TORONTO, ON – Can the state force children to participate in classroom activities that violate their religious beliefs so that other students will not be discomforted by their absence?
That is a central question raised in the case of E.T. v Hamilton-Wentworth District School Board, which will be heard by the Ontario Court of Appeal on June 26, 2017. The outcome of this appeal will impact how decision makers accommodate freedom of religion, particularly for religious minorities, in the context of the public education system.
Christian Legal Fellowship (CLF) has been granted leave to intervene in the case, and yesterday filed its intervention factum at the Ontario Court of Appeal. The appeal concerns a father’s request for faith-based accommodation for his elementary school-aged children and the School Board’s refusal to accommodate. Upon review, the Ontario Superior Court of Justice held that the School Board’s decision was reasonable.
The father (Mr. E.T.) asked for advanced notification from the School Board when certain subjects were to be taught so he could remove his children from classes should the content conflict with their sincerely held Christian beliefs. The Board refused the request. It claims the logistical challenges are too burdensome, but even if accommodation were practically feasible, the Board has stated that it would still refuse to grant E.T.’s request. The Board maintains that students withdrawing from certain classes would create a risk of discrimination for those students who remain because it sends a message that there is something wrong with what is being taught; according to the Board, participation by all is necessary to encourage a “positive school climate”.
The lower court agreed, finding that if E.T. withdrew his children it would be “antithetical to the [School Board’s] competing legislative mandate and Charter values favouring inclusivity, equality and multiculturalism.” It would also “create discomfort for those who remain […], while if everyone remained in class, it would seem innocuous.” The court also suggested that to the extent that E.T.’s concerns about false teachings are unaddressed, he “may need to seek such other alternatives” as independent schools, or the option of homeschooling.
The issues raised in this appeal thus transcend the specific facts of the case. The question is not just whether E.T.’s particular request can be accommodated but whether compelled participation in classes which endorse and celebrate a particular state-approved worldview (particularly concerning topics such as sexuality, marriage, and gender identity) can be justified in a free and democratic society and, specifically, in the name of Charter values.
In its intervention, CLF has focused its written submissions on the issue of Charter values, arguing that their role in judicial reasoning should be carefully circumscribed. CLF’s factum explains why “it is inappropriate to subordinate constitutionally entrenched and carefully defined Charter rights to subjective and uncertain Charter values.” In particular, CLF explains that a “values analysis” inappropriately requires courts to engage in moral prioritizing rather than rights adjudication, and undermines a robust legal analysis that rests on evidentiary requirements.
CLF’s Factum also explores the logical conclusions of the School Board’s position that it must promote a “positive school environment”:
[D]oes this require that all students participate in the celebration of views that contradict their religious beliefs? If so, how far does the school board’s authority to promote a “positive school environment” extend? Can the Board compel students to suppress personal beliefs which are deemed inconsistent with the Board’s vision of “inclusivity”? If a student were to respectfully express religiously-informed views on an issue such as marriage, sexuality, or gender identity that might be contrary to the ‘state-approved’ view, must the Board take action to silence, correct, or discipline them in the name of “promoting a positive school climate”?
The answers to these questions have broad implications for all religious minorities in public education and the public square. The very nature of these questions highlights the importance of this case for religious freedom and thus, for CLF as an intervener.
The appeal is to be heard Monday, June 26. CLF is represented by Executive Director & General Counsel Derek Ross and Legal Counsel Deina Warren. CLF member Albertos Polizogopoulos is counsel for the Appellant, E.T. Intervening in support of the School Board are the Attorney General of Ontario, and the Elementary Teachers’ Federation of Ontario.
CLF's Factum is available here.
For additional information, please contact:
CHRISTIAN LEGAL FELLOWSHIP
470 Weber Street North, Suite 202, Waterloo, ON, N2L 6J2