Education (Admission to Schools) Bill 2016: Discussion

On behalf of the committee, I welcome Mr. Paul Rowe, chief executive officer of Educate Together, Ms Breda Corr, general secretary of the National Association of Boards of Management in Special Education, Ms Bláthnaid Ní Ghréacháin, Gaeloideachais, Dr. Ríona Ní Fhrighil, Cearta Oideachais, Mr. Pat O'Mahony, education, policy and research officer, Education and Training Boards Ireland, Ms Jane Donnelly, Atheist Ireland on behalf of Evangelical Alliance Ireland and Ahmadiyya Muslim Community of Ireland, Ms Sarah Lennon and Mr. Paddy Monahan, Education Equality, and Mr. Anthony Muldoon and Dr. Eoin Daly from EQUATE Ireland.

The witnesses are very welcome. They are here to discuss the Education (Admission to Schools) Bill 2016. There is also a Private Member's Equal Status (Admission to Schools) Bill 2016 and some of the matters discussed today may have a bearing on this legislation. If they wish, the witnesses may comment on that matter.

I draw the attention of witnesses to the fact that by virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of their evidence to the committee. However, if they are directed by the Chairman to cease giving evidence on a particular matter and they continue to so do, they are entitled thereafter only to a qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and they are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person, persons or entity by name or in such a way as to make him, her or it identifiable. Any opening statements witnesses present will be published on our website directly following the meeting. Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the House or an official either by name or in such a way as to make him or her identifiable.

In case Deputies on the committee have to leave for a division - as is likely to happen given that this is the second last day before recess - I have asked, and the committee has agreed, that Senator Lynn Ruane take the chair so that the proceedings may continue. There will be opportunities after recess because other groups and organisations want to engage with us and will be afforded the opportunity to do that.

Tá pointe ordaithe agam. Tá beirt le bheith ag caint linn maidir le Gaeloideachas agus Gaeilge. Táimid tar éis a chloisteáil ón gCléireach nach bhfuil aon áiseanna aistriúcháin againn sa seomra seo. Measaimse féin nach bhfuil sé sin sásúil. Níl sé sásúil muna bhfuilimidne in ann déileáil leis an ábhar sin trí Ghaeilge más mian le na cainteoirí é sin a dhéanamh. Níl sé sin ceart agus níl sé bunreachtúil, i mo thuairim. Níl mé sásta le seo. Níl a fhios agam an bhfuil freagra ag an gCathaoirleach anois maidir leis an ábhar sin. Tá náire ormsa mar Bhall den Dáil freisin. Níl a fhios agam an bhfuil aon bharúil ag na finnéithe air. Tá an jab le déanamh againn.

I am very upset that there are people here who are concerned about Gaelscoileanna and Gaeilge, missions and Irish language issues and we do not have a translation facility in this committee room. It is a breach of our constitutional obligations in terms of Gaeilge being our first language. I was shocked to learn that a translation facility is not available in this committee room. I do not know what is the answer to this. If those people were the only speakers before the committee, I certainly would not proceed with this meeting. That would be my view, but I do not know what is the position.

Is mór an díoma atá orm mar gheall ar sin freisin. We had a brief discussion about this prior to the meeting when we were in private session. This is very regrettable and it should not happen again. People who wish to make a submission before any of the committees in our native language should have the opportunity to do so. I understand there is only one committee room where it is possible to have a translation facility and it had been prebooked by the Joint Committee on Arts, Heritage, Regional, Rural and Gaeltacht Affairs. We should make sure this does not happen again in the future. We have to afford people that opportunity. I ask the clerk and the assistant clerk to make sure that will not happen again.

This is supposed to be clear. It is anyone's entitlement to speak Irish if he or she so wishes-----

Absolutely.

-----regardless of the fact that there is no translation facility in the committee room. That is the position.

I agree but, to be fair to the representative from Cearta Oideachais, she agreed she would make the statement in English because of that and that her statement would be published in Irish on the website. A compromise was reached and I very much appreciate it.

We will proceed without any further undue delay. All of the witnesses were advised that they would have a speaking time of two minutes to make their opening statements. We have received the written documentation from all of them and it has been circulated to the members. I apologise as my voice is quite weak; I have had an ongoing 'flu. If my voice goes, Senator Ruane will step in. I will take all the witnesses' opening statements, following which the members will have the opportunity to pose questions or comments and the witnesses will have an opportunity to respond to those. I call Mr. Rowe to make his opening statement and he will be followed by the other witnesses in order of where they are seated.

Mr. Paul Rowe

I thank the Chairman and members of the committee for this opportunity on behalf of the now tens of thousands of parents and children who attend Educate Together schools. We welcome the Minister's efforts to bring greater transparency to the fraught area of school admissions. This is an area of long-standing concern for Educate Together. We are striving for a system which provides equality of access and esteem to children and since demand for our equality-based schools currently far outstrips demand, we are more familiar than we would like to be with the issues of over-subscription. Equal access is one of our core objectives, yet with the growing pressure on them to meet an ever-increasing demand, it is a challenge for our schools to operate enrolment policies that are as fair as they can be.

First and foremost, the case we would like the committee to consider is that there is a need to reconfigure the education system to bring it in line with parental demand. In this regard, Educate Together applauds recent Government commitments to bring the number of non-denominational or multidenominational schools to 400 by 2030. Correcting the current imbalance in school types will reduce over-subscription and thereby reduce situations where families cannot gain access to their chosen type of school. We would ask the committee to consider something further than that. We believe there is a necessity for systemic reform of school admissions with the State taking responsibility for an area-based system in which parents' preferences are collected and school places are allocated in a fair and transparent manner on an area-based State controlled system. We would like to see much stronger powers for the Minister in section 65 of the proposed Bill in order that such a system could be enabled.

We are particularly concerned with the retention of measures to allow religious discrimination in section 61(2)(b). In our experience, this remains the most serious issue concerning school admissions facing a rising number of families in Ireland today. Until this is addressed both by legislation and by dramatically increasing the availability of Educate Together model schools, the political issue of school admissions will simply not go away. We are also concerned with section 62(6)(h) relating to an opt out provision for children whose parents do not wish to attend religious instruction. While we understand the Minister's wish to shed light on an area hitherto unclear, Educate Together contends that when children of minorities simply opt out of faith formation classes within school hours, this leads to serious exclusion. Merely requiring schools to publish their arrangements does nothing to prevent this exclusion.

In regard to the provisions of section 66, which enables the National Council for Special Education, NCSE, to designate a school a child can attend, it is important that the legislation is strengthened to place the responsibility on the NCSE to ensure that all necessary resources are in place prior to the admission of the child. Children with special educational needs have a right to more than just a school place; they have a right to an education which meets their needs, and resources must be provided.

This is a very short statement and I look forward to discussing these matters. I assure the members that Educate Together's accumulated experience of managing schools is at their disposal.

I appreciate the allotted speaking time is short. We often experience the frustration of only have a speaking time of two minutes in the Dáil, but one can make a clear argument in that short period, as Mr. Rowe did. I call Ms Breda Corr to make her contribution.

Ms Breda Corr

My written statement would take longer than two minutes to deliver.

That is fine.

Ms Breda Corr

I will take excerpts from it. First, I thank the members of the Oireachtas joint committee for affording us this opportunity. I read what was said in the Dáil on this issue with interest and a number of members mentioned special educational needs and a number did not. We welcome many of the suggested changes but we are concerned by the manner in which the legislation does not appear to take into account the necessary practice of requirements of schools catering for children with special educational needs. We made a submission to this committee on the heads of the Bill previously and some of the changes we proposed have come into place and some have not.

However, we have specific areas of concern and I will briefly outline them. As in section 61, there is a requirement that a school would have a specific statement of non-discrimination on all the usual equality grounds but also on the disability ground of the student or the applicant in respect of the student concerned. It goes without saying that special schools and special classes must be able to differentiate between types of students with special educational needs. A special school or class catering for children with a particular diagnosis should be in a position to refuse enrolment to a child who does not have that diagnosis because it is not in the best interests of the child to be there. It would be especially essential that they would be able to differentiate between those disabilities.

Section 62(6)(c), dealing with admissions policy, sets out a limited number of circumstances where a school will not be obliged to enrol a student. Special schools and schools with special classes must be given the right to refuse an applicant on the basis that the needs of the applicant does not match the profile of needs catered for by that particular school or class. It is imperative therefore that a fifth ground is included here to ensure that special schools and mainstream schools with special classes can refuse enrolment on the basis that an applicant student does not have that special educational need.

A few of the regulations also pose a few problems and we are of the view that a distinction needs to be made in regard to special schools and classes. That should be hard-coded into the Act rather than in the regulations. I will mention the five issues I have set out in my statement. The first relates to the prior attendance at a specific specified category of preschool. Many special schools have early intervention units and the parents would fully expect that the child would be able to get a place in the special school or class. Another issue is the student's academic ability. Schools catering for mild, moderate or severe disability or educational needs would need to know what is the aptitude of the student to ensure that the student is in the right place. Another issue is the interview or open day. It is essential that special schools or special classes would be able to meet the parents and meet the child involved because the parents and the school need to assess whether the child's needs can be met and properly catered for in that school.

