Last November, the Mattone Center co-hosted a regional conference of the International Consortium for Law and Religion Studies. The conference, “Education, Religious Freedom, and State Neutrality,” brought together scholars and jurists from the United States and Europe to compare approaches to these subjects in their respective countries. Participants were invited to submit short reflections. Sylvie Bacquet (University of Westminster) submitted the following reflection, which we are delighted to publish here.
Public funding of religious schools depends largely on how religion is positioned within each state’s constitutional framework. While some countries such as the UK, Belgium or Canada accommodate faith schools within a state funded structure, others such as France and the US have constitutional restrictions linked to secularism models. There are different levels of funding but usually, higher levels of funding come with increased state regulation. Such regulation may limit the autonomy of faith schools to admit pupils solely on the basis of the school’s religious ethos. This paper examines the extent to which receiving public funding may limit a faith school’s freedom to filter the admission of students according to their religious affiliation. Particular attention is given to the specific examples of England and France given that their church-state relations systems are at polar opposites and affect school funding radically differently. I will argue that while state funding places limitations on the autonomy of the religious school, it also ensures a level of oversight which protects against discrimination, preserves children’s autonomy and protects the right to education.
The UK Context – state funding with relative autonomy
The UK education system is rooted in the establishment of the Church of England. As a result, one third of state-funded British schools have a religious character. While the majority are Christian, a growing number represent other denominations including Judaism, Islam, Sikhism and Hinduism. These schools benefit from certain exemptions in relation to admission of pupils and staff and when oversubscribed can use faith as an admission criterion, therefore prioritizing applicants of their own faith (s.11 of the Equality Act 2010). In England, admission criteria are dependent on the funding agreement of each school type. In practice, religious schools of minority faith are almost always oversubscribed given that they represent a smaller proportion of faith schools. In contrast, Church of England schools, are in greater number due to their association with the established church and therefore are more likely to have places available for all applicants not just those affiliated with their faith.
There are broadly speaking three categories of faith schools: voluntary aided, voluntary controlled and faith academies. Each receives a different type of state funding.
Voluntary aided (VA) schools receive funding for their day to day running costs from the local authority and the Department for Education (DfE) provides capital grants for major building projects. This typically covers 90% of the costs of the school while the remaining 10% must be met by the schools’ governing body. Voluntary aided schools design their own admission policy and if they are oversubscribed can give priority to applicants of their own faith.
Voluntary controlled (VC) schools also receive funding from the local authority to cover their running costs and staff salaries. While the local authority employs staff and is the main admissions authority, the school’s land and buildings are usually owned by a charitable foundation, and the local authority may consult with this foundation on admissions policy. Unlike VA schools, VC schools do not have to contribute to the costs of the school. As a result, admission policies may not always prioritize religious applicants. The local authority typically gives priority to those who live close to the school (proximity), those who have a sibling at the school, children in care and those with an Education Health and Care Plan.
Faith academies were introduced in 2000. Unlike VA and VC schools, their funding comes from central government rather than local authorities. The academy trust is responsible for how the money is used and they are accountable to the government for performance and financial management. They have more autonomy in their governance and operations compared to community schools as described above. Admission criteria are set out in their funding agreement, but academies are generally responsible for setting their own admission criteria. Like other faith schools, they can discriminate on the basis of faith when they are oversubscribed. Since 2007 however there is a 50% cap on religion-based admission to protect inclusivity. As a result, those schools may only select up to 50% of pupils based on religion when they are oversubscribed. The cap only applies to entirely new academies and free schools.
In 2024, under the Conservative government, there was an attempt to scrap the 50% cap so that faith academies were no longer restricted but this was later abandoned due to a lack of public support and concerns about equality and discrimination by organizations that campaign for the abolition of faith schools such as the Secular Society. The primary motivation behind the proposal was to support the expansion of free schools by addressing the restrictions imposed by the current 50% admissions cap, which some faith groups view as conflicting with their religious obligation to prioritize children of their own faith. Critics of the proposed reform were particularly worried about the impact this would have on children with disabilities and more disadvantaged children generally as there is evidence that faith schools are less inclusive in relation to those children.
Admission criteria and Case Law
The UK school admission code 2021 provides statutory guidance on religious selection by faith schools and stipulates that faith schools are required to consult with their respective religious authorities when designing their faith-based admission criteria. This was initiated following persistent concerns about faith schools’ policies and a number of judicial interventions. It has been argued however that ‘this complex intertwinement of religious and state authorities has led to an unjustified intrusion of the secular into religious matters’ (Myriam Hunter-Henin, 2018).
In order to be considered a priority applicant for the purpose of the oversubscription criteria applicants are usually required to demonstrate their belonging to the faith through a supplementary information form (SIF). Depending on the schools those requirements may be more or less stringent and as a result may exclude certain groups within the communities. In the UK, this was the subject of a Supreme Court case in 2009. In the JFS case, the UKSC held that JFS school, a modern Jewish Orthodox school had discriminated against the applicant on the basis of ethnic origin when he was denied admission due to his mother’s ethnic origin which was not deemed halachically Jewish as she had undergone a process of conversion. In other words, the applicant did not satisfy the matrilineal test used by JFS at the time to determine his connection with Orthodox Judaism. Following the ruling, JFS changed its admission criteria to a point system based on religious practice rather than matrilineal descent. Those point-based systems however remain controversial as they might exclude certain applicants. This was recently put to the test in a High Court decision.
