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Apply the law, Judge Teehan. August 13, 2011

Posted by Tomboktu in Human Rights, Inequality, Judiciary, racism, Rights.
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A judge’s job is to apply the law, as set out by the Oireachtas. That task is subject to the Constitution and EU law.

I am trying to figure out Judge Tom Teehan’s thought process in doing his job in a recent case. In fact, it looks to me like he didn’t do it correctly. The case was the appeal against a decision in favour of a teenager called John Stokes. He is a Traveller, and had been refused entry to a secondary school of his choice. (Actually, it was his mother’s choice, but when you’re at the younger end of your teens, that’s how these things are decided.)

The facts behind the case have been reported widely enough in the Irish media, and not all of them are relevant to the issue I have with the judge’s thinking, so I won’t repeat them here.

To tee-up my point, let me quote the three relevant pieces of law.

Exhibit A, Section 7(2) of the Equal Status Act:

(2) An educational establishment shall not discriminate in relation to—
(a) the admission or the terms or conditions of admission of a person as a student to the establishment,
[...]

Exhibit B, Section 3(1) of the Equal Status Act (this was amended by the Equality Act 2004, and it is the current wording I quote here):

(1) For the purposes of this Act discrimination shall be taken to occur—

[...]
(c) where an apparently neutral provision puts a person referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary

And the final piece of law, Exhibit C, the section 3(2) of the Equal Status Act which is referred to in Exhibit B:

(2) As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are:
[...]
(i) that one is a member of the Traveller community and the other is not (the “Traveller community ground”) [...]

The key piece is Exhibit B. The starting point of it — in fact the core purpose of it — is that an apparently neutral rule cannot be used to discriminate on the Traveller ground. It then allows an exception to that: the rule “is objectively justified by a legitimate aim”, and sets a standard for that exception: “the means of achieving that aim are appropriate and necessary”.

Now, I know some disagree with this law (I don’t), but whether or not it should be the law is beside the point here. The fact is that the democratically elected Oireachtas decided that this is what the law is, and the judge’s job is to apply the law.

The rule the school used to exclude John Stokes was that his father had not been a pupil at the school, and when the school was over-subscribed it gave places to the sons of past-pupils first before running a draw for others.

The judge summarised the situation and said:

Accordingly, it can be stated unequivocally that the “parental rule” — an ostensibly neutral provision as provided for by the amended section 3(1)(c) of the Equal Status Act — is discriminatory against Travellers.

He then said that the question that arises is whether the school can invoke the exception:

[T]he onus is on the [school]
(A) to objectively justify the there was a legitimate aim;
(B) to prove that the measure was proportionate; and
(C) to establish that such measure was necessary.

In paragraph 17 of the his judgement, Judge Teehan said*:

17. With regard to the question of the legitimacy of the aim, [John Stokes] adverted in argument to the school’s Admissions Policy, and the lack of any direct correlation between the stated aims and the “parental rule”. Dealing with “Goals”, one of the criteria referred to is “supporting the family ethos within education”. While this goes on to justify the “sibling rule”, with no reference to parents, I find that the overall aim of the [school's] Board in introducing the “parental rule” is entirely in keeping with this goal and the “characteristic spirit of the school”, a concept to which it must have regard with section 15(2)(b) and (d) of the Education Act 1998. The [school] has thus objectively justified to the satisfaction of this Court that the aim of the Board in this regard was wholly legitimate.

Now, the judge goes on to deal with the second and third components of the exception — the bits about ‘proportionate’ and ‘necessary’ — but I stop here at the first stage and ask: what on earth did the judge think he was doing finding a ‘father rule’ was legitimate? That finding completely rejects the the intention of the Oireachtas, and the judge has failed in his duty to apply the law as set by the democratic legislature. (Nor he is not invoking a higher authority such as the Constitution or an over-riding EU law.)

