Dianne Macaulay sits at a picnic table in front of the brand new, $42-million St. Joseph’s Catholic High School at the northeastern edge of Red Deer. Across the road, new tracts of suburban housing and retail centres gradually take over slow-rolling farmland. Built to accommodate 900 students, the school will open to about 500 students this September, alleviating a crush in the local separate school board.

St. Joseph’s is a beautiful facility and much needed because of Red Deer’s steady growth, but Macaulay, a trustee with the public board and the mother of three children who have been through the public system, says the school is also a flash point in a long-simmering debate about education in this province. The Catholic school sits on a 56-acre site that will also eventually house high schools for the public and francophone boards too. A plan hashed out in 2014 between the city, the province and the three boards would have seen gyms, libraries, theatre stages and science labs shared. Instead, in the fall of that year, the Catholic board pulled out, citing a policy forbidding its students from sharing facilities with other children, a policy that had been in place since 2003 but which has frequently been breached.

“It turned from a joint-use facility to a campus with three separate schools, all within three months,” says Macaulay, her voice rising.

As a result of the decision, the two other boards are altering plans for their as yet unbuilt schools, adding their own gyms, libraries, stages and labs—each costing more than they would have had resources been pooled. As Pieter Langstraat, a former superintendent of Red Deer Public School District, told the Red Deer Advocate when the deal fell apart in November 2014, Red Deer could have had a world-class science lab but instead will get two average labs 500 metres apart. “If we were to pool all of our funds and share the space, we could build a state-of-the-art facility,” he says. “That was the idea.”

Every community with public and separate schools has two boards of trustees. Two superintendents. Two head offices.

To Macaulay, the Catholic board’s stance wastes public resources. To others, the situation in Red Deer is just one of many issues that cast doubt on whether separate school boards can continue to be justified in Alberta. Why, in our democratic society, does one religious group have its own, publicly funded school system? Our secular society often clashes with Catholic theology, and religious public schooling would seem at odds with the broader aims of civil society. “When kids play school sports, they come from all boards,” Macaulay says. “If they can play a sport together or go to the playground together, why can’t they go to a school and all be together?” And separate schools may even be unconstitutional. A recent court case from Saskatchewan held that spending public money for non-Catholics to attend Catholic schools breaches two provisions of the Canadian Charter of Rights and Freedoms.

It’s a discussion fraught with controversy and therefore one that politicians avoid. But that may change soon.

It’s impossible to put an exact dollar figure on the cost of having two publicly funded school systems, but areas of duplication are obvious. Every community with public and separate schools has two boards of trustees. Two chief superintendents. Two sets of deputy superintendents. Two board head offices. Beyond spending on the instruction of children in 2015–2016, Catholic boards in Alberta spent $229-million on operations and maintenance, $64-million on transportation and $59-million on administration. Much of these costs would be eliminated in a single system—for example, in rural communities where neither the public nor the Catholic school is at capacity and where one school building could do the job currently done by two.

Luke Fevin is a St. Albert father of three and a cofounder of Alberta Parents for Unbiased Public Inclusive Learning. He estimates the waste from running duplicate systems may go as high as $200-million per year. “That’s more than 1,000 more teachers in Alberta classrooms, or eight brand new schools every single year,” he says. “And for what? There’s no educational advantage. If you’re a fan of education or you give a damn about your tax money, does this make sense?”

Fevin became active in the education debate in 2010, when parents in Morinville, north of St. Albert, were lobbying the local Catholic board to provide a secular option. At the time, the town had only Catholic schools. The families pushed for a secular school, eventually turning to the media and the courts to press their case. After two years of petitions and legal wrangling, Morinville Public School opened in fall 2011. Since then, attendance has gone from 65 to 790 students and the school has added 15 modular classrooms. A new, bigger school is in the works.

