Oireachtas ‘should look’ at positive discrimination

A JUDGE has called on the Oireachtas to examine the possibility of mandatory positive discrimination in schools to ensure no group — such as the Travelling community — is excluded from enrolment.

Judge Thomas Teehan made his comments in a circuit court ruling in which he found that the High School in Clonmel did operate a “discriminatory” policy against Travellers by using a “parental rule” when there were more applicants than places in first year.

However, the judge said the policy was justified, appropriate and necessary to fulfil the school’s family ethos and to create an admissions policy which was “proportionate and balanced”.

The school yesterday won its appeal against an Equality Authority ruling that a Traveller boy, John Stokes from Clonmel, had been indirectly discriminated against because he was unlikely to have had a parent in secondary school.

While John — who took the equality action through his mother, Mary Stokes — fulfilled two of the High School’s three criteria in that he is a Roman Catholic and attended one of the local feeder primary schools, he failed in the third criterion of having a brother or a parent as a past pupil.

There were 174 applications for 140 first-year places in 2010 and John Stokes was unsuccessful in the lottery used to allocate places among those who didn’t meet the three criteria.

Judge Teehan yesterday set aside the order of the Equality Officer and allowed the High School’s appeal.

It could be “stated unequivocally” that the “parental rule” was discriminatory against Travellers and also other groups such as the Nigerian and Polish communities, the judge said.

He said the onus was then on the High School to justify that there was a legitimate aim, to prove that the measure was appropriate and to establish that it was necessary.

He decided the parental rule was “entirely in keeping” with the school’s goal to “support the family ethos within education”, was appropriate because of over-subscription and the fact the school had to strike a balance, and was necessary to create a proportionate and balanced admissions policy.

“It may be,” Judge Teehan said, “that the Oireachtas should look (or look again) at the issue of providing a mandatory requirement for positive discrimination in schools’ admission policies.”

Neither John or his mother were present. They were represented by the Irish Traveller Movement Law Centre.

The Stokes’ solicitor, Siobhan Cummiskey, said afterwards they were “disappointed” by the ruling but said the judge’s comments regarding discrimination were something the Minister for Education and Skills should examine.

“Positive discrimination is something you’d have to look at very carefully,” Ms Cummiskey said.