Faith Formation in National School Classrooms

Letter to Editor of The Irish Times from Paddy Monahan: 9 January 2018

Sir, – In your otherwise excellent editorial on the “baptism barrier” (January 5th), you state “many schools are flexible and inclusive”.

Some 96 per cent of taxpayer-funded primary schools in Ireland have a religious ethos and, as father to a three-year-old boy who happens to be unbaptised I have to ask, where are these flexible and inclusive schools? I have searched pretty hard and have yet to come across one (outside the 2 per cent of schools in the State run by Educate Together).

The Constitution sets out “the right of any child to attend a school receiving public money without attending religious instruction at that school”. Around 90 per cent of our primary schools are run by the Catholic Church, and in virtually all of them children not of the Catholic religion are sent to the back of the class for 30 minutes of mindless busy work every day while the rest of the class receives faith formation. This segregates and stigmatises children as “other” on a daily basis throughout their childhood while also breaching a clear constitutional right as such children absorb every word of the lesson being taught – not exactly inclusiveness. Catholic patrons appear deaf to the simple and expedient solution of moving faith-formation lessons outside the school day.

If, when it stated many schools “are flexible and inclusive”, the editorial meant “will enrol children of any religious background”, then I am afraid this is simply factually wrong. Almost every school in this country prioritises four-year-old and five-year-old children in enrolment on the basis of their religion.

We must be wary of mistaking an undersubscribed school that is obliged by law to take any child, but will rigidly apply its discriminatory enrolment policy as soon as it is fully subscribed, for a school that does not have such a policy in the first place. The mere existence of a discriminatory enrolment policy at the local school places years of stress and anxiety on parents of children of no religion or of a minority faith as to whether they will be lucky enough to get a place when the time comes. It also, of course, encourages baptisms of convenience; Catholic parents are safe in the knowledge that their children will always be in the top enrolment category.

To be clear, in my experience Catholic primary schools are neither flexible nor inclusive. If there is an example of a Catholic school anywhere in the country that does not operate a Catholics first enrolment policy and does not segregate children on the basis of religion, I’d love to hear of it. – Yours, etc,

PADDY MONAHAN,

Raheny,

Dublin 5.

Education (Admission to Schools) Bill – Minister Richard Bruton moves to deal with regularising admissions procedures

This is the announcement made yesterday by Minister for Education & Skills, Richard Bruton TD about the proposed Bill to regulate National School admission practices.

The Bill outline fails to deal specifically with the use of religion tests (baptismal certificates) by some schools for admission of some pupils.

Not good enough Minister!

Education (Admission to Schools) Bill introduced to Oireachtas following approval by Government

The Minister for Education and Skills, Richard Bruton TD, today announced that Government has approved the Education (Admission to Schools) Bill 2016. The Bill will be introduced to the Oireachtas this week with view to enactment as soon as possible after that. The Programme for Government targets enactment of this legislation before September 2017.

Minister Bruton has written to all opposition parties seeking to consult on this legislation, and hopes that all parties can work constructively on this legislation with a view to having these important measures in place as early as possible.

Among other things the new law will:

Ensure that where a school is not oversubscribed (80% of schools) it must admit all students applying
Ban waiting lists, thus ending the discrimination against parents who move in to a new area
Ban fees relating to admissions
Require all schools to publish their admissions policies, which will include details of the provisions for pupils who decline to participate in religious instruction
Require all schools to consult with and inform parents where changes are being made to admissions policies
Explicitly ban discrimination in school admissions
Provide for a situation where a child (with special needs or otherwise) cannot find a school place, and allow the National Council for Special Education or Tusla to designate a school place for the child

Minister Bruton said: “The basic aim of this Government is to use our economic success to build a fair and compassionate society. Few areas are more important to this vision than education.This legislation is a significant public service reform designed to make it easier for parents to more easily access local schools and to enrol their children in a school that meets their needs.”

“This legislation will increase the transparency and fairness of school admissions. It makes clear that every school must be welcoming of every young person –regardless of their colour, their abilities or disabilities. It will help to end the soft barriers that some of our schools erect in the way of children with special needs.”

“The vast majority of our schools work to welcome every child in their communities; to give them the care and attention that their young minds demand and to support the integration of all children, whatever their differences. But I know that some schools are oversubscribed. They cannot be blamed for that. But they must be fair and transparent in deciding how to prioritise children for admission to the school. This Bill will make sure that is the case in all schools.”

– See more at: http://education.ie/en/Press-Events/Press-Releases/2016-Press-Releases/PR2016-07-06.html#sthash.Ca1y2nLd.dpuf

Minister Bruton’s favouring of Community National Schools (CNS)

This Letter to Editor appeared in the Irish Times on Friday 10 June 2016.

Whatever about the possible merits of the CNS model it completely undermines their bona fides to have it suggested by Minister for Education and Skills, Richard Bruton, that any church have a role in running these school in the future. Does the Minister not know that the people removed the special position of the Roman Catholic church and the recognition of other named religious denominations from our Constitution on 5 January 1973 – yes that long ago! [5th Amendment]

No churches should be involved in management or control of any ‘divested’ or CNS school.

Sir, – Currently, children of parents whose identity is interwoven with a religious faith – Muslim, Christian or Hindu, for example – as well as those whose identity is interwoven with a belief or a life-stance – Buddhism, humanism or atheism – all attend community national schools.

