School Principals can’t make policy on not attending religious instruction

We have recently sent the following letter to the Oireachtas Education Committee.

Letter from Atheist Ireland to Oireachtas Education Committee

Can you please add this to the file of information from Atheist Ireland that the Committee is considering.

“Section 62-7(n) of the Education (Admission to Schools) Act 2018.

A ruling in August 2023 at the WRC found that it was reasonable for a school not to put into
their admission policy the details of the arrangements for students who exercise the right to not
attend religious instruction.

This ruling contradicts the wording and defeats the stated purpose of Section 62-7(n) of the Education (Admission to Schools) Act 2018, which states “An Admission Policy shall…(n) 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 in respect of the student concerned)”.

Atheist Ireland has highlighted that schools have been ignoring this legal requirement, supported by surveys of sample admission policies, and politicians and civil servants have evaded addressing the issue. This has contributed to the nod and wink atmosphere in which the WRC can make a finding that contradicts and defeats the stated purpose of the Act.

The WRC case was in relation to the following:

”The Complainant stated that his daughter, C, who does not want to participate in religion classes because she is non-religious, is receiving an inferior education to her religious sister, E. This discrepancy is attributed to the Respondent’s failure to allow C to participate in alternative classes while religious classes are ongoing. The Complainant argues that this treatment constitutes an instance of discrimination.”
https://workplacerelations.ie/en/cases/2023/august/adj-00044317.html

The WRC stated that:

”While the Complainant also stated that the Respondent breached the requirement of section 67 of the Education (Admission to Schools) Act on the basis that the arrangements in relation to opt outs of religion are not transparent, I am satisfied based on the evidence presented to me by the Respondent that this is not the case. In making this finding, I noted that the Respondent’s mission statement allows for opt-out requests from religious classes and sensibly, in my view, acknowledges the absence of a universal ”no one size fits all” solution for such requests.
Considering this, I believe that engaging in a conversation with the child or the parents about the arrangements for the religious classes, as described by the principal in his evidence, constitutes a reasonable approach and does not breach the transparency obligations outlined in the Act.”

”The Respondent also disputed that the school had breached the requirement of section 67 on the basis that the arrangements in relation to opts out of religion are not ”transparent” as alleged by the Complainant. Specifically, it was asserted that the school has a detailed bespoke approach in relation to admission and to opting out of religion and provides that such arrangements are discussed with the parents and/or child concerned. The Respondent further highlighted that a “one size fits all” approach is unlikely to meet the requirements of each circumstance where students wish to opt out of religion. Rather, the school is flexible in terms of what it might do and what arrangements might be put in place and what the policy provides is that the school will liaise with the parents specifically in relation to this matter.”

The WRC found that it was a reasonable approach to ask parents to have a conversation to discuss the arrangements for their child to not attend religious instruction. The particular school Admission policy asks parents to arrange a meeting with the school to discuss the issue.

This defeats the purpose of this Section of the Act. According to the debates in the Oireachtas on this Section of the Act, the very purpose was to inform parents before they sent their child to the school the details of the arrangements for children not attending religious instruction.

The Minister stated that:-

”This will be enforced by requiring it to be explicitly stated in the admissions policy of religious
schools as to how they propose to honour that.”

(see appendix below with all quotes from Minister during debates on this section of the Act.)

The Principal cannot make policy
Section 62-7(n) of the Education (Admission to Schools) Act 2018 puts the legal responsibility for the arrangements for students not attending religious instruction onto the BOM not the Principal or teachers. Obviously the Minister was aware that he was putting this legal responsibility onto BOMs and it would not lie with Principals or teachers anymore.

Under Section 62-7(n) of the Act the Principal/teacher of a school cannot decide on the arrangements for those children that exercise their right to not attend religious instruction/teaching. Under the Act that legal duty lies with the Board of Management.

During any meeting with parents, the Principal therefore should already be aware of what policy arrangements the BOM has put in place for students that exercise the right to not attend religious instruction. It is therefore not a matter of a discussion with parents and the Principal/teacher then deciding what he/she will arrange for the child that wishes to exercise the right as the Principal has no legal power under the Act to make a policy decision on how a child will be accommodated.

