Local Democracy and Reasonable Local Autonomy
for Public Schools

Background

Following the provincial general election of June, 1993, the newly re-elected government of Alberta indicated that the province faced a financial crisis that it, the government, would deal with, in part, by restructuring major social institutions and programs, including public education. Restructuring was characterized by the government as being intended to:

focus on a smaller set of more modest goals, which would also be the more important goals;
focus on core activities and identify non-core activities that could be limited or eliminated if necessary;
significantly reduce the cost of service, by
- eliminating levels of management
- eliminating unnecessary management
- shifting the accounting emphasis from inputs to outcomes
- removing impediments to innovation, and
- encouraging innovation, free market solutions, and volunteerism or
  informal solutions.

Between June, 1993 and February, 1994, the government's message shifted away from the "financial crisis" to the "crisis of confidence" facing education, as well as health, social services, municipal government, etc. At the same time, the government characterized the crisis as being the responsibility of the people who worked inside the system (in the case of public education, the teachers, administrators, trustees, etc.).

In January, 1994 the government announced a major restructuring. In April, 1994 they introduced amendments to the School Act. In June, 1994, after the amendments were adopted, the Public School Boards' Association of Alberta filed a Statement of Claim, contending that some of the amendments were unconstitutional.

Why did the PSBAA go to Court?

The government enacted a law including a provision that was deliberately discriminatory against the majority. The government's provision allowed separate school boards, but not public school boards, to withdraw from the Alberta School Foundation Fund (the ASFF). The ASFF is the pooling mechanism by which the provincial government collects provincial property taxes intended to support education, and redistributes the funds to school boards on a per pupil basis.
Most important, the provisions of the amendments, and subsequent administrative decisions, substantially weaken local democratic control of public education in communities across the province. The government's Act centralizes the decision-making power with the Department of Learning, the Minister of Learning, and the Cabinet.

The process by which the change was brought about was as important and objectionable as the changes themselves. The government deliberately and consistently excluded trustees, administrators and others from participating in any dialogue or in the development of the details of the restructuring of Alberta's education system.

What is the "local government and reasonable local autonomy" argument?

The PSBAA believes in public (school) education. Our members and supporters believe that a great strength of public school education, and much of the success of public education in Alberta must be attributed to a significant degree of local control exercised by trustees who are elected in the community. In other words, a strong and successful public education system depends upon a strong and respectful partnership between the provincial government and the local community.

The "local government and reasonable local autonomy" argument proposes that local governments, including school boards, are an integral part of the whole democratic system of government for this country, and that local government has implicit rights under the Canadian Constitution, such as the right to exist and function.

We point to the preamble to the Constitution, which says that Canada is to have a constitution "similar in Principle to that of the United Kingdom", and we argue that in the United Kingdom local government has a long history of entrenched rights and reasonable local autonomy. Most important, going back to the Magna Carta, there is, in the United Kingdom, an unbroken history of tension between the central government and the local government. That tension has never been eliminated by decisively favouring one side or the other.

Section 92 of the Constitution Act, 1867 says that

"In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subject next hereinafter enumerated; that is to say, --

"8. Municipal Institutions in the Province.

"13 Property and civil rights in the Province."

We argue that the Legislature's power "exclusively" to make laws only means that the federal government may not make laws respecting municipal institutions. Section 93 does not say that "the Legislature may exclusively and without restriction of any kind make Laws . . " (respecting) municipal institutions or, (by virtue of section 93) education. For the sake of comparison, we note that "property and civil rights" (for example) are other matters enumerated in section 92. We would not accept any argument that, because the Legislature may exclusively make laws respecting property and civil rights that it has an unrestricted right when making such laws, such as the right to abolish property or civil rights.

The Canadian Constitution, we argue, protects local governments implicitly, in the same ways that it protects our right of habeas corpus, or the Office of the Prime Minister, or the institution of the Cabinet (none of which are mentioned in our Constitution).

