O’Mahony on the Proposed Constitutional Amendment on Children – Education Aspects

You can learn more about Conor O’Mahony on our guest contributors page.

As part of the proposed constitutional amendment on children, the proposed new Article 42.2 proposes to enumerate, for the first time, a number of the rights of children, including “the right of the child to an education”. The proposal to include an explicit right of the child to education is welcome – indeed, it was recommended by the Constitution Review Group in 1996 – but in all probability, it changes little. The existence of such a right, correlative to the duty of the State under the existing Article 42.4 to provide for free primary education, was clearly reognised in Crowley v Ireland [1980] I.R. 102 and has never been questioned since. The new provision could potentially be interpreted as being broader, given that it refers to “an education” rather than merely to “primary education”. However, it is unlikely that the courts – and particularly the current Supreme Court – would interpret this as including a positive right to education at a level higher than primary, given that the corresponding duty of the State under the re-numbered Article 42.8 would still refer only to primary education. While the Oireachtas Committee Report states that the rights that are recognised in the proposed Article 42.2 are “designed to make a tangible difference to children’s rights”, there is no suggestion that there was any intention to take a step as significant as extending the right to free State education beyond primary level, and in the absence of such a clear intention, no court is likely to so interpret the provision.

Recent Stories in Children’s Rights

We are still awaiting a draft version of the proposed children’s rights amendment to the Constitution. Aoife blogged about the proposal here. The government serves children very badly, as the Children’s Rights Alliance reminded us last week.  In the fortnight since the announcement was made that the draft constitutional amendment was on the brink of publication  a number of important stories touching on children’s rights in Ireland have broken.

• Fine Gael provides a very good summary of the outstanding issues in the child protection system here .
• The Examiner reports on the serious consequences for children with learning difficulties of the budget-driven withdrawal of support teachers here.
• Last year was the worst year since 2006 for migrant children disappearing from State care. Fine Gael’s response is here and you can read the Irish Times report on the same issue here . The HSE on Monday said that  ‘it has been unsubstantiated that any of the children who go missing from HSE care have been trafficked’. However, the Children’s Rights Alliance provides this statement in which it convincingly argues that  ‘it is a matter of public record that children, who have disappeared from HSE care, have subsequently been ‘found’ in situations where they were being exploited by traffickers. ‘

Hickey on Religious Patronage of Irish Primary Schools and Republicanism

This guest post is contributed by Tom Hickey, a PhD candidate at the Law school, NUI Galway, under the supervision of  Prof. Gerry Quinn.  He attended Princeton University on a Visiting Student Research Collaborative Scheme in 2009, under the supervision of Prof. Philip Pettit, at the University Center for Human Values.

“The current management of schools is working exceptionally well. The patron is in place in terms of ethos but has nothing to do with the overall management of schools. That is the responsibility of the board of management.”

Minister for Education, Batt O‘Keeffe T.D., Dáil Éireann, December 2009.

The recently published Ryan and Murphy reports have suddenly brought the issue of the extent of religious patronage in the Irish primary school system into very sharp focus. Most of us involved in public discourse in Ireland are by now familiar with a statistic we may not have been familiar with six months ago: 92% of our primary schools are run by Catholic institutions. And despite the Minister’s assertion in the Dáil in early December, there seems a growing consensus that this is neither appropriate nor sustainable. Archbishop Diarmuid Martin has even suggested that the Church divest itself of control of at least some of the schools, and has described the current level of control a “near monopoly,” “untenable,” and a “historical hangover.” Indeed, the Archbishop went further and suggested that the present situation is “in many ways detrimental to the possibility of maintaining a true Catholic identity in Catholic schools,” a thought that should interest the many families across the state who still want this kind of education for their children.

Guest Contribution: Daly Responds to Quinn on Lautsi and Parental Choice

We are delighted to feature this short guest contribution from Eoin Daly, PhD student at the Law School at University College Cork. You can find out more about Eoin on the Guest Contributors page. Eoin has produced the following response to an article in the Irish Independent by David Quinn (left) entitled “The European Court of Human Rights is Part of an Agressive and Belligerent Drive towards secularism.” Rather than select quotations from Mr. Quinn’s article, we suggest that you read it in full before reading Eoin’s response.

Perhaps David Quinn should properly read the Lautsi decision and the associated jurisprudence before engaging in such strident commentary as he did in today’s Independent. The ECtHR’s recent ruling in APPEL-IRRGANG c. Allemagne, for example, suggests that persons do not have a right to be protected from exposure to religious beliefs as such in schools. In Lautsi, the court has merely found that the State may not provide public education through schools which privilege a particular religious viewpoint, in such a manner as does not respect the inevitable plurality of beliefs within a democratic society.

I frankly do not see how the imperative of “choice” requires that any particular belief be exalted or privileged within a publicly-funded school. If there is a “right” to the sort of “choice” Mr. Quinn relies on, how is it to be extended to all? Or does Mr. Quinn suggests that the exercise of this “right” is confined to what happen to be the most prevalent denominations in a particular state?

It is time that Mr. Quinn dispensed with this ill-placed “choice” rhetoric. He suggests, in today’s column and elsewhere, that while “choice” does not prevent the State from propagating beliefs systems contrary to beliefs of parents such as Ms Lautsi within schools, it somehow requires a positive imperative of support for the beliefs of other parents. This is manifestly ill-founded in common sense as well as any viable democratic theory. Clearly, the absence of interference with parents’ religious and moral education of their children must take priority over any positive assistance the State might give in helping parents to transmit these beliefs. The state cannot seek to buttress or exalt the choice of some to a greater extent than is necessary and in doing so, deny the legitimate choices of others.

