Equality Officer Decision No: DEC-S/2014/010
Parties
Ms. A (on behalf her son X – A Minor)
(Represented by A Firm of Solicitors)
-v-
A Secondary School
(Represented by a Firm of Solicitors)
File No: ES/2012/130
Date of issue: 12 August, 2014
Headnotes: Equal Status Acts, 200-2012 – sections 3 and 7(3)(c) – discriminatory treatment – religion - refusal of admission to denominational school.
1. DISPUTE
This dispute involves a claim by Ms. A (on behalf of her son X, a minor, hereafter called “the complainant”) that her son was discriminated against by A Secondary School (hereafter called “the respondent”), on grounds of religion, in terms of section 3(2)(e) of the Equal Status Acts, 2000-2012 and contrary to section 3(1) of those Acts when it refused him admission as a First Year pupil to the school (for the Academic Year commencing September, 2014) in March, 2012. The respondent rejects the complainant’s assertion and states that it was oversubscribed for that Academic Year and having applied its Admission Policy, the complainant was unsuccessful in securing a place in the school.
2 BACKGROUND
2.1 The complainant was born in 2001 and is a member of the Christian Orthodox Church. In 2006 the complainant’s mother enrolled him in a (named) Primary School which had historically been a feeder school to the respondent, with the express intention of securing a place in the respondent school in due course. In late 2011 the complainant’s mother applied to the respondent to have him enrolled as a pupil in the respondent for the Academic Year commencing September, 2014. By letter dated 30 March, 2012 the respondent advised Ms. A that the application on behalf of the complainant was unsuccessful, that all the places for the Academic Year 2014 had been offered in accordance with its Admissions Policy and that his name had been placed on a waiting list. The respondent subsequently confirmed, by letter dated 1 June, 2011 that all places had been filled and the complainant remained on a waiting list. Ms. A contends that the decision not to offer her son a place in the respondent amounts to discrimination of the complainant on grounds of religion contrary to the provisions of the Equal Status Acts, 2000-2012. The respondent rejects this assertion and states that it was oversubscribed for the Academic Year in question and initially offered, and subsequently filled, the ninety First Year places in had in respect of the 2014 Academic Year in accordance with its Admissions Policy. It adds that this Admissions Policy gives preference to Roman Catholic applicants and submits that such a practice is expressly permitted and stated not to amount to discrimination by section 7(3)(c) of the Equal Status Acts, 2000-2012.
2.2 Ms. A referred a complaint on behalf of her son under the Equal Status Acts, 2000-2011 to the Equality Tribunal on 20 September, 2012. In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2011 Acts the Director delegated the complaint to the undersigned, Mr. Vivian Jackson, Equality Officer, for investigation and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Acts, 2000-2012. My investigation of the complaint commenced on 27 February, 2014, the date the complaint was delegated to me. Submissions had been received from both parties and a Hearing on the complaint took place on 22 May, 2014. A small number of issues arose at the Hearing which required further clarification and gave rise to written correspondence between the Equality Officer and the parties. This process concluded on 19 June, 2014. Given the fact that the complainant is a minor and the sensitive natures of the issues involved the parties submitted, by consent, that the identities of the parties and all concerned should be anonymised in this Decision and I agreed to the application.
3. SUMMARY OF COMPLAINANT’S CASE
3.1 The complainant was born in 2001 and is a member of the Christian Orthodox Church. In 2006 his mother enrolled him in a (named) Primary which had historically been a feeder school to the respondent with the express intention of securing a place in the respondent in due course. The complainant’s mother (Ms. A) states that she was assured at that time by the Principal of this Primary School that the school was “a straight line from [the Primary School] to the [respondent]”. In the course of the Hearing she accepted that the Primary School’s Admissions Policy expressly stated that admission to that school did not confer an automatic entitlement to admission to the respondent but stated that she did not understand it at the time. Ms. A adds that in November, 2011 she received a copy of the respondent’s Application Form for 2014 and its Admissions Policy (at that time). She states that she noticed the Admissions Policy made reference to “Roman Catholic” students from the Primary School and as this was a cause of concern to her she met with the [then] Principal of the respondent (Mr. Z) who suggested that she write to the respondent’s Board of Management. Ms. A states that notwithstanding this she completed the Application Form in respect of her son and submitted it, along with the other requested documentation, to the respondent. She further states that the Application Form required the complainant’s religion to be specified – which she indicated was Christian Orthodox – and the requested documentation required a copy of the complainant’s baptismal certificate to furnished, which she did. She states that the respondent acknowledged receipt of the Application Form and the documentation by letter dated 8 December, 2011 and stated that stated that [the Principal] looked forward to meeting with her and her son at the Open Day on 4 March, 2012.
3.2 Ms. A states that she attended the Open Day with her son on 4 March, 2012. She adds that she made a point of introducing her son to Mr. Z on the day. She asserts that in speaking with Mr. Z he apologised that “her application was not a success”. She states that she was surprised at this as the closing date for receipt of applications was 9 March, 2012. Ms. A adds that she received a letter from the Principal of the respondent dated 30 March, 2012 advising that the respondent had offered all places for First Year in respect of the 2014 Academic Year in accordance with its Admissions Policy, that the complainant’s application had been unsuccessful and that his name had been placed on a waiting list should a second round of offers arise. The letter also advised that the decision could be appealed to the Department of Education and Science pursuant to section 29 of the Education Act, 1998. Ms. A states that she wrote to the respondent appealing the decision on 9 April, 2012 and received a reply dated 16 April, 2012 stating that the complainant had failed to secure a place because the number the number of applicants had exceeded the number of places available and these places had been allocated in accordance with the Admissions Policy. She adds that she received a further update on 1 June, 2012 advising that all places had been allocated and that the complainant was number fifty-five on a waiting list. Ms. A states that she appealed this decision pursuant to section 29 of the Education Act, 1998 and was unsuccessful in that regard.
