Withdrawal of grants from Protestant schools

Jim_Are_Great

As recently proposed by Batt O'Keefe. Could prove constitutionally difficult?

GerardKeating

Jim_Are_Great wrote: »

As recently proposed by Batt O'Keefe. Could prove constitutionally difficult?

I thought the minister said that keeping the grants would prove constitutionally difficult...

johnfás

GerardKeating wrote: »

I thought the minister said that keeping the grants would prove constitutionally difficult...

Not a position shared by Professor Gerry Whyte. I wrote a letter along the same lines as Whyte to the Irish Times but they published his... which has far more authority than my letter!

Madam, – The Government’s belief that the Constitution requires the withdrawal of special funding for Protestant schools is at least debatable.

Admittedly, Article 44.2.4 expressly provides that “Legislation providing State aid for schools shall not discriminate between schools under the management of different religious denominations” – on one view, the provision of special funding to Protestant schools might appear to infringe this provision.

However, one could argue that the type of discrimination caught by this provision is unjust discrimination where two similarly situated groups are, without justification, treated differently by the State. If so, then arguably this provision would not prevent the State providing additional support to Protestant schools where such aid is intended to “level the playing field”, so to speak .

One could also argue that Article 44.2.4 should not be interpreted in isolation but should be construed in the light of the guarantee of religious freedom in Article 44.2.1, and the approach taken by the Supreme Court to the interpretation of Article 44.2.3, which prohibits the State from discriminating generally on the ground of religious profession, belief or status.

Thus in the Quinn’s Supermarket case in 1971, the prohibition on religious discrimination was put to one side in order to facilitate a religious practice, Jewish observance of the Sabbath.

A few years later, the same approach was adopted in the McGrath and Ó Ruairc case in order to protect a decision of ecclesiastical authorities, in this case, the dismissal of the plaintiffs from employment in Maynooth College because they had applied for laicisation. More recently, in 1996, the Supreme Court appears to have accepted that the promotion of social conditions conducive to, though not strictly necessary for, the fostering of religious beliefs may qualify the prohibition on religious discrimination. Thus in the Employment Equality Bill reference, the Supreme Court upheld the constitutionality of legislative provisions permitting religious bodies operating religious, educational or medical institutions to discriminate on grounds of religion in order to maintain the religious ethos of the institution.

According to the court, “It is constitutionally permissible to make distinctions or discriminations on grounds of religious profession, belief or status insofar – but only insofar – as this may be necessary to give life and reality to the guarantee of the free profession and practice of religion in the Constitution.”

Admittedly the courts have yet to consider whether this approach also applies to Article 44.2.4 but if it does, then it seems to me it could offer constitutional protection for the provision of special funding for Protestant schools. – Yours, etc,

GERRY WHYTE,

Law School,

Trinity College Dublin.

Mr. SS

Last Thursday's examiner had an article in which it explained how much the Protestant schools recieve. €350 is spent on every school going child that goes to any school which is not protestant so Catholic, VEC, Educate together as examples.
Whereas €650 is spent on each child in Protestant schools. I'm sorry I do agree with subsidising such schools to give bursaries for students who have to board there, but giving almost double for each child is discriminatory against non-protestants and is simply too much and not fair.

Mr. SS

also if the courts finds that the special provision is legal then where does it end. Muslims will want a secondary school to go along with their primary, every minority who in theory face a lot more discrimination than protestants ever did will want a piece of the pie.

Victor

But don't such provisions exist for Gaelscoils and de facto small country schools?

Dandelion6

Victor wrote: »

But don't such provisions exist for Gaelscoils and de facto small country schools?

The difference is that the Constitution doesn't prohibit discrimination in the provision of aid to Gaelscoils and small country schools.

Victor

Those small country schools all being Catholic? The difference is that the Protestant schools seem to have pooled their money and used fewer, but larger schools.

trad

I would have thought it was more an issue under Equal Status legislation in that the Catholic population could argue that they were being discriminated against by virtue of the fact that there weren't Protestant.

There was a school near Capel Street in Dublin that closed a few years back that catered exclusively for members of the travelling community. The children were picked up from home and driven to the school, they had a cooked dinner every day and driven home. The pupil / teacher ratio was in the region of 1 to 6. The official reason for closing the school was integrated education but there was a strong suspicion that it could have been argued that the settled community could claim that they were being descriminated by virtue of not being travellers.

Long Onion

I would certainly agree with Whyte's opinion on this. My understanding of the situation is that due to the low numbers and dipresement of Ireland's protestant community, it is necessary for many of them to travel considerable distances to attend a Protestant school, this means that for many, boarding is the only option. Added to this is the fact that a sizeable number of Protestant families in the country are not particularly well off.

The net result is that some kind of subsidy is needed in order to ensure that children can attend a school run is accordance with their faith. As far as I am aware, the grant money is usually utilised by the school boards to subsidise the boarding costs of the less well of families, as this is the only way to ensure that they can afford to attend the school in the first place.

It is, in my opinion, perfectly concievable that certain minorities may need a greater degree of support than the established majority in order to prtect their rights, this would appear to me to be entirely constitutional. The Quinn case referred to above would seem to lend support to this assertion. I would venture further though and argue that the removal of this funding may actually be deemed to be un-constitutional as it may be demonstrated to prevent a sizeable proportion of the countries protestant children from attending a school which is in keeping with their ethos.

