HumanistLife

No, the European Court of Justice has not banned headscarves in the workplace

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Contrary to what many newspapers reported, the ECJ did not permit or issue a ‘Muslim headscarf ban’

Headline after headline after headline yesterday, from across the political spectrum, erroneously reported that the European Court of Justice (ECJ), the top court of the European Union, has ruled that bans on Muslim headscarves in the workplace can be legal. But this is not accurate and such headlines risk causing a huge amount of acrimony if, for example, employers try to bring in such bans when in fact they don’t have the law on their side.

To be fair to the journalists who wrote all the headlines, the ECJ press release on the matter is very confused. It starts off by simply saying ‘An internal rule of an undertaking which prohibits the visible wearing of any political, philosophical or religious sign does not constitute direct discrimination’. But it doesn’t define anywhere what direct discrimination means, and doesn’t talk about its sibling, indirect discrimination, until well into page two – and when it does, it’s fairly muddled in the language it uses. We at the British Humanist Association had to read it through about three or four times before we got our heads round it.

So, let’s try and clear things up a bit. Essentially in equality and human rights law there are two types of discrimination. Direct discrimination, as it relates to religion or non-religious beliefs, is where you have a policy that targets someone because of their religion or belief.

Indirect discrimination is where you have a policy that does not target someone because of their religion or belief per se, but it nonetheless puts individuals of particular religions or beliefs at a disadvantage, when compared to those of other religions or beliefs.

Yesterday’s ruling actually focussed on two different cases – one from Belgium and one from France. In both cases, the employer had a policy of not allowing employees to wear religious dress or symbols. This led to two Muslim employees wearing the headscarf to be fired. They then took the cases through the domestic courts and finally up to the European court.

Neither employer’s policy was deemed to target Muslims specifically, so it was not found to be direct discrimination. That seems to me to be correct.

However, indirect discrimination is not always unlawful. It can in fact be lawful where the discriminatory requirement can be said to be a ‘genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate.’

A clear example of this is a case heard at the European Court of Human Rights (ECtHR) in 2013, involving a nurse called Shirley Chaplin. She was wearing a cross around her neck, and her NHS Trust deemed that this posed a risk to her and patients’ safety in case ‘a disturbed patient might seize and pull the chain, thereby injuring herself or the applicant, or that the cross might swing forward and could, for example, come into contact with an open wound.’ Her Trust asked her to wear the cross on a pin instead. She refused and took a human rights case. She lost the case because it was found that her employer’s request that she wear the cross on a pin instead of a chain was a proportionate means of pursuing the legitimate objective of patient safety.

On the other hand, a case where an employer was found to have got it wrong was the case of Nadia Eweida, which was also determined at the ECtHR in 2013. She also wanted to wear a cross round her neck, and her employer, British Airways, said that this went against their uniform policy. This was deemed not to be a proportionate means of achieving a legitimate aim and so her claim of indirect discrimination was successful.

In yesterday’s two cases the ECJ made no ruling as to indirect discrimination. It set out the tests by which the indirect discrimination could possibly be lawful. This included the problematic concept that it might be okay to require no religious symbols in customer-facing staff, which seems to me to go further than the ECtHR ruling with Eweida did (and, Darren Newman has argued, is less likely to be seen by European courts as okay in a UK than in a French/Belgian laïcité framework). But it did not rule on the matter. Instead it remitted the question of legality back to the Belgian and French courts to decide, and merely speculated about possibilities of moving staff to different roles.

These two cases were decided under the European Employment Directive, hence they went to the European Court of Justice, whereas the two cases from 2013 were decided under the European Convention on Human Rights and hence they went to the European Court of Human Rights. But the indirect discrimination law is essentially the same in both sets of courts. So I find it hard to see how, given the 2013 decisions, the Belgian and French courts will be able to do anything but uphold the indirect discrimination claim (or if they do, how, if it then goes back to the ECJ, it will be able to do anything but likewise).

And even if the eventual ruling is against a claim of indirect discrimination, the ECJ remains just one of two legal avenues open to these two employees – they can also take an ECtHR claim. And I can’t see how the ECtHR can rule in a different way here to how it did in the Eweida case.

Headlines saying the ECJ has allowed employers to ban headscarves are premature at best and completely wrong at worst.

Our humanist High Court win changes everything – except, perhaps, the GCSE

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Yesterday the High Court ruled that the UK Government’s subject content on GCSE Religious Studies in English schools is unlawful. The ruling was as a result of a case brought by three humanist families, with support of the British Humanist Association (BHA). It reflects the views of 90% of respondents to the earlier consultation on the subject content, as well as the Religious Education Council and a wide range of RE academics, consultants, advisors, professors of philosophy and religious leaders.

The ruling focussed on paragraph 2 of the content, which reads ‘By setting out the range of subject content and areas of study for GCSE specifications in religious studies, the subject content is consistent with the requirements for the statutory provision of religious education in current legislation as it applies to different types of school.’ It was this paragraph that was deemed by the judge to be ‘a false and misleading statement of law, which encourages others to act unlawfully.’

Since the decision two erroneous narratives have emerged that it would be worth quickly debunking. One, pushed by the Department for Education, is that the ‘judgment does not challenge the content or structure of that new GCSE, and the judge has been clear it is in no way unlawful. His decision will also not affect the current teaching of the RS GCSE in classrooms.’ [Full stop.]

And the other is the countervailing narrative that the GCSE subject content needs to be rewritten and that this will be massively disruptive for exam boards, teachers, and students.

The problem with both of these narratives is that they are all about the GCSE, when the case wasn’t really all about the GCSE at all. It was about the rest of RE as a whole. Let me explain.

What the decision has done is firmly established the fact, based on the European Convention on Human Rights, that Religious Education (and not Religious Studies), outside of faith schools, must be neutral, impartial, objective and pluralistic. RE must treat the principal religious and non-religious worldviews in this country equally (other than Christianity, which could have a greater share of coverage). If a syllabus has a certain level of coverage of Islam, Hinduism, Sikhism, Judaism, and Buddhism, then it must now give similar priority in its level of coverage of Humanism. This clearly has big implications for agreed syllabuses, schools, and Academy chains in setting their RE curriculum content. (And while the case focussed on England, there’s no obvious reason why the ruling doesn’t also bite across the rest of the UK.)

