Submission by Education Equality to the Minister for Education and Skills on The role of denominational religion in the school admissions process and possible approaches for making changes Synopsis 1. Education Equality is an independent and voluntary human rights organisation established to campaign for equality in the provision of education for all children regardless of religion. Education Equality calls for an end to religious discrimination in State-funded schools. 2. The only option supplied by the Minister for Education and Skills, Richard Bruton, that would remove the 'baptism barrier' is option four, sub-option one all of the other options and sub-options allow for discrimination on the basis of religion in access to taxpayerfunded schools. As an organisation dedicated to removing all religious discrimination in schools, this is the only option that Education Equality can support. 3. The minority religion argument for the retention of the baptism barrier is extremely weak given that almost no minority religions benefit from same. It does not seem that the opinion of parents of children of minority religions has been actively sought - rather, it seems it is religious institutions that object to the removal of the baptism barrier. 4. In his opinion, prepared for Education Equality, (available HERE) on whether the repeal of section 7(3)(c) of the Equal Status Act 2000 would give rise to constitutional difficulties Michael Lynn SC states I do not consider that the complete repeal of section 7(3)(c) without replacement would be constitutionally impermissible. 5. It is the view of Education Equality that the routine and daily discrimination faced within classrooms by children of minority religions and no religion is every bit as unacceptable as the baptism barrier. The Minister has not proposed any measures to uphold a child's explicit constitutional right to attend a school receiving public money without attending religious instruction at that school (Article 44.2.4 of the Constitution). Introduction 6. In Ireland, 96% of taxpayer-funded primary schools are entitled to discriminate in enrolment on the basis of a child's religion. This religious hierarchy in the provision of a taxpayerfunded service is widely known as the 'baptism barrier' - around 90% of our schools are under the patronage of the Catholic Church. The law that allows this discrimination is section 7(3)(c) of the Equal Status Act 2000. 1
7. In the Minister for Education's consultation paper entitled The role of denominational religion in the school admissions process and possible approaches for making changes, which acts as a framework for this consultation process, he sets out two problems with respect to the baptism barrier. Few will argue with his assertion that it is unfair that parents, who might otherwise not do so, feel pressure to baptise their children in order to gain admission to the local school. However, the wording of the second problem he identifies is worrying and is reflected in the flawed options that have been put to the public as part of this consultation process. 8. The Minister says it is unfair that a non-religious family, or a family of a different religion, living close to their local publicly-funded school finds that preference is given to children of the same religion as the school living some distance away. Implicit in this is that it is fair that a child living close to their local publicly-funded school should get preferential access on the basis of religion. In other words, if two next-door-neighbours of four years of age are of different religions the child of the right religion will have preferential access to his or her local taxpayer-funded school while the other child will just have to wait and see if there is a place remaining after all of the local children of the right religion have first been catered for. Option one: Catchment area 9. The above scenario is exactly what is proposed under the Minister's first option, misleadingly entitled catchment area. Children of the wrong religion or no religion would no longer be superseded by children of the right religion from anywhere in the country but would still be lower on the scale of preferred entrants than their friends and neighbours in the local area. This amounts to changing the status of such children from third-class citizenship to second-class citizenship ('discrimination-lite', if you prefer) and is certainly not an acceptable way for a democratic country to apportion access to its taxpayer-funded resources and services. Option two: The nearest school rule 10. The Minister's consultation paper states that a nearest school rule, would allow religious schools to give preference to a religious child only where it is that child s nearest school of that particular religion. It is worth noting again that 96% of taxpayer-funded Irish primary schools are religious schools. 11. Option two, in other words, will still allow almost all schools to give preference to a religious child over a child not of the patron's religion. Almost every child from a Catholic family will be prioritised in one local school, whereas children of other religions are unlikely to benefit from any prioritisation and children of no religion will still not be prioritised by any school. This option may reduce the gross number of refusals on religious grounds, but it still ranks four-year-old children on the basis of religion in terms of priority of access to State services and is thus unacceptable. The parent of an unbaptised child cannot possibly know the number of baptised children who will avail of the nearest school rule and so will, once again, be required to wait until all qualifying religious children are first catered for before learning whether there is space for their child. 12. It is worth noting at this stage that much of the difficulty created for parents by the baptism barrier relates not to refusal of entry to the local school but to the years of uncertainty before rejection or offer of a school place occurs. During this period parents of baptised children benefit from the peace of mind that their children will be in the top enrolment category in almost all schools in the country. 2
