Atheist Ireland submission to Department of Education on school enrolment
This is Atheist Ireland’s submission to the Department of Education’s discussion paper on a regulatory framework for school enrolment, submitted to the Department in October 2011.
2. Discrimination and Human Rights
3. The European Convention
4. The Education Act 1998
1.1 The Education Policy of Atheist Ireland is based on the human right to be educated without being indoctrinated with religion and to be free from proselytism. This policy is based on international human rights law and we welcome the opportunity to make this Submission to the Discussion Paper on a Regulatory Framework for School Enrolment.
1.2 In a speech on the 6th of October The Minister for Justice Alan Shatter said the following to the United Nations Human Rights Council [i]:- “Before I say something about our programme I want to emphasise that our commitment to human rights is based on the bedrock principle that governments, no matter where they are in the world, must always act with the honest intention of respecting the rights of the individual and human dignity. It is our belief that it is a universal human-rights requirement that government must act toward each person on the basis, first, that he or she has an irreducible, non-tradable, intrinsic value and, second, that he or she has a sovereign right and responsibility for achieving an authentic life of character and value for himself or herself consistent with others having a similar right. And so it is never acceptable for any government to treat national or religious or ethnic minorities as inferior; or to discriminate against women or gay men or gay women; or to discriminate against children and to fail to recognise their vulnerability; or to exclude disabled persons from inclusion; or to repress freedom of expression because it fears or disagrees with the speakers’ opinion save where such opinion constitutes incitement to hatred. And, of course, it is never acceptable for government to allow genocide, rape or child sexual or physical abuse; or women to be treated as second class citizens; or human neglect through indifference; or individuals to be targeted and pilloried because of their race, colour, religion or national or ethnic origins or identity. On the question of human rights, there is no room for moral relativism or selectivity – respect for dignity and human rights that secure that bedrock value is the incontestable baseline of decent politics everywhere. It is also crucial that states which ask human rights questions of others stand on a sound foundation of protecting the human rights of their own citizens. This is crucial to ensure that credibility attaches to questions put to others and so that they are not simply perceived as opportunistic political positioning on the chessboard of international politics. In our programme for Government we committed ourselves to forging a new Ireland, built on fairness and equality.”
1.3 Despite the recent words of the Minister for Justice at the UN, Section 7 – 3 (c) of the Equal Status Act 2004 sanctions the abuse of the Human Rights of minorities in the Irish Education system.
- It sanctions religious discrimination in access to education in order to uphold the religious ethos of schools.
- It treats minorities as inferior and not worthy of respect in a democratic society.
- It treats minorities as second-class citizens and not worthy of equality and freedom from discrimination in access to education.
- It discriminates against children because of their parents non-religious convictions or because their parents belong to a religious minority.
- It fails to ‘respect’ the philosophical convictions of secularists who are opposed on moral grounds to religious discrimination.
- It undermines the dignity of the human person.
- It is not directed to the strengthening of human rights and fundamental freedoms.
￼2. Discrimination and Human Rights
2.1 In Ireland minorities are coerced by force of circumstance to send their children to schools that can legally discriminate in access. The majority of schools at both primary and second-level in Ireland are religious schools and mostly Catholic. At primary level 97% of schools are religious. Section 7 3 (c) of the Equal Status Act sanctions religious discrimination in enrolment policies:- “(3) An educational establishment does not discriminate under subsection (2) by reason only that— (c) where the establishment is a school providing primary or post-primary education to students and the objective of the school is to provide education in an environment which promotes certain religious values, it admits persons of a particular religious denomination in preference to others or it refuses to admit as a student a person who is not of that denomination and, in the case of a refusal, it is proved that the refusal is essential to maintain the ethos of the school.”
2.2 There is no fairness and equality in Section 7 3 (c) of the Equal Status Act. This Act treats minorities as second class citizens and disregards their human rights.
2.3 “ the permissibility of religious discrimination in enrolment to state-funded schools may be regarded as granting denominational schools a capacity to arbitrarily interfere in the religious choices of individuals – a capacity which by itself, even in the absence of the exercise of this interference in the form of a denial of enrolment, may require such individuals to narrow and distort the scope of their religious choices, as well as performing self- censorship and ingratiation, in order to apprehend and avoid this interference. In concrete terms, parents living in a community where only denominational schools, or denominational schools of a particular kind are available, may have to conform to a certain religious affiliation in order to secure enrolment for their children.” (attached) Religious Freedom and the ‘right to discriminate’ in school admissions context: a neo republican critique. Daly & Hickey, October 2011. Legal studies 2011 DOI: 10.1111/j. 1748-12IX.2011.60204.x (page 23)
2.4 The UN Human Rights Committee in its General Comment No. 31 says that states have an obligation to protect individuals not just against violations of Covenant rights by its agents, but also against acts committed by private person or entities that would impair the enjoyment of Covenant rights in so far as they are amenable to application between private person or entities [ii].