Were we a wholly secular society, I would not think that the removal of funding would be an issue, however the fact is that the vast majority of our schools are run by Catholic institutions and can reasonable be deemed to be unsuited to those of the Protestant faith. It is possible that some of the community schools may provide acceptable alternatives but this would not remove the fact that travel and boarding may still be needed.

The special protection granted to religion that the constitution bestows has to be deemed capable of granting both positive and negative rights in certain situations and, were I a mamber of the protestant community I would certainly consider mounting a legal challenge to this move. It would be interesting to see if an Islamic school were to be set up and apply for special funding if it would be granted.

On a final note, the Traveller point above is a different issue as it does not concern the issue of freedom of religious practice. It is a cultural and ethnic issue and will only serve to muddy the waters in this debate.

Mr. SS

Victor wrote: »

Those small country schools all being Catholic? The difference is that the Protestant schools seem to have pooled their money and used fewer, but larger schools.

Victor it is there black and white €650 per head protestant €350 a head EVERYBODY else (not just catholic, Vocational schools, Educate together). Thats from the examiner not me. What I will say is that the gaelscoilenna that also recieve this 'funding' that you talk of are in far worse shape than their protestant counterparts.

Colaiste Muire for example which had to abondon parnell street because its delapidated and move into prefabs on the grounds of St.Josephs' school for deaf boys on the Navan road. Cabra Gaelscoil who was on RTE news last night because their school (prefabs) is infested with rats and their heating doesnt work, Maynooth Gealscoil which has been looking for a permanent building for over 7 years has to watch while an educate together school is built right across the road.

I do not see Kings hospital, Weseley college, Kilkenny College, St columbas or Drogheda, Dundalk or Bandon Grammer schools with such problems. Why? Because they recieve almost DOUBLE the money for each student.

enry

Long Onion wrote: »

I would certainly agree with Whyte's opinion on this. My understanding of the situation is that due to the low numbers and dipresement of Ireland's protestant community, it is necessary for many of them to travel considerable distances to attend a Protestant school, this means that for many, boarding is the only option. Added to this is the fact that a sizeable number of Protestant families in the country are not particularly well off.

The net result is that some kind of subsidy is needed in order to ensure that children can attend a school run is accordance with their faith. As far as I am aware, the grant money is usually utilised by the school boards to subsidise the boarding costs of the less well of families, as this is the only way to ensure that they can afford to attend the school in the first place.

It is, in my opinion, perfectly concievable that certain minorities may need a greater degree of support than the established majority in order to prtect their rights, this would appear to me to be entirely constitutional. The Quinn case referred to above would seem to lend support to this assertion. I would venture further though and argue that the removal of this funding may actually be deemed to be un-constitutional as it may be demonstrated to prevent a sizeable proportion of the countries protestant children from attending a school which is in keeping with their ethos.

Were we a wholly secular society, I would not think that the removal of funding would be an issue, however the fact is that the vast majority of our schools are run by Catholic institutions and can reasonable be deemed to be unsuited to those of the Protestant faith. It is possible that some of the community schools may provide acceptable alternatives but this would not remove the fact that travel and boarding may still be needed.

The special protection granted to religion that the constitution bestows has to be deemed capable of granting both positive and negative rights in certain situations and, were I a mamber of the protestant community I would certainly consider mounting a legal challenge to this move. It would be interesting to see if an Islamic school were to be set up and apply for special funding if it would be granted.

On a final note, the Traveller point above is a different issue as it does not concern the issue of freedom of religious practice. It is a cultural and ethnic issue and will only serve to muddy the waters in this debate.

I’m not a protestant however I’m thinking about becoming one.

Lets take kilkenny college as an example 4 rugby pitches, three all weather, one Astroturf and one grass hockey pitch tennis crts and more labs and special subjects to study then I could shake a stick at.

kck day pupil fees are more expensive then newbridge college. Im not a protestant however i'm think about becoming one because i want me kids to have a chance in life and the advantage they would have from going to such a school would be unbelievable.

I cant afford private schools however i can if i change my religion so i say this to you my kids are at a disadvantage simply by virtue of their religion why should the tax i pay support poor protestant kids have a private education while my kids get a third class education in a local school. It sickens me.

Mr. SS

Long Onion wrote: »

I would certainly agree with Whyte's opinion on this. My understanding of the situation is that due to the low numbers and dipresement of Ireland's protestant community, it is necessary for many of them to travel considerable distances to attend a Protestant school, this means that for many, boarding is the only option.

OK long onion I see what your saying but I'll put it to you like this. I live in the most protestant part of the country that is not part of the north (West Wicklow). So from where west wicklow starts right down to Baltinglass (on the Carlow border) and then into Carlow (Hacketstown and Tullow) there is not a single demnoinational school at secondary level.

Wicklow VEC operates Blessington, Dunlavin and Baltinglass; and Carlow VEC operates Hacketstown and Tullow. If a protestant wants to go to an ethos school (usually Weseley or Kilkenny College) He/she will recieve up to a full grant. Now if I want to go to Newbridge college or Clongowes wood to board, or to Carlow or Naas towns (where the nearest Catholic schools are) I would get no grant, and yet I could live farther away, up the back of the Glen of Imaal! The protestant student could live in Kilkenny town itself and still get a grant!

I am in support of subsidsing students who live far away but it cannot be just given to schools in block form to do with as they please. It should be just like the third level grants and each county council could deal with it on a distance/means tested basis. Then every student that needs it would get it.

