Traveller youth loses Supreme Court case over school bias

The Supreme Court has dismissed an appeal arising out of a secondary school's refusal to enrol a teenage boy from the Traveller community. In proceedings brought on behalf of John Stokes by his mother Mary Stokes, it was argued that the enrolment policy of CBS High School, Clonmel, Co Tipperary, gave preference to the children of past pupils and thus indirectly discriminated against Traveller children.

The Supreme Court ruled the evidence and materials put before the Circuit Court and the Equality Tribunal was insufficient to enable it make a proper assessment whether John was particularly disadvantaged due to the fact neither his father nor another sibling had attended the school.

The school had denied its admission policy was discriminatory and argued that when the boy applied in 2010, there were 174 applications for 140 available places. It also claimed it had a policy of inclusiveness with members of the Travelling community. The action was taken against the school while the Equality Authority was an assistant to the court in the proceedings.

Ms Stokes claimed the all-boys school selected students based on three criteria: the child’s father or an older sibling had attended the school; the prospective student was Catholic and he had attended a local feeder school.

John met the last two criteria, but not the first, as he was the oldest in his family and his father had not attended the school. Following a lottery process, John was not admitted and instead went to another school.

After losing an appeal to the Department of Education, Ms Stokes complained to the Equality Tribunal. It found that requiring a parent to have previously attended the school disproportionately affected Travellers.

It ordered that John be offered a place at the school and that the school should review its admission policy to comply with equality legislation.

The school won an appeal to the Circuit Court, where Judge Tom Teehan found the parental rule was discriminatory against groups, including Travellers, whose fathers were unlikely to have attended the school previously. In such circumstances, he said the school must show its admissions policy could be justified by some legitimate aim. That judgment was appealed to the High Court by Ms Stokes on a point of law relating to the interpretation of section 28 of the Equal Status Act.

In his High Court decision, Mr Justice Patrick McCarthy disagreed that the parental rule was discriminatory or amounted to a particular disadvantage. He found the potential discrimination which John might suffer was no different from the disadvantage that any other person, not a Traveller, who could not qualify for an automatic place would suffer.

Ms Stokes appealed the case to the Supreme Court and, in opposing the appeal, the school also argued as a preliminary point that no right of appeal existed beyond the determination of the High Court.

The five-judge Supreme Court dismissed the appeal. Mr Justice Adrian Hardiman and Mr Justice William McKechnie agreed with the school that no right of appeal existed before the Supreme Court.

Mr Justice Frank Clarke found a right of appeal "on a point of law" did exist but went on to dismiss the appeal in a judgment with which Mr Justice John Murray and Mr Justice Donal O'Donnell agreed. Mr Justice Clarke said there was insufficient evidence before Judge Teehan or the Equality Tribunal on foot of which they could properly conclude the rule resulted in a particular disadvantage to members of the Traveller community.

The absence of the materials and analysis “gives rise to an error of law” which required the finding of the Circuit Court Judge of particular disadvantage to be overturned, Mr Justice Clarke added.