How school management can respond to difficult legal challenges in Ireland
The presence of difficult legal challenges in the Secondary Education sector of which I am familiar is omnipresent. Not a day goes by where you are not aware of your actions or teaching manner, as being unaware of these could result in difficult legal situations. I suppose the most common one that I would think of would be child protection and liability.
What makes legal challenges so complex within a school management context, is the trifold nature of any school and legal decisions to be taken. Trifold in this case, recognises the unique three-part relationship of school, parent and student. The Irish Constitution itself recognises this; Article 42.1 provides:
“The State acknowledges the primary and natural educator of the child is the Family and guarantees the inalienable right and duty of parents to provide, for the……education of their children” [1]
So, while it may be an inconvenience to schools, they must respect this right of the parent, the Education Act 1998 provided that the parents of students of a recognised school may establish…. a parent’s association[2].It cannot be ignored that the tripartite legal obligations of each party must be allowed to exercise their rights and functions in accordance with the Constitution and the Education Act amongst various other legal sources. The case of Stokes (A Minor) v Christian Brothers High School Clonmel, highlighted how the integral nature of this three-part relationship must be well balanced and each must be accountable for the state of education in Ireland.
In the case of Stokes v CB High School, the question of disadvantage or indirect discrimination was one that was applied in this case by the Supreme Court. Critically though, the disadvantage could not be strictly limited to the individual case of Stokes. While the Supreme Court did not find in favour of Stokes, Clarke J made the point that at its most simple, the argument is that such a rule significantly impacts in a discriminatory way against members of the Travelling Community[3]. In general, the question of legal challenges in school, fundamentally they must all be difficult legal challenges. It is rare for the legal outcome of cases involving both schools, parents and students to not have a huge impact and in some cases a far-reaching impact.
Education is one of the few issues in society that impacts every corner of life and every corner of society. It is after all intrinsic to our society in Ireland, it is a rite of passage for all children that they attend some sort of school. Education is essential for the growth and development of children and of society, that is the nature of education.
I think it is assumed that legal challenges associated with schools are often discipline related to suspensions, exclusions and criminal activities on school property. In reality a lot of the legal challenges that are presented to schools are not so much discipline issues but administration issues such as admissions, equality, employment and religious issues.
For the purpose of this discussion I am going to focus on a few key legal areas, employment issues, admissions policies and discipline issues. I think with this combination I will give a good overview of the 3-part relationship as each area I will focus on is more relevant to one particular group.
First of all, employment issues; the education sector is rife with employment issues which concerns teachers of course. The courts are very reluctant to get involved in issues of school management and the day to day running of the school. Where the courts make decisions on school matters they will rely in a huge part on the school policy and procedure. In any matter that comes before the courts, the Judge will want to know what the school policy and procedure are for the matter, and then essentially whether this policy or procedure has been followed. In the case of Becker v Duggan (2005)[4], O’Neill J granted a certiorari order in favour of the applicant due to procedures not being followed.
A key decision regarding workplace bullying was made during the case of Ruffley v Board of Management of St Anne’s School[5],that workplace bullying was to be judged objectively and not subjectively. This was one of the rare times that the courts provided guidance for schools and BOMs in the case of legal issues.
A lot of the time legal proceedings can take the form of judicial review. Judicial review in the context of school management usually takes place under the auspices of a challenge by an individual to an administrative decision by a private body, and if the case is appealed further it would be a challenge to a decision made by a judge of an inferior court. As highlighted by Tom Mallon BL, a recent development in the area of judicial review and decisions that may be appealed is that there must be focused reasons for a decision and that failure to provide such reasons is grounds enough for a review. Indeed, this opinion was illustrated with Fennelly J, who in a Supreme Court decision said that;
“ the most obvious means for achieving fairness is for reasons to accompany the decision” [6]
It is also important to note at this point that the issue of public and private law has also been widely discussed in relation to employment legal challenges in the education sector. There is discussion about whether teachers as employees of their respective boards of management and by extension, employees of the Department of Education (in publicly funded schools) should be covered under public law, as their relationship with the State body is so integral, or whether they should be covered under private law which concerns contract and employment law. It is inconceivable that either could be considered in isolation. A good example of this is within Section 24 of the amended Education Act 2012, it provides that the Principal shall appoint teachers and other staff….and may suspend or dismiss such teachers and staff[7]. This clearly gives Boards of Management the discretion to appoint and dismiss teachers and staff. But this must go hand in hand with a Circular issued by the Minister for Education in 2009, and which has carried forward over the years. Which states, that there are no circumstances under which a Board of Management may fill a permanent vacancy arising in September, 2008 where there are teachers remaining on the relevant panel for redeployment other than through the panel.[8]Clearly showing the complicated relationship which exists between boards of management and the Department of Education. I myself work in a fee-paying secondary school, in which giving due regard for these types of regulations are usually seen as optional rather than obligatory. I think the challenge for schools that fall into this fee-paying category is the balance of the legal and moral obligations towards staff. While there have been no cases taken yet, as I believe it would be impossible to bring a case against a fee-paying school, I certainly have experienced the effects, which take the form of low staff moral and high staff turnover.
