An Inexplicable Restriction
The goal of charter schools is to give educators freedom to explore and discover new routes to student success. Given an abundance of research pointing to the efficacy of faith-based education, including the positive effects of matching religious students to schools of religious fit, it is striking that religious charter schools are restricted.
No clear rationale for this restriction is present in official policy documents or the legislative debate that went into legally instituting charter schools.
Different Constitutional Realities
This prohibition is not founded on evidence, reason, or jurisprudence but is rooted in American charter-school laws—alien to Alberta and illogical to retain.
The Canadian and Albertan constitutions understand church-state separation differently from the understanding in the US. In deference to the Establishment Clause of the First Amendment, American laws specify that charter schools must be nonsectarian. The prohibition does not make sense in Canada, as Alberta has constitutionally protected denominational, i.e., Separate, schools.
Catholicism is the Charter of a Separate School
Alberta Separate schools enable the religious freedom of Catholics in at least three ways:
- Permeation—Catholicism informs and shapes the way that every subject is taught and what the ethos of the school is like.
- Control—To guarantee permeation, the faith community controls the operation of the school.
- Accessibility— There are no financial barriers to enrolment.
Educational Freedom Is Part of Religious Freedom
Catholics almost exclusively enjoy the benefits of constitutionally protected Separate schools, which exist because key architects of the Constitution saw educational freedom as essential to religious freedom. Religion is realized only in a community of faith, where deeply held convictions and a rich cultural heritage are shared, and it is through education that this is passed down from generation to generation. Where freedom of religion truly exists, freedom of education must co-exist. This is the vision enshrined in the Constitution Act, 1867.
Public Policy Problem
If the principle of religious freedom means that Catholics have a right to their own publicly funded schools, where does this leave other religious communities?
Due to the restrictive language in the Constitution Act and the Alberta Act, non-Catholic faith communities in Alberta do not enjoy the fullness of this right in the way that Roman Catholics do.
- Alternative religious schools have accessibility but not control (which can threaten permeation).
- Independent religious schools have control and permeation, but not accessibility since tuition fees are a financial barrier.
- Homeschooling is not an option that is accessible to all parents.
All faith communities should enjoy the same constitutionally protected freedoms as Catholics do.
Accordingly, the prohibition on faith-based charter schools should be removed. Also, the Charter Schools Regulation should be amended and a reference should be added to make clear that charter schools can be run by a society incorporated under the Religious Societies’ Land Act.
Education policy in the province of Alberta is unique in many ways. One of these is the creation of charter schools, beginning in 1994 and currently regulated by s.s 24–27 of the Education Act. These charter schools were initially beset with several constraints, some of which were shed by subsequent legislation. The most recent example is the Choice in Education Act (Bill 15) of 2020, which amended s. 24(2) of the Education Act to ease the process of establishing a charter school. At present, thirteen charter schools operate in Alberta. Time will tell whether Bill 15 enables this number to rise.
The Choice in Education Act was met with derision in some quarters. Gil McGowan of the Alberta Federation of Labour tweeted that in so legislating, the governing United Conservative Party “paves the way for nutbar religious charter schools. . . . They’re trying to create an army of brainwashed right-wing warriors.”1 The problem with McGowan’s somewhat conspiratorial accusation is that s. 26(6) of the Education Act mandates that a “charter school shall not be affiliated with a religious faith or denomination.” Bill 15 did nothing to change this. Legally, there cannot be “religious charter schools” in Alberta, let alone any of the “nutbar” variety.
But this does raise the question of why the Education Act forbids charter schools to be religiously affiliated, and whether this prohibition is one of the restrictions on charter schools that should have been dropped in Bill 15. According to the Hansard records, at no point during the (sometimes heated) debates among MLAs about charter schools has the topic of their religious status been discussed, making it a challenge to discern what the intent of the legislature was in instituting this restriction originally. Scholars who make reference to the religious prohibition also seem to take its unexpressed logic for granted. For instance, Bosetti and Gereluk state that Alberta charter schools “are granted flexibility and considerable autonomy to implement these innovative or enhanced educational services to improve student learning in some measurable way. As sites of innovation, they have increased responsibility for research and dissemination of effective practices,” adding, as though it self-evidently follows, “Given these restrictions, charter schools cannot have a religious affiliation.”2 The prohibition is even more curious when we consider that charter schools, like government-run schools (called public schools in the Education Act), are permitted to offer religious instruction under s. 58(1)(a), as long as parents are given prior notice and the option to withdraw their child from these class sessions. A charter school can therefore teach religion but cannot be religious.
This restriction is also unusual for being the only such limitation on religious education in the province. Alberta not only maintains publicly funded Separate Catholic school districts but also provides funding for faith-based independent schools (referred to as private schools in the legislation) and allows alternative religious programming to be offered by public school boards. Allowing alternative schools3 to be religious is another feature that makes Alberta unique among the provinces.4 Finally, publicly supported homeschooling in Alberta (which was also given a boost by Bill 15) is a common outlet for parents to provide their children with a religious education. Charter schools are thus the only educational option in Alberta that is forbidden from being religiously affiliated.
The restriction is even more curious given the historical purpose of charter schools, which was to grant educators freedom from arbitrary restraints to explore new avenues for student success. Blocking off any avenues that may involve religion seems to be at odds with this intention. Further, in failing to offer a useful definition of what it means to be religious, the Education Act’s prohibition is arguably incoherent. This host of difficulties makes the rationale behind s. 26(6) even more opaque.
The Charter Schools Handbook states that charter schools are not “intended to replace the services offered by private religious schools.”5 (This is the closest we come to an explanation for the religion prohibition in the government documents.) Yet alternative schools are not intended to replace independent schools either, and they are allowed to be religious. Indeed, independent schools are not intended to replace Separate schools, and yet they are still allowed to be Catholic (such as Clear Water Academy in Calgary). This “non-intention” therefore fails as a justification for restricting charter schools in this way.