Where the GCSE comes into it is that most routes through the GCSE content are not inclusive of non-religious worldviews, due to the decision of the Government to prioritise religions over non-religious worldviews in the content (because, in its words, ‘as these are qualifications in Religious Studies, it is right that the content primarily focuses on developing students’ understanding of different religious beliefs’). The consequence is that if a school just teaches the GCSE as the entirety of its key stage 4 RE (as is quite common), and in so doing it doesn’t major on those few bits of the GCSE content that are inclusive of non-religious worldviews, then it has failed in its RE obligation to be pluralistic in what it has taught.

But paragraph 2 ‘permits’, indeed ‘encourages’, in the judge’s words, schools and others to believe that just teaching the GCSE, even when not including any detailed non-religious content, is sufficient to meet schools’ RE teaching obligations as a whole at key stage 4. This is why paragraph 2 is ‘a false and misleading statement of law, which encourages others to act unlawfully’. The DfE now needs to rectify this (e.g. by amending paragraph 2, or otherwise making the situation clear such as through supplementary guidance).

And so we come back to why the DfE’s press statement is misleading – the DfE is guilty of a sin of omission. Yes, strictly speaking it is right that the content of the GCSE does not have to change (other than in the way I’ve just explained). But if your school is not a religious school, and it does not currently teach non-religious worldviews on an equal footing to the major religions, then the rest of your curriculum now needs to change. And this is a much more significant consequence than any changes to the GCSE might be.

(The countervailing narrative, meanwhile, that the GCSE will now need a major rewrite, is simply wrong. The DfE could choose to majorly rewrite the GCSE to make it inclusive, but the court hasn’t compelled it to and its own responses make it clear that it isn’t minded to do that.)

This is a change for the better: all the usual contemporary justifications for teaching about religions in the school curriculum – the contribution of such teaching to our cultural and historical knowledge, and its contribution to building mutual understanding and hence community cohesion – logically also apply to teaching about non-religious worldviews as well.

The British Humanist Association, for its part, is very much looking forward to working with schools, SACREs and agreed syllabus conferences to improve the inclusivity of RE in this area, for example through http://www.humanismforschools.org.uk/, our school volunteers programme, and in partnership with the 150 humanists who are members of SACREs across England and Wales.

For more information, the BHA has produced a fuller briefing clarifying what the decision said and its implications.

What did the ruling in the London Oratory case actually mean?

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On Friday in the High Court, Justice Cobb handed down the latest judgment in the long-running saga that is the legal dispute over whether or not the London Oratory School’s admissions policy complies with the School Admissions Code. The case started just over two years ago when the British Humanist Association submitted an objection, and the latest decision pertained to the legality of a determination issued by the Office of the Schools Adjudicator (OSA) that was issued last summer. The school challenged ten different aspects of that determination.

Some parts of the press reported the judge’s decision as a ‘win’ for the Oratory, with the school describing its challenge as ‘successful’ and its head quoted as saying that ‘The Judge’s decision supports us in continuing to preserve the School’s ethos and serving Catholic families throughout the whole of London.’ But a thorough reading of the decision leads us to three different conclusions:

  1. The judge’s decision was, in our view, wrong in several places.
  2. At any rate, the school actually has largely lost the case, only generally winning in places that do not mean it can change its admissions policy back to what it was before the whole saga started.
  3. And even in places where the school won, the decision was often that the OSA’s reasoning was flawed. This does not necessarily mean the OSA’s conclusions were wrong and in fact in a few areas the judge ruled that a fresh decision must be taken – i.e. the case is not yet over yet.

So the school has really won very little at all.

 

In total the school was found by the OSA to break the Admissions Code in 105 different places. The school only challenged a handful of these, leaving the vast majority unperturbed. The main impetus for the school’s challenge was the decision that the school could no longer have a ‘Catholic service criterion’ as part of its admissions arrangements. This required three years of service to the Catholic church or other associated activities, with priority given on the basis of things like flower arranging. This was found to be uncompliant with the Code for a number of different reasons, including paragraphs 1.9e) (giving priority on the basis of practical support to a religious organisation), 1.9i) (taking into account religious activities not laid out as permitted by the school’s diocese), 1.8 (unfairly discriminating on the basis of ethnicity and social background) and 1.38 (not having had sufficient regard to the diocesan guidance).

In judicially reviewing the OSA’s decision, the school did not even challenge the finding with respect to paragraph 1.9e), so never had any hope of getting a ruling that fully contradicted the OSA’s decision in this area. On top of that, the school lost its challenge under paragraph 1.9i). This means that the main areas where the school won actually will have no impact on its admissions criteria: in effect it still has to change them in the way the OSA determined last year.

So we can see already that in the vast majority of cases, including with respect to the ‘Catholic service criterion’, the decision taken against the school has already been found to stand.

Beyond that, it is worth going through each of the school’s ten areas of challenge, with our three conclusions in mind.

(1) Failure to ‘have regard’ to the Diocesan Guidance

Paragraph 1.38 says that ‘Admission authorities for schools designated as having a religious character must have regard to any guidance from the body or person representing the religion or religious denomination when constructing faith-based oversubscription criteria’. The OSA found that the School had broken this, in part because ‘paragraph 1.38 is given greater force in relation to faith-based oversubscription criteria generally by paragraph 1.9i of the Code’, which says that the school must not ‘prioritise children on the basis of their own or their parents’ past or current hobbies or activities’, except when taking account of religious activities, as laid out by its diocese. If the school had properly had regard to the guidance, it would not have broken paragraph 1.9i).

In reaching his determination on this issue, however, Justice Cobb did not mention the role of 1.9i) at all (only considering it later under the school’s third challenge) and instead only focused on 1.38 and the meaning of ‘have regard to’, going through a range of relevant case law. Here he found that the OSA applied a too stringent test (in deciding that any reason for departing from the guidance must be ‘good’ and ‘compelling’), and therefore, while finding that ‘the School’s approach to the relevant test was also flawed’, he concluded that the OSA had not correctly found that 1.38 had been broken.

As a result he ruled that there will ‘need to be a further determination of the School’s approach to the Diocesan Guidance, its compliance with para.1.38 of the Admissions Code, and the adequacy of the reasons for departure, applying the appropriate test.’ So the school has not yet won here but only triggered a further case.

