Schools and the law: a patron's introspection

Abstract

In Ireland, where education at both primary and second level is overwhelmingly denominational in character, patronage is exercised, in the main, by religious patrons. This article is an introspective analysis of current legal issues as they face one patron and schools under his patronage; it looks at the intersection of civil law with Church law; the burden of the law and access to it; the stewardship of patronage; the obligation of partnership; the constitution of boards of management; the difficulty of defining a school's characteristic spirit; the enduring aptness of denominational schools in a religious society; and the challenge of minorities in a new pluralist society. The rights of minorities balanced against the rights of those who desire education in schools of religious ethos challenge all to re-examine the contemporary educational infrastructure. At the end of the day the challenge is to determine the meaning of a good school and a good education and to attain that with the support, rather than the hindrance, of the law.

Keywords:

• religion
• education
• churches
• schools
• law
• patronage
• denominational
• minorities

Notes

1. The author is the Bishop of Cork, Cloyne and Ross. He chairs the Boards of Management of two second-level schools and serves on another. Nationally, he chairs the Secondary Education Committee and is a member of the Board of Education of the General Synod of the Church of Ireland, while at the same time researching a PhD part time at Cardiff University Law School.

2. The Constitution Review Group referred to the ‘de facto denominational reality of the national school system’ as never having been legally enshrined, but as having been ‘recognised’ in successive editions of the Rules for National Schools. (Constitution Review Group 1996, 338).

3. See, for example, Sheridan 2006; Is your child Catholic enough to get a place at school? Irish Times, May 5; 2008; Murray and Carr 2008; Walshe 2008.

4. See Matthew 28: 19–20. See also Resolution 1 of the Lambeth Conference of 1930: ‘We believe that the Christian Church is the repository and trustee of a revelation of God, given by himself, which all members of the Church are bound to transmit to others …’.

5. See, for example, Matthew 18 and Mark 10: 13ff. See also Resolution 46 of the Lambeth Conference of 1948: ‘The Conference affirms that education should be more than a training for a livelihood or even for citizenship. It should be based upon the fact that every child is a child of God created by God for citizenship in heaven as well as on earth’.

6. The canon law in this area is based substantially on the ‘Declaration on Christian Education: Gravissimum educationis’ of Pope Paul VI proclaimed on 28 October 1965. See also generally Euart 2000.

7. Code of Canon Law, Canon 747.

8. Code of Canon Law, Canon 794 (1).

9. Code of Canon Law, Canon 795.

10. Code of Canon Law, Canon 793 (1).

11. See Code of Canon Law, Canons 793 (2), 796–9, 800, and 803 (2).

12. Code of Canon Law, Canon 804 (2).

13. Lambeth Conference 1948, Resolution 29: ‘The Conference while giving full support to state education is convinced that there is a unique value for the community in the long tradition of Church education’.

14. Lambeth Conference 1908, Resolution 11.

15. ‘Ordination Services One: Bishops’, in Book of Common Prayer, 546–7.

16. ‘Ordination Services Two: Bishops’, in Book of Common Prayer, 576–7 and 582.

17. ‘Ordination Services Two: Priests’, in Book of Common Prayer, 565–6.

18. ‘Ordination Services One: Deacons’, in Book of Common Prayer, 524.

19. ‘Ordination Services Two: Deacons’ in Book of Common Prayer 555 and 558.

20. CCI (Constitution of the Church of Ireland) Ch. IX s.27(1) (Canon 27.1).

21. CCI Ch. IX s.27(1) (Canon 27.1).

22. CCI Ch. IX s.27(2) (Canon 27.2).

23. For the Constitutions of those boards, see, inter alia: Presbyterian Church in Ireland 1980, para. 284; Roman Catholic Church (http://www.catholicbishops.ie/education); Church of Ireland 2003, 19.1; Methodist Church in Ireland ch. 20, 2009 (see http://www.irishmethodist.org/connexion/laws/legislation.php).

