The Oireachtas will soon consider draft legislation which tackles certain discriminatory practices in school admissions. In particular, the Education (Admission to Schools) Bill may prohibit deposit-taking and certain forms of academic “cherry-picking”. However, it will not remove the existing legislative provision which gives denominational schools wide-ranging powers to to discriminate on religious grounds.
The growth of immigration and religious diversity in the 1990s prompted some denominational schools to seek greater legal protection of their religious character. Although the Equal Status Act 2000 prohibited religious discrimination in educational services, religious groups successfully lobbied for quite extensive exemptions for denominational schools. The Act allows schools to enrol co-religionists in preference to members of other faiths where they are oversubscribed, and to refuse to enrol non co-religionist children even where undersubscribed, where the presence of such a child would undermine a school’s ethos.
It has long been accepted officially that this exemption is necessitated by constitutional considerations. Specifically, it is argued that if denominational schools were prohibited from selecting pupils on religious grounds, it would undermine their religious ethos and in turn interfere with the constitutional right of parents to have their children educated in an authentically religious environment.
However, in practice the exemption has served as a pretext for a range of egregious abuses. Though notionally based on religious affiliation, the exemption has served as a proxy for discrimination linked to ethnicity and race. In some instances it resulted in children unable to secure any primary school place whatsoever.
Many in the legal world assume the Constitution serves to protect the rights of vulnerable minorities and individuals. Unfortunately, however, constitutional- rights arguments are often successfully marshalled by powerful vested interests to obstruct modestly progressive social reforms. Education provides an excellent example of this, particularly in the constitutional justifications used to exempt denominational schools from equality legislation in employment as well as school admissions. “Ethos” has become an insidious catch-all, used to justify many dubious practices, whether the non-enrolment of unbaptised children or the self-censorship imposed on gay teachers.
The constitutional justification for the denominational exemption is morally odious and intellectually vacuous. It is based, ostensibly, on the vaguely-worded rights of freedom of religion, denominational autonomy and parental choice recognised in articles 42 and 44 of the Constitution. Religious freedom, as the argument goes, means parents and children have the right to religious education in an uncompromised religious environment. This assumes the mere presence of children of other religions will somehow undermine parents’ ability to raise their children in their chosen faith. But more importantly, the exemption itself will likely undermine the religious freedom of those who are discriminated against – because parents who would not otherwise have their children baptised are sometimes effectively forced to do so to secure a school place. We can safely conclude constitutional argumentation has run amok when it is used to justify policies that effectively require feigning a particular faith to access a public service.
The treatment of non-Catholic parents and children in our education system is an urgent human rights issue. To some extent, their predicament stems from the unusual preponderance of Catholic and denominational schools in Ireland. Indeed, currently there is a strong focus on the need for divestment of patronage in areas over-served by Catholic schools. But divestment will be limited based on local demand, and so non-Catholics in many areas will continue to have little choice but to apply to Catholic schools.
The overwhelming focus on divestment has distracted from the vital question of how parents in this position should be accommodated. While we cannot change the ownership and patronage of State- funded schools overnight, the rights of non-Catholic parents could be immeasurably improved through one simple legislative reform. We might look to France, which permits state funding of Catholic schools but only on condition they accord “complete respect” to liberty of conscience and admit pupils of any religion.
Our Oireachtas Joint Committee on Education recently considered the school admissions bill but declined to make firm recommendations on the religion issue. It appeared to be dissuaded from doing so by submissions claiming the current exemption is constitutionally protected. There is some way to go, it seems, before this particularly odious piece of constitutional mythology can be discarded.
Eoin Daly is a lecturer in the School of Law at NUI Galway