2.5 The Irish state fails to protect some of its citizens from the acts committed by private bodies. It has put in place legislation that enables private bodies to undermine the human dignity of some of its citizens and non-citizens by a law that sanctions discrimination in access to education.
2.6 Discrimination in access to education is forbidden under human rights law. The state by ratifying various UN and the European Convention on Human Rights has already agreed to guarantee freedom from religious discrimination in access to education and has agreed to protect the human rights of minorities. Experiencing discrimination at an early age is not conducive to the aims of an education based on human rights. How is the Irish state in ￼compliance with its human right obligations when it provides for the education of minorities in schools that discriminate in access on religious grounds?
2.7 Article 26 of the Universal Declaration of Human Rights that “education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.”
2.8 Article 13 (1) of the International Covenant of Economic, Social and Cultural Rights adds to Article 26 of the Universal Declaration in three ways: “education shall be directed to the human personality’s “sense of dignity”, it shall “enable all persons to participate effectively in a free society”, and it shall promote understanding among all “ethnic” groups, as well as nations and racial and religious groups. Of those educational objectives which are common to article 26 (2) of the Universal Declaration of Human Rights and article 13 (1) of the Covenant, perhaps the most fundamental is that “education shall be directed to the full development of the human personality”.
2.9 Freedom from discrimination is part of the human right to education. Discrimination in access to education will never strengthen respect for human rights and fundamental freedoms. The prohibition on discrimination is subject to neither progressive realisation nor the availability of resources. It is an absolute right. (United Nations General Comment on Article 13 para 31 of the ICESC, The right to education (Art.13): 08/12/99. E/C.12/1999/10).
2.10 Religious discrimination undermines the dignity of the human person and teaches children that not every human being is worthy of respect in a democratic society. In Ireland the state sanctions religious discrimination against minorities. It puts the religious education of the children of the religious majority in a given area ahead of the right of minorities to be free from discrimination and their right to freedom of religion and belief.
2.11 Article 42.3.1 of the Irish Constitution states that “The State shall not oblige parents in violation of their conscience and lawful preference to send their children to schools established by the State, or to any particular type of school designated by the State.” Despite Article 42.3.1 of the Irish Constitution, minorities seeking secular education for their children are obliged to send their children to schools in violation of their conscience and lawful preference as they simply have nowhere else to go. In Ireland minorities must make the choice between a religious education for their children or no education at all.
2.12 “Although it would plainly be impossible for all citizens to ever have access to schools specifically reflecting their beliefs – a fact which the Constitution specifically envisages the satisfaction of certain parents’ interest in accessing state-funded schools reflecting their beliefs in an uncompromised way is nonetheless regarded as ‘necessary’ to their religious freedom. How may it be regarded as ‘necessary’ to the religious freedom of some citizens that they attend state-funded schools specifically attuned to their beliefs in a more or less uncompromised way, but not ‘necessary’ to the religious freedom of others, who are not similarly accommodated in this way, that they can attend state-funded schools without discrimination on the basis of their beliefs?” Religious Freedom and the ‘right to discriminate’ in school admissions context: a neo republican critique. Daly & Hickey, October 2011. Legal studies 2011 DOI: 10.1111/j. 1748-12IX.2011.60204.x (page 15)
2.13 Certain parents’ interests in Ireland are those of the Catholic majority in a given area. The UN has stated that the principle of equality sometimes requires state parties to take affirmative action in order to diminish or eliminate conditions which cause or help to perpetuate discrimination prohibited by the Covenant (International Covenant on Civil & Political Rights) [iii]. The Irish state has done the opposite, it has put in place legislation that enables private bodies to discriminate and deny minorities their human rights in the education system.
2.14 The UN has already raised concern with regard to the Irish education system under Article 26 (equality before the law) and Article 2 (non-discrimination) of the International Covenant on Civil & Political Rights [iv]. 12. While article 2 limits the scope of the rights to be protected against discrimination to those provided for in the Covenant, article 26 does not specify such limitations. That is to say, article 26 provides that all persons are equal before the law and are entitled to equal protection of the law without discrimination, and that the law shall guarantee to all persons equal and effective protection against discrimination on any of the enumerated grounds. In the view of the Committee, article 26 does not merely duplicate the guarantee already provided for in article 2 but provides in itself an autonomous right. It prohibits discrimination in law or in fact in any field regulated and protected by public authorities. Article 26 is therefore concerned with the obligations imposed on States parties in regard to their legislation and the application thereof. Thus, when legislation is adopted by a State party, it must comply with the requirement of article 26 that its content should not be discriminatory. In other words, the application of the principle of non-discrimination contained in article 26 is not limited to those rights which are provided for in the Covenant [v].”
