School choice has been a vexed issue in Quebec since well before Bill 101 became law 30 years ago. This week's Quebec Court of Appeal decision reminds us again that narrowly coercive social policy, however hard some try to rationalize it, creates injustices.

By a 2-1 decision, the court ruled Quebec must reopen a language-law loophole that the National Assembly closed in 2002 with Bill 104.

The Charter of the French Language limits access to schooling in English, but covers only schools that get government subsidies, namely public schools and most so-called "private" schools, those that get government per-capita funding and also charge tuition. Quebec's few fully private schools, however, where tuition may reach $18,000 per year, are not covered. A few parents, and then more, discovered a way around the law: Put a child into a fully private English school for Grade 1. One year later, that child, having had the majority of his of her education in English in Canada, became entitled under the language law to attend any English school - and so did that student's younger siblings. This is the route Bill 104 blocked.


The numbers are revealing: Up to Oct. 1, 2002, only 8,842 such certificates of eligibility had been issued during the whole 25-year life-span of Bill 101; they accounted for less than 1.5 per cent of all students in Quebec.

But even a generation after the passage of Bill 101, francophone sensitivity about language apparently remains so great that these few young children came to be seen as intolerable by the Parti Québécois government of the day. And no other party dared challenge the orthodoxy by opposing Bill 104 in the National Assembly. (True, the annual number of such certificates was climbing. One fully private school, for instance, had 154 Grade 1 students in 2000-01, but only 14 Grade 2 students the next year.)

It is striking while more than half of the grand total of 8,842 loophole-users were allophone, almost 1,500 were francophone. Those parents, too, were looking for a way around the coercive nature of Bill 101. Francophone opinion about the limits on school choice is not monolithic.

There is, we believe, a broad consensus in Quebec that the Charter of the French Language has eased francophone concerns about the survival of French and its associated culture. This in turn is widely and correctly seen as having eased tensions and contributed to "social peace," as Robert Bourassa liked to call it.

To a degree, this newspaper is a part of that consensus. But we regret the Liberal government is so determined to appeal this Bill 104 decision to the Supreme Court of Canada, because we believe that building an ever-higher wall around school choice is not ultimately the right way to strengthen French. Limiting choice - in education as in health care - naturally leads to ingenious efforts to get around the rules. But it also leads some people, at least, to leave Quebec, and others to decline to come here in the first place.

We understand that the Liberals, as a minority government, must not lose the image war; they must be seen as enthusiastic about protecting the majority. We regret this means the Liberal MNAs who represent the anglophone population - the Liberals' last loyal constituency - are so badly hamstrung and so useless on this issue. Perhaps they regret it, too.

While the state is so busy protecting collective rights, we must ask, who will protect individuals? The Court of Appeal did, we note, on behalf of the courageous parents who brought this case, and their skilled, determined lawyers who fought it.

Bill 104 has about it a distinct whiff of excess zeal, of unreasonable failure to accommodate. English public schooling in Quebec nowadays gives students very great exposure to French, and that is an appropriate, reasonable, desirable way to give young people the ability to function in the majority language.There is, by any rational measure, no real danger to the "Frenchness" of Quebec in a few hundred allophone immigrants, anglophones, and francophones choosing English schools. The stampede to "protect" French from this tiny phenomenon amounts to pandering to the most loudly nationalist among us.

We've heard a lot in recent months about Quebec identity, and there's more than a little anxiety in the air these days. Even so, we can't believe 350 Grade 2 students per year constitute a threat to anything.

A calmer approach would acknowledge that Quebec francophone society would be better served by a little more self-confidence.

We cannot accept the argument "the rich" should not be allowed to "buy the right" to education in English. We'll wager many of the parents scrimped or borrowed, or both, to find that $10,000 or more. And why shouldn't parents be free to choose what they see as the best education for each child?
There's nothing reasonable, or accommodating, about Bill 104, a sledgehammer approach to a tiny problem, even a non-problem.

For years we have been urging that English schooling in Quebec should be more widely available, open at least to all those who have had the majority of their schooling in English anywhere in the world. At present, only those who have been mainly at English schools in Canada are eligible. Who can say how many qualified immigrant families shun Quebec because of this narrow rule? And who can say that the anglophone community will be able to endure indefinitely this lack of immigrant oxygen? Is the steady erosion of the anglophone community really essential to the "protection" of French?
Access to English schools at the margin should be opened up, not tightened.