Former attorney general slams new bursary program as unconstitutional

A former Liberal attorney general says the Gallant government's plan to offer free tuition only to low income students, who attend public institutions, is unconstitutional.

Mike Murphy says Gallant government's free tuition program is 'more Donald Trump than it is Louis Robichaud'

Lawyer Mike Murphy, a former Liberal cabinet minister who is representing the New Brunswick Association of Private Colleges and Universities, said he believes the province's Tuition Access Bursary program is unconstitutional. (CBC)

The New Brunswick government's plan to offer free tuition only to low-income students, who attend public institutions, is unconstitutional, according to a former Liberal attorney general.

Mike Murphy, a Moncton lawyer, who represents the New Brunswick Association of Private Colleges and Universities, said his clients are planning to ask the courts to weigh in on the government's Tuition Access Bursary program.

Murphy told Information Morning Fredericton there are a number of constitutional problems with the free tuition initiative.

He said under the Constitution, government programs can't discriminate against any particular group based on social condition, religion or language.

"We know there's about 4,500 students in New Brunswick that attend private institutions, some of those are religion based, some are language based and they're the ones that [will] suffer by this," Murphy said on Monday.

In April, Premier Brian Gallant announced the provincial government would set up bursaries for university and college students coming from families with a household income below $60,000 to receive free tuition if they attend public, post-secondary institutions in the province.

But some people have questioned the income limit and private schools say they should also be able to benefit from the plan.

Former Liberal cabinet minister says the free tuition policy of the Gallant government is closer to an idea of Republican presidential nominee Donald Trump than former Liberal premier Louis J. Robichaud. (Brian Snyder/Reuters, CBC)

The Moncton lawyer, who lost to Gallant in the Liberal leadership contest in October 2012, said the program also goes against the fundamentals of the Equal Opportunity program from the 1960s.

"It's really so intensely political, the foundations of these changes, that it's a divide and conquer strategy. And it's certainly more Donald Trump than it is Louis Robichaud," Murphy said.

Murphy said the program will pit New Brunswickers against each other, whether they prefer to attend public or private post-secondary schools, or are on one side or the other of the funding threshold.

He said the program should instead see a fair and equitable distribution of financial aid for all students.

Income threshold criticized

He also said it's folly to believe some low- to middle-income families exist above the $60,000 a year threshold based upon factors, such as the number of children some families have.

When asked if taxpayers should be funding for-profit schools, Murphy said publicly funded institutions are still businesses, so the argument is more about a matter of choice.

"You have some part-time students, who tend to be poorer than the others. Some tend to try to go a program that may be tailored to their needs that is not available in a publicly-funded university of college," he said.

"So it's a matter of choice, it's not a matter of profit or of not for profit."

Murphy said he won't file documents with the courts on this case until after he meets with Post-Secondary Education, Training and Labour Minister Donald Arseneault 

But, he said, so far the provincial government has relied on political rhetoric to sell the plan and he's hoping the courts will cut through that rhetoric to examine the facts of the program and how it fits under the law.

"Based upon a number of cases … about lack of consultation, these matters, we think, the court will determine that the entire program is unconstitutional," he said.

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