TORONTO — An Ontario court was asked last week to order the provincial government to extend funding to children attending faith-based schools who are blind, deaf or have learning disabilities.
The current practice, in which children attending public or Roman Catholic schools receive such funding, is discriminatory and in violation of Charter guarantees to equal treatment regardless of disability or religion, say advocates for the children.
The case before a three-judge panel of the Divisional Court, pits eight families – seven Jewish, one Muslim – against the government of Ontario. “The thrust of our case is that if a child is blind, deaf or has a learning disability, it should not matter in Ontario what the child’s religion is. It should not matter what school he goes to or what ministry the money comes from,” said Allan Kaufman, one of the lawyers representing the families.
Kaufman said funding for an extension of health benefits to children in religious schools would not even require the province to allocate additional funds. It currently budgets $14.5 million per year to fund treatment of seven health-related disabilities of children in religious schools. Only about $4.5 million of that is currently being spent. “The money is there,” Kaufman said. “[Health Minister David] Caplan can wave his pen and it would flow.”
In documents filed with the court, the province rejected any suggestion of discrimination. The province argued the 1994 Adler decision – in which the Supreme Court ruled that there was no Charter violation in funding public and Roman Catholic schools and not those of other religions – also applied to the provision of health services.
Although the Mike Harris government in 2000 extended school health support services to private religious schools, “it cannot seriously be maintained that Ontario discriminated against children attending private religious schools by extending this benefit to them,” the province argued.
The province also contended that special education programs, services and staff are provided by regulations under the Education Act, which applies only to public and Catholic schools. The extension of health support services to private religious schools in 2000 was done by regulation under the Long Term Care Act. The Education Act focuses on educational programs and services, while the LTCA is concerned with health-related services.
“This distinction is inherent in the purposes of the two statutes and is not simply a ‘bureaucratic distinction…’ The fact that Ontario has voluntarily chosen to extend funding for the health-related services set out in [a regulation] under the LTCA to eligible students in private and home schools imposes no obligation on the province to extend funding under theEducation Act and its regulations to private schools or to expand the benefits provided by [the regulation],” government documents state.
Ira Walfish, who heads the Multifaith Coalition for Equal Funding of Faith Based Schools, said the decision by the Harris government to fund seven areas of disability (including physio, occupational and speech therapy) did not include deafness, blindness and learning disabilities.
However, an anomalous situation arose from application of the law. Under the seven areas now receiving government funding, speech therapy can proceed in Jewish schools “for speech impediments. After a time, the therapy stops” when those providing it deem the therapy to change from something health-related to something that involves education.
Walfish said the government’s position is “bizarre,” particularly since it is spending $10 million less than it has allocated for the seven permissible areas of health treatment. The money already allocated could fund all the special needs in the religious school system, he said, adding “from a dollar standpoint, this is a joke” relative to the province’s $14.2-billion education budget.
Walfish suggested the real reason behind the government’s reluctance to fund health benefits in religious schools is “they don’t want to fund anything in faith-based schools.”
Kaufman said funding for blind, deaf and learning disabled children in the public system has since 1984 been funnelled through the Education Ministry, so religious schools receive no government money. As he sees it, “it’s just a question of moving money around… I don’t care if it comes from the Ministry of Tourism. It’s discriminatory not to flow it to disabled children in Jewish schools.”
Kaufman and Raj Anand, former chief commissioner of the Ontario Human Rights Commission, represent parents with children who attended the Dr. Abraham Shore She’arim Hebrew Day School (which closed after the lawsuit was launched) and currently attend Yeshivas Nefesh Dovid, Associated Hebrew Schools, United Synagogue Day School and Leo Baeck Day School, as well as a blind student at an Islamic school in Richmond Hill.
That girl first attended public school and “was treated like a queen.” When her parents enrolled her in the Muslim school, “the government pulled everything for her. She gets nothing,” Kaufman said.
Kaufman does not expect a decision in the case for several months.