What are we asking of the Supreme Court of Canada?

We are asking the Supreme Court to affirm that local government, notably the local government of public school boards, is an integral part of the system of democratic government in Canada, and Canadians have the right not to be deprived of local government by any action of a provincial government. If the Court agrees, this becomes part of the Constitution of the land.

It is important to note that public school boards are not asking that they be considered as an independent third order of government. On the contrary, we acknowledge that we are an integral part of the provincial order of government, and so important to its success that local government must enjoy some constitutional protection from unilateral and/or arbitrary action by some other elements of the same provincial government.

We are simply asking that school boards be treated with respect, as elected bodies representative of the citizens of the community. We are asking that they be treated as partners with the provincial government in the challenging task of providing Alberta's students with the best possible education and the best possible model of a civil democracy.

The Association also believes that local government must now have and must continue to have at least four vital elements, which both define local government and give it 'life'.

Local government must be led by elected people, not appointees.
Local government must have the right to hire, direct, and discharge staff, notably the Chief Executive Officer, without interference from the provincial government.
Local government must have the right to make decisions which are consistent with the mandate they receive from the provincial government, significant to the local community, and likely to make a difference for public education in the local community.
Local government must have access to a meaningful source of taxation which it controls, it must have discretion about the use of funds locally raised, and it must have discretion in the use of provincial grants, bearing in mind the mandate from the provincial government.

We are asking the Supreme Court to affirm these characteristics of local government (both for school boards and for municipal government). If the Court agrees, this too will become part of the Constitution of the land.

Once the Court has made a decision about these underlying principles, they will have to look at some of the specific amendments made to the School Act in 1994 and 1995, and strike them down if they offend the idea of local government and reasonable local autonomy.

What does the decision from the Alberta Court of Appeal mean?

Alberta's Court of Appeal has said that local government, especially public school boards, have no Constitutional protection whatsoever. The provincial government, says the Court of Appeal, can do whatever it wants to do with public (but not separate) school boards. The Court of Appeal has also considered the status of separate school boards, and has confirmed that they enjoy the protection of the Constitution. The result, the Court says, is that local democracy is assured for separate school supporters, but not for public school supporters. The Court also says that the government can treat public school boards much more restrictively than separate school boards and could, in the final analysis, eliminate public school boards but not separate school boards.

Alberta's Court of Appeal has said that the Constitution protects the minority (separate school supporters) but not the majority (public school supporters). One outcome of their decision is that leadership of separate school boards by elected trustees is assured: the same is not true for public school boards. Another outcome is that separate school boards can tax their electors and use the money for whatever reasonable purpose they decide. The same is not true for public school supporters.

More than once in the written decision the justices of the Court of Appeal said that the majority did not need to be protected from actions by government because the majority could always change the goernment by voting in an election. The first fallacy of this line of reasoning is that separate school supporters are a significant part of the electorate on voting day, yet they have no interest in public schools. They may, indeed, have an interest contrary to the interests of public school supporters.

Why should Albertans care about the outcome of the PSBAA's court case?

The outcome of this case will determine who makes the decisions that affect a community. The outcome will determine how the decisions will be made. The PSBAA is seeking a judicial interpretation that will have important implications for local democracy as represented by public school boards and municipal governments across Canada.

The resulting decision will outline, for the first time in writing, the implicit rights of local government. This outcome will determine the direction for the future of locally elected representatives who serve on school boards, village or town or city councils, and county or municipal district councils.

What does a successful appeal mean to Alberta's students?

Public school trustees are elected to make decisions that respond to the unique circumstances and needs experienced in each community. This is political leadership as close as possible to the front lines the most attuned and the most quickly responsive political leadership.

As well, a successful appeal will mean that locally led school boards will remain an integral part of our democratic heritage, and that they will be directly accountable to the local electorate.

Local Democracy and Reasonable Local Autonomy for Public Schools