2.15 The recent United Nations Rapporteur’s Digest on Freedom of Religion or Belief states: 56. Another caveat concerns situations in which private denominational schools have a de facto monopoly in a particular locality or region, with the result that students and parents have no option to avoid school education based on a denomination different from their own religious or belief conviction. In such situations it falls upon the State, as the guarantor of human rights, to ensure that freedom of religion or belief is effectively respected, including the right of students not to be exposed to religious instruction against their will as well the right of parents to ensure a religious and moral education of their children in conformity with their own convictions. [vi]
3. The European Convention on Human Rights
3.1 The prohibition of discrimination under Article 14 of the European Convention on Human Rights states that “the enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” Article II of Protocol 1 (the right to education) of the European Convention obliges the state to guarantee a right of access to educational institutions existing at a given time. Yet the Irish state has taken positive steps to deny minorities’ access to education without discrimination while at the same time claiming the Irish education system is compatible with all their Human Rights obligations.
3.2 The European Convention on Human Rights Act 2004 is applicable only to ‘organs of the state’. The state has ceded control of the education system to the interests of private bodies [vii]. Schools in Ireland are not classed as ‘organs of the state’. The state ‘provides for’ the education of minorities through private bodies and it then enables those private bodies to discriminate in access to education.
3.3 In the Lautsi V Italy case (March 2011), the European – Court emphasised that the supporters of secularism are able to lay claim to views attaining the level of cogency, seriousness, cohesion and importance. These are convictions that are worthy of respect in a democratic society. They are views that must be regarded as “philosophical convictions” within the meaning of the second sentence of Article 2 of Protocol No 1 (the right to education). These convictions are not incompatible with human dignity and do not conflict with the fundamental rights of the child to education [viii]. This right to respect under Article II of Protocol 1 is an absolute right and not one that can be balanced against the rights of others [ix].
3.4 It is difficult to understand how the state can claim it respects the secularist viewpoint when it provides for the education of their children in schools that discriminate on religious grounds.
4. The Education Act 1998
4.1 The Education Act 1998 does not oblige schools in their enrolment policies to write down exactly what their ethos is. Schools are not required to inform non co-religionists where exactly they are integrating their ‘characteristic spirit’ (ethos) into the state curriculum and the general milieu of the school despite having the legal right to refuse access in order to uphold it.
4.2 Some schools require parents not to challenge the school ethos as a condition of access and they still do not write down exactly what their ethos is [x]. Respect, diversity and pluralism in Ireland are not based on human rights and the dignity of the human person but in the majority of cases on the education philosophy of a particular religious body.
4.3 Article 8 of the European Convention guarantees private and family life. Many parents do not wish to identify themselves as belonging to one or other group in society in order to access an education for their child. School enrolment polices ask the religion question in order to discriminate, not to celebrate diversity in an atmosphere of mutual respect. Article 8 of the European Convention is linked to Article II of Protocol 1 (the right to education) but it is simply ignored.
4.4 The Irish Human Rights Commission in their Report and Recommendations refer to the Supreme Court case Campaign to Separate Church and State v Minister for Education 1998 and the comments of Barrington J:- “The Constitution therefore distinguishes between religious ‘education’ and religious ‘instruction’ – the former being the much wider term. A child who attends a school run by a religious denomination different from his own may have a constitutional right not to attend religious instruction at that school but the Constitution cannot protect him from being influenced, to some degree by the religious ‘ethos’ of the school A religious denomination is not obliged to change the general atmosphere of its school merely to accommodate a child of a different religious persuasion who wishes to attend that school. [xi]”
4.5 In the majority of cases minorities do not have a choice in where they sent their children to school. The Supreme Court recognises that non co-religionists will be influenced by the religious ethos of the school but regardless of this the state still provides for the education of minorities in religious schools. The state sanctions religious discrimination and then fails to oblige schools to actually write down in detail what their ethos is in their enrolment policies. Parents are not aware of how the school is influencing their children into a religious way of life or pre-evangelising as the Catholic Church calls it.
4.6 No school is obliged in their enrolment policy to inform parents where exactly in the curriculum and the daily life of the school this religious influence will take place. In addition to this, the state does not fund the supervision of children if their parents opt them out and again no school is obliged to inform parents of this in their enrolment policy. How can any parent ensure that the education of their child is in conformity with their convictions? This is an absolute right under Article II of Protocol 1 of the European Convention and a right that minorities simply do not enjoy because the state sanctions religious discrimination.
