European Court of Human Rights: No right to state funding for sectarian schools
It is sometimes argued that, by condemning funding to religion, secularism denies parents their right to have their children taught “in conformity with their own religious and philosophical convictions” in sectarian schools. However, the European Court of Human Rights disputes this. It has ruled that this right does not impose on states an obligation “to establish at their own expense, or to subsidise, education of any particular type”.
State subsidies for Catholic schools are anchored in many Vatican concordats. This is phrased in various ways, sometimes bluntly, as in the Slovak concordat: “Catholic schools will be granted financial funding equal to that of all the schools...” [1] or it may be put more delicately, as in the Italian concordat, where it is called “absolute parity” with state schools. [2] Still other concordats, in the Dominican Republic [3] and Poland [4] guarantee undefined state “subsidies”.
State subsidies for Catholic schools are also anchored in the law of the Church. Canon 793 §2 says that "Parents also have the right to that assistance, to be furnished by civil society, which they need to secure the Catholic education of their children." And Canon 797 claims that "parental choice" means state subsidies. "Parents must possess a true freedom in choosing schools; therefore, the Christian faithful must be concerned that civil society recognizes this freedom for parents and even supports it with subsidies."
However, "this freedom for parents" only seems to be invoked when it suits Vatican aims. During the last days of the pope's kingdom in Italy a scandal arose over the kidnapping of a Jewish child. The little boy was said to have been secretly baptised without the knowledge of his parents and therefore belonged to the Church, (which, of course, represented God on earth). Pius IX would not yield to the frantic parents and return their child. Between the two competing authorities — that of God and that of the parents — God's must prevail, for was He not the author of the natural rights that parents enjoyed?
The right "acquired by the Church over the baptised infant is of a superior and more noble order" than that of the parents. [5]
The Church even vigorously defends state subsidies for Catholic schools even when religious segregation is tearing society apart. In Northern Ireland state-supported sectarian schools keep Catholic and Protestant children from mixing, with walls still needed to separate the warring factions. This prompted a call from Northern Ireland’s First Minister for its schools to be integrated into a single state system. Peter Robinson described the North’s state-funded system of denominational schools as “a benign form of apartheid, which is fundamentally damaging to our society”. [6]
However, the Catholic Church has tried to block the transformation of Catholic schools into integrated ones. This is despite the fact that Integrated schools are not non-denominational, but could perhaps be described as bi-denominational, with ties to both Catholic and Protestant churches. [7] The religious isolation of many Catholic children in Northern Ireland seemed perfectly acceptable to Cardinal Séan Brady. [8] The Archbishop of Armagh and Primate of All Ireland, said that parents had a right to have their children educated in accordance with their philosophical and religious convictions and, furthermore, the State had a duty to support this with public funds. [9]
What do human rights charters say about “parental choice”?
But is the Cardinal right? State funding for sectarian schools is not only a violation of the principle of separation of church and state, it is not even a recognised human right, although it is constantly framed by the Church as “parental choice”, which actually does feature in charters of human rights.
The original United Nations charter from 1948, the Universal Declaration of Human Rights merely says, in Article 26, that parents have the right to determine “the kind of education” and this is prefaced by the requirement that “It shall promote understanding, tolerance and friendship among all nations, racial or religious groups”. [10] As studies have shown, social cohesion is increased by schooling children together from an early age. In an English study, primary school children appeared "largely unaware of the religion of their friends" and later on those who had attended schools that were socially, ethnically and religiously mixed "were more likely to make new friends from a different background". Even the parents benefitted, learning "to respect people from other backgrounds as a result of their children’s experiences in mixed schools". [11]
The 1952 European human rights treaty is more specific. [12] Protocol 1 Article 2 describes the “Right to Education” as follows:
No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and teaching, the state shall respect the rights of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.
Some European countries have attempted to make this more specific by attaching reservations. [13] Thus, although this Article is incorporated into national law by the Human Rights Act 1998, the United Kingdom has filed a reservation which accepts the principle of education in conformity with parent’s religious and philosophical convictions “only so far as it is compatible with the provision of efficient instruction and training, and the avoidance of unreasonable public expenditure”. And Malta, whose reservation is similar adds the explanation: “having regard to the fact that the population of Malta is overwhelmingly Roman Catholic”.
What do the courts say about “parental choice”?
It is the courts that flesh out the words of the law. This was done by two judgements on the “right to education” handed down by the European Court of Human Rights in 1968 and 1980. .