Let us remind the judge: the core purpose of the law you were meant to apply is to prohibit discrimination against Travellers. Now, ask the question: how do you get to be a Traveller? The answer, of course, is by being the son or daughter of a Traveller. I can think of no other way of becoming a Traveller. And the rule the school used to give preference to non-Travellers — which the Judge did find is discriminatory — uses that very criteria of who your father (in this case) is, and that rule is, he says, a ‘legitimate aim’?

If the judgment is not overturned, the idea of a ‘legitimate aim’ will be allowed to be so wide, so flexible, that all somebody has to do to get away with undermining the intention of the Oireachtas would be to define an aim that is based not on your membership per se of a group that is the subject of the discrimination at hand, but on the process by which you come to be a member of that group.

Do you want to exclude people who have a disability? Then write a rule that discriminates against anybody who has had an accident that severed their spinal cord, or who in utero experienced a bio-chemical assault that irrepairably damaged the genes that control the development of hearing, etc.,

I wonder would Judge Teehan have tried his logic with a rule that permitted lower pay for people formed from the merging of a human sperm containing an X chromosome with a human egg. That would have been an ingenious way to overturn the Oireachtas’s intentions on gender discrimination.

_________
*To make it easier to follow, I have replaced the words ‘respondent’ with ‘John Stokes’, and ‘appelant’ with ‘school’ in the quoted text.

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Comments»

1. Logan - August 13, 2011

Tomboktu, your arguument is based on the fact that you do not believe that giving preference to the families of past pupils is a “legitimate aim”, while the judge felt that an admissions policy based on giving preference to such children is a “legitimate aim”.

Now I agree with you that the whole business of wanting people going to the same school as their parents is a bit of a crock of a reason to have for an admissions policy, but i am willing to give the Judge the benefit of the doubt in his interpretation. However, you feel that his interpretation is wrong, that he is going against the wishes of the Oireaschtas members who framed the law.

But how are you so sure that the judge is going against what the Oireachttas members want? – to the extent that you say that the “Judge has failed in his duty to apply the law as set by the legislature”

But how do you know that? Have you any source for your claim that the Oireachtas members (either now or when the law was passed) did not want such a rule to pass scrutiny by the courts?

My reading of the Act is that it looks like it was framed to give organisations such as a school a reason to get away with such antics – bestowing on organisations an opt-out for “a legitimate aim” – this sounds like they were writing in a huge, deliberate exemption that was just begging schools and other bodies to drive a coach and horse through.

It doesn’t even state “a legitimate educational aim”. I would imagine a lot of irish people would believe that a school giving preference to the children of alumni was a “legitimate” objective to have.

To blame the Judge in this case seems to be training your ire on slightly the wrong target , in my opinion.

By the way, I hope this case and cases like it do not obscure the fact that the real divide in Irish education is between the fee paying and non-fee paying sector, nor the rather pathetic efforts of some of the non-fee-paying schools to try and increase their snob value by their school with such admittance policies. At least the school admitted a third of their intake by means of a lottery – I wonder when we will see the day when Belvedere or Blackrock College admit a third of their intake as non-feepaying students by means of a lottery

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2. WorldbyStorm - August 13, 2011

I see your point Logan re as regards the intention of the Oireachtas is less clear, but ‘legitimate aim’ doesn’t seem to me to be quite as broad as you suggest.

Though I also agree with you re the divide between fee-paying and non-fee paying.

Interestingly in the Ivy League colleges in the US this is a particularly thorny problem where offspring of alumini are often guaranteed places making access for others increasingly difficult.

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3. Ian - August 15, 2011

It might be worth pointing out that the Minister for Education, Ruairi Quinn, has launched a discussion policy on enrolment in schools. If implemented as set out, it would stop schools using the ‘old boys’ rule so cases like this would be a thing of the past. I think this is a progressive policy shift by a Labour Minister.

http://www.education.ie/home/home.jsp?maincat=10861&pcategory=10861&ecategory=10876&sectionpage=12251&language=EN&link=link001&page=2&doc=53763

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