Admissions policies are the schools ‘checklist’ of eligibility for entry. They define the categories into which students may fall into in which they would receive an offer of admission into schools. They are described in legislation as a policy which, provides for maximum accessibility to the school[9]. Usually maximum accessibility gives the advantage to those who find favour with the admissions policy. A lot of the time, these admissions policies work effectively and provide an efficient framework within which schools can offer places to the most deserving and suitable students. Of course, it does not work, for various reasons, all the time, as the Stokes case indistinguishably demonstrates.
The rule of objective justification is an interesting one. It does not seek only to find that a situation or decision is correct or incorrect, but that taking all circumstances and opinions into consideration, whether or not the outcome contained the correct balance of necessity and appropriateness.
To apply these criteria as Judge Teehan did in the Circuit Court judgement he said;
“I am satisfied that groupings such as members of the Travelling Community…...are particularly disadvantaged by such [a] rule. [10] ”
This gives us the decision on whether the situation is correct or incorrect, Teehan J, goes on to say;
“The Appellant has thus objectively justified to the satisfaction of this Court that the aim of the Board in this regard was wholly legitimate” [11]
This part of the judgement considers the appropriateness and necessity of the situation and as we can see Teehan J, finds the Appellant to have objectively justified the need for the admissions policy.
In the context of the Stokes case and in any case where there is a question of discrimination it is vital to refer to the Equal Status Act 2000. It describes discrimination simply as happening where; a person is treated less favourably than another person is, has been or would be treated.[12]The Act specifically mentions certain categories which may be discriminated against e.g. That one is a member of the Traveller community and the other is not (the “Traveller community ground”)[13]. These provisions provided the grounding for Ms Stokes to make her claim against the school admissions policy.
Many of the claims against school admissions policies challenge the religious aspect of the admissions policy, which in my experience gives preference to those who may have been baptised in a certain parish or attended a certain religiously denominated primary school. It poses an interesting question as to the validity of the Constitution in the modern-day world. Specifically, I refer to Article 44.2.2 which prohibits State endowment of religion, while Article 42.2.3 prohibits the State from making any discrimination of the ground of religious profession, belief or status. [14]It is interesting that the Constitution can be so bold in its strong obligation not to give any advantage to a certain religion, when the opening lines of the Constitution read as such;
“In the Name of the Most Holy Trinity, from Whom is all authority and to Whom, as our final end, all actions both of men and States must be referred, We, the people of éire, Humbly acknowledging all our obligations to our Divine Lord, Jesus Christ” [15]
How can the State truly say it does not endow any religion or give favour to any religion until the opening lines of the Constitution are amended? Going hand in hand with the Constitution’s outdated religious fervour goes the Rules for National Schools 1965 with which feminists and atheists could find a veritable plethora of ammo. It states that;
“Of all the parts of a school curriculum, religious instruction is by far the most important…. Religious education is therefore a fundamental part of the school course [16]
Although further on in these rules it does outline some of the subjects which may only be taken by Girls; Cookery, Laundry, Needlework. [17]Obviously, this dated material has been superseded by the various curriculum guidelines over the years. It makes one wonder how the blatant “pledge of allegiance” to Our Divine Lord Jesus Christ, has not been taken out of the Constitution yet. Barrington J makes the point which excuses schools from these matters saying;
“If a school was in receipt of public funds any child, no matter what his religion would be entitled to attend it” [18]
Surely this conflicts with the most admissions policies in denominational schools. For example, taken at random, the admissions policy of Glenageary Killiney National School states;
“One of the functions of the Board of Management is to foster and uphold the characteristic spirit or ethos of the school as a Church of Ireland primary school. Determining the admission of children to the school is an essential aspect of the discharging of this function of the Board of Management”. [19]
All seems fine so far, there is nothing wrong with a school having an ethos of the Church of Ireland faith, or any faith whatsoever. It asks parents to submit as part of the application a baptismal certificate signed by the Rector/Minister of the church attended. This admissions policy provides for 5 different categories within which prospective students could fall into. Categories 1-4 all mention specifically the word Christian and refers to specific denominations. There are no mentions of any other categories such as son of a past pupil as was the point for contention in the Stokes case. It seems incredible to me that a primary school can have such stringent denominational policies for places in the school.
