The idea of tolerance has lately been getting a bad press. All sorts of people see it as little more than mushy democratic pap. Some on the left condescendingly sneer at tolerance as one of the many veils of liberalism that covers up harder-edged class conflicts. Right wingers see tolerance as a politically over-correct codeword by which liberals shove their values down conservative craws. And almost all of us have lazily come to take the notion so much for granted that it has fallen into relative disrepair. The Supreme Court of Canada last month not only gave some renewed substance to the idea but, as well, provided a reminder of why tolerance deserves a couple of cheers in a pluralist democracy. The court’s decision about a case involving schools and banned books also opens a broader debate about what ideas parents, schools and communities ought to put into children’s minds.
In an unambiguous 7-2 judgment, written by Chief Justice Beverley McLachlin, the nation’s top court ruled that a decision by the Surrey, British Columbia School Board to ban from its district’s classrooms three children’s books that favourably depict same-sex parents and their families "violated the principles of secularism and tolerance" that are at the heart of B.C.’s provincial School Act. The court ordered the school board to reconsider its ban and awarded legal costs to those appealing the board’s decision to ban the books.
In so ruling, the Supreme Court settled, for the moment at least, a much-publicized, long-standing and legally expensive dispute about homosexuality and morality. Along the way, the court also taught a firm but polite lesson in tolerance to the duly elected Christian-fundamentalist-dominated school board that holds office in Vancouver’s largest suburb. More than that, though, the court offered insight into issues that cut deeper than the immediate squabble in the Chamberlain vs. Surrey School District No. 36 case at hand.
The story begins in late 1996 when James Chamberlain, a Surrey kindergarten-grade 1 teacher, and a gay educational activist, asked the school board to approve three books to use as "supplementary learning resource materials" in his classes. The books favourably portrayed same-sex parents and their families. Chamberlain wanted to use the books to get kids accustomed to the notion that there are such families and, in fact, there might be kids in his very classroom with such parents, and that recognizing all of this would have the effect of conferring a kind of normality over the whole range of available family configurations. The subtext of the quarrel is easy enough to see. The books is question are hardly polemical; what made them controversial at all is their presentation of same-sex parented families in a more or less neutral light. It is that very neutrality and normalcy that is objectionable to those who find homosexuality itself immoral. To see same-sex parented families as just one more kind of family is, in the eyes of opponents, to "condone" homosexuality.
In April 1997 the board turned down Chamberlain’s request. The reasons offered by the board were couched in legal language, but in the Supreme Court’s sorting out of motivations, the top court determined that the main element of the board’s decision was that a sizable group of parents in the district disapproved of homosexuality on religious grounds. Using books that portrayed same-sex parented families favourably would discomfit the religious fundamentalists who objected to the "gay lifestyle." The majority of the board, as it happened, shared the religious views of the protesting parents.
The board went through some convoluted legal parsing to justify their opposition. First, they interpreted the provincial School Act as saying that, given the controversial nature of the topic of same-sex families, the province could not have intended the subject to be discussed without specific language so requiring, and there wasn’t any specific language. Second, the board said that the books weren’t "necessary" to the children’s education and would merely confuse the kids. Third, the board wanted to uphold parents’ rights to be their children’s primary moral educators, and approval of the books would lead to controversy that would undermine the relationship between parents and schools.
That’s the reasoning that Chief Justice McLachlin takes apart, clause by clause, and distorted idea by twisted belief. This is a case where it is worthwhile to pay attention to some of the details. The broad strokes of the court’s decision can be found in the dailies. (Although the Globe and Mail ran the tale as a top story on page 1 on Dec. 21, as did most of the national broadcast media, curiously the Vancouver Sun buried the case on its inner pages, an odd news decision given that it was a big local issue.) To get a sense of the nuts and bolts workings of democracy, it’s necessary to move beyond the digest reports of the press, and take a look at the actual decision.
McLachlin begins her judgment by determining whether the courts have the right to say anything about school board decisions and, if they do, how much "deference" they ought to pay to the local decision-makers. The chief justice notes, first, that B.C.’s School Act contains no legislative direction to the courts to defer to school boards. However, she concedes, there is the school board’s relative expertise to consider. Who is better placed to make the decision in dispute, the board or the court? Well, McLachlin muses, it depends what kind of a problem is before the board. On the one hand, insofar as this is a problem of bringing community views into educational decision-making, the board clearly is "better placed to understand community concerns than the court." But on the other hand, "the decision of whether to approve the three books has a human rights dimension," and when it comes to human rights, courts have expertise that local boards may be lacking.
