Anglophone education councils looking to courts to preserve powers

New Brunswick's four anglophone district education councils are looking at a legal challenge to the Higgs government's plan to limit their decision-making authority, and they may have a novel constitutional strategy on their side.

The councils could argue that language-equality provisions in the Charter of Rights and Freedoms entitles them to the same powers that the province is keeping in place for their francophone counterparts. 

"It's certainly one of the arguments that they can put forward and I believe a strong argument for them," says Michel Doucet, a retired law professor and expert on language rights.

Anglophone East member Kristin Cavoukian says the four councils are considering "all of our legal options," but haven't made a decision on whether to go to court.

"We believe that there might be charter issues involved, and we believe there might be other possibilities of potentially getting an injunction." 

Last week, Education and Early Childhood Development Minister Bill Hogan introduced an updated Education Act in the legislature.

It will eliminate the decision-making power of the four anglophone district education councils, but will keep the status quo in place for the three francophone councils.

Hogan told reporters he had no choice.

Section 23 of the charter gives the minority-language community in each province the right to govern their own schools.

"There are charter rights on the francophone side as a minority community in our province, and we're not going to mess around with charter rights," he said last week. 

But Doucet says another section of the charter could force Hogan to keep those same powers in place for the anglophone councils.

Section 16.1(1) of the charter, which applies specifically to New Brunswick, says the province's two language communities have "equality of status and equal rights and privileges."

And it says that includes the right to "such distinct educational and cultural institutions as are necessary for the preservation and promotion of those communities."

Doucet says the case would not be a slam dunk because that section doesn't mention school governance.

There is a strong argument that the right is implied, but the province would likely argue "that the language is not exactly the same" as what's in Section 23, he said.

"But I believe there is a strong argument that the right to manage is included in Section 16.1."

He also pointed out a 2001 New Brunswick Court of Appeal decision interpreting Section 16.1(1) said that in some situations, the francophone minority may need to be "treated differently" to help it achieve equality. 

That may make it harder for the anglophone education councils to argue that direct decision-making power is needed. 

"I believe that might be the biggest obstacle that they might need to go over," he said. 

Cavoukian said the province's recent plan to replace French immersion was an example of a measure that would target only anglophone schools.

"The charter protects minority communities' autonomy over their education system for good reason. It's to protect them from government overreach," she said.

"Recent experience has shown that the anglophone community in this province also needs protection from this particular government's overreach." 

'The whims of one man'

Cavoukian says the loss of DEC decision-making power will affect decisions on building new schools for fast-growing city populations and eliminate a council's ability to consult rural communities on school closures.

Under the current Policy 409, the minister identifies schools that should be studied for closure and the councils hold three-step public consultation before making a decision.

A minister can overrule a decision to close a school but can't close a school that the DEC wants to keep open — something Cavoukian says will now change.

"Getting us out of the way by removing our authority to make decisions basically removes the last line of defence and leaves our schools open to partisan politics, essentially, and whatever the whims of one man in Fredericton might be on any given day." 

In 2015, the Anglophone East district education council voted to keep open two schools in Dorchester and Riverside-Albert that were studied for closure.

The provincial government did not comment on the possibility of a legal challenge or on the suggestion that Section 16.1(1) of the charter could protect the decision-making power of anglophone education councils.

The new Education Act passed first reading last week and is expected to be debated and win final approval in the legislature before the end of June.