3.3 The complainant’s representative states that the respondent changed its Admission Policy in respect of the Academic Years 2012 and 2013 in January, 2011. These changes were communicated to the Principal of the complainant’s Primary School on 22 February, 2011 and she was asked to bring them to the attention of parents of all fourth and fifth class students. The changes were not requested to be brought to the attention of pupils/parents in lower classes - the complainant was in third class at that time. The complainant’s representative further states the changes to the Policy resulted in the following text (changes in bold):
“Whenever the number of applicants for first year exceeds the places available, the Board’s selection procedure shall be in the following order of priority:
Category 1: Applicants who have a brother presently in the College;
Category 2: Applicants from [the complainant’s] Primary School;
Category 3: Applicants from Local Traditional Feeder Schools (see below);
Category 4: Brothers or Sons of Past Pupils;
Category 5: Applicants from other Feeder Schools.
· With 90 places on offer, distance from Home to the College (a straight line measurement on a map available in the school,) will be used to give priority within each category where required. Applicants who are unsuccessful in attaining a place will be placed on a waiting list.
The Board of Management, in cases where the number of applications exceeds the number of available places, reserves the right to give priority to members of the Catholic Faith.”
3.4 The complainant’s representative states that the respondent’s Admission Policy in respect of the Academic Year 2014 was further amended, having been ratified by the Board of Management on 17 October, 2011. It adds that the revised text of the Policy was as follows: (changes in bold):
“Whenever the number of applicants for first year exceeds the places available, the Board’s selection procedure shall be in the following order of priority:
Category 1: Applicants who have a brother currently enroled [sic] in the College;
Category 2: Roman Catholic Applicants from [the complainant’s] Primary School;
Category 3: Roman Catholic Applicants from Local Traditional Feeder Schools (see below);
Category 4: Roman Catholic Applicants who are Brothers or Sons of Past Pupils;
Category 5: Roman Catholic Applicants from other Feeder Schools.
Category 6: All other Applicants from [the complainant’s] Primary School
Category 7: All other Applicants from Local Traditional Feeder Schools:
Category 8: All other Applicants from Other Schools.
With 90 places on offer, distance from Home to the College (a straight line measurement on a map available in the school,) will be used to give priority within each category where required. Applicants who are unsuccessful in attaining a place will be placed on a waiting list.”
It is submitted on the complainant’s behalf that the effect of the changes to the 2014 Admissions Policy was to move him from a Category 2 Applicant, which would have almost certainly guaranteed him a place in the respondent, to a Category 6 Applicant which places him at number fifty-five on a waiting list.
3.5 The complainant’s representative states that section 7(2)(a) of the Equal Status Acts, 2000-2012 provides that an educational establishment shall not discriminate in respect the admission, or the terms or conditions of admission, of a person as a student to the establishment. It notes however, that section 7(3) of the Acts provides an exception to that general position as follows:
“An educational establishment does not discriminate under subsection 2 by reason only that-
(a) [not relevant]
(b) [not relevant]
(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.”.
It submits therefore that the respondent’s refusal to admit the complainant amounts to discrimination of him unless the respondent can demonstrate that such a refusal was essential to maintain the ethos of the school.
3.6 The complainant’s representative submits that the ethos of a school, as encompassed by section 7(3)(c) of the Acts, is a concept in terms of education, as defined in Murdoch’s Dictionary of Irish Law[1] as follows:
In education, the ethos of a school is called the characteristic spirit of the school as determined by the cultural, educational, moral, religious, social, linguistic and spiritual values and traditions which inform and are characteristic of the objective and conduct of the school.”.
It notes that this definition is identical to the wording contained at section 15(2) of the Education Act, 1998 in terms of the obligations placed on Boards of Management in the discharge of their functions. The complainant’s representative submits therefore that the ethos of a school is, in short, the philosophy of the school with all of these facets as subsets which inform that overall philosophy. It adds that the respondent, as an Edmund Rice School, should, at all times, act in accordance with the Edmund Rice Schools Trust Charter (“ERST Charter”) as it sets out the overall philosophy and therefore the ethos of the school. In this regard the complainant seeks to rely on the Facilitator’s Report in respect of the section 29 (of the Education Act, 1998) appeal wherein it states that the ethos of the respondent is as set out in the ERST Charter – a point accepted by Mr. Z (the respondent’s former Principal) in the course of the Hearing. It is submitted on behalf of the complainant that the respondent is not acting in a manner which is consistent with this ethos.
3.7 The complainant’s representative notes that throughout the twenty-four pages of the ERST Charter there is not one reference to “Roman Catholic” but there are numerous references to “Catholic”. It argues that the Charter is based on Christian principles and it is submitted that the complainant’s religion – Christian Orthodox – is both Catholic and Christian. In the case of the former it adds that there is no difference in the doctrine, dogma and theology between the two Churches and that the Roman Catholic Church views the Eastern Orthodox Church as a sister Church and there have been on-going attempts to re-unify them. It submits that the insertion of “Roman Catholic” into the Admissions Policy was an artificial step and was taken in order to ease the Board of Management’s concerns that the ethos of the school was under threat. The complainant’s representative submits that the respondent draws the distinction between the Roman Catholic Faith and the complainant’s religion and adds that were it not for this distinction the complainant would have been offered a place in the respondent school for the Academic Year 2014. It adds that he would also have been offered a place in 2012 and 2013 as the Policy for those years referred only to Catholic. It further states that whilst the ERST Charter has remained unchanged since 2006 the respondent’s Admissions Policy has changed several times. Consequently, it submits that the respondent’s Admissions Policy (which is a legal document recognised by statute) is not in line with the ERST Charter and therefore cannot be justified. In this regard the complainant’s representative notes that the Admissions Policy of another ERST School (details provided) give no priority to the Catholic/Roman Catholic religion.
