Mary Ward (DEC-S2005-019)and Mary Kavanagh (DEC-S2005-020) (Represented by Petra Daly Tullamore Traveller Movement) V Sacred Heart Secondary School, Tullamore
Delegation under the Equal Status Act, 2000
These complaints were referred to the Director of Equality Investigations under the terms of the Equal Status Acts 2000-2004. This matter was initially dealt with by way of mediation and the first mediation was held under the auspices of Ruairi Gogan, mediator, on 11 December 2001. A non- resolution notice was issued by the mediator on 12 September 2003. The complainants then asked that the matter be dealt with by way of investigation, in accordance with her powers under section 75 of the Employment Equality Act 1998 and the Equal Status Act 2000, the Director has delegated these complaints to me Gerry Hickey, an Equality Officer, for investigation hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Act, 2000.
1. Dispute
1.1 This dispute concerns claims by Mary Ward and Mary Kavanagh that they were discriminated against on the grounds of their membership of the Traveller Community when the Sacred Heart School, Tullamore, declined to enrol their children for the academic year 2001 - 2002. The complainants allege that the treatment which they received was contrary to Section 3(2) (i) of the Equal Status Act 2000 and in not being provided with a service which is generally available to the public, they were subjected to treatment contrary to Section 5 (1) of the Act.
2. Summary of Complainants’ Case
2.1 The complainants state that their children, Tracey Kavanagh and Edel Ward, were refused admission to the Sacred Heart Secondary School, Tullamore, Co. Offaly in September 2001. They had applied for admission to the school on behalf of their daughters on separate occasions during the year. In the case of Mrs Mary Kavanagh, she had discussed her daughter Tracey’s application with the Visiting Teacher for Traveller Education for Laois and Offaly, Ms. Jean Forristal, an official of the Department of Education and Science, on 12th June, 2001. At a meeting which Ms Forristal subsequently held with the then Principal Mr Damien Kennedy on 26 June, 2001, enrolment was sought for Tracey Kavanagh and another applicant, who is not party to this complaint. There was a discussion at that meeting on the issue of resources as Tracey has a hearing impairment. Ms. Forristal outlined to Mr Kennedy the resources which are available to facilitate an education programme suitable to the needs of pupils such as Tracey.
2.2 The Visiting Teacher for Traveller Education, Ms Forristal, was informed at that meeting that the enrolment for the September term was closed and that the matter would have to be considered by the Schools’ Board of Management which was due to meet on 6 September, 2001. 0n 3 September, 2001, the second complainant Mrs Mary Ward confirmed that she wished her daughter, Edel, to be enrolled in the school. One of the applicants who had been the subject of discussions in June between the Ms Forristal and the school Principal and who is not party to this complaint, had, in the interval, withdrawn her application. The Visiting Teacher for Traveller Education asked, on behalf of Mrs Mary Ward that Edel Ward’s application should now also be considered along with that of Tracy Kavanagh.
2.3 The Principal responded saying that both applications would be considered at the Board of Management meeting which was due to take place on 6 September, 2001. Ms Forristal asked whether she would be permitted to represent these two applicants at the Board of Management meeting. The Principal Mr Kennedy said that he had a background in both remedial education and Traveller education and therefore Ms. Forristal’s attendance at the Board on Management meeting would not be necessary. Ms Forristal was informed by Mr Kennedy at a meeting on 4 September, 2001 and subsequently in writing that the Rules and Regulations for Post Primary Schools laid down by the Department of Education and Science set out the criteria for a child transferring to a Post Primary School. These rules were stated to be as follows:
A child transferring to a Post Primary School should:
- Not be less than twelve years of age
- Follow an approved course at Post Primary
- Be academically suitable. Suitability to be determined by an Inspector.
- Have completed full course at Primary level.
2.4 The Board of Management of the School met on 6 September, 2001. On the following day the Principal Mr Kennedy wrote to Ms.Forristal stating that it was the Board of Management’s view that it would be possible to enrol the applicants subject to certain criteria being met. However on 11 September 2001, Ms. Forristal was informed in writing that neither of the two applicants in question was accepted as they did not meet the above criteria as neither had completed Primary School. It was suggested by the Board of Management that an Inspector might be consulted with a view to seeing if the applicants were academically suitable.
