This bill purports to give education as a right. What it does, in fact, is to make the right to education subject to resources, practicability, ministerial discretion and availability. No other right is subject to such restrictions. We feel that this bill, if enacted, will be unconstitutional because the Constitution guarantees the right to education without such restrictions. In the seventy-two pages of amendments proposed (by May 1998), it seems, on the face of it, that some of our criticisms have been heard. However, we feel these changes will prove cosmetic as there is no attempt to remove key ‘opt-out’ clauses.
Resources and Practicability
In Ireland many children with special needs have never been to school; the excuse given for this lack of educational provision is invariably scarce resources and practicability. In section 6 of the Education Bill, the first stated object of the Act is:
‘(a) to give practical effect to the constitutional rights of children, including children who have a disability or who have other special educational needs, as they relate to education;’.
However, the following object is:
‘(b) to provide that, as far as is practicable and having regard to the resources available, there is made available to people resident in the State a level and quality of education appropriate to meeting the needs and abilities of those people;’
Section 7. (1) (a) states that is shall be the function of the Minister
‘to ensure, subject to the provisions of this Act, that there is made available to each person resident in the State, including a person with a disability or who has other special educational needs, a level and quality of education appropriate to meeting the needs and abilities of that person;’
But: 7.(4) In carrying out his or her functions, the Minister—
- shall have regard to—
- the resources available,
9.—A recognised school shall provide education to students which is appropriate to their abilities and needs and, without prejudice to the generality of the foregoing, it shall, as far as resources permit—
- ensure that the educational needs of all students, including those with special educational needs, are identified and provided for,
- (2)(g) [Boards of Management] within the resources provided to the school in accordance with section 12, make reasonable provision and accommodation for students with special educational needs.
40-(3)(d) [the National Council for Curriculum and Assessment shall] have regard to the practicalities of implementation of any advice which it proposes to give to the Minister.
In the Education (No.2) Bill 1997, a child with a disability is termed a ‘child with special educational needs’. Yet the type and level of education given to such a child will be determined not by those special needs, but by ministerial discretion.
Although the proposed bill uses the word ‘appropriate’ [section 9], it modifies the word with the phrase ‘as far as resources permit’, giving the Minister for Education the power to determine appropriateness arbitrarily. We feel that the proposed bill, in Section 15 (2)(g) above, eliminates the concept of appropriateness in education and enshrines a national educational policy of ‘Ah, sure, it’ll do.’
These provisions are in contrast to Article 42 of the Irish Constitution, which guarantees free primary education as a human right which must be provided by the state, irrespective of resources and practicability. As Mr Justice Rory O’Hanlon stated in his judgment on the O’Donoghue case (1993):
‘It appears to me that it (Article 42) gives rise to a constitutional obligation on the part of the State to provide for free primary education for this group of children in as full and positive a manner as it has done for all other children in the community.’
All educational services are costly. However, a disabled child, particularly a child with an all-encompassing disability such as severe or profound mental handicap, autism or multiple handicap, will require a greater level of resources. These children, like all children in this State, are constitutionally entitled to an education appropriate to their needs. The state must accept that in some cases such appropriate education will be expensive. However, in their submission to the Courts in the O’Donoghue case, the Department of Education pleaded
‘that in the care and education of the profoundly handicapped child, difficult choices have to be made in relation to the distribution of scarce resources.’
This argument was strongly rejected by the Court:
‘In the course of the present judgment I have found that, in my opinion, the Plaintiff [O’Donoghue] has made out his case that that the Respondents [The State and the Department of Education] have at all times been in error in contesting it.’ (Mr Justice O’Hanlon, O’Donoghue Judgment 1993)
‘I am convinced, on the evidence, that the provision of free primary education for children severely or profoundly handicapped, mentally and/or physically, requires a much greater deployment of resources than was thought appropriate even as recently as 1983, when the Blue Report was completed.’ (Mr Justice O’Hanlon)
Having failed in the courts to exclude children with severe and profound mental handicaps from education, it seems that the state is still attempting to achieve that exclusion from education through this bill. (During the pursuance of the appeal against the O’Donoghue judgment, the government established the provision of free third level education to those who can avail of it—with no constitutional obligation to do so.)