24. CCI Appendix at 19, ‘The Board of Education of the General Synod’.

25. CCI Appendix at 19, ‘The Board of Education of the General Synod’, para.9.

26. CCI Appendix at 19, ‘The Board of Education of the General Synod’, para.9. In the Presbyterian Church in Ireland the Presbytery is obliged to ‘encourage the development and foster the progress of education generally, with a pastoral concern for and Christian responsibility towards all involved in or seeking to benefit from education’. Moreover, the Presbytery is ‘to safeguard and secure the exercise of the Church's rights of representation on school management committees and similar bodies’ (Presbyterian Church in Ireland 1980, para. 77 [b] and [c]).The Board of Education of the Methodist Church is responsible for the interests of that Church in ‘all matters concerning the educational welfare of the young people connected with the Methodist Church’. See Methodist Church in Ireland, ch. 20, 2009 (see http://www.irishmethodist.org/connexion/laws/legislation.php), s.20.01.

27. CCI Ch. IX 2.28 (Canon 28).

28. Presbyterian Church in Ireland 1980, para. 37 (c) and 77 (a).

29. See the website of Stratford College: www.stratfordcollege.ie

30. See an overview at http://www.redbrick.dcu.ie/~isoc/muslimschool.html.

31. See, for example, Carbery 2009; de Breadún 2009; Flynn 2009; O'Halloran 2009; Unknown 2009.

32. Per Laffoy J, O'Shiel v. Minister for Education [1999] 2 ILRM 241 at 247.

33. A full list is available at www.education.ie

34. See O'Callaghan v. Meath VEC, unreported, High Court, Costello J, 20 November 1990. See also Laffoy J in O'Sheil v. Minister for Education [1999] 2 ILRM 241 at 247.

35. It provides for the functions of a school (s. 9); the recognition (and withdrawal of recognition) of schools (ss. 10 and 11); annual funding (s. 12); establishing an inspectorate (s. 13); constituting and regulating boards of management (ss. 14–20); putting in place a school plan (s. 21); the appointment and role of the principal and teachers (ss. 22–4); the establishment and regulation of the National Council for Curriculum and Assessment (ss. 38–48); examinations (ss. 49–53); the provisions of support services through bodies corporate (ss. 54–9); the setting up of parent associations (s. 26); and miscellaneous provisions, the most notable of which relate to the school year (s. 25), student councils (s. 27), local grievance procedures (s. 28), appeals (s. 29), the curriculum (s. 30), the making of regulations (s. 33), and educational disadvantage (s. 32).

36. The Education (Welfare) Act 2000; the Teaching Council Act 2001; Education of Persons with Special Educational Needs Act 2004; the Teaching Council (Amendment) Act 2006; the Education (Miscellaneous Provisions) Act 2007.

37. See, for example, Department of Education and Science 2007a, b.

38. As recently as August 2009, for example, the primary schools’ resources section of the website of the DES was proffering the out-of-date 2003 edition rather than the revised 2007 edition of the Constitution of Boards and Rules of Procedure for Boards of Management of Primary Schools!

39. In the 2008 patron's visitation of primary schools in the United Dioceses of Cork, Cloyne and Ross, schools were asked to enumerate the policies they had been required to develop and adopt in order to run their schools; cumulatively, there were 82 different policies, not including the overarching School Plan.

40. Section 8(1)(a) defines a patron as the person who is recognised as such by the Minister for Education and Science. Under section 8(1)(b), in case of the patron of a post-primary school, the patron consists, in the first instance, either of the trustees of the school or the board of governors or, where there are no trustees and no such board, the patron is the owner of the school. Under section 8(1)(a), the name/s of the person/s deemed to be patron is/are to be entered by the Minister in a register kept for that purpose, and under section 8(3), the register may be amended by the Minister on the application of a patron who is already registered as the patron of a school (or that person's successor).

41. Department of Education and Science 2003.

42. See sections 14 and 16, Education Act 1998. A number of matters governing that appointment are determined in consultation by the Minister with the partners in education: composition; gender balance; and the manner of the appointment of a board. The patron, subject to the consent of the Minister, and for good and valid reasons, may, in writing, remove a member of a board of management from office. Similarly, if satisfied that the functions of a board are not being effectively discharged, the patron may, according to agreed procedures, dissolve a board.