2.5 A total of twenty Traveller pupils were enrolled in the Sacred Heart School Tullamore for the Academic year 2001 – 2002. Not all of these actually took up their places. Three have been identified as not having continued in the school after early September 2001. It is contended by the complainants that the fact that three pupils did not take up places offered by the school for the academic year in question indicated that there was no reason why the vacant places could not be offered to Tracy Kavanagh and to Edel Ward. It is further contended that adequate resources would have been available to provide the necessary educational supports to the applicants in question and that the availability of such resources was communicated to the school Principal by the Visiting Teacher for Traveller Education.
2.6 In a letter concerning these applications dated 19 September, 2001 which was sent to the Principal, Mr Damian Kennedy, from Ms Breda Forde, Higher Executive Officer, Post Primary Administration Branch of the Department of Education and Science, it was stated, inter alia, that it was not intended that the criteria for entry to Post Primary education, “would be used to prevent the enrolment of Traveller children in Post Primary schools.
The same letter also contained the following statement:
“Clearly it would be inappropriate to expect that the two girls in question would continue to attend a Primary school. In all the circumstances, the Department’s view is that these children would be suitably enrolled in a Post Primary school.”
(copy of this letter seen by both parties)
2.7 The Board of Management’s decision not to admit their daughters to the school was appealed by the complainants under section 29 of the Education Act, 1998. Following the hearing of Mrs Ward’s appeal by the Arbitrator appointed by the Department of Education and Science a meeting was held on 15th November, 2001, involving the school Principal, a member of the Board of Management, the Visiting Teacher for Traveller Education and Mrs Mary Ward. Both applicants, Edel Ward and Tracey Kavanagh were enrolled in the school as and from 21st November 2001 and are still attending the school at the present time.
2.8 The complainant’s view is that the more than two month period in 2001 during which their daughters were not at school caused them considerable distress and embarrassment. It is their view that the position adopted by the Sacred Heart School in relation to these applications for admission was because of the complainants’ membership of the Traveller community and was clearly discriminatory on that ground.
3 Summary of Respondent’s case
3.1 The respondents stated that the visiting Teacher for Traveller Education Ms Jean Forrestal submitted a list in January 2001, as is the usual practice, of children from the Traveller Community wishing to enrol in the Sacred Heart in the forthcoming academic year. Neither Tracey Kavanagh’s nor Edel Ward’s names were on that list. By the final closing date for applications for admittance to the secondary school for the academic year 2001/2002, that is 8 March 2001, neither of the two complainants had enrolled their children in the school, although this had been the norm over the years for members of the Traveller community. Application for Tracey was made on 26 June, more than three months after the closure of enrolment. An application was made in respect of Edel in early September, almost six months after closure of enrolment. A significant number of Traveller children from the Tullamore area had enrolled by the closure date as was to be expected. At that point 20 traveller children were enrolled in the Sacred Heart School for the academic year 2001/2002. Traveller children have been enrolled in the school prior to that date and in each subsequent year since that date. The school has in latter years (not in 2001) availed of the services of a retired teacher, a nun, who visits the Traveller community in the Tullamore area to ensure that members of that community who may have literacy difficulties or who are not otherwise aware of the closing date for enrolment in the Sacred Heart School, are informed about the date and other relevant matters with regard to admission.
3.2 Neither Edel nor Tracey, the complainant’s children, had finished primary school a factor which did appear to the school to be in contravention of the Rules and Regulations for Post Primary Schools. While it is acknowledged that a letter sent to the then Principal from the Department of Education and Science dated 19 September 2001, is unequivocal in stating that the children in question should be enrolled in a secondary school, the school said that it would be helpful if the Department would bring their rules and regulations up to date enabling Boards of Management in situations such as this to make fully informed decisions. The Board of Management felt it was valid for the then Principal to raise the issue of Rules and Regulations for Post Primary Schools and considers it unfair that an inference should be drawn that the raising of the matter indicated a prejudice towards these Traveller pupils.
