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Posted by on Feb 22, 2013 in In the news, Law, Religion | 5 comments

Religious education upheld as legal in Victoria

Meanwhile, related to the previous post, an attempt to stop religious education in public schools has failed in the (Australian) state of Victoria. The case was brought on the basis that the system discriminates against children who are not religious. It originally failed in the Victorian Civil and Administrative Tribunal, and leave to appeal has now been refused by the Court of Appeal. Once again, part of the angst about the case appears to be the aggressively proselytising attitude that (so I hear) is now taken by organisations and individuals offering religious education programs. This is very different from the rather ineffectual “scripture” classes that I encountered at primary school and high school back in the 1960s and 1970s.

There is no constitutional separation of church and state at state level in Australia, so the case was not run on those grounds. It was pursued as a case of alleged discrimination, though I must say I always had doubts as to whether it could succeed in that form. However annoying the system might be to secular parents, I’ve never been convinced that their children were placed in a position of academic disadvantage (participation is voluntary, and nothing about the activity seems to be examinable or in any way a prerequisite to passing courses or being graded at any particular level).

Something appears to have been gained in that the education department amended its policy to make it more acceptable, at least in theory, to secular parents. However, it’s not clear to me what effect this will have in practice.

Once again, from a broad policy viewpoint there is no good argument for these sorts of classes in a public school system. That is fairly basic to secularism – why should the government of a secular country, or of one of its constituent states, be giving special opportunities to religious organisations? That, however, is not much of a legal argument, without more, in the absence of some kind of constitutional protection of secular arrangements. Other arguments have to be relied on, and the legal arguments on this occasion were dubious. A further appeal might be possible, but I doubt that it could succeed.

Nonetheless, I expect more and more challenges to the anachronistic arrangements whereby religious teaching is allowed in public schools. One way or other, the systems in the Australian states will have to adapt and change to reflect more modern ideas of the role of religion in society and religion’s relationship to political power.

  • Zardoz

    They should just introduce ethics classes as an alternative like NSW did. RE would die a natural death.

  • Jayel

    ” I’ve never been convinced that their children were placed in a position of academic disadvantage”

    RI/SRE is a non-curriculum activity conducted during curriculum learning time. This is also true for something like instrumental music lessons. The difference is that those children who chose not to participate in optional music lessons are not forced to twiddle their thumbs and forego curriculum learning time while any participating children are learning their instrument of choice. Quite rightly, those who have chosen to use their curriculum time for an optional activity are required to catch up to the rest of the class. Why should this be any different for RI/SRE? In this sense, I think there is an academic disadvantage, probably for all the children. My choice would be for it’s complete removal from the public school system, or for it to be substituted with comparative religious education (embedded in other curriculum subjects rather than time being specifically dedicated for that purpose). Barring that, the least they could do was shift it to non-curriculum time, such as before or after school, or during lunch time. Then let’s see how many really want to do it.

  • RussellBlackford

    Thanks for those comments, Jayel. Were you involved in the case? It’s good to talk to people who were, or who were affected by it.

    Unfortunately, what you describe is not much of a “disadvantage” from the viewpoint of the law (however annoying it may be). E.g. no one is going to fail their school year, or even get a lower mark than others, depending on whether or not they participated in these classes. If something like that had been so, the case would have been strong. Your religious beliefs, or lack thereof, would be creating an additional impediment to how you are assessed.

    I haven’t read the initial VCAT decision (perhaps I should), so I don’t know whether that was how the tribunal analysed it. All I know is that I’ve always struggled, with my lawyer’s hat on, to see that there was a very strong case that this was discrimination in the legal sense.

    Now, I’d totally agree that these sorts of classes are out of place in a public education system in a modern secular society. But unfortunately, that’s not justiciable as there is no constitutional separation of church and state at the state level in Australia (and of course even at federal level the High Court has read the relevant constitutional provision, s. 116, very narrowly as doing little more than banning the creation of an established church – the illegality of the chaplaincy scheme in the recent High Court case was based on a very different ground to do with the limits of Commonwealth spending without legislative backing).

