The Anglophone East District Education Council says the province not only denied funding for legal fees, it changed a policy to facilitate the denial.
In November 2023, the DEC said it was planning to sue the province for changes it made to Policy 713 – a policy that protects LGBTQ students in New Brunswick schools – and it sent a request for funding to the Department of Education and Early Childhood Development.
Under Policy 126, it said the province “will” cover the legal fees.
“And our letter was in line with that and it should have been a very easy rubber stamp approval,” said DEC representative Kristin Cavoukian. “Instead the government sat on it for a month. Then one month later they changed their policy to make it possible for them to refuse our request calling it a conflict of interest.”
In a letter provided to Global News, Minister of Education Bill Hogan said “after consultation with the office of the Attorney General, it has been determined there is a conflict of interest between (the province and of the DEC). Paragraph 6.2.4 (a) of Policy 126 states that when a conflict is identified, no further legal or financial support will be dispensed by the province in that matter.”
It denied the DEC’s request based on that section of the policy, one Cavoukian says did not exist when the request was made.
A version of the policy from November 2023 shows that paragraph did not exist.
“They included a section that had not been included before … which allowed them to reject our request,” she said in an interview Tuesday. “They didn’t actually tell anyone they changed the policy, they didn’t tell us the policy had changed and, in fact, there was no evidence online, as far as we can tell, until a couple of weeks ago that this policy had been changed at all.”
She said it does not impact the trajectory of their suit against the province for their changes to Policy 713. She couldn’t say how or where the money might come from, but added she didn’t believe it would impact funding to teachers or schools.
The policy is discriminatory
Cavoukian said the policy is inherently discriminatory.
“Citizens are right to expect their governments will follow the law,” she said. “Policy 713 meets the dictionary definition of discriminatory in the sense that it puts in place a certain set of rules that only will apply to trans and non-binary kids, but would not apply to any other kid requesting, for example, that you use their nickname in class.”
Cavoukian said the DEC would be filing a Charter Challenge about any policy the province implemented that harms or discriminates against any students in the education system.
“Again, I think that if any government, any provincial government, puts in a plan or policy and is told by numerous legal professionals their policy contravenes the Charter of Rights and Freedoms, I think it should give that government pause,” she said.
She couldn’t say how much the challenge might cost but the application for funding by the DEC estimated it could be up to $275,000 is legal fees.
In an emailed statement from New Brunswick’s Department of Education on Wednesday, a spokesperson said that Policy 126 was revised on Dec. 22 to “update and clarify wording and inconsistencies respecting legal services for District Education Councils and school districts.”
“Under the old version of Policy 126, where there was a conflict between the interests of the Province and the district, no further legal or financial support was to be dispensed by the Province in respect of that matter,” the statement read.
“Independent legal services are still covered when a DEC is sued and when it is determined that it is appropriate for the DEC to be represented by independent counsel.”