Still, when it comes to "supplementary materials," boards know best what types of families and children they’re serving, and what materials will be best, thus suggesting deference to board decisions. But the deference, McLachlin concludes, is tempered by the provincial School Act’s requirement that the board’s right to approve supplementary materials must conform "to norms of tolerance, respect for diversity, mutual understanding and acceptance of all the family models found in British Columbian society." Decisions that undermine those norms "are entitled to little deference. If the purpose of the School Act is not to be undermined, the courts must exercise a fairly high level of supervision over decisions involving tolerance and diversity."
Although I’ve gone into considerable detail about how the court locates itself in relation to a local school board, such matters are usually regarded as mere legal protocols and niceties. What isn’t immediately visible in this requisite legalistic positioning, and what excites my interest is that the seemingly banal material above contains almost the entire democratic dynamic. What we’ll end up with in this case is a description of a nested (and hierarchical) set of institutions, statutes, and ideas that cash out in a practical decision about what to teach our kids. Roughly, it looks like this:
There’s a provincial government Ministry of Education that produces a School Act that provides for schools and education; to carry out the intent of the School Act, there’s a school board in each district which is a subsidiary of both the provincial Ministry of Education and a lower order of government, the municipality. The school board not only delivers the education but it also interacts with the parents of the community, who are seen as having certain rights to determine what their kids are taught. All of these decisions, in turn, can be subjected to oversight by the judicial branch of government, which is outside the legislative branch and its subsidiaries. I offer this potted lesson in civics not because most people are unaware of these structures, but as a reminder of the dense weaving of the democratic web that is attended to in almost every judicial decision. Although the foregoing description has something of a "yeah, so what?" character to it, all you have to do is check into a jurisdiction without any of these provisions–say, someplace like Mogadishu, Somalia–and you quickly remember why we instituted this rigamarole in the first place.
McLachlin then turns to an examination of the provincial School Act, the curriculum in question, and how school boards and parents fit into the scheme. The B.C. School Act’s "insistence on secularism and non-discrimination lies at the heart of this case," McLachlin says. The School Act provides that all schools must be conducted on "strictly secular and non-sectarian principles"; further, the "highest morality must be inculcated, but no religious dogma or creed is to be taught." Underlying this is a big and long story about the separation of Church and State and the philosophical issue of what is meant by the notion of the "highest morality." Remember, the Supreme Court’s job here is not to decide whether the School Act is right about secularism and all the rest (that would only be an issue if someone were challenging the legality of the School Act), but whether the Surrey School Board is acting within the School Act.
What school secularism does rule out in this case, says McLachlin, "is any attempt to use the religious views of one part of the community to exclude from consideration the values of other members of the community… Religious views that deny equal recognition and respect to the members of a minority group cannot be used to exclude the concerns of the minority group." So, if a group of parents, even a majority of parents, holds the religious view that homosexuality is immoral (and ditto for same-sex parented families), they can’t impose this view on the school district without violating the provincial law on secular schools. Although McLachlin doesn’t mention it, what Surrey’s Christian fundamentalist parents were attempting to do in imposing their views would have been more starkly visible if the issue were race rather than sexual orientation. Imagine the religious fundamentalists trying to claim that the families of Asian-descended or Jewish students were immoral or otherwise not deserving of equal treatment. The irony of the present situation in Surrey is that some of the parents objecting to homosexuality are members of ethnic groups that were themselves victims of discrimination on racial grounds within living memory.
Given the wide range of families represented in B.C. schools, McLachlin points out, it is inevitable that some parents will view the cultural and family practices of some other parents as morallly questionable. That’s the beauty of the School Act, says McLachlin. "The view that a certain lawful way of living is morally questionable cannot become the basis of school policy… a secular school system cannot exclude certain lawful family models simply on the grounds that one group of parents finds them morally questionable." The key word in the preceding sentences is "lawful."
