State funding of Catholic-run schools comes with constitutional conditions that are ignored
With the attitude of the Catholic bishops over divesting schools, you could be forgiven for believing that the Irish Constitution explicitly sanctioned the funding of Catholic-run schools and without any conditions.
The reasons that there are so many Catholic schools is because of religious privilege and the failure of the state to comply with the Irish constitution. The Constitution does not say that the state must fund Catholic schools and put in place laws that discriminate against minorities in those schools.
Article 42.4 sanctions state funding of privately run schools. However, it obliges the state to endeavour, and only that, to fund these schools.
“42.4 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.”
There are also constitutional conditions to that funding: the state must have due regard for the rights of parents in relation to religious and moral formation and students have a right to not attend religious instruction. In practice, the state ignores these Constitutional conditions and leaves it up to each school to implement them according to their own ethos.
The Supreme Court in the recent Burke case has reaffirmed the rights of parents in relation to Article 42.4. Article 42.4 puts a constraint on the state in relation to funding schools. They said that the rights of parents with regard to the religious and moral formation of their children is a foundational pillar of the Constitution and must be protected. That foundational pillar is a condition of state funding alongside the right to ‘not attend’ religious instruction under Article 44.2.4.
The Supreme Court stated in the recent Burke case that:
“It is clear that a right inures to the family under Article 42.1 of the Constitution to be the “primary and natural educator of the child” and the State is required “to respect the inalienable right and duty of parents to provide … for the religious and moral, intellectual, physical and social education of their children.” …
Article 42.4, in requiring the State to provide for “free primary education”, also places an endeavour, but only that, before the State “to supplement and give reasonable aid to private and corporate educational initiative” and “when the public good requires it” towards “other educational facilities or institutions”.
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.”
All parents have constitutional rights in relation to the religious and moral education and formation of their children. The state only views Article 42.4 as an obligation to fund Catholic education and has never given any priority to the conditions to that funding which are a foundational pillar of the constitution.
As well as this, there is the explicit condition under article 44.2.4 that children have the right to attend publicly funded schools without attending religious instruction in those schools. This condition of funding is also routinely ignored.
“44.2.4 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.”
The reason that there are so many Catholic-run schools, and the reason that minorities suffer discrimination in them, is because of religious privilege and not the Constitution. Atheist Ireland will continue to campaign for the constitutional rights of minorities.