News broke on Monday of a story concerning a pupil in Casteltroy College, a secondary school in Limerick run by the Education Training Board, whose father requested that she be exempted from religion lessons in the school. Initially, the School replied that the religion class (which, in this school, covered a variety of faiths rather than doctrinal instruction in one faith) was a compulsory subject and that the pupil could not opt out. However, following a meeting of the Board of Management on Monday, it was decided that the pupil could opt out, albeit that she would have to remain in the classroom while the subject was being taught.
This story raises a range of interesting issues concerning rights protected by the Irish Constitution and the European Convention on Human Rights (ECHR). Both documents protect freedom of religion (which is a right of both parents and children), and stipulate that parents have the right to determine their children’s religious education and upbringing. As part of this, both documents grant parents what might broadly be described as a right to withdraw their children from religious instruction to which they object.
The precise parameters of the right differs between the Constitution and the ECHR. The Irish Constitution was drafted with the uniquely-Irish primary school system in mind. Accordingly, it recognised that primary education is funded by the State but provided by third parties. Article 42.4 provides that the State shall “provide for free primary education” rather than “provide free primary education”; the word “for” was added by de Valera to an earlier draft in his own handwriting so as to reflect the reality on the ground. Article 44.2.4° acknowledges this reality further by explicitly recognising State funding of denominational schools, and the fact that children may find themselves attending a school operated by a religious denomination to which they do no subscribe. Therefore, to give effect Article 42.1, which recognises parents as the primary and natural educators of children and grants them the right to provide for the religious and moral education of their children, Article 44.2.4° makes express provision for the right to opt-out:
Legislation providing State aid for schools shall not discriminate between schools under the management of different religious denominations, nor 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.
The strength and effectiveness of this right is greatly undermined in denominational primary schools which operate an integrated curriculum. Under this approach, prescribed by Rule 68 of the Rules for National School 1965, “a religious spirit should inform and vivify the whole work of the school”. School ethos is protected by legislation allowing denominational schools to discriminate on grounds of religion in both teacher employment and school admissions. From the perspective of the right to opt-out, it means that children have a right to opt-out from timetabled religious instruction (usually 30 minutes a day), but not a right to be insulated from the general school ethos, as clarified by Barrington J in the Supreme Court decision in Campaign to Separate Church and State Ltd v Minister for Education  2 I.L.R.M. 81 at 101:
“The Constitution therefore distinguishes between religious ‘education’ and religious ‘instruction’ – the former being the much wider term. A child who attends a school run by a religious denomination different from his own may have a constitutional right not to attend religious instruction at that school, but the Constitution cannot protect him from being influenced, to some degree, by the religious ‘ethos’ of the school. A religious denomination is not obliged to change the general atmosphere of its school merely to accommodate a child of a different religious persuasion who wishes to attend that school.”
The integrated curriculum does not operate in secondary schools in the same way, and while over 95% of primary schools are denominational, this can only be said of about 50% of secondary schools. Castletroy College initially sought to resist the request to opt-out on the basis that the subject being provided was multi-denominational rather than doctrinal instruction. Nonetheless, the view taken by the Supreme Court in the passage quoted above suggests that this distinction is irrelevant. The right to opt-out applies to the formal timetabled period of “religious instruction”, and would seem to capture whatever form that instruction might take. Thus, while the distinction between “religious instruction” and the overall school ethos or “religious education” is often pointed to as undermining the right to opt-out in a primary school context, it might ironically serve to strengthen it in a secondary school setting.
The ECHR does not contain an express opt-out clause, but an obligation to provide for a right to opt-out may nonetheless arise, depending on the content of the religious instruction being provided. In one sense, it is potentially more flexible than the Irish Constitution, and an opt-out need not necessarily be provided from religious instruction which is genuinely objective and pluralistic. In Kjeldsen, Busk Madsen and Pedersen v Denmark, the European Court of Human Rights (ECtHR) stipulated at para 53 that:
… the State, in fulfilling the functions assumed by it in regard to education and teaching, must take care that information or knowledge included in the curriculum is conveyed in an objective, critical and pluralistic manner. The State is forbidden to pursue an aim of indoctrination that might be considered as not respecting parents’ religious and philosophical convictions. That is the limit that must not be exceeded.
