Faith and fairness: did a church school’s admittance criteria discriminate against non-white Christians?

In R (on the application of CKT and DGT, by his mother and litigation friend CKT) v Twyford Church of England Academies Trust and another the court had to decide if a Church of England secondary school had indirectly discriminated against a prospective pupil on the grounds of race by failing to offer him a place.     

Facts

CKT is the mother of three children. She is Eritrean and attends an orthodox Eritrean church. Her eldest son was moving into year 7 and she applied for a place at Tywford secondary school because it had a Christian ethos, a strong academic reputation and was close to their home. 

Despite, scoring 20 out of a maximum of 21 points, her son didn't get a place. The school was massively oversubscribed (there were 171 applicants for foundation places who all had 20 points) and only pupils scoring 21 points got a place . 

Scoring criteria

The school's admission policy provided that when there were more applicants than places, 150 were allocated as Christian places, 21 designated as ‘world faith’ places and 19 went to pupil's with musical abilities. World faith was defined as non-Christian.

There are a maximum of 21 points available. Up to 20 points are awarded for voluntary attendance by the child or their parents at CofE services or churches affliated to it which includes various national orthodox churches.  

An extra point is awarded to applicants whose family's main place of worship is at a CofE church or ‘churches in communion with the CofE’. The Eritrean orthodox church was not included in this list.

Legal framework

The School Standards and Framework Act 1998, requires local authorities to allow parents to express a preference for the school they want their child to attend. It must allow the child to attend their preferred school unless it prejudices ‘efficient education or the efficient use of services’. Maximum class sizes fall within this exception.

The code for school admissions (issued by the Secretary of State) sets binding standards, including those that apply where places are oversubscribed. It says that oversubscription criteria must be fair, objective, and compliant with equalities legislation. 

It also allows faith based schools to allocate places by reference to faith based criteria. Where that applies, schools must ‘have regard’ to any guidance from the body representing the religion. The guidance in this case strongly recommended that schools should maintain an equal 50/50 split between foundation and open places to faciliate inclusion. Open places in this context means not dependent on religious criteria. The guidance recognised that local circumstances would vary, as would faith-based oversubscription criteria.

Decision of the High Court

The mother unsuccessfully appealed and sought judicial review of the school's admission policy.

She argued that the oversubscription criterion indirectly discriminated against racial groups, particularly non-Anglican Christian communities like her Eritrean Orthodox congregation, which is predominantly composed of black individuals.

The school didn't collect information about the race or ethnicity of applicants for places. This created difficulties for the court. However, it ruled, that the admission arrangements at the school, which included a criterion favouring practising Anglicans, were indirectly discriminatory in relation to race. There was a significant difference between the racial or ethnic profile of the CofE congregation who can earn an extra point (and were predominately white), and other Christians (who were non-white) and couldn't. The extra point available to CofE church goers was often decisive (it heard evidence that in three out of the last five years, no child awarded 20 points had been given a place). 

However, it said that this discrimination was justified as proportionate under the Equality Act 2010. The faith school system approved by parliament preserves a particular Anglican ethos. Faith schools have a legitimate aim and the oversubcription criterion is rationally connected with it. There was no other, less discriminatory, measure the school could have used without unacceptably compromising the objective.  

In terms of the guidance, the court said it wasn't binding on the school. The trust didn't operate the same admissions criteria at all of its schools and the court was satisfied that it had taken ‘due regard’ to the need to consider equality of opportunity and good relations in respect of religion and belief. 

The court also determined that the shool had not breached its public sector equality duty, noting that the faith-based admissions policy was consistent with statutory guidance and parliament's approval of such criteria. 

Comment

The court made it clear that faith based schools can discriminate on grounds of religion and belief - but not on other grounds such as race, or sexual orientation - even if those grounds are related to the protected religious belief in some way. 

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