The Court did its job

Thursday’s brace of Supreme Court rulings on Quebec’s law restricting access to English-language schools provoked more than the usual degree of confusion. Some initial reports had the Court striking down the law, others upholding it. Things were scarcely clearer a day later. Contrary to what you might have read, the Court did not vindicate the essential wisdom of Bill 101, nor did its rulings have the effect of making the law impervious to all future legal challenges. This was a specific set of rulings on a specific set of circumstances. Neither was the significance of the rulings that, as the Globe and Mail’s headline had it, “Supreme Court averts Quebec language fight.” It would have been unjust, not to say unlawful, to quash legally guaranteed rights in the name of “social peace.” But it’s not obvious rights were at issue here, or at least not so far as these are defined in law. And as it is the Court’s job to apply the law, it could hardly have reached any other decision. To be clear: I think francophone parents should be allowed to educate their children in English if they choose. It’s in the best interests of the children, and of Quebec, that they should have access to the international language of business, science and the arts, and it’s unfair that they should be prevented from doing so. But merely because someone wants something does not make it a right, nor is unfair the same as unlawful. On the surface, the francophone parents’ case seems reasonable. The children of English-speaking parents, at least those born in Canada, are allowed to go to English schools. Surely it is discriminatory that the children of French-speaking parents should be prevented from doing the same; that the same public service should not be made equally available to all. But what does “equally” mean in this case? To deny English-speaking parents the right to have their children educated in English would be far more onerous than to enforce the same restriction on French-speakers; there is a difference between being told you may not educate your children in your own language and, as in the case of the francophone parents, that you must. That’s why Section 23 of the Charter guarantees minority language groups the right to educate their children in their own language. It says nothing about majorities, and for good reason: Majorities don’t need rights. They have power. Had Bill 101 forbidden English-speaking parents from educating their children in English, or prevented children who had been educated in English in Canada from continuing their studies in that language, it would have fallen afoul of the Charter, and so far as the regulations imposed an overly narrow definition of what “educated in English” means, the Court was right to strike these down. Alas, it remains the case that the children of English-speaking immigrants may not attend English schools, but that injustice is written into the Constitution: an exception to the rule in other provinces granted only to Quebec. Another distinction: It is legal for francophone parents to send their children to English-language private schools. And it would be unjust to prevent them from doing so -- from spending their own money as they see fit. What is at issue here is the right to have your kids taught in English at public expense. But is that even a right? A right is something you reserve to yourself, not a claim you make on others. It defines what cannot be taken from you, not what you can take from someone else. To say that you have a “right” to public funding -- for English schooling or anything else -- is to say that others should be forced to pay for it; that their rights should be narrowed in the same degree as yours are enlarged. That strikes me as less a right than a preference, and as such less a question of law than of policy. The francophone parents are not an oppressed minority. They are part of the majority. It is open to them to persuade their fellow majoritarians to open the doors to English-language schools, and it is not clear why the courts should substitute their judgment for the legislature’s in this case. This isn’t just a matter of language, after all. Parents in the public system face all sorts of constraints on what schools their children can attend and what they are taught there, and it would be hugely preferable if all of these were lifted -- if indeed there were no such things as public and private systems, but public funds simply followed the student to the school of their choice. Do that, and the other unfairness in the current arrangement -- that francophones who can afford a private education can send their children to English schools, while the rest cannot -- would cease to be a concern. But that would be merely a happy side-effect.