Catholic Bishops lobbied the Government last June to change the law, so they could once again be allowed to discriminate against non-Catholic children in access to publicly funded primary schools.
RTE’s Emma O’Kelly reported that the Bishops said their support for divesting a small number of publicly funded primary schools to multi-denominational patronage was dependent on this happening.
This is yet another example, as Atheist Ireland has articulated for years, of why divesting some schools to different patron bodies cannot solve the injustices of our sectarian education system.
This is because multiple patronage and multiple ethos as the basis for policy is the underlying problem in Irish schools, not the solution. The Oireachtas Education Committee has already concluded that this brings about segregation of children and inequality.
Divesting some schools will not solve this. Even with the maximum implementation of the proposed Government plan of 400 multi-denominational schools and no non-denominational schools, that would still leave 85% of schools with a single denominational ethos.
Also, most areas have standalone schools, so atheist or minority faith parents in those areas would still have no choice other than to send their child to a Catholic school.
Indeed, given that the Catholic Church wants to trade off any potential divestments for a stronger Catholic ethos in the schools they retain, these parents would have no choice but to send their children to a school with an even stronger Catholic ethos.
It is not a just response to say that, in these areas, the State must give preference to the wishes of the majority of parents in a given area. The European Court of Human Rights has said the basic premise of human rights law is to protect individuals from the tyranny of the majority.
The Supreme Court in the recent Burke case said it is a foundational pillar of the Constitution that the State must have due regard for the rights of parents in the religious and moral formation of their children. That means all parents, not just those from religious majorities in particular areas.
An education system that explicitly promotes every parents specific religious belief would be impossible in practice, because you could not have that many schools in each area. It would also be undesirable as social policy, as it would be based on segregation of children because of their parents’ beliefs.
The only just solution is a publicly funded school system that treats everybody equally, that promotes neither religion nor atheism, and that leaves parents to pass on their religious or philosophical beliefs in their families and churches.
While we wait for such a secular education system, a good first step would be for the Department of Education to vindicate the constitutional right of parents for their children to not attend religious instruction in publicly funded schools. Read online…
The right to not attend religious instruction and the misuse of public funds in Irish schools
Since last year Atheist Ireland has been raising the issue of the misuse of public funds in Irish schools that do not respect the constitutional condition of state funding that children have a right to not attend religious instruction.
Following the Minister for Education’s recent misleading Dail reply about this, we have written again to the Comptroller and Auditor General and the Public Accounts Committee as follows:
This is a further follow-up to our complaint from December 2021 about the misuse of public funds in Irish schools, and to our follow-up information from February 2022 about the Burke case at the Supreme Court and May 2022 about our meeting with the Department of Education and NCCA.
On 25 May the Minister for Education Norma Foley gave a written reply in the Dail to Richard Bruton TD about this issue as follows:
The Dail Question and Answer on 25 May
Question from Richard Bruton TD
“To ask the Minister for Education and Skills if her Department has undertaken a review of the manner in which schools with religious patrons have delivered on the obligations to children for whom it has been indicated that they do not wish to participate in religious arrangements; and if she is considering issuing guidelines on the matter.”
Response from the Minister for Education Norma Foley
“Under Article 44 of the Constitution and in accordance with Section 30 of the Education Act, 1998, parents have a right to have their children opt out of religious instruction classes if they so wish. It is expected that this right will be upheld by schools on foot of a parental request.
Under the provisions of the Education (Admission to Schools) Act 2018, where schools provide religious instruction, they must clearly set out in their admission policies the school’s arrangements for students, where the parent or in the case of a student who has reached the age of 18 years, the student, has requested that the student attend the school without attending religious instruction in the school.
The manner in which any school ensures that the right to opt out of religion classes is upheld is a matter for the school concerned. Each individual school must determine the particular arrangements which are most appropriate in its individual circumstances having regard to local issues such as available space, supervision requirements and how the school concerned organises classes etc.
The right of parents to have their child opt out of religion classes applies in all schools regardless of the denomination or ethos of the school concerned.”
Article 44.2.4 of the Constitution
“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.”
When protecting the Constitutional right of children to not attend religious instruction in schools receiving public money, it is necessary to use the language in the Constitution. In particular, the right to “not attend” must not be conflated with “not participating” or “opting out”, which are used in this Dail question and reply. These ambiguous phrases have no basis in the constitution or in law, and in practice they allow schools to make children sit at the back of the religion class.
Administrative schemes must abide by the Constitution
The Minister also states that the manner in which any school ensures that the right to ‘opt out’ of religion classes is upheld is a matter for the school concerned. This is contrary to the recent Supreme Court judgment in the Burke case, which states of administrative schemes that:
“Any such a scheme must abide by the Constitution. That is the over- arching jurisdiction under which every organ of the State must act…”
“It is of the essence of good administration that the principle must be fairly clear and precise so that, in any given situation, the result should be the same, whether it is administrator A or administrator B who has taken the decision.”
It is the duty of the State to ensure that students can exercise their constitutional right to not attend religious instruction. The Department cannot leave each individual school to decide how a constitutional right should be implemented on the ground, especially when the right to ‘not attend’ is a condition of the funding of the school.
In the Burke case at the Court of Appeal the court said that:
“166. Crowley v. Ireland accords with the view articulated by Walsh J. in G v. An Bord Uchtála, that where a duty is imposed a corresponding right exists.”
The reverse of this is also true. Where a right exists a corresponding duty is imposed. And in Article 44.2.4 the duty is explicit in the phrase
“Legislation providing State aid for schools shall not… be such as to affect prejudicially the right of any child…”
In this case, parents have a constitutional right for their children to attend a school receiving public money without attending religious instruction at that school, and the State through the Minister for Education has a corresponding duty to ensure that this right is vindicated. She cannot absolve herself of this constitutional duty and delegate that to individual schools.
The Judgment in the Burke case stated:
“Administrative schemes are similar as to the level of detail. These are established either in consequence of legislation or through a decision of the Government, and address entitlements; who is within a scheme and on what conditions and subject to particularised qualifications. Both legislation and administrative schemes must, by nature, contain sufficient detail in the way of technicality and logistics as to define application and entitlement.”
Article 42.1 of the Constitution
“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.”
Section 30.2.e of the Education Act 1998
“The Minister… shall not require any student to attend instruction in any subject which is contrary to the conscience of the parent of the student or in the case of a student who has reached the age of 18 years, the student.”
Section 62.7.n of the Education (Admissions to School) Act
“62.7 An Admission Policy shall… (n) provide details of the school’s arrangements in respect of any student, where the parent of that student, or in the case of a student who has reached the age of 18 years, the student, has requested that the student attend the school without attending religious instruction at the school (which arrangements shall not result in a reduction in the school day in respect of the student concerned).”
Not attending religious instruction v not attending other subjects
Article 42.1 of the Constitution and consequently Section 30.2(e) of the Education Act 1998 are the basis for the right of students to ‘not attend’ instruction in any subject that is against the conscience of their parents. That could include Relationship and Sexuality education or indeed instruction in any subject. Read online…