(2) Socio-economic discrimination

Paragraph 1.8 of the Code says that ‘Admission authorities must ensure that their arrangements will not disadvantage unfairly, either directly or indirectly, a child from a particular social or racial group.’

The London Oratory School is highly socio-economically selective. As we wrote in our paper which we submitted to the case in May 2014, the January 2013 School Census records that 6.6% of pupils are eligible for free school meals, compared with 38.7% in its middle super output area (i.e. immediate vicinity), 40.8% in the neighbouring MSOAs, 42% in its local authority, and 26.1% across London as a whole. The Fair Admissions Campaign’s map ranks this disparity between the school and its area as making it the ninth most socio-economically selective state secondary school in England.

Justice Cobb, however, starts off by agreeing with the adjudicator that there is ‘some inherent social selection of school candidates within the Catholic population as a whole’, before going on to find that ‘the data relied on by the School showed that six of the eight schools with similarly high percentages of Catholic pupils had similar levels of pupils entitled to free school meals to the School’. This, surely, simply shows that such discrimination is common amongst oversubscribed Catholic schools.

However, Justice Cobb also found that the adjudicator did not show that it was the faith-based oversubscription criteria that were causing this discrimination, nor that it was unfair. It seems to me to be quite obvious that if we first agree there is ‘some inherent social selection of school candidates within the Catholic population as a whole’, and then we select Catholics, then that faith-based selection is going to cause socio-economic discrimination. But no matter: the more significant point is that the decision did not address per se the conclusion that the school is socio-economically advantaged. It unambiguously is. It only found that the case had not been properly set out.

Finally, the school also argued that it was unfair that it had not seen the adjudicator’s evidence around socio-economic advantage prior to the determination. The judge agreed with this. I do not agree: 1. The BHA submitted such evidence during the course of the case, which the school chose not to look at; and 2. At any rate it is easily available in the public domain. The school should have been aware of these statistics; that it was not was negligent on its part.

(3) Catholic Service

To reiterate, paragraph 1.9i of the Code says that the school must not ‘prioritise children on the basis of their own or their parents’ past or current hobbies or activities’, except when taking account of religious activities, as laid out by its diocese. The judge correctly rejected the school’s challenge to the finding that the ‘Catholic service criterion’ breaks this paragraph. This essentially means that the success of challenges 1 and 2, above, are symbolic victories.

It is worth noting that the judge incorrectly states that the OSA ‘declined to state whether this criterion also breached para.1.9(e)’, when in fact the adjudicator did find that this paragraph was also broken.

(4) Catholicity: Parent or Parents

The fourth challenge by the school was to the OSA’s finding that its arrangements were unfair in requiring two Catholic parents to both be religiously observant.  The judge agreed with this finding with respect to the school’s 2014 admission arrangements. But he disagreed with respect to the 2015 arrangements due to the new statement in the 2015 arrangements that references to ‘parents’ should be read as ‘to one parent if the child resides with only one of the parents’. But this new statement does not deal with the case where the child has two Catholic parents but only one is observant: this child/observant parent is put at a disadvantage to a child who only has one Catholic parent. The judge got this wrong in a way that threatens the widely established principle that ‘faith’ schools can only require one parent to be religiously observant, something that is a very basic question of fairness. The Code might now need clarification.

(5) Request for parents’ baptismal certificates

The school asks for parents’ baptismal certificates. The OSA said that this breaks paragraph 2.4 of the Code where it says that the school must not ask for ‘any personal details about parents and families, such as maiden names’ – as maiden names will be revealed by baptismal certificates. But the judge ruled that 2.4 ‘is not to be read in such a way that would place a Governing Body in the position of being unable to apply a legitimate oversubscription criterion in practice just because it was prevented from requiring the necessary evidence’ – and therefore the request could stand. I do not agree that this is a correct reading of 2.4 and think the Code could now do with being clarified.

However, the judge also writes that this part of the decision is dependent upon the ultimate outcome of challenge (1) above, i.e. ‘is dependent on a future finding that there is a clear and proper reason for departing from the Guidance in these respects’ – as if the school did not have good reason from departing from the diocesan guidance in this area, then the oversubscription criterion is not legitimate so paragraph 2.4 does in fact apply. So this is only a preliminary finding.

(6) Previous Catholic education

In its arrangements the school gave priority to those attending Catholic primaries in 2014, and then those having received a Catholic education (including through primaries) in 2015.

Paragraph 1.9b) says that schools must not ‘take into account any previous schools attended, unless it is a named feeder school’. Paragraph 1.15 adds that ‘The selection of a feeder school or schools as an oversubscription criterion must be transparent and made on reasonable grounds.’ The school was found to break both of these paragraphs of the Code.

The judge upheld the decision with respect to 1.15, but overturned it with respect to 1.9b) on the basis of the reasoning that ‘the primary information sought from the candidate’s parent(s) is whether the candidate has attended a Catholic School (not which school), even though the name of the school is requested as proof of that education’. This seems to me to be an extremely strange reading of 1.9b) – taking into account a type of school (e.g. all Catholic schools) is still taking into account previous schools attended, even if the specific individual schools are not taken into account. Perhaps the Code now needs clarifying in this area.

The judge also writes that ‘there is no prohibition within the Admissions Code… upon a Governing Body asking the name of previous schools’. But paragraph 2.4 says that schools must only ‘request additional information when it has a direct bearing on decisions about oversubscription criteria’. So in fact there is such a prohibition.

At any rate, this is again a departure from the diocesan guidance, and the judge again writes that this part of the decision is dependent upon the ultimate outcome of challenge (1) above, i.e. ‘is dependent on a future finding that there is a clear and proper reason for departing from the Guidance in these respects’. So again this is only a preliminary finding. But what is more the school sought to justify its taking into account Catholic education by reference to canon law. Therefore such consideration plainly falls under the remit of paragraph 1.9i). It is not laid out as permitted by the diocese for a school to take into account Catholic education as a religious activity. This fact is not discussed in the judgment and could well be grounds for a future successful challenge to the school’s admissions arrangements, if such a criterion continues to have a place in them.

(7) Choristers

(8) Statement of ‘Medical and social need’ on Religious Inquiry Form

(9) Parents’ signature(s)

These three challenges concerned points of clarity and the judge concluded that the OSA’s determination was fine. However in the third (allowing two parents to sign the form) he wrote that the adjudicator’s determination ‘verges on the pedantic’. I do not agree: as a matter of fairness it is important that schools make clear throughout that only one parent is considered in religious oversubscription criteria.

