Religion in public schools.
* Should religious instruction be part of the curriculum? If so should it be mandatory or optional?
* What should religious instruction include?
* What should be done in schools to accommodate religious practices?
* What if parents do not want their children to be participating in religious instruction or religious exercises (e.g., the recitation of religious prayers and the active reading of religious texts)?
These questions raise certain fundamental issues about the individual rights of the students, the constitutional provisions relating to education, and the rights of parents with respect to their children's education. In Alberta and Saskatchewan, prayer, or the possibility of prayer in public schools, is a convoluted issue that requires a detailed understanding of the unique provincial legal and educational histories.
Constitutionally speaking, education is unique. This topic is not addressed in either s. 91 or s. 92 of the Constitution Act, 1867, which deal with the division of powers between Parliament and the legislatures of the provinces. Education is addressed in s. 93, where it is said to fall under the exclusive jurisdiction of the provinces. At the same time, s. 93(3) indicates that provincial laws cannot adversely impact rights and privileges enjoyed by denominational minorities at the time each province joined Confederation (1905 for both Alberta and Saskatchewan).
In 1982, the Canadian Constitution was amended to include the Canadian Charter of Rights and Freedoms (Charter). Section 2(a) provides that everyone has freedom of conscience and religion. Courts have determined that "freedom of religion" entitles the citizens of Canada to pursue their own religious truths without fear of social or governmental persecution. The courts have also noted that freedom of religion includes freedom FROM religion. This means that Canadians also enjoy the right not to pursue any religion. This is in keeping with the overall role of the Charter in protecting minority rights. Of course, the right to manifest one's religion is subject to those limitations as are necessary to protect public safety, order, health, morals, or the fundamental rights and freedoms of others (see Charter s. 1). Canadian courts have held that the Charter applies to school boards. Thus, provincial educational aims must ensure that the constitutional guarantee of freedom of religion and other Charter rights are met.
There have been a number of legal decisions dealing with religious education in other provinces. Provincial legislation imposing prayer on public school students in Ontario, British Columbia, and Manitoba has been found to infringe the Charter or other human rights legislation. For example, in Zylberg v. Sudbury Board of Education (Director) 1988, legislation providing for religious exercises in public schools was found to violate Charter s. 2(a) and could not be saved by Charter s. 1. The Court noted that allowing students to leave the room when religious exercises were being conducted was not satisfactory as it placed too much pressure on students to conform. At the same time, religious instruction must meet very strict standards. The courts have found that while religious instruction is not immediately forbidden from being taught in public schools, it must be taught in a neutral and academic fashion: Canadian Civil Liberties Association v. Ontario (Ministry of Education) 1990.
While people in both Alberta and Saskatchewan possess the same constitutional rights, privileges and responsibilities as in other provinces, the provinces' entry into Confederation marked a curious compromise. These effects are still felt today. Specifically, the Alberta Act and the Saskatchewan Act (Alberta and Saskatchewan Acts) provided the terms of their entry into the Union. While section 93 provides the legal impetus for provinces to develop education, section 17 of the Alberta and Saskatchewan Acts substitutes itself, in part, for section 93:
"17. Section 93 of the British North America Act, 1867, shall apply to the said province, with the substitution for paragraph (1) of the said section 93, of the following paragraph:
(1) Nothing in any such law shall prejudicially affect any right or privilege with respect to separate schools which any class of persons have at the date of the passing of this Act, under the terms of chapters 29 and 30 of the Ordinances of the North-west Territories, passed in the year 1901, or with respect to religious instruction in any public or separate schools as provided for in the said ordinances" [emphasis added].
Section 17(1) constitutionally protects the denominational rights of separate school supporters, and the scope of that protection is, according to section 17(1), set out in the 1901 North-west Territories School Ordinance, 1901, (NWT School Ordinance) and North-west Territories School Assessment Ordinance, 1901, (NWT School Assessment Ordinance). It also addresses religious instruction in public and separate schools.
The relevant provisions in the NWT School Ordinance are sections 137-139. Limiting religious instruction to the last half-hour of the day, section 137(1) states "137(1) No religious instruction except as hereinafter provided shall be permitted in the school of any district from the opening of such school until one half-hour previous to its closing in the afternoon after which time any such instruction permitted or desired by the board may be given."
