Students For Fair Admissions v Harvard: Affirmative Action in Crisis?

Students For Fair Admissions v Harvard: Affirmative Action in Crisis?

Tristan Kavanagh

I. Introduction

“Our Constitution is colour-blind, and neither knows nor tolerates classes among citizens… The law regards man as man, and takes no account of his surroundings or of his colour”.[1]

These words, spoken by Justice John Marshall Harlan in 1896, are still disputed today in the United States, with the compelling issue of alleged discrimination in college admissions applications being contested in the courts. In November 2014, Students For Fair Admissions (SFFA) filed a complaint against Harvard University maintaining that the college employs 'racially and ethnically discriminatory policies and procedures in administering the undergraduate admissions'.[2] The basis of the claim centres on Harvard’s alleged discrimination towards Asian-American applicants, in that they are held to a higher standard in the application process as compared to all other ethnic groups.

The case is of particular importance to many concerned with the process of American university applications and those affiliated with civil rights groups seeking change, or for those hoping to maintain the current practice. The decision of the case will have significant implications for future programs which aim to increase the number of minority groups in colleges across the US. Even more consequential, the decision of SFFA v Harvard, which will likely be contested all the way to the Supreme Court, could have major implications for the federal government policy of affirmative action as the plaintiffs argue that the complete removal of race-based considerations in admissions is the only real way to ensure Asian-Americans have an equal chance of being accepted into elite institutions such as Harvard or other colleges nationwide.[3]

In this article, the author will examine the issues that led to Harvard’s admissions policy being contested by analysing Supreme Court precedent involving the statutory legality and constitutional status of affirmative action in the US. Furthermore, the author will seek to outline the reasons for his belief that affirmative action in college admissions ought to be retained despite its difficulties.

II. Harvard’s Diversity Program

(i) The holistic process and its origins
A century ago, many elite American universities became more aware of their role in socially engineering a society with prevalent class-based divisions.[4] Among these institutions, there was a shared ambition to amass diverse university campuses with many factors considered in admitting aspiring applicants that went beyond mere geography. Such factors alongside proven academic ability were those of personal qualities and racial background. Harvard led the way in developing this holistic admissions policy. Nonetheless, the plaintiffs assert that the initial reasons for the college doing so are more suspect. It seems that Harvard’s eagerness to implement a more diverse applications process heavily arose in the nineteen-twenties from a fear of an excessive body of Jewish students who were deemed academically capable but lacked the desired personality and character traits.[5] Thus the supposed origins of Harvard’s diversity program has become a point of argument for the plaintiffs as they assert that the 'personal' ratings in applications which considers factors such as likeability, kindness, integrity and effervescence among other things, which they believe had discriminated against Jewish applicants in the past, are now presently used to the detriment of Asian-American applicants.[6]

(ii) The issue of personal ratings
SFFA obtained data on more than 160,000 recent applications revealing that statistically Asians scored lower in terms of personality ratings.[7] Despite the fact that their academic scoring was on par and often even higher than white applicants, the personal ratings lowered the number of Asian admissions. Harvard maintains the data is flawed.[8] The legality of these personal ratings was questioned by the plaintiff’s attorneys, who indicated that there is a lack of written instructions to guide admissions officers on how to fairly use race, which would help reduce implicit racial bias.[9] If it is found that there is, indeed, a pattern of personal bias against Asian applicants, the legal justification of these personal ratings would be highly questionable and it would therefore be quite understandable if SFFA are to use them as their main argument in the push for 'the outright prohibition of racial preferences in university admissions'.[10]

III. The Law on Affirmative Action

(i) The original intentions
Accordingly, it is no surprise that the subject of affirmative action is a divisive one for Asian-Americans. Affirmative action, otherwise known as 'positive discrimination', was introduced in the US. by President John F. Kennedy in 1961 with the intention that it would help 'level the playing field' in certain areas of employment, giving those of a minority ethnicity or of lower means assistance in securing work.[11] Affirmative Action, when introduced, aimed to fulfil the goal of compensatory and distributive justice.[12] The policies sought to partly rectify and compensate for the injustices of the past, when minorities suffered from inhumane discrimination. There was a clear intention to enhance the status of minorities in American society. The Harvard case will soon be encompassed within a long line of cases challenging fundamental aspects of the policy of affirmative action.

(ii) Regents of the University of California v Bakke
The law on affirmative action as it stands is rooted in Justice Powell’s lone opinion in Regents of the University of California v Bakke.[13] His judgement was effective in shifting the rationale for ethnic preferences from redressing societal discrimination and structural racism to the objective of accomplishing diversity. In Bakke,[14] a white applicant to the University of California Davis’ medical school challenged his rejection, alleging that the college operated a system of racial quotas whereby a quantity of students from minority backgrounds were admitted over white applicants despite having lower test scores in an effort to achieve racial balancing. The programme of racial balancing was declared by the Supreme Court to be 'patently unconstitutional'.[15] Racial quotas were deemed legally impermissible.[16] However, numerical goals were seen as constitutional. Goals are flexible, unlike quotas, and their variants can be seen between each year.[17] Effectively, the idea of racial harmonisation values 'race for its own sake'. Diversity, on the other hand, is imperative in that it directly benefits students’ educational experience.

