• Q. Can a Catholic school board require that their student trustees be Catholic?

• A. Yes. A Catholic school board may determine whether its student trustees must Catholic or not.

Before addressing the possibility that these two issues are actually related, I must explain why this issue is of particular concern to me.

• A. Yes. A Public school board may determine whether its student trustees must be children of Public school electors or not.

I would argue that the primary issue is one of representation and not denominational rights in both instances. The majority of issues dealt with by trustees at a board meeting do not go to the heart or nature of Catholicity. Denominational rights become secondary and would only take primacy in very rare instances.

To determine what the dominant policy of Catholic boards with respect to delegations is, I searched CDSB websites until I found a sample of ten such policies. Of the ten sites found two clearly required that a person making a presentation to the board be a Catholic “ratepayer” a term no longer used in the Education Act. Both the neighbouring Niagara and Brant Haldimand Norfolk boards state: “Any Catholic School elector or group may request to address the Board…” Another board that appears to impose such a criteria among the ten is London CDSB. Their policy originally welcomed delegations from “all constituents involved in and/or supporting the Mission of the London District Catholic School Board” however a 2006 amendment now reads the “opportunity will be available to all ratepayers, representatives of Catholic School Councils, representatives of Secondary School Student Councils, employee groups and community groups.” It is unclear if a non-Catholic parent can make a presentation since they are in fact “ratepayers” and the revision does not specifically say “Catholic ratepayers”. It is also appears open to question whether a non-Catholic elector or student as a representative of a school council or student council or board or community group has speaking status before the board. The other 70% of boards make no reference in their policy for a delegate to be a Catholic ratepayer/elector.

On the other hand while searching for policies and bylaws on delegations, I found six policies on student trustees. Five of the six (Toronto, Simcoe-Muskoka, St. Clair, Waterloo and Durham) required their student trustees to be Catholic, one going so far as to state, “a Catholic in Union with the See of Rome”. Ironically, the board whose policy did not appear to stipulate the student be Catholic was London CDSB.

There is little research to assist trustees and parents of either Catholic or Public school boards through this minefield. One Catholic lawyer and professor of education who has addressed it is Dr. J. Kent Donlevy of the Faculty of Education at the University of Calgary. In an article titled “Catholic Schools: The Inclusion of Non-Catholic Students” (Volume 27, Number 1, 2002 of the Canadian Journal of Education) Donlevy’s abstract states:

I examine the adequacy of a Catholic school districts written documents dealing with the inclusion of non-Catholic students. I first describe, in communitarian terms, the nature of a Catholic school community; then I use a contractarian analysis of the school districts written inclusionary policy to better understand its implications. The analysis illuminates several policy deficiencies for protecting the contractual and constitutional rights of both non-Catholic students and their parents. Suggestions are offered, pointing towards the creation of a new, meaningful inclusionary policy.

A recent e-mail correspondence with Dr. Donlevy has resulted in this exchange:

(I apologize for it’s length, however, the full exchange is most valuable to a full understanding of the issues at hand and the subtle but extremely important implications of the “Open Access” provisions in the Ontario instance. Note too, the first description is applicable to Catholic elementary schools.)

J. Kent Donlevy’s Response to initial inquiry:

Good day John. Thank you for the message. Here is my analysis:

(1) Ratepayers of the Catholic school district have the right to be heard by the Board.

(2) Non-ratepayers do not have status with the Board either as electors or as trustees and do not have by law a voice with the Board. This is in part justified by the fact that such parents freely chose to send their children to the Catholic district notwithstanding these restrictions in law. However, this position is ameliorated as non-Catholic families are invited to come to the Catholic school.

(3) Where the school district accepts non-Catholic children into its schools, the district assumes the responsibility for those children and hence acts in loco parentis and ipso facto must be in contact with the students’ parents. That is, the school administration must be in contact with the students’ parents and consider their commentaries and requests notwithstanding that they are non-Catholic as the safety, security, and education of those children is at issue.

In sum, the voice of non-Catholic parents is in law restricted to the actual school wherein their children attend classes. District policy issues are beyond the purview of those parents in terms of representations to the local school board. Of course, such parents may make any comments they wish and send letters to the Board if they wish but the Board is under no responsibility to acknowledge such correspondence. Ultimately, such parents can simply remove their children from the Catholic school district.

Lastly, beyond the legal issues, there is a serious question involving the moral right of such non-Catholic parents to at least have a voice with the Catholic school board. Note that this is not the right to examine the Board members or others in the schools, nor to demand any action on the part of the Board. Simply courtesy and the desire of the Board to be pastoral in its decisions would seem to speak to the issue of non-catholic parents having a voice.

In essence the issue is one of prudently circumscribing the privilege of non-Catholic parents with regard to any possible contact with the Board. I say privilege as it is derived from the privilege which non-Catholic parents have in sending their children to Catholic schools. However, if non-Catholic parents are exercising a legal right to send their children to Ontario’s Catholic schools, this analysis changes dramatically.

Those are a few quick thoughts.