3.8 The complainant’s representative notes that the respondent relies on section 7(3)(c) of the Acts. It makes reference to the comments made by (the then Minister for Equality and Law Reform) in the course of the second stage of the Equal Status Bill, 1997 in the Seanad[2] as regards section 7(3)(c) of the Acts, wherein the Minister stated that the provision “requires denominational schools to justify particular instances of discrimination or exclusion and the school’s reasons will be reviewed by the Director of Equality Investigations..”. In reliance on this statement it is submitted on behalf of the complainant that the respondent must justify its actions in the instant case. The complainant’s representative further refers to a lecture by Professor Gerry White[3] entitled “Implications for Schools of Irish Equality Legislation” presented at a Conference in Trinity College in May, 2013, in terms of his view of how section 7(3)(c) of the Acts might be interpreted as follows “… Where a school refuses to admit a student on grounds of religion, it must be shown that the refusal is essential to maintain the ethos of the school. One might speculate that such a refusal might be justified if the pupils sharing the school’s ethos were likely to become a minority in the school or if the religious views of the person refused admission were completely at odds with the school ethos.”. It is submitted in the instant case that following enrolment in September, 2014 the pupils sharing the ethos of the respondent will not be in the minority and that the religious views of the complainant are the same ethos as that of the respondent.
3.9 The complainant’s representative rejects the respondent’s argument in respect of how section 7(3)(c) of the Acts should be interpreted. It notes that the respondent seeks to split the provision into applying to two types of school – (i) a school which has been over-subscribed and (ii) a school which has capacity to enrol – and that it seeks to ascribe two differing evidential burdens on each of them. It further notes, as regards the former, that the essence of the respondent’s arguments is that an over-subscribed school can admit persons of the particular denomination of the school in preference to persons who are not of that denomination as a matter of course and it does not have to justify its actions. The complainant’s representative further notes that the respondent’s arguments in this regard are premised on the proposition that it would be an extremely onerous burden on an over-subscribed school to have to justify it actions in every instance. The complainant’s representative notes, as regards the latter situation proposed by the respondent, that a school with capacity would have to justify its actions. It submits that such an interpretation of the provision is absurd and is plainly not what was intended by the Legislature. It further submits that section 7(3)(c) requires all denominational schools to justify their actions in seeking to avail of the derogation from discrimination pursuant to that provision and that if different burdens were to apply to different schools the Legislature would have made this clear.
3.10 In summary, it is submitted on behalf of the complainant that he is a Catholic and a Christian. It is further submitted that had the change to the Admissions Policy in respect of the 2014 Academic Year – the inclusion of the words “Roman Catholic” – not been made, the complainant would have secured a placement in the respondent school for that Academic Year. The complainant’s representative states that this is accepted by the respondent and consequently the complainant was discriminated against on the basis of the respondent’s position that he was not a Roman Catholic. It further submits that the interpretation of section 7(3)(c) of the Equal Status Acts, 2000-2012 advanced by the respondent is absurd and instead argues that all denominational schools seeking to avail of the derogation from the principle of equal treatment permitted by that provision, must do so in every case and in that regard it must satisfy this Tribunal (in the first instance) that its actions are essential to maintain the ethos of the school. In conclusion, the complainant’s representative submits that the respondent in the instant case has failed to discharge that burden.
4. SUMMARY OF RESPONDENT’S CASE
4.1 The respondent states that it is a voluntary Catholic Secondary School founded by the Christian Brothers and now under the trusteeship of The Edmund Rice Schools’ Trust (“ERST”). It adds that it is a recognised school in terms of section 10 of the Education Act, 1998 and is managed by a Board of Management on behalf of the ERST in accordance with section 15 of that statute. It adds the ERST Charter provides that the Trust “was established to hold schools in trust so that they may continue to provide Catholic education into the future for the people of Ireland” and states that the Mission of ERST is described in the Charter as being “to provide Catholic education in the Edmund Rice tradition.” The respondent further states throughout the Charter there are numerous references to Catholic faith and education and it submits it is manifestly clear that these references are to be read as references to Roman Catholicism. In this regard it points to references to the Sacred Congregation for Catholic Education in Rome, the writings of Pope John Paul II and the Second Vatican Council. Moreover, it states that the Christian Brothers, which was founded by Edmund Rice, is a Roman Catholic body and it is therefore implicit a Christian Brother’s School (like the respondent) is a Roman Catholic School. Finally, the respondent notes that the Roman Catholic Archdiocese of Dublin - in its Directory and on its website – refers to members of the Archdiocese as “Catholic” rather than “Roman Catholic”. It submits therefore that the term “Catholic” and “Roman Catholic” are essentially interchangeable, whilst holding the meaning of the latter.
4.2 The respondent states that prior to 2011 the school was not over-subscribed and prospective students applying for admission were accommodated. It adds that there are ninety places available in First Year each Academic Year and that it became apparent in 2011 that the school might possibly be over-subscribed in 2012. Consequently, the Board of Management, in consultation with the Trustees, decided that the wording of the Admissions Policy should be amended. It accepts the changes to the Policy for 2012 and 2013 as outlined by the complainant (at paragraph 3.3 above) and states that the revised wording included was taken from an Admissions Policy of another school in the Trust. It adds that this was the Admissions Policy which applied to applicants for each of the Academic Years 2012 and 2013 (which does not include the complainant). In the course of the Hearing the respondent accepted that the complainant would have been a Category 2 applicant in each of those academic years under the Admissions Policy and would have been offered a place in the respondent school in both years. The following table sets out the number of applicants and enrolments (by religion) for each of the Academic Years 2012 and 2013 –
| 2012 | 2013 | |
| Total Number of Applicants | 171 | 186 |
| Catholic | 157 | 164 |
| Muslim | 5 | 11 |
| Orthodox | 1 | - |
| Christian | 2 | - |
| Evangelical | 1 | - |
| Methodist | 1 | 3 |
| Born Again Christian | 1 | - |
| Free | 1 | - |
| Christian Pentecostal | 1 | - |
| None | 1 | - |
| Russian Orthodox | - | 1 |
| Church of Christ | - | 1 |
| Hindu | - | 3 |
| Protestant | - | 1 |
| Other | - | 2 |
| Total Numbers Enrolled | 90 | 90 |
| Catholic | 86 | 87 |
| Muslim | 2 | - |
| Free | 1 | - |
| Orthodox | 1 | - |
| Russian Orthodox | - | 1 |
| Methodist | - | 1 |
| Hindu | - | 1 |
The respondent states that in all cases the term “Catholic” refers to “Roman Catholic” as confirmed by the applicants’ baptismal certificates. It adds that it applied its Admissions Policy in each of these years by giving preference to Roman Catholic applicants and notes that (i) in 2012 there were seventy-one Roman Catholic applicants and (ii) in 2013 there were seventy-seven Roman Catholic applicants who were unsuccessful in securing a place. In this regard it applied the criterion of “distance from the school” in accordance with the Admissions Policy. The respondent states that the non-Catholic applicants who were enrolled in each of the years were Category 1 Applicants and had siblings already in the school.