The last piece of regulation we have a little difficulty with is the preclusion of a school from seeking information relating to any medical condition, disability or special educational needs of the students. It is essential that this provision would not be applied to special schools or classes because, as Paul Rowe mentioned earlier, that is resource dependent. Some of these would create obstacles for the enrolment process in special schools and classes.

The last issue is the designation of a school by the NCSE or Tusla. There have been changes since the last proposed Bill in 2015 and there are provisions in it now regarding the ability of the school to accommodate the child, the best interests of the child and special educational needs. As the NCSE and Tusla do not have a daily involvement in school affairs and do not know the make-up of the school or class on a daily basis it is important that the school would be consulted fully before making a proposal to designate. There is another issue related to that. If a child was expelled from a school, there is nothing in the Bill to stop the NCSE or Tusla ignoring the expulsion and re-inserting the child into that school. It is very rare that a child would be expelled from a special school or class and if that were to take place it would be a very serious matter, so it would cause difficulty if the child were to come back into the school. We welcome the provision in section 66(14) that a person with a special interest in or knowledge of education of persons with special educational needs will be included in the appeals committee where the case concerns somebody with special educational needs. However, it is important that management bodies would also be consulted on the procedures for the appeals process. They are not mentioned at all.

In conclusion, we recognise that under the Education Act each pupil with special needs has a right to an appropriate education. As a school management organisation, we wish to ensure that parents can engage in a transparent manner to choose the placement most suitable for their child's needs and that any forthcoming legislation will facilitate boards of management in their efforts to respond to the needs of both pupils and their parents. Finally, we have had detailed discussions with the Department of Education and Skills and we are hopeful of a positive outcome.

Ms Bláthnaid Ní Ghréacháin

We welcome the principles of equality, transparency and inclusivity which underpin the core provisions of the Bill. Our primary concern about the Bill is that there is no clear provision made for Irish-medium schools to protect the language ethos of the school by granting permission to them to set out criteria in their enrolment policies that would allow them to give priority to children being raised through Irish and children whose home language includes Irish. Additionally, the prohibition on giving preference to children attending Irish-medium preschools in the enrolment criteria of an Irish-medium primary school is a cause of grave concern. Parents and their children have a legitimate expectation in terms of progression from Irish-medium preschools to primary and post-primary education and this must be recognised in the Bill.

We recognise that enrolment criteria, by their nature, are discriminatory but they only apply where there are insufficient places in schools to meet demand. Over-subscription disproportionately affects Irish-medium schools and our figures indicate that 29% of Irish-medium primary schools and 22% of Irish-medium post-primary schools cannot cater for the demand. Of those that can, all applicants are accepted. That is an important point. We acknowledge that refusal based on over-subscription causes great dissatisfaction, narrows school communities and compromises the rights of children to inclusive education.

To protect the language ethos of Irish-medium schools and the rights of children whose home language is Irish and includes Irish, we consider the following three steps imperative. Irish-medium primary schools should have the right to give priority to children attending a naíonra so children can continue to benefit from all the linguistic and cognitive benefits of early immersion in Irish. Irish-medium primary schools that are over-subscribed should be permitted to give priority to children whose language is and includes Irish. Irish-medium post-primary schools should also be permitted to give priority to Irish speaking families who might not necessarily have attended an Irish-medium preschool as well as those who have attended an Irish-medium preschool. The basis for this argument is that we consider it imperative that schools maintain the basic right to protect and maintain the language of instruction and communication of the school and its community, so the future of both the Irish language and the immersion education model in Ireland is sustainable.

Irish-medium schools are unique in that they provide cultural and linguistic diversity through the language, as well as diversity of all faiths and none depending on the patronage of a given school. Irish-medium schools welcome and cater for all children, including children from all faiths and none, children from all socio-economic backgrounds, children from all cultural and linguistic backgrounds, children with a diverse range of special educational needs and children from the Traveller community. This diversity offers great richness in terms of the wider educational experiences and linguistic diversity. Schools welcome this diversity and, at the same time, are focused on preserving and developing a strong language policy that is inclusive and progressive for all.

Mar fhocal scoir, we ask the comhchoiste to influence positively the passing of this Bill in a manner that will protect the rights of an Irish-medium school to establish and implement over-subscription criteria that give priority to Irish speaking children. This is fundamental to protecting the immersion education system, a system that is globally recognised as a successful education system not just for native speakers of the respective language, but for all children who can avail of it.

Dr. Ríona Ní Fhrighil

I represent a group of parents from all over Ireland who are raising their children through Irish but outside the Gaeltacht area. The group emphatically believes there should not be a hierarchy of minority rights and we do not seek to protect the educational rights of our children at the expense of any other minority. Indeed, as bilingual and often multilingual families, we welcome diversity of all types.

I will briefly outline our proposed amendments. First, we propose that Irish-medium schools be allowed to prioritise native Irish speakers in their admissions policies. This is a tiny minority at 3% of the Gaelscoil population or one child in every 30. Why should these children be prioritised? I am raising two little boys in Galway city. If they do not get into a Gaelscoil, they will be educated through English. There are consequences to that. First, from the first day in school they will have better Irish than their teacher. Second, their access to the language will be so limited in the curriculum that they will never develop high language literacy skills in their first language. Unfortunately, their oral proficiency skills will also drop. We know that from international research as well as research in Ireland. My young child has a speech and language problem and Barbara Uí Mhuirthile's child, who was here a few minutes ago, has trisomy 21 or Down's syndrome. They need support in their first language and English-medium schools do not have the resources or the expertise to provide that type of educational support.

This brings me to our second proposed amendment. My little boys wear Converse runners and they have Star Wars schoolbags. They are not clearly identifiable physically as Irish language speakers, nor do they have a language passport. For schools to identify native Irish language speakers, they must be allowed to observe the child interact with a parent or peers for the sole purpose of identifying that they are first language speakers of Irish. We propose this as a safeguard and to ensure that any positive discrimination for native speakers of Irish outside the Gaeltacht and in Irish-medium education cannot be abused or used cynically by others. This proposal is in line with best practice internationally in Canada and Finland.

To conclude, we welcome that, for the first time, the specific educational needs of Irish speaking children within the Gaeltacht have been recognised by the Government. It would be very unfortunate and unfair if this Bill, if it were to be implemented as it is currently drafted, unwittingly denied these educational rights to native Irish language speakers outside of the Gaeltacht. Our proposed amendments are cost neutral. They are limited in scope, clearly defined and are in line with best international practice. They are underpinned by our commitment, as daily multilinguals, to linguistic and cultural diversity and the pluralism that this Bill purports to espouse.

Thank you. We did not receive the written submission from your group. Perhaps you would circulate it to the committee so that it could be put on the website and we would have it for our records. We also gave a commitment that we would put it on the website in Irish too, so perhaps you would supply the bilingual submission to members of the committee.

Dr. Ríona Ní Fhrighil

I understood it had been supplied, but we will do that.

Thank you. I invite Mr. Pat O'Mahony of the ETBI to make his presentation.

Mr. Pat O'Mahony

The ETBI sees this legislative initiative as an opportunity for the State, once and for all and probably fairly late in the piece, to put a statutory framework in place that will guarantee transparency and equity in school admissions for all young people in their community.

The strengths of the Bill are as follows. Admission policies must be published, the Bill, through an amendment to the Education Act, puts inclusion at the centre of a school's business, and the Bill gives principals responsibility for the implementation of their school's admission policy. This involves resourcing issues, although not hugely significant, because the principals will have extra responsibilities. The insertion of the key provisions in the admissions framework into a new section 10 in the Education Act has merit and makes a lot of sense, and a consolidated Education Act would also make a lot of sense in that it would pick up amendments to the Education Act and bits from education, welfare, and so on in a single Act to enable everyone to find what they needed to know about schools and their management and operation.

The Bill will mean that a school's admission policy must state explicitly that a school will not discriminate in its admission of a student on the nine grounds of discrimination, which include gender and civil status, among others, plus the additional one of special needs. Of interest and with merit is that in each case it is with respect to either the student or the applicant. That is an important aspect and warrants mention.

The Bill specifies what must be included in an admission policy. That was not the case heretofore. Parent or parents will be required to accept the code of behaviour in a school. That is a positive development. The Bill also stipulates that the criteria for selection, where the number of applicants exceeds the number of places available, must be included in a policy. There is clear guidance about that and there is a clear prohibition on certain criteria being used.

The following small difficulty might surprise people. The enrolment application fees and voluntary contributions are proscribed, which is welcome. However, it needs to be recognised that the banning of voluntary contributions will require a significant increase in capitation payments. We estimate that the increase could be as much as 30%.

The ETBI has the following reservations. Students can be refused entrance to their local school because of their family's religion or lack of religion. That is unacceptable in a diverse and increasingly secular Ireland. This is a very complex matter. We need to get it right rather than do something about it. Again, there are resource implications.

The Bill does not address soft barriers such as the lack of a comprehensive curriculum in a school. By having a narrow curriculum one automatically says to some people that they are not welcome in a school. I believe schools should be required to have a broad curriculum in order that they can cater equally to students in their community. Schools must also have a clear commitment to special needs support. A lack of support can also act as a soft barrier. In the interests of students, schools and society at large, each school should take a fair proportion of students with special educational needs.