Efficiency and Effectiveness
In view of the fundamental bias towards ‘resources and practicability’ in the Education Bill, the clauses below (which in a different context would be unexceptionable) seem ominous to us. Our experience of ongoing neglect and indifference to our children’s needs would lead us to suspect the use of terms like ‘efficiency’ and ‘effectiveness’.
- (d) [amended to 6. (e)] to promote the right of parents to send their children to a school of the parents’ choice having regard to the rights of patrons and the effective and efficient use of resources.
- (2) (b) to monitor and assess the economy, efficiency and effectiveness of the education system provided in the state by recognised schools and centres for education;
Again, Mr Justice O’Hanlon’s judgment (1993) stated:
‘This process [education] will work differently for each child, according to the child’s own natural gifts, or lack thereof. In the case of the child who is deaf, dumb, blind or otherwise physically or mentally handicapped, a completely different programme of education has to be adopted and a completely different rate of progress has to be taken for granted, than would be regarded as appropriate for a child suffering from no such handicap.’
School or Health Service?
In our experience, the Department of Education has sought to leave responsibility for services to children with severe or profound mental handicaps to the Department of Health. Our children have disabilities, not an illness. The Education Bill states that the Minister shall have regard to:
‘[7.(4)(a)(ii) The provision for education and training made by other agencies with funds provided by the Oireachtas,’
In the O’Donoghue case, the state unsuccessfully argued that the severely and profoundly mentally handicapped child would be better ‘trained’ in a Department of Health setting, rather than a class under the Department of Education. It seems the defeated argument is again being put in the above clause?
There has been no amendment to lessen our concern about this ‘let-out’ clause, and we fear it could be used to shunt responsibility for ‘education and training’ to day centres funded by the Department of Health. Indeed, Brian O’Shea, TD, has put an amendment which would enable such a health service to be deemed a ‘school’, without a teacher or capitation grant.
Clause 10(2)(a) states:
‘the number of students who are attending or are likely to attend the school is such or is likely to be such as to make the school viable.’
This clause seeks to make viability, as determined by the number of students, a condition of ministerial recognition of that school or class. As ‘viable’ means economically practical in terms of expenditure, this clause may deny disabled children an education on that basis. The numbers of children with disabilities, especially severe disabilities, are relatively small; they are geographically scattered; and their needs vary. Yet each child has a right to an education in his or her own right, regardless of the presence of potential classmates.
The state should recognise that it faces a greater cost in the future (to the Department of Health) if it neglects educational needs now, and an increasingly high cost to the Exchequer through court claims for damages by children and their parents because of lack of appropriate educational provision.
Two-tiered educational economics
The present Minister for Education has promised £250m to teach children how to use computers, at a time when thousands of children with disabilities have no school. This bill has no guidelines to define scarce/sufficient resources; rather it empowers the Minister for Education to decide arbitrarily how and on whom the department’s budget is to be spent.
Grace and Favour?
Education is a right, not a concession based on available resources. If this bill is passed, education will legally be put on the very ‘grace and favour’ basis which was adamantly rejected in the High Court:
‘I am of opinion that it is not sufficient for the Respondents to grant as a matter of grace and concession, educational benefits which the Applicant is entitled to claim as of right.’
‘The demands of justice must first of all be satisfied; that which is already due in justice is not to be offered as a gift of charity…’ (Mr Justice O’Hanlon, O’Donoghue Case, 1993)
We fear that if this bill is passed, most children with significant disabilities will still be without education, while others will be expected to accept gratefully whatever educational scraps the department decides it can afford. The lucky ones will have a few showcase places in schools, to be proudly displayed by the department and service providers. In other words, we will have the same situation which exists today and which, after so many hard-found court victories, must not be perpetuated and legitimised.
After the failure of the Department of Education appeal against the O’Donoghue judgment (6 February 1997), Micheál Martin, then Fianna Fáil Spokesman for Education, stated:
‘I think it [O’Donoghue judgment] will demand clear implementation of the judgment in terms of extra provision, and additional provision for mentally handicapped children in our schools and that the proper education resources are made available. The State now has a clear legal obligation to provide such resources.’