Eilean Duane of Cantillons Solicitors in Cork writes for Irish Legal News about the response to the Education (Admission to Schools) Bill 2015.

Notwithstanding Minister Richard Bruton’s approval of the Education (Admission to Schools) Bill 2015 last Wednesday July 6th, 2016, all the indicators are that it has not been welcomed with open arms.

It had been hoped that the Bill would target the 20 per cent of schools that are oversubscribed and although there are certain features of the Bill which are to be welcomed, unfortunately, that 20 per cent it seems, remain entitled under the Bill to continue to discriminate in admissions on the basis of religion and other grounds.

The Bill proposes to supplement the current Education Act 1998 with a new Part X which will deal with Admissions to Schools. In summary, the Bill will now require Board of Managements to publish an Admissions Policy with an explicit Admission Statement contained in same. In addition the Principal is now charged with implementation of the Admission Policy.

The Admissions Policy must contain an explicit statement to the effect that the school shall not discriminate on the basis of any of the following nine grounds; gender, civil status, family status, sexual orientation, religion, disability, race, traveller community grounds or special educational needs.

Heretofore the Education Act 1998 only obliged schools to notionally reference adherence to the principles of equality so now the obligation to explicitly reference the 9 grounds set out in the Equal Status Act 2000 is certainly a step forward.

The Admission Policy must also set out that a school shall enrol each student seeking admission to the school other than in the following circumstances:

The Bill does, therefore, grant exceptions to the 9 grounds which as a result will allow the schools to discriminate in certain circumstances.

Although the exception on religious and/or gender grounds, is in keeping with Section 7 of the Equal Status Act 2000, it is the writer’s view that this exception flies in the face of Article 44 of the Constitution which prohibits State funded schools from discriminatory practices and therefore remains potentially open to challenge before the Courts.

In theory this new legislation should ensure that where a school is not over subscribed (which comprises allegedly 80% of schools nationwide), that the school must now admit all students applying.

However, in the event that a school is oversubscribed, the Bill obliges Boards of Managements to publish ‘selection criteria’.

The Bill disappointingly, however, fails to meaningfully deal with the “selection criteria”. While the Bill proposes that a school is required to set out the selection criteria, it does not set out or outline what can or cannot comprise the selection criteria; the Minister has provided for the possibility of yet further legislation in this regard via Section 64 of the Bill, which provides for regulations to be made under the Bill.

If the Minister decides to issue such regulations, then under Section 64 (3) (d) certain selection criteria shall be prohibited from applying in cases where the number of students seeking admission to the school is greater than the number of places being made available. Such criteria may include criteria based on one or more of the following;

Given the details provided in that regard, it is indeed regretted that the Minister could not have included same within the Bill as opposed to deferring the matter to the possibility of yet further legislation/regulations which may or may not come in to being. One can only hope that the prudent Board of Management will in the interim observe the notional selection criteria with caution when preparing any Admission Policy. One could readily see an Admission Policy which lists any of the earmarked selection criteria in Section 64, as open to challenge before the Courts.

Reviewing the Bill in the context of students with special needs, it is noted that Section 15 (2) (d) of the 1998 Education Act specifically refers to the schools obligation to include within its Policy “admission to and participation by students with disabilities who have other special education needs”. That reference has now been specifically removed and the Bill proposes that Section 15 (2) (d) would simply require the school to publish its school policy and to ensure that the policy has regard to the principles of inclusion, equality and the rights of parents to send their children to the school of their choice, etc. It may seem petty but to the writer removal of the specific reference to “admission and participation by students with a disability in a school”, does seem retrograde. It is in the writer’s view a dangerous retreat to previous older legislation which did not provide specifically for the rights of those with disabilities. The reader may point the writer to recent legislation such as the EPSEN Act, 2004 or the Disability Act 2005 but note of course that significant portions of this legislation remain largely unimplemented in the context of any significant strong rights based legislation for persons with disabilities. The move therefore in the writer’s view to specifically delete reference to admission to and participation by students with disabilities from Section 15 of the 1998 Act is worrying.

Finally and perhaps the most welcomed provision of the Bill is set out in Section 66 which allows for the designation of a school by the Council (The National Council for Special Education- NCSE) or by the Child and Family Agency. Heretofore if a child with special educational needs was not attending any school and was in search of an appropriate placement, the child would have to apply to the school and the school maintained the right to refuse admission to the school in general terms. Quite regularly parents in such circumstances found themselves applying to schools; being refused admission; proceeding with a Section 29 appeal and perhaps even ultimately being refused on appeal. All of this brought with it the usual significant bureaucratic obstacles faced by parents of children with special needs. Section 66 of the Bill, however, sets out that a school “shall” admit the child as a student upon being directed by the NCSE to do so which seems to take all of the headache out of applying and being refused, etc from the parents. This is indeed a very welcomed approach. That welcome, however, is guarded. Section 66 (5) provides for an appeal by the Board of Management against the NCSE’s direction in that regard. There is also (thankfully) a similar right of appeal in Section 66 (8) for the parents to appeal to an Appeals Committee against the failure or refusal to make a designation by the NCSE.

There is also notably a caveat within Section 66 (2) which sets out that in making its designation, the Council shall have regard to inter alia the ability of the school to accommodate the child including the ability when resources are made available to the school. This may or may not prove an “out” for a Board of Management in its being designated by the Council.

Overall the impression that one is left with is that the Minister has kicked for touch with this Bill. He has addressed the easy issues but has left the difficult decisions in the context of discrimination on the basis of religious denomination and the specific delineation of selection criteria, for another day. Far from welcoming with open arms, some schools will therefore continue to be allowed to firmly close their doors to certain eagerly awaiting pupils.