2 Parents shall be free to provide this education in their homes or in private schools or in schools recognised or established by the State.
3 1° The State shall not oblige parents in violation of their conscience and lawful preference to send their children to schools established by the State, or to any particular type of school designated by the State.
2° The State shall, however, as guardian of the common good, require in view of actual conditions that the children receive a certain minimum education, moral, intellectual and social.
4 The State shall provide for free primary education and shall endeavour to supplement and give reasonable aid to private and corporate educational initiative, and, when the public good requires it, provide other educational facilities or institutions with due regard, however, for the rights of parents, especially in the matter of religious and moral formation.
Article 44 of the Constitution provides that the State shall not endow any religion. It shall not impose any disabilities or discriminate on the grounds of religious profession, belief or status.
Legislation must not discriminate between schools under the management of different religious denominations. It must respect the rights of children not to attend religious instruction in a school, funded out of public funds.
1° Freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen.
2° The State guarantees not to endow any religion.
3° The State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief or status.
4° 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 courts have taken a narrow view as to what constitutes endowment. Endowment has been interpreted to refer to a transfer of assets or income to a religion or a religious body as such by the State.
The endowment of religion implies a selection of State religion for which permanent financial provision is made. However, aid to denominational schools does not involve such an endowment. However, such assistance may not be discriminatory.
The view has been taken in a number of challenges that the Constitution was not intended to render unlawful the long-standing subsystem of educational provision in Ireland by way of aid to denominational schools. It does not prohibit public funding of schools with a particular religious ethos by the State.
The State has been held to allow to assist parents in the religious formation of children in accordance with their parent’s wishes. The payment of the salaries of teachers of religion from public funds is constitutionally permissible.
The Supreme Court has held in a challenge by the Campaign to Separate Church and State, that the payment of chaplains in community schools out of public money was not the endowment of religion. However, the system of salaried Chaplains must be available to all schools, irrespective of the denomination on an equal basis in accordance with need.
The Education Act reinstates the longstanding principle that a child should not be required to attend instruction in any subject which is contrary to the conscience of his parents or where he is over 18, the student’s conscience.
Traditionally the only options available were denominational schools. Over the last 40 years, the number of non-religiously denominated schools including Educate Together Schools and Gaelscoileanna have endeavoured to provide a wider choice.
Surprisingly, in view of the parental rights to involvement in education little provision was made for parental representation on the boards of the denominational schools until the mid-1970. The Education Act 1998 has greatly strengthened and formalised the position of parents on boards of management.
It has been a criticism of the Constitutional Articles on the family that they protect the institution of the family over the individual child. The Constitution was amended to strengthen the rights of the child in 2012.
The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights.
An early case under the 1922 Constitution indicated that State had duties to establish and maintain the Irish language as the national language. Article 8 of the 1937 Constitution recognised Irish as the official language. The exact status of Irish education is unclear. It is not clear for example, whether the State might legitimately discriminate in favour of Irish speaking schools.
The 1932 rules for national schools made the grant of increments conditional on an English / Irish language bilingual certificate for the teacher. The change of 1932 rules was found invalid on the basis that the department was not entitled to alter the terms of existing contracts and employments for teaches.
Another attempt to make Irish mandatory was a requirement that schools not be certified unless the curriculum taught Irish, was found invalid under the school attendance legislation.
Suitable / Minimum Education
The School Attendance Bill 1942 proposed that the child would not be deemed to receive suitable education other than by attending a national school or recognised school unless such education has been certified by the Minister to be suitable. The Minister proposed to include a knowledge of Irish as part of “suitable” education. Parents could in principle be prosecuted if they educated their children abroad.
The Constitution acknowledges that the State shall not oblige parents to send their children to a school established by the State or any particular type of school designated by the State. The Bill was referred to the Supreme Court. The Supreme Court held that the provision of a certain minimum education could not violate any other provision of the Constitution. It is to be regarded as the lowest standard appropriate to the attainment of the common good.
