Alarming erosion of Ontario school system by Ministry of Education, part two | Marvin Zuker

By Marvin Zuker

Law360 Canada (September 30, 2022, 11:08 AM EDT) --
Marvin Zuker
Every person has the ability to make a meaningful difference, if they want to…but each of us have even greater opportunities, ability and capacity to do what many cannot. You have the power to provide resources, create programs and change laws and policies that could result in meaningful and lasting change, so that this generation and future generations won’t go through what so many women, men, and children are going through on a daily basis today.

The recognition that we share another’s pain is the foundation of empathy, and empathy goes a long way toward creating a world without “us” and “them.” But it does not go far enough; one can empathize with another’s torment but still believe they are “them.” As a general rule, education in North America falls under the jurisdiction of the individual states and provinces. In the United States, this distribution of jurisdiction is by operation of the Tenth Amendment to the Constitution, which states that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the states respectively, or to the people.” Because the Constitution does not list the regulation of education as a federal power, or prohibit state control, it is an area reserved to the states.

In Canada, s. 93 of the Constitution Act, 1867 provides that “[i]n and for each Province the Legislature may exclusively make Laws in relation to Education” subject to certain provisions relating to the establishment of Protestant and Roman Catholic schools. However, exclusive state or provincial control is not an absolute rule in either country. In Canada, the same section of the Constitution Act, 1867 provides that an appeal may be made to the Governor General in Council (i.e., to petition the federal cabinet for the safeguarding of the rights granted by this section) and that, should any relevant decision by the Governor General in Council not be followed, the Parliament of Canada is authorized to make any remedial laws that it sees fit. Furthermore, the Canadian Charter of Rights and Freedoms re-affirms the primacy of specific rights of Roman Catholic and Protestant denominational, separate, or dissentient schools (s. 29), and also recognizes the rights of the French or English language minority in a province to receive instruction in that language (s. 23).

In the United States, a federal Department of Education provides administration and co-ordination of federal funding for education, collects data on schools, and enforces federal privacy and civil rights legislation affecting education. 

The right of parents to direct their child's education free from undue government intrusion is enshrined in several instruments of international and constitutional law, including the following three. The Universal Declaration of Human Rights, Article 26, Paragraph 3 states that “[p]arents have a prior right to choose the kind of education that shall be given to their children." Similarly, the European Convention on Human Rights, Article 2, states that “[n]o person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.” In the United States, parents have a due process right under the Fourteenth Amendment to the Constitution to enrol their children in approved private and parochial schools.

The public school system is often portrayed as an agent of the government and therefore an instrument of propaganda and social control. This impression, which is often buttressed by simplistic comparisons to the aims of education systems in Fascist and communist countries, is frequently used as an argument whenever someone levels a criticism toward public schooling. Although it is clear that the school curriculum is a controversial subject on which there will be diverse opinions in society, it does not follow that schools are merely a snake's nest of propaganda where the sole aim is to mould students into a standard, government-approved social model.

In education systems throughout the Western world, there is a dichotomy between publicly funded state schools (referred to generally as public schools) and privately funded independent schools (referred as private schools). As a general rule, both meet the requirements of a legally recognized formal education and, whereas the former tend to be more closely regulated by the state than the latter, both typically follow a formal structure, with private schools having various equivalencies with public schools, often to the point of following officially approved curricula and their students receiving government accreditation. For many, the opportunity to send one’s child to a private school represents increased choice in the matter of the education that they give their child. 

The social issues that cause a parent to distrust the public system can vary, but in the case of conservative Christians they will already include a negative perception of such modern aspects of the secular public curriculum as progressive sex education and tolerance for LGBTQA culture, which represent values at odds with the teachings of their religious group.

In order to attain their ideological goals for their children’s education to their perceived fullest extent, many parents resort to either homeschooling or educational institutions that cater to their particular philosophies and ideologies. However, the latter option is restricted for many by the fact that private education has to be paid for out of the family's pocket. The idea of providing parents with public funds specifically for the purpose of exercising the option to send their children to private schools is seen by some as an appropriate remedy to this problem.

This is the second part of a four-part series. Part one: Alarming erosion of Ontario school system by Ministry of Education.

Marvin Zuker was a judge of the Ontario Court of Justice, where he presided over the small claims, family and criminal courts from 1978 until his retirement in 2016. He is associate professor at Ontario Institute for Studies in Education/University of Toronto, where he teaches education law. Zuker is the author and co-author of many books and publications, including The Law is Not for Women and The Law is (Not) for Kids.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author's firm, its clients, 
The Lawyer’s Daily, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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