Teaching about religion and culture still legal

Over three years ago, I wrote about an allegation that a student in Port Alberni was forced to participate in an Indigenous smudging ceremony in a BC public school.

So as Humanists and secularists, we stand with the parent in speaking out against the forced participation of students in such a ceremony.

Today, Justice Thompson of the Supreme Court of British Columbia dismissed that case, finding that the school district did not infringe the Charter of Rights and Freedoms, including the state’s duty of religious neutrality. The entire ruling is worth reading as this was possibly the first case to examine the place of Indigenous spiritual practice in a secular school classroom in the era of reconciliation.

The first section of the judgement (paragraphs 15–37) considers the historical backdrop of “cultural genocide” that “helps place the [school’s] smudging and hoop dancing events in context.” In particular, the Alberni Indian Residential School (pictured above via United Church of Canada Archives, under public domain) operated until 1973 about 4 km from the school where the smudging ceremony took place. Justice Thompson quotes a description from another case, which notes that students at the school “were disciplined by corporal punishment” and some “were repeatedly and brutally sexually assaulted.” He also notes that one-third of the students in the district are Indigenous but many are failing to thrive (in part because of this historical trauma).

Justice Thompson notes that modern changes to the BC curriculum to incorporate Indigenous perspectives in the classroom have been a positive step to redress the “regrettable history of mistreatment of Indigenous children and antagonism toward Indigenous beliefs.”

[35] My sense of the evidence is that much hard work has been done in British Columbia to begin to incorporate Indigenous knowledge and learning about Indigenous cultures into the K to 12 curriculum. The curriculum is written at a high level, with the expectation that teachers will use their professional judgment about how to best achieve the learning standards associated with the curriculum. It is the curriculum that must be taught and it is recognized that there are different methods of teaching it. Because the curriculum is written at a high level, it does not prescribe particular teaching methods such as demonstrations of smudging or hoop dancing.

[36] Of course, teaching methods must comply with the requirement to operate schools on strictly secular principles. By way of example in relation to this secular requirement, Mr. Cadwallader [former director of the Aboriginal Education Enhancement Branch of the Ministry of Education] agreed with the proposition that teaching on the subject of Indigenous beliefs about supernatural beings would be appropriate, but teaching these beliefs as fact would be inappropriate.

This distinction — between teaching about and teaching as fact — plays a major role later.

Moving onto the discussion of facts, Justice Thompson sides with description of events given by multiple teachers and administrators from the school as opposed to the petitioner’s daughter — who the Justice noted “was nine years old at the time of the event (and 11 when she swore her affidavit)”.

So where the student claims that she was told to bow her head and join in prayer with the hoop dancer, Justice Thompson finds:

[62] …I find that these details are embellishments, and I reject them as untrue.

Similarly, on the smudging ceremony, Justice Thompson accepts one teacher’s testimony, which notes that students were permitted to opt themselves out if they’d felt uncomfortable:

[53] Ms. Dyer’s version of events, which I prefer, directly contradicts much of this evidence. Because there was expected to be smoke, Ms. Dyer says she made it clear that students could go outside if they wished, and about five of her 30 students did so. Other students looked disengaged and Ms. Dyer says she offered these students the opportunity to leave in order to preserve a respectful atmosphere. Ms. Dyer says that the petitioner’s daughter took in the demonstration with enthusiasm. Ms. Dyer denied in forceful terms the petitioner’s daughter’s evidence that she asked permission to leave and that permission was denied.

It seems that the biggest misunderstanding came from the letter circulated by the school’s principal announcing the demonstration. In that letter, she wrote that the presentation would let students “ cleanse our own spirits.” In describing the ceremony itself, the principal outlined how students would participate:

All participants will hold on to cedar branches (each student will feel the bristles of each branch to remind them that they are alive and well to embrace life and all that it offers) and/or “Smudged” (smoke from Sage will be fanned over the body and spirit).

Justice Thompson describes these sections as “the most problematic aspects” of the letter and argues it “ explains, at least in part, the petitioner’s strong feelings about the smudging.” In other words, this seemed to fuel a misunderstanding that led to a court case.

Justice Thompson then considers the constitutional arguments, namely whether the school district violated its duty of religious neutrality and if it compelled students to participate in spiritual rituals.

On its duty of neutrality, Justice Thompson essentially looks at whether the school taught about Indigenous spirituality or actively professed that spirituality (for example by attempting to indoctrinate students into those views).

