The right to an ‘appropriate’ education under Irish law

Introduction

The provision of education has a transformative effect on those living with disabilities. This chapter aims to assess the scope of the right to free primary education as it applies to children with disabilities in Ireland. In this chapter, Irish legislation and initiatives that have been implemented in the deliverance of education to children with disabilities will be examined.

I. The right to an “appropriate” education under Irish law

Article 42.4 defines one of the only socio-economic entitlements under the Irish Constitution, which consecrates the right to a free primary education. This section states that “The State shall provide for free primary education and shall endeavour to supplement and give reasonable aid to private and corporate educational initiative, and, when the public good requires it, provide other educational facilities or institutions with due regard, however, for the rights of parents, especially in the matter of religious or moral formation.235” Article 42.4 has often been litigated in the Irish courts in the context of children with disabilities and their right to an appropriate education under Irish law.

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As is the case with most constitutional provisions that confer individual rights, the ambit of Article 42.4 has fluctuated over the decades in accordance with trends of judicial interventionism. The characterisation of what was first considered an “appropriate education” had quite narrow origins, with Kenny J in the High Court asserting that education was primarily “scholastic” in nature.

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Fortunately, this view was quickly overturned at Supreme Court level, with Ó’Dálaigh CJ favouring a far more holistic vision of what constitutes an appropriate education. Herein, the learned judge described education as “essentially, the teaching and training of a child to make the best possible use of his inherent and potential capacities, physical, mental and moral.”238 On foot of this broad vision of what an “appropriate education” should strive to achieve, numerous cases arose throughout the 1990’s concerning children with mental and physical disabilities who sought to compel the State to provide them with a better standard of education.

239 In O’Donoghue v Minister for Health,240 The applicant was a child

235 Article 42.4 236 Oran Doyle and Tom Hickey, Constitutional Law: Texts, Cases and Materials (2nd edn, Clarus Press 2019) 514. 237 Ryan v Attorney General [1965] IESC 1, [2009 ] IR 294. 238 Ryan v Attorney General [1965] IESC 1, [2009 ] IR 294 per Ó’Dálaigh CJ at para 37. 239 Oran Doyle and Tom Hickey, Constitutional Law: Texts, Cases and Materials (2nd edn, Clarus Press 2019) 514. 240[1993] IEHC 2, [1996] 2 IR 20.