The Irish Human Rights and Equality Commission has submitted its views and recommendations on the Education (Admission to Schools) Bill 2015, to inform debate on the legislation in the Houses of the Oireachtas.
The Commission welcomes publication of the 2015 Bill, which proposes measures to give practical effect to the existing right of children to be protected from discrimination in admission to school.
In submitting its recommendations to strengthen the legislation, the Commission has used its legal powers to report its views on the implications for human rights and equality. In particular, the Commission points to equity of access, parental choice, and human rights principles in respect of pluralism, inclusivity, and the best interests of the child.
In respect of education admissions and the religious exemption clause: The Commission recommends that the Equal Status Acts be amended to give effect to the principle that no child should be given preferential access to a publicly funded school on the basis of their religion. The proposed amendment could include an individualised derogation granted by the Minister for Education and Skills in the case of a specific school where refusal to admit a student is proved to be essential to maintain the ethos of the school. (Pars 15-24 Observations)
In respect of admissions policies and promoting inclusivity in schools: The Commission proposes two amendments to the new Section 62 (6) of the Education Act, which deals with the characteristic spirit and general objectives of the school.
The first amendment would require all schools to provide knowledge and information in the State-prescribed curriculum in an objective, critical and pluralistic manner that avoids indoctrination, outside of the specific context of religious instruction and faith formation classes where exemptions apply. (See Pars 27-31 Observations)
A second amendment to the new Section 62 (6) on admissions policy would require schools to have regard to the values of an inclusive school that at a minimum respects and accommodates diversity across all nine grounds contained in the equality legislation.
Additionally, the Commission recommends establishing minimum standards in relation to the nature of exemptions for students who do not want to attend religious instruction in accordance with parental choice.
In respect of the student’s connection to the school: The Commission recommends limiting the derogation prohibiting schools from using students’ connections with the school, to those cases where a sibling is currently attending the school, and removing the derogation applying to a parent who attended the school. (Pars 32-37).
In respect of the powers of designation and best interests of the child: The Commission welcomes the powers that will be afforded to the National Council for Special Education (NCSE) and Tusla, the Child and Family Agency, to designate a school for the enrolment of a specific child, where a parent has failed to obtain any placement for the child. This provision allows for the board of a school to appeal a designation.
The Commission recommends that the parent should be enabled to make an appeal when a school has been designated by NCSE or Tusla where they believe the designation is not in the best interest of the child. (Pars 38-40)
View on new migrant children and the EU Race Equality Directive: Central Statistics Office (CSO) statistics illustrate a significant proportion of people classified as ‘non-Irish’ for statistical purposes do not profess either the Catholic or Protestant religions, which are the religions of the vast majority of denominational primary and secondary schools. CSO Census 2011 reveals that of the 544,357 so called ‘non-Irish’ living in Ireland, only 282,357 – slightly more than 50 per cent – classify themselves as Catholic. The census data also reveal that the total of people with no religion, atheists and agnostics increased fourfold between 1991 and 2011 with 14,769 children being classified as having no religion. In light of these statistics, it is foreseeable that the religious exemption clause under the Equal Status Acts, and reproduced in the 2015 Bill, could place children of non-Irish or new migrant communities at a particular disadvantage when compared with children of Irish parents, in potential violation of the EU Race Equality Directive. (Par 23)
IHREC Observations on Education (Admission to Schools) Bill 2015 is available to download herehttp://www.ihrec.ie/publications/list/ihrec-observations-on-education-admission-to-schoo/
Note to Editors:
Statistics gathered by the Department of Education and Skills census carried out in the 2013–2014 academic year revealed that 80 per cent of migrant children attended only 25 per cent of schools. Additionally, where religious status coexists with ethnicity, for example in the case of Sikh or Jewish children, or if admission criteria particularly disadvantage children of a specific racial group, there is a risk that direct discrimination within the meaning of the Race Equality Directive may arise. More broadly, in the interests of intercultural relations and the promotion of tolerance and the acceptance of diversity in the State, the Commission considers that the operation of the religious exemption clause in practice may be undermining interculturalism and tolerance within schools.(Par 23, Observations)
Minimum Standards for exemptions for Students who do not wish to attend religion: The question of the conditions of participation and exemptions for students who are not of a school’s religion has been examined in a line of jurisprudence by the European Court of Human Rights. The Court has held that the State must take care that the information or knowledge included in the State-prescribed curriculum is conveyed in an objective, critical and pluralistic manner, enabling pupils to develop a critical mind particularly with regard to religion in a calm atmosphere free of any proselytism. Specifically, the European Court of Human Rights has held that exemption procedures for minority and non-faith children to religious instruction must not be unduly onerous for the parents and for the children concerned. The question of the conditions of participation after the enrolment of a student who is not of a school’s religion has arisen in both the legal case work and research work of the former Irish Human Rights Commission and the former Equality Authority. In one case communicated to the former Equality Authority, the student was required to sit in the corridor outside the religion class as the method for non-participation in religious instruction. The school settled the case following correspondence from the former Equality Authority and arranged for the student to be supervised by other teachers in their classrooms. (Pars 28, 29 Observations)
Stokes V Christian Brothers High School, Clonmel & anor: In February 2015, the Commission called on the State to address equality of access in response to the Supreme Court case of Stokes v Christian Brothers High School Clonmel & anor (‘the Stokes case’). The Supreme Court held that on the facts of the case there was insufficient evidence to suggest that a Traveller child had experienced a ‘particular disadvantage’ in accessing the school on the basis of his membership of the Traveller community. In this case, the secondary school used three admission criteria to prioritise applications including being a Roman Catholic, attending a feeder primary school and a requirement that a parent or sibling had attended the school prior to the applicant. The applicant claimed that while he satisfied the first two criteria, as a Traveller it was more difficult for him to satisfy the third criterion given the lower educational attainment and school completion rates of members of the Traveller community and he claimed that the parent rule therefore constituted indirect discrimination. The Equality Tribunal held in his favour but this decision was subsequently overturned by the Supreme Court following a series of appeals. The Supreme Court held that ‘the absence of sufficiently robust statistical materials or analysis in this case means that the decision of the Circuit Judge to find that there was particular disadvantage was wrong in law due to an absence of sufficient evidence’. Notably, the Supreme Court did not reject the premise that indirect discrimination could be an unforeseen consequence of admission policies, and it provided some important clarification in relation to the assessment of indirect discrimination under Irish law (Par 35, Observations)
The Irish Human Rights and Equality Commission is tasked with reviewing the adequacy and effectiveness of law and practice relating to the protection of human rights and equality, and with making recommendations to Government on measures to strengthen, protect and uphold human rights and equality accordingly. The Commission was established under the 2014 Act with a statutory remit to protect and promote human rights and equality, to encourage the development of a culture of respect for human rights, equality and intercultural understanding in the State, to promote understanding and awareness of the importance of human rights and equality, and to work towards the elimination of human rights abuses and discrimination.
The nine grounds of discrimination include gender, race (ethnicity and nationality) age, disability, civil status, family status, membership of the Traveller community, sexual orientation and religion.