Memorandum submitted by the British Humanist
Association: Human Rights: Schools, Religion, Thought and Belief
THE BRITISH
HUMANIST ASSOCIATION
The British Humanist Association (BHA) is the
national charity representing the interests of the large and growing
population of ethically concerned non-religious people living
in the UK. It exists to support and represent such people, who
seek to live good lives without religious or superstitious beliefs.
Humanism is a "belief", within the meaning of the ECHR,
the Employment Equality (Religion or Belief) Regulations 2003
and the Equality Act 2006.
The BHA is committed to equality, human rights
and democracy, and has a long history of active engagement in
work for an open and inclusive society, and an end to irrelevant
discrimination of all sorts. Education has always been an important
issue for the BHA and the organisation continues to campaign for
an end to exemptions from equality laws for faith schools and
for an RE curriculum that is objective and balanced. The BHA takes
a human rights approach in its education and other campaigns work.
GUIDANCE FOR
SCHOOLS ON
PART 2 OF
THE EQUALITY
ACT 2006
The guidance for schools on the Equality Act
is striking as it gathers together all of the exceptions afforded
to faith schools from the requirements of the religion and belief
sections of the legislation. While these exceptions are repeatedly
referred to as "limited" in the guidance, "wide-ranging"
would be a more accurate description. As the guidance states,
faith schools "are not subject to the provisions relating
to admission and pupils' access to benefits, facilities and services".
By granting such broad exceptions to state funded
religious schools in admissions and the curriculum, and all school
in the matter of collective worship, the Act has fallen well short
of its aim of tackling discrimination on the grounds of religion
or belief. The intention of the Act not to undermine the position
of religious schools is insufficient justification for such continued
discrimination and, in any case, we dispute the argument that
these schools would be undermined by following the same rules
as other educational institutions and public services.
The fact that some religious schools have long
existed is no reason to allow them to continue to discriminate
in their admissions, any more than the long history of other forms
of discrimination should be considered a suitable defence. The
Human Rights Act recognises the right of parents to educate their
children "in conformity with their own religious and philosophical
convictions". However, this does not mean that any religious
or belief group have the legal right to their own state funded
schools, or that the right of faith schools to discriminate on
religious grounds in their admissions is protected by the Act.
By no means all schools with a religious character
discriminate in their admissions. There are many religious voluntary
controlled schools and academies, and some voluntary aided schools
that have broadly inclusive admissions arrangements. Consequently,
this discrimination cannot be considered a necessary component
or prerequisite of a religious ethos. Although schools are now
under a duty to promote community cohesion, this has not been
applied in any meaningful way to admissions. The guidance on the
duty to promote community cohesion states that "it is important
that schools do not present themselves in a way that might deter
parents from particular communities". We question how this
injunction has been extended to admissions arrangements that effectively
ban some communities from attending certain schools.
We have sympathy with the JCHR suggestion that
children of sufficient maturity should be able to withdraw themselves
from collective worship. However, we are concerned that this measure
would be difficult to implement. Furthermore, we believe that
the opt out is itself divisive and that the priority should be
the abolition of collective worship and its replacement with inclusive
assemblies.
We are also concerned that parents who choose
to withdraw their children from collective worship or RE frequently
find the school to be unfeeling towards the needs of the child.
In one case a child of eight was set "lines" as his
work to do during RE and collective worship, despite the fact
that his mother had told the school that she could set him work
to do if they would not give him anything appropriate. It is currently
very hard for parents to challenge the poor treatment of such
children withdrawn since Circular 1/94 places few requirements
on schools as to providing appropriate alternatives. Schools are
left the option of organising or allowing RE and collective worship
according to other religious faiths or denominations (paragraphs
44.1, 44.2, 88), but are only required to remain legally responsible
for children on school premises (Paragraphs 45 and 84). While
it is understandable that schools should not be expected to go
to undue effort or expense for the benefit of one or two pupils,
it is unacceptable that children are expected to sit in silence
or write lines, activities that seem more like punishments than
education.
We agree with the provisions in the Act that
exempt the content of the curriculum from the remit of the Act
as there will always a very small minority of families who take
issue with elements of the mainstream curriculum, such as evolution
or some works of literature. We also agree that local authorities
should not be beholden to demands of every religious group that
wishes to start its own school and therefore should be granted
an exemption. Notwithstanding this, a better way to maintain fairness
between religion and belief groups would be to ensure that all
schools are inclusive.
We have serious concerns about the way that
many local authorities administer free and subsidised school transport.
The regulations state that religious and non-religious beliefs
should be treated the same with regard to the provision of free
and subsidised transport, so that a non-religious family could
claim free transport if all of the state schools in their locality
were faith schools. This would be fair were it not for the asymmetry
between the admissions and other policies of religious and non-denominational
schools.
