Objections to separate or Catholic school funding by the Ontario government invariably surface during provincial election campaigns. The main objections to the funding of separate schools is that it is inefficient to fund two (English language) school systems and that funding the schools of only one religious group is unfair and discriminatory.

In 1999, the UN Human Rights Committee found that the preferential funding of Roman Catholic schools in Ontario amounted to religious discrimination and that Canada was, therefore, in breach of its obligations under the International Covenant on Civil and Political Rights.

These objections, though, never seem to gain any traction with provincial voters. Supporters of the separate school system point to the constitutional protection of funding set out in s. 93 of the Constitution Act, 1867, as if that is a full answer to the complaint of discrimination.

Section 93 protects the rights of "Separate" or "Dissentient" schools (principally Roman Catholic schools) that existed in a province at the time of Confederation. The courts have described s. 93 as "part of a solemn pact resulting from the bargaining which made Confederation possible."

Protecting the Catholic minority

Section 93 was included in the Constitution at a time when the dominant public or common school system in Ontario had a clear Protestant ethos. The s. 93 protection of separate school rights ensured that members of the minority Roman Catholic community would not be financially pressured to send their children to the Protestant common schools.

But the character of the public school system in Ontario has changed dramatically since 1867, a change that has been accelerated by the Charter of Rights in 1982. Shortly after the enactment of the Charter, the courts ruled that the recitation of the Lord's Prayer and the inclusion of bible lessons in the public schools breached the individual's freedom of religion.

Thus, the public schools were no longer permitted to advance even a non-denominational religious perspective, and so the reason for the special protection of Roman Catholic schools appears no longer to exist. Nevertheless, the Bill Davis government saw political advantage in extending funding to Catholic high schools in the 1980s.

Previous attempts to amend the Constitution, such as the Meech Lake and Charlottetown accords, may have led us to think that constitutional amendment is not a realistic option – that it is simply too difficult. But this is not so, at least in the case of s. 93.

The formal process for amending the Constitution to remove the special status of separate schools is a simple one that requires only the consent of the federal government and the government of Ontario. In Quebec and Newfoundland, the constitutional rights of religious schools were ended by amendment in the late 1990s.

The real barrier to change in Ontario is political. The irony is that a minority right granted to the Roman Catholic community in 1867 continues to be specially protected because of the political power of that group in contemporary Ontario.

Extending funding to everyone

There is another way in which the province could remedy the discriminatory preference for Catholic schools that would not require any constitutional change. Instead of ending the funding of separate schools, the province could extend funding to other religious schools.

Ontario voters, though, rejected this option in the 2007 provincial election – apparently uncomfortable with the idea of state funding for Evangelical Protestant and Muslim schools. There is no reason to think that their views on this have changed.

It appears, then, that the public funding of separate school system will continue for the foreseeable future. There is, though, a growing expectation in the province that separate schools should be public-like. Because of their special status, as the only state-funded religious school system in the province, separate schools (in contrast to other religious schools) are considered by the courts to be government actors that are subject to the Charter of Rights.

In many parts of the province, the separate schools have opened their doors to students who are not Catholic in order to maintain their student numbers. Following the settlement of a human rights code complaint, separate schools can no longer compel their students to attend religious classes or services. The province has told the separate schools that they must permit the establishment of gay-straight alliances.

Public vs. Catholic

Yet there is something odd, even paradoxical, about treating religious institutions as government actors that must respect the rights of citizens, including the right to be free from discrimination. The separate schools are government actors that are permitted to teach Catholic doctrine, including the belief that homosexuality is a moral disorder, and to hire only Catholic teachers.

The treatment of separate school as public actors is an unstable and unprincipled alternative to fixing the current system – by either ending the special rights of these schools or extending the same rights to other religious schools. The separate schools must walk a difficult line between being public and being Catholic.

If they are too public or secular, then they will cease to have any reason to exist. But if they are too parochial they will lose public support.

None of the leading parties is willing to address this issue. They have decided, it seems, that the political cost of doing the right thing is too high.

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