An Irresponsible State - Supreme Court Verdict on Schools

http://www.irishtimes.com/newspaper/breaking/2008/1219/breaking41.htm

I am appalled at the (split) Supreme Court judgement that the State has no responsibility for what happens in schools - it is the sole responsibility of the School Manager, who in many cases is the Parish Priest.

It is imo sickening and infantile that we can't take responsibility for the education of our children. Is there any other state in the world that shrugs off all liability with regard to the state funded education of small children?

With responsibility goes power. Does this mean that the School Managers are free to close down and sell off the (state funded) national schools, if they don't want to run them any more?

The Supreme Court is correct in the context of vicarious liability. The structure of the school system in this State does not create the element of control necessary in order to impose vicarious liability in tort on the State.

It is a difficult judgement in the context but it is the correct one on the basis of the action taken. It is however likely that vicarious liability would be imposed on the school, as it would have been on the Kings Hospital School for the Derry O'Rourke abuse, had they not reached a settlement out of court.

The Supreme Court did not say that the State has no responsibility for the Schools. In fact the State has a constitutional responsibility to provide a free primary education for every child in the State. Do not read further into the Supreme Court judgement than the decision goes. They merely decided on a point of law that the State is not vicariously liable for the torts of a third party whose employer is the school. That is the correct decision. The best way to resolve the issue is change the structure of the school system but not to upset the legal principles of our system.

johnfás wrote:

The Supreme Court is correct in the context of vicarious liability. The structure of the school system in this State does not create the element of control necessary in order to impose vicarious liability in tort on the State.

It is a difficult judgement in the context but it is the correct one on the basis of the action taken. It is however likely that vicarious liability would be imposed on the school, as it would have been on the Kings Hospital School for the Derry O'Rourke abuse, had they not reached a settlement out of court.

The point is not the legal argument, it is the irresponsibility of the State in relation to the education of our children. In any case, it was a split decision, well reported in the article linked. I agree with the minority view.

The idea that this poor woman, has been abused, should now have to pay the costs of this farrago of nonsense is beyond belief.

A case with huge implications.

I think the issue of the relationship of state and education needs a good airing and particularly on the responsibilities of Boards of Management and the delegation of authority to them by the Minister. Having chaired one and ending up in the High Court, not joined by the Minister, I have serious questions.
When you talk about the structure of the school system, it is more complicated than at first sight. (There are even schools directly owned by the State so that the Minister is not only paymaster but Patron also) The frequent complaint that no teacher is ever fired is not true, as I can attest, but the Boards (completely voluntary bodies) can end up with responsibilty and no authority while the Minister and the State.....

johnfás wrote:

The Supreme Court is correct in the context of vicarious liability. The structure of the school system in this State does not create the element of control necessary in order to impose vicarious liability in tort on the State.
...

The Supreme Court did not say that the State has no responsibility for the Schools. In fact the State has a constitutional responsibility to provide a free primary education for every child in the State. Do not read further into the Supreme Court judgement than the decision goes. They merely decided on a point of law that the State is not vicariously liable for the torts of a third party whose employer is the school. That is the correct decision. The best way to resolve the issue is change the structure of the school system but not to upset the legal principles of our system.

I must disagree.

This judgement represents a despicable and cowardly abdication of responsibilty on the part of the Supreme Court (with one honourable exception).

Your assertion that "The structure of the school system in this State does not create the element of control necessary ..." is absolutely incorrect, despite the reality that most of the members of the court as constituted agree with you.

The State funded this school almost entirely. (As it still does the vast majority of schools in this country). It pays for all electricity bills. It pays for all rents owing. It pays for all heating bills. It pays for all ongoing maintenance. It pays for transport of children to and from the schools. Crucially, it pays directly the salaries of all teachers employed. It reserves an absolute veto over hiring and firing of staff. It reserves absolute control over what is taught in the schools and how it is taught. Apart from the relatively tiny element of fundraising parents and communties have to do, it pays for everything. He who pays the piper calls the tune. It is unimaginable how the State could excercise any more control over schools.

The so called independence of school Boards of Management is a legal fiction, one with disturbing implications for anyone with children of school going age. That the Supreme Court repeatedly gives its imprimatur to this fiction has (in my opinion) more to do with an appalling vista consideration than anything else.

Newsflash to the members of the court - Yes, the vista is appalling, littered as it is with the shattered remains of lives brutalised by savages paid by the State.

You are also incorrect in stating that "the State has a constitutional responsibility to provide a free primary education for every child in the State". It has no such responsbility. Article 42.4 contains the mother of all loopholes, requiring the State to provide for free primary education.

This loophole was no doubt intentionally inserted to satisfy the two relevant requirements of the day. Firstly, the laudable recognition that it is in the State's interest that its citzenry be educated to some minimum standard. The second crucial requirement was the necessity that the church have total control over all aspects of its flock's social and moral development.

Latterly however, now that we have largely escaped from the smothering embrace of the clergy, the State has been cynically abusing this loophole in order to evade its moral and legal responsibilities to educate our children in a safe and secure environment.

I agree with you that the best way to avoid repeats of this disgusting abuse is to change the ground rules (i.e Article 42.4) but that does not absolve the members of the Supreme Court of their duty to administer justice. Yesterday's judgement was not justice - it was more salt in the wounds of a woman who has already endured appalling abuse at the hands of the State and its army of rapist advocates.

