To what extent is the government’s unhesitant support of faith schools compatible with democracy?

Introduction
Faith schools present an interesting challenge to society as considerations of law and human rights mandate that these schools be allowed to operate as a manifestation of a religious right. However on the other hand one has unwavering claims of social segregation that develops as a result of these schools. The complaint is that communities are being segregated on sectarian lines which create the potential for the fostering of mistrust and hostilities within communities.[1] Essentially, the continued use of faith schools in society sets a dangerous precedent for inherent discrimination and a rejection of other faiths and associated cultures by educating the youth along sectarian lines. Despite the potential societal problem associated with faith schools, there is also a precarious projection of discriminatory practices in admissions and employment in these schools which directly discriminates on the grounds of religion, as well as indirect discrimination against members of society associated with the ethos that is allegedly contrary to the religious groups’ beliefs. One can therefore see that there are problematic elements associated with faith schools in law and societal norms. Historically, faith schools originated from the support given to schools by churches and resulting from this was a strong association of that school with the particular faith of that church. These schools currently exist as public schools which have a measure of government funding, as well as academies and private institutions.
Constructs of democracy vary, however the common sentiment of these theoretical constructs identify the central tenet of democracy as being an arrangement which allows decision making for the common good by people elected by the majority to do so.[2] This is referred to by Dworkin as the Majoritarian premise, which emphasizes the idea that decisions should be taken by the majority or a plurality of citizens.[3] The extent to which faith schools are compatible with democracy depends on how this common good is constructed. To state this simply, the Majoritarian premise is based on the idea that the majority favours or would favour the decision with all the relevant information available and understood thereby. It stands to reason that in order to determine if these schools are compatible with democracy that these schools are for the common good or are favourable in terms of the needs of the majority.

Legal Context of Faith Schools
The legitimacy of faith schools within society from a legal perspective is important to understand in order to determine the compatibility of these schools with a construct of democracy. The present status of faith schools stems from the Education Act 1944 which afforded faith schools a certain degree of autonomy within the education system, provided that the church authorities contributed financially to their schools.[4] In the years since the promulgation of this Act, the role of the church in society has declined significantly, with a simultaneous introduction of a variety of faiths in society and increasing secularism being broadly embraced. With the introduction of the School Standards and Framework Act 1998, a measure of equality was given to religious minorities in the schooling system ensuring that faith schools now operated across a broader range of religious denominations.
Despite the roots of faith schools in the legislative provisions of the U.K, faiths schools also recently enjoy status under international human rights conventions and the Human Rights Act 1998 (HRA), which ensures religious freedoms.[5] This right contained in the HRA ensures that the individual has the right to manifest his religion and arguably, faith schools form a part of this manifestation. A limitation of this right is allowed where “such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”[6] It stands to reason therefore, by virtue of a simplistic analogy, that the disallowance of faith schools would only occur if it is necessary in a democratic society. This brings relevance to the current discussion which considers the construct of democracy, albeit briefly and superficially in light of the extent of the issues regarding the matter. An example of a restriction on the manifestation of this right is seen in R v Secretary of State[7] where the House of Lords refused an application to allow corporal punishment in a faith school as a manifestation of the Article 9 right as it infringed on the purposes of child protection legislation, as it was found to be contrary to the best interests of the child.
Arguably therefore, faith schools are a manifestation of this right to religion under the HRA, as well as drawing legitimacy from the Education Act. As these schools do not operate under an unlawful purpose and are not contrary to the interests of public safety, public order, health or morals, or any other rights and freedoms, they do not merit abolition in the eyes of the law. It is well-known however, that law, morality and justice are distinct concepts and therefore the compatibility of these schools with the legal system does not necessarily mean that it is compatible with philosophical constructs of democracy.
