No religious discrimination where school has optional clause in creed

A recent interesting decision in the State Administrative Tribunal of Western Australia deals with the question whether it is “religious discrimination” for a school to ask students to recite a fortnightly “school creed” containing an optional line mentioning God. The Tribunal decision, Jason Camp on behalf of Charlotte Camp v Director General, Department of Education [2017] WASAT 79 (29 May 2017), sensibly finds that there was no such discrimination.

Facts

Mr Camp is an atheist, and he assured the Tribunal that he had conversations with his 6-year-old daughter Charlotte which led him to believe that she also is an atheist. Charlotte’s local school has a “School Creed” (not a universal phenomenon in Australia primary schools), which is as follows (taken from para [18] of the Tribunal decision):

This is our School.

Let peace dwell here.

Let the rooms be full of contentment.

Let love abide here, love of one another,

Love of mankind, love of life itself,

And love of God.

Let us remember that as many hands build a house,

So many hearts make a school. (emphasis added)

The sixth line in the above arrangement mentions “God”. The accepted evidence was, however, that the school had made it clear to students that, while they had to attend the fortnightly assemblies, they did not have to recite the creed if they did not want to, or could if they chose substitute the word “God” with another word, which Charlotte apparently did (speaking of “love of life”, she said.)

Nevertheless, on her behalf, her father Mr Camp claimed that the school was breaching the law by continuing this practice.

The law

In WA, as in most (but not all) other jurisdictions in Australia, the law forbids religious discrimination. (For a review of discrimination laws on this area, see my recent paper on the topic.) Specifically, the Equal Opportunity Act 1984 (WA) s 53 forbids both direct and indirect discrimination on the ground of “religious conviction”, as follows:

53 .         Discrimination on ground of religious or political conviction 

(1)         For the purposes of this Act, a person (in this subsection referred to as the discriminator ) discriminates against another person (in this subsection referred to as the aggrieved person ) on the ground of religious … conviction if, on the ground of —         (a)         the religious … conviction of the aggrieved person; …  the discriminator treats the aggrieved person less favourably than in the same circumstances or in circumstances that are not materially different, the discriminator treats or would treat a person of a different religious … conviction.

(2)         For the purposes of this Act, a person (in this subsection referred to as the discriminator ) discriminates against another person (in this subsection referred to as the aggrieved person ) on the ground of religious … conviction if the discriminator requires the aggrieved person to comply with a requirement or condition —               (a)         with which a substantially higher proportion of persons who are of a different religious or political conviction comply or are able to comply; and                                  (b)         which is not reasonable having regard to the circumstances of the case; and        (c)         with which the aggrieved person does not or is not able to comply.

In the usual parlance, s 53(1) deals with “direct” discrimination (where some form of less favourable treatment is directly based on the protected attribute), and s 53(2) with “indirect” discrimination (where treatment which is on apparently neutral grounds turns out to have a harsher impact on people with the protected attribute than on others.)

In addition, as well as “unfavourable treatment” of some sort, it must be shown that this was applied in some “protected activity” (as the Tribunal notes, at [137]: “[t]he EO Act stipulates the areas in which discrimination can be unlawful. Not all aspects of human life or endeavour are included in the EO Act.”). Here s 61 provides, relevantly, that

(2)         It is unlawful for an educational authority to discriminate against a student on the ground of the student’s religious … conviction —  …   (b)         by … subjecting the student to any … detriment.

So it was necessary to show, as well as “unfavourable treatment” on the basis of religious conviction, some form of “detriment”. It was accepted, of course, that the views of an atheist amounted to a “religious conviction” that should be protected- this is so in most such laws, and here it is confirmed by s 4(3) of the EOA, which says that religious conviction “include(s) a lack or absence of religious … conviction”. It was held that, since Charlotte’s parents were entitled to make major life decisions for her, it could at least be deemed that she was an atheist and entitled to the protection of the law on this basis- see the discussion at paras [102]-[111].

