1. The
first named Plaintiffs, to whom I will refer as "the Infant Plaintiffs", are
infants and they are pupils at the school known as Cooleenbridge School in
Tuamgraney, Co. Clare. Each of the second named Plaintiffs, to whom I will
refer as "the Parent Plaintiffs", is the parent of one of the Infant
Plaintiffs. The Third named Plaintiff, which I will refer to as "the Company",
is a company limited by guarantee and incorporated in the State under the
Companies Acts, 1963 to 1990. Cooleenbridge School was established and is run
by a group of parents, now represented by the Parent Plaintiffs, who wish their
children to be educated in accordance with the ideology and pedagogy enunciated
by Rudolph Steiner, who established a school in Stuttgart in 1919. Schools
which are based on the Steiner principles have come to be known as "Waldorf
Schools" because the impetus for the establishment of the first school came
from a lecture given by Steiner in the Waldorf-Astoria cigarette factory in
Stuttgart on 23rd April, 1919. The Company is the corporate vehicle which owns
and manages Cooleenbridge School.
2. Since
its establishment Cooleenbridge School has been funded by the parents of the
children who have attended it either by direct contributions or by fund-raising
activities. Currently, it costs approximately £120,000 per annum to run
the school.
3. In
these proceedings the Plaintiffs' claim, in broad terms, is that the Defendants
have infringed the Infant Plaintiffs' constitutional right to free primary
education under Article 42 of the Constitution in that the first named
Defendant (the Minister) rejected an application by the Plaintiffs for
recognition of Cooleenbridge School, which recognition would have entitled
Cooleenbridge School to receive funding from the State.
4. For
about 80 years prior to 1922, the provision of primary education in Ireland was
entrusted to the Commissioners of National Education in Ireland, a body
corporate created by Royal Charter in 1845. The system which operated prior to
1922 is outlined in the judgment of Murnaghan J. in
McEneaney
-v- Minister for Education
[1941] I.R. 430. The funds necessary for the purpose of primary education were
provided by Parliament and handed over to the Commissioners to be administered.
In administering the funds, the Commissioners devised a mode of application
known as the "managerial system". The system was adopted to obviate
difficulties connected chiefly with religious belief. In most cases the
schools were not the property of the Commissioners, but they were recognised as
national schools. A manager, usually the parish priest, or rector of the
Church of Ireland, was nominated by an outside authority and the nomination was
sanctioned by the Commissioners. When sanctioned, the duties and function of
the manager were minutely provided for in Rules and Regulations made by the
Commissioners.
5. Following
the establishment of Saorstát Éireann in 1922, a number of
changes occurred. Article 10 of the Constitution of Saorstát
Éireann provided that all citizens of Saorstát Éireann
should have "the right to free elementary education". Section 1 of the
Ministers and Secretaries Act, 1924 (the Act of 1924) provided for the
establishment of the Department of Education which should -
6. Among
the branches of administration which were assigned to the Department of
Education was the Commissioners of National Education in Ireland. By order of
the Executive Council dated 16th August, 1923 all the jurisdictions, powers and
duties of the Commissioners of National Education in Ireland were transferred
to a new board called the National Education Commissioners. That new board, in
turn, was dissolved by order of the Executive Council dated 2nd August, 1935,
whereupon all the jurisdictions, powers, duties and functions formerly
exercised by it were expressly transferred to the Minister. A revised code of
"Rules and Regulations for National Schools under the Department of Education"
was issued in 1932. The position, accordingly, when the Constitution of
Ireland came into force in December, 1937 was that primary education was
directly regulated by the Minister by the revised regulatory code introduced in
1932.
8. There
is no definition of "primary education" in the Constitution. However, I did
not understand there to be - and I cannot see how there could be - any real
controversy between the parties as to the meaning of the expression. In
Ryan
-v- The Attorney General
[1965] IR 294, having quoted Article 42.1 and Article 42.2, O'Dalaigh C.J. defined
education at page 350 in the following terms:-
9. Primary
education is the first stage or level in time of that process. As such, it is
of necessity elementary. As it has been known in Ireland over the last 60
years, primary education has meant the teaching and training of children from
age 4 or 5 to age 12, 13 or 14.
10. There
have been major reforms and improvements of primary education since 1937,
particularly in the period since 1960. The changes which emerged from the
evidence as being of relevance to the issues in these proceedings can be
summarised as follows:-
11. At
the beginning of 1965 new rules entitled "Rules for National Schools under the
Department of Education" were introduced by the Minister with the concurrence
of the Minister for Finance. In the preface to the Rules, Article 42 and
Article 44.2.4 of the Constitution were recited and there followed a statement
in the following terms:-
12. Rule
165 provided that the rules might be altered or rescinded by the Minister with,
in the case of rules involving finance, the concurrence of the Minister for
Finance. The rules have in fact been altered time and again since 1965.
Unfortunately, no updated version or compendium of the rules has been published
since 1965. As the Defendants acknowledge, this gives rise to a very
unsatisfactory state of affairs, particularly as the amendments have been made
by a variety of instruments: rules, regulations, memoranda, circulars and press
releases communicating ministerial decisions. References to the Rules
hereafter in this judgment relate to the rules introduced in 1965 as so altered.
13. The
basic provision of the Rules as introduced in 1965 dealing with eligibility for
recognition as a teacher in a national school and entitlement to be paid a
salary directly by the Department of Education was Rule 77. That Rule provided
that persons who had completed successfully a recognised course of training
were eligible for recognition. In 1974 the then Minister made a policy
decision that the recognised course of training would be a three year course in
a college of education leading to the degree of Bachelor of Education. The
official policy for a quarter of a century has been to aspire to a graduate
teaching profession in primary schools. When the Rules were introduced in 1965
there were many untrained teachers employed in national schools who were called
junior assistant mistresses in the Rules. Under various initiatives throughout
the late 1960's and 1970's they received training by virtue of which they
received recognition. By 1975 there were no junior assistant mistresses in the
system. In fact, on the evidence, it would appear that there are very few
unqualified teachers employed on a permanent basis in the recognised primary
schools in the State, perhaps as few as three, who are employed in schools for
children from the traveller community. That is not to say there are no
unqualified teachers working in primary schools on a day to day basis.
Unqualified substitute teachers are employed on a per diem basis to fill in for
teachers who are absent on the grounds of illness, maternity leave and so
forth. In October and November 1998 on any one day there could have been as
many as 600 unqualified substitutes employed in the recognised primary schools
in the State.
