Fawcett: Dissecting a victory that keeps Catholic education alive, for now

26 March 2020

Appears in: Archdiocesan News

March 25 is an important day for Catholics. In our Church calendar, it is the Solemnity of the Annunciation, which celebrates the moment when Mary said “Yes” to God’s will and received the Word of God into her womb. And, in 2020, March 25 was when the Court of Appeal for Saskatchewan overturned a ruling which endangered Catholic education across Canada.

The Charter of Rights and Freedoms protects the right of Catholics to have their own publicly funded “separate” Catholic schools. In 2017, in what is widely called “the Theodore case,” Justice Donald Layh of the Court of Queen’s Bench for Saskatchewan ruled that the constitutional purpose of separate schools was solely to educate Catholic children.

Therefore, the constitution only grants them a right to receive funding from the government for their Catholic students, not for non-Catholic ones. Publicly funding non-Catholic attendance at Catholic schools, according to Layh, favours Catholicism to the exclusion of all other religions and thus violates the Charter’s prohibition on religious discrimination and the constitutional principle of state religious neutrality. This kind of funding, therefore, should be forbidden.

(Why, then, can the neutral state continue to fully fund secular schools, thus privileging one worldview – secular modernity – over all the others? The assumption seems to be that a secular school is a neutral school. If we accept this particular myth, then, by logical deduction, the state must be entirely secular if it’s going to remain “neutral”. Perhaps you can see where this is going.)

Although this finding, strictly speaking, only dealt with Saskatchewan, it offered an interpretation of constitutional documents which apply to the whole country, meaning that, if it were allowed to stand, it would become the official judicial interpretation of separate school rights in Canada.

If that happened, non-Catholic student enrolment in Catholic schools across the country would plummet. Not only would this seriously cripple and even jeopardize the existence of many Catholic schools and school districts with large non-Catholic student bodies, it would seriously harm the Church’s missionary efforts.

Given our society’s declining levels of religious literacy and parish attendance, Catholic education is one of the most important engines of spreading the Gospel to non-Catholics in the modern world. By making it difficult-to-impossible for non-Catholics to receive a Catholic education, the Theodore ruling was a gut punch to evangelization.

Although the Saskatchewan government was prepared to invoke the notwithstanding clause to scuttle this ruling, it looks like that may not be necessary. On “Lady Day,” as the English used to call it, the Court of Appeal unanimously reversed the Queen’s Bench ruling. For now, Catholic schools in Canada are safe.

It behoves us to look at the ruling closely, because this is more than a courtroom triumph for Catholic schools. There are lessons for us here on how to engage both the secular world and our own school communities.

Setting the two rulings side-by-side, you can easily read them as a synecdoche for the wider political debate over whether Canada should maintain separate schools at all. The Queen’s Bench decision represents those who favour the abolition of these schools. By extension, the Court of Appeal’s rebuttal does not just refute Justice Layh’s arguments, but the arguments and assumptions of most pundits who demand that all public schools be secular. Because of that, it’s worth looking at both these decisions in some detail.

Re-reading the original Theodore ruling in preparation for the higher court’s decision was a brutal, wearisome exercise. Throughout, Justice Layh barely conceals his distaste for Catholic constitutional school rights (paragraph 77 of his ruling is just one instance where the contempt seeps through) and is clearly looking for an opportunity to undermine them in some way. This is probably why he allowed the Theodore case to move forward despite the plaintiffs – as the Court of Appeal makes clear in section five of its decision – having no real legal standing.

In his zeal to weaken the position of Catholic schools, Justice Layh frequently lapses into fallacy. The Court of Appeal ruling draws attention to these instances with gentle judicial courtesy. For example, in sections six and seven of their ruling, they note that Layh quotes sources which were never entered into evidence during the trial and without actually consulting any of their authors to make sure his interpretation of their writing is correct.

Moreover, the appeal court notes that his interpretation of the school provisions of the constitutions of Canada and Saskatchewan is idiosyncratic and out of step with legal precedent. Essentially, he made up his own way of reading the constitution to suit his purposes. In a passage politely spelling out what should be obvious, the decision opines that, “(i)n our view, the trial judge’s approach to developing his own interpretative principles, rather than following the prevailing jurisprudence…is an error and resulted in error” (paragraph 124).

Indeed, one of the more frustrating qualities of Justice Layh’s opinion is the way he completely switches methodology midstream. For several paragraphs, he belabours the argument that “changing societal norms” should inform the way that we interpret the constitution. We need to make the constitution fit in the modern world, he claims, and shouldn’t be confined to the mentality of its framers. At one point he somewhat sniffily pronounces, “I cannot be expected to be locked in a century-old mind-set” (paragraphs 302-312).

Yet, not even 10 pages later, he suddenly switches gears, dons a prim originalism, and spends the same number of paragraphs insisting that Catholics in 1905 would not have wanted their schools to admit non-Catholics, that the framers of the Saskatchewan Act would never have intended for non-Catholics to attend Catholic schools, and that any subsequent shift in Catholic opinion around the time of the Second Vatican Council should have no bearing on how we interpret Saskatchewan’s constitution, since its original purpose is frozen into its meaning forever (see paragraphs 331-341 of the Queen’s Bench ruling). It sounds suspiciously like he’s using whatever sort of argument will help him weaken Catholic schools, no matter how murky the reasoning might be – not an uncommon phenomenon among certain opponents of Catholic education.

The crystalline presentation of the Court of Appeal decision, meanwhile, was not only a refreshingly accurate and rational assessment of the facts; it also exposed the questionable sincerity of many of the arguments often urged against Catholic schools.