What the religious fundamentalists conveniently (or viciously) tend to ignore in these disputes is that the people they disapprove of have a legal right to live the way they live. The classic liberal idea at stake here is that everyone has the right to do whatever he or she pleases, unless it causes direct, measurable harm to others (the "direct, measurable" notion of harm distinguishes it from the idea of an act merely causing offense). The reason we decided, more than 30 years ago, that homosexuality is lawful is simply because no one could demonstrate that sexual preference causes harm in a legal sense. The same holds for same-sex parents. Underlying the ignoring of lawful lives is the desire to make those lives unlawful. If only the law had declared those immoral homosexuals illegal, the god-fearing would not be having the problems they’re having today.
McLachlin then does a bit of citing chapter and verse of the relevant legislation. We can leave most of that aside, except to note that in B.C., as elsewhere, there’s a lengthy and explicit provision of the contents of the school curriculum, authorized by the provincial Ministry of Education. The curriculum spells out what children will learn, and it turns out that one of the things kindergarten and first grade kids learn in B.C. is that there are families and they come in a rainbow variety. However diverse, they’re all to be recognized under the terms of the School Act’s emphasis on tolerance.
In looking at the role of school boards and parents, McLachlin first notes that school boards, though elected, are not like legislatures or even municipal councils. School boards possess only those powers their statute confers on them, and don’t have the sort of autonomy of city councils or provincial legislatures. As for parents, it is recognized in law that they have a central role to play in directing their children’s educations–even to the extent of homeschooling them or shipping them off to religious or private schools where the parents’ values and beliefs can be specifically inculcated–but there’s a limit to parental involvement in public schools. The limit is that parental views "cannot come at the expense of respect for the values and practices of all members of the school community." Repeatedly in this judgment, McLachlin returns to the central overriding point that nothing trumps the imperative that public schools are to "teach tolerance and understanding of difference."
Critics of tolerance like to point out that liberalism is hypocritical in pretending to tolerate all views. Such critics–who range from ancient Thrasymachus in Plato’s Republic to postmodernist scholar Stanley Fish in The Trouble with Principle–gleefully proclaim that liberalism is intolerant of intolerance, as though the discovery of this sophistic point undermined liberal doctrine and proved that all politics is merely power politics. But the claim is distorted. Liberalism tolerates the utterance of bigoted views, but draws the line at allowing the bigots to act on their intolerant ideas. The liberal doctrine isn’t perfect by any means, but so far no one has been able to demonstrate that some other method of civil order is superior.
In the end, the court asks once again, "Was the board’s decision not to approve the three books reasonable?" McLachlin then lays out what she sees as the mistakes the Surrey board made. "The board’s first error was to violate the principles of secularism and tolerance" in the School Act. "Instead of proceeding on the basis of respect for all types of families," the board "acted on the concern of certain parents about the morality of same-sex relationships." The board’s second error was to violate its own regulations about how to make decisions on the use of supplementary materials. The regulations required the board to consider the "relevance" of such materials and whether they were "appropriate" to the particular community in which they would be used. Finally, the board’s third error was the application of the wrong criteria to the decision about the books.
"The board either ignored or mistook the requirements of the School Act and the learning outcomes of the curriculum," McLachlin says. "The curriculum states that children at the K-1 level should be able to discuss their family models, whatever these may be, and that all children should be made aware of the diversity of family models that exist in our society. The board did not consider this objective." Instead of applying the proper criteria, the board wrongly applied the criterion of whether the banned books were "necessary," and further justified their decision on the basis that discussion of same-sex parented families "would send divergent messages and thus induce ‘cognitive dissonance,’ and that such discussion was not age appropriate for K-1 children."
What’s interesting here is the court’s insistence on how wrong the board was. McLachlin is at pains to point out that the board didn’t even come close to getting it right. The issue wasn’t whether the supplementary materials met a standard of "necessity," but whether they were "relevant" to enable the school to "enrich the learning experience." The issue wasn’t necessity, but relevance. The Chief Justice is even more impatient with the arguments about cognitive dissonance and age appropriateness.