14. There
are also a number of special situations in relation to teacher qualification
provided for in the Rules. For instance, there is a category of restricted
recognition, which was introduced in 1984 and announced in a Press Release of
8th February, 1984, which applies to appointments in certain categories of
special national schools, (i.e., schools for children with special needs) for
teachers with a qualification approved by the Department of Education from a
teacher training course of at least 3 years duration which includes specialised
training in one or more areas of special education, for example, a 3 year
course in a training college which trains teachers in Montessori pedagogy.
Teachers possessing such qualifications are restricted to employment and
redeployment in the relevant categories of special schools. Since 1981 there
has also been provision for recognition of teachers trained in Northern Ireland
and in Britain who have completed satisfactorily a training course at a
recognised training college in Northern Ireland or Britain. There is a
requirement, however, that such a teacher be proficient in the Irish language
and pass An Scrúdú Caílióchta sa Ghaeilge (written
and oral). Finally, recognition may be gained by virtue of Council Directive
No.89/48/EEC, as given effect to in European Communities (General System for
the Recognition of Higher Education Diplomas) Regulations, 1991 (S.I. No. 1 of
1991) (the 1991 Statutory Instrument), which, in broad terms, applies to
teachers who are nationals of a Member State of the European Union who possess
a qualification from that Member State based on a post-secondary course of at
least 3 years at a university or other establishment of higher education.
15. Rule
70 of the Rules provides that the Minister may prescribe a programme of
instruction in any subject of the curriculum for pupils of national schools and
he may, from time to time, alter the programme of instruction in any subject of
the school curriculum. In its original form, the same Rule stipulated the
subjects of the curriculum and distinguished between obligatory subjects, which
included Irish, and optional subjects. A new curriculum for primary schools
was introduced in 1971. It represented a departure from previous practice,
both in relation to philosophy and methodology. The underlying philosophy was
child-centred. While it provided a framework for the teacher, it allowed for a
great degree of flexibility. It emphasised the importance of activity methods,
the integrated nature of learning and the use of the environment. Since the
mid-1980's, the 1971 curriculum has been subject to review. A major revision
of the primary school curriculum by the National Council for Curriculum and
Assessment, which is the body which advises the Minister on curriculum and
assessment matters both at primary and post-primary level, has just been
completed and it is anticipated that the revised curriculum will be launched
later this year. On the evidence, it is clear that the revision was and
continues to be a massive undertaking and that all major partners in education,
school management, parents, teachers, the Department of Education and education
faculties of colleges of education and universities, were represented in the
process. As a matter of practice all primary schools in the State which are
recognised and receive State funding are required by the Minister to, and do in
fact, implement the primary school curriculum.
16. Up
to the 1970's the denominational model of primary school, which had developed
in the 19th Century despite the intentions of the administration in setting up
the system of national education in 1831, was universal. This was reflected in
Rule 3 of the Rules which empowered the granting of State aid for the
establishment of a new national school on application "by the representatives
of a religious denomination". Since the 1970's a certain degree of diversity
in school type has occurred. Multi-denominational schools under the aegis of
the "Educate Together" movement have been recognised. Gaelscoileanna, in which
Irish is the medium of instruction, some under denominational patronage and
some not, have also been recognised. Some interesting facts emerged at the
hearing in relation to the recognition process. In every case, recognition was
on the basis of the school complying with the Rules and, in particular, the
provisions of the Rules in relation to teacher qualification and curriculum,
including the teaching of Irish. Issues of need and avoidance of duplicating
existing functions and of viability were addressed. A concept of provisional
recognition was introduced to deal with the viability issue. Broadly speaking,
the financial consequences of recognition of a primary school are that the
teachers' salaries are paid directly by the Department and an annual capitation
grant per pupil, which is currently set at £50 per pupil for mainstream
schools with sixty pupils or more, is paid to the manager of a school and
capital grants are also available for the provision of buildings and
facilities. In the case of a school which receives provisional recognition,
the teachers' salaries are paid and the capitation grants are paid but no
capital support is given until viability is established. In practice, during
the provisional period the school tends to be located in rented accommodation
and a rent subsidy is available from the Department.
17. The
most striking development in primary education since 1937 has been the
enactment of the Education Act, 1998, the only legislation regulating primary
education passed since the founding of the State apart from the School
Attendance Act, 1926 (the Act of 1926). However, it is agreed by the parties
that the Act, which was enacted about half way through the hearing of these
proceedings, does not bear on the resolution of the issues which arise in these
proceedings.
18. At
present three categories of primary schools function in the State: private
schools not recognised by the State; private schools which are recognised by
the State; and established schools. The Minister assumes no supervisory role
whatsoever in relation to private non-recognised schools, which cater for
approximately 7,200 pupils. The recognised private schools include the
denominational schools, the "Educate Together" schools, Gaelscoileanna and
special schools which cater for children with special needs. There are
approximately 3,200 recognised schools in the State catering for about 460,000
pupils. There are 117 special schools catering for about 7,500 pupils. The
recognised schools are private in the sense that they are not publicly owned,
but they are funded by the State and they must operate an open enrolment
policy. The established schools, of which there are 9, are owned by the State
and were established as Model schools prior to 1922.
19. The
evidence establishes that there are 15 recognised primary schools within a
twelve mile radius of Cooleenbridge School. All are denominational schools
under the patronage of the Bishop of Killaloe. Five of those schools are
within a five mile radius of Cooleenbridge School, the nearest being Tuamgraney
National School, which is a two teacher school with 34 pupils, and the largest
being Scarriff National School, which has six teachers and a remedial teacher
and caters for 142 pupils. I am satisfied on the evidence that primary
education to a satisfactory level in accordance with the prescribed curriculum
for primary schools is provided in all of those schools. There is no private
non-recognised primary school in Co. Clare. If Cooleenbridge School did not
exist, there would be no diversity of choice of primary education in Co. Clare.
20. The
first formal approach to the Department of Education for State funding of
Cooleenbridge School was made by letter dated 7th February, 1991. The
Department's response was by letter dated 4th July, 1991, which outlined the
requirements of the Rules in relation to recognition and the possibility of
recognition on a provisional basis initially. It also dealt with the
requirements in relation to management of the school and it indicated that the
patron would have to furnish a declaration to the Department that the school
would be conducted in accordance with the Rules. It also outlined the
financial benefits which would accrue from recognition, including the payment
of teachers' salaries provided they were qualified as national school teachers
and appointed in accordance with the Rules.
21. No
comprehensive formal application for funding was made until March 1994. In the
interim, the representatives of Cooleenbridge School maintained contact with
the Minister and with representatives of the Department. Moreover, the
representatives of the school participated in educational initiatives which
were ongoing during that period. For example, in September 1992 they made a
submission to the Department on the Green Paper on Education in Ireland which
had then been recently published. As a result of these contacts, in November
1993 the then Minister's Special Adviser suggested that the best way forward
was to submit a set of initial proposals to the Department on two issues,
namely, for recognition of Steiner Schools and for recognition of the teachers.
