Clonmel High School this week won its appeal against a ruling of the Equality Authority which found that a Traveller boy had been indirectly discriminated against because he was unlikely to have had a parent in secondary school.
While John Stokes (13) - who took the equality action through his mother, Mary Stokes - did fulfil two of the High School’s three criteria in that he is a Roman Catholic and attended one of the local feeder primary schools, he failed in the third criterion of having a brother or had a parent as a past-pupil.
Mrs Stokes has promised to appeal the ruling.
There were 174 applications for 140 first-year places in 2010 and John Stokes was unsuccessful in the lottery used to allocate places among those who didn’t meet the three criteria.
Judge Tom Teehan this week set aside the order of the Equality Officer which found in the Stokes’ favour, that there had been indirect discrimination, and allowed the High School’s appeal
It could be “stated unequivocally” that the “parental rule” was discriminatory against Travellers and also other groups such as the Nigerian and Polish communities, he said, and the onus was then on the High School to justify that there was a legitimate aim, to prove that the measure was appropriate and to establish that it was necessary.
He decided that the parental rule was “entirely in keeping” with the school’s goal to “support the family ethos within education;” appropriate because of over-subscription and the fact that the school had to strike a balance; and necessary to create an admissions policy which is proportionate and balanced.
“It may be,” Judge Teehan said, “that the Oireachtas should look (or look again) at the issue of providing a mandatory requirement for positive discrimination in schools’ admission policies.”
Neither John Stokes or his mother was present for the judgement but they were represented by the Irish Traveller Movement Law Centre.
Their solicitor, Siobhan Cummiskey, said afterwards they were “disappointed” by the ruling but said the judge’s comments regarding discrimination were something the Minister for Education and Skills should examine. “Positive discrimination is something you’d have to look at very carefully,” she said.
There was no decision on whether to appeal the ruling, Ms Cummiskey told reporters. “We’re going to take some time to look at the judgement.”
Afterwards, Irish Traveller Movement director Damien Peelo said they were “very disappointed” by the ruling, “not just for John Stokes and his family... but for all Travellers who are making progress in the education system where enrolment policies which give priority to children of former pupils put Travellers at a particular disadvantage, statistically.”
The circuit court ruling hinged on the High School in Clonmel’s “parental rule” which favoured boys who had a parent who previously attended the school.
John Stokes and his mother Mary Stokes argued that, because of the historic unlikelihood of Travellers attending any secondary school, this indirectly discriminated against the Travelling community.
While neither John’s father or any of his siblings went beyond primary education, his mother did. “Unusually, within the Travelling community,” Judge Tom Teehan said in his judgement, “she and all of her sisters and some of her brothers received secondary education.”
Mrs Stokes gave evidence when the case was heard in May and “made a very favourable impression,” according to the judge. “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.”
John attended primary school at St Peter and Paul’s in Clonmel - one of the designated “feeder” schools for the Christian Brothers High School - and applied for one of the 140 first-year places for the academic year starting last September.
When he missed out on a place in the lottery held for boys who didn’t meet all three of the High School’s admissions criteria, the family initially appealed the move to the board of management. That was unsuccessful, as was an appeal to the Department of Education, but they won their subsequent appeal to the Equality Authority who found that the school had indirectly discriminated against him and that he should be admitted.
While the case was ongoing, John attended first-year in the secondary school in Fethard but his mother told the court last May that he found it difficult because he was unable to avail of after-school activities because he had to get the bus home, and also because he couldn’t be with his friends in Clonmel.
High School principal Shay Bannon said in May that, of eight applications from the Travelling community during his 20 years in Clonmel, John’s was the first not to succeed. He said he was “very hurt” by allegations of discrimination. “The perception is out there that we’re an elitist school that takes the best and brightest - we take all students.”
Judge Teehan said he was impressed both by Mrs Stokes and by Mr Bannon.
As head of a large school, Mr Bannon had to “grapple with many complex problems on a daily basis” and was “acutely aware” of the deep disappointment and hurt experienced by families such as the Stokes family who found 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,” the judge said. “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.”