Given this multifaith and belief community, the Goodness Me, Goodness You programme is a response to the ministerial brief given to these new schools in 2008 “to cater for all faiths and none during the school day”.

The programme has been created in accordance with a particular set of guiding principles and governed by the community national school ethos, which includes the commitment “to respect, celebrate and recognise diversity in all areas of human life”.

Goodness Me, Goodness You is a faith and belief-nurturing programme. It is not an ethical-moral programme, nor is it a programme that assumes a secular stance from which it educates about religions. Community national schools do not invite the child to enter the school and then require her to “suspend” a part of herself that it decides should be excluded from its educational endeavour. Rather, it welcomes all children and it welcomes all of “who” the child and her parents believe her to be. It educates by acknowledging and working with the child’s experience, affirming the child’s core sense of identity and belonging and seeking to nurture the child’s developing sense of different ways of belonging and not belonging, in different contexts (home, school, local community, faith or belief community, civil society, material world, and so on). It endorses the child’s faith or belief as an important factor – stronger for some than for others – influencing her sense of identity and belonging.

Pupils and parents in the community national school community share much in common. But they also have differences between them (and indeed within them) – differences that enrich our plurality and are to be celebrated. For example, Islam is not the same as Hinduism, Christianity is different from humanism, and there are also differences within Christianity, as there are differences within Islam, yet all teach respect for the Earth and its life-forms.

In an effort to be true to what is shared in common and equally true to what is not shared but is distinctive, Goodness Me, Goodness You has sought to evolve both programme content and ways of structuring teaching and learning that enhance the educational potential of commonality and difference.

Currently, for 24 weeks of the school year, all children in the class explore the same Goodness Me, Goodness You lessons. Children interpret these lessons in different ways and, with the support and guidance of their home, bring the riches of their particular faith or belief tradition to their interpretation.

For approximately four weeks of the year, children regroup according to their different faith or belief tradition and explore lessons designed to take account of that specific tradition.

Much has been made of this second dimension of the community national school approach as “segregation of children along religious lines”. I would like to challenge this view. In following the primary school curriculum, children form and re-form into many different groupings and sub-groupings at different times and for different parts of the curriculum, depending on children’s needs and available resources.

To interpret the forming of groups according to distinctive faith or belief needs as “segregation” seems to me to deny the right of community national schools to recognise children’s faith and belief needs as needs.

Furthermore, it would seem also to deny this part of the curriculum as a legitimate curriculum on a par with all other parts of the curriculum. It also denies the school, under its ethos, the right to adopt strategies in relation to its curriculum that best meet its children’s differing needs.

The question is not therefore whether it is legitimate that children should form groups according to their faith and belief traditions. The real question is, in the eyes of those who claim segregation, what prejudice prevents children’s needs in this part of their school curriculum from being recognised as valid and deserving of strategies designed to meet them?

If recognition of difference were the only basis on which children’s curricular needs in this area were dealt with, then the accusation of segregation would be a serious one. However, this is patently not so. The fact is that for the much greater part of their school year, children are brought together to be educated in faith and belief. Community national schools, I would argue, are the only schools that deliberately bring children together to educate them in faith and belief. They do not bring children together and bypass the difficulty of “faith” by removing it from the curriculum altogether, in favour of “belief” that is non-religious. – Yours, etc,

Dr CLARE MALONEY,

Marino Institute

of Education,

Dublin 9.

Memorandum to those parties negotiating a Programme for Government – “Every National School is for Every Child”

Irish National Schools’ Trust, Citizens to Separate Church and State and Equality in Education Alliance issued this press release today directed at the parties negotiating a Programme for Government.

It calls on them to resolve the two issues dividing some of our children from attending local National Schools.

(1) religion tests used for admission

(2) failure to separate periods of religious instruction from the secular curriculum

160308 National Schools Solution-Final

Decision of the Supreme Court on the Reference to it by the President of the Employment Equality Bill, 1996

118/97 of 15 May 1997

This section reproduced below is from the judgement of the Court dealing with the ‘religion ground’ test. The full judgement is reported here:

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ie/cases/IESC/1997/6.html&query=equality+bill&method=all

CSCS is posting this section to show the complexity of our constitution provisions dealing with education and religion. One of us lobbied the then President urging her to use her presidential privilege to refer the Bill to the Supreme Court to test its constitutionality. This is the judgement of the court.

THE RELIGION GROUND

The Sections of the Bill relevant to this issue viz Sections 12 and 37 have already been set forth in the course of this decision and it is unnecessary to repeat them.

Summary of Submissions of Counsel Assigned by the Court

Counsel assigned by the Court submit that the provisions quoted are repugnant to the Constitution in that they would, if enacted into law, purport to legalise religious discrimination contrary to the provisions of Article 40 s 1 and Article 44 s 2 of the Constitution and to endow certain religions contrary to the provisions of Article 44 s 2 subsection 2. They say that the sections, if enacted into law, would have the effect of making religion a criterion for employing people, for dismissing them from their employment or for admitting them to vocational training.

Moreover they submit that the form of religious discrimination which the section purports to permit is far wider than anything necessitated by any provision of Article 44 of the Constitution and is totally disproportionate. The reference to religious “ethos” is so vague as not to be justiciable. Each of the religious institutions referred to in Article 37 will therefore be entitled to define its own ethos and thereby to dictate the circumstances in which its staff can be appointed, promoted or dismissed. The result will be to undermine, in an unconstitutional way, the right of citizens who are members of a minority religious denomination or who have no religion to earn their livelihood. Moreover they submit that the Bill refers to “institutions” and is therefore broad enough to cover private hospitals and other institutions which are not institutions maintained by a religious denomination for religious or charitable purposes of the kind contemplated by Article 44 s 2 subsection 5 of the Constitution.

Summary of Submissions of Counsel for the Attorney General

Counsel for the Attorney General submit that insofar as the Bill purports to authorise a religious discrimination or distinction the discrimination or distinction authorised is a form of positive discrimination necessary (and no more than is necessary), to give effect to the provisions of Article 44 of the Constitution. Moreover they submit that the Bill would offend Article 44 of the Constitution if the ban on religious discrimination contained in s 6 of the Bill stood alone without the exception contained in s 37. They deny that the Bill in any way authorises the endowment of any religion. They say moreover that State aid to religious and charitable institutions maintained by various religious denominations is authorised by the Constitution and the kind of distinctions made by the Bill are also authorised by necessary implication. Moreover they say that the institutions referred to in the distinctions under discussion are religious, educational or medical institutions under the direction or control of a body established for religious purposes or whose objectives include the provision of services in an environment which promotes certain religious values. These bodies will invariably be boards of governors, trustees or guardians under the control or influence of the various religious denominations and are the “institutions for religious or charitable purposes” referred to in Article 44 s 2 subsection 5 of the Constitution. Counsel admit that a tension does exist between the right to equality guaranteed by Article 40 s 1, the right to free profession and practice of religion guaranteed by Article 44 s 2 and the right to earn a livelihood guaranteed by Article 40 s 3 of the Constitution, but they submit that the sections under discussion represent a balanced attempt by the Oireachtas to resolve these tensions.

Relevant Constitutional Provisions

Article 40 s 1 of the Constitution provides as follows:-

“1. All citizens shall, as human persons, be held equal before the law.

This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.”

Article 44 is entitled “Religion” and reads as follows:-

“1. The State acknowledges that the homage of public worship is due to Almighty God. It shall hold His Name in reverence, and shall respect and honour religion.

2. 1o Freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen.

2o The State guarantees not to endow any religion.

3o The State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief or status.

4o Legislation providing State aid for schools shall not discriminate between schools under the management of different religious denominations, nor be such as to affect prejudicially the right of any child to attend a school receiving public money without attending religious instruction at that school.

5o Every religious denomination shall have the right to manage its own affairs, own, acquire and administer property, movable and immovable, and maintain institutions for religious or charitable purposes.

6o The property of any religious denomination or any educational institution shall not be diverted save for necessary works of public utility and on payment of compensation.”

Some of the provisions of Article 42 (dealing with education) may also be relevant to the present discussion. Article 42 provides, inter alia, as follows:-

“1. The State acknowledges that the primary and natural educator of the child is the Family and guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children.

2. Parents shall be free to provide this education in their homes or in private schools or in schools recognised or established by the State.

3. 10 The State shall not oblige parents in violation of their conscience and lawful preference to send their children to schools established by the State, or to any particular type of school designated by the State.

2o The State shall, however, as guardian of the common good, require in view of actual conditions that the children receive a certain minimum education, moral, intellectual and social.

4. The State shall provide for free primary education and shall endeavour to supplement and give reasonable aid to private and corporate educational initiative, and, when the public good requires it, provide other educational facilities or institutions with due regard, however, for the rights of parents, especially in the matter of religious and moral formation . . .”

Conclusions of Court on Religion Ground

It will be noted that while, in the preamble the “People of Eire” humbly acknowledge their obligations to our Divine Lord Jesus Christ, Article 44 imposes certain duties upon the “State”. These duties are more general and less specific than the obligations acknowledged by the People in the preamble. The duty of the State is to respect and honour religion though no specific religion is identified. The Constitution then goes on to guarantee freedom of conscience and free profession and practice of religion “subject to public order and morality” to every citizen.

It is clear from Article 42 that the State acknowledges that the primary and natural educator of the child is the family. The State accordingly guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children. The State may, as guardian of the common good, require that children receive a certain minimum education, moral intellectual and social. The clear implication is that the religious education of the children is primarily a matter for the parents and parents are free to provide this education in their homes or in private schools or in schools recognised or established by the State. The State shall however endeavour to supplement and give reasonable aid to private and corperative educational initiative and, when the public good requires it, provide other educational facilities or institutions with due regard for the rights of parents especially in the matter of religious and moral formation. Legislation, however, providing State aid for schools, must not discriminate between schools under the management of different religious denominations and every religious denomination is to have the right to manage its own affairs and to maintain institutions for religious or charitable purposes.

It is quite clear therefore that the State is entitled to support denominational schools though it is forbidden to discriminate between schools under the management of different religious denominations. It is also clear that Articles 42 and 44 of the Constitution reflect the system of denominational education which in fact existed in Ireland at the date of the coming into operation of the Constitution.

