Discrimination at primary school admission

edanto

There's a thread over in another forum started by a man that is having trouble getting his child into a primary school close to their house. The reason for the trouble is that his child isn't baptised and the school is Catholic.

They are allowed give preference to children of the same religion as the school under the Equal Status act. I think that's unfair.

A lot of discussion has taken place already - have a look at http://www.boards.ie/vbulletin/showthread.php?t=2055000841&page=9

I've come here to ask anyone with legal experience if they know what the justification for this part of the above act is:

It says that schools shouldn't discriminate against people and then gives some example situations where a school is not being discriminatory if

the objective of the school is to provide education in an environment which promotes certain religious values, it admits persons of a particular religious denomination in preference to others or it refuses to admit as a student a person who is not of that denomination and, in the case of a refusal, it is proved that the refusal is essential to maintain the ethos of the school,

Why should religious discrimination be tolerated if it means that OTK has to put his child on the waiting list for the nearest Educate Together school and may only get a place in an undersubscribed Catholic school a long distance from his house? Are there any relevant legal issues?

hullaballoo

Equality in this country is not as liberalist as in the US, say. Prior to the Equal Status act (some provisions of which have been repealed as being too lenient, by the way), the way the courts thrashed it out was to say that discrimination was only possible between similar groups. Some constitutional bright spark should be able to give you specifics, but that's my first reaction.

Nevyn

http://www.oasis.gov.ie/education/primary_and_post_primary_education/constitution_and_education.html

The Constitution and education in Ireland
Information

The Constitution of Ireland has a number of articles that are relevant to the law on education.

Article 42 of the Constitution deals with education. Other articles also have a bearing on education law, in particular the articles dealing with the family and religion (Articles 41 and 44). You can read the full text of the Irish Constitution (pdf) here.
Education

This is the full text of Article 42 of the Constitution of Ireland:

"42: 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.

42.2: Parents shall be free to provide this education in their homes or in private schools or in schools recognised or established by the State.

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.

The State shall, however, as guardian of the common good, require in view of actual conditions that the children receive a certain minimum education, moral, intellectual and social.

The State shall provide for free primary education and shall endeavour to supplement and give reasonable aid to private and corporate educational initiative, and, when the public good requires it, provide other educational facilities or institutions with due regard, however, for the rights of parents, especially in the matter of religious and moral formation.

In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child."
The Family

This is the relevant part of Article 41:

"1.1°: The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.

1.2°: The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State."
What these articles mean

These articles have been the subject of a number of court decisions. In simple terms, the essential points about these articles are:

* The family is the main source of education for the child. Parents are entitled to provide education outside the school system if they wish.
* The state may not force parents to send their children to any school or any particular kind of school. Parents may decide the school to which they wish to send their children but there is no constitutional obligation on a particular school to accept individual children.
* The state may require that the children receive a certain minimum education. This certain minimum has not yet been defined in legislation or in official policy. Many of the court cases have been about the precise meaning of that phrase.
* The state is obliged to provide for free primary education. It is not obliged to provide that education directly. In practice, there are some state schools but the majority of primary schools are privately owned and largely state funded.See Ownership of Primary Schools
* The state is not obliged to directly provide schools but it is not prevented from doing so either.

Minimum education

The Education (Welfare) Act 2000 does not give a definition of a "minimum education". However, it does provide that the Minister may set out a "prescribed minimum education". That minimum standard may be different for children of different ages and of different capacities - including physical, mental and emotional capacities.

The Act also provides that children educated outside the mainstream school system are to be identified and assessed in order to ensure that the education they are receiving meets the minimum standards. The register is maintained by the National Education Welfare Board.
Free primary education

In the Sinnott case, the Supreme Court decided that the right to free primary education ends at age 18 and does not continue on the basis of need.
Religion

This is the relevant part of Article 44:

2.2°: The State guarantees not to endow any religion.

2.3°: The State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief or status.

2.4°: 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.

2.5°: Every religious denomination shall have the right to manage its own affairs, own, acquire and administer property, movable and immovable, and maintain institutions for religious or charitable purposes.

2.6°: The property of any religious denomination or any educational institution shall not be diverted save for necessary works of public utility and on payment of compensation.