43. Figures supplied by the Education Officer, Board of Education of the General Synod of the Church of Ireland.

44. See www.educatetogether.ie.

45. See www.foras.ie.

46. Education Act 1998, Long Title. See also East Donegal Co-operative Marts Ltd v. Attorney General [1970] IR 31; and Minister for Industry and Commerce v. Hales [1967] IR 50. See, however, The People (DPP) v. Quilligan [1987] ILRM 606.

47. Education Act 1998, s. 14(1).

48. Education Act 1998, s.14(6).

49. Education Act 1998, s.14(1).

50. Education Act 1998, s. 15(1).

51. Education Act 1998, s.15(1).

52. Education Act 1998, s. 3(a).

53. Education Act 1998, s. 3 (b) to (g).

54. Education Act 1998, ss. 3 and 5.

55. See: Re Article 26 and the Employment Equality Bill 1996 [1997] 2 IR 321 at 359. See also McGrath and Ó Ruairc v. Trustees of the College of Maynooth [1979] ILRM 166.

56. See: Re Article 26 and the Employment Equality Bill 1926 [1997] 2 IR 321 at 356. See also Greally v. Minister for Education (No.2) [1999] 1 IR 1 at 10–11, [1999] 2 ILRM 296.

57. While the number of Roman Catholics had increased since the previous census in 2002, the overall increase in Ireland's population resulted in a small percentage decrease in the number of Roman Catholics as a proportion of the total.

58. Available at http://www.ionainstitute.ie

59. Campaign to Separate Church and State Ltd v. Minister for Education [1998] 3 IR 321, [1998] 2 ILRM 81. See alsoMcCrea 1999, 19.

60. Bunreacht na hÉireann, Article 42.2. In O'Sheil v. Minister for Education [1999] 2 IR 321, [1999] 2 ILRM 241, Laffoy J upheld the primacy of parental choice (although the Judge ruled that it did not pertain in this case). This has clear implications for an education system where most of the population claim to be religious, as does the corollary where others are not religious; it also has clear implications for those minority religious interests dispersed throughout the State.

61. Bunreacht na hÉireann, Article 42.3.2. This includes moral, intellectual and social education, but there is no mention of religious education. See Re Article 26 and the School Attendance Bill, 1942 [1943] I.R. 334; O'Sheil v. Minister for Education [1999] 2 IR 321, [1999] 2 ILRM 241; DPP v Best [2000] 2 IR 17, [2000] 2 ILRM 1.

62. Bunreacht na hÉireann, Article 42.4 (my emphasis). For the distinguishing between ‘provide’ and ‘provide for’, see Crowley v. Ireland [1980] IR 102 per Kenny J at 127. For children with learning difficulties, see O'Donoghue v. Minister for Health [1996] 2 IR 20 and Sinnott v. Minister for Education [2001] 2 IR 545.

63. Bunreacht na hÉireann, 42.4.

64. Primary schools: Crowley v. Ireland [1980] IR 102; post-primary schools: Campaign to Separate Church and State Ltd and Murphy v. Minister for Education [1998] 3 IR 321, [1998] 2 ILRM 81.

65. Crowley v. Ireland [1980] IR 102; Campaign to Separate Church and State Ltd v. Minister for Education [1998] 3 IR 321, [1998] 2 ILRM 81.

66. Quinn's Supermarket v. Attorney General [1972] IR 1.

67. See, for example, Burke and O'Reilly v. Burke and Quail [1951] IR 216, (1950) 84 ILTR 70; Re Blake [1955] IR 89, Campaign to Separate Church and State Ltd v. Minister for Education [1998] 3 IR 321, [1998] 2 ILRM 81.