This system does not involve the endowment of any religion. The endowment of a religion implies the selection of a favoured State religion for which permanent financial provision is made out of taxation or otherwise. This kind of endowment is outlawed by Article 44 s 2 subsection 2 of the Constitution. The Constitution does however expressly authorise State aid for schools but forbids the State to discriminate between the schools under the management of different religious denominations or to pass any legislation which would affect prejudicially the right of any child to attend a school receiving public money without attending religious instruction at that school. The provision of such State aid across the board to schools maintained by the various religious denominations cannot be regarded as the endowment of any one religion.

Institutions for Religious or Charitable Purposes

Article 44 s 2 subsection 5 provides that every religious denomination is to have the right to maintain institutions for religious or charitable purposes. One can get a clearer picture of what is meant by “religious denomination” if one looks at two subsections of the Constitution which were deleted by the fifth amendment to the Constitution in 1972. Section 1 subsection 2 (now deleted) of Article 44 referred to the special position of the Holy Catholic Apostolic and Roman Church as Guardian of the faith professed by the great majority of the citizens. Subsection 3 (also deleted) went on to provide as follows:-

“The State also recognises the Church of Ireland, the Presbyterian Church in Ireland, the Methodist Church in Ireland, the Religious Society of Friends in Ireland, as well as the Jewish congregations and the other religious denominations existing in Ireland at the date of the coming into operation of this Constitution.”

The term “religious denomination”, was therefore intended to be a generic term wide enough to cover the various churches, religious societies or religious congregations under whatever name they wished to describe themselves.

These various religious denominations may control religious, educational or medical institutions, whether directly or through a board of guardians or trustees and it appears to the Court that these are the religious educational and medical institutions referred to in subsection 1 of Section 37 of the Bill and that they are also governed by the phrase “institutions for religious or charitable purposes” referred to in Article 44 s 2 subsection 5 of the Constitution.

The Court rejects the submission that a private hospital could be a medical institution within the meaning of s 37 subsection 1 of the Bill without being an institution for charitable purposes referred to in Article 44 s 2 subsection 5 of the Constitution. The Court accepts the submission of Counsel for the Attorney General that the term “institutions for religious or charitable purposes” is at least broad enough to cover the four categories of legal charities adopted by Lord Macnaghten in Commissioners of Income Tax v Pemsel [1891] AC 531 and approved by the former Supreme Court in Barringtons Hospital the Commissioners of Valuation [1957] IR 299 and by Keane J in In re Worth Library [1995] 2 IR 301. At p 583 of the report Lord Macnaghten stated that:-

“How far then, it may be asked, does the popular meaning of the word “charity” correspond with its legal meaning? “Charity” in its legal sense comprises four principal divisions: Trusts for the relief of poverty; trusts for the advancement of education; trusts for the advancement of religion; and trusts for other purposes beneficial to the community, not falling under any of the preceding heads. The Trusts last referred to are not less charitable in the eye of the law, because incidentally they benefit the rich as well as the poor, as indeed every charity that deserves the name must do either directly or indirectly.”

Religious Discrimination

The central submission of Counsel assigned by the Court in relation to the religion ground is that Article 37 contravenes the guarantees of freedom of conscience and the free profession and practice of religion contained in Article 44 s 2 subsection (1) and the ban on imposing any disabilities or making any discrimination on the ground of religious profession, belief or status contained in Article 44 s 2 subsection (3). Alternatively, they maintain that the Oireachtas has failed to preserve a proper balance between the rights of members of the various religious denominations to manage their own affairs and maintain institutions for religious and charitable purposes and the rights of other citizens to equality before the law and to earn their livelihood. Consequently they allege the relevant provisions of the Bill, if enacted into law, would constitute an unjust and disproportionate attack on the rights of these other citizens.

This Court accepts that it is not generally permissible to make any discrimination, or even to make any distinction, between citizens on the grounds of religious profession, belief or status.

This Court has also had to accept that occasions may arise when it is necessary to make distinctions in order to give life and reality to the constitutional guarantee of the free profession and practice of religion. This problem first arose in Quinn Supermarket Limited v Attorney General [1972] IR p 1 where the Court had to accept that certain distinctions should be made in favour of the Jewish congregations arising from the fact that the Jewish Sabbath fell on a Saturday and not on a Sunday. In the course of his judgment, delivering the majority opinion of this Court, Walsh J stated (at p 24 of the report) that:-

“Section 2, subsection (1) of Article 44 of the Constitution guarantees freedom of conscience and the free profession and practice of religion in terms which do not confine these to Christianity and Judaism. It appears to me, therefore, that the primary object and aim of Article 44, and in particular the provisions of section 2 of that Article, was to secure and guarantee freedom of conscience and the free profession and practice of religion subject to public order and morality; and to ensure that the practice of religion and the holding of particular religious beliefs shall not subject the person so practising religion or holding those beliefs to any disabilities on that account, or permit distinctions on the ground of religious profession, belief or status between persons in the State who are free to profess and practice their religion. If however, the implementation of the guarantee of free religion and the practice of religion requires that a distinction should be made to make possible for the persons professing or practising a particular religion their guaranteed right to do so, then such a distinction is not invalid having regard to the provisions of the Constitution. It would be completely contrary to the spirit and intendment of the provisions of Article 44 section 2, to permit the guarantee against discrimination on the grounds of religious profession or belief to be made the very means of restricting or preventing the free profession or practice of religion. The primary purpose of the guarantee against discrimination is to ensure the freedom of practice of religion. Any law which by virtue of the generality of its application would by its effect restrict or prevent the free profession and practice of religion by any person or persons would be invalid having regard to the provisions of the Constitution, unless it contained provisions which saved from such restriction or prevention the practice of religion of the person or persons who would otherwise be so restricted or prevented.”

