Last month's controversy surrounding the reluctance of Castletroy College to allow a pupil to opt out of religion classes in the school may prove to be the tip of a very large iceberg.
Initially, the school refused the request on the basis that the religion class (which, in this school, covered a variety of faiths and none) was a compulsory subject. However, following a meeting of the board of management, it was decided that the pupil could opt out, albeit that she would have to remain in the classroom while the subject was being taught.
In media interviews, Minister for Education Jan O’Sullivan remarked that the right to opt out is clearly protected by law, and that parents get the final say.
By and large, this is correct. That said, complexity arises in circumstances where schools facilitate the request by requiring the pupil to remain in the classroom, while not participating.
Castletroy College may provide a religion class that covers a variety of faiths, but over 95 per cent of primary schools deliver doctrinal, Christian religious instruction.
Is this form of opt-out sufficient to vindicate the rights of children and parents in such schools?
The Irish Constitution and the European Convention on Human Rights (ECHR) protect the freedom of religion of both parents and children, and stipulate that parents have the right to determine their children’s religious education and upbringing. As part of this, both documents grant parents the right to withdraw their children from religious instruction to which they object.
The precise parameters of the right differs between the Constitution and the ECHR. The Irish Constitution recognises that primary education is funded by the State but provided by third parties (overwhelmingly the Catholic and Protestant churches). Article 42.1 recognises parents as the primary and natural educators of children and grants them the right to provide for the religious and moral education of their children. Article 44.2.4 acknowledges “the right of any child to attend a school receiving public money without attending religious instruction at that school”.
has clarified that the term “religious instruction” in this provision (as opposed to the term “religious education” in Article 42.1) applies to the formal timetabled period of “religious instruction”, but does not extend to a right to be insulated from the overall ethos of a denominational school.
This distinction is often pointed to as undermining the effectiveness of right to opt out in denominational primary schools, but may strengthen it in a secondary school setting by providing an absolute right to opt out of timetabled religious instruction, whatever form that may take.
The ECHR does not contain an express opt out clause, but such an obligation may nonetheless arise, depending on the content of the religious instruction being provided.
In Kjeldsen v Denmark, the European Court of Human Rights stipulated that the State "must take care that information or knowledge included in the curriculum is conveyed in an objective, critical and pluralistic manner" and is "forbidden to pursue an aim of indoctrination that might be considered as not respecting parents' religious and philosophical convictions".
In this case, compulsory sex education, with no possibility of an opt out, was found not to violate the parents’ rights to determine their children’s religious and philosophical upbringing because the content of the curriculum was limited to objective information and did not advocate any particular position or practice.
By contrast, in Folgerø v Norway, the court found a violation in respect of a subject called Christianity, Religion and Philosophy due to a variety of factors. While other religions were covered in the subject, Christianity was given by far the most focus, and children were required to perform tasks like learning off the Ten Commandments and gain a "thorough knowledge" of the Bible.
The right to opt out was limited in nature; children would remain in the class, with the teachers engaging in what was described as “differentiated teaching” and the children substituting “observation by attendance” for “involvement through participation”.
The court found that the curriculum was not genuinely objective, and the opt-out mechanism provided was not effective. There were “not only quantitative but even qualitative differences applied to the teaching of Christianity as compared to that of other religions and philosophies”.
Moreover, the “distinction between activity and knowledge must not only have been complicated to operate in practice but also seems likely to have substantially diminished the effectiveness of the right to a partial exemption as such”.
These cases establish that where the instruction crosses the line from objective information to placing undue emphasis on one religion or world-view, an opt-out must be provided and it must be effective. Requiring children to remain in class potentially falls short of this requirement.
The Irish Constitution could be seen as even more stringent on this point. The phrase "without attending religious instruction" (as opposed to "participating in") could reasonably form the basis of an argument that anything short of leaving the classroom fails to vindicate the right to opt out. If this is so, there is much work to be done in the Irish education system. Dr Conor O'Mahony is a senior lecturer in constitutional law at University College Cork. Twitter: @ConorUCCLaw