Knockbeg College in Carlow town was a boarding school that only charged €1000 a year, it closed its boarding section two years ago as,the demand for boarding has fallen. But i always wondered how they weren't charging tens of thousands like the other boarding schools... food for thought

Mr. SS

enry wrote: »

I’m not a protestant however I’m thinking about becoming one. I cant afford private schools however i can if i change my religion so i say this to you my kids are at a disadvantage simply by virtue of their religion why should the tax i pay support poor protestant kids have a private education while my kids get a third class education in a local school. It sickens me.

Here Here! you said what I was trying to say only better!

johnfás

Mr. SS wrote: »

Last Thursday's examiner had an article in which it explained how much the Protestant schools recieve. €350 is spent on every school going child that goes to any school which is not protestant so Catholic, VEC, Educate together as examples.
Whereas €650 is spent on each child in Protestant schools. I'm sorry I do agree with subsidising such schools to give bursaries for students who have to board there, but giving almost double for each child is discriminatory against non-protestants and is simply too much and not fair.

You, the Examiner, or both are misquoting the factual situation of education grants. The figure of €663.85 is that which is granted on behalf of every child to every school the free fees sector (that is the capitation grant of €345 + the ancillary grant of €318.75 consisting of €204 school service support; €69.84 and €44.44 for caretaking and secretarial supports up to a maximum of 350 pupils) whereas the €345 is the figure granted to fee paying Catholic schools (that is capitation grant + no ancillary grant).

Up until now the fee paying Protestant schools had been treated as in the free fees sector and thus received €663.85, as a result of the ancillary grant cut they will now receive €345. The point is that 85% of Protestant schools are within the fee paying sector and thus the level of funding provided for the vast majority of Protestant children is now well below the level of funding provided for the vast majority of Catholic chidren. The capitation grant continues to be provided on behalf of every child in the State to every school in the State. In the case of Catholic and VEC schools this is paid directly to the schools whereas in the context of Protestant fee paying schools the money is put into a central fund and then distributed on a means tested basis as a discount on the fees chargeable by the school. The average Protestant parent thus still has to expend several thousand euro per year in order to realise a right which is available free of charge to the majority of parents.

As demonstrated above, your statement that the grant for children attending VEC schools is €350 is not factually accurate (it is in fact €663.85), nor is it accurate that Educate Together maintain any secondary schools. They are the facts, if you choose not to believe them you are more than welcome to contact the Department of Education to confirm the situation which I can assure you will accord with the description I have presented in this post.

In actuality, aside from compounding discrimination these grants will actually end up costing the State more money as if a parent is forced to withdraw their child from a fee paying Protestant school and enrol them in a free Catholic school, not only will their Constitutional rights be breached, but the State will also have to incur the additional €318.75 of the ancillary grant which would now be payable to the local free Catholic school which was just withdrawn from the fee paying Protestant school.

enry

johnfás wrote: »

You, the Examiner, or both are misquoting the factual situation of education grants. The figure of €663.85 is that which is granted on behalf of every child in the free fees sector (that is the capitation grant of €345 + the ancillary grant consisting of €204 school service support; €69.84 and €44.44 for caretaking and secretarial supports up to a maximum of 350 pupils) whereas the €345 is the figure granted to fee paying Catholic schools (that is capitation grant + no ancillary grant).

Up until now the fee paying Protestant schools had been treated as in the free fees sector and thus received €663.85, as a result of the ancillary grant cut they will now receive €345. The point is that 85% of Protestant schools are within the fee paying sector and thus the level of funding provided for the vast majority of Protestant children is now well below the level of funding provided for the vast majority of Catholic chidren.

Your statement that the grant for children attending VEC schools is €350 is not factually accurate (it is in fact €663.85), nor is it accurate that Educate Together maintain any secondary schools. They are the facts, if you choose not to believe them you are more than welcome to contact the Department of Education to confirm the situation which I can assure you will accord with the description I have presented in this post.

please give me an example of a protestant secondary school that does not look for fees.

Id also love to know how these kids do in their leaving certs in comparison to their privately educated catholic counterparts or whether any of these protestant school have won the school boys rugby competitions. as these schools should be getting result considering the large amouts of money that i know have been paid to these schools in one off grants.

I went to a protestant secondary school myself and im just curious.

johnfás

enry wrote: »

please give me an example of a none fee paying protestant secondary school.

There are 5 such schools in the State (out of a total of 26 schools within the sector). They are as follows:

1. Newpark Comprehensive School, Blackrock, Dublin.
2. Mount Temple Comprehensive School, Clontarf, Dublin.
3. East Glendalough School, Wicklow Town.
4. Ashton Comprehensive School, Cork.
5. Royal and Prior Comprehensive School, Raphoe, Donegal.

The Royal and Prior is the only one with boarding facilities, for which fees are chargeable.

I fail to see what relevance school boy rugby competitions have to this discussion which is on this board necessarily of a legal nature, but to satisfy your curiosity the last time a Protestant school won the Leinster Schools Senior Cup was in 1973, the time before that being 1922... whatever that has to do with anything.

enry

johnfás wrote: »

There are 5 such schools in the State (out of a total of 26 schools within the sector). They are as follows:

1. Newpark Comprehensive School, Blackrock, Dublin.
2. Mount Temple Comprehensive School, Clontarf, Dublin.
3. East Glendalough School, Wicklow Town.
4. Ashton Comprehensive School, Cork.
5. Royal and Prior Comprehensive School, Raphoe, Donegal.

The Royal and Prior is the only one with boarding facilities, for which fees are chargeable.

