Supreme Court Update: Mary Stokes (on behalf of John Stokes) v CBS Clonmel

You may be aware that the enrolment / education legal case of John Stokes regarding indirect discrimination against CBS School Clonmel was coming before the Supreme Court.

The matter was heard on 28 and 29 January last, by Judges Hardiman, Murray, O Donnell, Mc Kechnie and Clark. A preliminary issue as to whether or not the decision of the High Court on a point of law can be appealed to the Supreme Court under the legislation was dealt with first, and it was decided that the determination of jurisdiction would be dealt with by the Court following the hearing of the full case. However two days for hearings was insufficient and the ITM Law Centre is awaiting a date for the remainder of the case to be heard.

At the Supreme Court, the Equality Authority appeared as amicus curiae (friend of the court) to assist in the complex legal matters relating to equality law. Their interest originates to Mary Stokes (John’s mother) making a complaint to the Equality Tribunal alleging indirect discrimination of her son when seeking a place for him at the school, which had more applicants than there were places available, and his application was unsuccessful. Mary had taken a Department of Education Section 29 complaint but it was not upheld and approached the ITM Law Centre to assist her to appeal to the Equality Tribunal. The basis of the appeal was that John was indirectly discriminated against partly as a result of the operation of the “parent rule” in the school; this is a rule that effectively guarantees places to the children of past pupils. The majority of Travellers of the John’s father’s generation would not have gone to secondary school therefore the likelihood of him or any Traveller child being in a position to qualify for a place under the parent rule is very low. (In 1981 at John’s fathers school going age progression from primary to secondary was rare, 10 % of Travellers versus 66% of the settled population. )

The Equality Authority (December 2010) upheld Mary’s complaint and awarded John a school place and for the school to revise its enrolment policy.

The school however appealed that decision to the Circuit Court (July 2011) where the judge found that the rule did place Travellers at a particular disadvantage but that the rule was objectively justified and found it to be “necessary for the proper running of the school to have the children of past pupils guaranteed a place in the school”.

Under instruction from Mary Stokes the ITM Law Centre appealed the “objectively justified” finding to the High Court (February 2012) on a point of law, the school counter appealed the finding that the rule placed John Stokes “at a particular disadvantage” as a result of the operation of the rule.

The matter was heard in the High Court by Judge Mc Carthy who by reference to the English dictionary found that due to the fact that other groups could be affected by the rule that the disadvantage was not particular to them. Mary Stokes then appealed this decision to the Supreme Court.

This landmark enrolment case has provided the ITM Law Centre the best opportunity to the date to test the legality of the imposition of structures and policies which indirectly discriminate against Travellers, specifically in schools policies.

The Irish Traveller Movement during the ongoing work of this case has relatedly submitted to the “The Regulatory Framework for School Enrolment (June 2011)” and outlined Traveller specific concerns, specifically that school enrolment arrangements support inclusive, transparent and fair policies and practice. They also made submissions on Tackling Bullying in schools and on the review of the Intercultrual Education Strategy. The Irish Traveller Movement also made a submission to the Joint Oireachtas Committee on Education and presented at a hearing on the Proposed (Admissions to Schools Bill) (Dec 2013)

Through an enhanced lobbying strategy the Irish Traveller Movement directly lobbied TDs on the matter of the proposed Bill and sought support for the Traveller position. A report of the Joint Oireachtas Committee on Education and Social Protection will be forwarded to the Minister in the coming weeks. The Irish Traveller Movement will continue to lobby TDs when the Bill goes to the first stage in the Dail, should our concerns remain outstanding. We hope that Traveller organisations can voice their concerns to local politicians.

There have been many outstanding moments during the course of the Stokes case; however Mary Stokes’s commitment and determination has allowed this case to be heard and to be considered now as a constitutional matter.

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