The Construct of Democracy
The construct of democracy that is being used as a means of analysis is that which identifies the common good or favour of the majority as being central to the process of democracy. Schumpter defines this as “the democratic method is that institutional arrangement for arriving at political decisions which realizes the common good by making the people itself decide issues through the election of individuals who are to assemble in order to carry out its will.”[8] Whilst Dworkin couches the construct similarly, yet in different terms as the majoritarian premise which “is a thesis about the fair outcomes of the political process: it insists that political procedures should be designed so that, at least on important matters, the decision that is reached is the decision that the majority or plurality of citizens favour.”[9] Although these definitions are framed differently in terms, essentially they are based on a similar premise of decisions by the people, for the people. The question however to be determined with regards to this premise, is how the common good is determined. This becomes more problematic with the recent emphasis of the importance of human rights within this political framework as arguably these are diametrically opposed to the idea of democracy, as they ensure the protection of minorities within a country, despite the public opinion or opinion of the majority.[10]
One can argue that Dworkin’s definition of the majoritarian premise takes account of this as the decisions made by the majority are those which would be favoured “if it had adequate information and enough time for reflection,”[11] although Schumpter argues that collective logic will never be unified despite any number of logical argument proposed for the acceptance thereof. Accordingly, Dworkin rejects the idea that the majoritarian premise requires that the community defer to the majorities view on how individual rights are to be respected and enforced. In doing so, it majoritarian premise presupposes that the concept of majority rule is always unfair where the majority are allowed to dictate the collective rights of their community. Schumpter notes this difficulty similarly by stating that there is no uniquely determined common good as invariably people will always want different things.[12] The progression therefore is that perhaps the needs of democracy demands that a majoritarian approach be taken to the construction of the government, however that a constitutional conception of decision making be adopted rather than one of majority rule. This constitutional conception is where collective decisions are made to treat all citizens with equal respect and concern, with this conception declared to be the essence of democracy rather than a cause of moral regret, i.e. that the majority does not dictate the decision making according to the needs of the majority exclusively. Accordingly, both Schumpter and Dworkin recognize the inherent problems within classical conceptions of democracy as being one that recognizes a foundational principle of majority rule and in doing so, democracy introduces an element of political morality. One can argue that the introduction of human rights into mainstream jurisprudence is a codified and measurable statement of these political morals. The compatibility of faith schools with democracy therefore is one which must be consistent with the common good taking into consideration ideals of political morality. Arguably therefore, the consistency of faith schools with democracy is one which must ensure legitimacy of these institutions within the legal framework of the country taking into considerations the fundamental rights and freedoms that it is designed to protect.
Compatibility of Faith Schools with Democracy
Based on these constructs of democracy it is clear that compatibility therewith is not a simple inquiry into the religious opinions of the majority, but whether the continued existence and support of these schools is one which is in the common good taking into consideration individual rights based on ideas of political morality which justifiably limit the exercise of majority rule. This proceeds from the assumption that the majority is opposed to faith schools and the practices associated therewith.
There are a number of arguments made against the continued practice of faith schools, not least of which because they promote discriminatory practices with regards to admissions, employment and certain religious practices. Contrary to Human Rights legislation, as well as the Race Relations Act 1976 discrimination on the basis of religion alone can merit exclusion from the school. Employees and potential employees of these schools are also exempted from protections against discrimination as provided for by relevant legislation.[13] In these cases, employees may be dismissed from or rejected by the faith school if they are not of the same beliefs as the school or that their conduct is incompatible with the ethos of the school. If one considers the highly exclusionary nature inherent in religious institutions this presents obvious indirect discriminatory practices against groups such as racial minorities, religious minorities, homosexuals and divorced adults. With the obvious complaint made that these schools perpetuate discriminatory practices in society, a number of issues of political morality or human rights become evident. The first of these considers the use of these schools as a manifestation of the right to religion contained in Article 9 and considers whether the discriminatory practices inherent in these faith schools and the prevailing social concerns based on segregation are sufficient to allow the limitation of the right, by either abolition of these practices, i.e. to eliminate discriminatory admissions and employment policies within these school, or to abolish these schools themselves. This then raises the next issue, which asks whether exclusive practices of these schools are inherent to the exercise of this right where the abolition of these schools or the discriminatory practices associated therewith will unreasonably or unjustifiably limit the exercise of the Article 9 right. Essentially, these are two sides of the same coin and as a result one can see that there is a need for a balancing act between these rights in order to determine the compatibility with democracy as considering both the individual right and the common good.
