The right to opt out of the State Religious Education course in ETB secondary schools

The new Directive issued by the Department of Education gives practical application to the right of all students to opt out of Religious Education.

That is not a new right. It was already there, but it was not properly implemented. The new part of this directive is not the right to opt out, but the right to have an alternative timetabled subject to choose.

So all students in ETB secondary schools can now do two things: firstly, opt out of the State Religious Education course, at Junior and Leaving Certificate; and secondly, and pick another subject to study.

Religious Instruction and Religious Education

The new Directive refers to Religious Instruction, which typically includes faith formation. But the same principle also applies to Religious Education, even without the faith formation element.

Broadly speaking, the reason that the new Directive focuses on the phrase Religious Instruction is because it is using the phrasing that is used in Circular Letter 73/74 from 1974, Deeds of trust and the Model Agreement.

These are the legal instruments under which ETB schools and colleges are governed, and because it is addressing the parts of the curriculum that are under the patron’s control rather than the NCCA.

The Right to opt out of Religious Instruction in all these instruments is reflected in Section 30 of the Education Act 1998. The new Directive refers to this Section of the Education Act.

But the Education Act 1998 does not refer to either Religious Instruction or Religious Education. It permits parents to opt their children out of anything that is against their conscience. This means that parents can now, in practice, opt their children out of the State Religious Education course and choose another subject.

The right to privacy about your beliefs

Teachers or school administrations should not discuss the reasons for opting out, because of the right of individuals not to be put in a position where they have to reveal their convictions. It goes even further than that: they should not be put in a position where they have to reveal directly or indirectly their convictions.

If a teacher sits parents down, and tries to discuss the reasons for opting out, or tries to persuade parents in any way, then they are putting parents in a position whereby they may reveal directly or indirectly their convictions.

That is why we specifically asked the Department of Education to include in the directive the clarification under section 4 that:

“While in respect of those who want instruction in line with the requirements of a particular religion the school may appropriately engage with the parents in relation to their religious beliefs, there is no basis for a school to intrude in that regard on the privacy of those who are opting for the alternative subject(s). The only information required is that the parent wants to opt for the alternative subject(s).”

It is simply not the function of teachers or schools to question, coerce, seek reasons, or persuade parents to change their mind about opting their child out of Religious Education.

Judgment by the European Court

The European Court has said that:

“87. The Court reiterates that freedom to manifest one’s religious beliefs comprises also a negative aspect, namely the right of individuals not to be required to reveal their faith or religious beliefs and not to be compelled to assume a stance from which it may be inferred whether or not they have such beliefs (see, Alexandridis v. Greece, no. 19516/06, § 38, ECHR 2008‑…, and, mutatis mutandis, Hasan and Eylem Zengin v. Turkey, no. 1448/04, § 76 in fine, ECHR 2007‑XI). The Court has accepted, as noted above, that Article 9 is also a precious asset for non-believers like the third applicant in the present case. It necessarily follows that there will be an interference with the negative aspect of this provision when the State brings about a situation in which individuals are obliged – directly or indirectly – to reveal that they are non-believers. This is all the more important when such obligation occurs in the context of the provision of an important public service such as education.” (See Grzelak v Poland – ECHR)

The new Directive issued by the Department of Education gives practical application to the right to opt out of Religion and choose another subject. It does not matter whether it is Religious Instruction or Religious Education: all parents can now opt out their children and pick another curriculum subject.