One explanation we could posit for the prohibition is that religious charter schools are redundant, given that parents already have such a rich buffet of religious educational options available to them. If the rationale were this innocuous, it is odd that confessional status was specifically forbidden rather than simply left unmentioned. But even if this were the reason for the restriction (and this paper will argue that its true origins lie elsewhere), it would be mistaken. If we consider the historical justification for s. 17 of the Alberta Act 1905, which enshrines Separate denominational schools within Alberta’s constitution, we will find that neither independent nor alternative schools fully achieve the goal of religious freedom that Separate schools were meant to attain for Catholics. This goal involves granting religious communities both access to and full control over a faith-based education for their children. Currently, this goal has been fully realized only for the Catholic community in Alberta, and only because of its constitutional status. Alternative schools fail to achieve full control, and independent schools fail to achieve accessibility. Religious charter schools, however, would come much closer to achieving this ideal for believing non-Catholics. This is especially fitting given that the purpose of charter schools since their inception has been to grant both teachers and parents freedom to offer students an education based on a different philosophy than what is prevalent in government-run schools. This type of educational freedom is a fitting vehicle for religious freedom.
This paper will argue the following:
- Studying the history of charter schools and their adoption in Alberta reveals that the most likely reason for the prohibition is that American charter schools also had this prohibition, in deference to the First Amendment. Since Canada does not have a similar Establishment Clause, the restriction is an unjustified importation of American constitutional requirements onto Albertan legal soil.
- One of the major themes of Canadian and Albertan legislation and constitutionalism (however imperfectly these have been realized) is a sound and accurate recognition that religious freedom entails the freedom of a religious community to control its medium of education and to be financially unhindered from accessing it. Granting full public funding to self-governing religious schools would best embody this principle. This is already granted to Catholic schools, but it is only a partially realized goal for other religious communities. Allowing charter schools to be avowedly religious would fully allow them the same freedoms that Catholics rightly enjoy.
- The prohibition on religious charter schools is incoherent and inconsistent, lacking a clear and useful definition of what it means for education to be “religious” as opposed to “cultural” or even “spiritual.” Religious charter schools likely already exist, and, in a sense, non-religious education is an impossibility.
- Since the goal of charter schools was always to allow educators to explore different kinds of pedagogy, forbidding confessional charter schools is at odds with the very purpose of charter schools, and allowing religious charter schools to exist would provide researchers with material to consider different styles of education and come to more informed conclusions about what leads to student success.
It is therefore in the best interest of teachers, students, and society for the prohibition to be dropped.
The Nature of Alberta’s Charter Schools
Charter schools, as defined in and governed by the Education Act, the Charter Schools Handbook, and Alberta Regulation 85/2019 (Charter Schools Regulation), are schools that operate according to a different pedagogical model than government-run schools and independently of a public school board, but which still receive full public funding. They are run by non-profit societies that have made an agreement directly with the minister of education. This agreement is the eponymous charter. It elucidates “the unique educational service the school will provide, how the school will operate and the student outcomes that it intends to achieve”6 and must focus on “a learning style, a teaching style, approach or philosophy or pedagogy that is not already being offered by a board” (Education Act s. 25(1)).
The charter is therefore the distinguishing feature of a charter school. “The philosophy, purpose and goals” laid out in the school’s charter are that school’s “reason for existence.”7 There is even “an expectation that whatever facility is used will augment the philosophy and learning expectations of the school” as outlined in its charter.8 The charter therefore gives the school its identity and its ethos. Tellingly, Thompson, Gereluk, and Kowch9 compare this to how Catholicism provides Catholic schools with a unifying vision that gives them their identity. Like Catholic schools, charter schools are permeated by, and exist to promulgate, a particular philosophy that is different from that of the government schools. Examples include the Aurora Academic Charter School, which is based on traditional pedagogy; Connect Charter School, which focuses on inquiry-based learning; New Horizons School and Westmount Charter School, which target gifted learners; and Suzuki Charter School, which employs the Suzuki method of music education.
A charter school is controlled by a charter board, which must be a “society incorporated under the Societies Act or a company registered under Part 9 of the Companies Act” (Charter Schools Regulation s. (8)(a)). (The Religious Societies’ Land Act is conspicuously absent from this provision.) Allowing a Separate board to control the school is a way of ensuring that the charter’s philosophy will be safeguarded in the way that school functions.
This autonomy, which is similar to that of independent schools, is a significant factor to many parents. After 1994, superintendent Emery Dosdall of Edmonton Public Schools Board (EPSB) began encouraging communities that were seeking to open charter schools to instead form alternative schools, possibly as a way of keeping per-pupil funding within government-run schools. (Dosdall’s campaign was aided by the fact that, at the time, the Education Act required aspiring charter boards first to seek to form an alternative school and could request a charter only if the public district declined their application.) Although there was a surge in alternative schools as a result of this effort, some groups still chose charters because of how highly they prized the autonomy that came with them. The fact that the Aurora Academic Charter School, which operates on traditional education principles, was formed after the seemingly similar Cogito alternative school was already available “demonstrates that certain parents preferred charter schools even if a similar public program was being offered. To this small group, the autonomy of charter schools from public school boards was just as important as in-class pedagogy and instructional modes.”10 We will later see that some faith-based independent schools have declined to become alternative programs for the same reason.
In exchange for this autonomy, charter schools accept an additional level of accountability.11 Charters run for up to five years, at which point the minister measures whether students can be observed to have an “improved acquisition, in some measurable way,” of the “knowledge, skills and attitudes” that the charter extols.12 If this achievement is not evident, the charter is not renewed and the school comes to an end. Two charter schools in Alberta have folded, showing that this review process is not a mere formality.13
The experience of Alberta’s charter schools has not borne out any worries that they foster social or economic elitism. Although some charter schools, as we have acknowledged, are oriented toward academically stronger students, we can also observe charter schools dedicated to helping youths whose education has previously been interrupted (Boyle Street Education Center), to teaching English as a second language, particularly to recent immigrants (Almadina Language Charter Academy), to preserving traditional Indigenous teachings (Mother Earth’s Children’s Charter School), to supporting underachieving students (Centre for Academic and Personal Excellence), and to fostering a strong sense of self and understanding of gender issues in girls (Calgary Girls’ School).
Despite this, concerns that charter schools were a vehicle for privatizing education led the Progressive Conservative government that introduced them to place several constraints on their formation. In 2002, Bosetti and O’Reilly could accurately assert that “the Alberta charter school law is more restrictive than expansive in nature.”14 This has become less accurate under the United Conservative Party’s leadership. In the past, only fifteen charter schools were allowed to operate in Alberta at a time,15 but this cap was dropped in 2019 upon the passage of Bill 8. Further, as we have acknowledged, s. 24(2) of the Education Act formerly mandated that a request to open a charter school could be submitted to the education minister only after it had first been (unsuccessfully) pitched as an alternative program, which effectively gave priority to government-run schools; this is no longer the case after Bill 15. Finally, Bill 15 has also amended s. 25(1)(a) to add “vocation-based education” as a possible focus for charter schools. Yet the restriction on religion remains intact. Contra McGowan, the UCP government’s fondness for charter schools seems to be based on capitalistic rather than faith-based motivations.
