Education Rights and COVID-19 School Closures

 

Alan DP Brady, Trinity College Dublin School of Law School and Law Library 

James Rooney, Trinity College Dublin School of Law School and Law Library

 

On 6 January 2021, the Government decided that all schools – including special schools – were to be closedin response to the third wave of the Covid-19 pandemic. Over the succeeding school term, schools were gradually reopened, with special schools the first to open. It is anticipated that fully reopened primary and secondary education will be available after the Easter break.

 

The closure of all schools – and particularly the closure of special schools – has been legally and politically controversial. Conor Casey has recently drawn attention in his blog post to the unusual means by which this shut-down was ordered – namely that no primary or secondary legislation has been promulgated giving effect to these school closures. In this blog post, we draw attention to the impact of school closures on the educational rights of children under the Constitution of Ireland and the European Convention of Human Rights (ECHR). 

 

Education Rights under the Constitution of Ireland

Article 42.4 of the Constitution states that ‘the state shall provide for free primary education.’ In Crowley v Ireland [1980] IR 102, the Supreme Court held that, while Art.42.4 does not guarantee a primary education for all children, it does guarantee that the State will provide the infrastructure for third parties to provide free primary education. Where a child is not provided with any primary educational infrastructure from the State then, this will constitute a breach of the Art.42.4 right. This has arisen in the past in regards children with special educational needs. In O’Donoghue v Minister for Education [1996] 2 IR 20, the High Court declared that ‘the infant applicant is entitled to free primary education in accordance with Article 42.4 of the Constitution and the State is under an obligation to provide for such education.’ This judgment, affirmed on appeal by the Supreme Court [1996] 2 IR 20, is a recognition of a positive obligation on the State to provide education to children, including children with special needs.

 

In O’Carolan v Minister for Education and Science [2005] IEHC 296, a child’s parents challenged the quality of his special needs education. The High Court rejected their challenge, holding that, excepting the extreme situation where no educational provision is made an ‘adequate’ educational provision by the state will satisfy its obligations under Art.42.4. Similarly, in Ó C v Minister for Education and Science [2007] IEHC 170, the High Court held that, provided the Minister has not acted ‘in some irrational way by making provision in a way that simply cannot be appropriate to meet the needs of children with [special] needs,’ the approach adopted by the Minister will be deemed constitutionally compliant.

 

The State is under a duty to provide some primary education, where education is understood to be ‘such advice, instruction, and teaching as will enable him or her to make the best possible use of his or her inherent and potential capacities, physical, mental, and moral; however limited those capacities may be.’ [1996] 2 IR 20, at 65) If some provision is made, provided that the provision is not irrational, it will likely pass the test in Ó C. 

 

It is apparent however there are categories of children for whom no educational provision was made following school closures in January. First, and most obviously, children with special needs for whom online learning is not practicable, did not receive any educational provision at all. This appears to fall short of the State’s obligations under Art.42.4. Secondly, online education for mainstream primary students as assumes that the IT facilities and adult supervision are available for the child to make use of the online educational provision. This may not be possible for many children. For example, there may not be enough electronic devices in the home for the child and any adults working from home to each have access to IT. Where the caregiver(s) is/are an essential worker(s) the necessary level of adult supervision for a child to engage with online learning may be absent. These factors suggest that there are also mainstream primary pupils who were not receiving educational provision during the school closures.

 

Educational Rights under the ECHR 

Art.2 of Protocol 1 to the ECHR guarantees that the right to education ‘shall not be denied’. The ECHR appears to primarily place a passive duty on the State not to hinder access to education, rather than a positive obligation to subsidise a particular type of education. However, the ECHR right also includes secondary and higher education. In Catan v Moldova and Russia (2013) 57 EHRR 4 (Grand Chamber), the European Court of Human rights (ECtHR) accepted that the right to education is not absolute and may be subject to limitations, but there must be no injury to the substance of the right, they must pursue a legitimate aim and there must be a reasonable relationship of proportionality between the means employed and the aim to be achieved.

 

In Memlika v Greece (2013) 57 EHRR 4 (Grand Chamber), the ECtHR found a violation of the right to education for two primary school aged children who missed three months of school due to a mis-diagnosis of leprosy. The Court expressly assessed the intrusion on proportionality grounds and found that it was disproportionate. The ECtHR has found that the right to education can be violated in combination with the Art.14 right to non-discrimination in the context of a child with special educational needs. (GL v Italy [2020] ECHR 618). The Court noted that the discrimination on the basis of disability was all the more serious as it had taken place in the context of primary education, which formed the foundation of child education and social integration, giving children their first experience of living together in a community.

 

Conclusion

The ECHR prohibits the disproportionate limitation of access to primary, secondary and third level education. As the Constitutional case law has primarily focused on positive obligations, it is not clear whether the Constitutional right carries a similar prohibition, but it is certainly possible, More importantly, taken in combination the positive and negative obligations from the two human rights instruments indicate that: (a) the Irish State is obliged to provide the practical infrastructure for the provision of primary education by independent entities; and (b) the Irish State may not disproportionately prevent children from accessing that education. During the early part of 2021 large numbers of children were excluded from receiving any educational provision in circumstances where the public health experts indicate that schools themselves are safe. This raises serious questions about the proportionality of ordering the total closure of all schools. As the work of this blog has repeatedly affirmed, rights need protection particularly during emergencies. Whilst it is cautiously hoped that we are currently in the last lockdown of this pandemic, in the case of a fourth wave it is hoped that greater consideration will be given to the educational rights of children than was the case in this third lockdown.

 

Alan DP Brady and James Rooney are practising barristers and Adjunct Assistant Professors of Law, Trinity College Dublin.

 

Suggested citation: Alan DP Brady and James Rooney, ‘Education Rights and COVID-19 School Closures’ COVID-19 Law and Human Rights Observatory (8 April 2021) https://tcdlaw.blogspot.com/2021/04/education-rights-and-covid-19-school.html