The Constitutional Right to leave the classroom during Religious Instruction

Most Irish schools insist that children, whose parents do not want them to attend religious instruction, must sit at the back of the class while religion is being taught. This is unconstitutional. Such children have the right to physically leave the classroom while religion is being taught.

The inalienable rights of parents

The rights of parents in relation to the Education of their Children can be found in Article 42.1 of the Constitution. It is described as an inalienable right. The Constitution uses the word inalienable sparingly. It only describes rights as inalienable in three places.

• Article 1 refers to the inalienable right of the Irish Nation to choose its own form of Government. Inalienable means not subject to being taken away from or given away by the possessor.
• Article 41.1 refers to the Family as having inalienable and imprescriptible rights, antecedent to and superior to all positive law. Imprescriptible means they are not subject to being taken away.
• Article 42.1 refers to one of these inalienable rights of the Family, which is the inalienable right of parents to provide for the religious and moral, intellectual, physical and social education of their children.

It is not up to church or state to decide what is or is not against the conscience of parents or to decide that any particular type of religious teaching is suitable for their children.

Article 42.1 states that:

 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.

Article 44.2.4 of the Irish Constitution which is essentially about state funding for denominational schools was also meant to protect the rights of minorities in publicly funded schools. The Supreme Court has already linked together Article 42.1 and Article 44.2.4.

The right to not attend religious instruction

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.

This Article refers to students not attending religious instruction. That is different from not participating in religious instruction. It means that you have a right to physically leave the classroom. The right of students to not attend religious instruction is a condition of the funding of schools.

In addition, the Irish version of the Constitution which takes precedence over the English version refers to students not attending religious teaching as opposed to religious instruction. Under the Education Act 1998, all subjects are referred to as instruction. Students have a right to not attend any religious teaching.

The Irish version of Article 44.2.4 states that:-

Reachtaíocht lena gcuirtear cúnamh stáit ar fáil do scoileanna ní cead idirdhealú a dhéanamh inti idir scoileanna atá faoi bhainistí aicmí creidimh seachas a chéile ná í do dhéanamh dochair do cheart aon linbh chun scoil a gheibheann airgead poiblí a fhreastal gan teagasc creidimh sa scoil sin a fhreastal.

The Rules for National Schools

The next place that recognises the right of parents to ensure that their children do not attend religious instruction is in Rule 69- 2 (a) of the Rules for National Schools. This states that:

“No pupil shall receive, or be present at, any religious instruction which his parents or guardians disapprove.”

Rule 69-2(a) clearly states that students need not be present in the class.

The Education Act 1998

Section 30-2(e) of the Education Act 1998 also recognises the right to not attend any subject that is against the conscience of parents.

“The Minister… shall not require any student to attend instruction in any subject which is contrary to the conscience of the parent of the student or in the case of a student who has reached the age of 18 years, the student.”

The Education (Admission to Schools) Act 2018

The recently enacted Education (Admission to Schools) Act 2018 also recognises the right of students to not attend religious instruction. Section 62-7(n) states that:

“An admission policy shall… provide details of the school’s arrangements in respect of any student, where the parent of that student, or in the case of a student who has reached the age of 18 years, the student, has requested that the student attend the school without attending religious instruction at the school (which arrangements shall not result in a reduction in the school day in respect of the student concerned),”

The legal duty of the Minister for Education

As the years have passed the right of minorities to not attend religious instruction in schools has been watered down and successive Ministers for Education have refused to ensure that the Constitutional rights of minorities are protected in publicly funded schools.

It is the legal obligation of the Minister to ensure that the right to not attend religious instruction is given practical application on the ground.

Atheist Ireland will continue to campaign to ensure that the rights of minorities are given practical application on the grounds in all publicly funded schools. We are seeking statutory guidelines to give practical application to this right. Leaving it up to schools to decide how they implement this right has resulted in the watering down of our rights and in many cases schools just ignore it.