4.7 “In fact, the necessity of the non-discrimination guarantee to religious freedom in this context is illustrated most acutely by the use of requirements of proof of religion as criteria for admission to state-funded schools, with many schools requiring the production of a baptismal certificate as a condition for admission. Citizens being required to prove religious affiliation to gain access to state-funded schools illustrate the deep paradox of the claim that religious freedom requires broad legislative permission for discriminatory enrolment. This potentially burdens the choice to change religious belief or affiliation, to abandon or repudiate a certain religious affiliation, or to dissent within a religion. The exercise of such choices may risk the loss either of school access per se or of school choice. It may require the feigning of a religious belief which applicants no longer hold. Discrimination in school admissions thus represents interference in religious freedom, defined uncontroversially as the freedom to choose and pursue a religious or moral worldview without ‘penalties or disabilities [attaching] to any religious affiliation or lack thereof.’ While a surfeit of commentary has addressed the implications on the autonomy of religious bodies of over- expansive non-discrimination law, there has been little consideration of how religious discrimination might interfere with the religious freedom of those against whom it is directed. Religious Freedom and the ‘right to discriminate’ in school admissions context: a neo republican critique. Daly & Hickey, October 2011. Legal studies 2011 DOI: 10.1111/j. 1748-12IX.2011.60204.x (page 16)
5.1 In his recent speech at the United Nations the Minister for Justice Alan Shatter said that:- “As Minister for Justice Equality and Defence of a Government elected to office as of the 9th of March last I want to assure you of our commitment to a human rights agenda… Teaching the basic principle of non-discrimination and the fundamental rights and freedoms shows that every human being has these rights and freedoms. This may lead to a better understanding of the dignity and respect of every human being and may also contribute to a successful integration of migrants in their host countries.”
5.2 How does providing for the education of minorities in schools where discrimination is an acceptable part of the school ethos show that every human being has these rights and freedoms? How can this be a Human Rights agenda when discrimination in education is forbidden under human rights law?
5.3 In 2006 the UN raised concerns regarding Article 40.1 of the Constitution on equality before the law with the principle of non-discrimination [xii]. This was ignored by the State. In 2008 the UN has raised the issue of discrimination in our education system. It has now raised these issues four times and the Council of Europe once. Despite this every day the children of minorities leave their Human Rights at the school gate. No attention has been paid to the UN Committee on the Elimination of all forms of Racial Discrimination and the UN Committee on the Rights of the Child. Despite this the Minister for Justice had no issue with informing the UN that:-
5.4 “We pay close attention to the deliberations and observations of the United Nations Treaty Monitoring Bodies.”
5.5 The Constitutional Review Group Report in 1995 stated that:- “if Article 44.2.4 did not provide these safeguards, the State might well be in breach of its international obligations, inasmuch as it might mean that a significant number of children of minority religions (or those with no religion) might be coerced by force of circumstances to attend a school which did not cater for their particular religious views or their conscientious objections. If this were to occur, it would also mean that the State would be in breach of its obligations under Article 42.3.1”
5.6 Gerry Whyte in a paper delivered to the Irish Human Rights Commission Conference on Religion and education stated that:- “To date, the relatively limited jurisprudence on the constitutional guarantee of freedom of religion has identified the protection of religious interests as a priority objective, before which the principles of non-endowment of religion by the State and non-discrimination on ground of religious profession, belief or status by the State must give way. [xiii]”
5.7 It is clear from this that in Ireland parents seeking secular human rights based education for their children are second class citizens. Their philosophical conviction that discrimination in access to education is morally wrong and undermines the dignity of the human person is ignored. It seems that in Ireland it in the interest of the common good to disrespect parents’ seeking secular education for their children in order that other parents may access a religious education for their children. The Irish Constitution and human rights law are incompatible in this regard.
5.8 Earlier this month Ireland accepted the following recommendations at the United Nations under the Universal Periodic Review.
“106.27 Malaysia : “Accelerate efforts in establishing national network of schools that guarantee equality of access to children irrespective of their religious, cultural or social background.
106.45 Switzerland :” Amend Article 37 of the 1998 Employment Equality Act in order to prevent such discrimination against homosexual and unmarried parents.”
106.47 Turkey: “Encourage diversity and tolerance of other faiths and beliefs in the education system by monitoring incidents of discrimination in access to education”
106.48 Egypt : “Eliminate religious discrimination in access to education”.”
How does the State intend to implement these recommendations when they are in breach of their international obligations in relation to education?
5.9 Any future policies and legislation on enrolment must take into account the fact that those parents seeking secular education for their children are denied basic human rights in the Irish Education system and the fact that the Constitution has failed to protect these rights in schools. The Report from the Irish Human Rights Commission says that “Ultimately the State bears responsibility to provide for the education of children, and therefore also bears an obligation to respect the human rights of those receiving such education and those of their parents, be they of religious or non-religious beliefsxiv.