If we consider the requirements laid down for charter schools, it is not obvious how explicit religiosity would be inconsistent with any of them. Section 25 of the Education Act states that in addition to providing programming that is not already offered by a public board (a requirement that needs to be understood in the light of the fact that the Aurora school was permitted even though public Cogito schools already existed), a charter school must have “the potential to improve student learning outcomes,” should demonstrate “collaboration or engagement with a post-secondary institution or a school division,” and should have “the potential to provide improvements to the education system as a whole and to enhance education research and innovation in Alberta.” All of these are easily compatible with religiously based education.
“Potential to improve student outcomes” can be understood in at least two different but closely related senses. First, charter schools themselves need to elucidate their charter philosophy in the form of “written . . . measurable goals and the outcome statements derived from those goals.”16 We can see an example of what this would look like in a religious charter school by considering Mother Earth’s Children’s Charter School, based as it is on Indigenous wisdom tradition, which has as a charter goal “Spiritual Connectedness” with the intended outcome that “each child will understand how his/her spirit connects to the world around him/her.” To measure whether this has been achieved, the indicator of success is the “percentage of students . . . participating in cultural/spiritual programming, ceremonies and events,” the goal being that 100 percent of the student body will so participate.17 It is not difficult to postulate similar outcomes and measurements for other spiritual traditions.
Second, in its “Policy and Requirements” for charter schools, the Alberta government lays down “Required Outcomes and Performance Measures” that these schools are to follow. Most recently, these include outcomes such as that “Alberta’s students are successful” (measured by predictable rubrics such as the overall percentage of students who achieve excellence on the Provincial Achievement Test) and that “Alberta has excellent teachers, school leaders, and school authority figures.”18 That religious schools have, in the legislation’s helpfully open-ended language, the “potential” to achieve these is easy to show. Multiple studies have discovered a correlation between religious schools and higher academic performance by students, even when controlling for socioeconomic factors,19 and though we should not take this to mean that a religious school will necessarily lead to improved performance among its students, it is certainly grounds enough to say that the “potential” is there. At a minimum, religious matching—pairing students and schools of the same faith community—correlates with better educational outcomes.20 Similarly, scholars have noted the way that religious values can influence school administrators’ conception of themselves as servant leaders and shape their policies accordingly.21 Religious schools easily satisfy this requirement for charter schools.
As for collaboration with a school division or post-secondary institution, this is also easy enough to imagine. We already have some precedent for it in the way that public districts collaborate with the alternative religious schools that operate under their oversight. This is even possible across denominations and religions, or in situations where the public schools are unwilling to support religious programming. When the Calgary Board of Education discontinued its contracts with two Jewish schools in 1983 on the grounds that the Board no longer wished to provide faith-based education, the Calgary Catholic Separate School Board partnered with them instead.22 There is already precedent for a Catholic school board collaborating with a charter school (the discontinued Moberly Hall Charter School in Fort McMurray), and there is no reason they could not do the same for the charter schools of other religious communities.
Finally, it should be apparent that allowing religious charter schools would provide valuable fodder to researchers investigating the effects and successes of different types of schools and forms of pedagogy, and that the education system as a whole could benefit from this sort of research. In a study comparing the academic performance of students in government-run, charter, and independent religious schools in the United States, which also found that religious schools were the most consistently successful, Jeynes23 proposes that teachers in secular and in religious schools have much to learn from each other. He lists different possible explanations for religious schools’ success, such as the pervasive belief in the God-given potential of each child and the sense of purpose in life that is imparted to students in these schools. These are factors that non-confessional schools could study and learn from, without having to replicate the religious beliefs that originally gave rise to them.
Religious schools where prayer and meditation are fostered, or where certain forms of dogmatically mandated pedagogy are used, can similarly provide valuable material for researchers and could be employed in different ways by educators generally. Jewish students have been shown to have a higher cognitive performance after kissing the mezuzah (a small box containing Hebrew prayers) on their doorframes before taking a test.24 One does not need to believe in the spiritual efficacy of prayer to see this finding as valuable; in fact, believing that the subsequent cognitive improvement is entirely psychological in origin makes this research even more valuable to secular educators seeking to find ways to improve student performance through different kinds of emotional motivation. Meanwhile, in traditional Islamic education, there is a strong focus on memorization because of the requirement to commit the Arabic text of the Qur’an to memory. Researchers have found that some students experience the skills they acquire from this kind of pedagogy as being transferable to other areas, such as language learning or recalling simultaneous equations in math class.25 Surely this kind of research would be valuable for non-Muslim educators who wish to understand what kind of techniques students can use to retain large amounts of information. These are only a few examples of the ways in which religious charter schools could be studied to the benefit of education in general; several more could be added.
What would make religious charter schools uniquely valuable to researchers is that they would provide research fodder without certain variables potentially skewing the research. By being publicly funded, they would not have the complicating factor of tuition possibly being a barrier to entry; by being controlled by religious communities, there would not be the same concerns about government management compromising the specifically religious character of the instruction.
Thus, all the criteria for charter schools laid down in the Education Act are perfectly compatible with religiosity. Nothing about these requirements excludes confessional schools; religious charter schools would seem to be perfectly in keeping with their expressed purpose. We will need to look for the source of the prohibition elsewhere.
The Origins of Charter Schools
To properly consider the appropriateness of allowing or forbidding overt religiosity to charter schools, we should clearly understand the reason that charter schools exist at all, then determine whether religion is compatible with their purpose. This, in turn, is best established by looking at the origins of charter schools and the initial legislation instituting them.
Charter schools have long been recognized as a quintessentially contemporary American experiment.26 This does not mean that they are without analogy elsewhere, or that they are entirely novel. They share traits in common with preceding experiments such as magnet schools and innovative schools.27 They can also be likened to grant-maintained schools in the UK and to independent schools in New Zealand and Sweden.28 Albert Shanker, who first coined the term “charter schools,” was specifically inspired by a school he visited in Cologne, Germany.29 Nevertheless, the notion of and initial push for charter schools was based entirely within the United States, and they continue to display birthmarks from this heritage.