68. Henchy, J in McGrath and Ó Ruairc v. Trustees of the College of Maynooth [1979] ILRM 166 at 187.

69. The current constitutional position was well summarised by Walsh J: ‘The effect of these various guarantees is that the State acknowledges that the homage of public worship is due to Almighty God … . At the same time it guarantees freedom of conscience, the free profession and practice of religion and equality before the law to all citizens, be they Roman Catholics, Protestants, Jews, Muslims, agnostics or atheists. But Article 44.1 goes further and places the duty on the State to respect and honour religion as such. At the same time the State is not placed in the position of an arbiter of religious truth. Its only function is to protect public order and morality’ (Quinn's Supermarket v. Attorney General [1972] IR 1 at 23–4). See also Conway v Independent Newspapers (Ireland) Ltd [1999] 4 IR 484.

70. Campaign to Separate Church and State Ltd and Murphy v. Minister for Education [1998] 3 IR 321, [1998] 2 ILRM 81 at 88–9.

71. Campaign to Separate Church and State Ltd and Murphy v. Minister for Education [1998] 3 IR 321 at 356.

72. McGee v. Attorney General [1974] IR 284 and in Norris v. Attorney General [1984] IR 36. Article 44 originally recognised the special place of the ‘Holy Catholic Apostolic and Roman Church’ together with the existence of certain other churches and the Jewish Congregation in Ireland. This special position, deemed to confer no juridical privilege, was removed by referendum in 1972 and the universal nature of the constitutional guarantees was subsequently reiterated in Corway v. Independent Newspapers (Ireland) Ltd [1999] 4 IR 484. Curiously, the provisions according special status to the Roman Catholic Church were never, it seems, criticised by the Church of Ireland and, indeed, received favourable comment (Ó Corráin 2008, 57).

73. In two Church of Ireland schools the number of pupils of other nationalities was a significant proportion of the enrolment, and in both cases the number of non-English-speaking pupils almost matched the number of those who speak English.

74. A sub-theme is the multiplicity of other nationalities, some of whom are new Irish citizens, while others are asylum seekers. For example, the 2006 census shows that 68% of Muslims in Ireland are non-Irish nationals (mainly of African and Asian extraction); 84.2% of Orthodox in Ireland are non-Irish nationals (coming mainly from Eastern Europe and outside the European Union); and, in the case of Ireland's largest denomination – Roman Catholicism – the census reported that 92% of Irish nationals were Roman Catholics, whereas only 50.8% of non-Irish nationals in Ireland are Roman Catholics.

75. See, for example, Walshe 2008; McGarry 2009a,b.

76. The template Deed of Variation for Church of Ireland Schools embodies the requirement that where a school enrolment is less than 50% ‘protestant’, the patron's express consent to the continuation of the school as a Church of Ireland school is required.

77. Wesley College, Dublin (Methodist), St Andrew's College, Dublin (Presbyterian), Newtown School Waterford and Drogheda Grammar School (Society of Friends), Villiers School, Limerick (the board is nominated jointly by the Church of Ireland and the Presbyterian Church).

78. Schools that refer to themselves as Church of Ireland Schools: Midleton College, Wilson's Hospital School, St Patrick's Cathedral Grammar School, St Columba's College, Alexandra College, King's Hospital School; schools under the patronage of the Incorporated Society for Promoting Protestant Schools in Ireland: Bandon Grammar School, Kilkenny College, Dundalk Grammar School and Sligo Grammar School, and a Church of Ireland Diocesan Secondary School: Wilson's Hospital School.

79. See, for example, 2009. New school model still tramples on the rights of the non-religious. Irish Times, 14 April.

80. The predicament for the non-religious is well summarised in a submission to the United Nations Human Rights Committee as follows: ‘This predominance of religious schools means that parents who do not wish their children to be educated in a religious environment cannot access secular schooling for their children and have little option but to send their children to a religious school … . Staff members who may not hold religious views of a school may also be discriminated against’ (FLAC, ICCL, and IPRT 2008, 100).

81. International Convention on Economic, Social and Cultural Rights (ICESCR) Art. 1.

82. Universal Declaration of Human Rights (UDHR) Art. 18; United Nations Convention on the Rights of the Child (UNCRC) Art. 30; International Covenant on Civil and Political Rights (ICCPR) Art. 18; Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (UN Resolution 36/55 1981) Arts.1–4 and 6; UN Convention on the Elimination of all forms of Racial Discrimination (CERD) Art. 5(d)(vii); European Convention on Human Rights (ECHR) Arts. 9 and 10; Charter of Fundamental Rights of the European Union (CFREU) Art. 10.