Based on development of the egalitarian jurisprudence, the prohibition against discrimination is contained in Article 14 of the HRA. Whilst discrimination on religious grounds is a form of direct discrimination and therefore unlawful in the eyes of the law,[14] the application of the HRA does not extend to faith schools. Arguably, this lacks legitimacy in the law as there is no fundamental basis as to why faith schools are exempted as there has been no proven statement of public good served by these schools. Recently, the court has an opportunity to address the matter of faith schools with regards to discrimination, however carefully neglected to do so.[15] The case of R (Begum) v Governors of Denbigh High School [16] perhaps provides some insight into the rationale of faith schools from a standpoint of political morality where the court ruled that the right to religion was absolute, however the right to manifest that religion was qualified and therefore capable of limitation. In this case, a fundamental element of the ratio revolved around the rights of other female students in the school rather than the manifestation of a single childs beliefs. Therefore, instead of viewing the political morality from the perspective of the persons discriminated against by these schools, one can adopt an approach of protecting the rights of those within the schools themselves. This implies that faith schools are protectionist of Article 9 rights, rather than exclusionary in terms of Article 14. This in itself correlates with the constructs of Schumpter and Dworkin’s conceptions of democracy as being those that concern and enforce individual rights equally and therefore are protectionist of individual and minority rights. Whilst potential students and employees of these schools may be excluded, their ability to join other schools is not infringed and therefore any right that may be infringed is particular to a specific faith school itself. Comparatively, the detrimental effect on students of faith schools who are denied educational instruction according to their religious beliefs is greater and as a manifestation of a religious right, education in religious instruction is considered highly important.
Conclusion
It is clear that the construct of democracy according to the popular understanding thereof as being majority rule is a flawed political doctrine. To this extent, both Schumpter and Dworkin acknowledge the shortcomings thereof. Whilst Schumpter merely acknowledges these difficulties, Dworkin presents these challenges with a form of philosophical alternative thereto in the form of the inclusion of morality in the majoritarian premise. Although essentially this disproves the value of the majoritarian premise itself, the constitutional conception of democracy is one that is foundationally constructed on this premise and which acknowledges the inherent flaws therein. Morality in law is always a problematic construct, however recently with the emphasis on human rights in U.K legislation and common law, it has been argued that these are a unilateral statement of political morality within the country based on internationally accepted conventions on human rights. The compatibility of faith schools with democracy as a result depends largely on the compatibility of these schools with political morality, and therefore with human rights. The overwhelming consideration in determining the answer to this question is to determine whether these schools are necessary in protecting and enforcing the individual’s rights and in light of human rights jurisprudence, whether these are necessary to the extent that they justify discrimination that results from the operation of these schools. By analysis of this context, it is clear that democracy does not demand that the opinion of the majority dictate the existence of these schools, but rather in recognizing that democracy demands that the common good be established. To this extent, the common good recognizes that these schools are a necessary extension of the right to manifest ones religion and the detriment to these individuals or groups of individuals outweighs the potentially infringed rights of other members of society. In light of this analysis therefore, it is clear that despite social objections to faith schools, the existence and support thereof is compatible with the philosophical construct of democracy.
Bibliography
Primary Sources
Legislation
Convention for the Protection of Human Rights and Fundamental Freedoms Convention for the Protection of Human Rights and Fundamental
Education Act 1944
Education and Inspections Act 2006
Employment Equality (Religion or Belief) Regulations 2003 Human Rights Act 1998
Race Relations Act 1976
School Standards and Framework Act 1998
Case Law
E (Appellant) v (1) JFS Governing Body [2009] UKSC 15
R (Begum) v Governors of Denbigh High School [2006] UKHL 15
(on the application of Williamson) v Secretary of State for Education and Employment UKHL 15 [2005] 2 A.C. 246
The British Humanist Association & Others v London Borough of Richmond upon Thames & Others [2012] EWHC 3622
Secondary Sources
ATL (2007) Position Statement: Faith Schools [online] Available on: http://www.atl.org.uk/Images/Faith%20schools%20PS%202007.pdf [Accessed 21 December 2012]
Dworkin, R. (1996) Freedom’s Law: the Moral Reading of the American Constitution. Cambridge, MA: Harvard Press
Nickel, J. (2010) Human Rights. The Stanford Encyclopedia of Philosophy [online] Available on: http://plato.stanford.edu/entries/rights-human/ [Accessed 21 December 2012]
Lawyers Secular Society (2012) Faith Schools [online] Available on: http://www.lawyerssecularsociety.org/default.asp?sectid=387 [Accessed 21 December 2012]
Schumpter, J. (1976) Capitalism, Socialism, and Democracy. London: Allen and Unwin