David King, a former Alberta education minister who is leading a campaign for a single system, highlights professional development focused on Catholic teaching as an example of extraordinary spending by separate boards. Catholic boards, for instance, support teachers to take a master’s in religious education. “If you’re a science or math teacher, a master’s in religious education is not directly related to refining your pedagogical skills,” he says.

Secular society clashes with Catholic theology. Religious public schooling is at odds with the broader aims of civil society.

King was education minister under premier Peter Lougheed from 1979 to 1986 and then spent two decades as the executive director of the Public School Boards’ Association of Alberta. He says the dual system has a particularly disruptive effect in small communities and rural Alberta, places generally suffering from declining enrolment. “They can’t [adjust to] fragmentation as well as a growing urban community can,” he says. In other words, if a community has only 100 school-aged children, dividing them between parallel school systems strains the resources of both.

But his greatest concern is for civil society. “Public school education exists to be a deliberate model of a civil democratic community,” he says. “It’s the way in which we draw students into an understanding of what it means to be a citizen in our community. Separate-school education is to be a deliberate model of a faith community. Sometimes, being a deliberate model of a faith community contradicts what we want children to understand about living in a civil, democratic community. Gay–straight alliances are a good example. By the time a child is in high school they should be able to form a club if they want to, and they shouldn’t be educated in an environment where the clergy has a right to tell you what you cannot do, even though what you want to do is legal and accepted in the larger community.”

Beyond issues of cost and civic cohesion, Alberta’s Catholic schools have lately played host to morality-influenced scandals. At Red Deer’s École Secondaire Notre Dame, for example, a representative from a local pro-life group recently showed a video to a Grade 10 religion class in which abortion was compared to the Holocaust. Catholic schools across the province have opposed gay–straight alliances, abortion and the HPV vaccination, which health boards across the country promote as a way to prevent cervical cancer. The Catholic Church has taken the position that giving the vaccine encourages premarital sex. Bishop Fred Henry, the leading Catholic authority in Calgary for 19 years, took conservative, faith-based positions on issues of same-sex marriage, gender identity and assisted suicide. Last year he took a stand against gay–straight alliances, calling them “highly politicized ideological clubs” and the NDP government’s new LGBTQ policies “totalitarian.”

Such stances raise the issue of the role of the Catholic Church in the design and implementation of policies and curriculum at Catholic schools. The policy that prevented much of the planned sharing at St. Joseph’s in Red Deer is based on the concept of “permeation.” This is defined by Catholic boards as the ability to profess the faith throughout the school day and throughout the school’s facilities, including regular prayer, liturgical services and symbols of the faith on the walls. St. Joseph’s website, for example, says students will be “called to grow spiritually” through a “Gospel view of life,” adding “Our Catholic faith will be nurtured and experienced in all classes, celebrations and prayer.”

It wasn’t always like this. King remembers a time before “permeation.” He says when he was minister of education, separate boards hired non-Catholics as teachers. “Separate school boards had non-Catholics as superintendents,” he adds. “You didn’t have things like the recent controversy over the establishment of gay–straight alliances or vaccinations. When I was minister, joint school facilities were being built—before [Catholic boards] were opposed to joint facilities.”

How far can permeation go in a publicly funded institution? Adriana LaGrange, the president of the Alberta Catholic School Trustees’ Association, says the bishops weigh in on religion classes and permeation issues but are not involved in the classroom. “Bishops have a duty to protect the faith, and as Catholic educators we share the faith,” she says, “but the bishops are not there on a day-to-day basis overseeing Catholic schools. They do not develop policy.”

Proponents of the Catholic school system point to its historical foundation and to parental choice as reasons to maintain Catholic schooling. LaGrange says some non-Catholic parents want to send their children to Catholic schools. “Some choose to align with faith-based schools,” she says. “There’s always been a percentage who want that fully permeated Catholic school experience.”

Fevin says LaGrange’s definition of choice is too restrictive. He envisions one public system that contains far more than two choices. “Faith options can be provided by any school district that has a local market that wants it,” he says, “but there shouldn’t be any preference given to Catholicism any more than to Hinduism or atheism.”

