Yesterday the Supreme Court gave a compromised victory to Quebec parents seeking English-language public education for their children. In a unanimous decision, the court struck down parts of the so-called Bill 104, adopted by the Quebec government in 2002, which had become a focus of anger for its perceived unfairness. Quebec nationalists reacted with predictable fury to the interference with their language policy, but the court supported the general objective of social and political discrimination in favour of the French language, and made it uncertain -- and perhaps unlikely -- that the ad-hoc linguistic back door Bill 104 was designed to close will ever be reopened.
The bill was originally passed to combat "springboard" schools that had arisen in Quebec as an unexpected consequence of categorical eligibility rules for English education. Immigrants were taking their school-age kids to unsubsidized private schools (UPSes) featuring almost nothing but large first-grade classes, claiming official-anglophone status and quickly obtaining English-eligibility certificates from the ministry. Bill 104 therefore included a provision that all UPS attendance would be ignored in deciding which kids were "genuine" anglophones for the purposes of Quebec language law.
The parents in the case of Nguyen vs. Quebec argued, successfully, that this was not a minimal impairment of their minority-language rights under the Canadian Charter. The rule was obviously unfair to perfectly legitimate English-language private schools that have always existed in Quebec; it treated them as fictions, and the real education going on in them as a fantasy. The Supreme Court is, rightly, having none of this. Bill 104 went too far in the direction of forcing a language down people's throats and giving public schools a total monopoly on education.
What the court was careful not to say is that Quebec has no right at all to discriminate in defence of the French language. It can still act to inhibit the creation of pure "springboard" schools and require parents to demonstrate a certain degree of commitment to being part of the anglophone minority. What it cannot do is to completely dismiss, by rule, all private Englishlanguage education. The court insists that English-eligibility certificates be handed out on the basis of a nuanced "global qualitative assessment of a child's educational pathway."
From the standpoint of providing optimum clarity to either the policymakers in Quebec's education ministry or the Quebec parents desiring English education, this smacks of buck-passing. But it is hard to see what alternatives were available. The Supreme Court is not just refusing to impose a hard, objective rule of English eligibility -- though, as the government of Quebec already found, any such rule would encourage evasive fictions anyway, if it weren't so oppressive as to fail Charter of Rights scrutiny. The court does, in fact, seem to be saying that no such rule can ever be appropriate. Children have to be assessed on a fluid, situational basis, taking into account so many factors that the final decision (or the waiting time to English eligibility) might be totally different for two extremely similar Quebec families.
The court has acted to protect private education for Quebec anglophones, but at the cost of supporting permanent, troubling uncertainties for parents who hope to plan an English education for their children. Moreover, there could be further generations of lawsuits arising over individual decisions by the Ministry; it is hard to imagine any case in which the Quebec government, in refusing an eligibility certificate, could ever feel totally safe from litigation. All in all, Nguyen vs. Quebec feels like it strikes a blow for minority-language rights, but it is one struck with a rather clumsy hammer made of Silly Putty.