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

By Marvin Zuker

Law360 Canada (October 12, 2022, 8:37 AM EDT) --
Marvin Zuker
The issue of funding for religious schools has also had its day in court in Canada, although on a much smaller scale and in the context of providing religious education for various denominations within the public system rather than in the context of vouchers for private schools. Section 2(a) of the Charter, which is part of the Canadian Constitution, prohibits religious discrimination. At the same time, provinces have jurisdiction under s. 93 of the Constitution Act, 1867, to establish and maintain separate schools, as discussed above. This provision prima facie allows for discrimination in favour of Roman Catholics. This argument was raised when Bill 30 in Ontario extended full funding to Roman Catholic school boards for secondary education.

A decade later, in Adler v. Ontario 30 O.R. (3d) 642, the Supreme Court confirmed that funding only Catholic and Protestant separate schools (where they still exist), and not, for example, Jewish schools, was not unconstitutional because special status for schools of those two denominations was explicitly set out in s. 93, which provided a complete code for funding denominational schools. And, again, Charter rights granting religious freedom and prohibiting religious discrimination did not trump s. 93 rights.

Furthermore, in Bal v. Ontario (Attorney General) 34 O.R. (3d) 484, the Ontario Court of Appeal rejected the claims of a group of plaintiffs representing various religions that, by maintaining a secular public school system, the government of Ontario imperilled their religious traditions, which was a concern for the state. The court stated that while we sympathize with the concerns of the appellants about the positive and negative influences of the educational experience on their children, their plight is no different from that of the majority of Canadians who cannot afford, or do not wish, to send their children to privately funded religious schools. Although it was repeatedly denied before us, we agree with Justice Warren Winkler that this case primarily involves funding. No freedoms have been violated. The problem for these parents, and for many others, is that the province has decided not to fund religious schools.

Canada signed the Convention on the Rights of the Child on May 28, 1990, and ratified it on Dec. 13, 1991. Yet, historically consecutive federal governments have not kept the promises that were made upon ratification. Children’s rights have been pushed to the side and even violated in a variety of situations, be it child poverty, Indigenous or special needs children. It must be something better than a tent.

There is so much to the value of a rights-based approach, which emphasizes that all rights are equal and universal; that all people, including children, are the subject of their own rights and should be participants in development, rather than objects of charity; and that an obligation is placed on everyone to work towards ensuring that all rights are being met.

It doesn’t matter if a family is undocumented or mixed-status or second-generation. Their perceived definition of homelessness may be quite different from the way the law defines it. Schools must not exclude anyone who falls within the age range for guaranteed education. School boards must not send older immigrant students to adult education centres instead of being enrolled in a public high school, for example. My father came to Canada in 1921 at the age of 21. He went right into high school to complete it in three years and then off to U of T in 1924.

If you’ve ever seen an episode of Arthur on PBS, the theme song has planned itself, indelibly, in your brain. “It’s a simple message,” Ziggy Marley tells us. “Believe in yourself” first, and you will learn to get along with each other.

The show first aired in the fall of 1996. And despite its cast of animal characters, over almost 250 episodes, Arthur has consistently asked children to see the humanity in the people who pass them on the street, who go to the school with them and who teach them. Every episode, the theme reminds viewers that today is that “wonderful kind of day” to work toward co-operation and kindness.

Most recently, this emphasis on the humanity and dignity of others played out in the show premiere, titled “Mr. Ratburn and the special someone.”  Ratburn marries Patrick, and his students are happy to see him happy. It’s a simple message, but one never dared to imagine would air when I was younger. It felt like a milestone in representation. But with small steps forward comes reminders of the forces that want to push queer people aside.

“Gay and queer identities, and especially relationships, are inappropriate topics for children.” It’s an idea that is often replicated in schools especially when a province wants to dictate curriculum and turn the clock back. We hear it most clearly when school leaders and teachers hush students or offer euphemisms when asked about gay teachers or guardians. We hear it in the language that surrounds school dances, and we see it in the family photos that are, and notably aren’t, displayed on teachers’ desks.

To suggest that queer relationships are inappropriate for children, absent and overtly sexual content, is inherently homophobic. 

We live in a strange moment. The disconnect between the world our students inhabit and the world we decide is appropriate to show them is stark. Every day we don’t is a day we’re failing to prepare student to understand others and themselves.

Dr. Larch, the founder of St. Cloud’s orphanage in John Irving’s The Cider House Rules, lamented, “There are no heroes in the world of lost and abandoned children.” Well, the good doctor is wrong. We have all seen many heroes, many family members who have stepped up to the plate, to be the hero of their own life for themselves and for the good of others. God bless them.

Our childhood makes us what we are. Our hurts and our happiness. Our loves and our hates. Our successes and our failures. All of our childhood experiences are woven into the fabric of our adult characters. If hate gets out of hand for children at home, it often is fuelled later by hate groups. Or sometimes fanned by their anti-hate counterparts. No matter when hatred gets out of control, it generally is traceable to childhood. Kids learn bigotry from their environment. Bigotry and hate. Love and tolerance. If parents can teach their kids the importance of the difference, they can make a bigger difference than all of our laws. The issue has less to do with poverty than with culture, with conscious values as well as unconscious behaviour.

We can only do our best, try our best. Charles Dickens began David Copperfield asking, “... [W]hether I shall turn out to be the hero of my own life, or whether that station will be held by anybody else ...”

You can choose not to wait for someone else to act but instead to be the hero of your own life — for the good of others. By making that choice, you not only help but inspire, and so keep lit around the world the lights of valour in the cause of justice.

Success should not, should never be defined as simply coping well in the mainstream, at the cost of losing one’s identity. I recall the movie The Miracle Worker, inspired by the life story of Hellen Keller. It focused on how everyone can learn, behaviours can be modified, and quality of life can be achieved. We must think about the person behind their disability, not only the courage but the compassion and dignity for humanity.

To quote Dr. Seuss, “The more you read, the more things you will know. The more you know, the more places you will go. Just turn off that TV.”

Human rights are rights we recognize in others because we deem them to be human. Human rights are rights we recognize in others because we are human. We must use tragedy as a catalyst for a more peaceful and loving future.

Change “C” stands for communication; “H” represents hope and health; “A” in “change,” stands for advocacy; “N” represents ‘never again’; “G” stands for the greater good; and “E” stands for equity and empowerment.

Equity is still far from a reality.

This is the fourth 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. Part three: Alarming erosion of Ontario school system by Ministry of Education, part three.

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, 
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