The Constitution of Ireland has a number of articles that are relevant to the law on education. Article 42 of the Constitution deals with education. Other articles also have a bearing on education law, in particular the articles dealing with the family and religion (Articles 41 and 44).
Irish Education System
This is the full text of Article 42 of the Constitution of Ireland:
42: 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.
42.2: Parents shall be free to provide this education in their homes or in private schools or in schools recognised or established by the State.
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.
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.
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.
In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.”
This is the relevant part of Article 41:
1.1°: The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.
1.2°: The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.
What these articles mean
These articles have been the subject of a number of court decisions. In simple terms, the essential points about these articles are:
The family is the main source of education for the child. Parents are entitled to provide education outside the school system if they wish.
The state may not force parents to send their children to any school or any particular kind of school. Parents may decide the school to which they wish to send their children but there is no constitutional obligation on a particular school to accept individual children.
The state may require that the children receive a certain minimum education. This certain minimum has not yet been defined in legislation or in official policy. Many of the court cases have been about the precise meaning of that phrase.
The state is obliged to provide for free primary education. It is not obliged to provide that education directly. In practice, there are some state schools but the majority of primary schools are privately owned and largely state funded. See ownership of primary schools
The state is not obliged to directly provide schools but it is not prevented from doing so either.
The Education (Welfare) Act 2000 does not give a definition of a “minimum education”. However, it does provide that the Minister may set out a “prescribed minimum education”. That minimum standard may be different for children of different ages and of different capacities – including physical, mental and emotional capacities.
The Act also provides that children educated outside the mainstream school system are to be identified and assessed in order to ensure that the education they are receiving meets the minimum standards. The register is maintained by the National Education Welfare Board.
Free primary education
In the Sinnott case, the Supreme Court decided that the right to free primary education ends at age 18 and does not continue on the basis of need.
This is the relevant part of Article 44:
2.2°: The State guarantees not to endow any religion.
2.3°: The State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief or status.
2.4°: 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.
2.5°: Every religious denomination shall have the right to manage its own affairs, own, acquire and administer property, movable and immovable, and maintain institutions for religious or charitable purposes.
2.6°: The property of any religious denomination or any educational institution shall not be diverted save for necessary works of public utility and on payment of compensation.
This article means that there may not be discrimination between the different denominations and that children have the right to attend state aided schools without attending religious instruction. In practice, certain time periods may be set aside for religious instruction and the parents have a right to withdraw the child at these times. However, the nature of the curriculum is such that there is not generally a rigid divide between subjects and the school ethos tends to pervade all subjects.
It has been argued that the article means that a child may not be refused access to a publicly funded school on the basis of the child’s religious beliefs.
Educational establishments in Ireland are subject to the Equal Status Acts 2000-4. (Educational establishments in this context refers to preschools, primary, post-primary, an institution providing adult, continuing or further education, a university, third level or higher level institution whether or not they are publicly funded.)
Under Section 7 of the Equal Status Act 2000 denominational schools are permitted to refuse to admit non co-religionists in certain circumstances.