The Bill needs to define what constitutes a student vacancy. It is not that simple to define and it is quite complex at second level. There is a need for greater clarity around upholding the right of students who do not wish to attend religious instruction and worship. There is probably a need for national guidelines on same. Again, the matter is quite complex. The matter of priority for relatives of former students remains to be addressed. A parent or parents need to be able to appeal against a school designation in cases where they are unsatisfied with the designation. Also, the resources required to meet the needs of the student must accompany designation rather than sometime later when a student has lost his or her way a little.

Many difficult hurdles remain to be addressed, particularly the elucidation of an appeals process that is transparently fair, administratively efficient, expeditious and cost effective. Since the most contentious issues are of a human rights character, consideration must be given to recent comments by the Irish Human Rights and Equality Commission. Recognition must be given that the Bill has implications that extend well beyond mere ambition to attend a school. The Bill must be considered as part of a package that provides for the vindication of competing rights in a reasonable and balanced manner.

Go raibh maith agat, Mr. O'Mahony. I acknowledge your experience of many different forms and bodies of education and thank you for your considered opinion. I call Ms Donnelly to make her opening statement.

Ms Jane Donnelly

I am from Atheist Ireland but today I shall represent Atheist Ireland, Evangelical Alliance Ireland and the Ahmadiyya Muslims. This is the first time an Oireachtas committee has been jointly addressed on behalf of atheists, evangelical Christians and Ahmadiyya Muslims. We are the only group here today that represents belief groups protected under the right to freedom of religion or belief who are discriminated against. This is a human rights issue, not one of balancing different parental choices. It is a scandal this matter has not been resolved despite ten different UN and Council of Europe human rights conclusions that the State is breaching our human rights. The Government also has a legal duty under Article 42 of the Constitution to respect equally the rights of all parents, not just those of selected religions. After I last addressed this committee, it had already identified the problem. The committee concluded in 2014 that "multiple patronage and ethos as a basis for policy can lead to segregation and inequality and that the objectives of admission policy should be equality and integration". It follows from the committee's conclusion that the patronage system needs to be replaced, not made even more segregated by even more private patrons. I ask the committee please to reinforce that important conclusion and not to retreat from it.

The Government has ignored the committee's conclusion and cited an unpublished and scandalous legal opinion that it is constitutionally obliged to buttress religious discrimination. The State has not balanced competing rights. It has simply ignored our guaranteed right to equal access to a local school and, far more important, to have the State curriculum delivered in an objective, critical and pluralistic manner. Instead, the State cedes control of publicly funded schools to private patrons, most of whom integrate a Catholic ethos throughout the State curriculum. Children cannot opt out of a religious ethos. As the Council of Europe's Commissioner for Human Rights said last month, the private patrons hold the State hostage. This breaches the State's positive duty to respect the human right of all parents to ensure the teaching of their children is in conformity with their convictions. This is an absolute right that should not be balanced against the rights of others or be gradually achieved. We continue to seek a secular school system. We also support the immediate recommendations of the Irish Human Rights and Equality Commission that no child should be given preferential access to a publicly funded school on the basis of their religion and that the State curriculum should be delivered in an objective, critical and pluralistic manner.

I thank Ms Donnelly for her contribution. She referred to the previous occasion her organisation addressed this committee. I wish to point out that it was the prior committee. All the members present are new and that is one of the reasons we wanted to engage with and consult stakeholders. We wanted an opportunity to hear the voices of stakeholders. I call Ms Lennon and Mr. Monahan to make their opening statements.

Ms Sarah Lennon

My colleague and I will share time. Education Equality was formally launched more than 12 months ago. In that time we have gathered almost 500 members, each of whom represents a family which has or is experiencing discrimination on the basis of religion.

Education Equality is an entirely voluntary organisation. Our efforts are focused on the twin goals of removing legalised discrimination in terms of access to school places and promoting equal respect for all children during the school day. We work on the principle that equal respect for children and for the beliefs of their parents requires equal access to schools, regardless of religion. We want the ability to choose whether a child receives religious instruction and a curriculum that does not impose the beliefs of one religion on children of different religions or of no religion.

I will hand over to my colleague, Mr. Paddy Monahan, to speak about our twin goals in more depth before I conclude with some of the voices of the families who have been in contact with us during the past 12 months.

Mr. Paddy Monahan

We have drafted amendments in the areas relating to equal access and equal respect. Children should not be prioritised for access to their local school on the basis of their religion. Equally, as Ms Lennon stated, parents should be able to choose whether a child receives religious instruction in that school. We have narrow goals and we think they are achievable through our amendments.

In regard to equal access, section 7(3)(c) of the Equal Status Act allows 96% of our taxpayer funded primary schools to prioritise enrolment on the basis of a child's religion. We call for the immediate repeal of this law in order that all children have an equal opportunity to attend their local school regardless of religion. In short, it is profoundly wrong that four and five year old children should face State imposed discrimination and segregation on the basis of religion. The State is conferring a significant advantage in the provision of a taxpayer funded service on the basis of religion. The baptism of convenience is a predictable and logical result as, regardless of over-subscription, families will always be infinitely more secure in their educational opportunities by having children baptised. Article 44.2.3° of the Constitution provides that, "The State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief or status." The current situation in our taxpayer funded schools is a gross breach of this clearly worded and unambiguous provision.

In regard to equal respect, Article 44.2 4° of the Constitution explicitly applies the principle of non-discrimination to the issue of religious instruction within taxpayer funded schools. It provides that legislation providing State aid for schools shall not be such as to "affect prejudicially the right of any child to attend a school receiving public money without attending religious instruction at that school". It is a right for a child to attend a local school without receiving religious instruction. That is already in the Constitution.

The Minister for Education and Skills, Deputy Bruton, states the vast majority of our schools work to welcome every child, but in most schools the best hard-pressed teachers can do during daily faith formation lessons is leave children not of the patron's religion sitting separately in the classroom, segregated from the rest of the class and doing non-curriculum busy work. This is the fate that non-religious and minority children will face every day of their primary school lives. The situation is infinitely worse during communion and confirmation years. How can this be described as welcoming? At best it seems like grudging tolerance of those others fortunate enough to be given a place.

I will now hand over to Ms Lennon who will give the testimony of parents.

Ms Sarah Lennon

One of the campaigns we ran during the year was called "30 Days, 30 Stories". At the outset we wondered whether we would get 30 people to come forward. In fact we were inundated and were blown away by the response. We could have featured many more stories. We had to select the stories during the month but we continued to run them throughout the year. Each story was simply the human embodiment of discrimination against a four year old child.

I will read a few quotes from some of the testimonies that came forward. Lucy said their employer, doctor or landlord could not use religion as an excuse to exclude them but their local school could. They do not want to leave Ireland but they may be forced to. Rebecca said that her son is only 18 months old. As a non-religious family, the worrying about what would happen began before he had even been born. Steph said that attending their local Catholic school means being faced with isolation within the classroom and being continually exposed to indoctrination of a faith that she does not believe in. Joseph asked who he was to say what his child's religion may or may not be one day. How could he determine for another human being what their relationship to a god will be or if they will have a god at all? Who gives a school the right to ask such a question? One of the many teachers who came forward, and all of them had to stay anonymous, said that teaching religion takes up two and a half hours per week, more than twice as much as the time spent on teaching science, geography, history, music, drama, art and physical education. We had more voices joining those brave parents who exposed themselves and their families in the pursuit of equality.

Education Equality believes that, both in terms of admissions and treatment during the school day, the State is in grave breach of its constitutional duty not to impose any disabilities or make any discrimination on the grounds of religion. Education Equality has proposed amendments to the Bill to bring about equal school access and the teaching of faith formation at the end of the school day, the latter to facilitate parents of all faiths and none in deciding if they wish to have their children attend such lessons. The Education (Admission to Schools) Bill 2016 provides a wonderful opportunity for change, but without these amendments it is not worthy of its title. We do not want to see this opportunity lost, possibly for many years.

I thank Ms Lennon. May I point out that we did not receive a submission from Education Equality? Will she ensure we receive it in order that we can put it on the website and that members have the opportunity to peruse it? I invite Mr. Anthony Muldoon and Dr. Eoin Daly from EQUATE.

Dr. Eoin Daly

I thank the chairperson and members for extending an invitation to EQUATE to appear before the joint committee. EQUATE is a family and children's rights organisation that advocates for substantial change in how primary and secondary school education is delivered in Ireland.

Our submission on the Bill shows that we think there are good provisions in the Bill, but we would like to focus on the elephant in the room about which other groups have spoken, namely, the lack of action on the baptism barrier. A national opinion poll carried by Behaviour & Attitudes on behalf of EQUATE showed that one in five people are aware of someone who has baptised their child or children to help ensure access to a local school. It is not an abstract issue. It is a real issue that is of concern for people. Earlier this summer, along with Dr. Conor O'Mahony-----

I beg your pardon, Dr. Daly, but a vote has been called. The Deputies will leave. However, Dr. Daly can continue. I ask Senator Ruane to take the Chair.

Senator Lynn Ruane took the Chair.

Dr. Eoin Daly

Earlier this summer, along with Dr. Conor O'Mahony from UCC and Dr. David Kenny from Trinity College, we published a constitutional opinion which shows how the Oireachtas can amend 7(3)(c) of the Equal Status Act 2000 without the need for constitutional change and a referendum. There is a perception that it is impossible constitutionally for section 7(3)(c) to be amended. Our legal opinion demonstrates that there is no such constitutional barrier to amending it. The Oireachtas has the power to impose reasonable conditions on the provision of public funding to educational institutions. Crucially, this power includes requiring that all publicly funded schools must accept children of all religions and none on an equal basis. Examining the case law of the Supreme Court, we concluded that an amendment to section 7(3)(c) would have the effect of striking a fairer balance between the constitutional rights of families from various religious groups by moving to a situation where all families have their rights protected to some degree.