Further, subsection (2) notes that "It shall be permissible for the board of any district to direct that the school be opened by the recitation of the Lord's prayer."
Section 137(2) of the NWT School Ordinance is explicit in its allowance of the Lord's Prayer in school. But section 137 only possesses effect today if covered under section 17'S constitutional commitment to "religious instruction". Said another way, the uncertainty that arises from Alberta's and Saskatchewan's situation seems to be a Canadian historical oddity. The Alberta and Saskatchewan Acts substitute themselves for section 93 of the Constitution Act, 1867, a provision that provides the other provinces with their plenary power over education. And in substituting itself for section 93, section 17 specifies its scope by relying on the historical provisions of the NWT Ordinances. These Ordinances, as seen above, limit religious instruction to the last half-hour of each day, but also allow for the recitation of the Lord's Prayer. Alberta's and Saskatchewan's power over education brings into the present the historical commitment to the possibility of religion in public schools. It would seem, then, that Alberta and Saskatchewan are capable of exercising a plenary power over education more specific and powerful than other provinces with respect to religion in public schools. Because of its specific reformulation of its power over education, as conferred upon its entry into Confederation, the Lord's Prayer in the classroom seems to be allowed in Alberta and Saskatchewan, unlike across the rest of Canada. The inclusion of section 137 of the NWT School Ordinance appears to make prayer in Alberta and Saskatchewan public schools a constitutionally protected right.
Section 138 states that students may leave the room when religious instruction begins and they have the right to not take part. This right may or may not include the right to leave when prayer is being read, depending on whether the Lord's Prayer is considered religious instruction: "Any child shall have the privilege of leaving the school room at the time at which religious instruction is commenced as provided for in the next preceding section or of remaining without taking part in any religious instruction that may be given if the parents or guardians so desire."
Finally, section 139 provides sanctions for anyone in authority who attempts to deprive a child taking advantage of the exemption provision in section 138: "No teacher, school trustee or inspector shall in any way attempt to deprive such child of any advantage that it might derive from the ordinary education given in such school and any such actions on the part of any school trustee, inspector or teacher shall be held to be a disqualification for an avoidance of the offence held by him".
A provision such as section 139 reinforces the validity and force of the exemption clause, and sections 138 and 139 together seem to preserve an individual's religious freedom in the face of section 137, which allows for the imposition of Christianity on public school students. While prayer in Alberta and Saskatchewan public schools may technically receive constitutional protection because of the above listed provisions, should the courts be forced to speak to the issue of religion in these schools, they would be faced with the cases from across the country that find prayer in public schools unconstitutional. If section 17(1) was found to include section 137(2), and the terms of section 137 did not violate the Charter, it would mean that prayer was allowed only in Alberta and Saskatchewan public schools. Such a finding would require, then, that a court find section 137 consistent with the Charter when analogous provisions from other provinces have been found to be inconsistent. An anomalous application of the Charter such as this would surely be undesirable, and if given a choice between two plausible interpretations, it is more likely that a court would adhere to a nationally consistent analysis and application of the Charter (Slaight Communications Inc. v. Davidson, 1989. Thus, if it is unclear whether or not the recitation of the Lord's Prayer should be included as "religious instruction" for the purposes of section 17, then it is perhaps most prudent to not include it.
In Alberta and Saskatchewan today; the provincial governments exercise plenary power over education through each provinces' School Act (in Alberta, School Act; in Saskatchewan, Education Act). Subsequent references are to the Alberta School Act. While the Alberta and Saskatchewan Acts provide the terms of entry into the Confederation, and section 17 notes these provinces' unique constitutional control over schools, it is the School Act today that defines the provincial scope of education.
Upon first glance, the School Act closely emulates the provisions on the NWT School Ordinances. Section 50 of the School Act provides for school boards to impose religious instruction/exercise upon students: 50(1) A board may:
* prescribe religious instruction to be offered to its students;
* prescribe religious exercises for its students;
* prescribe patriotic instruction to be offered to its students;
* prescribe patriotic exercises for its students;
* permit persons other than teachers to provide religious instruction to its students.
