The High Court has quashed Department of Education order compelling a community college to enrol a problem pupil allegedly effectively expelled by another local secondary school.
The challenge by Co Westmeath Vocational Educational Committee to the order was the first of its kind brought since a provision in the Education Act 1988 allowed for appeals to the Department against refusals by schools to enrol pupils.
Westmeath VEC claimed the appeal system allows certain schools to “cherry pick” their students and to offload difficult pupils in the local vocational college.
Mr Justice Daniel O’Keeffe quashed the Department’s Appeals Committee decision requiring the community college to enrol the pupil after finding the Committee exceeded its jurisdiction in two of the four reasons it gave for its decision.
The boy involved, who cannot be identified, was doing his Junior Certificate in a school owned by a religious order when problems arose in May 2007. He was asked to stay at home and his parents were given the clear impression he would be better off leaving the school.
The VEC claimed conflicting indications came from that school, should he go to another school, he would get “glowing” references.
The parents applied to enrol him in another school and in the community college but its board of management refused in August 2007 to admit him as its enrolment policy provided it should not accept transfers for pupils already enrolled in another local school, except in exceptional circumstances.
The board was aware of the “conflicting signals” about the boy’s behaviour but had not taken these into account when refusing to admit him, the VEC said. It considered there were no exceptional circumstances because the boy was not even the subject of disciplinary proceedings in his existing school.
On September 18th, 2007, the boy was “pushed out” by his school because the parents were told, if they did not withdraw him, he would be expelled.
The parents appealed the community college’s refusal to take him and, in October 2007, the appeals committee granted the appeal on four grounds. The VEC then brought its court challenge. Meanwhile, the boy was said to be receiving an education under a special system for pupils not in a formal schooling situation.
Mr Justice O’Keeffe noted the Appeals Committee had upheld the parents appeal on four grounds: (1) the enrolment policy of the community college might conflict with the right of parents to enrol their child in the school of their choice; (2) the boy had no school placement following his withdrawal from his school; (3) the college had capacity to take the boy and; (4) his level of misbehaviour did not warrant a refusal to enrol.
The committee also said it wanted to draw the attention of the National Welfare Board to “the irregular open-ended suspension and refusal” to take the boy back to his previous school.
The judge ruled Section 29 of the Education Act restricts the scope of an appeal to the actual decision being challenged. In this case, the appeal was against the board of management decision of August 2007 refusing to enrol the boy and the committee’s remit was to consider the facts and circumstances obtaining on that date.
He said Section 15.2 of the Education Act gives no absolute right to a parent to enrol a child in the school of their choice and ruled the committee was not entitled to allow the appeal on grounds of its view the college’s enrolment policy might conflict with the right of parents to enrol their child in their school of choice.
He also found the Appeals Committee erred in allowing the parents’ appeal on the second ground, that the boy had no school placement. The judge said the boy in August 2007 continued to be enrolled in his other school and his withdrawal from that school did not occur until September 2007. The transfer policy of the college did not accept applications from students already enrolled in other schools, except in exceptional circumstances.
However, the Appeals Committee’s findings on the other two grounds were neither irrational nor unreasonable, he found. On ground three, there was evidence the college had capacity to enrol the boy. On ground four, while it was difficult for the court to conclude on what evidence the committee concluded the boy’s level of misbehaviour did not warrant refusal of admission to the college, that conclusion could not be regarded irrational or unreasonable.
