Court allows school's appeal, upholding admissions policy favoring past pupils over Travelling Community applicants.

Neutral Citation Number [2011] IECC 1

THE CIRCUIT COURT

Record Number: 13/2011

SOUTH EASTERN CIRCUIT

COUNTY OF TIPPERARY

Between:

CHRISTIAN BROS HIGH SCHOOL CLONMEL

APPELLANT

AND

MARY STOKES (ON BEHALF OF HER SON JOHN STOKES)

RESPONDENT

Judgment of His Honour Judge Thomas Teehan delivered on 25th July 2011

1. The Appellant School had 140 places for new students at the beginning of the academic year 2010/2011. There were 174

applicants. A small number of students with exceptional needs, and a larger number of applicants with a brother or brothers already in

the school, were automatically given places at, as it were, the head of the queue. This was in accordance with the Admissions Policy

of the school.

2. The next - and final - category of applicant catered for by means of being automatically accepted for a place in the school was

those boys whose fathers were past pupils of the High School. This again was in accordance with the Admissions Policy. This meant

that 83 places were filled.

3. The next stage was to fill the remaining places by means of a lottery involving the boys who had not yet been selected for places.

(There is a reference in the decision of the Equality Officer to the fact that four applicants who had maximum eligibility, but who had

applied late, were added to the list of those taking part in the lottery; I do not recall hearing evidence of this on the appeal hearing

before me, but it seems likely that convincing evidence to this effect was given at the earlier hearing). Among these was John

Stokes, a member of the Travelling Community. He was deemed an appropriate applicant, by reason of his parents’ intention to submit

their son to a Roman Catholic education in accordance with the Mission Statement and Christian ethos of the school, and of his

having attended one of the recognised feeder schools at primary level (and who also, presumably, applied on time), but he was one of

the unsuccessful candidates when the draw was made.

4. Some of the criteria for priority selection were not material in relation to the selection of students for the school year 2010/2011.

5. The evidence before me was that 36 students were admitted under the "parental rule". None of these was a member of the

Travelling Community. This was in accordance with the evidence which was that, historically, very few members of that community

have undergone second level education (the evidence in this case was that a number of Traveller children attended the High School

over the past 20 to 30 years, but they formed a tiny proportion of the school population). It is the contention of the respondent that

this rule thereby discriminates against that community, and thus runs counter to the provisions of the Equal Status legislation and the

legislation pertaining to education.

6. The High School is one of only two secondary schools for boys in a town with a population of 24,000. The other is the Vocational

School; like many parents in the town, Mrs Stokes was unwilling to have her son attend this school, although I have no reason to

believe that such bias is in any way warranted.

7. John having failed to secure a place in the school, his mother appealed the decision. This was unsuccessful. An appeal pursuant to

section 29 of the Education Act 1998 was lodged; the secretary-general of the Department of Education and Skills referred the

matter to an Appeals Committee; the ruling of that body was to disallow the appeal, determining that the Board had been "fair and

reasonable in the application of the school’s admission policy in a situation where the numbers of applicants greatly exceeded the

places available".

8. It is argued on behalf of the respondent that this Court can make findings against the Appellant on the basis of alleged breaches of

statutory duty under the Education Acts. I can not accept that argument for two reasons: the principle of finality in litigation requires

that matters determined under section 29 of the Act of 1998 can not be revisited; and proceedings pursuant to the Equality

Legislation can only succeed where a breach of duty under that legislation - as opposed to other enactments - has been established

to the satisfaction of the court. Nonetheless, the court’s view of the matters which are in dispute must necessarily be informed by

statutory provisions which have specific reference to those issues, and in particular to sections 6 and 15 of the Education Act 1998.

9. Mrs Stokes grew up in Limerick. She was one of a large family. Unusually, within the Travelling Community, she and all of her sisters

and some of her brothers received secondary education. Neither her husband nor any of his family went beyond primary school. Mrs

Stokes made a very favourable impression. She is the mother of seven children, is very properly ambitious for John and for her other

children, and was spoken of very highly by other witnesses on both sides of the case.

10. For his part, Mr. Bannon, the Principal of the school, impressed me also. As the head of such a large school, he obviously has to

grapple with many complex problems on a daily basis. He has been involved in education for many years, during the last 20 of which

he has been Principal of the High School. He outlined to the court the history of the school's Admissions Policy, and the difficulties

which different approaches had thrown up. I am satisfied he is acutely aware of the deep disappointment and, indeed, hurt

experienced by many families (including the Stokes family) over many years on finding that there was no place available in the school

for their son. I am also satisfied that he has a deep commitment to the school and its students, and that he regards the issue of

inclusivity in education as being of very high importance. His bona fides, and those of the Board, were not challenged, nor was it

alleged that there was an overt or a deliberate policy on the part of the school to exclude traveller children.

11. When the lottery took place, John Stokes had a 55% chance of being selected for a place in the school; had the "parental rule"

not been in place, he would have stood a 70% chance of being successful.