4.3 The respondent states that the above data includes details of applications received from the complainant’s Primary School. It adds that in 2012 there were twenty-five applications received from that school – twenty-two of whom were Catholic, one Orthodox, one Christian and one Free – all were successful in their applications. The respondent further states that in 2013 there were thirty-five applicants from the complainant’s Primary School – twenty-nine Catholics and one each from Muslim, Christian, Methodist, Hindu, Protestant and Other. It adds that applications from two Catholic applicants and those from the Muslim, Christian, Protestant and Other applicants were unsuccessful – all because they were received after the closing date. Consequently, twenty-seven Catholic applicants, one Hindu and one Methodist were successful.
4.4 The respondent (Mr. Z) states that following the offer of places for the Academic Years 2012 and 2013 in early 2011 a number of unsuccessful candidates referred appeals to the Department of Education and Science under section 29 of the Education Act, 1998. He adds that the Department advised the school it considered there was a lack of clarity around the Categories in the Admissions Policy and suggested that the reference to Catholic should move from the bottom of the paragraph and be included in the body of the text. In the course of the Hearing Mr. Z confirmed that this interaction with the Department was oral and there is no written confirmation of same. The respondent states that the Admissions Policy was subsequently changed (by the Board of Management and approved by the ERST) to reflect this amendment and accepts that the text of this revised Policy, which applied for applications in respect of the Academic Year 2014, is as stated on behalf of the complainant at paragraph 3.4 above. The respondent states that it applied this Admissions Policy to the applications for admission that Academic Year and the complainant was unsuccessful. It accepts that (i) the impact of the change in the Policy was to move the complainant from a Category 2 Applicant to a Category 6 Applicant, (ii) that had he remained a Category 2 Applicant he would have secured a place in 2014 and (iii) the reason his application was unsuccessful is because he was not Roman Catholic. The following table sets out the number of applicants and enrolments (by religion) in respect of the Academic Year 2014.
| Total Number of Applicants | 209 |
| Catholic | 178 |
| Christian Orthodox | 2 |
| Orthodox | 4 |
| Christian | 2 |
| Evangelical | 1 |
| Muslim | 17 |
| Church of Ireland | 3 |
| Other | 2 |
| Total Numbers Enrolled | 90 |
| Catholic | 88 |
| Muslim | 1 |
| Other | 1 |
The respondent states that having applied its Admissions Policy by giving preference to Roman Catholic applicants (after the two Category 1 Applicants) and notes there were ninety Roman Catholic applicants who were unsuccessful in securing a place in the school.
4.5 The respondent states that the above data includes details of applications received from the complainant’s Primary School. It adds that it received thirty-five applications from that school in respect of 2014 – twenty-six were Catholic, three were Muslim, two Orthodox and one each from Christian Orthodox, Christian, Evangelical and Church of Christ applicants. It adds that three of the Catholic applications were unsuccessful –all because they were received after the closing date – one being a Category 1 Applicant having a sibling already a pupil in the school. The respondent further states that all of the non-Catholic applications were unsuccessful.
4.6 The respondent accepts that the complainant’s mother submitted an application form in December, 2011and that Mr. Z subsequently met with her to discuss certain matters connected with the application. It states that the application form required applicants to indicate their religion, to which the complainant’s mother stated “Christian Orthodox”. It adds that the complainant’s mother subsequently wrote to the school about the application and it replied to her on 24 February, 2012. The respondent (Mr. Z) accepts that he spoke with Ms. A at the Open Day on 4 March, 2012 but emphatically rejects the assertion he informed her that the application for her son was unsuccessful. He further states that he could not have made such a comment because (a) the decision was not his and (b) the closing date for receipt of applications had not expired. The respondent (Mr. Z) states that after the closing date had passed the applications were assessed by him and he placed them in order having regard to the Admissions Policy – category – religion – proximity to school. A list of applicants to whom an offer of a place was to be made was prepared and this was approved by the Board of Management. The respondent accepts the subsequent chronology of events as detailed on behalf of the complainant.
4.7 The respondent states that the Education Act, 1998 places a statutory obligation on every school to have an Admissions Policy, with the approval of the Patron of the School. It adds that in the instant case this latter role is discharged by the ERST. The respondent states that the ERST Charter lies at the core of how it operates and adds that it is an umbrella document for all Christian Brothers Schools. It adds that within the general framework set out by the Charter each school has the right to manage its own affairs and within that a number of schools covered by the Trust have developed their own Admissions Policies. In this regard the respondent submitted a number of Admissions Policies from other Christian Brother Schools which clearly indicate the Roman Catholic ethos of those schools. It adds that these Admissions Policies are approved by ERST and are therefore consistent with the ethos espoused in the Charter. It adds that its own Admissions Policy was approved by the Trust in October, 2011 and is therefore also consistent with the ethos espoused in the Charter – which is submitted is Roman Catholic - and complies with the statutory requirements under the Education Act, 1998. The respondent submits that as a member of the Christian Orthodox faith, the complainant, whilst he may be Catholic and Christian, he is not a Roman Catholic. It further submits that the Roman Catholic Church and the Christian Orthodox Church are separate and distinct Churches. In this regard it states, in the first instance, that members of the Christian Orthodox Church do not recognise the primacy of the Pope in Rome. It adds that the Romanian Orthodox Church (which is the Church the complainant was baptised into) is ecclesiastically independent, being governed by its own national synods and appointing its own patriarchs or prelates. Finally, it states that the Patriarch of Constantinople is recognised as primus inter pares (first among equal) within the Orthodox Church.
