Legal challenges and judicial reviews: The impact of Covid-19 on education leading to the courts 

Legal challenges and judicial reviews: The impact of Covid-19 on education leading to the courts 

Doors have reopened today in schools for special education.

AS special education partially reopens today and plans have been unveiled for this year’s Leaving Certificate, Ann Murphy looks at where education currently stands, in our series on legal implications of Covid-19 restrictions.

Doors have reopened today in schools for special education.

However, the schools will only have a 50% capacity, while special education classes in mainstream schools are not set to return until February 22.

The reopening is the first leg of a return to schools since the Christmas holidays. There is no projected reopening date as yet for primary and secondary schools, as well as early childhood education settings.

In recent days, the Irish National Teachers’ Organisation (INTO) hosted a webinar for principals to help them prepare for today’s re-opening.

It follows a previous attempt to reopen special education in January.

It comes less than a fortnight after five cases were brought to the High Court, challenging a decision by the minister for education not to reopen schools for pupils with additional needs.

They are a representative selection of 230 parents who are being advised by one Dublin law firm.

The court was told that the children at the heart of the challenge could not benefit from home tuition. Counsel for the five families behind the challenges said there serious issues were arising with some children in terms of self harming.

A week ago, the matter was back before the High Court and was adjourned until March 8 because of the imminent partial re-opening of special education.

Minister for Education Norma Foley announced last Friday that plans are underway for both Leaving Certificate exams and an alternative assessment model

Last year, the Leaving Certificate was based on continuous assessment, while an opportunity to sit exams was also available in November.

The results from the November examinations were released in recent weeks.

Amy Connolly from Cantillons Solicitors said that the company has been inundated with calls regarding grades having been downgraded following the application of the calculated grades process last summer.

The previous government had been warned that a calculated Leaving Certificate grades process could result in “legal vulnerabilities”.

Amy Connolly pointed out that the effects of last year’s grading did not just have an effect on Leaving Certificate students but also on students who had sat the exams in previous years but who had applied for college places through the CAO system last year. She pointed out that the grades inflation associated with last year’s results led to people who had sat the Leaving Certificate previous to last year missing out on college places because of an increase in points.

A test case is currently being pursued by Belvedere College Dublin student Freddie Sherry, of Newtown, Celbridge, Co Kildare, against the minister for education and skills and the State, to challenge the calculated grades process.

 Approximately 70 cases are currently on hold until judgement is given in the Sherry case.

And Amy Connolly said: “We have three judicial review cases from students of 2019. They will not progress until the Sherry case is over.” 

She said that the Leaving Certificate group of 2020 had the option of sitting the exams as well as the calculated grades option.

She continued: “Students who got their calculated grades last year had the option to re-sit in November and are going into the CAO process this year. They had a second bite of the cherry compared with 2019 students.”

Amy Connolly said she expects to receive queries about this year’s Leaving Certificate too.

Discussions are now under way to plan this year’s Leaving Certificate, with planning for this year’s Junior Certificate examinations also being discussed.

Ms Foley said: “Even though our schools have made huge strides in remote learning, the closure of in-school provision has impacted on learning and preparedness for examinations, particularly for students at greater risk of educational disadvantage.

“We must provide our students with a clear way to progress to the next stage in life — further and higher education and training or the world of work.”

The Teachers’ Union of Ireland is taking part in the talks. In a statement, it said: “We are keenly aware of the need for clarity in relation to State examinations this year and the anxiety currently being experienced by all in school communities as a result of the ongoing challenges presented by the national health emergency.

In the intensive talks, the TUI will participate constructively in what we will insist will be meaningful engagement that recognises the professional views and legitimate concerns of our members, including a fundamental concern to protect the standards and reputation of national awards to students.”

The ASTI also welcomed the talks, saying: “We are committed to working constructively with all stakeholders to ensure that Leaving Certificate 2021 goes ahead as normally as possible and that alternative plans, should they be necessary, will be put in place. The intention is to engage in planning for examinations and scoping out a corresponding measure different to examinations that can also be offered to students.”

Sinn Féin education spokesman Donnchadh Ó Laoghaire said the statement from Ms Foley still leaves Leaving Certificate students in the dark. He added: “They are still stressed and worried about what kind of exam or process they will face — likewise are school staff.

“Having said that, it seems clear that the minister is now considering the kind of Leaving Cert choice that Sinn Féin has proposed, and indeed that thousands of sixth year students have campaigned passionately for. 

"There has been a lot of talk of a ‘traditional’ Leaving Certificate, but this is not a traditional year.

“Having only a written exam is not feasible this year given the significant loss of learning time experienced, and the fact that we still don’t have clarity. I am keen to see the detail of the outcome of these negotiations — what will the corresponding non-examination process entail, and how will students’ grades be arrived at?

“We must ensure that lessons are learned from last year, such as unfair algorithms or school profiling that was once proposed. There must be fairer ways of checking accuracy. I am anxious also, to ensure that the approach is fair to school staff, and to preserving the relationship that they have with their students.

“Again, I would reiterate the importance that any choice provided must be done on a no-detriment basis, so that students can avail of the better mark of the two in their CAO.”

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