Are “Catholic first” Admission Policies unconstitutional? Equality Authority report endorses Atheist Ireland arguments

Atheist Ireland’s ongoing campaign to ensure that publicly funded schools do not discriminate on religious grounds is picking up pace, with our arguments effectively endorsed by both the Equality Authority and the Irish Human Rights Commission, the two bodies that have recently merged to form the new Irish Human Rights and Equality Commission.

A recent report commissioned by the Equality Authority argues that article 44.2.4 of the Constitution puts an onus on Catholic schools to demonstrate exactly why positive discrimination in admissions is necessary to maintain their ethos.

And the Irish Human Rights Commission has previously recommended that the State should ensure that admission policies are free from discrimination, respect privacy and uphold the right to freedom of religion, conscience and thought, including the philosophical convictions of parents and children.

This article outlines the background to the religious segregation in state-funded national schools, and some of the reasons why this discrimination should end.

1. Religious segregation in state-funded national schools

In Ireland the vast majority of schools at both primary and second level have a religious ethos/objectives and there is no parallel system of non-denominational schools available. All parents in Ireland are legally obliged to send their children to school. It is claimed that Section 7 – 3 (c) of the Equal Status Act and the Irish Constitution sanctions this religious discrimination.

Church and State refer to this religious discrimination as ‘lawful oversubscription criteria’ as they don’t want us to question why some children in Ireland are treated as second class citizens.

Religious patron bodies consider that Irish five year olds threaten the ethos of the local publicly funded National school, and consequently the Catholic Church as patron of the majority of schools in the country has a “Catholic first” policy in place. But discrimination in access to education is forbidden under human rights law as it undermines the dignity of the child.

2. United Nations Human Rights Committee

Last July Ireland appeared before the UN Human Rights Committee in relation to its obligations under the International Covenant on Civil & Political Rights.

Atheist Ireland attended this session and the UN Human Rights Committee stated that Ireland should introduce legislation to prohibit discrimination in access to schools on the grounds of religion, belief or other status, and ensure that there are diverse school types and curriculum options available throughout the State party to meet the needs of minority faith or non-faith children.

3. Irish Human Rights Commission

The Irish Human Rights Commission has Recommended that:-

“The State should put in place legislative measures to ensure that admission policies are free from discrimination, respect privacy and uphold the right to freedom of religion, conscience and thought, including the philosophical convictions of parents and children.”

“It is certainly arguable, although not as yet determined, that schools governed by the Education Act 1998 are “organs of the State” for the purpose of the ECHRA insofar as they may be considered to be a body through which the “legislative, and executive” powers of the State are exercised. If schools are an organ of the State then they have a direct and enforceable statutory duty under section 3(1) ECHRA, and an individual parent might conceivably be able to bring proceedings against a school whose admission policy was not in compliance with the rights protected under the ECHR”

 

The Commission made this recommendation because it is legally obliged to uphold human rights. The UN Human Rights Committee, The UN Committee on the Rights of the Child, the UN Committee on the Elimination of Racial Discrimination and the Council of Europe under the Framework convention for the Protection of National Minorities have all recommended the removal of religious discrimination in our education system.

It is clear from all these recommendations that Ireland is in breach of its international obligations as it undermines the human rights of some parents and their children.

4. Article 44.2.4 of the Irish Constitution

Article 44.2.4 of the Irish Constitution sanctions the state funding of denominational schools but there are conditions to this funding. Over the years these conditions have become meaningless and are now simply ignored.

Article 44.2.4 states that:-

“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.”

Over the years the conditions for state funding in Article 44.2.4 have been completely undermined, we now have religious discrimination in access to education and also the religious integrated curriculum which breaches the Constitutional and human rights of parents and their children. Article 44.2.4 was meant to have safeguards to protect the rights of minorities.

The Irish State ‘provides for’ education (Article 42.4) as opposed to providing a state system of education. It absolves itself of the responsibility to educate and delegates that responsibility to private bodies and institutions such as the Catholic Church. The vast majority of children in this country are educated in schools that are controlled by the agents of a foreign state. The European Court has said that home schooling is not a valid option to release the state from its human rights obligations.

5. European Court of Human Rights

The European Court of Human Rights found in the Louise O’Keeffe case that the State could not absolve itself of the responsibility to protect human rights and delegate that to private bodies and institutions. They stated that:-

“124. Education was a national obligation (McEneaney and Crowley, cited above), as it was in any advanced democracy. Article 42 of the Constitution was permissive so that the State could have and should have chosen to provide education itself. Even if the State outsourced that obligation to non-State entities, the National School model could and should have accommodated greater child protection regulations. One way or the other, a State could not avoid its Convention protective obligations by delegating primary education to a private entity (Costello-Roberts v. the United Kingdom). Finally, the State could not absolve itself by saying that the applicant had other educational options which, in any event, she had not.”

6. Constitutional Review Group Report of 1995

In 1995 the Constitutional Review Group Report stated that (page 366):-

“if Article 44.2.4° did not provide these safeguards, the State might well be in breach of its international obligations, inasmuch as it might mean that a significant number of children of minority religions (or those with no religion) might be coerced by force of circumstances to attend a school which did not cater for their particular religious views or their conscientious objections. If this were to occur, it would also mean that the State would be in breach of its obligations under Article 42.3.1°.”

If the Irish Constitution sanctions this religious discrimination then Ireland is in breach of all its international obligations and also Article 42.3.1 of the Constitution. This Article reads:-

“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.”

 

7. Summary

As it stands now the state does oblige atheist/secular parents to send their children to schools in violation of their conscience and lawful preference. Parents are coerced by force of circumstance to send their children to publicly funded National Schools with a religious ethos.

Catholic schools violate the conscience of atheist/secular parents and religious minorities as they discriminate on religious grounds. This is recognised by the UN and the Council of Europe who have recommended that religious discrimination in access to education be removed.

Why is it such an issue for the government of a Republic to remove religious discrimination in our education system and ensure that all schools respect the dignity of children regardless of their parents’ religious or philosophical convictions?

If Catholic First Admission policies are Constitutional, then Ireland is in breach of all its international obligations, and we live in a Republic where some children are second class citizens because of their parents’ religious or philosophical convictions.