Irish Court of Criminal Appeal

1. The Appellant School had 140 places for new students at the beginning of the academic year 2010/2011. There were 174 applicants. A small number of students with exceptional needs, and a larger number of applicants with a brother or brothers already in the school, were automatically given places at, as it were, the head of the queue. This was in accordance with the Admissions Policy of the school.

2. The next - and final - category of applicant catered for by means of being automatically accepted for a place in the school was those boys whose fathers were past pupils of the High School. This again was in accordance with the Admissions Policy. This meant that 83 places were filled.

3. The next stage was to fill the remaining places by means of a lottery involving the boys who had not yet been selected for places. (There is a reference in the decision of the Equality Officer to the fact that four applicants who had maximum eligibility, but who had applied late, were added to the list of those taking part in the lottery; I do not recall hearing evidence of this on the appeal hearing before me, but it seems likely that convincing evidence to this effect was given at the earlier hearing). Among these was John Stokes, a member of the Travelling Community. He was deemed an appropriate applicant, by reason of his parents’ intention to submit their son to a Roman Catholic education in accordance with the Mission Statement and Christian ethos of the school, and of his having attended one of the recognised feeder schools at primary level (and who also, presumably, applied on time), but he was one of the unsuccessful candidates when the draw was made.

4. Some of the criteria for priority selection were not material in relation to the selection of students for the school year 2010/2011.

5. The evidence before me was that 36 students were admitted under the "parental rule". None of these was a member of the Travelling Community. This was in accordance with the evidence which was that, historically, very few members of that community have undergone second level education (the evidence in this case was that a number of Traveller children attended the High School over the past 20 to 30 years, but they formed a tiny proportion of the school population). It is the contention of the respondent that this rule thereby discriminates against that community, and thus runs counter to the provisions of the Equal Status legislation and the legislation pertaining to education.

6. The High School is one of only two secondary schools for boys in a town with a population of 24,000. The other is the Vocational School; like many parents in the town, Mrs Stokes was unwilling to have her son attend this school, although I have no reason to believe that such bias is in any way warranted.

7. John having failed to secure a place in the school, his mother appealed the decision. This was unsuccessful. An appeal pursuant to section 29 of the Education Act 1998 was lodged; the secretary-general of the Department of Education and Skills referred the matter to an Appeals Committee; the ruling of that body was to disallow the appeal, determining that the Board had been "fair and reasonable in the application of the school’s admission policy in a situation where the numbers of applicants greatly exceeded the places available".

8. It is argued on behalf of the respondent that this Court can make findings against the Appellant on the basis of alleged breaches of statutory duty under the Education Acts. I can not accept that argument for two reasons: the principle of finality in litigation requires that matters determined under section 29 of the Act of 1998 can not be revisited; and proceedings pursuant to the Equality Legislation can only succeed where a breach of duty under that legislation - as opposed to other enactments - has been established to the satisfaction of the court. Nonetheless, the court’s view of the matters which are in dispute must necessarily be informed by statutory provisions which have specific reference to those issues, and in particular to sections 6 and 15 of the Education Act 1998.

9. Mrs Stokes grew up in Limerick. She was one of a large family. Unusually, within the Travelling Community, she and all of her sisters and some of her brothers received secondary education. Neither her husband nor any of his family went beyond primary school. Mrs Stokes made a very favourable impression. She is the mother of seven children, is very properly ambitious for John and for her other children, and was spoken of very highly by other witnesses on both sides of the case.

10. For his part, Mr. Bannon, the Principal of the school, impressed me also. As the head of such a large school, he obviously has to grapple with many complex problems on a daily basis. He has been involved in education for many years, during the last 20 of which he has been Principal of the High School. He outlined to the court the history of the school's Admissions Policy, and the difficulties which different approaches had thrown up. I am satisfied he is acutely aware of the deep disappointment and, indeed, hurt experienced by many families (including the Stokes family) over many years on finding that there was no place available in the school for their son. I am also satisfied that he has a deep commitment to the school and its students, and that he regards the issue of inclusivity in education as being of very high importance. His bona fides, and those of the Board, were not challenged, nor was it alleged that there was an overt or a deliberate policy on the part of the school to exclude traveller children.