83. UDHR Article 26; UNCRC Art. 28(1); Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (UN Resolution 36/55 1981) Art. 5(2); ICESCR Art 13(1); CERD (CERD) Art. 5(e)(v); ECHR First Protocol Art.2; CFREU Art. 14(1).

84. Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (UN Resolution 36/55 1981) Arts. 3 and 4.

85. UNESCO Convention against Discrimination in Education (Resolution 14 December 1960) Arts. 1 and 3.

86. UDHR Art. 26.1; UNCRC Art. 28.1(a); CFREU Art. 14(2).

87. Ireland: Art. 42.3.2 and Education (Welfare) Act 2000, s.17(1). International: UDHR Art. 26(1); ICESCR Art. 13(2)(a). See also Family H v. United Kingdom [1984] 37 DR 105.

88. UDHR Art. 26(3); ICCPR Art. 18(4); Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (UN Resolution 36/55 1981) Arts. 5(1) and 5(4); ICESCR Art. 13(3); ECHR First Protocol Art.2; CFREU Art. 14(2).

89. UNCRC Art.28(1)(b); ICESCR Art. 13(2)(b).

90. UNCRC Art. 28(1)(e).

91. UNCRC Art. 28(2).

92. UNCRC Art. 29(2); CFREU Art. 14(3).

93. UDHR Art. 26(2); UNCRC Art. 29; ICESCR Art. 13(1).

94. UNESCO Convention against Discrimination in Education (Resolution 14 December 1960) Art. 2; ICESCR Art. 13(4); CFREU Art. 14(3).

95. Education Act 1998, s.15(2)(d). Rule 69 of the Rules for National Schools requires that the religious denomination of each pupil must be entered in the school register and roll-book, and that this information is to be ascertained from the parent.

96. Jiminez and Jiminez Merino v. Spain Application No. 51188/99. However, in this case, the parents had the choice of a different type of school.

97. According to the European Court of Human Rights (ECtHR), out of the 46 member states of the Council of Europe, religion is taught in state schools in 43 countries and is only compulsory in five countries. Conditional or unlimited opt-out is available in the other countries. See Hasan and Eylem Zengin v. Turkey (Application No. 1448/04), Judgment 9 October 2007, Para. 34.

98. Rules for National Schools 1965, Rule 68.

99. Rules for National Schools 1965, Rule 69 (2)(b).

100. Rules for National Schools 1965, Rule 69 (5).

101. Rules for National Schools 1965, Rule 69 (3).

102. Rules for National Schools 1965, Rule 69 (4).

103. The Constitution therefore distinguishes between religious ‘education’ and religious ‘instruction’ – the former being the much wider term. A child who attends a school run by a religious denomination different from his own may have a constitutional right not to attend religious instruction at that school, but the Constitution cannot protect him from being influenced, to some degree, by the religious ‘ethos’ of the school. A religious denomination is not obliged to change the general atmosphere of its school merely to accommodate a child of a different religious persuasion who wishes to attend that school (Campaign to Separate Church and State Ltd and Murphy v. Minister for Education [1998] 3 IR 321 at 357–8). Moreover, one of the caveats in his judgment was that it is ‘constitutionally impermissible for a chaplain [and presumably by extension any other person] to instruct a child in a religion other than its own without the knowledge and consent of its parents’ (Keane).

104. Education Act 1998, s. 9(d).

105. Education Act 1998, s 30(2)(d).

106. In the case of schools under the patronage of the Roman Catholic Church, Alive O is used. In the case of Church of Ireland and Protestant schools, the RE curriculum is Follow Me. On this issue, see also Armstrong's article in this volume.

