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Neil Maddox: Orders may have given up school ownership but ethos remains

MORE than a few eyebrows are likely to have been raised by the recent statement of the Christian Brothers that they no longer own or manage any of their schools.

This is because, in 2008, the Edmond Rice Trust assumed ownership of all Christian Brothers and Presentation Schools formerly under the ownership and control of the order.

This is not the only religious order subject to an obligation to contribute to the residential redress fund that has opted to transfer ownership of all of its school property by means of such a trust arrangement.

Five female religious congregations transferred over 100 secondary schools to the Catholic Education and Irish Schools Trust in 2007 (among them were the Sisters of Mercy and the Daughters of Charity).

The Sisters of Mercy have described the transfer as being a transfer to an "independent" trust.

The decline in vocations may well have been the initial spur to investigate such arrangements.

However, now that the State is seeking the transfer of these properties from the orders, it seems likely that Minister Ruairi Quinn will be met by the answer that it is no longer theirs to give.

So who precisely are the new owners, and what effect does the transfer have?

Legally, a trust is simply a mechanism whereby one group of people (the trustees) holds property, not for their own benefit, but for the benefit of another defined class of people (such as children in need of education), and also, at times, to promote certain defined purposes (such as education and religion).

The trustees are severely limited in how they discharge their duties in relation to the trust, and must only apply their powers to further the objectives of the trust. It is not difficult to guess that the objectives of these new trusts are intimately related to the goals of the religious orders who created them and, for example, the Charter of the Edmond Rice Schools Trust specifically states that the Trust's mission is "To provide Catholic education in the Edmond Rice tradition".

So, while the orders have indeed given up ownership and managerial power over the schools (laypeople now sit as trustees and not members of the religious orders), they have by the creation of the trusts managed to preserve the Catholic religious ethos of the order, potentially long after the order may exist.

As regards the physical school itself, the new trustees would not be able to effect any transfer to the State unless that transfer could be said to promote the objectives of the trust.

Mr Quinn seems to have acknowledged this difficulty in a recent statement, albeit a vague and oblique one, that any transfer of the schools would be limited to their "physical infrastructure" and that the ethos of the patrons of the school would continue until such time as the patrons chose to alter it.

Such political speak is difficult to decipher, but one might speculate that the failure of the State to anticipate the legal effects of these arrangements with new trust corporations has severely tied their hands in compelling property transfers by the religious orders.

Legally, the most the trustees could probably accede to is a mere formal transfer of the physical areas of the school, but only on the condition that guarantees were given by the State that the trust corporation would retain the management of the school and by extension that the ethos of the order would be preserved therein.

Individuals and companies faced with large debts often sell all of their assets to friendly third parties in what is mostly a cynical attempt to evade their creditors and retain a de facto control over the property.

There are many legal remedies to set such arrangements aside, and one wonders why none of them have been considered here.

The preservation of a Catholic religious ethos in a state-funded school is an issue that has wide implications for the teachers, the students, and the potential students of that school.

As Irish law currently stands, a teacher of a school with a particular religious ethos can be sacked if they pursue a private lifestyle that is contrary to that ethos.

This results in the frankly bizarre position whereby a school funded and run by the State can dismiss a teacher on the grounds of sexuality, or if they are a single parent, or indeed unmarried and living with their partner.

Notwithstanding the fact that the teacher's salary is paid by the State, all of the constitutional and legislative guarantees of equality evaporate.

One has to ask why the State would continue to fund any school whose ethos allowed it to engage in such brazenly discriminatory practices? And the question should probably be put to the socialist Minister for Education.

Neil Maddox is a practising barrister and lecturer in law at NUI Maynooth.

Irish Independent