OPINION:IT WOULD, as Cardinal Seán Brady has pointed out, be ". . . blatantly unjust" to say that the Catholic Church had no right to be involved in schools that receive State funding. ( Irish Times,January 29th), writes DYMPNA GLENDENNING
Any attempt to force any religious denomination out of primary education would be unconstitutional. Through the agency of the family, which the State acknowledges in Article 42.1 of the Constitution as “the primary and natural educator of the child”, the religious denominations have a right to be involved in education.
Moreover, every religious denomination has been conferred with “the right to manage its own affairs, own, acquire and administer property. . . and maintain institutions for religious and charitable purposes” (Article 44.2.5). In addition, property safeguards for the religious denominations are contained in Article 44.2.6 which provides: “The property of any religious denomination or any educational institution shall not be diverted save for necessary works of public utility and on payment of compensation.”
Given these firm constitutional guarantees, there can be no question of any of the religious denominations being forced out of education.
However, if parents, in sufficient numbers, wish to lessen the role of the religious denominations in primary education, they can promote the establishment of a separate, parallel system of State schools, an option which in the current recessionary climate is economically unrealistic.
A less costly option would be to expand the role of the vocational education committees (VECs) to include the primary sector if this is what parents require in sufficient numbers to ensure viability. This option is currently being explored by the State, which has set up on a pilot basis, two new community national schools, under the aegis of the Co Dublin VEC.
One pivotal issue for parents will be the position of religion in these schools. When providing “other educational institutions”, when the public good requires it, the State must do so “with due regard for the rights of parents especially in the matter of religious and moral formation,” (Article 42.4). Arguably, in a parliamentary democracy, such as ours, in which parents are constitutionally sovereign (Article 6.1) and have such significant constitutional powers in education, the position of religion in the new community national schools should be the subject of a full public debate.
In the Constitution of 1937, there is a church-State division of powers with very significant powers resting with the family/parents. Accordingly, the State here must operate under a number of constraints.
While the State is required to “provide for free primary education” (Article 42.4), it may also establish other school types including State schools, in response to parental demand.
But the State cannot “oblige parents, in violation of their conscience and lawful preference, to send their children to schools established by the State or to any particular type of school designated by the State,” (Article 42.3.1). Parents are free to provide primary education in their homes, (subject to State standards), or in private schools, or in schools recognised by the State or in schools established by the State (Article 42.2).
However, the State generally funds others (mainly the churches) who in turn provide education in State-funded church-owned primary schools (indirect provision).
Contrary to popular opinion, therefore, Irish primary schools are not State schools with the exception of a handful of model schools, inherited from the 1830s. Ireland, unlike the norm in Europe, has not established a separate system of State schools at primary level for complex historical reasons. Rather, the inherited model of indirect provision of education was adopted and enshrined in the Constitution of 1937 with a number of safeguards for denominational education, a model which is heavily dependent on continued parental support.
In modern, pluralist Ireland, there are some indications that the traditional support of parents for a single monolithic system of primary schools, so to speak, is fragmenting as parents increasingly seek out more democratic school types.
Although the State cannot require the church to give up control of the primary school system, it may, in response to parental demands, enter into negotiations with the church to ascertain whether it is willing to cede control of certain schools to the State or to other school patrons eg Educate Together, the Gaelscoileanna patron bodies or the local VECs.
Modern society is very different from that of 1937 when the Constitution was adopted and there are now perceived imbalances in regard to the role of the State in education in a diverse society. Some argue that we now need a new framework that reflects "modern Irish life and values" ( Imaging a new constitution could bring back springtime, Irish Times,February 1st, 2010). Others believe that the existing constitutional provision for primary education has served the people well.
This profoundly important issue requires full public debate by the people bearing in mind that these provisions can be expanded through judicial interpretation, or amended in accordance with the provisions of Articles 46 and 47 of the Constitution if there is a sufficiently strong consensus among the public to effect that change.
Dr Dympna Glendenning is a barrister and is author of Religion, Education and the Law(Bloomsbury Professionals, 2009)