Judicial Activism, State "Neutrality," and its Effects on the Religious Inquiry in Public Education throughout Canada (Part One)

Education Law Journal 24, 135-164.

This two-part paper examines the extent to which judicial decisions have affected the propensity of teachers and students to engage in religious inquiry in Canadian public schools. I argue that the courts, primarily at the appellate level, have used the Canadian Charter of Rights and Freedoms as a means to increase their discretionary powers over education policy. This, in turn, has served to restrict the discretionary policy options of legislative bodies and local school boards to incorporate educational materials of a religious nature into the curriculum. I argue that the activistic influence of the Canadian courts over education policy pertaining to religious inquiry has, since 1982, taken the form of three "waves." Part One of this study deals with the pre-Charter era and the first "wave" of post-Charter litigation. Part Two deals with the second and third "wave" in this development. The first wave of Charter litigation was dominated by successful, anti-religious plaintiffs; the second, reactionary wave,involved the defeat of pro-religious plaintiffs; the third and most recent wave concerns judicial enforcement of state "neutrality" in the delivery of religion courses not only in Canadian public schools, but also in separate (Catholic) and even religion-based private schools. It is submitted that the judicial claim simply to enforce “neutrality” in public schools with regard to religious studies is unpersuasive. As a result of judicial decision-making in matters of education policy, not only has majoritarian religious education in public schools been rejected as unconstitutional; where they are afforded no explicit constitutional protections, so too have minority religious orientations in public schools been quashed by the courts. Through careful analysis of Canadian case law, I demonstrate that judicial activism in the area of education policy has served not to protect religious freedom, but rather threatens to remove the discussion of religion and the investigation of religious reality from our public schools altogether.

(My publication)Posted:Aug 01 2015, 01:00 AM by sdsteel
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