It was suggested that the proposals need not be comprehensive, as the relevant
sections within the Department would require more details as the matter
progressed. In response to that suggestion, the Irish Steiner Schools
Association (the Association) submitted an application dated 16th March, 1994
for recognition of the Steiner Waldorf Schools and for recognition of the
teachers in the schools. At the time there was a second Waldorf Steiner School
in the State located in Dublin. That school is not involved in these
proceedings.
22. The
documentation submitted to the Department with the application of 16th March,
1994 included the following:-
24. A
Steiner Seminar is a course of practical training for teachers. Michael Hall
is a Waldorf School in Sussex.
25. The
application was referred to the Inspectorate within the Department for
consideration. The view in the Inspectorate was that recognition, including
partial recognition, should be withheld. The principal areas of difficulty
identified were teacher qualification and the teaching of Irish. Other
difficulties were also adverted to. Curriculum content and teaching
methodology, and the issue as to whether fees were charged to pupils were
raised. The matter was also referred to the administrative side of the
Department. It would appear that consideration was given to pursuing the
perceived difficulties further with the Association. However, this did not
happen. Eventually, the Minister's decision on the application was
communicated to Cooleenbridge School in a letter dated 28th February, 1995 from
the then Minister's then Programme Manager. The response was that, as
Cooleenbridge School did not meet the Department's requirements for
recognition, it would not be possible to grant-aid it.
26. On
12th April, 1995 Messrs. Loughnane & Co., the Solicitors acting for the
Plaintiffs in these proceedings, wrote to the Minister seeking an outline in
writing of the Department's requirements for recognition. The response to this
letter was a letter dated 30th November, 1995 in which it was stated that the
position in relation to the recognition of Steiner Schools was set out in the
Department's letter of 28th February, 1995 and had not altered in the interim.
The case had received detailed consideration and assessment in the Department
before the decision was communicated. There was no further correspondence or
contact between the parties prior to the initiation of these proceedings.
27. In
keeping with its policy in relation to private non-recognised schools, no
officer of the Inspectorate or any other branch of the Department of Education
has ever visited Cooleenbridge School, either in connection with the
application for recognition or otherwise.
28. The
enrolment in Cooleenbridge School for the current school year is in excess of
100 pupils. Five full-time teachers are employed to teach kindergarten and
classes 1 to 7 inclusive. As regards teacher qualification, the position is
much as it was in March of 1994, in that only one of the teachers has a
qualification which carries an entitlement to recognition under the Rules. In
fact, since the school's inception in 1986, she is the only teacher who has
taught in the school who is qualified to teach in a mainstream recognised
primary school in the State. The four other full-time teachers have been
trained in Steiner pedagogy and have Steiner qualifications, three from the
United Kingdom and the fourth from the State of Michigan. In relation to the
three teachers with Steiner qualifications from the United Kingdom, all of whom
commenced in Cooleenbridge School in September 1998, the evidence, which was
not precise, indicates that one teacher has a London Waldorf teacher training
qualification based on a one year course and the other two trained at Wynstones
School in Gloucester and have considerable teaching experience. The Michigan
State qualification, a Master of Arts degree in Waldorf education, was gained
as a result of a two year course at the Waldorf Institute affiliated to Mercy
College in Detroit. On the evidence, it is not possible to do any comparative
analysis of these qualifications and the qualifications on the basis of which
the Minister recognises primary teachers. No assessment of Steiner teacher
training has been carried out by the Department. None of the Steiner
qualifications from the United Kingdom to which I have referred earlier confer
qualified teacher status in that jurisdiction or qualify the holder to teach in
a State primary school in Northern Ireland, or England, Scotland or Wales. The
Michigan State qualification, although recognised as a qualification for
teaching in a Steiner school, on its own does not qualify the holder to teach
in a State school in the State of Michigan.
29. The
current position in relation to the teaching of Irish is that classes 1 to 5
inclusive each receive 3 classes of 45 minutes duration per week in Irish from
one of the parents who teaches on a part-time basis and who has an honour in
Irish in the Leaving Certificate Examination and has worked as a substitute
teacher in a recognised primary school. The class teacher for classes 6 and 7
is the teacher whose qualification is recognised in the State and she is
qualified to teach Irish to that class. There is no formal teaching of Irish
in the kindergarten. Currently Irish is not used in the kindergarten and the
pupils first introduction to Irish in the school is in Class 1 at age 7. In
the relatively recent past, a curriculum has been devised for the teaching of
Irish, which is based on the Steiner curriculum for teaching a foreign
language. On the evidence, I am satisfied that there is a genuine desire in
Cooleenbridge School to improve the teaching of Irish in the school, but that
lack of resources has meant that the school is unable to attract a teacher
qualified to teach Irish.
30. Pupils
who have completed their primary education in Cooleenbridge School usually move
on to mainstream second level schools in the Limerick/Clare area for their
further education. On the basis of the evidence of the headmasters of three of
the second level schools which have taken pupils from Cooleenbridge School,
Scarriff Community School, Villiers College Limerick and Tulla Secondary
School, I find that, in general apart from some difficulties in relation to the
Irish language, historically pupils from Cooleenbridge School have presented as
well equipped educationally to embark on secondary education as pupils who have
attended recognised primary schools.
32. In
these proceedings, which were initiated by Plenary Summons which issued on 15th
November, 1996, the Plaintiffs seek the following reliefs:-
33. At
the hearing of the action it was agreed by the parties that the question of the
quantification of the damages, if any, to which the Plaintiffs are entitled
should be deferred until after the Court has dealt with the issue of liability.
34. In
addressing the issues which the Plaintiffs' claim and the Defendants' response
to it raise, I propose first summarising the submissions made by the Plaintiffs
and the Defendants, emphasising that what follows is merely an outline of the
very comprehensive oral and written submissions made by Counsel on both sides.
37. Essentially,
the Plaintiffs' claim is a claim for funding of Cooleenbridge School by the
State on the same basis as other primary schools recognised by the State are
funded. The core issue in determining whether that claim is sustainable is the
extent of the State's liability under Article 42.4. The Plaintiffs' claim
based on Article 42 rests solely on the first limb of Article 42.4, which
provides that the State shall provide for free primary education.
