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The Supreme Court has ruled in the Burke case that the Department of Education exceeded its jurisdiction, by disregarding the constitutional rights of home-schooled students when it was implementing a new leaving certificate scheme during the Covid pandemic.
The Department had argued in the case that its only obligation was not to destroy the Constitutional right to home school your child.
This ruling strengthens Atheist Ireland’s legal opinion from 2020, that the Department is breaching the constitutional rights of students to attend State-funded schools without attending religious instruction.
This ruling also strengthens our argument that the Department of Education is disrespecting the inalienable constitutional right of Atheist, Humanist and secular families in relation to the religious and moral education and formation of their children.
The Supreme Court in the Burke case made a distinction between the Government policy decision on how to conduct the leaving certificate, and the administrative scheme that the Department of Education put in place to implement that policy decision.
The Supreme Court ruled in the Burke case that

“43… [The Government’s] decision did not seek to deprive home-schooling parents or their offspring of any right. There was therefore no clear disregard of the Constitution by the Government…
45. Policy, however, as declared by Government, must be turned into an administrative scheme.… Any such a scheme must abide by the Constitution. That is the over-arching jurisdiction under which every organ of the State must act…
By implementing a scheme which left those who were home-schooled with no possibility of advancing to third level education in 2020, the Department acted outside what the Constitution required.”

The case that the Department of Education is disregarding the constitutional rights of students to not attend religious instruction is even stronger than the arguments in the Burke case because it is written into the Constitution. The Department of Education is also obliged to respect the inalienable right of parents in relation to the religious and moral education of their children. The Burke case has strengthened these rights.
In the Burke case, the Court first had to determine the extent to which the contested right regarding the leaving certificate existed in the Constitution. By contrast, the right to not attend religious instruction is explicitly written into the Constitution.
The Burke case judgment says all rights in fundamental law are simple rights put in simple language. By contrast, the Department tries to redefine the terms religious instruction, education, and formation in ways that contradict the Supreme Court in the Campaign case in1998.
In the Burke case, the Department put in place the administrative scheme that was being challenged. By contrast, the Department simply asserts that it is up to each school how it deals with the Constitutional right to not attend religious instruction.
The Department of Education policy through the Primary School Curriculum (1999) and Syllabus Religious Education at second level supports indoctrinating students from non religious backgrounds into a religious understanding of the world and relationships.
The Supreme Court in the Burke case stated that:

“An overall saver in the constitutional text is that the State, in providing for free primary education and in endeavouring to assist post-primary education in various forms, have “due regard”… for the rights of parents, especially in the matter of religious and moral formation.”
This provision reflects a concern for upholding parental authority; a foundational pillar of the Constitution that accords with Article 41 recognising the family as “the natural primary and fundamental unit group of” Irish society. Hence, society is built around the family.”

The Department of Education simply ignores the Constitutional parental authority of non religious parents and is assisting private bodies to indoctrinating their children into a religious understanding of the world.
The Department’s attempts to arbitrarily redefine Constitutional terms goes against the Burke judgment’s reference to simple rights put in simple language. The Constitution refers to Religious Education (Article 42.1), Religious Formation (Article 42.4), and Religious Instruction (Article 44.2.4). The Department of Education ignores the Supreme Court judgement in the Campaign case in 1998 and has simply redefined Constitutional rights.
The Department’s abdication of administrative responsibility to individual schools also goes against the Burke case judgment, which states that:

“7… Both legislation and administrative schemes must, by nature, contain sufficient detail in the way of technicality and logistics as to define application and entitlement…
10… Administration assumes that there is already in existence a principle and that all the administrator has to do is to establish the facts and circumstances and then to apply the principle and the result should be the same whether it is administrator A or administrator B who has taken the decision.”