Whereas a Catholic whose nearest schools are
non-religious would have the option of attending any of these,
the same may not be true for a child who is non religious or of
a minority religion whose nearest schools are Catholic, or other
faith schools. Not only are these schools allowed to discriminate
in their admissions, but they are also able to promote religious
beliefs instead of adopting a neutral position. For this reason,
free and subsidised bus travel reinforces the already serious
situation whereby people professing particular religious beliefs
frequently have a greater choice of schools. Some families may
feel that going to a school that reflects their religious beliefs
is an overriding imperative, whether or not that school has good
results or behaviour. Others simply find that their religious
beliefs enable them to send their children to better achieving
schools than their neighbours.
THE SCHOOL
ADMISSIONS CODE
The primary purpose of the School Admissions
Code is to tackle practices that disadvantage the poorest or most
vulnerable students in their attempts to find a suitable school
place. Although the new Code clarifies and strengthens prohibitions
on certain unfair practices by schools with control of their own
admissions (for example, asking for voluntary donations at the
time of application will be explicitly forbidden) it does not
challenge the principle of religiously selective admissions arrangements.
We believe that this means it fails to deal with one of the key
causes of separation by social class in state schools, but although
this should be a cause for concern for those who want the code
to succeed on its own terms, social stratification in schools
is not the issue currently before the JCHR.
The relevance of the School Admissions Code
to the topic under consideration is therefore as much about what
it fails to say, as what it does say. We believe that admissions
that discriminate according to the religion of the applicant are
a major human rights issue, yet this discrimination is accepted
by the Code. The extent of the exemptions from anti-discrimination
law afforded to faith schools is clear from the Guidance for Schools
on Part 2 of the Equality Act 2006. The consequences of the current
system are serious for many thousands of families.
Not only does the Draft School Admissions Code
fail to tackle the issue of religious discrimination in faith
school admissions, we believe that the proposal that parents should
sign ethos statements could further disadvantage parents. While
the code is clear in stating that no practical support for the
code will be required from parents, there are certain to be religious
and non-religious people who will, for example, feel uncomfortable
signing a statement that they "support a Christian ethos".
This is not because any of these parents would seek to undermine
the ethos of the school to which they are applying. Rather, it
is because signing up to support a Christian ethos seems very
similar to signing up to support Christianity, which would go
against their fundamental beliefs.
It is for this reason that current guidance
on home-school agreements suggests that denominational schools
should "consider using" the phrase "the school
will promote moral behaviour" rather than "the school
will promote Christian values" to describe their ethos, so
as not to exclude some families. However, the DCSF has not made
clear whether the guidance on the wording of ethos statements
will be stronger (ie forbidding such exclusive descriptions) or
weaker (ie explicitly allowing them) than that which exists for
home-school agreements.
It is worth pointing out that oversubscribed
faith schools can usually already put in place religious admissions
criteria. However, religious ethos statements could also be used
at voluntary controlled schools and at rural voluntary aided schools
that claim to be open to the whole community. Undersubscribed
faith schools bound by law to accept non-religious applicants
would also be able to use religious ethos statements.
THE HUMAN
RIGHTS ACT
AND SCHOOL
ADMISSIONS
While there are the exemptions for faith schools
in the Equality Act, the anti discriminations provisions of Article
14 (with Article 2, Protocol 1) still apply. Article 2, Protocol
1 protects the right of parents to educate their children "in
conformity with their own religious and philosophical convictions".
Consequently, many conviction-based criteria can be seen as a
way of meeting Article 2, Protocol 1 and do not therefore breach
Article 14. However, the religious admissions criteria of some
faith schools are based on religious membership, not religious
conviction. Although this is in accordance with the School Admissions
Code, we believe it conflicts with the Human Rights Act.
Paragraph 2.41 of the School Admissions Code
states that schools with a religious character may "give
higher priority in admissions to children who are members of,
or who practise, their faith or denomination" and that (2.43)
"it is primarily for the relevant faith provider group to
determine how membership or practise is to be demonstrated".
Examples of school admissions criteria that require religious
membership rather than religious conviction include those that
require Catholic baptism certificates or proof of Jewish matrilineal
descent in place of proof of religious conviction or practise.
Membership-based admissions criteria should
therefore be open to the full force of Article 14 provisions against
discrimination, without the defence that they are a means of meeting
the Article 2, Protocols 1 right of parents to educate children
in conformity with their own convictions. Earlier this year the
BHA intervened in a case between the JFS (formally the Jews' Free
School) and a family who could not get a place at the school because
the admissions criteria prioritise matrilineal descent, not religious
conviction. The claimant was unsuccessful but the case has gone
to appeal.
SCHOOL UNIFORM
GUIDELINES
We broadly agree with the non-statutory guidance
on school uniform. We agree that it is the place of individual
schools to create their own school uniform policies and that this
should be done in consultation with the different groups who attend
the school. It is important that schools balance the need to respect
the beliefs of students with the need for a uniform that protects
children from social pressures to dress in a particular way (either
from peers or families) and promotes cohesion within school. We
feel that most schools successfully balance these requirements
and we see no need for significant change to the guidance or to
legislation. We have been encouraged that in those cases where
school uniform rules have been challenged in court the judges
involved have taken care to assess each case on its merits.
Andrew Copson
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