Excluding pupils with special needs from school is a perversion of the Constitution

In recent times many questions have been asked about how we treat school-age children and teenagers with special needs.

There are children with special needs whose parents cannot find a primary school which will admit them. There are children attending school for a few hours a day, before being collected and taken home. Some children with special needs have been excluded from school due to their behaviour. Special needs pupils reaching secondary-school age can find that there is no appropriate option and have to stay in primary school or attend a school far from home.

In some respects, the Oireachtas has done its job of passing laws in relation to special education and equal treatment between children.

Article 42 of the Constitution requires that children receive a certain minimum education – religious and moral, intellectual, physical and social. The Education Act of 1998 referred to children with a special need or disability, but failure to implement these mentions have prompted yet another law.

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The Education for Persons with Special Educational Needs Act of 2004 was well-intended but to this day has not been fully implemented.

The Equal Status Act of 2000-2004 should have done away with discrimination against children with disabilities, however, it allowed for exemptions to equal treatment where the admission of a child would have a serious detrimental effect on services to other pupils.

Ireland ratified the Convention on the Rights of the Child in 1992 with its educational guarantees in Article 23, and the UN Convention on the Rights of Persons with a Disability was eventually ratified.

Article 24 (2) is useful: “States Parties shall ensure… persons with disabilities can access inclusive, quality and free primary education and secondary education on an equal basis with others in the communities in which they live”.

The right to a quality education is particularly apt, as some parents consider that teachers are not always trained in special education and cannot provide the educational experience their children need.

This is intended to be remedied by an increase in the supply of special education teachers into the system. Such teachers may be quickly absorbed by the thousands of special schools and special classes across the country.

A guarantee of equal access is provided for in the Education (Admission to Schools) Act of 2018, which allows the Minister for Education to compel a school to make provision for children with special education needs by, for example, providing an extra class.

The Teachers Union of Ireland has argued that, as Ireland has a young population, the demand for special classes for children on the autism spectrum and with other special needs can only increase.

A parent whose six-year-old child is not admitted to a school can appeal that refusal under the Education Act.

The chances of success are slim in many cases; so long as the school shows that the refusal is consistent with their own admission guidelines, the appeal will fail.

School exclusion

Once admitted to school, problems do not end there. Some children are not allowed to have a full school day, with parents receiving phone calls asking them to collect their child early, depriving them of equal access to an education, compared with their brothers and sisters, according to a recent Inclusion Ireland study.

This can occur within an hour of the child arriving at school and creates great anxiety for child and parents alike.

This form of school exclusion is not always notified to local special education needs organisers, who are entitled to be informed of changes in the education of children with special needs.

The practice undermines the universality of primary education and is currently under review.

It is a perverse interpretation of the Constitution, which states that parents are the primary educators of their children and returns children to their parents without the minimum of education to which they are entitled.

This "minimal" concept of education is what was at stake in the court case by Kathy Sinnott of Cork on behalf of her son Jamie in the early 2000s.

She claimed he was entitled to an education beyond the age of 18 years, to make up for the poor quality of education he had received until then.

The Supreme Court ruled against her and the judgement was a big setback to the rights of the child with special needs or the child who is neurologically different.

No amount of international conventions, constitutional law and specific (not implemented) statutes have managed to unblock the walls that prevent the child with special needs obtaining access to a quality education.

The laws and human rights principles have to be enforced. There have been increases in the numbers of special needs assistants and special education teachers in recent years. It is not just a case of throwing money at the issue.

There have been extensive exchanges of views on the place of religious differences in our school system but much less on the cognitive and neurological differences between children.

Maybe now is the time to construct a vision for the educational needs and rights of all our children.

Pauline Conroy is a social policy analyst and author of A Bit Different – Disability in Ireland (Orpen Press, 2018).