107. Rules for National Schools 1965, Rule 68.

108. Campaign to Separate Church and State Ltd and Murphy v. Minister for Education [1998] 3 IR 321 at 357–8.

109. Kjeldsen, Busk Madsen and Pedersen v. Denmark (Judgment of 7 December 1976, Series A, no. 23; [1979–80] 1 EHRR 711 at para. 53. This claim was based on Article 1 of the First Protocol which provides that in the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.

110. Kjeldsen, Busk Madsen and Pedersen v. Denmark (Judgment of 7 December 1976, Series A, no. 23; [1979–80] 1 EHRR 711 at para. 54. See also Hartikainen v. Finland Comm. no. 40/1978, Human Rights Committee Document A36–40, 19 April 1981, para 10.4.

111. Hasan and Eylem Zengin v Turkey (Application no. 1448/04); judgment: 9 October 2007. Para 69.

112. Folger⊘ v Norway [GC] 23 BHRC 227.

113. According to the court, ‘Article 2 of Protocol No. 1 does not permit a distinction to be drawn between religious instruction and other subjects. It enjoins the State to respect parents’ convictions, be they religious or philosophical, throughout the entire State education programme. … [T]he Court finds that the system of partial exemption was capable of subjecting the parents concerned to a heavy burden with a risk of undue exposure of their private life and that the potential for conflict was likely to deter them from making such requests. In certain instances, notably with regard to activities of a religious character, the scope of a partial exemption might even be substantially reduced by differentiated teaching’ (Folger⊘ v. Norway [GC] 23 BHRC 227, paras. 84 and 100).

114. These grounds are: gender, marital status, family status, sexual orientation religion, age, disability, race and membership of the traveller community.

115. Re Article 20 and the Employment Equality Bill 1996 [1997] IR 321.

116. Employment Equality Bill 1996 [1997] IR 321 at 360. In 1985, in a case (Flynn v Power [1985] ILRM 336) which predated this legislation, the dismissal of a teacher from her employment in a denominational school because her lifestyle was not in accord with the values promoted by the school was held to be lawful. Such an outcome is unthinkable now

117. See the seminal cases of R (on the application of Begum) v. Headteacher and Governors of Denbigh High School [2006] UKHL 15; R (on the application of X) v. Headteacher of Y School [2007] EWHC 298; [2007] All ER (D) 267.

118. Campaign to Separate Church and State Ltd and Murphy v. Minister for Education [1998] 3 IR 321.

119. Leyla Sahin v. Turkey (App. 44774/98) Judgment of 29 June 2004.

120. See Mac Cormaic 2008. The hijab is a religious requirement for all Muslim women who have reached puberty.

121. Donnelly and Riegel 2008; Mac Cormaic 2008. See also RTE News, 19 May 2008: ‘Uniform rules referred to Integration Minister’-see http://www.rte.ie/news/2008/0519/integration.html

122. Coyle 2008; Heffernan 2008; McDonagh 2008.

123. According to O'Mahony, ‘it could be argued that a ban (on religious dress) imposed by an individual school could have the effect of preventing pupils from enjoying the freedom to profess and practise their religion which the State is required to guarantee. Consequently, in light of the wording of the provision and of the case law … it is submitted that courts would be likely to entertain any claim that a school was breaching the religious guarantees of Arts 42 and 44 on its merits, rather than dismissing it on the basis that the action complained of was not attributable to the State’ (2006, 74–5).

124. UNCRC Art. 30; ICCPR Art. 27; Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (UN Resolution 47/135 of 18 December 1992).

125. UNCRC Art. 20; ICCPR Art. 27.

126. UN Human Rights Committee CCPR/C/IRL/CO/3 July 2008, para.22.

127. UN Committee on the Elimination of Racial Discrimination CERD/C/IRL/CO/2 April 2005, para.18.

128. Education Act 1998, Long Title.

129. Resolution 1804 (2007) Council of Europe, 29 June 2007, ‘State, Religion, Secularity and Human Rights’.

130. Resolution 1804 (2007) Council of Europe, 29 June 2007, ‘State, Religion, Secularity and Human Rights’.

131. Resolution 1804 (2007) Council of Europe, 29 June 2007, ‘State, Religion, Secularity and Human Rights’.