There are only so many ways that a school can accommodate a child who exercises the right to not attend religious instruction. It is not an endless list and there is no reason why various options cannot be detailed in any Admission policy. Notwithstanding the fact that Article 44.2.4 of the Constitution, Section 30-2(e) of the Education Act 1998 and Section 62-7(n) of the Education (Admission to Schools) Act 2018 guarantee the right of a child to ‘not attend’ religious instruction, this is almost never happens. The vast majority of students are supervised in the
religious instruction class.

For example:-

• The student can/will be required to sit in the class where religious instruction takes place.
• The student can/will be supervised in another class or in the library or can sit in the religious
instruction class.
• The student will be offered another subject.
• The student can/will be supervised by another teacher outside the class
• The student will not be supervised and a guardian will need to pick them up from the school

Unless BOMs decide on a case by case basis the arrangements for every child who exercises the right to not attend religious instruction, the only issue is the refusal of schools to write all the arrangements on offer for students not attending religious instruction into their Admission policy.

Legally the only purpose of any meeting with a Principal or teacher is for them to inform parents verbally of the policy decision of the BOM in relation to the arrangements for not attending religious instruction and for parents to decide on the option that suits them or for parents to accept the only offer available for their child.

In our experience there are very few schools that give parents any options in relation to the arrangements for their children not attending religious instruction. The only option on offer in the majority of schools for children that exercise this right is sitting in the religious instruction class and not participating as was the case in this particular school. The only option for the particular student in the WRC case was to sit in the religious instruction class.

After this particular WRC case minorities are left in the position that the WRC has said it is reasonable for Principal/teachers to ask parents to come to a meeting to inform them that the only option for their child is to sit in the religion class if they wish to exercise the right of their child to not attend religious instruction. Any options available need not be written into the Admission Policy.

This was simply not the purpose of Section 62.7(n) of the Education (Admission to Schools) Act 2018. Minorities are left in exactly the same position as they were before this Section of the Act was put in place.

Offering another subject
Offering students another subject if they exercise their right not attend religious instruction.

The WRC also found that it was not religious discrimination under the Equal Status Act if a school did not offer students another subject if they exercised their right to not attend religious instruction.

They found this on the basis that:-

a) It might cause chaos
”In deciding whether the Respondent breached the Equal Status Act by not offering the Complainant additional classes instead of the religious ones she opted out of, I accept the Respondent’s argument that providing alternative classes for opt-out students might potentially result in chaos within the school. Moreover, one can easily envision that the situation could become even more complex if students exempt from other subjects also sought alternative classes, citing the precedent set for those opting out of religion. Although I accept the Complainant’s evidence that other schools do offer alternative classes for students opting out of religious education, without apparent issues, the Respondent’s decision not to do so in this case does not inherently amount to discrimination.”

In stating this, the WRC compared the right to not attend curriculum religious instruction with other subjects under the curriculum notwithstanding the fact that Article 44.2.4 of the Constitution singles out not attending religious instruction over other subjects, in order to protect the right. No other subject is singled out in this manner by the Constitution.

b) The Dept of Education does not require schools to offer another subject to students who exercise their right to not attend religious instruction.

The WRC stated that:-

”Despite the Complainant’s references to the Education Act 1998, the Education (Admission to Schools) Act 2018 and the Irish constitution in both written submissions and oral testimony during the hearing, there was no supporting evidence presented to show that any legislation explicitly requires schools to offer alternative classes or additional tuition to a student who opts out of religious studies compared to a student who chooses to participate in them.”

The Department of Education leaves it up to each school to give practical application to the right to not attend religious instruction. There are no statutory guidelines in place despite the fact that under the Constitution it is the duty of the Oireachtas to guarantee this right and to ensure that legislation providing state aid for schools does not ’affect prejudicially ‘the right of students to not attend religious instruction. The term ”affect prejudicially” appears to have been given no practical application on the ground by the Oireachtas.

c) It could potentially be discriminatory to the students that took religious instruction because the school would be offering extra tuition to a student that did not take religious instruction.

”However, what could potentially be considered discriminatory would be if the Respondent offered extra tuition in a different subject to a student who opted out of religion but refused to provide additional tuition to a student who chose to attend religious classes on the grounds of their belief. This difference in treatment based on students’ choices regarding religious education could raise concerns of discrimination under the Equal Status Act as the Respondent‘s representative correctly highlighted. Specifically, if the Respondent allowed C to participate in
additional history classes due to her decision not to study religion, then it could be argued that E has a valid claim of discrimination because she chose to study religion but was not given the same opportunity for extra history classes.”

