Legal opinion on the Constitutional right to not attend religious instruction

Atheist Ireland has obtained a legal opinion from barrister James Kane on the Constitutional right to not attend religious instruction under Article 44.2.4.

The Irish Times has reported on it here.

You can read the full Legal Opinion here.

The legal opinion covers the right to not attend religious teaching, the funding of schools, the NCCA religious education course, Catholic instruction, and all aspects of the right in the education system. The right to not attend religious instruction has been undermined for years by both Church and State.

Summary of Legal Opinion on Article 44.2.4

What does the right mean?

Article 44.2.4 provides that:

“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” (para 2).

The right to not attend religious instruction is greater than the stated context of funding. Rather, it appears to be a personal right that already exists, that is protected by the Constitution as a whole (para 3). It is protected under Article 40.3.1 which vindicates personal rights (paras 5-6).

It is very clear that requiring students to attend religious instruction, without facilitating opt out, whether that is a patron-developed course or whether it is taught by schools supplemental to religious education is absolutely contrary to the child’s rights (para 83). These conclusions apply equally to the question of a right to opt out of modules contained within wider courses (para 85).

When is the right engaged?

Where a child is attending a school which is in receipt of some State funding, the child is entitled to not attend religious instruction regardless of the level of that funding. The State and individual schools must respect this right. There is a separate obligation on the State to ensure that the issue of funding alone does not prejudicially affect the right (para 4).

Schools are obliged to use their existing State funding to facilitate that right without demanding extra State funding (paras 88-89). To come to any other conclusion would render the enjoyment of the right contingent on the level of funding. This would fly in the face of the plain text of Article 44.2.4 (para 89). Provided the school is a public school receiving some State funding, the right must be respected, whether or not the funding is adequate (para 90).

What precisely does the right protect and require?

The first possibility is that a student has a right to simply leave the school or sit at the back of the classroom during religious instruction. But that would never cause any additional funding requirements for schools, and the issue of funding would therefore never affect the right. Thus, this interpretation of the Constitution seems invalid (para 95-98).

From a constitutional perspective, it seems to me that the right encompasses, at the very least, the right to leave the classroom during religious instruction while remaining supervised or to be taught another subject. As between these two possibilities, there is a decent argument that schools should not give more teaching time to some students over others on the basis that the latter has opted out as to do so is to discriminate against the student on religious grounds (para 100).

Schools that provide religious instruction must also put the detailed arrangements for those not attending in their Admission Policies as per Section 62(7)(n) Education Act 1998 (paras 106-7).

The provision commenced on 1st February 2020 and plainly requires schools to (i) put in place arrangements for students wishing to not attend religious instruction, (ii) to ensure that those arrangements do not result in a reduction of the school day, and (iii) that such arrangements are documented (para 109).

What counts as religious instruction?

The question whether a course is religious instruction or not will be determined by reference to the substance of the course, not its name and, in the event of a dispute, can only be determined conclusively by a Court. Religious instruction is likely to arise where the teaching is of religious doctrine, creed or worship, or undermines the child’s right to non-belief (para 84).

It is at least probable, if not likely, that any course which through its cumulative impression has the effect of invalidating atheist perspectives through promoting theistic views, comprises religious instruction to which an opt out must be available. This applies whether the teaching in question relates to one religion only or more than one (para 49).

Article 44.2.4 simply refers to “religious instruction” and says nothing whatsoever about religious instruction relating to one religion only. In the context of a family of an atheist perspective, it appears that it would be impermissible to refuse an opt out by arguing that the course in question relates to more than one religion (para 47).

The question will turn on whether the subjects leave reasonable room for the parent and child’s non-belief. If parents apprehend reasonably that the content of the course, or the manner in which it is taught, is fundamentally inconsistent with the child’s atheist views, or that the course may cause an unwanted change in the child’s atheist views, there is a good prospect that the course will give rise to the right to opt out (para 52).

Is the NCCA course religious instruction?

This must be determined by reference to the substance of the course (para 84). Where schools teach religious instruction or indoctrination supplemental to the NCCA religion courses and during the time scheduled for the NCCA religion courses, the student has a right to not attend (para 80). It is very clear that requiring students to attend religious instruction, without facilitating opt out, whether that is a patron-developed course or whether it is taught by schools supplemental to religious education is absolutely contrary to the child’s rights (para 83).

My instructions (paras 59-75) suggest that the NCCA religion course for junior certificate was moulded with input from religious bodies who in turn designed guidelines for the supplementation of the NCCA junior certificate course with Catholic faith formation and development. It is impossible in those circumstances to see any justification whatsoever for withholding the right of a student to opt out of such a course.

Teaching Catholic instruction during the State religion syllabus, without offering a supervised opt out, represents an unlawful, systematic and stark attack on the right to not attend religious instruction in State funded schools. A student must as a matter of law be permitted by the school to opt out of Catholic instructions at school (paras 76-77).

The Department has gone some length to address this issue in the context of community and ETB schools through issuing circulars instructing schools not to provide religious instruction during the time scheduled for NCCA religion courses. However my instructions indicate that some schools are not compliant with these circulars (paras 77-78)

 

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