AS 96% OF Irish primary schools are religious-run, enrolment policies are coming under more and more scrutiny each September. In this three-day special series, TheJournal.ie explores the role religion plays in our classrooms and what’s being done in the sector.

Across the globe, parents begin to worry about the schooling of their children from the moment they are born (and sometimes even before that).

For some mothers and fathers in Ireland, decisions around their children’s education are further complicated by the links between school and religion, the country’s equality and discrimination laws and the Constitution.

As it stands Ireland’s constitutional provisions around admission policies in schools contradict each other.

The Constitution says that a child has the right to attend a State-funded school even if they are opting out of religious instruction. Article 44.2.4 reads:

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.

However, while discrimination in schools is generally prohibited – there is one exemption for denominational schools in the 2000 Equal Status Act.

Section 7.3 (c) states that a school does not discriminate where it admits one child in preference to another, on religious grounds.

This means that schools run under the patronage of religious organisations are entitled to exclude a child of any other religion, if a member of its own faith is looking for a place in that school.

Come September, if there are 30 places in a Catholic school up for grabs and 30 Catholic and five non-religious children are looking to enrol, the school is entitled to choose the 30 Catholic children and reject the other five. (They would not be allowed, however, to reject the five if only 25 Catholic children were looking to enrol).

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So, if a child that is not baptised applies to a school with a religious patronage – that child can be categorised based on not being baptised and will be far further down the list compared to a child that is baptised in the faith of that school.

“You can discriminate,” is the bottom line, according to David Kenny, an assistant professor in law at Trinity College Dublin.

Speaking about the complexity of the issue to TheJournal.ie, he explained that religious institutions have certain entitlements to manage their own affairs however they like.

“At the same time there are also constitutional provisions that relatively clearly say you shouldn’t discriminate against people on religious grounds,” he said.

Even though you shouldn’t discriminate against people on religious grounds –  you can discriminate, including favouring one group in particular circumstances, if it is to enable the practice of that religion.

“Essentially if a discrimination is really necessary, to ensure a particular practise, then it’s allowed and so that sort of balance has resulted in the current situation which is allowing essentially a very broad discrimination on the basis of ethos.”

Bruton’s new bill 

Last month, Education Minister Richard Bruton launched his Admission to Schools Bill, claiming it will ban waiting lists, admission fees and explicit discrimination.

While certain types of discrimination are addressed among the new measures, the question of categorisation by religion will not be tackled by the Bill.

EQUATE is a children and family rights organisation which works for greater equality in schools. Discussing the proposed legislation, director Michael Barron said:

It is silent on the critical issue of religious discrimination in the admissions policies of most State-funded schools. The so-called ‘baptism barrier’, which allows the vast majority of Irish national schools to discriminate against children based on their religion, is not addressed in this bill.

However, the legislation will require all schools to publish their admissions policies which are to include details of the provisions for pupils who decline to participate in religious instruction.

Kenny said the new Act does not deem the current admission policies as discrimination:

It does not change the Equal Status Act 2000, so the ‘baptism barrier’ will remain intact and schools can continue to discriminate on religious ethos grounds.

April Duff of Education Equality Ireland added, “It doesn’t address religious discrimination in schools.

It makes there be transparency in admissions, but transparent or hidden discrimination isn’t any better.

“The Bill effectively skirts around the edges, in that it would seem it fails to address the most pressing problem in school admissions: discrimination on the grounds of religion in accessing places.”

Direction of the United Nations

Tackling the high rates of religious run schools and the problems of enrolment this creates for non-religious parents has been on the government’s to-do list for quite a while.

Back in 2012 previous Education Minister Ruairi Quinn announced a divestment plan, which requested Catholic institutions (which run 90% of primary schools) to assist in changing patronage and creating greater choice.

The first phase hoped to change the patronage of around 50 schools. However, so far only eights schools have actually been created as part of the divestment process.

This has been met with widespread criticism with director of EQUATE, Michael Barron describing how, “The pace of change in the area of school admissions has been frustratingly slow.”

The UN Human Rights Committee expressed its concerned about Ireland’s slow progress in establishing non-denominational schools, a report on the International Covenant on Civil and Political Rights stated:

The committee is concerned… about the slow progress in increasing access to secular education through the establishment of non-denominational schools, divestment of the patronage of schools and the phasing out of integrated religious curricula in schools accommodating minority faith or non-faith children.

However, Kenny explained that the UN is making this assessment based on international human rights standards but that in terms of a domestic situation it doesn’t have a direct bearing in legal terms.

“You can’t rely on those international instruments in a direct way. Though it’s a very important statement –  it’s mostly of political rather than legal use.

If our State can’t come up with any good solutions then we will continue to be in breach of our obligations.

Two sets of conflicting rights 

Kenny also explained that, constitutionally, there are two sets of rights in conflict regarding religion education in schools and that “not everyone’s rights can win”.

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“You have the rights of parents who wish to get their children into primary schools being discriminated against because they aren’t the right religious status. And there are the education institutions and the parents – who are being served by them and getting preferential admission – whose rights are also at play.

If that’s the situation and you have multiple sets of conflicting rights that are in a zero sum clash, then the State and the Oireachtas legislating in that area has very wide discretion to balance those rights.

He added that there would only be a constitutional problem with the legislation if the balance struck was very unreasonable to one party and put “an overwhelming burden on one set of rights”.

Essentially it’s a higher standard than you would normally face if you were trying to challenge a piece of legislation because of the conflicting rights at play.

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Chairperson of Atheist Ireland, Michael Nugent told TheJournal.ie, ”The State will have to recognise its obligations under human rights law and stop discriminating against its own citizens. You can’t have half measures in this, ultimately the laws are going to have to catch up with reality.

The people are no longer in the control of the Catholic Church the way they used to be but the laws are still in place from when the Catholic Church did have control over the people so the State and the laws and the constitution have to catch up with the people and put in place laws that respect everyone’s rights equally.

Is this constitutionally acceptable?

Ultimately, while Bruton’s Bill has been widely welcomed – it seems it doesn’t do anything to clarify the contradiction that surrounds the religious discrimination in our schools’ admissions policies.

EQUATE has published legal advice stating that there are no constitutional issues in amending Section 7.3 (c) of the Equal Status Act.

However Kenny stated, “If push came to shove and someone challenged it – the likelihood is the courts would say it’s constitutional to have this discrimination.” 

While he warned that “it’s very difficult to say any of these things with certainty”, Kenny concluded that “the current situation probably does pass the test for constitutionality”.

Read: ‘Like most of my friends, I baptised my children so they could go to school’: The anger of Ireland’s non-religious parents>