(10) Consultation on admissions criteria

The last issue related to whether or not the school consulted parents of 2 to 18 year olds, which is required by the Code and regulations. The OSA wrote that the school had ‘no evidence … which … constitutes a meaningful attempt to bring the school’s proposed arrangements to the attention of the group in question’. The judge did not agree with this, and so quashed this part of the decision, but did agree that insufficient steps had been taken and so rejected the school’s reasoning. This therefore is a partial victory for the school at best.

Conclusion

As can be seen, therefore, in almost every case where the school won, the victory was partial, temporary, and/or of no practical consequence. In this light the school’s statement that the judgement was a great victory on its part was erroneous. This fact should be reflected in its subsequent admissions arrangements.

In April, the BHA published three whistleblowers’ allegations about Park View School. How many of them are now proven?

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Here Joe Moss and Richy Thompson compare and contrast what was alleged about Park View School in January and what was found to be the case this week…

Peter Clarke’s extensive report for the Department for Education into the ‘Trojan Horse’ allegations was released on Tuesday, and found ‘co-ordinated, deliberate and sustained action, carried out by a number of associated individuals, to introduce an intolerant and aggressive Islamic ethos into a few schools in Birmingham.’ The report highlights the role of the British Humanist Association (BHA) in January facilitating three whistleblowers to make complaints to the Department of Education, regarding standards and the state of staff and student welfare in Park View School, over a month before the ‘Trojan Horse’ letter was mentioned in the press. In April we published most of their claims, which we summarised as ‘inequality and gender discrimination, homophobia, alleged extremist views, creationism, bullying, and unfair employment and disciplinary practices’. The majority of these issues had not been publicly aired at the time; today we can see which allegations have been confirmed in the Clarke Report.

  • Creationism within Science

Our whistleblowers claimed that ‘Creationism and intelligent design have been taught in science lessons by at least one science teacher.’ The Clarke Report says that ‘Evolution is mentioned only briefly and students are simply directed to the page in the textbook. A teacher who did this went on to tell students that they were looking at the textbook merely to comply with the syllabus but that “that was not what they believed”… Staff have said that creationism has been taught as fact in science lessons and in assemblies at Park View School. A member of staff at Park View reported that pupils had said: “I’m made of clay[…]There is no evolution. I’m made of clay because that is what Mr Hussain [the acting headteacher] told us in assemblies”.’

  • Sex education worksheet about consent within marriage

Our whistleblowers claimed that ‘There have been rumours that in sex and relationships education (SRE) lessons given by the same teacher that boys were told that “girls must obey their husbands” and that ‘”wives are not allowed to say ‘no’”. A worksheet was handed out to year 11 boys with a section “The Wife Obeying Her Husband”, which says ‘A woman must obey her husband as long as he does not tell her to perform any haraam (unlawful) acts…’

The school strenuously denied that this worksheet ever existed, but Clarke found that ‘[SRE] lessons for boys centred on the rights of men and women within marriage. On the lesson worksheets it was written that if a woman said ‘No’ to sex with her husband, the Angel Gabriel would strike her down and condemn her to an eternity of hell. Following these lessons, there was commotion in the corridors, with boys telling girls that they couldn’t refuse them and saying “We have been told this”. An assembly following the lessons was supposed to put right the SRE teaching but again the boys were in effect told that “this is what it says in Islam but it is different in the eyes of British society”. Staff reported that one of the teachers who gave the lessons said: “Luckily we were able to hide all the controversial worksheets very, very quickly and managed to get rid of all of them between the two Ofsted inspections”.’

  • Students demonstrating positive views regarding 9/11 and 7/7, and no soldiers visiting the school

Clarke’s report makes no mention of 9/11 or 7/7 but does note some teachers claiming that the Boston bombings and the murder of Lee Rigby were ‘hoaxes’ in social media conversations between different staff.  There is also a conversation where several teachers disparage the British armed forces, including the charity Help for Heroes.

  • ‘Homework’ to convert non-Muslim staff

Our sources alleged that ‘In RE, pupils were given a list of non-Muslim members of staff and set homework to try and convert them.’ This hasn’t been found, although our own research pointed to a number of concerning aspects of the RE syllabus, which seemed to be taught from an Islamic perspective, and the report found that ‘Only modules in Islam are studied from Years 9 to 11.’

  • Compulsory prayers

Our whistleblowers alleged that ‘The school has legally determined to have Islamic instead of Christian collective worship, with students sitting segregated side-by-side based on gender. It has also encouraged students to pray by putting posters up in school corridors. Some of these read ‘If you do not pray you are worse than a Kafir’ (i.e. non-Muslim). There is a call to prayer every lunch time.’

The Clarke Report pointed out that it has been alleged that ‘an assembly where pupils were told that if they did not pray they were worse than a kaffir (a derogatory term for non-Muslims), supported by a poster with the same message’, and ‘We have been told by staff at Park View that a tannoy to broadcast the ‘adhan’, the Muslim call to prayer, was installed. It could not only be heard across the whole school site, but also by residents in the local community, and was used every day to call students and staff to prayer. However, it was switched off immediately before Ofsted visited the school and also on the days when the Department for Education and Education Funding Agency officials visited. I was informed that a member of staff at Park View used a microphone from a high window to shout at students who were in the playground, not attending prayer. Some girls were embarrassed when attention was drawn to them because girls who are menstruating are not allowed to attend prayer. But still, the teacher called to them.’

  • Segregation by gender

It was alleged that ‘Certain male teachers expect boys to be at the front of the class and girls at the back, and ignore girls when they want to answer a question.’ Indeed, Clarke found that ‘In Park View maths lessons, where all the teachers are men, the girls were separated at the sides and back of the classroom, while the boys sat in the centre, towards the front. In many other subjects, students sat on different tables with boys and girls segregated. Single sex classes exist across the entire age range in PE, RE and PSHE at Park View.’

With regard to PE, it was alleged that ‘Girls are not allowed to take part in PE or sport activities with boys, even non-contact sports or where a male coach is present, the reason given for this being it makes male Muslims feel uncomfortable.’ The Clarke Report found that ‘The Park View girls’ tennis team was taken to a local schools’ tournament by PE staff after school. When they arrived they found men present. The teacher had to return the girls to school and was suspended by governors until she had written a letter of apology. When interviewed, Mr Hussain explained to me that the girls had to return to the school because it was tennis “coaching”, where there would inevitably be physical contact between the male coaches and the female pupils.’ The Council’s report also cited ‘curtains being fitted in the sports hall for girls’ PE lessons’.

