May 20, 2010
Right to Learn: Daly on Patronage and power relations in public education: the case of Protestant schools
Increasing attention has focused, in recent years, on the position of religious freedom and non-discrimination rights within what may broadly be termed as the “patronage” model in Irish education. For complex historical reasons, the Irish state has never developed a system of direct provision of public education, through secular and public schools owned and operated by local authorities, as is typically the case in other European states.
By the patronage model, I mean the system implicitly foreseen and mandated by Article 42.4, which provides that the State “shall provide for” free primary education, that is, by supporting and recognising schools owned and operated by private – almost exclusively religious – bodies. This is given legislative expression in the Education Act 1998, which empowers the Minister for Education to recognise and fund schools whose Boards of Management are accountable to private “patrons”, typically clerics, in upholding the “characteristic spirit” or ethos of recognised schools. Thus, Ireland has historically rejected a “one-size-fits-all” model of universal secular education, and instead has partitioned the public education function over public and private spheres, with the dimensions of funding and curriculum reserved to the State, and those of ownership and ethos devolved to private intermediary bodies, which are purported to represent the different religious and other conscientious beliefs prevailing in society.
This model is purported to secure the right of parents to have their children educated in accordance with their beliefs by providing public education through institutions whose ethos is specifically attuned to their particular beliefs or preferences; in recent years, it has increasingly been justified less on the basis of any privileged dominant role for religion per se, than in terms of the secular goods of diversity and choice.
This patronage model is underpinned by a conception of religious freedom that is simultaneously over-broad and over-narrow. It is over-broad in the sense that the recognition of the claim to have public education provided through institutions that promote particular doctrines is an almost absurdly expansive conception that could never be adequately be guaranteed to all citizens, not least given that no panoply of institutions could ever cater for the diversity of beliefs that might exist, in all their nuance, in all areas of the State. This is best classified as a qualitatively lesser interest, in relation to that of receiving public education in an atmosphere free from involuntary indoctrination and sectarian pressures. On the other hand, it is a narrow conception in the sense that it assumes that where citizens must attend schools of a religion other than their own as a matter of necessity, the right to withdraw from religious instruction classes represents an adequate guarantee of liberty of conscience, notwithstanding the permeation of religious doctrines in the broader school environment. In a recent article in Irish Educational Studies, I outlined inequalities in the guarantee of religious liberties in the public education context in Ireland, suggesting that the formalistic pluralism embodied in the constitutional framework distributes religious liberty unequally in this context, as a function of the power relations prevailing between and within religious groups, and individuals’ religious liberty subsumed within the broader social and political claim of the groups recognised by the State. In particular, religious liberty is left vulnerable to the crudely demographic contingency of whether a “critical mass” of the like-minded may warrant State recognition of a school appropriate to citizens’ particular beliefs, in the absence of non-denominational alternatives.
The recent controversy over the suspension of the “ancillary grant” for Protestant secondary schools further illustrates the multi-dimensional depth of the power relations that determine the unequal and precarious distribution of religious liberties, in this context, in the Republic. Since the inception of the free secondary education scheme, Protestant fee-paying schools had been treated as effectively part of the “free” sector, in recognition of their particular role in catering to a geographically dispersed religious minority, and support was given to Protestant parents availing of such schools in recognition of the fact that they could not otherwise secure public education in accordance with their convictions. In an article forthcoming in the new Irish Journal of Legal Studies this summer, I argue that the government’s claim that the ancillary grant was constitutionally unsound is wrong. Furthermore, however, I discuss how the Protestant schools cuts controversy illustrates the scope and extent of the inequalities in the guarantee of religious liberty under the patronage model. Given the discretionary role of the State in accommodating those religious minorities that cannot muster the demographic “critical mass” necessary to school recognition in all areas of the State, it appears that the guarantee of the full measure of religious liberty in this context is subject not only to the crude contingency of demographics and number that are explicitly recognised in the law, but the forms of human capital, social and political, that different groups may deploy in support of their claims. This illustrates the importance, within the patronage model, of minority communities’ capacity to advance political claims to accommodation, to have the State exercise its discretion in their favour. If nothing else, this model of discretionary accommodation, with religious liberty cast as a limited distributable good to be mediated against other interests and claims, perhaps incurs the risks of religious communities having to ingratiate themselves to capricious political agendas.
