Rights conflicts, curriculuar control and K-12 education in Canada

Abstract

In the context of Canada’s Kindergarten to Grade 12 education system and given the Canadian Charter of Rights and Freedoms, there is a growing body of jurisprudence which reflects ongoing debates about who should ultimately maintain control of the formal and informal curriculum in our schools. In these cases, debates about curricular battles play out through rights conflicts, which our courts are required to resolve. These conflicts typically involve claims relating, directly or indirectly, to fundamental freedoms such as freedom of religion and freedom of expression as well as claims associated with the right to equality.In this thesis, I aim to offer a critical assessment of the relevant body of jurisprudence. My critique draws on the theoretical work of Rob Reich and Jeremy Waldron. Reich suggests that our best hope of understanding and resolving the curricular struggles related to the control of children’s education requires a balanced approach whereby we attempt to reconcile the educational interests of three primary actors: parents, the state and children. Building on Reich’s conceptualization of the different interest holders, I identify a fourth stakeholder, namely, teachers, who have interests which are germane to our analysis because these interests raise issues connected to curricular control and children’s education. In my analysis, I apply Reich’s matrix of interests to the extant body of jurisprudence to ascertain whether or not our courts are alive to the different interest holders in its treatment of cases involving conflicts of constitutional rights. I also want to know whether the interests of the four stakeholders overlap or conflict with another. Finally, I want to know how these interests are conceptualized by the court and whether this conceptualization is consistent with, or differs from, the one offered by Reich. Waldron’s work offers analytical clarity for how we might better understand and resolve conflicts of rights, including conflicts involving constitutional rights claims. He maintains that rights conflicts are fundamentally about conflicts of duties and that we are likely to have more success reconciling conflicts of rights when we conceive of these conflicts in this manner. Applying Waldron’s strategy for reconciling rights conflicts to the cases in my study, I posit that we can make sense of the reconciliation process by examining the duties associated with the rights in question. Although our courts do not explicitly draw on Waldron’s theoretical framework in their legal analysis, I maintain that, generally speaking, what our courts do is consistent with a Waldronian analysis of conflicts of rights. In my conclusion, I note that the jurisprudence considered initially seems to focus exclusively on two key guiding values: liberty and equality. Yet, a closer examination of the case law reveals a concern for two other important meta values, namely, efficiency and community. Furthermore, the notion of children as rights bearers poses special challenges. We might treat older children as rights claimants, on their own terms, because of their capacity to advance certain projects and to engage in certain commitments. Yet, the exact moral and legal status, for example, of a six- or seven-year old is still uncertain. Finally, I recognize that a “rights only” version of what happens in our schools provides only a partial account of educational reality. Other values such as duty, love, friendship and compassion are needed to furnish a richer and more nuanced account of morality for our school communities.