Walsh J returned to the same theme in Mulloy v the Minister for Education [1975] IR p 88 where he stated (at p 96 of the report) —

“As explained in the judgment given in this Court in Quinn Supermarket v the Attorney General [1972] LR p 1, it is not permissible to create differences between persons or bodies or to distinguish between them on the ground of religious profession, belief or status irrespective of whether the difference is to their benefit or to their disadvantage — save where it is necessary to do so for the implementation of the constitutional right to the full and free practice of religion.”

In McGrath and O’Ruairc v The Trustees of Maynooth College [1979] ILRM 166, Henchy J expressed similar views at p 187 of the report where he stated:-

“The constitutional provision invoked here (Article 44.2.30) must be construed in the terms of its purpose. In proscribing disabilities and discriminations at the hands of the State on the ground of religious profession belief or status, the primary aim of the constitutional guarantee is to give vitality, independence and freedom to religion. To construe the provision literally, without due regard to its underlying objective, would lead to a sapping and debilitation of the freedom and independence given by the Constitution to the doctrinal and organisational requirements and proscriptions which are inherent in all organised religions. Far from eschewing the internal disabilities and discriminations which flow from the tenets of a particular religion, the State must on occasion recognise and buttress them. For such disabilities and discrimination do not derive from the State; it cannot be said that it is the State that imposed or made them; they are part of the texture and essence of the particular religion; so the State, in order to comply with the spirit and purpose inherent in this constitutional guarantee, may justifiably lend its weight to what may be thought to be disabilities and discriminations deriving from within a particular religion.”

It is interesting to note that the American Federal Supreme Court has had to face a similar problem. The American Civil Rights Act of 1964 outlawed religious discrimination in employment. But paragraph 702 of the Act exempted religious organisations from this prohibition. The Plaintiff in the case of the Corporation of the Presiding Bishop of the Church of Jesus Christ of the Latter-Day Saints v Amos 4 83 US p 327 was a building engineer employed for some 16 years by the Mormon church to work in a gymnasium. He was dismissed because he failed to produce a certificate that he was a member of the Mormon church and eligible to attend its temples. The Court upheld the constitutionality of paragraph of 702 as not violating the guarantees of freedom of religion contained in the first amendment to the American constitution. The reasoning in the concurring judgment of Brennan J is relevant to the present discussion. At p 342 of the report he says:-

“For many individuals, religious activity derives meaning in large measure from participation in a large religious community. Such a community represents an ongoing tradition of shared beliefs, an organic entity not reducible to a mere aggregation of individuals. Determining that certain activities are in furtherance of an organisations religious mission, and that only those committed to that mission should conduct them, is thus a means by which a religious community defines itself Solicitude for a church’s ability to do so reflects the idea that furtherance of the autonomy of religious organisations often furthers individual religious freedom as well.

The authority to engage in this process of self-definition inevitably involves what we normally regard as infringement on free exercise rights, since a religious organization is able to condition employment in certain activities on a subscription to particular religious tenets. We are willing to countenance the imposition of such a condition because we deem it vital, that, if certain activities constitute part of a religious community’s practice, then a religious organization should be able to require that only members of its community perform those activities.”

It would therefore appear that it is constitutionally permissible to make distinctions or discriminations on grounds of religious profession belief or status insofar — but only insofar — as this may be necessary to give life and reality to the guarantee of the free profession and practice of religion contained in the Constitution.

Proportionality

Section 37, subsections (1) and (2) and section 2 of the Bill are an exception to the general rule against discrimination on the religious ground set out in s 6. It is admittedly a balancing between the right of free profession and practice of religion on one hand and the right to equality before the law and the right to earn one’s livelihood on the other. Counsel assigned by the Court however submit that the Oireachtas has got the balance wrong in that section 37, in particular, unduly favours the right to free profession and practice of religion at the expense of the other rights named.

No serious criticism can however be advanced against section 37 subsection (2) which entitles an institution to prefer a particular candidate on the grounds of his or her religion if in fact being of that religion is an occupational qualification for the post in question. The attack has been directed more against subsection (1) which entitles an institution to give more favourable treatment, on the religion ground, to an employee or a prospective employee “where it is reasonable to do so in order to maintain the religious ethos of the institution” or to take action “which is reasonably necessary to prevent an employee or a prospective employee from undermining the religious ethos of the institution”.

The use of the words “reasonable” and “reasonably necessary” implies that the test is to be an objective one and that the matter is to be resolved on a case to case basis.

Counsel assigned by the Court point to the use of the word “ethos” in subsection (1) and submit that the religious institution or denomination will state in each case what its “ethos” is and that the test will in fact become subjective. It is true that “ethos” is a vague term and is nowhere defined in the Bill. Chambers English Dictionary gives, inter alia, the following meaning to the word “the distinctive habitual character and disposition of an individual group”. It is probably true to say that the respect for religion which the Constitution requires the State to show implies that each religious denomination should be respected when it says what its ethos is. However the final decision on this question as well as the final decision on what is reasonable or reasonably necessary to protect the ethos will rest with the Court and the Court in making its overall decision will be conscious of the need to reconcile the various constitutional rights involved.

