Opinion

ANALYSIS: Warnings of legal challenges now being realised

An emergency legal challenge was brought against the board of governors of St Malachy's College on Wednesday
An emergency legal challenge was brought against the board of governors of St Malachy's College on Wednesday An emergency legal challenge was brought against the board of governors of St Malachy's College on Wednesday

WHEN schools revealed the new admissions criteria they planned to use instead of entrance exams, there were predictions many would end up in court.

So it has transpired.

Already, one judicial review has been dropped after a school changed its criteria while another was heard yesterday.

It has not been an easy time for governors since the cancellation in January of transfer tests.

The minister did not help when he suggested schools could use "alternative data as a proxy for academic selection". His department never did say what these were.

In the end, almost all schools opted for non-academic criteria - such as feeder schools and siblings - and worked to ensure these were as fair, equitable and transparent as possible.

Lawyers issued several warnings that Department of Education guidance on what should or should not be used, must be followed.

Failure to do this, they cautioned, and not having a sufficient reason, would mean they may not be indemnified if legal proceedings were initiated.

Despite this advice, and without direction from the department, a wide array of criteria were published.

In many instances schools clearly adhered to the guidance, while others clearly did not.

The Department of Education's role in this is often questioned.

However, legislation provides it with no power to approve criteria or monitor their formulation.

Schools are left to their own devices. Governors must simply `have regard to' guidance.

And this will only ever become an issue if a school is taken to court.

Some lawyers have suggested to The Irish News that there are schools whose criteria are `open goals' should anyone contest them.

But, it is difficult to predict when or from where the next legal challenge will come.

There will likely be a few more twists and turns before September - maybe even beyond then.