Monday, June 01, 2009

Bill 44: Bad Policy Becomes Bad Law in the Name of Human Rights

As Bill 44 goes into Third Reading, it is being framed by its proponents as a law that is needed to protect and promote parents “rights” to be primarily responsible for the education of their children. Those who oppose Bill 44 are somehow presumed to be in opposition to that principle. That is not true. I think those who are promoting this Bill are intentional mis-framing the core issues of Bill 44. They are doing this to deflect attention from the serious shortcomings and legitimate concerns about Bill 44.

Bill 44 is not all bad. It proposes to specifically identify legal protections from discrimination based on sexual orientation. No one I know who opposes Bill 44 does so for that reason. Disallowing discrimination on the basis of sexual orientation is the law of the land. Alberta is finally getting around to writing in that reality in this proposed Alberta Human Rights Act. No one in know who opposes Bill 44 does so for reasons relating to the appropriate roles and responsibility of parents in the education of their children in the Alberta public education system.

There has always been a home and school partnership relationship in Alberta’s public education system It is well recognized in the Alberta School Act. The Preamble of the School Act says: “WHEREAS parents have a right and a responsibility to make decisions respecting the education of their children.” That covers the parental side of the public education partnership. This part of the Preamble covers the education community side of the partnership. It says: “WHEREAS the education community in making decision should consider the diverse nature and heritage of society in Alberta within the context of its common values and beliefs.”

Here is why the opting out provision of Bill 44 is unnecessary. Section 50 of the School Act put the discretion in a School Board to prescribe religious instruction, religious exercises, patriotic instruction, and patriotic exercises. The Act provides for a written request from a parent to exclude their children from any or all of these discretionary instructions or exercises. Sexuality exclusions are not in the Act but are dealt with effectively in Department of Education policy and procedures.

Given this historical, successful and practical partnership approach inherent in the School Act, why does the Government of Alberta feel the need to set up another quasi-judicial legalistic and possibly adversarial process? Bill 44 proposes provisions that are not about discretionary religious instruction and exercises. The new parental opt-out provisions are not about religious instruction or exercises, but about religion itself. That is a much broader and more imprecise concept than “religious instruction and exercises” provided in the School Act.

Sexuality is specifically added into the proposed Human Rights Act and recent amendments clarified that to mean “human sexuality” for purposes of clarity. Interestingly, “sexual orientation,” is a new parental opt-out option being added in the new Human Rights Act. One would think that human sexuality would include sexual orientation, but it has been singled out as a distinctly offensive opting out issue for parents. Any fair-minded and progressive Albertans has to ask themselves why sexual orientation has been singled out. There is not obvious positive public policy answer.

Nobody disputes that Alberta parents have a say and can participate in the education of their child in our public education system. Educators only wish more of them took up this as an obligation. That said, what is the advantage of elevating this parental privilege to opt-out their children’s from religious and patriotic instruction and exercise to the level of creating a human rights claim? Bill 44 elevates parental participation and provides a litigation process for remedying alleged breaches of law that can be used against their child’s teacher and perhaps, school trustees. No legislator has yet to offer a satisfactory explanation as to why this is being done.

The School Act Preamble also says: “WHEREAS the best educational interests of the student are the paramount considerations in the exercise of any authority under this Act.” That “authority” rightly rests jointly with the schools and the parents. To replace such a sound concept of collaborative common cause between home and school with an adversarial and litigious process based on seeking damages for alleged breaches does not serve “…the best educational interests of the student.” Bill 44 undermines the very spirit and intent of public education in Alberta.

There are other damaging elements in enabling a legal process to replace a common cause approaches in our public education system. The language in Bill 44 is extremely vague and difficult to define given the shared learning context of a typical classroom discussion. In trying to clarify the intent of the new opting out provisions on religion, human sexuality and sexual orientation the law makers introduced some amendments. Something they said they would not do only a week earlier. The language has moved from “subject-matter that deals explicitly” to “subject-matter that deals primarily and explicitly” with religion, human sexuality and sexual orientation. And we are told this amendment is for purposes of clarity? As a lawyer and as a public policy consultant, I think these amendments fail miserably at providing clarity. It looks effective on its face, but how will it work and what does it mean in real life?