Section 12

This deals with vocational training and is justified in the same manner as section 37 subsection (1). It first outlaws discrimination and then for the purpose of ensuring the availability of nurses for hospitals and teachers for primary schools which are under the direction or control of a body established for religious purposes or whose objectives include the provision of services in an environment which promotes certain religious values, and in order to maintain the religious ethos of the hospitals or primary schools provides that the prohibition of discrimination on the religion ground is not to apply in respect of:-

“(a) The nomination of persons for admission to the school of nursing pursuant to clause 24(4)(a) or (c) of the Adelaide Hospital Charter as substituted by paragraph 5(s) of the Health Act, 1970, (section 76) (Adelaide and Meath Hospital, Dublin incorporating the National Childrens Hospital) Order 1996 or

(b) Places in a vocational training course specified in an order made under subsection (5).”

Subsection 5 provides that:-

“Where an educational or training body applies to the Minister for Health, in the case of hospitals, or to the Minister for Education, in the case of primary schools, for an order permitting the body concerned to reserve places in a vocational training course offered by the body, the Minister for Health or the Minister for Education, as the case may be, may, with the consent of the Minister, by order allow the body to reserve places in such numbers as seem reasonably necessary to the Minister for Health or the Minister for Education, as the case may be, to meet the purposes set out in subsection (4).”

Again, and for the reasons already discussed in relation to Article 37 section 1, it appears to the Court that s 12 represents a reasonable balancing between the principle of equality before the law on the one hand and the principle of the free profession and practice of religion on the other hand.

For these reasons the Court rejects the challenge to the Bill based on the religion ground.

International media coverage of the inequality in admission policies of some Irish schools

Irish patronage debate makes global headlines- Irish Times 16 February 2016

Some politicians are fond of claiming that the “baptism barrier” debate regarding Irish schools is just a local issue confined to oversubscribed schools in affluent parts of Dublin.

For a provincial issue, it is making international waves. The New York Times recently carried a large feature on the “Catholic Church’s hold on schools in a changing Ireland”.

Now Hindus across the globe have urged Pope Francis to “fix Ireland’s education system”as a matter or urgency.

Hindu statesman Rajan Zed, president of Universal Society of Hinduism, says religion should not play any role in admissions to Irish schools.

“The practice of a religious majority controlling the school doors, and schools indulging in kind of state-sanctioned indoctrination is simply wrong and should end,” he says.

http://www.irishtimes.com/news/education/cog-notes-a-rare-fine-gael-minister-for-education-1.2531033

Intolerable Bias in Ireland’s Schools – New York Times Editorial 29 January 2016

By THE EDITORIAL BOARD JAN. 29, 2016

The people of Ireland have shown a commendable willingness to strike anachronistic bias from the country’s laws, most emphatically in legalizing gay marriage last year in a referendum approved by three out of five voters. With a general election expected next month, a movement is underway in the rapidly changing nation to target another hurtful social condition by which non-Catholic children are legally denied seats at overcrowded state-financed primary schools, 97 percent of which are controlled by Catholic authorities.

With schools allowed to give preference to Catholics, other families are forced to have their children baptized in the church, linger on school waiting lists or search for scarce alternatives. Only 74 of the nation’s 3,200 primary schools are run by Educate Together, the main multidenominational alternative, whose Dublin schools are swamped with four applications for every available space.

The public is fast realizing this is an intolerable situation in a country with an increasing immigrant population of non-Catholics and a rising generation of younger nonpracticing Catholics. A poll last month measured almost 85 percent public approval for changing the law so it no longer tolerates religious bias against schoolchildren.

“Ireland is changing, there are a lot of young parents and they want something different for their kids,” Eoghan Murphy, a Fine Gael member of Parliament, told Politico in calling for school fairness as the first priority of the next government. The Irish education minister, Jan O’Sullivan of the Labor Party, is similarly calling for reassessment of the law that exempts religious schools from the Constitution’s antidiscrimination requirements if the rebuffing of nonbelievers is considered essential to “maintain the ethos of the school.”

There is a citizens’ petition to repeal the law and a legal challenge is planned by Education Equality, an advocacy group. The bias clause has been challenged by the United Nations Committee on the Rights of the Child, and the Irish Human Rights and Equality Commission has taken a position against it, too.

Church officials are at odds, with some urging a slow evolution toward a more open-door policy in the schools. Clearly the current policy is at odds with a modern Ireland. The most encouraging force in the debate is the Irish public’s realization that their nation can no longer afford shameful religious bias to remain in the law.

http://www.nytimes.com/2016/01/29/opinion/intolerable-bias-in-irelands-schools.html?ref=topics&_r=0

The Stanley Letter of 1931 establishing our National School system

Our press release issued this morning to coincide with the TCD SU hosted husting event in TCD at lunchtime refers to the Stanley Letter of 1831.

You can read a transcript of the original letter on the Department of Education & Skills web-site here: http://ow.ly/YgIEp

Here is one of the key precepts:

“They will require that the schools be kept open for a certain number of hours, on four or five days of the week, at the discretion of the Commissioners, for moral and literary education only; and that the remaining one or two days in the week be set apart for giving, separately; such religious education to the children as may be approved by the clergy of their respective persuasions.