11. When the lottery took place, John Stokes had a 55% chance of being selected for a place in the school; had the "parental rule" not been in place, he would have stood a 70% chance of being successful.

12. The issues which require determination are: is the Appellant in breach of its duty to the Respondent and her son under the provisions of the Equal Status legislation; and, if so, is the difference between a 55% chance and a 70% chance of such little materiality that that it is governed by the maxim "de minimis non curat lex”?

13. It might be suggested that the second issue should be looked at first, in view of the fact that a positive answer would make the first issue moot. I am satisfied, however, that it would be unjust to all concerned to take such course.

14. The first issue can be broken into two parts:

(i) having regard to the provisions of the Equal Status Legislation, is the "parental rule" discriminatory against Travellers? And

(ii) if so, can it be objectively justified by reference to a legitimate aim, the means to the achieving of which could be deemed both appropriate and necessary?

16. That having been established, the onus is on the Appellant

(A) to objectively justify that there was a legitimate aim;

(B) to prove that the measure was appropriate; and

(C) to establish that such measure was necessary.

18. As to whether the measure was appropriate, the evidence of Mr. Bannon concerning the history of the admissions policy is of importance. In all but two years in recent times, there have been more applicants than places for incoming students. At one time, priority was given to students where there were "exceptional circumstances". This led to a situation where almost all applicants sought to come in under this heading. Prior to that, the lottery applied to all applicants, while at one time entry was by means of an assessment test. These policies were at opposite ends of the spectrum and each, for obvious reasons, was highly unsatisfactory. The current policy falls somewhere between these extremes. This in itself does not mean that the policy is appropriate, but it is one which is reviewed annually and I am satisfied that, having regard to all the many relevant considerations of which the Board must take account, it strikes the correct balance and is, therefore, appropriate.

19. In relation to the necessity test, Mr. Bannon gave evidence at some length concerning the links between the school and the community in Clonmel. In the 19th century, the people of Clonmel invited the Christian Brothers to set up a school in the town. The resultant bond has been strong. There is an active past pupils’ union which incentivises high achievement by pupils at the school; former students have been active in providing mentoring, bursaries for sports and financial assistance for the sons of impoverished parents; and the activities of such former students in the very difficult but necessary task of bridging the shortfall in funds provided by the Department and the outgoings of the school would most probably be considerably less were such strong bond not in place. Mr. Bannon spoke of "a sense of ownership about the school where people have attended", and gave very concrete examples of this in the course of his evidence. Mr. Ó Dulacháin, in argument, has made reference to the fact that parents of past pupils "may more likely be employed or in higher positions of responsibility"; he goes on to argue that through this evidence, Mr. Bannon thus sought to introduce "opaque criteria" referring "either to wealth or standing". In fact, there was no evidence to the effect that past students of this school – a non-fee-paying school - hold a disproportionate amount of wealth or standing in the community, and the matters canvassed in the course of Mr. Bannon's evidence in this regard are manifestly important considerations in the formulation of school policies. In the light of all this (and, in particular the highly important issue of funding) I find -- and not without hesitation -- that the inclusion of the "parental rule" was a necessary step in creating an admissions policy which is proportionate and balanced.

20. It may be that the Oireachtas should look (or look again) at the issue of providing a mandatory requirement for positive discrimination in schools’ admissions policies. In the instant case, however, it is common case that our legislators -- who must, like the courts and, indeed, school boards who frame admissions policies, seek to strike a balance between legitimate competing interests – have not enjoined such measure.

21. Having made such findings, the "de minimis” issue does not arise for consideration.

22. I would therefore allow the appeal, and set aside the order of the Equality Officer.