How State Schools Break The Rules

Atheist Ireland has published a major new report titled How State Schools Break The Rules. It explains how the Department of Education, the ETBs, and the NCCA are breaching Constitutional and Human Rights and the IHREC Act in Religious Education in ETB schools.

We will be using this report as the basis of our political lobbying in the coming months. You can download the full 50-page document here. This article includes the recommendations of the report, examples of relevant law, and the executive summary.

Immediate Recommendations

1. The Minister should issue a Circular Letter informing all schools that

• Under the Constitution and the Education Act and Human Rights law,
• Parents have the right to opt their children out of any Religion classes,
• Whether they are Patron’s programme Religion classes, or NCCA curriculum Religion classes,
• And whether they are described as Religious Instruction or Religious Education or any other name,
• And that schools should actively inform parents and students about this.

2. The Minister should issue a Circular Letter informing all ETB schools that

• The original provisions of Circular Letter 0013/2018 will apply to the NCCA curriculum religion classes,
• In the same way as they apply to Religion classes that are based on the requirements of one religion,
• That is, that ETB schools must ask parents before the timetable is designed whether they want their children to attend any Religion classes,
• And if they choose not to attend they will be given an alternative timetabled curriculum subject.

Subsequent Recommendations

3. The Minister should ensure that the State Curriculum offers

• An optional subject teaching About Religions, Beliefs, and Ethics,
• That is designed and delivered in an objective, critical, and pluralistic manner, as should all subjects be,
• And that vindicates the Constitutional and Human Rights of all parents, students, and teachers, of all religions and beliefs.

4. The Minister should end all religious discrimination in the education system

• As recommended by nine sets of United Nations and Council of Europe Human Rights Recommendations,
• And encompassing the four areas covered by the Atheist Ireland Schools Equality PACT: Patronage, Access, Curriculum, and Teaching.

Relevant Law

Irish Constitution, Article 44.2.4

• Reachtaíocht lena gcuirtear cúnamh Stáit ar fáil do scoileanna ní cead idirdhealú a dhéanamh inti idir scoileanna atá faoi bhainistí aicmí creidimh seachas a chéile ná í do dhéanamh dochair do cheart aon linbh chun scoil a gheibheann airgead poiblí a fhreastal gan teagasc creidimh sa scoil sin a fhreastal.
• Legislation providing State aid for schools shall not discriminate between schools under the management of different religious denominations, nor be such as to affect prejudicially the right of any child to attend a school receiving public money without attending religious instruction at that school.

Note: The Irish language version takes legal precedence. ‘Teagasc creidimh’ means teaching religion, not teaching in accordance with the requirements of one religion. So you have the right to not attend religion classes of any kind.

Education Act 1998, Section 30.2(e)

• The Minister (e) shall not require any student to attend instruction in any subject which is contrary to the conscience of the parent of the student or in the case of a student who has reached the age of 18 years, the student.

Note: Throughout the Education Act, the word ‘instruction’ is always used to mean simply the teaching of any subject on the curriculum. Again, you have the right to not attend religion classes of any kind.

Equal Status Act 2000, Section 7.2(b)

• An educational establishment shall not discriminate in relation to (b) the access of any student to any course, facility or benefit provided by the establishment.

European Convention, Article 2 of Protocol 1

• No person shall be denied a right to an education. 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 is in conformity with their own religious and philosophical convictions.

1. Executive Summary

1.1 The State is responsible for protecting Human Rights in schools. This is the case regardless of whether the schools are run directly by the State or indirectly through private bodies. The European Court made this point in the Louise O’Keeffe case. The European Court also says in its Guide on Article 2 of Protocol No. 1 to the European Convention on Human Rights, the Right to Education, updated in December 2018, that

“4. It cannot, however, be inferred that the State only has obligations to refrain from interference and no positive obligation to ensure respect for this right, as protected by Article 2 of Protocol No. 1. The provision certainly concerns a right with a certain substance and obligations arising from it. States cannot therefore deny the right to education for the educational institutions they have chosen to set up or authorise.” “14. Furthermore, the State is responsible for public but also private schools (Kjeldsen, Busk Madsen and Pedersen v.Denmark). In addition, the State cannot delegate to private institutions or individuals its obligations to secure the right to education for all. Article 2 of Protocol No. 1 guarantees the right to open and run a private school, but the States do not have a positive obligation to subsidise a particular form of teaching (Verein Gemeinsam Lernen v. Austria (dec.)).… Lastly, the State has a positive obligation to protect pupils in both State and private schools from ill-treatment (O’Keeffe v. Ireland [GC], §§ 144-152).”