[85] When arrangements are made for Indigenous events in its schools, even events with elements of spirituality, the School District is not professing or favouring Indigenous beliefs. Educators are holding these events to teach about Indigenous culture, and to introduce students to Indigenous perspectives and worldviews. If the students were in their classrooms learning about Indigenous beliefs or ceremonies by reading textbooks or watching films, this would plainly not compromise state neutrality. Nor would state neutrality be jeopardized if the students took a field trip to a local Tse-shaht or Hupacasath big house to see dancing, a potlatch, or smudging. I reject any suggestion that if the Elder that does the smudging comes to the school class instead of the school class travelling to the Elder, the boundary between state neutrality and state partiality is crossed.

Building on this, he writes:

[87] It might be argued that one distinction between a classroom and hypothetical field trip venues like a mosque or a big house is that these field trip venues are not public spaces that are subject to the state duty of neutrality. This line of argument does not stand up to scrutiny. When a school class takes a field trip, it is the metaphorical space that matters, not the physical space. The duty of state neutrality would not evaporate because the students left the classroom to visit a mosque or a big house. It is what happens when the class is at the venue that matters. If the students were learning about Islam by observing Muslims at prayer, and were being told of the significance of certain Koran verses being spoken, neutrality would remain intact. On the other hand, if the students were issued prayer rugs and directed to take part in the prayers, state neutrality would be compromised even though the student prayers were taking place in a “non-public space.” Essentially, the field trip venue becomes the classroom. [emphasis added]

And repeated once more for good measure:

[107] I conclude that proof on an objective basis of interference with the ability of the petitioner or her children to act in accordance with their religious beliefs requires more than the children being in the presence of an Elder demonstrating a custom with spiritual overtones or being in the presence of a dancer who said a brief prayer. In most instances, it is not difficult to recognize the boundary between a student learning about different beliefs and being made to participate in spiritual rituals. A field trip to a mosque to watch prayers would be learning about Islam; an Imam coming to the classroom and demonstrating prayer rituals would likewise not be problematic. However, in either of these cases, if the involvement of the students progressed to being called upon to pray or read from the Koran then it might well be said that educators have compelled the manifestation of a specific religious practice or the affirmation of a specific religious belief. If a Catholic priest came to school with alter candles and a censer containing incense to acquaint the students with the sights and scents of Church rites, this would seem to be well within the bounds of what the S.L. case stands for: religious freedom is not compromised when students are taught about other beliefs. If, however, the children underwent a baptism, this would be far over the line.

While the presence of religious officials in schools undoubtedly makes many atheists (and apparently some evangelical Christians) uncomfortable, secularism doesn’t preclude the existence of religious beliefs nor their presence in schools. Rather, context matters. As I wrote in my previous piece:

These are not simple black and white issues. Learning about different worldviews is an important path to promoting tolerance and pluralism and seeing these practices first hand can be a far more effective lesson than reading about it from a textbook. However, the fundamental importance of keeping our classrooms free from coercion must not be given up to otherwise good intentions.

And given the findings of Justice Thompson that there was no coercion, the case is effectively concluded there.

There are a couple more nuggets in the ruling though.

First, Justice Thompson draws out an important nuance from the Saguenay decision. Specifically:

[86] …This submission highlights why context matters so much in this case, and is an illustration of why it is important to heed the caution in Saguenay that the state’s duty of neutrality must be interpreted “not only in a manner consistent with the protective objectives of the Canadian Charter, but also with a view to promoting and enhancing diversity” (para. 74).

Once again, we see the theme of this ruling is that context matters.

And finally, given his other findings, Justice Thompson chose to remain agnostic on whether smudging itself is a religious ceremony. Members of the Nuu-chah-nulth Nation argued — and have repeated in the press following this decision — that it is a cultural practice, while I argued three years ago that it reasonably meets the threshold of religion. Nevertheless, the issue at play here was the petitioner’s claim that participating in this practice was an affront to her daughter’s religion, so to some extent the question of whether smudging itself is religious is irrelevant (in the same way that forced participation in mindfulness might violate an evangelical Christian’s rights).

There’s undoubtedly more of interest to secularists in the ruling itself and it’s possible that the parent may appeal the decision, so this may not be the last word.

Nevertheless, the ruling represents a clear line demarcating how to teach students about religious and spiritual practices while observing the public school system’s secular nature. And as importantly, Justice Thompson recognizes the importance and value to advancing reconciliation through our education system.

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