(iii) Bakke’s legacy
Ultimately, Justice Powell’s decision in Bakke emphasises the importance of diversity in a new, more progressive society. In his judgement, Justice Powell gave an overwhelming endorsement of the holistic admissions approach enshrined within the Harvard Plan, noting that a 'boy from Idaho' has as much a critical role in diversity 'as a black student [who] can usually bring something that a white person cannot offer'.[18] Essentially, Powell’s decision ensured that, until as of late, Harvard’s diversity plan was a 'facially non-discriminatory admissions policy'.[19]

IV. Recent Case Law

(i) Grutter v Bollinger
More recently, affirmative action has become further narrowed. In the 2003 case of Grutter v Bollinger,[20] while a 'race-conscious admissions program' was deemed constitutionally acceptable, it was ruled that race is only one consideration in admissions and that 'all factors that may contribute to student body diversity'[21] such as volunteer work and extracurricular activities are to be considered. The decision acknowledges that while such an admissions policy may tend to favour underrepresented minority groups, the policy does not amount to an unconstitutional quota system.

(ii) How SFFA’s case differs from Grutter
Nevertheless, in the Harvard case the issue remains that Asian-Americans are disadvantaged from being an overrepresented minority. The US Government census shows that Asians make up 5.7%[22] of the US population yet are 22.2%[23] of Harvard’s student population. Other institutions which reject racial-based affirmative action policies, such as the California Institute of Technology, have witnessed a surge in their numbers of Asian-American enrolments which is proportionate to the increase in Asian-American students nationwide.[24] The plaintiff submitted that this is proof of informal quotas and racial balancing being operated in Harvard analogous to the quota system imposed on Jewish students almost a century ago. Justice Sandra Day O’Connor’s ruling in Grutter primarily dealt with the application of white students, the majority group in the US. With internal reviews conducted that show if Harvard were to consider only the grades and test scores of applicants, the Asian-American student body would make up 43% of the University student population,[25] it is easy to see why a general observer would believe there to be a race-based quota system being operated in Harvard.

(iii) Fisher v University of Texas and Fisher II
A decade after Grutter came the case of Fisher v University of Texas[26] in which the plaintiff, a young white woman, complained of 'reverse discrimination' which she believed was responsible for her rejection from the University. When the case came before the Supreme Court in 2013, the bench found in a 7-1 decision that the Equal Protection Clause of the Fourteenth Amendment permitted the consideration of race in undergraduate admissions decisions, so long as race was held under a standard of strict judicial scrutiny.[27] This was later affirmed in 2016 when the case again came before the Court. In a 4-3 ruling, Justice Kennedy, who wrote the majority opinion, outlined that affirmative action in college admissions was lawful as long as race was considered as a 'factor of a factor of a factor',[28] thus narrowing the policy of affirmative action even further.
The purpose of affirmative action in the twenty-first century is very different from the one intended in 1961. It no longer primarily exists to accomplish compensatory and distributive justice but to foster and ensure diversity.

V. The Academics’ View
As for educational experts, the issue is a polarizing one. Many have advocated for Harvard’s current process, outlining that the decisions of the US Supreme Court in Grutter v Bollinger suggests that the 'holistic' admissions policy tends to be fairer and more legally defensible than an outright mathematical formulaic approach.[29] Nonetheless, many also disagree. Richard D. Kahlenberg, editor of The Future of Affirmative Action: New Paths to Higher Education Diversity after Fisher v. University of Texas, maintains that America should implement laws to encourage students of all races who are economically disadvantaged.[30]

However, Kahlenberg’s proposition ignores one of the fundamental components of affirmative action, in that it brings about a form of utilitarian justice. The public at large greatly benefits from reduced racial inequality and particularly the educational experience of Americans has been greatly enhanced because of their association with a more diversified learning and professional environment.

VI. Affirmative Action in Danger
The support for race-conscious admissions policies gained momentum in recent months, as the reality has set in for many that with a new conservative-leaning majority on the US Supreme Court, the entirety of affirmative action is at risk. In July 2018, the US Justice Department effectively abrogated guidelines introduced by the Obama administration that encouraged colleges to promote diversity. In its place, a Bush-era document that advises universities to use 'race-neutral' admissions policies was re-issued.[31] The Trump administration has already declared that it will side against Harvard.[32] An analysis conducted by the New York Times in 2017 found that black and Hispanic students are less represented at America’s elite universities now than they were in the mid-eighties.[33] If affirmative action in college applications were to be rescinded, the number of black and Hispanic students would further fall significantly.