Article 14 of the European Convention on Human Rights contains many of the different discriminatory categoriesas the Irish Constitution does. However, it also contains the words or other status, leaving it wide open for a seemingly unlimited potential for discrimination. [20]. At the same time, the article's protection is limited in that it only prohibits discrimination with respect to rights under the Convention. Thus, an applicant must prove discrimination in the enjoyment of a specific right that is guaranteed elsewhere in the Convention (e.g. discrimination based on sex – Article 14 – in the enjoyment of the right to freedom of expression – Article 10).
The topic of discipline in schools is one that is most familiar to all teachers, it is a challenge that is encountered every day in schools. From the mundane tuck in your shirt or stop talking to the more serious, it is natural for teachers to undertake discipline in the course of their school day. What is not natural is the serious cases, where the school code of behaviour is breached and there are serious consequences for students, such as suspension or exclusion. These are the cases with which exception is taken and students have the opportunity to appeal decisions made by their schools. Student misconduct and discipline issues are constantly increasing in all areas of education[21]. The process by which parents or students can appeal decisions made in schools are through the appeals process outlined in Section 29 of the Education Act. This appeal will first be conducted at a local level without intervention by the courts. Although it may, if either party is not satisfied with the outcome, can be escalated to involve the courts. It has become apparent that judges within the courts system of Ireland are very hesitant to enter into school issues and will usually only rule on whether procedures have been followed and if policies have been implemented correctly. This is demonstrated in the case of City of Waterford VEC v Secretary General of the Department of Education where Charleton J, finds that;
“The High Court having a supervisory jurisdiction over administrative and judicial tribunals, is not entitled to engage in a usurpation of any fact-finding powers which is conferred on these tribunals or to otherwise take on their function. Instead, any decision as to the merits may only be reviewed of, of its nature, is unreasonable in sense that is plainly and unambiguously flies in the face of fundamental reason and common sense.” [22]
One must first ask the question as to whether the courts is really the desirable location to determine integral parts of students’ lives such as education. By location I refer not only to the physical location but also whether the decision of expulsions or suspensions really need to be brought before learned judges and legal experts to determine if they have been necessary. Finlay P, determines the following;
“Communication should in the first instance [between parents and school authorities], at least be direct and should not preferably, and certainly not as a right, be through legal representatives” [23]
This applies not only to discipline issues but also issues in terms of employment of teachers, promotion of teachers etc. Simply put, the tribunals created through Section 29 appeals are the fact-finding groups and the High Court will simply decide whether they have been fair and followed with fundamental reason and common sense.
Charleton J, perfectly sums up this point;
“The inability of the High Court to substitute its own view. The decision must be returned to the appropriate tribunal so that it may be considered afresh” 22
I think this is an extremely healthy way for the system to operate. After all it is the teachers who are the experts in education, in the same way a judge could not tell a brain surgeon he had not done his job correctly, a judge would be unable to determine a decision regarding the school without being a part of the environment.
The danger with the tribunals is that they may exceed their jurisdiction or remit and that is why the decisions they make may subsequently be quashed by the courts. This is what happened in the Waterford VEC v Department of Education case. Charleton J summed up by saying;
Judicial and administrative tribunals should give reasons for their decisions. These need not be elaborate……but must be such that the parties…. will be aware as to why the tribunal made its decision one way or another” [24]
Charleton J, quashed the decision of the tribunal stating that
“ jurisdiction was exceeded by the appeals committee and the reasons given were no adequate” [25]
In another case of Smullen v Duffy and Others, the courts upheld the decision of the tribunal as the procedures had been followed. The case dealt with ‘gangs’of students who were involved in a stabbing incident which took place immediately outside the school gates. Finlay P, also upheld the need and right of a principal to take immediate action in the case of serious discipline issues or situations and said that;
“it was essential that a school principal should be entitled, after an informal investigation of the type to be expected from a schoolmaster rather than from a criminal court, to make an immediate suspension of pupils in order to maintain peace and discipline within a school” [26]
This seems like the sort of encouragement and support that schools need these days. In this modern period of litigation, where it seems people will take legal action against anyone for almost anything, I feel schools need more support as was outlined here in terms of providing for difficult discipline issues, and legal challenges in general.