What is the standard test to use by a teacher to determine when they are at the stage of “primarily and explicitly” when class discussions start dealing with “subject- matter that deals” with “religion, human sexuality and sexual orientation?” It is this kind of intentional obfuscation in law making that drives these issues to the courts, often because of a politically intentional lack of clarity. We need the laws to say what they mean and our lawmakers to mean what they say in our statutes. We need our politicians to make laws for our greater good that are as clear, precise and in language as plain as possible.

How does a teacher know where to draw the line in a vibrant learning atmosphere with curious and engaged students who are exploring, learning and asking probing questions? When does the classroom discussion become “explicitly” about religion, human sexuality and/or sexual orientation? When does a classroom discussion reach the point of being “primarily” about those topics? Is it when more than half the class time is spent on the explicit subject? Or is it when more than half the students participate in the explicit discussion? These are questions a Human Rights Tribunal or a Court will ask when dealing with a complaint. The only safe course of action for a teacher is to avoid any such topics and classroom discussion altogether if for no other purposes than self-preservation. What does that do to the quality of our public education system Mr. and Ms. Alberta lawmaker?

We then see an attempt by the Government of Alberta to grapple with this dilemma in a further amendment also offered as “clarification.” These further amendment says teachers need not only worry about “primarily and explicitly” so long as the classroom events and student discourse was only in terms of “incidental or indirect” references. That is hardly reassuring because teacher still don’t know what test to apply in evaluating what constitutes incidental or indirect references. So it’s acceptable to incidentally or indirectly talk about religion and human sexuality in the classroom. What does that mean and doesn’t that depend on how any individual student perceives the discussion or the intent of the individual student’s comments or questions? What may be an incidental or indirect reference to one person may well be a primary and explicit reference in the mind of another.

What will be the legal test applied to alleged breaches? Will it be objective, or subjective and what about context? How will context be proven and based on what kind of evidence? These Human rights Tribunals are quasi-judicial. They are not like a parent-teacher meeting. Consider context, look at the incident this past week in the House of Commons. The Parliamentary Secretary to the Prime Minister used the phrase “tar baby” with reference to the Alberta oil sands in Parliament. Others in the House immediately took it to be a racial slur and asked for an apology, which the Parliamentary Secretary refused by the way. This is a perfect example of what can go wrong when we draft laws with intentionally vague language as in Bill 44. Politicians don’t have to worry about liability for comments in legislature or in Parliament because they have a wonderful protection called Parliamentary Privilege. That means they can say anything they want about anybody they want, provided they use Parliamentary language, and they are immune from prosecution. Too bad teachers don’t have the same protection as the lawmakers.

Here is what I see happening with the ill-conceived, ill-defined and poorly drafted Bill 44, even as amended. It will cause certain social conservative zealots and advocates to be emboldened. They will pursue incidences of alleged breaches of the new and ironically entitled, Alberta Human Rights Act just to make political points and settle scores. They will do this because they want things like teaching creationism accepted in the public school curriculum. They will focus on getting political retribution on the back of Alberta’s teachers and public education system because of homosexuality and gay marriages are now not just “legal” but are becoming normalized in Canadian law and society. Innocent teachers will be caught in the cross fire. Bill 44 gives these people access to the Alberta Human Rights complaint process and an avenue of appeal to the Courts so they can pursue and promote their political agendas.