1.2 Most schools in Ireland are run by private religious Patron bodies. They breach fundamental Constitutional and Human Rights by discriminating on the ground of religion. Tackling this discrimination is complicated by the legal and political relationship between the State, which funds these schools, and the private religious Patron bodies that run them. Atheist Ireland will continue to challenge those breaches of the rights of parents, students, and teachers. We are optimistic that we will succeed.

1.3 Some schools in Ireland are run by State bodies called ETBs. These Education and Training Boards also breach fundamental Constitutional and Human Rights by discriminating on the ground of religion. Tackling religious discrimination in ETB schools should be more straightforward legally, because the ETBs are public bodies, and they have a Public Sector Duty to eliminate discrimination and protect the Human Rights of minorities, including the right to freedom of religion and belief. It should also be more straightforward politically, because the State established the ETBs as public bodies to manage the schools.

1.4 ETB schools break the rules at both primary and second level. At primary level the Community National Schools were set up as a State alternative to denominational schools. At second level ETB schools and colleges are seen as the alternative to denominational schools. But the Goodness Me Goodness You course in primary level Community National Schools, and the NCCA Religious Education course in second level ETB schools, are not objective, critical and pluralistic. Learning outcomes and objectives that require students to respect beliefs create a conflict between freedom of religion and freedom of expression, where none exists. The right to opt out from these courses is not respected.

1.5 The Department of Education and NCCA facilitate this behaviour. Both bodies remain heavily influenced by a culture of giving privilege to religion, and in particular to the Catholic Church, in our State education system. At the moment, some people within the Department of Education are trying to change this culture, particularly in ETB schools. Other people are trying to resist that change, both within the Department of Education and within the ETBs, the NCCA, the Catholic Church, the Religion Teachers’ Association, and the Teachers Union of Ireland.

1.6 Change is starting, and the timing is crucial to shape that change. After years of pressure, the Government is finally realising that it has to take action on religious discrimination in the education system. Some people are pushing for a Human Rights based outcome, and others are resisting by defending nod-and-wink outcomes that will hide and reinforce religious discrimination that breaches Human Rights. So action taken now can help to shape the coming change, which will be easier than trying to fix that change after it has happened.

1.7 IHREC has an important role in shaping the coming change. The Irish Human Rights and Equality Commission recently published its Strategy Statement 2019 –2021. Strategic priority number 2 is to influence legislation, policy and practice, with a particular focus on the Public Sector Equality and Human Rights Duty under Section 42 of the Act. One of IHREC’s four resource priorities is socio-economic rights, which includes the right to education. The arguments in this briefing document also reflects the Recommendations in the IHREC Report Religion & Education: A Human Rights Perspective.

2 Constitutional and Human Rights Principles and Cases

2.1 Human Rights Protect People, Not Beliefs. The ETBs are undermining Human Rights by creating a conflict between freedom of religion and freedom of expression. This is reflected in quotes from Ahmed Shaheed, the current UN Special Rapporteur on Freedom of Religions and Belief, and from his predecessor Heiner Bielefeld, as well as from the Venice Commission Guidelines for Review of legislation pertaining to Religion or Belief, and the Council of Europe Factsheet on Freedom of expression and respect for religious beliefs: Striking the right balance.