12. The issues which require determination are: is the Appellant in breach of its duty to the Respondent and her son under the

provisions of the Equal Status legislation; and, if so, is the difference between a 55% chance and a 70% chance of such little

materiality that that it is governed by the maxim "de minimis non curat lex”?

13. It might be suggested that the second issue should be looked at first, in view of the fact that a positive answer would make the

first issue moot. I am satisfied, however, that it would be unjust to all concerned to take such course.

14. The first issue can be broken into two parts:

(i) having regard to the provisions of the Equal Status Legislation, is the "parental rule" discriminatory against Travellers?

And

(ii) if so, can it be objectively justified by reference to a legitimate aim, the means to the achieving of which could be

deemed both appropriate and necessary?

15. The evidence from the Respondent’s witnesses painted a very stark picture of members of the Travelling Community availing only

in minuscule numbers of access to secondary education over the last few decades. By contrast, while there was no specific evidence

in relation to this, it is notorious that, since the advent of free secondary education in the late 1960s and the raising of the school

leaving age to 16, the overwhelming majority of students in the general population have attended secondary school to at least Junior

Certificate level. Accordingly, it can be stated unequivocally that the "parental rule" - an ostensibly neutral provision as provided for

by the amended section 3 (1) (C) of the Equal Status Act 2000 - is discriminatory against Travellers. Of course, the Respondent must

be shown to be at a particular disadvantage, but I am satisfied that groupings such as members of the Travelling Community (and

also the Nigerian Community and the Polish Community, for example, where parents of boys were most unlikely to have attended the

school previously) are particularly disadvantaged by such rule.

16. That having been established, the onus is on the Appellant

(A) to objectively justify that there was a legitimate aim;

(B) to prove that the measure was appropriate; and

(C) to establish that such measure was necessary.

17. With regard to the question of the legitimacy of the aim, the Respondent has adverted in argument to the school’s Admissions

Policy, and the lack of any direct correlation between the stated aims and the "parental rule". Dealing with "Goals", one of the criteria

referred to is "supporting the family ethos within education". While this goes on to justify the "sibling rule ", with no reference to

parents, I find that the overall aim of the Board in introducing the “parental rule” is entirely in keeping with this goal and the

"characteristic spirit of the school", a concept to which it must have regard in accordance with section 15(2) (b) and (d) of the

Education Act 1998. The Appellant has thus objectively justified to the satisfaction of this Court that the aim of the Board in this

regard was wholly legitimate.

18. As to whether the measure was appropriate, the evidence of Mr. Bannon concerning the history of the admissions policy is of

importance. In all but two years in recent times, there have been more applicants than places for incoming students. At one time,

priority was given to students where there were "exceptional circumstances". This led to a situation where almost all applicants

sought to come in under this heading. Prior to that, the lottery applied to all applicants, while at one time entry was by means of an

assessment test. These policies were at opposite ends of the spectrum and each, for obvious reasons, was highly unsatisfactory. The

current policy falls somewhere between these extremes. This in itself does not mean that the policy is appropriate, but it is one which

is reviewed annually and I am satisfied that, having regard to all the many relevant considerations of which the Board must take

account, it strikes the correct balance and is, therefore, appropriate.

19. In relation to the necessity test, Mr. Bannon gave evidence at some length concerning the links between the school and the

community in Clonmel. In the 19th century, the people of Clonmel invited the Christian Brothers to set up a school in the town. The

resultant bond has been strong. There is an active past pupils’ union which incentivises high achievement by pupils at the school;

former students have been active in providing mentoring, bursaries for sports and financial assistance for the sons of impoverished

parents; and the activities of such former students in the very difficult but necessary task of bridging the shortfall in funds provided

by the Department and the outgoings of the school would most probably be considerably less were such strong bond not in place. Mr.

Bannon spoke of "a sense of ownership about the school where people have attended", and gave very concrete examples of this in

the course of his evidence. Mr. Ó Dulacháin, in argument, has made reference to the fact that parents of past pupils "may more likely

be employed or in higher positions of responsibility"; he goes on to argue that through this evidence, Mr. Bannon thus sought to

introduce "opaque criteria" referring "either to wealth or standing". In fact, there was no evidence to the effect that past students of

this school – a non-fee-paying school - hold a disproportionate amount of wealth or standing in the community, and the matters

canvassed in the course of Mr. Bannon's evidence in this regard are manifestly important considerations in the formulation of school

policies. In the light of all this (and, in particular the highly important issue of funding) I find -- and not without hesitation -- that the

inclusion of the "parental rule" was a necessary step in creating an admissions policy which is proportionate and balanced.

20. It may be that the Oireachtas should look (or look again) at the issue of providing a mandatory requirement for positive

discrimination in schools’ admissions policies. In the instant case, however, it is common case that our legislators -- who must, like

the courts and, indeed, school boards who frame admissions policies, seek to strike a balance between legitimate competing interests

– have not enjoined such measure.

21. Having made such findings, the "de minimis” issue does not arise for consideration.

22. I would therefore allow the appeal, and set aside the order of the Equality Officer.