4.8 The respondent contends that its actions, in terms of giving preference to Roman Catholic applicants, is permitted by section 7(3)(c) of the Equal Status Acts, 2000-2012 and is therefore not unlawful pursuant to that provision. It rejects the interpretation of “ethos” (in terms of that provision) advanced on behalf of the complainant. It notes that the complainant’s representative equates it with the “characteristic spirit” of a school and uses the definition of that term as contained at section 15(2)(b) of the Education Act, 1998. The respondent submits that this definition is deliberately wide so as to allow the recognition of other types of patron, or patron bodies, be they denominational, multi-denominational, non-denominational, gaelscoil or otherwise in terms of that statute. It further submits that “ethos” in terms of section 7(3)(c) of the Equal Status Acts, 2000-2012 is a much narrower than the concept of “characteristic spirit” in the Education Act, 1998 because it is defined solely in terms of religion, which is one of the components encompassed by “characteristic spirit” and should be interpreted in that light. The respondent adds that in the case of a denominational school the “characteristic spirit” of the school is clearly informed by the religious ethos of that school.
4.9 The respondent states that the effect of the interpretation of section 7(3)(c) of the Equal Status Acts, 2000-2012 proposed on behalf of the complainant is that where a denominational school admits persons of a particular religious denomination, or none, and it refuses to admit a person who is not of that particular denomination, the school must prove that the refusal is essential to maintain the religious ethos of that school. It adds therefore that the argument advanced by the complainant results in the word “or” contained in that provision as being conjunctive rather than disjunctive. It further states that if such an interpretation was correct it would require a denominational school to prove that all refusals of applicants who were not of a particular denomination were essential to maintain the ethos of the school, even when there is no connection between the applicant’s particular denomination and the reason for the refusal to enrol. The respondent submits that such an interpretation is incorrect and would (i) prove extremely onerous on a school to discharge that burden, (ii) render the provision inoperative as how (and when) could a school prove that the enrolment of one additional applicant not of that school’s particular denomination would undermine its ethos and (iii) undermine the denominational school as we know it. It argues that the opposite is the case and contends that the provision envisages two different situations – one where preference is given to applicants of a school’s particular denomination and one where there is a refusal to enrol an applicant not of a school’s particular denomination.
4.10 The respondent submits, in terms of the first situation, that it is permissible under section 7(3)(c) of the Acts, and therefore not discriminatory, to enrol students of a particular denomination “in preference to” others. It adds that this occurs where a school is over-subscribed and that such an approach can continue so long as there are applicants of the preferred denomination and states that a natural consequence of such an approach is that applicants who are not of the preferred denomination may not secure a place. The respondent submits that such a failure to secure admission is not a refusal on the part of the school. The respondent states that this is what happened in the instant case where all ninety places on offer were filled by applicants in Category 1 and thereafter Roman Catholic applicants in Category 2, 3 etc. of its Admissions Policy.
4.11 The respondent submits that the second situation envisaged by the section is one where a school has capacity to enrol students and it refuses to enrol a person on the basis of his/her religion. It adds that in such circumstances the school in question must prove that the refusal was essential to maintain the ethos of the school in order to avail of the exemption at section 7(3)(c) of the Acts. It adds that this is not what occurred in the instant case.
4.12 In summary, the respondent states, whilst sympathetic to the complainant, that it did not discriminate against him contrary to the Acts. It adds that it is a Roman Catholic school, notwithstanding that the ERST Charter and Admissions Policies only make reference to “Catholic(s)” and argues that it is clear the latter word should be read as the former. It further states that it published its Admissions Policy in accordance with the requirements under the Education Act, 1998 and that moreover, in accordance with that statute, it applied that Policy to the applications it received for enrolment in respect of the Academic Year 2014. It states that it was oversubscribed and gave preference to Roman Catholic applicants and as a consequence of this the complainant was not offered a place, along with one hundred and nineteen other prospective students, ninety of whom were Roman Catholic. It submits that its actions in this regard are permitted by section 7(3)(c) of the Equal Status Acts, 2000-2012 and do not amount to discrimination pursuant to that provision.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for decision by me in whether or not the actions of the respondent in affording preference to Roman Catholic applicants in order to fill the ninety places it had in First Year in respect of the Academic Year 2014, is covered by section 7(3)(c) of the Equal Status Acts, 2000-2012 and does not therefore amount to discrimination of the complainant contrary to those Acts. In reaching my decision I have taken into consideration all of the submissions, written and oral, submitted to the Tribunal as well as evidence advanced at the Hearing.
5.2 The first matter which must be addressed is whether or not the complainant is covered by the relevant characteristic advanced in the complaint – that he is a different religion to those against whom he compares himself – i.e. the ninety students who were successful with their applications for a place in First Year in the respondent for the Academic Year 2014. It is stated on behalf of the complainant that he is a member of the Christian Orthodox Church and in this regard he is both Christian and Catholic. Consequently, it is submitted that he is the same religion to that included in the respondent’s Admissions Policy for 2012 and 2013 i.e. “Catholic”. The respondent accepts that this Admissions Policy only made reference to members of the “Catholic Faith” but submits it is manifestly clear that these references are to be read as references to Roman Catholicism. It further argues that Roman Catholicism and Christian Orthodox and different religions. I do not propose to embark on an historical or theological analysis of the relationship between the Roman Catholic Church and the Orthodox Catholic Church but suffice it to say it is apparent that there are considerable similarities between the two Churches. However, there are also significant differences between them, one of the most significant being that Roman Catholics recognise the primacy of the Pope in Rome whereas members of the Christian Orthodox Church do not. It has its own organisation and leadership structure where the Patriarch of Constantinople is recognised as primus inter pares (first among equal) within that Church. In my view this alone is sufficient to distinguish between the two Churches and consequently I am satisfied that they are different religions.
