Shot with their own gun

So teachers in Catholic secondary schools across England have allegedly been urged to encourage their pupils to sign a petition against civil gay marriage. Not unexpectedly, secular, humanist and gay groups are outraged. The Catholic Education Service (CES) confirms that it circulated the recent Archbishops' letter on marriage to Catholic schools. Its does not deny having encouraged pupils to sign the petition, but its brief press release clarifies that the petition is not open to those under 16 years of age and that it will make schools aware of this.

It has been suggested that this action breaches the schools' duties under the Equalities Act 2010 not to discriminate against homosexual children, and that may very well be so. However, in my opinion the clearer and more powerful argument is found in ss406 and 407 of the Education Act, which provide as follows:

"406. The local education authority, governing body and head teachers shall forbid … the promotion of partisan political views in the teaching of any subject in the school.

407. The local education authority, governing body and head teacher shall take such steps as are reasonably practicable to secure that where political issues are brought to the attention of pupils while they are

(a) in attendance at a maintained school, or

(b) taking part in extra-curricular activities which are provided or organised for registered pupils at the school by or on behalf of the school

they are offered a balanced presentation of opposing views."

A few years ago, the Department for Education provided all secondary schools in England with a copy of Al Gore's climate change movie, "An Inconvenient Truth." (AIT) A special webpage was also provided with guidance on how to present the film and suggestions for discussion afterwards.

Despite enjoying overwhelming consensus in the scientific world, human-induced climate change is still controversial, with some scientists dissenting from the mainstream view accepted by the IPCC. This is the backdrop to the film's promotion in schools being challenged in judicial review – the case of Stuart Dimmock v Secretary of State for Education and Skills [2007] EWHC 2288 (Admin).

While the court upheld the decision to supply schools with the movie, the judge, Mr Justice Burton, was critical of the Secretary of State in two ways. Firstly, in a number of instances in the film Mr Gore had presented evidence that went beyond the scientific consensus. The guidance was altered by the Secretary of State during the course of the litigation, such that teachers were properly briefed on these instances and advised how to present them in a balanced way to pupils. That part of Dimmock does not concern the CES matter as far as I am aware.

The second concern in Dimmock was the fact that the film went beyond simple documentary. Its wider purpose was to persuade viewers of the need to act on the information, personally, corporately and politically.

What, then, is deemed to be political? The learned judge drew on the definition of political activity from charitable trusts law [4]. A bona fide charitable trust cannot have objectives that are political, defined in McGovern v Attorney General [1982] Ch 321 @340 as purposes:

• to procure changes in the laws of this country; or
• to procure a reversal of government policy.

amongst other possible purposes.

The raising of a petition against civil gay marriage falls fair and square into the second category, as it is government policy to introduce a Bill. While it is true that Government is consulting, the consultation is not on the "if" question but on the "how" question of implementation.

However, the petition also logically falls within the first category too. Campaigning for a law change and campaigning against a law change are two sides of the same coin. It would be both illogical and hopelessly confusing to try to distinguish the two activities, inevitably devolving to a chicken and egg situation.

So we can assume the CES issue is political. What then defines partisan? Here the learned judge in Dimmock was persuaded by counsel for the claimant's argument that partisanship comprises the following characteristics [11]:

1. A superficial treatment of the subject matter typified by portraying factual or philosophical premises as being self-evident or trite with insufficient explanation or justification and without any indication that they may be the subject of legitimate controversy; the misleading use of scientific data; misrepresentations and half-truths; and one-sidedness.
2. The deployment of material in such a way as to prevent pupils meaningfully testing the veracity of the material and forming an independent understanding as to how reliable it is.
3. The exaltation of protagonists and their motives coupled with the demonisation of opponents and their motives.
4. The derivation of a moral expedient from assumed consequences requiring the viewer to adopt a particular view and course of action in order to do "right" as opposed to "wrong."