They will also permit and encourage the clergy to give religious instruction to the children of their respective persuasions, either before or after the ordinary school hours, on the other days of the week”.

Article 44.2.4 of our constitution and the present Rules for National Schools #54 and 69 are supposed to give effect to this.

Inequality in education – Demands for reform of National Schools posed to Political Parties and Groupings for General Election 2016

Press release from Citizens to Separate Church & State (CSCS) and Irish National Schools’ Trust (INST)

Date: 12 February 2016 (for immediate use)

Inequality in education – Demands for reform of National Schools posed to Political Parties and Groupings for General Election 2016

There has been much media coverage recently of the scandal of baptismal certificates being used as a religious test for admission of young children into our National Schools. The personal stories from affected families have been published in the national media. We know Nikki Murphy’s (son Ruben), Paddy Monahan’s (son Cormac) and Roopesh Kumar Panicker’s (daughter Eva), and more stories. Although Eva has now been admitted to a National School it is some 6 km away from the family home and being under Roman Catholic patronage there is no separation of the periods of religious instruction and faith-formation from the secular curriculum as required by Rule #54 (The Rules for National Schools, 1965).

Suddenly the new Irish like Roopesh Kumar Panicker are asking questions of Irish society it has been happy to brush under the carpet. People have been willing to have a child baptised to get them into certain schools. Suddenly there is a demand to stop these baptisms and find a more equitable way to address education in this country.

Of the election manifestos that have been published so far only the AAA/PBP grouping and Renua propose any meaningful reform.

Citizens to Separate Church & State (CSCS) and Irish National Schools Trust (INST) have joined forces to seek the following reforms in primary education from the political parties and groupings now that the General Election has been declared for 26 February.

The review of Rules for National Schools # 68 (recently rescinded by Minister O’Sullivan) & 69 and follow-through with legislation requiring the separation of the periods of religious instruction/faith-formation to outside of the formal school day as required by existing Rule #54; providing easy access for parents to seek remedies and with penalties for non-observance by trustees, patrons and boards of management; reform teaching training and materials to reflect this new reality;

Codify terms such as ethos, religious spirit, denomination (Islam is not a denomination), religious education, religious instruction, creed, etc. These terms are not coterminous and are used varyingly in the constitution and legislation without definition;

Reform what is called the Primary School system and restore the constitutionally protected National School system by going back to the founding precepts contained in the Stanley Letter of 1831, with its fundamental requirement that the period of religious instruction/faith-formation must be outside of the secular timetable periods (as per Rule #54);

Require all church-controlled primary schools to sign-up to a Charter setting out that their trustees, patron and board of management will operate the school as a National School open to all local children and in accordance with Article 44.2.4 of our Constitution; This will be a condition of continued state-funding and with penalties for non-compliance;

The so-called Rules for National Schools are but a travesty of regulations since they were not issued as a Statutory Instrument as required by the Statutory Instrument Act, 1947. They date from 1965 and are no longer available as a printed publication. Furthermore they have been extensively modified by the issuing of Circulars (ministerial Directions). We demand the codification of the Rules as part of this reform and bring them up-to-date with the Circulars that have been issued by successive Ministers. But first of all make the Rules compliant with our constitution and legislation as well as international human rights norms.

The Constitution Review Group Report of 1996 (Chaired by Dr. K. Whittaker) called for the modest reform we seek:

“Yet it seems implicit in Article 44.2.4° that a school in receipt of public moneys cannot insist on a policy such as admitting only co-religionists as pupils, and the practice of an integrated curriculum would appear to be at variance with this guarantee.

In summary, therefore, the present reality of the denominational character of the school system does not accord with Article 44.2.4°. The situation is clearly unsatisfactory. Either Article 44.2.4° should be changed or the school system must change to accommodate the requirements of Article 44.2.4°.”

This anachronistic and unconstitutional way of delivering education is likely on-course to cost the State €Ms in compensation claims that will arise in the near future when, for instance, some parent of a child in a school or adult, who was schooled in the primary school system, claims that he/she was subject to religious indoctrination in the classroom due to the fact that was impossible for the complainant child to prejudicially not receive the unwelcome material in the classroom. [Constitution Article 44.2.4] Unknown costs may await the State due to this unconstitutional proselytisation and breaches of the UN Convention on the Child. Also if Tusla can’t address the most basic needs of children what will happen if there is a need to pay out compensation?

Our solution is for the State to revisit the original National School system (Stanley Letter of 1831) so as to avoid the expense of building new schools to suit every faith/belief system in every corner of the land. The state cannot afford that solution finding it difficult already in providing the funding for a natural population increase in the school-going ages when it is strapped for revenue. Our solution eliminates inequality at a stroke and opens up every type of National School to local children irrespective of their faith or belief. Each one becomes a neighbourhood school as originally intended.

Further information

CSCS: Dr. Mike McKillen: 087-2314 613

INST: Mike Garde: 087-239 6229

Organisation web-sites

www.cscs.ie

www.irishnationalschoolstrust.org

Editorial in Irish Examiner on 16 January 2016: Discrimination on the religion ground in our National Schools

This editorial reflects on the Irish state’s performance before the UN Committee of the Rights of the Child in Geneva last Thursday.

