"As long as the world shall last there will be wrongs, and if no man objected
and no man rebelled, those wrongs would last forever
~Clarence Darrow

Thursday, August 16, 2007

Dauphinee v. CSAP - What Exactly Does It Mean?

For those who are interested, here is a link to the recent decision of the Nova Scotia Supreme Court in Dauphinee v. Conseil Scolaire Acadien Provincial. This case, which is discussed below in the post "Special Ed for Les Francais", has garnered a lot of attention in the last few days.

Although on the surface the decision appears to be a step forward for the francophones in the Province, one has to wonder. The court speaks of the duty on the Department of Education to "investigate" the possibility of designating French language schools in New Brunswick or Quebec for the purposes of the tuition support program and appears to base its decision on the fact that the Province had failed to even "attempt[ing] to make any provisions ... which would accommodate special needs students". To me, that doesn't exactly sound like a heavy obligation to place on the Province or a strong statment for a family to hang their hat on, so to speak, when planning for their child's future.

But let's assume that the Province does, in a timely manner, designate French language schools in New Brunswick or Quebec to be eligible for funding under the tuition support program. What will be the practical effect of this for the Francophone family who wishes to place their child in a private school? The court justifies this interprovincial designation on the basis that students would have to travel far from their homes now in order to attend one of the three designated English schools in Nova Scotia. Fair enough except ... it can be a lot further (both in terms of physical distance and psychologically) for a child to travel out-of- province to attend school. I have to wonder how many children and their families will be willing or able to avail themselves of such an option, assuming it is made available. On the other hand, we don't live in the ideal world and this "compromise" put forward by the court may be the best that can be hoped for in the real world.

I know some are of the view (or perhaps more accurately, the hope) that this decision might have some positive effect for English speaking children with special needs in the Province. Frankly, I can't really see how it will be of any assistance to the rest of us. The court's decision was made on the basis of the "equality and equivalency principles" applicable to French language rights under Sec. 23 of the Canadian Charter of Rights and Freedoms. Which, in simple terms, means that those students are entitled to an education "equal" to that offered by the Province to English speaking students.

Unfortunately, the case was not argued on the basis of Sec. 15 of the Charter, which section guarantees that

"Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Had the case been argued on that basis, there might have been some statements made by the court concerning discrimation and students with special needs in general which might have been useful for all such students in future litigation. But there are many times when I would be happy to be proven wrong. We can just add this one to the list.

One other item of note. The court found no liability against the school board (CSAP) for not offering the Tuition Assistance program to its students. *

Here's the catch - the Tuition Assistance program (in which, likely after a lengthy battle, the school board pays the full cost of private school tuition for the child) is not mandatory. School boards can offer the program; they don't have to. And apparently, only three school boards in the Province (HRM, the AVRSB and the CCRSB) offer the program. Meaning that if you live elsewhere, you're basically out of luck. The solution? The provincial government needs to make Sec. 63(4) of the Education Act (which authorizes the program) mandatory. Sounds like its time to contact your local MLA.

*Keep in mind the distinction between the Tuition Support program and the Tuition Assistance program set out in my previous post

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