The decisive point is that the Oireachtas, as the national Parliament, enjoys a wide discretion in balancing competing constitutional rights or claimed constitutional rights and that balance is not primarily a matter for the courts but for the Oireachtas. Any legislation enacted balancing constitutional rights enjoys a very strong presumption of constitutionality in the courts. Recent case law shows that the courts have been extremely reluctant to substitute their own view over that of the Oireachtas as to the correct balance of constitutional rights.

The current imbalance in the protection of religious freedom in schools is well documented. Section 7(3)(c) of the Equal Status Act 2000 is at the heart of that imbalance. Amending this section in order that it cannot be relied on by school specifically in receipt of public funding would strike a significantly fairer balance for all families. The UN Committee on the Rights of the Child, the Ombudsman for Children, the Irish Human Rights and Equality Commission, the special rapporteur on child protection and the majority of political parties have all called for the baptism barrier to be removed. That is an opportunity to make real, lasting and substantial changes to children's and families' lives.

Does Mr. Muldoon wish to contribute at this stage?

Mr. Anthony Muldoon

No.

I thank the witnesses for their submissions and presentation. I will take questions from all members before we revert to the witnesses.

I have a number of questions, one of which has not been spoken about. I get a great many e-mails from people in the locality of a school who have been excluded on the basis that siblings or the children of parents who attended that school get a higher priority, even though they have to travel back to it. This is not a religious barrier but an access barrier.

There is a view that religious discrimination is to protect the faith school minorities.

Perhaps Ms Donnelly, on behalf of Atheist Ireland, would elaborate further on whether that is a valued argument in the context of the earlier comments about the discrimination and segregation that occurs within a minority faith among the different factions of that faith. The previous Joint Committee on Education and Skills also had discussions on this Bill. Perhaps the witnesses would outline what they believe were the most important recommendations arising from those discussions, with particular emphasis on any particular recommendation they believe should be taken into account by this committee in its consideration of the Bill. I would also welcome further elaboration from EQUATE on its amendment and how it sees that playing out. I note Education Equality has also tabled amendments to the Bill and I would welcome further comment from its representatives in that regard.

On the issue of Gaelscoileanna, I am not an Irish speaker but one of my daughters, because of her access to a local Gaelscoil, is a fluent Irish speaker. I chose to send my daughters to a Gaelscoil because I value the Irish language. I want them to be able to speak the language despite that nobody else in my family does so. I have been involved in many discussions on this issue, which led me to understand the need to protect the Irish language and culture. However, I was taken aback by a reference in one of the opening statements to the phrase "home language includes Irish", which is very different to the argument that home language is Irish. There are many people who attended Gaelscoil and speak Irish but choose not to do so within the home. I am concerned that in including the phrase "home language includes Irish" we would be giving greater access to Gaelscoil to children whose home language includes Irish than to children, such as my daughter, who benefit hugely from learning the Irish language and in respect of whom progression rates are higher. Reference was also made in an opening statement to diversity in schools and Traveller communities. If the rule is to be such that the home language includes Irish, that would be moving away from diversity because only a small minority would be able to access such education. I would welcome a response on that point.

I thank the witnesses for their presentations. I am not a member of this committee. I am substituting today for Deputy Burton because I have an interest in this area. I believe that the education system perpetuates inequality. In a system that is based on competition, as ours is, one will find in any community or geographical area a school that is the least popular and in that school one will generally find a disproportionate number of migrant children, Traveller children, children with special needs and children expelled from other schools and so on in order that other schools do not have to facilitate them. We stand over this because we want to have within the system what is known as parental choice, which if one talks to anybody from the Nordic countries, particularly Finland, is a strange priority. It is bizarre that we still separate children on the basis of religion and gender at the age of four years, as has been well articulated here.

My question for the witnesses relates to the constitutional issue often thrown at me during my time in government, in particular in the context of an amendment to section 37 of the Employment Equality Act. It is bizarre that it is still legal for a school to discriminate against a gay teacher or a teacher who is an unmarried parent. We were only able to amend that provision rather than delete it or have it removed from the Statute Book because it is a constitutional provision. A number of speakers have spoken about the constitutional provision and have offered their interpretations in this regard. The Department refers to this provision in the context of the baptism bar. I would welcome the views of the witnesses on that issue.

In regard to the Irish language question, Deputy Burton and I have tabled an amendment to ensure a situation does not arise whereby an Irish-speaking family would not be able to access its local Gaelscoil and would be forced to have the child educated through English. As Irish is the first language of this State, that is a reasonable provision to have in the Bill. Generally speaking, I believe our system is radically unfair and unequal and that, in terms of this Bill, all we are doing is tinkering with the system. That we are providing by way of this Bill that people, because of their royal blood lineage, should be allowed to send their sons or daughters to the schools they attended is bizarre. I do not understand how any school body with a sense of equality in their ethos could stand over that bonkers provision. It goes against everything I feel is right and just in life.

I recall visiting a particular part of the country, which I will not name, and the local representative showing me with great pride a newly built Educate Together school, a newly built Catholic school and a newly built Church of Ireland school, which means that, in terms of education, children from that area are spread across three different schools. Is this the ideal? Is it what we want for the children of this country? I am a great supporter of the Educate Together model. There is an Educate Together school in my constituency, which I welcome. I worked very hard to help bring it to fruition. The Educate Together model is needed because the overall system demands it because it is broken, in my view. I accept that point is more of a rant than a constructive one. The joke about the Department of Education and Skills, which is probably unfair, about how many Department of Education officials it takes to change a light bulb comes to mind, the joke being around the Department's lack of ability to change. In terms of the constitutional issue, how would the witnesses convince the Department officials to change their view or that of the Minister on that question?

I welcome the delegates to the meeting. I am a Sinn Féin Senator. I am not a member of this committee. I am here out of interest and to express support for the work of the organisations here today and also to express opposition to the baptism barrier provision. Are there data available on the number of people throughout the State affected by issues of access, including whether those issues are primarily urban or rural? I agree with Senator Ó Ríordáin that this Bill is merely tinkering with the issue.

Mr. Paul Rowe

On the access issue, we would agree that the measures provided for in this Bill are only tinkering with a system that needs thorough and systemic review. Educate Together has been working in this particular area for the best part of 40 years. Over those years, we have served many families who are isolated and marginalised by the system. We now operate schools in different jurisdictions and as such we can bring new thinking to this area. Our main proposal is that the State would take responsibility, perhaps by way of an independent State body such as an education and training board, for the establishment of an application process which allows any family with a three year old child to express a preference for the school they would like their child to attend, be that an Irish medium school, an Educate Together school and so on. The State would then, for the first time in history, know the real level of demand for the different types of schools.

I take on board the Senators' point about parental preference. The Constitution is very strong on the question of parental preference. We have only recently enshrined the rights of children in our Constitution. Parental preference is another discussion we must have as a nation. If we did have an area-based type admissions process, the State for the first time could allocate resources according to the real level of demand and could then address the levels of over-subscription, which are reaching crisis point in urban areas. Educate Together schools in the Dublin area are two to three times over-subscribed routinely. Tinkering with our admissions policy is simply trying to decide who to exclude.

It is not addressing the problem. We must have a way in which the State knows what types of and how many schools are necessary and can then provide them.

Reference was made to siblings. It is really important that members of families be able to access schools together in a realistic way.

Reference was also made to local access. In the system we propose the State could establish on a statutory basis a transparent set of criteria whereby places could be allocated. The statutory criteria would ensure the State would make proper provision for children with special or language needs in order to prevent the polarisation of school and communities to which Senator Aodhán Ó Ríordáin referred. We have trialled such a system in our schools in Lucan where we have an area-based admissions policy precisely because we identified serious and significant ethnic segregation or separation in the schools within the area.

Ireland is in the early stages of witnessing population growth after 200 years of decline. Other places have had proper systems in place to handle growth in population and produce a suitable range of educational provisions. We have to start thinking in a way in which the State will take much more responsibility and live up to its responsibilities to ensure no child will be discriminated against in seeking access to education.

Children do not choose their parents. They do not choose whether they are born into a wealthy or disadvantaged family. They do not choose any part of their genetic make-up. They do not choose their ethnicity or the religion of their family. It is absolutely impermissible for a modern democratic state to continue to discriminate against children on these grounds. It is impermissible not only on moral, political and ethical grounds, it is also imprudent on socioeconomic grounds because by isolating children on the basis of their identity, one is restraining the motivation to learn and depriving the State of the great wealth of the diversity of its human capital. That is something the State has to address and it has to be addressed in this historical period. To be honest, in simply adjusting parts of the current system, a school-based system, one will not address the problem.

Ms Breda Corr

There were no questions for me.

Does Ms Corr have any comment to make?

Ms Breda Corr

It is amazing how special educational needs are never the subject of a question. However, I will address a couple of issues.

