Time to end religious privilege
Faith, the law, and the Michaela school controversy
A highly successful and popular secondary school in northwest London has found itself at the centre of a religious and legal controversy.1 Central to the High Court challenge to the London Borough of Brent’s Michaela school is that its ban on prayer rooms is religiously discriminatory because it stops observant Muslim pupils from praying as their religion demands. Part of the reason for the ban relates to the school’s rules that forbid students from wandering around the site unsupervised. This has meant that there can be no prayer room for observant Muslim pupils, given that the rules governing Islamic prayer mean that they would often have to leave class several times a day to do so.
An equally important aspect of the case, however, is that the Michaela school is run according to an expressly secular ethos; one that discourages any expression of racial or religious separation, and goes as far as to provide only vegetarian school meals so that all pupils may eat together. And it is the matter of the school’s ethos that brings to light several things about the High Court challenge against it that ought to strike the reader as odd. First, it begs the question of why the complainant’s parents, as well as the parents of the pupils who joined her in praying in the school playground (apparently using their blazers as prayer mats when they were forbidden from bringing them into school), wanted their children to attend the Michaela school in the first place. Given that the school’s rules were made clear to them beforehand, in doing so the parents signed up to its expressly secular ethos on behalf of their children. Of course, this may be unfair on the parents if the pupils found God only after starting at Michaela. Be this as it may, and without questioning the complainant’s motives, the sensible thing would have been for the pupils to continue their education elsewhere (an Islamic school being the most obvious alternative) rather than seek to undermine the school’s ethos.
A second curiosity is that central to the pupil’s complaint is that the Michaela school’s prayer room policy uniquely affects the Muslim faith due to the ritualised nature of its rules governing prayer. Yet, having an ethos that uniquely effects members of a particular group is neither unusual nor necessarily illegal under current equalities legislation. Indeed, and precisely because an ethos is a body of written and unwritten rules that mandate or prohibit certain behaviours, often in a ritualised form, discrimination against those who do not share it is in many cases inevitable.
Tellingly, it is precisely for this reason that religious organisations enjoy exemptions from anti-discrimination legislation that would undermine the whole point of their belief systems were it applied to them. Take for instance the exemption that they enjoy from having to marry same-sex couples, comply with laws prohibiting gender discrimination when hiring office-holders such as priests or nuns, or that of faith schools from having to admit pupils regardless of faith. So, whilst the Michaela school’s prayer room ban may have a discriminatory impact upon observant Muslim pupils (but certainly not all Muslim pupils) it is not clear whether this ought to be unlawful.
Most importantly, this case raises a wider issue that extends far beyond the rights and wrongs of the Michaela school’s rules; one that speaks to the kind of society that Britain ought to be. For whilst the law already accommodates our country’s many religious organisations in ways that make it permissible for them to do and insist upon things that are unlawful for everybody else, the same cannot always be said for their secular counterparts. Yet, there is no obvious reason why organisations with a secular ethos should not be just as free to run themselves according to their ethos, particularly when no-one is compelled to use their services.
Indeed, society has much to gain from organisations that operate according to different standards and worldviews, and which both compete for our attention and learn from one another in doing so. In the education sector the Michaela school is a notable case in point. Widely regarded as one of the most successful schools in the country, it leads, we may say, by an example that other schools may emulate in the interests not just of their pupils, but of improvement in the sector more generally.
But this success, which is the reason for Michaela’s popularity among local families, is no stroke of luck. It is a result of the very ethos that some of its pupils are now challenging, rather than contributing in their own way to the public debate about standards by departing for another institution. Those who use services as much as those who provide them have a vital role to play in this process when signing up to an organisation’s ethos, or indeed when rejecting it by leaving. In its own way “voting with your feet” contributes to social learning.2
Moreover, and just as the Michaela school’s success is no stroke of luck, neither are the wider social gains to be had from organisations of all faiths and none being permitted to run their affairs according to their own ethos, whether this be in education or some other sector. Secular organisations need to be as protected under the law with respect to belief as religious ones, and for this to happen the legal privileges of religious organisations must be done away with.