VII. Harvard’s Position

(i) Is Harvard culpable?
When William Fitzsimmons, Harvard’s Dean of Admissions and Financial Aid, was questioned in court as to whether Asian-Americans were disadvantaged in the admissions process, he declined the suggestion of Harvard having a hand in disadvantaging Asian applicants and rejected the perception of bias.[34] Instead he contended that if there was in fact bias, it originated externally, suggesting that there was an inadequacy of support from high-school teachers and guidance-counsellors in the recommendations of Asian students.[35] There is merit in this claim. In the US there remains widespread racial and socio-economic inequality in educational opportunities and this, in effect, is furthering the gap between low-income minority students (with many Asians represented within this category) and the more affluent white middle classes who have access to better resources and thus quality guidance-counselling, among other things.

The US Supreme Court may even have their share of the blame for this. In San Antonio Independent School District v Rodriguez, the Court refused to address the aforementioned disparities when they held that neither a right to education nor a right to address funding inequalities between state districts was recognised in the US Constitution.[36] Indeed, Harvard may not, in fact, be culpable in the current admissions debate.

(ii) How Harvard can win
For Harvard to succeed in this case, they must meet the standards set down in Bakke. Essentially, Harvard must demonstrate to the court that a process of 'strict scrutiny' was satisfied, in that the management of Asian applications was carried out in a way that considered the imperative of achieving a diverse student body and that any outcome that may resemble discrimination towards Asians was unintentional.

Concluding Remarks
Importantly, the result of this case will have no impact on those who gain admission through the legacy programme initiated by Harvard, whereby family of former Harvard alumni have major advantages in being accepted primarily because of their Harvard connections. Neither will this case impact those who gain admission through familial donations to the University and its faculty. Effectively, if the end result is a win for the plaintiffs, those who will be impacted most are of those of Hispanic and black ethnicity, the minority groups who largely suffer most from economic insecurity. Such a ruling would further expand the growing class divisions in the US. This would be the legacy of SFFA’s case.
In order to further the idea of racial inclusion, affirmative action needs to be protected. Racial inclusion brought about by race-conscious policies that have emphasised diversity benefits the US as a nation economically, socially and politically. It will be interesting to see how the case transpires over the coming months, in what will ultimately be a landmark decision.

[1] Mitchell H. Rubinstein, ‘The Affirmative Action Controversy’ (1985), Volume 3, Issue 1, Hofstra Labor and Employment Law Journal, 1.

[2] Brittany N. Ellis, ‘The Harvard Admissions Lawsuit, Explained’ (November 2016), The Harvard Crimson, accessed January 2019.

[3] P.R. Lockhart, ‘The Lawsuit against Harvard that could change affirmative action in college admissions’ (October 2018), Vox, accessed January 2019.

[4] Jeannie Suk Gersen, ‘At trial, Harvard’s Asian problem and a preference for white students from “Sparse County” ’ (October 2018), The New Yorker, accessed January 2019.

[5] ibid.

[6] ibid.

[7] Nick Anderson, ‘What gives you an edge in Harvard admissions? Check the trial evidence’, (October 2018), The Washington Post, accessed January 2019.

[8] Kadhim Shubber, ‘Asian-Americans ‘disadvantaged’ in Harvard admissions’ (August 2018), The Financial Times accessed January 2019.

[9] Suk Gersen (n 4).

[10] ‘The Harvard Plan That Failed Asian Americans’, The Harvard Law Review (December 2017), accessed January 2019.

[11] Harriet Alexander, ‘What is affirmative action in American universities?’ (December 2015), The Telegraph accessed January 2019.

[12] Rubinstein (n 1).

[13] Harvard Law Review (n 10).

[14] Regents of the Uni v. of Cal. v. Bakke, Legal Information Institute, Cornell Law School.

[15] ibid.

[16] ibid, 279.

[17] Harvard Law Review (n 10).

[18] ibid.

[19] ibid.

[20] Grutter v. Bollinger 539 U.S. 306 (2003), Justia, US Supreme Court.

[21] ibid, 309.

[22] Quick Facts: United States, US Census Bureau, accessed January 2019.

[23] Shera S. Avi-Yonah and Molly C. McCaferty, ‘Asian-American Harvard applicants saw lowest admit rate of any racial group from 1995 to 2013’ (October 2018), The Harvard Crimson, accessed 2019.

[24] Harvard Law Review (n 10).

[25] Paul Waldman, ‘The case that will destroy affirmative action in higher education’ (October 2018), The Washington Post, accessed January 2019.

[26] Fisher v University of Texas at Austin (2016),

[27] ibid.

[28] ibid, 5.

[29] Clarence D. Kreiter, ‘A Proposal for Evaluating the Validity of Holistic-Based Admission Processes’, (January 2013), Taylor & Francis Online, accessed January 2019.