My submission was not about tinkering. There are specific things that happen in special education that need to be addressed. We have had good discussions with the Department which sees from where we are coming. We wrote to the Minister in 2015. We have had some very good meetings and it is very clear that there are certain things that need to be changed. I hope that when the issue does come up for debate in the Dáil, if there are amendments in that regard, they will be supported.

Our key message is that the approach adopted must be in the best interests of the child. A total of 35% of our 200 members are in mainstream schools with units. There are more than 700 schools with units. There is choice. Sometimes parents transfer children in a certain period between a unit and a special school because things happen at age 12 or 13 years such that pupils cannot cope in post-primary education. Anyone who has teenagers knows that it is hard enough to cope in general. Our approach is what is in the best interests of a child. In fairness to the NCSE, it tries to ensure a child can access a suitable school in his or her locality. Some parents choose to have their children placed in mainstream schools without a unit, while others prefer to have access to a unit into which a child can go, if an issue arises. The best examples are where children spend time in a unit – I hate that term and should use the word "class" – and are included in mainstream education. About a week ago I was in a wonderful school in Dublin. There are, in fact, two schools on the one campus and the unit is for boys and girls. There is also a boys' and girls' senior school on the campus. It is a wonderful example.

Will Ms Corr elaborate on the term "unit"?

Ms Breda Corr

I am so used to it that I call them units, but they are, in fact, special classes. According to the Department, two special classes constitute a unit. There are about 1,400 special classes in mainstream primary and post-primary schools. The problem which the Department is trying to address is that there are pockets of the country where the provision of post-primary schools with units is poor. Some members will probably be aware of this from their communities. There is good provision of autism units at primary school level, but the question is where will pupils go if they want to have the safety provided by a unit at post-primary level. The focus must be on what is in the best interests of a child. Sometimes placement in a special school is best. It is a matter of parental choice. Sometimes pupils move from mainstream schools to special schools and that is their choice. They can move back and forth. The ideal is to have dual enrolment to enable pupils to try both for a while, but that is another day's work. It is a matter for the Department to work out who should receive the capitation payment. That is the ideal in a situation where there is a special unit in a school. If the unit is located in a girls' school, the boys in the unit could move on or move to the mainstream boys' school on the same campus to attend some classes.

I am not addressing the issue of religion today but special educational needs and how schools with units and special schools can be best provided for in the Bill. Following on a point addressed earlier, I would like to see more schools taking more children with special educational needs. We all know about soft barriers. Change will come, but my final word is that there must be a willingness to change. Schools should not be forced to provide a unit in order to receive resources. The board of management should want to do it; then the unit would be more welcoming for children.

Ms Bláthnaid Ní Ghréacháin

I will address the Gaelscoil issue. It is important to go back to the point that the enrolment criteria only kick in when there is over-subscription. According to our statistics, that happens in approximately 29% of cases in primary schools and 22% of cases at second level. As an organisation, we would love to be in a position where all applicants for a place in a Gaelscoil were accepted. Where that is not the case, it a source of great discouragement and causes upset among parents. Where there is over-subscription, schools are forced into this position. Many schools have a list of criteria which include language. Their first priority might be to choose children from families who speak Irish exclusively. As Dr. Ní Fhrighil mentioned, the figure is 3%, a tiny minority; therefore, one is talking about a maximum figure of one child in every 30. The second criterion which is often used is proficiency in the Irish language. There might be families who are bilingual or families where another minority language is spoken. That is also recognised. The position varies, but the third criterion might be active interest in the Irish language where parents are learning at the same rate as their children. Each of these groups has a special value and we welcome all of them. The point I tried to make earlier is that priority must be given to the tiny minority of children from families who speak Irish in accessing education in the language of communication at home.

Dr. Ríona Ní Fhrighil

As Ms Ní Ghréacháin remarked, I speak on behalf of the 3% of parents who are raising their children through Irish. This means that 97% of the children in Gaelscoileanna do not come from that background. I will put on my professional as opposed to my parental hat. As a linguist, the 3% group is crucial because these children allow all boats to rise, so to speak. They are a linguistic resource who, in some cases, are more important than the teachers because they model the language for their peers. Essentially, having a child like my son who speaks Irish when he cries in his sleep benefits other children because he models what a four, five or six year old says. This is also very important socially because these children tend to encourage those who do not speak Irish at home to socialise through the language. That is what we want, namely, balanced bilingual children.

While I do not wish to be too technical, I will outline a differentiation made. For children who speak a global language such as English at home, learning another language can only benefit them and strengthen their home language. That is exactly what is being spoken about, namely, access to another language opening doors, which is known as additive bilingualism. If a child who speaks a minoritised language, for example, Irish or Welsh, receives his or her education through the medium of a majority language, he or she will not receive sufficient input in his or her home minoritised language. What happens in such circumstances is that the child's core competencies in his or her first language recede. This is known as subtractive bilingualism. For this reason, we all want additive bilingualism and the way to achieve this is to ensure children who have Irish as their first language at home are in school alongside those who have Irish as a second or third language.

As a group, we are seeking positive discrimination for native Irish speakers outside the Gaeltacht. We do not mind positive discrimination for any other minority either because our commitment is to diversity. Inevitably, linguistic, religious and ethnic diversity are all intertwined. We welcome children for whom English is not the language of the home because it normalises our children's multilingualism. This means that they do not come home from school and complain to their parents that they are the only children who do not speak English at home. Diversity is, therefore, very positive for us. However, we must ensure the indigenous linguistic minority is protected, as happens all over the world.

Mr. Pat O'Mahony

Somebody referred to the issue of priority for relatives. Notwithstanding that I am well aware that many people have an emotional attachment to the school they or their grandfather attended, having regard to all of the facts, it is necessary to dispense with this approach. I saw this done in Australia when I worked there. It can be done, therefore, and while it raises considerable ire, we may as well face the issue now rather than putting it off or addressing it in a piecemeal fashion.

We have to find a way of valuing schools on the basis of factors other than the Central Admissions Office or CAO points system because this approach is destructively undermining the education system. A person appointed school principal at second level will find that the only way to build his or her school is to build its results in the CAO points race and, on that basis, children will come to the school. Principals must do whatever is necessary to achieve this. We have in-built in the system an almost invisible hand which forces principals to do things that are contrary to the good education of the young people in their school and the interests of wider society.

We were taken over completely by the notion that third level education was the only way to go. However, we know, not only in Ireland but also across the world, that many of those emerging from third level education are unable to gain employment and only chose the particular route of third level because they believed it was necessary to have a third level qualification. There are other options, including the apprenticeship and traineeship systems and the general further education and training system. There is now evidence to show that in some instances people do significantly better if they go through the latter system.

We must consider new measures of success in education. While this will be a big job, it will be central to ensuring we no longer have a system in which children who do not get into over-subscribed schools travel many miles to attend schools in other communities, thereby pushing out children in those schools, while there is a school next door that is under-subscribed. The key to achieving this is doing what I have seen done elsewhere, namely, requiring schools to put forward a curriculum that is capable of accommodating the needs of all potential students in the community, rather than leaving it up schools to decide on what curriculum they wish to put forward and allowing them to narrow it as much as they like. When the curriculum is narrowed, it attracts children who are sharp in primary school performance in the three Rs and other children are pushed away. This is, to some extent, a critical juncture at which we have a real opportunity to do something. We suggest the State, perhaps through the education and training boards, handle an admissions system that is fair, transparent and reasonable, while providing a guarantee that, regardless of which school to which parents send their children, it will have a curriculum that is capable of meeting their child's needs. That is equally important.

On forcing somebody away from the school of his or her choice, one would wonder on what basis the choice is made. It is made on a very ephemeral basis such as a headline in an article in The Irish Times or something similar.

The Bill and the Act that will follow present a real opportunity to get many things right, not only in admissions policies but also in what happens after a child is admitted to a school.

Ms Jane Donnelly

I will address some of the constitutional issues on the freedom of religion. I am representing the Ahmadiyya Muslim community, evangelical Christians and Atheist Ireland. Currently, the State is protecting some minority faiths and the majority faith, while discriminating against other minority faiths. Church of Ireland schools, for example, give priority to members of the Church of Ireland. They may then go down their lists and offer places to children from a Methodist or Presbyterian background. Mr. Nick Park informs me that he receives letters from Church of Ireland schools asking him to confirm that his particular church is a church. This means boards of management are deciding whether his church is a church and making a decision on whether to enrol a minority Protestant child from an evangelical background.

The two Muslim schools are under the Islamic Foundation of Ireland, a Sunni Islam organisation. These schools will not enrol Ahmadiyya Muslims because Sunni Muslims do not believe Ahmadiyya Muslims are proper Muslims. An issue arises with the second part of section 7(3)(c) of the Equal Status Act because the Muslim schools argue that their ethos is being undermined. Will we have some Islamic schools for Sunni Muslims and others for Ahmadiyya Muslims? Will we have minority faith schools for children from a Church of Ireland background and others for Presbyterian and evangelical children? We cannot go down that road. If the Constitution protects religious freedom and freedom of conscience, it does so for everybody, not only the religious majority in a particular area.

The main problem for us is what happens in schools because the religious ethos of a particular school permeates the entire school day. As the religious schools will tell us, their purpose is to evangelise.

