Admissions policy in state-funded schools must reflect constitutional requirements
Dáil Éireann, Equal Status (Admission to Schools) Bill 2016, Second Stage
Education policy can throw up many opinions and preferences, some of them contradictory. But most of us agree that children benefit from meeting and getting to know others from different backgrounds and religions. Most of us agree that diversity in our schools is an opportunity for society, not something to feel threatened by.
I don’t think any member of this House would support parents being coerced to baptise their children, just to secure a school place for them. We would I hope find this offensive, both from a religious and a secular perspective. Yet most of us, certainly from the Dublin area have come across these cases.
And most if not all members would agree that local children should have access to their local schools, because local schools serve as the centre of our communities.
As society becomes more diverse, and as more people opt out of the pre-defined roles assigned and imposed by religion, our school system faces a watershed. Can it adapt and cope with the new demands that parents now make of it?
I should say at the outset that no single change in the law will meet all those parental demands. In particular, where pupil applications outnumber pupil places, the solution won’t be found simply by re-writing schools admission policies. The solution is to build more schools.
Our national school system was originally intended to be religiously mixed. However, as we know, from the start all the main churches refused to co-operate in the provision of religiously mixed education. Despite the State’s intentions as the founder and funder of the system, it became overwhelmingly a denominational system of separate provision.
And the State, in successive editions of the Rules for National Schools, increasingly recognised and even enshrined this denominational reality.
This development reached its peak in Rule 68, which dates back to 1965. In that rule, the Minister and the Department instructed our State-funded schools that: “Of all the parts of the school curriculum religious instruction is by far the most important”. Every school was instructed that a ‘religious spirit’ was to inform and vivify all its work.
My colleague former Jan O’Sullivan quite rightly revoked Rule 68 last December. It is of course no function of the State to instruct schools about the place of religion in the education they provide.
The problem now is this. We have a system of national schools that are privately owned but publicly funded, and access to those schools is decided by religion. But we still have a Constitution that envisaged something quite different.
Dating back to its foundation in 1831, the British Government had originally intended to establish a one-school system for the children of different religious beliefs. The various Home Rule Bills and the Government of Ireland Act 1920 all contained a clause to protect the rights of religious minorities in a united education system. The same clause appeared in the Anglo-Irish Treaty and in the 1922 Free State Constitution.
And the same clause appears again in Article 44.2.4 of the 1937 Constitution.
The clause says two things. The first is that legislation about State aid for schools must not discriminate between schools under the management of different religious denominations. No of us, I think, has any problem with that.
The second provision is that a child has the right to attend a school in receipt of public money without attending religious instruction at that school.
But given that, for the last 100 years, our system of national education has been de jure un-denominational but de facto denominational, in practice how is any child supposed to exercise this right that the Constitution so explicitly confers?
There is a clear tension between different constitutional provisions that impact on admissions policy for our schools. On the one hand, the Constitution makes it clear that the State is entitled to fund denominational schools and that those schools are entitled to provide religious instruction during the school day.
On the other hand, the Constitution also requires that legislation on State aid for schools must not prejudice the right of any child to attend a State-funded school while opting out of religious instruction.
This much has been stated in the Supreme Court: if a school accepts public funds then any child, no matter what his or her religion, is entitled to attend that school and has the right not to attend any course of religious instruction at the school.
But I don’t think we as legislators have yet come to terms with what this means – what it imposes on the design of our education system.
The Constitution Review Group reported in 1996 and pointed out that Article 44.2.4 had the potential to give rise to difficulties.
“Suppose that there is one small national school (and therefore in receipt of public funds) which is run by a Catholic religious order and where the school population heretofore consisted exclusively of Catholic pupils. Members of the Islamic community move into the area and have no realistic alternative but to send their children to the local national school. The parents of these children not only insist on withdrawing their children from formal religious instruction but also object to the Roman Catholic ethos which permeates instruction in other subjects in the school and is also reflected in, for example, religious pictures and school holidays for religious feast days. Must a school which is in receipt of public moneys accede to these objections, or may it give preference to the wishes of the majority of parents who wish the school to retain its Catholic ethos?”
But, if religious preference is not permissible, then how could a school, particularly one established to cater for a minority, protect itself against being overwhelmed by those of other persuasions?
Our task as legislators is to strike an appropriate balance between the right of a school to preserve its denominational ethos and the right of a child to attend a State-funded school and to avoid religious instruction there.
In other words, when a denominational school accepts State funding, it must accept that this aid is not given unconditionally.
The State-funded school must be prepared in principle and in practice to accept pupils from other denominations or none, and to provide separate secular and religious instruction.
This Bill is aimed to achieve this effect in law.
I should acknowledge at once that our Bill does not go as far as some commentators and interest groups would like. I want to spell out clearly why.
Discrimination in the provision of education is generally prohibited by the Equal Status Acts but there is an exemption for denominational schools. Section 7 (3) (c) of the 2000 Act provides that a school does not discriminate where it admits one child in preference to another, on religious grounds.
Some campaigners call for a straightforward repeal of section 7 (3) (c) – to end the exemption for schools from our anti-discrimination laws. The call has a certain appeal. But I believe this is seriously flawed as a solution.
Suppose we amended the law to outlaw a discriminatory admissions policy for State-funded schools.
Suppose we insisted that every school must be open first and foremost to its neighbouring children – that students had to be enrolled on the basis of proximity rather than religion.
Suppose there are two national schools in a particular area, one Catholic and one Presbyterian. Both schools will no doubt protest against the change in the law but both will comply with it.
