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- the State must provide education in a manner which does not discriminate either directly or indirectly against students who may have different religious beliefs or on the race ground or any other grounds covered under the Acts;
- in a context where there is over subscription, denominational schools who require every child to have a Baptismal Certificate could have difficulties in relying on the exemption in Section 7(3)(c) of the Equal Status Acts to defend a claim of discrimination in the religion ground;
- the exemption in Section 7(3)(c) cannot be relied on by denominational schools where indirect discrimination on the ground of race is the result which is prohibited by the ‘Race’ Directive.
We are concerned at the emergence in effect of segregated primary school provision for
Black and minority ethnic students. From recent media reports it would appear that this is on foot of new requirements on pupils to present their Baptismal Certificates to gain access to Catholic primary schools and of inadequate provision of primary schooling for the diversity of pupils in the area. This reported segregation runs counter to the Government’s own commitment to integration as set out in the National Action Plan Against Racism. Such segregation also runs counter to any commitment to equality in that segregated educational provision can stigmatise pupils, is often associated with poor educational outcomes and does not adequately enable pupils to interact effectively in the wider, more diverse society.
We are also concerned at the references to the Equal Status Acts 2000 to 2004 in these
reports – in particular as to the accuracy of the reported interpretation given to Section 7(3)(c) of the Acts, the religious ethos exemption. We are further concerned that the current outcome of segregation in effect for Black and minority ethnic pupils may be in breach of the provisions of the Equal Status Acts 2000 to 2004 and the European ‘Race’ Directive.
The functions of the Equality Authority include the promotion of equality of opportunity and the elimination of discrimination in relation to matters that come within the Equal Status Acts 2000 to 2004. It also has the function of providing information to the public on and keeping under review the working of the Equal Status Acts and, wherever the Equality Authority thinks it necessary, to make proposals to the Minister for its amendment. The Equality Authority is also a body for the promotion of equal treatment of all persons without discrimination on the grounds of racial or ethnic origin as required by Article 13 of the European ‘Race’ Directive.
A person who considers that s/he has been discriminated against can apply to the Equality
Authority for assistance in bringing proceedings under the Equal Status Acts 2000 to 2004. The Equality Authority can also institute proceedings where it appears to the Equality Authority that prohibited conduct is being generally directed against persons.
The Equal Status Acts 2000 to 2004 prohibit discrimination on nine discriminatory grounds inter alia in the provisions of services (Section 5) and in educational establishments (Section 7). Direct discrimination is defined as occurring where a person is treated less favourably than another is, has been or would be treated in a comparable situation on any of the grounds which exists, existed but no longer exists, may exist in the future or is imputed to the person concerned. The nine discriminatory grounds are gender, marital status, family status, age, disability, sexual orientation, race, religion and membership of the Traveller community.
The religion ground is defined:
“as between any two persons ….one has a different religious belief from the other, or thatone has a religious belief and the other has not”.
Religious belief is defined to include “religious background or outlook”.
The ground of race is defined:
“as between two persons ….. they are of different race, colour, nationality or ethnic or
national origins”.
The most relevant provisions of the Equal Status Acts 2000 to 2004, in relation to the matter raised, are Section 5 which applies to the provision of services and Section 7 which applies to a broad range of educational establishments.
A service is defined as a “service or facility of any nature which is available to the public
generally or a section of the public”. The provision of education by the State constitutes a
service for the purposes of the Equal Status Acts 2000 to 2004. Section 5 prohibits
discrimination in the provision of services. Therefore, the State cannot discriminate on the religion ground, the ground of race and the other grounds covered in relation to the provision of education by the State.
Section 7 of the Equal Status Acts 2000 to 20004 applies to educational establishments. It
prohibits discrimination by a school in relation to inter alia, “the admission or the terms or conditions of admission of a person as a student to the establishment”.
Section 7(3)(c) provides that an educational establishment does not discriminate under the Acts:
“where the establishment is a school providing primary or post primary education to
students and the objective of the school is to provide education in an environment which
promotes certain religious values, it admits persons of a particular religious denomination in preference to others or it refuses to admit as a student a person who is not of that denomination and, in the case of a refusal, it is proved that the refusal is essential to maintain the ethos of the school”.
The meaning of this subsection is not as clear as has been portrayed in recent reports. It
appears to allow that a faith based school is free to provide preferential admission to people of the particular faith and that the school only has to prove that a refusal to admit a student is essential to maintain the ethos of the school. However, where there is over-subscription to a school the preferential admission of one student of a particular religion may well constitute or lead to the refusal of admission of a student who is not of that religion. Therefore the subsection cannot necessarily be relied on to allow carte blanche preferential treatment to students who belong to a particular denomination without reference to the provision that refusals of admission that result must be “essential to maintain the ethos of the school”.
Further, in the context of a refusal there is as yet no definitive understanding of what is meant by “essential to maintain the ethos of the school”. Given that the vast majority of national primary schools in the State are denominational and continue to allow students of other denominations and none to attend, there would be difficulty in proving that it is essential to maintain the ethos of a particular religion to require every student to be of that particular denomination.
There is a further issue in that the provisions of the Equal Status Acts 2000 to 2004, including Section 5 and Section 7, have to be read and interpreted in the light of Council Directive 2000/43/EC of 29th June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (the ‘Race’ Directive). The provisions of the ‘Race’ Directive apply to “all persons, as regards both the public and private sectors, including public bodies in relation to…..education”.
Discrimination is defined to include direct discrimination and indirect discrimination. Indirect discrimination “shall be taken to occur where an apparently neutral provision, criteria or practice would put persons of a racial or ethnic origin at a particular disadvantage compared with other persons unless that provision, criteria or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary”. (Article 2)
The introduction of a requirement that all students of a denominational national school have a Baptismal Certificate which results in the segregation in effect of Black and minority ethnic pupils in the provision of education may constitute indirect discrimination on the ground of race, in breach of the Race Directive and the Equal Status Acts 2000 to 2004.
While this is a matter that would ultimately have to be decided by the Equality Tribunal, the provision of denominational education may well be deemed to be a legitimate aim in some contexts. There may be difficulty in establishing a legitimate aim in the context where parents are having their children baptised for the purposes of school admission. However, there must be some concern as to whether the means of achieving that aim are appropriate and necessary in a context where the outcome is one of segregation for Black and minority ethnic students and where in most cases denominational schools do not only admit students of a particular religion.
The provisions of the ‘Race’ Directive take precedence over the national legislation which has to be read and interpreted in the light of the European Directive. It is significant that the ‘Race’ Directive allows for very few exemptions and there is no exemption equivalent to that provided in Section 7(3)(c) of the Equal Status Acts 2000 to 2004.
In summary then we would submit that:
