We have been a little bewildered by recent lamentations of many of the churches about threats to their lack of religious freedom and their fear of persecution. Particularly as we heard almost nothing from them about such discrimination before the successful campaign to legalise same-sex marriage. When they lost that tussle, some of their representatives, including in our parliaments, demanded more rights to discriminate against others so that – and this was a rather odd argument – they wouldn’t themselves be discriminated against. That vote was also lost.

It was just as well. We were under the impression, as long-time observers of the education sector in Australia, that any discrimination as far as schools were concerned was practised more often by the churches than the other way around.

More than 30 per cent of Australian schools are private and 94 per cent of these are sponsored by religious faiths. The rationale for the existence of such schools is the religious instruction of their students, although this mission is clearly taken more seriously by some parents, schools and religious denominations than others.

This is a much higher ratio of private to public schools than exists in most other comparable democracies. One reason for this may be because Australia not only permits an array of religious schools to operate but we further sanctify their existence with a high level of public funding.

Currently, overall government funding to private schools is about $13 billion yearly. Indeed, we give so much public money to private schools that it adds up to more than the total salaries of all the teachers currently employed in that sector. In the case of Catholic schools, the Commonwealth alone provides a level of recurrent funding that is beyond what is needed to pay their teachers. And when you combine their grants from both levels of government – state and Commonwealth – this more than covers their total staffing cost, both teaching and non-teaching. 

A country that permits and encourages private religious schooling should understand that such schools will expect to discriminate in their student admission and teacher employment practices in favour of those who are members of their faith communities, and they have long been able to do just that.

In the case of schools, at least, given how much public money they receive, the question is not how much more leeway churches should get to discriminate but the opposite. Particularly so, it must be said, given the trenchant criticism of predominantly faith-based schools and their policies and duty of care towards their students in the report from the Royal Commission into Institutional Responses to Child Sexual Abuse. Even if it were not an issue being raised in the wake of the overwhelming “Yes” vote for marriage equality, we believe it is high time to ask how far this freedom to discriminate should extend and how should it be exercised in practice.

After all, there are defining characteristics of education that make it different from any of the other sectors in which churches operate. Schooling is compulsory: access or denial of access to a particular school is therefore a serious matter, and it affects the intake of other schools. The establishment of a faith-based school in any community affects the distribution of students across all the other schools nearby. By and large, faith-based private schools tend to enrol the more advantaged students in an area, even in the so-called “low-fee” Catholic or Christian schools. After all, such schools are only low fee in comparison to the high fees charged by others.

Private schools retain the right to pick and choose their students, although generally they appear to discriminate more on ability to pay or the student’s academic, sporting or musical ability than anything else. However, given the loud noises coming from some of the religious in the wake of the “Yes” vote there is no guarantee that this will not change.

The way that the employment of teachers is affected by a private school’s freedom to discriminate is also problematic. If 30 per cent of schools have a statutory exemption from anti-discrimination legislation, then that means as many as one-third of teachers can be employed on grounds other than their ability to do their job. Worse, it could mean that they could be dismissed on grounds that have nothing to do with their performance. In other words, if you are a gay teacher in a faith-based school who is thinking of marrying your partner now the law has changed, think again. Legal or not, you may well be putting your job at risk.

Up until now, the statutory exemption has operated on a “don’t ask, don’t tell” basis and there are many teachers who just kept their private lives private. Their employers may well have also turned a blind eye. However, such teachers are in a vulnerable position. Any zealous parent or student, any change of leadership at the school, could put their job at risk. And the exemptions have certainly been used in the past. In 2006 the divorced principal of a Catholic school in Skennars Head in New South Wales was suspended after remarrying. In 2012 a pregnant teacher at a Caloundra Christian school was sacked because she was unmarried.

The non-government sector argues that it must have the right to give preference in enrolment and staffing practices to members of their own faith community or to those who are at least sympathetic to the religious mission of their schools, as well as to exclude students and teachers who are not appropriately sensitive to their beliefs. They also argue that they hardly ever exert this right, which raises the question: why are they getting so upset about their religious freedoms now?

Surely the rest of us have a right to ask for transparency around the practices of publicly subsidised schools? Should not parents be informed of a school’s employment practices in advance of enrolling their children? And surely teachers should be thoroughly informed about the discriminatory policies of any and all schools before they decide whether to apply for a job in one?

Perhaps, at the very least, schools claiming the right to discriminate should have to plainly specify the grounds for teacher employment and student admission. Parents and teachers, and the taxpayers who fund these schools, should also know what the religious basis is for such discrimination.

Without such transparency there is nothing to prevent inconsistent and opportunistic use of an exemption that suits the interests of the school or system authority – for example, waiving the right to discriminate to employ teachers in fields that are scarce (physics or computing), then exercising it to deal with troublesome teachers or students.

We believe that if publicly subsidised schools – and other religious organisations – wish to discriminate against others, they should have to advertise both whom they discriminate against and why – prominently – in all promotional material, prospectuses, websites and job ads. One of the costs of discrimination is that it narrows the field of available talent and anyone considering using the services of such a school ought to be fully informed about that.

Another way of making the statutory right to discriminate fairer for everyone is to remove the blanket exemption and require authorities wishing to discriminate to appeal for an exemption in specific cases. As private school providers claim they rarely resort to exercising their freedom to discriminate, this would seem the most sensible way forward. It might be reasonable to seek to apply religious selection criteria to those who will be giving religious instruction, but why would a mathematics or physics teacher, or a rowing master, or a cleaner or groundskeeper need to be selected on such a basis?

Why should public funds be provided for those staffing positions that require religious discrimination? Surely it would be reasonable for the costs of these positions to be met by the faith community itself, specifically the church and the parents?

And considering these issues around the freedom of religious organisations to discriminate in their schools, far from considering giving churches more rights, surely there needs to be a detailed inquiry into all aspects of how such freedom from the provisions of current anti-discrimination law operates.

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