Brown's Flat, Lorne Middle school parents argue schools unique

Parents from two Saint John-area schools are arguing in court that schools are unique institutions and the New Brunswick government must meet a high standard when it decides to close them.

That's the main thrust of legal arguments filed by the parents at the New Brunswick Court of Appeal in advance of a hearing on Friday.

"Schools are not mere buildings, but have cultural significance and touch on many substantive rights," writes Kelly Lamrock, the lawyer for parents of children who attended Browns Flat Elementary and Lorne Middle schools.

Lamrock says appeal courts in several provinces have ruled that people affected by school closures deserve "at least a modicum of procedural protection."

The government has argued in its filing that by law, the education minister has the broad power to assess for himself whether a district education council has followed proper procedure in recommending the closure of a school, and that the courts must defer to that.

Lamrock writes in his response that the government's right to close a school isn't an issue, but there is a legal problem if it's done "without even minimally explaining why."

The province is asking the Court of Appeal to overturn a ruling by Court of Queen's Bench Justice Darrell Stephenson that quashed Education Minister Serge Rousselle's approval of the two school closures.

A panel of three justices will hear the appeal in a two-hour hearing on Friday.

The parents argued in Court of Queen's Bench in Saint John that the Anglophone South District Education Council made the decisions without properly following policy 409 of the Department of Education, which lays out a consultation process and eight criteria the DEC must consider.

Stephenson agreed, ruling that the process was flawed because the DEC didn't provide the reasons for its decision and did not lay out which of the eight criteria it considered.

The province has argued Rousselle has the leeway to make that assessment himself.

But the parents' brief says if a minister had the power to decide on procedural fairness without any court oversight, it would "permit the usurping of the judiciary's legitimate oversight" of government.

Lamrock also disputes the government's argument that Stephenson went too far in faulting the DEC for not giving its "reasons."

The province argues the wording of policy 409 requires "an account" of the consultations, which it says only means it needs to provide a narrative of how the process unfolded.

Lamrock says that defies common sense and would mean the government "could read back to the community exactly what the community had said without commentary or analysis … A complete absence of reasons cannot plausibly stand as acceptable."

"Even broad discretionary power must explain itself," Lamrock writes. "A decision-maker cannot shield themselves from legitimate judicial oversight by refusing explanations."