Put Students First by Permitting Competition in Education

Imagine a world where General Motors has to ask Ford’s permission to bring a new car to market. In such a scenario, GM spends its own resources in research and development, gauging consumer demand, and implementing new procedures for efficient manufacturing. GM’s competitor, Ford, does nothing.

Now imagine that Ford has the legal authority to hijack any of GM’s ideas and claim them for itself. Everyone knows there is something unfair about this. If this arrangement does not drive GM out of business, it will negatively impact upon consumer choice. There are few surer ways to stifle innovation and market-responsiveness.

But this is precisely what Alberta’s new Education Act does. The act continues to require that an application for a new charter school must be first presented to the local school board. The school board has two options if it thinks the charter proposal has merit: it can reject it—only to see students exit its own schools—or it can mimic (i.e. hijack) the application by starting an “alternative program”. Either way, the school board gets first dibs. This is a clear conflict of interests.

This problem is not hypothetical—it has happened at least once already. The All Boys Program in Calgary is based upon an application originally made for a charter school. The Calgary Board of Education (CBE) hijacked the proposal and claimed for itself the effort invested in the application. Adding insult to injury, the CBE implemented the proposal minus some key innovations—such as merit-based pay for teachers. This half-hearted implementation has reportedly undermined some of the program’s effectiveness.

University of British Columbia Dean of Education, Lynn Bosetti, says “local school boards have no incentive to support charter schools”, and that school boards—like the CBE—perceive charter schools as “undesirable competition”. Could this be true? Undesirable competition? Shouldn’t Alberta’s public school system prioritize student needs? Fostering market-based fair competition between charter and government schools would be an excellent vehicle to prioritize student needs. Instead, the act undermines competition to the detriment of student interests.

This anti-competitive arrangement is contrary to entire impetus behind the charter school movement.

In 1994, the Government of Alberta passed legislation creating charter schools by permitting non-profit organizations to operate public schools to increase school choice and parental involvement while adopting innovative instructional methods to improve educational outcomes. Charter schools are supposed to be the testing grounds for the delivery of public education. The problem is that the charter schools have become too successful.

Today, charters continue to operate tuition-free publicly funded schools that, along with private schools, consistently out-rank the majority of government public schools on the Fraser Institute’s annual School Report Card. True to their mandate, the charters have innovated. There are charters tailored to meet specific student needs, including one for English is a second language students, one for at-risk youth, and others that emphasize fine arts, music, and science. The students in these programs flourish.

If enrolment is an indication of meeting market demand, then charter schools are wildly successful. One Calgary charter has its enrolment capped by the government at just under 3,000 students and is annually filled to capacity while approximately 7,000 students wait to get in. For your child to attend this charter, you must apply nearly as soon as he or she is born.

But the strength and value of charter schools is not solely how they have innovated and produced superior results compared to government schools. Another significant success is in empowering parents. When parents have a choice of where to send their child to school, the decision becomes a matter of careful consideration. This creates a new relationship between the parent and the school freely chosen—one that’s markedly different than the complacency and compromise that characterizes having no choice but the local government school. As Sheldon Richman points out in his 1994 book “Separating School and State”, the single most important factor in a child’s educational success is an active, supportive family. By offering parents a choice of school outside of the government’s offerings, charter schools help to accomplish that.

Competition is always better than monopoly for consumers, and the delivery of educational services is no different than any other industry. The legislature has done Alberta’s students and parents a great disservice in the Education Act. By making charter schools beholden to school boards with vested interests, the government is sending a clear message: student needs and educational outcomes are not the government’s primary objectives.

This piece was originally published by Troy Media on December 3, 2012

Confusing Compulsion for Freedom

The Toronto Sun reported yesterday that one of the reasons the Quebec student protests were so well-organized last spring is because the protesters were receiving financial help from unions across the country.