3.3 While the Department of Education and Science circular M43/99 sets out the criteria for the provision of teaching resources for each Traveller child, the Sacred Heart School contends that the practice is that the Department reserves the right to decide on the level of resources on a case by case basis. The School therefore, does not feel that it can recruit and pay for additional staff hours calculated in accordance with Circular 43/99 in advance of approval and be confident of the approval of the Department and a refund of the expenditure. Additional resources were approved in respect of the children of the complainants, Tracey and Edel only after an on-site examination of the situation was made by an official of the Department of Education and Science and two months after the application for these resources by the school.
3.4 In a letter sent to the then Principal of Sacred Heart School, Mr Damien Kennedy dated 4 October 2002, that is almost a year after the matters under consideration, by Mr John Curran, the designated Department of Education and Science Inspector for Sacred Heart School. Mr Curran confirms that he did recommend on 13 August, 2001 that Tracey Kavanagh should stay on at National School and that extra resources should be provided there for her, despite the Department’s general recommendations on age appropriate transfer. This letter concludes with the following statement:
“ At no point in the discussion I had with you did you refuse to enrol Tracey Kavanagh despite the not inconsiderable difficulties her special needs would create for the school in providing the resources necessary to deliver effectively for her educational requirements. In all my dealings with the management of the SHS, in Tracey’s case and in others, I have encountered a great commitment to providing an excellent educational service to Travellers.”
( this letter seen by both parties)
3.5 The school states that it was very happy to ultimately obtain the resources necessary to facilitate the applications of Tracey and Edel. Both are successful students, they remain as students in the Sacred Heart School and both are highly valued members of the student body.
4 Prima Facie Case, matters for consideration by the Equality Officer
4.1 At the outset I must consider whether a Prima Facie Case has been established by the complainants. There are three key elements which need to be established to show that a Prima Facie Case exists. These are:
(a) Membership of the discriminatory ground (e.g. The Traveller community ground)
(b) Evidence of specific treatment of the complainants by the respondent
(c) Evidence that the treatment received by the complainant was less favourable than a person not covered by that ground would have received in the same or similar circumstances.
4.2 If and when these elements are established, the burden of proof shifts, meaning that the difference in treatment is assumed to be discriminatory on the relevant ground. In such cases the claimant does not need to prove that there is a link between the difference and the membership of the ground, instead the respondent has to prove that there is not. If the complainants succeed in establishing prima facie evidence, the burden of proof shifts to the respondent to rebut the inference of discrimination.
4.3 It should be noted that the complainants in this case are Mrs Mary Ward and Mrs Mary Kavanagh the parents of the two pupils who were the subject of the applications for attendance at Sacred Heart School, Tullamore. They have taken their case on grounds of discriminatory treatment arising from their membership of the Traveller community. What is being considered is whether the treatment they received from the then Principal and the Board of Management, in the context of their applying for their daughters’ entry to Sacred Heart School was different from the treatment someone who is not a member of the Traveller community might receive in similar circumstances. Section3(1)(a) of the Act, 2000 states discrimination shall be taken to occur where on any of the grounds specified in the Act, a person shall be treated less favourably than another person is or has been or would. Section 3(2)(i)
of the Act specifies the Traveller community ground as one of the grounds covered by the Act.
4.4 That the complainants in this case are members of the Traveller community is not in dispute by either party in this case. Both parties are also in broad general agreement as to the events surrounding the applications for enrolment of Edel Ward and Tracey Kavanagh to the school. Both parties acknowledge that enrolment did not commence at the beginning of the academic year as the relevant applications were not initially accepted by the school. Both parties acknowledge that there was a delay of more than two months in 2001 in respect of the daughters of the complainants being accepted as pupils.
4.5 The criteria set out at (a) and at (b) above would therefore appear to be satisfied.
4.6 With regard to whether (c) above applies in this case I believe that the following points are relevant and require careful consideration.
4.7 With regard to the initial application on behalf of Tracey Kavanagh, It is agreed by all parties that the application was late. It is agreed that a significant number of Traveller pupils were already enrolled by that time as is customary with the Sacred Heart School .There would appear to be nothing untoward on the part of Mr Kennedy in stating that consideration of a late application in respect of a pupil who had a hearing impairment and who had not completed primary school and who might therefore require specific assistance, by way of resources, on both counts, should be a matter for consideration by the Board of Management.