Although charter schools today have a certain reputation of being a darling of the right-wing and as rivals to government-run schools and teachers unions, Shanker was the long-time president of the American Federation of Teachers, whose union activism was exemplified by his having led a thirty-six-day New York teachers’ strike in 1968. His advocacy for educators, however, included a concern that administrative bureaucracy was stifling teacher innovation. After witnessing the freedom of teachers in a German experimental school to determine their own curriculum and pedagogy in 1987, he developed the idea for similar institutions in America. He dubbed these hypothetical institutions “charter schools,” adapted from a model Ray Budde first proposed in 1974 and outlined in his 1988 book Education by Charter. Shanker was attracted to the way the word “charter” evoked explorers who were granted charters “to seek new lands and resources,” just as charter-school teachers would be “engaged in a search” to discover what was best for their students.30 Shanker first publicly proposed charter schools in a 1988 speech to the National Press Club and in a New York Times column later that year.
Shanker’s idea was picked up by Ted Kolderie and Joe Nathan of the Citizens League in Minnesota. Kolderie and Nathan adapted the idea somewhat, envisioning charter schools as being run by associations that were independent from school districts.31 The Citizens League successfully campaigned for the Minnesota Legislature to pass the first charter school legislation in 1991.32 Just as the Minnesota legislature was controlled by Democrats at the time, California, the next state to adopt charter-school laws, also had a Democratic majority when it passed these laws in 1992. The champion of charters in California was the Democratic senator Gary K. Hart, a former schoolteacher who also wanted teachers to have more control over their schools and classrooms.33 When President Clinton signed the Federal Charter School Program into law in 1994, charter schools continued to have bipartisan support.34 Today, there are over seven thousand charter schools in forty-four of the United States, along with the District of Columbia.35
The same year that the United States federally recognized charter schools in the Improving America’s Schools Act, Alberta also passed legislation introducing charter schools into its programming after a government report identified the absence of meaningful competition as the reason why government-run schools were supposedly failing.36 Bill 19, amending the Education Act to (among other changes) allow for charter schools, was tabled by education minister Halvar Jonson, who, like Shanker, had a background in union leadership, having formerly served as the president of the Alberta Teachers Association.37 This was in continuity with an Alberta tradition of educational pluralism stretching back to at least 1967, when the Social Credit government introduced partial funding for independent schools, making Alberta the first province to do so, about which we will say more later.38
Although charter schools passed into Albertan law with “little legislative debate,”39 the debate that did occur was spirited enough that many of the restrictions on charters previously mentioned were added in order to quash the concerns and reservations that had been raised over them.40 Yet no reference to their possible religious character appears in this debate,41 so the provenance of that restriction cannot be found here. (There is certainly no suggestion that the prohibition exists because there is already reasonable accommodation for religious schools in Alberta.)Looking outside of the Legislature, two possibilities for its origin suggest themselves. One appears to be a subsequent media interaction Jonson had with Art Charbonneau, British Columbia’s education minister. In 1995, Charbonneau warned that charter schools could be dangerous and recounted how he had recently stopped a school in British Columbia from teaching creationism, but he worried that he would have been unable to do so had the school been a charter. In response, Jonson attempted to quell these fears by pointing out that charter schools “cannot be set up for religious reasons.”42 The prohibition may have been an entirely political attempt to pre-empt the sort of concerns that Charbonneau would later express.
It is perhaps even more likely that the Albertan bill simply lifted the definition of charter schools more or less wholesale from American legislation without amending it to fit Alberta’s cultural and legal realities. The Improving America’s School Act 1994 s. 10360(E) defines a charter school as being “nonsectarian in its programs, admissions policies, employment practices, and all other operations, and . . . not affiliated with a sectarian school or religious institution,” a definition that remains a part of the United States Code (20 USC §7221i(2)). This requirement is, of course, a concession to the Establishment Clause of the First Amendment.
Religious groups in the United States are allowed to run charter schools. Examples of this include Ben Gamla Charter School, based in a synagogue and directed by a rabbi; Tarek ibn Ziyad Academy, a Muslim-run charter school; and the Hellenic Charter School, which began as a Greek Orthodox parochial school.43 Catholic parochial schools in the United States have similarly been known to transition into charter schools.44 However, the schools themselves cannot be confessional or teach religion during school hours. Any religious instruction, including the display of religious symbols, must occur either before or after school starts.45 Nevertheless, as we shall see, many have questioned whether one can meaningfully say that, for example, a school that teaches Arabic culture and is led by an imam is not Islamic, or that a school can teach Hebrew culture without also teaching Judaism.
The quintessential “Americanness” of charter schools reveals itself in the paradox that charter schools were created to grant educators freedom to explore new ways to teach, even as that freedom is restricted by the American constitutional commitment to what it calls the separation of church and state. But Alberta does not have an analogous legal aversion to using public funds for religious education; in the case of Separate schools, our constitution actually mandates it. The religious prohibition seems to be an alien transplant onto an incompatible host.
Alberta, Education, and Religious Freedom
Alberta is known to be a bastion of what is commonly called “school choice” in America or “educational pluralism” in Europe. For our purposes, it is significant that this long tradition flowed out of a philosophical, political, and legal concern for guaranteeing the religious-freedom rights of minorities to bring up their children in their faith. The constitutional and legal protection of educational pluralism in Canada and Alberta is, like most legislation, the product of political calculation and compromise rather than a pure and undistilled expression of philosophical principle. However, many of the people responsible for these laws did hold to a coherent political philosophy in which religious freedom entailed the government’s full financial support to the schools of different religious communities, and this “group” or “collective” understanding of religious educational rights is a pronounced theme and a strong precedent in our national and provincial systems.
Section 17 of the Alberta Act, which guarantees a right to Separate Catholic schools, and s. 93 of the Constitution Act 1867, to which s. 17 makes reference, are clear rejections of the American Establishment Clause principle. Despite the claim often made, particularly by their detractors, that Separate school protections were little more than a provisional political deal between English and French Canada that have long outlived their usefulness,46 the historical circumstances and debates that preceded the writing and passage of these constitutional articles reveal that they were adopted in order to advance a specific idea of religious freedom, one that would continue to be recognized in Canadian and Albertan jurisprudence.
