[lg policy] Canada: National Post editorial board: A qualified win for minority language rights

[Harold Schiffman]

National Post editorial board: A qualified win for minority language rights

Posted: October 23, 2009, 9:00 AM by NP Editor
Editorial, Canadian politics

Yesterday the Supreme Court gave a compromised victory to Quebec
parents seeking English-language public education for their children.
In a unanimous decision, the court struck down parts of the so-called
Bill 104, adopted by the Quebec government in 2002, which had become a
focus of anger for its perceived unfairness. Quebec nationalists
reacted with predictable fury to the interference with their language
policy, but the court supported the general objective of social and
political discrimination in favour of the French language, and made it
uncertain — and perhaps unlikely — that the ad-hoc linguistic back
door Bill 104 was designed to close will ever be reopened.

The bill was originally passed to combat “springboard” schools that
had arisen in Quebec as an unexpected consequence of categorical
eligibility rules for English education. Immigrants were taking their
school-age kids to unsubsidized private schools (UPSes) featuring
almost nothing but large first-grade classes, claiming
official-anglophone status and quickly obtaining English-eligibility
certificates from the ministry. Bill 104 therefore included a
provision that all UPS attendance would be ignored in deciding which
kids were “genuine” anglophones for the purposes of Quebec language
law.

The parents in the case of Nguyen vs. Quebec argued, successfully,
that this was not a minimal impairment of their minority-language
rights under the Canadian Charter. The rule was obviously unfair to
perfectly legitimate English-language private schools that have always
existed in Quebec; it treated them as fictions, and the real education
going on in them as a fantasy. The Supreme Court is, rightly, having
none of this. Bill 104 went too far in the direction of forcing a
language down people’s throats and giving public schools a total
monopoly on education.

What the court was careful not to say is that Quebec has no right at
all to discriminate in defence of the French language. It can still
act to inhibit the creation of pure “springboard” schools and require
parents to demonstrate a certain degree of commitment to being part of
the anglophone minority. What it cannot do is to completely dismiss,
by rule, all private English-language education. The court insists
that English-eligibility certificates be handed out on the basis of a
nuanced “global qualitative assessment of a child’s educational
pathway.”

>>From the standpoint of providing optimum clarity to either the
policymakers in Quebec’s education ministry or the Quebec parents
desiring English education, this smacks of buck-passing. But it is
hard to see what alternatives were available. The Supreme Court is not
just refusing to impose a hard, objective rule of English eligibility
— though, as the government of Quebec already found, any such rule
would encourage evasive fictions anyway, if it weren’t so oppressive
as to fail Charter of Rights scrutiny. The court does, in fact, seem
to be saying that no such rule can ever be appropriate. Children have
to be assessed on a fluid, situational basis, taking into account so
many factors that the final decision (or the waiting time to English
eligibility) might be totally different for two extremely similar
Quebec families.

The court has acted to protect private education for Quebec
anglophones, but at the cost of supporting permanent, troubling
uncertainties for parents who hope to plan an English education for
their children. Moreover, there could be further generations of
lawsuits arising over individual decisions by the Ministry; it is hard
to imagine any case in which the Quebec government, in refusing an
eligibility certificate, could ever feel totally safe from litigation.
All in all, Nguyen vs. Quebec feels like it strikes a blow for
minority-language rights, but it is one struck with a rather clumsy
hammer made of Silly Putty.

National Post


 http://network.nationalpost.com/np/blogs/fullcomment/archive/2009/10/23/national-post-editorial-board-a-qualified-win-for-minority-language-rights.aspx##ixzz0UrV3fxMc

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