How would equality of belief, and of the equal standing of diverse belief systems under the law, be best secured?
Certainly not by removing religious organisations’ legal exemptions from equalities law. In an open society, it is right that, as outgrowths of the interactions of free people, religious organisations are at liberty to govern themselves according to their own ethical lights. Indeed, to prevent them from doing so by outlawing all forms of discrimination - that is, by granting no exemptions to the Equalities Act - would betray a fundamental misunderstanding of the meaning and point of having an ethos, and would hardly be in the spirit of openness. Thus, in the case of education, to ban prayer in schools or to get religion out of education completely, as some commentators have recently argued, would represent the legal imposition of an authoritarian monoculture that would satisfy only the smallest minority.3
Thankfully, removing the legal privilege of religious organisations does not have to mean removing their exemptions. Rather, and because the problem is not that religious organisations enjoy exemptions, but that other types of organisation do not, the legal privilege of the former can be removed by extending exemptions to their secular and non-religious counterparts. To be sure, and even if equality of belief should not mean legally enforced uniformity, some may argue that equality as legal permissiveness would open the floodgates to all kinds of harmful discrimination under the guise of ethos protection. But, of course, the law as it stands means that the gates are already open, in the form of permissible discrimination by religious organisations.
By the same token, and whilst they should be legally free to organise themselves according to their diverse worldviews, people of faith should not be at liberty to impose their ethos upon secular organisations. Indeed, just as legally compelling a religious organisation to adhere to all aspects of equalities legislation would defeat the point of its ethos, so having to accommodate the ritualised practices of the observant on the grounds of non-discrimination would defeat the whole point of a secular ethos, and would smack of the authoritarianism of those who would remove religion altogether. But importantly, and contrary to the worries of some, not being legally permitted to do so does not represent the marginalisation of Britain’s many faiths, indeed of faith itself.4 It represents a state that comes far closer to the rule of law ideal of equality under the law than our current legislation has it.
Whilst this case is yet to be decided, if the High Court finds in favour of the complainant it will tell us that there is something very wrong with equalities legislation as it currently stands. In such a circumstance either this government or the next will need urgently to examine how it may be amended so that Britain’s many non-religious organisations enjoy the same degree of legal protection as its religious ones currently do.5
‘Religion: Pupil takes school to court over alleged prayer ban’, bbc.co.uk, 16 January, 2024, https://www.bbc.co.uk/news/uk-england-london-68000098, accessed on 27 January, 2024.
An argument that I have made at length in my book Epistemic liberalism: a defence, London, Routledge, 2016.
Long, C., ‘We need to ban prayer in all schools, not just in Birbalsingh’s bastion’, The Sunday Times, 20 January, 2024, https://www.thetimes.co.uk/article/we-need-to-open-our-eyes-and-ban-prayer-in-all-schools-not-just-birbalsinghs-bastion-v65bl9cl7, accessed on 27 January 2024; Toynbee, P., ‘Banning prayer rituals in school? Just get religion out of education completely’, The Guardian, 23 January, 2024, https://www.theguardian.com/commentisfree/2024/jan/23/banning-prayer-rituals-in-school-just-get-religion-out-of-education-completely, accessed on 27 January, 2024.
Nazir-Ali, M., ‘Religion in schools is too important to marginalise’, The Times, 27 January 27, 2024, https://www.thetimes.co.uk/article/religion-in-schools-is-too-important-to-marginalise-2jpt2g70w, accessed on 28 January, 2024.
UPDATE 16/04/2024: The High Court found against the claimant. See ‘Michaela School: Muslim student loses prayer ban challenge’, bbc.co.uk, 16 April, 2024, https://www.bbc.co.uk/news/uk-england-london-68731366, accessed on 16 April, 2024