4.8 The Inspector Mr John Curran has confirmed that he did recommend, (about six weeks after the application was made) that Tracey might remain at Primary School and not begin in Secondary School at that point. This view was bound to be influential on both the Principal and on the Board of Management. Unless Mr Kennedy and the school were operating an informal quota system (and no evidence was presented that this was so) whereby he felt that the school had accepted a sufficient number of Traveller children that year, he would appear to have acted in respect of Mrs Kavanagh’s application on behalf of Tracey as it might be expected a Principal would act irrespective of Mrs Kavanagh’s background or of the community from which she came.
4.9 The application by Mrs Ward on behalf of Edel was made on 3 September, 2001 three days before the Board of Management was to have its first meeting of that academic year. The circumstances of Edel’s case differ from those of Tracey but she too had not completed Primary School and this was contrary to one of the criteria set out in the written Rules and Regulations for Post Primary Schools. The letter from the Department concerning the interpretation of the rules was not issued to the school until 19 September, 2001 but in any event the advice of the School Inspector which was given earlier in respect of Tracey’s application differed from the recommendations contained in the letter from the Higher Executive Officer in the Department. Given Edel’s academic record up to that time, it does not appear unreasonable to expect that a late application which had implications for the rules for admission as well as for school resources should be considered by the Board of Management. In order for such a decision (to have the matter considered by the Board) to be discriminatory, it would have to be the case that such a decision would not have been taken if Mrs Ward was not a member of the Traveller community. Following its deliberations the Board of Management did not unequivocally reject the applications made by Mrs Ward and Mrs Kavanagh but suggested that an Inspector be contacted to assess their daughters’ academic suitability.
4.10 There also a clear issue of dispute between the parties as to whether additional teaching resources were necessary and when such additional resources are provided by the Department of Education and Science. The complainants are of the view that whatever resources were required would have been forthcoming if the children had been enrolled. The school clearly felt that they did not have the requisite resources to deal with the two applicants in question and states that the Department’s practice is to deal with the question of resources on a case by case basis.
4.11 While this was a matter of considerable concern to the parties at the time, what is to be considered by me as the Equality Officer is not so much the merits or otherwise of the debate about the need for additional resources but whether the resources question would have been an issue at all if the complainants, Mrs Ward and Mrs Kavanagh were not members of the Traveller community. Consideration must also be given to whether the issue of resources was being raised by the school merely as an impediment to the applications of Mrs Ward and Mrs Kavanagh on their daughters’ behalf solely because Mrs Ward and Mrs Kavanagh were members of the Traveller community.
4.12 The complainants’ daughters educational needs at that time were clearly greater than the average pupil’s entering the secondary school that year. The position of the school was that additional resources were required in order to provide for the needs of these two pupils. This is borne out by the fact that formal application was made to the Department for these resources almost two months before they were granted. When it was clear that the resources would be provided, the two pupils were enrolled in the school.
4.13 Apart from the obvious point that some of the resources which were required are tailored for the needs of Travellers no evidence was presented nor is there any reason to believe that the debate on the issue of resources which delayed the pupils entry to the school, would not have taken place had the parents of two applicants for admission to the school who had the same educational needs, been in a category other than members of the Traveller community. The school has said that there were only two other late applications that year, not involving members of the Traveller community and in those cases neither applicant started school until November, 2001.
4.14 I find therefore that the complainants were not treated less favourably than someone in similar circumstances who is not a member of the Traveller community and that therefore the third test has not been met. The complainants have not established prima facie cases of discrimination on the Traveller community ground.
5 Recommendation
5.1 As I am not finding in favour of the complainants in this case I cannot make a binding recommendation However, I note that the Rules and Regulations for Post Primary Schools, as submitted in evidence in this case appear to be at variance with views expressed in writing by departmental officials, also submitted in evidence. These Rules as submitted could, if implemented to the letter, be the cause of indirect discrimination against categories of people who may have difficulties completing primary school. I would recommend therefore that the Department of Education and Science might clarify or modify the criteria for entry to post primary education in order to avoid such an eventuality.
6 Decision
6.1 I find for the respondents in this case the complainants having failed in establishing a prima facie case of discrimination.
____________
Gerry Hickey
Equality Officer
11 March 2005