38. The
parties are agreed that the starting point for this Court in determining the
extent of the obligation created by those words is the decision of the Supreme
Court in
Crowley
-v- Ireland
,
[1980] I.R. 102. While there was a divergence of views in the Supreme Court as
to the application of the law to the facts in that case, I think that, on a
fair reading of the minority and majority judgments, there was unanimity as to
the extent of the State's obligation under Article 42.4 in the context in which
the issue was being considered.
39. The
minority judgment was delivered by O'Higgins C.J. Having contrasted Article
42.4 with Article 10 of the Constitution of the Irish Free State, O'Higgins
C.J. went on to state as follows (at page 122):-
40. O'Higgins
C.J. then went on to consider the textual differences between the Irish
language text and the English version of Article 42, on the basis that any
conflict between the English and Irish texts would have to be resolved upon the
proper interpretation of the Irish text, but his view was that the differences
indicated were more apparent than real. He then went on to deal with the
extent of the obligation mandated in Article 42.4 in the following passage:-
41. The
majority judgment was delivered by Kenny J. He identified the issue for
decision by the Supreme Court as whether the State - acting through its
officer, the Minister, in whom was vested the performance of the duties and
functions of the State in connection with education - had failed in its
constitutional duty imposed by Article 42 to provide for free primary education
and he continued as follows (at page 126):-
42. The
factual context in which the foregoing principles were enunciated was the
non-availability of free primary education in three national schools in the
Parish of Drimoleague because of an industrial dispute between the teachers and
their trade union, INTO, on the one hand, and the manager of the schools on the
other hand, which commenced on 1st April, 1976. On 1st January, 1978, the
Department of Education had arranged for buses to bring the children affected
by the strike from their homes to national schools in neighbouring parishes and
to take them home after school. In applying the legal principles he had
enunciated to those facts, Kenny J., in the majority judgment, found that the
totality of the evidence failed to establish that there had been a breach of
the constitutional duty imposed on the State. The minority view coincided with
that of McMahon J. in the High Court that, during the greater part of the
period from March 1976 to the end of December 1977, the State had been in
breach of its obligation to provide for free primary education for the
plaintiffs, who represented the children who had been deprived of free primary
education in Drimoleague Parish.
43. What
clearly emerges from reading
Crowley
-v- Ireland
in relation to the factual background is that the choice of the parents of the
plaintiffs in that case was to avail of the arrangements made by the Minister
for providing for free education in the denominational schools in the Parish of
Drimoleague. Their choice coincided with the Minister's method of providing
for free primary education. Their complaint was the interruption of the
delivery of free primary education through outside intervention - the
industrial action by the teachers. The question which the facts in the instant
case raise is whether the State has discharged its obligation under Article
42.4 by making arrangements for the provision of a form of free primary
education which is at variance with the Parent Plaintiffs' lawful preference.
The choice of the Parent Plaintiffs is to educate their children, the Infant
Plaintiffs, through the medium of the Waldorf Steiner pedagogy at Cooleenbridge
school. The Defendants acknowledge that the education being delivered at
Cooleenbridge school is primary education, albeit, a very special type of
primary education. However, the Defendants disavow any obligation to fund the
parental choice on the ground that the State has already discharged its
constitutional obligation to provide for free primary education in the East
Clare area by funding fifteen denominational schools, which are conducted in
accordance with the Rules, within a twelve mile radius of Cooleenbridge school
and which have open access to all seeking enrolment, including the Infant
Plaintiffs. The Plaintiffs contend that the State's stance is no answer to
their claim. There is no constitutional mandate for respecting their choice of
education any less than the choice of any other parent or excluding them from
the operation of Article 42.4 as interpreted by the Supreme Court in
Crowley
-v- Ireland
.
44. In
effect, it seems to me that what the Defendants are saying is that the Minister
has discharged his obligation of providing for free primary education in a
particular locality even though the provision he has made is incompatible with
the lawful preference of an appreciable number of parents in the locality.
What I must consider now is whether this proposition is tenable having regard
to the proper construction of Article 42.
45. As
to the approach the Court should adopt in interpreting Article 42, I accept the
submission made by Mr. Shipsey, on behalf of the Defendants, that in construing
Article 42, this Court should have regard to the canons of constitutional
construction set out by Henchy J. when delivering the decision of the Supreme
Court in
Tormey
-v- Ireland
[1985]
48. First,
it focuses on the primacy of the family and the rights of parents in relation
to the education of their children. It guarantees the inalienable right of
parents to provide for the religious and moral, intellectual, physical and
social education of their children. It identifies the options available to
parents in educating their children: they can educate them at home, or in
private schools, or in schools recognised or established by the State. It
underpins the freedom of choice of parents in relation to the education of
their children by expressly prohibiting the State obliging parents to send
their children to schools established by the State or to any particular type of
school designated by the State in violation of their conscience and lawful
preference. The State is permitted to directly intervene in the education of
children in two respects only and in both instances the State has a duty, as
well as a power, to intervene. The State, as guardian of the common good, must
ensure that children receive a certain minimum education, moral, intellectual
and social. The parameters of this power and duty of intervention were
considered by the Supreme Court in
In
Re: Article 26 of the Constitution and the School Attendance Bill, 1942
[1943] I.R. 334 when, in relation to the impugned provision of the Bill, the
Supreme Court stated as follows (at page 346):-
49. A
more radical form of intervention is permitted and mandated under Section 5 in
exceptional cases, where the parents for physical or moral reasons fail in
their duty towards their children. In those circumstances, the State, as
guardian of the common good is obliged by appropriate means to endeavour to
supply the place of the parents.
50. Secondly,
Article 42 imposes a duty on parents to provide, according to their means, for
the religious and moral, intellectual, physical and social education of their
children.
51. Thirdly,
in addition to its obligations to intervene already referred to, duties are
imposed on the State -
52. Fourthly,
Article 42 inferentially recognises certain rights of children, for instance:
the right identified by Kenny J. in
Crowley
-v- Ireland
to intervene so that they receive a certain minimum education; the right
identified by O'Higgins C.J. in
Crowley
-v- Ireland
to receive what it is the State's duty to provide for under Article 42.4; and,
by analogy, the right to have the State intervene and endeavour to supply the
place of the parents in the exceptional cases mentioned in Section 5. Section
5 expressly characterises the rights of the child as being natural and
imprescriptable.
