The State, not school boards, should directly protect the rights of minorities in schools

The term ethos/characteristic spirit is not defined in the Education Act 1998. It can and does mean different things to different Patron bodies, schools and teachers. The term ‘ethos’ is connected with the choice of parents in relation to the education of their children.

Because the majority of parents of people in Ireland are Catholic, the state has mainly funded Catholic schools, even though the constitution does not oblige them to do so. Article 42.4 says that the state should ‘endeavour’ to fund these schools. This is not an absolute obligation to fund them.

The result of funding mainly Catholic schools has meant that minorities have no choice but to attend their nearest publicly funded school which is nearly always a Catholic school.

Legal obligation to protect the rights of minorities

The Constitution obliges the state to protect the rights of minorities in publicly funded Catholic schools or indeed any type of school.

• Article 44.2.4 gives students the right to not attend any type of religious teaching that is against the conscience of parents. This is a condition of the funding of schools.
• Article 42.4 obliges the state to have ‘due regard’ for the rights of all parents in relation to the religious and moral formation of their children when funding schools.

The Education Act 1998 also obliges the state to protect the rights of minorities in schools.

• Section 15-2-(b) obliges Boards of Management of schools to uphold the ethos of the Patron while Section 15-2-(e) obliges them to respect all beliefs and ways of life in a democratic society.
• There is a contradiction between upholding the ethos of the Patron and respecting and promoting respect for the diversity of values and beliefs in a democratic society.
• Section 6(a) obliges all concerned with the implementation of the Act to give practical effect to the constitutional rights of all children.

The very purpose of these Sections of the Education Act 1998 was to ensure that Boards of Management strike a balance between the wishes of the majority of parents in the school as reflected in the ethos of the Patron of the school and minorities who have no choice but to attend the school.

When these Sections of the Education Act were being debated in the Seanad it was pointed out by Senator O’Toole that it was impossible for Boards of Management to balance upholding the ethos of the patron with respecting all beliefs in the schools.

The then Minister for Education Micheal Martin claimed that it could be done. He was clearly wrong as Board of Management never saw their role as balancing rights. They have not got the experience to do so and anyway there is no balancing of rights in relation to the right to not attend religious instruction, You can find that debate here

The White Paper on Education 1995

The White Paper on Education 1995 set out the principles underlying the purpose of the Board of Management in relation to these issues:

“A board, on behalf of the patrons/trustees/owners/governors, will be responsible for protecting and promoting the ethos of schools as reflected in the desires and choices made by parents for their children. A board will strike a balance between the rights, obligations and choices of a majority of parents and students who subscribe to the ethos of a school and those of a minority who may not subscribe to that ethos but who do not have the option, for practical reasons, to select a school which reflects their particular choices.”

In practice, Boards of Management do not see their role as balancing the rights of the majority in the school against the rights of minorities who do not subscribe to the ethos of that school. They only see their role in these matters as upholding the ethos of the Patron. This has meant teachers are on the coal face and left trying to deal with situations when that is not their role.

Balancing of rights

There is no balancing of rights needed in exercising the constitutional right to not attend religious instruction. Article 44.2.4 of the Constitution does not say ‘opt out’ or ‘not participate’, it states ‘not attend’. The framers of our Constitution put in place this right in relation to religious teaching and made it a condition of state funding.

Inclusive schools should recognise the rights of minorities, and ensure that they are not discriminated against while exercising their rights. Offering students another subject if they exercise their right to not attend religious instruction does not challenge the ethos of schools.

However, Boards of Management have chosen not to provide supervision for students that exercise their constitutional right to not attend religious teaching, notwithstanding the fact that it is a condition of the state funding of their school.

Just because the Catholic Church and the ETBs object to students getting another subject if they exercise their right to not attend religious instruction doesn’t mean that the majority of parents in the school object to this. Times have changed and the convictions of the majority of parents do not necessarily align with the ethos of the Patron body.

Many Catholic parents voted for same sex marriage and abortion on the basis of their conscience which did not align with that of religious patron bodies. Why does their convictions not take precedence over the ethos of the Patron and especially if they along with minorities make up a majority within a school?

At present schools can teach sex education through the ethos of the school, which means that any new sex education curriculum can be taught through the lens of the Catholic Church. Unfortunately Boards of Management will not even ask parents do they wish the new curriculum on sex education to be taught through the ethos of the Patron. There is not even an attempt to try to balance rights and protect the freedom of conscience of all parents in the school. The ethos of Catholic schools just reflects the teaching of the Catholic Church in these matters and that is imposed on all.

Parents are not informed that sex education will be delivered through the lens of the Catholic church and are not aware of what their children are being taught. If a majority of parents wish for sex education to be taught through the ethos of the school, then those parents and students who object can exercise their right to not attend. They are not informed of this either, and if they do exercise this right they will be left sitting in the class.

Positive duty of the State

The responsibility of the Department of Education in relation to the Constitutional rights of parents and students should not have been ceded to Boards of Management. It simply hasn’t worked and the Constitutional rights of minorities and some Catholic parents have been thrown aside.  We need statutory guidelines because the state has a positive duty to protect the constitutional rights of all parents and not just those that wish they children to be taught through a catholic ethos.

This failure by the state to positively protect the rights of all parents in schools has undermined Constitutional rights and given private bodies power and control over the choices of parents in relation to the education and formation of their children.