Perpetuating Traveller children’s educational disadvantage in Ireland
| Author | Olivia Smith |
| Published date | 01 September 2014 |
| DOI | 10.1177/1358229114534549 |
| Date | 01 September 2014 |
| Subject Matter | Articles |
Article
Perpetuating Traveller
children’s educational
disadvantage in Ireland:
Legacy rules and
the limits of indirect
discrimination
Olivia Smith
Abstract
The impact of ‘subtle’ admission policies utilized by many secondary schools in Ireland on
children from minority groups has been recently flagged as problematic by the Irish
Department of Education. A new regulatory framework has been promised to address
this issue but has yet to emerge. In the meantime, such policies, which include pre-
ferential parental legacy rules, certainly trigger the reconfigured principle of indirect
discrimination in the access to and enjoyment of goods and services under the Equal
Status Acts 2000–2012, which transpose a number of EU Equality Directives. This article
considers the approaches taken to the demonstration of how suspect policies give rise
to ‘particular disadvantage’ for protected groups in light of the shift away from the
mandatory use of statistical evidence in the context of a discussion of a recent High
Court case, Stokes v. Christian Brothers High School. This decision concerned the impact of
a parental legacy rule on a child from Ireland’s Traveller community, a community that
has a long and virulent history of educational (and other forms of) disadvantage. In
response to the limited understanding of indirect discrimination taken in the High Court
(which pivoted on the Oxford English Dictionary), which significantly undermines the
principle’s ability to tackle structural inequalities, I go on to demonstrate how use of both
the ‘social facts’ approach and a statistical approximation of the impact of the policy on
School of Law and Government, Dublin City University, Dublin, Ireland
Corresponding author:
Olivia Smith, School of Law and Government, Dublin City University, Dublin, Ireland.
Email: olivia.smith@dcu.ie
International Journalof
Discrimination and theLaw
2014, Vol. 14(3) 145–167
ªThe Author(s) 2014
Reprints and permission:
sagepub.co.uk/journalsPermissions.nav
DOI: 10.1177/1358229114534549
jdi.sagepub.com
the complainant’s group reveals ‘particular disadvantage’ in the use of legacy rules on
Traveller children, children of migrants and children raised in non-traditional families.
Keywords
Indirect discrimination, school enrolment policies, Traveller community, statistics
Introduction
In 2006, the then Minister for Education in Ireland drew attention to the ‘subtle’ admis-
sion policies utilized by many secondary schools – such as parental and sibling prefer-
ence policies – which were described as strategies for excluding children from certain
disfavoured groups. A Department of Education audit of school enrolment policies was
ordered (Department of Education and Skills, 2007). This exercise revealed how certain
schools cherry-picked amongst their applicants such that the education of Traveller chil-
dren, children with disabilities and children of migrants was being concentrated in par-
ticular schools, mainly vocational and community schools. The outcome of this exercise
has been the publication of a discussion document on enrolment policy (Department of
Education and Skills, 2011), which is expected to produce some kind of new regulatory
framework in the future.
1
In the meantime, one dimension to this issue of interest to equality and discrimination
lawyers is the role of discrimination law in challenging the impact of exclusionary and
disadvantageous admission rules on children protected under its rubric. Ireland’s equal-
ity and discrimination law framework underwent considerable expansion in the mid-
1990s and was subsequently amended in the mid-2000s as part of the process of trans-
posing the new EU Equality Directives.
2
These developments combined to open up the
law’s protection beyond the traditional employment domain and into the realm of goods
and services, including education, and to expand the protected grounds beyond gender
and marital status to nine grounds, including, inter alia, age, disability, race and member-
ship of the Traveller community. The Equal Status Acts 2000–2012 prohibit direct and
indirect discrimination, harassment and victimization on the protected grounds in the
context of, inter alia, access to and enjoyment of educational opportunities and also
transpose a number of European equality directives, including the Race Directive.
School enrolment policies are, therefore, subject to the non-discrimination provisions
of the Equal Status Acts.
3
Discrimination law’s response to structural inequality has been largely predicated on
the difficult statutory tort of indirect discrimination.
4
Originally a judicially developed
principle,
5
it represents a fundamental recognition in law that discrimination is about
more than deliberate or overt action by individual actors on the protected grounds and
that inequality has endemic and institutional dimensions that derive from structural prac-
tices within important societal institutions. Such practices, which may appear ‘neutral’
on their face, can create patterns of disadvantageous and discriminatory effects on mem-
bers of disfavoured groups, which if made out, will be prohibited by law where they
cannot be objectively justified.
146 International Journal of Discrimination and the Law 14(3)
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