In this case, compulsory sex education, with no possibility of an opt-out, was found not to violate the parents’ rights to determine their children’s religious and philosophical upbringing because the content of the curriculum was limited to objective information and did not advocate any particular position or practice. However, notwithstanding its emphasis on the margin of appreciation enjoyed by Member States in setting curricula (see para 53 of Kjeldsen), the ECtHR has shown itself willing to scrutinise the level of objectivity of a particular course, and to require an effective opt-out mechanism where the content falls short of this requirement.
In Folgerø v Norway, the Court found a violation in respect of the so-called KRL subject (Christianity, Religion, Philosophy) due to a variety of factors. Norway argued that the course was multi-denominational and therefore objective. However, the Norwegian Education Act 1998 provided that “The object of primary and lower secondary education shall be, in agreement and cooperation with the home, to help give pupils a Christian and moral upbringing …” While other religions were covered in the subject, Christianity was given by far the most focus, and children were required to perform tasks like learning off the Ten Commandments and gain a “thorough knowledge” of the Bible. The right to opt-out was limited in nature; parents could only request that their children opt-out from the parts of the module to which they objected, and not the entire module. Reasons had to be provided supporting the request, and if granted, the children would remain in the class, with the teachers engaging in what was described as “differentiated teaching” and the children substituting “observation by attendance” for “involvement through participation”.
The Court observed at para 89 that “Article 2 of Protocol No. 1 does not embody any right for parents that their child be kept ignorant about religion and philosophy in their education.” This implies that where a religion class is genuinely limited to objective information, no opt-out need be provided (although such an interpretation does not sit easily with para 51 of Kjeldsen). Further, the Court stated that “the fact that knowledge about Christianity represented a greater part of the Curriculum for primary and lower secondary schools than knowledge about other religions and philosophies cannot, in the Court’s opinion, of its own be viewed as a departure from the principles of pluralism and objectivity amounting to indoctrination … In view of the place occupied by Christianity in the national history and tradition of the respondent State, this must be regarded as falling within the respondent State’s margin of appreciation in planning and setting the curriculum.”
In spite of these observations, a violation was found on the basis that the curriculum was not genuinely objective, and the opt-out mechanism provided was not effective. At paras 91-95, it was stated that “the Christian object clause was compounded by a clear preponderance of Christianity in the composition of the subject” and that “not only quantitative but even qualitative differences applied to the teaching of Christianity as compared to that of other religions and philosophies”. At para 99, it held that the “distinction between activity and knowledge must not only have been complicated to operate in practice but also seems likely to have substantially diminished the effectiveness of the right to a partial exemption as such. Besides, on a purely practical level, parents might have misapprehensions about asking teachers to take on the extra burden of differentiated teaching”.
Taken together, Kjeldsen and Folgerø establish that the ECHR does not always require an opt-out; but where the subject in question crosses the line from objective information to placing undue emphasis on one religion or world-view, an opt-out must be provided and it must be effective. Requiring children to remain in class potentially falls short of this requirement, although it may be argued that allowing the children to entirely disengage from the subject being taught and to pursue their own activities strikes an adequate balance. Whether this latter position would satisfy the potentially more stringent requirements of the Irish Constitution is an open question. As noted above, Article 44.2.4° appears stronger than the ECHR in giving a seemingly absolute right to opt-out of religious instruction, regardless of the character of that instruction. Moreover, it specifically uses the phrase “without attending religious instruction”. The use of the word “attending” (as opposed to “participating in”, or something similar) could reasonably form the basis of an argument that anything short of leaving the room fails to vindicate the right to opt-out.
Dr Conor O’Mahony is a senior lecturer in constitutional law at University College Cork. Twitter: @ConorUCCLaw