53. When
one adopts a global approach to the interpretation of Article 42 the values
enshrined in it become obvious. It is concerned with education in a broad
sense - religious and moral, intellectual, physical and social. In its
entirety it is imbued with the concept of parental freedom of choice. While
parents do not have the choice not to educate their children, it recognises
that all parents do not have the same financial capacity to educate their
children. It is in this overall context that the obligation is imposed on the
State to "provide for free primary education". In my view it would pervert the
clear intent of the Constitution to interpret that obligation as merely
obliging the State to fund a single system of primary education which is on
offer to parents on a "take it or leave it" basis. In the case of parents of
limited or modest means unable to afford, or to afford without hardship, fees
charged by private schools, it would render worthless the guarantee of freedom
of parental choice, which is the fundamental precept of the Constitution. If
the Defendants' stance - that it has discharged its constitutional obligations
to the Plaintiffs by providing financial aid for 15 denominational schools
within a 12 mile radius of Cooleenbridge School - was tenable, it would render
meaningless the guarantee of parental freedom of choice in the case of the
Parent Plaintiffs. It is not tenable. Moreover, it is clear from the evidence
that it is not the stance adopted by the Minister in practice, as the past
recognition of multi-denominational schools and Gaelscoileanna indicates.
54. In
order to fulfil its constitutional obligation to provide for free primary
education, in my view, the State must have regard to and must accommodate the
expression of parental conscientious choice and lawful preference. However,
this does not mean that the State must accede to an application for financial
aid from any group of parents who are united in their choice of primary
education which establishes that what is being provided by it is education,
that it is being provided it in a school and that it meets a standard of what
can reasonably be defined as primary education, as the Plaintiffs contended.
As was pointed out by the Supreme Court judgments in
Crowley
-v- Ireland
,
the State's constitutional obligation is to make arrangements for the
availability of free primary education. Those judgments identified the main
features of the arrangements then in place: subsidisation of provision of
school buildings and facilities by means of capital grants; meeting the
day-to-day costs of running the schools by payment of teachers' salaries and by
means of capitation grants; and prescribing and enforcing standards, through
provision of a curriculum and supervision. It is also implicit in Article
42.4, in my view, that the scheme by which the arrangements are put in place,
involving as it must, the disbursement of public money, be rational. Even
though the State must have regard to the constitutional guarantee of parental
freedom of choice in framing such a scheme, nonetheless it is proper for the
State and, indeed, I would say incumbent on the State, to incorporate in the
scheme measures to ensure that need and viability are properly assessed and
that there is accountability.
55. In
summary, therefore, I reject the Defendants' contention that they have
discharged their constitutional obligation to the Plaintiffs by provision of
funded denominational national schools in East Clare. I also reject the
Plaintiffs' contention that once the Parent Plaintiffs, being a group of
parents exercising a similar lawful preference as to the manner in which they
educate their children, establish in this Court that they are providing
education for their children in a school which meets the standard which can be
reasonably defined as primary education, this Court can direct that they be
funded on the same basis as primary schools recognised by the State are funded.
The correct constitutional position is somewhere between the two polarised
positions adopted by the parties in these proceedings. Fulfilment of the
State's constitutional obligation under Article 42.4 must take account of the
parental freedom of choice guaranteed by Article 42, but it must be based on
arrangements which have a rational foundation and prescribe proper criteria for
eligibility which accord with the purpose of Article 42 and of the provisions
of the Constitution generally.
56. Unquestionably
fixing the parameters of the criteria for recognition of a primary school and
consequent eligibility for public funding has budgetary implications. However,
in my view, it does not follow that the issue whether the criteria fixed are
proper having regard to the provisions of the Constitution is not justiciable.
Nor does it follow that the Court would be usurping the function of the
Executive if it were to find that any criterion was wrongfully exclusionary
against the constitutional interest of a child or his parent and if it were to
direct that proper provision in accordance with the State's constitutional
obligation be made for the child. As is pointed out in Casey on
Constitutional
Law in Ireland,
2nd Edition at page 526 the judgments in
Byrne
-v- Ireland
,
[1972] I.R. 241 show that, failing action by other organs of State, it falls to
the Courts to secure performance of the State's constitutional obligations. In
his judgment in that case (at page 280) Walsh J., albeit
obiter,
illustrated the point by reference of Article 10 of the Constitution of
Saorstát Éireann and the obligation thereby created, which he
stated would have been clearly enforceable against Saorstát
Éireann if it had not implemented the Article.
57. Accordingly,
I must now consider whether, in adjudicating on the application for recognition
of Cooleenbridge School, the Minister applied criteria which took account of
the Plaintiffs' lawful preference and which otherwise accorded with the purpose
of Article 42 and of the provisions of the Constitution generally.
58. The
Defendants' position is that the criteria for recognition contained in the
Rules do not infringe the Constitution and provide a valid basis in law for the
implementation of the State's obligations under Article 42.4. The Defendants
have never itemised all of the relevant criteria for recognition which
determine eligibility for State funding of primary education and the Minister's
judgment on whether there is compliance on the part of the Plaintiffs with such
criteria, either in response to the Plaintiffs' Solicitors' request or in these
proceedings. However, the Defendants have identified two of the criteria,
relating to teacher qualification and the teaching of Irish, and contended that
the Plaintiffs have failed to comply with those criteria and, consequently,
that the decision of the Minister rejecting the application for recognition
communicated in the letter dated 28th February, 1995 was properly made in
accordance with the Rules. It was not to be implied, however, it was submitted
on behalf of the Defendants, that these two matters were the Defendants' only
concerns with regard to recognition of Cooleenbridge School. On the evidence,
it appears that some of the other matters of concern are the approach to early
childhood learning in the Steiner kindergarten, a perceived lack of
comprehensiveness and continuity in the Steiner curriculum and the absence of a
principal teacher figure in the management of a Waldorf Steiner School.
59. As
I understand the legal submissions made on behalf of the parties,
notwithstanding the case pleaded, the Plaintiffs and the Defendants did not
engage on the issue of the validity of the Rules as a whole as a body of
prescriptions and proscriptions regulating primary education. It was submitted
on behalf of the Plaintiffs that the State can only regulate the constitutional
rights of the Parent Plaintiffs and of the Infant Plaintiffs to be found in
Article 42 by legislation. The Rules are merely administrative rules and
cannot adversely affect those constitutionally protected rights. The
Plaintiffs based that submission on Article 15.2 of the Constitution which
vests the sole and exclusive power of making laws for the State in the
Oireachtas. Nonetheless, they did not seek to have the Rules struck down in
their entirety. It is to the application of the Rules to them that the
Plaintiffs' challenge is directed. They submitted that if and insofar as the
Minister in applying the Rules to them purported to regulate their
constitutionally protected rights in such a way as to diminish those rights,
the Rules are invalid.