I fail to see what relevance school boy rugby competitions have to this discussion, but to satisfy your curiosity the last time a Protestant school won the Leinster Schools Senior Cup was in 1973... whatever that has to do with anything.

it has nothing to do with anything.

Maybe these schools should concentrate on education as opposed to segregation (through fees)they might produce more swifts, butts and Parnells. Less self esteem courses and more maths. I’m not having a dig here but unless something has changed radically since I was in school these places will produce very few of the leaders of tomorrow.
This is not a religious argument I have a huge amount of time for the protestant beliefs in fact I have more time for the protestant religion then I do have for the catholic religion.
However by having almost all of your schools private there is at least a tacit representation to the local communities in which these school are placed that these people think there better then them. These places are full of anarchistic ideas and give young people notions about themselves, however, I apply that to all private schools in this country.
I was under the impression that those who went to school with me and could not afford the fees were there either through the altruism being practiced by the school itself of their local church or even the fees my parents were paying. not down to our taxes

Dan133269

I'm probably missing the point but let me say a few things that I think are relevant.

It seems to have just been assumed that it is necessary to attend a Protestant school in order to practice that religion. While that is preferable, it is clearly not necessary. Thus any child who wishes to attend a Protestant school but cannot do so, that is simply tough. If your parents cannot afford to send you to the school you would like to go to, a school of a different religion will have to do. The argument has been made that without this extra funding Protestants will not be able to attend Protestant schools, as far as I know they have no constitutional right to attend a school of their choice. They can obviously opt out of religion class in a catholic or vec school but cannot ask for the religious ethos of the school to be changed as per Campaign to Separate Church and State v Min. for Education. Therefore is paying the Protestant schools extra funding in itself endowment of a religion prohibited under Art. 44.2.2?

Also, what percentage of the Irish population is Protestant? 5% of the population have no religion according to the last census, the idea that atheists should have a completely religion free school and be subsidised to the extent necessary would probably be laughed at by most people. Would a religion free school if it were to be set up be in the same situation as a Protestant school and be entitled to the same funding? I'm asking this based on the idea that whatever justification or basis there is for additional funding of Protestant schools can also be used as a basis for the same funding of atheist schools.

johnfás

It certainly can be used as justification for also having state supported secular schools, that is a given.

It is interesting that you mention Campaign for Separation of Church and State v Min for Education in regard to endowment, if you read the case you will find that the primary facts of that case concerned the State specifically paying for chaplains within Catholic schools - it was found that this was not an endowment and thus it is not likely that the current funding arrangement would be found to be an endowment.

Finally, the constitution does not just provide a right to send a child to the school of your choice (which as you recognise is an extension of the free practice of religion provision), it further under Article 42.3 provides a negative right - that is that a parent shall not be forced to send their child to a school designated by the State in violation of their conscience. The central argument in regard to choice is that if the grants are withdrawn, the State is de facto creating a situation for many rural Protestants that they are forced to send their child to the local Catholic school, which violates their Article 42.3 rights. Either way that is not really what is under discussion here as nobody has yet brought before the courts the question of whether the removal of the grants is unconstitutional. Rather, the Minister has stated that on the advice of the Attorney General, the continuation of the grants is unconstitutional. He has provided no basis for this opinion, either publicly or privately in discussions with representatives of Protestant schools and the Minister's Constitutional interpretation (I apply it to the Minister purposely, as I doubt it is the position shared by the AG) has been seriously questioned by any lawyer who I have chatted to about this Constitutional issue as well as clearly demonstrated in the caselaw such as Quinn and also in money cases such as macmathuna v ireland.

At enry above, a poor Protestant child has received no more funding from the State than a poor Catholic child per capita - €663.85, but that has now been reduced to €345 whilst remaining €663.85 for the majority of Catholic children. The difference is merely in the form that the money is allocated, rather than being allocated per rata it is allocated en block which means that in order that the schools remain viable, those who can afford the fees essentially forego their child's right to State supported capitation (which is provided to every child in the State irrespective of the school you attend) which is then used to subsidise the fees of less well off childre on a means tested basis.

As I said above, on a cost basis the cuts actually make no sense, because if a child withdraws from a fee paying Protestant school who until the last budget was receiving grants totally €663.85 (now €345) as a result of the cuts and therefore must enrol in a local Catholic school, that school will receive a per capita increase in grants totalling €663.85 and thus the State will not save any money.

Long Onion

enry wrote: »

Less self esteem courses and more maths. I’m not having a dig here but unless something has changed radically since I was in school these places will produce very few of the leaders of tomorrow.
This is not a religious argument I have a huge amount of time for the protestant beliefs in fact I have more time for the protestant religion then I do have for the catholic religion.
However by having almost all of your schools private there is at least a tacit representation to the local communities in which these school are placed that these people think there better then them. These places are full of anarchistic ideas and give young people notions about themselves, however, I apply that to all private schools in this country.
I was under the impression that those who went to school with me and could not afford the fees were there either through the altruism being practiced by the school itself of their local church or even the fees my parents were paying. not down to our taxes

I would say that this very much is a religious argument, the entire argument turns on the constitutional protections in place to allow one to enjoy religious freedom. If your argument is not a religious one, it will not have a huge addition to the substantive issue here.

Secondly, some people here seem to be misunderstanding the way protestant scholls are run. Due to the population spread, it is necessary that these schools offer boarding facilities. Boarding schools are notorioulsy expensive to run, the fees for day pupils contribute towards the running of the school and bursaries are given to protestant families who cannot afford the fees. Most are not private fee paying schools by choice, and many of the less well off protestant pupils pay no or negligible fees.

