the Canadian Charter of Rights and Freedoms.  This is not merely a conceptual argument:  it has direct and negative implications for individual citizens.  So my fifth argument is that separate school education compromises the Charter rights of Canadians who have lost jobs in separate school systems on grounds that would otherwise be indefensible, or who have been challenged in their attempts to start student clubs, on grounds that would otherwise be indefensible, or who have been denied the opportunity to stand for election as Trustee of the system their child is enrolled with, on grounds that would otherwise be indefensible.

 

As the Constitution itself sets out, “the rights and freedoms set out (therein should be) subject only to such reasonable limits, prescribed by law, as can be demonstrably justified in a free and democratic society.”  In my view separate school defenses of some of their practices would not succeed except for section 29 of the Charter.  Such defenses could not be demonstrably justified in a free and democratic society.

 

My sixth argument for unification is that the duplication of services and the fragmentation of communities is undesirable.  From a strictly pragmatic perspective, disestablishment would allow the community to re-direct considerable resources, away from administration and system support and toward the classroom and direct support for students.  Disestablishment is not a money-saver, but it is a money re-director, to the benefit of students.

 

My last two arguments are about education in a civil democratic society.

 

I believe that a public school system should be a deliberate model of a civil democratic society.  In that case, a public school system needs to be deliberately, consciously and consistently inclusive, without pre-condition of any kind.  It needs to be inclusive in the classroom and in the governance of the system.  It needs to treat inclusion as both a right and a responsibility.  It needs to celebrate inclusion as the basis of diversity, and it needs to treat diversity as a strength to be cherished rather than as a weakness to be eradicated.

 

Basically, I would like to see little Catholic kids sitting in the same classroom as little Protestant kids, and little Jewish kids, and little First Nations kids, and the children of the rich, and the poor and the most recent refugee arrival.  I would like to see all parents wrestling, together rather than in two different electorates, with the challenge of providing the best possible education for all kids.

 

Believing in democracy, I do not believe in subsidiarity, which is the organizational and operational basis of separate school education and of the Roman Catholic Church.

 

Kevin Feehan was, for many years, legal counsel to the Alberta Catholic School Trustees’ Association.  In that role he wrote a regular column for the ACSTA periodical (the Catholic Dimension).  In the fall, 2008 Issue, Kevin concluded a column with these words:

“…let Catholic education be “separate”, different, radical and based upon a concept of education fundamentally opposed to that of the public school system.”

 

That is the role separate school education sets for itself in Alberta.

 

It starts with a preference for exclusion, with selective, and limited inclusion to follow, at the discretion of the system.

It works to be a deliberate model of a doctrinal faith community, rather than a deliberate model of a civil democratic society.

 

It is organized on the basis of subsidiarity rather than democracy.

 

A strong and vibrant democracy should certainly be able to  deal with such propositions.  However, I see no reason why a democracy should privilege such proposition.

 

Let me close with one comment about capacity and one about legitimacy.

 

The provincial government, essentially acting alone, can disestablish separate school education:  it has the capacity.  Procedurally the way is quite straight forward.  In the last 21 years, two provinces – Quebec, and Newfoundland and Labrador have amended their respective provincial constitutions to disestablish denominational school systems.

 

It is probably correct to say that a constitution should not change often.  On the other hand, if a community is to remain strong and vital in real time, sometimes constitutions need to change.  There was a day when Alberta did not own the natural resources beneath its soil.  There was a day when women did not have the right to vote.  We can sometimes be thankful for change.

 

It has been suggested that it would be ‘wrong’ for the majority to terminate a constitutional right of a minority.  My response is that we need to be very careful about ‘rights’:  they are not all of one kind and sophism has been used to cause confusion and uncertainty by conflating the different meanings of ‘right’.  Not all constitutional rights are human rights:  many are the delivery of a political compromise, and the Constitution of Canada is full of such.  Such ‘rights’ have a limited shelf-life.  They only persist for as long as there is a strong sense that they are vital to the very being of the federation.  Our federation will not founder when our two systems are unified.

 

More significantly, sometimes the majority must protect the rights of a minority of one.  Sometimes the majority must end the privilege of a significant minority.  There was a day when only land-owners could vote:  they were privileged.  There was a day when South Africa experienced ‘separate but equal’ development:  whites were privileged.

 

In the context of justice, privilege is an injustice.

 

We need the courage to look past what is politically correct in order to discern what is right.  We need the courage to hear rhetoric and emotion without absorbing it or succumbing to it.  We need to think deeply, speak carefully, and act faithfully in search of a better democracy with less privilege, more equity, and more justice for all.

 

Thank you.


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