"The argument based on cognitive dissonance," McLachlin observes, "essentially asserts that children should not be exposed to information and ideas with which their parents disagree. This claim stands in tension with the curriculum’s objective of promoting an understanding of all types of families." Although "cognitive dissonance" is a term tossed around by psychologists, such dissonance, when it comes to education, "is neither avoidable or noxious. Children encounter it every day in the public school system as members of a diverse student body. They see their classmates, and perhaps also their teachers, eating foods at lunch that they themselves are not permitted to eat… They see their classmates wearing clothes with features or brand labels which their parents have forbidden them to wear. And they see their classmates engaging in behaviour on the playground that their parents have told them not to engage in. The cognitive dissonance that results from such encounters is simply a part of living in a diverse society," McLachlin concludes. She adds, "It is also a part of growing up. Through such experiences, children come to realize that not all of their values are shared by others." As for age-appropriateness, McLachlin tersely rules that the message of tolerance "is always age appropriate."
If the board is still thinking about having the last word on all of this, McLachlin reminds it that "the last word–indeed the only word that counts–is the word of the legislature and the curriculum. It stresses tolerance and inclusion, and places high importance on discussion and understanding of all family groups. The board’s rejection of these values must be seen as serious."
As is clear from the Supreme Court’s language, its decision in the Surrey School Board case is a surprisingly strong one. Surprising, because the issue, at the outset anyway, looks like a rather insignificant matter–whether or not a school district ought to permit the presence of some supplementary learning materials–and one in which the school board looks like it is merely responding to the wishes of the local community.
Beneath the legal niceties, however, there are human nasties. Despite the Supreme Court’s polite remarks about the importance of parents’ religious views, and the need to respect those views in the midst of our implementation of tolerance, the truth of the matter is uglier. What we’re contending with here is out-and-out bigotry by a significant number of people who have the fantasy that God wants them to make sure that their children believe that homosexuality is a terrible sin. If the parents were members of a nutty cult or of an anti-semitic, anti-black, anti-Asian Ku Klux Klan chapter, the bigotry would be more apparent. But it’s bigotry all the same. And such parents and the school board they elected are dead serious. They were also willing to spend more than a million public dollars to pursue their ideological stubborness to the highest court in the land.
There’s one last question to glance at. When I teach first-year college ethics courses, I frequently ask students about the ethics of educating children. What ideas is it ethical to put in children’s minds? And who should be doing the inculcating of those ideas? My students mostly hold the view that parents are in some sense the owners of their children and ought to have the right to put into their kids’ heads any ideas that the parents think are right. The students are, by consistent contrast, suspicious of other sources of ideas, such as governments, schools, and interest groups.
I must admit that–perhaps as a consequence of my liberalism–that I’m always shocked that anyone thinks it is a good idea to stock children’s minds with any but the most moderate ideas. I’m all in favour of teaching kids innocuous but useful things like, Look both ways before crossing, and offering such vague imperatives as, Play nice. My students think that it’s odd that I think that stuffing children’s minds with fantasies about God is a form of ideological extremism and unethical. I point out that while I’m opposed to kids being hauled out to anti-abortion protests in which they hold up signs they don’t understand, I’m just as critical of children being dragged off to anti-globalization and anti-war marches (even though I’m in favour of adults participating in the latter). Despite my evenhandedness, my students are unpersuaded. Father knows best, they insist. So does mom.
Well, parents know something. But when it comes to growing ideas in children’s minds, I think ministries of education in liberal, pluralistic democracies tend to know better than most batches of parents.
It’s true that state authorities and their minions–school boards, superintendents, and teachers–can be too politically correct, or as insufferably self-righteous as the rest of us, and so insistent on a bland multiculturalism as to erase all standards of judgment. It’s also true that a lot of our public schools are not as successful as they ought to be in teaching the basics of reading, ‘riting, and ‘rithmatic, and there may be too much emphasis on "lifestyle skills" and self-esteem-boosting therapies. The failure to inculcate the basics is usually an outcome of our refusal to spend sufficient money on the schools; the latter failings are a symptom of the culture at large.
Occasionally, a local community or school board gets it all wrong, and it is handy then to have available the liberal apparatus of a quasi-independent judiciary, as happened in the Surrey case. On the whole, collective liberal wisdom about what ideas to put in children’s minds–mostly the moderate, "nice," tolerant notions promulgated in provincial Ministry of Education curricula–until the kids can decide for themselves what to think, works pretty well. The only surprising thing is how rarely such liberal virtues are affirmed.
Jan. 1, 2003, Vancouver