For instance, Justice Layh pointed out that non-Catholic faith-based schools in Saskatchewan do not receive full funding, but Catholic schools do. This, he argues, proves that fully funding Catholic schools is unfair and discriminatory. You hear this argument all the time in popular discourse, so it’s no surprise it wound up here. Yet, as the higher court points out, none of the representatives of those other schools who testified in trial said they wanted Catholic schools to receive less funding. They simply wanted to receive full and equal funding themselves (paragraph 56). Not only does reducing Catholic school funding not help achieve that goal, it is more likely to “have a negative effect on all education funding for minority faith schools” (paragraph 58).

This is a point I have made here before: The best way to ensure that all religious schools receive funding is to uphold funding for Catholic schools, which establishes that faith-based schools are deserving of government support. But Justice Layh, like so many who point to the alleged inequity that other religious schools receive less money than Catholic ones do, doesn’t seem interested in actually improving their situation. Their plight is not a problem to be solved, but a convenient club to beat Catholic schools with.

Similarly, the appeal court sees through Justice Layh’s claim that funding Catholic schools violates religious neutrality (another familiar canard from anti-Catholic education rhetoric). They recognize what many people miss: True neutrality means giving full support to different school systems with different philosophical world views.

The government only offering full funding to secular schools is not neutrality; it is an actual example of unjust discrimination and favouritism. As paragraph 262 puts it, “(F)unding the two public school systems equally and on the same basis is the antithesis of state-promoted religion or secularity. Instead, the Legislature…is as neutral as such matters can be. It draws no distinction between the way it provides funding to the secular public system and the separate public system.” This is why, as the ruling demonstrates, Saskatchewan’s laws have always strived to make sure Catholic schools received equal funding to their secular counterparts (see section nine, part B.2 and B.3).

With this and other authorities (such as the 2018 Highwood Congregation of Jehovah’s Witnesses v Wall Supreme Court case) behind it, the Court of Appeal definitively pronounces that separate schools have a right to full funding for all their students. For now, Catholic education is saved. This case will undoubtedly be appealed to the Supreme Court; we’ll have to wait and see what happens then. But, for now, we can breathe a rare sigh of relief in these difficult times.

However, I did say we should have a qualified enthusiasm. There are two reasons for that.

One is that the Court of Appeal accepts the Queen’s Bench finding that Catholic separate schools in 1905 were only intended for Catholic children, and that the right to admit and receive funding for non-Catholic students is a later development (paragraph 221 of the Appeal ruling). I think this is too much of a concession to make. After all, even Justice Layh admitted that non-Catholics attended Catholic schools at the time the Saskatchewan Act was written (paragraph 237 of the Queen’s Bench ruling). It may not have been common, but if the whole point was to segregate Catholics and non-Catholics, why ever allow it at all?

Justice Layh (in a rare flash of accuracy) correctly observes that the presence of non-Catholic students can be attributed to the fact that many of these schools began as “mission schools.” Their purpose was missionary. But this is exactly the point: Catholic schools were (and are) seen as an evangelistic endeavour. They were not “separate” because they kept Catholic children segregated from the wider population. They were “separate” because they were (to use another word from the constitution) “dissentient”, the latter term defining the former. It was the nature of the instruction, which “dissented” from other kinds of theology, that made Catholic schools separate, not (primarily) their student demographics.

These dissentient Catholic schools performed a dual function: They allowed Catholic parents to provide a religious education to their children, and they allowed the Church to carry out her Great Commission to teach the Gospel to everyone, including non-Catholic children. Sources from this era report that Protestants were choosing to send their children to Catholic schools because of their “atmosphere.” I think the Court of Appeal missed the opportunity to make this point in response to Justice Layh, and am faintly nervous about the idea that this interpretation of history will start being taken for granted by the courts.

But more important than whether the courts understand the missionary significance of separate schools is whether we understand it. Let us rejoice that our right to have non-Catholics there has been protected, but afterwards, what are we going to do with that right?

In our world, there are fewer and fewer other places where students will encounter Christian concepts at all, and if they do, the impression they get will usually be that they aren’t very important. For many of them, Catholic schools are the only place they’ll hear what Christ has revealed to us about His Father, something especially important during this season of difficulty, disease, uncertainty about the future, and heightened awareness of our own mortality. Are they going to be taught effectively – taught not only what the Church teaches, but why it’s important?

The goal of Catholic schools should be to baptize our thoughts and our imaginations, to evangelize both ourselves and the world for Jesus Christ (2 Corinthians 10:5). They need to be places where students not only hear but feel that Christ is more beautiful and compelling than anything else in their lives. The Theodore ruling will only be a true victory if this is what happens at our schools. To make that happen, teachers can’t just talk about the Faith: They need to show their students how important it is with their own transformed lives.

Let’s ask this a different way: In the original languages of the Bible, the word “holy” means “separate.” Do we really want our separate schools to be holy, separate from the world, that attracts people because they exhibit the beauty of Christ? Or do we expect them to essentially be public schools with some soupy spirituality in the lessons, the odd crucifix on the wall, and dusty Bibles in the corners of classroom shelves? If these are all we’ve saved, what do we have to celebrate?

The people who make the difference here are the teachers. They need to convert their own hearts before they can do this for their students. Perhaps this is why this ruling was issued on the Feast of the Annunciation: As a reminder that we need to let the Word into our own hearts before we can bear it to others.

Brett Fawcett is a teacher and columnist. He has degrees in theology and education and is the winner of the 2018 Lieutenant Governor’s Award for Excellence in Social Studies Education.