Religious discrimination in education

Chapter 5
Religious discrimination in education

According to the European Court of Human Rights in Cosans v UK ECtHR 25 February 1982: ‘the education of children is the whole process whereby, in any society, adults endeavour to transmit their beliefs, culture and other values to the young’ and the fundamental nature of this task means that education is inevitably a source of both political and legal controversy. The more diverse a society is, the more the law attempts to accommodate diversity, the more diffcult it is to establish exactly what are the ‘beliefs, culture and other values’ which need to be transmitted to the young and the more vital the task is. As was noted by Baroness Hale in Begum v Denbigh High School [2006] UKHL 15, para 97:

… schools are different. Their task is to educate the young from all the many and diverse families and communities in this country in accordance with the national curriculum. Their task is to help all of their pupils achieve their full potential. This includes growing up to play whatever part they choose in the society in which they are living. The school’s task is also to promote the ability of people of diverse races, religions and cultures to live together in harmony.

However, this responsibility for developing a harmonious and unified school community may find itself in conflict with the desires of individual pupils or parents to manifest their religion or to follow specific patterns of religious belief which may conflict with general school policies and priorities. Both Parliament and the courts have attempted to resolve these tensions with varying degrees of success.

Exemptions for educational establishments

In Britain, rightly or wrongly, religions are heavily involved in education and for that reason in both the Equality Act 2006 and the Employment Equality (Religion or Belief) Regulations 2003 special exemptions have been given to schools in particular with regard to exemptions for faith schools. These provisions are set out in ss 49–51, 59 and 61 of the Equality Act 2006 and in regs 20 and 39 of the Employment Equality (Religion or Belief) Regulations 2003 (see Appendix D).

Equality Bill 2006

The Equality Act 2006 is considered in detail in Chapter 3 but when the Bill was passing through Parliament, exemptions for faith schools were the subject of particular debate and government spokesmen were at pains to emphasise that the religious discrimination provisions in the Act should not be used to challenge existing educational practices or school status. Home Offce Minister Baroness Scotland said (Hansard, 13 July 2005, col 1136):

I know that some people would like to use this Bill as an opportunity to pursue a separate agenda to do with the existence of faith schools and their place in a largely secular society. Others here are deeply engaged in and committed to faith-based education. For that purpose, I should declare my own interest as a practising Catholic whose son attends a faith-based school. I need to make it clear that the Government are firmly of the view that faith-based schools make an important contribution to the diversity of our education provision. Therefore we do not intend this Bill to affect the status quo in terms of their continued existence and their ability to operate in accordance with their particular ethos.

Similarly, Home Offce Minister Paul Goggins said (Hansard, 6 December 2005, col 171):

We do not want individuals who argue that something is of detriment to them to be able to challenge the school and embroil it in all kinds of legal challenge, debate and argument in an unfair and burdensome way. We want to make it clear that we do not want individuals to pursue legal action along those lines … The Government have no intention under the Bill of reopening the role of faith schools. Faith schools have a right to operate effectively and they must be free to discriminate in certain respects on religious grounds.

Private fee paying schools, as well as publicly funded schools, are governed by s 49(1) of the Equality Act 2006, which makes it unlawful for a school to discriminate on religious grounds against a person:

(a) in the terms on which it offers to admit him as a pupil,

(b) by refusing to accept an application to admit him as a pupil, or

(c) where he is a pupil of the establishment—

(i) in the way in which it affords him access to any benefit, facility or service,

(ii) by refusing him access to a benefit, facility or service,

(iii) by excluding him from the establishment, or

(iv) by subjecting him to any other detriment.

However, s 50 then goes on to list various exemptions to this general prohibition. Subsections 49(1)(a), (b), (c)(i) and (ii) do not apply to a school designated under s 69(3) of the School Standards and Framework Act 1998, nor do they apply to a school listed in the register of independent schools for England or for Wales where the entry in the register records that the school has a religious ethos; the register itself being authorised by s 158 of the Education Act 2002.

Whether a school is designated under s 69, or is on the register, is a matter of fact and where it applies it will provide a complete defence to any claim of discrimination under s 49(1)(a), (b), (c)(i) or (ii). However, it is worth noting that s 50 does not provide any defence to a claim under s 49(c)(iii) or (iv), namely actions of discrimination involving:

(iii) by excluding him from the establishment, or

(iv) by subjecting him to any other detriment.

What this means is that whilst a faith school can discriminate against a child on religious grounds, in deciding not to offer him a place in the school, they cannot afterwards exclude him if he, or his parents, subsequently change or lose their faith. The phrase ‘any other detriment’ is also somewhat open-ended. As is discussed in Chapter 6, the same phrase, in the Race Relations Act 1976 and the Sex Discrimination Act 1975, was used to develop the concept of sexual and racial harassment, even though this was not laid down in the legislation itself and therefore, despite Paul Goggins’ views, it could well be that ‘any other detriment’ could be used as a Trojan Horse to mount a variety of legal challenges to the practices of faith schools.

This danger is partly taken care of by s 50(2), which says that:

(2) Section 49(1)(c)(i), (ii) or (iv) shall not apply in relation to anything done in connection with—

(a) the content of the curriculum, or

(b) acts of worship or other religious observance organised by or on behalf of an educational establishment (whether or not forming part of the curriculum).

In Hansard (13 July 2005, col 1140) Baroness Scotland said of this provision:

… parents are, of course, entitled to their views, but we do not intend to let them use this legislation to impose those views on the majority … Some religiously conservative groups or sects within religious groups may object to mixed-sex classes or to sports activities. Some religiously conservative groups also object to sports provision for girls. Some groups may attempt to undermine the very diversity which the curriculum seeks to maintain and which the legislation seeks to protect. Schools need to be confident that they can follow the curriculum without being challenged. No subject should be squeezed out of the curriculum because schools feel vulnerable under the Bill. They should not be required to justify practices which might constitute indirect discrimination on harassment merely because they are properly abiding by education law and following a reasonable and balanced approach to the curriculum.

Paul Goggins made a similar point in Hansard (6 December 2005, col 171):

We do not believe that the concept of individual rights should be used by those who may not agree with particular aspects of the curriculum in our schools as a means of challenging existing school policies of inclusiveness and diversity in the curriculum that are set out in statute. The Education Act 2002 provides for a basic curriculum that every maintained school is required to follow. There would be considerable concern if there were a suggestion that the way in which dancing, singing, music, physical education or even science lessons were taught should be changed to avoid challenge on the grounds of the religion or belief of certain children or their parents. That would clearly be unacceptable.

Whilst in Begum v Denbigh High School [2006] UKHL 15, para 97, Baroness Hale said: