Americans have been using the law to reform education for over a century. This activity, especially in the last four decades, has been in either real or symbolic recognition of the desire to reform society by the legal manipulation of schooling.
Now, for the first time, Canada is about to embark on a similar venture. The country having recently adopted its first written constitution, Canadian school officials, attorneys, and courts are anticipating a possible flood of constitutional litigation through which they may either significantly democratize and improve their education system or become paralyzed by a mass of brittle legalisms. Canada’s experience as a new frontier for education reform will provide a set of experiences from which Americans have much to gain, including the impetus for a long-overdue re-examination of the role of law in American education reform.
Canada’s culture, education system, and new constitution--though certainly different from ours--are similar enough to make a comparison of education-reform issues in the two societies useful to both. Such a process formally began in June 1983 when Canadian educators, legal scholars, and policymakers gathered for three days of discussion under the insightful leadership of Michael Manley-Casimir, professor of education at Simon Fraser University in British Columbia. The central question occupying the participants was whether the Canadian Charter of Rights and Freedoms will be a catalyst for education reform.
The Charter of Rights and Freedoms differs from the U.S. Constitution in several important ways. The Charter lists among the fundamental freedoms of Canadians, in a section similar to our First Amendment, not only freedom of religion, but freedom of “conscience.” The implication of this concept is that the formation and expression of secular as well as religious beliefs are protected from government manipulation. In its section on “equality rights,” the Charter lists not only equal protection but “equal benefit” of the laws. It also enumerates, but does not limit, the categories of discrimination that are forbidden under the Charter. The list includes “race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.” The breadth of coverage of equality rights is thus significantly expanded over that of the U.S. Constitution. Coupled with the Charter’s Section 28, which calls for equal rights for “male and female persons,” this section appears to do what an equal-rights amendment to the U.S. Constitution would do. Significantly, the equality provision also contains a section legitimizing affirmative-action programs designed for “the amelioration of conditions of disadvantaged individuals or groups. ...”
Perhaps most novel in the Charter is a provision guaranteeing “Minority Language Educational Rights,” the thrust of which is to preserve the right of English- and French-speaking minorities to have their children educated in their own language. The same constitutional sensitivity to cultural diversity and pride is expressed in a clause requiring Charter interpretations that are “consistent with the preservation and enhancement of the multicultural heritage of Canadians.” The Charter also protects the rights of “denominational, separate, or dissentient schools” to continue to receive public funding. The apparent intent of this clause is the preservation of economically meaningful family choice of religious or independent schools, and its effect will be to continue a practice of state-subsidized choice that many Americans fear.
Canadian culture and education also display important differences from the United States, and these suggest differences in what may be accomplished by using Charter litigation for education reform.
For example, both countries are pluralistic, but the Canadians must accept a bilingual inheritance, and assimilationism must necessarily be more muted. Thus, Canadians may have a greater capacity to credit cultural diversity in their school system than we do. Canadians are less concerned with ensuring that government-run schools are the only ones that receive tax dollars when freely chosen by Canadian families (although real freedom of choice remains an issue because of limitations on government spending on non-government schools). The dominant group in Canada shares the same roots in English liberty as does the U.S., but Canadians have tolerated government controls and majority impositions in schools and elsewhere that many Americans would find repressive. Finally, Canada has a more conservative judicial tradition and a less stridently individualistic culture than does the U.S. These facts taken together suggest a reluctance to produce massive education reforms through the litigation of individual rights and freedoms.
In spite of these and other differences in culture and constitution, Canadians and Americans do face some similar education-reform issues.
First, both societies are concerned with finding ways to promote educational excellence without over-regulating schools and without denigrating the rights of subcultures and individuals to define excellence according to their own visions of the good life and sound citizenship. At issue here is the balance between schooling as a utilitarian expression of “national interest” and education as a form of individual development and cultural transcendence. Insofar as education is a process of cultural transmission as well as individual liberation, this balance will be as difficult to strike in Canada as in the U.S.
Second, both societies are in search of ways to secure equality of educational opportunity, especially for women, for ethnic, language, and racial minorities, and for those with inadequate financial resources. Canada, though it has a long and honorable history of protecting fugitive slaves from the U.S., has also neglected and discriminated in schooling against non-Europeans and people who settled Canada before the French and English. In Canada and the U.S., the tendency to tolerate a scarcity of education resources just where they are most needed, or to abandon respect for cultural differences where those differences are most in evidence, sets up a painful tension in societies that proclaim an equalitarian ideal but live a hierarchic reality.
Third, both societies are struggling to arrive at a clear understanding of the roles of teachers and students in an over-institutionalized school setting. To enhance the status and skills of teachers and to provide a fair measure of respect for students might make teaching and learning more productive, but neither goal is easy to achieve amid a crossfire of competing special interests and shrinking education budgets.
Mr. Manley-Casimir boils these grand issues down to two that he feels are most likely to emerge as early targets of education-reform litigation under the Charter of Rights and Freedoms: the preservation of English and French minority-language rights in education; and the provision of equal benefit of the law to gifted as well as special-needs children. The similarity to our own issues of bilingual education and the targeting of education resources is clear. Further down the line, Mr. Manley-Casimir sees cases involving the equalization of public funding for independent- and religious-school students, who currently receive only about 25 percent of the tax money flowing to government-school students in many places in Canada. Our struggles on the national and state level over tuition tax credits and tuition vouchers provide the American parallel.
Mr. Manley-Casimir says that issues such as student rights and equitable financing among public-school districts are not likely to arise any time soon in Canada--the former because the Canadian public is not receptive to the idea that students are people with rights; the latter because financial disparities among public-school districts are not nearly so glaring in Canada as they are in the U.S.
It is, of course, too early to say how well Canadians will do in handling these issues of education quality, equality, and liberty. (The equality provision of the Charter does not take effect until 1985, though other sections are already in place and being tested in lower courts.) For now, American educators and school reformers might wish their neighbors to the north well, hoping to learn from their success how to improve our own, similar, system. Or we might be jealous of the Canadian opportunity, wishing we could extricate ourselves from a hyper-legalized and bureaucratized present and take part in fashioning an as-yet-uncharted future. We might even hope that those seeking to reform schooling in Canada through law do no better than we have done, thereby showing that Americans have accomplished the most that could be expected with seemingly intractable problems. But whatever our personal or professional views, developments in Canada are likely to become a rich source of information about new possibilities for dealing with old dilemmas.
It is plain that we have much to learn from the unfolding of these issues in Canada, especially by observing how much reform can take place through compromise and mediation, and without the legalization of education policy that usually comes from taking an adversary posture toward asserted education rights.
We may also discover new ways to think about these issues if the Canadian experience prompts a thoughtful and thorough retrospective review of how well American education reform through law has worked. My initial review of the long history of education litigation in the U.S. yields the discomforting conclusion that, in spite of enormous advances, there have been a number of substantial and persistent misconceptions and errors in the U.S. experience of using litigation to reform schooling. Such an initial review indicates that a more complete retrospective of law and education reform in America would not only refresh the past but clarify the present reform possibilities.
America was, for those who came here voluntarily, a frontier of opportunities to build a better life or simply to escape the oppressiveness of an ossified and over-regulated past. We have been exploring new frontiers ever since. But perhaps now (in education at least) it is America that has become ossified and over-regulated--a society in which policy assumptions, institutional restrictions, and vested interests have come to outweigh opportunities. Perhaps there is some of the hopefulness and flexibility of the frontier in the Canadian opportunity for education reform. American educators and reformers do not need to emigrate to Canada, however, to discover whether there are better ways to realize the enduring quest for equitable educational excellence. Simply by reviewing our own successes and failures honestly, and watching Canada’s emerging struggle with an open mind, we may be able to awaken our sense of the possible and our will to cut through the old restraints of mind and institution.