60. The
Plaintiffs also queried whether the Minister is "the State" for the purpose of
recognising or withholding recognition from a school as envisaged in Article 42
and submitted that, as the Legislature has not entrusted the Minister
explicitly with the function of recognising or withholding recognition from
schools, he cannot be equated with the State for that function. However, it
was acknowledged that, as the State under Article 42.4 is responsible for the
discharge of the constitutional duty to provide for free primary education and
as the Minister has been entrusted by the Oireachtas under the Act of 1924 with
fulfilling the functions of the State in relation to primary education, it is
the Minister who must provide for free primary education and, in the event of
default by him, this Court can order him so to do.
61. In
response, the Defendants asserted that the Rules are lawful even though they do
not have the statutory basis. They do not purport to be legislation and are
merely administrative measures. However, they are administrative measures, it
was submitted, which have, as it were, the imprimatur of the Oireachtas because
annually in the Appropriation Act the Minister is mandated by the Oireachtas to
make payments in respect of the provision of primary education. The Rules have
been in operation for a very extensive period and the Oireachtas must be taken
to have understood that the expenditure of sums authorised by it for the
funding of primary education would be in accordance with the terms of the
Rules.
62. There
are a number of general observations which can be made in relation to the Rules
and their status having regard to the provisions of the Constitution.
64. That
provision would seem to envisage the funding of schools being regulated by
legislation.
Secondly,
the dearth of legislation governing educational policy in the State and,
particularly in regard to primary education, has been adversely commented on in
the past by academic commentators, for instance, by the editors of the 3rd
edition of Kelly on
The
Irish Constitution
at page 1060 and by Casey at page 526, as well as judicially. Costello J., as
he then was, in an unreported judgment delivered on 20th November, 1990 in
O'Callaghan
-v- The Meath Vocational Education Committee & Ors
.,
stated as follows:-
65. That
case concerned the exercise of a ministerial power under the Vocational
Education Act, 1930. The same Judge returned to the same topic in
McCann
-v- The Minister for Education
,
[1997] 1 I.L.R.M. 1, a case concerning the operation of the scheme for payment
of incremental salaries to secondary teachers, the most important distinctive
feature of which was that the regulations made by the Minister for the purpose
of administering it had no statutory basis and were not made pursuant to any
express statutory powers. In his judgment, Costello P. stated as follows (at
page 8):-
66. Fourthly,
although this was not the situation when the Minister rejected the Plaintiffs'
application for recognition and funding or, indeed, when the hearing of these
proceedings commenced in this Court, the Education Act, 1998, which provides
for the recognition of primary schools and the basis on which they are to be
funded, is now on the statute book.
67. The
Rules at issue in these proceedings were adopted with the express intention of
regulating the State's obligation to provide for free primary education under
Article 42.4 and the correlative right to receive free primary education. The
first occasion after coming into force of the Constitution on which the Rules
and Regulations for National Schools then in operation were considered was in
McEneaney
-v- Minister for Education.
In that case, the plaintiff, who had been first appointed as a principal
teacher in 1920, challenged the applicability to him of a new rule which had
been promulgated by the Minister in 1930, the effect of which was to bar him
from receiving increments of salary unless he obtained a certificate of
competency to give bilingual instruction. He was successful in the Supreme
Court. In essence, what the Supreme Court held was that no alteration could be
made to the rules to affect teachers who had acted upon the rules as they
stood, although it was not suggested that the rules could not be altered to
govern new relationships. In concluding the majority judgment of the Supreme
Court, Murnaghan J. stated as follows at page 444:-
68. The
basis of that decision was that an administrative rule cannot interfere with
existing contractual rights. The provisions of the Constitution were not
averted to.
69. That
statement said no more than that the Minister was bound by the Rules in the
disbursement of public monies. In my view, it is not of assistance in
determining the issue which arises here because Kenny J. had earlier found, on
the totality of the evidence, that the plaintiffs had failed to establish that
there had been a breach of the constitutional duty imposed on the State.
70. The
final authority which was referred to by Mr. McGuinness on behalf of the
Plaintiffs as being of assistance in determining the legal status of the Rules
was a statement by Costello P. in
McCann
-v- The Minister for Education
.
In that case, one of the arguments advanced on behalf of the plaintiff was
that the test of proportionality should be applied and, if it was, the impugned
ministerial decision would be shown to be invalid. Costello P., having
explained the test, dealt with this argument in the following passage of his
judgment (at page 11):-
71. It
was suggested, on behalf of the Plaintiffs, that the foregoing passage is of
significant importance in the context of Article 42.2.1. and Article 44.2.4 as
to how the State can constitutionally delimit for itself the extent of its
obligation under Article 42.4, in that, on the Plaintiffs' case all of the
Infant Plaintiffs have a constitutional right to provision being made for their
free primary education which, by application of the Rules, is being infringed.
I do not accept the proposition that the passage from the judgment in
McCann
-v- The Minister for Education
,
which I have just quoted is of assistance in resolving the issue which arises
in this case as to the effect of the Rules on the Plaintiffs' constitutional
rights. The only ruling in that passage was that the Plaintiff was not
asserting a legally protected right. For the purposes of dealing with the
argument advanced, Costello P. made an assumption, not a finding, that the
proportionality test extends to administrative measures which attack legally
protected rights.
72. Therefore,
it is necessary to consider whether the provisions of the Rules in relation to
teacher qualification and the place of the Irish language in the curriculum
trench on the Plaintiffs' constitutional rights under Article 42.4 as properly
construed. If they do, they are invalid to that extent.
73. The
Plaintiffs contended that the effect of the imposition of a requirement as a
pre-condition to recognition that they employ only teachers with qualifications
generally recognised by the Minister is to set at nought the Parent Plaintiffs'
choice of Steiner education for their children, because, as a pre-condition to
securing funding, they would be obliged to employ teachers who are not trained
in the Steiner philosophy and methodology. By enforcing the provisions of the
Rules in relation to teacher qualification against them, they submitted, the
Minister is making them conform with his choice and is negativing their choice
and thus infringing their constitutional rights under Article 42. Even in
applying the Rules the Minister does not have to adopt such an uncompromising
approach, they suggested, as the Minister has power to alter or rescind a Rule
and has frequently done so in the past. They cited the precedent of the
restricted recognition extended to Montessori trained teachers. They also
cited the precedent of both untrained teachers and substitute teachers who do
not meet the requisite qualifications who teach in recognised primary schools.
74. The
Defendants stood over the policy introduced a quarter of a century ago of
having a comprehensively trained graduate teaching profession in primary
schools recognised by the State and contended that it would be a retrograde
step to depart from that policy. As a matter of principle the Minister must
have a standard in relation to qualifications. As a matter of administrative
convenience he must have a standard. The standard he has is the appropriate
standard. As regards the precedent of affording restricted recognition to
Montessori trained teachers in special schools, that was an exceptional measure
to deal with the exceptional situation of children with special needs.