Dan133269 wrote: »

Also, what percentage of the Irish population is Protestant? 5% of the population have no religion according to the last census, the idea that atheists should have a completely religion free school and be subsidised to the extent necessary would probably be laughed at by most people. Would a religion free school if it were to be set up be in the same situation as a Protestant school and be entitled to the same funding? I'm asking this based on the idea that whatever justification or basis there is for additional funding of Protestant schools can also be used as a basis for the same funding of atheist schools.

One's constitutional rights should not diminish in relation to population size. Atheism in not a religion per se but a lack of relious beliefs.

MrPudding

Discrimination in schools on the basis of religion.

Following on from the thread in the Atheism and Agnosticism forum, I am wondering what is the basis for allowing this practice to continue.

Actually, I suppose the first question is; is it discrimination? A non religious parent put his child on the waiting list for the village school, which happens to be catholic. Children that are baptised as catholic are given a higher priority in the admissions process. If it comes down to the point where there are two children for one place the child that is catholic will get the place over the child that is not, irrespective, I believe, of any other factors that could be used to differentiate. Is this discrimination?

If it is discrimination why is it allowed?

Would this be something that could be challenged in Ireland or in Europe?

Note: I am not asking for advice here, I am simply looking for discussion on the idea.

MrP

johnfás

Broader policy discussions would be best suited to other forums on boards, this is primarily a forum for the discussion of legal issues.

However, in respect of your question as to the basis of admissions policies in denominated schools the answer lies in the Equal Status Act 2000. Under Section 7(3)(c) the Act provides that an educational establishment does not discriminate (under the meaning of the Act) by reason only that:

"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"

Your question is, if it comes down to the point where there are two children for one place [in a Catholic School] and the child that is catholic will get the place over that child, is this discrimination? The answer is, for the purposes of the law, this is not discrimination.

MrPudding

johnfás wrote: »

Broader policy discussions would be best suited to other forums on boards, this is primarily a forum for the discussion of legal issues.

Cheers for the response. I suppose it could be discussed In the politics forum, but I was more interested in a legal slant on it.

johnfás wrote: »

However, in respect of your question as to the basis of admissions policies in denominated schools the answer lies in the Equal Status Act 2000. Under Section 7(3)(c) the Act provides that an educational establishment does not discriminate (under the meaning of the Act) by reason only that:

"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"

Your question is, if it comes down to the point where there are two children for one place [in a Catholic School] and the child that is catholic will get the place over that child, is this discrimination? The answer is, for the purposes of the law, this is not discrimination.

OK, so with respect to Irish law it is all good. How does this fit with European law or the human rights act?

MrP

Tom Young

MrPudding wrote: »

How does this fit with European law or the human rights act?

MrP

The Human Rights Act 2003 merely calls for judicial notice, nothing more. We are not in the UK where such an act subsists.

Go back and read the thread again, as I've merged yours with the earlier discussions here.

This whole debate is a mess - Nationally. It should never have arisen.

Tom

Long Onion

Tom Young wrote: »

This whole debate is a mess - Nationally. It should never have arisen.

Tom

How so?

Tom Young

My own view is that the starting point was well set out by Gerry Whyte:

Madam, – The Government’s belief that the Constitution requires the withdrawal of special funding for Protestant schools is at least debatable.

Admittedly, Article 44.2.4 expressly provides that “Legislation providing State aid for schools shall not discriminate between schools under the management of different religious denominations” – on one view, the provision of special funding to Protestant schools might appear to infringe this provision.

However, one could argue that the type of discrimination caught by this provision is unjust discrimination where two similarly situated groups are, without justification, treated differently by the State. If so, then arguably this provision would not prevent the State providing additional support to Protestant schools where such aid is intended to “level the playing field”, so to speak .

One could also argue that Article 44.2.4 should not be interpreted in isolation but should be construed in the light of the guarantee of religious freedom in Article 44.2.1, and the approach taken by the Supreme Court to the interpretation of Article 44.2.3, which prohibits the State from discriminating generally on the ground of religious profession, belief or status.

Thus in the Quinn’s Supermarket case in 1971, the prohibition on religious discrimination was put to one side in order to facilitate a religious practice, Jewish observance of the Sabbath.

A few years later, the same approach was adopted in the McGrath and Ó Ruairc case in order to protect a decision of ecclesiastical authorities, in this case, the dismissal of the plaintiffs from employment in Maynooth College because they had applied for laicisation. More recently, in 1996, the Supreme Court appears to have accepted that the promotion of social conditions conducive to, though not strictly necessary for, the fostering of religious beliefs may qualify the prohibition on religious discrimination. Thus in the Employment Equality Bill reference, the Supreme Court upheld the constitutionality of legislative provisions permitting religious bodies operating religious, educational or medical institutions to discriminate on grounds of religion in order to maintain the religious ethos of the institution.

According to the court, “It is constitutionally permissible to make distinctions or discriminations on grounds of religious profession, belief or status insofar – but only insofar – as this may be necessary to give life and reality to the guarantee of the free profession and practice of religion in the Constitution.”

Admittedly the courts have yet to consider whether this approach also applies to Article 44.2.4 but if it does, then it seems to me it could offer constitutional protection for the provision of special funding for Protestant schools. – Yours, etc,

GERRY WHYTE,

Law School,

Trinity College Dublin.

Now, despite the trolling nature of the how so question asked, I'd have thought it not very clever either politically or from a Public Relations point of view to engage in such a debate, at all. Understanding the nature of the legal history and development of religious discrimination in the state is something that to my mind has troubled this country for a very long time.