2.2 The Right to Respect. The State is obliged to respect the right of parents to have their children educated in accordance with their convictions be they religious or philosophical. The right to education under the European Convention does not permit a distinction to be drawn between Religious Instruction and other subjects. The General Principles of the European Court which includes the absolute ‘right to respect’ are not reflected in the ETB schools at primary or second level. The State cannot absolve itself of this responsibility, as is clear from the Louise O’Keeffe case. In addition the right to privacy is simply ignored. If parents attempt to opt out their children from Religion they are questioned by the school and are put in a position whereby they must reveal intimate details about their personal life. Teacher training colleges do not train student teachers regarding the right to privacy of parents and their children.

2.3 The United Nations on the Right to Respect. The UN, in its document International Standards (13G) on the right of parents to ensure the religious and moral education of their children, has Stated that Religious Instruction in the public school system must always go hand in hand with specific safeguards on behalf of members of religious or belief minorities. The Human Rights Committee has also emphasised that instruction in a religious context should respect the convictions of parents and guardians who do not believe in any religion.

A minimum requirement would be that members of minorities have the possibility of “opting out” of a Religious Instruction that goes against their own convictions. Moreover, the possibility of opting out should not be linked to onerous bureaucratic procedures and must never carry with it de jure or de facto penalties. Finally, wherever possible, students not participating in Religious Instruction due to their different faith should have access to alternative courses provided by the school. The decision whether or not to opt out of Religious Instruction must be left to students or their parents or guardians who are the decisive rights holders in that respect.

2.4 The Right to Opt Out. At primary and second level in ETB schools the negative aspect of freedom of religion and belief is simply ignored. There is a right under the Constitution (Article 44.2.4) to opt out of “teagasc creidimh” which translates to religious teaching. This means any teaching of religion, not just faith formation or teaching in accordance with one religion. That right is reflected in the Education Act 1998, (S.30-2(e)).

The Education Act refers to all the various subjects under the curriculum as ‘instruction’. The Venice Commission has Guidelines for legislative reviews of laws affecting religion or belief. The European Court has said that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective (Airey v Ireland 1979, p.24).

The Department of Education is not being consistent and clear in its policies and responses in relating to the NCCA religion course and the right to opt out. They will not clearly state that there is a Constitutional and Human Right to opt out of the NCCA religion course regardless of what they claim it is. Stating that withdrawal does not arise is not the same thing as saying that parents have a Constitutional right to withdraw their children.

2.5 The Castletroy College Case on Opting Out. In a significant case in 2015, Castletroy Community College (ETB school) refused to permit a student to opt out of the NCCA Religious Education class. The Board of Management eventually relented after much media attention. Since this case, and the recent Circular Letters issued by the Department of Education in 2018, the situation in relation to the right to opt out from the NCCA Religious Education course has got worse.

2.6 Supreme Court Case of 1998 re Chaplains. Dr Conor O’Mahony from University College Cork has addressed the Constitutional and Human Rights issues raised by the Castletroy case. He covers both European Court cases and the Constitutional Case of 1998 regarding Chaplains. He concludes that the right to opt-out applies to the formal timetabled period of “Religious Instruction”, and would seem to capture whatever form that instruction might take. Thus, while the distinction between “Religious Instruction” and the overall school ethos or “Religious Education” is often pointed to as undermining the right to opt-out in a primary school context, it might ironically serve to strengthen it in a secondary school setting.

He concludes that Article 44.2.4° appears stronger than the ECHR in giving a seemingly absolute right to opt-out of Religious Instruction, regardless of the character of that instruction. Moreover, it specifically uses the phrase “without attending Religious Instruction”. The use of the word “attending” (as opposed to “participating in”, or something similar) could reasonably form the basis of an argument that anything short of leaving the room fails to vindicate the right to opt-out.

2.7 European Court Principles. The IHREC Report Religion & Education: A Human Rights perspective sets out the General Principles of the European Court in relation to the rights of parents and their children. The IHREC Report goes on to outline the Human Rights of parents and their children under the Convention on the Rights of the Child, Convention on the Elimination of all Forms of Racial Discrimination and the International Covenant on Civil and Political Rights.