5.3 The next matter I must address is whether or not the term “Catholic” in the respondent’s Admissions Policy should be read as meaning “Roman Catholic” as argued by the respondent. In this regard it states that the school is a Christian Brother School under the trusteeship of The Edmund Rice Schools’ Trust (“ERST). It adds the ERST Charter provides that the Trust “was established to hold schools in trust so that they may continue to provide Catholic education into the future for the people of Ireland” and states that the Mission of ERST is described in the Charter as being “to provide Catholic education in the Edmund Rice tradition.”. The respondent further states that the numerous references to Catholic faith and education throughout the Charter must clearly be interpreted as references to Roman Catholicism. In this regard it points to references in the Charter to the Sacred Congregation for Catholic Education in Rome, the writings of Pope John Paul II and the Second Vatican Council. Moreover, it states that the Christian Brothers, which was founded by Edmund Rice, is a Roman Catholic body and it is therefore implicit a Christian Brother’s School (like the respondent) is a Roman Catholic School. Finally, the respondent notes that the Roman Catholic Archdiocese of Dublin - in its Directory and on its website – refers to members of the Archdiocese as “Catholic” rather than “Roman Catholic”. It submits therefore that the term “Catholic” and “Roman Catholic” are essentially interchangeable. This proposition is rejected on behalf of the complainant. Having carefully considered the evidence adduced by the parties on this matter I find that I must concur with the respondent’s arguments. The text of the ERST Charter opened to the Tribunal are undoubtedly references to the Roman Catholic faith. It is common case that this Charter lies at the core of how the respondent operates and underpins the values and beliefs it espouses. Consequently, I find that the respondent is a Roman Catholic school which provides education in an environment which promotes religious values consistent with that particular faith.
5.4 The next matter which must be addressed is what amounts to the “ethos” of the respondent in terms of section 7(3) of the Equal Status Acts, 2000-2012. It is submitted on behalf of the complainant that this amounts to the “characteristic spirit” of the school as contained at section 15(2) of the Education Act, 1998. The complainant’s representative further submits that the ethos of a school is in short the philosophy of the school as informed by the components detailed at section 15(2) of that statute. The respondent submits that that the definition of “characteristic spirit” at section 15(2) of the Education Act, 1998 is deliberately wide so as to allow the recognition of other types of patron, or patron bodies, be they denominational, multi-denominational, non-denominational, gaelscoil or otherwise in terms of that statute. It further submits that “ethos” in terms of section 7(3)(c) of the Equal Status Acts, 2000-2012 is a much narrower than the concept of “characteristic spirit” in the Education Act, 1998 because it is defined solely in terms of religion in that provision, which is one of the components encompassed by “characteristic spirit”. I have given careful consideration to the arguments advanced by the parties on this point and I am of the view that the proposition submitted by the respondent is to be preferred – i.e. that “ethos” in terms of section 7(3)(c) of the Equal Status Acts, 2000-2012 should be construed narrowly. In reaching my decision in this regard I have taken account of: (i) section 7(3) of the Acts provides a denominational educational establishment with an exemption from the principle of equal treatment and such exemptions should generally be construed narrowly to avoid defeating the purpose of the legislation; (ii) section 7(3)(c) is clearly couched in terms of the religious values of such an establishment and (iii) if the expansive interpretation proposed on behalf of the complainant was to be adopted such an establishment could seek to exclude a prospective student on the basis that person’s cultural and linguistic traditions or values offend the values of the educational establishment. It follows that “ethos” in terms of section 7(3)(c) of the Acts is characterised by the religious values and principles which underpin the religious philosophy espoused by a particular school.
5.5 The respondent states that prior to 2011 the school was not over-subscribed and students applying for admission were accommodated. This was not challenged on behalf of the complainant. It adds there are ninety places available in First Year each academic year and that it became apparent in 2011 that the school might possibly be over-subscribed in 2012. It further states that the Board of Management, in consultation with the Trustees, decided that the wording of the Admissions Policy should be amended and that the revised Admissions Policy was ratified by the Board and approved by the Trustees in January, 2011. This Admissions Policy was provided to the Principal of the complainant’s Primary School on 22 February, 2011. It is common case that respondent requested that Principal to bring the revised Policy to the attention of parents of all fourth and fifth class students and that no request was made that it be brought to the attention of pupils/parents in lower classes - the complainant was in third class at that time. The complainant’s representative takes issue with the failure of the respondent in this regard. However, I am satisfied that its actions were reasonable in that the pupils in fourth and fifth classes at that time were the ones whom the revisions would immediately impact on. It is common case that the nature of the revision to the Policy was as follows – “The Board of Management, in cases where the number of applications exceeds the number of available places, reserves the right to give priority to members of the Catholic Faith.” and that this was the Admissions Policy which applied to applications for each of the Academic Years 2012 and 2013. The respondent states that whilst the Admissions Policy for 2012 and 2013 did not contain the phrase “Roman Catholic” in reality preference was given to Roman Catholic applicants in terms of Category 2 applicants onwards.
5.6 The respondent furnished details of the applications and enrolments for each of these years. This data is set out in tabular format at paragraph 4.2 above and I do not propose to replicate it here. From examination of these details it is clear that the respondent was oversubscribed each year. Category 1 applicants under the Admissions Policy are those who have siblings already in the school. In 2012 there were four non-Roman Catholic applicants enrolled. In 2013 there were three non-Roman Catholic applicants enrolled. The respondent states that these applicants were all Category 1 applicants and this was not disputed by the complainant’s representative. The remaining places each year – eighty-six in 2012 and eighty-seven in 2013 – were awarded to Roman Catholic applicants. In light of my finding at paragraph 5.3 above that the respondent is a Roman Catholic school, I find that the respondent operated its Admission Policy and gave preference to Roman Catholic applicants under Categories 2-5 of the Policy. It is noteworthy that there were Roman Catholic applicants in each year that were unsuccessful – seventy-one in 2012 and seventy-seven in 2013 – in addition to ten applicants of other religions in 2012 and nineteen of other religions in 2013. It is submitted on behalf of the complainant that he would have been offered a place in the respondent in either of these two years as he was a Category 2 applicant. This was accepted by the respondent in the course of the Hearing. However, I am not satisfied that this outcome would have emerged. As stated above I am satisfied that the respondent gave preference to Roman Catholic applicants when offering places to prospective students in both 2012 and 2013. The complainant was not a Roman Catholic and this fact would have emerged when his application was received (which included his baptismal certificate). Consequently, it appears to me highly unlikely that he would have been offered a place in either year.
