Yellowknife (Sep 29/06) - Today, Kevin Feehan, legal counsel for Yellowknife Catholic Schools trustees, and superintendent Kern Von Hagen are scheduled to appear in court to make the case for an all-Catholic school board.

Both the school board and territorial government have expressed hope that the legal challenge of the city returning officer's decision to allow Amy Hacala and Debora Simpson - both non-Catholics - to run for the YCS board would not delay the Oct. 16 election.

However, with advance polls Oct. 2, it appears likely the court action will affect the election. In Feehan's letter to the clerk of the court, he asks the case be heard before Oct. 2, or "Any votes cast for Ms. Hacala or Ms. Simpson on advanced polling be deemed to be spoiled ballots."

In making the case for an all-Catholic school board, Feehan has drawn on a host of legal challenges heard before the federal and provincial supreme courts.

Feehan will argue that based on legal precedent, Catholic school boards have the right to "maintenance and support" and complete "management and control" of their schools. One case Feehan cites, this one involving a Protestant school board, is Hirsch vs. Montreal Protestant School Commissioners.

Settled in 1928 on appeal to the privy council - predecessor to the Supreme Court of Canada - the case challenged Quebec's Education Act that stipulated, "Jews, for school purposes should be treated as Protestants and have the same rights and privileges."

The privy council ruled the province could not force the school board to accept Jewish students, oblige the board to hire Jewish teachers or allow members of Jewish faith on the board.

Another precedent is the 1987 Alberta Supreme Court decision that upheld the Hinton Roman Catholic Separate School's right to dismiss an employee because she behaved contrary to Catholic teachings.

In this case a female teacher who was dismissed for engaging in pre-marital sex, discovered when she became pregnant out of wedlock, challenged the board that her Charter Rights were violated.

However, the teacher's firing stood, with the court ruling the school, "Could dismiss a teacher for denominational cause."

Another element of YCS trustees' argument for an all-Catholic board as laid out in the affidavit is, "A school board which claims the extraordinary right to operate a Catholic school must provide a Catholic education."

To make this point, Feehan cites the 1994 Alberta Supreme Court decision involving a small Catholic school board, whose students were sent for schooling at a public, non-denominational school.

The question was, was the board a legitimate denominational entity if it did not even have its own school.

In the end, the Supreme Court ruled that the Alberta School Act, "Did not permit the establishment of a separate school district which does not provide resident students a denominational education to some minimum standard."

However, the court suspended its decision for seven months to allow the Catholic board "reasonable time" to build its own separate school.