[30] Richard D. Kahlenberg, ‘A Better Affirmative Action: State Universities that Created Alternative to Racial Preferences’, A Century Foundation Report, accessed January 2019.

[31] Shubber (n 8).

[32] Harriet Alexander, ‘Trump administration sides against Harvard in Asian-American affirmative action case’ (August 2018), The Telegraph, accessed January 2019.

[33] Jeremey Askenas, Haeyoun Park and Adam Pearce, ‘Even With Affirmative Action, Blacks and Hispanics Are More Underrepresented at Top Colleges Than 35 Years Ago’ (August 2017), The New York Times, accessed January 2019.

[34] Suk Gersen (n 4).

[35] ibid.

[36] Kimberly Jenkins Robinson, ‘Fisher’s Cautionary Tale and the Urgent Need for Equal Access to an Excellent Education’ (November 2016), Harvard Law Review, accessed January 2019.

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Secondary Schools Competition Winner 2019: The Right to Be Forgotten

Secondary Schools Competition Winner 2019: The Right to be Forgotten

Ciara Walsh, Ard Scoil na nDeise

A legal case which I have heard about, is the joint case between two businessmen in the United Kingdom, who for their privacy are being referred to as NT1 and NT2. These two men have been involved in separate crimes in the past and have served their time in jail for those crimes, but for this case have joined together to go against Google and The Information Commissioner in the High Court.


Their case is a part of the right to be forgotten cases involving criminals. The right to be forgotten is a new concept that has been discussed and is being put into use in  the European Union.This issue has come from many Ex criminals wanting to move on and develop their life in an autonomous way. Without constantly being reminded of past mistakes and getting mistreated by fellow citizens in their everyday life due to what they may have done.


In theory the right to be forgotten addresses many big problems in this world we live in where we are very dependant on the digital resources we have. Nowadays everything is documented online whether you want it to be or not, so in turn it can prove very difficult to escape or even forget about your past. Also to make this matter worse all of this information online will live on forever in the cloud.


Both NT1 and NT2 were aiming for an order directing google to remove certain search results to do with their previous convictions. This was on the grounds that these results included inaccurate, out of date and irrelevant information. Without having any big public interest or otherwise constituted an illegitimate interference with their right to be forgotten, as established in the google spain decision.


Google Spain SL Google Inc. v Agencia Española de protección de Datos, Mario Costeja González (2014), is a decision by the court of justice of the European Union. It was stated that the internet search engine operator was responsible for the personal information which appears on web pages published by other third parties. The decision was ruled as a so-called right to be forgotten,even though the Court did not explicitly grant such a right but instead depending on the data subject’s rights concentrating on Article 7- respect for private and family life and Article 8 - protection of personal data, the charter of Fundamental Rights of the European Union. In this case both Article 7 & 8  were breached.




The first man NT1 was caught for conspiracy to defraud customers as a part of a property business, he was released in the early 2000s. His application was first dismissed by the trial judge as he had failed to meet the criteria established by Google as some of his information was still in public interest.


As for NT2, Warby J granted the delisting order sought, saying that information about his criminal conviction for authorising illegal surveillance as part of his previous employment has become irrelevant and insufficient under Google spain, as there was no longer a public interest in this information regarding NT2.


After this, the length of the sentence and its relative placing on the scale of offences seemed to indicate a restriction of a right to be forgotten. But to those criminal convictions of a relatively less serious nature would still not be sure if their information would be amenable to delisting. This, relatively conservative, position was used in making the decision of the European Court of Human Rights in ML and WW v Germany. In this the court made the decision that Germany’s Federal Court of Justice refusing the opportunity to remover or anonymise material related to the applicants’ previous murder conviction on three different newspaper articles.


ML and WW, were both convicted of murdering a popular actor in 1993 and were sentenced to life but got granted probation in 2008. After being released they both went ahead to try get the three articles removed. After already going to Court in 2008, the Federal Constitution Court later declined to consider the constitutional appeals lodged by both ML and WW against the ruling of the federal court of justice. They later went on to apply for relief to the ECtHR alleging the rulings of the german courts had violated their rights under Article 8. The court of human rights dismissed an Article 8 ‘right to be forgotten’ application in respect of the historic publication by the media of information concerning the murder conviction. Later the court conferred by using Article 10 - the freedom of expression, in light of the prevailing and weightier, interest in the public access to information.


NT1 Case decision

In coming to a decision on the right to be forgotten, the court used both Google Spain and the EU Working Party guidelines on its application. They came to the conclusion that because NT1 was a public figure due to his role in public life and the information regarding his previous crime was still a matter of public interest. Also because he had spent less time in jail then sentenced to  due to a change in the law. The court rejected NT1’s claim to delisting, misuse of private information and said there could be no question of compensation or damages.




