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In 2017, Saskatchewan’s Justice Donald Layh declared provincial government funding for non-Catholic students in Catholic schools “a violation of the state’s duty of religious neutrality” and “a violation of equality rights.”

The ruling would effectively bar non-Catholic students from attending Catholic schools, imposing a religious requirement on access to 126 separate schools across Saskatchewan.

Last week, an appellate court overturned that ruling on the grounds that imposing a religious test on school funding would be far more discriminatory than closing an entire school to non-Catholic students.

The case began in the small Saskatchewan community of Theodore. In the face of declining enrollment, the public board (Good Spirit School Division) made plans to close down the village’s only school, incorporating its 42 students into other nearby schools.

To avoid this, parents in Theodore petitioned for a Catholic school to pick up the slack. The Minister of Education approved the plan, and in 2003 incorporated the Theodore Roman Catholic Separate School Division, containing a single school, whose boundaries encompassed an area identical to those of the now-defunct public school. (It has since been absorbed into the larger and better-resourced Christ the Teacher Catholic School Division named in the legal action.)

Good Spirit was not thrilled with this shift in events. By continuing to operate virtually the same school that Good Spirit had intended to shutter, the Catholic board had poached an entire community of students from the public system… along with the funding that would accompany them.

So Good Spirit brought suit against Christ the Teacher and the Saskatchewan government. They argued that the newly-formed St. Theodore School was not a real Catholic school, given its 69% non-Catholic enrollment (roughly the same Catholic-to-non-Catholic ratio that the previous school had enjoyed).

They further argued that it was unconstitutional to fund non-Catholic students’ attendance at Catholic schools, which is the real meaty question at the heart of the controversial court case.

Education advocate Norm Dray, executive director for the public segment of the Saskatchewan School Boards Association, put it this way in a conversation with Global News:

The Catholic system can say “no, your values aren’t consistent with our Catholic values and therefore you should be part of another system,” whereas that’s not an option for us. We are the inclusive public system.

The Saskatchewan Catholic School Boards Association struck back with the argument that, really, it’s up to parents and families to decide, in conjunction with educators, whether a Catholic-school environment is the best choice for a given non-Catholic student — but that, no, their schools aren’t exclusionary:

Catholic school divisions believe we have the right to decide to admit non-Catholic students and to determine the extent to which their admission allows us to maintain a truly authentic faith-based Catholic school system. Our faith is a journey that includes inquiry of non-Catholics and growth of existing members. This requires inclusion and a welcoming spirit.

The appellate court agreed with the original ruling that St. Theodore remains a valid Catholic school despite its origins. But they disagreed with the original judge’s view of what constitutes discrimination in faith-based schooling. Rather, they argued, fairness and lack of discrimination requires both school boards to be equally accessible to all students within their geographical boundaries:

The Legislative Framework allows parents to choose which of these two publicly funded education systems they wish their children to attend. It is an effect of this parallel public system of education that non-Catholic students may attend public, separate schools, but it is also an effect that Catholic students may attend public, secular schools. The Government fully funds the attendance of all students in both of its public education systems. This parallelism underpins the province’s approach to education and must be considered in its entirety to determine whether the Legislative Framework offends the Charter.

The real unfairness, they argue, would be to effectively penalize constitutionally-protected Catholic schools for admitting non-Catholic students while permitting Catholic students and families to access the broad range of educational options without penalty.

In the three Canadian provinces where publicly-funded Catholic schools still exist — Saskatchewan, Alberta, and Ontario — plenty of non-Catholic parents send their children to Catholic schools because they perceive the quality of education as superior to their local public option.

Others, particularly the devout from non-Catholic religious traditions, choose Catholic education because they perceive the public school system as hostile to religion or aggressively secular. Public Schools of Saskatchewan addressed that misconception in a 2015 open letter:

It is the public school system in which all religious and non-religious beliefs are treated as equal… Public school education can and does teach about religion and spirituality. It takes care, however, to recognize that faith is personal to each person, and that it would be wrong for the institutions of the State to bring their weight to bear in promoting one faith over the other.

Parents have the right to involve their children in the system of their choosing, even if the reasons behind their choice are ill-informed.

But what of the unfairness inherent in a structure that funds Catholic schools while expecting all other religious schools to operate on a privately-funded basis? The court acknowledges the unfairness in that — stemming from an outdated clause in the Constitution that most provinces have come to disregard — but says it’s beyond the scope of the current case:

If there is any issue in this appeal that may be considered discriminatory, it is that the Government does not fund all religious schools fully, not that it funds the two public systems equally — but the issue of equal funding among religious schools was truly not before the Court of Queen’s Bench in this case.

It’s not clear whether the matter will arise again in court any time soon, but the political will to make the change in provinces that continue to fund Catholic schools is often lacking. School choice is hotly contested on all sides, and any effort to do away with existing Catholic boards is met with plenty of resistance from parents and educators.

At least this ruling ensures the freedom of non-Catholics to draw from the same pool of choices as Catholic families.

(Image via Shutterstock)

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