The Constitution and religious influence in schools
Is the constitutional model appropriate as a framework for the protection of freedom of choice in education, asks Eoin Daly.
It has been reported that a couple are seeking to sue their child’s former national school for breach of their constitutional rights in respect of religious and moral education. Ken Kiernan and Alma Carey-Zunigais complain that their child’s Co. Wicklow school did not properly accommodate the constitutional right of the child to be excluded from religious instruction. The school allowed the child to be picked up early so as to avoid religious instruction classes, but the Irish Times reports that “the couple’s demands would have excluded the saying of grace before meals, prayers before or after class, nativity plays and carol singing because their child could not be left unsupervised.” Essentially, their claim appears to be that the Constitution protects parents’ rights to shield children from unwanted religious doctrines and influences beyond the formal confines of timetabled religious instruction classes.
This is a rather familiar and seemingly inevitable problem within Ireland’s overwhelmingly denominational primary system. Families in many areas of the State may have little choice but to avail of schools committed to imparting a Catholic ethos, not merely in the guise of timetabled religious instruction classes, but throughout all aspects of the school environment. The Constitution, in Article 44.2.4, guarantees that children attending publicly-funded schools may not be compelled to attend religious instruction classes. However, the practice of the “integrated curriculum”, or the incorporation of the school’s religious ethos within the whole school day, may operate so as to weaken this right in practice. In this way, non-coreligionist parents’ rights claims are typically resisted with reference to the competing right of the school and religious community in question to safeguard the religious character of the school, and not merely the provision of timetabled religious instruction. In fact, the Constitution probably offers a relatively weak and compromised guarantee of freedom of conscience for parents and children in this position, protecting them from outright compulsion to attend religious instruction, but without guaranteeing that children may inadvertently be subject to the inculcation of religious beliefs, which they do not themselves hold, within the broader school environment.
For all the high constitutional rhetoric of “antecedent” parental rights with respect to religious and moral education, the actual educational infrastructure it facilitates and envisages allows the educational freedoms of parents in a weak or minority position to be somewhat watered down for the sake of the countervailing claim of schools and religions to protect the integrity of their “ethos”. Apart from the rather ineffective right to withdraw from formal religious instruction – which as Mawhinney’s recent empirical study suggests, is not very well respected in practice anyway – the alternative protections offered by the Constitution to non-coreligionist parents are the right to forego the publicly-funded sector altogether to, or to establish and seek State funding for an alternative school specifically appropriate to their beliefs. However, the first solution is obviously unsatisfactory - it is hardly good enough to ask citizens to surrender their constitutional right to free primary education in order to preserve their constitutional right to freedom of conscience. And while O’Shiel v Minister for Education  suggested there may be a constitutional obligation on the State to recognise and fund alternative schools operating under a specific ethos reflecting parents’ beliefs, this is heavily qualified by various factors, including, most notably, whether there is a sufficient number of like-minded parents to justify the establishment of such a school. Thus, the Constitution and legislation make rather weak provision for parents who do not belong to one of the major denominations with an established network of schools, in the absence of any parallel network of non-denominational, common schools.
Whereas the Constitution explicitly protects the right to withdraw from religious instruction classes, it is silent as to whether, and to what extent, parents are entitled to have their children shielded from unwanted religious instruction in the broader school environment. Nor has the Department of Education demonstrated any initiative in clarifying how such parents’ rights are to be respected in practice. The Education Act 1998 does entitle parents to withdraw children from particular classes contrary to their beliefs; yet this does not address the limits on the extent to which the broader “ethos” may influence various aspects of the school day. Indeed, one of the most extraordinary features of this case is that the school, according to reports, insisted that parents wishing to exempt their children from religious instruction classes would have to themselves make “alternative arrangements to supervise their children” – an extraordinarily churlish attitude to the vindication and exercise of an explicit constitutional right.
In addition to the specific opt-out right in Article 44.2.4, the broader rights of freedom of conscience and religion in Article 44.2.1, read together with the acknowledgment of the primacy of parental educational authority in Article 42, might suggest a broader right to not have children subject to what may effectively be the unwanted inculcation of religious doctrines within schools. Having said this, it appears unlikely, unfortunately, that the Kiernan and Carey-Zuniga will succeed. While there has been surprisingly little precedent on an issue that has recently become so controversial, the Supreme Court noted, in Campaign to Separate Church and State v Minister for Education  that “the Constitution cannot protect the [non-coreligionist child] from being influenced, to some degree, by the religious ‘ethos’ of the school.” It affirmed the constitutionality of the broader denominational model while also referring to the countervailing right of other parents to enjoy the full measure of religious “education”, and not merely narrow religious “instruction”, within Catholic schools. Indeed, this “right” to receive public education in an unfettered religious environment appears an implausibly over-extensive interpretation of the constitutional provisions: it amounts to the almost absurd proposition that a certain section of citizens, only, are not only entitled to receive free primary education, but in an environment specifically reflective of their beliefs, and at the expense of the seemingly more fundamental right of others to avail of public education in an environment where they will not be subjected to instruction in beliefs they do not hold. In any case, since our Constitution explicitly foresees that public education will be provided through denominational schools – indeed, it makes specific provision for those who may have to attend such schools as non-coreligionists – it is unlikely, then, that it could be read as protecting non-coreligionists from the various unwanted influences that stem from the very fact of the denominational identity of the school. In any case, apart from the legal reasoning that the High Court will use to expound the specific meaning of the constitutional protections in their application to situations such as this, the case may provide a further opportunity to reflect on the broader suitability of the constitutional model itself as a framework for the protection of freedom of choice in education.
Image top: elycefeliz.