    I don’t disagree with your policy preferences, though. But showing that they are mandated by law somehow is another thing. In the end, Zardoz may have the more effective practical approach. What do you think of what is happening up here (at an early stage) in NSW?

  • Jayel

    Hi Russell

    No, I wasn’t involved in the case, but I watched from afar with great interest. I realise that no-one is going to fail their school year or get a lower mark depending on whether they participated in RI/SRE (I keep referring to RI as well as that is what it
    is called here in Queensland [where time seems to run in reverse and we are now back in the dark ages]). Could it be argued, however, that by being prevented from doing curriculum work – during curriculum time, mind you -, that they might get a lower mark in a curriculum subject? I’m really just thinking out loud here and playing devil’s advocate. To be honest, I was venting my spleen in my first comment because I am mighty indignant that children who opt out are forced to kowtow to anachronistic legislation/policy directives which prevent them from learning during curriculum time, all because of this unfathomable privileging of religion. If people want religion, they can go their hardest – on their own time. It irks me no end when others are put out by people practicing/propagating a specific set of beliefs. I do understand that any judgments made about SRE/RI issues must be made by interpreting the law which, in this case, is the proverbial ass!

    Re ethics classes in NSW, I was initially fully supportive of the program as it does at least provide an alternative to religion and highlights the fact that belief in a
    deity/deities is not a prerequisite for morals and ethics. It is also interesting to note the desperation of some (I’m talking about someone who shares his name with a river and, perhaps more tellingly, a crocodile) who would seek to remove the program or at least keep it as hidden as possible. While acknowledging that ultimately the ethics classes, if demand can be met, may ‘push’ religion out of the schools, I am, however, also somewhat sympathetic to the argument that the ethics classes could inadvertently perpetuate SRE in a sense and do not address the issue of children being segregated along ideological lines. And while I am heartened to see there are people who would volunteer their time to teach the ethics classes, I’m not sure that having minimally trained people to deliver these classes is ideal, as is the case with the SRE/RI instructors.

    Re chaplaincy – don’t get me started!!!

  • RussellBlackford

    By all means vent about the chaplaincy issue!

    I don’t think the law is so much an ass in this instance – I just think it has a relatively limited role to play. The law isn’t really there to ensure good policy (and I hope it’s clear that I don’t consider the provision of devotional religion classes in public schools to be good policy) but just to impose some limits on what policies can be pursued. In particular, anti-discrimination law is not to ensure that no one is ever worse off as a result of a policy decision. It essentially says that people can’t be discriminated against, compared to others in certain defined classes of cases, that are considered especially socially invidious and worthy of legal interference in people’s decisions (or the requirements they impose on others).

    E.g. you can’t refuse to employ or promote someone on the ground that she’s female, or to serve someone in a pub on the ground that he’s an Aborigine, or to rent your flat to a couple on the ground that they’re not married, or to grade someone’s exam paper on the ground that he/she is of a particular ethnic background (assuming that the anti-discrimination law in the relevant jurisdiction deals with race, sex, marital status, and ethnic background, and that it covers decisions and requirements in employment, provision of goods to the public, housing, and education).

    The scripture classes don’t fit this paradigm neatly because it’s not at all obvious that the non-religious kids are suffering any real academic discrimination compared to the religious kids (it’s not as if what the religious kids are learning is part of the examinable curriculum). The religious kids learn about something that’s not examinable, while the non-religious kids get a free period, which some of them might even welcome. Neither set of kids gets instruction on anything that’s curriculum related during that period. The kids, or their parents, even get to decide which option they prefer.

    So this was always going to be a somewhat tenuous invocation of anti-discrimination law concepts, requiring a fair bit of ingenuity if it was going to succeed.

    I must read the actual case, though. Presumably it’s available on VCAT’s site and/or on the AustLII site.

    It might also be worthwhile writing a shortish post about anti-discrimination law, because I think it’s often not well understood (and also, that’s no wonder given how many extensions, modifications, and exceptions to the core concept there tend to be in any given jurisdiction).