13. The legislative changes required for the nearest school rule, as set out in the consultation paper, are unnecessarily complicated. They include references to measuring distance from front door or back door of residence or in relation to relevant school s front door or perimeter fencing, whether there are footpaths and shortcuts through parks, public transport routes and if public road whether by mid-point or average of journey to school to and from and whether measurement is based on a standard mapping as distinct from the actual route and mode of transport the child will take which could be a combination of transport modes. This seems practically unworkable and likely to add confusion to an already complicated system for parents. 14. A necessary aspect of the proposed system is provision for an appellate process for distance disputes as the ideas outlined seem tailor-made to create disputes between parents wielding maps and metre sticks arguing over where a property's boundary lies and whether a local field constitutes a valid shortcut. Option three: quota system 15. The quota system proposed by the Minister would allow a religious school give preference to children of its own religion in respect of only a certain proportion of places. First, it is worth noting that there is no mention made of what exact percentages the Minister has in mind or whether it would be the job of individual schools to set this. 16. Second, this idea is still blatantly discriminatory and the problems already noted with the other options arise again. At this point we need to ask ourselves whether we feel it is acceptable for the State to allow even one child to be turned away from his or her local school on the basis of religion. Options one to three specifically envisage such a scenario and one wonders whether this would be contemplated by any right-thinking person if the deciding criterion were a child's skin colour rather than his or her religion. One also wonders whether the blind spot in our education system when it comes to religious discrimination relates more to our country's history than any substantial difference between discrimination on the basis of race, colour, ethnicity or religion. Option four: outright prohibition 17. The Minister outlines various sub-options under this strand. Education Equality supports sub-option one: Outright repeal of section 7(3)(c) of the Equal Status Act in respect of publicly-funded primary schools. In short, the Constitution requires that taxpayer-funded schools should not discriminate on the basis of religion this is outlined in the attached senior counsel's opinion. 18. It often seems that there is a desire to overcomplicate a simple issue. The options and suboptions presented in the consultation paper, other than sub-option one, place the rights of religious institutions over the rights of individuals. The senior counsel's opinion supplied with this submission makes clear that the right to access one's local taxpayer-funded school without religious discrimination in enrolment far outweighs any institutional right to discriminate. 19. Sub-option two states the following: Repeal of the first part of section 7(3)(c) of the Equal Status Act in respect of publicly-funded primary schools, but make provision to allow denominational schools to require parents or students to sign a declaration stating that they 3
support, respect, will cooperate with or won t disrupt the ethos of the school. 20. This sub-option is vague, offensive and probably unconstitutional. First, it is not clear how a child or family would have to behave in order to disrupt the religious ethos of a school is it only non-coreligionists to whom such a provision applies? Second, what are the consequences for a child or family who fail to cooperate with a school's religious ethos - again, one wonders who measures such cooperation and how one appeals a finding of noncooperation. Third, it is repugnant that a person should have to sign a declaration of cooperation and non-disruption in order to access a State-funded service there are already numerous measures available to school to discipline disruptive students. This provision smacks of prior restraint and an assumption of future wrongdoing, not to mention a restriction of the right to freely hold and express one s religious beliefs. A child's cooperation and non-disruption of school proceedings is taken for granted on entry a requirement to sign a declaration relating to a school's religious ethos is simply further discrimination. 21. Finally, as set out below, the Constitution explicitly upholds the right of any child to attend a school receiving public money without attending religious instruction at that school. A requirement to sign a declaration of cooperation and non-disruption of religious ethos, with all of the vagueness and uncertainty that entails, is highly constitutionally questionable. 22. The Minister's third sub-option is as follows: Repeal of the first part of section 7(3) (c) of the Equal Status Act in respect of publicly-funded primary schools, but make provision to allow minority schools to reserve a certain percentage of places for children of their religion. 23. We believe it is wrong to prioritise access to our taxpayer-funded education system on the basis of religion. We believe that no child should be turned away by their local school because they are the wrong religion. We further believe that the 'minority religion argument' for the retention of the baptism barrier is significantly exaggerated and this is set out in further detail below. Minority religions 24. The rights of minority religions are frequently raised by the Minister when he cites difficulties with removing the 'baptism barrier'. There are some points to be made on this. When discussing the rights of minorities it tends to be overlooked that non-religious people constitute a very significant minority yet their rights are entirely trampled by the baptism barrier. The baptism barrier is evident in the enrolment policy of almost every Catholic primary school in the country and those schools constitute 90% of the total. 25. Further, the vast majority of religions do not run schools in Ireland and so their adherents do not enjoy preferential school access in fact, they are at the bottom of most enrolment policies along with non-religious families. The Minister has frequently raised Islam as an example of a minority religion in need of protection. There are two Muslim primary schools in Ireland, both in Dublin, catering for a national Muslim population of almost 50,000 (according to the 2011 census). The fact is very few Muslim families will actually benefit from prioritised access while the vast majority will find themselves at the bottom of their local school's enrolment policy. 26. It is furthermore necessary to consider whether we want a segregated education system that 4