I say and believe Prof Whyte is correct it is debatable and I don't mean that in the context of requiring debate I mean that expression in the context of its validity on practical, constitutional and equality grounds.

Some posters have pointed at various schools above in relation to their status' and I firmly believe a counter argument can be made in relation to church state funding etc when it comes to catholic schools and indeed private schools of the catholic faith receiving grants when the reality is that the fees paid can in most cases well cover the extent of operation of the/a school.


Tom

Mr. SS

I accept i am wrong on a few of those points. Educate together do not operate secondary schools.

The quote from the examiner reads: "Education minister Batt O'Keeffe told the Dail on tuesday (last) that the Attorney General had given his officials this advice. He had been told that it was wrong that Protestant schools were recieving €645 for every student compared with €345 with other schools"

I won't take full responsibility for that quote even though I was a fiver out on my figures! Im obviously not as up on my education as you but I wont be contacting the Department, the newspapers will be good enough for me, even if some risk is attached.

Fair enough points johnfas but at the end of the day I still believe private is private and therefore such schools should not recieve state funding in the first place. Its not about the government saving money either, I think that the government could do a lot more with the €90,000,000+ a year it spends on heating swimming pools and resurfacing hockey pitches. Maybe it could actually build some schools for the children shivering in prefabs.

Given the several thousand that parents are paying I don't think it would be too much to ask them to pay another €645 or €345 (religion dependent). I think they'll get it from somewhere; if this is really the only contribution the state makes as you seem to claim. So it wouldn't end up costing them money in my opinion.

johnfás wrote: »

In actuality, aside from compounding discrimination these grants will actually end up costing the State more money as if a parent is forced to withdraw their child from a fee paying Protestant school and enrol them in a free Catholic school, not only will their Constitutional rights be breached, but the State will also have to incur the additional €318.75 of the ancillary grant which would now be payable to the local free Catholic school which was just withdrawn from the fee paying Protestant school.

Not all schools besides protestant ones are Catholic. You can leave Dublin on the N81 and drive for over two hours and you won't get to a Catholic school in any town on or anywhere near that road untill Bunclody, Co. Wexford.

If it's a breach of Protestants' constitutional rights to have to go to a non-denominational school, then the constitution needs changing. Obviously thats a point for another day.

Mr. SS

Long Onion wrote: »

Boarding schools are notorioulsy expensive to run, the fees for day pupils contribute towards the running of the school and bursaries are given to protestant families who cannot afford the fees. Most are not private fee paying schools by choice, and many of the less well off protestant pupils pay no or negligible fees.

As I said before, Knockbeg College just outside Carlow town offered boarding for €1000 for the year! Amazing I know. It is a public school and so does not collect fees from day pupils.

Boarding is not expensive... swiming pools, astro turfs and prunning ivy are expensive!!!

johnfás

The comparison to €345 to other school is other schools within the fee paying sector, not other schools generally. The Irish Examiner is misleading in its neglect to finish that sentence.

All schools within the free fees sector receive €663.85 per student per year though the bulk of the ancillary grant, which is the grant being cut here, is capped at a maximum of 350 pupils per school so in real terms for most schools it would be more like €600 per student when you average it out, but that naturally depends on the school in question.

Long Onion

Tom Young wrote: »

Now, despite the trolling nature of the how so question asked, I'd have thought it not very clever either politically or from a Public Relations point of view to engage in such a debate, at all. Understanding the nature of the legal history and development of religious discrimination in the state is something that to my mind has troubled this country for a very long time.

I say and believe Prof Whyte is correct it is debatable and I don't mean that in the context of requiring debate I mean that expression in the context of its validity on practical, constitutional and equality grounds.

Some posters have pointed at various schools above in relation to their status' and I firmly believe a counter argument can be made in relation to church state funding etc when it comes to catholic schools and indeed private schools of the catholic faith receiving grants when the reality is that the fees paid can in most cases well cover the extent of operation of the/a school.
Tom

Tom Young, I can assure you that there was no Trolling behind my question, I was looking for an explaination as to how you arrived at the decision that the issue should never have been the suject of debate. Your reply above does not, to my mind, back up this stance. In a nutshell, we have a situation whereby a government decision taken on advice of the Attorney General, is capable of having real impact on a certain section of the population.

Against this we have some respected legal scholars saying that there is a constitutional issue here that should be explored as the Attorney General's opinion may be open to challenge. Reasoned debate is surely the underoinning of all progressive legal systems, arguably this is even more so the case in constitutional matters given the fluid nature of the documant itself and the way in which it's interpretation continues to be tempered by social developments.

I do agree that some of the points raised above are emotive rather than legal and do very little in terms of exploring the legal issues. This said, I firmly believe that the issue is deserving of debate. I also take excetion to your insinuation that I was trolling.

Tom Young

It is necessary to look at this in two discrete segments:

1. Religious Articles of the Constitution; and
2. Education.

1. Religion and Religious Discrimination:-

Article 44.2.1 “Freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen.”

Summary: Freedom of conscience, to practice, morality etc.

Article 44.2.2 “The State Guarantees not to endow any religion.”

Summary: Prohibits State interference or endowment of any religion.

Article 44.2.3 “The State shall not impose any disabilities or make any discrimination on the grounds of religious profession.”

Summary: Prevents the State from imposing any disabilities or discriminations on the grounds of religious profession, belief or status.