2.8 European Court Cases. The European Court in Grzelak v Poland 2010 reiterates that freedom to manifest one’s religious beliefs comprises also a negative aspect, namely the right of individuals not to be required to reveal their faith or religious beliefs and not to be compelled to assume a stance from which it may be inferred whether or not they have such beliefs. The European Court in Mansur Yalcin & Others v Turkey 2015 reiterates the positive obligation of the State, in so far as possible, to avoid a situation where pupils face a conflict between the Religious Instruction given by the school and the religious or philosophical convictions of their parents.

2.9 European Parliament. The European Parliament Directorate-General for Internal Policies has made a Recommendation in their Report on Religious practice and observance in the EU member States (2013), it says that the efficacy of both opt-out and opt-in systems requires schools to avoid exerting any direct or indirect pressure on pupils, to inform them of the possibilities they have, and to protect them from peer pressure. At the same time, public schools should do more to provide for objective, critical and pluralistic Religious Instruction. The Equal Status Act forbids discrimination in access to any course, S7–2(b).

2.10 UN Committee on the Rights of the Child. The UN Committee on the Rights of the Child has expressed concern that children are not ensured the right to effectively opt out of religious classes and access appropriate alternatives to such classes. The Committee recommends that the State party ensure accessible options for children to opt out of religious classes and access appropriate alternatives to such classes, in accordance with the needs of children of minority faith or non-faith backgrounds.

2.11 UN Human Rights Committee. The UN Human Rights Committee has expressed concern about the slow progress in increasing access to secular education through the establishment of non-denominational schools, divestment of the Patronage of schools and the phasing out of integrated religious curricula. It also asked the State about the requirement to ensure a neutral studying environment in those schools, in denominational schools, outside the confines of Religious Instruction classes that can be opted out from. The State never replied to this question.

2.12 Forum on Patronage and Pluralism. The Forum recognised that the opt out in Irish schools was not suitable on a Human Rights basis because schools did not provide another subject and children were left sitting in the class. They also stated that children had a right to receive education in ERB and ethics and the State had a responsibility to see that it was provided.

2.13 IHREC Grant to ETBI. IHREC has given a Grant to Education and Training Boards Ireland (a private organisation) to help promote the public sector duty amongst the ETBs. Despite this grant the ETBs have continued to ignore Constitutional and Human Rights and are failing to protect the Human Rights of those whom it provides services to.

3. ETB Schools at Primary Level

3.1 Community National Schools. These schools at primary level were set up in 2008. They are supposed to be an alternative to denominational schools. The ETBs have been in discussions with the Catholic Church in relation to the GMGY course and divestment. The Characteristic Spirit of the CNS is defined in their Ethos Statement. This is not an inclusive Ethos Statement that includes non-religious convictions. Learning outcomes that require children to respect and demonstrate respect for beliefs are not based on Human Rights, they undermine them. They create a conflict between freedom of religion and belief and freedom of expression.

3.2 Goodness Me Goodness You Course. This course in Community National Schools was developed by the National Council for Curriculum and Assessment (a public body under S.42 of the IHREC Act). It is the Patron’s (the ETBs) course. The ETBs, the NCCA and the Department of Education all claim that the GMGY course is open to all, promotes pluralism, diversity, respects all belief and is inclusive. But in reality it is multi-denominational Religious Education that is not objective, critical and pluralistic. It also puts parents in a position that they have to reveal intimate details of their personal beliefs, which is another breach of Human Rights.

3.3 Religious and Cultural Celebrations. The Guidelines for Religious and Cultural Celebrations in the Community National Schools state that: “The multi-belief nature of the CNS implies that significant belief occasions should be celebrated.” The Toledo Guiding Principles states the very opposite to the CNS policy on celebrating belief occasions. They state that teachers “need to be careful to make the distinction between teaching about the holiday, and actually celebrating the holiday, or using it as an opportunity to proselytise or otherwise impose their personal beliefs.”

3.4 GMGY Learning Outcomes. These learning outcomes are not objective, critical and pluralistic. They do not reflect the General principles of the European Court in relation to the right of all children to access education in an objective, critical and pluralistic manner. They require children to respect “codes of conduct, celebrations, beliefs, artefacts, special places, rites and ceremonies, special books and stories, special journeys, special people and symbols.” They indicate “something more and other than the mere transmission of knowledge” (Folgero v Norway). They create a conflict of allegiance between children and those parents who seek secular education for their children based on Human Rights.