I have outlined a number of difficult legal challenges that have faced school management in Ireland. I have discussed problems as I have encountered them in my own teaching practice, and where possible have given my opinion on possible solutions to these issues.
Education is not only a Human Right in Ireland, but also a privilege which by global comparison is extended to very few. It is my view that education is seen as a service in Ireland, and that teachers are under pressure to provide this service like a business. Each student must come out like the last and there must be no defects in the quality or quantity of education. This ignores the blatant fact that all students are different and must be treated as such. There is no way that education can or will provide the same outcome for every student in Ireland and as such it is important that legal decisions and challenges are considered on this basis. There can be no legal framework governing the absolutes of education.
References
Admissions Policy Glenageary Killiney National School. Available at https://gkns.ie/wp-content/uploads/2016/10/Admissions-policy-reviewed-2016.pdf. Accessed on 28thMay 2018
Bunreacht nah Eireann 1937
Campaign to Separate Church and State Ltd v Minister for Education [1998] 3IR 321
Christian Brothers High School Clonmel v Stokes (2011) IECC1.
City of Waterford VEC v Secretary General of the Department of Education. (2011) IEHC 278
Education Act 1998
European Convention on Human Rights 1953 (Article 14)
How public interest law and litigation can make a difference to marginalised and vulnerable groups in Ireland. Cousins M. [2018]
Kelly -v- Board of Management of St Joseph's National School, Valleymount, Co Wicklow. [2013] IEHC 392
Litigation Involving Student Misconduct in Schools (2012) Harris, Felicia. University of Alabama
Maher, (a minor suing by his mother and next friend Teresa Maher) v. The Board and Management of Presentation Junior School, Mullingar. [2004] IEHC 337,
Mary Becker v Frank Duggan (2005) IEHC 376
Mary Stokes (on behalf of John Stokes a minor) v Christian Brothers High School Clonmel 2015. Appeal No. 184/2012
McEneaney -v- Cavan & Monaghan Education and Training Board & Anon. [2014] IEHC 423
Protection of Employees (FIXED-TERM WORK) ACT 2003
Rules for National Schools, Department of Education 1965
Telling the Code of the Street. (1999) Anderson, E.
[1]Bunreacht nah Eireann 1937
[2]Education Act 1998 26.1
[3]Mary Stokes (on behalf of John Stokes a minor) v Christian Brothers High School Clonmel 2015. Appeal No. 184/2012
[4]Mary Becker v Frank Duggan (2005) IEHC 376
[5][2015] IEC 8287 (Court of Appeal) [2016] IESC 52 Supreme Court Leave Application
[6]{2012] IESC 59, at paragraph 66
[7]Education Act 1998 [Amended 2014] Section 24(3)
[8]Circular
[9]Education Act 1998 Section 9(m)
[10]Christian Brothers High School Clonmel v Stokes (2011) IECC1. Section 15
[11]Christian Brothers High School Clonmel v Stokes (2011) IECC1. Section 17
[12]Equal Status Act 2000 Section 3(a)
[13]Equal Status Act 2000 Section 3(i)
[14]Bunreacht na hEireann 1937 Article 44 (2.2 and 2.3)
[15]Bunreacht nah Eireann 1937 Preamble
[16]Rules for National Schools, Department of Education 1965 (Section 68)
[17]Rules for National Schools, Department of Education 1965 (Section 70)
[18]Campaign to Separate Church and State Ltd v Minister for Education [1998] 3IR 321
[19]Admissions Policy GKNS. Available at https://gkns.ie/wp-content/uploads/2016/10/Admissions-policy-reviewed-2016.pdf
[20]European Convention on Human Rights 1953 (Article 14)
[21]Telling the Code of the Street. (1999) Anderson, E.
[22][2011] IEHC 278 Section 9
[23]Smullen v Duffy and Others. [1980] ILRM 46
[24]{2011] IEHC 278 Section 12
[25][2011] IEHC 278 Section 18.
[26][1980] ILRM 46