Religious schools and discrimination in Victoria

Recently a Greens MP in Victoria, Sue Pennicuik, has introduced a Bill into the Victorian Parliament to reduce the ability of religious schools to deal with potential admissions, or their current student body, on the basis of the school’s religious beliefs. The Equal Opportunity Amendment (Equality for Students) Bill 2016 had its second reading in the Legislative Council on 22 June 2016.

The legislation is arguably an impairment of the religious freedom of parents and the schools, and ought not to be passed. 

I have recently described the landscape of Australian discrimination law, and the way that all laws of this sort contain “balancing clauses” to allow balancing of the human right to religious freedom, with the right not to be discriminated against on irrelevant grounds.

Prohibition on discrimination

The same is true of Victoria. The Equal Opportunity Act 2010 (Vic) prohibits discrimination on the basis of “attributes” which include, among others, religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity (see s 6(o),(p),(g),(h),(i) and (d)- the order of listing of these attributes is taken from the later provisions in ss 82-84 to be discussed below.) One area where such discrimination is unlawful is the operation of an “educational institution” (including a school) by an “educational authority”- see s 38:

Discrimination by educational authorities

38 (1)     An educational authority must not discriminate against a person—

(a)     in deciding who should be admitted as a student; or

(b)     by refusing, or failing to accept, the person’s application for admission as a student; or

(c)     in the terms on which the authority admits the person as a student.

(2)     An educational authority must not discriminate against a student—

(a)     by denying or limiting access to any benefit provided by the authority; or

(b)     by expelling the student; or

(c)     by subjecting the student to any other detriment.

Religious Balancing Clauses

However, the legislation, like other legislation around Australia, contains a number of “balancing clauses” which operate to protect the religious freedom of religious organisations running schools. (See here for an academic discussion of “balancing clauses”.) These provisions are contained in sections 82-84 of the Act. Under s 82(2) there is a general provision that:

 (2)     Nothing in Part 4 applies to anything done on the basis of a person’s religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity by a religious body that—

(a)     conforms with the doctrines, beliefs or principles of the religion; or

(b)     is reasonably necessary to avoid injury to the religious sensitivities of adherents of the religion.

Then, under s 83, there is a slightly broader provision specifically applying to religious schools:

Religious schools

(1)     This section applies to a person or body, including a religious body, that establishes, directs, controls, administers or is an educational institution that is, or is to be, conducted in accordance with religious doctrines, beliefs or principles.

(2)     Nothing in Part 4 applies to anything done on the basis of a person’s religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity by a person or body to which this section applies in the course of establishing, directing, controlling or administering the educational institution that—

(a)     conforms with the doctrines, beliefs or principles of the religion; or

(b)     is reasonably necessary to avoid injury to the religious sensitivities of adherents of the religion.

(It seems that s 83 extends the exemption to a “person or body” running a religious school, which may not itself be a “religious body”.) Finally, under s 84 there is a very broad exemption applying to decisions made on religious grounds:

Religious beliefs or principles

84. Nothing in Part 4 applies to discrimination by a person against another person on the basis of that person’s religious beliefor activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity if the discrimination is reasonably necessary for the first person to comply with the doctrines, beliefs or principles of their religion.

These clauses are designed to reflect the importance that religious belief plays in a believer’s life, and in particular the clauses in relation to schools reflect the fact that schools operated by religious groups are normally seen as an important part of the mission of that group, not simply as a “money- making” venture. Religious schools, for faith communities, are designed to reflect the values of the faith, not only in the formal teaching that students receive, but in the general life of the community in accordance with the religious convictions of the body sponsoring the school.

If I may quote my previous post on this topic:

Religious persons seek to live their whole lives, not just their time in religious meetings, in service to their God. Those who disagree with those religious views are not required to be a part of the religious community. But for those who are, expression of their commitment to their beliefs will involve decisions about moral issues and the way that they wish to model their religious beliefs to each other and, for schools, to their children.

As Paul Kelly has commented in The Australian (May 18, 2016)

“The exemption from anti-discrimination law for religious institutions and schools allows them to retain their religious character. It is a cornerstone for religious freedom in this country.”

The fact is that Christian schools, and other religious schools, are aiming to model the life of a whole community with shared religious beliefs (and hence moral values). That is why the commitment of the Maths teacher, or the gardener, or the receptionist, may be just as important as that of the religious studies teacher.

Indeed, the strong moral stance of religious schools is sometimes seen as a reason for those schools to be preferred as educational choices, even by those who don’t share their religious commitments. If we believe in true choice and diversity, then we should be supporting different communities reflecting their values in the way that they provide such things as education, or other social services.

What I said previously about staff is also reflected to some extent about decisions relating to the student body. Of course many religious bodies will not require that students share the faith commitment of the school before studying there. But some will. And most will expect that students will respect the moral values of the school, and not seek to undermine those values.

A religious school, for example, may require that students undertake not to engage in pre-marital sexual relations. While a sexual relationship between two 17-year-olds may not be illegal, it may be contrary to the school’s moral framework, and in an extreme case may lead to discipline or expulsion of students. A religious school may require that a student not take a same sex partner to a school formal.