However, as they are evangelising children from their own faith, our children are being evangelised with them. That does not protect religious freedom, as promised in the Constitution. If the Constitution was designed to protect religious freedom and protect all citizens, it should protect us all. It does not do so, however, because our right to freedom of conscience in respect of religion and beliefs is being disregarded to protect minority religions. The very same goes for minorities within minorities, which is what is happening in the country.

Another question concerned what we took from the last report. We ask the committee to consider again the view that the multiple patronage ethos is undermining religious freedom, freedom of conscience and freedom from discrimination. We should be trying to promote these rights which we do not have. They are not in place for minorities. The constitutional argument is that one needs minority faith and religious schools to buttress religion, but this is not being achieved. The Constitution has failed to do this because we do not have those rights.

Dr. Eoin Daly

I will first speak to Senator Aodhán Ó Ríordáin's point about the supposed or perceived constitutional barrier. Of course, an argument can be made against the constitutionality of the reform we advocate. I am sure everyone appreciates that the Constitution is a very vague document or charter. There are all kinds of legislative measure against which a constitutional argument can be made. It is very easy to make a constitutional argument at face value, but what has happened in recent years, in particular, is that there has been a tendency to use the Constitution as a pretext to avoid making legislative changes that may in some way be controversial, sensitive or difficult. It can be used as a pretext to avoid reform, even where there may be parliamentary consensus. Many citizens find this deeply frustrating. I am sure many Deputies and Senators are equally frustrated by the way the Constitution is used and distorted.

The point is that primary responsibility for arriving at a conclusion on the appropriate balance between competing social claims on constitutional values rests primarily with the Oireachtas, the national parliament. From as far back as the 1960s the Supreme Court has always been at pains to emphasise that the task of doing this is for the Legislature, the Oireachtas, and that the only role of the Supreme Court is to police the outer boundaries of constitutional interpretation and indicate where a balance of rights is disproportionate or manifestly unreasonable, or however it may be phrased.

With all due respect to the Office of the Attorney General and the Attorney General herself, the Oireachtas cannot proceed based on secret or confidential advice from a Government legal officer. That is not a correct interpretation of the role of the Oireachtas. The Oireachtas must sometimes make a choice on the appropriate balance between competing constitutional rights or claims. When it comes to the substance of the basis for a secretive, unpublished Government opinion on the alleged impossibility of this reform, the idea is really one of freedom of religion. The assumption at large, I believe, is that if section 7(3)(c) were to be amended, if the baptism barrier were to be taken away, it would undermine the freedom of religion of the relevant denominations because they would not be able to maintain the religious environment of their schools which is regarded as integral to the free practise of religion.

First, there is a very vague and abstract connection between discrimination in enrolment and the right to practise a religion or uphold a school environment. There is no evidence whatsoever to suggest it is actually necessary to deny access to minority faith children to uphold the religious values of a school. An ethos is ultimately a set of values. It seems incredible to suggest that, in order to uphold these values, it is required to view four and five-year-old children as somehow posing a threat to their being honoured and enshrined, be they Christian values or values of another kind. It has been assumed that religious freedom under the Constitution entails a right to discriminate. What about the other side of the equation? The other side is a right not to be discriminated against. The right not to be discriminated against based on one's religion is itself a part of religious freedom. It is not a case of religious freedom versus equality but of religious freedom itself being undermined, as Ms Jane Donnelly said. Who are we to judge them, but where parents effectively feel obliged to have their children baptised against their own beliefs in order to gain access to a public service on the same terms as others, it is in itself an assault on freedom of religion constitutionally. That is an intuitive and common-sense position. It is equally a constitutional argument that can be and has been made by bodies other than mine and it is a very strong one. That is not the view taken historically by the Government or its predecessor, but it is one the Oireachtas is free to adopt. It is free to adopt it as striking the correct balance between competing constitutional rights.

What about minority faith schools? We considered this issue extensively when we drafted the opinion with Equate Ireland. There is a great difficulty with any legislative attempt to define what a minority faith school might be. It would have to be on a local or contextualised basis. We are confident that it would not be feasible to pin down in legislation exactly what a minority school is. The alternative is to somehow designate minority schools on a case by case basis, be it by the Minister or another party. For obvious reasons, that also seems to be untenable.

Might minority denominational schools be affected disproportionately? That brings us back to our previous point about the lack of any firm evidence for the link between enrolment policy and ethos. Nowhere is there a clear exposition of the reasons maintaining a set of values in a school environment actually requires selectivity based, on the one hand, on baptismal certificates and, on the other, on how good someone is as a Catholic, Protestant, Muslim, Jew or subscriber to any other religion. That seems to be completely untenable. It is well within the power of the Oireachtas to decide that any effect on faith schools of whatever kind in terms of control of their own admissions policies is ultimately less important than ensuring parents do not have to suffer pressure or face the fear of being refused access to a public service, a fear that leads them to act against their beliefs by seeking baptismal certificates as a condition of enrolment.

The Acting Chairman, Senator Lynn Ruane, asked what form the reform we propose would actually take. We believe it would be quite simple. It would entail a simple amendment to section 7(3)(c) of the Equal Status Act 2000 to set out that it was not permissible to discriminate on religious grounds for schools in receipt of public funding or which were State aided. This, of course, includes the vast majority of schools.

Mr. Paddy Monahan

We stand for two things - equal access to schools and equal respect within them. Ms Lennon will touch on the issue of respect, while I will deal with issue of access. This will probably address the various questions raised, all of which I will try to address in what I have to say.

First, the rights of minority religions have arisen as a defence of the status quo. The Islamic religion was mentioned as a possible example. That is interesting in that there are two Islamic schools in the country, both of which are located in Dublin. I do not agree that it is good to prioritise access and to have children from only one background attending a school. Fundamentally that is not good. Regardless, the last census showed that in 2011 there were approximately 50,000 Muslims in the country. Clearly, if one happens to live near the Muslim schools, one can benefit from prioritised access, but if one lives elsewhere, one will still be at the bottom of the list according to the enrolment policy. Therefore, it does not benefit minority religions. It certainly does not benefit the vast majority of religions that do not have any school.

Approximately 90% of primary schools are Catholic. They also apply a discriminatory enrolment policy. Accordingly, there is not a strong argument that this benefits minority religions in any way.

The balancing of competing rights arises quite a lot in the Constitution. It contains the right to free primary education, freedom from discrimination and freedom of practice of religion. These are all rights from which individual citizens benefit. On the other hand, there is a competing right where there is an institutional right to run schools in a particular way under the freedom of religion for institutions. The difficulty is that we have strong rights for access to education and freedom from discrimination for individuals but the State - the Government - still favours the rights of institutions as somehow superior, solely on the right to freedom of religion. Last year, Senator Aodhán Ó Ríordáin, when Minister of State in the Department of Justice and Equality and quoted the Constitution. He stated, "Every religious denomination shall have the right to manage its own affairs, own, acquire and administer property, movable and immovable, and maintain institutions for religious or charitable purposes". This is put forward as a defence of the current status quo. One needs to see schools as institutions for religious or charitable purposes for that to make sense. Most of us agree that a school is an institution for education, not for religious or charitable purposes. It seems to be a particularly skewed reading of the Constitution to see this as somehow benefitting institutions as opposed to individuals. We have senior counsel opinion from Michael Lynn supporting this. EQUATE also has constitutional experts who support this point. The Government appears to depend on the opinion of the Attorney General. This is not a particularly sensitive issue. I do not see why it cannot be published so we can at least see what the defence is for doing nothing. Essentially, nothing is being done.

Education Equality proposes very much what EQUATE proposes, namely, an amendment to the Equal Status Act to allow free full access to local schools. The Chair referred to the Labour Party's Equal Status (Admission to Schools) Bill 2016. It is important to knock that on the head. There are aspects of the Bill which are good. In terms of school access, however, it is not good legislation. Schools can prioritise children of the patron's religion from virtually anywhere in the country ahead of a child who happens to live next door to the school. The Labour Party's Bill proposes that children from outside a catchment area will no longer be prioritised on the basis of religion but that those within it still will be. Take the example of two children who live next door, either side of the school. If one child is not of the patron's religion, under Labour's Bill, he or she will still not have equal access. The Labour Party's Bill moves children from third-class citizens to second-class citizens. That is not sufficient when we are talking about human rights.

We need to go back to the drawing board and ensure we just have equal access. What concerns me about the Labour Party's Bill is that if it were successful, it might be deemed an incremental success, might knock things on the head for 15 years and be seen as some sort of compromise. My concern is that we would have second-class citizenship of our children cast in stone for future generations.

Senator Warfield referred to the numbers affected. Numbers or percentages are not particularly relevant when we are dealing with human rights. When we are dealing with racial or any other type of discrimination, it is important we uphold everybody's rights. It was stated earlier that enrolment criteria only kick in with oversubscription. The Department's numbers indicate that 20% of schools are oversubscribed. One in five schools will prioritise on the basis of enrolment criteria, which, typically, are based on religion. Besides that, a parent will never know from year to year whether their local school will be oversubscribed. The safest bet is always to baptise as one will be prioritised on that basis. The marriage rate is interesting when people are free to choose the type of ceremony they undergo. In 1995, 95% of marriage ceremonies were Catholic and 5% were non-religious. In 2015, 56% of marriage ceremonies were Catholic and 33% non-religious. When people are free to decide for themselves and there is no State-imposed advantage, these are the type of decisions people make. We suggest that the baptism barrier and the advantage one gets from baptising a child is completely inappropriate.

