State to pay Catholic Church rent for school buildings while ignoring rights of parents?
An article in the Irish Times says the Department of Education intends to pay rent to the Catholic Church if it divests to Community National Schools.
This means that the Department of Education will be funding the Community National Schools, and paying rent on top of that to the Catholic Church, while the constitutional conditions for that funding over the years were never met.
Under the Constitution (Article 42.4), the State is not obliged to fund Catholic schools, but it has chosen to do so. There is an obligation on the State to endeavour, and only that, to supplement and give reasonable aid to private schools.
In addition this State funding has other constitutional conditions. The recent Burke case has shown that there is an obligation on the Department of Education to administer these constitutional rights, and it cannot absolve itself of that responsibility.
These conditions have not been given any practical application on the ground in schools, because the Department leaves it up to each school to implement these conditions of funding, notwithstanding the fact that the Constitution says that it is the State that is responsible.
The Supreme Court in the recent Burke case reiterated that the obligation on the state is to endeavour to fund private schools and only that. The Court stated that:
“Article 42.4, in requiring the State to provide for “free primary education”, also places an endeavour, but only that, before the State “to supplement and give reasonable aid to private and corporate educational initiative” and “when the public good requires it” towards “other educational facilities or institutions”.
An overall saver in the constitutional text is that the State, in providing for free primary education and in endeavouring to assist post-primary education in various forms, have “due regard … for the rights of parents, especially in the matter of religious and moral formation.”
This provision reflects a concern for upholding parental authority; a foundational pillar of the Constitution that accords with Article 41 recognising the family as “the natural primary and fundamental unit group of” Irish society. Hence, society is built around the family.”
The constitutional conditions for funding private catholic schools are that parents’ rights in relation to the religious and moral education and formation of their children must be respected (Article 42) and that students have a right to not attend religious instruction in these schools (Article 44.2.4).
The Supreme Court has already said that Article 42.1 and Article 42.2 must be read in the context of Article 44.2.4 (Campaign to Separate Church and State v Minister for Education 1998).
The Supreme Court has also said that the provision of Article 42.4 in the matter of the religious and moral formation of children upholds parental authority, a foundational pillar of the Constitution that accords with Article 41 (the rights of the family).
The Burke case at the Supreme Court changes everything. The Department of Education can no longer absolve itself of any responsibility in relation to Article 42, Article 41 and Article 44.2.4. These are Constitutional rights that they are obliged to administer because they are a condition of state funding of schools.
As an overview of all this:
- The State is only obliged to endeavour to fund Catholic schools.
- If they decide to fund Catholic schools, there are constitutional conditions to that funding.
- The Department of Education has left it up to each school to decide how to implement the constitutional conditions for their funding notwithstanding the fact the Constitution states that this is the responsibility of the State.
- The Department of education are now going to pay the Catholic Church rent for a school that they decided to fund for years and where the constitutional conditions for that funding were not met.
- Minorities in these publicly funded Catholic schools are left with a choice of a Catholic education or no education at all, and their constitutional rights in these publicly funded schools are ignored.
So after years of public funding, and ignoring the conditions to that funding, the Catholic Church will only divest to Community National Schools, they will charge them rent, and the Department of Education have agreed to this.
This is what an abdication of legal duties looks like and it is an absolute disgrace.