Les droits constitutionnels des minorités linguistiques en matière d'éducation sont-ils solides ?

1995
Volume 27, No 1
Angéline Martel

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Abstract

With the multiplication of charters establishing the rule of law indemocratic societies, the law plays an increasing role in the protection and development of linguistic minorities. Minority groups now rely on the law to protect their own identity against the cultural and linguistic homogenization that mainstream groups tend to impose in modern states. In this context, we pose a practical question: "How strong and efficient are educational rights promulgated in a constitution for linguistic minorities?" We must acknowledge that the law, especially the constitutional law relating to minorities, is not free from power relationships. Therefore, ideologies play a determining role in the development, interpretation and implementation of constitutional rights.

From this point of view, we analyze the history of the constitutional rights of French speaking minorities in Canada in the area of education. While focusing on the 1867-1960 period, this article outlines the continuation of the ideological movements. It traces the changes to educational services that have been supported by two constitutional provisions until today. The first part gives precise details about the framework of analysis, the central concepts - minority, ideology and law - and themethodological approach. The second part schematically  compares  the two major ideologies of the nation and the education which, through Canadian history, have constantly been in conflict regarding the issue of the educational rights of minorities: an ideology that we  would describe as "homogenizing" for heuristic purposes, and an ideology known in Canada asthe "dualist" ideology.

The third part emphasizes on the polysemic character of section 93 of the Constitution Act, 1867, which results from ideological conflicts and power relationships that have marked the context of the development and interpretation of the constitutional text. Three sources of polysemy contained in section 93 have constantly been feeding conflicts of interpretation opposing French-speaking minorities and opponents of French school regarding the meaning to be given to this constitutional provision, so it turned out to be of little use for the protection of linguistic minorities. The fourth part shows how the homogenizing and dualist ideologies are continued through two kinds of interpretation that have been in conflict about the scope of the educational rights conferred to minorities in Canada under section 93, that is to say an interpretation that is static and an interpretation that is dynamic or creative. The fifth part summarizes the ideological change which, during the 1960-1982 period, has allowed the dualist ideology to take advantage over the homogenizing ideology. The author also describes the objectives which have governed the development of section 23 of the Charter. The sixth part explores the links between ideology and law as they appeared between 1982 and 1994 when section 23 of the Charter was interpreted and implemented. The author describes briefly the strength and efficiency of this section by showing the gains obtained by the French-speaking minorities through this constitutional provision, in a framework of interpretationfavouring the dualist ideology.

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