At the end of the admissions process, simple demographics dictates that the Catholic school will still end up with a largely Catholic student population.
The problem is that so also will the Protestant school.
If we changed the law this way, we would have to apply it equally and in a non-discriminatory way to schools of all Christian denominations and all minority faiths. The ironic thing is that, even though those who want a change in the law are chiefly targeting Catholic schools, it is only Catholic schools that would survive the impact of such a change.
A repeal rather than amendment of section 7 (3) (c) would spell a more or less immediate end to participation in our education system by the Church of Ireland and the Methodist and Presbyterian Churches, as well as the Jewish and Islamic faiths.
To put it simply, this proposal might well appeal to ex-Catholics but it takes no account of non-Catholics.
And that must make it constitutionally dubious. Since the public funding of denominational schools is contemplated by the Constitution itself, any pre-conditions that are imposed by the State in order to receive that funding could not be such as to destroy the denominational character of schools.
If school admission policy was required to be entirely neutral on religion, the smaller the faith the greater the risk that its schools would entirely lose their denominational character – a character the Constitution entitles them to have.
Even if we were constitutionally entitled to do so, we in the Labour Party do not want to see an end to minority faith participation in our schools and so our Bill does not seek to destroy the ethos of denominational schools.
But our Bill does seek to impose conditions for State funding that reflect the requirements of the Constitution.
It falls to us to propose this Bill because the Government has already made clear that they have no intention of legislating in this area.
At present, the law says that a school can absolutely refuse to admit a child on religious grounds if the school can prove that the refusal is essential to maintain the school’s ethos. That would be a very hard case to prove and it isn’t used in practice. So we don’t propose to change this provision.
The Act also says that any denominational school can give ‘preference’ to children of its own denomination. There is no test of necessity and no proof required at all. And this exemption applies to every school, whether or not State-funded. Such a preferential admissions policy might, for example, provide for admissions of:
- Catholics of the parish, then
- Catholics from outside the parish, then
- Local non-Catholics.
A “Religious First” rule for enrolling students requires the production of a baptismal certificate or equivalent as a condition for admission. As a result, non-baptised children can be turned away, especially in urban areas where schools are oversubscribed.
This is the aspect of the present law that sanctions a preferential admissions policy, admitting students from outside the school’s catchment area in preference to those of a different religion or none who live in the neighbourhood.
Such policies run the risk of depriving more and more non-Catholic children of education in their own neighbourhoods.
So, the purpose of this Bill is to amend the Equal Status Act and redress the imbalance between the right to maintain denominational schools and the rights of children to receive a secular education in a State-funded school.
Under our proposals, a denominational school’s preference for one religion would only be accommodated to the extent that it is demonstrably needed, by reference to actual circumstances, in order to meet the demand for denominational education in its catchment area, in accordance with the conscience and lawful preference of parents.
Once that local need is met, the school cannot continue to prefer its own co-religionists, to fill up the remaining places.
I should make it clear that we intend to allow each school to define its catchment area under its statutory enrolment policy. Not every catchment area is equal in size. A Catholic school may well be a parish school. A Protestant school may well serve a smaller population – but dispersed over half the county.
There is another important change made by our Bill. It states that, in deciding whether an admission policy or a refusal is proved to be ‘essential’, due regard must be had to the constitutional right of any child to attend a State-funded school without attending religious instruction, and also to the concomitant obligation that every such school should be so organised as to enable that right to be enjoyed.
If the local State-funded school is the only reasonably available school and it is a denominational school then, notwithstanding its religious ethos, the secular and religious instruction in that school must be severable, so as to enable a child to attend that school without receiving religious instruction. Otherwise, the school should not qualify for public money.
I conclude by referring again to the report of the Constitution Review Group. This was an eminent body that included two former Attorneys General, and a Director General of that Office, as well as two future superior court judges. On this issue, the group concluded bluntly that the denominational character of the school system does not accord with the Constitution: “The situation is clearly unsatisfactory. Either Article 44.2.4 should be changed or the school system must change to accommodate the requirements of Article 44.2.4.”
Faced with the choice between amending either the Constitution or the school system, they did not recommend a change to this part of Article 44.2.4. First, they pointed out that the provision was a limited exception to the general constitutional prohibition on the State endowment of religion.
Second, they argued that, if Article 44.2.4 did not provide safeguards for minorities, the State might be in breach of international obligations.
Finally, they argued that an amendment would be a retrograde step in the context of Northern Ireland and would send the wrong signal concerning pluralism in the State.
We in Labour accept these arguments. We are not proposing an amendment to the Constitution. But, if the Constitution is not to change, then our education system must change, to align itself more closely to what our Constitution requires.
Therefore, denominational education providers must accept that public money is not given unconditionally. The Constitution imposes requirements. It requires that every publicly-funded school must be prepared in principle to accept pupils from denominations other than its own and to have separate secular and religious instruction.
That is not just Labour’s position. It is also the position, or very close to it, of most of the parties in the Dáil.
In the spirit of new politics, it is open to the majority in the Dáil this week to progress this Bill through second stage and send it into committee, where we can continue the debate, reach consensus and, finally, make an agreed improvement to the law.
I don’t claim that the drafting of this Bill is perfect, or that it covers every conceivable contingency, but second stage debate is about accepting the principles and policies of a Bill.
If it is accepted, we can all contribute to improving the Bill in Committee.
I therefore commend this Bill to the House.