Article 44.2.4 expressly provides that “Legislation providing State aid for schools shall not discriminate between schools under the management of different religious denominations”

You’ll note professor Whyte’s view on this:

However, one could argue that the type of discrimination caught by this provision is unjust discrimination where two similarly situated groups are, without justification, treated differently by the State. If so, then arguably this provision would not prevent the State providing additional support to Protestant schools where such aid is intended to “level the playing field”, so to speak.

I agree with this view and I further agree with it based on a case taken under Article 44.2.3 entitled:

Campaign to separate Church and State v Minister for Education [1998] 2 ILRM 81. This was a case taken to prevent discriminatory endowment of on church as opposed to another. In the Super Court Barrington J held “The Constitution does not comtemplate that the payment of monies to a denominational school for educational purposes us an endowment of a religion within the meaning of Article 44.2.2.”

In this judgment both Barrington and Keane JJ. consider that the system of denominational schooling was well known to the framers of the constitution and nothing in the Constitution impugns it. Hence a scheme of payments cannot said to be unconstitutional because it was always contemplated.

Barrington J. reasons further that it is a parents right to chose where to educate and indeed chose a religious education consistent with familial or parental choices. He effectively uses the parental rights in respect of educational choice as a saver to approve the system which cannot be said to operate in a discriminatory fashion as between denominations.

Article 44.2.5 expressly provides that ”Every religious denomination shall have the right to manage its own affairs, own, acquire and administer property, movable and immovable, and maintain institutions for religious or charitable purposes.

Summary: Permists churches to manage own affairs.

Tom Young

2. Education and Right to etc.

Article 42.3.3 requires the state as guardian of the common good will require that chidren receive 'a certain minimum education, moral, intellectual and social'.

Article 42.4 of the Constitution obliges the state to provide for free primary school education.

In the case of O'Sheil and Ors. v Minister for Education and Ors 2 ILRM 241, which involved the founding of a school based on the principles of Rudolph Steiner applied for state funding but were rejected on the basis that the teachers lacked appropriate qualifications and that inadequate provisions were made for teaching Irish. Laffoy J. held that Article 42.4 did not entail that the State was merely required to provide a single education system on a take-it-or-leave-it basis. However, a group of parents who founded a school were not automatically entitled to funding:

"Fulfillment of the State;s obligations under Article 42.4 must take account of parental freedom of choice guaranteed by Article 42, but it must be based on arrangements which have a rational foundation and prescribe proper criteria for eligibility which accord with the purpose of Article 42 and the provisions of the Constitution generally."

The judge was not satisfied that applying the teacher-qualification provisions of the rules to the plaintiffs that the defendants has infringed Article 42.4.

Kenny J. in Ryan v The Attorney General[1965] IR 294, held that per Article 42.1 education was to be of a scolastic nature. The Supreme Court held that "education is the teaching and training of a child to make the best possible use of his inherent and potential capabilities, physical, mental and moral.

In re. Article 26 and the School Attendance Bill 1942 [1943] IR 334, the Supreme Court considered the State's powers under Article 42.3.2 to require "a certain minimum eduction". The Court held that the State has the power acting in its legislative capacity to define the phrase; however, any definition should be defined in the provisions of the Constitution. The section was Section 4 and was found to be repugnant to the Constitution in that the standard contemplated by the section might vary from child to child and that the Minister might prescribe a higher standard than could be required under the Article. The section also required the Minister certify the manner in which the education was being provided was suitable; this was not warranted by the Constitution.

Many academic authors/lawyers have commented that since this case and with a movement towards the presumption of constitutionality such a provision would more that likely survive a review by the courts and be upheld. I suggest such a legislative provision might be what is being discussed in the current debate.

In the case of DPP v Best [2000] 2 IR 17 the Supreme Court per Denham J. cross citing Sullivan C.J. in In re. Article 26 and the School Attendance Bill 1942 says: "There has been no definition of "a certain minimum education" by the legislature since this decision. Thus, the judicial interpretation by Sullivan C.J. expressing the opinion of the court that a "certain minimum education" indicates "a minimum standard of elementary education of general application" has continued to apply".

The cross citation is below:

"Clause 3(2) was inserted. It provides that the State shall, as guardian of the common good, require in view of actual conditions that the children receive a certain minimum education, moral, intellectual and social. What is the meaning and extent of this provision? What is referred to as 'a certain minimum education' has not been defined by the Constitution and accordingly, we are of opinion that the State, acting in its legislative capacity throughthe Oireachtas, has power to define it. It should, in our opinion, be defined in such a way as to effectuate the general provisions of the clause without contravening any of the other provisions of the Constitution. Subject to these restrictions, it seems to us that the State is free to act, so long as it does not require more than a 'certain minimum education' which expression, in the opinion of this Court, indicates a minimum standard of elementary education of general application."

In summary from Denham J. :-

"It is also not in dispute, however, that the Act must also be interpreted and applied so as to vindicate and uphold the constitutional rights of the children, specifically in the context of this case, their right under Article 42.3.2 to:- "… receive a certain minimum education, moral, intellectual and social."

The obligation thus imposed on the State, could, in theory at least, be met by legislation which not merely ensured the reception by children of a "suitable elementary education", as did the Act of 1926, but also by elaborating, in whatever degree of detail was considered appropriate, what the minimum ingredients of such a suitable elementary education were.

Per Keane C.J. :-

"[t]he right of children recognised by Article 42.3.2 was to "receive" the certain minimum education. It followed that those providing the education, whether they be schools or parents, had to ensure that it was designed to meet the needs of, and develop to the fullest possible extent the capacities of the particular children concerned."

