In British Columbia, the School Act grants school boards the responsibility of approving the educational resource materials which teachers use in classrooms. In 1995, the Ministry of Education implemented a new curriculum for kindergarten to grade 7, which included a "family life" component. In 1996, the Surrey School Board passed a resolution prohibiting the use of educational materials which were not on a prescribed list. Gay and Lesbian Educators of B.C. ("GALE") prepared a list of recommended books to portray homosexual relationships positively in the classroom. The Petitioner Chamberlain, a teacher in the Surrey school district, having failed to obtain Ministry approval of a list of books requested that the Surrey School Board approve three books from the GALE list for use in teaching the "family life" curriculum to kindergarten and grade 1 students in the Surrey school district.

The three books ("Asha's Moms", "Belinda's Bouquet", "One Dad, Two Dads, Brown Dad, Blue Dads") were reviewed three times by school district administrative staff, all of whom were of the opinion that the books dealt with sensitive material and were likely to cause parental concern over the presentation of same-sex parenting to kindergarten and grade one children. The Superintendent thought that the three books were unnecessary for achieving the objectives of the "family life" curriculum and, recognizing that the use of the books would be controversial among the parents in the community, decided that the final decision should come from the School Board which was elected by that community.

On April 24, 1997, the School Board formally considered the request for approval of the three books. The meeting was widely attended and submissions were received from one of the Petitioner teachers, a representative of GALE, and a representative of the intervenor BC Civil Liberties Association. The evidence is that the debate centered on the books raising sensitive issues "in which parents should be involved and their opinions given weight". The School Board, by a vote of 4-2 passed a resolution declining to approve the books. The Petitioners applied to BC Supreme Court for a ruling that the resolution was invalid, and for an order requiring the School Board to pass a resolution approving the books in question.

Justice Saunders of the BC Supreme Court held that the School Board's resolution should be quashed. The School Board appealed to the Court of Appeal.

What does it mean for educators to respect the moral views of parents? Is it legally permissible for a quasi-legislative decision-maker (such as a school board) to make decisions which are motivated in part by religious belief? Does the Charter require that moral beliefs which originate from religious belief be excluded from public debate? Does "secular" mean "non-religious"? How does "highest morality" relate to religion? Can public bodies disagree with the morality of homosexual sex without discriminating on the basis of sexual orientation?

The Court reversed the Chambers judge, holding that the School Board's resolution not to approve the three books for use in the curriculum was within its jurisdiction under the School Act, and was fully consistent with the Charter.

Section 76 of the School Act requires that all "schools must be conducted on strictly secular and non-sectarian principles" and that while the "highest morality" must be taught, "no religious dogma or creed is to be taught in a school". To interpret this section, the Court framed three questions: (1) what is the relationship of religion to morality, (2) what is the meaning of "strictly secular" in the context of the School Act, and (3) what is the "highest morality" that must be taught.

These questions arise out of the claimants' argument that the School Board's resolution (not to approve the three books as a classroom learning resource) is invalid because it was animated by a moral conviction (i.e. that homosexual conduct is immoral) which is influenced by religious belief. They argued that the resolution thus contravenes the requirement of s. 76 of the School Act that schools must be conducted on "strictly secular" principles. They also argued that the decision not to approve the books constitutes discrimination against gays and lesbians which, they argued, violates "highest morality".

The unanimous Court rejected the claimant's interpretation of what it means for the School Act to require that all "schools must be conducted on strictly secular and non-sectarian principles". "Secular", considered in light of the history of the School Act, is a pluralist principle; its purpose is to exclude the inculcation of any particular sectarian religious doctrine in schools, so as not to promote or discourage any particular form of religious belief.

The Court distinguished between religious doctrine and the moral convictions that may flow from reflection on that doctrine. Reflection on religious experience is only one possible source of moral beliefs. Many people do not accept the authenticity of any religious experience, and their moral positions are derived from other sources. The law, however, is not concerned with the sources of morality; "a religiously informed conscience should not be accorded any privilege, but neither should it be placed under a disability." And again, "moral positions must be accorded equal access to the public square without regard to religious influence." The Court thus unanimously rejected the Chambers judge's holding that moral decisions influenced by religion are excluded by the School Act. To accede to this position would make "religious unbelief a condition of participation in the setting of the moral agenda" and "would negate the right of all citizens to participate democratically in the education of their children in a truly free society."

As to the content of the "highest morality" which the School Act requires to be taught in schools, the Court, without explanation, isolated the concept of human dignity (which the court determined has been developed within Christian morality and adopted by the wider culture). Human dignity, the Court said, requires that school boards prohibit discrimination based on sexual orientation. After considering directives issued by the School Board on the subject of tolerance of sexual orientation, the Court concluded that the Board did not promote intolerance or discrimination against gays and lesbians. The Board's decision not to approve the three books did not constitute discrimination.

