School Admissions and the Equal Status Act

I have written a short piece for the Irish Times concerning school admissions and the Equal Status Act.  The article has been published here.  I may in due course develop this into a longer article for a journal in which I can provide evidence for each aspect, and tease out the issues in more depth. 

Some extra points:

The Supreme Court case is Stokes v Christian Brothers High School [2015] IESC 13.

My article only discusses the main judgment in the case, agreed by three judges. It does not discuss the other judgment in the case, in which two judges found that the Supreme Court did not have jurisdiction to hear an appeal in a case such as this.

The Equality Authority appeared as amicus curiae in this case.  See the press release of the Irish Human Rights and Equality Commission (which replaces the Equality Authority). 

Aisling Twomey writes in the Irish Examiner about how travellers would thrive if they were given the opportunity. 

The earlier stages  are as follows:

• Equality Tribunal - DEC-S2010-056
• Teehan J., Circuit Court - [2011] IECC 1
• McCarthy J., High Court, 3 February 2012 - http://tinyurl.com/stokes-HC 

Commentary on the High Court stage:

• Olivia Smith, ‘Perpetuating Traveller children’s educational disadvantage in Ireland: Legacy rules and the limits of indirect discrimination’ (2014) 14 International Journal of Discrimination and the Law 145 (Sage Journals)
• Mel Cousins, "Travellers, equality and school admission in the High Court: Stokes v Christian Brothers High School Clonmel" - http://works.bepress.com/mel_cousins/22
• Page at Northern/Irish Feminist Judgments Project 

 I previously posted on travellers in County Clare and the Equal Status Act.

Travellers - Clare, Equal Status Act

In 2008 I blogged about a complex case in County Clare concerning travellers bringing claims under the Equal Status Act 2000.


Thanks to Stare Decisis Hibernia, I see that High Court judgment was issued in July - Clare County Council v Director of Equality Investigations [2011] IEHC 303.
 
The Council made various complaints about ongoing Equality Tribunal hearings, e.g. that the claim forms submitted were not adequately completed. Hedigan J. refused various orders sought by the Council and allowed the hearings to proceed. Hedigan J. stated: "In establishing the Equality Tribunal, the Oireachtas did not intend to create a complex system of adversarial decision-making. The procedures before the respondents are not to have the formality of a court case."


Hedigan J. appeared to approve of the call-over system which was used to establish which claimants wished to proceed with their cases. He also emphasised that the claimants were entitled to be respresented by a non-lawyer (Ms Heather Rosen) and that "allowances must be made for the fact that lay persons and representatives do not articulate complaints in the same way as professionally qualified advocates".
 

Travellers in Clare - Equal Status Act 2000

An interesting recent case under the Equal Status Act 2000:

Mongans v Clare County Council - DEC-S2008-039
http://www.equalitytribunal.ie/index.asp?locID=140&docID=1844

The facts are complex, but it involves a series of cases brought by members of the travelling community surrounding the service provided by Clare County Council arising from the travellers’ applications for housing and related accommodation needs and linked issues.

In an unusual move, the Equality Officer (sitting as the Equality tribunal) required that the travellers attend for a series of "callovers/hearings" which would take place on two particular days. When families did not turn up, even though their representative was present, the Officer decided that no prima facie evidence of discrimination had been provided and therefore that the claims failed.

The travellers were represented by Ms Heather Rosen, and the Tribunal went on to decide that Ms Rosen had obstructed and impeded its investigation and hearing of the cases. The Tribunal was of the view that Ms. Rosen had wilfully abused the Tribunal process and had sought to manipulate the manner in which she carried out her investigative and decision making functions. The end result was that Ms Rosen was ordered to pay expenses of €200 in the main case and a large number of similar cases. (See particularly Paras. 6.1 to 6.13).

The decision raises important procedural issues as to whether the Tribunal took sufficient account of the difficulty involved for a representative in gathering together a large number of claimants who are members of the travelling community for a callover/hearing. The whole idea of a "callover/hearing" seems strange in any event. There is a reference in the decision [para.4.5] to a tragic death of a young traveller woman having occurred close to the time of the callovers, but an adjournment only being granted in the case of close family members.

All in all, it seems unfortunate that the Tribunal did not proceed to a full hearing of the substantive issues and a large number of traveller families may well be left with the impression that the state apparatus is acting against them rather than facilitating their claims.

UPDATE ADDED IN 2011:
See also this posting on a subsequent High Court case.