Kent

John Borst’s response to J. Kent Donlevy

Kent,

I very much appreciate your response. It confirms my analysis of the situation. …

Your closing statement, however, causes me to inquire much further into your thinking. In fact non-Catholic parents in Ontario have a right in law at the secondary school level to attend a Catholic high school. They cannot be denied access. The provision is known as the “open access clause”.

I am therefore curious to know how this changes a non-Catholic parents “right” to be heard and a school boards obligation to hear the parents concern in a public question period i.e. at the system level. I say only hear the question because as we practiced it in the boards I worked for and at the one upon which I now sit we often take questions or comments but do not answer or respond to them. We will often say that we will get back to the person or respond to the issue at a future meeting.

This is all very enlightening and I think very cutting edge and future oriented. May I freely share such opinions with others?

Many thanks

John Borst

J Kent Donlevy’s response to John Borst

Good day John.

It is arguable that although in the past non-Catholic parents whose children attended Catholic school had no “right” to be heard by the Catholic board, that situation has now changed, in effect, by the agreement of the Catholic boards’ themselves. How?

The right of non-Catholic students to attend a Catholic school, meaning it is no longer just a privilege, compels the Catholic school board. That element of compulsion in law which was agreed to by the Catholic school boards arguably by implication gives the attendant right to be heard to those non-Catholic parents in matters of decision-making not only at the Catholic school level (which they had before) but also at the policy decision-making level.

I would argue that in accepting the “open access clause” Catholic school boards also implicitly accepted the “open dialogue principle” with non-Catholic parents at the school board level. That dialogue would revolve around issues which do not go directly to the core of Catholicity in the school. Hence, the argument that non-Catholic parents have an implied derivative right to be heard on some issue at the school board level.

I should give the above more thought but those are my preliminary thoughts.

John, feel free to share these thoughts but please state that they are preliminary in nature and subject to scholarly and legal research that has not been done.

Kent

Thus in respect of those two “delegations policies/bylaws” that specify delegates must be Catholic electors/ratepayers consideration should be given to their amendment to as Donlevy states and the majority of boards practice an “open dialogue principle”.

In the case of the Niagara Catholic board’s reconsideration of its open question period policy it is my editorial position that such a policy reflect respect for all parents of children enrolled in its high schools under the Open Access provision irrespective of electoral or ratepayer status.

Further analysis of the nature of the student trustee position under the new legislation is such that it is not materially different than that of a parent making a statement as a delegate or being in a position to ask a question.

The key provisions of the new regulation allow a student to receive an honourarium for service, to be in attendance at in-camera sessions and perhaps most importantly, to be elected directly or indirectly by his/her peers. It does not, however, give the student a vote. It is that fact that gives a student’s voice the same status as a parent’s voice.

Following Donlevy’s analysis of the “inclusionary, non-discriminatory and communitarian” values inherent in a Catholic philosophy of education as detailed in his article when combined with a non-Catholic right to attend a Catholic high school as described above, it is hard to imagine that Ontario’s courts would not find that the right of a non-Catholic student to be elected by fellow students and to represent fellow students at a board table without vote, would or could be denied in law.

The fact that students elected as trustees by their peers have no power to vote means they possess no authority other than to be heard. They can express an opinion and they can ask questions thus it bears repeating they are not appreciably different than a person wishing to inform trustees through a presentation.

As Donlevy describes, in Ontario the right of a non-Catholic student to attend a Catholic high school is more than a privilege; it is a right agreed to by the Catholic school board and enshrined in law. As a result to deny, as the overwhelming majority of Catholic board student trustee policies demonstrate, a non-Catholic student the right to be a student trustee means Catholic trustees want to divide the meaning of a student right. They want to have a right for a Catholic student and a different right for a non-Catholic student. Such a policy is clearly discriminatory, non-inclusive, and is a violation of the contractual nature of the rights agreed to when they agreed to accept non-Catholic students as full equals before the law.

As a Northern Catholic trustee, I would fully expect a student of a Catholic elector in attendance at a Public high school be accorded the right to run for a position on the Public school board and to set as the student trustee if elected by his/her peers. The absence of any such reference in the Trevelyan memo of February 7^th, 2007 would appear to confirm that the Ministry of Education does too. When Catholic boards do not accord such status to non-Catholic students they undermine the reciprocity I and other Northern Catholic trustees would wish from our Public school counterparts.

The Ministry of Education should re-evaluate its stance with respect to Catholic School boards and student trustees. As a review of Catholic school board policies on delegations and student trustees demonstrate, Catholic boards appear to be practicing a double standard; for non-Catholic parents the dominant policy position is liberal, inclusionary and morally compelling while for non-Catholic students as trustees the dominant policy position is arch-conservative, exclusionary and morally suspect.

First it is time all Catholic boards accorded the same status to parents of non-Catholic electors. Secondly with all Catholic boards facing the necessity to revise their student trustee policy, this is an appropriate time to bring the two policies in line.

© Tomorrow’s Trust 2007