Section 93 began life as Resolution 43(6) of the 72 Quebec Resolutions of 1864. This particular resolution was written by Thomas D’Arcy McGee, Irish Canadian politician and champion of Separate school rights. McGee had lived in Boston and New York, where he became disenchanted with the American system, particularly after having witnessed the widespread mistreatment of his fellow Catholics in this supposed bastion of religious freedom; the 1844 nativist riots in Philadelphia, sparked by a controversy over Catholics being forced to read from the Protestant version of the Bible in schools, was one of the key events that transformed his political thinking.47 After this experience, he moved to Montreal, where he fought for the right to government-funded Catholic schools for his co-religionists in Upper Canada (later known as Canada West and finally as Ontario). He was persuaded that, far from dividing society, granting educational religious freedom to different churches would actually promote peace and social harmony.
Although Separate schools had been part of the school law of Upper Canada since 1841, the 1847 Towns and Cities Act had severely undermined them. Catholics in a municipality who wanted their own school had to submit a request to the municipal council, which had the authority to determine the number of Separate schools in an area and to reject a Separate school petition for any reason or none. Further, if a Separate school were established, it received only provincial taxes rather than provincial and municipal taxes, forcing the parents to have to pay additional and sometimes prohibitive costs and putting them at a severe disadvantage compared to their common school counterparts.48 Under this new law, Catholics had no meaningful right to their own schools.
Catholics naturally protested this arrangement, including McGee, who delivered powerful speeches in defense of Catholic Separate schools in Parliament. He explained that the school issue was a “question of religious liberty,” and that those who are conscience-bound to teach their faith to their children “cannot in conscience divorce religious from secular instruction in schools which they support.” Like other Catholic proponents of Separate schools, like Toronto’s Bishop Charbonnel and Charlottetown’s Bishop McIntyre, McGee argued that non-sectarian schools do not provide a “neutral” education, but rather a secular one based on “godless” values that contradict the faith of Catholics who believe that all reality must be understood in the light of God’s revelation. In order for children to receive an education in line with their family’s faith, every aspect of that education would need to be imbued with Catholicism. Parents therefore had a right to insist on schools where their beliefs permeated the entire ethos of the school and where they had control over what was taught. They further had the right to enroll their children in these schools without being impeded by financial considerations.49 The Catholic community in Upper Canada managed to achieve a series of gradual concessions in successive bills, culminating in the Taché Act 1855 and the Scott Act 1863, which granted Catholic freeholders the right to their own school boards, the ability to deal directly with the chief superintendent of education without having to go through the municipal councils, and access to municipal as well as provincial tax revenue.50
The year after the Scott Act was passed, McGee drafted Resolution 43(6), which stated that local legislatures had authority over education “saving the rights and privileges which the Protestant or Catholic minority in both Canadas may possess as to their Denominational Schools, at the time when the Union goes into operation.” This was clearly intended to constitutionalize the Separate school laws he had championed and protect them from subsequent hostile legislatures. This would have been a straightforward legal instantiation of McGee’s understanding of religious liberty in education. However, McGee was not present at the London Conference of 1866, where Alexander Tilloch Galt amended his proposal so that it only protected denominational school rights and privileges enjoyed “by Law” at the time a province entered confederation.51 Though this diluted the resolution, Galt also added that the federal government could intervene to protect government-funded religious schools that were instituted after confederation. The principle of educational pluralism substantially survived in what became s. 93 of the British North America Act 1867.
Subsequent court decisions have clarified two points about s. 93. One is that the purpose of Separate schools is not merely to supplement a neutral education with “religious exercises”; this idea is “erroneous” (Tiny Separate School Trustees v. King ). Instead, “the religious or doctrinal aspect of the school lies at its very heart and colours all its activities and programs” (Caldwell v. Stuart ), and “the very purpose and mission of a separate school is . . . the attempt to achieve a pervasive infusion of religion throughout the entire curriculum” (Daly v. Ontario (A.G.) ). The educational goal of Separate schools, as McGee had already articulated, is to achieve a permeation of Catholic doctrine into all subject matter and pedagogy. To put it another way, Catholicism is the charter of a Separate school.
The second and closely related point is that, in order to achieve this permeation, Catholics have the right to control their own schools. As the trial judge in Ontario English Catholic Teachers’ Association v. Ontario (1998) (overturned on other grounds) noted, “Inherent to the right of a separate school system is the right of management and control,” since “separate school supporters believe that religious instruction and values should permeate and be integral to the teaching of secular subjects.” This is why only Catholics can serve as Catholic-school trustees in provinces where Separate schools have constitutional status.
Put succinctly, s. 93 enshrines a vision of religious freedom in which religious communities have the right to fully funded schools, autonomous from the public boards, over which they enjoy full control so that their faith can permeate the school’s ethos. It is not a completely realized vision, but it is clearly present in outline. The analogies to charter schools are obvious.
However, since Galt amended the wording of McGee’s original resolution, s. 93 only protects Separate-school rights that were legally established by a province at the time it joined confederation (“at the Union,” as s. 93(1) puts it). If a province did not have Separate-school laws on the books when it became part of the country, it was free to end its Separate schools. This happened (albeit in flurries of popular and legal controversy) in New Brunswick in the 1870s and Manitoba in the 1890s. The Manitoba School Question ended with a compromise between the federal government of Prime Minister Wilfrid Laurier and the provincial government of Premier Thomas Greenway whereby schools would be public and non-sectarian, but a half hour of religious instruction could be offered at the end of the school day. This was obviously a far cry from the intended permeation of Separate schools. When the Alberta and Saskatchewan Acts of 1905 were being drafted, s. 17 (which reads identically in both provincial constitutions) was written in part to avoid a repetition of what had happened in Manitoba by making it clear that Separate-school rights were legally in place in these provinces “at the Union,”52 though this section also suffered from some dilution due to outcry and backlash over how many rights were being granted to Catholic schools.53
Non-Catholic Faith Communities and Educational Pluralism
But if the principle of religious freedom means that Catholics have a right to their own publicly funded schools, where does this leave other religious communities? Fahmy54 argues from the “freedom of conscience and religion” protection of s. 2(a) of the Charter of Rights and Freedoms that “religious minority communities are constitutionally entitled to government support for religiously based independent schools.” This McGee-esque reasoning was unfortunately not adapted by the Supreme Court of Canada in Adler v. Ontario (AG) (1996), which held that non-Catholic religious schools in Ontario had no claim on government funding since they were not legally instituted in the province at the time of confederation.
