Law 'accelerates adversarial school litigation'
The legal framework may be unintentionally accelerating the move towards adversarial litigation in the context of education, Professor Shivaun Quinlivan, Professor in Law at the University of Galway, and one of Ireland's leading scholars in equality and education law, has said.
The Equal Status Acts (2000-2018) provide a limitation period of just two months within which a complaint must be instigated.
This puts families in an impossible position – either they continue engaging constructively with the school or they risk losing their child's legal right.
Formal positions
"The minute formal proceedings have commenced, frequently everything kind of ‘stops’. Positions become entrenched, schools understandably seek legal advice and they adopt formal positions.
“Communications become more cautious and opportunities for informal resolution become increasingly limited,” Quinlivan told a GEMME webinar on child mediation on 25 June.
“I'm not proposing that the limitation period should be abolished, nor that litigation should be displaced by mediation. Rather, what I'd like to suggest is that consideration should be given to adapt procedural rules to reflect the distinctive nature of educational disputes.
‘Allow time to stop’
“One very simple change would be to allow time to stop once parties are engaged in a recognised alternative dispute-resolution mechanism, including mediation.”
Such an approach, Quinlivan argued, would achieve two important objectives.
First, it would preserve access to formal legal remedies, so parents are not forced to choose between their child's legal right or an informal discussion process or negotiation with the school.
Secondly, it would create a genuine space for mediation. Parties could engage openly and constructively without the constant pressure imposed by an approaching limitation deadline. If mediation proved unsuccessful, the right to litigation would remain.
‘Education is different’
“I don't think parents go into litigation easily. They don't want their child in a school that they’re suing. Parents want the resolution. They want to see if they can get the educational opportunity,” said Quinlivan.
“My central argument is that education is different, for a number of reasons: because time matters, education opportunities expire, and relationships endure. Most importantly, it's also different because the person at the centre of it is a child.
“If we accept those propositions, then it follows that our dispute-resolution processes should reflect those realities.”