3.5 The Toledo Principles on Learning Outcomes. As referred to above in paragraph 3.3, the Toledo Principles don’t endorse learning outcomes such as respecting codes of conduct, celebrations, beliefs, artefacts, special places, rites and ceremonies, special books and stories, special journeys, special people and symbols. ETB/CNS claim that they teach children about equality and Human Rights. Unfortunately, it seems that they are making those Human Rights up as they go along.

4. ETB schools at Second Level

4.1 Some ETB Schools have a Christian Ethos. In a decision by the WRC in December 2017 it was found that an ETB non designated Community College had a Christian ethos. In reality, many ETBs are not an alternative to denominational schools in Ireland but reflect a religious ethos. Religious Instruction, worship and formation are integrated throughout the school day.

4.2 Religious Education Course at Second Level. At second level the main aims of the NCCA Religious Education course are not objective, critical and pluralistic and undermine Human Rights. One of the main aims of the Religious Education course at second level is to contribute to the moral and spiritual development of all students through Religious Education. It only acknowledges the nonreligious interpretation of life. The Constitution does not say that moral education has to be delivered through Religious Education. Indeed, it says that students must receive a minimum level of Moral Eeducation, and that students can opt out from Religious Education.

ETB schools do not provide another subject for students whose parents believe that those aims do not respect their philosophical convictions, and that the course would put their children in a position where they would face a conflict of allegiance between the school and their parents’ convictions. Students are coerced into taking this course. ETB schools do not inform parents that they can opt out their children. If parents manage to opt out their children they are left sitting in the class and are not provided with another subject.

4.3 Department of Education Circular Letter 0013/2018. In 2018 the Department of Education issued two Circular Letters to ETB Second level schools to address the practicalities of students opting out of Religious Instruction based on Article 44.2.4 of the Constitution and Section 30 of the Education Act. The first Circular Letter (0013/2018) outlined new procedures to enable students who chose not to attend Religious Instruction to be given an alternative subject, something that Atheist Ireland had been lobbying for.

4.4 Department of Education Circular Letter 0062/2018. After lobbying from the Catholic Church, the ETBs, the Teachers Union of Ireland, the Religion Teachers’ Association, and the NCCA, the Department issued a second Circular Letter (0062/2018) that reversed an important part of the first Circular. This Circular stated that it is “no longer necessary” for schools to consult parents or offer their children another subject if they opt out them of the NCCA Religious Education course. Which means that schools need not consult parents, who seek secular education for their children, about opting their children out of a course which seeks to develop their moral and spiritual education through religion.

4.5 The Circular Letters Have Caused Confusion. The Department has defended the existing NCCA Religious Education syllabus, and continues to defend the new 2019 NCCA Religious Education syllabus, on the basis that both are suitable if they are not mixed with Patrons’ programmes in line with one religious denomination. But this is not the case. Neither course meets Human Rights standards.

In the first Circular Letter, the Department acknowledged that some ETB schools (in our experience, the vast majority) combine Catholic faith formation with the NCCA Religious Education course. The second Circular Letter attempts to create a distinction between Religious Instruction (in accordance with one particular religion) and Religious Instruction (in accordance with the NCCA curriculum that is labelled Religious Education).

But there is no Constitutional or legal basis to make such a distinction. The NCCA curriculum does not cease to be Religious Instruction just because it is given the title of Religious Education. In legal terms, instruction is simply the word used for teaching any subject.

If you choose to exercise your Constitutional right to not be present at Religious Instruction (in accordance with the NCCA course) you should be treated the same as if you choose to exercise your right to not be present at Religious Instruction (in accordance with one religious denomination). The second circular letter does not contradict this analysis. It merely glides over it by predicting that, because of the content of the new NCCA Religious Education curriculum in 2019, the issue of withdrawing from the NCCA Religious Education Course will not arise.