In this particular case it was curriculum Religious Education which is an exam subject at Junior and Leaving Certificate level. This subject benefits from substantial state aid.

This leaves students who take religion with an extra curriculum subject. Students who exercise their right to not attend religion cannot get the same amount of teaching time in schools by picking another subject because it could potentially be seen as discriminatory to the student who takes curriculum religion.

In order to exercise the right to not attend religious instruction under Article 44.2.4 students must have less teaching time in schools because in exercising this right it could potentially be seen as discriminatory to students that don‘t exercise the right. Those students that take religious instruction get the benefit of substantial state aid for a curriculum exam subject and teachers are paid by the state to teach it.

As you will appreciate we can only see this as our children being punished by the State for our decision to exercise the constitutional right to not attend religious instruction.

In this particular case one child from a family gets more teaching time than another child because the child followed their conscience and exercised their right to not attend religious instruction. State aid is given to those that take religion in schools and no state aid is given to support the Constitutional right to not attend religious instruction notwithstanding the fact that it is a condition of state aid. The Constitutional words ’not attend ‘and ’affect prejudicially ‘are given practical application by leaving students sitting in the class where religious instruction takes
place and getting less teaching time than students that take religion.

In addition it is schools that have been left with the duty to give practical application to the right to not attend religious instruction under Article 44.2.4 when the Constitution specifically puts that duty on the Oireachtas because of the separation of powers under Article 15.2.1.

Parents are left dealing with schools in relation to the right to not attend religious instruction because there are no statutory guidelines in place and the Oireachtas has failed in its duty.

Appendix

The Requirements of Section 62.7(n) of the Act Section 62.7(n) of the Education (Admission to Schools) Act 2018 states that:

”62.7 An Admission Policy shall…
(n) 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)”

What is the purpose of this requirement?

Here are some quotes about it from Minister for Education Richard Bruton during the Oireachtas debate:

”The Bill also requires schools to publish an Admission Policy which will include details of
the school’s arrangements for students who do not want to attend religious instruction. This
is an important measure which will help ensure transparency from the outset as to how a
school will uphold the rights of parents in this regard.”
https://www.oireachtas.ie/en/debates/debate/dail/2016-11-16/37/

Section 62 ”sets some mandatory requirements for a school‘s Admission Policy, which include: setting out the characteristic spirit of the school; including an admission statement; providing details of the school’s arrangements for students who do not wish to attend religious instruction”
https://www.oireachtas.ie/en/debates/debate/dail/2016-11-16/37/

“What we are really discussing is how to address the absolute constitutional right of a child to opt out of the religious activities within the school, if he or she chooses.”
https://www.oireachtas.ie/en/debates/debate/dail/2018-05-30/33/

“We are strengthening the provision to meet the constitutional right of every child not to have to attend religious instruction. This will be enforced by requiring it to be explicitly stated in the admissions policy of religious schools as to how they propose to honour that. We are introducing a charter for parents and students to ensure that they will have more say over time in all of the dimensions of school policy. In the case of multi-denominational ETB schools
at second level, we will ensure that religion is treated as an option and not as a compulsory subject. We are making several changes which are going to give rise to a much improved environment.”
https://www.oireachtas.ie/en/debates/debate/dail/2018-05-29/43/

”There is the matter of issuing directions and we have made a significant change in this Bill. Before a child enrols in a school, the school would have to set out the policy it provides with respect to attending religious instruction. This is an area where there has been a good deal of evolution and we must see more.”
https://www.oireachtas.ie/en/debates/debate/seanad/2018-07-04/15/

”In this Bill I am also requiring schools to set out in their admissions policies how they will accommodate children who are exercising a constitutional right not to attend religious instruction. I have also indicated to schools operating under the multi-denominational education and training board, ETB, banner at second level that they have an obligation to talk to the parents of pupils about what the parents want and to provide a real curricular option for children at second level in those schools as an alternative to religion.”
https://www.oireachtas.ie/en/debates/debate/seanad/2018-06-20/8/Pp