  • Other discrimination against women

It was also alleged that ‘Members of staff have shown prejudice against girls not wearing a headscarf, with some girls being forced by staff to do so. If a boy and girl are seen together more than once parents are called in.’ Clarke found that ‘At the recent Year 11 Prom, staff report that they were surprised to see the girls arriving with their heads uncovered. They expected them to be covered, as they had been at school, and realised that this was really their normal way of dressing. Girls at Park View complained to staff that their parents are too readily contacted if they are seen speaking to a boy. They also say that conclusions are drawn about conversations which are completely unfounded. They feel that they are being harassed.’ He also said that prefects are allegedly expected to ‘report to the headteacher the names of staff and students who exhibit behaviours which are deemed unacceptable by conservative Muslims. These include behaviours such as boys and girls talking to each other or touching each other; boyfriend and girlfriend relationships’. And he included instant messages between teachers discussing how to better segregate pupils.

Finally, it was alleged that ‘Female members of staff and pupils are often treated as inferior by male Muslim staff members. Complaints about this behaviour are not taken seriously.’ Clarke found that ‘Inequalities for female staff include lack of progression and promotion, lack of opportunities for training, attacks on their manner of dress and being ignored or disrespectfully treated by senior male staff and governors. Female pupils also suffer inequalities.’

  • Unchallenged homophobic views

It was alleged that ‘Many pupils have expressed homophobic views and these are not challenged… teachers who have wanted to try and address the homophobia have been told they are not allowed to.’ Clarke reports on Park View governors expressing ‘Openly homophobic views’ at meetings whilst social media messages between teachers at the school were both unchallenged and derogatory, referring to those supporting same sex marriage as ‘animals’ with ‘satanic ways’ and seeing the acceptance of LGBT couples as ‘a sign of the end times.’ ’Senior staff have been shouted at in governing body meetings when they attempted to discuss the LGBT agenda. Male and female staff have reported that they have to hide their sexuality. Students say that their teachers do not talk to them about such matters.’

  • Sexual health

It was alleged that ‘The school nurse is not allowed to discuss sexual health issues with pupils.’ Clarke did not report on this matter. But below you can see two posters – one provided by the Department for Education for schools to use to advertise their nursing services, and one from Park View School in 2012. It’s not hard to spot the difference.

School-Nurse-publicity-YP-version-PRESS-final-21st-of-aug-page-001 2014-05-16 18.55.49 (1)

  • ‘Cheating’ during Ofsted inspections

The original allegations made claim to the fact that schools were cheating in Ofsted inspections by ‘telling children answers in Urdu’ which they would then repeat in English to the inspector, or deliberately teaching about religions other than Islam whilst inspectors were in the school. Clarke’s report does not cite these examples but does make reference to other allegations for example about the SRE worksheets being hidden, the call to prayer tannoy being switched off, and that at Golden Hillock ‘Staff state that senior leaders checked their classrooms and removed Islamic display materials before the Department for Education visited.’

  • Improper handling of staff recruitment and issues

In April, our original allegations included the promotion of friends and relatives of governors and the appointment of male Muslim teachers with extreme views, with jobs not advertised to other interested staff or the general public as a whole. Further, staff who complained or had issues with the school had investigations brought against them leading to resignations. Clarke’s report extensively corroborates all of these issues, making note that there was evidence of staff harassment and bullying, as well as certain positions being unfairly filled by people who knew the governors and by people with certain views.

Conclusion

These are distressing allegations. Clarke’s report largely confirms the initial claims made by our whistleblowers, with conservative Muslim practices being taken to an extreme within Park View School, creating a volatile environment for both staff and students in which science, RE and sex education are improperly taught and a culture of harassment and bullying exists. In such a climate, the initial whistleblowers who brought this issue to the attention of the BHA who passed it on to the DfE, and Ofsted, and who subsequently worked with us to speak out across the media to the wider public, should be commended for the bravery of their actions, especially given the risks to their careers and reputations they faced in bringing the scandal to light. Their actions have led to a widespread inquiry into the nature of teaching and management in Britain’s state school sector, and will have a lasting impact on the sector for years to come.

Ten facts about ‘faith’ schools

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One third of state-funded schools in England are legally designated with a religious character. Here are ten facts about what that means.

1. Most don’t have to teach about other religions in Religious Education

The majority of ‘faith’ schools are required to teach religious education ‘in accordance with the tenets of the religion or religious denomination’ of the school. In other words, it’s up to the religious body as to what is taught (or not taught) in RE and if a school just wanted to teach about one religion only then it can legally do so. This is compounded by the fact that ‘faith’ schools have an exemption from the Equality Act 2010 when it comes to the curriculum and also the fact that their RE provision is not directly inspected by Ofsted (see no 4 below).

To be more specific, there are two ‘models’ of ‘faith’ school – the voluntary aided model and the voluntary controlled model.  Religious Voluntary Aided schools, Free Schools and sponsored Academies follow the voluntary aided model while religious Voluntary Controlled and Foundation schools follow the voluntary controlled model. Religious converter Academies stick to the model they followed prior to conversion.

Over three fifths of ‘faith’ schools follow the voluntary aided model (including all Catholic, Jewish, Muslim, Hindu and Sikh schools and about 45% of Church of England primaries and 70% of Church of England secondaries). Only some Church of England, Methodist and generically Christian schools follow the voluntary controlled model.

Schools with no religious character and those religious schools following the voluntary controlled model must follow an RE syllabus that ‘reflect[s] the fact that the religious traditions in Great Britain are in the main Christian whilst taking account of the teaching and practices of the other principal religions represented in Great Britain.’ But as we said at the start, schools following the voluntary aided model can teach faith-based RE.

In our experience most ‘faith’ schools do teach about other religions – although we do occasionally see exceptions. And non-Anglican/Methodist ‘faith’ schools do often offer GCSEs that only include modules on their particular faith, for example a Catholic theology GCSE or a GCSE only studying Islam.