Similarly, section 138 of the NWT School Ordinances is echoed in section 50(2) of the School Act which allows for an exemption clause:
50(2) Where a teacher or other person providing religious or patriotic instruction receives a written request signed by a parent of a student that the student be excluded from religious or patriotic instruction or exercises, or both, the teacher or other person shall permit the student
(a) to leave the classroom or place where the instruction or exercises are taking place for the duration of the instruction or exercises, or
(b) to remain in the classroom or place without taking part in the instruction or exercises.
The similarities between the NWT School Ordinances and the School Act present an interesting dilemma. If the NWT School Ordinances achieved validity by virtue of their constitutional inclusion through section 17 of the Alberta and Saskatchewan Acts, then the School Act merely echoes a constitutional right of public schools to enact religious exercises and religious instruction upon their students. If, however, the School Ordinances are not constitutionally entrenched, then the rights to religious exercise/instruction as provided by the School Act are more open to being scrutinized by the Charter and provincial human rights legislation.
There have been no cases in Alberta that have addressed the constitutionality of religion in public schools. However, in 1993, a number of families in Saskatchewan brought a complaint against a Saskatchewan school board to the Human Rights Commission The families argued that their children were denied their rights to freedom of conscience and religion under provincial human rights legislation because of the school board's decision to implement Bible readings and the use of the Lord's Prayer in classrooms as per sections 182-183 of Saskatchewan's Education Act. The Board of Inquiry found that the imposition of these Christian exercises on what should be a secular school system often amounted to a discriminatory practice against those students complaining. But, it was found that the 1901 NWT School Ordinance provided for the constitutional protection of some religious practices in schools. In a very technical decision, the Board found that the school board had the authority to direct the recitation of the Lord's Prayer; however in this particular instance, the school board failed in its responsibility. Rather than directing prayer, as it was authorized to do, the school board developed a policy that vaguely encouraged public school teachers to invoke religious exercises, such as the Lord's Prayer, in the classroom. Thus, the religious exercises called into question in this inquiry did not conform to the specific criteria listed in the School Ordinances, and, therefore, were found to not receive constitutional protection. The school board was ordered to discontinue the use of the Lord's Prayer ((Fancy v. Saskatoon School Div. No. 13, 1999, (Sask. Bd. Inq.) affirmed Saskatoon School Division No. 13 of Saskatchewan v. Saskatchewan Human Rights Commission, 1998.
This Saskatchewan human rights decision suggests the importance of maintaining the secular impulse in the public school system. While the Fancy decision found that Saskatchewan's educational, legislative provision constitutionally protects the possibility of prayer in public schools, the Board of Inquiry had no problem determining that the school board had overstepped its allowable boundaries. The offensive provisions of Saskatchewan's Education Act were struck down, requiring the activity of religious instruction/prayer in schools to stop immediately. The reasoning of the Board of Inquiry noted the scrutinized provisions of the Education Act failed to adhere precisely to the constitutionally protected sections 137-139 of the NWT School Ordinances. Thus, although sections 137-139 constitutionally protect prayer in schools, they must be strictly adhered to. Any deviation in contemporary legislation that attempts to echo the NWT School Ordinances will, necessarily, be struck down.
It is clear that Alberta and Saskatchewan are in a unique position because of a historical compromise. Aside from a constitutional amendment, what can be done to clear up the confusion regarding prayer in public schools? Case law indicates that the only kinds of religious expression that are not allowed are those promoting religious indoctrination by privileging one religion over another. Alternatives such as multi-denominational readings that include non-religious philosophies; moments of silence that do not include encouragement that they be used for prayer; and, of course, academic study of religions have been suggested. Any alternatives should reflect the contemporary realities of our multi-ethnic multi-denominational society.
Linda McKay-Panos, BEd, LLB, LLM is the Executive Director of the Alberta Civil Liberties Research Centre (ACLRC) in Calgary, Alberta. This article is based on a publication released by ACLRC called Religion in Public Schools: the Alberta Situation.
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|Title Annotation:||FEATURE on religion and the law|
|Date:||Dec 1, 2005|
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