Religious discrimination in education

What is religious discrimination?

Discrimination on the ground of religion is when one person is treated less favourably than another person because they have a different religious belief, background or outlook from another (or because they have no religious belief).

What is religious discrimination in education?

Discrimination by schools on the ground of religion means treating you or your child less favourably than someone who has a different religious belief (or no religious belief).

By law, schools must treat everyone equally. In general, schools must not discriminate against you or your child because your beliefs are different from theirs. However, in certain situations they may be allowed to take into account religious belief in making decisions on admissions.

In the legislation, the term ‘schools’ covers all public and private educational settings, including pre-school services, primary and post-primary schools, further education colleges and universities.

The laws on religious discrimination in schools are set out in:

Equal Status Acts 2000 to 2018 (sections 7 and 7a)
Education Act 1998
Education (Admissions to Schools) Act 2018 (section 29)

On this page we look at religious discrimination by schools when dealing with admissions and religious instruction. In each case, we consider what the law, including the Constitution and the European Convention on Human Rights, has to say about it. We also look at what you can do if you think you or your child face discrimination.

What forms of religious discrimination are banned?

Schools must not discriminate on religious grounds in relation to:

Admissions
Religious instruction

The laws cover two types of religious discrimination: direct and indirect.

Direct discrimination occurs where you are treated less favourably than another person has been or would be treated in a similar situation, on the ground that you have a different religious belief (or no religious belief). For example, where a school refuses your child a place because of their religious denomination.
Indirect discrimination occurs where a policy that applies to everyone puts you at a particular disadvantage because of your religion. For example, a school’s uniform policy may provide that students cannot wear any head coverings such as hats in school. This may however indirectly discriminate against students who wear religious headgear.

Please note that indirect discrimination can sometimes be justified by a school where the policy has a legitimate aim and the terms of the policy are necessary to achieve that aim.

Admissions and religious discrimination

What must primary schools do to avoid religious discrimination?

The general rule

In general, primary schools must not discriminate in their admissions policy on the basis of religion. This means they must not give priority to children from a particular religious denomination and cannot ask for a certificate of baptism (or similar document) as a condition of admission.

This rule applies to almost all primary schools.

Exceptions to the general rule

A primary school that provides education within the ethos of a minority religion may be allowed to prioritise children of the same or similar minority religion. A minority religion is one whose membership represents no more than 10% of the population. A school can do this only if it is oversubscribed i.e. if it does not have enough places available for all the children who apply.
Any primary school with a religious ethos can refuse to admit a child from a different religious denomination – but only if it can prove that admitting the child would undermine the ethos of the school. This can be difficult to prove and rarely happens in practice.

How can I complain about religious discrimination in admission to a primary school?

If you think a primary school is discriminating against your child on the ground of religion, you:

You can make a complaint to the Workplace Relations Commission (WRC) under the Equal Status Acts

It is also open to you to make a complaint by using the school’s own appeals procedure and if you are unhappy with the outcome, you can appeal to the Secretary General of the Department of Education under section 29 of the Education Act 1998

We recommend that you get legal advice before making a complaint to the WRC or an appeal to the Secretary General.

Can secondary schools prioritise children based on religion?

Yes. The rules outlined above apply only to primary schools. Secondary schools are still allowed to prioritise some applicants over others based on religion. Such decisions are not counted as discrimination under the Equal Status Acts, so you cannot make a complaint about them.

What does the Constitution say about religious discrimination?

The Constitution states that all citizens are equal before the law. It bans discrimination on the ground of religion.

The Constitution also protects freedom of conscience and the freedom to openly choose and practise a religion. It protects believers and non-believers equally.

Sometimes, the right to freedom of religion and the right to equality can come into conflict with each other and the courts need to balance these rights. For example, in 1979, the Supreme Court supported a college’s decision to dismiss two lecturers who publicly disagreed with the Catholic teachings of the college. It ruled that the dismissal was justified to protect the college’s ethos and thus its right to freedom of religion.

In practice, allowing freedom of religion means that a school may need to make various arrangements for different groups to practise their own religion. Treating the groups differently for this purpose would not count as religious discrimination, as it would be a necessary way to allow the free practice of religion.