In 1968 the ECHR made an important ruling in the “Belgian linguistic case”. There the Court stated that the rights protected in the “right to education” article are:
(1) a right to access to educational institutions existing at a given time;
(2) a right to an effective education;
(3) a right to official recognition of the studies a student has successfully completed;
However, this right does not impose on States an obligation to establish at their own expense, or to subsidise, education of any particular type or at any particular level. [14]
The relevant part of the 1968 judgement itself is the beginning of the fifth paragraph:
5. The right to education guaranteed by the first sentence of Article 2 of the Protocol by its very nature calls for regulation by the State, regulation which may vary in time and place according to the needs and resources of the community and of individuals. It goes without saying that such regulation must never injure the substance of the right to education nor conflict with other rights enshrined in the Convention. [15]
Then, in 1980, a further case involving the “right to education” was brought before the European Court of Human Rights and the European Commission commented on the ruling:
The negative formulation of the right includes that the contracting parties do not recognise such a right to education as would require them to establish at their own expense, or to subsidise, education of any particular type or at any particular level.
There never was, nor is now, therefore any question of requiring each state to establish a system (of general and official education) but merely of guaranteeing to persons subject to the jurisdiction of the contracting parties the right, in principle, to avail themselves of the means of instruction existing at a given time.
The Convention lays down no specific obligations concerning the extent of those means and the manner of their organisation or subsidisation.
The first sentence of Article 2 of the Protocol consequently guarantees in the first place, the right of access to educational institutions existing at given time.
This right requires, however, regulation by the State, regulation which may vary in time and place according to the needs and resources of the community and of individuals. It goes without saying that such regulation must never injure the substance of the right to education nor conflict with other rights enshrined in the Convention. [16]
Notes
1. 2004 Slovak concordat on education, 1.8
2. 1984 Italian concordat, 9.1
3. 1954 Dominican concordat, Art. 21
5. "Cronaca", Il Cattolico, 1858, p. 18, quoted in David I. Kertzer, The Kidnapping of Edgardo Mortara, 1997, p. 147.
6. "Segregated education 'a form of apartheid'", News Letter, 15 October 2010. http://www.newsletter.co.uk/news/Segregated-education-a-form-of.6583295.jp
7. "Baroness Blood Calls On The Executive To Offer A Clear Vision Of A Shared Future", Speech By Baroness May Blood, House Of Lords, 2 November 2010. http://www.ief.org.uk/2010/11/03/baroness-blood-calls-on-the-executive-to-offer-a-clear-vision-of-a-shared-future/
8. Shawn Pogatchnik, “Despite peace, Belfast walls are growing in size and number”, Associated Press, USA Today, 3 May 2008. http://www.usatoday.com/news/topstories/2008-05-03-1826820552_x.htm (The photo in the box above is of seven-year-old Cein Quinn, mentioned in this article and depicted at http://www.daylife.com/photo/00gv8jMgaP07F)
"Brady attacks call for school integration", RTE News, 21 October 2010. http://www.rte.ie/news/2010/1021/education.html
9. "Cardinal defends right of church to have role in State schools", Irish Times, 29 January 2010. http://www.irishtimes.com/newspaper/frontpage/2010/0129/1224263357600.html
10. Universal Declaration of Human Rights, 1948, Article 26. http://www.un.org/en/documents/udhr/index.shtml
11. Irene Bruegel, (Professor of Urban Policy, London South Bank University), “Social Capital, Diversity and Education Policy”, Submission to the Commission on Integration and Cohesion, 26 August 2006.
The Commission on Integration and Cohesion (26 August 2006 - 14 June 2007) was a fixed term advisory body in the UK, which "considered how local areas can make the most of diversity while being able to respond to the tensions it may cause". http://collections.europarchive.org/tna/20080726153624/http:/www.integrationandcohesion.org.uk/.
12. “Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms
as amended by Protocol No. 11”, Paris, 20.III.1952. http://conventions.coe.int/Treaty/en/Treaties/Html/009.htm
13. “List of declarations made with respect to treaty No. 009, Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms”, Article 2 (Right to education), Protocol 1, continually updated. http://conventions.coe.int/Treaty/Commun/ListeDeclarations.asp?NT=009&CM=&DF=&CL=ENG&VL=1
14. One Crown Office Row) http://www.humanrights.org.uk/528/
15. Quoted both in a Northern Irish judgement, [2002] NIQB 35 and in Wikipedia:
(2002) NIQB 35 http://www.courtsni.gov.uk/NR/rdonlyres/FB43E119-881A-4FC4-ACE6-2DFF0F691FF7/0/j_j_Kerf3726.htm
“Belgian Linguistic Case (No 2)”, Wikipedia. http://en.wikipedia.org/wiki/Belgian_Linguistic_Case_(No_2)
16. Quoted in 1980 decision of the ECHR (quoted online in a judgement from England and Wales, [2000] EWCA Civ 343 http://www.bailii.org/ew/cases/EWCA/Civ/2000/343.html)
Reference is to a comment on the “right of education” by European Commission on the case of X. v. the United Kingdom, no. 8844/80, Commission decision of 09.12.1980, Decisions and Reports 23, p. 228, with the quote given on p. 229.