Of course not all schools will decide these difficult issues in this way. There have been in fact very few cases where students have been disciplined or expelled on these sort of grounds. But some schools may so decide, and the law at the moment respects the religiously motivated decisions of those running the school, in these areas. To do so is to respect the religious freedom of the school, and in general the religious freedom of the parents who have sent their children to the school, expecting a certain religiously framed moral environment. This issue of the freedom of parents is explicitly referred to in s 18(4) of the International Covenant on Civil and Political Rights, which provides:

4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.

In passing, it is worth noting that there other exemptions to discrimination under the Act which may be engaged in some situations involving religious schools. Under s 42, for example:

Exception—standards of dress and behaviour

(1)     An educational authority may set and enforce reasonable standards of dress, appearance and behaviour for students.

(2)     In relation to a school, without limiting the generality of what constitutes a reasonable standard of dress, appearance or behaviour, a standard must be taken to be reasonable if the educational authority administering the school has taken into account the views of the school community in setting the standard.

In some cases where moral behaviour in accordance with the standards of a religion is required of students, it may be that s 42(2) would provide a separate ground to allow a school, acting in accordance with the standards set by the (religious) school community, to require such standards to be adhered to by students. But since s 42 is not touched on in the proposed amendments, it will not be discussed further here.

The Proposed Amendments

In brief, the proposed amending Act is designed to undercut the above balancing clauses by making sections 82, 83 and 84 all subject to proposed new s 84A, which would provide as follows:

(Proposed) s 84A Discrimination against school students not exempt

Sections 82(2), 83 and 84 do not permit discrimination by a person or body that establishes, directs, controls, administers or is an educational institution that is a school against a student on the basis of the student’s sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity.

In effect this provision would remove an important part of the religious freedom currently enjoyed by schools and parents. It is interesting to note that, while sections 82-84 all refer to the school being able to make decisions on the basis of “religious belief or activity”, as well as the other grounds, new s 84A says nothing of this. Presumably the proponents regard the religious belief of a student as of much lesser import than their sexual activity or orientation, otherwise they would also be concerned about a Roman Catholic school, for example, requiring a Jewish student to attend mass, or an Islamic school expelling a Christian senior student for challenging the truth of the Qu’ran at a lunchtime discussion group. (These are hypothetical examples, corresponding to no real case that I am aware of.)

This in many ways is a neat illustration of the “quasi-religious” status that matters of sexual behaviour now enjoy in the community. Mary Eberstadt brings this out well in her recent book, It’s Dangerous to Believe: Religious Freedom and Its Enemies, describing the new sexual “orthodoxy”:

For more than half a century now, at least since the invention of the birth control pill, men and women of the West, especially secularists and progressives, have collectively assembled just such an orthodoxy, thinkingly or no. In place of the Judeo-Christianity of yesterday, and mimicking its outlines to an uncanny degree, this new body of belief has by now a well-developed secular catechism. Its fundamental faith is that the sexual revolution, that is, the gradual destigmatization of all forms of consenting nonmarital sex, has been a boon to all humanity. (p 23 )
Clearly the view that no sexual activity or identity can be criticised lies behind the suggestion that a religious school, established to operate in accordance with religious principles, cannot do so in the “sacred” area of sexual behaviour. But I would like to suggest that in fact the current law provides a reasonable balance in this area. (For a more academic and detailed defence of the value of religious groups being allowed to operate in accordance with their religious norms, see the excellent piece by Joel Harrison & Patrick Parkinson, “Freedom beyond the Commons: Managing the Tension between Faith and Equality in a Multicultural Society” [2014] MonashULawRw 19; (2014) 40(2) Monash University Law Review 413.)

Possible Constitutional issues

I would also like to suggest (though I need to do more work on this) that there may be a possible Constitutional problem with the proposed amendment. The Commonwealth Sex Discrimination Act 1984 deals with the question of sex and sexual orientation discrimination by educational institutions. Under s 38 of that Act, the impact of the general prohibition on discrimination by educational institutions is qualified as follows:
(3)  Nothing in section 21 renders it unlawful for a person to discriminate against another person on the ground of the other person’s sexual orientation, gender identity, marital or relationship status or pregnancy in connection with the provision of education or training by an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, if the first-mentioned person so discriminates in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed.
In other words, in general terms one could say that Commonwealth law permits a religious school to make decisions about enrolment and discipline of students in accordance with its fundamental religious convictions. Yet the proposed Victorian amendments would take that right away. True, one could frame the situation in different ways, but it seems that the essence of the behaviour which is protected by the Commonwealth law would then be under attack from the amended Victorian law. Yet s 109 of the Constitution prevents a State Parliament from impairing the enjoyment of a right granted by Commonwealth legislation. There is at least an important issue here which needs to be carefully considered. (See for example Dao v Australian Postal Commission [1987] HCA 13; (1987) 162 CLR 317, where the High Court held that State discrimination law could not over-ride provisions allowing the Commonwealth to appoint its own public servants.)

Conclusion

The proposed Victorian amendments seem designed to reduce the scope for religious schools and parents who support those schools, to exercise their religious freedom to have their children educated in accordance with their fundamental religious beliefs. Where there are many other educational options in the community, there seems no good reason to impose such an impairment of religious freedom. Those who do not share the religious commitments of schools are free not to send their children to those schools. When students are old enough for matters of sexuality to be an issue, they would also usually have a choice as to whether to continue to study there or not. But imposition of a blanket “sexual orthodoxy” on religious schools is inappropriate in a community that values and celebrates diversity.

 

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