It does point out that “schools have discretion to determine if they provide the subject at all or if it is to be mandatory or optional in any particular class group or year”. The Department of Education accepts that schools can make the NCCA RE course mandatory. That is contrary to Article 44.2.4 of the Constitution and Section 30 of the Education Act. The Department of Education is actively undermining Constitutional and Human Rights.

4.6 Dail Question to Minister for Education. In March 2019 the Minister for Education answered a Dail question from Ruth Coppinger TD about whether students can opt out of the NCCA Religious Education syllabus. The Minister’s answer simply added more confusion to the issue of opting out.

Firstly, the Minister confined the answer to the NCCA Religious Education Syllabus at Leaving Certificate level. He simply did not address what happens at Junior Cycle. At time of writing this, another question is being submitted asking specifically about Junior Certificate.

Secondly, the Minister’s answer says that, because it is an optional subject that students opt for at Leaving Cert level, then the question of opting out on the grounds of conscience should not arise. This phrase “should not arise” does not answer the question that was asked. The question was whether you can opt out, not whether or not it should arise that you want to opt out.

4.7 New Religious Education specification for 2019. The specification has since been published for the new NCCA Religious Education course being introduced in second level schools in September 2019. Like the existing NCCA syllabus, this new course does not meet Human Rights standards.

The new course continues to reflect the disrespect that the State has for non-religious parents and their children. It is not an Education about Religions, Beliefs and Ethics delivered in an objective, critical and pluralistic manner, but one that pursues an aim of indoctrination.

Parents who seek a secular education for their children could legitimately consider that this new course is liable to create a conflict of allegiance for their children between the school and their own values, as was found by the European Court in the case of Mansur Yalcin & Others v Turkey in 2015.

The NCCA’s Religious Education Development Group is composed of representatives of mostly religious Patron bodies, teachers unions, and the Department of Education. The Title, Aim, and Rationale of the new course all treat religious beliefs differently to non-religious beliefs. A reference to “the Divine” is a late addition to the course specifications. It was not in the draft specification published in June of last year.

The new course has 31 learning outcomes, which apply to all students. Of the 31 learning outcomes in the course: 18 are related solely to religious world views; 12 are related to a combination of religious and non-religious world views; and only 1 is related solely to non-religious world views.

5. Other Related Issues

5.1 Impact of Circular Letters on Denominational Schools. These Circular Letters issued by the Department of Education also undermine the right of parents to opt their children out of religion classes in denominational schools. Denominational schools do not have two different religion classes; one the NCCA Religion course, and the other Catholic or Protestant Religious Education. That would simply not fit into the busy schedule for any school. What many of them are doing is misusing the Circular Letters to make religion classes mandatory by claiming that they are suitable for all religions and none.

5.2 Teacher Training at DCU / Mater Dei. Student Religious Education Teachers in DCU take specific modules to enable them to teach in Catholic and Protestant denominational schools at second level. The Incorporation Agreement between the Mater Dei Institute and DCU clearly states that the distinctive identity and values of teacher education in Roman Catholic and Church of Ireland are maintained on an ongoing basis. The Deeds of Trust for ETB Community Schools and the Model Agreement for designated Community Colleges as well as Circular Letter 79 give the relevant religious authority a veto over the hiring of religion teachers and chaplains in ETB schools.

5.3 The Right to Objective Sex Education. In January 2019 the Oireachtas Joint Committee on Education and Skills published a Report on Relationship and Sexuality Education. One of the Recommendations was that the Education Act be amended or at least reviewed so that ethos can no longer be used as a barrier to the effective, objective and factual teaching of the RSE and SPHE curriculum to which every student is entitled. Some ETB schools and colleges deliver Sex Education according to their religious ethos which in most case reflects the teachings of the Catholic Church. The reason for this is that some ETB schools and colleges have a religious ethos. If ETB schools and colleges fulfilled their public sector duty under Section 42 of the IHREC Act, then all of their schools would deliver sex education in an objective manner.

The Full Report: How State Schools Break The Rules

This executive summary is numbered in accordance with the sections of the main body of the document. So, for further details on any aspect of the summary, go to the relevant section number in the body of the document. You can download the full 50-page document here.