By GERRY McCARTHY
Special to the National Catholic Reporter
Toronto

A judge has overturned Ontario’s new education law, ruling that the measure violates the right of Catholics to control their schools. The decision has thrown funding of education in the province into disarray, and some have even suggested it could trigger the demise of the publicly supported Catholic school system in Ontario.

Known as Bill 160, the law prompted the largest teachers’ strike in North American history last fall when first adopted.

For American Catholics pondering the potential implications of voucher initiatives, observers suggest the controversy illustrates the political and legal tangles that can follow public dollars into Catholic schools.

The law took away the taxing power of local school boards, both public and Catholic, and placed it in the hands of the provincial government. It also scrapped existing collective bargaining agreements, prohibited principals and vice principals from joining teachers’ unions and severely limited the ability of teachers to strike (NCR, Nov. 21, 1997).

The government has obtained a stay of the ruling pending appeal. The Ontario Supreme Court has scheduled five days in early November to hear arguments.

Catholic reaction to the ruling has been mixed. While teachers welcomed it, Catholic school officials are siding with the government, saying Bill 160 brings Catholic school funding on a par with public schools. The Canadian Catholic hierarchy has so far been mute.

Ontario is the largest of Canada’s 10 provinces and two territories. Its 3.5 million Catholics, however, represent only the second-largest Catholic population in the nation, well short of Quebec’s 6 million.

Under the terms of the 1867 British North America Act, each province enjoys wide latitude to determine its own social policies, including education. As there is no legal requirement for church/state separation, Ontario taxpayers support both public and Catholic schools. Catholic schools are governed by elected boards of trustees.

Bill 160 centralized much power to set educational policy at the provincial level, including the power to levy local school taxes. In a judgment delivered July 22, Harvard-educated Justice Peter Cummings ruled that the bill “makes the Roman Catholic community hostage to the government as to the extent of financing of the separate-school system,” established under the minority rights provisions of the Canadian constitution.

Last fall, 128,000 Ontario Catholic and public school teachers protested Bill 160 by holding a two-week strike affecting 2.1 million students. Teachers objected to the loss of collective bargaining powers. After the strike, the provincial government of Prime Minister Mike Harris further angered teachers’ unions by cutting $300 million from classroom education, slashing teaching jobs and reducing the number of school boards and trustees.

Marshall Jarvis, president of the Catholic teachers’ union in Ontario, told NCR he was pleased that Bill 160 was struck down. “We were quietly confident that the courts would rule in our favor that the Harris government, along with the Ontario Catholic School Trustees, didn’t have the authority to alter the Constitution of Canada,” he said.

Jarvis says it was a serious mistake for the Ontario Catholic School Trustees Association -- an alliance of local Catholic school boards -- not to challenge the Harris government on Bill 160 last fall. At the time, the trustees argued that Catholic schools would reap more funding under Bill 160 and hence should accept the loss of taxing authority.

“The idea of trading rights for dollars was something we opposed,” Jarvis said. “We believed in the aspect of equity funding, but we didn’t believe that it should be at the loss of the governance of our school system.”

Regis O’Connor, president of the Ontario Catholic School Trustees Association, said he was disappointed with the ruling. “We strongly believe we still have local governance for our Catholic education system,” O’Connor said. “All that’s happened with Bill 160, as far as I can discern, is that we have more money to govern with.”

Catholic schools in Ontario were unable to raise enough money “because there was a glitch in our tax system that didn’t enable us to collect industrial and commercial tax assessments,” O’Connor said. “Consequently, our public school counterparts collected much more money. In Sault Ste. Marie [in northern Ontario], for example, the difference in per- pupil expenditure between the public and Catholic boards was something like $1,200 in favor of the public board.”

During the strike last fall, the Ontario Conference of Catholic Bishops supported the teachers’ right to strike and said they were entitled to “just treatment.” However, the conference hasn’t spoken on the ruling on Bill 160. “We intend to analyze it,” Bishop James Doyle, chair of the bishops’ education commission, said in a telephone interview.

Doyle added that he was personally pleased with the decision. He said Catholic boards could end up with both taxation powers and equitable funding. “Up to now it looks good,” he said.

If the government loses its appeal on Bill 160, some have suggested that Harris might seek a constitutional amendment to eliminate Catholic school boards altogether.

Doyle is not worried about that prospect. “There are no signs of that happening at all,” Doyle said. “There’s always been a fear of losing the Catholic education system since Confederation in 1867.”

However, Msgr. Dennis Murphy, education director for the school boards association, says fears of losing a Catholic school system in Ontario are legitimate. “The question of Catholic schools in Ontario has always been a political hot potato almost from the beginning,” Murphy said. “I would say this time the question is more acute, because of what’s happened in Newfoundland and Quebec.”

In Newfoundland, a successful 1997 referendum for a “single system” of education led to the amalgamation of Catholic schools into the public system. A coalition of Catholic educators and clergy is challenging the move in court.

In Quebec, the separatist provincial government is seeking to abolish existing school boards, including Catholic boards, and to replace them with boards organized by language. The effect would be one system of schools for French-speakers and another for English-speakers. While boards could opt to teach religion in schools, a formal Catholic system would no longer exist.

O’Connor, however, doesn’t think the Catholic school system in Ontario is vulnerable. “We have school boards that can’t build classrooms fast enough. Our secondary education growth has shot up, something like 400 percent. The Harris government has repeatedly said they have no intention of trying to bury the Catholic school system into one big public system,” O’Connor said.

Jarvis believes the Harris government must act in a far more democratic fashion on education reform. “The Harris government entered into a secret deal with the Catholic School Trustees Association,” Jarvis said, “Obviously that was the wrong approach according to the court decision.”

National Catholic Reporter, September 4, 1998

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