NT2 Case decision

Unlike NT1’s case the court decided to uphold NT2’s claim of inaccuracy on the basis that the relevant article was misleading involving the nature and extent of his crime. The court said it falsely accused NT2 of profiting financially due to his crime. Due to this and the fact NT2’s role in business now is quite different to what he did before serving time makes his past offences less relevant so the court decided to uphold his request of delisting and grant his inaccuracy and right to be forgotten claims. I think that under these circumstances this decision was correct and I agree with it. Due to the fact that this information was not important anymore and was also partially wrong, which means allowing this man and his family to move on and forget about what happened is the right thing to do.


Going on these outcomes the judge stated that it will be very likely to see many more cases like this in the future, going on the fact that NT2 succeed as a way to reinforce this idea of the right to be forgotten after serving time for a crime committed.

In my opinion having read about this case and others like this I think that the right to be forgotten should definitely be an option that is allowed to criminals on the smaller scale. Everyone deserves a second chance and we should at least try help them move on and start over after serving their time. After all isn't that what going to jail is about? To help criminals understand what they did wrong and give them the opportunity to make up for their mistakes. So for someone to serve their time only to come out after, to a life a lot worse then they went in, will only lead them to start committing more crimes because they have nothing else. They will feel like they have no reason to focus on bettering themselves due to constantly being reminded of past mistakes. I also think that we should try put less up on social media and in the media about criminals that is not hundred percent true and cannot be backed up with facts and evidence. Unless the information is relevant to the public it should stay some bit private. Also for the family of that convict it is not fair on them to constantly feel like people are talking about them and judging them. It's just not fair in my opinion, I believe in second chances and think most people deserve them.


‘Sometimes second chances work out better than the first because you learn for your mistakes’

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Alternative Perspectives Winner 2019: Legislating to Defend the French Language

Alternative Perspectives Winner 2019: Legislating to Defend the French Language

Sarah Greene SS French and Spanish

In November 2018, at the 17th Summit of Francophonie, Ireland was welcomed into an 84-country organisation aimed primarily at promoting French language, Organisation International de la Francophonie (OIF). In the past, French governments and monarchies have endeavoured to ensure French linguistic hegemony, historically by protecting the language against internal and external threats, such as regional languages, colonial languages and more recently, English. As France is soon to be Ireland’s closest EU neighbour, linking Ireland to the French language is seemingly a direct result of Brexit. Yet, the OIF has been heavily criticised for using the organisation as a vehicle for promoting and protecting French and agreeing with stringent regulation of the French language, as French is synonymous with France and has long been tied to the centralization of power, yet France’s language laws have arguably impeded the natural development of French.


The French language regulations cover a variety of public domains such as business, the courts, schools and media. The most explicit laws date back Edicts of Villers-Cotterêts in 1539, which ensure solely French could be used in legal proceedings, including courts, judgements and legal documents, mirroring the Romans’ Latin language policy. While the initial aim of this law was to discontinue the use of Latin, in the 19th and 20th centuries it impeded the use and transmission of France’s regional languages. The 1994 Toubon Law, a more modern variation of a decree in 1794, establishes French as the only language to be used in commerce, public spaces, the media and public service, essentially, linguistic censorship occurs. As there is a requirement that the French language be used in all audio-visual content with some exceptions, additionally, a minimum quota-system exists for French songs on the radio. These laws are explicit in their intent, only French is permitted to be spoken and used in France. The Law Bas-Lauriol (1976) which stated that exclusively using foreign words/language in the supply and demand for goods is forbidden further supports this. The extent of these policies can be summed up by President Jacques Chirac’s refusal to amend an EU Charter on Regional and Minority languages, which meant regional language schools needed to remain private and get limited state funding. In 2015, the Senate refused to ratify this charter again. However, apropos of new technologies, French cannot develop specialized words as quickly as new technology is invented, therefore English words enter the French lexicon, such as "hotspot", and by the time France has decided the technology’s name (point d’enregistrement hotspot), the English word has entered the French lexicon.


Yet the Toubon Law is worded in sufficiently broad terms to avoid raising legal issue in regards to its application to the cyber-economy. However, the French courts do limit the application of the law to service providers in France, the French Supreme Court has concluded that the Toubon Law adheres to EU law. As if to underline the legal stance, emphasis on customer safety, such as information leaflets or manuals, is predominantly focused on. The ferociousness that France defends its language arguably impedes the natural modernization of the language.


