Loyola High School v Courchesne: Can private denominational schools seek immunity from state-mandated courses on ethics, morality, and religion?

The presence of God in schools has been the subject of much controversy; specifically, over the past decade, Quebec has undergone a process of secularizing its education system.  In 1997, an amendment was made to the Constitution Act, 1867, which only took effect in Quebec. This amendment removed constitutional protection for denominational education in public schools. By 2000, denominational schools no longer enjoyed official status as religious educational institutions, although certain private schools retained a religious character. As will be explained in greater detail below, private schools that identified with a particular denomination were permitted to involve their students in religious education, so long as they complied with the mandatory curriculum as set out by the government. This context begs the following question:  can the state permeate the walls of a private Catholic school and “secularize the teachings of religion and morality”?

Loyola High School v Courchesne, 2010 QCCS 2631 provides a befitting context with which to begin the discussion, because it is currently under review by the Quebec Court of Appeal. At issue was the Ethics, Religion and Culture course (“ERC”) implemented by the Minister of Education, Recreation, and Sports (the “Minister”) as a mandatory course to be taught in primary and secondary schools. The purpose of the course is to provide students with exposure to various religions, without emphasizing the morality or truth of one religion over another.

Since Loyola High School is a private Catholic school, it is governed by the Act respecting private education, RSQ, c E-9.1 [Act] as well as, the Regulation respecting the application of the Act respecting private education, RSQ, c E-9.1, r 1 [Regulation]. Section 32 of the Act and s. 22 of the Regulation stipulate that a private school must teach compulsory subjects using the programming set out by the Minister, unless the school can establish that its own programming is equivalent, as judged by the Minister. Since the statute did not provide a definition for “equivalent,” Justice Gérard Dugré interpreted it according to its ordinary meaning and concluded that Loyola’s course was “equivalent” to the ERC course such that it fell within the exception outlined in s. 22 of the Regulation. As such, Loyola was not required to teach the ERC course, but was able to use its own course to fulfill the obligations of the Minister’s intended programming (ie. tolerance and exposure to different religious, and ethical, belief systems).

The crux of the conflict in this case rested on the purpose of the ERC course. According to the Minister, the purpose of the program was to expose students to a variety of religious and ethical beliefs without providing a comparative analysis. Teachers were instructed to distance themselves from their own values and critical viewpoints when presenting the course to students. On ethical questions and religious phenomenon, teachers were required to adopt a neutral stance. The ultimate goal of the program was to ensure that students adopted a perspective of tolerance for belief systems different from their own. Loyola argued that, if forced to teach ethics in the way required by the ERC course, it would be violating the precepts of the Catholic diocese because God would disappear from the analysis. Furthermore, Loyola argued that its own religion and morality course fostered the same level of tolerance and respect for difference as did the ERC course, however it did so through a Catholic framework. The “normative pluralism,” or relativism, emphasized by the ERC course was fundamentally at odds with the beliefs of those who adhered to Catholicism: inherent in the faith is the belief that the claims made by Catholicism are true. Presenting Catholicism as one option amongst many would (arguably) dilute the significance of the truth-claims, and would weaken the significance of religion for believers—in this case, the students attending Loyola.

In discussing its own programming and its similarity to the ERC course, Loyola stated:

Our students learn that each human being, regardless of race or religion, is created in God’s image and is therefore imbued with dignity and a value requiring not only respect but love for all…One of the objectives of the program proposed by the department is the promotion of tolerance and respect for all. The program we dispense to our students promotes that value in a manner that fully respects the school’s Catholic mission.

The school went on to say:

“The key difference in our proposal is as follows: we clearly identify the perspectives presented and we ask our students to evaluate Catholic ethics in more detail. We believe that the methodological “neutrality” proposed by the ethics and religious culture program is problematic in theory, because it implies a moral relativism that contravenes the beliefs of many people and religions, including Catholicism.

Loyola thus claimed that the ERC course violated its freedom of religion under s. 3 of the Quebec Charter of Human Rights and Freedoms, RSQ, c C-12, and s. 2(a) of the Charter. Loyola proposed that the solution was to qualify the school for the exemption in the Regulation. Importantly, Loyola did not claim that it did not want to foster tolerance. Instead, Loyola asserted that it did not want to teach tolerance in a way that rendered [the Catholic] God irrelevant. For Loyola, God is the very basis on which tolerance, respect, and love for others is found. For the Minister, however, the core purpose of the program was its neutrality and its distance from promoting the particular morality associated with one specific religion. The Minister’s claim to neutrality may seem strong, however relying on words like “neutrality” and “secularism” obfuscate the ways in which the ERC course may be presenting a particular worldview. For example, in “Government Support for Religious Practice” in Richard Moon eds, Law and Religious Pluralism in Canada, Moon states:

With the growth of agnosticism and atheism, religious neutrality in the public sphere may have become impossible. What for some is the neutral ground on which freedom of religion and conscience depends is for others a partisan anti-spiritual perspective.

Denominational schools dip into both the public and private spheres (which are themselves nebulous concepts), and can be thought of as the private home writ large. If education is understood as an integral tool with which to shape and form the citizen, the government’s role in determining mandatory courses cannot be understated. The Minister’s claim in this case is that because the ERC course presents all religions and belief systems without expressing a preference for any of them, the course itself is “neutral.” The state’s presentation of religion and morality in a relativist framework, however, belies any claim to state neutrality–“relativism” or “normative pluralism” is, like Catholicism, a way of living one’s life. It is  particular worldview that the state has adopted. Now, the claim here is not that the state is wrong to adopt this worldview; the claim is that precisely because the state has presented a particular vision of how a person should operate within the world, it is not neutral. In this way, it becomes difficult for the state to claim that its chosen method of fostering tolerance through the ERC course is neutral and objective. If the ERC course simply presents one, non-neutral and non-objective, way to promote tolerance, what argument could the state make which would convince the Quebec Court of Appeal to mandate that Loyola teach the ERC course? Again it is important to emphasize that this is not a case where a school is demanding it be free from the requirement of teaching morality and ethics. Instead, it is a case where a school is requesting permission to teach morality and ethics, and foster tolerance for differences, in a way consistent with its religious precepts. In other words, Loyola is asking the Court to recognize that there may be different methods and frameworks within which tolerance can be fostered, and within which religion and morality can be taught. Given the implications for conceptions of tolerance, state neutrality, and religious freedom, it will be interesting to see how the Quebec Court of Appeal decides, and whether this case turns up before the Supreme Court of Canada.