Racism and Homophobia in Schools

Article 42 of the Irish Constitution provides a right to free primary education which is to be provided for by the State. There are various difficulties with the satisfaction and sufficiency of this right as it stands, particularly in relation to children with particular educational needs (for more see Educational Rights in Irish Law by CCJHR member Dr. Conor O’Mahony). However, protection of children within the school environment is also vital to ensure that children benefit to the extent possible from the educational program within the school. Various factors can interfere with this, but today two pieces of research were released suggesting particular difficulties in this relation.

The first is a policy document of the Association of Secondary Teachers in Ireland expressing its disappointment and concern at the Department of Education’s lack of action to implement the National Action Plan against Racism in Schools (RTE). The second is a document emanating from the Association of Teachers and Lecturers in the UK, which documents the very high incidence of homophobia in schools (Guardian). Although this research concerns UK education, it seems likely that the same conclusions could be reached in relation to Irish education.

Indirect Discrimination in Denominational Schools’ Admission Policies

The Jewish Free School (JFS) is considered the best Jewish school in the United Kingdom. As a result the school is over-subscribed. As in Ireland (under s. 7(3)(c) of the Equal Status Act 2000), denominational schools in the UK are entitled to favour children of the same denomination as the school in enrollment procedures. In the case of the JFS one of the selection criteria was to “be recognised as being Jewish by the Office of the Chief Rabbi of the United Hebrew Congregation of the Commonwealth” (JFS Admission Policy). It appears that the Chief Rabbi was, in the case of admissions to JFS, using a sub-rule for admissions that considered whether a child was ethnically Jewish (i.e. having at least one Jewish parent or grandparent), with ethnic Jews being preferred in the case of over subscription to the school.

Yesterday the Chief Schools Adjudicator ruled that the exclusion of a child whose mother (who incidentally is head of English at the school) was a convert to Judaism and not, therefore, ethnically Jewish, was “indirect” discrimination. Importantly, however, the CSA also held that there was no race-relations implication in preferring Jewish students over non-Jewish students, finding instead that this was a matter of religion.

The question of ‘indirect discrimination’ in school admission policies may become germane in Ireland as schools (particularly at primary level) continue to be oversubscribed. Can a Catholic school, for example, not only prefer Catholic children to non-Catholic children in its admission policies but then prefer some Catholic children to others if the number of applicants still out-strips the number of available places? Would it be permissible to narrow down the field of applicants based on the frequency of a child’s attendance at church services? Or based on whether their parents went to Catholic schools? Or based on whether their parents are Catholic? It is clear that the JFS admission criteria were not attempts to assess levels of genuineness of religious conviction or levels of religious conviction; Judaism is an ethnicity as well as a religion, the same is possibly not true of Catholicism (although see O’Toole, “Ethnic Catholicism in Boston” (1992) New England Quarterly 117 for an alternative view). However questions of indirect discrimination may begin to arise in Ireland, and the JFS case suggests that s. 7(3)(c) of the Equal Status Act may not allow for such admission policies on the part of denominational schools.

This story is also reported in The Guardian and Ha’aretz.

ECtHR Decision on Roma Education Rights in Czech Republic

The European Court of Human Rights last Tuesday handed down its judgment in DH & Others v Czech Republic concerning the segregated education of Roma children in the Czech Republic. The Court found that the education offered to the Roma children was substandard and was “not attended by safeguards [citations omitted] that would ensure that, in the exercise of its margin of appreciation in the education sphere, the State took into account their special needs as members of a disadvantaged class”. The segregation of the Roma children and their provision with lower quality education constituted a discriminatory violation of their right to education (Article 14 & Article 2, Protocol One) and the respondent state was ordered to pay 4,000 Euro to each child. Interestingly, the judgment makes extensive reference to EC law, international human rights law, non-binding reports and opinions on Roma education in the respondent state, as well as the Court’s own jurisprudence.