The existence of separate school systems in Canada is the result of a bargain made at Confederation. Sectarian tension between Catholic and Protestant communities in 1867 had both groups concerned about assimilation. Each faith had built its own system of education and was concerned about losing influence over this important pillar of the growing country. So a compromise was reached. The Constitution Act, 1867 guarantees, in s. 93, public funding for the religion-based separate schools that existed at the time. In practice this allowed for Protestant schools in Quebec and Catholic schools in Ontario. No other provinces were affected, since Nova Scotia, New Brunswick, PEI, Manitoba and BC didn’t have separate schools. (Newfoundland and Labrador didn’t join Confederation until 1949; its separate schools system was abolished in 1997 following a public referendum.)

When Alberta and Saskatchewan were carved out of the Northwest Territories in 1905, political expediency ensured that the protection for Catholic schools was extended into the new provinces. The previous year, Prime Minister Wilfrid Laurier had been struggling to secure Quebec’s Catholic vote in a close federal election. To build support, Laurier agreed to enshrine the right to publicly funded Catholic education for people living in western Canada, where the population was growing. Most of the people settling the West wanted a single, secular school system, however, and the move led to the resignation of Laurier’s minister of the interior—and his western lieutenant—Winnipeg’s Clifford Sifton.

Today, a publicly funded religious school system would not even get off the ground. It would fail labour laws, because Catholic boards’ hiring practices discriminate against non-Catholic teachers. It would not get past human rights legislation, which prohibits discrimination on the basis of religion. In fact, in 1999, the UN Human Rights Committee found that Canada’s separate school system is discriminatory, concluding that if a state chooses to make public funding available for religious schools, it must do so equally for all religions.

The constitutional, legal and ethical issues raised by separate school boards were brought into stark relief in April 2017 in a decision of the Saskatchewan Court of Queen’s Bench. In 2003 a public school board had decided to close a K–8 school in the village of Theodore because the cost of keeping it open could not be justified by the low enrolment. A group of Catholic parents petitioned the minister of education to form a Catholic board to keep the school open. The minister consented and the same school reopened in the fall as a Catholic school with 42 students, only 13 of whom were Catholic. The public board sued, arguing that the constitutional protection of separate schools does not include the right for the school to receive government funding for non-Catholic students. In the Theodore decision—a case officially known as Good Spirit School Division No. 204 v. Christ the Teacher Roman Catholic Separate School Division No. 212 and Government of Saskatchewan—Justice Donald Layh wrote that the community both saved its school and prompted one of the most significant lawsuits in Saskatchewan’s history.

The court confirmed constitutional protection for separate schools but found that the protection is not unlimited and doesn’t include the right for a Catholic board to receive public money for non-Catholic students. Khurrum Awan, one of the lawyers for the public school board, says the court’s ruling was just the gateway issue. “If that protection had been found to exist, the funding of non-Catholics in Catholic schools would have been sheltered from scrutiny under the Charter,” Awan says. “[But] the judge ruled that the constitutional protection for Catholic schools doesn’t extend to non-Catholics and their funding.”

The court held that the current funding arrangement breaches both the equality provisions of the Charter and the state’s duty to remain neutral in matters of religion. “As a simple truism, when a government body provides direct payment to any religious group… to the exclusion of all other religious groups, a Charter violation is axiomatic,” Justice Layh wrote. He relied on earlier decisions of the Supreme Court which found that separate school funding for only certain faiths is “unfair” and “unequal,” and would not be permitted but for the protection offered by s. 93: “In today’s Canada, no newly enacted legislation would be constitutionally permissible if it provided benefits to Roman Catholics and Protestants but no other religious groups.… Allowing one faith group the opportunity, at public expense and incommensurate with rights of other faiths, to model the virtues of its religion to non-members is an advantage that offends the state’s duty of neutrality.”

Will the Supreme Court rule against public money for non-Catholic students in separate schools, thus forcing Alberta’s hand?