This article means that there may not be discrimination between the different denominations and that children have the right to attend state aided schools without attending religious instruction. In practice, certain time periods may be set aside for religious instruction and the parents have a right to withdraw the child at these times. However, the nature of the curriculum is such that there is not generally a rigid divide between subjects and the school ethos tends to pervade all subjects.

It has been argued that the article means that a child may not be refused access to a publicly funded school on the basis of the child's religious beliefs.

Educational establishments in Ireland are subject to the Equal Status Acts 2000-4. (Educational establishments in this context refers to preschools, primary, post-primary, an institution providing adult, continuing or further education, a university, third level or higher level institution whether or not they are publicly funded.)

Under Section 7 of the Equal Status Act 2000 denominational[/] schools are permitted to refuse to admit non co-religionists in certain circumstances.

Denominational school make up the majority of schools in this county over 95% .
The governemnent is only obliged to ensure a minimum standard of eduction.

Overheal

Its a Catholic School, right? So its owned by the Catholic Church so it wouldn't be the state that is preventing the education.

However, I can't understand how the school is refusing their child... What religion are we talking about here, if you don't mind my asking? I mean, I was never Baptised either, but I did make it through a Catholic School alright. I suppose it depends on the policy of that school to teach religion; in St.Flannan's College (Ennis Co.Clare), they taught religion but it was not in the Ethos of the school to enforce a curriculum that was ... 'Catholic'. But thats a Secondary School situation; not a primary one. I never went to primary here (being American).

I suppose the religion difference matters a lot; if you are talking about a simply non-religious upbringing (as myself) I personally don't see why they would refuse.. but unfortunately, its in their constitutional right: If they want to keep it strictly Catholic, theres not much taht can be done about it.

I think perhaps the situation should get pitched to the Board of Education: if the school doesn't want to be the educator, the State is constitutionally bound to be (by my understanding anyway, which is amateur at best).

edanto

The problem arises because this school is oversubscribed. So, the school has ways of prioritising applications and one of those is to look at the religion of the child - Catholics get priority.

One of the posters in the other thread has brought up some constitutional issues about which he says

Stirling wrote:

link to his post
The Article I quote means that the State will not oblige the religious school to act against its manner of operation. When you say the "State must do something" that is to overlook the relationship between the State and the school which is in Constitutional terms one of two autonomous bodies with significant degrees of interaction in terms of funding and regulation but which are nonetheless in charge of their own destinies to a great extent.

So would that part of the constitution (44.2.5) mean that Sec 7 of the ESA couldn't be challenged?

The_Minister

This doesn't sound right, I went to a Catholic school, but there was a muslim in my class.

kippy

This doesn't sound right, I went to a Catholic school, but there was a muslim in my class.

I got banned from the parenting forum due to the heated debate but I would recommend you read some of the thread.
Religion only comes into it when the school is oversubscribed. If there were enough places for all the kids that applied to your class religion would not have been looked at.
Kippy

edanto

The_Minister wrote:

This doesn't sound right, I went to a Catholic school, but there was a muslim in my class.

Sure, there's even schools where over half of the children weren't born in the country - but the specific case here involves the policy of just one school that happens to be oversubscribed, so they choose to prioritise the applicants based on their religion (amongst other things, I guess).

Nevyn

All promary schools that have a catholic patron ( 92% of all national primary schools) have an enrollment policy which gives preference to children baptised in the parish, children baptised in other parishes and then children that are not christian.

If all the places for a new intake of children are not filled then they will take children that are not catholic as the schools direct funding is a grant per child and the school will want to ensure they get that.

OTK

kippy wrote:

Religion only comes into it when the school is oversubscribed. If there were enough places for all the kids that applied to your class religion would not have been looked at.

This is like a hotel saying it only chooses white customers in preference to blacks when it has more customers than rooms.

kippy

This is like a hotel saying it only chooses white customers in preference to blacks when it has more customers than rooms.

No its not, the hotel isn't within the law to do this.

OTK

true

hullaballoo

I'm sure this is issue is a sticking point for some people alright, but thinking about it rationally, it would seem to make sense.

If I was a non-Catholic going to a Catholic school, then I would probably be receiving a Catholic education of some sort while I was there that is absolutely no use, and depending on my credence, may even offend me.

This thread actually reminded me that when I was younger, my mother wanted me to go to a certain protestant school that she thought was better than the one I was in. They wouldn't accept me because I was "Catholic" so my mother looked into changing my religion in order to get me into the school.