The Court further emphasized that parents have the right that their will regarding the religious and moral education of their children be respected, subject only to such limitations as are needed to protect the fundamental rights and freedoms of others. In this case, the protection of the fundamental rights and freedoms of others does not require the exposure of young children to books that advocate same-sex parenting.

This is a most significant decision. The Court attends to relevant aspects of the philosophy of morality, law, and religion with a depth which has not been seen to date in Canadian jurisprudence. As a result, the Court is able to accurately identify the issues at stake and reason to a sound judgment. The few troubling aspects of the reasons for judgment are touched on below.

While there are several key features of this judgment, this comment is limited to three issues: (1) the rights of parents with respect to guiding the moral and religious education of their children; (2) the nature of discrimination; and (3) the meaning of "highest morality". A fourth issue – possibly the most significant development of legal doctrine in the case – is the place of religion within public debate in relation to our understanding of the "secular". Because the Court of Appeal's reasons take essentially the approach suggested in an earlier Lex View commentary that was particularly critical of the trial court decision (Lex View # 25, Chamberlain v. Surrey School Board, available at www.centreforrenewal.ca), we will not reproduce that argument here.

It is well-established in Canadian law that parents have primary responsibility for the moral and religious education of their children, and that the limited responsibility given to teachers, administrators, board members, etc., is both delegated to them by parents and reflective of a structure of society that respects the role of families and smaller communities (such as school boards and trustees) in relation to larger authorities (such as the Ministry of Education, legal regulations and so on). An aspect of this delegation is that parents can revoke it and remove their children from the public school system when parents feel that their efforts at moral education are undermined by the public school system (see our discussion of relevant Supreme Court of Canada decisions in Lex View #1, R. v. Audet).

In this decision, the Court of Appeal is fully cognizant of the primary authority of parents recognized in Canadian and international law. Justice Mckenzie, writing on behalf of the unanimous Court, cites the International Covenant on Civil and Political Rights in which Canada has undertaken "to have respect for the liberty of parents … to ensure the religious and moral education of their children in conformity with their own convictions." This right, which is also part of common law, is not merely a right to be consulted or to be allowed to participate with teachers and boards in discussions about curricula. In the words of the Court, "(p)arental views on [moral questions] are entitled to be respected." This principle, called "subsidiarity" in international law, is not referenced in these explicit terms, but nonetheless supports the Court's reasoning here. Recognition of this principle in Canadian law is a positive step. We look forward to its future application and development, as it provides a sound framework through which to understand and protect the full reach of human freedom within an appropriately organized society.

Few rights can be properly described as absolute, and parental liberty over moral education, has limits. A parent espousing the racial inferiority of other students, for example, does not have the right to insist that this belief be left unchallenged by the school curriculum. Parental liberty cannot be used to curtail "the fundamental rights and freedoms of others". Furthermore, the "highest morality" which is to be inculcated in students is said to include the principle that respect be shown for the human dignity of all persons.

In this case, the claimants have argued that the Board, by acting in accordance with what it perceived to be the parents' wishes about moral education, discriminated on the basis of sexual orientation and thus have shown lesser respect for gays and lesbians and their children. But the Court rightly rejected this claim. To discriminate against someone on the basis of some personal characteristic is to treat them unfairly or in a way which suggests that they are of lesser worth than other people. The Court noted that the School Board had established directives to ensure that the environment in its schools is supportive of gays and lesbians (and children of gays and lesbians) and there was no evidence before the Court that any school fostered discrimination as "intolerance". The Court was satisfied on the evidence that the School Board was meeting its responsibility to inculcate "highest morality" by not discriminating on the basis of sexual orientation.

A principle implied in the judgment is that an ethic of non-discrimination (i.e. of respecting the equal worth and dignity of all persons) does not require that public officers further the acceptance of the contentious moral judgment that homosexual sex is morally equivalent to heterosexual sex. In anti-discrimination law, a distinction must be drawn between respecting the person and agreeing about the moral status of that person's chosen actions. (For a more detailed development of this distinction between acts and persons see Lex View #38, Brillinger v. Brockie). The claimants' dignity would be no more impaired by the Board members' disagreement with the moral status of gay and lesbian sex, than the dignity of some of the Board members would be impaired by the claimants' disagreement with the value of their chosen sexual practices. Neither need agree with the other's beliefs about what is or is not moral, though both must respect each other. In human life we make this kind of distinction on a regular basis when we act respectfully to those whose practices in a certain area we may disagree with. Obviously enough, disagreement with another person's moral judgments, while it may complicate matters, is not a barrier to friendship, let alone respect for that person's equal human dignity.