Canadian unions are well-known to give financial support to political causes—almost exclusively to those on the left side of the political spectrum. Many provinces in Canada, including Ontario, Manitoba, Saskatchewan, and British Columbia, have enacted legislation that forces even non-union members to pay union dues. And regardless of the wishes of the individuals forced to financially support them, unions are permitted to spend the money they collect to advance political causes that those same unwilling supporters oppose.

This issue was before the Supreme Court of Canada in the 1991 Lavigne v. Ontario Public Service Employees Union case. This case examined whether the Charter right to freedom of association prohibits the government from compelling individuals into associations against their will.

Lavigne was a teacher at a community college. His employment contract incorporated the so-called Rand Formula, which forced him to pay union fees regardless of whether he was a union member. The union then used Lavigne’s money to support the NDP and other political causes that he deeply opposed.

Once he became aware of this, Lavigne applied to get his money back so that it could not be used to further causes he considered unjust. His application was unsuccessful so he appealed all the way to the Supreme Court of Canada. The court’s decision was truly baffling.

Of the seven judges who heard the appeal, only three correctly held that freedom of association includes both a right to associate and a right to not associate. These three judges recognized that it’s just a matter of plain logic. If you are free to associate, you must also be free not to associate. That’s precisely what “free” means.

The remaining judges held that compulsory associations do not violate the Charter and that freedom of association “should not be expanded to protect the right not to associate.” Expanded? This implies that freedom from association is something other than a corollary of freedom of association. This view is incorrect. And it’s illogical.

In the end, the court had to bend the rules of good-reasoning to protect the Rand Formula. The word “freedom” necessarily implies choice. At a bare minimum, it must mean that individuals are free to choose to associate and free to choose not to associate. Yet the Lavigne decision protects the government’s constitutional authority to force individuals into involuntary associations. This is to confuse freedom with compulsion.

The real injustice in Quebec is not that tuition rates have been raised by a fraction. It’s that unions are supporting the protesting students using money involuntarily collected from unwilling Canadians.

So Far So Good... or maybe not.

The Canadian Charter of Rights and Freedoms is 30 years old in 2012.

In Canadian law, the “Charter” is the first 34 sections of the Constitution Act, 1982. Broadly speaking, the Charter is a bill of rights recognizing individual rights and limiting the authority of the federal and provincial governments.

For example, section 2 of the Charter guarantees that everyone has the fundamental freedoms of religion, expression, assembly, and association.

Section 7 contains another important rights guarantee. This section recognizes that everyone has a right to liberty constrained only by the demands of justice—presumably the liberty of criminals can be constrained.

There was good reason to be optimistic in 1982 when the Charter was new—various portions were drafted to protect individual freedoms by limiting government authority. But in the 30 years following, the courts in Canada have continually done the opposite. Instead of the Charter protecting individual freedoms from overreaching governments, it has been given a government-promoting interpretation that negatively impacts upon individual freedoms.

In an article prepared for the C2C Journal, Karen Selick and I outline four portions of the Charter that have been given this government-promoting interpretation. You can read the article online here.

Here is a brief outline of the article.

• In the 1990 Canada v. Taylor decision, the Supreme Court of Canada (SCC) restricted the section 2(b) individual right to freedom of expression in order to preserve the hate speech provision in the Canadian Human Rights Act.
• In the 1991 Lavigne v. Ontario Public Service Employees Union decision, the SCC held that the section 2(d) freedom of association does not prohibit the government from forcing individuals to associate.
• In the 1988 R. v. Morgentaler decision, the SCC decided that the section 7 right to liberty grants individuals only a degree of autonomy when making decisions of fundamental personal importance, and that decisions of lesser significance could expect no constitutional protection.
• In the 2003 R. v. Malmo-Levine decision, the SCC decided that the government is free punish individuals for actions that cause no one any harm, despite the section 7 guarantee of individual liberty.

For the full discussion on each of these issues, go to the C2C Journal’s website and read the entire article. I think you will be convinced that the first 30 years of the Charter’s existence have yielded mixed results.


This appeared in the Canadian Constitution Foundation's blog in February 2012.