The proceedings there can be viewed on this webcast: http://www.treatybodywebcast.org/crc-71st-session-ireland/

Editorial

THOUGH Enda Kennys statements on the possibility of a referendum to repeal the Eighth Amendment should he be returned to power of course falls some way short of a commitment, his suggestion that he anticipates a vote on the divisive issue will take place over the next couple of years is pretty close.

The Taoiseach seems to accept the issue must be resolved one way or another though he has expressed doubts that proposals to change the current legislation would be endorsed.

Earlier this week one of his ministers Childrens Minister James Reilly speaking after a day-long hearing at the United Nations Committee on the Rights of the Child in Geneva returned to a second deeply divisive issue when he argued that ending religious discrimination in schools admission policies may also require a constitutional referendum.

He said he did not believe it was right that children should be discriminated against on the basis of religious belief or nominal, pretend religious belief or lack of it when applying for a place in State-funded schools. He did, however, acknowledge the constitutional provisions that allow religious institutions protect their ethos.

That essentially gives control of our primary schools all of which are funded more or less 100% by the State to the Catholic Church, a situation that no longer reflects the make-up of this society.

Ironically, and in a particularly Irish way, the legislation that allows 96% primary schools turn away children on the basis of their religious beliefs is called the Equal Status Act.

Deepening that anachronistic and offensive irony, the minister of state, who on December 2 approved the right of schools to reject pupils on the basis of their religion or lack of it, is known as the minister for equality.

The Equal Status Act 2000 allows oversubscribed schools favour children who share the schools patrons religious beliefs.

This, no matter how it is dressed up, discriminates against some children at the very moment that they should expect the States full support and encouragement.

At the very point the State should embrace young citizens from every background, it, or more accurately its agent, uses the baptised-or-not filter to rule on who gets a particular school place or not.

This is, no matter how enthusiastically it is dressed up, religious segregation and makes second class citizens of an ever greater number of Irish children.

The situation might be less fraught if there were more school places in areas where schools are oversubscribed but there are not and that shortcoming cannot be used to perpetuate an inequity.

Those who wish to preserve the current monopoly occasionally argue that under new patronage, many schools would become ethics-free zones and that religious education would be sidelined.

This, of course, is bunkum. Religious education would be available for those who wish to avail of it but it, or at least an exclusive version of it, might not enjoy todays unquestioning centrality.

New school patronage arrangements might also be an opportunity to place a new emphasis on the kind of civic morality so obviously absent on so many fronts.

Nothing new with concerns about the application of Rule for National School No. 69

This is an exchange in the Dail on 8 March 1978 between Deputy John Horgan (Lab) and then Minister for Education, John Wilson (FF).

There is nothing new under the sun in relation to ongoing human rights concerns about Rule 69 application in our National Schools.

Boards of Management had been instigated in our schools in 1976.

I had been elected to my local board of management and arising from my experience I had formed, with others, the Council for Elected Parents’ Representatives (CEPR) on National School boards of management. In that role I met minister Wilson in 1978 to follow up on Deputy Horgan’s questioning of the minister.
Nothing has changed since that time and the present government is just as protective of church interests as every other government since then. Human rights abnegations don’t count despite UNHRC warnings to Ireland that this situation can’t continue to fester.

Who is advising the state to tough this one out?

http://oireachtasdebates.oireachtas.ie/debates%20authoring/debateswebpack.nsf/takes/dail1978030800018?opendocument

Date: 8 March 1978. Oral Answer No. 12.

Mr. Horgan: asked the Minister for Education the regulations, if any, that are laid down by his Department to ensure that children attending national school may exercise their constitutional right not to attend denominational religious instruction.

Mr. Wilson: The relevant provisions in the Rules for National Schools are as follows:

Rule 2

These Rules do not discriminate between schools under the management of different religious denominations nor may they be construed so as to affect prejudicially the right of any child to attend a national school without attending religious instruction at that school.

Rule 69

(1) The religious denomination of each pupil must be entered in the school register and roll-book. This information should be ascertained from the parent (the father, if possible) or the guardian of the pupil, where necessary.

(2) (a) No pupil shall receive, or be present at, any religious instruction of which his parents or guardian disapprove.

(b) The periods of formal religious instruction shall be fixed so as to facilitate the withdrawal of pupils to whom paragraph (a) of this section applies.

[1102] (3) Where such religious instruction as their parents or guardians approve is not provided in the school for any section of the pupils, such pupils must, should their parents or guardians so desire, be allowed to absent themselves from school, at reasonable times, for the purpose of receiving that instruction elsewhere.

(4) Visitors may not be present during formal religious instruction unless with the express approval of the manager.

(5) The periods of formal religious instruction shall be indicated on the timetable.

I presume that the words “management committee” should be substituted for the word “manager” at the end of subparagraph (4) of Rule 69 above.

Mr. Horgan: Would the Minister agree that these regulations are not being complied with in the situation in which a child whose parents wish him not to take part in formal instruction is required to remain in the classroom while that religious instruction is taking place? What advice would the Minister give to the parent of a child in such a situation?

Mr. Wilson: The board of management in the school has an obligation to see to it that the child is not required to stay there against the wishes of his parents or guardians.

Mr. Horgan: If the board of management fail to make appropriate arrangements can the parent or parents in question communicate with the Minister in the matter and will the Minister do something about it?

Mr. Wilson: They can and I will.