Do we want to discriminate against children based on their religious status?

In Ireland we still have a piece of legislation that has the effect of segregating children at the earliest stage in their education and discriminating against them based on their religious status. It is hard to fathom how section 7(3)(c) of the Equal Status Act 2000 can persist in a 21st-century democracy.

Section 7(3)(c) allows schools under religious patronage to give preference to children of the relevant denomination in the enrolment process. Given that more than 90 per cent of primary schools are owned and controlled by the Catholic Church – though entirely funded by taxpayers – and most of the rest are under the patronage of one religion or another, the effect of section 7(3)(c) is clear, particularly for unbaptised children and those raised in a religion other than that of a school's patron. This is not an archaic provision languishing unseen in the statute books; it was enacted in 2000 and is implemented by virtually every Irish primary school.

Schools are obliged by the Education Act 1998 to publish an enrolment policy, and this is where section 7(3)(c) of the Act is implemented. If your local school is Catholic, its primary enrolment criterion will guarantee the prioritisation of local Catholic children. Next, in many schools, will be Catholic children from elsewhere who need a school place. Then, and only then, comes the category most commonly designated “other”.

The section is a disgrace and should be repealed. But its worst effects emerge when an oversubscribed school strictly applies its enrolment criteria. This can leave the parents of unbaptised and “other” children having to go farther afield from school to school, desperately seeking a place.

Widespread problem

This problem is widespread and the stress the State has imposed on families through the section is unforgivable.

Some say this provision is protected by the Constitution, but before we examine this claim, fundamental questions should be asked. Is section 7(3)(c) a good law? Do we want to discriminate against young children based on religious status? Or do we want equal school access for all? Is there anything to fear in encouraging children from different backgrounds to mix at school? The Constitution can always be amended if required.

But does the provision even enjoy constitutional protection? Nowhere does the Constitution suggest that institutions have a freedom to discriminate against citizens that trumps a child’s most basic right to an education.

Regardless, as a barrister, it seems to me probable that section 7(3)(c) itself is unconstitutional. Article 44.2.3 is one of the most unequivocal in the entire document. In its entirety, it states: “The State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief or status.”

The repeal of section 7(3)(c) would affect neither school patronage nor how religion was taught. It would just mean a school could no longer refuse entry on religious grounds.

The Oireachtas will soon debate the Education (Admission to Schools) Bill 2015. Its title would suggest it is an obvious vehicle to make the necessary change. Indeed, section 61 (1) of the Bill states that a "school shall not discriminate in its admission of a student . . . on the religion ground". Problem solved? I am afraid not. Undermining this clause is an exception for any "school to which section 7(3)(c) of the Act of 2000 applies". In other words, as section 7(3)(c) applies to around 98 per cent of primary schools, the non-discrimination clause is nonsensical.

‘Ridiculous situation’

Minister of State Aodhán Ó Ríordáin recently decried the “ridiculous situation” that sees unbaptised children turned away from schools. As a dad of an unbaptised boy, living a two-minute walk from the local Catholic school, I appreciate Ó Ríordáin’s support. I want my child to go to the school around the corner, with his neighbours. My taxes fund that school like everyone else’s and my child is supposed to be an equal citizen of Ireland. I would urge the repeal of section 7(3)(c).

In the meantime, Minister for Education Jan O'Sullivan and Minister for Justice Frances Fitzgerald should explain their position on this. To focus their minds, I repeat the question: is section 7(3)(c) a good law? All else should flow logically from the answer.

Patrick Monahan has started a petition for the repeal of section 7(3)(c) on the Facebook page Equal School Access for Unbaptised Children in Ireland.

The petition can be accessed here - http://iti.ms/1EJ9l1m