Apr 5th, 2018
The Justice Centre has filed a court application on behalf of a coalition of parents and independent schools, challenging the constitutionality of School Act provisions added by Bill 24, An Act to Support Gay-Straight Alliances.
The Justice Centre seeks to strike down provisions of Bill 24 as violating the rights of parents and schools protected by section 2 and section 7 of the Canadian Charter of Rights and Freedoms, the Alberta Bill of Rights, and the International Covenant on Civil and Political Rights. The court application also seeks an injunction, so the new law will not be in force for the duration (one to three years) of this court application.
The focus of this court application is protecting the rights of parents to be informed about what their child is doing at school. Bill 24 prohibits principals and teachers from informing parents about their child’s participation in student organizations or “activities”. Before this law’s passage in November of 2017, teachers and principals could exercise discretion as to what information to withhold from which parents. Importantly, decisions had to be made based on the unique needs and circumstances of each student. Moreover, in cases of actual or suspected abuse, teachers (and all citizens) are legally obligated to inform child welfare agencies when kids are, or might be, in danger.
The applicants include more than ten individual parents who are concerned about Bill 24’s provisions that prevent parental knowledge about their children in GSA-related activities. Creating no-go zones for parental awareness jeopardizes the safety of Alberta’s children, especially the most vulnerable, and undermines parents’ ability to support and protect their own children.
The applicants also include 26 faith-based schools in Alberta, including Jewish, Christian, and Sikh schools. Bill 24 threatens faith-based schools by attacking the freedom of these schools to create safe and welcoming learning environments while also respecting their unique religious characters, and by preventing schools from being open and transparent with parents.
Bill 24 was passed by the Alberta Legislature in November of 2017. Bill 24 amends the School Act to make it illegal for the school principal to notify parents about their child’s involvement in student organizations, including Gay-Straight Alliances (GSAs), or “activities” established under section 16.1 of the School Act.
Prior to the passage of Bill 24, principals and teachers had discretion to withhold information from parents on a case-by-case basis. In rare and unusual cases where there was a risk that providing parents with information would result in a risk of abuse or other harm to a student, schools had the legal authority to withhold information from parents. Bill 24 removes this discretion from teachers and principals, and replaces it with a blanket prohibition that prevents informing all parents, without exception, about their children’s involvement in GSAs and GSA-related activities.
Bill 24 further requires principals to set up a GSA or facilitate a GSA-related activity “immediately” (at the request of one student) without consulting the school board or parents, and without considering whether the GSA and GSA-related activities are compatible with the school’s nature, character and values. Parents with concerns about the sexual or ideological content of what is presented in GSA meetings or at GSA-related activities can no longer protect their children from this content, due to the secrecy provisions of Bill 24.
Bill 24 makes no distinction between a five-year-old in Kindergarten who is experiencing gender identity confusion, and a seventeen-year-old in Grade 12 who does not wish to discuss sexuality with his parents. In both cases, teachers are legally barred from providing any information to parents about GSAs or GSA-related activities. The Alberta government’s GSA Network website welcomes queries from children, and asks whether they are in elementary school or high school.
The Supreme Court of Canada has ruled that government may not interfere with parental rights to make decisions for their children, unless the government first proves that the parents’ decisions are harmful to the child, or that the child is a mature minor and has made a fully informed decision contrary to parental views. Government may only interfere on a case-by-case basis, and government must bear the onus of proving or justifying its interference in a court of law, upon notice to the parents, who can dispute the government’s claims.
Bill 24’s infringement of parental rights is not justified by a blanket ban on withholding information from all parents, including the 99% of parents who love and support their children unconditionally, and know their children better than anyone else. Requiring school principals and teachers, by law, to withhold information from all parents without exception is contrary to the Constitution, contrary to Canada’s legal obligations under international law, contrary to the Alberta Bill of Rights, and contrary to other Alberta legislation such as the Family Law Act.
Section 7 of the Charter only permits interference with a parent’s role after due process, on a case-by-case basis, in accordance with the principles of fundamental justice. Section 2 of the Charter protects a parent’s right to educate based on parents’ own conscience and religious beliefs. The Charter also protects the right of religious educators not to be compelled to express thoughts and beliefs against their will.
The prohibition on parental notification concerning a GSA or GSA-related activity violates the fundamental right of parents to be informed concerning their children’s education. Further, there is no real benefit to be realized from the prohibition, since the few children at risk from their parents are already protected by child protection legislation.
Bill 24 evidences the government’s intention to control parents and religious schools and infringe their constitutional rights. In so doing, the government undermines or effectively negates the exercise of parental rights in education, through the choices of parents to opt out of the public schools and enrol their children in schools consistent with their beliefs, religious and conscientious. Rather than respecting parents’ choices, Bill 24 instead compels independent schools to adopt policy positions in support of the government’s preferred ideology, evidenced in the materials it supports and recommends for use in GSAs. This requirement violates parents’ and private schools’ fundamental freedoms of conscience and religion, thought, belief, opinion and expression, and association, guaranteed under section 2 of the Charter.