2. When they do teach about other religions, they often don’t teach about them properly

Following on from the previous point, there is no requirements attached to how exactly RE is taught. Recent Government guidelines on RE such as the 2004 subject framework and the 2010 guidance are non-statutory but at any rate are targeted at schools with no religious character and those following the voluntary controlled model not the voluntary aided model. The RE Council’s 2013 curriculum framework does say that ‘all types of school need to recognise the diversity of the UK and the importance of learning about its religions and worldviews, including those with a significant local presence’ – but again this is non-statutory and the guidance is primarily not for schools following the voluntary aided model.

Instead what ‘faith’ schools following the voluntary aided model can do is teach that the faith of the school is literally true and that all other beliefs are false. Indeed, the 2013 framework says that ‘The REC recognises that in schools with a religious character, there is likely to be an aspiration that RE (and other aspects of school life) will contribute to pupils’ faith development.’

Furthermore, in its policy document Christ at the Centre the Catholic Education Service says ‘The first key reason why Catholic schools are established, then, is to be part of the Church’s mission in education, to place Christ and the teaching of the Catholic Church at the centre of people’s lives. “Education is integral to the mission of the Church to proclaim the Good News. First and foremost every Catholic educational institution is a place to encounter the living God who in Jesus Christ reveals his transforming love and truth.”[Pope Benedict XVI, 2008] This evangelising mission is  exercised  through  the  diverse  interaction  of  Catholic  schools  with  their  local  parishes, families, societies and cultures they serve.’

And the Church of England has produced two major reports on its schools this century – the Dearing Report and the Chadwick Report. The 2001 Dearing Report says that ‘The Church today still wishes to offer education for its own sake as a reflection of God’s love for humanity. But the justification for retaining and aspiring to extend its provision, as recommended in this report, cannot be simply this, when the state is willing to provide as never before and when there are so many calls on the Church’s limited resources. It is, and must be, because that engagement with children and young people in schools will, in the words of the late Lord Runcie when he was Archbishop of Canterbury, enable the Church to: “Nourish those of the faith; Encourage those of other faiths; Challenge those who have no faith.”’

Meanwhile the 2012 Chadwick Report cites as a ‘key premise that appl[ies] equally to children of the faith, of other faiths and of no faith’ to ‘Work towards every child and young person having a life-enhancing encounter with the Christian faith and the person of Jesus Christ’.

3. They don’t have to teach about non-religious people and beliefs

Following on from the fact that schools following the voluntary aided model don’t have to teach about other religions, similarly they don’t have to teach about non-religious beliefs either.

Actually many schools with no religious character don’t do this either. We think that equality and human rights legislation means that the legal requirement for RE syllabuses to include Christianity and ‘other principal religions’ also means that the syllabuses should include non-religious worldviews as well. This is increasingly common and the 2013 RE curriculum framework put non-religious worldviews on an equal footing to the principal religions. When such a high proportion of young people are not religious, this inclusion is vital. But at the same time, some areas such as Birmingham refuse to include any teaching about non-religious beliefs in their syllabus (other, perhaps, than purely to act as critiques of religions).

Turning to ‘faith’ schools, our experience is that many Church of England schools do include non-religious worldviews – particularly where those schools decide to teach the same RE syllabus as is taught in local schools with no religious character, for example in the Diocese of Wakefield.

But a number of CofE schools and many others too do not include teaching about non-religious worldviews in their own right, perhaps only including them as challenges to religion(s) or not including them at all. We have already quoted the Church of England’s Dearing Report setting out Anglican schools’ aim to ‘challenge those who have no faith’. Against this backdrop it is hard to argue that such schools teach about non-religious beliefs properly.

4. Their RE teaching isn’t even inspected by Ofsted. The religious bodies inspect it themselves

Schools are inspected under section 5 of the Education Act 2005. But this says that ‘An inspection which is required under this section must not extend to— (a) denominational education, or (b) the content of collective worship which falls to be inspected under section 48.’

In other words, faith-based education of the sort given in schools following the voluntary aided model is not inspected by Ofsted. Instead, as section 48 of the Act specifies, it is inspected by ‘a person chosen… by the governing body’. In practice this means dioceses for Church of England, Roman Catholic and Methodist schools, and for other faiths it is typically the relevant national religious organisation. What is more, the state pays the religious body to carry out these inspections.

For Anglican and Methodist schools, the inspection is carried out under the ‘SIAMS’ framework. One question asked is ‘How effective is the Religious Education? Within the context of a distinctively Christian character’. This does include a grade descriptor asking ‘To what extent does RE promote community cohesion through an understanding of and respect for diverse faith communities?’ But non-religious beliefs are not included and another grade descriptor asks ‘To what extent does RE promote the distinctive Christian character of the school?’

When Ofsted inspects ‘faith’ schools following the voluntary aided model it will sometimes look at RE lessons as part of its overall assessment of teaching and learning – so in this sense the subject can be indirectly looked at. But it does not inspect or report on the subject specifically (indeed such schools were explicitly excluded from the last subject-specific report on the basis that ‘separate inspection arrangements exist’) and would not mark a school down for teaching from a faith-based perspective or failing to include non-religious beliefs.

5. ‘Faith’ schools do not have to provide much in the way of sex education and can choose to only teach abstinence until marriage

There are very few requirements on any schools in terms of what they must teach about sex education. Maintained schools (i.e. state schools other than Academies and Free Schools) have to follow the national curriculum, which in Science includes puberty and the biological aspects of reproduction. Maintained secondary schools also have to, at a minimum, teach sex education that includes education about sexually transmitted infections, HIV and AIDS. But beyond that there are only requirements to have regard to guidance on the matter and to publish policies.

And Academies and Free Schools only have to have regard to guidance.

This means that a school could, if it wishes, choose to take an approach of only teaching an abstinence until marriage, instead of providing full and comprehensive sex and relationships education that includes teaching about relationships, consent, the advantages of waiting for sex, contraception, abortion and issues related to sexual health other than STIs. The evidence shows that full and comprehensive SRE is what leads to the best outcomes in terms of ensuring that relationships are consensual, preventing unwanted pregnancies, preventing abortions and preventing STIs. So taking an abstinence only approach is unhelpful.

We regularly hear from people who say that they were taught through an abstinence only approach. We also occasionally see issues with respect to religious schools’ approach to teaching about abortion, contraception, sexual orientation and same-sex marriage.