5.7 It is common case that the Admissions Policy in respect of the Academic Year 2014 contains a specific reference to “Roman Catholics”. The respondent states that it was oversubscribed that year also and that it offered places in accordance with its Admissions Policy. It furnished the Tribunal with details of the applications and enrolments for that year (see paragraph 4.4 above). Two non-Roman Catholics applicants were successful – they were Category 1 applicants. The remaining eighty-eight places were offered to Roman Catholic applicants and I am satisfied that this process is consistent with the Admissions Policy in operation at that time – a copy of which the complainant’s mother had received in November, 2011. Again I note that there were ninety Roman Catholic applicants and twenty-nine applicants of other religions who were unsuccessful. I further note that there were nine non-Roman Catholic applicants from the complainant’s Primary School and all were unsuccessful. Ms. A contends that the respondent Principal (Mr. Z) apologised for the fact the complainant’s application was unsuccessful when she attended the Open Day with her son on 4 March, 2012. Mr. Z rejects this assertion and states that he could not have made such a comment because (a) the decision was not his and (b) the closing date for receipt of applications had not expired. He adds that after the closing date had passed the applications were assessed by him and he placed them in order having regard to the Admissions Policy – category – religion – proximity to school; he then prepared a list of applicants to whom an offer of a place was to be made and this was approved by the Board of Management. Having carefully considered the evidence adduced by the parties on this matter I believe it highly unlikely that a person of Mr. Z’s experience would make such a comment and I am of the view that Ms. A is mistaken in her recollection of the discussion which took place between them that day.
5.8 Before proceeding with the remainder of my decision I think it would be useful to summarise my conclusions so far. I am satisfied that the respondent is a Roman Catholic School and that this religious ethos underpinned its Admissions Policies for each of the Academic Years 2012, 2013, 2014, notwithstanding that the Policy in operation for 2012 and 2013 did not expressly contained the phrase “Roman Catholic”. It was oversubscribed in respect of the 2014 Academic Year and it applied its Admissions Policy in operation at that time to the applications received. In doing so it afforded preference to Roman Catholic applicants as a result of which the complainant failed to gain admission to First Year in the school. It is common case that this treatment of him was entirely connected with his religion – he was not a Roman Catholic. Consequently, the treatment of him is prima facie discrimination on grounds of religion contrary to the Equal Status Acts, 2000-2012. However, section 7(3)(c) of those Acts provides an exemption in respect of discrimination to denominational schools in certain circumstances. The respondent seeks to rely on that exemption to render the actions it took lawful.
5.9 Section 7(3) of the Equal Status Acts, 2000-2012 provides as follows:
“An educational establishment does not discriminate under subsection 2 by reason only that-
(a) [not relevant]
(b) [not relevant]
(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.”.
The respondent submits that the above provision envisages two different situations – one where preference is given to applicants of a school’s particular denomination and one where there is a refusal to enrol an applicant not of a school’s particular denomination. It further submits that the former occurs where a school is over-subscribed and that such an approach can continue so long as there are applicants of the preferred denomination. The respondent submits that the second situation envisaged by the section is one where a school has capacity to enrol and it refuses to enrol a person on the basis of his/her religion. It adds that in such circumstances the school in question must prove that the refusal was essential to maintain the ethos of the school in order to avail of the provision. It is submitted on behalf of the complainant that the interpretation argued by the respondent is absurd and instead his representative argues that all denominational schools seeking to avail of the derogation from the principle of equal treatment permitted by that provision must do so in every case and in that regard must satisfy this Tribunal (in the first instance) that its actions are essential to maintain the ethos of the school.
5.10 The complainant’s representative draws the Tribunal’s attention to comments made by (the then Minister for Equality and Law Reform) in the course of the second stage of the Equal Status Bill, 1997 in the Seanad[4] as regards section 7(3)(c) of the Acts wherein the Minister stated that the provision “requires denominational schools to justify particular instances of discrimination or exclusion and the school’s reasons will be reviewed by the Director of Equality Investigations..”. It is submitted on behalf of the complainant that this requires the respondent to justify its actions in the instant case. The use of such material as an aid to interpretation is impermissible following the judgement of the Supreme Court in Crilly & Farrington –v- Eastern Health Board and Others[5] and consequently I cannot take account of same. The complainant’s representative further refers to a lecture by Professor Gerry White[6] entitled “Implications for Schools of Irish Equality Legislation” presented at a Conference in Trinity College in May, 2013, in terms of his view of how section 7(3)(c) of the Acts might be interpreted as follows “… Where a school refuses to admit a student on grounds of religion, it must be shown that the refusal is essential to maintain the ethos of the school. One might speculate that such a refusal might be justified if the pupils sharing the school’s ethos were likely to become a minority in the school or if the religious views of the person refused admission were completely at odds with the school ethos.”. Whilst I accept the argument that the interpretation posited may be a valid one, it is not the only interpretation which can be advanced.
