Court urged not to define Catholic education

By LELLA BLUMER
Special to the WCR
Edmonton

From the start, Catholic school boards have been drawn into the case for one reason only: To ensure that the rights constitutionally guaranteed to separate school supporters are not harmed.

The greatest risk, according to Kevin Feehan, legal counsel for the Alberta Catholic School Trustees' Association (ACSTA), is that the court will decide the rights of separate school supporters need to be specifically defined.

"ACSTA's position has consistently been that the rights and privileges guaranteed by section 17 (1) of the Alberta Act should not be ruled upon by the court because they have no bearing on the case," Feehan says.

Those rights should not be etched in stone, he adds, but should be "a living, growing tree. They must be allowed to breathe, to grow, mature, and bloom. "

If separate school rights are cast in cement for all time, it might be fine for today, but dangerous as time went on and society changed, because we would not be allowed to change with it."

So far, a provincial court judge and the Alberta Court of Appeal have agreed with that position, and avoided setting out specific rights for separate schools. But now the argument will be heard in the country's highest court, and there are plenty of parties who would be interested in hearing what the Supreme Court has to say about separate schools.

In fact, the provincial governments of Ontario, Quebec and B.C. are all interveners in the case, as are a number of public and separate school board associations and teachers' associations in Ontario, Saskatchewan and B.C.

It's likely, Feehan admits, that the court will not pass on the opportunity to comment on separate school rights.

The complex legal action began with amendments to the School Act introduced by the provincial government in 1994.

The Public School Boards Association of Alberta (PSBAA) claimed the amendments were unconstitutional, because they contravened the right of local school boards to reasonable autonomy.

As well, the government's new funding plan, which involved taking over collection of school taxes and distributing them on an equal per student basis, raised concerns.

Although PSBAA agreed with the principle of fiscal equity, it claimed that certain provisions in the new funding plan were unconstitutional because they allowed separate school boards to "opt out" of the plan and collect their own taxes.

If there were no financial advantage to opting out of the plan, PSBAA argued, then there should be no difference between the rights granted to separate school boards and those granted to public school boards.

PSBAA launched legal action against the government, which was then tied to a similar action brought forward by the Alberta School Boards' Association, representing all public and separate boards.

What drew Catholic boards into the fray was the government's response to PSBAA's claim, Feehan explains. The government presented an extremely narrow interpretation of what separate school rights existed in 1905, and ACSTA decided it could not let those rights be argued in court without being present to defend them.

The rights guaranteed to separate school supporters when Alberta became a province include the right to establish a separate school district, to levy and collect taxes in support of that system, to be free from taxes in support of the public district, and "to exercise all rights, powers, privileges and be subject to the same liabilities and methods of government as . . . public school districts."

But in contrast to the government's view, ACSTA's position states that "permeation or infusion of Catholic doctrine in all aspects of Catholic separate schooling was and remains the critical rationale for the existence of those schools."

Should the Supreme Court agree with the government's interpretation, it would be devastating for the Catholic school system. "If they say 'no' to one of those rights, would it be dangerous?" Feehan muses. "The answer is yes. Those are fundamental rights.

"The ruling could alter the type of Catholic education we now have in Alberta, or it could sustain it."

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