It didn't happen in the end, because I got a place in another school, but apparently, the protestant school would have accepted me if I'd changed religion, even just nominally.

OTK

Presumably, children under 5 are neither catholics or protestants as baptism is non-sect specific; at that age they are all just christians awaiting confirmation into a sect. So I am guessing that religious discrimination for primary school pupils is based on the stated religion of the parents or the sect of the church issuing the baptismal cert or perhaps on the intended sect of the child as stated by the parents.

grumpytrousers

children will tend to be baptised into a particular faith soon-ish after birth. The 'confirmation' occurs at the age of 12-ish. Personally how any child at the age of 12 is fit to make a value judgement on how they'll live out the rest of their lives is anybodys guess, but them's is the rules.

RainyDay

hullaballoo wrote:

I'm sure this is issue is a sticking point for some people alright, but thinking about it rationally, it would seem to make sense.

If I was a non-Catholic going to a Catholic school, then I would probably be receiving a Catholic education of some sort while I was there that is absolutely no use, and depending on my credence, may even offend me.

This thread actually reminded me that when I was younger, my mother wanted me to go to a certain protestant school that she thought was better than the one I was in. They wouldn't accept me because I was "Catholic" so my mother looked into changing my religion in order to get me into the school.

It didn't happen in the end, because I got a place in another school, but apparently, the protestant school would have accepted me if I'd changed religion, even just nominally.

But why should a state-funded service where the state is paying the salaries of all the teachers be able to discriminate on grounds of religion, when such discrimination would be clearly against the law in any arena?

hullaballoo

No. It's not illegal. As I said in my first post, discrimination cases are very difficult to win in this jurisdiction (as opposed to the US, say), so where there's an actual statutory exception which tells us that choosing applicants for schools denominationally, how could that possibly be illegal?

Whether or not it is morally or politically correct is not really a matter for lawyers.

grumpytrousers

Aye - i think the 'thinking'/'policy' call it what you will is that everybody is entitled to an education - just not necessarily in the school that suits you best.

Our man in Havana

I would assume that the state would have to educate the child somewhere if the local schools won't accept the child?

Overheal

very true

You need to contact Social Welfare (if you havent already and are still having problems) and let them know about it

Amazotheamazing

I don't see the problem here, if the child's parents have no interest in Catholicism why should the child attend a Catholic school just for their conveinence, particualry in preference to a Catholic child, where the school is over subscribed? Similarly I would expect Protestant, Muslim, Judaic schools to favour members of their religious community.

Our man in Havana

What if the child was a muslim living in ballydehob, why should it be expected to send the child to the nearest muslim school in say Dublin? There has to be some compromise.

parsi

The OP seems to have forgotten to report back that the issue was resolved by the parent informing the school that the child wasn't baptised.

All was then ok - it appears that the school was under the impression that the child was Catholic and therefore was looking for the relevant paperwork.

Amazotheamazing

Bond-007 wrote:

What if the child was a muslim living in ballydehob, why should it be expected to send the child to the nearest muslim school in say Dublin? There has to be some compromise.

Only in the unlikely event of every school in the ballydehob area being oversubscribed, no-one is saying the child can't attend the school per se, but rather it can't attend the school if theres a shortage of places for Catholics.

TempestSabre

Thaedydal wrote:

All promary schools that have a catholic patron ( 92% of all national primary schools) have an enrollment policy which gives preference to children baptised in the parish, children baptised in other parishes and then children that are not christian.

If all the places for a new intake of children are not filled then they will take children that are not catholic as the schools direct funding is a grant per child and the school will want to ensure they get that.

How do you know this is for ALL catholic patron schools. I can understand why the rule exists but it is unfair. Especially in areas where schools are over subscribed. But equally in my area its done by DOB only which I think is very unfair to people in the area for a long time. But I'm curious how where you get such sweeping rule from?

Nevyn

They are a franchise amd the admissions policies for the schools are boiler plate to start out with.
The the board of management for the school may vote to change the policy,
which with the head of each board of management being the local parish priest
there to look after the intrest of the schools patron it is thus far unheard of for it to be removed.

TempestSabre

Its doesn't seem to be the policy in the local school. I must ask the local priest how it works the next time hes in the pub.