The Catholic position on marriage, as expressed by the Archbishops, does appear to present the matter as self-evident, not even acknowledging opposing views such that pupils could arrive at an independent understanding. It also appears to derive a moral consequence, and the inclusion of the information about the petition implies a course of action – although we'll look at that aspect presently.

It was accepted in Dimmock that education would be "bland," and deny pupils the opportunity to engage with arguments with which they might vehemently disagree, if they were never exposed to partisan political issues. "The statute cannot possibly mean that s406 is breached whenever a partisan political film is shown to pupils in school time," as the learned judge said.

So the presentation of partisan political material is not per se unlawful, although it should clearly put the "local education authority, governing body and head teachers" on notice of its implications. It is the promotion of such material that crystallises the unlawfulness of the action. "What is forbidden by the statute is, as the side heading makes clear, 'political indoctrination'." Presentation of itself, then, is not "irremediably a promotion of those partisan political views." [12]

How, then, can such a presentation be rescued? The answer lies in s407, and the need for balance. Here there is some wriggle-room, since the balance needs only pass the test of "reasonably practicable." In the Dimmock case, where the overwhelming scientific consensus was in support of the main thrust of AIT, this was met by simply pointing out that some scientists dissent from the mainstream view. Balance in that context did not mean "equal air-time," [14] or that the two views must be presented as equally valid – in fact a balanced presentation would tend to demonstrate where arguments were weak. [15] The essence of the requirement is the need to present the matter in a "fair and dispassionate" manner. [16]

In the CES situation then, given that the Archbishop's letter asserts that governments do not have the authority to redefine marriage, it would be extremely surprising if an alternative position was expressed alongside, let alone one presented in such a way as to allow weaknesses to be exposed.

The presentation, then, appears to fall foul of s406 and is unlikely to have been rescued by the presentation of a balancing argument according to s407.

Nevertheless, as the CES points out in its press release, relgious organisations do have an exemption from certain equalities duties and are allowed to teach their doctrines on matters like sexuality that would be unlawful for normal state schools. It is conceivable, therefore, that its teaching on the Catholic view of marriage is permissible, and the presentation of the Archbishops' letter without other viewpoints could be rescued from unlawfulness on this basis. I say conceivable, because I think there is a strong argument for saying that the letter itself bridges the gap between religious doctrine and political activity.

Certainly it does set out the broad thrust of the Catholic theology of marriage. While this may be unpalatable to many, it is lawful to teach this in Catholic schools. However, the controversy in question here is not a religious one. As has been pointed out by the government, churches will not be affected by this potential change in the definition of marriage, which will provide for civil gay marriage only. Not only that, but churches will be expressly forbidden from carrying out such ceremonies. And yet the Archbishops feel it is incumbent on individual Catholics, as Catholics, to oppose the policy. 

However, the real clincher here is the issue surrounding the petition, which cannot be rescued in the same way as the teaching of religious doctrine. It is unashamedly a political act and clearly falls foul of the fourth Dimmock criteria for partisanship: "The derivation of a moral expedient from assumed consequences requiring the viewer to adopt a particular view and course of action in order to do 'right' as opposed to 'wrong.'"

This would be unlawful to promote in any school, and it would be unlawful for the same reasons no matter whether the petition was expressed in favour of civil gay marriage or against it.

It is quite conceivable that headteachers in individual schools be challenged in judicial review for their decision to make pupils aware of this material and petition. The British Humanist Association has said it will support any child or parent who wishes to make such a challenge. It would be poetic justice indeed if litigation resulted in a mandatory order obliging such schools to make their children aware of the alternative arguments – maybe even the existence of other petitions. Perhaps a justified exception to the old adage that "two wrongs don't make a right."

As the title says: shot with their own gun.

Postscript:

Just to confirm, although these are church-run schools we are considering here, they are paid for out of general taxation. See Department for Education.

Update 29/04/12:
Just been reminded of a post on UK Human Rights blog about the Equalities Act issues of this situation, which I don't go into above.