Strictly speaking, s. 93 of the Constitution Act and s. 17 of the Alberta Act do not only enshrine Catholic schools but also protect the rights of Protestant minorities to Separate schools. A Protestant Separate-school district did operate in St. Albert from 1958 to 2012 (it subsequently went public), and Glen Avon Protestant School operates as its own district in St. Paul. But the wording of these constitutional articles is too narrow for Separate-school rights for other faith communities to be discovered in it.
The injustice of this was recognized in the 1922 case of R. v. Ulmer, in which a Lutheran was charged with illegally sending his child to an unlicensed Lutheran school. The trial judge denounced the government’s monopoly on education as “tyrannical” and lamented that no legal remedy existed to fix the situation.55 As Dutch Reformed immigrants streamed into Alberta from the 1940s to the 1960s, neo-Calvinist representatives of that community made the argument that the province’s government schools “taught every subject apart from its relationship to God” and, therefore, the “so-called neutral school system” actually taught a worldview opposed to Christianity. Therefore, they demanded the right to have their own schools where “the whole teaching is permeated with Biblical principles,” which would be equitably funded alongside the government schools. This was a vision of a “pluriform public order” based on the pillarization model in the Netherlands, which had been instituted by the prime minister (and neo-Calvinist theologian) Abraham Kuyper.56 Although Hiemstra calls this “a novel case” for publicly independent religious schools, it is identical to McGee’s case for publicly funded Catholic schools.
Neo-Calvinist lobbying persuaded Social Credit MLA Donald Fleming to put forward a private member’s motion to give financial support to independent schools. Although not supported by Premier Manning or the education minister, this motion was adopted 34–16, carried by backbenchers. The government subsequently extended an annual per-pupil grant of $100 to eligible independent schools, admittedly a far cry from the full funding neo-Calvinists had sought,57 but this was still only a legal privilege, not an official recognition of religious-freedom rights.
This changed after the 1972 passage of the Alberta Bill of Rights by the new Progressive Conservative government of Peter Lougheed (who had taken Fleming’s seat). R. v. Wiebe (1978), a similar case to Ulmer, involved a Mennonite sending his child to an unregistered independent Mennonite school in contravention of the School Act 1970. The trial judge in this case held that the defendant’s religious freedom to bring up his offspring in his faith, as protected by the Bill of Rights, overruled the contradictory requirements of the School Act.
In the wake of that decision, the Alberta government (which chose not to appeal the case) began a long series of investigations, reports, and legislative experiments into different ways to foster educational religious freedom within the province. Premier Lougheed’s first education minister, Lou Hyndman, who served from 1971 to 1975, had already proposed an “umbrella concept” in which independent schools would receive full funding and operate under the “umbrella” of the government school system. Though this led to some discussion between schools and boards, Camrose Lutheran College was the only school that successfully became an “umbrella” school.58
After Wiebe, the government created a new category of independent schools that were allowed to use their own curriculum in exchange for receiving no public funding. This had two problems: One was that the government had no control over what was taught at these schools (which became a worrisome issue to many after the Keegstra affair), the other being that the inherent injustice of barring access to these schools to the poor remained intact. Partially to assert stronger control over independent schools and partially in deference to faith-based lobby groups concentrated in rural areas that were strong bases of PC support,59 the government restructured independent-school categorization and continued to incrementally increase funding to independent schools until 2009, when it rose to 70 percent of the per-student funding that government-run schools receive.60 But other options for religious education were discovered in the meantime.
Alberta’s alternative schools, like charter schools, began life as an idea proposed in 1974, in this case by the document “Alternatives in Education” by then-superintendent of EPSB Michael A. Strembitsky,61 though there was precedent for the idea of alternative programming offered within a public board.62 After some abortive attempts to establish faith-based alternative schools in the 1970s and 1980s (such as Minister Hyndman’s “umbrella concept”), the School Act of 1988 made it easily possible for such schools to exist, which led to the reinstitution of the popular Logos Christian program within EPSB and to several Christian independent schools joining public boards.63 That same act was the first piece of Alberta legislation to provide for parents to register to receive funding for homeschooling.64
Alberta’s provision of this smorgasbord of educational pluralism has many sources. To some extent, it can be seen as a calculated government strategy to ensure oversight of schools; in other ways, it is a recognition of human (and, to some degree, constitutional) rights to religious freedom; in another respect, it is a concession to well-placed religious-interest groups in key constituencies (though those groups are influencing policy in accordance with their own political philosophy that includes a concept of religious freedom). But however complex and even Machiavellian the origins of those laws may have been, they still (imperfectly) express a principle that religious freedom means freedom to educate in one’s religion without financial or social impediment. To that extent, they aim at the same goal that s. 17 does for Catholic Separate schools.
The Unrealized Goal of Educational Religious Freedom
In that light, we must assess whether any of these options fully attain the goal of religious freedom that underlies them. What we find is that none of them achieve this to the same degree that Separate schools do for Catholics.
Separate schools, as we have established, enable the religious freedom of Catholics in at least three ways: Permeation (Catholicism colours the way all classes are taught), control (Separate schools are independent of public boards and exclusively run by Catholic trustees), and accessibility (there are no tuition fees or other required payments that would financially bar a parent from enrolling their child in a Separate school). To date, no other religious option in Alberta fully achieves all three of these ingredients.
Homeschooling achieves permeation and control, but not accessibility. For obvious personal and financial reasons, not all parents are able to provide their children with a home education.
Similarly, independent schools also achieve permeation and control, but lack accessibility. Despite the high levels of funding independent schools receive, they are still at a financial disadvantage compared to government schools and will generally have to charge parents at least some level of tuition, which can be prohibitive for low-income earners. On principle, the government could choose to fully fund independent schools. However, this does not seem like a political possibility given the stigma against independent schools in the general public. Sixty-eight percent of Albertans have indicated that they moderately to strongly disagree with public funding for independent schools.65 The fact that Bill 15 added a section recognizing the importance of independent schools (now s. 28 of the Education Act) without adding to their funding arguably suggests that such a funding increase is not imminent.