Ms Sarah Lennon

The Labour Party's Equal Status (Admission to Schools) Bill 2016 addresses, in a relatively strong way, the twin goals of education equality, which is equal respect. The Government's Education (Admission to Schools) Bill 2016 is relatively weak. Section 62(6)(h) states a school's admissions policy shall "provide details of the school's policy in relation to its arrangements for any students who do not wish to attend religious instruction". Publishing the way in which a child will be segregated in the school day does not achieve anything. The Labour Party's Bill proposes schools would not qualify for public moneys unless they are organised to enable the right of the child to opt out of religious instruction.

According to the Department of Education and Skills, one in five schools is oversubscribed. The majority would be in areas of population growth anyway. To address that, it is proposed to produce 300 new multidenominational schools in the next 14 years. Today's four year olds will not necessarily benefit from this.

The issue of choice is a red herring. Choice is important but, in some cases, it could be a Hobson's choice. I live in an area in south County Dublin with three national schools, two Roman Catholic and one Church of Ireland. My three and a half year old child is category 7 and category 9 in both of those schools. In terms of south County Dublin being highly populated, accessing those schools is essentially impossible.

If we were to access these schools, the big issue is how my son would opt out of religious instruction. The Bill, as drafted, would not assuage me or give me any confidence in his ability to opt out of religious instruction. The Labour Party Bill is stronger in this regard. However, Education Equality's proposal is that, in essence, to afford equal respect and dignity, regardless of religion or religious ethnicity or family background, religious instruction and faith formation should take part in a discrete part of the day - either at the beginning or end of the school day - outside of core hours. That is a relatively simple and straightforward change which would enable parents to effectively opt their child out without the child being segregated within the school day, sent to the back of the classroom with a book on their own, or maybe as a pair if they are lucky. That straightforward change would enable parents to effectively make the choice as to whether their child participates in faith formation.

To strengthen that, we propose religious instruction and faith formation relating to or arising from the characteristic ethos of the school should not take place at any other time during the school day so as not to permeate the education at any other time during the school day. This is an issue some parents have experienced with examples such as learning to count by counting angels or using religious iconography.

It is a relatively straightforward amendment. We would appreciate an opportunity for the committee to strengthen what is already in the Bill by actually specifying what opting out would specifically mean and how the Labour Party's Bill on qualifying for public moneys would work. In essence, we are seeking an effective opt-out for parents for their sons or daughters.

What are the suggestions of the other organisations on how an opt-out would work?

The spotlight has not sufficiently been put on the discrimination children with special educational needs experience when it comes to school entrance. It is appalling and is happening regularly.

There may be six secondary schools in an area and there is a practice whereby principals tell parents to go to this or that school. The league tables published last week only encourage that practice. That is not how our children should be judged and is not the education we should provide for them.

There is an argument that the power of the National Council for Special Education, NCSE, should be expanded to allow it to compel schools to take on children with special educational needs and that schools should be able to provide the proper resources. It is not enough to say a school must accept a child unless there are enough resources. What is Ms Corr's opinion of that?

I have no doubt that the committee covered many different matters while we were in the Chamber. I look forward to watching the recording of the debate later. I have a particular interest in the area of special education. Mr. Rowe commented on the specific statement of non-discrimination in sections 61 and 62. I would like to see details of the changes Ms Corr would like to see made to these sections and any practical implications they would have. The witnesses should feel free to come back to us with any of that type of information or on the need to distinguish the special education classes and hard coding that into the Bill.

Does the requirement for all Irish-medium primary schools to give preference to future students who have attended naíonraí vary from school to school or does it depend on different levels of oversubscription?

Deputy Thomas Byrne asked me to present his apologies, as he had to attend another meeting. He and I are concerned about there being no religious barrier. I do believe we need to move forward in the secular world but I am concerned about minority religions, for example, in Newbridge, where I live, there is a great Educate Together school, Catholic schools and a small Church of Ireland school that many people want to go to because it is small. I would be concerned that it would not be able to take Church of Ireland children and would have to take students from the area. How do we find a balance in respect of this issue?

Ms Donnelly mentioned human rights and recommended a secular school system. Could she share the experience of how this has worked in other countries for example, France?

The Education and Training Boards Ireland, ETBI, has taken on 11 community schools. Does Mr. O'Mahony envisage the model of the community national school as the way forward for secularisation? He says the Bill will give the school principal responsibility for the admissions policy. Does he think that puts more pressure on principals without adequate resources? No matter what happens in respect of a school's admissions policy, it has to be transparent and published. The Department has to have some overarching remit for dealing with this matter. There needs to be some type of conversation regarding admission policies, rather than simply having them published.

He referred to appeals against the refusal of a student and the need for an external final court of appeal. Who would conduct that final review? As a member of a board of management I have been involved in these appeals and would be interested in Mr. O'Mahony’s opinion.

Ba mhaith liom buíochas a ghabháil le gach duine a tháinig anseo inniu. Cuireann sé déistin orm nach bhfuil áiseanna ar fáil sa seomra seo chun seans a thabhairt do dhaoine caint trí Ghaeilge. That needs to be addressed. It disgusts me that we do not have the facilities in this room to speak Irish. It is a reflection on this Government, which has not done enough to promote the Irish language. This is yet another example. I hope we can get this resolved. Aontaím leis na cainteoirí a dúirt go bhfuil sé fíorthábhachtach go ndéanfaimid gach iarracht an Ghaeilge a chosaint sna scoileanna. Ba chóir go mbeadh Gaelscoileanna in ann tosaíocht a thabhairt do pháistí atá á dtógáil trí mheán na Gaeilge agus do pháistí a fhreastalaíonn ar naíonraí ina gceantracha féin. I am passionate about this matter. I am of the view that the Irish language needs to be protected. It is not protected or even respected. We need to make sure we are doing everything possible to protect the ethos of our Gaelscoileanna. They are in the minority because resources are not being put in place.

Too often, children with special educational needs are refused entry. That is often based on misguided assumptions or teachers feeling they are not competent to deal with the challenges. It is too easy for schools to do that. It is a loophole we need to close. It is not good enough for a school to say it does not have the resources. Schools should have the good will to try and consider the child's ability rather than his or her disability. It is all based on assumption and negative. I hope this Bill will address those issues about which I feel strongly.

I will invite people we have not heard much from to start, Ms Corr first, then Ms Donnelly.

Ms Breda Corr

In response to Deputy Catherine Martin's questions on special educational needs and I welcome the fact that all the Deputies who spoke raised their concerns about this. The problem for special education lies in the post-primary sector. It is not the fault of the schools because many primary schools set up special classes but when the children move on there is nowhere for them to go. I know two schools on one campus where in one there is much more openness to children with special educational needs. They are not members of our association but I am very familiar with them. The attitude of the other school, however, is not as good, for example, it does not provide leaving certificate applied classes, etc. That is a small point but it annoys me. I was involved with both schools. I agree with the need for the NCSE to have power to compel schools but where the special school or class has had the children and found it was not the right place for them forcing the children back into the school may not be the best thing for them.

Mr. O'Mahony spoke about the points system and Deputy Catherine Martin alluded to the list published last week. That can sometimes drive the school not to take these children. In the two situations I mentioned, it is a matter of the attitude of the boards and the staff.

Deputy Nolan referred to the teachers feeling ill-equipped. That is addressed fairly well in primary schools where in the colleges there is a special education placement.

Rather it is beginning to be addressed. There is also a special education module. That is welcome. There is a longitudinal research study from NCSE that will trace the student teachers who graduated this year. The results of that study will be interesting.

There is a need for more resources to be invested in order to address the issue of teachers feeling they are ill-equipped for it and making the presumption that those in other schools are better equipped. There is an attitude to the effect that "The special school down the road would really be a better place for your child because they are all very well trained." I am representing special schools and special classes at this meeting. Not all teachers in special schools have the additional training either. It is not an easy option. Additional resources need to be put into place for training of all staff, from SNAs, teachers and bus escorts - some committee members are probably wondering what is a bus escort but others know what it is - to everyone in the school so that the child coming to school gets the best and the school day goes well for him or her. More needs to be done to encourage schools to take children with special education needs rather than simply compelling them to do so. Resources must be put into the system in order to make teachers and staff feel comfortable and boards of management need to support them in the context of taking in students. There is no point in forcing a school to take in a child and then discovering that it is not the best place for him or her. Does that address the question?

Ms Breda Corr

Deputy O'Loughlin talked about the specific statement of non-discrimination and the other matters being hard-coded into the legislation. Our worry is that some of the matters will be put into regulation and would be subject to change, for instance, with a change of Minister. Being hard-coded into the Act might involve another line to state specifically that the above provisions do not apply to schools. I refer to the interview and the other issues I mentioned. We have discussed the matter with the Department and we hope it will take that on board. These are not significant amendments. It would be better that there would not be problems in five years' time that it is not in the primary legislation and it is in the regulations which are subject to change. It will be in the legislation and not subject to change.

I will come to Ms Donnelly, Ms Ní Ghréacháin and Mr. Muldoon and then we will have to conclude.

