Amid accusations of educational apartheid in the admissions policies of Irish schools, a landmark Circuit Court ruling in Clonmel allowed an appeal by a secondary school against an Equality Authority ruling that it had indirectly discriminated against a Traveller boy in refusing to admit him. The admissions policy of the Christian Brothers High School in Clonmel is a familiar one in the Irish educational landscape: that the applicant be Catholic; that he would have attended a recognised feeder primary school; and that he would have had a father or brother who attended the school prior to him. The applicant, John Stokes, satisfied the first two criteria but failed on the third. In terms of numbers, there were 140 available places in 2010/2011, and 83 of 174 applicants met all three criteria. The remaining applicants, including John Stokes, were put into a lottery for the remaining places, which he failed to win.
The argument accepted in the Equality Tribunal ruling was that the third criteria, that a father or brother would have previously attended, indirectly discriminates against Travellers given the very low secondary school attendance rate among male travellers in the 1970s and 80s; just 10 percent in 1981, when John’s father was of school-going age. As John’s mother Mary highlighted, he was the first male in his family to progress to secondary school. Similarly children of newer immigrants such as Polish and Nigerian applicants are adversely affected by the so-called ‘parental rule’ or ‘sibling rule’.
In Clonmel, Judge Tom Teehan accepted that the parental rule was discriminatory, but that it had a legitimate aim and was therefore justified. The aim is that of “supporting the family ethos”, which he found to be balanced and proportionate in its application by the school. There are clear problems with the parental or sibling rule as applied in contemporary family situations. Exactly who constitutes a parent or sibling has become less clear; for example what is the status of children of a previous relationship? Are they siblings? Boards of management appear to be taking a flexible approach in allowing those who live under the one roof to qualify. Some schools even operate a ‘grandfather rule’ if the mother is the daughter of a past pupil and the father has no connection, in essence creating an unwritten ‘cousin rule’ for first cousins who share a past pupil grandfather. Evidently there is much room for manoeuvre, which is becoming increasingly problematic.
In relation to the Stokes decision, a critical intervention has been made by Judge Teehan. As quoted in the Irish Times, he mitigated the effects of his judgment by highlighting that the Oireachtas “should look at making positive discrimination mandatory for schools in their admissions policies”. The argument of the Circuit Court is essentially that the parental or sibling rule is justified, but that its disproportionate effects on Travellers and other minorities ought to be offset through legislative direction.
I have blogged previously on the issue of positive discrimination, or affirmative action, in the context of Travellers. In my opinion, the furore over whether Travellers constitute an ethnic group or not is linked to this question. There is a belief that recognition of Travellers as an ethnic group will lead inexorably to a requirement to provide affirmative action policies, in the form of representation in the legislature or in education. This is not the case; however it is true that Article 2(2) of the UN International Convention on the Elimination of All forms of Racial Discrimination 1965, which Ireland has ratified, requires states parties to take special measures (UN code for affirmative action) “when the circumstances so warrant”. The figures on Traveller representation in education clearly indicate that such measures would be required. But the refusal to recognise Travellers as an ethnic group excludes them from the purview of the Convention on the basis that they fail to meet the definitional criteria found in Article 1(1).
The judgment, such as it is, is representative of Irish educational culture. Judge Teehan recognises this, and his significant statement on positive discrimination is asking the government to oversee more progressive policies in recognition of the terrible past and present exclusion of Travellers from the best Irish education. Minister for Education Ruairí Quinn has instigated a review of schools admissions policies, which is at an early ‘discussion document’ stage. The aim is to provoke debate, and the potential or need for affirmative action will surely form part of this process. We have long trumpeted our education system as being the best in the world. Yet at present, the tangled rules of admissions policies mean that some places should be safeguarded through legislation for those who have always been left out.