Often, languages reflect their societies, yet as it is more common to see women in positions of power, and as acceptance for trans-genders grows, France’s language regulations become more outdated. The Académie Française (French Academy) has long been the lexical guardian of French, yet is often criticized for not allowing the French language to evolve. In regards to women in the workforce, government titles of “le ministre” (minister) and not “la” for example, Mme l’académicien is the title of a woman in the French Academy and is never feminized. As Minister of Women’s Rights in the 1980s, Yvette Roudy pioneered feminization of job titles, despite being mocked by the media, yet she was le ministre (minister). However, it is important to note that the more prestigious the job, the less likely the titular change occurred, ‘secretary’ is feminized but ‘Secretary of State’ does not change and remains masculine. Nowadays, efforts have switched from gender parity to gender-neutral language laws in order to include everyone in France, consequently, Prime Minister Edouard Philippe made gender neutral French illegal to use in official government documents. Comparatively, in Spanish, there has been a linguistic acceptance of gender-neutral terminology in the lexicon, and many politicians are starting to avoid perceived sexism in their speeches. Thus, while the French Academy is strongly against changes to the French language, to safeguard the language’s purity; trans-people, women and French citizens are campaigning for more inclusive language terms (currently French only has two options “he” or “she”, comparatively in English, “they” is used, but plural third person is not gender neutral in French). This has not stopped younger generations attempt to modernize the language themselves, from orthographical changes like écrivan·e·s (writer) to inventing their own pronouns (eul/ile). Additionally, street slang reflects France’s colonial history as Mahgreb loanwords frequently appear in younger generations’ lexicon, without being permitted by the rigid language legislation.


The French language has been treated by successive governments of the symbol of France, of national unity, and as a marker of the country’s identity. In 1992, French was reinforced in the Constitution (article 2) of its status of the language of the Republic. Yet, French history has proven that language laws will not impact most French people’s language use, rather the legislation is seen as a symbol of protection of the language of Molière. However, legislating in defence of French has arguably hindered the modernization of the language. The younger generations typically influence language change and modernization, as their language reflects their environment, which is usually different from the older members of the French Academy.

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Children’s Best Interests? A Constitutional Question

Children’s Best Interests? A Constitutional Question

Jamie Aspell

The past decade has been a landmark in modernising and liberalising the Irish Constitution. The marriage equality referendum in 2015 and the abortion referendum in 2018 addressed two of the most controversial issues which have ever arisen in Ireland regarding constitutional rights. In 2012 it seemed as though the matter of children’s rights, under Article 42 of the Constitution, had been resolved in a similar manner when the 31st Amendment was passed in referendum (known as the children’s referendum). Although issues regarding voluntary adoption and children’s views being given weight in custody proceedings were addressed, the amendment failed to satisfactorily address one crucial area: the primacy of parental rights under the Constitution. In this article I will discuss where children’s rights stand after the 31st Amendment, and the questions which Irish courts will have to continue to wrestle with in the future.

History of the ‘Best Interests’ Test

The issue which arose from the original wording of the Constitution was essentially that Articles 41 and 42 of the Constitution gave very strong protections to the institution of the marital family, whilst making very limited reference to the rights of the child. The result was that in matters of child custody or any proceedings concerning the welfare of the child, a parent-centric view tended to be observed by the courts. According to the Report on the Kilkenny Incest Investigation, the courts at times interpreted the Constitution as giving ‘higher value to the rights of parents than to the rights of children’.[1]

The truth of this statement became apparent shortly after the introduction of the Guardianship of Infants Act 1964. Under section 3 of the Act, in any proceedings concerned with the ‘custody, guardianship or upbringing of an infant’, the courts would regard the ‘welfare of the infant as the first and paramount consideration’.[2] The question to be addressed here was how this legislation would line up with the constitutional framework which preceded it. This was answered partly in State (Nicolaou) v An Bord Uchtála.[3] This case concerned an unmarried father who wished to have an adoption order that had been made without his consent quashed. Rather than employing section 3 of the Guardianship of Infants Act in a manner which made the welfare of the child the paramount consideration, the High Court instead based its decision upon the respective rights of the mother and father, ultimately finding in favour of the mother. The key point here is that the case did not revolve around the welfare of the child, but rather around resolving the conflicting rights of the mother and father. This approach was followed in the case of G v An Bord Uchtála,[4] where the court put the constitutional rights of an unmarried mother before the welfare of her child, again basing the decision upon parental rights rather than the rights of the child. In assessing these cases, Harding astutely summarised the approach employed by the courts as being ‘far removed from putting the welfare of the child first as mandated by s 3 of the Guardianship of Infants Act’.[5]

The dangers of such an approach become very apparent when looking at the case of M v An Bord Uchtála.[6] Here, a child was given up for adoption and successfully placed with a family. However, the original adoption order was found to be defective. The natural parents of the child had since married and, four years after the child had been placed with the adoptive parents, looked to enforce their constitutional rights as a family. The Supreme Court ruled in favour of the plaintiffs, thus ordering the return of the child six years after he had been placed with his adoptive family, without giving ‘any consideration to the issue of whether a change of custody would be harmful to the child’.[7] The parent-centric approach employed by the courts here belies any interpretation of the Constitution which would put the interests of the child as their paramount concern.