Wait, it gets worse. Besides the vagueness of the legal tests of what would be a breach of the Act, what would the evidence look like and where would it come from? Bill 44 provisions will put a student between his parents and his teacher in a “he said – she said” standoff. The only objective evidence available would have to come from other student in the classroom at the time of the alleged breaches. Besides the pressure on children being interviewed and potentially having to testify in a tribunal and in a court, how likely will those children know how to evaluate the so-called “offensive” classroom comments? How will they determine, in their own minds, if alleged comments were in any way “primarily and explicitly” or “incidental or indirect related to religion, religious themes, human sexuality and sexual orientation”? What weight ought to be given to such evidence from other children, who are also caught in this political crossfire now? What other means of gathering independent evidence will there be to assist the Trier of fact in making a finding in such circumstances? This is not only harmful to these children who will have to endure such a process, it is also highly inappropriate.

We are told by the government politicians promoting this new law that the chances of any of this complaint process actually happening is small. They use past statistics of Human Rights complaints to reassure us. Unfortunately this is far from reassuring. We can’t use past statistics to predict the future impact of a new law that effectively creates a new parental human right. If even one political motivated aggressive social conservative advocate on a mission filed a complaint and pursued it, we are into a full blown, time consuming and expensive quasi-judicial review. If one of the parties is unhappy with the result at first instance, there is a potential appeal to the courts. This could be an even more time consuming and expensive judicial process. That threat from Bill 44, however small, will still send a chill through the teachers in the entire Alberta public education system.

There are other serious question on the process of Bill 44, beyond it merits. Where was the public consultation around this new law? Where are the legal opinions that support this Bill 44 that outline the social problem that is intends to solve and advised how it does so within the law? Where was the public debate about moving from a joint home and school partnership in public education to a scheme that is a one-way parental rights based litigious model? And where is the sound and reasoned public policy judgment and indication of the wisdom of our government’s lawmakers? What studies have they done to determine if there even is a governance or social problem that needs to be solved in the first place? All of this background material is needed to show citizens that Bill 44 is necessary to resolve an identified public policy problem. It is also needed to show citizens that Bill 44 is a justifiable law as a solution to the identified public policy.

This information has been asked for by the Opposition but none has been provided by the Government of Alberta to substantiate why Bill 44 is a necessary new law for Albertans.
The political spin originally put on Bill 44 is that it is “symbolic” and “just the same as the current School Act.” It clearly is not. We are now being told this is about preserving the rights of parents as the primary educators of their children. This too is factually inaccurate given all the sources that children learn from these days. We are being told that those who oppose Bill 44 want the “nanny state” to replace parental rights regarding their children. This is also unfounded because we already have the School Act to deal with the real issues of curriculum opting-out. We are being told that frivolous and vexatious Human Rights claims arising from Bill 44 provisions will not happen because Albertans are educated and reasonable people.

The Government lays out assurance that even if some Albertans did file complaints for alleged breaches “good teachers” have nothing to fear under this new law. If the government is so confident in those “nothing to fear” representations why do they consistently refuse agree to indemnify teachers who face such accusations? Why has the government refused to cover a teacher’s legal costs and damages in the event of any such claims? Could it be the Government of Alberta doesn’t actually believe its own assurances to teacher that this is no big threat?

There is not a single good governance reason to make these changes to the new Human Rights Act. There is every likelihood that this unnecessary and ill-conceived law will only serve to erode and destabilize our quality public education system and intimidate teachers and school trustees. The only reasonable conclusion one can draw as to why this is happening is that it is for internal political appeasement purposes. It is being proposed to satisfy demands of a social conservative faction in the governing Progressive Conservative Caucus. This fact has already been “explicitly” stated by at least one Alberta Cabinet Minister to be the reason for these proposed amendments. Nobody has clarified or denied that assertion as to the reasons for Bill 44 opting out provisions.

This is a public policy travesty that is turning into a statutory tragedy at Third Reading of Bill 44 this Monday night June 1, 2009. Alberta’s excellent public education system will be sacrificed and Alberta’s children will suffer in the service of noting more than some contemptuous political appeasement within the governing Progressive Conservative Caucus.