75. On
this issue the factual position is quite clear. Since its establishment in
1986 there has been, and there is now, only one teacher employed in
Cooleenbridge School who is eligible for recognition as a teacher in a State
recognised primary school. Accordingly, the only question which arises for
consideration on this issue is whether the requirement that teachers employed
in the school are qualified for recognition in accordance with the Rules is a
proper criterion for eligibility for recognition of the school which is
consistent with the purpose of Article 42 and the provisions of the
Constitution generally.
76. It
is undoubtedly proper for the Minister to prescribe standards in relation to
academic competence, nature and duration of training, experience and like
matters for deeming a person eligible for qualified status to teach in a
recognised primary school in the State. On the evidence, I am satisfied that
the standards currently prescribed for recognition as a teacher in a mainstream
recognised primary school are proper standards and, in so far as the parents of
children in mainstream recognised primary schools choose the type of education
delivered by teachers qualified in accordance with those standards, I see no
conflict between the imposition of the standards and the provisions of the
Constitution. But the type of education which the Plaintiff Parents have
chosen for their children is Steiner education, which teachers qualified by
reference to the prescribed standard are not trained to deliver. The evidence
does lead to the conclusion that requiring teachers employed in Cooleenbridge
School to conform to the prescribed standard as a pre-condition to recognition
of the school would negative the Plaintiff Parents' lawful preference. This
leads to the question whether the failure of the Minister to seek a solution to
accommodate the choice of Steiner education within the system of recognised
primary schools by relaxing the normal teacher qualification criteria is an
infringement of the constitutional rights of the Plaintiffs.
77. If
there is a reasonable solution available, it seems to me that the failure of
the Minister to adopt it would constitute a breach of the Plaintiffs'
constitutional rights. To suggest that there should be no prescribed standard
is not a reasonable solution. While the Plaintiffs did not overtly suggest
that there should be no prescribed standard at all, by seeking the relief they
claim in these proceedings on the basis of the evidence adduced, in essence
that is what they are doing. To suggest that full time permanent teachers
should be regarded in the same light as substitute teachers is not a reasonable
solution. There may be the possibility of a reasonable solution in the
precedent of restricted recognition of Montessori trained teachers in special
schools.
78. The
correspondence with the Department of Education in 1991 and later in 1993 and
1994 was conducted by Pearse B. O'Shiel on behalf of Cooleenbridge School. Mr.
O'Shiel is the father of the first of the Infant Plaintiffs and the husband of
the first of the Parent Plaintiffs. In the course of his evidence, he was
questioned in depth as to the attitude of the Plaintiffs in relation to teacher
qualification. His evidence was that what the Plaintiffs want is for the
Department of Education to enter into a process and come to an agreement with
them about the recognition of their teachers which would satisfy the
Department's requirements and also the rights of the parents in choosing
Steiner education for their children. The Plaintiffs have a two-fold problem
with the teacher training which is available within the State: it is
denominational and operates under an ethos other than the ethos chosen by the
parents for Cooleenbridge School; and the training is in a pedagogy which
differs from the pedagogy used in Cooleenbridge School chosen by the parents.
If the Plaintiffs were to employ teachers with qualifications recognised by the
State, they would be employing teachers who are trained in a methodology and a
pedagogy which is the choice not of the parents but of the Department of
Education. Mr. O'Shiel testified that the Plaintiffs never adopted the
position that the Minister must recognise their teachers' Steiner
qualifications. The Plaintiffs' position was that there must be a third
possibility (between the State insisting on the requirement that the teachers
in Cooleenbridge School possess the qualifications prescribed under the Rules
and the Plaintiffs insisting that the Minister must recognise their teachers'
Steiner qualifications) which was that they would together arrive at a position
that would be acceptable to Cooleenbridge School, the teachers and the parents,
on the one hand and the Department of Education, on the other hand. To the
Plaintiffs that did not seem beyond the realms of possibility.
79. Mr.
Sean O'Fiachra, the Deputy Chief Inspector in the Department of Education with
responsibility for inspection in the primary sector and special education,
testified that the attitude in the Department has changed somewhat
significantly since February, 1995. New Rules governing recognition of
teachers qualified in the European Union who hold qualifications covered by the
1991 Statutory Instrument have been introduced which envisage the granting of
provisional recognition subject to satisfying the Irish language requirements,
on an undertaking to satisfy the language requirements within two years.
However, Mr. O'Fiachra foresaw this route to recognition as being a difficult
route for Cooleenbridge School if more than one teacher was seeking provisional
recognition on this basis. As things stand, there is an even more fundamental
difficulty because, on the evidence it would appear that none of the full time
teachers in Cooleenbridge School qualifies under the 1991 Statutory Instrument.
80. On
the evidence, it is not possible to conclude that, as a matter of probability,
there was or is a reasonable solution to the teacher qualification dilemma. It
is not possible to put the matter any further than I have already put it: there
may be the possibility of a solution in the approach adopted by the Minister in
relation to restricted recognition for Montessori trained teachers in special
schools. However, restricted recognition for Montessori trained teachers is
based on a qualification which has been assessed and approved by the Department
of Education and which is derived from a teacher training course of at least
three years duration, which has a specialised component. There is no evidence
from which one could conclude that, if the Minister's Officials had assessed
the qualifications of the Steiner trained teachers in Cooleenbridge School in
1993/1994 or if they had assessed the qualifications of the Steiner trained
teachers currently employed there, applying correct legal principles they would
have had to find that the qualifications are of a sufficient standard to merit
the type of approval which qualification based on a three year training course
in the Montessori method, which includes specialised training in one or more
areas of special education, merits.
81. I
am conscious that there is an important constitutional right at stake in these
proceedings - freedom of parental choice in relation to the education of
children. I consider that in response to the application for recognition from
Cooleenbridge School in March 1994 there should have been a more searching and
pro-active approach from the Defendants. While I have no doubt that the
Plaintiffs were aware at all material times that teacher qualification was one
of the Department's requirements which was referred to in the letter of 28th
February, 1995 as not being met by the Steiner Schools, I am of the view that
they were entitled to a more informative response to their solicitor's letter
of 12th April, 1995 than they got.
82. The
process the Plaintiffs embarked on to enforce what they believed to be their
legal rights, these proceedings, is not a mediation process. It is a process
which provides a remedy if a breach of rights is established. For the reasons
I have outlined, I am not satisfied that, in the application of the provision
of the Rules in relation to teacher qualification to the Plaintiffs, the
Defendants have infringed the Plaintiffs' constitutional rights under Article
42.4.