More recently, the Baby Ann case[8] showed that the judiciary continued to hold this parent-orientated view in the 21st century. The case also gave a clear articulation of the judicial presumption that the interests of the child are best served in the marital family. Fennely J stated that there is a ‘primordial constitutional principle that a child’s welfare is best served in the heart of its natural family. It is well established and widely known.’[9] The judicial standpoint on the issue was clear: the judiciary had decided that under the Constitution, the best interests of the child were best served in the family, and not on the basis of a test which looked at what was objectively best for the child.

The 2012 Children’s Referendum

This brings us to the focal point of this article, the 2012 children’s referendum, in which the Irish people voted in favour of the 31st Amendment of the Constitution. This referendum came as a result of unease surrounding the cases just discussed, alongside controversy surrounding restrictive adoption regulations. The enactment of the amendment was delayed as it faced a challenge to its constitutionality,[10] however the challenge ultimately failed, and the enactment finally came into effect in 2015. Considering how recent this development is, the full ramifications of the amendment are still being tested. However, by looking at how the text of the Constitution has been altered, alongside some of the effects it has had, a limited assessment of the amendment can be made.

Articles 41 and 42

A point which is important to firstly note is that the Amendment did not alter Article 41 or Articles 42.1- 42.4 of the Constitution. I would like to draw attention to Articles 41.1 and 42.1.

Article 41.1 states:

1 1° The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.

2° The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.

Article 42.1 states:

The State acknowledges that the primary and natural educator of the child is the Family and guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children.

The retention of these articles is very significant, as it is from them that the courts have traditionally upheld the primacy of the rights of the family in the Constitution, as previously set out in the first part of this article. Language such as ‘inalienable and imprescriptible rights’ has not been altered, and as such it seems that the basis for prioritising the rights of parents over those of the child has been retained. Harding therefore posits that the effect of the 31st Amendment will not be to create a test that objectively judges what is best for the child, rather the ‘creation of an extra layer of abstract concerns in the form of children’s rights will render decisions even more complicated’.[11]

Article 42A

The actual effect of the Amendment was to delete Article 42.5 of the Constitution. This was the provision which had previously provided for the grounds upon which the state could interfere with the constitutional rights of the family. The threshold for this has traditionally been very high, with the courts taking a rather conservative approach in overriding the rights of the family. The 31st Amendment replaced this provision with Article 42A. In order to address concerns that had arisen from the cases previously discussed, this provision intended to introduce a child-centric test for constitutional rights as well as to update the conditions for voluntary adoption and give weight to the views of the child in custody proceedings. While these latter two objectives have been achieved, it is questionable whether the amendment went far enough to ensure that a child-centric test would replace the parent centric one that had been employed by the courts up until this point.

For the first time, the Constitution contains an explicit recognition of children’s rights. Article 42A.1 states that ‘The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights.’

However, the significance of this provision is limited, as judges have already accepted that children’s rights are contained within the Constitution.[12]

Article 42A.2.2° states that ‘Provision shall be made by law for the adoption of any child where the parents have failed for such a period of time as may be prescribed by law in their duty towards the child and where the best interests of the child so require.’

This new provision at first seems to endorse the idea of a child-centric best interests test with constitutional recognition. However, it is important to bear in mind that there is already a judicial presumption under the Baby Ann case[13] that the best place for the child is within the marital home. Also, as previously discussed, the ‘inalienable right’ of parents under Article 42.1 remains intact.  As such it is uncertain whether this provision could be interpreted so as to result in a different test to that which has been previously employed.

An Alternative Approach

In assessing the shortcomings of the 31st amendment, it is useful to compare it to the amendment that was proposed by the Joint Oireachtas Committee on the Constitutional Amendment on Children in February of 2010.[14] This suggested amendment deletes Article 42 and replaces it with an entirely new version. This version would have allowed for voluntary adoption and giving weight to the views of the child in custody proceedings in a similar fashion to Article 42A, while also going further in promoting a child-centric best interests test. The relevant text of the proposed amendment reads as follows:

  1. 1° The State shall cherish all the children of the State equally.

2° The State recognises and acknowledges the natural and imprescriptible rights of all children including their right to have their welfare regarded as a primary consideration and shall, as far as practicable, protect and vindicate those rights.

3° In the resolution of all disputes concerning the guardianship, adoption, custody, care or upbringing of a child, the welfare and best interests of the child shall be the first and paramount consideration.

The similarity to Article 42A here is obvious, in that this version also includes an explicit recognition of children’s rights for the first time. However, an important distinction is pointed out by O’Mahony,[15] who notes that the best interests test set out in this version is not subject to the phrase ‘provision shall be made by law’. The distinction here is that there is currently a constitutional obligation only to legislate for a best interests test,[16] which has been done since the Guardianship of Infants Act 1964.[17] Under this alternative amendment, the best interests test itself would receive constitutional protection.