6. Some religious schools have extremely complex admissions policies

The School Admissions Code says that schools must not ‘give priority to children on the basis of any practical or financial support parents may give to the school or any associated organisation, including any religious authority’ or ‘prioritise children on the basis of their own or their parents’ past or current hobbies or activities’. However many high profile ‘faith’ schools have this year been forced to change their admissions policies after taking into account activities such as ‘Bell ringing’, ‘Flower arranging at church’, ‘Assisting with collection/counting money’, ‘Tea & coffee Rota’, ‘Church cleaning’, ‘Church maintenance’, ‘Parish Magazine Editor’ and ‘Technical support’.

In fact the Catholic Diocese of Brentwood’s priest’s reference form asks parents, ‘If you or your child participate or contribute to parish activities, you may wish to indicate below.’ In other words, every Catholic school in the diocese is currently gathering examples of this kind of activity. This breaks the Code either because it is being taken into account or because it is being asked about needlessly.

Furthermore, since the London Oratory School was told to remove its ‘Catholic service criterion’ (where parents could get two points towards entry for three years of activities such as flower arranging) there has been a looming threat that the school will judicially review the decision.

Meanwhile, one Jewish girls’ school in Hackney specifies that ‘Charedi homes do not have TV or other inappropriate media, and parents will ensure that their children will not have access to the Internet and any other media which do not meet the stringent moral criteria of the Charedi community. Families will also dress at all times in accordance with the strictest standards of Tznius (modesty) as laid down by the Rabbinate of the Union of Orthodox Hebrew Congregations.’ – before giving priority in entry to ‘Charedi Jewish girls who meet the Charedi criteria as prescribed by the Rabbinate of the Union of Orthodox Hebrew Congregations.’  This doesn’t seem to us to be a sensible basis on which to decide who does and does not gain entry to a state funded school.

7. They can turn down children whose parents don’t share the school’s religion, no matter where they live

‘Faith’ schools that are voluntary aided, foundation, Academy or Free Schools set their own admissions policies, whereas voluntary controlled schools have their admissions policies set by their local authority.  Again they have an exemption from the Equality Act 2010 when it comes to discrimination in school admissions. The result is that many schools can – and do – give preference to those of a particular faith over others in their admissions. They can only do this if sufficiently oversubscribed, Free Schools can only do so for up to half of places, and only about a quarter of local authorities allow some of their Voluntary Controlled schools to select.

Last year the Fair Admissions Campaign looked at the admissions policies of every religious secondary school in England. In total it found that 99.8% of places at Catholic schools, 100% of places at Jewish schools and 94.9% of places at Muslim schools were subject to religious selection criteria. At Church of England schools only 49.7% of places were subject to such criteria – but if you only focus on CofE schools that are in no way selected in terms of how much they can select (for example because they are VC schools) then the figure rises to 68%.

In total the Campaign estimated that some 1.2 million places are subject to religious selection criteria. This is a quarter more than the number of places in grammar, private and single-sex schools combined.

The problem is particularly acute in some parts of the country. For example, in Kensington and Chelsea, some 60% of secondary places are religiously selected. In Liverpool it’s around half.

8. Priority is often given to other religions over the non-religious

In our experience, a typical Catholic school priority list goes:

1. Catholic
2. Other Christian
3. Other faith
4. Distance from school – which, of course, means non-religious people.

That schools are allowed to prioritise those of other faiths over others is justified on the basis that ‘It would, for example, allow a Church of England school to allocate some places to children from Hindu or Muslim families if it wanted to ensure a mixed intake reflecting the diversity of the local population.’ However, this kind of admissions policy is extremely rare in practice. Much more common is putting those of no religion below those of religions other than that of the school. Voluntary aided model Church of England schools also frequently engage in this practice.

9. Most ‘faith’ schools can require every single teacher to share the faith of the school

The Equality Act 2010 has provisions that prevent discrimination by employers against employees. But there is an exemption from the Act to allow ‘faith’ schools, uniquely, to discriminate much more widely. In the case of those three-fifths following the voluntary aided model, this means that every single teacher can legally be required to share the faith of the school. For the rest it means for up to a fifth of staff.

How much does this happen in practice? Catholic schools are an interesting case in point. The Catholic Education Service’s stats show that not every teacher in a Catholic school is a Catholic. But their standard teacher application form asks applicants to give their ‘Religious Denomination / Faith’, adding ‘Schools/Colleges of a Religious Character are permitted, where recruiting for Teaching posts, to give preference to applicants who are practising Catholics and, therefore, one [referee] should be your Parish Priest/the Priest of the Parish where you regularly worship.’

And in their policy document, the CES says that ‘Preferential consideration should… be given to practising Catholics for all teaching posts and for non-teaching posts where there is a specific religious occupational requirement, i.e., chaplaincy post. In England and Wales statutory provision allows for such preferences to be made.’ In other words, the advice is that Catholic schools should only hire non-Catholics for teaching roles if a Catholic cannot be found. This could be for maths teachers, PE teachers, science teachers or any other role.

(Incidentally, ‘faith’ schools’ broad ability to discriminate in this way is possibly a breach of the European Employment Directive, which limits the extent to which schools can discriminate to where it can be said that there is a genuine occupational requirement (GOR). An example of a GOR is requiring a priest to share the faith of his or her church. There cannot possibly be said to be a GOR on every teacher at a school. For this reason, in 2010 we complained to the European Commission and said that UK law is in breach of European law in allowing such widespread discrimination. In 2012 the Commission took this up as a formal investigation.)

10. Until recently, if a science exam question conflicted with a religious belief, the question could be removed

Last year a state-funded and one independent Charedi Jewish school were found to have been blacking out exam questions on evolution in its GCSE science exams. The state school claimed that the practice of censoring questions had ‘successfully been in place within the Charedi schools throughout England for many years’. Most worryingly, when this came to light, Ofqual and the exam boards initially decided to support the practice.

However, after public pressure, Ofqual and the exam boards thankfully decided to reverse their previous decision and the practice is now banned.

More generally we do occasionally see concerns about the teaching of evolution or creationism in state schools – and the problem is widespread in private schools, many of which are getting state funding through their nurseries.

How are the schools funded?

Voluntary Aided schools have 100% of their running costs and 90% of their building costs met by the state, with the remaining 10% building costs being paid for by the religious organisation. But this comes to about 1-2% of the schools’ total budget and so is typically fundraised off the parents in much the same way that all schools fundraise. Furthermore it is waived for big building projects (through both the Building Schools for the Future and Priority School Building Programme schemes). And other types of ‘faith’ school do not have to pay a penny – including Academies which have converted from being Voluntary Aided.