As outlined above, the law gives minority religion primary schools and all post-primary schools the power to prioritise the admission of students, based on religion. The courts have not yet tested whether this power is compatible with the constitutional right to freedom from religious discrimination.

What can I do if I believe a law relating to religion in schools is unconstitutional?

If you believe that a law is unconstitutional, you can start legal proceedings to ask the High Court to declare that the law or parts of the law are unconstitutional and should be struck down. This means that the law or parts of it will no longer be enforced by the Courts.

To take a case, you must show that you have been or would be adversely affected by that law.

If you challenge a law in this way, it is your responsibility to prove that it is unconstitutional. We recommend that you seek legal advice before starting proceedings.

What does the European Convention on Human Rights say on religious discrimination in education?

The European Convention on Human Rights (ECHR) protects the right to freedom of thought, conscience and religion in Article 9, and freedom from discrimination in using these rights in Article 14.

What can I do if I believe a law on religion in schools is not compatible with the ECHR?

You can also ask the High Court to declare that a piece of Irish law is incompatible with the ECHR. However, unlike in the case of unconstitutionality, if the High Court finds that the law is not compatible with the ECHR, the law is not struck down. Instead, the High Court’s declaration is put before the Oireachtas, which then makes a decision on what action to take.

Where there is no Irish legislation on a particular point, ECHR human rights legislation applies.

We recommend that you seek legal advice before starting any legal proceedings.

Religious instruction and discrimination

What must schools do to avoid discrimination?

Children have a right not to attend religious instruction (RI) that goes against the convictions of their parents. This applies in primary and post-primary schools. Students over 18 can follow their own conscience in this matter.

The Education (Admissions to Schools) Act 2018 requires schools to set out their arrangements for students who do not take part in RI lessons as part of their admissions policies. The Act says the school day for these students should not be shortened on this account, but does not specify how they should use the lesson time instead.

We are aware that in practice, the manner in which the right to ‘opt-out’ of RI can sometimes cause difficulties for parents and children, for example where requests to opt-out are not respected or when students feel penalised for not participating in RI.

What does the Constitution say about religious instruction in schools?

The Constitution protects the right to freedom of religion and freedom of conscience, including the right to have no religion. Recognising that the family is ‘the primary and natural educator of the child’, the Constitution guarantees the right of parents to choose their children’s religion and also the form of religious education they receive, until the children are old enough to choose for themselves.

The Constitution also specifically recognises the right of any child to attend a publicly funded school without attending RI.

Taken together, these rights mean that a child must not be made to attend RI in a particular religion against their wishes or their parents’ wishes.

What does the ECHR say about religious instruction in schools?

The ECHR protects the right to freedom of thought, conscience and religion (Article 9), and the right of parents to ensure their children are educated in accordance with their beliefs (Article 2, Protocol 1).

The European Court of Human Rights has stated that religious education must be delivered in an ‘objective, critical and pluralistic manner’. This means that schools should present the facts about different religions without assuming one is better than another or that a religion cannot be questioned.

Where religious education takes the form of doctrinal instruction or indoctrination (that is, teaching students to accept a particular set of beliefs uncritically), the Court says children must be allowed to opt-out of such instruction. In practical terms, this means they should have alternative lessons that respect their parents’ convictions. The Court also states that children should not be penalised for opting out.

What can I do if I think a school is failing to provide effective opt-out arrangements?

You can start judicial review proceedings in the High Court. Judicial review is where the High Court checks that the decisions of a public or administrative body, such as the board of management of a school, are compatible with the Constitution and natural justice.

You could ask for the following reliefs from the High Court:

An order of certiorari – to set aside a decision or policy. For example, an order to set aside a school rule that a child must remain present for religious instruction.
An order of mandamus – to compel a public body to fulfil its legal duty. For example, to order that a school should publish arrangements for opting out of religious instruction as part of their admissions policy. Before seeking an order of mandamus, you must first write to the school requesting an action.
Declarations as to a person’s rights – for example, you could ask the High Court to declare that a failure to respect your child’s right to opt out of religious instruction is in breach of their rights under the Constitution or the ECHR.

We recommend that you seek legal advice before starting any legal proceedings.