The Education (Welfare) Act 2000 has attempted to get some flesh of Constitutional principle that a child should have a certain minimum education. As guardian of the public good, the State is entitled to prescribe minimum moral, intellectual and social education.
The State is obliged to provide minimum education moral, intellectual and social education at primary level free of charge. The courts have indicated that the school attendance legislation, now revised and restated is part of this obligation.
The court held that the State was not entitled to require education to be given in any particular manner. The legislation was found unconstitutional. It would interfere with the right of parents to educate their children at home. The standard of education required might vary from pupil to pupil, and the Bill did not take this into account.
Parents have a constitutional right to educate their children at home. The State is entitled, as guardian of the common good, to ensure that the children receive a certain minimal intellectual and social education. There are approximately 750 pupils registered with the National Educational Welfare Board as educated at home.
The State recognises the family as the natural, primary and fundamental unit group of society. The right to belong to the family rather than the individuals in it.
1 The State acknowledges that the primary and natural educator of the child is the Family and guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children.
In a prosecution with respect of persons undertaking home schooling which was referred by way of a consultative case from the District Court to the High Court, it was held that a certain minimum education, moral intellectual and social, must be considered a suitable elementary education as understood by the School Attendance Act. A suitable minimum education was an evolving concept and did not necessarily mean the lowest common denominator.
The High Court judge indicated that the inclusion of the Irish language in the curriculum in the case of children living outside the Gaeltacht was not necessary to comply with the Constitutional minimum education. He was of the view that basic reading and writing skills arithmetic and other basic knowledge, should at a minimum, be taught.
In a criminal prosecution for breach of school attendance legislation, the High Court was of the view that the District Court should not go into details of teaching methods as it would not vindicate the full presumptive rights of the parent to educate his or her child.
The various judges in the Supreme Court on appeal gave differing judgments. The matter should be considered from the perspective of the child’s individual capacity and the actual conditions in the community, including general educational standards.
The primary school curriculum may be a benchmark, but it should not be applied inflexibly. Intellectual and social reasons may be relevant in particular cases. The rights must be interpreted in the light of the Constitutional rights of the child to primary education.
These are part of the child’s basic rights. Provided the parent proved on the balance of probabilities that the child was receiving suitable elementary education, the right to educate in the home could be asserted.
Mr. Justice Murphy noted that the State obligations did not include physical or spiritual education and were narrower than that of the parent. Mr. Justice Keane indicated that Irish in itself is not necessarily mandatory in the context of a certain minimum education. It may be so in some circumstances.
He indicated that the judgment of the understanding of the child’s right to education had developed since the Supreme Court’s decision on the reference of the 1942 Bill mentioned above. If necessary, the State could intervene if teaching methods were patently inadequate, even if the curriculum was being followed.
In a case in which a strike closed a school in Cork village of Drimoleague or over two years in the 1970s, the issue of the children’s Constitutional right to education arose. The parents initially made, and an application and an injunction was granted against the Department of Education, requiring it to provide buses to adjoining schools.
The parents sought an order compelling the State to provide free primary education in the parish of Drimoleague and they sought damages against the INTO for conspiracy to deprive children of the Constitutional right to education. The court held that there was evidence of breach of the duty in the initial period, prior to buses being provided.
It ruled that there was no Constitutional right to have primary education provided within the particular parish as long as education provided was reasonably accessible. The INTO was found in breach of the rights of the children to free primary education.
The Supreme Court in a split decision upheld the High Court decision. The Supreme Court indicated that the duty upon the State was to provide for education and not to supply it. The provision for education was satisfied by the mechanism by which the State paid teachers and provided for buildings, but by which the schools were run by independent patrons.
However, he absence of education for a considerable time, presumptively showed that the State was failing in its duty and circumstances evidence showed that the State had not provided free primary education in Drimoleague.