Conclusion

In sum, these religious schools are virtually 100% funded by taxpayers, even though 58% think they should not be and 70% think we shouldn’t be funding the promotion of religion in schools at all.

Not all religious schools discriminate in all of the ways we have set out. But the fact that some of them do so must surely be of grave concern. We think it’s wrong that schools segregate children on the basis of their parents’ religion, can similarly discriminate against teachers and can also teach a curriculum that comes from a perspective that is narrow and unshared by those of other faiths or those of none.

Instead we would like all state schools to be equally inclusive of those of all religious and non-religious beliefs. It is only if this is the case that we can pass on to future generations a tolerant, harmonious and cohesive society in which everyone is treated fairly and equally.

Why the situation in Birmingham means we must address faith in schools

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On Monday, when the documents related to the Ofsted and Education Funding Agency investigations in Birmingham were published and Michael Gove made a statement in the House of Commons about it, we tweeted approvingly when Crispin Blunt MP raised the issue of ‘faith’ schools more generally:

Arun Arora, Director of Communications for the Church of England, took this single comment and spun it into a baseless article alleging that the British Humanist Association had tried to turn the whole situation in Birmingham into a debate about ‘faith’ schools and attacking the notion that it lends itself to wider comments of this nature. He pointed out that none of the schools involved in Birmingham are legally designated as religious, and that Church of England schools do not face similar issues.

This response completely misrepresents the reason why ‘faith’ schools are relevant to this debate. We never said any of the schools in Birmingham are religious and in fact we have continually drawn attention to the fact that they are not.

The reason why all ‘faith’ schools are relevant to this debate is not because Church of England schools foster extremism – they clearly don’t, and for Arun to base a whole article on the idea that we think they do is bizarre. There have been articles across from publications across the political spectrum discussing the place of ‘faith’ schools in response to the situation in Birmingham. Even the Secretary of State himself, in his response to Crispin Blunt, said that ‘In the light of what has been revealed, it is important to have a debate about the proper place of faith in education’. The Shadow Secretary of State has made similar comments; it is clear that such a discussion has relevance and that to endorse that claim is not to imply in anyway that any of the schools in Birmingham recently investigated were religious ones.

What the existence of Church of England schools plainly does is support the mentality that some state schools are for Anglicans, some are for Catholics, some are for Jews… and of course, given this mentality, we are going to arrive at a situation where some Muslims start seeing certain schools as ‘Muslim schools’, whether those schools are legally designated as Islamic or not. We can only prevent the type of problem we saw in Birmingham from occurring and spreading – and stop segregation between different schools – if we work to get away from the whole notion that different state-funded schools belong to different religious communities.

If we do not do this then we will continue down the path we are on of further segregation between schools along both socio-economic and ethnic grounds. Ted Cantle wrote the main reports into the 2001 race riots, and identified segregated schools as a cause of those riots. The fact that he believes this country’s schools are far more segregated now than they were when the 2001 race riots occurred is shocking.

We welcome any public debate around the place of religion in education that has been happening since Monday. It is right that the public asks questions about the fact that most of the one third of state-funded schools that are religious – including many Church of England schools – are allowed to turn children away who live across the road but whose parents are of the wrong religion or no religion; are allowed to pick the staff they hire on the basis not of their teaching ability but of their faith; and are allowed to teach a curriculum that proselytises a certain religion and dismisses all other worldviews. Surveys show that all of these practices are hugely unpopular with the public at large.

That official representatives of the Church of England wish to stifle that debate seems self-interested at the very least.

Why we must keep campaigning against Collective Worship

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The British Humanist Association leads the national campaign against state-funded ‘faith’ schools, and employs the only dedicated campaigner – Richy Thompson – working on this and related issues such as RE, sex education, creationism and Collective Worship. We’re currently fundraising for our campaigner’s salary, so that we can continue to employ him for another year. Please donate today at http://www.justgiving.com/nofaithschools

We wanted to share with you an email Richy received this past year, highlighting the importance of what Richy does. This mother, as with many others, contacted us about Collective Worship. Currently, every single state school is legally required to have a daily act of collective worship. If the school is not a ‘faith’ school, this must be Christian in character. Here’s what the mother told Richy:

After researching and thinking it over for several years, I informed the Head of my children’s school that I was removing them from collective worship. She said she completely understood and agreed to it. She then went on to ask what religion I was – ‘Is it Christian Science, or something like that?’ I had mentioned in the past that I am a scientist. I replied, ‘No. I am an atheist.’ She appeared a little put out.

At the end of year service, not attended by my children, the school handed out certificates for completion of their first year at school. My daughter was supposed to get hers later at the class picnic. That evening she burst into tears and said that as she had not gone to the service, she did not get her certificate. My daughter is 5 years old. It was then the summer holidays so I had no way of complaining and thought I would see if the next year started well; it could have been an innocent over sight. It is now 3 days into the start of the school year and my children have just told me that they are still going to assembly every day.

Do you have any suggestions as to where I go from here? I do not want an ugly confrontation at school but I also believe that if I was the follower of ANY religion, that this would not be happening to me; I would be protected by law. As I am without a religion, I do not seem to have any rights over my children’s spiritual well being.

Thank you.

This is clearly a very distressing situation, and highlights a common issue with Collective Worship: that opt-outs are inadequate because the child typically has to sit out in the hallway or alone in the library, singled out from their peers, and misses out on school notices or other inclusive aspects such as certificates.

The alternative – not opting out – can all too often be just as bad. Last year, for example, we highlighted a teacher telling an eight-year-old he is a Christian because he celebrates Christmas; the common issue of an evangelical group proselytising in a school; and a girl being traumatised by Collective Worship due to age-inappropriate tales of a god who killed first born children, turned rivers into blood and murdered millions in floods – ultimately being unable to sleep at night.

We need to reform this law, and replace the current legislation with the requirement to hold assemblies inclusive to all children, regardless of religion or belief. This is something we have been working hard on, and we have real plans to develop a wider campaign around this issue, drawing in broader support for reform.

But this requires your support, so that we can continue to employ Richy so that he can work on this issue. Please donate to his salary at http://www.justgiving.com/nofaithschools