5.11 The respondent rejects the interpretation advanced on behalf of the complainant and states that if such an interpretation was correct, it would require a denominational school to prove that all refusals of applicants who were not of a particular denomination were essential to maintain the ethos of the school, even when there is no connection between the applicant’s particular denomination and the reason for the refusal to enrol. The respondent submits that such an interpretation is incorrect and argues that the opposite is the case. It argues that the provision envisages two different situations – one where preference is given to applicants of a school’s particular denomination and one where there is a refusal to enrol an applicant not of a school’s particular denomination. It further submits, in terms of the first situation, that it is permissible and therefore not discriminatory, to enrol students of a particular denomination “in preference to” others. It adds that this occurs where a school is over-subscribed and that such an approach can continue so long as there are applicants of the preferred denomination and places to be filled and states that a natural consequence of such an approach is that applicants who are not of preferred denomination may not secure a place. The respondent submits that such a failure is not a refusal on the part of the school. The respondent states that this is what happened in the instant case where all ninety places on offer were filled by applicants in Category 1 (in the first instance) and thereafter Roman Catholic applicants in Category 2, 3 etc. of its Admissions Policy. The respondent submits that the second situation envisaged by the section is one where a school has capacity to enrol and it refuses to enrol a person on the basis of his/her religion. It adds that in such circumstances the school in question must prove that the refusal was essential to maintain the ethos of the school in order to avail of the exemption at section 7(3)(c) of the Acts.
5.12 The objective of statutory interpretation for Tribunals such as this one (and ultimately the Superior Courts pursuant to the Constitution) is to ascertain what the Legislature’s intention was when enacting the statute. The starting point for such an exercise is the “literal approach” which entails giving the words contained in the statute their ordinary and natural meaning. This approach is repeated often in Irish caselaw and one such example is the comments of Kelly J in O’Dwyer v Keegan[7] as follows “The intention and therefore the meaning of an Act is primarily to be sought in the words used. They must, if they are plain and unambiguous, be applied as they stand…If there is nothing to modify, alter or qualify the language which is contained in the Act, then the words and sentences must be construed in their ordinary and natural meaning”. Applying this approach to the instant case it is clear that by including section 7(3)(c) in the Equal Status Acts, 2000-2012 the Legislature intended to provide an exemption to denominational schools from the principles of equal treatment in granting prospective students admission to the school on the ground of religion in certain circumstances under that legislation. The inclusion of the word “or” in this provision clearly shows that there are two alternatives available to a school under the provision. I am satisfied that the first of these is a situation where a denominational school gives preference to applicants who are of the same religious denomination as the school. The second situation is where the school refuses to admit a person who is not of the same religious denomination of the school. Section 7(3)(c) places no qualification on the first scenario. However, it requires a school which refuses to admit a person who is not of the same religious denomination as the school, to prove that the refusal was essential to maintain the religious ethos of the school.
5.13 The respondent submits that it is permissible under the first scenario covered by section 7(3)(c) and therefore not discriminatory contrary to the Acts, for a school to give preference to applicants of the same religious denomination as that school for so long as the school has capacity to enrol students and there are prospective students of that particular religious denomination and I concur with that submission. It follows however, that where a school is oversubscribed and there is an excess of applicants of the same religious denomination as the school, giving preference to those applicants may, in effect, deny admission to other applicants who are not of that denomination. The question which arises then is whether or not the failure of such a person to gain admission as a consequence of preference being given to certain applicants amounts to a refusal. The respondent submits that it is not. Again I concur with the respondent on this point. In reaching this conclusion it appears to me that the Legislature saw preferential treatment and refusal in terms of section 7(3)(c) of the Acts as separate and distinct scenarios which were alternatives to each other as stated in the previous paragraph
5.14 The next matter which arises is when does a “refusal” in terms of section 7(3)(c) occur. The respondent submits that it can only occur when a denominational school has capacity and declines an application for admission. The complainant’s representative submits that any denial of admission is a refusal which must be justified by reference to the test set out in the section. Having carefully considered this matter I find that the respondent’s argument is to be preferred. If all unsuccessful applications were subject to the requirement to show they were essential to maintain the ethos of the school it would result in a situation where there was an excess of applicants of the same religious denomination of that school, that the school would be required to demonstrate that the failure of such an applicant to gain admission was essential to maintain the religious ethos of the school. Such a proposition would lead to an absurd outcome as the school would be unable to discharge that burden.
5.15 In summary on this matter, I find that section 7(3)(c) of the Equal Status Acts, 2000-2012 provides that a denominational school does not discriminate against a prospective student on grounds of religion contrary to the Acts, in circumstances where it affords admission to applicants of the same religious denomination as the school over applicants who are not of that religious denomination. A failure by an applicant to gain admission to a school by operation of such a practice does not amount to a refusal in terms of section 7(3)(c) of the Acts. I further find that a refusal in terms of section 7(3)(c) occurs when a denominational school rejects an application for admission to a prospective student where that student is of a different religious denomination to that of the school and in circumstances where that school has capacity to enrol that student. Such a refusal may amount to discrimination of that student on grounds of religion contrary to the Equal Status Acts, 2000-2012 unless that school can satisfy this Tribunal (in the first instance) or the Courts (on appeal) that the refusal was essential to maintain the religious ethos of the school. In the instant case the respondent filled all of the ninety places it had available in respect of First Year for the Academic Year 2014 in accordance with its Admissions Policy in operation at the relevant time. This Policy, after priority being afforded to applicants who had siblings already in the school (two in 2014), gave preference to applicants who were Roman Catholic. As a result of this approach all remaining eighty-eight places were filled by Roman Catholic applicants. Such an approach is permitted by section 7(3)(c) of the Equal Status Acts, 2000-2012 and does not amount to discrimination pursuant to that provision,
6. DECISION OF THE EQUALITY OFFICER.
I have completed my investigation of this complaint and make the following Decision in accordance with section 25(4) of the Equal Status Acts, 2000-2012. I find that the actions of the respondent, in giving preference to Roman Catholic applicants in respect of the allocation of places for the 2014 Academic Year, is permitted by section 7(3)(c) of the Equal Status Acts, 2000-2012 and does not amount to discrimination of the complainant on grounds of religion in accordance with that provision.
_______________________________
Vivian Jackson
Equality Officer
12 August, 2014