Where does all of this leave teachers, parents, and the School Board? Is it, as some commentators have hurried to claim, that the Court has said that the decision of whether to use these three books (and others in the genre) rests with the teacher? After all, the Court did (perhaps somewhat confusingly) say that books which are approved as library resources are "made available for use at the discretion of the particular teacher." In this particular case, the three books have not been ordered removed from the libraries, only disapproved as learning resources in the classroom. It is important to note that their place in the libraries is not as a result of the Court having determined that the books could not be ordered removed by the Board – only that, to date, they had not: "(t)he three books have not been challenged and the likely outcome of any challenge is not within the purview of this appeal." The Court further said that "incidental classroom use by a teacher is primarily a matter for the professional judgment of the teacher rather than one of general policy for the Board." So would it be correct to say that the Board was within its jurisdiction when it denied the books for use in the curriculum, but it might not be within it jurisdiction if it purported to deny teachers permission to read them at story time? This is an interpretation some have claimed but it cannot be supported by the decision overall.

To focus the analysis on the relative competences of teachers and boards overlooks the most important practical point of the decision. It is not that a teacher must submit to a board in the one case, but has final say in the other. The best interpretation of the decision – the only one consistent with the whole of the judgment – considers the relative functions of the boards and teachers in relation to the delegation made by the parents. It is the parents who retain the final say over both teacher and board. To interpret the decision as somehow supportive of an unqualified judgement of the teacher would render the judgement incoherent. It may be that it is primarily (in the sense of "initial jurisdiction") a matter for a teacher's judgment as to whether a book is appropriately complex or controversial for a particular age group. It is not ultimately a matter for a teacher's judgment as to whether a book conveys appropriate moral messages. A teacher must submit to the will of parents in this matter (whether expressed directly to a teacher or administrator, or mediated through a school board), and if parents object to the use of a book on moral grounds, it is the teacher's judgment that must give way.

In the final analysis, the Court has held, appropriately, that the secular school system must, to the greatest extent possible, respect the competing beliefs of all citizens – whether or not those beliefs are animated by religion. This respect is shown in a sharing of the public realm, encompassing public education and those who work within it. This decision has been celebrated and criticized but marks, on any reasonably objective reading, an entirely laudable attempt to deal with the accommodation of divergent beliefs in education.

In its wrestling with the meaning of "highest morality", it is a positive development to see the Court reaching towards the concept of public virtue. Indisputably, the concept of virtue has for millennia been found both in the great religions and outside them in classical philosophy. The concept of public virtue could be a promising ground for the teaching of "highest morality" in public education if it leads to a re-evaluation of the troubling category of "values" which has been heavily criticized by philosophers as an obscuring language for morality used when the idea of purpose has been destroyed.

Nevertheless, it is something of a concern that the Court's concept of "public virtue" seems tied (perhaps inadvertently) with majoritiarianism. Thus it would seem on the Court's view that principles of "highest morality" are those which "maintain the allegiance of the whole of society", including a "plurality of religious adherents and those who are not religious". On this interpretation, it is as though truth and virtue are concepts which are manufactured by public consensus but, clearly, consensus cannot make something right that is wrong. The court did not have to answer the question of the content of "highest morality" in this case. It had to determine whether the exposure of children to controversial materials in public school classrooms should occur without respect for parental wishes.

The Court, in effect, respected the principles of subsidiarity by affirming both the rights of parents and the role of local elected officials. School trustees from area to area may differ about whether particular materials are appropriate within their jurisdiction and will face the consequences for their decisions at the ballot box. School trustees in all areas, and the Ministry itself, however, have now had a clear direction from the highest court in the province that they must respect the wishes of parents regarding sensitive materials in schools. Implicit in this is that parents should be informed when materials of a controversial nature are being considered for inclusion in a school (classroom or library since respect for the parental role can be no less in one or the other). This is as it should be and leaves key decisions up to those who have the primary responsibility in the area of education - - parents and those to whom they delegate their authority - - teachers and local officials. The Ministry’s role is to facilitate the proper functioning of the local authority, not to replace it. The Court has set the principles in motion and it remains to be seen how prudent decision-makers at all levels will encourage them and keep them balanced.

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Iain T. Benson, B.A. (Hons.), M.A. (Cantab.), LL.B. of the British Columbia Bar

Brad Miller, B.Comm., LL.B, LL.M.(magna cum laude), of the British Columbia Bar.

Lex View is a project brought to you by the Centre for Cultural Renewal, a not-for-profit agency. Lex View is made possible through the donations of foundations, corporations and individuals. To inquire about making your contribution, please contact the Centre for Cultural Renewal at (613)567-9010.

Lex View is an on-going review of judgments of Canadian appellate courts that have an impact on the complex interrelationships between law, public policy, culture, moral reasoning and religious belief.

Copyright © 2000 Iain Benson, and Brad Miller. Reprinted with permission. "Lex View" is a publication of the Centre for Cultural Renewal.