BOOK REVIEW: EDUCATION AND THE LAW

Reviewed by Dr Michael Shevlin,

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This is a timely book which provides a comprehensive coverage of the relationship between education and the law since the foundation of the State. The focus on the recent Education Act is of particular interest to everyone involved in education. Furthermore, the analysis of the right to education in human rights law provides insights for both schools and parents. Glendenning manages to convey complex case law in a highly readable format which excites the interest of the reader.

Nowhere is this fluent style more evident than in the chapter on educational provision for children with disabilities. In this chapter, Glendenning provides a comprehensive overview of legislative provision for the education of children with disabilities within an international framework. A comparative perspective is employed which enables the reader to survey legislative practice across a range of countries. The lack of legislative provision in Ireland becomes immediately apparent within this context. Glendenning acknowledges the past role of the law in facilitating the exclusion of people with disabilities from mainstream society. Examples of this practice are cited including the categorisation of children with disabilities as ‘unfit for citizenship’ under Mississippi law and ‘unfit for companionship with other children’ under Washington law. A series of legislative initiatives throughout the United States, Canada and parts of Europe has transformed this situation.

The most comprehensive legislation is to be found in the Individuals with Disabilities Act (1990) and the Americans with Disabilities Act (1990) in the United States. This legislation attempts to address the issue of exclusion from the joint perspective of education and the wider society. Implicitly recognised is the inescapable fact that reform of educational practice without accompanying reform of societal practices in relation to disability will have a limited impact on the lives and prospects of people with disabilities. These concerns have been echoed to varying degrees in legislation enacted in England, Northern Ireland, Austria and Norway, among others, alongside constitutional guarantees for children with disabilities in Finland and Portugal.

Ireland, until recently, has been a notable exception to this growing international trend. Instead, Ireland has tended to rely on a network of informal provision which was non-statutory in nature and contained a high degree of voluntary input. Parents of children with disabilities have increasingly sought to assert their children’s constitutional rights to education through the courts, which have since 1980 played a central role in securing these rights. In particular, this applies to parents of children with severe/profound learning disabilities and parents of children with autism. Glendenning provides extensive coverage of the O’Donoghue case (1993), which provided a landmark judgement in vindicating the right of a child with severe/profound learning disabilities to primary education. Though this judgement only applied to this particular child, Glendenning points out that these rights have been established and can be litigated again to provide the appropriate educational service for other children in similar situations. However, a constitutional action is necessary to vindicate these rights, which is a time-consuming and expensive process. The Supreme Court (1997) upheld the judgement in the O’Donoghue case. The issues explored in the O’Donoghue case encapsulate the major issues faced by the State and parents of children with disabilities in relation to securing appropriate education. The courts have undoubtedly made a significant contribution to remedying some of the most glaring deficiencies in the educational system. However, Glendenning concludes that ‘it would be regrettable if they [the courts] were obliged to continue to compensate for legislative inertia in this sphere’ (p. 159). Glendenning argues persuasively that ‘if reform in this sphere is to be worthwhile and enduring, long term policy and practice on educational provision in special education needs to be formulated and separate legislation to meet those needs requires to be enacted as a matter of urgency’ (p. 159). Far-reaching legislation which guarantees all children with disabilities access to appropriate education must be enacted without delay. The constitutional rights of these children have been established in the courts and the onus is firmly on the State to fulfil its moral and legislative obligations.

Glendenning has clearly and unequivocally highlighted the necessity for enabling legislation in Ireland. The comparative approach allows the reader to develop a perspective on the strengths of the legislative approach to special education internationally. It is clear that without this type of

legislation which guarantees these children’s rights in both education and the wider society they will continue to be marginalised. Anomalous situations of differing types of provision constructed on an ad hoc basis will proliferate.

The author has documented the current legislative position of children with disabilities with regard to education, and perhaps even more importantly has highlighted the need for comprehensive legislation. It is clear that parents have had to resort to the courts to vindicate the rights of their children to receive an appropriate education. It is equally clear that it is now the State’s responsibility to enact enabling legislation and to provide the necessary resources to guarantee equity for children with disabilities and their parents.

EDUCATION AND THE LAW by Dympna Glendenning. Butterworths, Dublin (1999) ISBN 1-8547507-8411. Hardback, Ir£65.00-

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