Faith in the public school system: Principles for reconciliation

Abstract

Freedom of religion includes both the right to manifest beliefs and practices and the right to be free from state coercion or constraint in matters of religion. This paper looks at the scope and interaction of these two aspects of freedom of religion in the context of religious accommodation issues in public schools. It considers the factors that may be relevant in addressing requests for accommodation in schools and how to address the difficult challenges of ensuring that accommodation of practices does not become and is not perceived as state endorsement or sanctioning of religion.

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Introduction

Well before the ratification of the Canadian Charter of Rights and Freedoms,[1] freedom of religion was an important part of Canadian society. The Supreme Court of Canada acknowledged early on that freedom of religion has two core components. First, it encompasses the right to manifest beliefs and practices, and is therefore also closely related to freedom of opinion and belief. This means that freedom of religion requires that religious beliefs and practices be respected and accommodated. Second, freedom of religion includes the right to be free from state coercion or constraint in matters of religion. Thus, freedom of religion includes freedom from religion.

This paper will explore the scope of these two aspects of freedom of religion, and their intersection and interaction with one another. It will become clear that it is almost impossible to talk about freedom of religion without also considering concerns around equality and discrimination. While these issues arise in many contexts in our modern society, this paper will examine them through the lens of the school system and consider how to reconcile often competing concerns in this highly charged forum.

Legal framework

Section 2(a) of the Charter provides that: “Everyone has the following fundamental freedoms: (a) freedom of conscience and religion”. As mentioned above, the Supreme Court recognized the key components of freedom of religion early on. In R. v. Big M Drug Mart Ltd.,[2] the majority of the Court held:

The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious beliefs by worship and practice or by teaching and dissemination. But the concept means more than that.

Freedom can primarily be characterized by the absence of coercion or constraint…Coercion includes not only such blatant forms of compulsion as direct commands to act or refrain from acting on pain of sanction, coercion includes indirect forms of control which determine or limit alternative courses of conduct available to others.[3]

The Court recognizes, therefore, the dual aspect of freedom of religion. In addition, section 15 of the Charter provides protection from discrimination on the basis of religion (among other grounds). As is true of all Charter rights, neither freedom of religion nor the right to equality are absolute. Rather, these rights are subject to reasonable limits. In many cases the real difficulty or struggle comes in considering what constitutes a reasonable limit on a right and, conversely, when rights are limited in an unreasonable way.

In addition to the Charter, Canadians also benefit from human rights statutes that guard against discrimination on the basis of religion.[4] While the Charter constrains government action, human rights codes protect individuals from discrimination that may be perpetrated by other actors as well, often in the realms of the provision of housing or accommodation, goods or services.

In a public school context, both the Charter and human rights statutes are relevant in developing principles that should guide religious accommodation and respect for religious freedom. School boards are creatures of statute with powers delegated by government. Since a legislature cannot pass a law that violates the Charter, it similarly cannot violate the Charter simply by delegating a power to an administrative decision maker.[5] At the same time, schools provide a publicly available service and are therefore also subject to human rights codes in place across Canada. Finally, each province and territory has legislation that addresses the education system generally. There are often detailed regulations passed in relation to education as well as a significant number of policies, procedures and guidelines in place at the level of local school boards and even individual schools. Where an issue of religious freedom or accommodation is raised, these various instruments will need to be considered.[6]

A matter of principle

It can sometimes seem as though questions of religion in the schools are ubiquitous, with issues and challenges constantly arising. In fact, although we may often read and hear about concerns regarding religion in the media, there are few legal cases that have proceeded to human rights tribunals or courts dealing specifically with religious accommodation in a school environment. Perhaps the best known case is one that required the Supreme Court of Canada to consider whether a Sikh student could wear his kirpan (ceremonial dagger) to school despite the school’s zero tolerance weapons policy. This case, Multani v. Commission scolaire Marguerite-Bourgeoys,[7] demonstrates three important ideas that should be considered in any case concerning religious accommodation in a school environment. First, it recognizes that freedom of religion is not about what religious leaders or texts say is required of adherents, but rather that individual sincerity of belief is the appropriate test.[8]

Second, although the concept of “reasonable accommodation” is usually associated with discrimination claims under human rights statues, the Court in Multani recognizes the role that this concept can play when a violation of freedom of religion under the Charter is asserted. The majority held that reasonable accommodation provides a helpful analogy in assessing whether a limit placed on freedom of religion impairs the freedom as little as possible.[9]Thus, if an accommodation can be found that respects freedom of religion and still achieves whatever goal or purpose the school or board is trying to achieve, the limit on freedom of religion may not be reasonable.

It is worth noting that the Supreme Court has rejected the reasonable accommodation approach in a subsequent case, Alberta v. Hutterian Brethren of Wilson Colony.[10] In that case the majority found that a sharp distinction should be maintained between the reasonable accommodation approach under human rights statutes and a section 1 Charter analysis. This development is concerning because it suggests that there is no obligation on decision makers to engage in dialogue with minority groups, something which is crucial in negotiating issues of religion in a school setting. The silver lining may be the Court’s recognition that, at least when government action or an administrative practice is alleged to violate freedom of religion, the duty to accommodate analysis may still be relevant in considering whether the means chosen to achieve a particular objective minimally impair freedom of religion.[11] Arguably then, this concept should still be engaged where an individual or group accommodation is sought in a school setting.

Finally, the Court in Multani recognizes that schools are a special venue and may present unique opportunities for teaching lessons about tolerance and respect. Claims of religious freedom and requests for accommodation may help open up an important dialogue on these issues. As the majority held:

Religious tolerance is a very important value of Canadian society. If some students consider it unfair that Gurbaj Singh may wear his kirpan to school while they are not allowed to have knives in their possession, it is incumbent on the schools to discharge their obligation to instill in their students this value that is…at the very foundation of our democracy.[12]

Other religious accommodation cases have considered whether a private school could preclude a Sikh student from attending because of a uniform policy that precluded the wearing of a turban,[13] and whether a daycare had a duty to provide meals adhering to a halal diet.[14] Generally, however, the body of law in this area is small and not well-developed.[15] Nevertheless, a number of general principles emerge from both religion and discrimination cases, both in and outside of the school context. These principles help in the development of factors to be considered when decision-makers are faced with a claim of freedom of religion and/or a request for accommodation.

Notes