What Constitutes a Catholic School in 2019? A Legal Perspective

Abstract

Feichín McDonagh What Constitutes a Catholic School in 2019? A Legal Perspective Feichín McDonagh What, in law, is a Catholic school? How do the Irish Constitution and the Education Act 1998 regard a ‘Catholic school’ or for that matter any school with a religious patron? Does current legislation protect a school’s entitlement to provide education with a faith-inspired ethos to members of the faith community the school may have been established to serve? Why has the Oireachtas decided, in 2018, to treat Catholics and non-Catholics differently in this regard and does such a difference in treatment offend the provisions of the Constitution? The Education (Admissions to Schools) Act 2018, is the most recent occasion upon which the Education Act has been amended by the Oireachtas and its terms may be a useful paradigm within which to consider the changing face of the legal regime in which Catholic schools are required to operate. Question of ethos and parental choice are of course not new. The late Fr Joe Veale SJ wrote an article in 1970 in this publication entitled ‘The Christian School’. Much of what he wrote has continuing relevance today. At one point he states: ‘It should hardly be necessary, at this time, to say again that there is no such thing as a “neutral” school. The absence of commitment, or a confusion of commitments, is itself an implicit philosophical statement … it would seem to be a necessary condition for the proper functioning of a committed school in a modern society that parents have a real choice of an alternative. Put bluntly: the present situation is an artificial one, where the nominal Christian or the frankly unbelieving one must willy-nilly send his child to the local confessional school. The fully-believing, committed Christian parent is another matter. I leave it to the constitutional lawyer to say whether such a parent has a right to have his child educated in the way he wants’.1 Fr Veale’s observations seem prescient indeed in light of the context in which Catholic schools now find themselves, and not just in Ireland. By way of example, the concept of a ‘neutral’ school, or at least the insistence by a Studies • volume 108 • number 429 8 What Constitutes a Catholic School in 2019? A Legal Perspective government that a private Jesuit school in Quebec teach about ethics and the Catholic faith from a strictly secular perspective was recently found by the Canadian Supreme Court to amount to a significant interference with the freedom of religion guaranteed to all Canadians.2 As regards diversity in provision, all would no doubt agree that there should be a greater choice available. The final ‘query’, however, posed by Fr Veale may not have seemed particularly urgent back then, but times change or, as might have been said back then, tempora mutantur, nos et mutamur in illis. What might have been thought by many to have been an unnecessary and speculative proposition deserving only the attention of a constitutional lawyer must now be considered to be of some urgency in light of the terms of the Education (Admissions to Schools) Act 2018, and what some see as a radical re-balancing of rights as provided for in that act. Before considering aspects of that act, it is useful to have regard to where the respective partners in education stood prior to 2018. Managerial autonomy of schools prior to 2018 On 4October 2017, The Irish Times reported that the Taoiseach Leo Varadkar had ruled out a referendum on ownership of the public water system saying: ‘Privatising our public water services is like suggesting that somebody might want to privatise our national schools. It is impossible and absurd’. Whereas one could not criticise the Taoiseach for a lack of awareness of the subtleties, intricacies and complexities affecting the management of our national school system, one cannot avoid expressing some surprise that the Taoiseach appears to have been unaware that the reason why our national school system cannot be privatised is that our national school system is and always has been a system of ‘private’ schools, albeit with significant funding from the exchequer. Wherever one looks, whether...