compartmentalises children into different schools according to their religion and whether encouraging balkanisation in our school system and homogeneity of religion in our taxpayer-funded schools is actually a good thing. 27. Besides all this, it does not seem that the opinion of parents of children of minority religions has been actively sought in any of this. Rather, it seems it is the religious institutions that object to integration in schools. Constitutional and legal issues 28. The following is an extract from the conclusion to the opinion of Michael Lynn SC on whether the repeal of section 7(3)(c) of the Equal Status Act 2000 would give rise to constitutional difficulties. This opinion, prepared for Education Equality, is dated 11 July 2016 and can be read in full HERE. The focus of this opinion has been addressing the issue of competing rights which may be affected by legislative action removing the ability of State funded denominational schools to discriminate against children on the grounds of religion in their admissions policies. These competing rights are the most frequently cited obstacle to ending this discriminatory practice. It is my opinion that there is no requirement for a referendum to remove the ability of denominational schools to discriminate in this manner. A proper assessment of competing rights by the Oireachtas could only lead to the conclusion that what section 7(3)(c) gives to some in terms of religious freedom, it takes away from others. When other rights such as the right to freedom from discrimination and the right to education are factored in to this assessment, it is my opinion that section 7(3)(c) constitutes an unjust and disproportionate attack on the rights of those of no religion and those belonging to marginal religions. Distinctions such as those drawn in section 7(3)(c) are only permissible if they give life and reality to the free practice and profession of religion; this cannot be said to be the effect of this provision for parent s engaging in pragmatic baptisms of their children. Therefore, I am of the view that there would be no constitutional difficulty in repealing section 7(3)(c). I note that the enactment of a limited provision allowing fully private schools that are not in receipt of public funds to operate their admissions policies as they see fit may be considered politically desirable, and would not pose the same constitutional difficulties as the current section 7(3)(c). However, I do not consider that the complete repeal of section 7(3)(c) without replacement would be constitutionally impermissible. 29. Furthermore, there are significant grounds to believe that religious prioritisation in access to school infringes EC Regulation 422/2011 which, at Article 10, provides that EU workers' children must be encouraged to engage with educational courses under the same conditions as nationals, and Member States shall encourage all efforts to enable such children to attend under the best possible conditions. Equal respect 30. Not one of the options the Minister proposes ensures equal respect for all children in their local school. Further, nothing the Minister proposes will do anything to uphold an existing constitutional right that is routinely flouted by schools throughout the country: the right of any child to attend a school receiving public money without attending religious instruction at that school. 5
31. It is the view of Education Equality that the routine and daily discrimination faced within classrooms by children of minority religions and no religion is every bit as unacceptable as the baptism barrier. There is hardly a denominational school in the country that upholds the aforementioned constitutional right not to attend faith formation lessons. In fact, it is the norm for children not of the patron's religion to be excluded during class time and told to sit separately and/or alone in the classroom during faith formation that is, 30 minutes every day. The situation is far worse during communion and confirmation years. This marks children out as different and 'other' from their earliest years and it is entirely avoidable we at Education Equality simply say that faith formation should take place at the end of the school day to allow all parents to decide if their children attend. 32. Our proposal would empower parents who are recognised by the Constitution as the primary educators of their children and would remove the de facto compulsion associated with religious instruction in the vast majority of our national schools, thereby vindicating children s constitutional rights. Conclusion 33. The Minister's consultation paper states it is important to note that any changes need only apply in respect of oversubscribed schools. In respect of all other schools, practice is to admit all comers. The Minister has repeatedly cited research showing that one in five primary schools are oversubscribed. This amounts to approximately 650 schools. It is clear that a school's level of subscription will change from year to year and that, therefore, parents of unbaptised children can never know whether their local school will apply its discriminatory enrolment policy from one year to the next. This being the case, while religious preference is allowed in any form in the enrolment policies of taxpayer-funded schools, baptism will remain the safest way for parents to give their children the best opportunity of attending the school around the corner. 34. The 'baptism barrier' does not only affect those families turned away by their local schools. It goes beyond even those families coerced by the State into baptisms of convenience. It in fact places an immeasurable burden on many families who do not baptise their children but ultimately gain a place at the local school they often spend the intervening years in a state of uncertainty, anxiety and stress that families of baptised children simply do not endure. 35. The only option supplied by the Minister that addresses the baptism barrier is option four, sub-option one. Education Equality calls on the Minister to enact that option without delay in order to vindicate the rights of all parents and children to equality and freedom of religion. Education Equality also urges the Minister to end religious discrimination in the classroom during the school day and ensure equal respect for all children. 6