In CKT v. OSA, High Court of England and Wales examined whether a Church of England school was ‘indirectly discriminatory’ in relation to the protected characteristic of race. Twyford school provided for the allocation of an extra point (‘Church of England Point’) in their admission criterion for certain applicants: One point is awarded to applicants whose family’s main place of worship is at a Church of England church or Churches in Communion with the Church of England.
While the claim failed on the basis of race discrimination, the court nonetheless acknowledged [para 194] that faith-based admission criteria are likely to cause indirect discrimination. On this occasion the extra point was found to be a proportionate mean of achieving the school legitimate aim, in this case preserving an Anglican ethos.
As mentioned above, those who campaign to end faith schools however have highlighted that faith-based criteria lead to discrimination not only based on race but also disability and lower socio-economic backgrounds.
The case of France – limited public funding with controlled autonomy
In France, where article 1 of the Constitution provides for strict separation between religion and the state, the situation is completely different due to the principle of laïcité and the law of 1905 which prevents the state from remunerating religion. As such, state schools which are publicly funded must not be associated with religion, this includes funding, teaching and the display of religious symbols (Law of 2004 on the wearing of religious symbols at school). Schools with a religion denomination exist but they are usually within the private sector and do not receive state funding, with the exception of private schools called ‘sous contract’. Those schools have an agreement with the state which imposes certain conditions in exchange for funding.
Private schools under contract (‘sous contrat’)
Private schools may enter into agreements with the state, becoming ‘sous contrat.’ These schools receive public funding in exchange for adherence to the national curriculum and non-discriminatory admissions. Teachers are employed and remunerated by the state, and religious instruction must take place outside official school hours. While these institutions may retain a confessional ethos, they are prohibited from selecting students based on religious affiliation. 96% of private schools under contract are Catholic while the remaining 4% is made up of Jewish, Muslim, Protestant and secular schools. This model integrates faith schools into the public system under strict regulatory control, ensuring both access and accountability.
By contrast, private schools deemed ‘hors contrat’ do not receive public funding but enjoy complete autonomy over curriculum and admission (Loi Debré 1959). They currently only represent 4.4% of the student population but are increasing in number. Concerns have arisen regarding inadequate oversight, particularly within ultra-conservative or extremist institutions, leading to closures by the Ministry of Education. The French model thus demonstrates the state’s preference for regulation through funding.
Discussion: state funding as a limitation or safeguard?
State funding inevitably restricts religious autonomy, but it also ensures adherence to equality norms and protects the right to education. Critics of faith schools, including Humanists UK and the National Secular Society, argue that faith-based admissions undermine social cohesion and perpetuate segregation. Data from the UK suggest that faith schools are more socially selective than non-religious schools, with disparities in Free School Meal eligibility reflecting socio-economic stratification. Nevertheless, advocates assert that faith schools contribute positively to moral development, community engagement, and academic performance. There is also evidence to show that faith schools have better academic results although this has been debated as some have argued that it is mainly as a result of socio-economic factors.
While state funding may indeed impose limitations on the autonomy of faith schools and religious communities, they can also provide a level of scrutiny and accountability by acting as a safeguard against potential discrimination, segregation or indoctrination. There is evidence to suggest that this has been an issue especially with schools which fall outside of public funding.
Ultimately, the challenge is to balance the competing interests of parents to educate their children according to their religious convictions and the interests of the general public to be protected from discrimination in education. If there was no public funding available, it may marginalize religious communities which are poorer. Left unregulated however, faith-schools and schools in general may pose a threat to children. There have been reported cases of gender segregation, failure to provide core curriculum teaching, safeguarding risks and exposure to extremist ideology.
Conditional funding therefore not only ensures fair distribution of public resources but can also be seen as a proportionate mean of achieving the legitimate aim of protecting tolerance and equality in a pluralist society. As such, it cannot be found in breach of the right to religious freedom.
The English exemption of allowing schools to give preference to applicants of their own faith when the school is oversubscribed seems reasonable as this usually affects schools of minority faith which make up for a small proportion of all faith schools. The imposition of strict quota in this instance would be counterproductive but in a schooling system where a third of all schools are faith-schools, the imposition of a quota on certain types of schools is a reasonable intervention to ensure public values are respected.
Conclusion
The comparative analysis of England and France illustrates how the relationship between religion and the state fundamentally shapes the administration of faith schools. In England, state funding is compatible with a degree of religious autonomy, yet the 50% admissions cap and related equality frameworks reflect the government’s ongoing attempt to balance inclusivity with respect for faith identity. In France, by contrast, the principle of laïcité establishes a stricter divide between state and religion, with public funding conditional on the renunciation of religious selection. Both models demonstrate that state funding inevitably imposes limits on religious freedom, but these limits serve an essential function in safeguarding equality, protecting children’s rights, and ensuring public accountability.
Ultimately, public funding should not be viewed solely as a constraint on religious schools but as a mechanism that reinforces pluralism within a democratic society. Conditional funding provides a means to reconcile faith-based education with universal principles of non-discrimination and social cohesion. The challenge for policymakers lies in maintaining this delicate equilibrium ensuring that religious diversity enriches, rather than fragments, the public education landscape.