84. The
Defendants contended that, having regard to the position of Irish as the first
official language, the Defendants are justified in insisting that teachers
teaching in primary schools in receipt of State funding have qualifications
which enable them to teach Irish to a reasonable standard and that the
curriculum taught will ensure that the national language is given a prominence
consistent with its constitutional status. They relied on the following
passage from the judgment of Henchy J. in
The
State (Cussen) -v- Brennan
[1981] I.R. 181 in support of that proposition:-
85. The
Plaintiffs' response to the Defendants' argument is that, notwithstanding the
provisions of Article 8, no law has been enacted by the Oireachtas which makes
it mandatory for a pupil to be taught Irish or for a teacher to teach Irish in
a primary school or requires or permits the non-recognition or non-funding of a
school where every teacher is not capable of teaching Irish. It was further
submitted on their behalf that it is not within the competence of the Minister
to make such imposition on pupil or teacher by the Rules and they cited the
decision of Judge Devitt in
Carberry
-v- Yates
(1935) 69 I.L.T.R. 86 and the decision of this Court (Geoghegan J.) delivered
on 31st July, 1998 in
D.P.P.
-v- Best
[1998] 2 ILRM 549 as supporting this proposition. Both of those cases
concerned prosecutions under the Act of 1926. The earlier decision was a
pre-1937 decision. The decision of Geoghegan J. was on foot of a consultative
case stated by a Judge of the District Court in a prosecution of a parent for
non-attendance of her children at school, where the defence of "reasonable
excuse" that the children were "receiving suitable elementary education in some
manner other than by attending a national or other suitable school" was
available under the relevant provision of the Act of 1926 and the parent relied
on her constitutional right to educate the children at home as a defence.
There was evidence in the District Court to the effect that there was no
provision for the children to study Irish in the home. Geoghegan J. considered
the defence that the children were "receiving suitable elementary education" in
the context of the State's obligation under Article 42.3.2 to require that the
children "receive a certain minimum education, moral, intellectual and social"
and he concluded, on the particular facts of the case, that the Judge of the
District Court would not be entitled to form a view beyond reasonable doubt
that a suitable elementary education was not being provided by the parent,
having regard to the provisions of Article 42. He made the following
additional observation:-
86. On
the issue of the teaching of Irish, there are two questions to be addressed:
whether the requirement of the Rules under which Irish is a compulsory subject
on the primary school curriculum is inconsistent with the provisions of the
Constitution so as to be invalid; and, if not, whether on the evidence Irish is
being taught insufficiently or inadequately or by teachers not suitably
qualified in Cooleenbridge School.
87. In
my view, as a matter of construction of Article 42, it is not correct to equate
the "certain minimum education, moral, intellectual and social" which the
State, as guardian of the common good, is obliged to require that children
receive under Article 42.3.2 with the "primary education" which the State is
obliged under Article 42.4 to provide for without cost to children or their
parents. While the degree of compulsion which the State is permitted and,
indeed required, to impose is limited under Article 42.3.2 by the terms of the
provision by reference to "actual conditions" prevailing and also in the
qualification of education by the words "certain minimum", there is no similar
limitation, express or implied, on the States' obligation to provide for free
primary education under Article 42.4. It is inconceivable that in 1937 the
framers of the Constitution intended that the State should be under a duty to
fund primary education to a "certain minimum" level only. Such an intention is
not manifested by the words used in Article 42 or indicated by its purpose.
Accordingly, I consider that the decisions in
Carberry
-v- Yates
and
D.P.P.
-v- Best
are of no relevance to the issue which arises in this case.
88. In
line with what I believe to be the State's constitutional obligation under
Article 42.4, the question which arises here is whether the prescription of
Irish as a compulsory curriculum subject in primary schools under the Rules is
a proper criterion for eligibility for recognition in accordance with the
purpose of Article 42 and the provisions of the Constitution generally. In my
view, an obligation to provide for the education of the children of the State
at their first stage of formal teaching and instruction must involve an
obligation to provide for education in the constitutionally recognised first
official language of the State. It follows that the requirement of the Rules
that teachers teaching in recognised primary schools should have proficiency in
Irish is a valid provision under the Constitution. In my view, it is also a
valid requirement under European Community Law and in its application to the
facts of this case, applying the test laid down by the Court of Justice in
Groener
-v- Minister for Education
[1990] I.L.R.M. 335, it is neither disproportionate nor discrimatory.
89. Turning
to the evidence, it is undoubtedly the case that the treatment of Irish in the
Cooleenbridge School curriculum which was submitted to the Department of
Education in March 1994 was totally inadequate and the Minister was justified
in withholding recognition on that account. Despite the best efforts of the
parents running Cooleenbridge School, the current position in relation to the
teaching of Irish in the school is not satisfactory. Three of the four class
teachers have no competence in the Irish language and it is not possible to
adopt an integrated approach to the teaching of Irish in relation to those
classes. Moreover, not only is it impossible to have the Irish language or an
aspect of the Irish language as the theme of the main lesson, which is the most
important component in the Steiner curriculum, but it is also impossible to
integrate the speaking, reading and writing of Irish into the main lesson. The
concern is not the quality of the instruction in Irish which the pupils in
classes 1 to 5 in Cooleenbridge School currently receive. The concern is that
provision cannot be made for a core element of the curriculum in a manner which
is consistent with either the philosophy underlying the national curriculum or,
as I understand it, the philosophy underlying the Steiner approach to education.
90. The
Plaintiffs have not established that the rejection of their application for
recognition of Cooleenbridge School by the Minister's decision communicated in
the letter dated 28th February, 1995 was in breach of their constitutional
rights under Article 42.4, or any other provision of the Constitution, nor have
they established that in the circumstances currently prevailing they have the
right to require the State to fund Cooleenbridge School in the manner in which
a recognised primary school is funded. Accordingly, they are not entitled to
any of the reliefs they claimed.
91. I
regret that the Court has not been able to provide any solution for the
Plaintiffs. The strong commitment of the Parent Plaintiffs to their children's
education is evident and commendable. I hope that in the future they will be
able to mediate the difficulties which have hindered recognition with the
Department of Education. I have already referred to one aspect of Mr.
O'Fiachra's evidence in relation to what he called the changed "environment"
since February 1995. He also indicated that in the event of the Plaintiffs
reapplying for recognition they should encounter a degree of flexibility in the
Department in relation to the curriculum issues, other than the question of
Irish and early childhood learning. It would be unfortunate if Cooleenbridge
School ceased to operate because of lack of resources. If it were to close, I
think the ultimate irony would be that it would probably cost the State as much
to deal with the consequences of closure as it would fund the school if it was
recognised.