Alternative schools achieve permeation and, because they are part of the public system, accessibility, but lack the key component of control. This is why some independent schools did not elect to become alternative programs when this became an option. When the Logos program was being adopted by EPSB, the Association of Independent Schools and Colleges in Alberta expressed concern that a Christian school within the public system was in danger of having its Christian identity and teaching diluted.66 Admittedly, it does not appear that serious issues have arisen in this area yet, and public boards seem prepared to defer to the religious communities within their alternative schools, but they enjoy this freedom entirely at the sufferance of the board. Were the tides to change, the schools would have little power to resist them. To avoid this and other possible legal difficulties, Donlevy and Crimmon67 propose a new model for religious schools based on the charter-school model. But simply allowing charter schools to be religious might achieve the same result more efficiently.
Finally, charter schools achieve control and accessibility but, because they cannot officially be religiously affiliated, cannot achieve permeation. They can offer religion classes but cannot include religion in their charter. This is effectively the same situation as the Laurier-Greenway compromise on Catholic education in Manitoba, where schools could not be religious but could offer additional and optional religion classes. This compromise was implicitly but emphatically rejected by the inclusion of s. 17 of the Alberta Act. Allowing religious charter schools would give non-Catholic faith communities the opportunity to enjoy the same freedom that s. 17 grants to Catholics.
Reasons to Permit Religious Affiliation
Having considered what charter schools are, how they operate, and how the American barriers against religiosity in education do not apply in Alberta, we can now summarize the four principal reasons why charter schools should be allowed to have religious charters.
One is to achieve greater religious freedom. This paper has likely said enough about this point.
Second, there is the problem that the Education Act fails to define “religious faith or denomination.” The restriction on religious affiliation presumes that government-run schools are secular and non-religious, whereas other schools adopt a religious perspective. Nomenclature to this effect runs all through the Education Act. But establishing what “counts as” religion—or, for that matter, non-religion—is notoriously problematic, and s. 26(6) does nothing to make this determination any easier.
William Cavanaugh68 shows that there are usually two approaches to defining religion: the substantivist approach and the functionalist approach. Substantivism seeks to identify religion by some sort of essential quality, such as belief in God or a higher power. Yet the universal definition sought by substantivism is perennially elusive. For example, the Oxford English Dictionary’s definition of “religion” as being “the belief in and worship of a superhuman controlling power, especially a personal God or gods” would exclude Buddhism, Confucianism, Jainism, and Daoism, none of which are committed to any kind of theism, from qualifying as religions. Revealingly, Justice Hugo Black of the US Supreme Court, who enshrined the strict American understanding of “separation of church and state” in Everson v. Board of Education (1947), also recognized a list of “religions in this country which do not teach what would generally be considered a belief in the existence of God” in Torcaso v. Watkins (1961). He included “secular humanism” in this list, effectively acknowledging it to be a religious system.
Tweaking the definition to replace “God” with a more nebulous term such as “transcendence” is no more helpful, since concepts like the nation, human rights, the principle of humanism, and democracy are all transempirical values that could accurately be described as “transcendent.”69 By this standard, all education in Alberta is religious, since the preamble to the Education Act identifies the goal of education as being “a democratic and civil society” and mandates that students should be inculcated with “democratic ideals.”
Functionalism, however, takes a sociological stance, defining religion based on the collective behaviour of a group. One example of this approach is Emile Durkheim’s definition of religion as being a system of beliefs and practices related to sacred things. But this broadens the scope of what constitutes a religion even further. Sports, consumerism, fitness, nationalism, and a host of other social phenomena would constitute religious devotion under a functionalist definition. Durkheim’s own example of a sacred object is a national flag.70 Given that s. 61 of the Education Act mandates the presence of Canadian and Albertan flags in schools, a functionalist approach to religion would also mean that all schools, including public schools, are religious.
The simple fact is that most cultures do not clearly distinguish between what we would call “religious” and “non-religious,” which is why “the prohibition [on religious charter schools] becomes somewhat hazy when examined in the light of both ethnocentric charter schools and former religious schools that seek to make the transition to charter status.” Ka ʻUmeke Kāʻeo Public Charter School in Hawaii, for example, sees its mission as being a place where students “build their spiritual, physical and intellectual Hawaiian foundation through the Hawaiian language.”71 The supposedly clean division between culture and “spirituality” is nonexistent here; that separation is only possible to a mind shaped by modern Western post-Enlightenment tradition.
Cavanaugh concludes that “religion” as a category is often used by dominant powers to marginalize other cultures in the name of a self-serving false neutrality. Hinduism was originally regarded as a culture rather than a religion, but when the British Empire sought to drive Indian culture out of India’s institutions, it began labelling Hinduism as a religion in order to marginalize it and claim it had no place in public life. “Under British colonization, to be British was to be public; to be Indian was to be private.”72 Similarly, Shinto was traditionally not considered a religion, but when the Americans began culturally homogenizing Japan to itself after World War II (per the 1945 “Shinto Directive”), Shinto suddenly became regarded as a religion. Now America could modestly claim it wasn’t erasing Japanese culture; it was merely separating religion and politics.73
The distinction between culture and cult has often been an arbitrary one, a tool that becomes a weapon in the hands of colonizers. Conversely, a secular school is not neutral but simply embodies a different tradition that the government has chosen to label “non-religious.” Giving it unique status as being “public” as opposed to factional or sectarian is another kind of colonization, treating its modernistic stance as the “official” or “established” perspective.
Abraham Kuyper’s recognition of the non-neutrality of secular modernity, a critique that has led him to be described as the first postmodernist,74 was the reason for his political project of pillarization, in which the different religious-political communities in the Netherlands received public support. As Bratt puts it, “Kuyper’s most creative move was to unmask the emerging modern regime of putative religious ‘neutrality’ as in fact a scheme of secularist hegemony and to devise a system whereby those loyal to each of the Netherlands’ salient belief-blocs—Reformed or Anabaptist, Roman Catholic or Jewish, liberal Protestant or labor-socialist—could assert their claims in public affairs without apology, but also without aiming to take over the whole and subordinate the rest.”75 This public pluriformity strongly resembles McGee’s ideal of Canada and Charles Taylor’s defense of multiculturalism76 and, through the community of Dutch neo-Calvinist immigrants, is a direct ancestor of Alberta’s educational pluralism. It treats all religious beliefs equally, whereas, tendentious though it may sound, having only a single secular school system privileges one faith system over the others.