Tom Young

Summary:-

My position, supported by the above is that the advice of the Attorney General would appear to be open to challenge, like any legal advice. If litigation follows, it would not surprise me in the least.

In relation to the argument that there has been a level of discrimination in relation to funding, I say there is a strong likelihood that that will be declared constitutional, I say the Constitution was drafted in full knowledge and contemplation of the need to bridge funding gaps. I say that the note underlined above in the Eduction section will give the Super Court what it needs to find in favour of the Government (Presumed Constitutionality).

I did not bother to recite Sinnott v Minister for Education [2001] 2 IR 545, but if you have the interest or are inclined to read the judgments of Denham J. and Keane C.J. versus those of Hardiman and Murray JJ (as he was then) you'll note a strict tendancy to protect the motions of the state in relation to items of policy or issues which tend to border on the Doctrine of Non-Jucticiability or the Separation of Powers.

Further, I say there is jurisprudential value in reviewing the judgments from a positivist versus natural law perspective when reviewing the dicta and ratio of the judgment(s).

Now, there is far too much emotion in relation to this matter and there is strong potential for it to run as a test case, but then again I don't believe the plaintiffs or applicants would succeed based on what I have outlined above.

I hope the above rather long two posts and the above conclusion go some way to validate my shorter posts above. I make absolutely no apologies for any other remarks made.

Tom

Sonna

I would like my children to go to a free school - preferably a non religious one - in a decent building with proper facilities. As a tax payer of 30 years my children should have that right. However we have to work within the situation as it is in Ireland - As Protestants we have our children attending a Protestant school.

The only free Protestant Secondary school on the southside of Dublin is in the most terrible run-down state - although it caters for over 900 students - not only Protestant - but people with no religious connections. There are huge demands on places there so you would be lucky to get in - and 10 years later no sign of a new school building - However there is a very nice school at the top of the road - Irish speaking and state of the art buildings and Catholic - discrimination?

It seems strange that the only free school that caters for non-Catholics on the southside- is in such a terrible condition. Catholic families have a huge variety of schools to choose from - we don't.

So we pay for our children to go to a Protestant school - to be educated in a decent built environment - I believe that all children should have the opportunity to go to a decent school -

We are not well off - a small house - no fancy cars and no holidays - we do not get a grant - so sacrifices are made to make their life good and happy - we are paying extra money for a decent built envirnoment and a decent choice of subjects and some learning support - and as far as I can make out most of the other parents are like us....

I would always have been happy to pay more tax - if that money was going to build decent schools for all kids....

johnfás

This thread is becoming increasingly irrelevant to the Legal Discussion forum which does not exist for the purposes of discussing general Government policy, but rather legal issues.

At the danger of being sanctioned, I would just point out to those who have joined us and want to discuss the topic in the broad sense - there are a number of threads on Politics.ie which are serving that purpose, but are not suitable to legal discussions.

http://politics.ie/education-science/114547-grants-protestant-schools.html
http://politics.ie/education-science/115305-batt-v-coi-batt-lying.html

Mr. SS

Sonna wrote: »

- However there is a very nice school at the top of the road - Irish speaking and state of the art buildings and Catholic - discrimination?
..

You ruin your good point by making this one... we can all name a school that is in great condition, and then one that is not very close by, eg Carlow CBS and Carlow VEC... discrimination against secular county councils??? its not a very good point in my opinion.

that said i agree with johnfas in that this is for legal and not political discussion and given I dont know about the latter and am a politics student i will bow out. good discussion all the same, good luck!

johnnyskeleton

If you accept the taxpayer is picking up the majority of the tab for the sins of the catholic church, then allowing a few quid to buss a few protestants to schools seems like small fish.

Also, the difficulty arises from the fact that the Irish State has never been able to fund national schools on a national basis, with the result that they have to provide state education by way of extant religious schools. If there was a national school place for every child in the country, then giving a grant to any religious institution would be wrong, but given that the reality is very different, it is only fair that protestants be given a choice of a state sponsored busride to a protestant school or a walk down to the local catholic school if there is no national school available.

johnfás

I note the Irish Times today report that the Minister is going to revisit the issue.

Of course the issue couldn't be revisited in the context of additional funding being unconstitutional.

I have to say it does perturb me when politicans see to hide behind, what would appear, to be their own constitutional interpretation.

akkadian

I just saw UTV's ****ty news broadcast featuring the protestant fee issue being brought up. BTW it saddens me that this is being blown out of proportion.

I don't care what cross-border devolution horsecrap makes it relevant for that Clair Savage twat to come down here, and bring this up. It's ridiculous. She can f*&k off up to her backwater sectarianist medieval-thinking of Narn Irne.

Really, just piss off up to the north, and don't spread your sectarianism sown here. We have enough problems.

We live in a genetic age where people can get genetic information about themselves (from companies such as 23 and Me in the states) if people want to feel themselves up in that manner, otherwise, f*&k off up to the north and petrol bomb each other.

We all know there are still some divisions between catholics and protestants here in the South, but they are NOTHING like the Bs of ulster and the border region. At least the border region has a right - they are within a stones throw of the 1700's genetic movement.

But here, sorry UTV - F&%K OFF and look after your own problems. DON'T spread your **** down here. and please decent ordinary unionists and/or protestants of the North - Please don't use this "issue" with the schools to further your own SELFISH agenda, without any regard for disrupting communities here.
*Finished venting*

Can't we all be hindu?