The law that allows Church-run schools to discriminate
The legal entitlement enjoyed by church-run schools to protect their ethos is copper-fastened in the Equal Status Act 2000.
While the purpose of this legislation was to prohibit discrimination in society generally, on nine grounds, including religion, Section 7 (3) (c) of the act made an exception for denominational schools on grounds of religion.
If Minister Richard Bruton is to succeed in his ambition to break down the baptism barrier following his consultation process, it will almost certainly require some tinkering with this contentious section.
Under this derogation, a school is deemed not to discriminate if, in order to protect its ethos, it admits a child of a particular denomination in preference to others, or it refuses to admit as a pupil a child who is not of that denomination.
In practice, Section 7 (3) (c) means that where a school is oversubscribed, it can give preference to a child from its religion, even if that child lives further away than another applicant who has not been baptised into that religion.
Even if a place is available, this provision also allows a school to refuse to admit a pupil if it can be shown that the refusal is essential to maintain the ethos of the school.
Long before the Equal Status Act, the constitution gave certain rights to religious denominations, including maintaining institutions for certain purposes. Mr Bruton is not the first minister to look at this area, but the legal complexities involved have been enough to deter his predecessors from tackling it head on.
A legal opinion presented last year on behalf of Equate, the education advocacy group at whose seminar today the minister is rolling out his plans, suggested a way through the legal quagmire. It was written by three academic constitutional lawyers, Dr Conor O'Mahony, UCC, Dr Eoin Daly, NUI Galway, and Dr David Kenny, Trinity College Dublin.
Their proposal involves an amendment to the Equal Status Act to ensure schools in receipt of public funding would not be permitted to discriminate on grounds of religions in pupil admissions. They argued there was no constitutional right to unconditional public funding for private or denominational schools and the constitution permitted the imposition of reasonable conditions on the provision of public funding.