The arbitrariness involved in determining what is a “religion” and what is not is exemplified by the fact that Mother Earth’s Children’s Charter School is allowed to operate in Alberta, despite being based on Indigenous teachings about the Creator and incorporating smudging prayers in classroom activities.77 Charlene Crowe, onetime chair of Mother Earth, explained that the school is spiritual, and “spiritual does not mean religious.”78 What exactly “spiritual” does mean, and how it differs from “religious,” we are not told. This, too, seems like a subjective distinction based more on approval and disapproval than on objective criteria. Mother Earth’s medicine-wheel-based charter, which sees the spiritual as one of four integral parts of the human person, also reminds us that Indigenous cultures do not distinguish between religion and the rest of life.79 Such a division is uniquely Western and modern.
The example of Mother Earth brings us to our third point: The point of charter schools is to discover new ways to help students flourish. In lieu of a constitutional prohibition, it is not obvious why spirituality and religion should be excluded from that quest. Crowe also explained that Mother Earth, with its charter of Indigenous spirituality, was established on the grounds that “it stands to reason” that “if you value and nurture” all the parts of a person, including the spiritual component, “they are obviously going to do better academically.”80 Possible confirmation of this is found in Miller, who cites various studies that suggest a correlation between spirituality in teens and lower rates of depression and drug use and higher rates of academic success.81 We have already seen that there are studies linking religious practice and devotion to higher academic performance among students. It is not apparent what interest we should have in excluding such a potentially beneficial component from schools where it is not necessary to do so.
Nevertheless, effective charter schools have suffered opposition, despite their accomplishments, simply based on the suspicion that they may secretly be religious. The award-winning Tarek ibn Ziyad Academy in Minneapolis was known to be an eminently successful example of a charter school with a mostly low-income student population. Nevertheless, both a Republican senator and the ACLU sought to have it closed based on the accusation that its Arabic curriculum was a way to teach Islam.82 In Alberta, the Almadina Language Charter Academy has similarly been accused of being covertly Muslim, and it seems that many of its parents have perceived it as being a Muslim school.83 But we might bluntly ask: Even if it is religious, why should anyone care? If, as the Education Act’s preamble pronounces, the “best interest of the child is the paramount consideration in making decisions about a child’s education,” we should be open to making decisions based on the empirical evidence that a religiously informed education can allow students to personally and academically thrive. Removing this proscription will spare the government of Alberta, and charter schools, the risk of potential tedious legal battles where lawyers hair-split the difference between religion and spirituality to determine whether students can continue to afford their current classroom.
Allowing charter schools to be religious would not be without difficulties. It is not difficult to postulate the concerns that such a move would elicit from many different corners. Religious educators may object to the fact that this move still does not grant them the right to their own schools in the same way that s. 17 guarantees a right to Catholics to have their own schools; they would still need to rely on the permission of the education minister. Some could also identify an inequity in the fact that charter schools are reviewed every half decade and that these schools are held to a higher standard of accountability than Separate, independent, or alternative schools are.
However, we can counter this by noting that the accountability entailed by a charter would guarantee that religious charter schools would not simply be independent schools that invoked religion as an excuse to get charter-school levels of funding. By identifying the inculcation of particular religious values as part of its charter, a school could therefore set measurable standards by which it could prove that it was authentically permeated and committed to giving students a faith-based education. In this sense, they would be in a similar situation to Separate schools. Jacobi v. Newell (1994) established that a “Separate school” which took no steps to offer a religious education was not an actual Separate school but simply “a public school by another name” and thus enjoyed no constitutional protections (though the ruling granted the district time to become an authentic Separate school before it lost this status). Separate schools are thus not without accountability in this area, and it seems appropriate that a similar expectation should be present for non-Catholic faith-based schools.
Criticism would also come in the form of accusations akin to that made by Gil McGowan: that the government is seeking to indoctrinate more children into supporting its own policies. Others would surely express indignation that their tax dollars are going into propagating religious beliefs they do not share, an argument often made for ending Separate schools in Alberta altogether. But D’Arcy McGee turned this argument on its head in the 1860s: Catholics, he pointed out, did not support what was taught in the common schools and yet were compelled to pay taxes to support them, and it was thus only fair that they should get their own schools alongside the common schools. J.S. Sidhu, principal of the Punjabi Headway School in Edmonton, made a similar point in response to McGowan’s tweet: Government-run schools teach principles that are against his culture’s beliefs, and it is arguably racist that one contingent culture and set of values are propagated in the government-run schools whereas others are marginalized as “nutbar.”84
Despite what McGowan has said, rather than promoting a government hegemony, this development would more likely promote greater diversity and multiculturalism within society as more minority groups would have the freedom to institute fully funded schools that preserve their customs and traditions. As G.K. Chesterton put it, “Education is simply the soul of a society as it passes from one generation to another,”85 and fostering a wide variety of schools allows a wider array of cultures and worldviews to pass themselves on. Sidhu confirms that his school would seek to become a charter if it were allowed to,86 and likely several similar schools would join it. Releasing charter schools in this way would be a gesture exemplifying the Canadian principles of religious freedom and authentic multiculturalism per s. 27 of the Charter of Rights and Freedoms.
Too often, “school choice” has been defended using the rhetoric and reasoning of the market: Having a wide array of choices forces schools to compete, which produces a higher-quality pedagogical “product.” Similarly, support for religious schools could be perceived as specifically catering to a fundamentalist Christian base. But if this policy were presented as a gesture, not to the market, but to multiculturalism, it could be received differently.
Zine87 records that Muslim education leaders in Ontario have expressed support for an “associated schools” model in which Islamic schools would receive government funding and operate “under the umbrella of the public education system”—the same language used in Alberta in the 1970s for the unrealized proposal that religious charter schools could finally bring to fruition. If the premier rolled out this legislative change with representatives of the Sikh or Islamic education community next to him at the podium as he announced that the government was finally responding to the expressed wishes of minority communities, this could make all the difference in the way the media and the public interpret this policy. Indeed, sussing out how non-Catholic faith communities feel about the prospect of having their own charter schools could easily be a topic for future research.
Legislators should therefore seriously consider the prospect of dropping s. 26(6) from the Education Act and amending s. 24(1) to include a reference to the Religious Societies Land Act so as to permit faith communities to open their own religiously permeated schools.