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| Marvin Zuker |
• Private school vouchers: Government grants are given to parents for the specific purpose of paying for private school tuition.
• Education savings accounts: Public funds are placed in a bank account, allowing parents to offset education-related costs.
• Tax credit scholarships: Tax credits are provided to parties who give donations to organizations that provide scholarships that enable students to attend private schools.
Ontario flirted in 2001 with a voucher-type program. Despite an earlier promise not to introduce private school vouchers, the Progressive Conservative government of Premier Mike Harris got around the letter of that promise by announcing a $300 tax credit aimed at enabling parents to send their children to private schools.
This came after a period of radical reforms to the Ontario public school system consisting of downsizing and restructuring school boards, eliminating Ontario’s unique OAC year (Ontario Academic Credit or grade 13), and placing greater expectations on teachers and students in an apparent effort to portray the public system as a failing one and creating in society a perception of polarity between the public system and private schools. Enabling legislation was introduced in the form of the Responsible Choices for Growth and Accountability Act (2001 Budget), 2001 but this item did not make it into the legislation as passed. After Harris resigned, however, the initiative came to fruition under his successor, Ernie Eaves, and the relevant tax credit was adopted by regulation in 2003. However, a new Liberal government under Premier Dalton McGuinty repealed the program in 2010.
By promoting private schools as centres of excellence in education, and by shifting public funds to these institutions, one runs the risk of creating a two-tier system in which public schools are seen as second-rate. This outcome would not only be unjust to those who, due to their preferences and personal ideologies, prefer a good public system, but it would run the risk of tarnishing the reputation of the very public schools in which many students continue to be educated, if not creating (or in many cases corroborating) an expectation of inferiority regarding the latter in the collective consciousness. By pandering to the wishes of the private-school lobby, politicians are creating a divisive issue where there need not be one and risking the creation of a two-tier system in which public schools will be seen as the inferior, default option for those who cannot afford private schools, all the while ironically using the catchword “choice.”
Moreover, even as things stand, there is a price to pay for this choice. Private schools are not subject to the same oversight or legal regulation as public schools; a family may be able to exercise its choice to send a child to a private school, where, once enrolled, they may be subject to academic and other criteria, rules, or restrictions they would not face if enrolled in the public system. This price has included some private schools systematically weeding out pupils who they feel do not display the attributes of the profile of person they would like to mould, as informed by their core values.
In this way, the real-time application of voucher programs has resulted in public funding of institutions that have the potential to vicariously discriminate against students on the basis of perceived or actual tendencies to deviate from norms set by conservative and religious institutions. Students potentially affected by discriminatory private-school policies in the present era fall into several categories: religious dissonant; LGBTQA and gender non-conforming; students displaying their race or culture; students with special needs.
Whether government aid to religious private schooling is constitutionally permissible was again very recently before the U.S. Supreme Court in Carson v. Makin, a case from Maine, whose laws dictated that a government-assistance program may be used to cover the costs of private schooling at only non-sectarian schools. It was expected to be a very conservative court expanding on the 2nd Circuit Court of Appeals decision in Re A.H. (A.H. v. French). The key question carried over from its 2019 ruling in Espinoza v. Montana Department of Revenue was whether a state violates the Religion Clauses or Equal Protection Clause of the Constitution by prohibiting students who are participating in an otherwise generally available student-aid program from choosing to use their aid to attend schools that provide religious or sectarian instruction.
The answer, delivered on June 21, 2022, was contained in a 6-3 judgment striking down the ban on providing funds to sectarian schools. Writing for the majority, Chief Justice John Roberts, relying in part on Espinoza and Zelman v. Simmons-Harris, asserted that Maine's program “operates to identify and exclude otherwise eligible schools on the basis of their religious exercise,” amounting to “discrimination against religion.” In dissent, Justice Stephen Breyer said that “[t]he Religion Clauses give Maine the right to ... choos[e] not to fund religious schools as part of its public school tuition program.” Also in dissent, Justice Sonia Sotomayor stated, “In 2017, I feared that the Court was 'lead[ing] us ... to a place where separation of church and state is a constitutional slogan, not a constitutional commitment. … Today, the Court leads us to a place where separation of church and state becomes a constitutional violation.”
This judgment was part of a rapid succession of conservative decisions also including Dobbs v. Jackson Women's Health Organization (striking down the constitutional protections for abortion rights established in Roe v. Wade) and Kennedy v. Bremerton School District, effectively allowing a public school’s football coach to lead his players in public Christian prayer.
This is the third part of a four-part series. Part one: Alarming erosion of Ontario school system by Ministry of Education. Part two: Alarming erosion of Ontario school system by Ministry of Education, part two
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.
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