Ms Jane Donnelly

In response to Deputy Catherine Martin, we do not want to opt out. We want to opt in to an education that is objective, critical and pluralistic. The Constitution talks about opting out of religious instruction but if one looks at the Education Act, it talks about opting out of anything that is against one's conscience and, arguably, that is more broad. As a result of ethos and the integrated curriculum, religion goes into all the subjects under the curriculum. As it stands, our children sit at the back of the religious instruction class. However, religion is integrated, for example, into relationship and sexuality education and we cannot opt out of that. Our children would still be sitting in the back of the class in that regard.

Another problem is that the schools do not write down their ethos and we do not know where they are integrating religion into the various subjects under the curriculum. Arguably, we have a constitutional right to opt out of that. If one thinks about it, our children would be going to school and they would be opting out of the religious instruction class, relationship and sexuality education and any other where during the school day religion is integrated into the curriculum because that is how it works. We do not really understand ethos but it does integrate into the curriculum.

We want to opt in to an education that is objective, critical and pluralistic. There are international guiding principles of the teaching of religion and beliefs and those are called the Toledo guiding principles. The NCCA, on foot of a recommendation from the forum, is trying to introduce a course entitled "Education about Religions and Beliefs". We would be supportive of that to the extent that if the Education (Admission to Schools) Bill is amended in line with the Irish Human Rights and Equality Commission's recommendation that the curriculum be delivered in an objective, critical and pluralistic manner, then we would be able to opt in to "Education about Religions and Beliefs" in an objective, critical and pluralistic manner. We would be in a position for the first time in schools where we could opt in to that instead of trying to opt out. We want to belong. We do belong. We do not want segregated schools and we do not want to be in a position when our children go to school that they are segregated again.

In response to Deputy O'Loughlin, I addressed minority schools. Mr. Daly addressed them as well. Ireland has a unique system of education. No other country has that system of education. What usually happens is that if states fund religious schools, there is a parallel system of non-denominational schools which the majority of children attend. Even in one particular area in France - Mr. Daly might know more about this - the authorities fund some religious schools but they do not let them discriminate on entry. Our system is unique. That is how we discriminate.

Ms Bláthnaid Ní Ghréacháin

Teastaíonn uaim díreach buíochas a ghabháil leis an Teachta as an tacaíocht agus an t-aitheantas a léirigh sí ar riachtanais na hearnála.

In the context of the transition from naíonraí to primary schools, we, as an organisation, actively encourage that transition because we see it as a basic and important step for children. Not all primary schools would specify attendance at a naíonra in their enrolment criteria and there are different reasons for that. It could be geographical, basically, that there is no naíonra in that area. Possibly, even the naíonra could be oversubscribed. If the primary school is oversubscribed as well, that adds another complication to it. Also, we have to acknowledge that not all parents will choose a preschool for their children for varying reasons. However, a large number of Gaelscoileanna do prioritise. This is particularly important now seeing as the ECCE scheme has been expanded to two years that offers children the opportunity to be immersed fully in the language. That gives children with no Irish coming into the system and children with varying degrees of Irish an added advantage when they reach primary school that they have those linguistic supports behind them.

In terms of special educational needs, as weak as the provisions are in English-medium schools, they are very poor in Irish-medium schools. There is a wide spectrum of special educational needs throughout the Irish-medium sector. It is growing - we very much welcome this - but there are no supports in place for those involved and there is no training available. There is no recognition that they have particular needs in an Irish-medium school. It is something that we are trying to address with the different partners at present.

Mr. Anthony Muldoon

I will be brief because we are coming towards the end of the meeting and the Acting Chairman has been good to us so far with time.

On the opt-outs, to respond to Deputy Catherine Martin, what we want to see alongside the regulations around admission are regulations for opt-outs for schools so that the parents, children and teachers are empowered to enable the children to opt out of religious instruction during the school day. We have had public meetings across the country and an issue that has come up a great deal is that parents who choose to do it and who engage with the school on how to do it are being essentially denied it by the school. In some situations, it is not the parent who suffers; it is the child. One child, in particular, who we were told about, did not make communion. On the Monday after the ceremony, there was a party in the school and the child was placed in third class and not allowed to participate as a result of not being involved. In such a situation, the only person who suffers is the child. In our opinion, that is not good enough. With the provision in the Bill making a school publish an opt-out provision, if the Department gives the school the criteria to do that with, it gives everyone more power with which to do it. In addition, if one has continuous professional development for teachers to enable them to engage with it, it will be better for everybody.

I am conscious that Mr. O'Mahony was asked a direct question by Deputy Fiona O'Loughlin. I suggest he reply to her question and then Mr. Rowe can wrap up proceedings.

Mr. Pat O'Mahony

I will make a couple of points about the appeal system. Something along the lines of what is in place, under section 29, could be made available to deal with really difficult issues. Many students have found that they cannot gain access to the school of their choice, but if there is a school down the road from them, we need to establish a different system to review the matter on a group basis. Also, Tusla or a similar body should take on the role of assisting that group of parents to find a suitable school rather than have everybody feel he or she has an entitlement to his or her day in court, resulting in the matter being drawn out. In these instances young people can find themselves out of school for periods of time.

We did not come here to promote the idea of having a community national school but to address the Bill in an objective manner. I am not an expert on the topic, but we see having a community national school as a way in which the State can put in place a model for a school that could cater to and nurture the needs of all young people and families in a community, irrespective of their beliefs. Obviously, there are limitations to what could be done and there are huge challenges to be faced. However, the model has a lot to offer.

Mr. Paul Rowe

Are we wrapping up?

Mr. Paul Rowe

I will answer a couple of the questions asked.

The opt-out facility has been a core concern for Educate Together for 40 years. It constitutes a profound denial of the human rights of children and families in the education system for far too long. It is simply not an acceptable way to address the rights of minorities. What happens over and over again is that parents think about and consider whether they should exercise their rights under the Constitution and the Education Act. In our experience eight out of ten families who think about the matter consider they are in a completely invidious position. At the end of the day they decide that the socialisation of their children is more important than imposing their religious views in such a way that they might be separated. Educate Together provides the only model of education at primary level in which children are never separated, labelled or registered according to their religion at any time during the school day. There is an opt-in facility to participate entirely on a voluntary basis in faith formation or religious instruction classes outside the normal school day. That is the only way to address the issue. Isolating children on the basis of the religious identity of their families is simply inimitable to human rights legislation, educational values and what we think should be the standards of a modern democratic state. That is why we think the issue must be address in a much more profound way.

A question was asked about children with special educational needs. In Ireland families with children with special educational needs have been treated appallingly. They have been forced into a situation where time after time they must adopt a confrontational attitude to obtain even minimal services for their children. This is something the Oireachtas must address as a matter of priority. The Bill must give the National Council for Special Education, NCSE, the right to ensure resources will be made available for the placement of children. In our experience there are far too many examples. Almost all new schools make provision in an integrated manner for children with autism. In far too many instances, however, we have found that a child has been allocated a place in a special needs facility or a special school. We are proud of our reputation of being welcoming to children with special educational needs, but repeatedly schools have had to fight for resources to provide the services such children require. It is fundamental that resources should come with designation. Otherwise schools will simply use resources that should be allocated for the education of other children to provide such services. That scenario creates negative dynamics. I am very much in favour of the NABMSE's position that has been articulated here. Many of our schools are members of the NABMSE and Educate Together. As a result, the two organisations work closely together on this matter.

I wish to reiterate my main point that the system must change and that the State must take responsibility. In Lucan, Dublin 15, families apply to every one of the 12 schools in the area. Literally every child is registered with every school, which means that the schools do not know for sure what the real preferences of the families are. Therefore, they will allocate a number of places which will not be taken up and which must be reallocated sometimes four, five or six times before they find out the children who will arrive in September. The initiative that we have seen work in other jurisdictions involves a local authority or an ETB making an application process available with parents being allowed to indicate perhaps three or four preferences. The local authority or ETB can allocate places based on criteria such as quality, social needs, proximity and retention of the integrity of the family, etc. If the State was to adopt this regime, it would know the level of demand for different types of schooling, whether it be through the Irish language or otherwise. It would also for the first time start to allocate resources to meet the real needs of families in our society. We have to move ahead in that way. The State must think in a much more systemic way. As the population grows, the problem of the over-subscription of schools will be exacerbated. We must, therefore, find a much better way of managing the system as a whole. We ask the committee, particularly in the context of section 65 that refers to the power of the Minister to require boards of management to combine, to strengthen the provision to enable an area-based admissions system to be introduced with statutory backing.

Educate Together wholeheartedly supports the EQUATE campaign on education equality. We fully support the campaign undertaken by Atheist Ireland, Ahmadiyya Muslims, minority Muslim community in Ireland, and Evangelical Alliance Ireland, the members of which are Christians. We also support the rights of the schools that teach through the medium of Irish. We fully support families who wish their children to access an education which involves full immersion in the Irish language. One of the founding schools, Gaelscoil an Ghoirt Álainn, is a member of Educate Together. We are very happy that that is the case.

On behalf of the committee, I thank the delegates for their attendance. Advocates can often be guilty of looking at the issue of access to education - I know I am - through a certain lens, which for me, obviously, is class. I have found this debate very informative, as have the rest of the members of the committee.

We have been able to see all of the other barriers to having a fully accessible and fair education system, especially in the context of admission to school. The delegates' insights and observations will inform us. We look forward to working with them in the new year when we start to deliberate on the Bill.

The joint committee adjourned at 5.10 p.m. until 4 p.m. on Tuesday, 24 January 2017.