The outcome

The Tribunal held that there had been neither direct, nor indirect, religious discrimination.  There was no “direct” discrimination because, when compared with the situation of a student who was not an atheist, there was no unfavourable treatment: all students were entitled to miss that part of the assembly where the creed was recited, or to substitute other words- see [134].

In particular, the Tribunal was not satisfied that the school had subjected Charlotte to any “detriment”. There were a number of claimed detriments that were alleged by Mr Camp and mentioned at different points in the judgement:

  • that “the purpose of a school creed is to provide students with a shared identity and a feeling of inclusion” (at [26]) and hence that by not being able to refer to God as other children did, Charlotte was “not included in the School’s stated shared belief(s)” (at [29]).
  • hence “[Charlotte] will feel different to others, by not feeling part of the school, due to the discriminatory creed”- at [30].
  • “this lack of inclusion can lead to negative feelings and emotions in Charlotte”- at [94].

The Tribunal member, Mr Mansveld SM, summed up the “detriment” argument in this way:

[126]                As I understand it, the main argument of Mr Camp is that by the simple fact of the School Creed including the line ‘And love of God’, discrimination has occurred because that line implies the existence of ‘God’, which is contrary to Charlotte’s religious conviction as an atheist.

[127]               Because of this, Charlotte is said to be excluded from the value system the School purports to impart and therefore cannot have a sense of belonging and will feel different to other students. Charlotte, it is argued, is treated ‘less favourably’ because she cannot participate in the School’s shared values.

These arguments were rejected. The Tribunal noted that “detriment” for the purposes of the legislation needed to be “a matter of substance and not directed to trivial distinctions, and that the test is an objective one”- [140]. The school “creed” was only a minor part of setting the school culture- see [129], [132]. The Tribunal concluded that no detriment had been shown on the evidence:

[141]                In the case of Charlotte, there is no substantive evidence before the Tribunal that she has been subject to any detriment other than assertion by Mr Camp that her alleged ‘exclusion’ is capable of producing negative feelings and emotions.

[142]                There is no evidence that Charlotte’s religious conviction has led to any disadvantage imposed by the School. There is no evidence that she is stigmatised or compulsorily segregated in any way because of her religious conviction.

The claim for “indirect discrimination” also failed, because making out this claim required showing that there had been some “requirement” imposed on the person, and here the inclusion of the reference to God, and indeed recitation of any of the creed, was completely optional- see [147]-[150].

Comment

The decision seems eminently sensible. The way that the creed was administered showed a willingness on the part of the school to accommodate different views. On the evidence, no detriment to the student had been shown.

The case is consistent with another important decision alleging harm by way of “exclusion” from religious activities, the Victorian Tribunal decision in Aitken  v The State of Victoria – Department of Education & Early Childhood Development (Anti-Discrimination) [2012] VCAT 1547. There it was held that the fact that a child went to a “non-scripture” option while other students undertook “special religious instruction”, was not of itself a breach of religious discrimination laws. There was no “detriment” suffered in learning in a different classroom while other students engaged in SRI. (This decision was upheld on appeal: see Aitken v State of Victoria [2013] VSCA 28.)

These are important decisions. There seems to be a recent trend, evidenced in the sort of arguments put in the Camp decision, to suggest that a school must take responsibility for avoiding all kinds of “emotional harm” that a child may suffer. But this is to pitch the duty of schools far too high. All children need to learn that not everyone agrees with their, or their family’s, religious views. Far from causing them harm, such learning will help them grow in understanding and resilience. They will soon learn that there are a different opinions on a range of key issues about the meaning of life, the universe and everything. Not everyone agrees that “42” is the answer. Developing tolerance for other’s opinions, and the ability to discuss these ideas respectfully, are important life skills. In a society that values religious freedom and the right to change one’s religion (see the Universal Declaration on Human Rights, art 18), our children should be encouraged to learn about and discuss these matters, not precluded from doing so for fear that they will suffer some form of nebulous harm.

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