This administrative principle cannot be adhered to by simply telling each school that it is up to them how they implement the right to not attend religious instruction. Indeed, what is happening is the opposite of this principle. The Department is giving private bodies the power to make policy on how to implement a constitutional right.
In practice the situation is even worse, because Atheist Ireland has made the Department aware, with supporting evidence, that most schools do not vindicate this Constitutional right, and the Department refuses to do anything about this.
Not only do most schools not vindicate this Constitutional right, they do not even adhere to Section 62.7(n) of the Education (Admission to Schools) Act 2018, which 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. Atheist Ireland has made the Department aware of this, with supporting evidence, and the Department refuses to do anything about it. Read more…

The Constantly Shifting Ethos of ETB Schools and Colleges

The Department of Education has told Atheist Ireland that the Minister for Education, Joe McHugh, gave incorrect information about the patronage of ETB schools, which we reported on in an article on 10 January. Minister McHugh was answering a parliamentary question on 6 December 2019 from Ruth Coppinger TD.
It is becoming impossible to keep up with the repeated changes in how the State officially describes the ethos of ETB schools. These schools are supposed to be the State-run alternative to the denominational, mostly Catholic, schools that dominate the education system.
But the official ethos of ETB schools and colleges keeps shifting between multi-denominational, denominational, Catholic, and now inter-denominational which means Christian. Meanwhile, in reality, Catholic practices are largely normalised within the life of these schools.
Figures from the Minister
The Department now says that a clerical error resulted in the Minister saying that the 61 ‘designated’ Community Colleges (which have legal agreements with Catholic bodies) are denominational in ethos, and that 80 out of the 82 Community Schools are Catholic (run jointly with Catholic bodies), with the other two being multi-denominational (run jointly with Educate Together).
The Department now says about the 61 ‘designated’ Community Colleges that 55 are inter-denominational, 3 are multi-denominational, and 3 are Catholic. The Department now says about the 82 Community Schools that 78 are inter-denominational and 4 are multi-denominational.
Neither these new figures, nor the figures they replace, are consistent with repeated statements by Ministers for Education, or with Circular Letter 0013/2018, all of which say that ETB Community Colleges and Schools are multi-denominational in ethos. In 2007 the State actually told the Council of Europe that VEC schools and Community Colleges were non-denominational (page 16 GVT/COM/II(2007)001). In 2018 the WRC found that a non designated Community College had a Christian ethos which would put it into the category of inter-denominational not multi-denominational.
If either the denominational, Catholic, or now inter-denominational figures are correct, then any parents who are living in an area where there is only a ‘designated’ ETB Community College, or an ETB Community School, do not have access to even multi-denominational education for their children.
The Internal ETBI Report
Nor is any of this shifting categorisation consistent with an internal ETBI report, published by the Irish Times in October 2019, which vindicated what Atheist Ireland had been saying for years about the reality of the teaching of religion in ETB schools.
Nessa White, ETBI’s general secretary, acknowledged the difficulties the sector faced in defining what is meant by ‘multi-denominational’ in the ETB schools and colleges which have legal agreements with religious bodies.
But the internal ETBI report found that even in many of the 182 ‘non-designated’ ETB Community Colleges, which do not have any such legal agreements, Catholic practices are largely normalised within the life of the school. Many have graduation Masses, symbols from the Catholic faith only, and visits from Catholic religious representatives.
The Minister for Education, Joe McHugh, then clarified that the 61 designated ETB Community Colleges are denominational, and that 80 of the 82 ETB Community Schools are Catholic, contradicting the repeated previous statements that ETB schools are multi-denominational.
Now we have yet another set of figures, saying that most of the 61 Community Colleges are inter-denominational rather than either denominational or multi-denominational, and that most of the 82 Community Schools are inter-denominational rather than Catholic.
The Research “That’s how it works here‘: The place of religion in publicly managed second-level schools in Ireland (O. McCormack, J. O’Flaherty, B. O’Reilly, J. Liston)The internal ETBI report cited McCormack et al (2108) questioning how the ETB sector can juxtapose ‘inclusion’ as a ‘core dimension of the characteristic spirit for non-designated schools, within a context where one religion is frequently given greater recognition than other (or no) religions.’
The McCormack et al report (‘That’s how it works here’: The place of religion in publicly managed second-level schools in Ireland) stated in its conclusions: Read more…

Shifting ethos

Report findings

The vast majority of State-funded Irish primary schools have a Catholic ethos, but most parents do not think having a Catholic ethos is important

When choosing a secondary school, two out of every three parents do not think having a Catholic ethos is important

When choosing a primary school, nearly six in ten parents do not think having faith formation in school is important

When choosing a secondary school, two thirds of parents do not think having faith formation in school is important

58% of parents do not think religious instruction is valuable in a primary school

Calling concerned teachers