Important also in this alternative amendment is that it deletes the provision of Article 42 concerning parents’ rights,[18] and replaces it with the following text:

3 – The State acknowledges that the primary and natural carers, educators and protectors of the welfare of a child are the child’s parents and guarantees to respect the right and responsibility of parents to provide according to their means for the physical, emotional, intellectual, religious, moral and social education and welfare of their children.

The distinction here is that the rights of the parents are not ‘inalienable’ as they are under the current version of the Constitution. The Report of the Constitution Review Group suggested that the use of the words ‘inalienable’ and ‘imprescriptible’ in Articles 41 and 42 ‘potentially places too much emphasis on the rights of the family as a unit as compared with the rights of individuals within the unit.’ They suggested that such adjectives should be deleted from these provisions of the Constitution.

This version of the Amendment adheres much more closely to the Report’s recommendations than Article 42A, in that it promises only to ‘respect the right’ of the parents under Article 42 and deletes the word ‘inalienable’. Given the importance the court has attached to such language in the past, in conjunction with constitutional guarantees set out for children’s rights in the previous provisions, this version of the Amendment could have gone far enough to rebut the presumption that the best interests of the child are best served in the marital family and paved the way for the introduction of an objective best interests test for children.

2015 Children’s Act

The best interests test set out in Article 42A[19] was given effect in the Child and Family Relationships Act 2015. This best interests test has been considered by the court on five occasions since its implementation.[20] However, none of these cases have dealt with the conflict between parental rights and children’s right. As such, it has yet to be tested in court whether this new best interests test is in any way substantively different from the test which preceded it.

The judicial commentary that does exist on the matter is conflicted. In PH v Child and Family Agency, Humphreys J stated that Article 42A did not take away from the marital presumption, stating obiter that the presumption should apply ‘in favour of the child’s best interests lying with the society of its parents’.[21] This supports the old standpoint on the welfare test, and if correct, would mean that Article 42A had little to no effect on altering its parent-centric standpoint.

On the other hand, in M v Minister for Justice and Equality, the Supreme Court noted the problems which existed prior to the enactment of Article 42A in relation to the rights of the child within the family.[22] They referred specifically to the presumption of it being in the best interests of the child to be with its natural parents and suggested that it could be inferred that Article 42A was meant to change the law in this regard.[23] If this view were to be expanded upon by the judiciary, it is possible that a child-centric best interests test could finally be implemented.


The full implications of the 2012 referendum for a child-centric best interests test are as of yet unclear. The courts have yet to test the new provision, and the limited case law which does exist on the matter is conflicted and does not establish a binding interpretation. What is clear is that a lot more could have been achieved by the 31st Amendment. A version closer to that which was proposed by the Joint Oireachtas Committee in 2010 would have moved the courts away from the marital presumption, and towards an objective test for assessing the best interests of the child. As it stands, we have been left with an Article which confuses the matter instead of clarifying it. The future of the best interests test has been left in the hands of the courts, a position worryingly similar to that which existed prior to 2012.




[1] South Eastern Health Board, Report on the Kilkenny Incest Investigation (1993), 96.

[2] Guardianship of Infants Act 1964, s 3.

[3] State (Nicolaou) v An Bord Uchtála [1966] IR 567.

[4] G v An Bord Uchtála [1980] IR 32.

[5] Maebh Harding, ‘Constitutional Recognition of Children's Rights and Paramountcy of Welfare’ [2013] International Survey of Family Law, 181.

[6] M v an Bord Uchtála [1975] IR 81.

[7] Gerard Hogan and Gerry Whyte, Kelly: The Irish Constitution (5th edn,

Bloomsbury professional 2018) 2291.

[8] N v HSE [2006] IESC 60, IR 374.

[9] Ibid 592.

[10] Re Referendum Act: Jordan v Minister for Children and Youth Affairs [2015] IESC 33, [2015] IR 232.

[11] Harding (n 8) 194.

[12] G v An Bord Uchtála (4) 55.

[13] N v HSE (n 11).

[14] accessed 13 January 2018, 15 – 17.

[15] Conor O’Mahony, ‘Falling short of expectations’ [2016] IPS 252, 264.

[16] Art 42.2 2°.

[17] O’Mahony (n 24) 264.

[18] Art 42.1.

[19] Art 42A.4.1°.

[20] NK v SK [2017] IECA 1; PM v VH [2018] IECA 4; In re the Adoption Act 2010, s 49(2) and JB (a minor) [2018] IESC 30; AMQ v KJ [2018] IECA 97; Child and Family Agency v LB [2018] IEHC 423.

[21] PH v Child and Family Agency [2016] IEHC 106

[22] M v Minister for Justice and Equality [2018] IESC 14, [2018] 2 ILRM 81.

[23] Hogan and Whyte (n 10) 2298.

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