Perpetuating Traveller children's educational disadvantage in Ireland: Legacy rules and the limits of indirect discrimination

The impact of 'subtle' admission policies utilized by many secondary schools in Ireland on children from minority groups has been recently flagged as problematic by the Irish Department of Education. A new regulatory framework has been promised to address this issue but has yet to emerge. In the meantime, such policies, which include preferential parental legacy rules, certainly trigger the reconfigured principle of indirect discrimination in the access to and enjoyment of goods and services under the Equal Status Acts 2000-2012, which transpose a number of EU Equality Directives. This article considers the approaches taken to the demonstration of how suspect policies give rise to 'particular disadvantage' for protected groups in light of the shift away from the mandatory use of statistical evidence in the context of a discussion of a recent High Court case, Stokes v. Christian Brothers High School. This decision concerned the impact of a parental legacy rule on a child from Ireland's Traveller community, a community that has a long and virulent history of educational (and other forms of) disadvantage. In response to the limited understanding of indirect discrimination taken in the High Court (which pivoted on the Oxford English Dictionary), which significantly undermines the principle's ability to tackle structural inequalities, I go on to demonstrate how use of both the 'social facts' approach and a statistical approximation of the impact of the policy on the complainant's group reveals 'particular disadvantage' in the use of legacy rules on Traveller children, children of migrants and children raised in non-traditional families.