Section 3 Discrimination (general)
(1). For the purposes of this Act, discrimination shall be taken to occur where—
(a) on any of the grounds specified in subsection (2) (in this Act referred to as “the discriminatory grounds”) …………………………….., a person is treated less favourably than another person is, has been or would be treated,…………….
(2) As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are:…………………
(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (the “religion ground”),………………………..
Section 7 Educational Establishments
(1) In this section “educational establishment” means a preschool service within the meaning of Part VII of the Child Care Act, 1991 , a primary or post-primary school, an institution providing adult, continuing or further education, or a university or any other third-level or higher-level institution, whether or not supported by public funds.
(2) An educational establishment shall not discriminate in relation to—
(a) the admission or the terms or conditions of admission of a person as a student to the establishment.
(b) the access of a student to any course, facility or benefit provided by the establishment…………..
(3) An educational establishment does not discriminate under subsection (2) by reason only that—…………………….
(c) 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,
Section 12.—(1) A person shall not publish or display or cause to be published or displayed an advertisement which indicates an intention to engage in prohibited conduct or might reasonably be understood as indicating such an intention.
(3) In subsection (1), “advertisement” includes every form of advertisement, whether to the public or not and whether in a newspaper or other publication, on television or radio or by display of a notice or by any other means, and references to the publishing or display of advertisements shall be construed accordingly.
- The “Catholics First” admissions policies in National Schools is illegal under the Equal Status Act 2000.
- Schools under religious patronage (including private faith schools) receive no exemption from the provisions of this Act.
- This Act makes religious discrimination on admission to a school illegal.
- An Admissions policy which indicates an intention to discriminate, even if no discrimination actually occurs, is illegal in itself under Section 12.
- There is an exception to the rule (it is an exception, it is not the rule). This is where “it is proved that the refusal (to allow equal access to a person of a different religion or none) is essential to maintain the ethos of the school”.
Four proofs are required to allow this –
(i) the case must be proven by the school – such proof should be provided to the school applicant. The obligation is on the school, not the child or parent to provide proof. The case must be proven before refusal of entry.
(ii) Delay would normally be legally regarded as “refusal”. Schools may feel that a practice of offering places to only Catholic (for instance) children in February, and not replying to non-Catholics until July or September (when the child will likely be enrolled elsewhere, or where extra Catholics may have applied) does not constitute refusal – this is not likely to stand up legally.
(iii) Refusal must be “essential” in each individual case. Prior to 1998, virtually all National Schools would have had children of different religions – while upholding their ethos. Admission of one individual non-Catholic would normally be unlikely to be make a significant difference to the ethos of a school. “Desirable” or “advantageous” is not the same as “essential”.
(iv) The ethos of every individual school must be proven – details of foundation of the school, enrollment details prior to 1998, and other historical information would be required to define a school’s ethos. A school that traditionally accommodated children of different religions might find it difficult to argue that it did not have some (even minor) multi-denominational aspect to its ethos. It is likely that the large majority of National Schools would have difficulty in proving a tradition of exclusive Catholicism in its enrollment.
- The exception clause allowing discrimination seems to have been aimed at the private faith primary schools (such as Willow Park in Blackrock) rather than the National schools. These schools were set up as private faith schools and receive no state funding of any kind. These faith schools, although in ever decreasing in numbers, have existed since the foundation of the National School system, and were allowed (and remain allowed) under the 1937 Constitution.
- Section 15, 3(c) of the Equal Status Act would seem be in direct conflict with Article 44.2.4 of the Constitution. The section of the Equal Status Act should have excluded “school(s) receiving public money” from the exception that is this section of the Act.
- The exception clause would seem to allow religious discrimination on entry only where such religious discrimination was already a well established practice – that it would not allow the introduction of religious discrimination.
- The Equality Authority when questioned on the legislation and its relevence to National Schools seems to quote the legislation only, and does not ellucidate.
- A “Catholics First” admissions policy in a National School is not allowed under the Equal Status Act.