Furthermore, Mr. Quinn disingenuously conflates secularism as non-denominational or non-confessional ethos, with secularism as a comprehensive philosophical doctrine in itself. A clear and necessary distinction exists between these. To argue otherwise is to suggest, bizarrely, that any refusal by the State to privilege any particular religious viewpoint in its public schools necessarily favours some sort of atheist or anti-religious doctrine.

To compound the above points it suffices, I believe, to imagine that one lived in a society where the beliefs one wished to transmit to one’s children were different from the beliefs of the majority, and were not sufficiently popular in one’s local area to warrant the establishment of a school. How, then, would Mr. Quinn translate the imperative of “choice”?

UPDATE: In related news, the Irish Times reports that the Department of Education has written to  “Dr Martin  [the Catholic Archbishop of Dublin] following a speech in which he said the church would be willing to withdraw its patronage from some Dublin schools. It has asked the archbishop to identify schools that might be suitable for divesting…”

More on Protestant Schools

 The Irish Times reports that Martin Mansergh (left), the Minister of State for the Office of Public Works has suggested that a resolution can be found to the problem of funding Protestant schools as part of next year’s budget. We have discussed the debacle here. Minister Mansergh did not promise that the ancillary grant would be restored to all Protestant schools. Rather he outlined that the government wished to tailor its funding arrangements to those schools most in need; it “was willing to consider any proposals that would more effectively focus funding to meet the objectives of improving access and sustaining Protestant schools, particularly those in rural areas.”  The Minister said:

“I was a member of the board of a Protestant secondary school in Dublin city for almost 20 years. Shortly before departing last year, I inquired about the number of block grant pupils [those who benefit from special funding from the State] among the school population of 630 and was told it was in single figures… However, in other areas… the proportion may be 30 per cent or 40 per cent and, in one or two instances, even higher. The case can be made that the cutbacks announced last October bear more heavily on such schools than on those with no substantial disadvantaged intake.”

R(E) v Governing Body of JFS

The new UK Supreme Court will begin to hear the appeal in R(E) v. Governing Body of JFS UKSC 2009/0105 today. The case will take three days. It consists in an appeal from the decision of the Court of Appeal in R(E) v. Governing Body of JFS [2009] EWCA Civ 626.  The case began with the High Court decision of Mr. Justice Munby (now Lord Justice Munby) in R(E) v. Governing Body of JFS [2008] EWHC 1535, handed down in July of last year. JFS is a well known Jewish school in, Brent, London and is consistently recognised as one of the best performing schools in the country. The issue before the Supreme Court today is:

Whether a Jewish faith school unlawfully discriminates directly or indirectly under the Race Relations Act 1976 in giving priority in admission to the school to those children who are recognised as Jewish under Orthodox Jewish religious law by the Office of the Chief Rabbi.

The High Court found that there was no unlawful discrimination. The Court of Appeal, by contrast, found that there was. As always, I am less interested in the law than in the politics and it’s a busy day today, but there are a few observations I would like to make.

Protestant Schools and the Economic Downturn

Minister for Education, Batt O'Keeffe TD

The Sunday Independent yesterday published an opinion piece by the Minister for Education, Batt O’Keeffe TD in which he responded to this article by Alan Ruddock. Mr. Ruddock had attacked the decision taken by the Minister in last year’s budget to strip a group of fee-paying Protestant secondary schools of a category of ancilliary funding – used to pay caretakers and secretaries – totalling about €3m annually. 21 of the 56 fee-paying secondary schools in the country subscribe to a Protestant ethos. In 1966, during the term of office of  the Fianna Fail Minister for Education Donagh O’Malley, the State came to an agreement with this group of schools; an ad hoc solution to an issue of accommodation of religious minorities. At the time, O’Malley planned to introduce a system of free secondary education for the first time in Ireland’s history. He succeeded. The government in which he served  recognised that because the Protestant population in Ireland was so small and so widely dispersed,  it would be impractical for the State to provide Protestant children with the type of schooling which Catholic children could easily access by virtue of being part of the religious majority: a free secondary education grounded in an appropriate religious framework. The government therefore agreed to provide ‘block funding’  which covers day to day running costs, tuition and boarding grants to Protestant schools. The amount of funding this year was €6.5m. The block funding is distributed, via the Secondary Education Committee, to support Protestant children whose parents would not otherwise be able to send them to a fee-paying school, thus closing an important ‘equality gap’ in the new secondary education regime. The block funding – so-called because it is given to the SEC in a lump sum rather than per capita as happens in the majority of schools – remains in place as it has done for over 40 years but these fee-paying schools will no longer receive ancilliary grants, which from now on will be provided only to non-fee-paying schools. They are expected to raise any necessary extra income from their own resources by taking on more students, or if necessary by joining the free education scheme. The Protestant Secondary Education blog has policy documents from a conference held in Dublin on October 3, together with a good selection of media responses, including audio clips here.

This is the second time in as many years that the Minister’s policies have provoked anger among Ireland’s Protestants, many of whom have, in the words of Cork’s Bishop Paul Colton, come to view the accommodation of Protestant education as ‘a litmus of how Ireland treats and values us’. In June of last year, four Protestant secondary schools mounted a High Court challenge to the government’s teacher redeployment scheme, which would have required them to accept teachers onto their staff who had been made redundant by school closures elsewhere in Dublin. The schools sought a declaration that it would be unconstitutional for the Minister for Education to compel them to employ teachers who were not of the Protestant faith without any assurance that these teachers would subscribe to the ethos of the schools concerned. The schools expressed concern that their hiring autonomy would be severely circumscribed. The case settled, but the terms of the settlement were not released.