Mo náire sibh.

The court decision was quite correct in law. The tragedy is that that woman took the case. She should have been advised that it was pretty open and shut. The state did not control the school in question, its patron did. The state did not hire the teacher in question. The school did. The state's primary role was in paying money to the school to pay the teachers the school had hired.

We can argue whether the private control system most Irish schools operate under is right or wrong. But that is the system the people wanted, and whenever it was suggested it was shot down by the public who saw it as an attack on the Church.

The state now has a more direct involvement in schools, more protection mechanisms and so more liability. But the state cannot be held liable for a failing by another body (the school patron) in its hiring and firing mechanism at a time when religious, not the state, had control over who was hired in schools like that. You cannot hold the state responsible for something at the time it did not have control over. The woman sued the wrong entity. She should have sued the patron who hired the teacher. The state didn't. I can understand my emotionally she went for the case she did, but she should have been informed that legally she had no grounds there for suing the non-employer for the action of someone who was not their employee.

Papal Knight wrote:

...The state's primary role was in paying money to the school to pay the teachers the school had hired. ...

This is not my understanding. I believe that teachers are paid directly by the State. Can any teachers reading clarify this please?

As for the rest of your post, I refer you to your signature.

coc wrote:

Papal Knight wrote:

...The state's primary role was in paying money to the school to pay the teachers the school had hired. ...

This is not my understanding. I beleive that teachers are paid directly by the State. Can any teachers reading clarify this please?

As for the rest of your post, I refer you to your signature.

The cheque comes from the Dept. but the school hires you.

That was my understanding also. Thanks.

More on this today. It is outrageous when compared with the hoops jumped through to protect the interests of the rich and powerful. But nobody gives a f*ck, do they?

coc, that one reminds me of the parents who tried to get one to one therapy for their autistic kid (ABA or something) by going to court and lost. The state went after them quite severely for costs iirc.

Good old boys, eh.

coc wrote:

More on this today. It is outrageous when compared with the hoops jumped through to protect the interests of the rich and powerful. But nobody gives a f*ck, do they?

The point of law has been made, now it's up to someone to start the campaign to change the law.

We can't bend and shape the law to make it suit cases we think are deserving. When it's tested, as it has been here, the next step is to do something about making it better. That's not easy, but it's more hopeful and proactive than raging against the darkness.

EvotingMachine0197 wrote:

coc, that one reminds me of the parents who tried to get one to one therapy for their autistic kid (ABA or something) by going to court and lost. The state went after them quite severely for costs iirc.

These cases are of a piece with the thinking of the geniuses who have cut traveller childrens schoolbooks, the medical cards and primary school teachers while not touching the bankers or income tax. The idea that the law is some semi-religious socially embodiment of neutral justice just won't cut it. People are in jail for not paying their tv licences and other people rob millions and are let jet off on a long holiday. The "appalling vista" that the State might be responsible for the teachers pay was not part of their allowable equation.

cactus flower wrote:

EvotingMachine0197 wrote:

coc, that one reminds me of the parents who tried to get one to one therapy for their autistic kid (ABA or something) by going to court and lost. The state went after them quite severely for costs iirc.

These cases are of a piece with the thinking of the geniuses who have cut traveller childrens schoolbooks, the medical cards and primary school teachers while not touching the bankers or income tax. The idea that the law is some semi-religious socially embodiment of neutral justice just won't cut it. People are in jail for not paying their tv licences and other people rob millions and are let jet off on a long holiday. The "appalling vista" that the State might be responsible for the teachers pay was not part of their allowable equation.

I don't think anyone is suggesting the law is a semi-religious social embodiment of neutral justice. It's a set of rules that have been agreed on by our legislators and the fact that we don't enforce those that affect upper echelons of society and business doesn't mean that we should be lax on anyone, regardless of their social or financial status. Bad law should be changed and good law should be enforced across the board. That's what everyone would like to see.

I think there are some very bad aspects of the law around TV licences as it happens, but that's a different discussion.

Whose dealing with the legislation change on schools then?

What you're talking about two posts above, cactus, is in large part issues relating to socio-economic rights. That is, rights of a distributive nature which cost alot of money to implement. The view of the current Supreme Court, and it is a view I have some sympathy for, is that owing to the separation of powers they should not engage in adjudicating upon policies regarding socio economic rights. They do not possess the skill to do this and if they do, it is highly activist and while you might believe that they should in one case, you may be up in arms about another decision they make dispensing your taxable income to a cause you disagree with. Such decisions of distribution should, save in the most extreme examples of breach of clear constitutional rights, be the preserve of the legislature.

Interesting point to note is that the Supreme Court has again and again asked people to bring a different type of action and it is only very recently that people have begun to do so. In relation to schoolbooks etc (right to school books isn't a Constitutional right by the way) the courts won't write state policy, that is they won't say you have to do this. However, they are willing to make a declaration of incompatibility with the Constitution. The courts would expect that the Oireachtas would take cognisance of such declaration and can strengthen grounds for future actions if they don't.

Anyway, that is all quite apart from the initial topic of the thread, but related to some of the issues raised such as ABA, school books etc.