The court considered the demographic changes Canada has experienced since 1867 and since the creation of Alberta and Saskatchewan, citing a study which found that in 1861, more than 99 per cent of the population of the original four confederating provinces was either Catholic or Protestant. By the time the prairie provinces joined Confederation, the proportion was 93 per cent in Saskatchewan. By 2011, the time of the latest National Household Survey, the combined percentage of self-identified Catholics and Protestants in Saskatchewan was about 65 per cent. “Put another way,” wrote Justice Layh, “in 1901 the allocation of rights and privileges to protect Catholics and Protestants excluded only 7.25 per cent of the population; in 2011 that protection excluded 34.8 per cent of the population.”

The Theodore decision made waves in the three provinces that still have separate school boards: Saskatchewan, Alberta and Ontario. Alberta in particular has legislation virtually identical to its neighbouring province’s. Saskatchewan Premier Brad Wall has vowed to fight the decision, and should it be upheld by the Saskatchewan Court of Appeal, the case will likely end up in the Supreme Court of Canada.

Its potential impact on education in Alberta can be reflected in the student population. This year 470,000 children will attend public schools in Alberta, and 166,000 will attend separate. Non-Catholics make up 70 per cent of the student body at some Catholic schools (the court in the Theodore school case found the Saskatoon and North Battleford averages were between 25 per cent and 30 per cent). Denying public funding for those students would throw the school system into disarray, as thousands of students would migrate from Catholic to public boards. Some schools would empty out; others would stretch beyond capacity.

Last May, in response to the breakdown of the shared-facilities plan in Red Deer, Dianne Macaulay tabled a motion at a meeting of her Red Deer Public Board colleagues calling for a single, publicly funded school system. While purely a symbolic gesture, the motion passed by only a 4–3 margin—an indication of how divisive the issues are. In an interview with the Edmonton Journal, Guy Pelletier, chair of the Red Deer Catholic board, said it’s “a bit difficult not to take a motion like this personally.” Macaulay insists it’s not personal—and it’s not about religion. “It never should be anti-Catholic and it’s unfortunate that it’s viewed that way,” she says. “Continue with your faith, but my job is education. If we can bring faith into the schools and use it as a way to educate our students, I’m all for that.”

Ironically, the province for which Catholic schools were initially granted, Quebec, eliminated separate schools and opted for a single public system in 1997, the same year Newfoundland and Labrador did. The changes were not universally supported and caused considerable angst during the transition, but they have endured. Few Quebecers argue publicly for a return to the old days.

Not so in Saskatchewan, where Premier Wall has threatened to use the Constitution’s notwithstanding clause to override the Theodore school decision, should it be upheld. “This simply cannot stand,” he told the Regina Leader Post in April. “Consider the implications here. If this has to be implemented by June of 2018, in that subsequent fall, you could have massively overpopulated public schools and empty or near empty separate schools. You actually risk the viability of community schools.” Alberta’s minister of education, David Eggen, said the decision changes nothing—for now. “Any student in Alberta can enrol in the school of their choice, provided there is sufficient space and resources. Our government is focused on making life better and preparing students for success in all Alberta schools.”

LaGrange argues that restricting funding for non-Catholics who nonetheless choose separate schools would cause inequity. “The judge [in the Theodore case] has said parents who are non-Catholic are no longer allowed the choice unless they can pay $10,000 per student, which is roughly the cost of educating a child in Saskatchewan.”

The governments of Alberta and Ontario are no doubt following the progress of the Theodore decision closely, as are the various school boards. It seems inevitable the case will go to the Supreme Court, a process that will take years. Local politicians may stay on the sidelines for now. But if the Supreme Court rules against public money for non-Catholic students in separate schools, thus forcing Alberta’s hand, expect the myriad other arguments against Catholic schooling to surge to the fore.

Michael Ganley is the former editor of Alberta Venture. He lives in Edmonton with his wife and three children.