Monday, 29 July 2013

Furthering Substantive Equality through Administrative Law: Charter Values in Education

Angela Cameron and I have posted our forthcoming Supreme Court Law Review essay on Charter values and administrative decision-making in the context of education law: "Furthering Substantive Equality through Administrative Law: Charter Values in Education". Here is the abstract:
Recent decisions in the realm of Canadian public law have opened the door to Charter values. Administrative decision-makers must have regard to these values when making decisions. Through the use of a fictional example this paper is intended provide a guide for laypersons, lawyers, judges, administrators, arbitrators and academics on how to further substantive equality through administrative law. Our focus in this paper is on education law, but the framework we propose is capable of application across a wide range of areas. Those in other jurisdictions can replace Charter values with "constitutional values" and adopt a similar analysis.

The obligation to educate children about a “diversity of opinions and cultures” is at the heart of our exploration of administrative decision-making in the education system. We argue, however, that the obligation to pay attention to Charter values provides the lifeblood of substantive equality in the administrative law context.

The concept of applying Charter values as a juridical tool in decision-making, while not new, has been given a more dominant role in administrative decision-making by the Supreme Court of Canada in its Dore decision (2012). While the exact meanings and practical applications of this concept are as yet unclear, this paper makes a small step towards imagining the contours of Charter values. In particular we attempt to establish, as a first principle, the role of substantive equality as Charter values begin to solidify and take shape in the jurisprudence.

The paper is divided into three parts. In Part One we present a fictional administrative law decision-making scenario located within the public school system. This scenario provides a concrete backdrop against which to imagine the function of substantive equality within Charter values. In Part One we also discuss the public school system in Canada as a key site for the application of Charter values, and we lay out the empirical evidence showing that GLBTQ students, and the children of GLBTQ parents suffer an equality deficit in Canadian public schools. A deficit which, in our view, can be addressed through the proper application of Charter values by decision-makers within the education system.

Part Two develops an administrative law framework for furthering substantive equality. Specifically Part Two situates substantive equality within the existing framework of administrative law, and provides a blueprint for what substantive claims might look like under our proposed framework. Part Three treats the precise role of substantive equality, outlining a methodology for blending existing equality jurisprudence with the Court’s decision in Dore, using the fictional scenario as a backdrop.

We conclude with a demonstration of our proposed framework in the context of our fictional example.
You can download the essay here.

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